Martin v Amaca Pty Limited

[2017] NSWDDT 8

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	Martin v Amaca Pty Limited [2017] NSWDDT 8
Hearing dates:	29, 30 June, 13 September 2017
Date of orders:	15 September 2017
Decision date:	15 September 2017
Before:	Judge D. Russell
Decision:	(1)   Judgment for the plaintiff against the defendant for $472,586. (2)   Order the defendant to pay the plaintiff’s costs. (3)   Grant liberty to apply to my Associate if any different costs order is sought by either party.
Catchwords:	DUST DISEASES – exposure - damages
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1944 Civil Liability Act 2002 Dust Diseases Tribunal Act 1989
Cases Cited:	Londos v Amaca Pty Limited [2017] NSWDDT 7
Category:	Principal judgment
Parties:	Karen Martin (plaintiff) Amaca Pty Limited (defendant)
Representation:	Counsel: Mr J. Rush QC (plaintiff) S. Tzouganatos (plaintiff) Mr J. Sheller (defendant)   Solicitors: Turner Freeman (plaintiff) Mills Oakley (defendant)
File Number(s):	DDT 28/2017

Judgment

1. Mr John Leslie Martin suffered from left-sided malignant biphasic mesothelioma. Diagnosis of his condition was not in dispute. The plaintiff was born on 22 November 1955 and died from his disease on 5 July 2017 aged 61 years.

2. The plaintiff sues Amaca Pty Limited alleging exposure to the asbestos cement building products of James Hardie.

3. The only issues in the case are whether or not Mr Martin was exposed to James Hardie products, and if so, damages.

4. The matter was commenced by a Statement of Claim filed on 8 February 2017. The Statement of Particulars was filed on 20 April 2017. The matter was removed from the Claims Resolution Process (CRP) by order of Judge Kearns on 27 June 2017. Mr Martin’s evidence was taken at a bedside court held on 29 June 2017 at Mount Druitt Palliative Care. The hearing continued on 30 June 2017, and matter was stood over for further hearing on 6 July 2017, which was the date requested by the plaintiff. Mr Martin died on 5 July 2017, the day before the proposed resumption of the hearing. On 31 July 2017 Mr Martin’s widow Ms Karen Martin was substituted as the plaintiff and the matter proceeded as an estate claim pursuant to s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944.

Exposure

5. Mr Martin left school in 1971 and obtained work with Murwell Constructions Pty Limited (Murwell) as an apprentice carpenter. He worked for them for about two years. He completed the first two years of his apprenticeship.

6. Murwell Constructions closed down so Mr Martin joined Birbo Constructions (Birbo), where he worked between 1973 and 1974 as an apprentice carpenter.

7. In employment with Murwell and with Birbo Mr Martin had extensive exposure to asbestos cement building products. He had some minor asbestos exposure between 1975 and 1977 with another employer, but did not identify James Hardie product exposure during that period. Between 1977 and 1987 he worked in jobs other than carpentry.

8. Part of Mr Martin’s job at Murwell was to assist in the building of factories which had corrugated asbestos cement roofs. He gave evidence that these roofs were constructed from a product called Super Six. He cut Super Six sheets one at a time using a power saw or an angle grinder. This was very dusty work.

9. He also worked with Hardies compressed asbestos cement sheets which were used in wet area flooring. Again these were cut with a power saw or an angle grinder. It was very dusty work.

10. No masks were worn at Murwell and no warnings were given to him.

11. At Birbo Mr Martin worked with a number of asbestos cement products including: Hardies Shadowline, Hardies Hardiplank, Hardies Log Cabin, Versilux and Tilux. The Shadowline, Hardiplank and Log Cabin were always cut using a power saw which generated much dust. Again, no masks were worn and no warnings were given.

12. In view of the very sensible and proper concessions made by Amaca on liability, the only issue I have to determine is whether Mr Martin was exposed to James Hardie asbestos cement building products.

13. The evidence is all one way. Mr Martin was a tradesman who was familiar with these products and who identified specific James Hardie products by name. Understandably, counsel for Amaca did not cross-examine him to suggest that he had not been so exposed.

