Maynard v Wallaby Grip Ltd
[2000] NSWDDT 4
•13 March 2000
(2000) 19 NSWCCR 459
MAYNARD v WALLABY GRIP LTD & ANOTHER
[2000] NSWDDT 4
Dust Diseases Tribunal of New South Wales: Duck J
16 February 2000 (H)
13 March 2000 (J)
Dust Diseases Tribunal - Damages - Measures of damages - Personal services - Relevant considerations - Services required to satisfy plaintiff’s need resulting from defendant’s wrong - Value of services - No scope to include any surcharge - Does not include comforting by spouse during hospitalisation
A.J. Leslie QC, for the plaintiff
A.C. Scotting, for the defendant
Cur adv vult
DUCK J: The plaintiff sues the defendant for damages for negligence. Certain statutory counts are also pleaded but in the event it is probably not necessary to attend to those. He is a man who was born on 6 February 1938. He is now 62. He has worked since he was 15 years old as a telecommunications technician. He has been employed by the PMG as it then was and by those corporate bodies which succeeded it, including Telstra.
His case is that as part of his duties during the years between 1955 and 1980 he had to attend at premises occupied by the defendants for the purpose of maintaining their telephones. His attendance over a 15-year period was regular and during his attendances to perform his duties he was exposed to the inhalation of asbestos dust and fibre.
As it happens when the plaintiff’s evidence dealing with the question of liability had been completed the defendant was asked to indicate what the issues were in the case and Mr Scotting said that the defence was not able to challenge the plaintiff’s evidence as to liability and that what was in issue was basically the question of quantum.
[At [4] - [18] his Honour considered the evidence that established the tortious liability of the defendant (the second defendant was an associated company in liquidation) and the medical evidence that the plaintiff was suffering from mesothelioma. Then referring to a report dated 14 February 2000 by a consultant respiratory physician, Dr Keay Foster, he continued:]
She thought that the plaintiff had a survival time of three to six months when she wrote that letter.
The way in which the illness is expected to develop was dealt with in the doctor’s second letter of the same date with the subheading on it, Report B. It is not necessary to recount all of the details of that prognostication. The doctor observed that when she wrote he was already having difficulty standing and she anticipated that this would be extended to having difficulty in walking around home unassisted. In so saying she was dealing with what she expected to happen in the next one to two months from the time of writing. The doctor said:
Perhaps initially a stick will help and later on a walking frame but he will most likely become virtually chairbound over this period.
At page 2 of the second of the reports she spoke of his need for assistance in going to the toilet and the assistance that he will need in washing and dressing himself, particularly below the waist. By the end of the period with which the doctor was dealing she thought it would be unwise to leave him at home unassisted, largely because of his general weakness and unsteadiness.
The doctor goes on to deal with that period, the period commencing three to four months away. She describes a condition which is likely to worsen and in the last month or two of his life she thought that the plaintiff would become bed-bound. She described the personal needs that he will have in that circumstance. Those needs include assistance with personal hygiene.
[At [23] to [30] his Honour considered matters that were relevant to his assessment of damages under various heads and referred to a schedule of claimed damages. He then continued:]
Other matters in the schedule have excited no protest from the defendant until we get down to an item relating to the provision of personal services for the plaintiff. The cost of providing the services has been dealt with in the report of Heather Tchan. She deals with the plaintiff’s needs in three periods. They are firstly past care, as to which she nominates a period 1 September 1999 to 1 December 1999. It is submitted that that should properly extend backwards to early August 1999 from which time the plaintiff has been too sick to go to work. I think that submission is correct.
The second period is described by the author as “at present”. The report is produced as a result of a home visit on 15 February 2000 and it seems to contemplate a period embracing the date of report. I suppose that means from January through to March of the present year, or until the plaintiff becomes housebound. The third period then is the period during which the plaintiff is housebound and finally, there is the last month of the plaintiff’s life.
Firstly, in the broadest sense, the defendant does not take exception to the material proffered by Mrs Tchan. What has excited the defendant’s forensic interest is a submission by learned counsel for the plaintiff that consistently with a decision of the Court of Appeal in a matter of Baldwin v Lisicic, NSWCA, No. 40456/92, unreported, in which judgment was delivered on 20 April 1993, there ought to be imposed a surcharge on the actual costs because the plaintiff’s wife, who for the most part is meeting his needs, is on call 24 hours a day. It is submitted that this has a commercial value over and above the costs.
