Gyftopoulos v Corporate Ventures Pty Ltd

[2002] NSWDDT 19

Dust Diseases Tribunal

of New South Wales

CITATION:	Gyftopoulos v Corporate Ventures Pty Ltd [2002] NSWDDT 19
PARTIES:	Joannis Gyftopoulos v Corporate Ventures Pty Limited and Sreswob Pty Limited (formerly known as Bowsers Asphalt Pty Limited)
MATTER NUMBER(S):	446 of 2001
JUDGMENT OF:	Johns J at 1
CATCHWORDS:	Damages - Negligence :- Contributory Negligence Smoking Masks Compensable / Non-Compensable Damage
LEGISLATION CITED:
CASES CITED:	Bankstown Foundry v Braistina (1986) 160 CLR 301; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Chulcough v Holley (1967) 41 ALJR 336; CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223; Faulkner v Keffalinos (1971) 45 ALJR 80; James Hardie & Co Pty Ltd v Newton (1997) 15 NSWCCR 717; McLean v Tedman (1984) 155 CLR 306; Pammet v Pawelski (1949) 79 CLR 406; Planet Fisheries Ltd v La Rosa (1968) 119 CLR 118; Purkess v Crittenden (1965) 114 CLR 164; Sangravure v Meani (1964) 110 CLR 24; Sullivan v Micallef (1994) Aust Torts Reports 81-308; Thomson v Smith's Ship Repairers (North Shields) Ltd [1984] 1 QB 405; Wallaby Grip Ltd v Peirce [2000] NSWCA 299; Watts v Rake (1960) 108 CLR 158; Williams v Commissioner for Road Transport (1933) 50 CLR 258
DATES OF HEARING:	25/07/2002, 11/09/2002, 11/10/2002
DATE OF JUDGMENT:	11/01/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Ms A J Katzmann SC instructed by Turner Freeman FOR DEFENDANTS: Mr G J Parker instructed by Hunt & Hunt

JUDGMENT:

1. The plaintiff has asbestos related plural disease and makes a claim for damages against Corporate Ventures Pty Ltd and Sreswob Pty Ltd (formerly known as Bowsers Asphalt Pty Ltd). The case arises out of the employment of the plaintiff by each of the defendants. The plaintiff was employed by the first defendant from 6 June 1980 until 18 May 1993 when he was employed as a labourer/ lagger. From 15 August 1975 until 4 June 1980 the plaintiff was employed by the second defendant as a labourer/ lagger.

2. Liability in negligence is admitted by the defendants so that the issues that remain relate firstly to contributory negligence and secondly to the defendants' liability in regard to a breach of statutory duty. The second only arises in so far as the court is persuaded to discount the plaintiff's verdict if contributory negligence is found. If no contributory negligence was found it was common ground between the parties that the assessment of damages would be the same and it was therefore unnecessary to consider the issue of breach of statutory duty. Additionally, the court was informed that it would not be invited to determine issues between the defendants.

Work History

3. The plaintiff commenced his work with the second defendant on 15 August 1975. Although he was told it was dirty and dusty work, he was also told it was a well-paid job and he decided to accept a position. The company sprayed insulation for fireproofing at various sites around the Sydney area and beyond.

4. The plaintiff began with the second defendant spraying asbestos for insulation. In the early eighties the first defendant switched the spraying composition to fibreglass.

5. The defendants also had a work depot at Rozelle where for a period of time the plaintiff also worked. The depot was a storage facility for asbestos bags. At the depot the plaintiff's duties included unloading the bags from trucks. The bags were made of what he described as paper which sometimes broke. He was also required to sweep the spillage and dust from the bags upon complaints of some of the fork lift drivers. In this work he might have worn a mask maybe once or twice, but he was never directed to wear a mask while working in the depot.

6. The asbestos bags were taken from the depot to the various work sites and when the plaintiff worked at the various work sites he unloaded bags of asbestos from the delivery van.

7. His work with the second defendant involved mixing the asbestos. This particular process involved tipping bags of asbestos into a mixture that was then mixed with water to form a slurry which was transmitted through a hose attached to a machine and sprayed over the beams of a building in the course of construction. Undoubtedly this was a particularly dusty work environment. Either in the process of mixing or in spraying the asbestos the dust stayed around in the air and the plaintiff was covered in asbestos dust all day and at times the area looked like it was blanketed in a fog.