14. I find on the balance of probabilities that Mr Martin was exposed to James Hardie asbestos cement building products and that this exposure caused his disease of mesothelioma.

Medical History

15. I make the following findings of fact, based upon my acceptance of Mr Martin as a witness of truth, and based upon the medical evidence in the case.

16. Mr Martin was fit and well until May 2016. He had returned to the profession of carpentry in 1987 and he was working full-time until he became ill in May 2016.

17. Between 1987 and 1992 he worked as a self-employed contract carpenter. Between 1992 and 1997 he worked in partnership with Mr Chris Montgomery. In 1997 he went back to working as a sole trader under the name J L Martin Constructions. He did mainly small jobs, including a fair bit of work for Mr Montgomery.

18. The arrangement with Mr Montgomery ceased in mid-2014 and thereafter Mr Martin worked entirely on his own account. He obtained small carpentry jobs mainly by word of mouth, but also by advertising in the local newspaper. A lot of his work involved the construction of pergolas and decks at suburban homes.

19. Mr Martin’s son Shaun gave evidence that he sometimes worked with this father. He noticed that his father was occasionally short of breath in 2015 and that his work had slowed down.

20. Mr Martin was breathless in late April and early May 2016. On 9 May 2016 he became extremely short of breath. He went to his GP Dr Tessy Abraham. She sent him for a chest x-ray which showed a problem with his left lung. That same day he went to Westmead Hospital and was admitted. A pleural drain was put in place and about 2.3 litres of fluid was removed from the left side of his chest.

21. Mr Martin was admitted to hospital and on 16 May 2016 Dr Desai performed a left-sided video-assisted thoracoscopy with pleural biopsies and a talc pleurodesis.

22. Sometime before discharge from the hospital on 20 May 2016 Mr Martin was informed by Dr Ting, a respiratory specialist, that he probably suffered from mesothelioma. This was later confirmed by analysis of the biopsy material.

23. Dr Ting referred him to an oncologist at Blacktown Hospital Dr Bo Gao. On 31 May 2016 a PET scan was done at Westmead Hospital. Mr Martin saw Dr Desai again on 7 June 2016.

24. Mr Martin first consulted Dr Bo Gao on 14 June 2016. He was advised to start chemotherapy immediately. He commenced this treatment on 24 June 2016 and had two further treatments on 15 July and 5 August 2016.

25. On 19 August 2016 a CT scan showed disease progression. Dr Gao advised a change to a different sort of chemotherapy. Mr Martin was treated with Carboplatin and Gemcitabine on 26 August, 2 September, 15 September and 22 September 2016.

26. He suffered from nausea and terrible fatigue as side-effects of chemotherapy. He was affected by coughing and severe night sweats. His wife had to change the sheets through the night. He had at least three blood transfusions at Blacktown Hospital. He was prescribed Ordine and Lyrica for pain control and help with his coughing.

27. There was a follow-up CT scan on 30 September 2016 and further chemotherapy on 6, 13 and 27 October and 3 November 2016.

28. There was another progress CT scan on 11 November 2016. On 18 November 2016 Dr Gao advised Mr Martin that she was intending to stop chemotherapy and try immunotherapy with Keytruda.

29. Dr Gao started Keytruda treatment on 20 December 2016. On Christmas Eve Mr Martin suffered severe pain and on Christmas Day he had to remain in bed all day, even though his family was visiting him for Christmas. An emergency doctor was called, and Mr Martin then went to Blacktown Hospital. He was give liquid morphine and sent home. His condition continued to deteriorate and he was in the most terrible pain. On 29 December 2016 he went back to Blacktown Hospital and was admitted until 6 January 2017. His pain was gradually brought under control.

30. A second Keytruda infusion was administered on 11 January 2017 and a third on 2 February 2017. There was a follow-up CT scan on 21 February 2017, after which Dr Gao informed Mr Martin that the Keytruda wasn’t working and it would be stopped.

