Londos v Amaca Pty Ltd - [2017] NSWDDT 7

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Londos v Amaca Pty Limited [2017] NSWDDT 7
Hearing dates: 31 July 2017, 1-4 August 2017, 9-10 August 2017
Date of orders: 22 August 2017
Decision date: 22 August 2017
Before: Judge D. Russell
Decision:
1. Judgment for the plaintiff for $504,756.
2. Order the defendant to pay the plaintiff’s costs.
3. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows:
(a)   Party seeking a different costs order to file and serve written submissions within 14 days of this judgment;
(b)   Party opposing such costs order to file their written submissions in reply within a further 14 days;
(c)   The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.

Catchwords: DUST DISEASES – exposure – damages
DAMAGES – loss of receipt of pension – deduction for savings in the “lost years”
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Dust Diseases Tribunal Act 1989
Cases Cited: Zanetic v Amaca Pty Limited [2017] NSWDDT 5
The National Insurance Company of New Zealand Limited v Espagne [1961] HCA 15; 105 CLR 569
Graham v Baker [1961] HCA 48; 106 CLR 340
Teubner v Humble [1963] HCA 11; 108 CLR 491
Oliver v Ashman [1962] 2 QB 210; [1961] 3 All ER 323
Skelton v Collins [1966] HCA 14; 115 CLR 94
Sharman v Evans [1977] HCA 8; 138 CLR 653
Todorovic v Waller [1981] HCA 72; 150 CLR 402
Fitch v Hyde-Cates [1982] HCA 11; 150 CLR 482
Haines v Bendall [1991] HCA 15; 172 CLR 60
Medlin v The State Government Insurance Commission [1995] HCA 5; 182 CLR 1
Husher v Husher [1999] HCA 47; 197 CLR 138
CGU Workers Compensation (NSW) Limited v Garcia [2007] NSWCA 193; 69 NSWLR 680
Pickett v British Rail Engineering Limited [1980] AC 136; [1979] 1 All ER 774;
Adsett v West [1983] 1 QB 826; 2 All ER 985
Gabriel v Nuclear Electric PLC [1996] PIQR Q1
Phipps v Brooks Dry Cleaning Services Limited [1996] PIQR Q100
Harris v Commercial Minerals Limited [1996] HCA 49; 186 CLR 1
CSR Limited v Eddy [2005] HCA 64; 226 CLR 1
James Hardie & Coy Pty Limited v Roberts [1999] NSWCA 314; 47 NSWLR 425
Kallouf v Midis [2008] NSWCA 61
Latz v Amaca Pty Limited [2017] SADC 56
Lynch v Amaca Pty Limited [2004] NSWDDT 1
Roberts v Amaca Pty Limited [2009] NSWDDT 28
Texts Cited: Law Commission Report No. 56
“Tobacco Smoking and All-Cause Mortality in a large Australian cohort study: Findings from mature epidemic with current low smoking prevalence”, BMC Medicine (2015) 13:38
Category: Principal judgment
Parties: Peter Londos (plaintiff)
Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) (defendant)
Representation:
Counsel:
P Semmler QC (plaintiff)
S Tzouganatos (plaintiff)
D Priestley SC (defendant)
J Sheller (defendant)
Solicitors:
Turner Freeman Lawyers (plaintiff)
Mills Oakley (defendant)

File Number(s): 236/2016

Judgment

INTRODUCTION

This matter was heard at the same time as the unrelated matter of Dib v Amaca Pty Limited DDT 275/2016. The cases raised a common legal issue. Further, evidence as to the likely course of mesothelioma was received in both cases.
The plaintiff brought proceedings against Amaca Pty Limited (Amaca) by a Statement of Claim filed on 23 September 2016. His allegation is that between 1978 and 1994 he worked as a carpenter, and during that time he was exposed to James Hardie asbestos cement sheeting and compressed asbestos cement sheets. He alleges that James Hardie was the sole manufacturer of these products after 1977, and that has not been put in issue.
The plaintiff suffers from left-sided malignant pleural mesothelioma. His symptoms first appeared in mid-2016.
The plaintiff was born on 21 June 1938 and is presently 79 years of age. He retired at age 71 and since then he has been in receipt of the age pension.
The defendant raised the following issues:

Exposure to James Hardie product;

If exposure to James Hardie product is proved, then existence of duty of care, breach of duty of care and causation is admitted;

Damages.

On the question of damages, the case throws up a novel issue for decision. If a plaintiff is deprived of future wages or future income from exercising his or her earning capacity, then the law awards damages for loss of that earning capacity.
The plaintiff had not exercised any earning capacity since he retired at age 71 years. His claim for economic loss is that because he will die early from his disease, he has lost the receipt of the Commonwealth age pension for his “lost years”. The legal issue in the case was whether or not such a loss is compensable.

THE PLAINTIFF UP TO RETIREMENT

The plaintiff was born on 21 June 1938 in Tripolis in the Peloponnese in Greece. He left school at about 12 or 13 years of age. He was then an apprentice carpenter, and later a carpenter, in Greece. There was no exposure to asbestos dust there. He migrated to Australia in November 1963.
The plaintiff worked as a carpenter in Australia between 1963 and 1973. There was some exposure to asbestos dust in that period, usually from working on eaves. Between 1973 and 1978 the plaintiff worked for his brother in a service station business where there was no asbestos exposure.
The plaintiff married his wife Fotini in 1974. Their first child George was born in 1975 and their second child John was born in 1976.
In 1978 the plaintiff commenced work as an employee of Fred Rose Pty Limited as a carpenter. This work involved fitting out bathrooms, laundries, kitchens and toilets. It was all wet area work. James Hardie was the sole manufacturer of asbestos cement building products in Australia after 1977. During his work for Fred Rose Pty Ltd the plaintiff was extensively exposed to asbestos dust and fibre from building materials manufactured by James Hardie including Tilux, Villaboard and compressed asbestos sheets.
The plaintiff ceased working for Fred Rose Pty Limited in 1994 and then formed his own company and worked as a sub-contractor for his old employer until he retired completely at the age of 71 in 2009.
I accept all of the evidence summarised above.

EXPOSURE TO JAMES HARDIE PRODUCTS

The evidence is all one way. I find that the plaintiff had extensive exposure during his employment with Fred Rose Pty Limited to asbestos cement building products manufactured by James Hardie, for which Amaca is presently responsible.
This being found, Amaca accepts that it owed a duty of care to the plaintiff, it breached the duty of care, and that the exposure to James Hardie products caused the plaintiff’s present disease.

