Hudson v Amaca Pty Ltd - [2022] NSWDDT 6

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Hudson v Amaca Pty Ltd [2022] NSWDDT 6
Hearing dates: 11 July 2022, 5-7 September 2022, 25-26 October 2022
Date of orders: 21 November 2022
Decision date: 21 November 2022
Before: Judge Russell SC
Decision:
(1)   The damages in the claim brought by the plaintiff for the benefit of the estate of the late Keith Hudson are assessed at $475,840.38.
(2)   The damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,664,703 plus the costs of funds management.
(3)   Defer entry of final judgment pending ascertainment of the costs of funds management, by agreement or further hearing.
(4)   Order the defendant to pay the amount of $475,840.38 to the plaintiff.
(5)   Order the defendant to pay the plaintiff’s costs of the proceedings to date.
(6)   Stand the proceedings between the plaintiff and the defendant over generally with liberty to restore on 7 days notice.
(7)   Stand the cross claim over generally with liberty to restore on 7 days notice.

Catchwords:
DUST DISEASES — prescribed dust diseases — mesothelioma
CHOICE OF LAW – where exposure to asbestos occurred in both New South Wales and Australian Capital Territory - torts with an inter-state element are governed by the lex loci delicti
DAMAGES – general damages and loss of expectation of life - assessment under Australian Capital Territory law – where action survives for the benefit of the deceased’s estate - where act or omission that gives rise to the cause of action caused the person’s death – where plaintiff did not give a notice of claim before death – whether requirement to give notice of claim procedural or substantive
DAMAGES – Lord Campbell’s Act – loss of services provided by deceased – assessment of damages under New South Wales legislation the same as under Australian Capital Territory legislation – where deceased’s son has severe disabilities – whether son required 24-hour care – direct care provided by deceased – standby supervision or indirect care provided by deceased and his wife – period for which deceased would have provided services – hourly rate selected to calculate damages – whether appropriate to use commercial cost of care to calculate damages

Legislation Cited:
Accident Compensation Act 1985 (VIC), s 134AB
Civil Law (Wrongs) Act 2002 (ACT), ss 15, 16, 24, 25, 51, 54, 59, 62, 100
Civil Liability Act 2002 (NSW), ss 15A, 15B
Civil Procedure Act 2005 (NSW), ss 3, 77, 90
Compensation to Relatives Act 1897 (NSW), ss 3, 4
Dust Diseases Tribunal Act 1989, s 12B
Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
Personal Injuries Proceedings Act 2002 (QLD)
Workers Compensation Act 1987 (NSW), s 151C

Cases Cited:
Amaca Pty Ltd v Raines [2018] NSWCA 216
Franklin v South Eastern Railway Co (1858) 3 H & N 211
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Nash v Commissioner for Railways [1963] SR (NSW) 357
Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245
NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Webber v Comcare [2018] NSWDDT 10
Wickham Freightlines Pty Ltd v Ferguson [2013] NSWCA 66; (2013) 83 NSWLR 162

Texts Cited:
Luntz, Assessment of Damages for Personal Injury and Death (4th ed, Lexis Nexis)

Category: Principal judgment
Parties: Daphne Maureen Hudson (Plaintiff)
Amaca Pty Limited (Defendant/Cross Claimant)
AV Jennings Properties Limited (Cross Defendant)
Representation:
Counsel:
J McIntyre SC and J Tryon (Plaintiff)
D Priestley SC (Defendant)
T Rowles (Cross Defendant)
Solicitors:
Rogalski Lawyers (Plaintiff)
Holman Webb (Defendant/Cross Claimant)
Sparke Helmore (Cross Defendant)

File Number(s): DDT 2020/00341701

Judgment

Introduction

The late Mr Keith Hudson was born in 1949. His wife Mrs Daphne Hudson was born in 1955. The couple married in 1974 and moved to New Zealand. They came back to Australia in 1980 and moved to the Australian Capital Territory (ACT).
In 1980 Mr Hudson commenced working for AV Jennings Home Improvements (Jennings). He worked there until 1986. During the course of that employment Mr Hudson was exposed to asbestos dust and fibre, and it was this exposure which ultimately caused his asbestos-related disease of mesothelioma. He performed most of his work in the ACT, but also worked extensively in NSW.
Mr and Mrs Hudson had two daughters Rosemary and Louise. Their third child Joseph was born in 1983. He has quite severe Down Syndrome and has required care and support for his entire life.
For the sake of convenience, and without meaning any disrespect, I will refer to the late Mr Keith Hudson as “Keith” and I will refer to Mr Joseph Hudson as “Joseph”.
In 1989 the family moved to Bribie Island in Queensland. In 2002 Homelife Association commenced providing external care for Joseph. That care was funded through Disability Services Queensland (DSQ).
In 2013 the family purchased their present home at Bongaree on Bribie Island. In 2014 Keith built a self-contained two-bedroom granny flat on the property in which Joseph could reside. In 2015 Keith retired from employment.
In 2019 the National Disability Insurance Scheme (NDIS) approved funding for Joseph. Homelife continued to provide external care to Joseph through this NDIS funding.
In late August or early September 2020 Keith felt that he was slowing down. In September 2020 Keith consulted his general practitioner for a chronic productive cough. He was followed up with a chest x-ray and a CT scan, which showed a large right pleural effusion.
In October 2020 Keith was admitted to Caboolture Hospital with a history of ongoing cough and mild dyspnoea on exertion. Two litres of pleural fluid were drained.
In November 2020 Keith was admitted to Prince Charles Hospital in Brisbane for right video-assisted thoracoscopic surgery (VATS procedure), pleural effusion, pleurodesis and a pleural biopsy. The histopathology report confirmed a diagnosis of malignant mesothelioma of the biphasic type. Keith was discharged from Prince Charles Hospital on 15 November 2020 but was admitted to the Emergency Department at Caboolture Hospital on 25 November 2020 after a collapse. He was discharged from Caboolture Hospital two days later.
In December 2020 Keith remained at home where he was visited by his general practitioner and by a palliative care nurse. On 12 December 2020 Keith was admitted to the Emergency Department at Redcliffe Hospital with worsening pain and agitation. On 13 December 2020 he was admitted to the Palliative Care Unit at Redcliffe Hospital. He died there on 14 December 2020.
By a Statement of Claim filed in this Tribunal on 2 December 2020 Keith sued Amaca Pty Ltd (Amaca) as the manufacturer and supplier of most of the asbestos cement building products used during his employment with Jennings. Liability was admitted by Amaca and the only issue was quantum of damages.
Amaca brought a cross claim against AV Jennings Properties Ltd. It was represented at the trial by counsel, but by agreement the further consideration of the cross claim was deferred until after delivery of judgment between the plaintiff and the defendant.

The Pleadings

The initial Statement of Claim naming Keith as the plaintiff was filed just before his death. By a later order of the Tribunal Mrs Hudson was substituted as the plaintiff in what then became a survival claim for the benefit of the estate of Keith.
After several further iterations of the pleading, Mrs Hudson filed a Second Further Amended Statement of Claim on 22 June 2022. Mrs Hudson brought her claim upon two bases.
Firstly, as the executor of the estate of Keith, Mrs Hudson brought proceedings for the benefit of the estate under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (the 1944 Act) and also under s 16 of the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act).
Secondly, Mrs Hudson brought proceedings under Lord Campbell’s Act for the benefit of Joseph, as a dependant of Keith. Such proceedings were brought under the Compensation to Relatives Act 1897 (NSW) (the CTR Act) and under ss 24 and 25 of the WrongsAct.
Because Mr Hudson was exposed to asbestos dust and fibre in both the ACT and in NSW, torts were committed in each jurisdiction. It was admitted at the trial by senior counsel for Amaca that Keith had sufficient exposure in the ACT to cause his asbestos-related disease of mesothelioma. It was also admitted that Keith had sufficient exposure in NSW to cause his mesothelioma. Mesothelioma is an indivisible disease which is caused by all non-trivial exposure to asbestos dust and fibre.
The assessment of damages is not bedevilled by the complexities of s 15B of the Civil Liability Act 2002 (NSW) (the CLA) or s 100 of the Wrongs Act, because it was agreed that an appropriate award of damages in the Lord Campbell’s Act actions in relation to the services which had been provided by Keith to Joseph would mean that s 15B and s 100 damages for Keith’s own loss of capacity to perform domestic services could not also be awarded.

Legal Issues to be Determined

General Damages and Loss of Expectation of Life

There was no dispute that the plaintiff was entitled to an award of general damages arising from the pain and suffering of Keith, under NSW law. Proceedings were commenced before the death of Keith, and thus such damages survived his death – s 12B Dust Diseases Tribunal Act 1989 (the DDT Act).
However, there was a debate between the parties as to whether general damages were available under ACT law. This is dealt with below.
A similar position was taken by the parties in relation to damages for loss of expectation of life. Such damages were undoubtedly available under NSW law but arguably may not be available under ACT law. Again, this is dealt with below.
The parties agreed that differences in the law between NSW and the ACT could result in awards for two different amounts. The parties accepted the correctness of my previous decision in Webber v Comcare [2018] NSWDDT 10. In that case mesothelioma was contracted because of a breach of duty of care in NSW and a later breach of duty of care in the Northern Territory. At [134] I held that there were two systems of law which governed the assessment of damages, because there were two places where the wrong occurred. My conclusion was as follows:

“The lex loci delicti applies, and because there are two places of the wrong, there are two systems of law under which damages have to be assessed.”