31. Dr Gao referred Mr Martin to a radiation oncologist at Blacktown Hospital Dr Eric Hau. He had radiotherapy on 3, 4, 5, 6 and 7 April 2017. He described the effects as terrible. He couldn’t stop coughing and from time to time he was coughing up blood. After five days of radiation therapy he was told that he would not be administered any more as it was not achieving anything.

32. Since mid-2016 Mr Martin had been seeing Dr Crombie, a palliative care specialist. From mid-May 2017 he saw her about once a fortnight because his condition has worsened. Dr Crombie has been adjusting his medication to try to keep his pain under control.

33. On 18 June 2017 Mr Martin was in severe pain and was taken by Ambulance to Blacktown Hospital. He was discharged later that night still in excruciating pain.

34. On 19 June 2017 Dr Crombie had him admitted to Mount Druitt Palliative Care Unit. There doctors tried to manage his pain and get it under control. A morphine pump was inserted in the left side of his chest.

35. On the weekend of 24 and 25 June 2017 Mr Martin lost feeling in both of his legs from the thigh down. Dr Crombie had seen him on Friday, 23 June 2017 and at that time there was no problem with the legs.

36. A CT scan was done, but these scans focus on bony injuries not soft tissues. Dr Crombie thought from the clinical presentation and from what she could discern on the CT scan, that Mr Martin was then suffering from paraplegia caused by infiltration of the mesothelioma tumour into his spine at the lower thoracic level of T8. This was later confirmed by an MRI.

37. The proceedings were removed from the Claims Resolution Process on 27 June 2017. On 29 June 2017 the Tribunal sat at Mount Druitt Palliative Care Unit and took the evidence of Mr Martin, his wife and Dr Crombie. Because of his paraplegia Mr Martin gave his evidence while reclining in a transportable bed. I had the impression that he did his absolute best to give his evidence, but it was apparent that his focus and recollection was affected by the strong pain medication he was taking.

38. The oral evidence of Dr Crombie brought the medical picture up to date. She said that in her opinion the plaintiff had a tumour infiltrating through the intervertebral foramina into the spinal canal. The condition of paraplegia was irreversible. In view of the debilitated state of Mr Martin there was no question of pursuing aggressive treatment for the paraplegia.

39. Dr Crombie said that she had seen her patient five or six times through the outpatient department at Blacktown Hospital and on each occasion the he had some pain or a pain crisis. Dr Crombie had adjusted his medication and got the pain under control, and then within a week or two he was back with another pain crisis. To Dr Crombie this indicated that the tumour was progressively significantly.

40. The insertion of the narcotic pump resulted in better pain control. However, the paralysis was interfering with the hospital’s ability to discharge the plaintiff home.

41. Dr Crombie said that Mr Martin had no air entry into his left lung and that he now had some disease on the right side. The plaintiff had an indwelling catheter because he could not void urine as a result of his paraplegia. He also had problems with his bowels requiring regular enemas.

42. Dr Crombie said that the tumour was the cause of the plaintiff’s pain. It was pressing on intercostal nerves at multiple levels in his thorax. This is a very difficult type of pain to control.

43. Mr Martin died at 8.30am on 5 July 2017 while still at Mount Druitt Palliative Care Unit.

General Damages

44. Mr Martin was only 61 years old when he died. He was fit and well prior to falling ill with mesothelioma. He was an active man not only at work but around the house. He did a lot of home renovation and maintenance, he assisted with the housework, he did all the gardening and he went fishing and saw his grandchildren as often as he could.

45. He suffered more than many people with mesothelioma in that his pain was extremely hard to control. The type of tumour he had is described in medical reports as particularly aggressive. He had two different kinds of chemotherapy, immunotherapy and radiotherapy, without any apparent benefits. He suffered the side-effects of those treatments. He had several emergency trips to the hospital when his pain became unrelenting. Dr Crombie described Mr Martin as having a high pain threshold. In his presentation as a witness Mr Martin struck me as a very stoic individual. Even so, there were many times when the pain had become too much to bear. Even a specialist as experienced as Dr Crombie had difficulty getting the mix of drugs right to control the pain.

46. Mr Martin developed paraplegia about 10 days before he died. Mr Martin desperately wanted to go home, and that was also the wish of his wife.

