Mathwin v Amaca Pty Ltd

[2004] NSWDDT 49

Dust Diseases Tribunal

of New South Wales

CITATION:	Mathwin v Amaca Pty Ltd [2004] NSWDDT 49
PARTIES:	Stephen Mathwin Amaca Pty Ltd
MATTER NUMBER(S):	123 of 2004
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	17/06/04 & 17/11/04
DATE OF JUDGMENT:	12/07/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D G Letcher, QC instructed by Turner Freeman. FOR DEFENDANT: Ms W Strathdee instructed by Holman Webb.

JUDGMENT:

1. John Mathwin was born on 20 June 1919 in Harrogate, Yorkshire in the United Kingdom and died on 18 June 2004 two days short of his 85th birthday in Adelaide South Australia. His death was caused by the disease of mesothelioma contracted as a result of his inhaling asbestos fibres liberated from asbestos cement building products manufactured by the defendant, upon which he worked.

2. Stephen Paul Mathwin, legal personal representative of Mr Mathwin, claims damages from Amaca Pty Ltd in respect of his death. Liability is not in issue.

General Damages

3. Entitlement to sue in respect of general damages notwithstanding the death of the plaintiff is preserved by s 3 of the Survival of Causes of Action Act 1940 (SA).

4. Mr Mathwin enjoyed a long and distinguished career in the public service. He was elected to the South Australian Parliament as the member for Glenelg in 1970 and served until his retirement in 1985. He was Mayor of the City of Brighton from 1965 to 1969 and Deputy Mayor of Holdfast Bay from 1997 to 2001. He was an alderman and councillor between 1960 and 2003 in Brighton and later Holdfast Bay. He was an active member of the Glenelg Rotary Club between 1964 and 1992.

5. Mr Mathwin appears to have retired from most of his public commitments by the beginning of 2004 although he was until March 2004 President of the Meals on Wheels Brighton branch. Before being struck down by his illness Mr Mathwin was in good health and enjoyed walking on the beach, gardening, and the company of his 14 grandchildren.

6. On 28 February 2004 while on holiday in Darwin Mr Mathwin felt the onset of pain in the right side of his chest. He was in hospital until 2 March 2004 and one and a half litres of fluid were drained from his lung. Returning to Adelaide Mr Mathwin was further hospitalised between 25 March 2004 and 5 April 2004. A thoroscopy performed on 29 March 2004 confirmed his diagnosis. After discharge from hospital Mr Mathwin remained at home until his death suffering from chest pain, breathlessness, loss of taste and appetite, sadness and frustration.

7. Dr A P Jersmann examined Mr Mathwin on 11 May 2004 and recorded his current symptoms as altered taste with a significant loss of appetite and ongoing weight loss, shortness of breath particularly with exercise, very much reduced exercise tolerance and a constant dull ache in the right lateral chest wall which became intermittently very severe at night.

8. Ms Anne Morgan, an occupational therapist, attended upon Mr Mathwin on 25 May 2004. Mr Mathwin reported to her that his difficulties had been worse in the last month due to dizziness and fatigue. She recorded that he had lost his appetite, was depressed and suffered from disturbed sleep, he had some difficulty swallowing solid foods and he could walk around for 5 minutes at a time as a maximum. He had a dull ache in the right side of his chest intermittently and suffered constipation. He used a walking stick when out in the community and had some difficulty lying on his right side.

9. Mr Mathwin gave evidence before me on 17 June 2004 and at that time he was obviously in extremis. He was bedbound and died the next day.

10. Given his advanced years, (he had only another five years in prospect), and the relative brevity and extent of his suffering when contrasted with the most extreme cases which come before this Tribunal I assess general damages in the sum of $120,000. Interest in the sum of $2,605.

11. Loss of expectation of life has been agreed at $5,000 and out of pocket expenses agreed at $10,753.85.

Griffiths v Kerkemeyer

12. Mr Letcher claimed for the plaintiff the sum of $30,961 in accordance with a report prepared by Ms Anne Morgan. Ms Strathdee for the defendant concedes $15,000. For reasons which are apparent from the transcript of the addresses of counsel and discussion with the Bench I allow $20,096.

13. The plaintiff is entitled to damages then as follows:

General damages $120,000.

Interest $2,605.

Loss of expectation of life $5,000.

Out of pocket expenses $10,753.85.

Griffiths v Kerkemeyer $20,096.

Total $158,454.85.

I enter judgment for the plaintiff in that sum.

14. I will hear the paries on costs.

Mr D G Letcher QC instructed by Turner Freeman appeared for the Plaintiff

Ms W Strathdee instructed by Holman Webb appeared for the Defendant