Lavis v Amaca Pty Ltd

[2018] NSWDDT 6

Dust Diseases Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Lavis v Amaca Pty Ltd [2018] NSWDDT 6
Hearing dates:	19 and 24 April 2018
Date of orders:	24 April 2018
Decision date:	24 April 2018
Before:	Scotting J
Decision:	1.    Verdict and judgment for the plaintiff in the sum of $482,878.64. 2.    Defendant to pay the plaintiff’s costs as agreed or assessed on the ordinary basis. 3.   I grant a stay in relation to the judgment in the sum of $53,668 being the loss of superannuation entitlement claim.
Catchwords:	DUST DISEASES – exposure – mesothelioma – asbestos – illness DAMAGES – general – interest – out of pocket expenses – gratuitous care – need for care – domestic services – loss of expectation of life – future loss of superannuation entitlements – maintenance deductions OTHER – construction of storage shed – asbestos cement fibro planks – home renovations
Cases Cited:	Amaca Pty Ltd v Latz [2017] SASCFC 145 CSR v Eddy [2005] 226 CLR 1 Dib v Amaca [2017] NSWDDT 6 Fitch v Hyde‑Cates (1982) 150 CLR 482 Londos v Amaca [2017] NSWDDT 7
Category:	Principal judgment
Parties:	Leonard Raymond Lavis (Plaintiff) Amaca Pty Ltd (Defendant)
Representation:	Counsel: P C B Semmler QC with S Tzouganatos (Plaintiff) D A Priestley SC with I Griscti (Defendant)   Solicitors: Slater & Gordon (Plaintiff) Mills Oakley Lawyers (Defendant)
File Number(s):	51/18
Publication restriction:	None

Judgment

1. Leonard Raymond Lavis (the plaintiff) sues the defendant for damages for the disease of mesothelioma. The case has been reduced to an assessment of damages.

2. The plaintiff read an affidavit sworn by him on 29 March 2018. He gave evidence and was cross‑examined at his home on 19 April 2018. The plaintiff was gravely ill at the time that he gave his evidence. He appeared to be in pain. It was difficult for him to answer questions, but he certainly did his best to give truthful answers to the questions that were asked of him. Evidence has been given today that his condition has deteriorated since he gave evidence. His likely prognosis was measured in a period of two to four weeks from about 13 April 2018. That was consistent with my impression of him giving his evidence.

3. He gave evidence lying in bed. He needed assistance to be able to sit up and to take a drink of water during the course of giving his evidence. My assessment of him and the medical evidence is that his prognosis is very poor, perhaps a matter of days and no more than a week. This judgment is being delivered ex tempore in order to have it pronounced before the plaintiff dies to possibly preserve a head of damage, being the loss of superannuation pension, which I will deal with later.

4. The plaintiff was born on 5 May 1941 in Wallsend, New South Wales. He married his wife, Lorraine Jean Lavis, on 4 January 1964. They have three children, Mark, David and Meredith. Mark lives nearby in Medowie. The plaintiff and his wife live at Salamander Bay.

5. The plaintiff left high school at about 17 years of age, having completed an Intermediate Leaving Certificate. He then attended Teachers’ College at Newcastle. He later completed a Bachelor of Education in Industrial Arts in about 1979. He worked at Cowra High School, Young High School and Nelson Bay Central School. When he first commenced work as a teacher he worked for the New South Wales Education Department. He taught between Cowra and Young from about the end of 1960 to 1962. He worked teaching industrial arts, technical drawing, engineering drawing, woodwork, metal work and material sciences. He commenced work at the Nelson Bay Central School in about 1963 as a teacher in the Industrial Arts Department, teaching the same subjects.

6. At Nelson Bay, storage was very limited. In about 1974 another teacher, Raymond Peacock, and the plaintiff requested permission from the Principal to build a shed on the site to be able to store materials, including wood and other items from the industrial arts department. That permission was granted and the Parents and Citizens Association paid for the materials. They constructed a large storage shed, about 16 x 8 feet. It had a concrete floor and a wooden frame. It was constructed of sheet metal for the roofing and the walls were constructed of asbestos cement fibro planks. The shed was initially constructed behind the woodwork room. The whole school has since been demolished. The plaintiff and Mr Peacock built the shed after school and on the weekends. It was then used for storage of materials as well as for student projects, for example, the students built two flying 11‑foot boats that were stored in the shed.