In relation to general damages for Keith the submission of the plaintiff was that these should be assessed at $400,000. The submission for Amaca was that general damages should be assessed at $360,000.
The agreed basis for calculation of interest on general damages was to adopt a 2% interest rate up to the date of death and a 4% interest rate thereafter.
In relation to loss of expectation of life, the plaintiff submitted that this should be assessed at $16,000 and the defendant submitted that it should be assessed at $15,000.

Lord Campbell’s Act Damages

The dispute between the parties concerned quantification of damages under Lord Campbell’s Act. While the parties agreed on the general principles to be applied, the debate was largely one in relation to the evidence which should be preferred, and the selection of an appropriate figure for damages based upon that evidence.

Survival of General Damages and Damages for Loss of Expectation of Life under ACT Law

At common law, a cause of action for damages abated if the claimant died. By s 15(1)(a) of the Wrongs Act when a person dies all causes of action vested in the person survive for the benefit of the person’s estate. Thus the common law in relation to abatement of the cause of action has been reversed by s 15(1).
Section 16 of the Wrongs Act deals with the damages which can be recovered in an action which survives for the benefit of a deceased person’s estate (a survival action). By s 16(2) the damages recoverable do not include exemplary damages.
Section 16(3) applies if the act or omission that gave rise to the cause of action caused the person’s death. In those circumstances there are four heads of damage which cannot be recovered. These include general damages for pain and suffering and damages for loss of expectation of life – s 16(3)(b)(i).
Section 16(4) of the Wrongs Act creates an exception to s 16(3)(b)(i) if three conditions are satisfied. General damages for pain and suffering and damages for loss of expectation of life may be recovered if:

“(a)   the cause of action related to a personal injury resulting from an asbestos-related disease; and
(b) the person gave notice under s 51 (Notice of claim) before the person’s death; and
(c)   the person died either –
(i)   as a result of the asbestos-related disease; or
(ii)   the asbestos-related disease was a contributing factor to the person’s death.”

In the present case there is no dispute that elements (a) and (c) above have been satisfied. The debate between the parties revolves around element (b) concerning notice of claim under s 51 of the Wrongs Act.
Part 5.2 of the Wrongs Act deals with claims procedures.
Section 51 deals with “Notice of claim”. So far as it is relevant, s 51 provides:

“51 Notice of claim
(1)   Before a claimant brings a proceeding against someone else (a respondent) based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim.
(2)   The notice must—
(a)   contain a statement of the information required by regulation; and
(b)   authorise each of the following to have access to the records and sources of information relevant to the claim that are required by regulation:
(i)   the respondent;
(ii)   if the respondent is insured against the claim—the respondent’s insurer for the claim; and

(c) be accompanied by the documents required by regulation.

(3)   For a proceeding not based on a motor accident claim or child abuse claim, the notice must be given within the period that ends on the earlier of the following days:
(a)   the day that is 9 months after—
(i)   the day the accident giving rise to the personal injury happened; or
(ii)   if symptoms of the injury are not immediately apparent—the day symptoms of the injury first appear;

(b) the day that is 4 months after the later of the following days:
(i) the day the claimant first instructs a lawyer to provide advice about seeking damages for the personal injury;
(ii) the day the respondent is identified.

…
(7) If the notice is not given within the period required under subsection (3), a reasonable excuse for the delay must be given in the notice or by separate written notice to the respondent.
Note If the notice is not given as required under s (3), the obligation to give the notice continues until it is given (see Legislation Act, s 152).”

I find that no notice of claim was given by the original claimant (the late Keith Hudson) before these proceedings were commenced. Senior counsel for the plaintiff submitted that the Statement of Claim itself, and the Statement of Particulars, constituted a complying notice of claim. I reject that submission. Those documents commenced these proceedings, and so logically they could not be a notice of claim given before proceedings were commenced, as required by s 51(1) of the Wrongs Act. Nor could they be a notice of claim given before death, as they did not comply with all of the formal requirements of a complying notice of claim – s 51(2) Wrongs Act.
Section 59 of the Wrongs Act provides that if a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless:

The respondent has given the claimant a written notice to the effect that the respondent is satisfied the notice is a complying notice or the claimant has taken reasonable action to remedy the noncompliance – s 59(1)(a)(i), or

The respondent is presumed under s 54(3) of the Wrongs Act to be satisfied that the notice is a complying notice – s 59(1)(a)(ii), or

The respondent has waived any noncompliance – s 59(1)(b), or

The court declares that the claimant has remedied the noncompliance or the court authorises the claimant to proceed further with the claim despite the noncompliance – s 59(1)(c).

No application under s 59(1)(c) was made by the plaintiff in the present proceedings.
Section 62 of the Wrongs Act deals with the consequences of noncompliance with the notice provisions. It provides:

“62 Consequences of noncompliance with pt 5.2
(1)   If a claimant does not comply with the requirements of this part, a court in which the claimant begins a proceeding based on the claim—
(a)   may, on a respondent’s application in the proceeding, award in the respondent’s favour costs (including legal and investigation costs) reasonably incurred by the respondent because of the claimant’s noncompliance; and
(b)   may only award interest in the claimant’s favour for a period for which the claimant was in noncompliance if the court is satisfied there is a reasonable excuse for the noncompliance.

(2) If a respondent does not comply with the requirements of this part, a court in which the respondent defends a proceeding based on the claim may, on a claimant’s application in the proceeding, award in the claimant’s favour costs (including legal and investigation costs) reasonably incurred by the claimant because of the respondent’s noncompliance.”

The defendant made no application for costs pursuant to s 62(1)(a), nor did it seek any restriction on any award of interest pursuant to s 62(1)(b).
It is clear that the opening words of s 62(1) contemplate that court proceedings can be commenced, even though no notice of claim has been given. In other words, failure to give a notice is not a bar to proceedings being commenced. Section 62(1) stands in stark contrast to provisions such as s 151C of the Workers Compensation Act 1987 (NSW) which says that a claimant “is not entitled to commence court proceedings” … “until 6 months have elapsed since notice of the injury was given to the employer”.
While the defendant submits that the service of the Statement of Claim and the Statement of Particulars in this Tribunal did not constitute a complying notice of claim, there was no submission by the defendant that the plaintiff could not proceed further with her claim in this Tribunal because of noncompliance with the Wrongs Act.
Instead, the submission for the defendant was that because no notice was given under s 51 of the Wrongs Act, all of the three elements set out in s 16(4) of the Wrongs Act had not been satisfied, and thus the plaintiff was not entitled under ACT law to general damages for pain and suffering, or to damages for loss of expectation of life.
After consideration of the authorities referred to below, I have come to the view that I should not accept the submission made for the defendant. For reasons set out below, I find that the plaintiff is entitled to general damages for pain and suffering, and to damages for loss of expectation of life, under ACT law.
In John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 a plaintiff had sued in the Supreme Court of the Australian Capital Territory for damages for personal injuries suffered in New South Wales. The question to be decided was whether the applicable law for the assessment of damages was either the law of NSW or the law of the ACT.
The High Court examined various possibilities for a choice of law rule. The possibilities which emerged were the lex fori (the law of the forum), the lex loci delicti (the law of the place of the wrong) or the proper law of the tort. For reasons set out at [72]-[87] the High Court came to the view that “the common law should now be developed so that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an inter-State element” – at [87].

