Hatzistergos v CSR Ltd

[2005] NSWDDT 14

Dust Diseases Tribunal

of New South Wales

CITATION:	Hatzistergos v CSR Ltd & Anor [2005] NSWDDT 14
PARTIES:	Theofilos Hatzistergos CST Ltd Midalco Pty Ltd (formerly Australian Blue Asbestos Pty Ltd)
MATTER NUMBER(S):	99 of 2004
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:- Dust Diseases Tribunal ARPD action for damages verdict for the plaintiff damages assessed
LEGISLATION CITED:	Dust Diseases Tribunal Act, 1989; s 11A
CASES CITED:	CSR Ltd v Wren (1997) 15 NSWCCR 650
DATES OF HEARING:	15 & 16 February 2005 31 March 2005
EX TEMPORE JUDGMENT DATE:	03/31/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Ms A J Katzmann, SC instructed by Turner Freema FOR DEFENDANTS: Mr A Ventura instructed by Makinson & D'Apice

JUDGMENT:

1. This is a claim for provisional damages by Theofilos Hatzistergos against CSR Ltd (CSR) and Midalco Pty Ltd. The claim is brought pursuant to s 11A of the Dust Diseases Tribunal Act, 1989 which authorises the Tribunal to award provisional damages. These are assessed on the assumption that a plaintiff who is suffering a dust related condition will not develop another. In the event that another does develop further damages may be claimed.

2. The plaintiff was exposed to and inhaled asbestos dust and fibre whilst he was employed by Asbestos Products Pty Ltd, a wholly owned subsidiary of CSR. The asbestos to which he was exposed was produced by Australian Blue Asbestos Pty Ltd which later became Midalco Pty Ltd the, second defendant. Subject to proof of exposure to asbestos in the employ of Asbestos Products Pty Ltd the defendants concede their liability to pay damages to the plaintiff. The plaintiff's affidavit proves that in the course of his employment by Asbestos Products Pty Ltd he was exposed to asbestos dust and fibre. For reasons given in CSR Ltd v Wren (1997) 15 NSWCCR 650 each defendant is liable to compensate the plaintiff for his admitted asbestos related pleural disease (ARPD).

3. It should be said at the outset that the plaintiff impressed me as a witness of truth who did his best honestly and accurately to recollect events and the consequences of events which occurred over a long period of time. He began to experience breathlessness about ten years ago and some five years later began to experience further consequences which were to a degree disabling.

4. There is substantial agreement between the evidence called by the plaintiff and that called by the defendant, at least in respect of that produced by the defendant which was admitted. There are a few areas of controversy.

5. In late 2002 the plaintiff underwent coronary by-pass surgery following what seemingly was a mild infarction. Dr Gardiner, who was qualified by the defendant, whilst accepting that the plaintiff indeed suffers from ARPD attributes part of his breathlessness and respiratory disability to underlying coronary artery disease and the consequences of cardiac surgery. This attribution has been asserted by Dr Gardinaer, but he has not satisfactorily explained it.

6. The plaintiff's cardiologist, Dr Davis, prepared a number of reports which are in evidence as PX3. In his report of 25 February 2004 he said this:

From a cardiac point of view I think that Mr Hatzistergos has done well. He has no ongoing cardiac difficulty. His left ventricular function is normal. Following his bypass grafting he was able to travel to Greece without any difficulties, as I understand it. He has been fully revascularised and he no longer experiences any ischaemic discomfort. I think that any residual breathlessness which he might complain of is as a consequence of his pulmonary disease and not a consequence of his cardiac disease.

7. Professor Bryant, who was qualified by his solicitors for the purposes of this case, excluded his cardiac condition as causative or productive of any respiratory disablement. Upon examination by Professor Bryant his pulse rate was normal and regular as were his heart sounds. No murmurs have been detected; neither has there been clinical evidence of cardiac failure. His blood pressure seems always to have been within normal limits. Accordingly, I am not persuaded that the plaintiff suffers any respiratory difficulty by reason of the condition of his heart or vascular system. The evidence satisfies me that he made a good recovery from the coronary by-pass surgery.

8. Another postulated co-morbidity was a back injury suffered by the plaintiff. It is true that some time ago that the plaintiff did hurt his back while moving a lawnmower. He underwent treatment for this, and again he seems to have made a fairly good recovery. While one might fairly accept that there are degenerative changes in the plaintiff's spine occasioned by age, wear and tear and forces and stresses imposed upon it they are not of great significance in this case.

9. It was said by Dr Gardiner that there is an obstructive element to the plaintiff's respiratory disability. Asbestos exposure ordinarily produces a restrictive defect; obstructive defects more frequently are the result of smoking, and sometimes asthma. It is the case that the plaintiff was a smoker, but his evidence is that he ceased smoking some thirty-six years ago. He was not a heavy smoker. In those circumstances if there be an obstructive component I think it fair to conclude that it is unrelated to smoking. Nevertheless, it is a contentious matter that the plaintiff does suffer an obstructive impairment.

10. Dr Gardiner was inclined to criticise the technique of lung function testing conducted for Professor Bryant. It is the interpretation of lung function testing which enables a thoracic physician to determine the extent of respiratory impairment and whether it is restrictive or obstructive in nature or a combination of both. The significance of the presence of an obstructive element is that the plaintiff complains of a persistent cough. Dr Gardiner is of the view that the coughing may well be due to a form of bronchitis whereas Professor Bryant is of the view that his coughing might be related to asbestos exposure. With all respect to counsel who have argued the case, it seems to me that this is not a matter of profound significance. The cough, whatever its cause is an irritation rather than productive of disability and neither Dr Gardiner nor Professor Bryant, each of whom regularly gives evidence in proceedings in the Tribunal, has spoken of a probability, a concept with which each of them is quite familiar. Professor Bryant, however, did suspect that the plaintiff's ARPD, a known cause or contributor to coughing, had a probable influence on his cough. He did not go so far as to say it was a cause. Again, at T 13 he spoke of a probable association though not of a cause.

