Mosley v the Broken Hill Proprietary Co Ltd No. Scgrg-97-217 Judgment No. S6522

[1998] SASC 6522

MOSLEY v THE BROKEN HILL PTY CO LTD

CIVIL

LANDER J

A claim for damages for personal injuries by an employee against his employer.

The plaintiff was born on 29 January 1953 in England.  He migrated with his family to Australia in about 1966.  Shortly after arriving in Australia his father took up employment with BHP at Whyalla.

The plaintiff did his secondary schooling in Whyalla and left school to become an electrical apprentice commencing that apprenticeship in about May or June of 1969, when he was just over sixteen years of age.

He left that apprenticeship after suffering an electric shock and in 1970 commenced employment as an apprentice boilermaker/welder for BHP. 

He was employed by BHP between 1970 and 1973, from approximately mid 1974 until 1976, and from 1978 until 1986 in circumstances where he alleged he was exposed to asbestos.  He has continued to be employed with BHP ever since 1986.

He commenced these proceedings on 11 November 1994.  He claimed that during the period of his employment he was exposed to and inhaled asbestos.  In particular he claimed, in the period February 1970 to February 1971, that he suffered that exposure whilst working as an apprentice boilermaker/welder in the apprentice training shop.  Next he claimed that he worked as a boilermaker/welder in the engine rooms and other parts of various ships in 1972 and 1973 and during that period came into contact with asbestos.  Finally he claimed that when he recommenced work for the defendant in 1978 and particularly during the period between 1978 and 1980 he was further exposed to asbestos, which he inhaled.  The plaintiff sought an extension of time within which to bring these proceedings pursuant to s48 of the Limitations Act.

The defendant filed a defence denying liability to the plaintiff and in that defence denied the plaintiff’s claim seriatim. The defendant denied that the plaintiff was entitled to an extension of time.  The defendant continued to deny liability until the commencement of this trial.

When the plaintiff’s counsel, Mr Possingham, opened these proceedings he drew the attention of the Court to the plaintiff’s pleading.  The plaintiff not only sought compensatory damages but also sought aggravated and exemplary damages.  He asserted that the conduct of the defendant in denying liability of itself gave rise to an award of both aggravated and exemplary damages.  It was pointed out to Mr Possingham that if the plaintiff was entitled to an award of damages for aggravated or exemplary damages no particulars had been given of the conduct of the defendant which was said to give rise to the claim for the aggravated and exemplary damages.  Later during his opening he particularised the circumstances which he said would give rise to an award of aggravated and exemplary damages in addition to ordinary compensatory damages.

After the plaintiff opened I asked counsel for the defendant, Mr Phelps, to outline his client’s case because, as I pointed out to him, I was not able to discern from the pleading exactly what the defence was.

Mr Phelps accepted at that time that the plaintiff was suffering a lung disease of some type which was caused by exposure to asbestos.          I pointed out to Mr Phelps that he was facing an allegation that the plaintiff had suffered increased injury and consequential loss and damage as a result of his client denying liability.  It was the plaintiff’s case that the continuing denial of liability and the conduct of the plaintiff had caused or exacerbated a psychological reaction.

During Mr Phelp’s preliminary opening, if I can put it that way, I asked him whether I could understand his case to be restricted to investigating the plaintiff’s case without putting forward any positive case at all.  He accepted that that was the case as pleaded in defence to the plaintiff’s claim.

The plaintiff commenced his evidence later that day and was led in relation to his employment at BHP in 1970/71.  On the next morning Mr Possingham sought, without objection, to interpose Doctor Rounsefell.  After Doctor Rounsefell concluded giving his evidence the plaintiff was recalled to continue his evidence.  Shortly after he was recalled the defendant sought a short adjournment.

Upon the resumption of the hearing Mr Phelps on behalf of the defendant admitted liability upon the following basis:

1.The admission of liability was limited to the period of the plaintiff’s employment with the defendant in the defendant’s shipyards at Whyalla between 1972 and 1973.

2.Notwithstanding the plaintiff regularly worked in other areas of the defendant’s premises during the course of his employment it was agreed between the parties that the whole of the plaintiff’s exposure to asbestos during his employment with the defendant was to be regarded as having occurred whilst he was working in the defendant’s shipyards at Whyalla between 1972 and 1973.