7. The shed took a couple of months to build. The asbestos‑cement products were purchased from the local hardware store.

8. In the course of cross‑examination the plaintiff gave evidence that some of the construction work for the shed was done during school hours and students assisted him and Mr Peacock with the construction of the shed as a method of teaching them various carpentry skills.

9. The plaintiff continued work as a teacher in the industrial arts department at Nelson Bay until 1996. He then took long service leave before retiring. He has not returned to work since 1996. After his retirement in 1996 he received a pension from the State Super Scheme. When he retired he had the choice to take superannuation as a lump sum or as a pension. He chose to receive it as an indexed pension for the rest of his life. He currently receives a fortnightly pension in the amount of $1,728.56, from which a deduction is made each fortnight for health insurance in the sum of $168.65.

10. Over the years the plaintiff also had exposure to the defendant's products as a result of some home renovations, particularly at addresses being 40 Kerrigan Street, Nelson Bay, 70 Achilles Street, Nelson Bay and 198 Salamander Way, Salamander Bay. It is not necessary for me to outline the circumstances of exposure in respect of those home renovations.

11. Prior to the development of his mesothelioma in about October 2017, the plaintiff was fit, active and healthy. He had never smoked and he performed all maintenance for his house including the gardening, looking after the pool and mowing the lawns. His home is on a half-acre block. In October 2017 he chopped down some trees at the front of the house that had got in the way of the power lines.

12. On or about 26 October 2017 he started to notice he was becoming short of breath. He went to see his General Practitioner and was referred for a chest X‑ray and a CT scan of his chest. On 6 November 2017 his General Practitioner then referred him to a Cardio-thoracic surgeon at John Hunter Hospital, Dr Mejia. He saw Dr Mejia on 13 November 2017. On 14 November 2017, the plaintiff was admitted to Lake Macquarie Private Hospital. He had surgery, where a biopsy was performed. He was in hospital for six days and discharged on 20 November 2017. He was told after the biopsy that the fluid drained from his lung did not show anything but he continued to feel unwell. He saw Dr Arnold on 11 December 2017 and went back to his General Practitioner on 15 December 2017 and 21 December 2017. A further chest X‑ray was arranged. Over Christmas 2017 the plaintiff was very unwell. He was having trouble breathing and could hardly sit up. He tried to get hold of Dr Mejia over the holiday period but he was unavailable. He saw Dr Mejia on 22 January 2018 and was told that the biopsies were clear, notwithstanding, he continued to feel unwell.

13. On 4 February 2018 the plaintiff was in a lot of pain. He was taken to Calvary Mater Hospital and was admitted for one day to help with pain management. The plaintiff continued to experience a lot of chest pain. He was taken to Calvary Mater Hospital on 12 February 2018 again for pain management. On 15 February 2018 he had a CT guided needle biopsy at the John Hunter Hospital. Following the biopsy he was told that he had mesothelioma. The plaintiff described himself as being devastated.

14. On or about 19 February 2018 the plaintiff was referred to a radiation oncologist and underwent six sessions of radiation treatment. The plaintiff continued to suffer from shortness of breath and intense unremitting pain. In his affidavit he described having pain in his chest from the right side down to around his back. He had a lot of pain and was on a lot of pain medication. The plaintiff could not sit up for very long before he had to lie down. He described the pain being so bad that it wakes him up every night and he uses liquid morphine to ease the pain, but it never goes away.

15. The plaintiff described himself as losing a lot of weight and having very little appetite. He was upset and distressed that he has contracted mesothelioma.

16. On 7 March 2018 he was admitted to Calvary Mater Hospital as the pain was unbearable. He was in hospital until 21 March 2018. The pain continued and the plaintiff's wife called an ambulance for him on 23 March 2018 and he was taken back to the Calvary Mater Hospital. He remained in Calvary Mater Hospital until 29 March 2018.