The High Court held that all questions about the kinds of damage, or the amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti – at [100].
In relation to the causative exposure to asbestos which occurred in the ACT, the lex loci delicti applies, so that all questions about the kinds of damage and amount of damages that may be recovered, are governed by the substantive law of the ACT.
The law of the ACT provides that general damages for pain and suffering, and damages for loss of expectation of life, cannot be recovered in most cases, but can be recovered in actions related to personal injury resulting from an asbestos-related disease, if the three elements set out in s 16(4) of the Wrongs Act are satisfied. The question which requires an answer is whether the second element in s 16(4), requiring the claimant to give notice under s 51 (Notice of claim) before the person’s death, is substantive or procedural.
Senior counsel for the plaintiff referred the Tribunal to the decision of the Court of Appeal in Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48. The case involved proceedings brought in the Supreme Court of NSW arising from a tort allegedly committed in Queensland. The Personal Injuries Proceedings Act 2002 (QLD) provided that before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceedings is proposed to be started.
The question in issue was whether these notice provisions in Queensland were part of the lex loci delicti of Queensland ie whether they were substantive or procedural.
The Court of Appeal held that the provisions regulated the manner in which rights arising are to be enforced. They were thus procedural provisions and would be disregarded by a NSW court applying the substantive law of Queensland as the lex loci delicti. This was so even though the Queensland legislation contained a provision stating that the notice provisions were provisions of substantive law, as opposed to procedural law. The Court of Appeal held that such a provision cannot conclusively determine for other courts the issue of whether the notice requirement was substantive or procedural.
Considered by itself, s 51 is clearly a procedural provision. If Keith had commenced his proceedings in the Dust Diseases Tribunal of NSW without giving notice as required by s 51 of the Wrongs Act, this Tribunal would have been entitled to disregard the failure to comply with that procedural provision. No doubt this was why the defendant in these proceedings, quite correctly in my view, did not argue that Keith could not commence his proceedings in NSW because of noncompliance with ACT procedural legislation.
However, the procedural notice provision in s 51 has been engrafted into s 16(4) of the Wrongs Act, so that the need to give notice is one of the three elements that a person must prove, in order to be able to recover two particular heads of damage in a survival claim. The question which then arises is whether, in that context, the notice provisions are procedural or part of the substantive law.
The decision in Hamilton v Merck & Co Inc suggests that the requirement for a s 51 Notice is procedural only as it regulates the manner in which a right may be enforced. The notice regime in the ACT casts burdens upon both a claimant and a respondent – see ss 54 and 59(1) of the Wrongs Act. The consequences of noncompliance are those set out in s 62 of the Wrongs Act, which are limited to costs and interest penalties. If anything, all the ACT notice regime does is modify a claimant’s recovery, rather than abrogate a right to damages.
The notice requirement in s 16(4)(b) of the Wrongs Act is, in my view, only in the subsection to make clear that the s 51 notice provisions also apply where the damages available under s 16(4) are sought. Failure to give the notice means only that the costs and interest consequences in s 62 of the Wrongs Act may apply, but it does not mean that general damages and damages for loss of expectation of life are not available in a survival claim.
I find that the notice element in s 16(4) of the Wrongs Act is procedural and not substantive. As such it would not prevent recovery of general damages and damages for loss of expectation of life, arising from a tort committed in the ACT, where proceedings are brought in a NSW court. That procedural provision will be ignored by this Tribunal in applying the substantive law of the ACT, in accordance with the approach in Hamilton v Merck & Co Inc.
I am fortified in that view by the decision of the NSW Court of Appeal in Wickham Freightlines Pty Ltd v Ferguson [2013] NSWCA 66; (2013) 83 NSWLR 162. In that case a truck driver was injured in the course of his employment at premises in Victoria. He brought proceedings in negligence in NSW against his employer. The parties agreed that all questions of substance were to be decided under Victorian law, which was the Accident Compensation Act 1985 (VIC) (the Victorian Act).
The defendant sought an order striking out the Statement of Claim on the basis that s 134AB of the Victorian Act precluded the institution of the proceedings, as parts of that provision had not been complied with.
Section 134AB(1) of the Victorian Act provided that a worker injured in the course of his employment could not recover any damages for non-pecuniary loss or any damages for pecuniary loss, except as permitted in accordance with s 134AB.
Section 134AB(2) of the Victorian Act provided that a worker may recover damages if the injury is a “serious injury”.
The Court of Appeal held that subs (1) and subs (2) of s 134AB of the Victorian Act constituted substantive laws of Victoria. The court said that they concerned “the kinds of damage, or amount of damages that may be recovered”, referring to that phrase in Pfeiffer.
Section 134AB(3) and s 134AB(4) of the Victorian Act provided that a worker could not bring proceedings unless there had been a determination of degree of impairment and notice being given to a Victorian authority that the worker accepted the determination of degree of impairment. An application under s 134AB(4) had to be made in accordance with a form mandated by s 134AB(5).
In the Court of Appeal the worker submitted that even if s 134AB(1) and (2) are substantive provisions, the subsequent subsections, concerning the determination of whether an injury is a “serious injury” are procedural and inapplicable in NSW because procedural aspects of the proceedings were covered by the lex fori, being NSW law – at [14].
The Court of Appeal rejected that submission in relation to subss (3) and (4). The court held that these subsections are an integral part of the scheme enacted in s 134AB limiting the common law entitlement to damages. The scheme was one limiting damages to those arising from injuries which were determined in accordance with the scheme to be “serious”. The court held at [15] that it would be highly artificial, and contrary to the legislative intent of the Victorian Act, for characterisation of an injury as “serious” to be made otherwise than in accordance with s 134AB(3) and (4). Subsections (3) and (4) provide the mechanism for determination of whether there is a “serious” injury, which is the gateway to recovery of damages against an employer.
The Court of Appeal distinguished its earlier decision in Hamilton v Merck & Co Inc because the Queensland provisions dealt with in that decision concerned the regulation of the mode or conduct of court proceedings, and thus they were procedural and not substantive. The Queensland legislation considered in that case did not contain a statutory scheme modifying common law rights to damages. Rather, the statute was concerned only with the procedural means by which those damages could be recovered – Wickham at [16].
Section 134AB(5) of the Victorian Act prescribed a particular form of notice which had to be given, accompanied by copies of all medical reports. This provision is similar in form to the ACT notice provision. The Court of Appeal decision only went so far as to say that subsections (1)-(4) of the Victorian Act were substantive. The Court did not say that subs 5 was substantive: at [14-15].
In my view that ACT provision preserving general damages and damages for loss of expectation of life for the benefit of the estate of a deceased claimant operates in similar fashion. The requirements of proving that the cause of action related to a personal injury resulting from an asbestos-related disease and that the person died as a result of that disease (or that the disease contributed to the death) are part of the substantive law of the ACT. There is no dispute in these proceedings that those elements are satisfied.
The requirement for notice to be given before death is procedural only and can be disregarded by this Tribunal.
Finally, it would be a curious and anomalous result if Keith, had he remained alive, could have brought his claim in New South Wales for all heads of damage without having complied with the ACT notice provisions, but his estate could not continue those proceedings after his death.
I find that Mrs Hudson on behalf of the estate is entitled to claim damages for her late husband’s pain and suffering, and loss of expectation of life, under ACT law. Her right to do so under NSW law is not in dispute.

Assessment of Damages: Estate Claim

General Damages

Keith signed a written statement on 2 December 2020 (PX 1, Tab 4). He dealt briefly with the history of his symptoms in pars 26-32. The history he provided is summarised in the introduction at the start of this judgment.
Keith went from being fit and well in late August or early September 2020 to having severe problems by October 2020, leading to his death on 14 December 2020. The award of general damages must recognise that his pain and suffering, while intense, was for a shorter period than many plaintiffs who come before the Tribunal.
Mrs Hudson provided an affidavit dated 25 June 2022 (PX 1, Tab 5). She first noticed Keith “slowing down from about August 2020”. Prior to that Keith had been very healthy and active. His condition got worse in October 2020 and by then he was unable to provide Joseph with all of the care and assistance he had previously given him. He started seeing medical specialists about his lungs and was given the diagnosis of mesothelioma. Mrs Hudson, and her daughter Rosemary, provided care and assistance to Keith in his final months. He became unstable on his feet and needed support to walk. He lost a lot of weight and was not eating or drinking very much. He was “physically and emotionally frail”. Keith suffered from night sweats and was largely confined to bed. He was taking strong pain medication.
Mrs Hudson said that Keith was “devastated” by the diagnosis and used to keep saying to her “I’m so sorry”. She understood that he was apologising to her because he would not be there for her and for Joseph, to support the family into the future. Mrs Hudson said that Keith found it very distressing knowing that he would not be able to care for Joseph in the future. He was anxious and concerned about what would happen to Joseph. Towards the end he was in a state of panic and experienced hallucinations. He had previously been a very strong and stoic man, who Mrs Hudson thought “would be around forever”.
Senior counsel for the plaintiff submitted that general damages should be assessed at $400,000. Senior counsel for the defendant submitted that the appropriate figure was $360,000. I accept the latter submission. As previously recited, Keith suffered from his illness for a much shorter period than many plaintiffs seen in the Tribunal. I assess general damages at $360,000 to reflect this fact.

Interest upon General Damages

The parties were agreed that interest upon general damages from the onset of symptoms to the date of death should be assessed at the rate of 2% per annum, and that interest on general damages after death should be assessed at 4% per annum.
Given that symptoms first appeared in late August or early September 2020, interest on past general damages will run for 3.5 months at 2% per annum. The calculation is: $360,000 x 2% x 3.5/12 = $2,100.
Interest on general damages since death are assessed as follows: $360,000 x 4% x 2 years = $28,800.
Total interest on past general damages is: $2,100 + $28,800 = $30,900.

Loss of Expectation of Life

Senior counsel for the plaintiff submitted that the appropriate figure was $16,000 and senior counsel for the defendant submitted that the appropriate figure was $15,000. The life expectancy for Keith on the Medium Life Expectancy tables was close enough to 15.5 years. I will allow the conventional damages of $1,000 per year (a convention which I note has not been updated for at least 30 years).
Damages for loss of expectation of life are assessed at $15,500.

Past Out of Pocket Expenses

This figure was agreed at $1,500.

Domestic Assistance Provided to Keith

The assessment of damages for domestic assistance provided to Keith requires two different figures to be calculated. This is because there is a statutory cap on the hourly rate in NSW pursuant to s 15A of the CLA. In the ACT, commercial rates apply.
It is apparent from the Schedules of Damages for the plaintiff (MFI 3 and MFI 4) and for the defendant (MFI 5), that the parties have agreed on the number of hours of domestic assistance provided to Keith before his death. The parties have also agreed that damages under NSW law should be assessed at $30,241.46.
Using the agreed number of hours, senior counsel for the plaintiff put forward a figure of $62,265 applying commercial rates under ACT law. Senior counsel for the defendant did not put forward his own calculation, nor did he dispute the accuracy of the calculation made for the plaintiff. I accept the calculations put forward in MFI 3 and assess damages for domestic assistance provided to Keith, calculated under ACT law, at $62,265.
In summary, damages for domestic assistance provided to Keith are assessed at $30,241.46 under NSW law and $62,265 under ACT law.

