Jensen v Commonwealth of Australia

[2005] NSWDDT 44

Dust Diseases Tribunal

of New South Wales

CITATION:	Jensen v Commonwealth of Australia [2005] NSWDDT 44
PARTIES:	Peter Waldemar Jensen (Plaintiff) Commonwealth of Australia (Defendant)
MATTER NUMBER(S):	407/04
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:- asbestosis diagnosis other unrelated disorders clinical presentation medical experts' evidence given concurrently finding of asbestosis
CASES CITED:	Griffith v Kerkemeyer (1977) 139 CLR 161
DATES OF HEARING:	23 August 2005
EX TEMPORE JUDGMENT DATE:	08/23/2005
LEGAL REPRESENTATIVES:	J L Sharpe instructed by Turner Freeman appeared for the plaintiff G P F Rundle instructed by Church & Grace appeared for the defendant

JUDGMENT:

O'MEALLY P

1. This is a claim for damages by Peter Waldemar Jensen against the Commonwealth of Australia.

The nature of the case
2. During the course of his employment by South Australian Railways and the Australian National Railways Commission the plaintiff was heavily exposed to and inhaled asbestos dust and fibre. The Commonwealth of Australia has inherited the liability of the two railway authorities. The detail of the plaintiff's exposure to asbestos in the course of his employment is recited in his affidavit, PX1, and upon that he was not cross-examined. Mr Rundle, who appears for the defendant, has conceded that the account of the plaintiff's exposure to asbestos is not controversial.

3. The first matter of controversy in this case is whether the plaintiff has any compensable disease. If that issue is resolved in his favour then the entitlement to damages referrable to and consequential upon such a finding is also controversial.

The Plaintiff
4. The plaintiff was born on 8 October 1935 and therefore will soon attain the age of 70 years. According to the Australian life tables a 69 year old Australian male has a life expectancy of 14 years. It is material, however, to consider a number of other factors.

5. Until 1980 the plaintiff was a smoker of cigarettes and it is agreed that he has a 27 pack year history of cigarette smoking. A pack year is equivalent to smoking one packet of 20 cigarettes each day. A 27 pack year history indicates he was a heavy smoker. As is well known, smoking affects the respiratory system and an obstructive defect has been demonstrated upon lung function testing of the plaintiff.
Obstructive as opposed to restrictive defects are usually associated with smoking, though in some cases an obstructive defect may appear in cases of asbestosis.

6. The plaintiff also has a long history of cardiac disease and has undergone coronary by-pass surgery. Additionally, he suffers from hypertension and is on medication for that disorder. He is on medication also for gout and on medication to reduce high levels of cholesterol in his blood. He has a left ventricular defect.

Does the plaintiff have asbestosis?
7. I have been assisted by the evidence given jointly, or at least in the presence of one-another, by Professor Alpers, who was qualified by the plaintiff's solicitors, and Dr Antic, who was qualified by the solicitors for the defendant. Each of these doctors is an expert in the field of respiratory medicine. On many areas they are in agreement, but they disagree on the question whether the plaintiff has asbestosis. Each of these witnesses has examined CT scans and, in the courtroom, indicated by reference to them the basis upon which they have formed their opinions.

8. There are, as is well known, clinical criteria to assist in making of a diagnosis of asbestosis. Some of these clinical signs appear in patients with other disorders. The task required of me is to assess which of the two doctors’ opinions I should prefer.

9. Each doctor agrees that the plaintiff's breathlessness is multifactorial. Dr Antic ascribes the plaintiff's breathlessness to the combined effects of his smoking and cardiac disease. Professor Alpers, whilst conceding that the plaintiff's smoking and cardiac disease have affected his breathlessness, is of the opinion that some contribution to it has been made by asbestosis which he, unlike Dr Antic, has diagnosed on clinical and radiological bases.

