Headon v Amaca Pty Limited - [2022] NSWDDT 5

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Headon v Amaca Pty Limited [2022] NSWDDT 5
Hearing dates: 9, 10 & 17 August 2022
Date of orders: 19 September 2022
Decision date: 19 September 2022
Before: Strathdee, J
Decision:
(1)   Judgment for the plaintiff in the sum of $1,100,159.38.
(2)   Defendant to pay plaintiff’s costs as agreed or assessed.
(3) Pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) as amended, the plaintiff may claim further damages should the plaintiff develop an asbestos related induced carcinoma, lung cancer and mesothelioma.
(4)   If any alternate order is sought, the parties to notify my associate within 7 days.

Catchwords:
DUST DISEASES TRIBUNAL – damages – assessment of damages on common law principles – asbestosis and asbestos related pleural disease (“ARPD”) – general damages – interest on general damages – damages for personal care and assistance – future out-of-pocket expenses
DAMAGES – assessment – tort – personal injuries – pain and suffering – future or potential events – likelihood of occurrence – relevance to measure of damages

Legislation Cited:
Civil Liability Act 2002 (NSW)

Cases Cited:
Amaca Pty Limited v. Tullipan [2014] NSWCA 269
Boland v. Amaca Pty Limited [2020] NSW DDT 4
Carson v. John Fairfax & Sons Pty Limited (1993) 178 CLR 44
Chulcough v. Holley (1968) 41 ALJR 336
CSR v. Bouwhuis (1991) 7 NSWCCR 223
Expokin Pty Ltd trading as Festival IGA Supermarket and Graham [2000] NSWCA 267
FAI Allianz Insurance Ltd v. Lang [2004] NSWCA 413
Fuller v. Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305
Harritonv. Stephens [2004] NSWCA 93; (2004) 59 NSWLR 694
Hunter Area Health Service v. Marchlewski (2000) 51 NSWLR 268
James Hardie & Coy Pty Limited v. Newton (1997) 42 NSWLR 729
Livingstone v. Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25
Lorraine Fay Sim v. Allianz Australia Limited [2010] NSWDDT 19
Malec v. Hutton (1990) 169 CLR 638
Moran v. McMahon (1985) 3 NSWLR 700
Noel Doughan v. Amaca Pty Ltd [2010] NSWDDT 13
Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118
Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118
Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164
State of New South Wales v. Moss (2000) 54 NSWLR 356
Sullivan v. Micallef; Macquarie Pathology Services Pty Limited v. Micallef [1994] Aust Torts Reports 61,787
Todorovic v. Waller [1981] HCA72; (1981) 150 CLR 402
Tullipan v. Amaca Pty Limited [2014] NSWDDT 420
Wallaby Grip Limited v. Peirce [2000] NSWCA 299
Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158
Wynn v. NSW Ministerial Corporation (1995) 184 CLR 485

Category: Principal judgment
Parties: Warwick Headon (Plaintiff)
Amaca Pty Limited (Formerly known as James Hardie & Coy Pty Ltd) ACN 000 035 512 (Under NSW Administered Winding Up) (Defendant)
Representation:
Counsel:
Mr S Tzouganatos appeared for the Plaintiff
Mr J Sheller SC appeared for the Defendant
Solicitors:
Mr S Ryan, VBR Lawyers (Plaintiff)
Mr M Victorsen, Holman Webb Lawyers (Defendant)

File Number(s): 2021/277716

Judgment

By Statement of Claim filed 29 September 2021 in the Dust Diseases Tribunal of New South Wales (“the DDT”), Warwick Headon (“the plaintiff”) claims provisional damages for terminal asbestosis and asbestos related pleural disease from Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) (“the defendant”).
It is alleged that the plaintiff inhaled asbestos dust and fibre from asbestos cement building products manufactured by the defendant, including Hardiflex flat sheets and Super Six corrugated sheets, whilst working as a bricklayer and labourer in New South Wales and Queensland. As a result of this exposure and the defendant’s negligence, the plaintiff suffers from asbestosis and asbestos related pleural disease (“ARPD”).
The only issues in dispute are “quantum, the question of competing conditions and the impact” (see Clause 40 Certificate from Anne Houlahan Mediator on 6 May 2022). My task is to assess the plaintiff’s damages.
The plaintiff claims general damages and interest, damages for loss of expectation of life, past and future care and services, and past and future out-of-pocket expenses.

BACKGROUND

The plaintiff was born on 2 October 1939 and is currently aged 82 years.
Between 1954 and about 1966 the plaintiff worked for Fred Ogilvy as an apprentice bricklayer and later as a tradesman bricklayer on building sites in Western Sydney, NSW and was exposed to and inhaled asbestos dust and fibre emanating from asbestos cement and building materials manufactured by the defendant, including Fibrolite, Hardiflex, Tilux and Super Six corrugated sheets.
The plaintiff moved to Queensland and worked for Ron Masters who was a builder around the Gold Coast area and was so employed as a casual labourer/truck driver between about 1966 and 1970. His duties meant that he was performing labouring tasks on site for about 50% of the time and was a truck driver for the remaining 50% of the time. He was exposed to and inhaled asbestos cement building materials manufactured by the defendant, including fibro flat sheets and Super Six corrugated sheets.
For a period in 1971 the plaintiff worked for Ron Payne doing bricklaying work around areas that included Miami, Mermaid Beach and Currumbin, Queensland. The plaintiff was exposed to asbestos dust and fibre from asbestos cement building materials manufactured by the defendant, including Hardiflex and Super Six sheets.
Between 1974 and 1985 the plaintiff worked with Roy Smith, a bricklayer on the Gold Coast and in Byron Bay and was exposed to asbestos dust and fibre from asbestos cement building materials manufactured by the defendant, including Super Six and compressed sheets.
The plaintiff was then employed between approximately 1986 to 1990 by Hoyts Theatre as a contract cleaner. The plaintiff was not exposed to asbestos during this period.
Between about 1991 to 1994 the plaintiff was employed by Burleigh Golf Club as a contract cleaner, with no exposure to asbestos during this period.

THE EVIDENCE

Warwick Headon

The plaintiff swore an affidavit on 01.08.2022 which became Exhibit A. The plaintiff gave oral evidence before me. He was a very honest and open witness and he impressed me as a witness of truth.
His affidavit detailed that prior to his illness, the plaintiff was a retiree who was living his life to the fullest. He enjoyed walking, travelling around Australia with his caravan and boat, and travelling regularly to Bali with his wife and family members.
The plaintiff’s wife, Ruby Headon (“Mrs Headon”), also swore an affidavit on 01.08.2022 which became Exhibit B. She is 79 years of age and has been married to the plaintiff for 57 years. Mrs Headon also gave oral evidence before me, and she impressed me as a witness of truth and I have no problem accepting her evidence as having been given honestly. Importantly, her evidence corroborated much of the plaintiff’s evidence.
The evidence revealed that in about mid-2013, the plaintiff noticed intermittent issues with a cough and shortness of breath, particularly on inclines and stairs. His evidence was that he just assumed that these symptoms were associated with age, and just got on with his life.
Over time, his breathless and cough worsened. He was gasping for air when mowing the lawn and was short of breath when going for walks with his wife on level ground.
The plaintiff attended Total Health in Pottsville in September 2018 because of a “chesty cough” that had been present for about a month. He was referred for a chest x-ray. He was advised that the x-ray showed evidence of pleural plaques from asbestos exposure.
About 6 months later the plaintiff attended his General Practitioner with worsening shortness of breath. He was referred to a Cardiologist at John Flynn Hospital and all cardiac investigations were within normal limits.
The plaintiff was referred to and consulted, Dr Das Mutalithas, Respiratory Physician, on 31 July 2019. Dr Mutalithas advised the plaintiff that he had asbestos related pleural disease.
The plaintiff consulted Dr Swapna Sebastian, Neurologist, on 15 November 2019 as he had been experiencing a slight tremor in his hands. These tremors did not and do not affect the plaintiff’s ability to do things and live his life as he would do normally.
The plaintiff had a CT chest scan performed on 5 February 2020 which noted “Stable mild interstitial fibrosis is noted with reticular markings predominantly in the lower lobes bilaterally. No significant focal lung lesion is seen. Stable bronchiectasis.”.
The plaintiff was reviewed by Dr Sebastian on 14 July 2020 and was told that he had developed some features of Parkinson’s disease. He was prescribed Kinson tablets to help with the tremors. Dr Sebastian, Consultant Neurologist, provided a report confirming that the plaintiff was diagnosed with early Parkinson’s disease in July 2020, that it is well controlled and only progressed very slowly since the initial diagnosis. Dr Sebastian notes that she believes “it is unlikely that the plaintiff’s care needs from Parkinson’s disease will increase significantly in the next 3 to 4 years”.
There is no evidence that the plaintiff’s Parkinson’s will affect his quality of life or his life expectancy.
On 14 July 2020 the plaintiff also consulted Dr Mutalithas who told him that he had also developed asbestosis in his lungs and would need to be reviewed in 12 months.
At a consultation with Dr Sebastian on 26 November 2021 the plaintiff was told that his Parkinson’s was stable. I had the opportunity to observe the plaintiff in Court. He held out his arms, and I could only see slight tremor in his left hand. He also demonstrated on two occasions that he could make a tight fist with both hands, contrary to what is contained in Dr Sebastian’s report dated 16 April 2021 (Exhibit 3). In my view, the Parkinson’s disease does not impact on the plaintiff’s day to day activities or enjoyment of his life.
The plaintiff attended his treating respiratory physician, Dr Mutalithas, on 21 June 2022 as his shortness of breath had been worsening. Dr Mutalithas started the plaintiff on an inhaler called Trelegy once daily and half a 500mg Zithro tablet three times a week to help with his breathing. At that consultation, Dr Mutalithas recommended that the plaintiff be reviewed every six months.
The plaintiff’s evidence was that his symptoms of fatigue, cough and breathlessness continued to deteriorate, and are impacting on his ability to complete day to day tasks and live a normal life (T5.48–50). He is now reliant on a four-wheel walker (“walker”) when walking any further than about fifty metres and he tires easily.
The plaintiff becomes breathless from just talking too much. He becomes short of breath when showering and dressing and bending over for any tasks. He feels like he cannot get enough air in his lungs. This makes him feel anxious and panicky.
The plaintiff coughs every day and often becomes light-headed, which he finds very frustrating and frightening and disruptive to his quality of life (T5.48–50). He is increasingly unsteady on his feet and has almost fallen. Any kind of physical exertion causes the plaintiff breathlessness, and he feels as if there is a constant heavy weight on his chest, such that he struggles to get enough air in.
The plaintiff finds that everything in his life is now harder for him. He used to be very active and enjoyed travel and being out and about (T6.21–22), activities that have been taken from him, which understandably makes him sad.
The plaintiff’s condition of asbestosis and ARPD weigh on his mind and causes him to feel anxious about the future. He worries about what he will be like in a year or two.
The plaintiff has previously experienced back pain but it was well managed (T6.46–50) and I accept that did not impact his day to day living. The plaintiff also had elevated blood pressure which is also well managed with medication (T14.44–45).
The plaintiff and his wife live in a two-bedroom, one bathroom house located within North Star Holiday Resort in Hastings Point. They have lived at the same house for the past 19 years. The access to the home is via two stairs with bilateral handrails at the front of the house. The plaintiff engaged a carpenter to install a platform with two stairs and handrails at the rear access.
Prior to the onset of his illness, the plaintiff was previously responsible for the lawn and garden maintenance (T10.4–5), washing the car and exterior house maintenance (washing windows, sweeping and cleaning the outdoor areas). He would also usually take the rubbish out to the bins and collect the mail. The plaintiff and his wife shared meal preparation tasks and the washing up. The plaintiff would assist with the grocery shopping once a week (T12.4).
The plaintiff and his wife travelled to Bali once or twice a year for many years for around a month at a time where they have many friends (T6.23–25). They also enjoyed travelling around Australia with his caravan and boat. He is no longer able to continue with these travels. The plaintiff is not happy about not being able to travel like he had been. He said “Life used to be so exhilarating and now I am frequently bored.”
The plaintiff is unable to go out for meals like he used to due to his breathlessness and fatigue. Also, since COVID, the way people look at the plaintiff if he starts coughing embarrasses him. The plaintiff rarely leaves the house other than to go grocery shopping with his wife and attend medical appointments. When out grocery shopping, the plaintiff uses the shopping trolley for balance and support. He stated “Yes, I hang on” (T14.27).
Whilst giving evidence before me, the plaintiff confirmed that his shortness of breath had got worse from early 2018 to now saying “Just short of breath. I can’t do anything else without puffing and panting. Pretty frightening earlier, can’t get your breath and feel like ringing and ambulance and get some oxygen or something. You don’t know what to do.” (T5.48–50). He confirmed that when he feels that way, when he is frightened, he gets dizzy and “a bit light-headed”. In order to stop himself from falling, he will “sit down and hang onto something” (T6.6).
He was also asked how he felt within himself, mentally:

“Q.   How do you feel within yourself mentally, Mr Headon, about what is happening to you. A Not very good. It's very frightening. The prognosis is not much good, is it?
Q.   What is your understanding of your prognosis, Mr Headon? What do you understand is going to happen to you. A Finish up 24 hour care, bit of a vegetable sort of thing.
Q.   How does that make you feel, the prospect of that. A Bit frightening. I try to put it out of my mind.
Q.   Do you have success in putting it out of your mind. A Not really.
Q.   Sorry. A Not really.
Q.   Do you think about that kind of thing every day, or can you put it out of your mind for a period of time, or what. A Just about.”

In his evidence before me, the plaintiff was adamant that if his condition got worse he would not be going into a nursing home. He said, “No way. No. Stay at home” (T7.19). The plaintiff was asked what would happen if he needed further care and assistance moving forward. He said, “I’ll just have to pay for it all. Whatever I have to get” (T7.21). Under cross-examination, the plaintiff did not resile from his evidence that this is what he intended to do.
During the course of his cross-examination, on several occasions I observed the plaintiff used his right hand to unscrew the top of a plastic bottle of water and drink from the bottle. I could see no perceptible problem in him doing so.
The plaintiff was cross-examined at length in relation to his family trips to Bali. Importantly he was asked “Were you able to travel around [Bali] at that time in 2019?” He answered, “No” (T9.26). He confirmed that he was really worried about COVID and any plans that his niece had in respect of arranging another family trip to Bali stating “Yes, I was a bit hesitant about this COVID stuff and my lungs clogged. I’ll be in big trouble if I get that. But they finally talked me into going” (T9.43–44).
Importantly, the plaintiff denied that in 2020 he told Dr Deller that he was able to walk for a kilometre. He confirmed that he did tell Dr Deller back in 2020 that he had shortness of breath stating, “Yes, I had to stop” (T9.4–5). Further, the plaintiff denied telling Dr Brown in May 2021 that his mobility was affected by a mild tremor and possibly early Parkinson’s disease. He denied that his ability to move around back in May last year was affected by a mild tremor, stating “No, no” (T10.13–14).
In cross-examination Mr Headon confirmed that he could no longer attend to the housework, and confirmed that he was responsible for housework prior to that stating, “I just to help, I used to do vacuum the floors and wash the floors, clean the windows, … I used to help, yes.”
The plaintiff gave evidence that he is able to shower himself but he now uses a chair. He confirmed that when he was having a shower Mrs Headon kept an eye on him. He stated “… When I wear socks, yes, I need her to put them on for me. If I bend over, I get-run out of breath, so I can’t. Can’t breathe”. He said that he can dress himself but had to sit on the bed and then after he finished dressing himself he was quite breathless.
In relation to the proposition that Mrs Headon had suggested at some stage that they move into a nursing home he said, “No. she is the same as me. I – we’re quite happy at home.”. He suggested that his wife suggested living in a retirement village, “maybe in a joke”. So adamant was the plaintiff that he did not want to move into a nursing home that he said, “Maybe she did but I don’t – it would be said in jest. We’ve never ever wanted to go there.”.

Ruby Headon

As previously stated, Mrs Headon was a very impressive witness, and I have no hesitation in accepting her as a witness of truth. In her evidence-in-chief, Mrs Headon described her husband as “He’s pretty good. He’s nice. Nice and easy to live with, talk to, yes.”. She confirmed that he used to be an outgoing person but that “… not so much now, but we did, yes.”. She described what they used to do together before 2018 in the following terms:

“Warwick and I would pack our caravan and boat up and take off. Once we went around Australia, which was beautiful and then we did that, and just came home to Hastings Point, used it as a base for the next 15, 16 years and just travelled in our caravan with the boat and just go here, there and everywhere, set up for a couple of months, and come home and had a great life.” (T17.22–26)

Mrs Headon said that that changed in about 2013 (T17.28). She explained that, “…I found that Warwick was getting very puffy, coughing too much, taking too much time to do what we used to do so easy and that, and it just – I said to Warwick, its time, I think, we went home and thought about it and see what we are going to do.” (T17.29–32)
Mrs Headon said that from the initial symptoms that she observed of shortness of breath and cough in 2013, her husband had “deteriorated”. She described him as “a lot slower, breathing wise, a lot more coughing. I just watch him all the time to make sure that he’s fine.” She described that she observed him to get very short of breath when he was exerting himself and that he began gasping and that when this happened, he loses his balance. She said, “Well, it takes him a while now to get out of his chair when he sits, and he just, its just – I shouldn’t be saying it’s a shame, but it’s getting worse and worse. It’s not – I didn’t want it to be that way, but it’s just happening that way.” (T17.34–45)
Mrs Headon described a change in the plaintiff’s personality in the past year or so, stating “He gets a bit short with me. Yes, just short. I mean, he’s not a nasty person but he’s just – he’s cranky with himself, for being the way he is” (T18.41–43). Further, she confirmed that the only symptom from Parkinsonism that she had noticed was “just a shake” (T.19.19). Mrs Headon confirmed that since the commencement of the Kinson medication prescribed by Dr Sebastian that “… I don’t think he is trembling as much as he has. One hand, in particular, has a little bit more, but no.” (T19.30–31)

In cross-examination it was put to Mrs Headon that she had suggested to her husband about looking to move into a retirement facility (T25.1–2). She said “Yes, we had discussed it, but at the moment I don’t think it’s necessary but just looking into the future” (T25.2–4). It became apparent during cross-examination of Mrs Headon that Mr Headon was fiercely independent. She described him saying to her, “I’m not a cripple. Don’t treat me like one.” (T26.31)
Senior Counsel put to the Court that it was more likely than not that the plaintiff will ultimately have to be cared for in a nursing home, as Mrs Headon would not be able to do this on her own. He further submitted that as Mr & Mrs Headon had already spoken about this, that would evidence their intention.
Whilst this was appropriately tested, I do not accept that the intention of Mr and Mrs Headon is to end up with the plaintiff in a nursing home. I accept their evidence as to this point and find that they will stay at home with nurses and other assistance coming to the home, if they could afford to do so, and I have assessed their damages for future care with that in mind (Exhibit A paragraph 65).

Dr Ian Brown

In a report dated 20 May 2021 (contained within Exhibit E), Dr Ian Brown, Respiratory Physician (who assessed the plaintiff for WorkCover Queensland), wrote:

“…Mr Headon is currently aged eighty-one years and has mild respiratory symptoms of cough and breathlessness. This does affect his day to day activities such as walking, showering and dressing but he has no significant nocturnal symptoms apart from an occasional cough. His cough is productive of a small amount of mucoid sputum on occasions but is mostly dry. There is no history of haemoptysis or chest pain. His exercise tolerance is limited to walking about 100m and he needs to rest. When he is out shopping he uses the trolley for significant support. His mobility is also affected by a mild tremor and possible early Parkinson’s disease but this does not appear to have contributed to his breathlessness.
He gained significant weight in his early adult years and has been stable over the last twenty years or so. He remains with an obese body habitus with a weight of 105kg and a BMI of 34kg. He has mild gastro-oesophageal reflux and has recently had steroid injections to both shoulders for bursitis with relief. There are no significant symptoms referable to other systems and in particular no history of cardiac disease.
The other medical history includes hypertension and bilateral inguinal hernia repairs ten years ago.
He was a smoker of twenty five cigarettes a day for twenty years but ceased forty years ago. He has a modest alcohol consumption.
… He has a predominantly mild restrictive ventilatory impairment and I do not think that the smoking history is relevant to his current lung function. He does not have evidence of emphysema on the CT scanning and he ceased smoking over forty years ago.…”

In a further report dated 6 June 2022 (contained within Exhibit E), Dr Brown considered recent lung function test results and wrote:

“The current decline in FEV1 and FVC causes a similar level of impairment as the DCO, using Table 5 – 12 on page 107 of AMA5. The overall level of permanent impairment has not altered but there is a significant deterioration in the spirometry measurements with the FEV1 and FVC measurements declining by around 600ml. This is much greater than the decline expected from the ageing process alone.”

Dr Brown was asked whether any decline in the above lung function values was a consequence of progressive asbestosis? He responded:

“The decline in lung function indicates deterioration in the combined effects of chronic obstructive pulmonary disease (COPD) from his remote smoking history and asbestos dust exposure. As he ceased smoking over forty years ago it is unlikely that his smoking related lung disease has progressed significantly, the changes being more likely to be related to asbestosis which is slowly progressing.”

Further, Dr Brown considered:

“Given the level of decline in his lung function below predicted levels with an accelerated loss of lung function over the last twelve months or so, I agree that the condition is likely to shorten his life. Whereas he would have a life expectancy on average of around 7.2 years according to the Australian Bureau of Statistics Life Tables, I agree that it is likely the current trajectory in loss of lung function would indicate that his life expectancy is now less than 5 years.”