Interest upon Domestic Assistance Provided to Keith

Interest at court rates on the NSW award of $30,241.46 calculated to 21 November 2022, is $2,756.47.
Interest upon the ACT award of $62,265, calculated to 21 November 2022, is $5,675.38.

Summary of Damages in the Estate Claim

Damages assessed in the estate claim under NSW law are as follows:

Head of Damage

Amount

General Damages

$360,000.00

Interest upon General Damages

$30,900.00

Loss of Expectation of Life

$15,500.00

Past Out-of-Pocket Expenses

$1,500.00

Domestic Assistance provided to Keith

$30,241.46

Interest upon Domestic Assistance provided to Keith

$2,756.47

TOTAL

$440,897.93

Damages assessed in the estate claim under ACT law are as follows:

Head of Damage

Amount

General Damages

$360,000.00

Interest upon General Damages

$30,900.00

Loss of Expectation of Life

$15,500.00

Past Out-of-Pocket Expenses

$1,500.00

Domestic Assistance provided to Keith

$62,265.00

Interest upon Domestic Assistance provided to Keith

$5,675.38

TOTAL

$475,840.38

I propose to follow the same course as that which I took in Webber. In that case the plaintiff was entitled to a judgment against the defendant for $616,000 in relation to the defendant’s breach of duty of care which occurred in the Northern Territory. The plaintiff was entitled to a judgment against the defendant for $1,101,685 for the breach of duty of care which occurred in NSW. Obviously, those figures overlapped.
My approach in Webber, which has not been challenged by the parties in this case, was expressed at [176] as follows:

“Since the defendant is responsible for all of the damages caused by the breach of duty of care in New South Wales, the plaintiff is entitled to one judgment, being against the defendant for $1,101,685.”

On that part of the present claim, which is the estate claim, I find that the plaintiff is entitled to damages in the amount of $475,840.38. I will make a payment order to reflect that finding.
The damages claimed under Lord Campbell’s Act will be separately assessed. Because Joseph is a “person under legal incapacity” within the meaning of that phrase in ss 3 and 77 of the Civil Procedure Act 2005 (NSW), the damages awarded under Lord Campbell’s Act will have to be managed by a trustee. The parties have asked me to deliver a judgment stating the award of damages under Lord Campbell’s Act, and then give them an opportunity to attempt to agree upon a suitable figure for the cost of funds management. Final judgment will thus not be possible until the quantum of funds management is agreed, or further litigated.
However there is no reason to hold up payment of the damages assessed in the estate claim, as these will not be subject to management. There will be a payment order made pursuant to s 90 of the Civil Procedure Act 2005 (NSW) that the defendant pay $475,840.38 to the plaintiff for the damages in the estate claim.

The Law: Lord Campbell’s Act Action

Compensation to Relatives Act 1897 (NSW)

Section 3(1) of the CTR Act provides as follows:

“(1) Whensoever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a serious indictable offence.”

Section 4(1) of the CTR Act provides as follows:

“(1) Every such action shall be for the benefit of the spouse, brother, sister, half-brother, half-sister, parent, and child of the person whose death has been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict find and direct.”

Civil Law (Wrongs) Act 2002 (ACT)

Section 24 of the Wrongs Act provides as follows:

“24 Liability for a person’s death
If—
(a) a person’s death is caused by a wrongful act or omission (whether or not an offence); and
(b) the act or omission would, if death had not resulted, have entitled the person to recover damages in an action for personal injury;
the person who would have been liable if the death had not resulted is liable to an action for damages despite the death and whether or not the death was caused by circumstances that were an offence.”

Section 25(1) of the Wrongs Act provides as follows:

“25 Damages for a person’s death
“(1) In an action under this part, the court may award, to the people for whose benefit the action is brought (the beneficiaries), the damages that it considers to be proportional to the damage to them resulting from the death.”

The parties were agreed that while the statutory remedy under Lord Campbell’s Act is expressed in different words in the two jurisdictions, the effect of the legislation is the same. Further, the parties agreed that there is no monetary restriction on the hourly rate which should be used to calculate damages.
Professor Luntz has collected the principles to be applied in a Lord Campbell’s Act claim in pars 9.2.7 - 9.2.9 in Assessment of Damages for Personal Injury and Death (4^th ed, LexisNexis). Those propositions are:

The remedy of damages is given for losses sustained and not for needs created – Nguyen v Nguyen [1990] HCA (1990) 9; (1990) 169 CLR 245 at [262]-[263].

This loss is usually the loss of a reasonable expectation of benefit.

The expected benefit may be in the form of services as well as financial support – Nguyen.

In some cases the loss may include expenditure necessary to replace the lost benefit, even where this exceeds the value of the loss in the abstract – NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668.

The fact that no expenditure is incurred to replace the benefit does not mean that no loss has been sustained; the court will still award the value of the loss – Nguyen.

The method of valuing the needs of an injured person under Griffiths v Kerkemeyer (1977) 139 CLR 161 may provide guidance in valuing the loss of services that has been replaced by voluntary care – Nguyen.

What the court has to do is to value the chance that the particular claimant would have derived some material benefit from the deceased had the latter lived. The “injury” for which damages are given under the Act is the loss of that chance – Nash v Commissioner for Railways [1963] SR (NSW) 357.

It need not be shown on a balance of probabilities that the claimant would have received any particular benefit. In some instances, it will be virtually certain that a particular benefit would have been received. In that case damages will be awarded for the present value of the benefit, diminished only slightly for the possibility that it would not have been received.

An expected benefit is usually found in the maintenance and support that the deceased was providing for the claimant and could be expected to have continued to provide.

It is not necessary that the dependent should have had a legal right to have received the expected benefit – Franklin v South Eastern Railway Co (1858) 3 H & N 211.

Submissions

Senior counsel for the plaintiff set out his calculations of the Lord Campbell’s Act damages in MFI 2. In summary, he sought:

Past loss of dependency - $513,739.

Interest on past loss of dependency (calculated to 26 October 2022) - $40,632.

Future damages from notional date of judgment for 8.5 years and for 6 years thereafter - $3,300,122.

Total: $3,854,498.

Senior counsel for the defendant put forward his calculations in MFI 5. He submitted the following figures:

Past loss of services at 5 hours of care per day for 7 days a week at $24 per hour - $73,920.

Future loss of services at 5 hours of care per day for 7 days a week at $24 per hour for 8 years less 15% discount for vicissitudes - $265,465.

Total: $339,385.

I note that the figure of $24 per hour was “based on a broad averaging of current award hourly rates of pay for full time cleaners, gardeners and nurses” (MFI 5, footnote 1). I set out below my reasons for rejecting the figure of $24 per hour.
I also note that the figure of 5 hours of care per day ignores several key features in the evidence. I set out below my reasons for rejecting the figure of 5 hours of care per day.

Lay Evidence in Relation to Lord Campbell’s Act

Mrs Daphne Hudson

In her affidavit (PX 1, Tab 5) Mrs Hudson gave the following evidence:

Keith was the primary carer for Joseph outside of the hours where care was provided externally by support workers from Homelife.

Those support workers looked after Joseph between 10.00am and 6.00pm on weekdays and for four hours each Saturday and Sunday.

Keith provided Joseph with approximately 90% of the additional care which he needed, for the hours when there was no external support.

Keith woke up and went to Joseph’s house at 7.00am every morning. He got Joseph up and ready for the support workers to arrive at 10.00am.

Keith regularly made breakfast for Joseph when he went to see him in the morning. He stayed there and they had breakfast together. This took about one hour each morning.

Every evening after 6.00pm Joseph came to the main house and sat down with his parents for a chat. After talking with his parents for up to two hours Joseph went back to his own house.

Keith went to Joseph’s house at about 8.00pm every night to settle him before he went to bed. He made sure that the windows were closed and the doors were locked. He put the air-conditioning on for Joseph.

Keith usually spent a few hours with Joseph each night. After checking that he was ready for bed, the two of them played games or watched a movie together.

If there was a thunderstorm or rough weather, Joseph would become scared. Keith would go to Joseph’s house and sleep over there. He would have to do that to calm Joseph down.

If the support workers could not give Joseph a shower or a bath (because he had refused to co-operate with them) Keith went to Joseph’s house to give him a shower or a bath. This took about one hour. Joseph was not capable of washing himself properly unless he was supervised. Joseph would develop a skin condition if he did not have regular showers.

Joseph sometimes urinated on the floor and Keith would clean this up if it was outside support worker hours.

Keith would often do the cleaning of Joseph’s house if the support workers had not found time to do it. He also did grocery shopping for Joseph.

Keith assisted Joseph with trimming his beard and shaving. Joseph could not do this for himself. Keith also assisted Joseph in brushing his teeth.

Keith did most of the liaising with NDIS. This involved a lot of paperwork and waiting on the phone for hours to talk to someone at NDIS. Keith also liaised with Homelife about care issues.