THE PLAINTIFF SINCE RETIREMENT

From the time of his retirement onwards the plaintiff and his wife travelled to Greece and lived there for three months every year usually over the Australian winter between June and August. The plaintiff owns a house in Tripolis in Greece.
In April 2013 the plaintiff suffered a stroke. He noticed numbness in his right arm and right leg. His wife drove him to Westmead Hospital where he was admitted. His speech was affected, as was the use of his right arm and leg. He had difficulty with recall. He was treated with thrombolyric and made a full recovery. He was even able to go to Greece that year as usual. The plaintiff has not had any problems since that stroke.
The plaintiff first noticed shortness of breath in late 2014 when he was walking. He was sent for two chest x-rays by his GP but these came back clear.
In June 2016 the plaintiff was in Greece. There was a lot of heavy rain and his house started to flood. He had to bucket the water out of the house. During this exercise he noticed shortness of breath. He knew that he had a problem.
The next day he saw his GP Dr Kokokios in Tripolis. He was sent for a chest x-ray which showed fluid on the left lung. The GP sent him to Tripolis Hospital where fluid was drained. There was a CT scan done. The plaintiff was told he would have to go to a larger hospital in Athens.
On 11 July 2016 the plaintiff went to Sotiria General Hospital in Athens. He saw Dr Sepsas, a thoracic specialist. Tests were done. On 14 July 2016 he had surgery being a thoracotomy and a talc pleurodesis. Two litres of fluid were drained. Biopsies were taken. The plaintiff was on oxygen and was in severe pain which required injections of morphine. He was discharged on 18 July 2016 and went home to Tripolis.
The day after his discharge he was at home but he could not breathe. He went back to Tripolis Hospital and was put on oxygen. A week later he went back to Sotiria Hospital in Athens to have his stitches removed. The doctor at that hospital did not tell him he had cancer. However, the doctor told the plaintiff’s wife and son that he had mesothelioma. They wanted to protect him so they did not tell him anything before they left Greece to return to Australia.
Upon his return to Australia the plaintiff consulted a GP Dr Paleologos on 19 August 2016. He still did not know that he had mesothelioma. The next day the plaintiff was at home going through the paperwork given to him at the Sotiria Hospital and he found the results of the biopsy. He read that he had a cancer being mesothelioma. He was shocked and started to cry. He understood that his family had been trying to protect him.
The plaintiff attended Westmead Hospital on 22 August 2016 when he saw Dr Nagrial, an oncologist. He started chemotherapy on 28 September 2016 and had it every three weeks. His second chemotherapy treatment was on 19 October 2016 and his third was on 9 November 2016. There was then a CT scan, followed by more chemotherapy on 30 November 2016, 21 December 2016 and 11 January 2017. These treatments were with Carboplatin/Alimta.
The plaintiff then had chemotherapy with Avastin on 1 February 2017, 22 February 2017, 15 March 2017, 5 April 2017, 26 April 2017 and 17 May 2017.
The plaintiff sought a second oncology opinion from Professor Nick Pavlakis on 26 September 2016. He agreed with Dr Nagrial’s treatment programme. The plaintiff saw Professor Pavlakis again on 24 February 2017. He felt that he got a lot of moral support from Professor Pavlakis and felt better psychologically after seeing him. They spoke in Greek.
The plaintiff had no side-effects from the first three chemotherapy treatments, but from then on the treatment caused dizziness and weakness. The plaintiff had no energy and was sleeping a lot. He also noticed that he had memory loss which was getting worse. He used Fentanyl patches between July and August 2016, but has since been taking Panadol or Endone when the pain has been bad. He now takes three Endone tablets a day together with Panadol.
The plaintiff feels short of breath and thinks that his breathlessness is becoming worse. He cannot do anything that involves any degree of exertion. He gets breathless when he bends over. His wife has been helping him put on his socks and dry the lower part of his body after a shower. His voice is different now and it sounds like he has a cold all the time. He lost some weight but has put it back on.
The plaintiff has for decades been involved with the Greek Orthodox Church in Parramatta. He is a Committee Member there. Over the years he has done a lot of maintenance work around the church. He also worked on the Social Committee organising dances and barbeques. He has not been able to be involved in this work, which previously gave him great satisfaction. He said that this really upsets him and makes him feel useless.
Just before Easter this year the plaintiff and his wife moved to a smaller house which was easier to maintain and all on the one level. Prior to getting sick with mesothelioma, the plaintiff did all of the outside work at his home and some of the heavier inside work including vacuuming, moving furniture, cleaning windows and mopping. He did the lawn mowing and edging. He took the garbage out. He cleaned the gutters. He did painting and fixed things. He and his wife did the shopping together. The plaintiff did almost all of the driving. The couple looked after a grandson on one day a week.
The plaintiff was asked whether he enjoyed going to Greece for three months every year. He said that he loved it. The house he stayed in used to be his father’s house.
The plaintiff said that he felt down a lot because “I’m not the Peter I used to be”. He said that by that he meant that before this disease he was strong, but now he is down.
The plaintiff’s wife gave evidence that she had a joke with her neighbour, to the effect that she did not need a chair in her house because Peter never sat down, meaning that he always had a job that he was doing.
I accept all of the evidence summarised above.

MEDICO-LEGAL EVIDENCE

Dr Anthony Johnson, respiratory physician, saw the plaintiff on 12 October 2016. He noted a complaint of heaviness on the left side of the chest and occasional pain for which Endone was taken as needed. The plaintiff was not able to sleep on his left side because of this. The history given to Dr Johnson by the plaintiff was that he had smoked for 55 years up to 20 cigarettes a day and had stopped three years ago.
Dr Johnson said that the plaintiff had epithelioid mesothelioma and that he estimated his prognosis at 12-18 months from the date of his report on 12 October 2016.
Dr Julian Parmegiani, a consultant psychiatrist, provided a report dated 31 January 2017. Dr Parmegiani noted that during his consultation the plaintiff became emotionally labile. Dr Parmegiani diagnosed the plaintiff with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. His emotional response to his terminal illness included the symptoms of depressed mood, anxiety, reduced energy, poor concentration and low motivation. The doctor found that Mr Londos was irritable and often lost his temper with others. He worried about his health and his future.
Professor Pavlakis, a treating doctor, provided a report dated 20 March 2017. He said:

“Based on his level of fitness, current disease status after chemotherapy, the absence of negative prognostic factors and his underlying epithelioid mesothelioma in terms of prognosis I estimate survival chances of 50% survival beyond two years.”

The treating oncologist Dr Nagrial provided a report dated 15 May 2017. He said that “the data would suggest that a median prognosis of 10-12 months would be typical in this situation”. He thought that given the plaintiff’s current progress “I would expect his prognosis to be on the longer end of that prediction”.
I accept all of the evidence summarised above.

EVIDENCE CONCERNING THE COURSE OF MESOTHELIOMA

Professor Pavlakis, a thoracic oncologist, gave oral evidence. He saw Mr Londos twice as a treating doctor, for a second opinion. Professor Boyer, a thoracic oncologist, provided a medico-legal report in the matter of Dib. The evidence of both specialists was admitted in this case. Further, the evidence of another oncologist Professor Clarke, given in the recent case of Zanetic v Amaca Pty Limited [2017] NSWDDT 5, was tendered in this case pursuant to s 25(3) of the Dust Diseases Tribunal Act 1989.
Professor Pavlakis said that he had treated about three hundred patients with mesothelioma over the last 15 years. He was highly experienced in the field, which included not only treating patients, but also conducting leading clinical trials. He had been prescribing Keytruda in the treatment of his patients for about the last 18 months, where that drug was funded by the Dust Diseases Authority.
Professor Pavlakis gave evidence that apart from mesothelioma, Mr Londos had no evidence of respiratory disease. He was aware that the plaintiff had a stroke in 2013, but on examination he showed no signs of deficit as a result of that stroke.
Professor Pavlakis was asked for his opinion about the therapeutic value of emotional support from the family of a person suffering from mesothelioma. He said that emotional support from family and carers was integral to sustaining comfort and in some cases longevity through motivation to fight and resist the disease. He also thought there was a beneficial effect upon pain and distress, if there was both emotional and physical support which could be provided to a patient quickly, by a family member or carer being close by.
He said that motivation was important, as it helped the patient to rally at a time when their disease hit a stumbling block. He had found that patients who have strong support from families will keep fighting.
He also said that treatments given to mesothelioma patients with malignancy are often very frightening. Patients often remember about 20% or less of their consultation and so he saw it as essential that a relative or carer be in attendance when patients are educated about their treatment. He also saw it as essential that the relative or carer assist in talking to the patient and comforting them, in terms of alleviating some of the fear involved.
So far as drugs were concerned, Professor Pavlakis said that modern treatments have extended survival times. They give brief periods of time when the disease of mesothelioma is more under control, but ultimately patients die because of the disease progressing. Patients suffer breathlessness, pain, anorexia and cachexia. In spite of modern chemotherapy treatment, he said that the pain was the same and the suffering was the same, it was just that doctors had more tools to try to fight it.
Professor Pavlakis said that there was now a variety of narcotic analgesics and doctors could switch drugs when one is not working, which gives greater pain control. These drugs help prevent severe spikes in disease control, but he said that ultimately the disease trajectory still runs its course towards death. As he said:

“The only difference is the gradient”.

Professor Pavlakis explained that the organ affected by mesothelioma is the pleura. This is a continuous membrane around the lining of the lung, rather than a discrete area. The area becomes diseased and thickened. It acts as a vice causing restriction of lung capacity and breathlessness. Underneath every rib in the chest wall there are bundles of nerves. As the disease transforms the pleura from a soft area into a hard area, it creates ledges and hard bits which press against these nerves and cause pain in those areas. There is loss of volume in the lung.
Radiotherapy is of little use, as it has to be targeted to a particular localised lesion. Mesothelioma is a diffuse cancer. Nerve blocks cannot effectively be used, as they can in other diseases.
Professor Pavlakis said that one of the difficulties with the pain from mesothelioma is actually trying to work out exactly where the pain is. It tends to be a more diffuse pain, meaning that there cannot be localised treatment. Because there is pain associated with the disease, and because there is a reduced lung volume, attempts to breathe actually enhance the pain. This is why doctors use narcotics to try to minimise pain, so that patients can take a clearer and deeper breath. The narcotics are also used to alleviate the anxiety associated with breathlessness or air hunger. The professor described this feeling as akin to drowning. Mr Londos was still walking around, and thus he had restriction in breathing. However when patients get to the end of their life, they have an impaired cough with mucus retention in their throat. He said it’s like having “someone squeezing your chest and you having to breathe against that”.
Professor Pavlakis said that as the disease affects the respiratory function patients start to lose weight and appetite, get weaker, and there is a vicious circle where they are less capable of walking. They end up being bed bound. He also said that the effect of cancer on the body was to lead to exhaustion, which diminishes the survival of the patient. As he said:

“Patients who get exhausted often say ‘I’ve done enough, I give up’ and they can often pass away faster.”