17. Prior to October 2017 he used to help his wife around the house. She had broken her hip a number of years ago. He described that as being a significant injury for her. She has limited mobility and he assisted her with various things but also undertook a lot of the domestic duties around the home and home maintenance. He would put the washing on the line, do the vacuuming, wash the floors, clean the bathroom and shower, take the garbage out and wash the dog. He gave evidence that his wife could not do these things because of her condition. They did the grocery shopping together.

18. After he became ill, the couple have been trying to get by. His son has assisted when he is able to and his daughter flew from New Zealand to assist his wife and the plaintiff when he first got sick.

19. In the course of his oral evidence the plaintiff gave evidence that he was actively engaged in the care of his grandchildren together with his wife. I got the impression that this was something that he very much enjoyed. This included picking the children up after school, taking them to school and also having care of them for some time over the holidays.

20. In cross‑examination he gave some evidence about how often he did the heavy housework. He gave evidence that it was important to his wife to keep the house immaculate. Part of the things that he did for his wife prior to his illness was to drive her from place to place. After he became ill she had an accident when she went back to driving and that further impeded her confidence.

21. In re‑examination, the plaintiff gave evidence that he was assisted significantly by visits from his wife, in particular he found them helpful and emotionally supportive. During the course of those hospital visits, she also did some things for him that assisted him.

22. Lorraine Lavis was called to give evidence by telephone today. She gave evidence that she is currently 75 years of age and that she has been married to the plaintiff for the last 54 years. She described the plaintiff today as being very ill and that she did not think that he would live for very long. She gave evidence that she had provided him with assistance since October 2017 when he first developed shortness of breath and pain in the chest. She said that he has deteriorated markedly since that time. His symptoms progressed and she has done more and more as a result of his inability to do so.

23. On 23 December 2017 their daughter Meredith came from New Zealand to assist. She needed this help around the house because previously the plaintiff had done a lot of the heavy domestic duties including vacuuming and mopping, putting the washing on the line and cleaning the bathrooms. They did the shopping together. He took care of the financial accounts. After his illness she had to do things like this as well as arrange for the cars to be serviced and arrange for them to be registered. She took up driving again but had an accident after doing so. She now manages his medications as well as providing him with personal assistance, like getting him into the shower and to the toilet. She gets him dressed into his pyjamas and has assisted with feeding him and being with him when visitors come. She has found it necessary to calm and reassure the plaintiff by talking to him because he has been quite anxious as a result of his disease. She feels as though she has devoted her life to the plaintiff in the period between October and December and accepted that she probably did about three to four hours a day of things to assist him during that period.

24. In about December 2017 she told her daughter Meredith that she needed her and asked her to come over because she could not cope. The plaintiff was in hospital between 14 November 2017 and 20 November 2017 and it was during this period she had the car accident. For the times when he was in hospital she would do things like sit with him, console him and speak to doctors. She would also chase up the nurses to assist with his pain management. She would take him to the toilet, change his pyjamas and otherwise provide emotional support. When Meredith arrived for the period of 23 December 2017 to 15 January 2018, Meredith took over to a large extent. Mrs Lavis was required to assist the plaintiff, particularly at night, as they slept in the same bed together. He often needed some considerable assistance as he was vomiting and would often be up and down all night. She was there and available when he needed assistance.

25. During that period Meredith did the driving, the cooking and the cleaning and Mrs Lavis sat with the plaintiff for most of the time and cared for him. Since that time he has mostly been confined to bed and Mrs Lavis has been available to provide whatever he needed. When Meredith left on or about 14 January 2018, the care of the plaintiff was left to Mrs Lavis. She observed him to have what appeared to her to be hallucinations. She was required to talk to him, console him and tell him what was really happening. In about March 2018 when he was admitted to the Tomaree Community Hospital, he had one episode of having an hallucination in the middle of the night and he ran out of the hospital. He had to be brought back by security. During what she understood to be hallucinations, she would observe him to behave strangely. There was no physical change in him, but he would talk about silly things and also do strange things like counting bits of apple that he was eating. She formed the opinion that it was not safe to leave him by himself and she did not do so.

