John Ernest Lawrence v Orica Ltd

[2004] NSWDDT 17

Dust Diseases Tribunal

of New South Wales

CITATION:	John Ernest Lawrence v Orica Ltd and anor [2004] NSWDDT 17
PARTIES:	John Ernest Lawrence Orica Ltd Orica (Australia) Pty Ltd
MATTER NUMBER(S):	19 of 2004
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Damages :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	23 June 2004, 20 August 2004
DATE OF JUDGMENT:	09/10/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr M Joseph SC instructed by Alex Stuart and Associates FOR DEFENDANTS: Mr G J Parker instructed by Phillips Fox

JUDGMENT:

1. The plaintiff, Mr Lawrence, was between 3 July 1975 and 14 August 1996 employed at the ICI Chemical Plant at Botany. His employer was, in the period 3 July 1975 to 1 October 1979 Orica Ltd (Formerly ICI Australia Ltd) and from 2 October 1979 Orica Australia Pty Ltd (Formerly ICI Australia Operations Pty Ltd).

2. In the course of his work, initially as a fitter’s mate and subsequently as a rigger, Mr Lawrence inhaled asbestos dust and fibre as a result of which he has contracted the disease of mesothelioma.

3. Although the plaintiff's contraction of disease was a risk foreseeable by each defendant neither took reasonable precautions to protect him from that risk by providing appropriate warnings or supplying effective masks or respirators.

4. I accept the plaintiff's evidence as to the circumstances of his employment and also his evidence that had he been warned he would have used respirators had they been provided, or if not, sought alternate employment. I find that if the defendant had acted reasonably in providing respirators or warnings, the plaintiff would not have suffered his injury. He is entitled to a verdict.

General Damages

5. Mr Lawrence was born on 9 September 1932 and is now 72 years of age. He was in fair health until July 2003 when he found himself breathless while playing golf. Shortly thereafter he attended hospital for pleural drainage and then a laparoscopy, after which he was told he had malignant peritoneal mesothelioma. A further laparoscopy of 23 November 2003 confirmed this diagnosis.

6. On 24 February 2004 Professor David Morris at St George Hospital performed lengthy and radical surgery upon Mr Lawrence involving a peritonectomy, omentectomy, hemicolectomy, splenectomy and cholecystectomy. These surgical procedures were immediately followed by chemotherapy in which the whole of the abdominal cavity was flooded with chemical agents for some hours. Mr Lawrence was discharged from hospital on 10 March 2004 with an ileostomy bag which is to remain in place for 12 months, after which surgery will be required to reconnect the bowel.

7. On 15 March Mr Lawrence was readmitted to hospital suffering from infection of his wound and on 22 March 2004 again discharged.

8. Mr Lawrence then slowly improved in health. The pain receded and he was able to walk around the house and prepare his own lunch.

9. On 24 May 2004 Mr Lawrence received one dose of chemotherapy intravenously over a period of 45 minutes. He noticed no side effects.

10. On 29 May 2004 while at home watching TV he suffered a stroke affecting his right arm and leg and his ability to speak. He was taken to St George Hospital and admitted. On 31 May 2004 while in hospital he suffered a further stroke. Since that time he has had trouble with speech, drooping of his right lower face and some loss of dexterity of movement in the fingers of his right hand. While some improvement may occur he will be left with some degree of dysphasia and impairment of dexterity of the right hand. Professor Lance, a consultant neurologist qualified by the plaintiff, says that the stroke will cause little disability after the lapse of a further 12 months.

What Caused the Stroke?

11. In the opinion of Dr O'Neill for the defendant Mr Lawrence's stroke resulted from his vulnerability to the major risk factors for strokes being his age and hypertension, both unrelated to his surgery or chemotherapy and that no other risk factors have been implicated.

12. Professor Henderson, who gave evidence for the plaintiff, is of the opinion that systemic cancers such as mesotheliomas can be associated with strokes by way of inducing the production of factors in the blood causing development of thrombi. One such factor may be thrombocytosis, an increased concentration of platelets in the blood which modulate coagulation. Another is hyperfibrogenaemia or an increased concentration of a large blood protein also involved in coagulation. While Dr Henderson suggests other unnamed thromboplastic substances may also be induced by Mr Lawrence's cancer he concedes that he has no information permitting an inference that any process other than thrombocytosis was operative in the particular case.

