Hilda McNamara v Amaca Pty Limited

[2008] NSWDDT 36

Dust Diseases Tribunal

of New South Wales

CITATION:	Hilda McNamara v Amaca Pty Limited [2008] NSWDDT 36
PARTIES:	Hilda McNamara (plaintiff) Amaca Pty Ltd (defendant)
MATTER NUMBER(S):	8190 of 2008
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	DUST DISEASES TRIBUNAL :- Damages
LEGISLATION CITED:	S100 Civil Law (Wrongs) Act 2002 (ACT)
DATES OF HEARING:	13 November 2008
DATE OF JUDGMENT:	5 December 2008
LEGAL REPRESENTATIVES:	Mr G F Little SC instructed by Turner Freeman Brisbane appeared for the plaintiff Mr J C Sheller instructed by Holman Webb Lawyers Brisbane appeared for the defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number 8190 of 2008

Hilda McNamara

v

Amaca Pty Limited

5 December 2008

JUDGMENT

CURTIS J

1. The plaintiff, Hilda McNamara, has contracted mesothelioma as a result of inhaling asbestos dust and fibre liberated from building products used in the renovation of her home in Canberra between 1972 and 1983. The building products were manufactured by Amaca Pty Limited (Amaca), which admits liability.

General damages

2. Mrs McNamara was born on 12 May 1937 and is now 71 years old. In recent years her life has been blighted by sadness. In 2000 her brother Donald, who was a carpenter, died of mesothelioma, also at the age of 71. Mrs McNamara was greatly affected by his illness and his suffering. She said that he "suffered a terrible death" because there was very little that doctors could do for him. In February 2006 Mrs McNamara's daughter Sandra, then 39 years old, died of cancer, leaving two young children. Mrs McNamara cared for Sandra, and nursed her in the terminal phase. She was significantly affected by this loss.

3. In 2005, Mrs McNamara's common-law husband, Mr Alan Hardman, also a carpenter, fell several metres from a balcony that he was constructing at the home of Mrs McNamara's daughter and her husband. He suffered crush fractures to his thoracic spine causing incomplete tetraplegia and severe disablement. Mrs McNamara has cared for him since his discharge from hospital.

4. Before the onset of her disease Mrs McNamara was in good health and played regular golf and tennis. She enjoyed the company of her daughter’s children who live nearby, and also the company of her son’s children who live with their father in Canberra, but stayed with her for several weeks during Christmas holidays.

5. In April 2008, Mrs McNamara began to experience shortness of breath, which worsened at a rate which she found quite alarming. By the time she saw her general practitioner some three weeks later, she was only able to walk about 25m without having to stop. On 24 April 2008 Mrs McNamara was admitted to the Gold Coast Hospital. X-rays showed a large left-sided pleural effusion that had caused her left lung to completely collapse, and also a smaller pleural effusion on the right side. Mesothelioma was diagnosed after the fluid was drained.

6. A talc pleurodesis was performed at Prince Charles Hospital which was not effective. Shortly after discharge from the hospital, Mrs McNamara was taken to the Gold Coast Hospital by emergency ambulance with extreme shortness of breath caused by a further pleural effusion. She then accepted the recommendation that she should undergo a radical and aggressive procedure whereby the pleura was to be completely removed from around her lungs. She suffered the distress of the surgery being postponed on three separate occasions because of hospital constraints. The surgery was finally performed on 17 July 2008. Recently Mrs McNamara was hospitalised for 10 days for the treatment of a chest infection, being discharged on 4 November 2008.

7. Mrs McNamara has agreed to a course of chemotherapy although she had witnessed that such treatment when administered to her brother and daughter left them with very significant side-effects for little benefit.

8. Mrs McNamara says that she suffers "significant and extreme emotional anxiety" thinking about her life expectancy and the future needs of Mr Hardman.

9. It is unnecessary to here describe the extreme physical suffering and despair which will be visited upon Mrs McNamara before her premature death.

10. I award general damages in the sum of $250,000. I allow interest on $125,000 for six months at 2 per cent; $1250.

Agreed damages

11. Loss of expectation of life $17,500

Past out-of-pocket expenses $50,368.50

Future medical expenses $60,000

Past and Future Griffiths v Kerkemeyer $50,000

12. Damages in this action are governed by the laws of the Australian Capital Territory. S100 of the Civil Law (Wrongs) Act 2002 (ACT) provides as follows:

(1) A person's liability for an injury suffered by someone else because of a wrong includes liability for damages for any resulting impairment or loss of the injured person's capacity to perform domestic services that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured.

(2) In an action for the recovery of damages mentioned in subsection (1), it does not matter—

(a) whether the injured person performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; or

(b) that the injured person was not paid to perform the services; or

(c) that the injured person has not been, and will not be, obliged to pay someone else to perform the services; or

(d) that the services have been, or are likely to be, performed (gratuitously or otherwise) by other people (whether members of the household or not).

(3) ….

13. A claim is made in respect of Mrs McNamara's loss of capacity to perform domestic services for her daughter’s children who, living nearby, often stay with her, and her son’s children, who reside with her for two weeks each Christmas. I do not believe that these children constitute part of Mrs McNamara's household and disallow that claim.