Constipation is a recognised side effect of narcotic analgesia. Constipation leads to straining, which in turn causes problems with breathing, creating another vicious circle.
Professor Pavlakis said that there would be moments of stability as Mr Londos progressed and then there would be a deterioration and then more stability and the whole process escalates towards death. He did not think that doctors could relieve Mr Londos of all pain from now until his death, saying that doctors hadn’t done it already, so they could not do it from now on.
Professor Pavlakis was also asked about emotional support in the later stages of the disease. He thought it was therapeutically important to have a carer to hold your hand in the circumstances of distress. He had seen that patients were willing to fight, if they had loved ones around them and had milestones that they wanted to see and live for.
As pain increased towards the end stages of the disease, it was sometimes necessary to put patients into an induced coma as the only means of alleviating their pain.
As previously recited Professor Boyer gave evidence in the Dib case, but his evidence was received in the Londos case. He had treated between 150 and 200 patients during his practice as a specialist clinical oncologist in the last 23 years. He was involved in a range of clinical trials looking at new drugs in the treatment of mesothelioma. He saw Mr Dib on 26 July 2017.
Professor Boyer said that the last really major advance in the treatment of mesothelioma was the recognition that combination chemotherapy could prolong life. That was a study published in about 2002 and it led to the widespread introduction of chemotherapy for the disease. Since that time, according to Professor Boyer, there had been only very minor advances in treatment. He was one of the authors of that landmark study. The drug involved in that study was Pemetrexed, or Alimta.
Professor Boyer thought that the drugs for relief of pain now were no more effective than they had been 15 years ago. He did say that there were better ways of administering those drugs which resulted in greater convenience for patients, sometimes with fewer side effects. The same narcotic drugs were used, but their method of delivery had changed.
Asked about developments in the treatment of mesothelioma over the last 15 years, he said that he did not think that the suffering of patients with mesothelioma had changed much in that time frame. It is still a disease that with the best care produces many symptoms in patients. The use of effective anti-cancer treatments such as chemotherapy defers some of the suffering, because it produces a period of time where the disease may be under control, but that suffering remains.
He said:

“I think dying with mesothelioma is a miserable way to die. It is a horrible disease and with the best will in the world and the best medical care in the world it remains a miserable way to die.”

He was asked whether the mental anguish suffered by patients had changed over the last 15 years with changes in treatment. He said:

“Paradoxically, it may even be worse, because people are living, if you like, with this death sentence over them for a slightly longer period of time. I don’t think we are particularly good at dealing with that mental anguish and it is an ongoing and difficult area of the treatment of this particular disease.”

As previously recited, Professor Stephen Clarke, oncologist, gave evidence in the matter of Zanetic v Amaca Pty Limited [2017] NSWDDT 5. That evidence was given on 5 July 2017.
Professor Clarke said that the development of more effective chemotherapy, including the drug Pemetrexed, had resulted in improvement in symptoms. He said that “pain control has improved out of sight”. Professor Clarke said there was a range of agents that work as neuropathic agents so if there is nerve pain, because mesothelioma can affect nerve roots, there is a range of anti-epileptic drugs that are used to damp down pain in those circumstances. He also said that doctors had greater expertise in palliative care and pain management than previously.
Professor Clarke was asked what the last few weeks of life would be like. He said that if there was difficulty controlling symptoms then doctors would normally try and increase the opiates which were prescribed. That usually results in the patient becoming even less functional, and it can lead to them going into a coma. Pain killers are then kept up to the patients, the coma persists and the patient perishes over a number of days. He said that doctors don’t interfere with that process if the patient has had severe symptoms which cannot be controlled appropriately. He thought that the patient became unconscious during that period and if they did show signs of pain then they would be given increased amounts of pain killers to make them comfortable. He did point out that increasing doses of narcotic analgesia compromise breathing, and sufficient doses could be enough to stop a patient breathing.
I accept all of the evidence summarised above.

EVIDENCE CONCERNING GRATUITOUS ATTENDANT CARE SERVICES

The plaintiff makes a claim for damages referable to the provision of gratuitous attendant care services to him. These services have largely been provided by his wife. Section 15A of the Civil Liability Act 2002 provides that the only restriction on the award of such services in a claim for damages for a dust disease, is that the hourly rate is to be a prescribed rate. The present prescribed hourly rate is $29.98 per hour.
Section 15A(4) picks up the definition of “attendant care services” in Section 15(1). The phrase is defined to mean any of the following:

Services of a domestic nature

Services relating to nursing

Services that aim to alleviate the consequences of an injury.

In his affidavit the plaintiff gave evidence that from 4 July 2016 to mid-August 2016 his wife and family spent about two hours a day helping him, including assistance with dressing, cooking, washing clothes, bringing clothes to the hospital and looking after him in the Greek hospitals. In addition his wife and his brother drove him to and from doctors and hospitals (on average about three hours a week) and performed all of the domestic work which he had previously carried out (about an hour a day).
From about 19 August 2016 to the end of May 2017 during his chemotherapy treatments, the plaintiff said that he continued to receive care and assistance from his wife and his children. His wife provided about an hour a day of care and assistance including cooking and serving his meals, fetching things for him, buying and organising his medication. During each seven day period immediately after a chemotherapy session she did more for him – about two hours each day, because he was very tired. During these periods the plaintiff’s wife and his boys spent about an hour each day doing all of the domestic chores that the plaintiff previously did. They spent about three hours a week driving him to and from chemotherapy sessions and doctors.
The plaintiff said in his affidavit that since the beginning of June 2017 his wife spent about an hour a day looking after him including buying and organising his medication, fetching things for him, cooking and serving his meals, helping with shoes and socks and driving him to places where he wanted to go. His wife and his son John spent about an hour each day doing the domestic chores that he used to do.
The plaintiff and his wife have discussed what will happen about his care in the future. Both have agreed that he will stay at home for as long as possible and be looked after by the family. He wants to be at home around those whom he loves.
The plaintiff’s wife in her affidavit said that after the plaintiff had his surgery in the Sotiria Hospital in Athens, she was providing him with 24 hour care. Her husband could, in her view, not be left alone. If she went to the market, she made sure that someone was with her husband. She said that her husband became forgetful and she had to remind him to do everything, even to shower. He could not get out of bed by himself because it caused so much pain.
When the plaintiff returned to Australia and had his chemotherapy, the plaintiff’s wife used to attend the sessions with him. She tried to be there as much as she could to provide her husband with support. Mrs Londos said that her husband was very weak and lethargic when he was having chemotherapy. She drove him to and from each session.
The plaintiff’s wife said in her affidavit that between August 2016 and about April 2017 she provided about 10 hours of additional domestic assistance each week, doing things that her husband used to do around the home. The couple moved in April 2017 to the smaller house which was easier to look after. The plaintiff’s wife said that this move cut down the domestic assistance she was providing by about half.
In her affidavit the plaintiff’s wife said that between April 2017 and the present time she had been spending about five hours each week doing domestic tasks that her husband did before his diagnosis. She now did all of the cooking, cleaning, washing, ironing, mopping, vacuuming and shopping. In addition to this domestic assistance she also provided her husband with personal care and assistance.
She estimated this personal care and assistance at two hours a day between August 2016 and June 2017. The plaintiff’s wife had to remind the husband to take his medications and she managed those. She cooked all of his meals and served them to him. She got his drinks and kept him comfortable. Sometimes she had to help him dress.
When chemotherapy with Avastin started, Mr Londos needed additional help to dress, put on his shoes and move around the house. He had to be helped off the bed and off the lounge. For the first four days after each treatment with Avastin, the plaintiff’s wife said that she provided him with about three hours of personal care and assistance each day.
The plaintiff’s wife said in her affidavit that since about June 2017 she had provided more care to husband as he had suffered with more pain and had become weaker. He had started asking not to be left alone. He appeared more anxious. He was worrying. If the plaintiff’s wife needed to leave the house she arranged for someone else to be at the house with her husband. She estimated that since June 2017 she had again been providing her husband with about three hours of personal care and assistance each day. She made sure that her husband had enough to eat and drink, which was a difficult task during chemotherapy when he was complaining of nausea. She supervised his pain medication every day as her husband had become a bit vague. He had continued to suffer from left-sided chest pain ever since the operation. She ensured he took the right quantities of pain medication.
The plaintiff’s wife said that when her husband wakes up in the night, she hears him and gets up to help. She said that on average he wakes up three to four times a night but on a good night he wakes up only once. Often on these occasions she gets up to help him have a drink or to take some medicine.
The plaintiff’s wife gave evidence that she will look after Peter at home until the end, with outside assistance as and when necessary.
I accept all of the evidence summarised above.

