Latz v Hansen Family Investments
[2005] NSWDDT 22
•05/19/2005
Dust Diseases Tribunal
of New South Wales
CITATION: Latz v Hansen Family Investments & Anor [2005] NSWDDT 22
PARTIES: Robert Douglas Latz
Hansen Family Investments Pty Ltd (Formerly known as Hansen & Yunken P/L (In Liquidation) (First Defendant)
Regit (No 2) Pty Ltd ( Formerly known as hansen & Yunken (SA) Pty Ltd (In Liquidation) (Second Defendant)MATTER NUMBER(S): 109/05
JUDGMENT OF: O'Meally P at 1
CATCHWORDS: :- Dust Disease Tribunal - action for damages - mesothelioma - application pending in High Court of Australia against decision of Supreme Court of NSW to cross-vest different case to Supreme Court of South Australia - damages only issue in current case - judgment not delayed - damages assessed
LEGISLATION CITED: Dust Diseases Tribunal Act, 1989; s 25(3), s 25A, s 25B
CASES CITED: BHP v Utting & Anor [2005] NSWSC 260;
BHP Billiton Ltd v Schultz 2 DDCR 78 at 91 [27];
Griffiths v Kerkemeyer [1977] 139 CLR 161;
Ewins v BHP Ltd v Wallaby Grip Ltd [ 2005] SASC 95;
Kennedy v Amaca Pty Ltd [2004] 1 DDCR 72 [16] - [38];
Sullivan v Gordon [1999] NSWCA 338DATES OF HEARING: 3rd and 19th May 2005 EX TEMPORE JUDGMENT DATE: 05/19/2005
LEGAL REPRESENTATIVES: MJ Joseph SC instructed Alex Stuart & Associates
JA Jobson (First and Second Defendants) instructed by McCulloch & Buggy
JUDGMENT:
O'MEALLY P
1. This is an action for damages by Robert Douglas Latz against Hansen Family Investments Pty Ltd and Regit (No 2) Pty Ltd. The plaintiff alleges, and it is now conceded, that as a result of exposure to asbestos dust and fibre in the course of his employment by the defendants he has contracted malignant mesothelioma from the effects of which he will soon die.
2. The only medical evidence before me is contained in the report of Professor Alpers, who was qualified by the plaintiff for the purposes of this case. Having examined the plaintiff Professor Alpers expressed the view that the plaintiff would live for only one to two months, but that the period could be much shorter “as the tumour mass could erode into [the plaintiff's] pericardium or great vessels and cause sudden death”. His report bears date 12 May 2005. That being the only medical evidence I would conclude that the plaintiff has one month to live and would regard 19 June 2005 as the presumed date of his death.
3. During the course of final submissions Mr Jobson of counsel for the defendant again asked me to delay delivering judgment until after 27 May next, that being the day upon which the High Court of Australia will hear an application for special leave to appeal against the decision of Simpson J in the Supreme Court of New South Wales in BHP v Utting & Anor [2005] NSWSC 260. On 16 May last, I refused an application to adjourn the hearing of this case until after that application was dealt with. I have been informed by counsel that in Utting the High Court will be asked to express an opinion on the nature of certain provisions of the Dust Diseases Tribunal Act, they being s 25(3), s 25A and s 25B, and will be invited to say whether those provisions are substantive or procedural in nature.
4. Since 16 May 2005 the only issue in this case has been the assessment of damages. There is nothing which could or would be affected by the granting of leave in Utting. In refusing the defendants' application on 16 May last I quoted from the remarks of Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Schultz 2 DDCR 78 at 91 [27]. It is unnecessary to repeat those words other than to say they refered to circumstances in which the interests of justice would warrant a refusal to cross-vest. They make it unlikely that a case like this would be cross-vested. I see no reason to defer judgment until after the special leave application has been heard in the High Court of Australia for there is no basis upon which this case could be affected by whatever might happen in the High Court and by whatever it may decide.
5. Agreement has been reached in respect of certain items of special damages and for the compromises and concessions made by the representations of plaintiff and the defendants I am grateful. What remain in issue are sums for general damages, loss of expectation of life and past and future Griffiths v Kerkemeyer expenses.
6. In the course of submissions I indicated to counsel that in the circumstances of this case I thought the sum of $150,000 was appropriate to award as general damages and the sum of $15,000 for loss of expectation of life. Mr Jobson has submitted that those amounts are excessive and in this connection he relies upon the decision of Doyle CJ, in Ewins v BHP Ltd v Wallaby Grip Ltd [2005] SASC 95 delivered on St Patrick's Day this year. That was a case in many respects similar to the present case. There the Chief Justice, who presided at the trial of the action, was invited to award a sum commensurate with those commonly awarded as general damages in this Court. The Chief Justice eschewed that invitation, reviewing awards of general damages in South Australia and, having done so, concluded that in the circumstances of Mr Ewin's case a sum of $100,000 was appropriate for general damages and $10,000 was appropriate for loss of expectation of life. For reasons given in Kennedy v Amaca [2004] 1 DDCR 72 [16] – [38] I intend to assess damages as I would in any case, disregarding the place where the tort was committed. The assessment of damages is governed by the common law. There is one common law for Australia. Accordingly, general damages for pain and suffering and loss of amenity should not vary from one part of the nation to another. It should be noted that Mr Jobson would not dispute the reasonableness of $150,000 as general damages and $15,000 for loss of expectation of life had the tort been committed in New South Wales.
