Kennedy v Cimic Group Limited and CPB Contractors Pty Ltd

[2020] NSWDDT 7

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Kennedy v CIMIC Group Limited and CPB Contractors Pty Ltd [2020] NSWDDT 7

Hearing dates:

12 March 2020, 9-12 June 2020, 24 and 27 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Before:

Scotting J

Decision:

(1)   Verdict and judgment for the plaintiff against the first defendant in the sum of $690,562.

(2)   Verdict and judgment for the plaintiff against the second defendant in the sum of $585,343.

(3)   The plaintiff is only entitled to seek satisfaction of either or both judgments against one or both of the defendants to a maximum of $690,562.

(4)   The defendants are to pay the plaintiff’s costs of the proceedings on the ordinary basis, as agreed or assessed.

(5)   I grant liberty to the parties to approach my Associate to relist the matter if a different costs order is sought.

Catchwords:

DUST DISEASES TRIBUNAL- date of employment – exposure to asbestos – damages – choice of law between New South Wales and Western Australia – general damages – damages for non-pecuniary loss – tariff for mesothelioma – gratuitous attendant care services – loss of capacity to provide gratuitous domestic services to a grandchild with substantial needs

Legislation Cited:

Children and Community Services Act 2004 (WA)

Civil Liability Act 2002 (NSW)

Civil Liability Act 2002 (WA)

Dust Diseases Tribunal Act 1989

Mental Health Act 2014 (WA)

Workers Compensation (Dust Diseases) Act 1942

Cases Cited:

Amaca Pty Ltd v King (2011) 35VR 280

Amaca Pty Ltd v Raines [2018] NSWCA 216

Belhaven and Stenton Peerage (1875) 1 App Cas 278

Booth v Amaca Pty Ltd [2010] NSWDDT 8

Burnicle v Cutelli [1982] 2NSWLR 26

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 142

CSR Ltd v Eddy (2005) 226 CLR 1

Dib v Amaca Pty Ltd [2017] NSWDDT 6

Griffiths v Kerkemeyer (1977) 139 CLR 161

Grincelis v House (2000) 201 CLR 321

Hannell v Amaca Pty Ltd [2006] WASC 310

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503

Landos v Amaca Pty Ltd [2017] NSWDDT 7

Lavis v Amaca Pty Ltd [2018] NSWDDT 6

Lowes v Amaca Pty Ltd [2011] WASC 287

Luxton v Vines (1952) 85 CLR 352

Marsland v Andjelic (No 2) (1993) 32 NSWLR 649

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657

MR & RC Smith Pty Ltd (trading as Ultra Tune (Osborne Park)) v Wyatt (No 2) [2012] WASCA 110

Phillips v Amaca Pty Ltd [2010] NSWDDT 11

Phillips v Amaca Pty Ltd [2019] NSWDDT 8

Piatti v ACN 000246542 & Anor [2019] NSWDDT 7

Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118

Roads and Traffic Authority v Cremona [2001] NSWCA 338

Seltsam Pty Ltd v McGuiness at (2000) 49 NSWLR 262

Skelton v Collins (1966) 115 CLR 94

Talifero v Amaca Pty Ltd [2017] NSWDDT 14

Teubner v Humble (1963) 108 CLR 491

The Queen v Pham (2015) 256 CLR 550

Van Gervan v Fenton (1992) 175 CLR 327

Webber v Comcare [2018] NSWDDT 10

Werfel v Amaca Pty Ltd [2019] SAET 159

Wickham v Treloar (1960) 77 WN (NSW) 350

Williams v Amaca [2020] NSWDDT 2

Texts Cited:

Assessment of Damages for Personal Injury and Death, 4^th ed, Lexis Nexis, Sydney, 2001

Category:

Principal judgment

Parties:

Fabian Kennedy (Plaintiff)
CIMIC Group Limited (formerly Leighton Contractors Ltd) (First Defendant)
CPB Contractors Pty Ltd (formerly Leighton Contractors Pty Ltd (Second Defendant)

Representation:

Counsel: J McIntyre SC (Plaintiff)
D Priestley SC (First Defendant)
G Parker SC (Second Defendant)

Solicitors: Segelov Taylor Lawyers (Plaintiff)
Thompson Cooper Lawyers (First Defendant)
HWL Ebsworth (Second Defendant)

File Number(s):

455/2019

Publication restriction:

The publication of any information that identifies or is likely to identify the plaintiff’s granddaughter is prohibited.

Judgment

Introduction

1. The plaintiff suffers from mesothelioma, which he alleges he contracted as a result of exposure to asbestos whilst he was employed as a surveyor by the defendants.

2. The plaintiff was first employed by Leightons Contractors (Leightons) in Sydney in late 1967. Leightons was then known as Leightons Contractors Ltd, which changed its name to Leightons Holdings Ltd on 1 July 1971 and to CIMIC Group Ltd on 21 April 2015 (CIMIC). CIMIC is the first defendant in these proceedings.

3. The plaintiff moved to Perth with Leightons in about May 1970 and worked from its Perth office until 1980. On 28 April 1971 Leighton Construction Pty Ltd was incorporated. This company changed its name on 1 July 1971 to Leighton Contractors Pty Ltd and to CPB Contractors Pty Ltd (CPB) on 4 January 2016. CPB is the second defendant in these proceedings.

4. The construction activities of CIMIC were taken over by CPB in 1971, after which, CIMIC became a holding company. The date of the takeover by CPB is in dispute.

5. The issues in the case are as follows:

1. Was the plaintiff exposed to asbestos in the course of his employment with CIMIC? [1] (Issue 1)

   1. If the plaintiff establishes Issue 1, CIMIC admits that it breached the duty of care owed to the plaintiff and causation.

2. On what date did CPB take over the construction activities of CIMIC? (Issue 2)

3. On what date was the plaintiff employed by CPB? (Issue 3)

4. Was the plaintiff exposed to sprayed asbestos insulation in the course of his employment with CPB at the Reserve Bank building site in Perth? [2] (Issue 4)

   2. If the plaintiff establishes Issue 4, CPB admits that it breached the duty of care owed to the plaintiff and belatedly admitted causation.

5. Damages (Issue 5).

6. The tortious conduct alleged took place in New South Wales and Western Australia and accordingly the Tribunal must apply the substantive law of the place where the tort occurred: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. All issues of the kinds of damage or the amounts of damage that may be recovered are treated as substantive issues: John Pfeiffer at [100]. This gives rise to the following matters to be taken into account when assessing damages:

1. section 10A Civil Liability Act 2002(WA) modifies the common law to provide that in assessing general damages the court may refer to earlier decisions or decisions of other courts assessing the appropriate award of those damages. In New South Wales, the common law applies and the assessment of general damages is concerned with the subjective feelings of the plaintiff and not a comparison of like cases: Skelton v Collins (1966) 115 CLR 94 and Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118.

2. section 15A Civil Liability Act 2002 (NSW) restricts the amount of damages available for gratuitous attendant care services to the hourly rate specified by s 15(5) of that Act. In Western Australia, the common law applies and the damages awarded are to be calculated by reference to the commercial cost of providing those services.

3. section 15B Civil Liability Act 2002 (NSW) provides for a head of damage relating to the plaintiff’s loss of capacity to provide domestic services to his granddaughter who lives with him. In Western Australia, the common law applies and no damages can be recovered under this head, unless the loss of capacity to provide services can be regarded as a loss of or an impairment of amenity in which case it can form part of an award for general damages: CSR Ltd v Eddy (2005) 226 CLR 1 at [71].

7. The plaintiff’s granddaughter is presently aged 16 and has a mental incapacity. She is a child under the protection of the Chief Executive Officer of the Department of Communities of Western Australia. Section 237 Children and Community Services Act 2004 (WA) makes it an offence to publish information that identifies or is likely to lead to the identification of a child who is the subject of a protection order under that Act, accordingly I have adopted pseudonyms for the plaintiff, his wife, his granddaughter and removed references that would identify where they live. These measures are also necessary to protect the privacy of the plaintiff’s granddaughter with respect to her mental conditions and her behaviour that results from her condition and I am satisfied that I have the power to do so: s 10(4) Dust Diseases Tribunal Act 1989. I have considered the impact these measures have on the principle of open justice and am satisfied that they do not have an adverse impact on the principle. The identity of the relevant persons is not essential to an understanding of the outcome of the case.

8. Considerable delays have been encountered, for various reasons, in the completion of the case. I have endeavoured to give this judgment as soon as possible after submissions were completed because I am concerned about the state of the plaintiff’s health and it is in the interests of justice that he knows the result of the proceedings before his demise.

The plaintiff’s case

9. The plaintiff read an affidavit sworn by him on 8 February 2020 and affidavits of his wife sworn 11 June 2020 and 8 July 2020. The plaintiff and his wife both gave evidence at their home in Western Australia on 12 March 2020.

10. The plaintiff tendered expert reports of:

1. Natala Cogger, occupational therapist dated 20 February 2019, 26 May 2020 and 5 June 2020;

2. Associate Professor Sonja Klebe, pathologist, dated 15 June 2020; and

3. Dr Mark Kneebone, psychiatrist dated 5 June 2020.

11. Ms Cogger was called to give evidence by audio-visual link (AVL) on 9 June 2020. Professor Klebe was not required for cross-examination.

12. Dr Kneebone and Dr Graham Vickery, psychiatrist, who was qualified by the defendants, participated in an expert conclave and produced a joint report dated 25 June 2020 (the joint report). The psychiatrists were called to give their evidence concurrently by AVL on 24 July 2020.

13. The plaintiff also tendered a paginated bundle of medical and educational records relating to his granddaughter and other material that I will refer to where it is necessary to do so.

CIMIC’s case

14. CIMIC tendered the expert reports of:

1. Deborah Hammond, occupational therapist, dated 4 June 2020; and

2. Dr Graham Vickery dated 3 June 2020 and 4 June 2020.

15. Ms Hammond was called to give evidence by AVL on 10 June 2020. CPB also relied on Ms Hammond’s evidence. Dr Vickery gave evidence on 24 July 2020.

CPB’s case

16. CPB tendered a series of photographs of the Reserve Bank building in Perth during its construction that were taken on various dates in 1972 that are relevant to Issues 3 and 4.

17. CPB through its solicitor admitted that:

1. CPB was incorporated on 28 April 1971;

2. When it took over the construction activities of CIMIC in 1971 that CIMIC immediately thereafter became a holding company; and

3. CIMIC was renamed and known as Leightons Holdings Ltd from 1 July 1971.

The lay evidence in the plaintiff’s case

18. It is convenient to set out a summary of the plaintiff’s evidence and the evidence of his wife, because it sets out the factual background for the determination of the issues. I have summarised the content of the expert evidence when dealing with the resolution of the issue to which it relates.

The plaintiff’s evidence

19. The plaintiff’s evidence can be summarised as follows.

Background, employment history and circumstances of exposure to asbestos

20. The plaintiff was born on 28 January 1938 in Bath in the United Kingdom. In 1953 he came to Australia as part of the Big Brother Movement (BBM) which sponsored and supported English boys to move from the United Kingdom to Australia. The plaintiff arrived in Australia in January 1954, a week prior to his 16^th birthday. The BBM placed the plaintiff in various jobs between 1954 and 1956.

21. In 1957 the BBM arranged a job for the plaintiff with the Department of Civil Aviation as a surveyor’s assistant. In 1957 the plaintiff obtained employment with WG Hunt as a trainee surveyor/draftsman based at Parramatta. The drafting work consisted primarily of drawing up surveys from the measurements that field workers had taken.

22. In 1959 the plaintiff returned to England for 20 months and worked at a rubber factory. When he returned to Australia he went back to work at WG Hunt.