8. The plaintiff was required to spray asbestos insulation during the period of his employment with both defendants.

9. There was no exhaust equipment in the depot and no mechanical ventilation, nor was there exhaust equipment to remove dust from the atmosphere either when the plaintiff was tipping the bags of asbestos into the mixture or when he was involved in spraying. There was no ventilation in the areas sprayed.

10. It was in my view undoubtedly a heavily laden atmosphere of asbestos dust.

11. The plaintiff was also required to work on a regular basis in confined and narrow spaces. Some of the sites where he worked were more heavily laden with dust than others. There were also times when the plaintiff engaged in stripping old asbestos or lagging prior to spraying with fibreglass.

12. Whilst the plaintiff was employed with the first defendant, one particular site involved a great deal of asbestos which had to be removed from the site.

13. The plaintiff gave his evidence in a direct and satisfactory manner and in my view no criticism can be made of his evidence. I accept his evidence.

Masks

14. In exhibit PX 1 (paragraph 26) the plaintiff declares that he was provided with a rubber mask when he started with the second defendant. This was the only mask that he was given for the first five or six years that he worked there.

15. He was shown how to use the mask but there were no instructions that he was to wear the mask at all times. He knew, however, that he was to wear the mask in doing his work. He was also aware that the mask was given to protect his breathing and to protect his health. He was not told, however, that if he inhaled asbestos dust he could develop a serious illness.

16. The mask did not fit properly and even with the mask on he was still breathing in dust. He also indicated in his evidence that he would take off the mask when he was trying to catch his breath and would take it off to get some air. He went to the hand basin to wash the cement or dust from his nose and wash the filter.

17. When the weather was very hot and the surroundings in which he worked were in very small areas, he could not breathe with the mask on. Not only did the mask not fit properly, it got clogged with dust and when in that state the plaintiff got the dust up his nose and in his mouth.

18. He also found that in those circumstances it was hard to breathe and for that reason did not always wear the mask.

19. Had he been given a mask that properly fitted him and enabled him to breathe easily he would have worn it.

20. The plaintiff worked in narrow spaces in many buildings where he did overhead spraying . There was no ventilation and in wearing the mask he had been given, he found breathing impossible in these situations.

21. No check was ever made to see what state the mask was in or whether it was properly fitting or effective. He was never instructed to change his mask when it got old nor did anyone ever come around to check whether he was wearing a mask.

22. In 1980 or 1981 a different mask of the cartridge type was given to the plaintiff but it was not attached to an air hose.

23. Proper ventilation equipment was available and if utilised, in my view, would have provided adequate protection for the plaintiff.

24. This much has been admitted by the defendants in their conceding an admission of liability. The question of the plaintiff's conduct in relation to the question of contributory negligence in these circumstances will be discussed later in this judgment.

Smoking: Obstructive Airways Disease

25. The evidence establishes that the plaintiff smoked cigarettes from about the age of 20. He ceased after he saw Dr Gianoutsos in 1994 but resumed after that for periods and then stopped altogether about 20 months before giving his evidence.

26. The plaintiff smoked 15 cigarettes a day from the age of 20 which is apparently the equivalent of approximately 27 pack years of smoking in his system.

27. Dr Gianoutsos in his reports (exhibit PX 3) found that in the lung fields the plaintiff had scattered wheeze and, predictably, his respiratory function tests showed airways obstruction. The extent of the demonstrated airways obstruction was indicated by Dr Gianoutsos to show in essence a demonstrated airways obstruction just below the lower-level normal diffusing capacity and slight hyperinflation with a degree of hyperirritability but not quite in the asthmatic range.

28. A CT scan demonstrated emphysematous changes.

29. In his diagnosis Dr Gianoutsos concluded that the plaintiff had evidence of smoking induced obstructive airways disease attributable to his smoking, which he advised the plaintiff should cease.

30. Other function tests results are in evidence and commented upon in the reports of Dr Johnson and Dr Gianoutsos. The results, in so far as one is able to interpret the information contained in the reports (exhibit PX 3), do not indicate any significant changes in respect of FEV1 or his diffusing capacity. The dates of these tests are not apparent nor are the particular tests in evidence. They are referred to in the medical reports referred to.