10. When examined by Dr Antic, the plaintiff did not exhibit audible respiratory crackles. When examined by Professor Alpers on two separated occasions crackles were detected. Crackles are an important clinical feature of asbestosis. In the opinion of Dr Antic, crackles could be caused by or result from cardiac disorder, but he did not hear them. Professor Alpers’ view is that, were crackles to be associated with cardiac disease, the plaintiff's clinical presentation and his breathlessness would have been at a level much higher than was noticed upon examination by him.

11. In my view, it is significant that lung function testing shows a restrictive defect, that the plaintiff has a history of fairly heavy asbestos exposure, that changes visible on CT scan show parenchymal fibrosis and that the crackles are present. These signs favour a diagnosis of asbestosis.

12. I think I do no violence to Professor Alpers' view when I say that he believes the plaintiff’s asbestosis to be mild. This is not only because Professor Alpers is of the view that the nature of the fibrosis is consistent with early asbestosis, but that the effects of smoking and cardiac disease do play a significant part in his disability.

13. I am satisfied that the plaintiff has mild asbestosis.

General damages and loss of expectation of life
14. In assessing an amount appropriate for general damages I must take into account the fact that the plaintiff became symptomatic about two years ago, that asbestosis is a progressive disorder, that statistically at least he is at risk of developing bronchogenic carcinoma or mesothelioma, a risk which has been agreed to be in the order of 5 per cent, and that not all of his breathlessness is due to asbestos disease.

15. Dr Hickey, a cardiologist qualified by the defendant, has expressed the view that the plaintiff's reduction in life expectancy would at most be five years. I take that to mean that there is a reduction to nine years, though it should be noted that Dr Hickey's opinion was based not upon a physical examination of the plaintiff, but on a consideration of material provided to him.

16. Doing the best I can to do justice between the parties, I think a sum sufficient to compensate the plaintiff for his past and future discomfort and the risks to which I have referred, is $12,500.

17. The amount appropriate to compensate him for loss of expectation of life is $5,000.00.

Special damages
18. Past medical expenses have been agreed in the sum of $391.50.

19. In respect of future medical treatment, the defendant conceded a sum of $5,500.00 would be appropriate. Mr Sharpe, counsel for the plaintiff, urges that a greater sum than that should be awarded, but the evidence to support an award of future medical expenses, other than an observation by Professor Alpers that the plaintiff will require future monitoring, is non existent. Because of the defendant's concession I will allow the sum of $5,500.00.

20. Initially I was disposed to refrain from awarding a sum for future Griffith v Kerkemeyer expenses. The evidence does not satisfy me that the plaintiff is entitled to a sum for the cost of past services, but I do think it appropriate to award a sum by way of a cushion against the likelihood of the necessity for future Griffith v Kerkemeyer expenses. Even when there is evidence, one can do no more than take a broad brush approach to the assessment of damages under this head. Doing the best I can, I think it appropriate to award the plaintiff the sum of $2,500.00 as a cushion for future Griffith v Kerkemeyer expenses.

21. Of the general damages, $2,500.00 should be allocated to the past. Thus the plaintiff is entitled to damages made up as follows:

General damages $12,500.00
Interest on past general damages $100.00
Loss of expectation of life $5,000.00
Future Griffith v Kerkemeyer expenses $2,500.00
Future medical expenses $5,500.00
Past medical expenses $391.50
Making a total of $25,991.50

22. There will be verdict for the plaintiff and judgment in the sum of $25,991.50.

23. The defendant will pay the plaintiff's costs as agreed or assessed.

24. In the cross-claim by the Commonwealth of Australia against Amaba Pty Ltd there will be verdict and judgment in accordance with paragraph 1 of the terms of settlement. I note paragraph 2. In respect of the first and second cross-defendants the cross-claim will be listed for directions on 5 September 2005.

Mr J L Sharpe instructed by Turner Freeman appeared for the Plaintiff

Mr G P F Rundle instructed by Church & Grace appeared for the Defendant