26. She was required to call the ambulance on a number of occasions because the plaintiff was in bad pain and needed help. On one occasion she intervened with the medical staff to arrange his transfer to the Calvary Mater Hospital. On or about 19 February 2018 he commenced radiation treatment at the Calvary Mater Hospital. Those treatments took place over a couple of weeks. It involved taking him to the Calvary Mater Hospital for a day at times when he was very ill. Mrs Lavis and Meredith set up a bed in the twin cab ute to transport him there and back in the supine position. That would usually occupy between 9.30 and 2.30pm in the day. On one occasion they had to stay longer because the plaintiff was very dehydrated.

27. Meredith returned to New Zealand on 2 March 2018 and came back on 10 April 2018. She has been here since that point in time and intends to remain. Mrs Lavis described her care as continual and involving 24 hours per day. She was required to be available to the plaintiff each night. She has got some assistance from her son in doing the shopping, but she has really not left the house since the plaintiff has become very ill. Mark, their son, has done what he can do to help, but he has the care of three children on a 50% basis and also a full‑time job. He has driven them to hospital a number of times as well as taking care of the pool and walking the dog. Mrs Lavis has employed a gardener to do the gardening.

28. Mrs Lavis described the plaintiff's episode of pain involving him crying out with pain, panting, shaking, struggling and being unable to cope. Since 10 April 2018, when Meredith has returned, his vomiting has stopped with medication. Meredith has assumed most of the assistance duties. Meredith intends to stay at the moment but is required to go back at the start of the school term in New Zealand, which is next week. Mrs Lavis described a massive change in her husband. She described him prior to the illness as being a 6 foot man of about 85 kilograms who was strong and fit, no aches and pains, could walk the dog, go fishing and enjoyed caravanning.

29. In cross‑examination Mrs Lavis agreed that the illness first started in about the end of 2017. About two weeks before that the plaintiff had been felling the trees outside their house. She agreed that the plaintiff's condition got worse as time went on. He had been doing a lot of the housework and once she was required to do it she found it difficult to cope. Before Christmas 2017 she called Meredith and told her that she was having trouble and that she needed help. She found the housework was increasing and that was distressing her. She thought that at about Christmas she was doing three to four hours per day. She accepted that she was a fussy housekeeper.

30. She had not previously been doing the heavy housework as a result of the injury to her hip and her use of a walking stick. The same work took the plaintiff a few hours, probably two hours a day, to complete, but it ended up taking her considerably longer. When Meredith arrived she took over the housework. The plaintiff could be up and about at that time, he would normally sit on the lounge in the family room, but by that time was not driving. Mrs Lavis gave evidence that when the plaintiff was in hospital she felt it safe to leave him with the nurses during the day, but she would often chase them up to control his pain. Mrs Lavis kept in contact with the doctors because the plaintiff could not understand what they were saying to him as he was often heavily medicated.

31. She agreed that in hospital he slept quite a bit during the day, but said that he was often woken for medications and consultations. He often did not understand why doctors were there or what they wanted. There was a mistake with his medication that led, in Mrs Lavis' view, to the hallucination episode at Tomaree Community Hospital. Mrs Lavis thought that her company alleviated her husband's anxiety and also assisted with controlling his medications. She became quite concerned after the hallucination episode to make sure that he was getting the right medication at the right time. She accepted that Mark was often busy and did as much as he could. He was on call whenever she needed him and he would often arrive before the ambulance if she called one. She agreed that when Meredith was in New Zealand, that she coped with the housework, although she found it hard.

32. The plaintiff's daughter, Meredith Anne Layton, gave evidence by telephone today. Ms Layton gave evidence that the plaintiff's health has declined substantially and that his mobility is now virtually non‑existent. She provided assistance from 23 December 2017 to 15 January 2018; and from 12 February 2018 to 3 March 2018; and from 10 April 2018 to date. She would often provide the assistance and do the work in the daytime and overnight her mother would take over. Ms Layton gave evidence that the plaintiff's needs were unpredictable, especially with respect to management of his pain relief. She described the care given to the plaintiff, I presume by both her and her mother, as being around the clock. She gave evidence of the plaintiff experiencing hallucinations and that he struggled to communicate and to remain on subject. She did not feel that he would be safe if he was left at home alone. She gave evidence that even if he was left for a short period in a different room, he would get upset and anxious.