47. I take into account the evidence of Professors Clarke, Pavlakis and Boyer in previous cases. That evidence is set out in detail in my judgment in Londos v Amaca Pty Limited [2017] NSWDDT 7 at [41-65]. Professor Boyer gave evidence that improvements in chemotherapy may have, if anything, made matters worse for mesothelioma patients. He said that chemotherapy prolonged the life of these patients, but that just meant that they suffered longer than they would have in the past. Of course, in this case, Mr Martin underwent chemotherapy, immunotherapy and radiotherapy, which produced terrible side effects, but did not get the benefit of living longer.

48. Mr Martin suffered from the symptoms of mesothelioma for 14 months before he died. This period was shorter than many mesothelioma patients, but because of the aggressive nature of his tumour and the inability of doctors to effectively control his pain, his suffering was more intense during that period.

49. The general damages in this case must necessarily be at the higher end of the scale. The factors which lead me to the figure I propose to award are set out above. I find that the plaintiff is entitled to an award of general damages in the amount of $350,000.

Interest on Past General Damages

50. I award interest on $350,000 at 2% for 14 months being $8,167. I award interest on $350,000 at 4% for 2.5 months being $2,917. The total award will be $11,084.

Loss of Expectation of Life

51. On the medium life expectancy table a 61 year old male has a life expectancy of 25 years. I award the conventional sum of $25,000.

Past Economic Loss

52. Mr Martin had for decades been a qualified carpenter. He started as an apprentice in 1971 and obtained his tradesman status in 1974. He worked between 1971 and 1977 as a carpenter. In 1987 he resumed work as a self-employed contract carpenter. In 1992 he went into partnership with another carpenter. In 1997 he went back to being a sole trader under the name J L Martin Constructions. He still did a fair bit of work for his old partner Mr Montgomery.

53. In mid-2014 he parted ways with Mr Montgomery and started finding his own work. The jobs were mainly small carpentry tasks such as making pergolas and decks. He obtained work by word-of-mouth. In his oral evidence he described himself as being busy enough to keep going and happy with the amount of work he was doing.

54. Mr Martin gave evidence that he planned to work until his early 70s, pay off his house and retire. He enjoyed the work and said that he wanted to work that long because he needed to do something. Mr Martin had a financial incentive to work. In spite of being able to pay off a lump sum from his mortgage after receiving an inheritance from the estate of his late mother, at the date of trial Mr Martin still had a mortgage of $300,000.

55. I accept Mr Martin in his evidence that he intended to work until his early 70s. He enjoyed the work and he had a financial incentive to keep working. Indeed, to pay off his mortgage, he would have had to kept working. However damages for the future loss of earning capacity are not available in this estate claim: s 2(a)(ii) Law Reform (Miscellaneous Provisions) Act 1944.

56. Both the plaintiff and the defendant tendered reports from forensic accountants. Both experts quite properly conceded that their reports could only be used as a guide, and were based upon assumptions that may or may not be made out on the evidence.

57. In the case of the plaintiff’s expert Mr Thompson, he had been asked to assume that if Mr Martin could not earn enough income as a carpenter, he would have gone back onto the general labour market where he could have earned the average earned by most carpenters.

58. Since Mr Martin was content with the level of income he earned, and since his income was disclosed in his tax returns, I have made my calculations from the income earned since mid-2014 when Mr Martin went back out on his own.

59. In the 2014/2015 tax year Mr Martin earned business income of $94,333. Materials and supplies cost $40,974, leaving a gross profit of $53,359. This is a gross profit percentage of 57%. He had overheads of $33,391, leaving a nett profit (i.e. a taxable income) of $19,968.

60. In the 2015/2016 tax year his income was much lower. I do not regard that year as representative of his earning capacity. For a start, he could not work during May and June after his diagnosis. Mr Thompson acknowledged that the income was dramatically lower in the 2015/2016 tax year, but he had no explanation for that apart from the illness.

