Latham v Amaca Pty Lrd

[2001] NSWDDT 20

Dust Diseases Tribunal

of New South Wales

CITATION:	Latham v Amaca Pty Lrd & Anor [2001] NSWDDT 20
PARTIES:	Max Vincent Latham Amaca Pty Ltd Seltsam Pty Ltd
MATTER NUMBER(S):	88 of 2001
JUDGMENT OF:	O'Meally J at 1
CATCHWORDS:	Damages :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	14 June 2001 15 June 2001 21 June 2001
EX TEMPORE JUDGMENT DATE :	06/21/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr A J Bartley SC with Mr F Tuscano instructed by McLaughlin & Riordan FOR DEFENDANT Mr P E Blacket SC instructed by Holmann Webb appeared for the first defendant Mr D P O’Dowd instructed by Toomey Pegg & Drevikovsky appeared for the second defendant

JUDGMENT:

1. This is an action for damages by Max Vincent Latham against Amaca Pty Ltd and Seltsam Pty Ltd. The plaintiff suffers mesothelioma and it has been accepted for the purpose of these proceedings that he is likely to die on 1 August 2001, that is in a couple of months time.

2. I am grateful to counsel for the manner in which I have been addressed and for the concessions made during the course of submissions and for the agreement which has been reached.

General damages

3. Mesothelioma is a dreadful, horrible and painful disease. It has no cure and those who suffer it experience constant and exquisite pain from which it is difficult to obtain relief.

4. The defendants concede an amount appropriate to compensate the plaintiff for pain and suffering is $160,000. The plaintiff submits an appropriate amount is one much higher. That submission is based upon the maximum amount which now might be awarded under the Motor Accident Act and the maximum amount for work injury prescribed under the Workers Compensation Act. Those maxima at the moment are, respectively, $284,000 and $246,900. In my view it is inappropriate to consider those maxima as it is inappropriate also to consider that those maxima are “capped”. The plaintiff seeks general damages in the order of $250,000 on the basis that such a figure represents appropriate compensation in extreme cases.

5. In cases of mesothelioma pain is severe usually soon after diagnosis. Sometimes treatment alleviates pain, but as death approaches it becomes almost impossible to secure pain relief by narcotics used in Australia. The pleura is an extremely sensitive pain receptor with numerous nerve fibres. Any interference with it causes exquisite pain. Treatment and growth of the mesothelial tumour cause significant interference with the pleura. Mesothelioma is one of the most painful of malignant tumours.

6. As the tumour grows it slowly compresses the lung. Breathlessness results. Each breath then is accompanied by pain so severe that the sufferer might choose between exquisite pain and not breathing. That, of course, is no choice at all. Terrible pain and breathlessness will continue to increase as the tumour surrounds the lungs and becomes a solid mass. It will become increasingly difficult for the lungs to contract and expand because the thickening tumour will become stiffer as its mass grows. Oxygen and narcotics will be required. When narcotic analgesia is adopted breathing is less effective and breathlessness increases. Breathlessness frequently induces fear and panic. Narcotic medication usually causes constipation and, frequently, hallucination. The plaintiff has undergone successive aspirations of pleural fluid and has had a talc pleurodesis with a view to limiting the incidence of further aspirations. Each of these procedures is exquisitely painful. There is a risk always of infection following aspiration, as there is a risk that the tumour will migrate along the aspiration channel and erupt upon the surface of the skin.

7. The plaintiff has been experiencing symptoms since March 2000. He is, like many people who inhabit rural Australia, stoic and uncomplaining. Nevertheless, there is no challenge to his evidence that he has experienced painful symptoms as he described them. One is not permitted to have regard to awards of general damages in other cases, but in cases of mesothelioma there is, nevertheless, some uniformity in awards of general damages made in the Tribunal. I am not satisfied on the evidence that any award greater than that conceded by the defendants should be made and I would, accordingly, determine that $160,000 is a sum appropriate to compensate the plaintiff for the pain and suffering he has endured and will continue to endure until he dies. I do not consider it appropriate in the circumstances of the case to award a sum in the order of $250,000 as was submitted on the plaintiff’s behalf.

Loss of expectation of life

8. According to the Australia life tables a 61 year old Australian male has a life expectancy of 19.5 years. The plaintiff is a 61 year old Australian male. Statistically he will be deprived of something in the order of 19.5 years of life. Authority requires that a conventional or modest sum be awarded for loss of expectation of life. The plaintiff submits a sum appropriate to award for loss of expectation of life is something in the order of $20,000 to $25,000. An amount of $25,000 is usually awarded in the cases of younger plaintiffs. My view is that a sum of $17,500 is appropriate to award the plaintiff for loss of expectation of life.

Past and future care

9. It has been agreed that $35,000 is the amount required to compensate the plaintiff for the cost of past and future care.

Loss of earning capacity

10. The remaining matter, and that which has involved by far the bulk of evidence and argument, is the sum to be awarded for lost earning capacity. In this context it is relevant to observe that since 1975 the plaintiff has been involved in agricultural and grazing pursuits. Relevantly, he is in partnership with his wife near Currabubula where, as joint tenants, he and she hold two agricultural properties; one Bellevue of 1,033 acres and the other Goodwood of 1,221 acres. Goodwood is 21 kilometres from the homestead on Bellevue. The plaintiff and his wife live in that homestead and their son Mark lives on Goodwood.