23. After a few years, the plaintiff was sent out to do field work including survey work on new sub-divisions. This work usually consisted of pegging out residential blocks, roads and where services would need to go. These surveys were then drawn up and provided to clients to use in the registration of the sub-divisions. From about 1963 the plaintiff was also on site whilst construction work was being undertaken. This involved marking out where construction was to take place and measuring distances from the boundary to the edge of proposed buildings. On site, the plaintiff often worked near carpenters and other workers as they carried out construction work. The plaintiff estimated that during his employment with WG Hunt, about 20% of his time was spent on site and about half of that time was spent doing preliminary sub-division work where there was no construction work taking place.

24. In or about late 1967, the plaintiff was offered a job at Leightons. At that time Leightons were principal engineers and contractors that undertook large building and engineering projects around Sydney.

25. The first project the plaintiff worked on for Leightons was the construction of the Endeavour Hostel for British migrants in South Coogee (the Hostel site). This was a very large job that took about 18 months to complete. The project involved the construction of various structures including multi-storey buildings, retaining walls, services, roads, pathways, sewers and water pipes that needed to be surveyed before and during construction. When the plaintiff first attended the Hostel site, construction had not commenced. The plaintiff worked at the Hostel site from time to time until it was almost completed. The plaintiff regularly worked next to carpenters and other tradesmen as they cut and installed asbestos cement fibro sheets. The construction work was very dusty and dust went into the air as the asbestos cement fibro sheets were cut. The plaintiff was not given a mask or told to take any precautions to avoid the inhalation of the dust. Most of the plaintiff’s work at the Hostel site was done outdoors and he did not have much reason to enter the buildings. The Hostel site was a very dusty site and there were multiple sources of dust during the construction work including wood dust, brick dust and cement dust.

26. The plaintiff worked at a number of other sites in Sydney but he was not exposed to asbestos on those sites. During the course of his employment, the plaintiff spent a large amount of his time working in the Leightons’ office at Bankstown.

27. In or about 1970 the plaintiff was asked to re-locate to Perth to work for Leightons. The plaintiff moved to Western Australia in or about May 1970.

28. After arriving in Perth, the plaintiff first worked on the installation of fountains and ornate features at the front of Parliament House. A few weeks later he was sent to work on the construction of the Reserve Bank building at 45 St Georges Terrace, Perth.

29. The plaintiff accepted in cross-examination that he first worked at the Reserve Bank site in or about July 1970. His evidence was that when he first attended the site that the building had been under construction for about six months. When he first saw it the site had been excavated and a retaining wall had been constructed between the site and an adjoining property. The raft foundation that the building would sit on which was seven feet thick had not been poured. That occurred a few months later involving a 12 hour pour of 3,000 cubic yards of concrete that required St Georges Terrace to be closed. The raft took a few weeks to cure. The building was then constructed by the erection of the steel frame on top of the raft, followed by the pouring of the concrete slabs on each floor and the encasing of the columns in concrete on the completion of each level.

30. After the services were installed on each level, the concrete surfaces, the pipework and duct work were sprayed with a substance. The spraying work was carried out by a team of three sprayers on each level of the building. Most of the spray bounced off and fell to the ground where it dried. No external walls had been erected at the time the spraying work was going on. It was very windy in the vicinity of the Reserve Bank building particularly in the afternoons and the wind blew the spray and dust everywhere. The plaintiff described it as “incredibly dusty”.

31. The sprayers were on site for a long time which the plaintiff estimated to be at least six months. He worked in their vicinity on many occasions. He was not given a mask although the sprayers wore masks. The plaintiff was not told to take any precautions to avoid inhaling the dust from the spraying work. At this stage of the construction, no lifts had been installed in the building. There were some staircases between floors but on most floors the workers were required to use ladders. The plaintiff found it easier to stay up in the building and do the work that he normally would have done off-site rather than entering and leaving the building on repeated occasions. As a result, the plaintiff spent extended periods of time on the site. During the first three years that the plaintiff was in Perth, the Reserve Bank building was the biggest project that the plaintiff worked on and he spent more time on that site than any other site.

32. There were usually three sprayers working at the Reserve Bank building at any one time. The plaintiff did not recall seeing them there on a daily basis. He usually did not get closer than 5 or 6 metres from them whilst they were doing the spraying work. To his recollection, the sprayed material that fell on the ground was removed with a high pressure hose but he also recalled seeing it swept up from time to time. The material had to be cleaned up because there were other workers who needed to work on the slab where the over-spray fell and to the plaintiff’s recollection, it was cleaned up by the workers who were working in the relevant area. The plaintiff recalled that a large amount of dust was created by one worker who was using a scabbling machine to rough up the surface of the concrete slab on each floor.

33. The plaintiff did not accept the proposition put to him in cross-examination that his survey work was finished by the time that the sprayers came onto the Reserve Bank building site.

34. The plaintiff estimated that the Reserve Bank took about four years to finish. There were concerns over the construction of the building not being constructed in accordance with the plans and some of the measurements were quite tight. As a result, the plaintiff and other employees of Leightons spent a lot of time on site checking measurements during the construction to ensure that the work was done to the required specifications.

35. Later, in the 1970s the plaintiff worked on construction of a series of 18 bridges from Karratha to Logan Creek. He was initially involved in estimating the project and spent a great deal of time assessing the specifications. The specifications detailed the use of thick, compressed, asbestos cement sheets as formwork on the deck of the bridge. It was a unique design as the formwork sheets were not removed after the concrete was poured. The thick, compressed, asbestos sheets were purchased from James Hardie and Coy Pty Limited (James Hardie). Leightons also purchased cutting discs from the thick, compressed, asbestos sheets which were unique and recommended to Leightons by James Hardie. The plaintiff worked on site during the construction of the bridges. In cross-examination the plaintiff gave evidence that he was not present when the compressed asbestos sheets were being cut for the formwork on the bridges’ project.

36. In 1973 the plaintiff worked on a project installing a sewerage reticulation plant in Bulga followed by a similar job at Belmont in 1974. Both projects included the need to demolish a substantial amount of corrugated asbestos cement fencing in order to dig trenches for the sewerage works. One of the plaintiff’s tasks was to take photos of the old fencing before it was demolished and then to take photos after the new fencing had been installed to demonstrate that the work had been done. The fences were removed using a backhoe, which tipped over the fences and broke up the corrugated asbestos cement sheets, which were then thrown into a truck and carried away.

20. The plaintiff also worked on a number of other sites for Leightons in Western Australia that did not involve him being exposed to asbestos.

21. During the course of his work with Leightons he was not warned of the dangers of asbestos, advised or instructed to avoid or minimise the inhalation of asbestos dust, or provided with any precautions to minimise the inhalation of dust. He did not see any precautions being taken by other workers on Leightons’ sites.

22. In 1980 the plaintiff left Leightons and obtained employed with BHP Engineering (BHP). Most of his work for BHP was in an office and he did not have any exposure to asbestos. In 1990 the plaintiff was retrenched. He then worked as a self-employed surveyor and did not believe that he had any exposure to asbestos during that work.

23. The plaintiff also obtained his builder’s licence but only did one job by himself. It was a renovation of a bathroom and a laundry but did not involve any asbestos.

24. The plaintiff also did some work for a builder who had an office in Subiaco. Most of this work was renovation work. The plaintiff recalled doing one job involving asbestos at the Leederville TAFE where he renovated an old carpentry workshop. The job required the removal of asbestos roofing sheets. The plaintiff was given a helmet, gloves, overalls and a mask for doing this work that took about one day to complete.

25. In about 1977 the plaintiff and his wife purchased a home in Karrinyup and they lived there for about 30 years. They did some small renovations during the course of living there but the plaintiff was not exposed to asbestos during this work.

Family circumstances prior to his illness and care for Penny

43. The plaintiff and his wife were married in May 1969. They had three children; a daughter and two sons [3] .

    3. In that order.

44. The eldest son died in April 2011 at age 37. He had suffered from severe mental illnesses as did his partner. He had a daughter, Penny, born in January 2004. When Penny was two years of age she came to live with the plaintiff and his wife. She has continued to live with and be cared for by her grandparents since that time. Penny’s mother has schizoaffective disorder and has not played any active role in Penny’s care.

45. Penny is now 16 years of age. She has been diagnosed with Borderline Personality Disorder and an intellectual disability with global delay. Over the years she has had suicidal tendencies and has attempted to self-harm. On one occasion the plaintiff found her with cuts up her arms. As a result, the plaintiff was reluctant to leave her unsupervised. The plaintiff deposed that Penny can be violent and that she had pushed the plaintiff and his wife on occasions. The plaintiff did not like to leave his wife alone with Penny. Penny attends a psychiatrist twice a year and a psychologist fortnightly to monthly. The plaintiff and/or his wife took her to these appointments. Before the plaintiff became ill, Penny was settled. She was attending school about 75% of the time and had a casual job at a supermarket. The plaintiff intended to look after Penny for the rest of his life.

46. Following his diagnosis the plaintiff deposed that Penny’s behaviour has changed significantly to the point where she was hospitalised at the Perth Children’s Hospital. The plaintiff is very sad that he and his wife can no longer care for her and she has been returned to a group home. That has caused him a significant amount of distress and he worries what will happen to her.

47. In the period prior to his illness the plaintiff described that Penny went to school with some difficulties. She would often go to see the nurse to be excused from school. She had a part time job involving one or two shifts a week of about four hours at a time. She would usually go straight from school to work and finish at about 8.30pm. The plaintiff accepted that Penny was becoming difficult to handle in that it was difficult to get her out of bed to go to school and that she would often spend a lot of time with the nurse when she was at school. He gave evidence that there were problems with Penny at times including an occasion when she struck her grandmother causing a nose bleed.

48. The plaintiff gave evidence that he had not worked since moving to his present home in 2007 and he looked after Penny since that time. He took her to school each day, did all the cooking, cleaning and washing for her. Mrs Kennedy retired from work in about 2012 and after that did the shopping and the laundry. The plaintiff and Mrs Kennedy shared chores like cleaning the house, the floors and the bathrooms. The plaintiff did most of the cooking but Mrs Kennedy would assist with things like breakfast and preparing Penny’s lunch for school. Penny did not assist in any of the household chores. The plaintiff was responsible for most of the gardening with Mrs Kennedy only doing a small amount of watering plants. At the time of giving his evidence, the plaintiff was still trying to do some gardening from time to time such as picking up branches that had fallen, with the use of a tractor.

49. The plaintiff accepted that caring for Penny had created a great deal of stress for himself, Mrs Kennedy and the whole family. He accepted that they were finding it more and more difficult to cope, in particular, because Penny was having some difficulties at school and she probably needed more assistance that was not available in the local area. The plaintiff gave evidence that as a result of looking after Penny since she was two and a half that he had great feelings for her and for her safety and he was concerned that she did not have the basic ability to realise the difference between right and wrong and when she oversteps the mark. He gave evidence that her violent outbursts were only occasional and that she was generally okay to deal with. He was concerned to put off her going into a supervised environment for as long as possible and he described himself as coping but that it was getting more difficult.

Medical history and chronology of symptoms and treatment

50. The plaintiff suffered a heart attack in 1993 and was left with left ventricle dysfunction. In 2000 he had a stent inserted and in 2016 had a pacemaker inserted.

51. In 2014 the plaintiff was diagnosed with prostate cancer which has been slow moving. He has also been told that he is a borderline diabetic but has suffered no symptoms and does not take any medication for this condition.

52. Since about 2018 the plaintiff has experienced a frequent and recurrent cough. The cough was unproductive but quite painful. He also suffered from shortness of breath on exertion. The plaintiff went to his general practitioner on a number of occasions about the cough but was unable to find out the cause of it. In the same period the plaintiff noticed that he was becoming fatigued and less energetic. Over the year leading up to February 2020, he found that he had provided much less care leaving those duties to his wife as a result of fatigue and shortness of breath.

