Mario Di Cecco v Auqual pty Ltd (in Liquidation)

[2002] NSWDDT 2

Dust Diseases Tribunal

of New South Wales

CITATION:	Mario Di Cecco v Auqual pty Ltd (in Liquidation) [2002] NSWDDT 2
PARTIES:	Mario Di Cecco Auqual Pty Ltd (in Liquidation)
MATTER NUMBER(S):	124 of 1998
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Damages :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	4 February 2002
EX TEMPORE JUDGMENT DATE :	02/04/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr A Leslie QC instructed by Turner Freeman FOR DEFENDANT: Mr I G Harrison SC with Mr J De Greenlaw instrudted by McCullochand Buggy

JUDGMENT:

1. The plaintiff Mario Di Cecco claims damages from Auqual Pty Ltd (in liquidation) in consequence of a lung disease contracted by him in that employment.

2. In his statement of claim the applicant alleged employment from May 1968 until about September 1973. It is necessary in the context of this litigation to determine accurately the period of the plaintiff’s employment with the defendant.

3. The plaintiff worked in a mill at the corner of Unwin and Stanley Streeets, Granville, which mill ground various mineral substances for sale. This mill was operated from the time the plaintiff commenced his employment until some time in 1973 by the defendant company which was then known as Quality Earth Pty Ltd. On or about 31 March 1973 a sale was arranged of the business and its assets, including real estate, to another company known as Commercial Minerals Ltd. There is no evidence of the terms of the agreement, nor any evidence before me as to its date, other than a date of 31 March 1973 which was found by the Tribunal in the matter of Hollins v Commercial Minerals Ltd to be the date upon which another worker, Mr Paul Hollins, ceased to be employed by Auqual Pty Ltd and commenced employment with Commercial Minerals. The plaintiff formally admits the relevant facts of Mr Hollins’ employment and in consequence I believe that a fair inference arises that he was himself employed until 31 March 1973 by the defendant and was thereafter employed by Commercial Minerals.

4. I prefer the evidence contained in the plaintiff’s admission DX2 to his memory that he was, until September 1973, employed by the defendant. It appears probable that he was employed by Commercial Minerals Pty Ltd from 31 March 1973 notwithstanding the fact that the title to the real estate upon which the business was conducted was not transferred to Commercial Minerals until 31 October 1973. It is not unusual that a business as a going concern may be transferred at a particular date with covenant to transfer the real estate at a later date.

5. The circumstances in which the plaintiff laboured in the employ of the defendant are not in dispute. He was exposed to noxious quantities of mineral dusts including talc, mica, coal, limestone, silica, clay, felspar and vermiculite. In consequence of this exposure he has developed the disease of silicosis. The defendant had cause to foresee the plaintiff’s contracting the disease and yet took none of the reasonably practicable steps available to prevent his injury. The defendant is in breach of its duty to the plaintiff as its employee and is liable to him in damages.

6. The plaintiff was not troubled by any symptoms of his disease when he left the employ of the defendant. He performed heavy work, including that of a bricklayer for many years after leaving that employment. The plaintiff for the last five years of his life worked as a general hand in a kitchen at the Westmead Hospital. He stopped work at the age of 62 because of a disabling back injury and was granted an invalid pension. At the age of 65 he was given an aged pension. About six years after his retirement from work, that is at the age of about 68, the plaintiff became breathless. This breathlessness increased until in 1995, 10 years after his retirement, he underwent cardiac surgery for the relief of breathlessness and chest pain. Dr Paul Russell treated the plaintiff at the time and believed that the breathlessness which the plaintiff then suffered was because of the cardiac disorder.