Dr Brown considered that Mr Headon was currently in ECOG 2. He agreed with his respiratory colleague Dr David Deller (see below) that it is likely Mr Headon will remain at a moderate dependency stage for up to 3 years before progressing to high dependency for up to 2 years with only a period of months of complete dependency prior to his death. Dr Brown wrote:

“Dr Deller’s statement is consistent with the progression of his lung disease and provides a realistic framework for his likely decline over the next five years. Although it is possible that associated complications such as severe lung infection could develop with his level of respiratory impairment and could threaten his life earlier, on balance I feel the estimate provided is appropriate.”

Finally, Dr Brown wrote:

“There is no other identifiable general medical condition which is likely to cause his decline in a more accelerated or debilitating way than his underlying lung disease, predominantly asbestosis.”

In his evidence before me, which he gave concurrently with Dr Deller, Dr Brown did not resile from the opinions he expressed in his reports.

Dr David Deller

In his first report, dated 18 September 2020 (contained within Exhibit D), Dr David Deller, respiratory physician examined the plaintiff and wrote:

“Examination
…
Chest auscultation revealed fine inspiratory crackles at the lung bases loudest at the right lung bases loudest at the right lung base.
…
Radiographic Studies
CT scans were reviewed from both 2019 and more recently in 2020.
There is evidence of asbestos associated pleural and pulmonary disease with bilateral calcified and non-calcified pleural plaques in addition to predominantly basal and peripheral reticulation with associated traction bronchiectasis. There are occasional pleuro-parenchymal fibrotic bands visible at the lung bases. These changes are not progressive over 12-18 months.
The combination of radiographic findings are consistent with asbestos associated pleural plaques and mild asbestosis.
Respiratory Function Tests
Pulmonary function tests performed at the Pindara Lung Function laboratory today demonstrated mild mixed ventilatory impairment with moderate reduction in gas transfer.
The forced vital capacity was 3.13L (76% predicted) with mild increase in PEF rates. FEV1/FVC ratio was > 70%. TLC was preserved and RV was increased suggestive gas trapping. The DLCO was moderately reduced at 14.8 (51% predicted).”

Dr Deller made a diagnosis of asbestos associated calcific pleural plaques and asbestosis. Further, he opined:

“Whilst the diagnosis of possible asbestosis was reported in July 2019 the diagnosis was not established, on the balance of probabilities, in correspondence from Dr Mutalithas until the 14.7.20.
…
The average life expectancy of an 80 year male in Queensland is a further 8.5 years according to Australian Bureau of Statistics life expectancy tables.
When considering current lung function and radiologic abnormalities, I would anticipate that asbestosis may reduce this by up to a couple of years if expected progression continues.
…
Asbestosis is progressive in the majority, but not all, of affected individuals even after exposure has ceased. Progression is generally thought to be slow in the majority of affected individuals and typically over 10-20 years. It is therefore most likely that Mr Headon's asbestosis will progress slowly over the next 10-15 years.”

Dr Deller provided a further report dated 6 May 2021 setting out his assessment of permanent impairment due to the plaintiff’s asbestosis. He wrote:

“Mr Headon has a forced vital capacity (FVC) at the LLN and DLCO >41% - <59% of predicted. This puts Mr Headon at the lower end of Class 3 impairment.
I therefore estimate Mr Headon's whole person impairment from asbestosis to be 26%.”

Dr Deller provided a further report dated 14 March 2022, following a further medical examination of the plaintiff. He wrote:

“Mr Headon reports a slow but steady decline in breathlessness on exertion over time associated with gradual functional decline.
Mr Headon has undertaken repeat complex lung function testing at Pindara Hospital on 11.3.22. There has been a decline in FVC over time with stability of TLC and gas transfer factor.
In summary there has been evidence of symptomatic, functional and objective physiologic decline over time…
When considering Mr Headon's age, lung function impairment and trajectory over time I expect that life expectancy has been reduced to less than 5 years as a result of his condition of asbestosis.”

Dr Deller was provided with the report of Ms Vincent, Occupational Therapist dated 9 December 2021 (Exhibit F), and was asked whether he agreed with her assessment regarding the plaintiff being in a moderate level of dependency. He wrote:

“Warwick can walk slowly with a 4 wheeled walker for up to 10 minutes and is able to peddle slowly on an exercise bike each day. Warwick is not able to perform other light activities such as lawn mowing or washing the car due to dyspnoea. Mr Headon is independent with hygiene cares such as showering and dressing. Warwick would spend up to 50% of the day sitting in a chair or bed.
I agree that Mr Headon’s current performance status is commensurate with ECOG 2 (moderate dependency).

In relation to dependency phases, Dr Deller was asked:

“Based on your knowledge of the various ECOG dependency phases and your clinical experience with asbestos disease, how long will Mr Headon remain in the moderate dependency phase and whether he will progress to any higher ECOG dependency phases being high and complete [as a] result of his condition of asbestosis and, if so, when will this likely occur?”

He answered:

“Most progressive medical conditions follow an exponential decay curve over time in that they progress slowly at first and accelerate over time as the disease declines.
Based on a life expectancy of up to 5 years it is likely that Mr Headon will remain at a moderate dependency stage for up to 3 years before progressing to high dependency for up to 2 years with only a period of months of complete dependency prior to his death.”

In a report dated 9 June 2022, Dr Deller noted the following in relation to Permanent Impairment caused by asbestosis when equivalent predicted values (Crapo) were used. Consistently with the views of Dr Brown, he wrote:

“Mr Headon has an FVC of 2.48L (61% predicted) and TLC 6.55L (96% predicted) with a DLCO 13.89 (49% predicted). These results estimate a Class 3 impairment (26%-50% of the whole person). I would attribute at 38% impairment of the whole person to his reduction in lung diffusion.”

Further, Dr Deller was asked “Is it the case that there has been a demonstrable decline in the FEV1, FVC and DLCO measurements, and if so, is it due to progression of the plaintiff's condition of asbestosis?” He responded:

“There has been a demonstrable reduction in FEV1, FVC and DLCO between 2020 and 2022. Whilst it is probable that progression of his existing lung disease is responsible for this lung function decline it is not possible to provide a more definitive statement without a review of more recent radiologic findings.”

In relation to the Plaintiff’s life expectancy, Dr Deller opined:

“Interstitial lung disease contributes to an increase in mortality often from infection or acute exacerbations of pulmonary fibrosis.
Considering that pneumonia is one of the leading causes of death in this age group, and considering that Warwick has no current evidence of dementia or symptomatic coronary or cerebrovascular disease which are other major causes of death in this age group, it is likely that his asbestosis will be a contributing factor in his death.”

Finally, in a report dated 20 July 2022 and after review of a CT scan of June 2022, Dr Deller wrote:

“The recent CT chest does not identify any new or emergent findings that would contribute to a decline in lung function.
I therefore attribute any recent decline in lung function to his asbestos related conditions.”

Concurrent testimony of Drs Deller and Brown

Drs Brown and Deller gave concurrent evidence. They did not resile from the views they expressed in their written reports.
Dr Deller explained the significance of the clinical finding of “crackles” heard at the plaintiff’s lung bases, as follows:

“Crackles are a typical auscultatory finding of interstitial lung disease. Finding respiratory crackles are characteristic and quite typical of interstitial lung disease.”
Dr Brown agreed adding, “there is a differential diagnosis, including heart failure, which has been excluded in this instance with the cardiac investigations beforehand, which is what was also noted in the reports, I believe, at the same time.” (T42.42-44)

Dr Deller was asked to clarify what he was referring to when he used the terms “peripheral reticulation with associated traction bronchiectasis”, in his first report. He explained:

“I am describing a constellation of radiologic features that would be consistent with asbestos related pleural and pulmonary disease in that instance. In review of those images, I think that the description that I've provided in that report is quite an accurate and succinct description of the radiologic findings.” (T43.6–9)
“Peripheral reticulation describes the early features of interstitial lung disease. These characteristic findings include subpleural, so around the outside of the lung or peripheral, linear densities, which can be of varying lengths. Usually, these fibrotic changes or reticular changes have a basal or posterior predominance, which is the case here. There can also be coarse parenchymal bands which are usually between 2 and 5 centimetres in length and often contiguous with the pleura, which we also see in this case. And in more advanced cases of asbestosis, you may see honeycombing as well. Often, I'll comment on the present of pleural plaques because that can be quite helpful in differentiating asbestos induced parenchymal disease from other forms of interstitial lung disease.” (T43.15–23)

In relation to his use in his report of the term “with associated traction bronchiectasis”, Dr Deller explained that:

“… when pulmonary fibrosis develops, as the lung parenchyma surround airways which cause through the lung parenchyma, the fibrosis and scarring of the parenchyma causes traction changes on the airways, resulting in dilation of those airways, which we call traction bronchiectasis. So, the finding is a very common finding in interstitial lung disease, including in asbestosis, and it would likely be found in regions of the lung where the fibrosis is more obvious. …” (T43.30–34)

Dr Deller explained that it was possible to have bronchiectasis in other parts of the lung that have nothing to do with the fibrosis but that would not be termed “traction bronchiectasis”. He testified:

“The bronchiectasis would likely be caused be a separate aetiology, such as in the case of post infectious bronchiectasis or in cases of chronic asthma.” (T43.41-43)

Dr Deller confirmed that on viewing the plaintiff’s CT scans, he did not see any bronchiectasis that was not adjacent to or contiguous with the basal pulmonary fibrosis that he had described. He explained that traction bronchiectasis was:

“… a radiologic finding that commonly is associated with interstitial lung diseases including asbestosis.” (T44.30-31)

In relation to the evidence regarding traction bronchiectasis and basal pulmonary fibrosis Dr Brown agreed with Dr Deller, stating:

“… I agree that there are changes of interstitial lung disease, most eloquently described by Dr Deller, and I have nothing to add in regard to pulmonary fibrosis and interstitial changes. The traction bronchiectasis has been a feature from the first CT scan that - where this was diagnosed, and it has remained throughout. If anything, it's gotten a little worse. It's limited to the lower lobes, and there's no other cause identified. He's not had infections or foreign bodies or any other severe destructive airway ....... which has a …. alternative cause for his bronchiectasis.” (T44.38–44)
“I believe his traction bronchiectasis is a direct consequence of the asbestosis condition in the … but extending more proximally into the medium-size airways as well.” (T45.2–3)
“Traction bronchiectasis is common in more severe forms of asbestosis, and its presence indicates - its presence is associated with the fibrosis component. They go together.” (T45.10–11)

Importantly, Dr Brown explained that when he examined the plaintiff on behalf of WorkCover Queensland in May 2021, he recorded an oxygen saturation level at rest of 91%. He explained the clinical significance of this finding as follows:

“Oxygen saturation means there are ..... oxygen from the air breathed in to the arterial blood, and it's measured by a light metre on the finger or on the earlobe - and on the finger, in this case, in our estimate. And his oxygen saturation was 91%, which is significantly reduced. Normally, it would be in the vicinity of 97 to 99%, and at around 91% is often associated with breathlessness, significant lung disease and a reflection that, in the not too distant future, Mr Headon ...... reduces to below 90% at rest, there would be a very significant further oxygen de-saturation with moderate exercise such that he would need supplementary oxygen to continue exercising. So, it's a marker of significant lung disease.” (T46.17-24)