31. It is to be noted that the plaintiff was examined on behalf of the defendants by two respiratory physicians, associate Professor Breslin and Dr Corte, neither of whom was called by the defendant nor any report by either of them tendered in evidence. It is to be assumed, therefore, that they would not have provided any assistance to the defendants' case.

32. It is also to be noted that the plaintiff's obstructive airways disease contributes to his breathlessness. It is, however, also to be noted that Dr Gianoutsos in his report of 25 June 2002 indicates that his smoking damaged lungs are an independent factor contributing to his breathlessness.

33. The nature of the damage caused by obstructive airways disease by way of his emphysema is to the upper lobe of the plaintiff's lung. The area of his damage from obstructive airways disease is different from that which is related to his asbestos related plural disease.

Constrictive Airways Disease

34. The plaintiff also suffers from asbestos related plural disease manifesting as a grossly thickened pleura coupled with the elaboration of large amounts of bilateral pleural fluid.

35. The principal symptom of his asbestos related pleural disease is breathlessness due to the extensive and gross thickening of the pleura as well as the presence of the pleural fluid which has become increasingly difficult to remove as it has located itself in small difficult areas and is therefore difficult to aspirate.

36. The extensive pleural effusion/ plural thickening encases the right lung but there are bilateral pleural effusions in both lower lobes of his lungs (see exhibit PX 6). Dr Johnson in his report (exhibit PX 6) diagnoses that the plaintiff suffers from four conditions, three of which are related to his asbestos exposure. There is also the possibility of malignant mesothelioma. However, there is no evidence for this diagnosis at present.

37. The extent of his pleural disease has been said by Dr Gianoutsos to be the most serious form of benign asbestos related plural disease that he has seen in his 32 and a half years of respiratory medical practice. The report of Dr Johnson in my view confirms the extent of the seriousness of the plaintiff's pleural disease.

38. The nature of the damage caused by his constrictive airways disease is distinct, different and affects other parts of the plaintiff's respiratory anatomy.

39. The first symptoms in respect of this condition arose in March 2001 after which the plaintiff has had a number of pleural aspirations with decreasing benefit.

40. The nature and extent of his suffering as a consequence of this disease as distinct from his non-compensable obstructive disease will be dealt with later in this judgment.

Contributory Negligence

41. The question of contributory negligence is raised in respect of two issues dealing with the plaintiff's entitlement to an award of damages.

42. The first is in respect to the plaintiff's smoking cigarettes throughout his life. The defendants allege that the plaintiff acted in a reckless and/or careless manner and failed to take any precaution for his own safety. The defendants allege the plaintiff was negligent in that he engaged in the practice of smoking cigarettes, materially increasing the risk of contracting lung disease and obstructive airways disease generally.

43. Secondly, the defendants allege the plaintiff was negligent in that he failed to wear a mask provided by the defendants.

44. Contributory negligence has been the subject of long established authority which seems to me to be encapsulated in Williams v Commissioner for Road Transport (1933) 50 CLR 258, Sangravure v Meani (1964) 110 CLR 24 at 37, McLean v Tedman (1984) 155 CLR 306 at 313 and Bankstown Foundry v Braistina (1986) 160 CLR 301 at 310.

45. The onus of establishing contributory negligence rests upon the defendants. It is for the defendants to establish that the plaintiff ought reasonably to have foreseen that if he did not act as a reasonable man he would expose himself to risk of injury.

46. His conduct, however, must be determined in the context of the defendants' failure to provide a safe system of work thereby exposing him to unnecessary risk.

47. The question is whether in the circumstances and under the conditions in which he was required to work the conduct of the plaintiff rendered him responsible in part for the damage he sustained.

48. The defendants allege that the plaintiff has failed to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause together with the defendant's default in bringing about his injury.

49. It relates to a failure on the part of the plaintiff to take reasonable care of himself in his own interest (see J G Fleming The Law of Torts, 9th Edition, at p 302). It is in this sense that the defendants submit that the plaintiff has failed to take reasonable care for himself.

50. There is no evidence to suggest, nor do the defendants contend, that the plaintiff's smoking caused or contributed to his asbestos related disease. The plaintiff's claim for damages is for his asbestos related disease and its consequences. Whatever may have been the plaintiff's conduct in relation to smoking it contributed to his non-compensable obstructive airways disease and not to his asbestos related constrictive airways disease.

