Keith Richard Abraham v Wallaby Grip Ltd and ors - [2006] NSWDDT 22

NEW SOUTH WALES DUST DISEASES TRIBUNAL

CITATION: Keith Richard Abraham v Wallaby Grip Ltd and ors [2006] NSWDDT 22

PARTIES:
Keith Richard Abraham
Wallaby Grip Ltd
Wallaby Grip (BAE) Pty Ltd
Tyre Marketers (Australia) Ltd
Firestone Australia Pty Ltd

CASE NUMBER: 320 of 2004 of 2004

CATCH WORDS: Dust Diseases Tribunal

LEGISLATION CITED:

CORAM: Curtis J

DATES OF HEARING: 19 and 20 June 2006

DECISION DATE: 21/06/2006

LEGAL REPRESENTATIVES

Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff
Mr J C Sheller instructed by Middletons Lawyers appeared for the first and second defendants
Ms W S Strathdee instructed by Ferguson Lawyers appeared for the third and fourth defendants

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter No DDT320 of 2004

Keith Richard Abraham

Wallaby Grip Limited

and

Wallaby Grip (BAE) Pty Limited

and

Tyre Marketers (Australia) Limited

and

Firestone Australia Pty Limited

21 June 2006

JUDGMENT
CURTIS J

The liability of the defendants to the plaintiff is not in dispute.
Mr Abraham was exposed to the products of Wallaby Grip Limited and Wallaby Grip (BAE) Pty Limited in the employ of Tyre Marketers (Australia) Limited (formerly Beaurepaire Tyre Service Pty Limited) and Firestone Australia Pty Limited, when working in the tyre industry. In consequence of this exposure he has developed pleural plaques described by Dr McEvoy, qualified by the defendants, as being bilateral and of moderate profusion, moderately to heavily calcified and up to 5 millimetres in thickness, occupying something approaching 30 per cent of the total circumference of the parietal pleura. These pleural plaques impinge upon relevant nerves and cause pain. So much is not in dispute.
The plaintiff's case is quite simple. In late 2001 he says he suffered the onset of pain in his abdomen, on the right front side, between the bottom of his ribcage and his iliac fossa. That pain has remained with him. It is now much worse and has spread to other areas including his chest.
Despite extensive invasive and non-invasive diagnostic procedures, including four laparoscopies, no cause was found for the pain which grew and varied in intensity, other than the present agreed diagnosis.
In April or May 2004 Mr Abraham suffered an acute exacerbation of pain in his chest, more severe on the right than the left hand side. This pain was diagnosed as pathogenic pain caused by the pleural plaques impinging upon the nerve paths common to the chest wall and descending below the ribs along the abdominal wall, particularly at the iliac fossa and to the thigh. Neither the causes of the chest pain nor the anatomical distribution of the relevant nerve is in dispute.
The defendants' case is also quite simple. Mr Sheller for the defendants argues that because Mr Abraham's account of continuing abdominal pain and chest pain prior to April/May 2004 is to be disbelieved, the extent of his claims to present suffering must be similarly disbelieved and his claim for general damages discounted accordingly. Mr Sheller concedes he can offer no medical explanation for the onset of abdominal pain in 2001 if it was not related to the pleural plaques. He also concedes that nowhere in medical records entered between 2002 and 2004 is there any categorical statement that the pain had completely abated, rather he suggests that at various times between 2002 and 2004 when one would expect a record of continuing abdominal pain or chest pain, the relevant record is silent.
The records of Mr Abraham's general practitioner do not bear out this submission. They record complaints of abdominal pain in August 2002 beside the note "to see pain clinic next?". In December 2002 a record of right thigh pain, consistent with the evidence of Professor Crammond as to the distribution of the relevant nerve, is recorded. In December 2003 the notes record "abdominal pain and swelling extensively investigated a year ago but has worsened"; in May 2004 "persistent upper abdominal pain has worsened in recent weeks". While no specific complaint of chest pain is recorded until May 2004 and thereafter the chest pain became the greatest source of pain, it is apparent from the evidence of Professor Crammond, who commenced treatment in September 2004, and the note of May 2004, that the right abdominal pain persisted until the appearance of concurrent chest pain.
It is not surprising that in the course of extensive investigations which took between 12 months and 18 months, the local doctor does not record continuous complaints of the pain when it is understood by the doctor and patient that the pain had not abated. Mr Sheller asks me to disbelieve Mr Abraham, when he says he had chest pain prior to May 2004, because no complaint is recorded. I am not prepared to take that step. It is apparent from the evidence of Mr Abraham that the chest pain came on some time after the initial disabling abdominal pain; it is also apparent that relative to that pain he thought the chest pain was of little consequence until May 2004. It is not surprising that the greater pain masked the lesser. In any event I really do not see that the precise timing of the onset of chest pain is important. The records disclose he had both pains in May 2004. Mr Abraham says he had chest pain before April/May 2004 and I believe him. His evidence is consistent with the unanimous medical opinion in this case, to the effect that the chest pain is caused by impingement of pleural plaques upon that same nerve which accounts for the earlier abdominal pain. Having seen and heard Mr Abraham giving evidence, and make forthright concessions in cross-examination, I accept him entirely as a witness of truth. His general damages are to be assessed upon the basis that everything he says is true.
Dr Oliver, qualified by the defendants, said in his report of 14 February 2005 that "the plaintiff has significant intermittent pain and at present is under the care of the Royal Brisbane Hospital pain clinic and is on medication to control the pain. This impairs his ability to enjoy life significantly". Before the present pathology presented Mr Abraham was no stranger to pain. He had suffered back pain to such an extent that a laminectomy was required. He suffered the pain of a failed knee replacement. From these events he says he entirely recovered. I think he is somewhat stoic. Mr Abraham says that he is in "constant inescapable pain which consumes him". He constantly changes position when at rest, and when active "every movement is a reminder of my asbestos disease". He has lost the will for social interaction and has become, in the words of his wife, "a very touchy, angry, very sad and emotionally fragile person who feels there is not much of a future". He weeps often. His pain, depression, frustration and anxiety have had a corrosive effect upon his relationships with his children and other family members. He is unable to maintain focus in conversations because "my mind is constantly thinking about pain". He is under the care of Professor Crammond, a specialist in pain management, and presently on high doses of very strong pain medication. Despite this regime he presently rates his pain at 7 to 8 out of 10 and also suffers from the relevant side effects of the analgesics.
Professor Crammond has told him that his condition is incurable and will worsen. The professor has treated over 100 persons with this affliction and no one of them has escaped a gradual decline and increase in pain. I accept the submissions of Mr Little that Mr Abraham's plight is that of a most extreme case. He is now aged 69 and has a life expectancy of around 14 years. During this time he will suffer unremitting, severe and worsening pain. He will be further troubled by mental turmoil, hopelessness, frustration and despair and the possibility of more sinister disease.
I assess general damages in the sum of $150,000. I allow interest on approximately $50,000 at 2 per cent from January 2002, rounded out at $5,000. I allow future out of pocket expenses at the agreed sum of $45,000. The need for future care has been agreed mathematically at $48,615. However, because of uncertainties I round this sum up to $50,000. Past out of pocket expenses are agreed at $14, 610.33.
Leave to each defendant to issue cross-claims on or before 31 December 2006.
Judgment for the plaintiff in the sum of $264,610.33. The defendants to pay the plaintiff's costs.

Mr G Little SC instructed by Turner Freeman appeared for the plaintiff
Mr J Sheller instructed by Middletons Lawyers appeared for the first and second defendants

Ms W Strathdee instructed by Ferguson Lawyers appeared for the third and fourth defendants