1. Ms Layton described her father as very fit, healthy and active prior to the illness; he was the primary carer of the family and she felt that prior to October 2017 he would have had a good chance of outrunning the grandchildren in a foot race. Today she thought his condition had deteriorated rapidly from last week. He was having trouble communicating and following a conversation. In cross‑examination, Ms Layton agreed that the first time she had seen her father ill was on 23 December 2017. She saw that he was unwell but at that time was maintaining a fairly normal routine. He could dress himself and spent a lot of time on the lounge. He could do things for himself but those things were limited and her mother was trying to help. She thought that he displayed signs of being short of breath and often was dithery. On the first occasion, her mother or herself or the grandchildren all tried to help. Mrs Lavis was doing the housework but she could not do the big jobs, which were left to Ms Layton.

2. When she returned on 12 February 2018 she thought that her father was worse physically. By that stage he was lucky to get out of bed for about two hours per day. Now he is lucky to get out of bed for about 20 minutes per day. Those trips involve trips to the bathroom and showering every second day and shaving every second day. She attended and did the housework to give her mother respite. There were things that her mother could not do and things that her father always did. In the December to January period her husband came with her and also assisted. On the next two occasions she has attended with her children. While Ms Layton was there her mother would rest during the day as she would do the night shift. She observed her mother helping with medication. Together they sought to get some further understanding about the medications so that Mrs Lavis could undertake that role when Ms Layton had left.

3. On the times when she has been back in New Zealand she understood that her mother was doing most of the housework, with her brother helping when required. Those things involve the domestic chores and also attending to the needs of the plaintiff from time to time, as well as doing a lot of things that were intermittent, in particular, pain management. She described herself as being at her father's beck and call and that both her and her mother had tried to alleviate his anxiety and fears. In re‑examination she agreed that it was unpredictable as to when her father's needs would arise.

4. The plaintiff also tendered and relied on an affidavit of Mark Lavis, the plaintiff's son. He described his father as being sick since October 2017. At first he was short of breath and lethargic but over Christmas he really deteriorated. He has been helping out when he can from time to time and his evidence is corroborative of the evidence given by Mrs Lavis and Ms Layton, but I do not need to set it out any further in relation to deciding the matters that are at issue in the case.

Damages

37. The plaintiff is currently 76 years and 11 months. Apart from the onset of symptoms in about October 2017, he was very active and fit and involved in the activities of his family including, looking after his wife who had limited mobility as a result of an injury and also being actively involved in the upbringing and care of his grandchildren. It is clear that he enjoyed these activities. He was a handyman and able to take on strenuous activity including felling the trees at the front of the property. He enjoyed fishing and caravanning. He was described as the pillar of the family and a much loved patriarch.

38. The onset of the disease in the plaintiff has been swift and unrelenting. He suffered pain very close to the first onset of symptoms that was for the large part, uncontrollable. He has been admitted to hospital on a number of occasions for pain relief. He has been heavily medicated during the time. I am satisfied that he has experienced hallucinations. In considerable distress and anxiety he has required the comfort of his wife and his family and required their close attendance to his physical and emotional needs. He has required a lot of care and has lost the enjoyment of looking after both his wife and participating in their life together and also the close bond that he has with his grandchildren. The appropriate award for general damages is $370,000.

39. I would allow interest on $300,000 at 2% for seven months, resulting in an award of $3,500.

40. I would award the conventional amount for loss of expectation of life. The plaintiff's current life expectancy is 12.11 years. The appropriate award is $12,110.

41. In relation to past gratuitous care services, in general, I accept the evidence of the plaintiff and his family members. I accept that they have done their best to give honest evidence and that they have dedicated themselves to providing the best care possible to the plaintiff and to care for his physical and emotional needs. They have given evidence about a very difficult time. I have considered the medical evidence which to some extent contains some contemporaneous histories. I do not accept the estimates given by the plaintiff, Mrs Lavis or Ms Layton to be particularly accurate as to the plaintiff's level of need at a particular time.