14. The claim for domestic services provided to Mr Hardman falls obviously within the section.

15. The section does not qualify the services which Mrs McNamara might reasonably have been expected to perform for Mr Hardman by any reference to his need for those services. Nevertheless, the word “reasonably” permits an extension of the compensable range of services in his case beyond that reasonable limit which might apply to services provided, out of natural love and affection, to able-bodied spouses.

16. As a result of his injuries Mr Hardman has considerable weakness and loss of movement in his arms and legs. He can walk short distances on level ground, with the aid of a stick or external support, although he is very unsteady. His symptoms wax and wane. There are times when he has trouble dressing, and times when he cannot rise from his chair. From time to time he falls. Because of unsteadiness he cannot safely carry cups of hot coffee.

17. Since Mr Hardman's discharge from hospital, Mrs McNamara has provided to him domestic services, which include shopping, cooking, laundry, cleaning, gardening, lawn mowing, and walking his dog. At times she assists him in dressing. Most importantly, Mr Hardman has the benefit of Mrs McNamara’s continued presence on those occasions when he cannot rise from his chair or when he falls.

18. Ms Leslie Stephenson, an occupational therapist, estimates that Mrs McNamara has provided to Mr Hardman 21.6 hours of domestic assistance each week. This figure is necessarily arbitrary, because Mrs McNamara is with Mr Hardman during the whole of most days. Otherwise trivial services, not the subject of evidence but which may confidently be inferred, such as assisting him into and out of his bed and chair, scratching his back and adjusting his shirt (which he cannot do), bringing to him cold drinks, making him tea and coffee, fetching books and newspapers, making him comfortable, and providing to him the safety and reassurance of company, are not reckoned in Ms Stephenson's calculations.

19. Mr Hardman's loss of these domestic services is, in his particular circumstance, reasonably compensable. I accept Mr Hardman when he says that, realistically, he needs someone permanently with him, except at night.

20. Were it not for Mrs McNamara's attendances, Mr Hardman would probably be compelled to live in a nursing home. It is appropriate in these circumstances to provide sufficient care and domestic assistance so that Mr Hardman may continue to reside in his house. He should have a person in attendance for five hours each day. That person will at different times provide the services of a gardener, a lawn mower, a shopper, a cook, a launderer or a carer.

21. Ms Stephenson costs maintenance tasks at $28-$30 per hour, general domestic tasks at $16.69 per hour and personal care at $32.36 per hour. I think it reasonable to allow a rate of $25 per hour. Over 35 hours the weekly rate is $45,500. I round this up to $50,000 to allow for penalty rates on weekends and public holidays. The weekly rate is $961.

22. Mr Hardman is 73 years old and has a projected lifespan of a further 13 years, by which time Mrs McNamara would be 84 years old. I think it improbable that from the age of 80 Mrs McNamara would still be mowing the lawn and attending to the garden, however by this stage Mr Hardman would probably require more attendant care, which balances out the equation. Mrs McNamara had a projected lifespan of a further 18 years.

23. Mr Sheller for Amaca submits that I should discount the capital sum allowed for domestic assistance by 15 per cent, against the contingency that Mrs McNamara, had she not contracted mesothelioma, may have predeceased Mr Hardman in any event, and a further 33.33 per cent, against the contingency that Mr Hardman may die within 13 years. I do not accept his reasoning. The mathematics of the exercise result in a discount of 44 per cent upon an assumption that there was an almost 50-50 chance that both Mr Hardman and Mrs McNamara would die before the time predicted by the tables. Such an assumption is unjustified. All contingencies are not adverse. Mr Hardman may live longer than 13 years. I allow a discount of 20 per cent for contingencies.

24. The weekly allowance is $961. The multiplier at 3 per cent over 13 years is 563.3. The multiplier over 12 years is 527.2. Assuming Mrs McNamara survives a further six months, during which time Mr Hardman has the benefit of services provided for her needs, an appropriate multiplier is 545, and an appropriate deferral multiplier 0.985. The calculations are then as follows:

$961 x 545 = $523,745 x 80% = $418,996 x 0.985 = $412,711.

25. Because Mr Hardman will be alone each night, and for the most part of each day, I allow the cost of a Medical Alarm System by which help may be summoned in an emergency. The cost of this service is an installation fee of $229 and an annual monitoring fee of $432.45. Although imponderable, I think it reasonable to round out the annual cost at $600 so that it includes the cost of one or two responses each year.

26. The allowance is then $11.54 x 545 = $6,289 x 80% = $5,031, plus the installation fee of $229 = $5,260.

27. The award in respect of domestic services is then $412,711 plus $5,260, total $417,971.

Summary of damages

General damages $250,000

Interest on general damages $1250

Loss of expectation of life $17,500

Past medical expenses $50,368.50

Future medical expenses $60,000

Past and future care $50,000

Loss of capacity to perform domestic services $417,971

Total $847,089.50

28. Judgment for the plaintiff in the sum of $847,089.50.

Defendant to pay the plaintiff's costs.

Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff

Mr J C Sheller instructed by Holman Webb appeared for the defendant