Dr Brown continued in respect of the significance of reduced oxygen saturation as follows:

“What I said was that, when the oxygen saturation is around 91% at rest, it's getting close to the point where we'd be thinking that he could have further significant oxygen de-saturation with mild to moderate exercise and require supplementary oxygen to complete those activities. At 91%, it is a marker of significant lung disease, and we would be wary to look at whether he needed home oxygen or ambulatory oxygen, if there was continued reduction in his oxygen saturation levels.” (T46.41-46)

Dr Brown explained that when a person exercised, although there was some variability from patient to patient:

“It would not be unusual for it to drop another 4 or 5% with exertion...” (T47.2–3)
“Well, his oxygen saturation then around 87 or 86%, he would be more breathless and need to rest with exercise more frequently. And as it got down to levels around 82, 83% with exertion, we'd be thinking of providing him with supplementary oxygen on exercise to allow more consistent exercise or more endurance with exercise.” (T47.9–12)

Dr Deller agreed with Dr Brown’s analysis of the oxygen saturation and its significance, adding:

“Yes, I agree with traction bronchiectasis is very commonly associated with fibrotic lung diseases. And I agree with all of Dr Brown’s comments in relation to hypoxemia and hypoxemia on exertion.” (T47.20-22)

During their concurrent evidence, the experts were asked whether on review of the plaintiff’s radiology there was any evidence of emphysema or smoking related pathology. Dr Brown indicated that there was no evidence of any significant chronic bronchitis, smoking related lung disease or emphysema on high resolution CT scans (T48.7-15). Dr Deller agreed (T48.23-24).
Dr Brown was asked to explain the comments in his report of 6 June 2022 where he referred to chronic obstructive pulmonary disease. He testified as follows:

“WITNESS BROWN
Chronic obstructive pulmonary disease is narrowing of the airways, particularly the medium and small airways, the bronchial tubes, as which could result from cigarette smoking, asthma, even bronchiectasis. And it may be a factor of his remote smoking history. It's one of .......... long term.

MR TZOUGANATOS
Could you just repeat that, Dr Brown? We did not catch a large part of the answer.
WITNESS BROWN
I'm sorry. The chronic obstructive pulmonary disease is an airways disease. It's narrowing of the medium and small airways due to a loss of bronchial tone. It's due to a collapsibility of the airways. It commonly accompanies long .......... smoking related itis, such as even long standing asthma or bronchiectasis, and it may even be evident in dust disease more than we previously thought, such as asbestosis or silicosis, for example. But it's a disease of the airway, rather than the periphery or the interstitial of the lung. So, it's the conducting tubes that become inflamed and thickened and more collapsible than normal so that when somebody breaths out, the airways will collapse and reduce the air flow.” (T48.30-48)

In the plaintiff’s case, Dr Brown explained that if the plaintiff did not have asbestosis, he did not believe that the COPD would have made him significantly disabled in any event. He testified:

“I don’t believe that to be the case. I mean, he ceased smoking over 40 years ago and he’d had a long period of time without significant COPD or bronchitis symptoms, and these symptoms have come to a head in the last 3 or 4 years with the finding at the same time of significant interstitial lung disease, of asbestosis, and associated traction bronchiectasis. And if anything, I think the airways disease component is probably more likely related to the traction bronchiectasis than his previous smoking. So, I don't believe that, minus the asbestos exposure, that he would have his current symptoms, or the deteriorating in the lung function, or the reduced oxygen levels that have been demonstrated.” (T49.8-15)

Dr Deller agreed with Dr Brown and did not wish to add anything. (T49.22)
In respect of the issue of the likely progression of the plaintiff’s asbestosis and the symptomatology therefrom, Dr Brown testified as follows:

“… I think that I said that his life expectancy will be reduced because of his asbestosis condition, and its progression over the next - likely, within the next five years now. And the reason for that is that I think that he's shown significant deterioration over the period of observation, which is now just four years. I mean, he does have a lot more difficulty, for example, in performing the breathing test. He's had more difficulty with his day-to-day symptoms and need extra assistance because he is more breathless with exertion, and I think that will be a hallmark of his progression over the next few years that he will require supplementary oxygen within the next year most likely, and that need for oxygen will increase to overnight oxygen as well. He'll become more dependent on others for his activities of daily living, and even his self hygiene and care, meals and so on within the home, and he will spend more time in bed. During these times, he'll be much prone to superimposed chest infections, and in fact, I think that it's likely to be a chest infection in the end because of his reduced pulmonary reserve which he would otherwise would've recovered from but because he has asbestosis, stiffening in his lungs, difficulty clearing secretions, then the effect of normal year to year infections that we all have transiently may become potentially terminal events for Mr Headon. So, I think that the outlook is relatively poor over the next four to five years, and it's very likely that he will progress in the way that we've seen but becoming more disabled as his lung ... falls further and his frailty increases.” (T51.5-22)

Dr Deller agreed with the opinion expressed by Dr Brown. (T51.29)
The respiratory specialists testified in relation to the nature and significance of the six lung function tests performed by the plaintiff between 10 April 2019 and 11 March 2022.
During concurrent evidence, there was a description of the various parameters measured and how they were measured.
Dr Brown was asked:

“Dealing with the parameters of lung function testing in Mr Headon’s case, is one or other of the parameters we have just been discussing a more sensitive or better objective description of this man’s lung disease?”

His response was as follows:

“The most significant measurement that – throughout Mr Headon’s course has been the measurement of DCO. His DCO measurement was mildly impaired back in 2019, 10/04/19, and has steadily declined overall since that time. There's been a slow but relentless reduction in his DCO except for one isolated measurement which was similar in - during 2021. But all of the others show a steady decline, and that's a marker of the fibrotic damage to his lungs in the periphery of the lung. So, the gas exchange is not as good as it was, and that's the only cause in Mr Headon of an impairment in lung diffusion. He doesn't have significant emphysema, which is another common cause which was put out on the high resolution CT scan, and it's not due to anaemia because it's - on each of those occasion, his blood count ... curiously low lung diffusion. So, his lung diffusion has inexorably but slowly declined over the period of observation.” (T52.42-50 and T53.1–2)

Dr Deller agreed with Dr Brown’s opinion in this regard. (T53.10)
Dr Brown gave evidence that there was no indication in the serial lung function tests that there had been any kind of problem with the measurement of the plaintiff’s DCO (or DLCO) or any kind of issue with the tests themselves (T53.23-30). Dr Deller agreed (T53.33-36).
Drs Brown and Deller confirmed that they had re-read the report of occupational therapist, Ms Amy Vincent. Dr Brown was asked whether he had any difficulty with the various stages of dependency that Ms Vincent had described in respect of the plaintiff as his disease progressed. Dr Brown opined:

“Yes, I agree that it's a logical explanation of the way in which people decline in the terminal phases or with progression of their illness up to the terminal phase of the illness. And I took it as a level of the care ... that would be required, and putting in practical terms in terms of his day-to-day needs … I agree with the progression through the ECOG definitions even though ECOG was specifically designed for cases of malignancy. These conditions are no less progressive and malignant in that they will potentially be lethal. So, I think it's a very practical way of expressing decline over the latter stages of his disease. And I think that the levels of care required are quite honest and practical, and I agree with them.” (T54.43-50)

Dr Deller agreed with Dr Brown’s opinion in this regard. (T55.12)
The respiratory specialists were cross-examined. They did not resile from their opinions regarding diagnosis, past progression of asbestosis, likely future progression of asbestosis, the nature and extent of care/dependency that the plaintiff will require for the remainder of his life, and the fact that the asbestosis would lead to his death in about 5 years.
Drs Deller and Brown were cross-examined based on some of the propositions contained in the reports of Dr Fanning. Dr Deller dealt with Dr Fanning’s main proposition regarding the discrepancy between FVC and the VC. He said the following:

“So, this question alludes to Dr Brown’s comments earlier when he said that there was a difference between the FEV1 – so the amount of air so, the amount of air expelled in one second - the FVC and then the VC. So, the forced vital capacity is the amount of air that can be expelled after a maximal inhalation, and the vital capacity is when that is not done in a forced manner.
Now, in an individual that has some airways disease at the time, for example, it is possible and, in many cases, likely that the FEV1 and the - that the FVC will be lower than the VC, because as you force your exhalation, you get dynamic closure of the airways. So, often, the VC will be larger than the FVC.” (T74.10-17)

Dr Deller did not agree with Dr Fanning’s conclusions concerning the DLCO being stable for the 20-month period between June 2020 and March 2022. He said:

“Well, I think there is – I mean, I have to get my calculator out, but I think there is something in the range of a 5% drop or so …”. (T76.14-15)

Dr Brown did not disagree with any of the opinions expressed by Dr Deller. He testified:

“… I think I agree with Dr Fanning that, you know, there's something a bit different about that last result, and that was in the nature of the FVC. What caused that, I don't think is clear, but as I mentioned in my report in response to that test, my last report of 8/6/2022, there does seem to be some indication of airways obstruction along the way, what Dr Mutalithas has called COPD, and which I think I have also mentioned chronic airways obstruction and COPD components, but we had more difficulty performing the test on that day, but it was reproducible. The lung diffusion measurement independently showed a decline with a separate technique altogether, totally unrelated to the FVC. But I do think that it is an overall marker of the decline in general condition and frailty that Mr Headon is developing. I agree that there was nothing additional on the CT scan to explain an alternative cause for that drop in lung function, but he still has his evidence of asbestosis and bronchiectasis, and the fact that he's got that bronchiectasis as a consequence of his asbestosis could well have been the whole explanation for the change in lung function on the difficulty he had with the lung function on 11/3/22, though I note that Dr Mutalithas did not - who said there was no actual infection in that period, and that he'd been reasonably stable, but a cough and sputum seem to be part of his condition as associated with bronchiectasis. So, while I don't think that we can put all of that FVC down to a change in his fibrotic lung disease because there was no obvious change on the CT scan, the CT scan still showed very significant fibrosis, and I think the bronchiectasis component is probably showing up more in the difficulty he had with that. But I based my whole person impairment at that time on the measurement of his lung diffusion, which really does show a consistent finding with the impairment he had previously. So, that FVC measurement didn't alter the impairment assessment, but it was noteworthy.” (T77.9-30)

Dr Brown was asked about the reference in his report of 6 May 2021 to the plaintiff’s Parkinson’s disease. He said that he had noticed that:

“When he was walking, he had a rolling tremor of his wrist and arms, and it didn’t affect his arms as such but when he walked in he actually had a noticeable tremor in his hands.” (T81.2-3)

Importantly, Dr Brown said:

“I don’t recall that his mobility was affected by that part of his tremor, and his tremor didn’t affect his feet. I just – I think it was an observation when he was walking.” (T81.10-11)

It was put to Dr Deller that in terms of progression of the plaintiff’s asbestosis and his care needs, they might be the same as they are now for the next 3 years. Dr Deller did not agree with this proposition, explaining the following:

“Well, there’d be gradual decline but the – high dependency care bracket would imply that he was capable of only very limited self care and that he was confined to a bed or chair for more than 50% of the day. These are general, these are sort of fairly wide brackets really and within a moderate dependency its very likely that he will have increasing care needs even within that stage until he reaches the dependency phase of his illness.” (T85.38-42)

Dr Deller was asked whether it was common for persons in the position of the plaintiff, given his age and given his asbestosis and other health conditions to go into a home or assisted living facility. Dr Deller said the following:

“It would be highly variable depending on the patient. If he was unsupported in the community and living independently, there would be many patients that would be contemplating nursing home placement even now, and conversely there would be patients that would reach a high dependency phase of their illness, but who are very well supported at home and have, you know, nursing assistance and other allied health assistance in the home that would be able to stay in their home for a prolonged period. It is common for people in their 80s who have progressive respiratory disability to contemplate additional care.” (T86.45-50, T87.1)

There was evidence from Dr Deller regarding the likely end stage of the plaintiff’s asbestosis:

“…a common characteristic of asbestosis where sufferers may not die directly from respiratory failure from asbestosis itself but from a number of other conditions that may be triggered by it as a result of both reduced lung function or just general poor function and frailty which places greater stress on other body organs, with pneumonia probably being the leading cause of death in most cases.” (T88.34–38)
“Yes. I think in a higher dependency or complete dependency phase when you have significant structural lung disease and low gas transfer, you are at a particular risk of developing pneumonia, and also not being able to survive that pneumonia which you otherwise may be able to.”(T88.45-47)

Dr Das Mutalithas

Dr Mutalithas is the plaintiff’s treating respiratory physician. His clinical records and medico-legal report are Exhibit K. The defendant did not require him for cross-examination.
Dr Mutalithas agreed with the future ECOG phasing of care dependency set out in Dr Browns’ report of 6 June 2022. He also agreed that:

“There is no other discernible general medical condition which is likely to cause his decline in a more accelerated way that his underlying asbestos lung disease.”

Following his most recent consultation with the plaintiff on 21 June 2022, Dr Mutalithas wrote to the plaintiff’s general practitioner, Dr Robin Watts (Exhibit H), in the following terms:

“Functionally, there has been a decline since I last saw Warwick a year ago. About 6 months ago he started using a walker, mostly so that he can have a rest after walking a few metres. On a stretch he can walk 50 metres at a time.
They had needed aids fitted in the bathroom, to help him with mobility. He gets breathless quite easily, including with self care, such as having a shower. He says he is coughing more but the sputum consistency is still clear and he doesn't bring up more than two or three teaspoons full a day.
His chest was full of squeaks and wheeze today, with coarse crackles on both sides. Oxygen saturation was 93%. His ankles were not swollen and cardiac auscultation was unremarkable.
His wife has heard him wheezing during the evenings. There hadn't been any recent infections, at least in the last six months.
I have changed his inhaler therapy to Trelegy Ellipta, to see if a small dose of inhaled steroid makes any difference. I will start him on a regular macrolide as well. I have left him with a sputum pot and a culture request form. Should there be a heavy growth of pseudomonas, he will benefit from a course of Ciprofloxacin.
This time I have arranged a review here in 6 months and will see him with a lung function test.”

Dr Swapna Sebastian

Dr Swapna Sebastian, Consultant Neurologist, is the plaintiff’s treating neurologist. In a report dated 12 July 2022 (Exhibit J) she wrote:

“Mr. Hayden [sic] presented with mild tremors and was diagnosed with early Parkinson's disease in July 2020. He is on minimal medication for his Parkinson's which is well controlled at this point. He has progressed only very slowly since his initial diagnosis in July 2020. I believe that it is unlikely that Mr. Headon's care needs from the Parkinson's disease will increase significantly in the next 3 to 4 years.”

In a letter to Dr Adam dated 16 April 2021 from Dr Sebastian (Exhibit 3), she stated the following:

“Warwick attended for review today with Ruby. From the Parkinson’s point of view he feels that he has deteriorated a little bit. He feels that his tremors are worse and he has slowed down overall.
I have suggested increasing the Kinson to 1 ½ mane and midday and introducing a night time dose of Kinson, he does feel that he is struggling a little bit at night with turning.
He reports aching in his arms for the past few months. It involves the hands where he cannot make a tight fist and he also feels that his hands are weak and he is dropping things. The pain goes all the wat up into his arms. The symptoms are present both during the day and night. He also has pain in both shoulders but doesn’t complain of much neck pain. CT of his cervical spine showed degeneration at multiple levels with multiple nerve root compressions and it is hard to know if the symptoms are related to that. A more likely explanation would be carpal tunnel syndrome. I think this needs exclusion. He is also going to have shoulder injections next week and it will be interesting to see how much the shoulder problem is contribution to his symptoms.”

Dr Sebastian was not required for cross-examination. However, Mr and Mrs Headon were both cross-examined as to matters raised in Dr Sebastian’s letter.
My observations of the plaintiff when he gave evidence before me was that when asked to hold his hands out, I could only observe a slight tremor in his left hand. Similarly, when it was put to him in cross-examination that he could not make a fist, he did so on three occasions that I observed and they certainly looked like tight fists. I have not been able to identify on the transcript at which page this was recorded, but I have a specific recollection of it occurring.

FINDINGS OF FACT

I make the following findings of fact:

The plaintiff suffers from progressive asbestosis, a feature of which is traction bronchiectasis causing damage and dilation to his airways.

His symptoms of breathlessness and cough caused by his asbestosis began in 2013 and have progressed since then.

In about 2020 he became significantly shorter of breath; consistent with a significant reduction in his DLCO and oxygen saturation at rest.

The plaintiff is now significantly short of breath on minimal exertion including walking on flat ground. He needs a four-wheel walker with a seat so that he can sit and catch his breath when he walks. He is short of breath when talking for long periods of time. He coughs and this makes him shorter of breath, light-headed and giddy. It makes him anxious and causes him to panic. It causes him to have problems with his balance and he has to hold on to things in order not to fall.

Since about December 2020 the plaintiff’s asbestosis has required him to have care, assistance and supervision from his wife Ruby. He is currently in a stage of moderate dependency, described by Ms Vincent as in ECOG dependency phase 2. As a result of his progressive asbestosis, his need for care and supervision will increase through the ECOG phases from moderate dependency through to high dependency and then complete dependency for the final few months of his life.

In about a year it is likely that the plaintiff will require supplemental oxygen. His asbestosis will continue to progress and so will his breathlessness, cough and suffering therefrom.

This frightening and frustrating physical decline and suffering will be made worse by the plaintiff’s acute awareness that it is happening and there is nothing anyone can do to stop it.

It is likely that the plaintiff’s asbestosis will cause his death in under 5 years. This will occur directly, through respiratory failure - the inexorable progression of destructive fibrosis in his lungs, or indirectly via the effect of pneumonia or infection that will cause his respiratory system to be overwhelmed and not be able to recover as any person without asbestosis and reduction in gas exchange might.

There is no evidence that the plaintiff has any comorbidity that has affected his ability to live his previous life experiencing good health. There is no discernible smoking related disease or disability.

There is no cardiac problem. No prostate issues. Further, the defendant called no evidence capable of carrying its evidentiary onus of proving that the plaintiff currently requires, or at any time in the future will require, any care and assistance as a result of his Parkinson’s or any other comorbidity. Nor is there any evidence that the Parkinson’s will cause any reduction in the plaintiff’s life expectancy.

ASSESSMENT OF DAMAGES – GENERAL PRINCIPLES

In an action for personal injury, damages are awarded to a successful plaintiff by the payment of a sum of money to compensate them for the injuries caused. The general compensatory principle of damages has three elements, outlined in Todorovic v. Waller [1981] HCA72; (1981) 150 CLR 402 at 412:

“In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries. Secondly, damages for one cause of action must be recovered once and forever, and (in the absence of any statutory exception) must be awarded as a lump sum; the Court cannot order a defendant to make periodic payments to the plaintiff. Thirdly, the Court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it.”

The fundamental aim in the compensatory principle is to put the plaintiff in, as far as possible, the position that he or she would have been had the tort not be committed: Livingstone v. Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25 at 39 and Harriton v. Stephens [2004] NSWCA 93; (2004) 59 NSWLR 694 at [7]–[8] per Spigelman CJ.
Where the defendant alleges that the plaintiff would have suffered disability because of a pre-existing condition, even if the compensable injury had not occurred, the evidentiary burden rests on the defendant to establish what the effect of the pre-existing condition would have been: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164.
The nature of the pre-existing condition, its probable effects, the relationship it has to the ultimate state and any disability, and the time when these effects would have been seen without the tort, must be established with some reasonable measure of precision but not to a standard of near perfection: Expokin Pty Ltd trading as Festival IGA Supermarket and Graham [2000] NSWCA 267 at [50] per Santow AJA.
The plaintiff submits that the defendant has not come close to establishing, with some reasonable measure of precision, that there are pre-existing conditions that would affect the plaintiff’s ultimate state and any disability. Emphysema or any smoking-based pathology are not demonstrated radiologically, nor is there any evidence the plaintiff has cardiac problems or a cancer which could impact upon his level of disability. Moreover, it is apparent that since the plaintiff has been taking the Kinson medication prescribed by Dr. Sebastian, the symptoms of his Parkinson’s disease are well controlled.

GENERAL DAMAGES

The task of determining the sum for general damages involves a consideration of what has happened to the plaintiff in the past, what will happen to him in the future and then fixing a figure “by the use of the awareness produced by general experience, current general ideas of fairness and moderation”, it being “a matter of judgement in the sound exercise of a sense of proportion.” (see Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118 at 125 and 124; Wallaby Grip Limited v. Peirce [2000] NSWCA 299 at [13])
In CSR v. Bouwhuis (1991) 7 NSWCCR 223 at [251]–[252] Priestley JA, with whom Samuels JA agreed, said:

“On any approach to the assessment of damages for personal injury whether or not it is legitimate to look for and apply patterns established by the cases in regard to particular types of injury, attention must always be paid to the individual circumstances of each plaintiff’s case. Injuries of a more or less identical kind although often they will affect plaintiffs in much the same way may also affect different individuals quite differently both in a physical sense and in the impact on family, social, artistic, sporting or other aspects of their lives. Thus, every case must be looked at on the footing that it is, as it in fact is, different from every other case. The difference in the results of similar injuries will be smaller or larger dependent on the Court’s assessment of the effect of the injury on the particular plaintiff.”

As the trial judge, I am expected to draw on my experience in settling on the correct figure. Provided I do not allow myself to be "overborne by what other minds [had] judged right and proper for other situations" (see Planet Fisheries at 125), it is perfectly proper to have regard to other decisions. As Priestley JA, with whom Handley and Fitzgerald JJA agreed, said in Peirce [17]-[18]:

"The trial judge's experience undoubtedly include direct knowledge of his own earlier decisions in personal injury cases and knowledge of cases decided by other judges in the Dust Diseases Tribunal. This knowledge, along with that knowledge of particular cases which sinks into a generalised mass in a trial lawyer's mind, would produce the judge's "general experience" (Planet Fisheries at 125) giving rise to the "general awareness" (Planet Fisheries at 125) which the High Court granted a judge making an assessment could give weight to in the form of "current general ideas of fairness and moderation" (Planet Fisheries at 125).

