Markland v SIFC

[2001] NSWDDT 19

Dust Diseases Tribunal

of New South Wales

CITATION:	Markland v SIFC [2001] NSWDDT 19
PARTIES:	Darcy Markland Stevedoring Industry Finance Committee
MATTER NUMBER(S):	31 of 2001
JUDGMENT OF:	O'Meally J at 1
CATCHWORDS:	Damages :- Provisional Damages Asbestosis
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	3 July 2001 4 July 2001
EX TEMPORE JUDGMENT DATE :	07/04/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr W P Kearns SC instructed by Turner Freeman FOR DEFENDANT Mr A C Scotting instructed by Blake Dawson Waldron

JUDGMENT:

1. This is an action for provisional damages by Darcy Markland against the Stevedoring Industry Finance Committee.

2. It is not disputed that in the course of his work as a stevedore upon the Sydney waterfront the plaintiff was exposed to significant quantities of asbestos dust and fibre, as a result of which he has contracted the disease of asbestosis. The existence of a duty of care and breach of that duty are not in issue. If I may say so I congratulate counsel for the agreements that have been reached. They have limited the issues I am required to determine. The defendant does not dispute its liability to pay damages to the plaintiff.

3. Evidence was taken from the plaintiff at his home. He was on oxygen and has been for some time. There is no serious medical dispute about his current condition and the only medical evidence before me is the report of Dr Michael Burns, an eminent thoracic physician. It is Dr Burns view that the plaintiff has advanced asbestosis, and breathlessness, which was present when he ceased work in 1991, is likely, in Dr Burns’ view, to have been caused by asbestosis. There was x-ray evidence of pulmonary fibrosis present in 1993 and in Dr Burns’ view that condition was likely to have existed in 1991. I assume that Dr Burns came to that conclusion by reason of the state of fibrosis present in the 1993 chest x-ray. Dr Burns thought the plaintiff to be very unwell and had a life expectancy of two to three years from the time of consultation, which occurred at his home on 23 January 2001.

4. Asbestosis is a terribly disabling disease. It is progressive. It significantly restricts the capacity to breathe. Oxygen administration inevitably is required, and the plaintiff has been on oxygen now for some considerable period. He will remain on oxygen until he dies. Presently he has oxygen for something between 16 and 20 hours in each day. Inability to breathe adequately causes frequent panic attacks. It also limits and restricts mobility. The plaintiff’s mobility has been significantly restricted. He is able to walk now, but only for something in the order of 10 metres, effectively from room to room and at a slow pace requiring rests in the course of journeys to the bathroom and elsewhere in the home. He relies upon his wife absolutely. She bathes him, dresses him, undresses him, sets the television and radio for him and cares for him throughout each day and night.

5. The plaintiff’s affidavit supports the conclusion that with the progression of symptoms he has become very introspective. He swears that his life has been totally destroyed. He was not cross-examined to suggest that any of the complaints he made were other than accurate. I should say that the plaintiff impressed me as a witness of truth who exaggerated neither the circumstances that afflict him nor the progress of his disability. The likelihood is that his condition will continue to deteriorate with increased disability and concomitant social and psychological effects.

6. Doing the best I can to do justice between the parties it is my view that a sum of $155,000 is appropriate to award the plaintiff for general damages.

7. The plaintiff has been suffering symptoms since 1990. For the purposes of this case it has been accepted that his death is likely to occur upon the expiration of two years from now. It is true that he has had significant discomfort and concern about his own condition from the time symptoms first presented. The unfortunate fact, however, is that the worst of his progressing condition is ahead of him and likely to last, according to the evidence, something in the order of two years.

8. Accordingly, I think it appropriate to allocate half of his general damages to the past.

9. The plaintiff is now aged 66 years and it has been accepted that he has lost something in the order of sixteen and a half years of his life. Authority constrains a judge to award a modest or conventional sum for loss of expectation of life. In the course of submissions I proposed that an amount of $17,500 was appropriate to compensate the plaintiff for loss of expectation of life. Neither counsel wished to dissuade me from that view.

10. Counsel have agreed that past care should be allowed in the sum of $129,300 and that interest on that amount is $24,000.

11. A calculation has been made on a basis of agreed figures that future care amounts to $139,500. It was submitted by counsel for the defendant that that figure should be discounted on the basis that it was likely that the plaintiff would spend his last days in a nursing home or hospital so that the ordinary costs of care would not be incurred. No cross-examination was directed to the plaintiff on this matter. In his affidavit the plaintiff said in paragraph 60:

I have talked with Fay about what is to occur when I am near the end. We have agreed that Fay will look after me at home with the help of our children and outside nurses when needed. I do not want to end up in a nursing home. I want to stay at home to the end.

12. In the absence of any challenge to that evidence I think it would be inappropriate to conclude that the plaintiff is likely to end his days in a nursing home or hospital. If it be the case that the plaintiff will spend his last days in a hospital or nursing home then they are costs for which the defendant will be liable to reimburse the Dust Diseases Board, as indeed it must reimburse the Dust Diseases Board for all amounts the Board has paid to or on the plaintiff’s behalf. I can see nothing in the evidence which warrants a reduction of the sum of $139,500.

13. Accordingly the plaintiff is entitled to judgment made up as follows:

Provisional damages $155,000
Interest on past general damages $17,050
Loss of expectation of life $17,500
Past care $129,300
Interest on the cost of past care $24,000
Future care $139,500
Making a total of $482,350

14. The defendant will pay the plaintiff’s costs as agreed or assessed and will reimburse the Dust Diseases Board for amounts it has paid to or on behalf of the plaintiff.

15. There will be verdict and judgment for the plaintiff for $482,350.

16. The plaintiff may apply for further damages in respect of any one or more of the following; lung cancer, pleural mesothelioma, peritoneal mesothelioma, asbestos induced carcinoma of the lungs and other organs.

Mr W P Kearns SC instructed by Turner Freeman appeared for the plaintiff.

Mr A C Scotting instructed by Blake Dawson Waldron appeared for the defendant.