LIFE EXPECTANCY

On the medium life expectancy tables a 79 year old male has a life expectancy of 9.85 years. There was an issue in the case as to whether that figure should be adopted, or some lesser figure should apply.
Agreement was reached between the parties that the plaintiff’s life expectancy, taking into account his disease of mesothelioma, was a further 12 months.
The plaintiff’s smoking history has been previously recited. Both Professor Pavlakis and Professor Boyer held the view that an oncologist was not the appropriate person to offer an opinion about the size of any reduction in life expectancy due to smoking history. Professor Fox gave evidence for the defendant. He did offer a view about a number of years of reduction, but offered no reasons or analysis as to why he picked a particular number of years of reduction in life expectancy.
All three experts were agreed that the medical profession accepts that in the overall population, heavy smoking is correlated with a reduction in life expectancy.
The defendant tendered an article which Professor Fox relied upon, entitled “Tobacco Smoking and All-Cause Mortality in a large Australian cohort study: Findings from mature epidemic with current low smoking prevalence”. That article was published in BMC Medicine (2015) 13:38. The article is by a number of authors, many of whom are specialist epidemiologists.
The study was of 204,953 Australians aged over 45 years sampled from the general population in New South Wales. The participants in the study had no history of cancer, heart disease, stroke or thrombosis. Hazard ratios for all-cause mortality among current and past smokers, as compared to never-smokers, were estimated, adjusting for age, education, income, region of residence, alcohol, and body mass index.
The study found that mortality risk rates increased with increasing smoking intensity. In current smokers of less than 14 cigarettes per day (average of 10 a day), there was a twofold increase in mortality. In current smokers of more than 25 cigarettes per day, there was a fourfold increase in mortality. Both of these increases were as compared to never-smokers. The study found that among past smokers, mortality diminished gradually with increasing time since cessation and did not differ significantly for never-smokers in those quitting prior to age 45 years. Current smokers were estimated to die an average of 10 years earlier than non-smokers.
All doctors agreed that the life tables give the best general impression of survival in a general population. The statistics from the tendered study, together with the overall acceptance by all three oncologists that smoking generally results in an increased risk of reduction in life expectancy, leads me to conclude that in the present case it would not be appropriate to adopt the medium life expectancy figure of almost 10 years for Mr Londos.
However, his stroke left him with no residual disabilities. Further, he has no signs at all of any smoking related illness.
All three specialists pointed out that the figures from the study relate to averages over a general population, which means that while there is an increased risk of dying earlier among heavy past smokers, anecdotes abound concerning heavy smokers who live to a very old age.
In the circumstances, I find that it is appropriate to deduct two years from the life expectancy of Mr Londos, because of his past heavy smoking history. I will therefore adopt a figure of eight years of life expectancy, if Mr Londos had not developed his disease of mesothelioma.

GENERAL DAMAGES

The plaintiff submitted that general damages should be $400,000. In my view this is too high.
The defendant submitted that general damages should be $275,000. In my view this is too low.
The plaintiff has now suffered from the symptoms of mesothelioma since becoming ill in Greece in mid-2016. He has therefore suffered for the last 14 months. He has another year of suffering to go, upon the agreement reached between the parties about impaired life expectancy.
The plaintiff has been getting gradually worse over time. He had one lot of surgery, and has had extensive treatment with two different kinds of chemotherapy. He has had problems with pain, and will need increasing doses of pain medication as time goes by.
I accept the evidence of Professor Pavlakis and Professor Boyer about the likely course of the disease. Both gave much more detailed evidence than the evidence of Professor Clarke tendered from a previous case. In any event, I do not think that there is a lot of difference between the evidence of the various specialists. Chemotherapy only delays the inevitable. In the way explained by Professor Boyer, it prolongs the length of the suffering of a patient with mesothelioma. The decline towards death is inevitable.
The plaintiff had a very happy and contented life before this disease. He had his family around him in Australia, and he and his wife were able to spend three months each year in Greece at the family home. The plaintiff was clearly a person who enjoyed these annual visits to his homeland.
The plaintiff was an active man prior to the disease, and the ability to help and do projects, both around the home, and at his church, have been taken away from him. He has suffered greatly in mind as well as in body since his diagnosis.
I find that the appropriate figure for general damages is $350,000.

INTEREST ON PAST GENERAL DAMAGES

I award interest on $175,000 at 2% for 14 months being $4,083.

LOSS OF EXPECTATION OF LIFE

I have found that the plaintiff’s life expectancy, but for his mesothelioma, was another eight years. It is agreed that he will live for another year. I award the conventional sum of $7,000.

OUT-OF-POCKET EXPENSES

The plaintiff’s expenses of medical treatment in Australia have been paid by the Dust Diseases Authority.
The plaintiff incurred expenses attending the two hospitals in Greece in Tripolis and Athens. There is no dispute between the parties concerning recovery of all of those amounts, bar one.
In the Schedule of Out-of-Pocket Expenses relied upon by the plaintiff there is a figure of 600 Euros ($A875.57) for what is described as “doctor’s tip”. The defendant opposes payment of this amount.
The plaintiff’s wife gave evidence that made it sound like the tip is a bribe to get the doctor to see the patient in the hospital. She described it as money you put in an envelope and you give on the side to the doctor. She said that if you don’t give this the doctor will not see you, but after you give them money they will.
However, the plaintiff himself did not describe the payment in this fashion. Speaking of the payment he said:

“Because the doctors over there always they get some money from the people, from the citizens you know, and also look after you. Like a tip. Like a tip, you give it to the doctor. It is a tip.”

He was asked what would happen if he didn’t pay anything to the doctor and he said:

“Nothing will be happens but because you done a so good job, look after you, you very pleased to give something.”

This really describes a gratuity given to the doctor after the event, and I accept that evidence from the plaintiff. In those circumstances that was not a necessary expenditure for which the defendant should pay.
As I have said, the other amounts are undisputed, and total $1,712.94. That is the award for out-of-pocket expenses.

DAMAGES FOR GRATUITOUS ATTENDANT CARE SERVICES

Schedule A to the plaintiff’s written submissions (PX14) sets out a table calculating the hours of assistance provided to the plaintiff since his diagnosis. I accept the evidence of both the plaintiff and his wife about the provision of those services. I find that the services were reasonable and necessary to assist the plaintiff to cope with the effects of his disease. I am strengthened in that view by my acceptance of the evidence of Professor Pavlakis and Professor Boyer about the overall benefits of provision of family assistance, even if it is only standing by ready to help.
I do note that the claim put forward by the plaintiff does not seek 24 hour stand-by assistance, but is confined for the past to the actual hours of assistance provided by the plaintiff’s wife and, to a lesser extent, his children. The defendant submitted that firstly it was it is not appropriate to allow 24 hour care by Mrs Londos for the period when Mr Londos was admitted to Sotiria Hospital in Athens. The evidence in the case was that hospitals in Greece operate on a different basis to hospitals in Australia. There are very few nursing staff and it is really up to the family to care for the patient. The defendant submits that 10 hours per day is reasonable in the circumstances.

The defendant submits that upon discharge from hospital in Greece 10 hours per week for travel and replacement assistance would be appropriate rather than the amount claimed by the plaintiff.
The defendant accepts the claim for care during periods of chemotherapy, but outside that period and up to 1 July 2017 it submits that 10 hours per week is all that was necessary. The defendant acknowledges that the deterioration since July 2017 means that some additional hours should be allowed for the last several months.
I have accepted the evidence of the plaintiff and his wife about the level of care provided. I have accepted the evidence of the expert doctors that such care was both reasonable and necessary. In the circumstances my award for past gratuitous attendant care is that figure sought by the plaintiff in PX14 which is $62,540.
The plaintiff is entitled to interest on past gratuitous attendant care services. Any calculation will necessarily have to be done with a broad brush, as the levels of care have varied from time to time.
For interest on past gratuitous attendant care services I award $3,283 which applies a rate of 4.5% over the entire period of 14 months to the total award for past gratuitous attendant care services.
For the future the plaintiff submits in Schedule B of PX14 a figure of $76,137. This is split up into four periods. Those periods depend upon selecting dates for when the plaintiff will need moderate care, high care and complete care. Those are categories set out in the occupational therapy report of Ms Oates, tendered for the plaintiff. The defendant disputes these amounts, although it does not dispute the approach of predicting periods when the plaintiff will need moderate care, high care and complete care.
For the future, the plaintiff submits that from the date of trial to 15 November 2017 the plaintiff will require 14 hours per week of continuing assistance with self-care, domestic and community assistance.
The period at moderate care on the plaintiff’s submission starts on 16 November 2017 and runs to 31 March 2018. Moderate care requires 35 hours of care per week, which is 5 hours per day.
The period of high care runs on the plaintiff’s submission from 1 April 2018 to 30 June 2018. This is 70 hours a week or 10 hours a day.
The period of complete care runs for the last month of the plaintiff’s life at 24 hours per day. This last figure does not seem to be in dispute.
The selection of the dates when the plaintiff will pass from requiring his present level of care to needing moderate, high and complete care, is not an exact science. However, Ms Oates who has assessed hundreds of mesothelioma patients, including assessing their functional status during their deterioration, has made a prediction about the appropriate dates.
I find that evidence convincing. The claim for future care is not for 24 hours a day, on the basis that the plaintiff’s wife really cannot leave him at any time. That is probably the reality, but the claim is not pitched at that level.
It seems to me sensible, moderate and necessary, that the plaintiff presently requires 14 hours of care per week (2 hours per day), and will require moderate care, high care and complete care, during the periods put forward in Schedule B to PX14. Based as that table is on the evidence of Ms Oates, which I accept, I award $76,137 for future gratuitous attendant care services.