13. Because a blood count taken on 23 April 2004 showed a mild thrombocytosis of 469 x 109 platelets per litre, the normal range being 150 to 450 x 109 Professor Henderson relates Mr Lawrence's stroke to thrombocytosis induced by his mesothelioma.

14. I cannot accept the professor's analysis because the platelet count before surgery was normal at 258 x 109 and normal at the time of the stroke at 273 x 109. The reading on 23 April 2004 is explained by Professor Morris as that temporary rise in platelet count that follows normally upon splenectomy.

15. Professor Morris relates the stroke to the surgery postulating that the stroke may have been due to an embolus that formed at the time of surgery or shortly after, during a relatively brief period of thrombocytosis, which embolus detached on the day of the stroke.

16. Professor Lance gave evidence in the plaintiff's case. Professor Lance has practised as a neurologist for nearly 50 years, he was for 30 years the professor of neurology and head of the department at the University of New South Wales. He gave this evidence:

After all a stroke can occur at any time and becomes more frequent as age progresses but we have in this instance to compare the risk of a man like Mr Lawrence at his age having a stroke out of the blue without obvious cause and having a stroke after a known malignancy, extraordinary treatment removing the whole of the peritoneum and then finally chemotherapy. I came to the conclusion considering these two things on the balance of probabilities is that the former events had a factor, an important substantial factor in precipitating his stroke.
Question:

Just so I may understand it. Is it your opinion that the medical treatment put him at risk of a stroke or more probably than not they actually affected the occurrence of the stroke.

Answer:

I think all these factors, your Honour. He had a malignant disease and a malignant disease (sic) are associated with hypocoaguable states, in other words an increased risk of thrombosis, he had an extensive operation and there is always a post-operative risk of thrombosis, and this was an extraordinarily extensive operation, and then finally chemotherapy. Now, there are no decent controlled trials to enable me to say that there is an objective evidence that chemotherapy per se would increase the tendency of a stroke but there are references in the text books, standard text books that it is a risk factor, I've seen it on the internet, a couple of reports where strokes have followed chemotherapy. Sufficient to say that there may or may not be a connection with chemotherapy but strokes have occurred after chemotherapy and strokes have occurred with malignancy and strokes have occurred post-operatively. It seems to be beyond the bounds of commonsense to think that the risk of his having a stroke had none of these things happened would be the same as after these considerably devastating procedures.

Question:

So it is your opinion that there was a risk created by the procedures and that risk came home, is that there was something chemical or biological which caused the stroke.

Answer:

I cannot explain the mechanism, there were no coagual studies done, studies of coaguability, there were platelette counts done but I am not sufficient of a haematologist to be able to comment on the significance of that. I simply feel that if the concatenation of circumstances is sufficient to increase the risk of stroke and therefore just on the balance of probabilities I formed my conclusion.

17. I am persuaded by Professor Lance and the sequence of events that, although Professor Henderson's hypothesis is incorrect, more probably than not a materially contributive cause of the stroke was an imbalance in blood chemistry occurring either at surgery, during the period of thrombocytosis, following surgery, or by the intervention of chemotherapy.

18. The conclusions of Dr O'Neill at p 4 of his report are not incompatible with this factual conclusion. Dr O'Neill wrote:

He was presumably a sick man at the time of the stroke as a consequence of his tumour, its surgery and the chemotherapy but these are not primary causes of stroke.

On balance, given available evidence, it is my view that there is no clear causal relationship between the mesothelioma, its treatment and the subsequent development of a stroke. (Emphasis added).

19. Professor Morris believes that as a result of his surgical intervention Mr Lawrence has a better than 50 per cent chance of surviving five years and that if he does survive five years it is "very likely" that he will remain well indefinitely with a normal quality of life.

Prognosis

20. If Mr Lawrence were to die within five years from his mesothelioma an appropriate level of general damages would be $180,000 given the terrible nature of his surgery, the indignity of his stoma and the complications of his stroke. If he is to survive, an appropriate award of damages would be $90,000. Upon Malec v Hutton principles I propose that general damages be $90,000 plus half the difference between that and $180,000 and award $135,000.

Interest

21. That suffering which would occasion an award of $90,000 is mostly behind Mr Lawrence. I award interest on $70,000 at 2 per cent for 12 months, $1,400.