51. The defendants have not discharged the onus which rests upon them, nor in the circumstances could they, and for those reasons the defendants' submission in respect of this issue must fail.

52. In any event, no direct questioning was made of the plaintiff by the defendants in regard to his knowledge that he was at risk of injury from smoking, whether he was aware of the warnings on cigarette packets or that he was literate in English to be able to do so.

53. Dr Gianoutsos was not called in order to reveal what discussions took place in regard to smoking between the plaintiff and himself. The cross-examination that did take place related to questions of the plaintiff's smoking habit.

54. There did not seem to me to be any examination directed to the plaintiff's conduct in relation to a foreseeable risk of injury to himself or that his conduct showed a want of reasonable care for his own safety. In the absence of such evidence, in my view a finding of contributory negligence could not be made in any event.

55. In relation to the allegation that the plaintiff was negligent in that he failed to wear a mask provided by the defendant, the conduct of each of the parties in relation to the circumstances is to be subjected to comparative examination.

56. It is my conclusion that the mask that was provided was inadequate and inappropriate for the task it was required to perform. (In particular see p 17 of the Merewether and Price article (exhibit PX 20) and also exhibit PX 21 at p 781 in the context that the plaintiff was also employed in fire resistant spray insulation work.)

57. There was no care and attention on the part of the defendants to the insistence or supervision of its employees in order that the masks would be both adequate and compulsorily worn.

58. The mask did not fit properly; it would get clogged with dust; he found it hard to breathe and there were times when it was impossible to do so. In those circumstances the plaintiff was exposed to, and did inhale, asbestos dust.

59. It seems to me that in the circumstances, due to the inadequacy of the ventilation equipment provided, the plaintiff did not act unreasonably in at times not wearing the mask. Such occasions were when he was unable to catch his breath and required to get some more air, in particular when the weather was very hot or when he worked in very confined areas.

60. The plaintiff did wear the mask as instructed and on the occasions that he did not it was not possible to do so.

61. Taking into account the circumstances and conditions in which he had to do his work, it seems to me that his conduct was not incompatible with the conduct of a prudent and reasonable man. There was therefore no contributory negligence on the part of the plaintiff.

General Damages

62. It is common ground that the plaintiff has both constrictive and obstructive airways disease. The constrictive component is due to his inhalation of asbestos dust and the obstructive component is due to his cigarette smoking.

63. That the defendants bear the onus of establishing the extent of the non-compensable damage accords with authority: Watts v Rake (1960) 108 CLR 158 at 159-160; Purkess v Crittenden (1965) 114 CLR 164 at 168.

64. There is evidence upon which to rely with some measure of precision, particularly in regard to the distinct medical conditions, the effects of each and the relationship to the restrictive breathing ability of the plaintiff. However, there is no evidence upon which any conclusions could be drawn in regard to the future effects and future development of the non-compensable obstructive airways disease.

65. As there was no evidence to suggest what the development of his obstructive disease may or may not have been in the future, to that extent the defendants have failed to discharge their onus. That is not, however, to say that the plaintiff is entitled to recover damages as if the whole of his present ill health resulted from the defendants' tort. Part of it results from the chronic airflow limitation which has been caused by the plaintiff's smoking. It seems to me that other causes must be allowed for to the extent that seems reasonable in the particular case (see Faulkner v Keffalinos (1971) 45 ALJR 80 at 85).

66. As Mustill J said in Thomson v Smith's Ship Repairers (North Shields) Ltd [1984] 1 QB 405 at 437:

The starting point for any inquiry into the measure of damages is the principle that the court should so far as possible endeavour to restore the plaintiff to the position in which he would have found himself but for the defendant's wrongful act. The impracticability of giving full effect to this principle must be recognised at every stage of the process. Money can never properly compensate a loss which consists of social impairment rather than financial deprivation. Quantification of damages for personal injury involves the use of conventional measures, the adoption of which it at once makes nonsense of any attempts at mathematical accuracy. In a field where the subject matter is people not contracts, bank balances and abstract rights, the recognition that certain results are unacceptable in human terms must rightfully lead to alternative solutions which cannot be easily rationalised. Complete logical rigour cannot be obtained.

67. The plaintiff's entitlement presupposes a divisional responsibility between the compensable restrictive airways disease and the non-compensable obstructive airways disease.