3.The defendant admitted that the plaintiff’s claim was brought within the three year time limit prescribed by s36 of the Limitations Of Actions Act or alternatively the plaintiff was entitled to an extension of time pursuant to s48 of the Limitations Of Actions Act.

4.The defendant agreed to pay the plaintiff’s costs and disbursements to be taxed, if not agreed, pursuant to the Supreme Court Scale of Costs on a party and party basis of and incidental to the case on liability.

At the same time I was advised that the plaintiff abandoned his claim for aggravated and exemplary damages as pleaded in the statement of claim.

It was further agreed that the defendant could have leave to amend its defence in relation to its pleas in connection with the damages alleged to have been suffered by the plaintiff.  It is not necessary for the purpose of these reasons to refer to those amendments which were allowed.

Thereafter the plaintiff’s claim continued as a claim for damages for personal injury, loss and damage, devoid of any claim for aggravated or exemplary damages arising out of personal injury caused to the plaintiff by the defendant between 1972 and 1973. 

There being no objection I will make an order pursuant to s48 of the Limitations Of Actions Act extending the time within which to bring these proceedings to 11 November 1994.

Both parties accepted that whilst the plaintiff has suffered personal injury since late 1992 and early 1993 he has so far suffered no economic loss as a result of that personal injury.  Since 1992/93 the plaintiff has undergone considerable medical investigation and has undergone surgery.  As a consequence of this and because of his injuries generally the plaintiff has lost time from work at BHP and has thereby suffered a loss of earning capacity to the date of trial.  It was agreed that BHP has recompensed him for all of the time lost so that there are no actual loss of earnings.  It was also agreed that BHP had met the whole of the plaintiff’s medical expenses to the date of trial.  I have assumed that BHP met the obligations in relation to the medical expenses and paid the plaintiff his weekly payments by reason of its obligations under the Workers Compensation Legislation.  In the end it does not matter why and how BHP met those obligations because the parties agreed that the plaintiff, obviously with the exception of pain and suffering to the date of trial, had been fully indemnified in relation to any losses to the date of trial.

The plaintiff’s claim for damages therefore was for pain and suffering to the date of trial and for future pain and suffering, the cost of future medical expenses and loss of future earning capacity.  The plaintiff did not seek any damages under any other head of damage and in particular did not seek any damages for any voluntary services provided to him by his wife or any other person.

The plaintiff, whose presentation was always appropriate gave his evidence, with one exception, matter of factly, reasonably and honestly.  I accept his evidence except in relation to that one matter.  Before I deal with that matter I should mention that at one point I warned the plaintiff about his behaviour in giving evidence.  That was after an outburst directed to three BHP employees who were instructing Mr Phelps.  He described them as “bastards” who had admitted at trial what “they should have frigging well admitted to two years ago.”

I think that outburst was genuine.  I think that Mr Mosely has a very low opinion of the compensation section at BHP and that he was moved to say so in the way that he did.

The one matter where I do not accept his evidence is that contained in re-examination.  I will deal with that topic in more detail later.  The plaintiff in re-examination attempted to withdraw evidence he had given in cross examination.  He did so after his evidence had been adjourned over lunch so that his legal advisers might take instructions from him in relation to re-examination.  In re-examination his demeanour was quite different to his presentation in cross examination.  I believe that his evidence in re-examination was given because he believed some things that he said in cross examination might adversely affect the extent of his damages.  I do not accept his evidence in re-examination.  I do not believe that evidence was true.  Otherwise I generally accept the plaintiff’s evidence.

The plaintiff commenced his employment with BHP as an apprentice boilermaker/welder.  He interrupted his employment with the defendant and sought work in Victoria in 1973/74.  He resumed employment again in 1974.  The plaintiff has steadily improved his position with the company and in 1980 he was asked to join the staff of the company.  In that year he became the Production Planning Officer and in 1987 the Welding Practices Officer.  In 1992 he became the Acting Foreman of Production Planning at Whyalla. In that last position he had eight staff officers reporting directly to him.  In about mid June of 1992 he commenced work with the Marketing Department in which he presently remains.

His resume which was tendered shows that the plaintiff has undertaken a number of educational courses with TAFE for the purpose of improving himself.