53. In the 12 months up to September 2019 the plaintiff lost about 10 kgs.

54. On 8 September 2019 the plaintiff was chopping some firewood using an axe. The axe got stuck and he sought to wrench it away. As it came out he was flung backwards. He landed on his arm which was slightly sore but he experienced severe pain in his chest. The plaintiff consulted his general practitioner the following day. The symptoms worsened over the next week and he was waking up at night as a result of pain in the right side of his chest. The pain was constant and worse if he took a deep breath. He could only walk about 20 metres before having to stop to catch his breath. He also continued to cough at this time.

55. The plaintiff returned to see his general practitioner on 18 September 2019. He was diagnosed with fluid in the pleural cavity and sent to the district hospital where he was admitted. On the next day he had a CT scan and a small amount of fluid was removed and sent for testing.

56. The plaintiff was then taken by ambulance to Fiona Stanley Hospital in Perth for drainage of the fluid on 22 September 2019 and 1.5 litres of fluid was drained from his lung.

57. He was thereafter reviewed weekly with chest x-rays and by mid October 2019 the pleural effusion had increased in size.

58. On 6 November 2019 he returned to Fiona Stanley Hospital. He was told that he needed surgery.

59. On 12 November 2019 the plaintiff underwent a CT guided biopsy and drainage of the fluid from his lung. A talc pleurodesis was also performed. He remained in hospital until 13 November 2019. After he was discharged he stayed in Perth with family for one night before returning home.

60. The plaintiff was due to attend a follow-up appointment at Fiona Stanley Hospital Respiratory Clinic on 27 November 2019. He was unable to attend the appointment because Penny was unwell. He was advised by his son that his general practitioner had called looking for him. He contacted his general practitioner and he was asked to make an appointment. On 28 November 2019 the plaintiff attended a consultation with his general practitioner and was told that he had been diagnosed with mesothelioma.

61. On 13 December 2019 the plaintiff saw Dr Lam, Oncologist, at Fiona Stanley Hospital. Dr Lam advised him that he was not a good candidate for chemotherapy. He suggested that the plaintiff have a repeat CT scan and return in one month. The plaintiff was later advised by Dr Lam that he was unsuitable for chemotherapy.

62. In or about mid December 2019 the plaintiff again became suddenly very short of breath and his cough worsened. He went to the local hospital on 20 December 2019. He was sent for a chest x-ray that did not show any recurrence of the pleural effusion. He was given morphine for the pain which helped.

63. The plaintiff continued to deteriorate and on 29 January 2020 his general practitioner arranged for him to have home oxygen. He had by that time become very short of breath just sitting and talking. Transferring from sitting to standing or getting out of bed or walking for more than one minute, caused him to gasp for breath and to need to stop and rest. The plaintiff described himself as having very little energy and that he became fatigued after the very simplest of activity. The plaintiff deposed that he has continued to lose weight and has now lost 12 kgs in total.

64. On 29 January 2020 the plaintiff’s general practitioner prescribed oral morphine and Fentanyl patches to help him cope with the pain.

65. The plaintiff deposed that he was not sleeping well and would often wake with pain or coughing. He deposed that he finds it difficult to breathe lying down and needs to prop himself up with pillows. He usually wakes after three or four hours and needs a drink. He finds it difficult to get back to sleep. He deposed that he now feels the cold and often finds himself shivering.

66. The plaintiff gave evidence that he could not believe how quickly his life has changed. He was previously independent with personal care and domestic tasks. He cooked, gardened and was responsible for home maintenance and handyman tasks. He was active and went walking and cared for his granddaughter.

67. Prior to his illness the plaintiff enjoyed socialising with his family and caring for Penny. His family visited each Sunday. Whilst they still come over, he is often too exhausted to participate and to engage and often falls asleep during their visits.

Credit

68. The plaintiff was an impressive witness who appeared to have considerable technical knowledge relating to building and construction. He appeared to me to be trying to genuinely recall details from a long time ago and that he was doing his best to give an honest answer to the questions asked of him. This extended to the point that at times he became breathless as a result of attempting to give considered and informative answers. I am satisfied that I should accept his evidence.

The evidence of Mrs Kennedy

Mrs Kennedy’s oral evidence

69. Mrs Kennedy’s evidence can be summarised as follows.

70. Mrs Kennedy was born on 3 November 1944 and is currently 75 years of age. She previously worked as a registered nurse and retired on 14 November 2012.

71. Mrs Kennedy first noticed symptoms in the plaintiff when he had the incident chopping wood. Prior to that he had been active around the house and doing a lot of things for himself. After the incident chopping wood, she started to do some things for him around the house that he had previously done himself. This included doing more of the cooking and taking over more of the housework because he was not able to do as much. She also took over some of the gardening which she did not do at all prior to the plaintiff experiencing symptoms. After the plaintiff became ill, Mrs Kennedy estimated that she did about 28 hours per week assisting the plaintiff in August or September 2019.

72. In the period September 2019 to January 2020 Mrs Kennedy estimated that she spent about 35 hours per week doing things around the house that the plaintiff had done previously. In that period the plaintiff continued to be independent with dressing and personal care but she assisted him with supervising his medications, cooking meals for him and doing all the laundry and household cleaning. She also got assistance from other family members for about three hours per week in that period.

73. In or about late January 2020 Mrs Kennedy noticed that the plaintiff’s condition deteriorated and since that time she estimates that she had been spending 10 to 12 hours per day doing things for the plaintiff that he had previously done for himself or otherwise caring for him.

74. By March 2020, the plaintiff had improved slightly and the medication was assisting him to remove some of the fluid and at the time she gave evidence, Mrs Kennedy estimated she was spending about 7 hours per day assisting him. At the time that Mrs Kennedy gave evidence the plaintiff was able to prepare his own breakfast and lunch if he felt up to eating. She would mainly prepare the evening meal. Mrs Kennedy gave evidence that the plaintiff has lost about 10 kgs in the last two months but she expected that some of this was retained fluid. Mrs Kennedy noticed that the plaintiff fatigued after activity. She gave evidence that after about half an hour’s work he would come in and sleep on the couch and appear to be breathless and very tired.

75. Mrs Kennedy intended to care for the plaintiff as much as she could at home. She attended him at night time when required and had made diary entries in relation to her care for him. The plaintiff has been prescribed oral morphine and codeine to be used on an “as required” basis.

76. Mrs Kennedy gave evidence that they had been caring for Penny since she was about two and a half. Mrs Kennedy gave evidence that she had a different relationship with Penny compared to the plaintiff. Penny would go to the plaintiff for advice about homework or any problems that she had. Prior to the plaintiff becoming ill he would give Penny her medication and take her to and from school. Mrs Kennedy also shared this duty from time to time.

77. Their care of Penny was supervised by the relevant section of the Department of Communities, Western Australia (the Department). Mrs Kennedy was in regular contact with the Department and they would come and see them and Penny about once a month. The officers from the Department would assist the plaintiff and Mrs Kennedy to try to get Penny to comply with their wishes. On occasions, she would be non-compliant and go to her room and ignore them and not talk to them. Penny needed supervision with medication as she would often not take them or deliberately spit them out. She did not prepare food for herself and relied on the plaintiff to do that for her. The plaintiff and Mrs Kennedy checked on Penny at night time because of her propensity for self-harm. Mrs Kennedy said that the last time she attempted self-harm was in November 2019 and there had been five or six episodes in that year of her cutting herself on her hands and arms. Mrs Kennedy would check on Penny at night to make sure that she was asleep and safe. She did so every night before she went to bed. To her observation, the plaintiff also did it as well, but Mrs Kennedy usually stayed up a bit later than the plaintiff.

78. Mrs Kennedy gave evidence that Penny’s change in her behaviour seemed to be more intense after the plaintiff became ill. She said that Penny had always had outbursts but the frequency seemed to increase and those matters were communicated to the Department.

79. In December 2019 Penny was taken to a group home at some time after Christmas. Mrs Kennedy and the plaintiff continued to have telephone contact with Penny every second day. The Department was continuing to organise visits with the plaintiff and Mrs Kennedy from time to time.

80. Mrs Kennedy thought that she wanted to care for Penny until Mrs Kennedy was about 80. Mrs Kennedy gave evidence that she thought by that time that hopefully Penny would be mature enough to be able to live in a group home with the support of the National Disability Insurance Scheme (NDIS). Mrs Kennedy gave evidence that the plaintiff wanted to care for Penny for as long as he could. Mrs Kennedy gave evidence that Penny was always closer to the plaintiff because he had spent a lot of time with her, bonding and caring for her whilst Mrs Kennedy continued to work. Mrs Kennedy observed that Penny would always go to the plaintiff first. The plaintiff did most things for Penny but carers provided by the NDIS also did some things for her. The NDIS carers first became available when Penny was in about Year 5 or 6 and they initially commenced providing tutoring for three hours per week. When Penny was in Year 9, in addition to tutoring, they also would take her on outings, for example, to the beach.

81. Prior to the plaintiff getting ill, Mrs Kennedy believed that together with the plaintiff, they could have continued to provide whatever level of care Penny needed. At the time when the plaintiff became ill, Mrs Kennedy found the situation quite stressful because she was providing major care for two people. Mrs Kennedy found it very difficult to provide the plaintiff with the level of care that he needed and to also exercise a level of vigilance that was required to deal with Penny. Penny did not do any of her own cleaning or laundry.

82. In cross-examination, Mrs Kennedy gave evidence that in 2019 she was calling the Child Protection Service about once per month as a result of incidents with Penny. Some of those involved her being verbally abusive and sometimes physically violent.

83. On 3 January 2020 Mrs Kennedy and the plaintiff dropped Penny off to an activity that had been arranged by the Lions Club in Perth. Penny was due to work as a crew member on a rigger training ship for a period of time. On 3 January 2020 Mrs Kennedy and the plaintiff dropped Penny at Fremantle to commence the voyage. They set out to return home. A short time later they received a call and had to return to Fremantle to pick Penny up as she had become quite agitated. When they picked her up she was behaving very strangely asking for a lighter before becoming violent in the car. They took her to the district hospital where she was admitted with a psychotic episode. She was later transferred to the Perth Children’s Hospital.

84. Mrs Kennedy accepted in cross-examination that Penny had made no complaint to her about the plaintiff’s illness, but Mrs Kennedy did not think that she had the intellectual ability to do so.

85. Mrs Kennedy gave evidence that Penny first developed hallucinations in about late primary school. Mrs Kennedy did not accept that the deterioration in Penny’s condition meant that she and the plaintiff would not be able to care for her. Mrs Kennedy gave evidence that she wanted to try to look after Penny for as long as she could.

86. Mrs Kennedy gave evidence that in some conversations with Penny she has indicated that she wants to return to live with the plaintiff and Mrs Kennedy.

Mrs Kennedy’s updating affidavit of 11 June 2020

87. The plaintiff read a further affidavit of Mrs Kennedy sworn 11 June 2020 to update the evidence relating to Penny. Mrs Kennedy was not required for cross-examination on the basis that certain concessions were made, which I have taken into account in the following summary of the evidence.

88. On 15 March 2020 Penny was brought to the plaintiff’s home for a visit with her grandparents. She was upset at seeing the plaintiff and asked if she could come home.

89. Penny returned to a group home but did not stay there for long. She told Mrs Kennedy that she did not feel safe, her belongings had been taken and that she was scared that she would be assaulted. She was placed in new group home accommodation run by a charity. In the following period Penny rang her grandparents on most days and asked Mrs Kennedy if she could come home.

90. On 9 May 2020 Penny rang Mrs Kennedy and told her that she had been put in to the Fiona Stanley Hospital. She rang Mrs Kennedy with regular updates and told her that she was refusing to eat and was being fed through a tube. Penny also sent Mrs Kennedy photographs. In each of these conversations Penny asked to come home.

91. On 26 May 2020 Penny was released from the Fiona Stanley Hospital and placed back in the group home. Arrangements were made for Penny to live with her aunt (the plaintiff’s daughter). This was agreed to by Penny’s case worker. Mrs Kennedy went with her daughter to Perth to pick Penny up from the group home.