68. The degree of accuracy should be commensurate with the degree of accuracy possible in the light of existing knowledge and with the degree of accuracy involved in the remainder of the exercise which leads to the computation of damages. As Mustill J observed at 439:

It is senseless to demand the utmost accuracy at one stage of the calculation, which involves the broadest assumptions at another stage and the application of conventional measures of recovery at yet another.

69. At 443 Mustill J said:

I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time should in justice lead to the result that the defendants are judged liable to pay in full when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the Court should make the best estimate which it can in the light of the evidence making the fullest allowances in favour of the plaintiff for the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that this has to be regarded as a jury question, and I propose to approach it as such.

70. I have already referred to the evidence that establishes the distinct conditions and the extent to which the non-compensable condition affects the breathing capacity of the plaintiff as illustrated by the lung function tests referred to by both Dr Gianoutsos and Dr Johnson.

71. No further evidence establishes what is the likely progression of the non-compensable obstructive airways disease. However, it seems to me that there is sufficient evidence to apply the principles enumerated above to determine what award of damages may be made in respect to the tortiously contracted constrictive airways disease.

Other Relevant Matters

72. The plaintiff was born on 2 August 1937 in Greece. He was married to his wife, with whom he shares mutual devotion, on 1 June 1966. There are two children of the marriage and two grandchildren, one of whom is named after the plaintiff. They are a close and loving family and there has been a long and successful marriage with the benefit of those close family ties within the family unit.

73. There is no doubt that the plaintiff is a strong family man and has counted this aspect of his life as important and in particular the relationships that are within it.

74. He has been a consistent and regular working man who has laboured hard and long in support of his family. He was in regular employment until May 1993 when his employment was terminated.

75. He has taken his family overseas on holidays to Greece and has shown himself to be a devoted and caring husband who has cared for his family throughout his working life. So much is illustrated by the fact that he and his wife shared all the chores in the house wherein he was involved in cooking, shopping, looking after the garden and sharing in the care of his granddaughter.

76. They had an active social life and for all intents and purposes up until March 2001 he had no disability that was apparent to his wife. Although he was diagnosed with obstructive airways disease when seen by Dr Gianoutsos in March 1994, he was also diagnosed with benign asbestos related plural disease.

77. The extent of any breathlessness at that time does not appear to have impacted to a great extent upon his then lifestyle and he was in fact at that time considering looking for work since his employment with the first defendant had been terminated. There were no medical consultations regarding this condition between March 1994 and his hospitalisation in March 2001.

78. He came under the care of Dr Gianoutsos at that time for investigation of enlarging left sided pleural effusion/ pleural thickening. No surgical intervention was contemplated in view of the plaintiff's existing airways disease. At that time it is obvious that his physical abilities were significantly curtailed.

79. He had previously been refused compensation by the Dust Diseases Board. However, in view of the deterioration of his asbestos related disease Dr Gianoutsos considered he was now a candidate for such benefits. The lung function tests at that time were commensurate with those undertaken by the Dust Diseases Board two months later. When reviewed on 26 April 2001 his effort capacity was clearly limited and he was using oxygen which began when he left hospital.

80. In August 2001 Dr Gianoutsos maintained a suspicion of mesothelioma. The likelihood of this condition occurring has for the present been discounted and, in my view, remains a remote possibility in the future.

81. In the following periods there was marked deterioration in the plaintiff's condition with several hospitalisations and multiple pleural aspirations. When he was admitted to hospital on 27 September 2001, a large amount of fluid was taken from both lungs. Until reviewed in March 2002 he had required no intervening hospitalisation. At this consultation his breathless had increased somewhat. His lung function tests were a little down from previously. The plaintiff was admitted to hospital on 15 April 2002 with a predominantly left sided pleural effusion which was drained. At that time Dr Gianoutsos commented upon a large amount of plural thickening apparent on the left side which was not going to respond to any aspirating technique. When seen in May 2002 by Dr Gianoutsos his lung function tests showed some improvement.

82. The principal symptom of the asbestos related plural disease is breathlessness due to the extensive and gross thickening of the pleura and the accumulation of pleural fluid. Over 15 months, pleural fluid has been drained many times from his chest. His breathlessness is related to the effect of both conditions.