It is my opinion that by the middle of 1992 the plaintiff had shown himself to be a valued employee of BHP.  He had shown considerable drive and had been rewarded for that drive by promotion through the ranks of the company such that by that time he had achieved a relatively senior position on the staff. 

Prior to the end of 1992 the plaintiff had also demonstrated considerable sporting prowess, in particular as a soccer player.  It was his soccer skills which had taken him to Victoria in 1973/74 where he played first division soccer.  When he returned to Whyalla in 1974 he continued to play soccer and in 1992 was still a regular soccer player albeit in the amateur competition.  In 1992 he was playing for West Lands Amateurs (over thirty-fives).

As well as playing soccer the plaintiff took regular exercise by running four to five kilometres every morning for the purpose of keeping himself fit.

Notwithstanding the plaintiff’s keen interest in sport and running the plaintiff smoked cigarettes, and prior to the end of 1992 he said he smoked at least twenty cigarettes a day.  It is probable, and I will refer to Doctor Lee’s evidence in relation to this, that he smoked more than that because by 1995 he showed evidence of having contracted emphysema.  Emphysema is a disease of the lungs which affects lung function and which is unrelated to any exposure to asbestos and has been caused, in the case of this plaintiff, by smoking cigarettes.  It is unlikely that he would have contracted emphysema smoking only twenty cigarettes a day.

In late 1992 the plaintiff was obliged to travel to Brisbane in his employment.  Whilst in Brisbane he woke in the middle of the night with severe chest pain.  The pain was so bad that he thought he was having a heart attack.  He flew back to Whyalla the next day and made an appointment to see his local general practitioner, Doctor Baker.  Doctor Baker referred him to a radiologist for x-rays of his chest and then later sent him to Dr Tolstoshev, a physician in Whyalla.

Dr Tolstoshev wrote to the defendant’s medical officer, Doctor Caples, who in turn referred the plaintiff to Doctor Antic, the Director of the Department of Thoracic Medicine at the Royal Adelaide Hospital.  However Doctor Antic was unavailable and the plaintiff consulted Doctor Holmes, a Consultant Physician with the Department of Thoracic Medicine Chest Clinic.

The plaintiff called three medical practitioners: Dr Holmes, a thoracic physician, Dr Rounsefell, an anaesthetist; and Dr Flynn, a psychiatrist.  The defendant also called three medical practitioners:  Dr Antic and Dr Lee, thoracic physicians and Dr Blakemore, a psychiatrist.  All of the medical practitioners were a help in the resolution of the issues in this matter.  In most cases the medical practitioners’ opinions were to the same effect.  In some cases their opinions differed only in degree.  Dr Rounsefell’s evidence was not contradicted and I accept his evidence.  I accept Dr Holmes’ evidence in relation to his observations of the plaintiff, his diagnosis and treatment given to the plaintiff.  In respect of the plaintiff’s prognosis there was some difference between the opinions of all the thoracic physicians.  I prefer the evidence of Dr Antic not only because of his experience but also because the evidence of Dr Lee, who is also very experienced, tended to support Dr Antic’s evidence rather than Dr Holmes.  The difference between the opinions is only as to degree and there was probably only a difference in their opinions because the forensic exercise required them to express more precise opinions than they would have preferred.

In respect of the psychiatrists I prefer the evidence of Dr Blakemore.  I think his evidence as to the future more closely represents the evidence of the plaintiff.  But again there was not much difference between the opinions expressed by the two psychiatrists.

Doctor Holmes examined the plaintiff and the x-rays which had been provided.  He also organised for a CT scan.  Radiological examinations showed that there were bilateral pleural changes with pleural plaques on the left lung and more extensive pleural changes on the right lung including possible pleural effusions.  The CT scan suggested the possibility of some minor early interstitial lung changes in the right base. 

In a report of 30 March 1993 to Doctor Caples he wrote:

“Obviously at this stage, it is difficult to say whether or not the right sided pleural changes, in particular, are anything more sinister then (sic) the sequelae of a benign asbestos effusion or just a (sic) asbestos related pleural plaques, I think a benign cause is the most likely.”

Doctor Holmes’ view was that the plaintiff should be treated conservatively and his progress monitored.