92. Penny then stayed with her aunt [4] at a property about 30 kms from the plaintiff’s home for about a week but then told Mrs Kennedy that she wanted to come back to the plaintiff’s home to be near the plaintiff and her friends. The plaintiff told Mrs Kennedy that he wanted Penny to come home.

    4. The plaintiff’s daughter.

93. As at 11 June 2020 Penny had been living with the plaintiff and Mrs Kennedy for about a week. Mrs Kennedy deposed that Penny was still “very unwell” from a mental health perspective but that she had been improving and was becoming happier. Mrs Kennedy has observed that Penny is eating more. She has accompanied Mrs Kennedy shopping and appears to Mrs Kennedy to be trying to manage herself and get better.

94. Penny is currently not taking any medication. She has told Mrs Kennedy it does not help her and makes her feel sick. Mrs Kennedy is waiting for an appointment with the Child Adolescent Mental Health Service.

95. Since Penny has been home Mrs Kennedy has been constantly monitoring her day and night. On the few occasions that Penny has gone to meet friends, Mrs Kennedy has checked in with her and her friends to make sure that she is alright. Mrs Kennedy has been in communication with her school and has arranged for Penny to return to school on 15 June 2020. Mrs Kennedy also maintains regular contact with Penny’s case worker.

96. Since coming home Penny has spent a lot of time with the plaintiff. She sits with him and tells him that she loves him and that she wants to help to look after him. She has told the plaintiff that she feels safe now and that she did not feel safe for the whole time that she was away from home.

97. Mrs Kennedy has discussed Penny’s future with the plaintiff and it is their intention that Penny is to stay with them after what she has been through. The plaintiff is concerned that Penny did not get to say goodbye to her father and he does not want the same thing to happen to her again.

98. The plaintiff’s daughter has agreed to take Penny for five days a month to give Mrs Kennedy and the plaintiff some respite from caring for Penny.

99. Mrs Kennedy described herself and the plaintiff as focusing on getting Penny back on track, with the plan being that she would live at their home so that they could provide a safe environment for her.

Mrs Kennedy’s further affidavit sworn 8 July 2020 relating to her health

100. In the course of preparing the joint report the psychiatrists located a medical record reporting that Mrs Kennedy’s health was failing and they relied on it as a further reason why Penny could not return to the care of her grandparents.

101. Mrs Kennedy deposed that she was in good health and that the content of the medical record was incorrect. It was common ground that this was statement was true.

Credit

102. Mrs Kennedy was a very good witness. She impressed me as having a detailed recollection of the relevant events and as having considerable skills and experience in nursing. She gave evidence that she had maintained detailed diary notes of her care for the plaintiff and she was not challenged on that aspect of her evidence. Mrs Kennedy gave frank and open evidence relating to the difficulties that she and the plaintiff had encountered in caring for Penny. I am satisfied that her evidence should be accepted.

consideration

Issue 1    Was the plaintiff exposed to asbestos in the course of his employment with CIMIC?

103. I accept the plaintiff’s evidence that he was exposed to asbestos dust when he worked in the vicinity of carpenters and other tradesmen at the Hostel site who were cutting asbestos cement fibro sheets during the course of their work, and that he inhaled that dust during the course of his employment with the first defendant. It was not suggested to him in cross-examination that he was mistaken in his recollection that he was present when workers were cutting asbestos cement sheets to be installed.

104. His evidence is supported by the asbestos survey that was tendered relating to the Hostel site that demonstrated that a significant amount of asbestos cement sheets were used, particularly to construct the eaves of the buildings and the walls of the wet areas in a number of laundries.

Issue 2   On what date did CPB take over the construction activities of CIMIC?

Relevant principles

105. The determination of Issues 2-4 depends on some circumstantial reasoning and the principles set out in the following four paragraphs apply to the resolution of those issues.

106. A court can be satisfied of an issue on the balance of probabilities based on circumstantial evidence: Seltsam Pty Ltd v McGuiness at (2000) 49 NSWLR 262 at [90].

107. This requires considering the weight that can be given to the united force of all of the circumstances put together: Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279.

108. Facts can be inferred on the basis of the primary facts, if it is reasonable to draw the inference: Luxton v Vines (1952) 85 CLR 352 at 358.

109. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. Some facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability: Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 142 at 169-170.

Determination

110. CPB was incorporated on 28 April 1971 and renamed Leighton Contractors Pty Ltd on 1 July 1971. This change of name was significant because it was very similar to CIMIC’s original name, Leighton Contractors Ltd. I infer that the change of name was intended to maintain the appearance that “Leighton Contractors”, the common name by which the company had been known, was a continuing business and to maintain any goodwill associated with it.

111. CIMIC was also renamed as Leightons Holdings Ltd on 1 July 1971. CPB admitted that when it took over CIMIC’s construction activities that CIMIC was thereafter a holding company. I infer that CIMIC changed its name on that date to include the word “Holdings” to indicate that it became a holding company from that date onwards.

112. The incorporation of CPB in April 1971 is consistent with Leightons making preparations for the restructure to take effect on 1 July 1971. I infer that Leightons intended to restructure its operations from 1 July 1971 to take effect from the beginning of the financial year.

113. These findings are supported by the content of the Memorandum from the Services Department of the Reserve Bank to the Governor of the Reserve Bank dated 11 November 1971 (the Memorandum). The Memorandum noted that “in July”, CIMIC had changed its name and proposed that as part of a general company re-organisation that CPB would “carry on and complete all of the building and civil engineering business previously carried on by [CIMIC]”. The Memorandum referred to the proposal by CIMIC in the past tense consistent with the words that it was made “in July”. The fact that CIMIC made the approach to the Bank in July is consistent with its intention to restructure its operations from that time onwards.

114. CPB submitted that it took over CIMIC’s construction activities on 8 November 1971, which was the date of execution of a Deed of Novation entered into by the Reserve Bank, CIMIC and CPB.

115. The Memorandum noted that the Reserve Bank executed a Deed of Novation evidencing the hand-over of the building contract from CIMIC to CPB on 8 November 1971. The Deed of Novation was not in evidence.

116. I am not persuaded that the date that the Deed of Novation was executed is significant for two reasons. First, the Deed of Novation was necessary to provide for privity of contract between the Bank and CPB. Prior to its execution the building contract in existence was between the Bank and CIMIC. CIMIC did not need to enter into the Deed of Novation with the Bank to allocate the performance of the work required under the building contract to CPB from 1 July 1971 onwards, or to restructure its operations in the way that it intended to do so. In the absence of the Deed of Novation, CIMIC would have remained liable to perform its obligations under the building contract, which it could have sub-contracted to others unless the building contract expressly prohibited it from doing so. Second, I cannot infer that the Deed of Novation took effect on the date of its execution, because it is equally likely that it was expressed to take effect from an earlier date including 1 July 1971.

117. From all of these facts in combination, I am satisfied on the balance of probabilities, that CPB took over the construction activities of CIMIC on 1 July 1971.

Issue 3   On what date was the plaintiff employed by CPB?

118. The plaintiff did not give evidence about any change in his employment status. He recalled the companies changing names but could not recall how it applied to him.

119. Based on the finding that Leightons restructured their operations from 1 July 1971 by CPB taking over CIMIC’s building projects, I infer that the cost of undertaking the building projects was incurred by CPB from that time onwards and this included the cost of employing the workers necessary to undertake the work for CPB.

120. I am satisfied on the balance of probabilities, that the plaintiff’s employment was transferred from CIMIC to CPB on 1 July 1971.

121. If this finding is wrong, CPB conceded that it employed the plaintiff from 8 November 1971 onwards.

Issue 4    Was the plaintiff exposed to sprayed asbestos insulation in the course of his employment with CPB at the Reserve Bank building site in Perth?

122. On the basis of my finding that CPB was the responsible defendant from 1 July 1971 onwards or CPB’s concession that it was the responsible defendant from 8 November 1971, the question to be answered under this issue is when did the spraying work take place at the Reserve Bank building?

123. The asbestos surveys of the Reserve Bank Building conducted in 1991 demonstrate that sprayed asbestos insulation material, containing amosite and chrysotile, was applied to the underside of each concrete slab of the building. The 1991 survey referred to the structural drawings that specified that the building was to be constructed “as steel framed concrete encased … specified beams have been sprayed with “Limpet” asbestos”. [5] The 1991 survey stated that the limpet asbestos was friable or crumbly and was the most easily damaged asbestos present in the building and could readily release fibres into the surrounding air. [6] The 1991 survey noted that the friable limpet asbestos had a high amosite asbestos content of approximately 90%. [7]

     5. Page 264 of PX4.

     6. Page 266 of PX4.

     7. Page 267 of PX4.

124. On levels 2 to 5 of the building, the 1991 asbestos survey recorded the presence of limpet spray on the columns and around the air conditioning ducts where they penetrated the walls and around the pipes where they penetrated the floors. [8] The 1991 survey stated that limpet asbestos was specified in the structural drawings and was assumed to be present in similar locations on the other floors of the building. [9] The 1991 survey included a number of photographs of the limpet asbestos in situ. The 1991 survey estimated that there was between 7,000m² and 7,700m² of limpet asbestos sprayed onto the structural steel in the building.

     8. Page 269 of PX4.

     9. Page 270-271 of PX4.

125. I am satisfied that the limpet asbestos was the material that the plaintiff saw being applied by the sprayers during the course of his work at the Reserve Bank building.

126. The asbestos survey conducted in 1991 stated that the specifications for the Reserve Bank building were issued in June 1969 and ductwork plans, smoke and fire details were issued between 1970 and 1972.

127. The plaintiff’s evidence was that he relocated to Perth in about May 1970. In cross-examination, he accepted that he first went to the Reserve Bank building site about two months later in about July 1970. His evidence was that the work had started about six months before he first went to work at the site. His evidence was that the first time that he went to the site it had been excavated, the raft foundations for the basement floor had not been poured and that did not occur until a few months later and then took a few weeks to cure before the steel frame could begin to be erected. The plaintiff’s evidence was that the steel frame was erected before the concrete floor slabs were poured on a floor by floor basis. After the concrete slabs were constructed the columns were encased in concrete on a floor by floor basis.

128. The plaintiff’s evidence was that the sprayers came onto the site when the concrete slabs for each floor had been poured, the columns were encased in concrete and services had been installed. It appears from the 1991 asbestos survey that the limpet spray was applied after the installation of pipework and the air conditioning ducts. At the time that the spraying took place, the lifts had not been installed and there were no external walls. The spraying took place over an extended period of at least six months and it was possible that the sprayers were not on site continuously.

129. The Parliamentary Committee report into the refurbishment of the Reserve Bank building stated that the building consisted of two basement levels, a ground floor and 10 upper floors and that it was completed in 1973.

130. The Reserve Bank building was located at 45 St Georges Terrace, Perth which runs roughly from east to west and the front façade of the building faced north. The building consisted of two towers, the first being a tower with a square footprint that fronted onto St Georges Terrace and the second had a rectangular footprint with the shortest end of the rectangle adjoined to the back of the square tower. The shortest end of the rectangle was narrower than the square so that the rear tower was recessed in from the square tower on both sides. The rear façade of the building was the short face of the rectangle, which faced south.

131. At page 124 of PX4 was a photograph of the Reserve Bank building depicting the top four floors of the building consisting of only a steel frame. The photograph was taken from the south and slightly to the west. It depicted the rear and western facades of the building. The four floors below had the concrete floor slabs in place and the columns encased in concrete. The photograph is recorded as being published in “1972?” (the tentative date). It is likely that the sprayers had commenced work on the building at a time after this photograph was taken because there were still a number of concrete floor slabs to be formed and poured, a large number of columns to be encased in concrete and the services were yet to be installed on the upper floors. I also note that on the lower floors that the external walls were in place and seemed to be partially incomplete in that there were a small number of panels missing. This photograph was the earliest photograph of the building that was tendered.