LOSS OF RECEIPT OF THE AGE PENSION

The plaintiff retired at age 71 in 2009. Since that time he has received an age pension from Centrelink. The claim for future economic loss is a claim that, because the plaintiff will die early from mesothelioma, he has lost the receipt of the age pension during the years he would have survived, if he had not contracted his disease.
I was taken to a large number of authorities by both parties. I will review the Australian authorities in detail. I will also deal with the English authorities, although given the divergence in approach between England and Australia, I did not find much assistance in the English authorities.
The starting point is the decision of the High Court of Australia in The National Insurance Company of New Zealand Limited v Espagne [1961] HCA 15; 105 CLR 569. That case concerned whether an invalid pension was to be disregarded in assessing the damages to be awarded in an action for personal injuries caused by negligence. Justice Windeyer discussed the nature of such a pension, both in a compensation to relatives action, and in a damages claim brought by an injured plaintiff. He said:

“In actions under Lord Campbell’s Act the amount received as a pension consequent upon death, and the value of the prospect, or probability, of continuance of a pension must – in the absence of any statutory provision displacing the general rule – be taken into account in assessing damages.
…
But damages under Lord Campbell’s Act are for the loss of pecuniary benefits consequent upon death. A common law action for damages for personal injury, on the other hand, is not a claim to have a pecuniary loss made good, but to have a pecuniary compensation for all the consequences of physical injury. The distinction becomes thin when the element in general damages that is commonly called economic loss is separately considered: and I confess that there is much in the reasoning in the judgments concerning damages for the pecuniary consequences of death that seems to me logically applicable to the purely economic consequences of physical and mental incapacity. A pension diminishes the pecuniary loss that results when the death of the father deprives the family of the contribution he made to their support. Why, it may be asked, does not a disability pension similarly diminish the monetary loss a man himself suffers by being unable to work? But the same question could be asked about the proceeds of an insurance policy. And there law rather than logic gives the answer.”

In Graham v Baker [1961] HCA 48; 106 CLR 340 the High Court held that in assessing damages for personal injuries to a plaintiff who was compulsorily retired because of such injuries, no account should be taken of pension payments which accrued to and were paid to the plaintiff between the date of such compulsory retirement and the date on which he would have retired in the ordinary course of events.
In the joint judgment of Dixon CJ, Kitto J and Taylor J, it was said that:

“An injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.” – at 347

In Teubner v Humble [1963] HCA 11; 108 CLR 491 the High Court considered, inter alia, the view that in assessing damages for loss of earnings the years of life of which the injured man had been deprived by the injury were to be disregard. This was the view in England according to Oliver v Ashman [1962] 2 QB 210; [1961] 3 All ER 323. In considering this issue Justice Windeyer said [at 505]:

“Broadly speaking there are, it seems to me, three ways in which a personal injury can give rise to damage: first, it may destroy or diminish, permanently or for a time, an existing capacity, mental or physical; secondly, it may create needs that would not otherwise exist; thirdly, it may produce physical pain and suffering.” [Emphasis added]

His Honour also said [at 509] that he doubted the correctness of the decision in Oliver v Ashman. He said:

“And I am inclined, on more general grounds, to doubt the correctness of the decision of the Court of Appeal on this point. It seems to me that the monetary measure of the destruction of the skill and capacity to earn, which the appellant formerly had and had exercised, is not diminished by showing that, in addition to being deprived of his capacity to earn while alive, he has been deprived of part of his expected span of useful earning life.”

In Skelton v Collins [1966] HCA 14; 115 CLR 94 the High Court held that in assessing damages for loss of earning capacity where a plaintiff’s expectation of life has been shortened as a result of his injuries, regard should be had to the probable length of his working life had he not been injured and not merely to the probable period left to him as a result of his injuries. The High Court declined to follow Oliver v Ashman.
Justice Windeyer said [at 128]:

“The one principle that is absolutely firm, and which must control all else, is that damages for the consequences of mere negligence are compensatory. They are not punitive. They are given to compensate the injured person for what he has suffered and will suffer in mind, body or estate. Only so far as they can do so is he entitled to have them.”

Justice Windeyer also said [at 129]:

“The general principle that damages are compensatory yields what seems to me to be some equally sure, but more particular, doctrines. The first is that a plaintiff is entitled to be recompensed for expenses, such as for medical and nursing attention, that he incurs, or that are incurred on his behalf, as a consequence of his injury.
The next rule that, as I see the matter, flows from the principle of compensation is that anything having a money value which the plaintiff has lost should be made good in money. This applies to that element in damages for personal injuries which is commonly called ‘loss of earnings’. The destruction or diminution of a man’s capacity to earn money can be made good in money. It can be measured by having regard to the money that he might have been able to earn had the capacity not been destroyed or diminished. Of course, the monetary equivalent of the loss of capacity is not ascertainable with precision by a simple arithmetical calculation: assumptions and adjustments must be made. But what is to be compensated for is the destruction or diminution of something having a monetary equivalent. The plaintiff could, if he had not been injured, have sold his labour and his skill or the fruits of his labour and his skill. I cannot see that damages that flow from the destruction or diminution of his capacity to do so are any less when the during which the capacity might have been exercised is curtailed because the tort cut short his expected span of life. We should not, I think, follow the English decisions in which in assessing loss of earnings the ‘lost years’ are not taken into account. I agree with what my brother Taylor has said about those cases and with his conclusion on this aspect.” [Underlining added]

The submission made in the present case for the plaintiff focusses upon the underlined part of the judgment of Justice Windeyer where he said that what flows from the compensatory principle is “that anything having a money value which the plaintiff has lost should be made good in money”.
I pause to point out that the sentences immediately after this quote refer in terms to a claim for loss of earning capacity rather than any other kind of claim for economic loss.
If the compensatory principle as set out by Justice Windeyer demands that loss of a future age pension be compensated, one would expect to find cases, since Skelton v Collins was decided in 1966, where such a loss was awarded. According to the researches of counsel, and my own researches, such a loss has never been awarded in this Tribunal, or in any of the courts of this state, or until recently, in any Australian courts.
I will come back to the recent development in due course.
In Sharman v Evans [1977] HCA 8; 138 CLR 653 the High Court was primarily concerned with the principles to be applied by appeal courts in reviewing damages awarded by the trial judge. At page 579 in the judgment of Gibbs J and Stephen J, the following was said:

“As to ‘lost years’, the plaintiff is to be compensated in respect of lost earning capacity during those years by which her life expectancy has been shortened, at least to the extent that they are years when she would otherwise have been earning income.”

The High Court returned to consider the compensatory principle in Todorovic v Waller [1981] HCA 72; 150 CLR 402. The joint judgment of Gibbs CJ and Wilson J said [at 412]:

“Certain fundamental principles are so well established that it is unnecessary to cite authorities in support of them. In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries. Secondly, damages for one cause of action must be recovered once and forever, and (in the absence of any statutory exception) must be awarded as a lump sum; the court cannot order a defendant to make periodic payments to the plaintiff. Thirdly, the court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it. Fourthly, the burden lies on the plaintiff to prove the injury or loss for which he seeks damages.”

Justice Brennan said [at 465]:

“The assessment of damages for future financial loss occasioned by diminution in earning capacity requires a comparison between the plaintiff’s position as a person employing his capacity to earn with his position as an investor of a fund.”

At around the same time as Todorovic v Waller, the High Court delivered its decision in Fitch v Hyde-Cates [1982] HCA 11; 150 CLR 482. While that case primarily concerned the deductions which should be made for likely living expenses in a claim for the “lost years”, it did proceed on the basis that where the deceased had his life shortened as a result of negligence, damages were recoverable for loss of earning capacity in the “lost years”.
The High Court reaffirmed the principle governing the assessment of compensatory damages in Haines v Bendall [1991] HCA 15; 172 CLR 60, saying [at 63] that:

“The injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed.”