11. There is another matter which should be noted and that is in expressing his views Professor Bryant took account of protocols established by the American Thoracic Society and the European Society of Respirology. The Australian and New Zealand Thoracic Society has not yet developed protocols as have their American and European counterparts. Professor Bryant's views were more evidently scientifically based and explained. To the extent that it is necessary to do so I prefer the evidence of Professor Bryant.

12. The plaintiff gave evidence which was not seriously challenged. He has experienced shortness of breath for a period now of about ten years, and about five years ago, as noted earlier, his condition deteriorated. According to Professor Bryant it is unlikely that his condition will further deteriorate though in cases of ARPD there is a 20 to 25 per cent chance that deterioration will occur.

13. The tasks upon which I am now to embark require me to assess the plaintiff's entitlement to general damages and to assess the costs of future care and of past and future services. The parties have prepared a schedule which shows the periods in respect of which past care is claimed. In accordance with what I indicated during the course of submissions to be a fair allowance calculations have been agreed. I will return to that aspect of the case shortly.

14. The plaintiff is now 78 years old and according to the Australian Life Tables might be expected to live for another 8.8 years. Throughout his life he was, apart from the events to which I have referred, generally fit and active. He retired from full-time employment in 1984. After retirement he did part-time work for a period, but otherwise his days were passed enjoying the company of his children and grandchildren, growing vegetables and looking after the garden around his house. He also assisted his wife about the house in various domestic tasks. At the moment he is unable to spend more than half an hour at a time with his grandchildren, nine in number, ranging in age from thirteen years to six months. This inability is in part due to his breathlessness, but also to the noise the grandchildren make when playing. It was put by senior counsel for the plaintiff that some component of general damages should be allowed by reason of his inability to continue to care for his 13 year old German Shepherd dog. He had to give the dog away some time ago, but a dog at thirteen years of age in human terms is close to one hundred. I think it unreasonable to make any allowance in respect of the dog. It was said that an allowance should also be made by reason of his inability to look after his pet bird. This is another indication that every possible aspect of his case has been addressed by senior counsel on his behalf.

15. At the time of receiving his diagnosis he became anxious that he might have carcinoma. He becomes angry when he considers that he was permitted to continue to work in a contaminated atmosphere.

16. When the plaintiff underwent coronary by-pass surgery the surgeon noted dense pleural effusions. Moreover, following initial surgery he required a second operation because of haemostatic difficulties and then there were pulmonary complications with pulmonary atelectasis. The cause of the second surgery is not said to be pulmonary related, but it should be noted that pulmonary atelectasis is a common feature in those who suffer asbestos related pleural disease. An allowance should be made by reason of the fact that the second surgery was affected by pulmonary complications.

17. Taking into account his breathlessness and limited capacity in the past which will continue and the effects of the second surgery I think the appropriate sum to allow for general damages is $55,000. Of that half should be allocated to the past and interest should run from, say, 31 March 2000.

18. The assessment of allowances for care and services is one by its very nature which must be arbitrary. It is difficult if not impossible, at least in the absence of diarised entries supported by medical evidence, to conclude what is proper to allow and a broad brush approach of necessity must be taken.

19. In respect of past care and services there are two periods which overlap, the first extends from 1 January 2001 arbitrarily chosen, to 30 June 2003 arbitrarily chosen. The second begins on 1 January 2001 and ends today 31 March 2005. In respect of the first period I believe an allowance of two and a half hours per week for maintaining the plaintiff's vegetable garden, which produced produce of a quality superior to that available in retail outlets, is reasonable. In respect of the period from 1 January 2001 to 31 March 2005 I think it appropriate to make allowances for lawn mowing and other garden work of two hours weekly, one and a half hours weekly for shopping and two hours per week for heavy cleaning. That it is agreed, computes to $28,764 upon which interest of $5,501 should be allowed.

20. In respect of the costs of future services, again an arbitrary approach is all that can be taken. Inevitably it happens that the capacity of people deteriorates with age, lungs become less effective than once they were and breathlessness is a common feature when the elasticity of the parenchyma is compromised by age. There is, as has been noted, a chance that the plaintiff's condition might deteriorate though no deterioration according to the medical evidence has yet occurred. The plaintiff himself spoke of some deterioration, but it has not been measured because it has not been detected. Doing the best I can to do justice between the parties I think it fair to allow the sum of $2,500 for future care against the chance that the plaintiff's condition will further deteriorate and require care to be provided to him.

21. In respect of services, again adopting what can only be an arbitrary approach, but considering the chance of deterioration and the plaintiff's age, an allowance of three hours per week for two and a half years should be made. That, I am told, computes to $12, 546.

22. Thus the plaintiff is entitled to damages made up as follows:

General damages $55,000

Interest on past general damages $5,500

Costs of past care and services $28,764

Interest on past care and services $5,501

Costs of future care $2,500

Cost of future services $ 12,546

Making a total of $109,811

23. There will be verdict for the plaintiff jointly and severally against each defendant and judgment for $109,811.

24. The defendants will pay the plaintiff's costs as agreed or assessed and indemnity costs from 22 December 2004.

25. I order that the plaintiff may claim further damages should he develop any of the following conditions; (1) lung cancer, (2) pleural mesothelioma, (3) peritoneal mesothelioma, (4) asbestos induced carcinoma of the lungs or other organs, (5) pulmonary fibrosis, (6) asbestosis.

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

Mr A Ventura instructed by Makinson & D’Apice appeared for the first and second defendants