132. The defendant tendered a number of photographs obtained from the National Archives that were dated by the photographer. It is most useful to describe what is depicted in those photos in chronological order.

133. DX9 was a photograph of the Reserve Bank building taken from the south showing the rear and western façades of the building. The date of the photograph was incomplete. It can be seen that the photograph was taken on the 20^th day of a month beginning with the letter “J” in 1972. The photograph depicts that the external walls of the Reserve Bank building on the rear and western façades are incomplete. There is still scaffolding in place on the lower levels.

134. DX10 is a photograph dated 17 August 1972 of the front façade of the building taken from the north and slightly to the west of it, depicting the front and western façades of the building. There is no glass installed on the front façade of the building but the western façade seems to be complete.

135. DX3 is a photograph dated 20 September 1972 taken from a similar position to DX10. It is clear from this photograph that the external walls on the western façade have been completed.

136. DX4 is a photograph dated October 1972 of the building during its internal fit out. The photograph does not describe where in the building it was taken. The photograph depicts interior wall lining on what would be the external walls of the building. The photograph shows that the ceiling frame has been installed together with electrical lighting and air conditioning ducting.

137. DX5 is a photograph dated 20 October 1972 that depicts the internal fit out of the Reserve Bank building. The photograph does not indicate where in the building it was taken. The concrete beams underneath the bottom of the concrete slab, which would be the floor slab of the level above, appear to have a sprayed finish on them. Their appearance is consistent with the photographs in the 1991 asbestos survey depicting what is described as the appearance of the asbestos limpet spray in other parts of the building. I would infer that DX5 depicts the presence of asbestos limpet spray on the concrete beams in that photograph.

138. DX6 is a photograph dated 23 November 1972 and taken from the north depicting the front façade of the building. The front windows have still not been installed at the date of this photograph.

139. DX7 is a photograph dated 18 December 1972 depicting the installation of pipe work and the chiller set in the plant room of the Reserve Bank building. The description of the photograph suggests that the relevant plant room was close to the roof of the building. The photograph depicts the appearance of steel beams as part of the roof structure, which do not appear to have a sprayed finish on them. I note that the 1991 asbestos survey did not report the presence of significant amounts of asbestos limpet spray in the upper two levels of the building.

140. DX8 is a photograph dated 18 December 1972. It is difficult to decipher what in the building it depicts and it does not appear to contain any relevant features.

141. PX2 was a photograph taken from the north and slightly west from a location similar to DX10 but from a higher vantage point, which the plaintiff gave evidence was on top of a neighbouring building. The photograph depicts the building under construction without any windows and with temporary building site offices constructed one floor above the street level. The photograph depicts that all of the columns had been encased in concrete at the time when the photograph was taken. The photograph depicts the front and western façade of the building. It is apparent from the photograph that the installation of the external walls on the western façade had not been completed when it was taken. That would seem to date the photograph at about the same time as DX9. The plaintiff did not press the tender of the date of the photograph suggested by the State Library.

122. From DX5 it is clear that at least some asbestos limpet spray had been applied to the concrete beams of the building prior to 20 October 1972. It is also likely that the spraying work was completed before the internal fit out of the building commenced. DX4 and DX5 demonstrated that the internal fit out was underway in October 1972.

123. The plaintiff’s evidence was that the spraying work was done before the external walls were constructed. This evidence is demonstrably unreliable in two respects. First, the square tower had partition walls with the buildings on either side of it. The building to the east of the square tower was about 9 storeys high and the building to the west was about 3 storeys high. Second, the photograph at page 124 of PX4, shows that the lower levels of the rectangular tower had external walls constructed at a time before the spraying work could have been completed.

124. Subject to those qualifications, I accept the plaintiff’s evidence. DX9 and PX2 both depict the external walls on the rear and western façades being in place, but not finished. On that basis, it is likely that the spraying of limpet asbestos took place before DX9 was taken. DX9 was taken on either 20 January, 20 June or 20 July 1972. This gives rise to two possibilities. First, the spraying work was completed at a time before 20 January 1972 and at least prior to the time it took to construct the external walls to the extent that they appear completed in DX9. Second, the spraying work was completed at a time before 20 June 1972 or 20 July 1972 with the same proviso.

125. From the plaintiff’s evidence concerning the pouring of the raft foundations of the building and the order of construction of the building, I find that the building had not progressed to the stage at which the asbestos limpet spray could be applied by 1 July 1971 for the reasons that follow. The pouring of the raft foundation did not take place until about September 1970, after which it took a few weeks to cure. The steel frame for the entire building was then erected. Each of the remaining 12 concrete floor slabs and the roof then had to be formed and were then poured sequentially, and each needed sometime to cure before the formwork could be removed. The columns and beams were then encased in concrete which required formwork and a further concrete pour, on a floor by floor basis. This concrete would have also required time to cure. The services consisting of the pipework and ducting had to be installed, but that may have been done at the same time as work on the upper levels took place. Allowing 3 weeks per floor for the construction of the floor slabs and encasing the steel members, which I consider to be a significant underestimate, that would have involved a period of approximately 39 weeks after the raft foundation was poured and cured in about October 1970. This would have taken the date to 1 July 1971, without making any allowance for the time required to erect the steel frame or any delays incurred in the project as a result of bad weather or any other problems.

126. Based on all of the evidence, I am satisfied on the balance of probabilities, that the spraying of limpet asbestos at the Reserve Bank building took place after 1 July 1971.

127. I accept the plaintiff’s evidence that the spraying took about six months to complete. On that basis I am satisfied, on the balance of probabilities, that a significant amount of spraying took place after 1 July 1971 and after 8 November 1971.

128. This conclusion is not affected by the date on which DX9 was taken. However, if I accept that the photograph at page 124 of PX4 was taken at some time in 1972, then it is more likely that DX9 was taken in June or July 1972 because of the substantial amount of construction that had taken place between the time that the two photographs were taken. Taking into account the work that was required to get to the stage of construction depicted in DX9, the tentative date and the other evidence, it is more likely that DX9 was taken in June or July 1972.

129. I accept the plaintiff’s evidence that he was present from time to time during the period in which the asbestos limpet spray was applied to the concrete surfaces, the pipe work and ducting of the Reserve Bank building.

130. Professor Klebe’s evidence was that the spraying of asbestos insulation is known to be a highly dangerous form of work with high airborne concentrations of respirable asbestos fibres of between 10 to 50 fibres/mL or substantially more. Professor Klebe also gave evidence that the plaintiff’s exposure did not actually finish when the spraying stopped because there would still have been an extended period of time where there was an increase in respirable asbestos fibres in the atmosphere as a result of the spraying process. The sprayed asbestos insulation that fell to the ground needed to be swept up or hosed away and the plaintiff’s evidence was that the wind was a significant factor where the building was located.

131. Professor Klebe stated that the dry sweeping of asbestos-containing dust is known to produce high peak airborne respirable fibre concentrations in the order of about 6 to 20 fibres/mL, with other studies demonstrating much higher concentrations. It was also likely that any overspray that fell onto the floor was disturbed by the use of the scabbling machine, which re-circulated respirable asbestos fibres into the air.

132. Based on all of the evidence, I am satisfied on the balance of probabilities that the plaintiff inhaled asbestos dust as a result of the application of the asbestos limpet spray to the concrete surfaces and the services of the Reserve Bank building when he was present during the spraying process.

133. I am satisfied on the balance of probabilities that this exposure was above a background level of exposure and more than de minimis.

Conclusions based in the resolution of Issues 1-4

154. The plaintiff has established that he was exposed to asbestos during the course of his employment with both defendants. On that basis, the defendants have conceded that breach of duty and causation are established and the plaintiff is entitled to a verdict against each defendant and I will turn to the assessment of damages.

Issue 5 – Assessment of Damages

155. By reason of the differences in the applicable law explained in [6] above the damages that can be awarded against each defendant are different. I will set out the reasons for each respective award under headings relating to each head of damage.

General Damages

Relevant Principles

156. General damages includes a number of heads of damage, including damages for pain and suffering, loss of amenities of life, the loss of enjoyment of life and a reduction in life expectancy due to the damage caused by the tort. Included in pain and suffering is the actual suffering and mental distress caused by the injury: Wickham v Treloar (1960) 77 WN (NSW) 350. The assessment for pain and suffering and loss of amenities of life is concerned with the subjective feelings of the plaintiff and not a comparison of like cases: Skelton v Collins (1966) 115 CLR 94 and Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. Loss of amenities of life is concerned with the “deprivation of the ability to participate in normal activities and thus enjoy life to the full”: Teubner v Humble (1963) 108 CLR 491 at 506 per Windeyer J. The amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused: Planet Fisheries at 125.

157. Section 10A Civil Liability Act 2002 (WA) provides:

1. In determining damages for non-pecuniary loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.

2. For that purpose, the parties to the proceedings or their counsel may bring the court’s attention to awards of damages for non-pecuniary loss in those earlier decisions.

3. This section does not alter the rules for the determination of other damages.

   158. Section 9 Civil Liability Act 2002 (WA) defines “non-pecuniary loss” to mean:

(a)   pain and suffering; and

(b)   loss of amenities of life; and

(c)   loss of enjoyment of life; and

(d)   curtailment of expectation of life; and

(e)   bodily or mental harm.

159. Section 10A Civil Liability Act 2002 (WA) abrogates the principle that the assessment of general damages does not involve a comparison of like cases. In Planet Fisheries the High Court determined that in deciding whether or not an award of damages is manifestly excessive or inadequate, the Court should not seek out and measure it against a normal from the decided cases. In Western Australia, s 10A has been interpreted by reference to Luntz to the effect that justice requires treating like cases alike and whilst it is sometimes denied that any two cases of personal injury are really alike, consistency of treatment necessarily involves a notional tariff as the starting point for the ascertainment of the damages for non-pecuniary loss in any particular case: Hannell v Amaca Pty Ltd [2006] WASC 310 at [334] (Le Miere J) and Lowes v Amaca Pty Ltd [2011] WASC 287 at [820] (Corboy J). [10]

     10. See also Harold Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, Lexis Nexis, Sydney, 2001 at [7.1.5], p393.

160. Justice Corboy applied the principle primarily by reference to past awards for similar cases in Western Australia, but bearing in mind that the award must reflect the actual circumstances of the plaintiff: Lowes at [821]. This approach was approved by the Western Australian Court of Appeal in MR & RC Smith Pty Ltd (trading as Ultra Tune (Osborne Park)) v Wyatt (No 2) [2012] WASCA 110 at [130]. The Western Australian Court of Appeal noted that it was important to ensure that the facts of the cases cited were comparable with the case under consideration and that older cases were of little utility given the fluctuation in the value of money. The Western Australian Court of Appeal approved of Corboy J’s preference for Western Australian cases, stating that:

While cases from outside Western Australia are relevant, attention should be paid to relevant comparable decisions in courts in this jurisdiction: Lowes at [821]. If a party contends that awards in this State are out of step with awards in other jurisdictions, the point should be expressly raised and argued. In this case, the parties were reluctant to refer to cases at all, and the respondent did not contend that awards in this State should not provide a guide to the appropriate award for damages.

161. Lowes was distinguished by the Victorian Court of Appeal in Amaca Pty Ltd v King (2011) 35VR 280, because there is no equivalent provision to s 10A. The Court of Appeal stated:

1. Apart from anything else, the minimum wage, average weekly earnings and average annual earnings have almost tripled and a remuneration paid to some members of society such as, for example, chief executive officers of publicly listed corporations, has increased from a couple of hundred thousand dollars per annum to millions of dollars per annum with added bonuses and incentives of more millions of dollars. Of course, an award of damages for loss of enjoyment of life and pain and suffering is not to compensate for loss of earnings or earning capacity. We do not suggest that there is any necessary relationship between earnings and the measure of compensation appropriate for pain and suffering but in as much as contemporary society pays and receives vastly greater amounts of remuneration than that of a generation ago (even allowing for inflation) and, at the same time as it seems to us, writes and speaks of the importance of the quality of life to an extent not before contemplated, who doubts that modern society may place a higher value and a loss of enjoyment of life and the compensation for pain and suffering than was the case in the past?