The case concerned the need to take into account the use and enjoyment of monies paid by way of workers compensation upon the calculation of interest on pre-judgment non-economic loss.
In Medlin v The State Government Insurance Commission [1995] HCA 5; 182 CLR 1 the High Court considered a case involving damages for loss of earning capacity where the injured plaintiff was a university professor who could no longer work to his own previous high intellectual standards. The joint judgment of Deane J, Dawson J, Toohey J and Gaudron J said [at 4] that in an action in negligence an injured plaintiff recovers damages for loss or impairment of earning capacity as distinct from the direct recovery of past or future lost earnings. Justice McHugh made a statement to the same effect [at 16]. His Honour went on to say:

“In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because ‘an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss’. Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff’s pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.”

In Husher v Husher [1999] HCA 47; 197 CLR 138 the High Court said [at 143]:

“Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff’s economic loss ‘by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff’s proved condition at the time of trial, to attempt some assessment of his future loss’. But damages for both past loss and future loss are allowed to an injured plaintiff ‘because diminution of his earning capacity is or may be productive of financial loss’. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained.”

Finally, the High Court considered claims for future economic loss in CSR Limited v Eddy [2005] HCA 64; 226 CLR 1. The judgment of Gleeson CJ, Gummow J and Heydon J said [at 15-16]:

“A plaintiff who has suffered negligently caused personal injury is traditionally seen as able to recover three types of loss.
The first covers non-pecuniary losses such as pain and suffering, disfigurement, loss of limbs or organs, loss of the senses – sight, taste, hearing, smell and touch; and loss of the capacity to engage in hobbies, sport, work, marriage and child-bearing. Damages can be recovered in relation to these losses even if no actual financial loss is caused and even if the damage caused by them cannot be measured in money. The second type of loss is loss of earning capacity both before the trial and after it. Although the damages recoverable in relation to reduced or future income are damages for loss of earning capacity, not damages for loss of earnings simpliciter, those damages are awardable only to the extent that the loss has been or may be productive of financial loss. Hence ‘the valuation of the loss of earning capacity involves the consideration of what monies could have been produced by the exercise of the former earning capacity’.
The third type of recoverable loss is actual financial loss, for example, ambulance charges; charges for medical, hospital and professional nursing services; travel and accommodation expenses incurred in obtaining those services; the costs of rehabilitation needs, special clothing and special equipment; the costs of modifying houses; the costs of funds management; and the costs of professionally supplied home maintenance services.” [Emphasis added]

That completes the review of the relevant High Court authorities. I turn to consider authorities of the courts in New South Wales.
In James Hardie & Coy Pty Limited v Roberts [1999] NSWCA 314; 47 NSWLR 425 the New South Wales Court of Appeal was dealing with the quantification of damages for the lost years in a mesothelioma case. Spigelman CJ agreed with Sheller JA. Justice Sheller commenced his discussion of loss of earning capacity [at 437] by reference to Teubner v Humble and Medlin v State Government Insurance Commission. He said that where personal injury affects the receipt of earnings from employment or self-employment, damages are awarded for the destruction or diminution in earning capacity. He regarded this principle as “well established”.
Counsel for the defendant referred the Tribunal to the decision of the New South Wales Court of Appeal in CGU Workers Compensation (NSW) Limited v Garcia [2007] NSWCA 193; 69 NSWLR 680. In that case a trial judge had found a tortious duty to act in good faith, and a contractually implied duty of good faith, to exist in relation to a prescribed policy of insurance under the Workers Compensation Act 1987. At paragraph [61] the Court of Appeal said:

“The High Court has recently issued stern warnings against intermediate courts of appeal stepping beyond long established authority derived from English precedents or considered dicta of the High Court itself (Farah Constructions Pty Limited v Say-Dee Pty Limited).”

Of course the Court of Appeal was there speaking of the discovery by trial judge of a new species of tort, whereas the present case, in my view, requires the Tribunal to discern a new head of damages. As Justice Santow said in that same case, the common law moves incrementally and in principled fashion, not by sudden leaps – at [167].
Finally, in Kallouf v Midis [2008] NSWCA 61 at [44]-[61], the New South Wales Court of Appeal said that damages for past and future loss of income are allowed because diminution of earning capacity is or may be production of financial loss – Graham v Baker. An alternative way of expressing the principle is that the plaintiff is compensated for the effect of an accident on the plaintiff’s ability to earn income – Medlin v The State Government Insurance Commission. The court said, in summary, that damages for lost income, past and present, are awarded by answering three questions:

What was the plaintiff’s income earning capacity at the time of injury?

To what extent was it impaired by the injury?

To what extent was the impairment productive of income loss?

It can be seen that the focus of all of the High Court decisions, and the New South Wales Court of Appeal decisions, reviewed above, is that there is a recognised head of damage for interference with earning capacity. To this date there is no authority in either the High Court or the New South Wales Court of Appeal for damages for the loss of the ability to receive the age pension.
I turn now to a recent Australian authority where a loss of the kind presently claimed was awarded. That is the decision of the District Court of South Australia in Latz v Amaca Pty Limited [2017] SADC 56, a decision of Judge Gilchrist. The plaintiff in that case suffered from mesothelioma and had a shortened life expectancy. He made two claims for economic loss. The first was for loss of a superannuation entitlement. To my mind that raises different issues to the present claim. The second claim in the Latz case was for loss of entitlement to a partial age pension in the future.
The trial judge recited that the fundamental purpose of an award of damages in an action for tort is to place the victim of the tort, so far as money can achieve it, into the position that he or she would have been in but for the tort – at [98]. He said that but for the tort of James Hardie, Mr Latz would have continued to receive his age pension for the rest of his life. The trial judge said that conceptually he could see no reason why the plaintiff’s entitlement to an age pension should be treated any differently to an entitlement to his state pension. I pause to remark that the claim for loss of the State pension raised different issues, in that it arguably related to loss of earning capacity, since the State pension was “earned” by the plaintiff through his years of employment services.
Without citing authority, and in particular without referring to what the plaintiff in the present case submits is the key decision of Justice Windeyer in Skelton v Collins, the trial judge allowed damages for loss of the receipt in future years of the age pension.
It is noted that the Latz decision is presently the subject of an appeal.
Senior Counsel for the plaintiff referred the Tribunal to two earlier decisions of the Dust Diseases Tribunal. In Lynch v Amaca Pty Limited [2004] NSWDDT 1, Judge Curtis awarded damages for loss of pension and superannuation entitlements. The plaintiff was prevented from working in future because of his dust disease. Besides a claim for loss of earnings, which was agreed, he also claimed damages for loss of retirement benefits which were going to be paid to him pursuant to a pension payable upon retirement by his employer, based upon the number of years of service to the employer, and a percentage of his final salary. The evidence was that had the plaintiff survived until retirement age of 65 years, he would have been entitled to $48,627.57 per annum.
Without reference to any particular authority, the trial judge awarded the loss of pension and superannuation benefit. Such an award is unsurprising, given that the evidence was clearly that the plaintiff worked for a combination of weekly wages plus an entitlement to a pension paid by the employer upon retirement. It can be seen straight away that this is to be differentiated from receipt of an age pension. The economic loss in the case of Lynch was an interference with earning capacity, which is the recognised head of damages available for future loss of income.
The second decision of the Tribunal was the matter of Roberts v Amaca Pty Limited [2009] NSWDDT 28. The plaintiff had worked as a dentist in the United Kingdom. During his time there he made compulsory contributions to the National Health Superannuation Scheme of the United Kingdom. He was entitled to receive a pension when he retired in the future.
The loss was awarded. Judge Curtis referred to the decision of Justice Windeyer in Skelton v Collins and to the compensatory principle. He went on to refer to the fact that the compensatory principle applies so that anything having a money value which the plaintiff has lost should be made good in money.
Without further reference to authority the trial judge allowed the loss of the UK pension. Again, such a pension is to be distinguished from the age pension. The UK pension was payable in the future because of the plaintiff’s earning capacity being diminished. Different considerations to my mind apply to such a pension, as opposed to an age pension, which is paid under the social security legislation simply because a person reaches a certain age and satisfies a means test.
I was referred to a number of English authorities which I have not found helpful, because of the differences in the law of damages between the United Kingdom and Australia. The high point of the plaintiff’s submissions in relation to the English cases was the decision of the House of Lords in Pickett v British Rail Engineering Limited [1980] AC 136; [1979] 1 All ER 774. That case concerned a claim for loss of earning capacity. It did not concern loss of the receipt of unearned or passive income for the future.
The remarks in particular of Lord Russell were therefore obiter dicta. At page 165 in the speech of Lord Russell, he considered the theoretical propositions involved if a person was to be the recipient of the income from a life tenancy. The early death of such a person would mean that he would not receive the income from the life tenancy. Similarly, if a person had an expectation of receiving a benefit under the will of rich relation, who would lose that if he died early through negligence. His Lordship said that in such cases an allowance in damages would need to be made for the loss.
To similar effect was the speech of Lord Scarman. His Lordship referred to the report of the Law Commission (the UK equivalent of our Law Reform Commission). In paragraph 90 of Law Commission Report No. 56, the following was said:

“There seems to be no justification in principle for discrimination between deprivation of earning capacity and deprivation of the capacity otherwise to receive economic benefits. The loss must be regarded as a loss of the plaintiff; and it is a loss caused by the tort even though it relates to monies which the injured person will not receive because of his premature death. No question of the remoteness of damage arises other than the application of the ordinary foreseeability test.”