42. I think that the defendant's assessment of this head of damage is closer to the appropriate award. For the period of the eight weeks between October to December 2017, being the first eight weeks following the onset of symptoms, I would allow an award of two hours per day at the rate of $30.55 per hour, being 16 hours a week for eight weeks and resulting in an award of $3,910.40.

43. For the next eight weeks from about the end of December to about the end of February, I would allow six hours per day for that eight weeks being 42 hours per week at the rate of $30.55 per hour resulting in an award of $10,264.80.

44. For the period of 1 March to the present, which is close enough to a further period of eight weeks, I would allow 24 hours per day care being an award of 168 hours per week at the rate of $30.55 per hour. I need to deduct from that period the period of time for which the plaintiff was in hospital which is a period of 19 days. The appropriate award then is $41,059.20 minus $15,070.80 resulting in an award of $25,988.40.

45. For the periods of time the plaintiff was in hospital, a period of 19 days, I would allow four hours per day, resulting in an award of $2,321.80.

46. The total award for past gratuitous care is $42,485.40. I would allow interest on that amount at 4.75% for a period of seven months which results in an award of $1,115.24.

47. I allow future care for a period of one week of 24 hours per day at the rate of $30.55 per hour in the sum of $5,132.40.

48. In respect of past out‑of‑pocket expenses, the plaintiff has made a claim on the Dust Diseases Authority which has not yet been accepted. The issue is to whether his exposure to asbestos at the Nelson Bay Central School was in the course of his employment. In his evidence in cross‑examination he seemed to confirm that the shed was built on the school grounds, at least partially during school hours with the assistance of students as a teaching method. It is likely that the Dust Diseases Authority would accept his claim on the basis of that evidence. I note that the past out‑of‑pocket expenses incurred is agreed at the sum of $13,626.82. In the event that the plaintiff's claim to the Dust Diseases Authority is rejected, this judgment is able to be amended in accordance with s 13(6) of the (Dust Diseases Tribunal Act 1989). Accordingly, I would not make any allowance for past out‑of‑pocket expenses.

49. The plaintiff makes a claim for future loss of his superannuation entitlements. As I have outlined in the plaintiff's evidence, he is in receipt of a weekly pension in the sum of $864.28 as a result of being a long‑term member of the State Superannuation Fund, with regard to his work as a teacher. The plaintiff says that he is entitled to recoup that loss because it is a pecuniary loss suffered by him caused by the defendant's tort. The plaintiff relies on the Full Court decision in the Supreme Court of South Australia in Amaca Pty Ltd vLatz [2017] SASCFC 145. The majority in that decision relied on High Court authority in the decision of Fitch v Hyde‑Cates (1982) 150 CLR 482. In that case the High Court decided that the loss of annuity, in other words, passive income, was recoverable as damages. The majority in Latz said that that decision was consistent with decisions of the Full Court of the Supreme Court of Queensland and decisions in the English Court of Appeal.

50. The defendant relied on the High Court's decision in CSR v Eddy [2005] 226 CLR 1. In that case the High Court described the types of losses available to be recovered. In personal injury actions the type of loss relied on by the defendant is the second type of loss, that is, a loss of earning capacity. The argument proceeded along the line that a loss of earning capacity may or may not be productive of financial loss, but it is in fact a loss of earning capacity that a plaintiff is compensated for in cases relating to personal injury.

51. In the Dust Diseases Tribunal, in the cases of Dib v Amaca [2017] NSWDDT 6 and Londos v Amaca [2017] NSWDDT 7, Russell J disallowed a claim by both plaintiffs in respect of the age pension. Russell J in both decisions, but particularly in Londos from paragraphs 127 to 178 of the judgment, set out a careful recitation of the authorities relevant to that issue. It should be noted that the cases of Dib and Londos related to the loss of the age pension. In other words, there was no exertion on behalf of the plaintiff that resulted in that payment being made, but rather the payment was made as a result of social security legislation. The present case appears to me to be somewhat different in that there is High Court authority in Fitch v Hyde‑Cates to the effect that the loss of an annuity could be recoverable.