In James Hardie & Coy Pty Limited v. Newton (1997) 42 NSWLR 729 the Court of Appeal confirmed this approach. Mahoney AP observed in Sullivan v. Micallef; Macquarie Pathology Services Pty Limited v. Micallef [1994] Aust Torts Reports 61,787 at 61,790, Mahoney AP observed “There is no market price for pain”. However, as Mahoney AP acknowledged, and the Court accepted in Newton, principles of proportionality are relevant.
Handley JA observed in Newton at [732]:

“Some day the High Court will explain why awards of general damages in personal injury cases should not be compared, as required by Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118, but defamation awards can be compared with awards for general damages in personal injury cases (Carson v. John Fairfax & Sons Pty Limited (1993) 178 CLR 44) and sentences of co-offenders must be compared (Lowe v. The Queen (1984) 154 CLR 606; Jones v. The Queen (1993) 67 ALJR 376).”

The common law prevents a trial judge from comparing cases and verdicts (see Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118; Moran v. McMahon (1985) 3 NSWLR 700; Carson v. John Fairfax & Sons Pty Limited (1993) 178 CLR 44 at 59; Hunter Area Health Service v. Marchlewski (2000) 51 NSWLR 268).
However, in Chulcough v. Holley (1968) 41 ALJR 336 at 338, in a passage referred to and not disavowed in Planet Fisheries, Windeyer J said:

“Once it is admitted that money and physical and mental incapacity for the enjoyment of a full life are in truth incommensurable, it seems meaningless to speak of a verdict which is out of proportion unless some monetary standard or pattern be assumed. Of course no two cases are exactly alike. Bodily harm may be similar, but the consequences for individuals vary. One award is never really a precedent for another case. But we would I think be ignoring facts if we were to say thar judges when asked to consider whether a particular verdict is beyond the bounds of reason – either excessive or inadequate – are mindful of what was done in other cases, similar or dissimilar. If we were to say that, we would, I consider deceive ourselves, as well as belie statements in judgments of high authority.”

Nothing in Planet Fisheries v. La Rosa precludes such an approach: Wallaby Grip Limited v. Peirce.
The approach of the Tribunal to the assessment of general damages in a terminal asbestosis case was considered recently by Scotting J in Boland v. Amaca Pty Limited [2020] NSW DDT 4. In that case, Scotting J awarded $350,000.00 for general damages. Mr Boland was 84 at the time of trial. He had about 12 months to live due to progressive asbestosis. The bulk of his symptoms requiring care and assistance began in about June 2018.
Whilst Mr Boland did not have any co-morbidities that contributed to his symptoms, he suffered chest pain. He had undergone surgery on three occasions to treat the recurring pleural effusions. His description of the procedures were that they were uncomfortable and involved considerable pain. Mr Headon does not make complaint of pain and has not undergone surgery as yet for his symptoms of asbestosis, and there has not been a suggestion that he might be likely to do so. But as with Mr Boland, Mr Headon’s condition is deteriorating and has done so to a significant stage already. It will likely cause his death.
The defendant very fairly conceded that Mr Headon continues to suffer from symptoms of asbestosis, shortness of breath, which he believes is worsening and for which he now takes medication. The defendant also concedes that the plaintiff continues to suffer from fatigue and a cough and accepts that this is likely to be associated with traction bronchiectasis, a feature of asbestosis. I noticed that the plaintiff coughed a lot whilst giving evidence before me, which clearly caused him some distress.
The plaintiff and his wife both swore affidavits which came into evidence (Exhibits A and B respectively). The Form 1 Statement of Particulars also came into evidence as Exhibit C. The defendant highlighted that there were some differences between what was contained in the Form 1, the affidavits and the oral evidence, and that is correct. Thus, to the extent that the Form 1 varies from the affidavit and oral evidence of Mr and Mrs Headon, I prefer the affidavit and oral evidence of both Mr and Mrs Headon.
From that evidence I accept that the plaintiff suffers from breathlessness, shortness of breath, extended periods of coughing regularly, fatigue, light headedness and frustration as a consequence of his asbestosis. I further accept that the back pain that he had experienced is not a feature of his discomfort presently, and that his Parkinson’s disease is well controlled by medication. He demonstrated such in the witness box before me as previously discussed.
I am comforted in that view by the evidence given jointly by Dr Deller and Dr Brown and their reports which came into evidence. Both experts agreed that there were no images to support a diagnosis of emphysema present on the HRCT, nor any other smoking related pathology. They agreed that there may have been changes that demonstrate COPD, but that if the plaintiff did not have asbestosis related changes, the COPD would not disable him.
The experts also agreed that there has been a significant decline in the plaintiff’s respiratory condition over the last four years as he has become more breathless on exertion and will most likely require oxygen in the next year. Their evidence was that the asbestosis has caused a stiffening of his lungs and his lung function tests demonstrate a deterioration of the values which is indicative of a poor outcome. The demonstrable reduction is in the amount of 25% over a period of three years — which I accept is a significant diminution.
The experts agreed that the evidence of bronchiectasis is as a consequence of the scarring from the fibrosis, and that in many cases this can be as a result of a mixed picture of asbestosis and COPD, however, in the plaintiff’s case there is no evidence of an obstructive component (attributable to COPD if present) and as such the restrictive impairment is as a consequence of his asbestosis.
In another asbestosis case, Finnane J awarded $350,000 for general damages: Tullipan v. Amaca Pty Limited [2014] NSWDDT 420. The Court of Appeal refused to disturb it: Amaca Pty Limited v. Tullipan [2014] NSWCA 269 (including by reference to a comparison of the award with the then maximum applicable under the Civil Liability Act 2002 (NSW)). The defendant asserts that Mr Tullipan’s condition was far more severe than the plaintiffs.
The defendant refers my attention to the decision in Lorraine Fay Sim v. Allianz Australia Limited [2010] NSWDDT 19 where Curtis J awarded $75,000.00 in general damages to the plaintiff who had asbestosis. However, I note that was a decision of 12 years ago.
The defendant makes the following submission (Amaca’s written submissions [31]):

“An award in the middle, the equivalent of 50% of a mesothelioma claim is reasonable ie $180,000. Interest should be back to 2013 but on half the sum awarded.”

I accept the submission about interest and have calculated it in that fashion. However, I do not accept the submission that the general damages ought be half that awarded to a plaintiff who has mesothelioma.
The evidence reflects that the plaintiff first experienced symptoms, including shortness of breath, in about mid-2013 and his condition has deteriorated since then. I accept that the medical evidence has established that he has been suffering from symptoms associated with asbestosis for approximately 9 years. In all likelihood, the plaintiff will continue to suffer for the next 5 years from symptoms associated with his asbestosis and ARPD, and his condition will continue to decline, increasing his suffering. He is likely to require oxygen in the next 12 months.
This is a unique case, as many of these cases are. Prior to the onset of his symptoms, the plaintiff had been fit and well and living his life to the full. He immensely enjoyed travelling around Australia in a van and to Bali on many many occasions, all of which has been taken from him. He was strong and independent and is now almost entirely reliant on others for basic self-care. His personality has changed, and not for the better, and I believe that is because of his frustration with having to live with the symptoms and restrictions caused by his symptoms from the asbestosis.
The disease has caused increasing breathlessness over a period of almost 10 years which has imposed upon the plaintiff a very sedentary life. His suffering will likely increase over the remaining 5 years of his life.
In Noel Doughan v. Amaca Pty Ltd [2010] NSWDDT 13 Curtis J awarded the plaintiff, who suffered from asbestosis, general damages in the amount of $150,000, but made the following comments:

“[38] Breathlessness is a terrible affliction, compounded in the case of Mr Doughan, by the sure knowledge that it will worsen and almost certainly cause his premature death.
[39] I bear in mind that, unlike many other sufferers of lung disease, Mr Doughan does not and will not suffer physical pain, as well as the fact that he is of advanced years and was, before the onset of breathlessness, limited somewhat by the effects of age and the motor vehicle injury. To my mind the most relevant consideration in the assessment of damages is the fact that the defendant’s tort will almost certainly cost Mr Doughan his life, and he knows it”.

I allow general damages in the sum of $350,000.00.
Interest is payable at 2% per annum on the part allocated to the past, which I find to be $150,000.00, for 9 years and 7 months in the sum of $28,500.00.

LOSS OF EXPECTATION OF LIFE

The plaintiff is currently aged 82 years and as such, on the life expectancy tables, he has a life expectancy of 8 years. Unfortunately, I accept the evidence of Dr Deller is that the asbestosis will result in his death in about five years from March 2022 and that view is supported by Dr Brown and Dr Mutalithas.
I accept that the medical evidence points strongly to a life expectancy of five years, thus a loss of three years. I will adopt the convention of the Tribunal and allow $1,000.00 per year, and make an award of $3,000.00

PAST OUT-OF-POCKET EXPENSES

The past out-of-pocket expenses are agreed in the sum of $28,570.00.

FUTURE OUT-OF-POCKET EXPENSES

In his report dated 14 March 2022, Dr Deller sets out the likely cost of the future management of the plaintiff’s asbestosis. In his report of 14 March 2022 (Exhibit D) he sets out the modifications that the plaintiff will require to facilitate safe access to and around his home. Schedule B to the plaintiff’s written submissions sets out the amounts claimed for medical expenses, assistive equipment and home modifications and services of an occupational therapist to assist with the appropriate modifications.
The plaintiff, in that schedule, claims the cost of the anti-fibrotic drug Nintedanib is claimed for only a limited period of 12 months. The defendant objects to the cost of this item on the basis that it is not certain whether the plaintiff will be prescribed the drug at all, whether he will take it for 12 months, and whether he will be entitled to the benefit of the PBS scheme. This is referred to in Dr Deller’s report (Exhibit D at [6]) in answer to a question put to him by the plaintiff’s solicitor, as follows:

“Q: Whether any further operative procedures or other medical treatment is or may be required in respect of Mr Headon’s condition of asbestos condition and if so, provide an estimate of such costs?
A: Anti-fibrotic therapies will soon be available on the Pharmaceutical Benefits Scheme for Progressive Fibrosig Interstitial Lung Disease (PF-ILD) regardless of the aetiology. The inclusion and exclusion criteria for use on the PBS are at this stage uncertain. Mr Headon’s Respiratory Physician may consider whether these medications could be of assistance to him in the coming years after a discussion about eligibility and potential adverse effects which are common in older individuals.
Assuming that Mr Headon is considered for the treatment, Nintedanib costs $3,398 per month.
No other operative or medical treatments are available.”