Mrs Hudson said that Keith had a very close bond with Joseph. Joseph was “best controlled and happiest when he was with Keith”. When Mr and Mrs Hudson went on a short holiday, Joseph had to go into share accommodation. Joseph did not cope very well with this.
Mrs Hudson gave oral evidence. She said that as the years went by the level of care which Keith provided to Joseph increased as Joseph’s needs changed. If there was a problem at night with a noise which had caused Joseph to become scared, Joseph would come to the main house and bang on the door. Keith was the one who would respond to this and go back with Joseph to his house and settle him down. This happened when there was a storm, or an animal on the roof, or some external noise which frightened Joseph.
Mrs Hudson was cross-examined concerning an assessment made by an occupational therapist, Ms Nolan, in July 2019 (PX 1, Tab 20). Ms Nolan visited the family home on 11 July 2019 and spoke to Keith, Mrs Hudson and Joseph. In her report, created to seek additional funding for care, Ms Nolan said:

“Reason for referral: It has come to my attention that Joseph doesn’t have enough funding for carers, respite, assistive technology and therapy to assist with the appropriate care he requires due to his condition and having elderly parents who are struggling to provide the care they previously provided. This is due to the parents physical decline making them unable to assist with all tasks. Joseph previously received more funding for carers on the weekend and public holidays. Joseph’s parents are not copying [sic] mentally and physically with his behaviours and the demands he requires. Both have threatened abandonment if not provided extra funding for more support for Joseph. Joseph also has limited funds in his transport funding as [sic] carers and other staff to use whilst providing support.”

In cross-examination Mrs Hudson said that she could not recall saying those things to Ms Nolan but that it was probably something that Keith would have said (Tcpt 14/2). Mrs Hudson did not accept that Keith was having trouble coping at that time but said “He was more concerned about me not coping, to be honest” (Tcpt 14/13).
The evidence clearly shows that Keith was fit and well before September 2020. Keith was coping very well, both physically and mentally, with Joseph and his behaviours. In fact, Keith was the person best able to assist and comfort Joseph. If statements by Keith were made as recorded in the Nolan report, then they did not reflect the true position. I regard such statements as no more than in terrorem exaggeration and advocacy aimed at achieving additional care funding for Joseph. As to the startling allegation that the parents might abandon Joseph, I find that there was no chance in the world that this was considered by them. The love, care and support which both parents provided to Joseph for 30 years shows that if this was said, it was not meant.
Mrs Hudson was cross-examined about Joseph leaving the house on his own to go to the local shops. She said that he often did this after six o’clock at night. The local shopkeepers knew him. Mrs Hudson accepted that in a way this was good for Joseph, but he really needed support workers with him, and should not go out by himself at night.
Mrs Hudson was cross-examined about the things that Keith did for Joseph and gave evidence consistent with the material on that topic in her affidavit (Tcpt 16-18).

Mrs Rosemary Facey

The elder sister of Joseph, Mrs Rosemary Facey, swore an affidavit on 30 June 2022 (PX 1, Tab 6). Mrs Facey is a Senior Clinical Psychologist. She was born in 1974 so is nine years older than Joseph. She said that Louise was born in 1976 but died in a motor vehicle accident in 1996.
Mrs Facey has lived close to her parents since 2000. She said that when she visited her parents, she “could see they would often be very much preoccupied with Joseph most of the time”. Mrs Facey said that Joseph was large in stature and had low muscle tone. He struggled to walk for long distances or to stand for long periods of time. Joseph’s cognition and speech was poor and he used gestures to communicate.
Mrs Facey said that Joseph was “rebellious”. From a very early age he referred to his mother as “Daphne instead of Mum” and his father as “Keith instead of Dad”. Joseph suffers from mood swings and can become aggressive.
Mrs Facey described Keith as always very fit and active and full of energy. He was still doing building and gardening work at the house in July 2020. Keith provided care and assistance to Joseph in his spare time. He used to repair damage to the granny flat caused by Joseph’s sudden outbursts. Mrs Facey was aware that Keith was the person who dealt with NDIS about the level of Joseph’s care and support. She said that Keith was very good at pulling Joseph into line when he was behaving badly or acting out. By contrast, Joseph was mostly defiant towards Mrs Hudson.
Mrs Facey gave oral evidence. She said that while she saw her father do a lot for Joseph, her mother did help but not with dressing and toileting because Joseph would not let her assist. Mrs Hudson assisted with meal preparation and managing finances. She said that Keith provided about 90% of the care to Joseph, particularly in relation to managing his bad behaviour. In cross-examination Mrs Facey confirmed that Joseph seemed to respond better to Keith than to his mother.
As a psychologist, Mrs Facey had been involved in making applications on behalf of clients for additional care funding. Her experience was that applications for increased NDIS funding sometimes resulted in funding being decreased. In her view it was best to keep the present level of funding and not apply for an increase. The risk of funding being decreased was too great. She said that she had four clients whose funding had been decreased, even though there had been a request for an increase in support.

Mr Robin Corbett

Mr Robin Corbett is a carer for Joseph. He provided an affidavit dated 24 August 2022 (PX 2, Tab 3). Mr Corbett has been employed as a carer by Homelife and has provided care to Joseph since about 2020. In his affidavit Mr Corbett confirmed the hours of care provided to Joseph and the tasks which the carers perform for him.
Mr Corbett said that Joseph has a limited ability to dress himself but otherwise he requires direction, instruction and supervision at all times. Mr Corbett assists Joseph with washing his hair, showering, brushing his teeth, toileting, shaving and other personal hygiene. Joseph requires help with transport, food preparation and cleaning. Mr Corbett also takes Joseph out from time to time to activities such as theme parks. Mr Corbett has observed Joseph to panic and scream during a storm.
Mr Corbett has stayed overnight at Joseph’s granny flat about two or three times per week since Keith died in December 2020. He was paid for a few overnight shifts but he has done the rest pro bono.
Mr Corbett was called to give oral evidence. When Mr Corbett is working a paid day shift, he stays on after 6.00pm and accompanies Joseph to the main house to speak with Mrs Hudson. Between 7.00pm and 10.00pm Mr Corbett watches movies with Joseph, or has a chat to him, or sometimes they go for a walk. He has never allowed Joseph to go for a walk by himself.
In cross-examination Mr Corbett said that when he was paid for a few overnight shifts by Homelife, he received somewhere between $170 and $200, because there were some allowances paid on top of wages.

Expert Evidence in Relation to Lord Campbell’s Act Claim

Dr Ian Gordon

Dr Gordon was the general practitioner for Keith. He was asked to express a view as to whether Keith would have been able to continue to provide care to Joseph into the future, but for his condition of mesothelioma.
The opinion of Dr Gordon (PX 1, Tab 10) was:

“What I am in a position to state, on the basis of assessment of my notes and those of treating colleagues working in the same General Practice, is that, but for the mesothelioma that led to the passing of Mr Hudson, he was not suffering or debilitated by any diagnosed condition to my knowledge that would have been expected to shorten his life. Thus there was no medical impediment to his ability to continue to care for his son known to me, and there is no indication that this situation would not have continued until his natural demise, but for the mesothelioma which did cause his death. I had been treating Mr Hudson since 2018 as his GP.”

Dr Matthew Rickard

Dr Rickard is a general physician who was retained by the solicitors for the plaintiff to provide medico-legal evidence. His first report is dated 11 March 2022 (PX 1, Tab 12). Dr Rickard met with Joseph on 8 March 2022. He noted features of arthritis affecting his wrists, hips and knees. While Joseph was pleasant and engaged, he was unable to answer any questions. Dr Rickard noted that due to a mood disorder occasioning anger, depression and anxiety, Joseph has seen and continues to see a psychiatrist.
Dr Rickard noted that the physical problems suffered by Joseph included shortness of breath, fatigue on exertion, pain in the knees and hips and difficulty walking uphill or for any distance. Dr Rickard said that Joseph’s cognitive incapacity required assistance with food preparation and cooking, and hygiene assistance with showering, toileting, brushing his teeth and combing his hair. Joseph cannot do any housework as he cannot understand the necessity for it.
Dr Rickard said that Joseph’s condition would be stable “for a long period of time”. However, his arthritis will progress which will limit his physical ability in time. Many patients with Down Syndrome ultimately develop further cognitive impairment and dementia at an early age. This is often during their fifties and requires significant extra assistance.
Dr Rickard said that Joseph probably has a life expectancy of another 30 years.
Dr Rickard provided another report dated 20 May 2022 (PX 1, Tab 13). Dr Rickard reviewed Keith’s medical records. He noted his health issues and the medication he had been taking. Keith was a regular lawn bowls player who was able to walk up to two kilometres a day without any physical symptoms. Dr Rickard offered the opinion that Keith had minimal life-impacting co-morbidities and, but for the disease of mesothelioma, would have enjoyed a life expectancy of 16.34 years on the Australian Life Tables. There was nothing in Keith’s past medical history that would have shortened this life expectancy for him, but for the disease of mesothelioma.
Dr Rickard said:

“On the balance of probability, in all likelihood he would have been able to continue to provide the assistance described above and in my initial report on an ongoing basis well into his eighties. I suggest conservatively that for at least another ten years beyond his age of death and quite likely, on the balance of probability, up to fifteen years beyond the age of his death.”