While it was obiter dicta, Lord Scarman said that he would allow a plaintiff to recover damages for the loss of financial expectations, and not just for loss of earning capacity.
These two expressions of opinion, not part of the ratio in the case of Pickett, have not found favour in Australia.
A reading of the Law Commission Report No. 56 shows that the view expressed in paragraph 90 was thought by the Commission not to be part of the law of United Kingdom. In Appendix 4 to the report the Commission set out recommendations for reform where legislation was required. The Commission saw a need for legislation to overrule Oliver v Ashman, so that in the UK damages could be obtained for the lost years. Further, the Commission said (Appendix 4 paragraph 8(d)):

“In line with the reasoning of the Australia High Court in Skelton v Collins the plaintiff should be entitled to compensation not only for loss of earnings but for other kinds of economic loss eg. a life annuity referable to the lost period.”

Having read Skelton v Collins carefully, I am of the view that the Commission overstated the effect of that decision of the High Court of Australia. Nowhere in Skelton v Collins is that said.
The inclusion of that in the appendix to the report caused me to look back to paragraphs of the report earlier than paragraph 90. The only other mention of Skelton v Collins is in paragraph 58 of the report, where the following is said:

“We expressed the provisional conclusion that the present rule in Oliver v Ashman should be reversed and suggested three possible alternative solutions for changing the law:
(a) the reversal by legislation of the rule in Oliver v Ashman and the adoption of the formula accepted in the Australian case of Skelton v Collins i.e. compensation for loss of earnings in the so-called ‘lost years’ should be based upon the amount of such earnings less what the plaintiff would have spent on his own maintenance.”

That paragraph, in my opinion, correctly states the ratio of Skelton v Collins. The paragraph later in the report where legislation is proposed to overturn Oliver v Ashman, attributes a principle to Skelton v Collins which is simply not in the case.
I was referred to other English cases. I will deal with them briefly.
In Adsett v West [1983] 1 QB 826; [1983] 2 All ER 985, the trial judge found that the loss of income in the lost years should be compensated, subject to certain deductions. The trial judge held that the prospect of inheritance in the lost years was a factor to be taken into account as the loss of the enjoyment of the income from that benefit was no different from that of income received from other sources. In support of this he quoted the report of the Law Commission, and the judgments of Lord Russell and Lord Salmon in Pickett. I have already indicated my view of the doubts which arise in relation to the force of those statements.
In Gabriel v Nuclear Electric PLC [1996] PIQR Q1 the English High Court was dealing with a mesothelioma claim. Part of the claim was that the plaintiff had lost the ability to perform home handyman work (“DIY benefits”). The judge allowed such a loss referring to the speeches of Lord Russell and Lord Scarman.
It seems to me that such a loss would be compensable in any event, because it is clearly a loss of capacity. A person may not be paid for DIY work, but it has an economic value, and the interference with the capacity to exercise those skills sounds in damages.
In Phipps v Brooks Dry Cleaning Services Limited [1996] PIQR Q100, the English Court of Appeal was dealing with a mesothelioma claim. Part of the claim was for loss of a pension which would have been paid, but for the early death of the plaintiff. The pension was one paid by an employer, and again this case can be distinguished because different considerations, to my mind, arise where a claim for loss of a pension can be characterised as an interference with earning capacity, as opposed to a claim for loss of the ability to receive a payment which has no reference at all to an interference with earning capacity.

CONSIDERATION OF THE LOSS OF RECEIPT OF PENSION CLAIM

A common thread runs through all of the Australian decisions referred to above. A recognized head of damages where income has been lost as a result of a tort is that a claim can be made for diminution in earning capacity, where such diminution is or may be productive of financial loss.
There is no authority in Australia, binding upon this Tribunal, that loss of the ability to receive an age pension is a head of damages. The age pension is received without reference to the ability of a person to earn income, or without reference to whether there has been some interference with any ability to earn income.
While the compensatory principle applies, it applies to various heads of damage for which the law provides compensation. There are three categories of such loss, referred to in the earlier cases, and collected in CSR v Eddy. The categories are:

Pain and suffering and loss of enjoyment of life – what the common law calls general damages;

Out-of-pocket expenses – in a case such as the present the medical expenses incurred and the attendant care services provided;

Loss of or interference with earning capacity which is or may be productive of financial loss.

Damages are not awarded simply because the compensatory principle is satisfied. That overarching principle is the one which is to be applied in assessing damages which are available as recognized heads of damage at common law.
In my view the claim for loss of a pension is not available as a matter of law and no damages are allowed for that claim.

IF MY CONCLUSION ON THE LOSS OF THE RECEIPT OF THE PENSION CLAIM IS WRONG

In case my conclusion that the loss of the pension claim is not a head of damage recognized by the law in Australia is found on appeal to be an error in point of law, I will go on to make a theoretical assessment of the damages which could be awarded.
The plaintiff will continue to receive, through a combination of Dust Diseases Authority benefits, and a partial age pension everything that he would have received (and more) up to the date of his death, had he not succumbed to the disease of mesothelioma. If he did not contract mesothelioma, he would have been paid a full age pension until the presumed date of death which is 12 months from trial i.e. August 2018. The evidence shows that because the plaintiff has been paid a Dust Diseases Authority pension, this has reduced his age pension. Nevertheless, the combination of the age pension and the Dust Diseases Authority pension mean that the plaintiff will suffer no loss between now and his presumed death in August 2018.
The plaintiff’s theoretical loss, arising from loss of ability to receive the age pension, will run from August 2018 until his normal life expectancy, which I have found to be eight years from the date of trial. Thus the loss of the pension is to be calculated over seven years, and deferred for one year.
The loss before any deductions would be calculated by applying the full age pension rate and multiplying it by the 3% multiplier over seven years, deferring such figure by one year because it would not commence until August 2018.
There would then have to be deductions made to reflect the savings in the lost years. This is a well-recognized approach where the claim is a more conventional claim for loss of earning capacity.
In Fitch v Hyde-Cates [1982] HCA 11; 150 CLR 482 at 498 the High Court said that the true measure of the deceased’s loss is not the amount which he would have in his hands to spend, distribute or save, after defraying his probable living expenses and those of his dependants, but the amount of his future earnings less his probably living expenses to enable him to earn future wages.
In James Hardie & Coy Pty Limited v Roberts [1999] NSWCA 314; 47 NSWLR 425 at 445, the majority judgment said:

“In arriving at the economic value to the plaintiff of the faculty or skill there must be deducted from probable future earnings the expenditure required to enable the future earnings to be earned. This is so whether the plaintiff’s life expectancy is reduced or not. Even if the life expectancy is not reduced, expenditure such as fares and work clothing will be deducted. If the life expectancy is reduced the range of expenditure deducted will be greater and extend to expenditure no longer incurred in maintaining the plaintiff so that his or her earning capacity can be exploited. For that reason living expenses which would enable the plaintiff to earn are deducted in a claim for the lost years but not where life expectancy is unaffected. But the deduction goes no further.”