…

[180] Moreover, over the last 10 to 20 years, awards of damages have increased significantly; not just in personal injury cases, but also in other areas of litigation.

162. CPB referred me to the following comparative awards for general damages:

1. Hannell v Amaca Pty Ltd [2006] WASC 310 in which a 64 year old plaintiff was awarded $180,000 for general damages in a decision from 22 December 2006; and

2. Lowes v Amaca Pty Ltd [2011] WASC 287 in which a 43 year old plaintiff was awarded $250,000 for general damages in relation to a peritoneal mesothelioma for which he underwent radical surgery and suffered substantial complications.

163. The plaintiff referred me to the following comparative awards for general damages:

1. Dib v Amaca Pty Ltd [2017] NSWDDT 6 in which a 77 year old plaintiff with mesothelioma was awarded $350,000 for general damages;

2. Landos v Amaca Pty Ltd [2017] NSWDDT 7 in which a 79 year old plaintiff with mesothelioma was awarded $350,000 for general damages;

3. Talifero v Amaca Pty Ltd [2017] NSWDDT 14 in which an 86 year old plaintiff with mesothelioma was awarded $360,000 for general damages;

4. Lavis v Amaca Pty Ltd [2018] NSWDDT 6 in which a 76 year old plaintiff with mesothelioma was awarded $370,000 for general damages;

5. Webber v Comcare [2018] NSWDDT 10 in which an 86 year old plaintiff with peritoneal mesothelioma was awarded $350,000 for general damages applying the law in New South Wales, but $450,000 for general damages applying the law of the Northern Territory, taking into account the plaintiff’s loss of capacity to provide care to his wife with dementia. The additional $100,000 of the award for general damages reflected the component to be awarded for the plaintiff’s loss of capacity to provide care for his wife in accordance with CSR Ltd v Eddy;

6. Phillips v Amaca Pty Ltd [2019] NSWDDT 8 in which an 82 year old plaintiff with mesothelioma was awarded $350,000 for general damages;

7. Piatti v ACN 000246542 & Anor [2019] NSWDDT 7 in which an 80 year old plaintiff with mesothelioma was awarded $370,000 for general damages;

8. Werfel v Amaca Pty Ltd [2019] SAET 159 in which the South Australian Employment Tribunal awarded $400,000 to a 42 year old plaintiff with mesothelioma of the tunica vaginalitis testis;

9. Williams v Amaca [2020] NSWDDT 2 in which a 72 year old plaintiff with mesothelioma was awarded $385,000 for general damages;

10. Booth v Amaca Pty Ltd [2010] NSWDDT 8 in which a 73 year old plaintiff with mesothelioma was awarded $250,000 for general damages; and

11. Phillips v Amaca Pty Ltd [2010] NSWDDT 11 in which a 60 year old plaintiff with mesothelioma was awarded $250,000 for general damages.

164. The plaintiff relied on the cases in sub-paragraphs (10) and (11) above as a comparison to the level of damages being awarded in the New South Wales Dust Diseases Tribunal at or about the time of the Lowes decision.

165. The plaintiff’s inability to care for Penny can be taken into account in assessing the appropriate award of general damages, if it amounts to a loss of amenity of life: CSR v Eddy at [71]. If so, the loss of that amenity must be assessed by reference to the competing losses relevant to an award of general damages: CSR v Eddy at [72].

166. CPB relied on a statement from Burnicle v Cutelli [1982] 2 NSWLR 26 at 28 that was adopted by the plurality in CSR v Eddy at [16]. In Burnicle, Reynolds JA said:

[A]n assessment must be made as a component of an award of general damages, just as must be done in respect of any other deprivation which does not produce financial loss. The injured plaintiff has in such a case as this lost part of capacity, the exercise of which can give to her pride and satisfaction and the receipt of gratitude, and the loss of which can lead to frustration and feelings of inadequacy.

167. It should be noted that the services lost in Burnicle were the inability of a wife and mother to care for her husband and children that resulted in a daughter providing replacement services.

168. The additional award of general damages referrable to a loss of capacity to care for a disabled dependent was considered by Judge Russell SC in Webber. In that case, a husband diagnosed with mesothelioma had been caring for his wife with advancing dementia for two years prior to the development of his symptoms. The plaintiff was required to do all the cooking, cleaning and laundry as well as driving his wife to and from medical appointments, shopping and supervising her. The wife’s condition was such that she often became disoriented and confused and acted in a way that gave rise to a risk to her physical safety. His Honour found that the plaintiff’s wife required 24 hour per day care as a result of her condition, that her condition was only likely to deteriorate and that the plaintiff would have been able to care for her at home for a further three years but for the contraction of mesothelioma. His Honour noted that the loss of capacity in CSR v Eddy was to provide gardening services, looking after a car, painting and maintaining the house. The High Court said at [73] that virtually all of those services were not services to the wife alone but would have brought benefits to the plaintiff and other members of the household including the wife’s mother. The High Court found at [75] that most of the additional damages had been allowed at trial under the head of damage provided for by Griffiths v Kerkemeyer (1977) 139 CLR 161. The High Court declined to remit the proceedings for a further assessment of damages because in the circumstances, the damages were likely to be relatively small.

169. Judge Russell SC distinguished that aspect of CSR v Eddy from the circumstances of Webber. He noted that all of the services that the plaintiff was providing related to care for his wife who was suffering from dementia and that the plaintiff would have been the person to provide that care but for the contraction of mesothelioma. His Honour found that the circumstances of the case required a significant increase in the general damages to compensate the plaintiff for the loss of capacity to provide care and assistance to his disabled wife. His Honour noted that the plaintiff had devoted himself to caring for his wife in the past and for the remainder of his life. His Honour awarded an additional amount of $100,000 for general damages by reference to the plaintiff’s loss of capacity to care for his disabled wife.

Determination

170. The plaintiff is presently 82 years of age and had a statistical life expectancy of 8 years. He was fit and active, spending his time looking after Penny, gardening and maintaining his large property.

171. The plaintiff first suffered from symptoms of mesothelioma in the wood chopping incident on 8 September 2019. He had a rapid decline caused by the accumulation of fluid in his pleura requiring hospitalisation. The fluid was drained in September 2019 before he underwent a CT guided biopsy, further fluid drainage and a talc pleurodesis in November 2019. He was again hospitalised in December 2019 with significant pain. He became very tired and lethargic in January 2020. In or about the beginning of February 2020 the plaintiff’s condition improved with a stabilisation of his pain from a changed medication regime and his fluid retention was reduced.

172. The plaintiff has survived longer than would have been expected by reference to his presentation in late January 2020 or early February 2020, but his decline is inevitable.

173. The plaintiff has suffered considerable anxiety about Penny’s situation and he worries about what will happen to her. The plaintiff has made considerable sacrifices to care for Penny and to provide a safe and stable home in which she can have the best life she can lead. He experienced sadness when his illness resulted in her hospitalisation and accommodation in the group homes.

174. Any award of general damages against CIMIC must not contain any amount for the loss of amenity incurred by the inability for the loss of capacity to provide the services the subject of the s 15B claim: section 15B(5)(b).

175. I have some difficulty in accepting the correctness of Lowes in so far as it afforded primacy to the decisions of the courts in Western Australia. Section 10A clearly permits the consideration of other decisions of the Court applying the section or other courts more generally. There is no definition of “courts” in the Act. This is consistent with the possibility that the substantive law of Western Australia may fall to be applied by another Australian court.

217. I have adopted the lowest commercial rate ($54.60 per hour) that applies to services provided between 6am and 8pm Monday to Friday in calculating the damages payable by CPB. I have done so because most of the care provided for the plaintiff would have been provided in those hours and it is difficult to ascertain to which care the other rates would have applied. A time weighted average of the rates increased the damages by a substantial margin and I do not believe that would have provided a reasonable outcome. I have applied the full-time care rate of $4,500 per week if the hourly calculation exceeds that figure, because that would better reflect the commercial cost of providing the care.

Gardening and household maintenance

222. The plaintiff has had the gardening attended to by family members since he became ill. The plaintiff’s property was set on 5 acres in a semi-rural setting. There were large areas to mow and large trees that required the clearing of fallen branches. In addition the plaintiff had cultivated a garden that needed to be cared for. I have allowed gardening and any other maintenance performed by him for 3 hours per week over the entire period.

223. The past involves a period of 47 weeks and the future is a period of 7 weeks. The appropriate commercial rate is $65.80 per hour.

Past

224. For Stage 1, I accept the evidence that when his symptoms first manifested that the plaintiff required assistance in preparation of the main meal and with the heavier cleaning for a total of 12 hours in that period.

225. For Stage 2, I accept the evidence of Mrs Kennedy that she visited the hospital to provide emotional support to the plaintiff and to bring him things that he needed and I note that this required significant periods of travel. For the most part, his needs would have been attended to by the hospital staff and it is reasonable to allow 4 hours per day in the period of a total of 40 hours.

226. For Stage 3, Mrs Kennedy estimated that she was providing 35 hours per week care and Ms Cogger assessed the required care at 23 hours per week. [11] I do not accept Ms Hammond’s criticisms of Ms Cogger’s opinions because they do not reflect the law. It was accepted by Ms Hammond that the plaintiff’s illness created a need for someone to do his laundry and to shop for him. It is irrelevant on the authorities that the performance of those tasks would also benefit others, so long as the claim is reasonable. Finally, I accept Mrs Kennedy’s evidence about the time spent by her taking the plaintiff to medical appointments in the period. It is appropriate to allow 23 hours per week for 17 weeks for the period, coming to a total of 391 hours.

     11. I have removed the 2 hours relating to gardening to avoid double counting.

227. In Stage 4, Ms Cogger assessed the plaintiff as requiring 119 hours per week of care. [12] Ms Hammond did not disagree with the assessment of the number of hours, but disputed the period for which that level of care was necessary. Mrs Kennedy’s evidence, which I accept, was that this level of care was required until about the beginning of March 2020. It is appropriate to allow 119 hours for 5 weeks for the period, coming to a total of 595 hours.

     12. I have removed the 3 hours relating to gardening to avoid double counting.

228. As to Stage 5, Ms Cogger’s estimates were too high because of the plaintiff’s improvement. Ms Hammond assessed the need at 38 hours per week, but for the reasons already given, her estimates were too low. On 12 March 2020, Mrs Kennedy gave evidence she was providing about 7 hours per day of care. I accept Mrs Kennedy’s evidence on this point. She was in the best position to know what care was being provided at the time of her evidence. Even if her estimate is high, it is likely that the plaintiff’s condition has deteriorated over the period and that by now he requires more assistance, such that I am satisfied that the estimate is appropriate when it is averaged out over the entire period. It is appropriate to allow 49 hours per week for 21 weeks coming to a total of 1,029 hours.

Future

229. As to the future Stage 1, the best evidence I have of the plaintiff’s need for assistance is Mrs Kennedy’s evidence given on 12 March 2020 of 7 hours per day. I think it is reasonable to allow that level of care on a continuing basis for the reasons I have given and because it is for a relatively short period. It is appropriate to allow 49 hours per week for 3 weeks coming to a total of 147 hours.

230. As to the future Stage 2, the occupational therapists agreed that the plaintiff will require 24 hours a day care for 4 weeks prior to his death. It is appropriate to allow 168 hours per week for 4 weeks for the period 21 August 2020 to 18 September 2020 coming to a total of 672 hours.

231. The appropriate awards based on my findings for past and future gratuitous attendant care services against each defendant are set out in the following table.