Possible Loss of Expectation of Life

22. Upon Malec v Hutton principles again I award $7,500.

Griffiths v Kerkemeyer Past Care

23. Because of the provisions of s60AA of the Workers Compensation Act 1987 the cost of domestic services will not be borne by the Dust Diseases Board.

24. Ms Angela Shanahan, the occupational therapist retained by the defendant attended upon Mr Lawrence and his wife and took a careful history of Mr Lawrence's symptoms and disabilities. She formed an opinion as to the manner in which the needs created by these disabilities may have been met by the provision of commercial services and the cost of such services. She then expressed the conclusion that, including the care necessitated by the stroke the cost of care, services and equipment to 10 July 2004 amounted to $16,809.23 plus $4,949.10 and that his needs after that date at present levels of disability may be catered for at a cost of $227.57 per week.

25. Although Ms Tchan, an expert qualified by the plaintiff, assesses the needs and costs as very much higher than these estimates, Ms Shanahan's assumptions and calculations accord with my own conclusions as to what is reasonable and for that reason her opinion is to be preferred.

26. The period 10 July 2004 to 10 September 2004 comprises ten weeks. The total in respect of past services is then:

$16,809.23
$ 4,949.10
$ 2,275.70
Total	$24,034.03

27. If Mr Lawrence is to survive then by the end of this year when his stoma is removed he will probably require no care and enjoy a normal quality of life. The appropriate award for future care until the end of the year when he will have surgery for the removal of his stoma is 16 weeks or so at $227.57 per week or in round figures $3,500.

28. If he is to suffer a fatal recurrence with a 12 month prognosis the cost of future care in the opinion of Ms Shanahan would amount to $18,917.87.

29. Factoring in the possibility of a further stroke and a 50 per cent contingency I allow $10,000 for future care and services which may arise should there be a recurrence. Because of inherent uncertainty I do not discount this figure.

30. To this figure I add $10,000 in respect of care which may be required following surgery for the removal of the stoma and which may be required in the possible circumstance that the quality of life thereafter is not as Professor Morris may expect.

Sullivan v Gordon

31. Sullivan v Gordon [(1999)] 47 NSWLR 319 decided no more than that a disabled plaintiff is entitled to damages in respect of the cost of providing replacement care to dependent children. Beazley JA with whom Spigelman CJ, Mason P, Powell and Stein JJA agreed said at 331:

The question for determination is ... whether damages to compensate for the loss of a capacity to care for dependent children is compensable.(sic)
Mason P said at 324 that:
This case does not involve the issue of a plaintiff's 'need ' to care for persons other than his or her own children.

32. Mr Joseph for the plaintiff advances a claim in respect of what is said to be the need of the plaintiff's wife for care consequent upon his disablement or death. The claim is quantified as between $76,229 and $119,899.

33. The services in respect of which the need arises were said to be:

· Cleaning

· Vacuuming

· Cleaning the windows

· Looking after the backyard and garden

· Mowing the lawn

· Doing the edges

· Cleaning the pool

· Looking after the vegetable garden

· Assisting with the laundry

· Raking the leaves

· Turning the mattress

· Cleaning the car, changing the oil and maintaining the car

· Cleaning the gutters

· Trimming the trees

All of these tasks were formerly performed by the plaintiff.

34. Mrs Lawrence was involved in a motor vehicle accident in 1980 in consequence of which she has some back and neck pain. In evidence she said this:

Question Did those problems, that is your neck, low back, did that stop you doing things around the house.

Answer Not really because I have to do it by myself you know that around the house.

Question Can you do heavy work.

Answer Not really, not really really heavy work, no.

35. Mrs Lawrence is 62 years of age and other than suffering from neck and back pain is apparently in good health. She does not herself assert that she is disabled from performing any of the duties required or desirable around her house. The claim pursuant to Sullivan v Gordon is without merit.

36. The plaintiff is entitled to damages then as follows:

General damages $135,000

Interest $1,400

Possible loss of expectation of life $7,500

Griffiths v Kerkemeyer past $24,034.

Interest on past Griffiths v Kerkemeyer at 5 per cent for one year $1,201.

Probable future Griffiths v Kerkemeyer $3,500.

Contingent Griffiths v Kerkemeyer $20,000

37. I enter verdict and judgment for the plaintiff in the sum of $192,635. The defendant is to pay the plaintiff's costs.

Mr M J Joseph SC instructed by Alex Stuart and Associates appeared for the plaintiff

Mr G Parker instructed by Phillips Fox appeared for the defendant