83. The quality of his life is also gravely limited and his future is bleak. His condition to him has been devastating, even allowing for the contribution made to it by his non-compensable condition.

84. But for the advanced or severe asbestos related plural disease, the plaintiff would not be facing a future such as now confronts him. He has suffered emotional reactions as a consequence of his condition and he has gone from being an active sensible man who took pride in his wife and family and his work to a hopelessly dependant invalid. He has been deprived of all of his independence and it is to him a great loss.

85. He lives in the shadow of greater suffering which is limited by the inevitable progression of his asbestos related disease. Such will be the situation for the remaining period of his life which is significantly curtailed by his asbestos disease. He has been rendered totally dependent upon his wife and family for his daily needs and his future may well require narcotics not for pain relief but rather for the relief of his sense of breathlessness which is the plaintiff's consciousness of deprivation of air and life In June 2002 Dr Gianoutsos considered that the plaintiff had an expected life of two years but Dr Johnson considered that his life expectancy was limited and was in the order of 9 to 12 months. Considering the evidence by the plaintiff, it is likely that his life expectancy is probably 18 months from June 2002.

86. The extent of the plaintiff's suffering seems to me to be illustrated by Dr Gianoutsos when he stated that it is the worst case of its kind he has experienced in over 30 years of specialist practice.

87. Moreover, he says that the degree of emphysema would have in its own right have rendered the plaintiff somewhat breathless but the superimposition of the asbestos related plural disease described in the previous paragraphs of his report of 25 June 2002 has accentuated his breathlessness such that he is now being rendered a respiratory cripple.

88. Furthermore, he indicated that in 1994 he did not consider that the asbestos related plural disease at that time was in any way causing him to be symptomatic. The principal reason for his breathlessness at that time related to his obstructive airways disease due to his ongoing smoking.

89. The significance of the deterioration of his asbestos related plural disease is illustrated in the radiology (exhibit PX 7) which states that the diffuse pleural thickening was much more extensive in 2002 than demonstrated in September and November 2001.

90. The first symptoms experienced as a result of his asbestos related plural disease developed in March 2001.

91. The decision of Watts v Rake (supra) is of some significance in relation to the impact of the asbestos related pleural disease upon the plaintiff in light of the evidence of Dr Gianoutsos regarding the effect of his asbestos related disease in the presence of his obstructive disease. The plaintiff in this case has shown satisfactorily that, although not without disabilities, he was before the onset of the effect of his asbestos related disease able to lead an active life in work and physical recreation and that his enjoyment of life was not that much impaired.

92. Further, the constrictive condition from which he now suffers has been the major cause of the extensive condition in which he now finds himself. That part of his present condition traceable to causes other than his asbestos related disease is, as was said in Watts v Rake, no answer to the impact of the tortious injury.

93. If the injury proves more serious in its consequences because of the presence of his obstructive disease, that does nothing but increase the damages the defendant must pay. The effect of the disease is more serious than it would have been had the plaintiff not been suffering from obstructive disease. (See Watts v Rake supra at 159-160).

94. Notwithstanding the authority of Planet Fisheries Ltd v La Rosa (1968) 119 CLR 118, the plaintiff submits that I must keep in mind the range and judgment of general damages in these types of cases in the Tribunal.

95. In this regard the plaintiff has relied upon the decision in Wallaby Grip Ltd v Peirce [2000] NSWCA 299 in the Court of Appeal which indicated that there was no breach of the prescriptions in Planet Fisheries provided the trial judge did not allow himself to be overborne by what other minds had judged right and proper for other situations. It was said that the trial judge's experience included direct knowledge of his own earlier decisions in personal injury cases and his knowledge of cases decided by other judges in the Dust Diseases Tribunal. That knowledge, it was said, along with knowledge of particular cases sank into a generalised mass which would produce the judge's general experience.

96. Other opinions in relation to this issue in the Tribunal have over a period of time been expressed. See CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223 and James Hardie & Co Pty Ltd v Newton (1997) 15 NSWCCR 717. An analysis of similar submissions was made by Clarke JA in Sullivan v Micallef (1994) Aust Torts Reports ¶81-308 and a useful passage by Windeyer J is found in Chulcough v Holley (1967) 41 ALJR 336 at 338. See also Thatcher v Charles (1961) 104 CLR 56 at 71 and Pammet v Pawelski (1949) 79 CLR 406 at 411 per Dixon J.