Period [13]	Damages payable by CIMIC at $31.54 [14]	Damages payable by CPB at $54.60 [15]
Past Stage 1 (12)	378.00	655.00
Past Stage 2 (40)	1,262.00	2,184.00
Past Stage 3 (391)	12,322.00	21,349.00
Past Stage 4 (595 )	18,766.00	22,500.00
Past Stage 5 (1,029)	32,455.00	56,183.00
Gardening–past (141)	4,447.00	9,278.00
Total past	$69,630	$112,149
Period [16]	Damages payable by CIMIC at $31.54 [17]	Damages payable by CPB at $54.60 [18]
Future Stage 1 (147)	4,636.00	8,026.00
Future Stage 2 (672)	21,195.00	18,000.00
Gardening–future (21)	662.00	1,382.00
Total future	$26,493.00	$27,408

13. The figure in brackets represents the total number of hours allowed for the period.

14. All figures are rounded to the nearest dollar.

15. The commercial rate for gardening is $65.80 per hour. All figures are rounded to the nearest dollar.

16. The figure in brackets represents the total number of hours allowed for the period.

17. All figures are rounded to the nearest dollar.

18. The commercial rate for gardening is $65.80 per hour. All figures are rounded to the nearest dollar.

Interest on past gratuitous attendant care services provided to the plaintiff

232. Interest is usually allowed at half of the pre-judgment interest rate for the period to account for the fact that interest runs on weekly amounts over time: Grincelis v House (2000) 201 CLR 321. The relevant pre-judgment interest rates from 1 July 2019 was 5.25%.

233. The appropriate award for interest on past gratuitous attendant care services is calculated at half of 5.25% for the period of 10 months.

234. The appropriate award against CIMIC is $1,523.00.

235. The appropriate award against CPB is $2,543.00

Loss of capacity to care for Penny – s 15B claim

Relevant principles

236. Section 15B Civil Liability Act 2002 (NSW) relevantly provides:

1. Definitions In this section—

…

dependants, in relation to a claimant, means—

(a)   such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises—

…

1. a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),

2. any other person who is a member of the claimant’s household, and

…

gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid.

1. When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that—

(a)   in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1) — the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b)   the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c)   there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants—

1. for at least 6 hours per week, and

2. for a period of at least 6 consecutive months, and

(d)   there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

Note. Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant’s dependants.

…

1. Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant’s capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved.

2. In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, a court—

(a)   may only award damages for that loss in accordance with the provisions of this section, and

(b)   must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity.

…

1. Determining value of gratuitous domestic services In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account—

(a)   the extent of the claimant’s capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and

(b)   the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and

(c)   the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.

237. It was common ground that the applicable hourly rate was $31.54 per hour and that s 15B damages could only be awarded against CIMIC.

Expert psychiatric evidence

238. As a result of Penny being the subject of a protection order and the COVID-19 pandemic, neither of the psychiatrists had the opportunity to examine Penny or speak to the plaintiff or Mrs Kennedy. The psychiatrists were briefed with four volumes of medical and educational records relating to Penny for the purpose of expressing an opinion. The psychiatrists were asked to address five questions formulated by the parties and myself aimed at resolving the issues on which they could comment. The joint report and the evidence of the psychiatrists can be summarised as follows.

239. The psychiatrists agreed that Penny satisfies the diagnostic criteria for her primary diagnoses of Borderline Personality Disorder, Anorexia Nervosa and has a mild intellectual disability. She has also previously been diagnosed with complex Post Traumatic Stress Disorder, depression, anxiety, Obsessive Compulsive Disorder and Conduct Disorder.

240. Penny has had a long history of mental health difficulties and contact with mental health services for about 10 years prior to the plaintiff’s diagnosis with mesothelioma. Penny’s mental health difficulties in that period have included separation anxiety, obsessions and compulsive handwashing, difficulties maintaining friendships, oppositional defiant disorder, conduct problems and emotional dysregulation. Since late primary school Penny has suffered auditory hallucinations telling her to engage in self-harm by cutting herself and by taking overdoses of medication. Penny has also been obsessive about her weight and diet resulting in an eating disorder.

241. The psychiatrists opined that Penny’s mental condition has arisen from a complex mixture of genetic, biological, developmental, environmental and historic factors including a strong family history of mental illness and probable pre-natal exposure to alcohol, her intellectual disability and an early developmental experience of neglect and parental dysfunction, several changes of carers and a history of trauma.

242. The psychiatrists agreed that as a result of Penny’s complex difficulties that she needed a safe and stable home environment in which a parental figure was home to provide support and supervision. The presence of the parental figure is required to lower her levels of hyperarousal, hypervigilance and anxiety flowing from her trauma by providing emotional soothing and empathy when distressed and in psychiatric emergencies and to get life-saving help if it is required. A caring parental figure would also assist in providing reminders and support to attend to her nutrition and self-care and to assist with the implementation of any home based behavioural management program provided by Penny’s psychologist. Parental figures are also necessary to act as advocates for the child and to mobilise services to secure appropriate care which is an essential part of caring for a child with a disability.

243. Dr Vickery opined that Penny’s grandparents were not up to coping with the severity of Penny’s behavioural and emotional disturbance. He pointed to evidence that Penny had expressed that she was upset with her grandmother when she self-harmed in May 2019 and that in August 2019 that she had expressed, “I don’t feel like my grandparents understand me”. Dr Vickery did accept in his evidence that the most appropriate place for Penny to be cared for was with her grandparents.

244. Dr Kneebone disagreed with Dr Vickery on this point, stating that Penny’s statements should be assessed in the context of Penny’s emotional volatility and that they should not be taken to truly reflect the circumstances of her home life with her grandparents. Dr Kneebone pointed to contrary statements made by Penny to the effect that her grandparents provided significant physical and emotional support and that they were supportive.

245. The psychiatrists agreed that the plaintiff’s illness with mesothelioma that first manifested in September 2019 was one of a number of multiple factors that contributed to the significant deterioration in Penny’s mental condition in late 2019. The psychiatrists did not agree as to the significance of the plaintiff’s illness in the deterioration of her condition.

246. Dr Vickery opined that the significant decline in Penny’s mental condition began in about mid 2019 around the time of the anniversary of the tragic and violent death of one of her major support persons. This was before the plaintiff first suffered significant symptoms of mesothelioma in September 2019. He also pointed to psychiatric admissions in August 2018 and June 2019. Dr Vickery noted that Penny had expressed a fixation on the loss of her support person on many occasions throughout early to mid-2019.

247. Dr Kneebone opined that Penny’s four psychiatric admissions in quick succession between November 2019 to January 2020 to represent a more significant and concerning decline in Penny’s mental condition. He opined that there was a temporal connection with the plaintiff’s illness about which she had expressed some concern. Dr Kneebone also noted that the plaintiff’s illness prevented Penny being discharged home after those admissions adding to her problems, including the experience of additional trauma in the group homes where she resided.

248. The psychiatrists agreed that Penny experienced further trauma at one of the group homes and that it exacerbated her aggressive behaviour which served to accelerate and aggravate her decline.

249. The psychiatrists agreed that the other causes of her decline included the anniversary of the death of her support person, her sexual behaviours and encounters and her reported use of cannabis. The psychiatrists identified two histories given by Penny in May 2020 to the effect that she smoked up to 12 cones per day to help her get to sleep. There was only one other mention of drug use in the voluminous medical and educational records that I have identified. In the course of their evidence, the psychiatrists also agreed that the decline in Penny’s mental condition was consistent with the natural progression of Borderline Personality Disorder which was usually at its most florid in adolescence and in particular, between the ages of 16 and 18, which coincides with the time at which it is most difficult to treat.

250. The psychiatrists agreed that Penny’s prognosis was poor because she is at risk of; not completing her high school education, engaging in further self-harm and possibly suicide, abusing drugs and alcohol, having periods of homelessness, forming dysfunctional relationships involving emotional and/or physical abuse and being a high user of emergency health care services.

251. The psychiatrists agreed that Penny presently needs a carer to be present in the same household 24 hours per day to deal with psychiatric emergencies, to prevent self-harm and to summon emergency assistance if required. A carer also needs to take control of her meals, monitor her nutritional intake, prevent any compensatory behaviour such as purging and to assist with the implementation of a home-based behavioural management program prescribed by Penny’s treating psychologist. Family involvement in treatment of young people with personality disorders is important because the emotional investment in their care is higher.

252. Dr Vickery opined that it was highly unlikely that Penny’s grandparents would have been able to continue to care for her because of her escalating behaviours, even if the plaintiff had not been diagnosed with mesothelioma.

253. Dr Kneebone opined that the plaintiff’s diagnosis made the return of Penny to the care of her grandparents not a viable option. He opined that the absence of family support in her care made Penny more susceptible to adverse outcomes, because family involvement was important in the treatment of young persons aged 16-18 with Borderline Personality Disorder because it is the time when the condition is usually at its most severe and because it is a time where patients are least receptive to individual therapy through counselling.

254. The psychiatrists agreed that the process of Penny attaining her independence after she turned 18 would be complicated by reason of her mental condition. Dr Kneebone opined that her independence should be managed over time in a step-by-step process of removing scaffolds one at a time. Dr Vickery agreed with this, particularly if Penny’s intellectual disability was moderate rather than mild, consistent with some entries in the reports that he had read. Dr Vickery agreed that Penny had more chance of completing her education if she was living with her grandparents and if she continued to be allocated a one-on-one teacher’s aide.

255. The psychiatrists agreed in oral evidence that the care required for Penny after she turned 18 would still be focussed on harm minimisation. Dr Kneebone stated that studies demonstrated that at 16 year follow-ups many patients with Borderline Personality Disorder show significant improvement in their psychological distress and symptoms but have an ongoing vocational and social impairment. But, there is also a 10% mortality rate from suicide, overdose or misadventure. Dr Kneebone’s evidence was that there was a need for a carer to prevent or minimise the harm presented by alcohol and other drug use, sexual promiscuity, self-harm and risky relationships. Dr Vickery agreed and stated that his concern was that Penny’s high level of drug use would make her harder to manage. Dr Vickery agreed that for at least the next two or three years that she would be better off in a place that she felt safe and secure.

Expert occupational therapy evidence

Natala Cogger, occupational therapist

256. Ms Cogger assessed the amount of time required to care for Penny making the following assumptions. First, that Penny was attending school. Second, that the care for her was shared equally between the plaintiff and Mrs Kennedy. Ms Cogger opined that Penny would have required at least 8 hours per day support and supervision for the next 2 years until she is 18 years of age. The cost of this care was calculated by Ms Cogger to be 56 hours per week at $31.54 per hour until 23 January 2022, coming to a total of $134,993.72.

257. Thereafter, Ms Cogger’s evidence is that Penny would have required at least 2 hours per day (14 hours per week) for the remainder of the plaintiff’s life expectancy. She opined that the plaintiff would have always been on call as a result of Penny’s mental health and there would have been periods when the need for care was greater. The future cost of this care is $883.12 per week for the remainder of the plaintiff’s life expectancy of 8 years (371.8) less 15% for vicissitudes coming to a total of $279,992.41.

258. In her second report, Ms Cogger opined on the basis of Dr Kneebone’s opinion and her own experience, that Penny would need to reside in “stable accommodation” in order for her to feel safe. On the assumption that Penny’s care was to be provided by a live-in carer, Ms Cogger would recommend that two carers be recruited who could work on a roster basis. Ms Cogger opined that to provide this service commercially would involve 24 hour support with 8 hours of active support. The commercial cost of this service is $4,500 per week.

Deborah Hammond, occupational therapist

259. Ms Hammond noted the history contained in the relevant documentation and it is unnecessary to repeat those matters. Ms Hammond also had Dr Kneebone’s report of 11 April 2020 and reports of the WA Child and Adolescent Mental Health Service in the period 2011 to 2019. Ms Hammond was also provided with the records relating to Penny’s schooling.