7. In assessing general damages one must, of course, take into account the presentation and progress of the plaintiff's mesothelioma and the treatment he has received as a consequence. The plaintiff became symptomatic in September 2004 and was admitted to hospital between 22 and 27 September. During that stay the diagnosis of mesothelioma was made. The plaintiff was again admitted to hospital between 3 and 16 November 2005 and underwent a talc pleurodesis and thoracotomy. Neither of these procedures is a pleasant one, indeed they are extremely painful as is the aspiration of ascites, a procedure also carried during the same admission.
8. Since September 2004, apart from the periods that he has been in hospital, the plaintiff has had the assistance of his partner who has attended to his needs and wants.
9. The plaintiff in this case has experienced rather more severe consequences of his mesothelioma than many other plaintiffs who have the misfortune to contract this terrible disease. Apart from post-surgical pain he had and has panic attacks, his appetite has been adversely affected and his capacity to mobilise without assistance has gone. His evidence was that he was depressed and anxious and often visits from his children, who are 16 and 12 years old but living apart from him, do not occur as they did beforehand by reason of his condition when in severe pain and discomfort. Beforehand he would pick up his children from school, they would stay with him and he would return them to their mother's home. This occurred daily between Mondays and Fridays during term time.
10. Mesothelioma is a devastating and exquisitely painful disease. As the mesothelial tumour grows it surrounds and restricts the lung so that every breath is difficult. Moreover, because the pleura is an extremely sensitive pain receptor every breath is accompanied by terrible pain. The sufferer is faced with the choice of breathing or not, and that of course is no choice at all.
11. In my view the sum appropriate to compensate the plaintiff for his pain and suffering, anxiety and depression and the other matters to which I have referred is $150,000 of which, because of his short life expectancy 80 per cent should be allocated to the past. Authority requires a modest amount to be awarded for loss of expectation of life. According to the Australian life tables a 69 years old Australian male has a life expectancy of 15 years. My view is the sum of $15,000 is appropriate to compensate him for the loss of expectation of life.
12. I have referred to the condition of the plaintiff following his discharges from hospital in September and November 2004. His partner, Ms Hadley, assists in the administration of his medication and ensures that he takes it. With varying frequency he wakes during the night and attends to toileting needs. In this he is assisted by Ms Hadley, who is woken and escorts him to the toilet. Before he was admitted to hospital she lived in her own home, but since his discharge from hospital in September 2004 she has been residing with him in his own home and sharing his bed. This enables her more effectively to assist him and perform necessary services for him. She prepares meals, does the housework and looks after him during the course of his frequent panic attacks.
13. It is my view that after his discharge from hospital in September 2004 there was a need for full-time passive care. It is my view that since his discharge from hospital in November 2004 there has been a need for full-time active care. It is true, as Mr Jobson submits, that she is not attending to him for 24 hours each day. Nevertheless her presence is required and it is appropriate in the circumstances of this case that she be on call to provide assistance as and when it is needed. That has been the case since his discharge from hospital in September 2004 and thus it is that I have come to the view that a need for full-time care has been established.
14. Calculations were agreed in respect of past and future Griffiths v Kerkemeyer expenses though the entitlement was disputed.
15. Other items of special damage have been agreed and I shall recite them.
16. The plaintiff is entitled to damages made up as follows:
General damages $150,000.00
Interest on past general damages $1,800.00
Loss of expectation of life $15,000.00
Past out of pocket expenses $23,271.61
Interest on past out of pocket expenses $100.00
Future medical expenses $2,500.00
Future out of pocket expenses $25,000.00
Past Griffiths v Kerkemeyer expenses during the
two periods he was in hospital $900.00
Past Griffiths v Kerkemeyer expenses whilst not
in hospital $119,400.00
Interest on past Griffiths v Kerkemeyer expenses $4,777.50
Future Griffiths v Kerkemeyer expenses $16,800.00
Sullivan v Gordon expenses $21,498.50
Making a total of $380,747.31
13. There will be a verdict for the plaintiff jointly and severally against each defendant and judgment in the sum of $380,747.31.
14. The defendants will pay the plaintiff's costs as agreed or assessed.
M J Joseph, SC instructed by Alex Stuart & Associates appeared for the Plaintiff
J A Jobson instructed by McCulloch & Buggy appeared for the Defendant
0
3
1