52. The law of precedent is that trial judges of an inferior court ought to apply the law as pronounced by statute and superior courts. There is one body of common law in Australia and statements of principle by State appellate courts, absent any contradictory statement from another court at that level or by the High Court, are not confined in application to that State. An intermediate appellate decision of another State should be followed unless the Court is convinced it is plainly wrong, whether the question involves an interpretation of Commonwealth statute or simply stating the common law.

53. The decision in Latz by the majority turns on a preference by the majority for one line of High Court authority over another line of High Court authority. In other words, there is High Court authority for either proposition. In those circumstances, whilst I certainly accept Russell J's decision as correct insofar as it relates to the age pension, I am concerned that there is a factual distinction to be made between the age pension and the type of superannuation entitlement that the plaintiff was being paid in this case. In my view one very possible result is that the High Court in the Latz decision ends up following the line of authority in Fitch v Hyde‑Cates. In those circumstances it is very difficult for me to say, and I could not say that the decision of the Full Court of the Supreme Court of South Australia in Amaca vLatz is plainly wrong. In those circumstances it is my decision that I should follow that decision.

54. The plaintiff claims a weekly entitlement of $864.28. It seems to be agreed between the parties that there should be some deduction in respect of his maintenance. There was no direct evidence given by the plaintiff as to his costs of living from which an actual determination could be made. Instead, Ms Lindsay, an expert called on behalf of the defendant, looked to the Australian Bureau of Statistics’ expenditure reports in order to come up with a deduction based on the average household expenditure of different households. Mr Rossetto, an expert qualified by the plaintiff, commented on that and made some suggested changes in relation to the figures relied on by Ms Lindsay.

55. Ms Lindsay came up with a figure, based purely on statistics, that the appropriate deduction would be $289. In doing so she took into account the income of households of a similar level to the plaintiff; of pensioners, or people receiving money from government pensions; people that owned their own home; people that lived as a couple who were over 65; and people who were domiciled in New South Wales, from which she came up with an average. Mr Rossetto's criticism of that approach was to deduct the amount claimed in respect of the private health insurance payments that were automatically deducted from the plaintiff's pension, the argument being that those matters were not required for his bare existence. Ms Lindsay thought that that was the way he had chosen to arrange his finances and accordingly his loss ought to be calculated on that basis.

56. There seemed to me to be good reasons for making various deductions to the amounts allowed by Ms Lindsay. I think it is overwhelmingly the case that persons with a limited income, such as the plaintiff and his wife, are likely to spend less on matters even relating to their existence than people with a higher disposable income. It is more appropriate to look at people of the similar income to the plaintiff and his wife and also those on a pension, rather than to incorporate the other groups that Ms Lindsay did. The resultant expenditure calculated by Mr Rossetto is a range between $195 per week to $164 per week. Mr Rossetto took an average of $180 per week, which in the circumstances, I find to be reasonable. That figure of $180 per week should be deducted as the appropriate sum for maintenance of the plaintiff in the lost years.

57. That results in a loss of the pension, after maintenance, in the sum of $684.28 per week for a period of 11.17 years at 3% multiplier of 486.57, resulting in a total loss of $339,792.92.

58. In the case of Latz, the majority in that decision decided that the wife's reversionary pension should be deducted from any amount awarded to the plaintiff in that respect. Consistent with my earlier finding, it is appropriate to follow the decision in Latz. The appropriate deduction, based on Mr Rossetto's figures, is $286,124, resulting in an award of damages of $53,668. I do not think it is appropriate to allow for vicissitudes because the life expectancy is based on a higher subset of numbers and appropriately already takes into account vicissitudes.

59. The total award of damages is $482,878.64.

60. There will be verdict and judgment for the plaintiff in that amount.

61. I order the defendant pay the plaintiff's costs as agreed or assessed on the ordinary basis.

62. I grant a stay in relation to the judgment in the sum of $53,668 being the loss of superannuation entitlement claim.

Addendum

63. Following agreement between the parties, before me on 23 July 2018, the following paragraph has been adjusted as follows:

59   Verdict and judgment for the plaintiff in the sum of $488,011.04.

64. I order that the stay referred to in paragraph 62 above be lifted.

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Amendments

25 July 2018 - Addendum added by Judge Scotting on 25.7.18.

20 November 2019 - Catchwords added

Decision last updated: 20 November 2019