260. Ms Hammond noted that the resident ratio of the group home that Penny had been residing was 1:1 and opined that she required a higher level of care. She noted that Penny has a long history of behavioural difficulties and an increase in school absences from about mid-2018. She acknowledged that the illness of the plaintiff would have placed increased strain on her mental health because she was close to him.

261. Ms Hammond did not agree that Ms Cogger’s conclusion that the plaintiff would have provided 8 hours per day daily support and supervision was reasonable. She noted that the plaintiff and Mrs Kennedy had shared care of Penny. Ms Hammond reasoned that Penny’s need for care did not amount to 16 hours per day of which half could be allocated to the plaintiff. She stated that Penny’s needs were the provision of assistance with homework, transport to and from school, activities and appointments, the provision of cooking and cleaning (which was incorporated into their own need for these services) and checking on her to make sure she was safe on their way to bed.

262. Ms Hammond calculated Penny’s needs to be transport to and from school (1.75 hours per week), transport to and from medical appointments (1.5 hours per week), assistance with homework (7 hours per week) and domestic assistance for her benefit (1 hour per week). On allocating half of these needs as being satisfied by the plaintiff, Ms Hammond would have allowed 5.625 hours per week.

263. Ms Hammond opined that Ms Cogger’s supplementary report providing costings for a live-in carer for Penny was not reasonable in the circumstances of the case because it is likely that at times when this level of supervision was required, that she would be hospitalised and that more specialist services, if they are required, are available through the NDIS.

Findings relevant to the s 15B claim

264. The plaintiff and Mrs Kennedy provided continuous care for Penny from when she came to live with them in 2006 and 8 September 2019 when the symptoms of the plaintiff’s illness first manifested, except when she required inpatient treatment for her mental condition.

265. Until Mrs Kennedy retired in 2012, the plaintiff was Penny’s primary care provider. Penny and the plaintiff had a special bond because of his extended care for her during her formative years.

266. By reason of her age, mental condition and intellectual capacity, Penny was provided with care consisting of cooking, cleaning, laundry, transport to and from school, medical appointments and activities, assistance with homework and supervision.

267. Penny had a propensity for self-harm and for inappropriate behaviour, such as inappropriate use of the internet as a result of her mental condition. She required close monitoring and passive supervision by having someone present when she was at home to ensure her physical and mental well-being. This included a need to have someone present in the house at night and to have someone available if she was not well enough to stay at school or go to work. There were occasions when Penny’s mental condition would deteriorate to the extent that she required inpatient treatment. The plaintiff and Mrs Kennedy supported her at those times guided by the mental health practitioners in charge of her care.

268. Penny had suffered exacerbations of her condition from time to time prior to September 2019 that resulted in her being hospitalised. On each occasion Penny returned to live with her grandparents and they continued to cope with the considerable demands that she placed on them.

269. Penny became concerned for the plaintiff when he became ill and was diagnosed with mesothelioma. I am satisfied that this was a cause of the deterioration in her mental condition in late 2019 that led to her hospitalisation and subsequent placement in group homes.

270. I am satisfied that there was a significant decline in her mental health in late 2019 because she required hospitalisation on four separate occasions in quick succession and that pattern of hospitalisation was unprecedented. I am satisfied that a reason for this was a disturbance in the equilibrium of her home environment that was referrable to the plaintiff’s illness. I do not think that her precise knowledge of the plaintiff’s condition was important. He was absent because he was in hospital and not able to give her the same attention that he could prior to him becoming ill.

271. I am not satisfied that Penny was smoking cannabis to the extent that she reported in May 2020. I note that there was a history given by Penny in January 2020 of occasional cannabis use. I do not accept that she could have been using up to 12 cones per day while she was living with her grandparents. Further, at that level it would have been an expensive drug habit and there is no evidence that she had access to the money necessary to fund it.

272. When Penny was cared for at the group homes in 2020, she received one-on-one support 24 hours per day. Penny’s experiences at the group homes caused her further trauma and led to further decline in her mental condition. Optimal care for Penny’s condition is to be cared for by family members with emotional investment in her well-being.

273. I am satisfied that Penny required that level of support immediately prior to 8 September 2019, but that her condition was being managed such that she was capable of going to school and that shifted some of the burden for caring for her to the school. The care provided to Penny was split evenly between the plaintiff and Mrs Kennedy.

274. Penny has a continuing need for care on a one-on-one basis for 24 hours per day and it is likely that this need will continue until she turns 18. Penny has been in the care of her grandparents almost continually with the consent of the Department. I note that the Department bears the ultimate responsibility for deciding where she resides. Her recent experience in group homes was a dismal failure resulting in further trauma and a deterioration of her condition. It is unsurprising that the Department respected Penny’s wishes to return to live with her grandparents. Further, the psychiatrists agreed that residing with her grandparents coincides with her best interests for the treatment of her mental condition at her present age. I am satisfied that these matters are likely to result in the Department returning Penny to live with her grandparents even if she requires hospitalisation or inpatient treatment in the future.

275. After she reaches 18, it likely that she will continue to require care even if she is no longer in the care of the Department. Her mental condition and intellectual disability will not resolve just because she turns 18. The psychiatrists agreed that she needed significant supervision to provide for harm minimisation and family-based assistance with behavioural management. The psychiatrists agreed that her progress to independence would need to be managed carefully and slowly on a step-by-step basis.

276. When Penny turns 18, the plaintiff would have been 84 years of age. The bulk of the care provided by him for Penny was in the form of domestic services and supervision which he would have been required to do for himself and Mrs Kennedy, or otherwise would not have been outside of his physical capabilities.

277. I prefer the evidence of Dr Kneebone that Penny would have continued to live with her grandparents after periods of hospitalisation, but for the plaintiff’s mesothelioma. I do not accept the evidence of Dr Vickery that Penny’s grandparents were incapable of looking after her. I reject the evidence of Dr Vickery in his reports that Penny would be best cared for in a group home. To be fair to Dr Vickery, he clearly resiled from this position in the joint report and in the concurrent evidence because he recognised that Penny’s placement in the two group homes caused her further trauma and exacerbated her condition and because he agreed with Dr Kneebone that the best care for Penny would be provided by emotionally invested family members in a home setting which Penny considered to be safe and secure.

278. The nature of Penny’s condition is such that she may not accept the care that she needs. It is likely that there will be periods in which she requires inpatient treatment, including involuntary admissions to hospital. It is also possible that she will be absent from her grandparents’ home through misadventure or by choice. However, her grandparents have been her major support throughout her life and I am satisfied that but for the plaintiff contracting mesothelioma, that he would have always continued to have been part of Penny’s life.

Determination

279. I am satisfied that the requirements of s15B Civil Liability Act 2002 have been met for the following reasons.

280. First, Penny was a grandchild of the plaintiff who had been dependent on his care since the age of two. He continued to care for her until he lost capacity to do so by reason of his illness.

281. Second, Penny was unable to care for herself by reason of her age and her mental incapacity caused by her mental condition and intellectual disability.

282. Third, I am satisfied that there is a reasonable expectation that but for the plaintiff contracting mesothelioma that he would have continued to provide care to Penny for more than 6 hours per week and for longer than 6 months. Penny was a member of the plaintiff’s household and dependent upon him and Mrs Kennedy to provide services including, cooking, cleaning, laundry, transport, assistance with homework, supervision and on-call support which included passive supervision. Penny had been known to engage in self-harm and to engage in inappropriate behaviour if she was not closely monitored. I am satisfied that it was necessary for Penny to be closely supervised and to always have someone in the house with her to protect her physical and mental well-being. The plaintiff and Mrs Kennedy shared these duties equally. The arrangements had been in place for an extended period prior to the plaintiff’s illness and it is likely that the services would have been required at least until Penny reached the age of 18, but probably for longer than that. I accept the evidence of Ms Cogger that the plaintiff was providing 8 hours a day care for Penny on the days that she went to school and probably more than that on the weekends. I am satisfied that a cause of the deterioration in Penny’s condition in late 2019 was the plaintiff’s illness and diagnosis that necessitated her involuntary hospitalisation and placement in group homes. I am satisfied that but for the plaintiff’s illness that it was likely that he would have continued to provide care to Penny continuously for a six month period.

283. Fourth, the extent of the care required to be provided for Penny was reasonable because it was created by her age, her mental condition and her intellectual disability.

284. As to the past, the plaintiff was unable to provide care for Penny by reason of his illness from 8 September 2019 to 19 November 2019 (10 weeks) when she went into hospital and from 11 June 2020 to 31 July 2020 (7 weeks). I am satisfied that but for his mesothelioma that the plaintiff would have continued to provide 8 hours per day care for Penny, being half of the time that she was not in school or at work. This represents an underestimate to some extent because it is likely that he would have provided 12 hours per day care on the weekends and there were some other periods that she was living at home between 8 September 2019 and the present. Nevertheless, I am satisfied that the estimate is reasonable. The appropriate award for the past s 15B damages is 952 hours at $31.54 per hour coming to a total of $30,026.

285. As to the future, I am satisfied that the plaintiff would have continued to provide care for Penny for 8 hours per day until she reached the age of 18 on 23 January 2022 (84 weeks). The damages for the future until Penny reaches the age of 18 should be discounted by reference to two matters. First, the ordinary figure of 15% should be applied for the vicissitudes of life that relate to the plaintiff. There is no reason by reference to his medical history to increase this figure. Second, a further discount is necessary to take into account the time that Penny may have been out of the plaintiff’s care by reason of her condition, such as when she required hospitalisation or through misadventure. I am satisfied, for the reasons already given, that the Department would have returned Penny to the care of her grandparents after such absences. The appropriate discount by reference to her absences from the plaintiff’s care in the past is 30%.

286. The appropriate award for the future until Penny turns 18 is calculated for 84 weeks at 56 hours per week, less 15% for vicissitudes relating to the plaintiff, less 30% for the factors relating to Penny’s absence from home, coming to a figure of $88,276 for that period.

287. I am satisfied that Penny required a further period of 3 years of care to age 21 at the same level to provide for harm minimisation and to provide for her gradual and structured independence. However, the second discount applied for the possibility that she will be away from home should be increased substantially to take into account that the Department would not have had the power to return her to her grandparents’ care. It is possible that other authorities may do so, such as if she became the subject of a Community Treatment Order under the Mental Health Act 2014 (WA). The appropriate discount is 50% to take account of the possibilities that Penny would have been absent from home for the reasons of hospitalisation, misadventure or declination of care.

288. The appropriate award for the future until Penny turns 21 is calculated for 3 years (3% multiplier of 149.8) at 56 hours per week, less 15% for vicissitudes relating to the plaintiff, less 50% for the factors relating to Penny’s absence from home, coming to a figure of $112,448 for that period.

289. The total award for the future is $200,724.

Conclusions on Issue 5

290. The plaintiff is entitled to an award of damages against each defendant, set out in the following table.

Head of Damage	Award against CIMIC	Award against CPB
General Damages	350,000	430,000
Interest on GDs	4,166	5,333
LEL [19]	8,000	8,000
GACS [20] - past	69,630	112,149
Interest on past GACS	1,523	2,453
GACS - future	26,493	27,408
GDS [21] - s 15B - past	30,026	0
GDS - s 15B - future	200,724	0
Total	$690,562	$585,343

19. Loss of expectation of life

20. Gratuitous Attendant Care Services.

21. Gratuitous Domestic Services.

Orders

291. The orders I make are as follows:

1. Verdict and judgment for the plaintiff against the first defendant in the sum of $690,562.

2. Verdict and judgment for the plaintiff against the second defendant in the sum of $585,343.

3. The plaintiff is only entitled to seek satisfaction of either or both judgments against one or both of the defendants to a maximum of $690,562.

4. The defendants are to pay the plaintiff’s costs of the proceedings on the ordinary basis, as agreed or assessed.

5. I grant liberty to the parties to approach my Associate to relist the matter if a different costs order is sought.

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Endnotes

Decision last updated: 31 July 2020