11. The substantial activity on the properties is the breeding of Angus cattle. When the heifers reach a weight of 450 kilos or thereabouts and are in calf they are sold to feed lot entrepreneurs who raise the cattle until, having increased considerably in weight, they are ready for slaughter. Whilst awaiting slaughter the cattle are prepared for the Japanese beef market. This involves the marbling of their meat so that it becomes easy to cut and its taste is to the liking of those wealthy enough to purchase beef in Japan. It is now a profitable business, though the area within which the plaintiff and his wife have their properties has been subjected to vagaries and endured bad years. Drought, pests, currency and other factors have affected the profitability of their enterprise.

12. The plaintiff and the defendants have each qualified accountants whose reports and oral evidence are before me. With all respect to the accountants, they have not really addressed the issue committed to me. What I am required to consider is the extent to which the plaintiff’s earning capacity has been impaired. What the accountants have addressed is closer to an estimation of the plaintiff’s future loss of income. Nevertheless the analysis of profit and loss accounts and income tax returns are of some assistance in the exercise I am required to perform.

13. I do not think it appropriate to assess the plaintiff’s loss of earning capacity on the basis that, if the grazing enterprise were to be maintained, it would become necessary to employ a farm manager as was suggested by his accounting expert. Neither do I think it appropriate to consider material in relation to farm incomes garnered from the Australian Bureau of Statistics as was suggested by the defendant’s accounting expert. Loss of earning capacity and future income loss are not the same. In the discussions with counsel it was agreed that an appropriate approach to take would be to make an assessment of the plaintiff’s capacity to earn annually and to capitalise that at a net figure deducting appropriate amounts for maintenance during lost years and for contingencies. What the parties did not agree upon were the amounts that should be deducted for contingencies. At my invitation counsel made and agreed upon calculations which would give a net figure based upon a capacity to earn sums varying between $30,000 and $65,000 net per annum discounting at various rates for various periods. His own maintenance is agreed at $100.00 per week.

14. The plaintiff’s evidence is that he intended effectively to work until he died. I am not satisfied that his expressed intention would probably have been realised. True it is that until he first began to experience symptoms the plaintiff had led a fairly healthy and unaffected life. Minor surgery had been carried out in his twenties, he had a cholecystectomy in 1990 and had a throat nodule removed in 1997. He has some asymptomatic minor degeneration in his spine. So, I would think, does everyone of or over the age of 61 years. The plaintiff has not been troubled by discogenic or degenerative back pain. I am of the view that the plaintiff would probably have worked to age 75. I am also of the view that it is appropriate to discount the net figure which he might have earned annually by varying amounts, these being until age 65: 15 per cent; between 65 and 70: 25 per cent; and from 70 to 75: 50 per cent.

15. The defendants admit that, being as generous to the plaintiff as the evidence permits, a figure of $218,824 could be allowed, though submit, upon calculations placed before me, it should realistically be $148,073. These figures are assessed on calculations from material contained within the report of the defendants’ accountant.

16. The plaintiff has submitted that the report of Mr Ivy, who was qualified on his behalf for the purpose of this case, provides a far more realistic basis upon which to assess the plaintiff’s lost earning capacity. Mr Ivy’s report, as noted, also addresses matters more relevant to future loss of income rather than lost earning capacity.

17. It is urged upon me by senior counsel for the plaintiff that I should conclude that the plaintiff’s lost earning capacity is in the order of $84,000 per year. With respect to the able argument advanced to me by Mr Bartley SC I am unable to agree, and for two reasons. Firstly, in arriving at that figure generally good years, that is the last three years, were chosen and secondly, it is predicated upon good years continuing. Life on the land is uncertain: whether they be La Niña or El Niño or pests or foreign currency variation, many factors operate to influence life on the land. It is of course true, as Mr Bartley pointed out, that not all contingencies are bad, but taking that into account and doing the best I can to do justice between the parties I think it reasonable to assess the plaintiff’s loss of earning capacity on the basis his loss from the present until age 75 would be in the order of $50,000 per annum. Making the deductions for contingencies referred to in paragraph 14 and for maintenance during lost years this gives a figure of $308,517.

Judgment

18. Thus the plaintiff is entitled to judgment made up as follows:

Past and future care $35,000
General damages $160,000
Interest on past general damages agreed at $2,000
Loss of expectation of life $17,500
Loss of earning capacity $308,517
Total $523,017

There will be verdict and judgment for the plaintiff for $523,017. It should be noted that the defendants, whilst jointly and severally liable, have reached agreement between themselves as to the contribution that should be made by each.

19. The defendants will pay the plaintiff’s costs as agreed or assessed.

Mr A J Bartley SC with Mr F Tuscano instructed by McLaughlin & Riordan appeared for the Plaintiff.

Mr P E Blacket SC instructed by Holmann Webb appeared for the first defendant.

Mr D P O’Dowd instructed by Toomey Pegg & Drevikovsky appeared for the second defendant.