Dr Rickard provided another report dated 22 June 2022 (PX 1, Tab 14). He was asked whether he agreed with an assessment made by Ms Helen Coles, occupational therapist, that Mr Hudson requires 24 hours per day of care. The opinion of Ms Coles is dealt with below. Dr Rickard said that Joseph did need and currently has 24-hour care.
Dr Rickard was called to give oral evidence. In cross-examination he was asked whether he had ever seen family situations where a disabled child, who had been cared for at home by parents, ultimately moved into assisted living for the benefit of all of the family. Dr Rickard said that he had seen that happen. He accepted that this was one possibility for Joseph, even if Keith had not contracted mesothelioma.
Dr Rickard also accepted the proposition that there was a possibility that some time in his seventies, Keith may have reached the point where he could not continue to look after Joseph at home. Dr Rickard confirmed the view expressed in his written report as to the number of years for which Keith should have been able to look after Joseph, if he had not contracted mesothelioma. He did agree that making a prediction like this was “a speculative exercise”.

Ms Helen Coles

Ms Helen Coles is an occupational therapist retained by the solicitors for the plaintiff to provide medico-legal expert evidence. Her first report is dated 9 November 2021 (PX 1, Tab 16). Ms Coles visited Mrs Hudson and Joseph at their home on 26 May 2021. She interviewed Mrs Facey by telephone on 8 November 2021.
On p 24 of that report Ms Coles noted that Joseph needed 24-hour per day care and that 8 hours of this was being provided through NDIS. She offered the opinion that about 90% of the remainder of the time (16 hours) care had been provided by Keith. She said that this was both direct and indirect care provided to Joseph.
The next report of Ms Coles is dated 20 May 2022 (PX 1, Tab 17). Ms Coles interviewed Mrs Hudson and Mrs Facey together on 7 May 2022. Ms Coles repeated an opinion at p 10 of her first report, that Joseph required “an over-night personal support worker in attendance even if for an inactive sleep-over”.
At p 19 of the report Ms Coles offered the opinion that Joseph requires 24-hour per day care for his safety, wellbeing and quality of life. She said that Joseph is at very substantial risk of exploitation or injury in his present unsupported after hours circumstances. At p 20 of the report Ms Coles said that it was not reasonable that Joseph is left unsupervised.
Ms Coles gave oral evidence. She said that she had been involved recently with a patient with Down Syndrome whose condition was similar to that of Joseph. An application was made to NDIS to increase funding, and that was unsuccessful. The funding amount stayed the same, but the hours of care provided were reduced because payment to the support workers had increased. The end result was that fewer hours of care were provided by NDIS.
Ms Coles was asked about the prospect of Joseph living in supported independent living in a group home. Ms Coles said that she would not recommend that Joseph went into supported independent living. He had gone to such an establishment after breaking his ankle, but “it was a disaster and escalated all of his behavioural problems”. Ms Coles pointed out that Joseph was used to living in his own house with support. He had a fairly rigid routine and she did not believe that he would have a good quality of life if he was in supported independent living.

Ms Coles was cross-examined about her opinion that Keith had provided about 90% of the additional care to Joseph, over and above that provided by paid carers. She said that this was based not only on what Mrs Facey had told her, but also on her observations of the interactions between Joseph and his mother. She said that their interactions were “quite strange” and that there was “no obvious bond there”.
Ms Coles said that she had taken a history that the incidental care provided by Keith was about 30 minutes in the morning, 2 hours in the early evening and 30 minutes in the late evening. In addition, there was community access and outings which were provided by Keith. In further cross-examination Ms Coles said that her understanding was that Keith would assist Joseph between 7.00am and 10.00am on an ordinary day. She also noted that Keith did all of the NDIS paperwork.
It was put to Ms Coles in cross-examination that Keith “was spending no more than five hours a day actively looking after Joseph” (Tcpt 77/50). She agreed that there was about five hours of active care during the day on weekdays, but in addition Keith was available to assist Joseph at night if he was frightened during a storm, and also did work around the house including fixing broken walls that Joseph had destroyed. Ms Coles noted that funding for care on weekends had been reduced, and that this meant that Keith has been doing more caring on weekends.
Ms Coles disagreed with the proposition that Joseph could be left alone for part of the day and overnight. Ms Coles acknowledged that Joseph had been left alone, but that when this happened, he was not safe. When he had been left alone, he had done things like eating raw eggs. She said: “So, should he be left alone overnight? No. Can he? Yes, he can.” (Tcpt 79/30)
Ms Coles acknowledged that while in her view Joseph needed 24-hour a day care, that did not mean that during the night he required active care. She thought that it was to his benefit and quality of life to have someone in his cottage with him sleeping overnight (Tcpt 82/45).
The suggestion was put to Ms Coles in cross-examination that it would not be appropriate to say that Joseph needed 24-hour a day care. Her answer was:

“A---It depends what you refer to as care. Care can be either direct hands on or standby supervision or just independence - sorry, indirect care. Someone just being there in case of need. So, there’s all versions of what independent living is. It’s my view that he needs someone available to him, either in a hands on way or providing indirect care 24 hours a day for his safety and wellbeing and quality of life.”
(Tcpt 84/33)

Dr Robyn O’Toole

Dr Robyn O’Toole is an occupational and environmental physician retained by the solicitors for the defendant to provide medico-legal evidence. Dr O’Toole conducted a file review in relation to Keith. His report is dated 7 July 2022 (DX 1, Tab 2).
Dr O’Toole was provided with a great deal of material in relation to the past medical history of Keith. Dr O’Toole also took into account medical and other background material in relation to Joseph.
He was asked to provide an opinion as to the length of time which Keith would have been able to continue to provide care for Joseph, if not for his disease of mesothelioma. He said:

“Based on the information provided, on the balance of probabilities it is difficult to envisage Mr Hudson providing care for greater than a decade from the time of his death if he had not contracted this illness. This is based on:
•   Mr Joseph Hudson’s support needs have continued to increase in recent years and will continue to increase into the future. Even compared with adults with other types of intellectual disabilities, by their late 40’s adults with down syndrome often show multiple health problems, cognitive-adaptive declines, and declines in daily activities.
•   Mr Keith Hudson’s own medical history, age, and general physical and psychological health.
•   Clinical Assessments completed on Mr Hudson’s needs from 2019 that indicated further care including 24-hour services will be required.
The length of time providing care is a function of both the ‘independence’ of the aging caregiver and the level of dependence of the child with disabilities. This needs to consider the willingness and level of functioning of older caregivers. I highlight this to note that everyone ages differently and quantifying years in such a question is not based on an exact figure.”

Dr O’Toole was asked to provide an opinion as to the length of time for which Keith would have been able to continue to provide care at home to Joseph. His answer was:

“10 years based on the information above. This includes time for some compensation and plan for transitioning to a community residential program.”

Finally, Dr O’Toole was asked to offer a view as to whether the eight hours of care per day provided by NDIS were sufficient to meet Joseph’s needs. The opinion of Dr O’Toole was that “further support is required”. At the least, he thought that there should be intermittent overnight support to reduce carer burnout to maintain the current living situation for Joseph.
Dr O’Toole was called to give oral evidence. He was asked about his opinion that Keith could have provided care to Joseph for another 10 years. He said that a transition after four or five years would be for Joseph to move into residential care. The level of care then required would move more to social and psychological support, as opposed to physical care.
In cross-examination Dr O’Toole was asked whether he considered it possible that Keith would have retained the capacity to provide physical care for 10 years. Dr O’Toole said that he considered it possible, but not probable. He accepted that Keith would have been able to provide psychological support and comradeship, even if Keith had not been able to provide the same level of physical care (Tcpt 116/2).
In cross-examination Dr O’Toole was asked to assume that Joseph suffered from panic attacks prompted by lightning, thunderstorms and power outages. He accepted that Joseph needed somebody to be available on those occasions. This could be achieved by sleepover care. He agreed that the only way to provide the care at during the night was to have “somebody available in or around the house to respond” (Tcpt 116/45).