61. There were some anomalies in the overheads in the 2014/2015 tax year. Accounting fees were $4,635. As Mr Thompson said, this was disproportionate to the income earned. It was a much higher figure than any other year, although there is no explanation for it. I propose to make my calculations by reducing the accounting fees, on a notional basis, down to about $1,000. Interest paid by the business in 2015 was $9,537. Again, Mr Thompson said that this was far too high on any rational approach to running a business of this size. The explanation provided to him was that Mr Martin had run up a credit card debt of between $90,000 and $100,000, presumably for business expenses. He was therefore paying a high rate of interest.

62. This interest expense was reduced in the 2016 tax year to $2,275. It was in that tax year that Mr Martin received the inheritance from his mother’s estate. Part was used to pay down the mortgage ($116,000) and the balance was used to pay off the credit card debt. Thus in future years there would have been no interest expense to the business.

63. Taking a broad brush approach, a reduction in accountancy fees and the elimination of an interest expense for the business would have raised the 2015 nett profit from $19,968 to $30,000. The tax on that amount at current rates is $2,242, leaving potential nett income from the carpentry business at $27,558 after tax, which equates to $530 nett per week. That is the figure which I finds represents the past loss of earning capacity.

64. I find that Mr Martin was unable to work since he was diagnosed on 9 May 2016. From 9 May 2016 to 5 July 2017 is 60 weeks.

65. Thus for the past the loss is: $530 x 60 weeks = $31,800.

66. The plaintiff is entitled to interest on past economic loss. At court rates this is $1,197.

67. The total theoretical figure for past economic loss is: $31,800 + $1,197 = $32,997.

68. From the figure calculated for past economic loss will have to be deducted past benefits received from the Dust Diseases Authority (DDA).

69. Those benefits were agreed at $44,327.

70. Deduction of the DDA benefits from the damages for past economic loss wipes out that head of damages. DDA benefits are not to be deducted from the other heads of damage – s 12D Dust Diseases Tribunal Act 1989.

Out-of-Pocket Expenses

71. Mr Martin was accepted as 100% disabled by the Dust Diseases Authority on 29 August 2016, backdated to 9 May 2016. His medical expenses have been paid by the Authority, including the cost of Keytruda treatment.

72. The Authority also provided assistance with care of the outside of the family home, limited to lawnmowing.

73. Thus there are no damages for out-of-pocket expenses.

Gratuitous Attendant Care Services

74. Section 15A of the Civil Liability Act 2002 applies to the determination of civil liability for damages for gratuitous attendant care services in proceedings brought under s 11 of the Dust Diseases Tribunal Act 1989.

75. By s 15A(4) the phrase “attendant care services” as defined in s 15(1) applies under s 15A. So does the phrase “gratuitous attendant care services”.

76. Section 15(1) provides:

“In this section:

‘Attendant Care Services’ means any of the following:

(a) services of a domestic nature,

(b) services related to nursing,

(c) services that aim to alleviate the consequences of an injury.

‘Gratuitous Attendance Care Services’ means attendant care services:

(a) that have been or are to be provided by another person to a claimant, and

(b) for which the claimant has not paid or is not liable to pay.”

77. Section 15A(2) provides that the hourly rate prescribed by s 15(5) applies to the calculation of damages, although the restriction in s 15 as to a minimum number of hours does not apply – s 15A(2).

78. Mr Martin needed care and assistance since his diagnosis in May 2016. That was largely provided by his wife the plaintiff. She swore an affidavit on 29 June 2017 and gave oral evidence that same day at Mount Druitt Hospital. I accept her as a witness of truth.

79. The plaintiff tendered a report dated 21 June 2017 by a registered occupational therapist Ms Joanne Oates. She met with Mr Martin and his wife at their home on 5 May 2017. She took a full history from the couple regarding the assistance which the wife had given to her husband since his diagnosis.

80. Ms Oates assessed, at the appropriate hourly rate, the value of past gratuitous care provided up to 5 May 2017 to Mr Martin at $51,958. Rather unusually, the plaintiff’s senior counsel disavowed this figure, and the defendant’s counsel embraced it.