There is little evidence to support the inclusion of this cost. The plaintiff did not indicate that he would take it and there is no evidence that it would certainly be recommended to him, so I disallow that cost.
I note that the schedule of future out-of-pocket expenses also includes a claim for “Hospital/hospice care for end of life” in the sum of $30,000.00, which I assume is based on Dr Deller’s estimate of “only a period of months of complete dependency prior to his death” (Exhibit D).
I accept the submission of the defendant that the plaintiff is not entitled to that allowance for complete dependency in a medical facility and personal care at home for the same period of time. I agree with that submission. I have allowed the cost of hospice or aged care facility under future care.
I accept that in light of all the evidence, most of which was unchallenged, the amount that is reasonable and should be paid for by the defendant for future out-of-pocket expenses is the sum of $86,631.05 in accordance with the items detailed in Schedule B, but not including $30,000 for hospice or hospital care, or the $40,776.00 for the Nintedanib treatment.

DAMAGES FOR PAST GRATUITOUS SERVICES

In Luntz Assessment of Damages for Personal Injury & Death, 4^th edition at 4.6.1, Griffiths v. Kerkemeyer damages is described as follows:

“Persons who are injured are often assisted by relatives or friends, who provide nursing, perform domestic chores, help with travel or look after a business during the period of incapacity…[t]he law is now clearly settled that the need for the services entitles the plaintiff, in the absence of a statutory prohibition or limitation, to recover the reasonable costs of meeting these needs at commercial rates…Some plaintiffs may have greater needs than others; the test is subjective and the defendant must take the particular plaintiff as found.” Luntz Assessment of Damages for Personal Injury and Death, 4^th edition, para 4.6.1

The plaintiff’s solicitors qualified Amy Vincent, Occupational Therapist, to assess the plaintiff’s need for care and assistance. Her reports of 9 December 2021 and 3 June 2022 became Exhibit F

Schedule C to the plaintiff’s written submissions sets out the claim for past Griffiths v. Kerkemeyer damages and relies on the figures contained in the reports of Amy Vincent (Exhibit F). Both parties agree that the calculation ought be based on the commercial rates of care in Queensland, and that the figure is to be calculated using the 5% tables.
Since about 1 December 2020 until about 15 November 2021, and the development of his asbestos related conditions, the plaintiff’s wife had to take over many of the plaintiff’s usual activities. The plaintiff still participated in household chores up to the end of 2021 but since then has not been able to help his wife with any of the cooking and cleaning tasks around the house.
From about November 2021, Mrs Headon increased the tasks she performed around the home. The plaintiff asserts that from November 2021 and continuing Mrs Headon has provided about 7 hours and fifty minutes (7.83 hours) per week of active assistance plus an additional hour each day (7 hours per week) of passive care and supervision when the plaintiff is in the shower, dressing, putting on his shoes and socks, and fetching things for him.
In a report dated 9 December 2021, Ms Amy Vincent, Occupational Therapist, set out her assessment of the plaintiff’s needs for care and assistance as a result of his illness in the past, up to November 2021. She assessed him as being in a moderate dependency stage consistent with ECOG phase 2. Ms Vincent considered that the plaintiff required 8.58 hours per week of care and assistance, plus an additional 3.5 hours per week “at a minimum” of supervision/stand by assistance when undressing/showering/drying and dressing: [5.1.24 – 5.1.26 of Ms Vincent’s report].
I accept the submission of the defendant that the care and assistance provided to the plaintiff in the past has been moderate, and over about an 18-month period.
Having regard to the evidence given by Mr and Mrs Headon orally and in affidavits, I am of the view that the appropriate care for the period 1 December 2020 to 30 November 2021 to be 1 ½ hours per week. I have allowed the figure of $60.00 per hour as an average of the varying rates for 52 weeks (Total: $4,680.00).
For the period from 1 December 2021 to date I have allowed 14 hours per week at the rate of $60.00 per hour for 41 weeks as I accept that the plaintiff needed additional assistance (Total: $34,440.00).

INTEREST ON PAST GRIFFITHS V KERKEMEYER DAMAGES

On the assumption that the past loss is $39,120.00, interest at 2% from 1 December 2020 to date (approximately 1.66 years) amounts to $1,298.78.

DAMAGES FOR FUTURE COMMERCIAL CARE AND ASSISTANCE – SECTION 15A CIVIL LIABILITY ACT 2002 (NSW)

I accept that the evidence establishes that the plaintiff’s asbestosis will progress causing increasing breathlessness, disability, and significantly increased amounts of dependency on care and supervision. The plaintiff will have to pay for this care and supervision. He and his wife testified they would do so (T13 & T25). The plaintiff’s probable need for care and assistance in the future as a result of the disabilities caused by his asbestosis were the subject of evidence from occupational therapist Ms Vincent and respiratory specialists Drs Brown, Deller and Mutalithas. Generally, they supported the estimates provided by Ms Vincent.
In her report dated 9 December 2021, Ms Vincent explained the various stages of dependency on care and supervision including moderate dependency (see above), high dependency and complete dependency. She considered that the plaintiff was currently in moderate dependency but that he would progress to high and then complete dependency. How long each dependency phase would last was not a matter for her but rather for Drs Deller and Brown.
Ms Vincent wrote:

“High Dependence
5.1.27 In my opinion, ECOG Grade 3 would represent high dependence. ECOG Grade 3 is where the patient is capable of only limited self-care, and confined to bed or chair more than 50% of waking hours. As indicated by the more specific Karnofsky Performance Scale, in this stage, the patient is unable to care for themselves and they require the equivalent of institutional or hospital level care. As such, the requirements for care and assistance increase significantly in this phase, particularly for someone who is continuing to be cared for in the community.
5.1.28 Because the patient is confined to a bed or a chair for more than 50% of the waking hours, they require increased assistance with preparing and retrieving snacks, drinks, medications, other forms of pain management (e.g. hot packs) and general entertainment such as books, phone and the TV remote. The patient is limited with self-care and requires hands on assistance with showering, toileting, dressing and grooming. The patient is completely unable to participate in household or domestic activities of daily living. The patient would be limited with mobilising and would require hands on assistance or supervision +/- a mobility device. They may also require assistance with turning in bed or repositioning from a pressure care management perspective. The patient may require additional assistance overnight with pain management techniques, repositioning and toileting. Ongoing emotional support is necessary. The patient would require assistance to drive to and from medical appointments.
5.1.29 In my opinion, 12 to 16 hours per day represents a reasonable estimate of the level of assistance that Mr Headon would initially require (including active and passive types of care) in this stage directly as a result of his diagnosis of asbestosis. The commercial equivalent cost of providing this level of assistance would be $2,703.12 to $3,604.16 per week.
5.1.30 In my opinion, as Mr Headon progresses through ECOG Grade 3, his requirements for care and assistance will continue to increase to the point where he will require assistance 24 hours per day. In my opinion, he will require the presence of someone in the home on a continuous basis to provide active assistance as required (e.g. throughout the day for meals, retrieving items, assisting with mobility and self-cares; and overnight as needed for provision of breakthrough pain medication, repositioning and toileting assistance) and indirect assistance at all other times to ensure his ongoing safety (e.g. in case of falls/ other emergency). The equivalent cost of providing this level of assistance in the home setting would be $5,406.24 per week.
5.1.31 In addition, there would be an ongoing requirement for assistance with domestic tasks (3.66 hours per week at a cost of $117.78 per week).
Complete Dependence
5.1.32 In my opinion, ECOG Grade 4 would represent the complete dependence phase. ECOG Grade 4 signifies the transition to significant disability. In this stage, the patient is completely disabled and totally confined to a bed or a chair, and unable to carry out any self-care. According to the Karnofsky Performance Scale, at this point in time the patient is very ill, and they require active supportive treatment.
5.1.33 In my opinion, this stage would be associated with full time, 24 hour per day care. Assistance would be required with pain management, managing supplementary oxygen and monitoring flow rates (as needed) and assistance with all basic cares such as toileting, bathing (bed bath), hygiene, mouth cares and feeding. Emotional support during this time is also essential.
5.1.34 In my opinion, care and assistance is required 24 hours per day during the complete dependence phase.
5.1.35 The equivalent cost of providing this level of assistance in the home setting would be $5,406.24 per week.
5.1.36 In addition, there would be an ongoing requirement for assistance with domestic tasks (3.66 hours per week at a cost of $117.78 per week).
5.1.37 As indicated by the Karnofsky Performance Scale, when the patient is moribund (at the point of death) the fatal processes are progressing rapidly. In my opinion, at this point, Mr Headon would continue to require 24 hour per day care, however this may need to be delivered in a hospital or palliative care hospice setting where there are appropriate nursing and palliative care staff on hand to deliver the end of life care.
5.1.38 It is my understanding that this level of care would cost in the order of $10,000 per week…”

The plaintiff submits this is an appropriate award for this head of damage, as the evidence supports it.
Dr Deller (Exhibit D) in answer to a question put to him in his letter of instruction said the following:

“5. Based on your knowledge of the various ECOG dependency phases and your clinical experience with asbestos disease, how long will Mr Headon remain in the moderate dependency phase and whether he will progress to any higher ECOG dependence phases being high and complete result of his condition of asbestosis and, if so, when will this likely occur?
Most progressive medical conditions follow an exponential decay curve over time in that they progress slowly at first and accelerate over time as the disease declines.
Based on a life expectancy of up to 5 years it is likely that Mr Headon will remain at a moderate dependency stage for up to 3 years before progressing to high dependency for up to 2 years with only a period of months of complete dependency prior to his death.”

In my view, the estimates provided by Ms Vincent are exaggerated. There is no identification as to how the various estimates came about and some recommendations in the high dependency phase seem to be based on the suggestion that the plaintiff will suffer pain. The evidence is that the plaintiff has not experienced pain at all as a consequence of his asbestosis.
The defendant submits that in assessing the plaintiff’s need for future care, there must be factored in a very large discount factor on the basis that the plaintiff has been diagnosed with Parkinson’s disease. The defendant asserts that the plaintiff’s symptoms were limited in August 2019 and the diagnosis was made in July 2020, which they submit suggest a progression of symptoms, particularly leading up to the report in April 2020 of Dr Sebastian where quite florid symptoms were recorded which preceded the driving test.
The defendant further submits that these symptoms were noted by Dr Brown both in his report of May 2021 and in cross-examination. They assert that the plaintiff and his wife attempted to play down these symptoms in the Tribunal, including denials by Mr & Mrs Headon as to any symptoms occurring.
In response, the plaintiff submits:

“Any contention by the defendant that the amounts for future care and services should be reduced on account of comorbidities or vicissitudes, is unjustified. There is no evidence that the plaintiff had other conditions that might reduce his life expectancy or for which he might need care. Despite carrying the evidentiary onus of doing so, the defendant has not even attempted to call evidence to prove this. Indeed, there is a prospect that the plaintiff will live longer than a further 5 years with asbestosis resulting in the plaintiff’s damages calculations being significantly underestimated.” (Plaintiff’s written submissions [190])

The principles in Malec v. Hutton (1990) 169 CLR 638 are relevant to this approach to the assessment of damages into the future. Deane, Gaudron and McHugh JJ state as follows:

“[1] The issue in this appeal concerns the valuation of a plaintiff’s damage, caused by the tortious conduct of the defendant and after it is found that it is more likely than not that the damage would have occurred in any event as a result of conditions or events for which the defendant is not legally responsible.”