Ms Orla Fox

Ms Orla Fox is an occupational therapist who was retained by the solicitors for the defendant to provide medico-legal evidence. Her report is dated 12 August 2022 (DX 1, Tab 5).
Ms Fox met Joseph and his mother.
Ms Fox referred to “gaps in his funded support” and recommended that there be an NDIS plan review so that Joseph could be assessed for supported independent living. Ms Fox said that Joseph’s care needs would most likely increase over time. Adults with Down Syndrome experience “accelerated ageing”. The average life expectancy of a person with Down Syndrome is around 60 years of age. It is likely that Joseph’s daily care requirements will continue to increase.
Ms Fox provided a table at p 10 of her report setting out the daily care which she understood had been provided by Keith. She acknowledged an error in relation to the first period of care which started at 7.00am (Tcpt 104/29). Her table said that Keith provided 30 minutes of care, but the information in her table showed that this should have been 1 hour 30 minutes. Ms Fox understood that care in the early evening varied between 30 minutes and 2 hours. The care which commenced at around 8.00pm was for another 2 hours and in the late evening Keith provided 20-30 minutes of care.
This meant that after correction for the error in the right-hand column of her table, Ms Fox understood that Mr Hudson had provided between 4½ and 6 hours of daily care. By this she clearly meant direct care provided by Keith to Joseph.
At p 13 of her report Ms Fox offered the opinion that Keith would have continued to provide physical support to Joseph for a further 8-10 years and emotional support to Joseph for around 14 years when Keith would have reached the age of 85.
Ms Fox commented upon the recommendation contained in other reports that Joseph required 24-hour care. She said: “I agree that this would provide benefit to him by way of encouraging regular routines around bed time and providing supervision overnight should it be required” (at p 13).
Ms Fox disagreed that an application to NDIS for increased funding would necessarily fail or result in reduced funding. Ms Fox said that she agreed with Ms Coles that Mrs Hudson should not be relied upon to fill the gap in care left by her husband (p 14).
Ms Fox gave oral evidence. She was asked about her opinion concerning 24-hour care. She described that level of care as “beneficial but not essential” (Tcpt 101/35).
In cross-examination Ms Fox agreed that it would be in Joseph’s best interests to remain living at home rather than being relocated somewhere else, such as supported independent living.
Ms Fox agreed that Joseph had no road sense and that it would be dangerous for Joseph to be on a busy road. She agreed that he would have limited capacity to understand when he would be safe and when he would not be safe. She described him as a “vulnerable individual”.
Ms Fox was taken to the occasions when Joseph had suffered a panic attack at night time because of a power outage, an animal sound on the roof or lightning. She agreed that somebody needed to be available in the house at all times to come and settle Joseph (Tcpt 106/5). She agreed that the provision of sleepover care would meet any need that arose in the course of the night (Tcpt 106/13). Ms Fox agreed with the proposition that it would be desirable to have 24-hour care to cater for Joseph’s physical and intellectual disabilities (Tcpt 106/25).
Ms Fox was cross-examined about her view that applications to NDIS for an increase in funding are not accepted. She said that while she had been involved in preparing documents for such applications, she had never been informed of the outcome of those applications (Tcpt 106/42).

Lord Campbell’s Act: Assessment of Damages

Findings of Fact

I find that Joseph is a person who suffers from severe disabilities necessitating 24-hour per day care. I have been greatly assisted by all of the expert evidence in the case. There is unanimous support for the view that Joseph cannot live independently and while he does not need 24-hour a day hands-on care, during his waking hours he must have carers to assist him with personal hygiene, cleaning, cooking, transport and social activities.
Senior counsel for the plaintiff helpfully set out a list (supported by evidentiary references) of Joseph’s intellectual disabilities (MFI 6, par 23), a list of Joseph’s physical disabilities (MFI 6, par 24) and a list of Joseph’s care needs arising from his disabilities (MFI 6, par 25). I accept the accuracy of those lists and I find that every item in each list is established by the evidence cited.
I find that eight hours of this direct care is presently being provided by Homelife with NDIS funding.
I find that the decision not to apply for an increase in NDIS funding is a prudent one. The evidence of Mrs Facey and Ms Coles demonstrates the risks in applying for an increase in funding. It could result in a decrease in funding, which would mean fewer paid hours of care per day.
I find that Joseph is settled in his own home and has a regular routine which is to his benefit. I find that it would be against Joseph’s interests for him to move to a group home or supported independent living. This has been forced upon the family in the past when Joseph had to live in such accommodation after he broke his ankle. He reacted very badly to the arrangements, which shows that such a course of action should be avoided in the future if at all possible.
I find that Keith provided 6 hours per weekday of direct care for Joseph. I accept the estimates made by Ms Fox that on a regular weekday Keith provided between 4½ and 6 hours of care per day. I select the figure of 6 hours to reflect the following:

Keith dealt with day-to-day tasks over and above the 6 hours. For example, he carried our repairs when Joseph had damaged the granny flat, he did some cleaning and he helped Joseph with showers and other personal hygiene when the paid carers did not get around to it.

Keith took Joseph on outings, and this time was in addition to the hands-on care at home.

Keith was the person who dealt with NDIS and with Homelife, often for many hours in a week. This too was in addition to the hands-on care provided at home.

Keith was the person who used to go to Joseph at night, if Joseph became frightened by noises. Keith would stay with Joseph until he calmed down or sometimes sleep over in the granny flat. These hours were in addition to the hands-on care provided regularly at home.

Senior counsel for the plaintiff set out a list (supported by evidentiary references) of the care and assistance which Keith provided to Joseph (MFI 6, par 31). I accept the accuracy of that list and I find that every item in the list is established by the evidence cited.
I find that 14 hours of care per day were being provided by Homelife and by Keith. On weekdays Homelife provided eight hours and Keith provided six hours. On weekends Homelife only provided four hours and Keith provided the balance of 10 hours.
This left 10 hours in every day when Joseph could not be left alone, and someone had to be available close by to attend to his needs if they arose. This type of care is described by Ms Coles as standby supervision or indirect care. It is well established that the value of such care is compensable: Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, Amaca Pty Ltd v Raines [2018] NSWCA 216. The schedule of damages put forward for the defendant (MFI 5) allows nothing at all for these 10 hours. I reject that approach as it does not accord with the law or the facts in this case.
Whatever it is called, it was necessary for Joseph to have someone close by and available 24 hours a day. As I have found, for 10 hours of each day Joseph was in the granny flat and his parents were in the house. It was Keith and Mrs Hudson who provided the 10 hours a day of indirect care for Joseph. No-one else was around to do it. They had done it for decades.
I find that if Joseph had a problem or a need which arose during these 10 hours, then Keith was the person who usually answered the call. Joseph had a very strained relationship with his mother, and he would not allow her to assist him very much at all. By contrast, Keith got on well with Joseph, and was the one who could calm him down and control his behaviours better than anyone else.
I find that Keith would have been able to provide the same level of care as he did in the first half of 2020 for a further 10 years after December 2020. The GP Dr Gordon knew Keith well as a patient and saw no reason why he could not have continued to provide care to Joseph. Dr Rickard and Dr O’Toole were in agreement that Keith could have provided the same level of care at home for another 10 years.
While Joseph’s needs would increase as his arthritis worsened, the fact is that in 2020 the assistance which Keith was giving to Joseph was not unduly physical. Keith was cooking his breakfast, cleaning up, talking to Joseph, watching movies with him or playing games, taking him on outings and generally being a father and companion to him.
I find that, in accordance with the opinion of Dr Rickard, Joseph’s arthritis might become significantly worse by his fifties. That is over ten years away.
Consequently, I find that Keith would have been able to provide the same level of assistance as he did in the first half of 2020 for a further 10 years after December 2020. Dr Rickard and Dr O’Toole agreed that even in his eighties Keith would be able to provide significant psychological and social support to Joseph.
I find that after those 10 years had elapsed, Keith would have been able to provide significant care and assistance to Joseph for another 5.5 years, even if he could not do all of the physical tasks then required because of Joseph’s degenerative condition. I find that Keith would have performed 70% of the care tasks for a further 5.5 years, after the elapse of the theoretical 10 years from December 2020.

Periods of Loss of Services

I find that the past loss of services claim should be calculated for two years (2020 to 2022). Keith died in December 2020. He ceased providing care to Joseph a few months before his death. Because this is a common law assessment the 3% tables apply. The 3% multiplier for two years is 101.3.
As recited above, I have found that but for his disease of mesothelioma, Keith would have provided care at the same level for 10 years after late 2020. I find that the future loss of services claim should be calculated for 8 years (2022 to 2030). The 3% multiplier for 8 years is 371.8. There should be a 15% discount for the vicissitudes of life. This takes into account that something adverse and unpredictable may have happened to Keith or to Joseph.
I find that after 2030 Keith would have been able to provide 70% of the care he used to provide to Joseph, when he was well. He would have provided this for a further 5.5 years (2030 to 2036). The 3% multiplier for 5.5 years is 264.7. This second future period takes account of a decline in the physical capabilities of Keith, and of Joseph’s decreasing mobility. This means that the monetary value put upon the value of services will be 70% of “full value”. The figure will have to be deferred for 8 years. The 3% deferral figure for 8 years is 0.789. Again, there should be a discount for the vicissitudes of life, which I put at 25% to reflect the fact that Keith would have been in his eighties during this theoretical period.

Hourly Rate for Loss of Services

The plaintiff tendered evidence of the rate charged by Homelife for caring for Joseph (PX 2, Tabs 1 and 2).
The defendant tendered pay guides for the Nurses Award, the Cleaning Services Award and the Gardening and Landscaping Services Award (DX 1, Tabs 6, 7 and 8). The submission was that while the commercial cost of replacing the lost services provides a guide or starting point in assessing the loss, that figure may be “disproportionate to the commercial cost of replacing those services” (MFI 7, par 20). I have not found those Awards helpful. The services provided to Joseph by Keith were the services of a carer, not a nurse, a cleaner or a gardener. Further, there was no evidence that services in those three fields can be obtained just by paying the award wage.
The best evidence as to the value of the services which Keith provided to Joseph is to be found in the rates paid to Homelife to provide care to Joseph. I fail to see how the Homelife hourly rate was disproportionate to the value of the services provided by Keith to Joseph. The defendant characterised the services provided by Keith as “the unskilled services of a family member” (MFI 7, par 20). I reject that submission. Keith could and did provide services at the same level and of the same quality as the services provided by the Homelife carers. I accept the submission for the plaintiff that “the care provided by Keith was identical to the care provided by Homelife carers” (MFI 6 par 34).
The rates paid to Homelife (PX 2, Tab 1) are:

Ordinary hours - $62.17 per hour.