The plaintiff in his affidavit said that he and his wife did not spend much on themselves. He estimated that his share of their expenses was less than $100 per week.
In his oral evidence the plaintiff said that he did not have a mortgage. His son John lives with his parents. John pays the bills, by drawing money from his parents’ account. When asked about spending on himself, the plaintiff said that he didn’t spend much but sometimes $50 or $40 or $100. He could spend $50 for petrol. He said that on average in a week when he did not have to buy petrol he would spend $45. The plaintiff gave evidence that when he went to a Greek community dance he would spend between $30 and $50. John would draw $1,000 or $2,000 out of the account and then pay all of the bills. The plaintiff had two term deposits, one worth $151,000 and the other one $6,000. The last cheque he cashed was for $2,000, but he put $1,400 of that away for a trip to Greece. In cross-examination the plaintiff gave some evidence about the cost of medication which was not related to his mesothelioma. He was asked whether when he went to the supermarket he and his wife would spend at least $100, and he said that at the market they might spend $30 or $40 or $50, but not each week, maybe once a month.
I regard that evidence as completely unreliable. A couple could not feed themselves on $50 per month. The plaintiff was cross-examined and acknowledged that he spent money on clothes, as well as an electricity bill, a gas bill and a water bill for the house. He paid $300 per annum for contents insurance and $550 per annum for house insurance. He paid over $1,000 a year for Council rates, even after obtaining a pensioner rebate. He had a car but he did not have to pay registration as he was a pensioner. He paid for car insurance which cost about $20 per week.
The submission was made that there should be no deduction for living expenses, as the plaintiff did not need to dip into his pension to pay for his living expenses. It was suggested that he and his wife could live off the interest from the two term deposits, which was paid at a rate of less than 3% per annum. I regard this as totally unrealistic, but in any event it does not accord with the law, which requires a deduction for the savings in the lost years, to be balanced against damages to be awarded for lost earning capacity. Just as it is necessary to pay for everyday expenses to stay alive to work, it is necessary to pay everyday expenses to stay alive to receive the passive income of the age pension.
The defendant tendered an accountant’s report by Ms Lindsay. It summarised useful information from the Australian Bureau of Statistics. The ABS collects statistics Australia-wide concerning personal expenditure. It then breaks down that data so that it can produce information about the household expenditure of households which exist on a Government pension where the household consists of people over 65 years of age. That is summarised in Schedule 1 to the Lindsay report dated 28 July 2017 (DX 1).
Ms Lindsay deducted from the ABS figures certain expenditure which could be regarded as non-essential expenditure eg. alcoholic beverages, tobacco products, household furnishings, household services, transport and recreation.
The ABS data was only for the year 2009/2010, and applying a Consumer Price Index calculation Ms Lindsay came to the figure of $197 per week for personal expenditure of an essential nature in a household where both parties are over 65 years, exist on a Government pension, and are in the lowest income quintile.

To my mind that is a much more realistic approach to assessing a figure for the appropriate deduction for the savings in the lost years.
It appears from the reports of both accountants that the appropriate pension rate for future years is $312.92 per week. Deducting $197 for savings in the lost years, this leaves a figure of $115 per week. I will adopt this figure in future calculations.
Applying the seven year 3% multiplier of 330, and a 3% deferral factor for one year of 0.971, the calculation is:

$115 x 330 x .971 = $36,849.45

That is not the end of the matter. It is necessary to deduct from any damages, apart from those damages quarantined by s 12D of the Dust Diseases Tribunal Act 1989, the payments received and to be received from the Dust Diseases Authority – Harris v Commercial Minerals Limited [1996] HCA 49; 186 CLR 1. However, in discussion with the accountants during their joint evidence session, it became apparent that the matter is not quite that simple. The receipt of the Dust Diseases Authority pension has resulted in the plaintiff having his age pension reduced. That situation will continue until his death. If I were to deduct all of the Dust Disease Authority payments received, past and future, then I would being doing a disservice to the plaintiff as I would be reducing his nett income between now and death to the reduced pension rather than the full pension. In other words, it would work an injustice to deduct all of the Dust Diseases Authority benefits from any award for future loss of receipt of the pension.
The accountants were able to come up with an agreed approach to deal mathematically with this problem. Schedule C to the second supplementary report of the plaintiff’s accountant Mr Thompson (PX13) set out a calculation to work out how much of the total Dust Diseases Authority benefits should be deducted from any award for economic loss, which would still leave the plaintiff in the position of in effect having notionally received the full age pension until his date of death.
The figure calculated by Mr Thompson as the amount which should be deducted from any award for future loss of the pension was $39,727.
When this amount is notionally deducted from the calculation above of the lump sum of $36,849.45 which would compensate the plaintiff for loss of receipt of the pension less savings in the lost years, it completely wipes out that lump sum. In other words, the amount, which would be deducted from damages because of the Dust Diseases Authority payments, exceeds the amount of the lump sum compensation for future loss of the pension by a little under $3,000.
Thus, even if I had been of the view that as a matter of law the plaintiff has an entitlement to damages for loss of capacity to receive the age pension in future, my assessment of the value of those damages is nil.

CONCLUSIONS

I award the following heads of damage to the plaintiff:

General damages - $ 350,000

Interest on past general damages - $ 4,083

Loss of expectation of life -    $ 7,000

Past out-of-pocket expenses $ 1,713

Past gratuitous attendant care services -    $   62,540

Interest on past gratuitous attendant care services - $ 3,283

Future gratuitous attendant care services - $  76,137

TOTAL $ 504,756

The plaintiff is not entitled as a matter of law to damages for loss of the ability to receive the age pension.
If my conclusion in that regard is later overturned on appeal, then my assessment of the value of that loss is nil.
I order that the defendant pay the plaintiff’s costs. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows:

Party seeking a different costs order to file and serve written submissions within 14 days of this judgment;

Party opposing such costs order to file their written submissions in reply within a further 14 days;

The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.

My orders are:

Judgment for the plaintiff for $504,756.

Order the defendant to pay the plaintiff’s costs.

If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows:

Party seeking a different costs order to file and serve written submissions within 14 days of this judgment;

Party opposing such costs order to file their written submissions in reply within a further 14 days;

The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.

**********

Decision last updated: 22 August 2017

Medium Neutral Citation:	Londos v Amaca Pty Limited [2017] NSWDDT 7
Hearing dates:	31 July 2017, 1-4 August 2017, 9-10 August 2017
Date of orders:	22 August 2017
Decision date:	22 August 2017
Before:	Judge D. Russell
Decision:	1. Judgment for the plaintiff for $504,756. 2. Order the defendant to pay the plaintiff’s costs. 3. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows: (a) Party seeking a different costs order to file and serve written submissions within 14 days of this judgment; (b) Party opposing such costs order to file their written submissions in reply within a further 14 days; (c) The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.
Catchwords:	DUST DISEASES – exposure – damages DAMAGES – loss of receipt of pension – deduction for savings in the “lost years”
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987 Dust Diseases Tribunal Act 1989
Cases Cited:	Zanetic v Amaca Pty Limited [2017] NSWDDT 5 The National Insurance Company of New Zealand Limited v Espagne [1961] HCA 15; 105 CLR 569 Graham v Baker [1961] HCA 48; 106 CLR 340 Teubner v Humble [1963] HCA 11; 108 CLR 491 Oliver v Ashman [1962] 2 QB 210; [1961] 3 All ER 323 Skelton v Collins [1966] HCA 14; 115 CLR 94 Sharman v Evans [1977] HCA 8; 138 CLR 653 Todorovic v Waller [1981] HCA 72; 150 CLR 402 Fitch v Hyde-Cates [1982] HCA 11; 150 CLR 482 Haines v Bendall [1991] HCA 15; 172 CLR 60 Medlin v The State Government Insurance Commission [1995] HCA 5; 182 CLR 1 Husher v Husher [1999] HCA 47; 197 CLR 138 CGU Workers Compensation (NSW) Limited v Garcia [2007] NSWCA 193; 69 NSWLR 680 Pickett v British Rail Engineering Limited [1980] AC 136; [1979] 1 All ER 774; Adsett v West [1983] 1 QB 826; 2 All ER 985 Gabriel v Nuclear Electric PLC [1996] PIQR Q1 Phipps v Brooks Dry Cleaning Services Limited [1996] PIQR Q100 Harris v Commercial Minerals Limited [1996] HCA 49; 186 CLR 1 CSR Limited v Eddy [2005] HCA 64; 226 CLR 1 James Hardie & Coy Pty Limited v Roberts [1999] NSWCA 314; 47 NSWLR 425 Kallouf v Midis [2008] NSWCA 61 Latz v Amaca Pty Limited [2017] SADC 56 Lynch v Amaca Pty Limited [2004] NSWDDT 1 Roberts v Amaca Pty Limited [2009] NSWDDT 28
Texts Cited:	Law Commission Report No. 56 “Tobacco Smoking and All-Cause Mortality in a large Australian cohort study: Findings from mature epidemic with current low smoking prevalence”, BMC Medicine (2015) 13:38
Category:	Principal judgment
Parties:	Peter Londos (plaintiff) Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) (defendant)
Representation:	Counsel: P Semmler QC (plaintiff) S Tzouganatos (plaintiff) D Priestley SC (defendant) J Sheller (defendant) Solicitors: Turner Freeman Lawyers (plaintiff) Mills Oakley (defendant)
File Number(s):	236/2016