7. After recovering from his surgery the plaintiff said that he felt “all right” and that his breathlessness had been relieved. He says that approximately two years after the surgery he noticed a progressive onset of the breathlessness from which he now suffers. The plaintiff gave his evidence in the most general of terms. In his affidavit, PX1, he asserted that his breathlessness interferes with his daily life and living activities. No detail has been led before me. The plaintiff says that he spends most of his days sitting around and reading, he drives and walks to the shops, about a 5 or 10 minute trip. He does assert that after his heart surgery and before 1997 he helped in the house contributing 3 to 4 hours a week in housework by way of cleaning floors and hanging out the washing. He says that he no longer does these tasks. It is not clear that the reason he does not do them is because it is a slight burden to him or whether he finds the task totally beyond him.

8. In about December 2000 the plaintiff’s breathlessness increased because of the onset of cardiac fibrillation. It is the opinion of Dr Russell that episodes of increasing breathlessness will recur, given the result of longstanding hypertension in the plaintiff, although this will occur more frequently because of his chronic lung disorder.

9. Dr Burns examined the plaintiff in November 1999. He formed the opinion that he had radiological evidence of silicosis, which was the result of his exposure in the employment of the defendant. The respiratory function was then within normal range. On 8 March 2001 Dr Burns again examined the applicant and noted a worsening of the respiratory function, which may have been related to the progression of silicosis. The doctor did believe at that time that the worsening of the respiratory function was because of what he understood to have been a rapid deterioration as a consequence of cardiac failure. However, by August 2000 the doctor had examined serial respiratory function tests and noted that there had been a steady decline in function consistent with a pulmonary cause rather than a cardiac cause of breathlessness.

10. The defendant has placed no medical evidence before me and I accept the opinion of Dr Burns.

11. That said it was nevertheless the opinion of Dr Burns in November 1999 that the plaintiff was not disabled as a result of his silicosis condition and the accompanying pleural thickening.

12. I am not persuaded upon the scant evidence given by the plaintiff and the limited medical opinion before me that the plaintiff is greatly disabled by his lung disease. However, I do accept that he is breathless upon effort, that he finds this distressing and that his condition will deteriorate. While Dr Burns in 1999 did not believe the plaintiff was disabled, by 15 August 2001 he believed that the breathlessness was reflected in the disability level of 30 per cent. That appears to be a fairly arbitrary assessment because I can see no basis from the plaintiff’s evidence upon which I may conclude that he is prevented from such activity as might otherwise be expected from a 75 year old man. On the medical evidence I think more probable than not that his life expectancy of 10 years has been halved because of his cardiac condition and I believe his prognosis on the probabilities is a further five years from today.

13. Because of the pervasive effect of breathlessness upon quality of life and the probability of insidious and disabling progression, I believe that while the plaintiff’s loss of amenities at present is not great it will worsen and cause him much anxiety. Accepting that this is not in the same category as the worst possible case, nevertheless I believe a reasonable amount for general damages, given his limited suffering for the last two or three years and the increased suffering over the next five is $50,000.

14. Because of the very limited evidence in relation to the need for services, none of which is supported by medical opinion, I do not believe that the plaintiff has discharged the onus of proving that more probably than not he presently requires services, but I do believe that will change with the progression of his disease. The defendant accepts that if services are required, $20 per hour would be an appropriate rate at which the person providing the services should be remunerated. It is reasonable to assume that in the last one or two years of his life he would require services for not less than an hour a day, that is $140 a week, $7,000 a year. Without putting too fine a point on the discount I allow $10,000 for future services.

15. Out of pocket expenses have been agreed in the sum of $3,621.10.

16. The cost of future medical care for five years has been estimated at $7,495. However, that sum should be discounted in part because of the circumstance that some of the breathlessness would be related to the cardiac condition and also because of the present value of the sum. I allow $5,000 for future medical expenses.

17. Verdict and judgment for the plaintiff against the defendant in the sum of $68,621.10.

18. The defendant is to pay the plaintiff’s costs.

Mr A J Leslie QC instructed by Turner Freeman appeared for the plaintiff.

Mr I G Harrison SC with Mr J De Greenlaw instructed by McCulloch and Buggy appeared for the defendant.