Saturday hours - $87.51 per hour.

Sunday hours - $112.85 per hour.

Evidence was also provided as to the rates for “outside hours” and for public holidays. I propose to ignore those figures and operate on the basis of ordinary hours, Saturday hours and Sunday hours. A submission was made that the increased commercial rates for Saturday and Sunday should be ignored. I do not accept that submission. If Keith had been unable to help Joseph on a Saturday, for example, the replacement of his services would have cost the Saturday Homelife rate. Further, it is hard to see why Keith’s weekends should be regarded as less valuable than the weekend of a commercial carer, particularly as Keith had already provided care from Monday to Friday, and had to continue without a break on Saturday and Sunday.

The evidence called for the plaintiff also showed that a “sleepover” is charged at $262.16 per night (PX 2, Tab 1). This figure accords with the evidence of Mr Corbett, who thought that he was paid about $200 per night. Presumably this is after tax. There is of course a commercial charge over and above what is paid to a carer, for providing care services. There are insurance costs and administration costs, not just the hourly rate paid to the person who does the sleepover. Anyone finding a carer for Joseph would have to go through an agency such as Homelife, who had a panel of carers available. It is unrealistic to say that the value of care was just the wages paid to a carer such as Mr Corbett. When a carer is unwell (as happened with Mr Corbett during the running of this hearing) an organisation such as Homelife can provide a replacement carer on short notice, rather than leave a client such as Joseph without care for days or weeks.
A sleepover involved a carer staying in the granny flat overnight and being asleep, but only waking up if called upon by Joseph. The sleepover rate of $262.16 per night, for an 8-hour shift, is a figure of $32.77 per hour. I regard this as the best guide to putting a value upon standby or indirect care provided by Keith and by Mrs Hudson. Both were close by to attend to any need of Joseph that arose. Both Keith and Mrs Hudson were providing this standby assistance. As previously recited, it was for 10 hours per day. I will apportion five hours of the standby care to Mrs Hudson and five hours to Keith.
I have already said that if the need arose, Keith was most usually the person who went and attended upon Joseph. However, when Joseph needed Keith, the care turned from standby care to active care, and that has been taken into account in the figure of six hours of active care for Keith which I have selected above. I reject the submission made for the plaintiff that this standby care should be apportioned 90% to Keith (MFI 6 pars 30 and 35). Both Keith and Mrs Hudson were standing by for 10 hours of the day, on the alert if Joseph needed some hands-on assistance. It would be unrealistic to apportion these standby hours which were provided by both parents, in any way other than 50-50.
I set out my calculations as to the weekly value of services provided by Keith in the following table:

Rate

Calculation

Amount

Ordinary rate

$62.17 x 6 hours x 5 days

$1,865.10

Saturday rate

$87.51 x 10 hours

$875.10

Sunday rate

$112.85 x 10 hours

$1,128.50

Sleepover/Standby rate

$32.77 x 5 hours x 7 days

$1,146.95

TOTAL

$5,015.65

Calculation of Damages for Loss of Services

In the following calculations I will ignore the cents.
The calculation for past loss of services for two years (2020 to 2022) is:

$5,015.65 x 101.3 = $508,085

Interest on that amount must be calculating by halving it, because the loss has only been suffered gradually over the last two years since late 2020. The calculation put forward for the plaintiff in MFI 2 fails to take account of the fact that the loss has been gradually accruing over two years, and was not suffered entirely on day one of the two year period.
Half of the past loss is $254,042. Interest on that amount for two years at court rates is $21,651.
Damages for the first eight years of the future (2022 to 2030) are calculated as follows:

$5,015.65 x 371.8 x 85% = $1,585,095

The calculation for the second period of future loss (2030 to 2036) is:

$5,015.65 x 70% x 264.7 x 0.789 x 75% = $549,942.

In summary, the award under Lord Campbell’s Act for the value of loss of services which would have been provided by Keith to Joseph is set out in the following table:

Period

Amount

Past (2020-2022)

$508,085

Interest on Past

$21,651

Future (2022-2030)

$1,585,095

Future (2030-2036)

$549,942

TOTAL

$2,664,773

Orders

The orders of the court are:

The damages in the claim brought by the plaintiff for the benefit of the estate of the late Keith Hudson are assessed at $475,840.38.

The damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,664,773 plus the costs of funds management.

Defer entry of final judgment pending ascertainment of the costs of funds management, by agreement or further hearing.

Order the defendant to pay the amount of $475,840.38 to the plaintiff.

Order the defendant to pay the plaintiff’s costs of the proceedings to date.

Stand the proceedings between the plaintiff and the defendant over generally with liberty to restore on 7 days notice.

Stand the cross claim over generally with liberty to restore on 7 days notice.

**********

Decision last updated: 21 November 2022

Medium Neutral Citation:	Hudson v Amaca Pty Ltd [2022] NSWDDT 6
Hearing dates:	11 July 2022, 5-7 September 2022, 25-26 October 2022
Date of orders:	21 November 2022
Decision date:	21 November 2022
Before:	Judge Russell SC
Decision:	(1) The damages in the claim brought by the plaintiff for the benefit of the estate of the late Keith Hudson are assessed at $475,840.38. (2) The damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,664,703 plus the costs of funds management. (3) Defer entry of final judgment pending ascertainment of the costs of funds management, by agreement or further hearing. (4) Order the defendant to pay the amount of $475,840.38 to the plaintiff. (5) Order the defendant to pay the plaintiff’s costs of the proceedings to date. (6) Stand the proceedings between the plaintiff and the defendant over generally with liberty to restore on 7 days notice. (7) Stand the cross claim over generally with liberty to restore on 7 days notice.
Catchwords:	DUST DISEASES — prescribed dust diseases — mesothelioma CHOICE OF LAW – where exposure to asbestos occurred in both New South Wales and Australian Capital Territory - torts with an inter-state element are governed by the lex loci delicti DAMAGES – general damages and loss of expectation of life - assessment under Australian Capital Territory law – where action survives for the benefit of the deceased’s estate - where act or omission that gives rise to the cause of action caused the person’s death – where plaintiff did not give a notice of claim before death – whether requirement to give notice of claim procedural or substantive DAMAGES – Lord Campbell’s Act – loss of services provided by deceased – assessment of damages under New South Wales legislation the same as under Australian Capital Territory legislation – where deceased’s son has severe disabilities – whether son required 24-hour care – direct care provided by deceased – standby supervision or indirect care provided by deceased and his wife – period for which deceased would have provided services – hourly rate selected to calculate damages – whether appropriate to use commercial cost of care to calculate damages
Legislation Cited:	Accident Compensation Act 1985 (VIC), s 134AB Civil Law (Wrongs) Act 2002 (ACT), ss 15, 16, 24, 25, 51, 54, 59, 62, 100 Civil Liability Act 2002 (NSW), ss 15A, 15B Civil Procedure Act 2005 (NSW), ss 3, 77, 90 Compensation to Relatives Act 1897 (NSW), ss 3, 4 Dust Diseases Tribunal Act 1989, s 12B Law Reform (Miscellaneous Provisions) Act 1944 (NSW) Personal Injuries Proceedings Act 2002 (QLD) Workers Compensation Act 1987 (NSW), s 151C
Cases Cited:	Amaca Pty Ltd v Raines [2018] NSWCA 216 Franklin v South Eastern Railway Co (1858) 3 H & N 211 Griffiths v Kerkemeyer (1977) 139 CLR 161 Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Nash v Commissioner for Railways [1963] SR (NSW) 357 Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668 Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 Webber v Comcare [2018] NSWDDT 10 Wickham Freightlines Pty Ltd v Ferguson [2013] NSWCA 66; (2013) 83 NSWLR 162
Texts Cited:	Luntz, Assessment of Damages for Personal Injury and Death (4th ed, Lexis Nexis)
Category:	Principal judgment
Parties:	Daphne Maureen Hudson (Plaintiff) Amaca Pty Limited (Defendant/Cross Claimant) AV Jennings Properties Limited (Cross Defendant)
Representation:	Counsel: J McIntyre SC and J Tryon (Plaintiff) D Priestley SC (Defendant) T Rowles (Cross Defendant) Solicitors: Rogalski Lawyers (Plaintiff) Holman Webb (Defendant/Cross Claimant) Sparke Helmore (Cross Defendant)
File Number(s):	DDT 2020/00341701

Head of Damage	Amount
General Damages	$360,000.00
Interest upon General Damages	$30,900.00
Loss of Expectation of Life	$15,500.00
Past Out-of-Pocket Expenses	$1,500.00
Domestic Assistance provided to Keith	$30,241.46
Interest upon Domestic Assistance provided to Keith	$2,756.47
TOTAL	$440,897.93

Rate	Calculation	Amount
Ordinary rate	$62.17 x 6 hours x 5 days	$1,865.10
Saturday rate	$87.51 x 10 hours	$875.10
Sunday rate	$112.85 x 10 hours	$1,128.50
Sleepover/Standby rate	$32.77 x 5 hours x 7 days	$1,146.95
TOTAL	$5,015.65

Period	Amount
Past (2020-2022)	$508,085
Interest on Past	$21,651
Future (2022-2030)	$1,585,095
Future (2030-2036)	$549,942
TOTAL	$2,664,773