It is of assistance I think, to look at the circumstances in which the Court of Appeal discussed this aspect of the case in Baldwin. The parties had provided quantification of the costs of meeting the injured person’s need in that case. The lesser assessment was one of $83,374.40. That was proffered by the plaintiff, who was also the appellant. The defendant’s figure was apparently even higher. The point at issue in that part of the appeal was whether the learned Master was correct in reducing the figure to $50,000, which he did. It was in that context that the Court discussed the submission advanced by the appellant plaintiff, which was to the effect that the fact that the carer was on call 24 hours a day had a commercial value over and above the cost of the services. What the Court did was to allow $75,000, which was a figure approaching what the evidence suggested was the real cost of the care.
Another undercurrent in that case, or so it seems from the judgment, was that there was a question mark about whether the hours in respect of which care was sought were too generous. The Court said that $75,000 was the proper figure for care and acknowledged that the approach by reference exclusively to the cost of hours worked may have underestimated the real need of the appellant to have her husband’s care constantly at hand. I confirm they said it may have.
The submission made in this case is that in light of that decision and in light of the fact that the Court of Appeal increased what the Master had allowed from $50,000 to $75,000, that the decision warrants the imposition of a surcharge on the cost of the provision of services. In the present case, the submission is developed by saying that for parts of the periods with which the Court is now concerned, 20 per cent should go on and later, 40 per cent and in the last period 100 per cent. I think that the guiding authority is that of Van Gervan v Fenton (1992) 175 CLR 327. Firstly the judgment of the Mason CJ, Toohey and McHugh JJ at 338 said this:
In a case such as the present, therefore, it is necessary to determine two questions: (a) what are the services required to satisfy the plaintiff’s need resulting from the defendant’s wrong; (b) what is the value of those services?
If one follows that approach, there is no scope for a surcharge at all. I think what was happening in Baldwin’s case is that the Court of Appeal was considering various matters, but in the context peculiar to that case. With the greatest deference to learned counsel for the plaintiff, it seems to me that the case is not authority for requiring a defendant to pay more than the actual cost of nursing services, or at least if it be so, it does not have application to the facts in this case. Insofar as the claim is formulated for the provision of services in the submission handed to the Court, it seems to me that the surcharge, if I may so describe it, ought to be deleted, but otherwise the amounts claimed might be allowed.
The next matter to be addressed by the plaintiff’s submissions, was the inclusion of an item which suggested that the plaintiff was entitled to damages for the provision of personal services during the two weeks in which he is likely to be in hospital at the end of his life. It is submitted that the evidence of Dr Foster raises the need for his wife to attend beyond simply comforting him to a level of medical necessity. The doctor wrote:
He will need to have about four hours company, to be talked to and to prevent feelings of rejection and isolation in the terminal phase of his illness. He needs to be chatted to, comforted and his needs carefully monitored with regard to pain relief and other unpleasant symptoms.
I was troubled by the submission because of what the Court of Appeal had decided in another case of Nicholson v Nicholson (1994) 35 NSWLR 308 at 323. The case was dealing with the claim under the Motor Accidents Act, but I do not see that that makes any difference. The basis upon which that aspect of that claim failed was, in the words of Kirby P, as follows:
The services performed by the appellant’s sister, which certainly helped improve his level of comfort could not be classified as fulfilling a relevant need, in view of the fact that the appellant was already enjoying full-time hospitalisation.
The argument here, as I apprehend it, is that the relevant need, as described by Dr Foster, in some respect makes the present plaintiff different from the plaintiff in Nicholson v Nicholson. In Van Gervan v Fenton (supra) at 343 in the joint judgment of Deane and Dawson JJ, a passage appears which commences at about 343.6. Without taking the time to set out the whole passage, I go to the bottom of the page where the Justices say this:
In assessing compensatory damages in that context, that is in a stable marital relationship, the ordinary incidents of a particular continuing relationship such as joint activities and companionship cannot, in our view, legitimately be seen as transformed by injury to one spouse into “services” rendered or to be rendered by the other spouse, even if they obviate the need for such services which would otherwise exist.
Not without hesitation, it seems to me that the incident of comforting a sick, indeed dying man, is an incident of the ongoing relationship between them and the defendant should not have to pay for that.
[At [42] to [64] his Honour considered the relevant discount in respect of the damages, entered the verdict and judgment in favour of the plaintiff and made a ruling on an application for indemnity costs not calling for report - Ed.]
Solicitors for the plaintiff: Turner Freeman
Solicitors for the defendant: Middletons Moore & Bevins
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