Their Honours further stated:

“[10] Whatever the precise chance that the plaintiff would have had developed a similar neurotic condition, the majority in the Full Court erred in refusing to award him any damages for the care and attention given to him by his wife and for the neurotic condition from which he presently suffers. The plaintiff is entitled to damages for pain and suffering on the basis that his neurotic condition is the direct result of the defendant’s negligence. Those damages must be reduced, however, to take into account of the chance that factors, unconnected with the defendant’s negligence, might have brought about the onset of a similar neurotic condition. Likewise, the plaintiff is entitled to compensation for the care and attention provided by his wife. Again that award must be reduced to take into account of the chance that factors, unconnected with the defendant’s negligence would have necessitated similar care and attention.”

A discount for vicissitudes allows for the possibility that after the trial, adverse events unrelated to the effects of the defendant’s tortious conduct, may occur and have an impact on the care that the plaintiff requires: Fuller v. Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305 at [63] per McFarlane JA.
The conventional allowance for vicissitudes in NSW is 15%. In FAI Allianz Insurance Ltd v. Lang [2004] NSWCA 413 at [18] Bryson JA described the discount as follows:

“… is an expedient and approximate resolution of many imponderables, and the difficulty of producing a justification for any greater or lower figure in a particular case tells strongly against departing from the conventional figure.”

In State of New South Wales v. Moss (2000) 54 NSWLR 356; Heydon JA said at [100]:

“… [w]hile 15 per cent is the starting point, and indeed, as the figure [is] used in most cases, usually the finishing point as well, it can be departed from in a appropriate case.”

In Wynn v. NSW Ministerial Corporation (1995) 184 CLR 485 at [498], the Court found that the discount for vicissitudes can be increased or reduced depending upon the individual circumstances of the plaintiff.
With regard to the claim for future care, I accept the submission that the plaintiff’s care is at present, moderate, and I am of the view that is likely to remain at that level for the next three years, and I have therefore allowed 14 hours per week, at a rounded figure of $60 per hour for active and passive care together.
All of the evidence suggests that Mr Headon will thereafter increase to what has been described as a high level of dependency. To my mind, Ms Vincent’s assessments are inflated and do not clearly set out the basis upon which she comes to her estimations.
Doing the best I can, I am of the view that when the plaintiff moves to a high level of dependency – likely September 2025 he will require 12 hours per day of personal assistance and I have allowed that at $65.92 per hour for 78 weeks. I do not accept that the plaintiff will need additional domestic assistance in addition to the amount allowed for personal assistance.
Unfortunately, in my view the plaintiff is likely to decline to a level of complete dependence in about 2 September 2026 for a period of about 6 months. For the first 12 weeks of that I have allowed 24 hour care at $56.18 per hour.
For the remaining 12 weeks of the plaintiff’s expected life, I believe it is likely that he will require hospitalisation which accords roughly with Dr Deller’s expressed view and despite the evidence given by Mr & Mrs Headon as to their desire that Mr Headon remain at home. I have allowed the figure proposed by the defendant of $8,000.00 per week.
The calculations have been done using the commercial rates and using the 5% tables as agreed by the parties.
The question of whether these figures ought be subject to a deduction to allow for the possible intervention of other factors has been addressed above. However, whilst I do not accept that there ought be a significant deduction factor, as pressed by the defendant due to Mr Headon’s diagnosis of Parkinson’s disease (which I note seems to be well controlled by the Kinson medication) there does need to be some allowance for the vicissitudes of life. I propose to apply the conventional figure of 15% to future care. I note the defendant conceded that this deduction should not be applied to future medical expenses and renovations.
PAST GRIFFITHS v KERKEMEYER DAMAGES

Period

Description

Hours per week

Rate per hour

No. of weeks

Total Cost

01.12.2020-30.11.2021

Moderate care

1.5

$60

52

$4,680.00

01.12.2021- 16.09.2022

Moderate care

14

$60

41

$34,440.00

TOTAL:

$39,120.00

Plus Interest @ 2% x 1.66 years

$1,298.78

FUTURE GRIFFITHS v KERKEMEYER DAMAGES

Period

Description

Hours per day

Rate per hour

No. of weeks

Rate per week

Total Cost

16.09.2022-16.09.2025

Moderate care

2

$60 (rounded)

156

$840 x 145.6 (deferral rate on 5% tables for 3 years)

$122,304.00

17.09.2025-16.03.2027

High dependency

12

$65.92

78

$5,537.28 x 0.864 (multiplier on 5% tables for 1.15 years)

$373,168.30

17.02.2027-16.06.2027

Complete dependency

24 (168 hrs pw)

$56.18

12

$9,438.24 x 0.80 (multiplier for 4 yrs then multiplied x 12 wks)

$90,607.10

17.06.2027-17.09.2027

Complete dependency – Hospice care

12

$8,000 pw as conceded by defendant x 0.795 (multiplier for 4 yrs then multiplied x 12 weeks)

$76.320.00

TOTAL:

$662,399.47

SYNOPSIS OF DAMAGES

General damages

$ 350,000.00

Interest on past general damages

- $150,000 x 2% for 9 years 7 months

28,500.00

Loss of expectation of life

3,000.00

Past out-of-pocket expenses

28,570.00

Future out-of-pocket expenses

86,631.05

Past Griffiths v Kerkemeyer damages

39,120.00

Interest on Past Griffiths v Kerkemeyer damages

1,298.78

Future commercial care and services damages $662,399.47 less 15% for vicissitudes

563,039.55

TOTAL:

$1,100,159.38

ORDERS:

I make the following orders:

Judgment for the plaintiff in the sum of $1,100,159.38.

Defendant to pay plaintiff’s costs as agreed or assessed.

Pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) as amended, the plaintiff may claim further damages should the plaintiff develop an asbestos related induced carcinoma, lung cancer and mesothelioma.

If any alternate order is sought, the parties to notify my associate within 7 days.

******

Decision last updated: 19 September 2022

Medium Neutral Citation:	Headon v Amaca Pty Limited [2022] NSWDDT 5
Hearing dates:	9, 10 & 17 August 2022
Date of orders:	19 September 2022
Decision date:	19 September 2022
Before:	Strathdee, J
Decision:	(1) Judgment for the plaintiff in the sum of $1,100,159.38. (2) Defendant to pay plaintiff’s costs as agreed or assessed. (3) Pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) as amended, the plaintiff may claim further damages should the plaintiff develop an asbestos related induced carcinoma, lung cancer and mesothelioma. (4) If any alternate order is sought, the parties to notify my associate within 7 days.
Catchwords:	DUST DISEASES TRIBUNAL – damages – assessment of damages on common law principles – asbestosis and asbestos related pleural disease (“ARPD”) – general damages – interest on general damages – damages for personal care and assistance – future out-of-pocket expenses DAMAGES – assessment – tort – personal injuries – pain and suffering – future or potential events – likelihood of occurrence – relevance to measure of damages
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Amaca Pty Limited v. Tullipan [2014] NSWCA 269 Boland v. Amaca Pty Limited [2020] NSW DDT 4 Carson v. John Fairfax & Sons Pty Limited (1993) 178 CLR 44 Chulcough v. Holley (1968) 41 ALJR 336 CSR v. Bouwhuis (1991) 7 NSWCCR 223 Expokin Pty Ltd trading as Festival IGA Supermarket and Graham [2000] NSWCA 267 FAI Allianz Insurance Ltd v. Lang [2004] NSWCA 413 Fuller v. Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305 Harritonv. Stephens [2004] NSWCA 93; (2004) 59 NSWLR 694 Hunter Area Health Service v. Marchlewski (2000) 51 NSWLR 268 James Hardie & Coy Pty Limited v. Newton (1997) 42 NSWLR 729 Livingstone v. Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25 Lorraine Fay Sim v. Allianz Australia Limited [2010] NSWDDT 19 Malec v. Hutton (1990) 169 CLR 638 Moran v. McMahon (1985) 3 NSWLR 700 Noel Doughan v. Amaca Pty Ltd [2010] NSWDDT 13 Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118 Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118 Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164 State of New South Wales v. Moss (2000) 54 NSWLR 356 Sullivan v. Micallef; Macquarie Pathology Services Pty Limited v. Micallef [1994] Aust Torts Reports 61,787 Todorovic v. Waller [1981] HCA72; (1981) 150 CLR 402 Tullipan v. Amaca Pty Limited [2014] NSWDDT 420 Wallaby Grip Limited v. Peirce [2000] NSWCA 299 Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158 Wynn v. NSW Ministerial Corporation (1995) 184 CLR 485
Category:	Principal judgment
Parties:	Warwick Headon (Plaintiff) Amaca Pty Limited (Formerly known as James Hardie & Coy Pty Ltd) ACN 000 035 512 (Under NSW Administered Winding Up) (Defendant)
Representation:	Counsel: Mr S Tzouganatos appeared for the Plaintiff Mr J Sheller SC appeared for the Defendant Solicitors: Mr S Ryan, VBR Lawyers (Plaintiff) Mr M Victorsen, Holman Webb Lawyers (Defendant)
File Number(s):	2021/277716

Period	Description	Hours per week	Rate per hour	No. of weeks	Total Cost
01.12.2020-30.11.2021	Moderate care	1.5	$60	52	$4,680.00
01.12.2021- 16.09.2022	Moderate care	14	$60	41	$34,440.00
TOTAL:	$39,120.00
Plus Interest @ 2% x 1.66 years					$1,298.78

Period	Description	Hours per day	Rate per hour	No. of weeks	Rate per week	Total Cost
16.09.2022-16.09.2025	Moderate care	2	$60 (rounded)	156	$840 x 145.6 (deferral rate on 5% tables for 3 years)	$122,304.00
17.09.2025-16.03.2027	High dependency	12	$65.92	78	$5,537.28 x 0.864 (multiplier on 5% tables for 1.15 years)	$373,168.30
17.02.2027-16.06.2027	Complete dependency	24 (168 hrs pw)	$56.18	12	$9,438.24 x 0.80 (multiplier for 4 yrs then multiplied x 12 wks)	$90,607.10
17.06.2027-17.09.2027	Complete dependency – Hospice care	12	$8,000 pw as conceded by defendant x 0.795 (multiplier for 4 yrs then multiplied x 12 weeks)	$76.320.00
TOTAL:	$662,399.47

General damages	$ 350,000.00
Interest on past general damages - $150,000 x 2% for 9 years 7 months	28,500.00
Loss of expectation of life	3,000.00
Past out-of-pocket expenses	28,570.00
Future out-of-pocket expenses	86,631.05
Past Griffiths v Kerkemeyer damages	39,120.00
Interest on Past Griffiths v Kerkemeyer damages	1,298.78
Future commercial care and services damages $662,399.47 less 15% for vicissitudes	563,039.55
TOTAL:	$1,100,159.38