97. I do not accept the invitation to compare and contrast suffering. The general damages in this case are fixed by my considerations of the injury done to the plaintiff. I include in that injury not only damages for his physical pain, but also for his present mental suffering, including "the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff" (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71 per Brennan J).

98. The plaintiff's life expectancy according to the tables is 16.6 years. He is likely to survive until 31 December 2003 in my view according to the medical evidence. The plaintiff is entitled to a sum for loss of expectation of life in accordance with the life tables. I am constrained by authority to award a modest amount.

99. An overall award in general damages including loss of expectation of life should be an amount of $160,000.00.

Griffiths v Kerkemeyer

100. The plaintiff is entitled to recover damages for the need for services rendered to him as a result of his injuries. What must be assessed is the reasonable cost of satisfying the plaintiff's needs, and not the value of services in fact provided. This is because the provider might be providing more than the plaintiff reasonably needs, and also in the ordinary course or currency of family life the operation of support commonly received amongst members of the family is not to be wholly ignored.

101. In regard to the plaintiff's past care, the evidence is that he has been in need of oxygen 24 hours a day since March 2001 and for all intents and purposes has been housebound since then. Obviously all physical activity which compromises or compresses his breathing is particularly difficult and he experiences breathlessness at night.

102. He has required the assistance of his wife increasingly and, since March of this year, to the point where he is now totally reliant upon his wife and members of his family. He has had a number of hospitalisations with increasing and severe disability. The nature of the care provided is the consequence of his need for assistance in relation to his own personal care, both day and night.

103. Heather Tchan, an occupational therapist, has written a detailed report in relation to the past and future need of care, which is exhibit PX 11. The defendants urged the Tribunal to accept the report as detailed in respect of the costs for moderate, high and maximum dependency for the past and future. The plaintiffs have submitted that the plaintiff has been in need of high dependency care since June 2001.

104. Exhibit PX 11, however, specifies moderate dependency until 31 October 2002. It is to be noted that the report of the occupational therapist is dated 17 December 2001. The actual medical history of the plaintiff since that time indicates significant and severe deterioration illustrated by increasing hospitalisations with severe disability. Dr Gianoutsos (exhibit PX 3) concluded on 19 October 2001 that the plaintiff was totally and permanently incapacitated as a result of the asbestos related pleural disease. However, on 4 March 2002 he reviewed the plaintiff who then seemed to have had a period of some improvement, which would account for the difference found by the occupational therapist in December 2001.

105. In March 2002 it seems the plaintiff's condition began to deteriorate and he was hospitalised on 15 April 2002. In my view the plaintiff reached the point of high dependency from early April 2002 and has remained in that condition to the present time.

106. I would therefore allow moderate dependency as being reasonable from 12 March 2001 to 31 March 2002 in accordance with exhibit PX 11. Thereafter to 31 October 2002 I would allow as being reasonable high dependency in accordance with the occupational therapist's report (exhibit PX 11). A sum of $77,512.09 is to be allowed for past care after a deduction of $6,891.42 for the 62 days' hospitalisation revealed in exhibit PX 10.

107. In relation to future care the plaintiff will require high dependency until the last four weeks, whereafter he will be in need of maximum dependency. The sum of $93,059.48 in accordance with the rates detailed in exhibit PX 11 is to be allowed for future care.

108. It is to be noted that I have considered the rates as contained in PX 11 as accurately reflecting the various reasonable rates in the circumstances. It is not to be understood that I have overlooked exhibit PX 15.

109. The plaintiff is entitled to a verdict made up as follows:

General Damages (including loss of expectation of life) $160,000.00

Interest on half at 2 per cent per annum for 1.5 years $2,400.00

Past care /services $84,403.51

less deduction for hospitalisation $6,891.42

$77,512.09

Interest on past care/services at 5 per cent per annum for 1.5 years $5,813.41

Future care/services $93,059.48

Total $338,784.98

110. There will be verdict and judgment for the plaintiff against the defendants in the sum of $338,784.98

111. The defendants will pay the plaintiff's costs.

Ms A J Katzmann SC instructed by Turner Freeman appeared for the plaintiff.

Mr G J Parker instructed by Hunt & Hunt appeared for the defendants.