81. The plaintiff’s written submissions (PX 15) contained a schedule calculating damages in accordance with the evidence of the plaintiff regarding care at different times which she provided to her late husband. I have already indicated that I accept the plaintiff as a witness of truth. All of the periods set out in the schedule appear to accurately reflect the evidence of the plaintiff, bar one. The second last period covers 18 April 2017, when the plaintiff gave up work to care for her husband, to 18 June 2017 when Mr Martin was admitted to Blacktown Hospital and then to Mt Druitt Hospital.

82. For this period the claim is for 24 hours per day for 62 days at $30.15 per hour. This is said to be for: “active and passive care of the deceased (helping to keep the deceased comfortable, preparing all meals, assisting with all medications during the day and night and supervising him)”. The schedule refers to paragraph 38 of the affidavit of the plaintiff, where this statement has been made in the most broad terms.

83. The evidence of the plaintiff was taken during the bedside hearing at Mt Druitt Hospital, where the primary aim was to take the evidence of Mr Martin. No detail was given about the actual tasks done by the plaintiff for her husband during that period of two months. I propose to allow 12 hours per day for 62 days at $30.15 per hour which is a total of $22,431.60. I acknowledge that the plaintiff gave up work on 18 April 2017 to care for her husband. However, in the 10 days prior to giving up work, being 8 April 2017 to 17 April 2017, when the plaintiff was giving “active and passive care of the deceased following radiotherapy”, the plaintiff was providing 5 hours of such care per day. I do not accept that the care on 18 April 2017 jumped from 5 hours a day to 24 hours per day. Nevertheless, as the deceased entered his final months of life, the care would necessarily have increased. Doing the best I can, I have selected 12 hours per day for the period 18 April 2017 to 18 June 2017.

84. For every other period set out in Schedule B to the plaintiff’s written submissions, I find that the evidence of the plaintiff supports the claim made for each discrete period in the Schedule. True it is that that results in a figure higher than that contained in the report of Ms Oates. However, it was pointed out in submissions that the report of Ms Oates attempted to average or “smooth” the care out over a long period of time, whereas the evidence of the plaintiff gives precise detail, which I have accepted, of the level of care from time to time during different periods of her husband’s illness and decline.

85. In the end result there will be an award for gratuitous domestic assistance, after taking into account my reduction to 12 hours per day for the period 18 April 2017 to 18 June 2017, of $80,345.86. At first blush this may seem a high award for this head of damages, as it only covers a period of 14 months. However, Mr Martin had so much intensive treatment, which affected him terribly, that he needed extra care and attention over and above the usual attendance given to mesothelioma sufferers. Further, I have taken into account the evidence of Professors Pavlakis and Boyer as to the therapeutic benefits of attendance by family members upon patients suffering with mesothelioma.

86. The plaintiff is entitled to interest on past damages for gratuitous attendant care services. Interest at court rates on half the amount which I have awarded of $80,345, to take into account that such loss has arisen progressively over the last 14 months, is $5,272.

87. That interest is calculated as follows:

Start Date	End Date	Days	Rate	Amount Per Day	Total
09/May/2016	30/Jun/2016	53	6%	$13.1713	$698.08
01/Jul/2016	31/Dec/2016	184	5.75%	$12.6225	$2322.54
01/Jan/2017	30/Jun/2017	181	5.5%	$12.1068	$2191.33
01/Jul/2017	05/Jul/2017	5	5.5%	$12.1068	$60.53
Total	423	$5272.48

88. The plaintiff is also entitled to interest on the full amount of $80,345.86 for the period 5 July 2017 to 15 September 2017, being $884.

89. The total interest award will be: $5,272 + $884 = $6,156.

Conclusion

90. I award the following heads of damage:

General damages	$350,000
Interest on past general damages	$11,084
Loss of expectation of life	$25,000
Economic loss	Nil
Gratuitous attendant care services	$80,346
Interest on gratuitous attendant care services	$6,156
TOTAL	$472,586

91. My orders are:

1. Judgment for the plaintiff against the defendant for $472,586.

2. Order the defendant to pay the plaintiff’s costs.

3. Grant liberty to apply to my Associate if any different costs order is sought by either party.

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Decision last updated: 15 September 2017