The plaintiff’s evidence was that he became anxious about his health and I accept that evidence.  I think since 1992 there is no doubt that the plaintiff has been anxious about his health.  That anxiety itself has caused further problems to which I will later refer.

The plaintiff tried to resume playing soccer in 1993 but decided he was not well enough.  He also attempted to referee in a casual match but was unable to keep up with the game.  However he was able to keep exercising.  He told Doctor Holmes that he continued to run at least up until June 1993 but experienced a shortness of breath, although he put that down to his own lack of fitness.

In September 1993 the plaintiff became unwell again.  He again went to see his local general practitioner, Doctor Baker, who referred him to a Doctor Chan, who practises in Whyalla, for a CT scan.

Doctor Chan stopped the CT scan midway through its process and injected some fluid into the plaintiff.  The CT scan was then repeated.  Doctor Chan then had a conversation with the plaintiff and the plaintiff returned three hours later to obtain the CT scan and the report.  The report, which was addressed to his general practitioner, was opened by the plaintiff.

The report contained the following:

“The irregular scarring and atelectasis suggested in the lingula in the previous scans has increased in extent and there is now a solid element suggesting a mass about 3-4 cm in size in the upper part of this opacity, based on the pleura at the site of the pleural thickening or plaque.  The lower part of this lesion shows small air spaces and below this the lingula is collapsed adjacent to the cardiac margin.  The pleural fluid is displaced from anterior posterior on turning the patient indicating free pleural fluid.  On the left side the pleural plaque remains unchanged and the left lung appears clear.  No mediastinal lymph node lesions are visible.

CONCLUSION:- The rapid increase in the mass and fluid since the previous scans is suspicious of a developing pulmonary carcinoma or possibly synovioma.”

The plaintiff said that he was devastated when he read that report.  He thought he had lung cancer.  He drove around for ten minutes trying to work out how he was going to tell his wife and his children.  He then went home and spoke by telephone to his brother-in-law who is a doctor.  His brother-in-law confirmed that pulmonary carcinoma meant lung cancer.  The next day he went to see Doctor Baker who told him he had “to get himself down to Adelaide” to see Doctor Holmes.

The radiologist report was dated 12 November 1993 and the plaintiff saw Doctor Holmes on 22 November 1993.

I have no doubt that the plaintiff is truthful in his evidence of his reaction to reading that report.  The report clearly indicates, at least to a layman, a real risk of lung cancer.  I have no doubt that he was devastated and that he believed that he was likely to die as a result of his exposure to asbestos. 

On 22 November 1993 the plaintiff saw Doctor Holmes.  Doctor Holmes believed the increase in the opacity and the pleural fluid required further investigation and he arranged for the plaintiff to have a thoracoscopy and a bronchoscopy a few days later.

The thoracoscopy showed pleural plaques on the left side and a dense lung mass attached to the pleural surface.  The lung mass was unable to be biopsied at thoracoscopy.  However a fine needle aspiration and trucut biopsy showed that the mass was fibrous tissue and inflamatory cells in keeping with a “rounded atelectasis”.  A rounded atelectasis is a well known complication of asbestos related pleural disease.

Doctor Holmes did not believe that there was any point in pursuing the opacity even though there was some remote chance that there was malignancy.  He tried to reassure the plaintiff.  However I accept that the plaintiff continued to be most anxious about his health. 

On 26 November 1993 the plaintiff stopped smoking and has not smoked cigarettes since that time.

The plaintiff returned home at Christmas time feeling quite unwell.  He continued to suffer pain for which he needed to take Panadeine Forte.  After Christmas he still felt unwell so he rang the Chest Clinic again.  There is no doubt in my opinion that the plaintiff was not reassured by Doctor Holmes’ opinion that the dense mass was unlikely to be malignant.  He continued to worry that perhaps the underlying cause of his illness was lung cancer.  I accept the plaintiff’s evidence that over Christmas he continued to be concerned about that and that was the reason for contacting the chest clinic early in January 1994.

Doctor Holmes was unavailable in January 1994 and the plaintiff saw Doctor Antic who as I have already said is the Director of Thoracic Medicine at the Chest Clinic at the Department of Thoracic Medicine at the Royal Adelaide Hospital.  He spoke to the plaintiff and his wife and advised them that in the past it had been difficult on occasions, even with thoracoscopy and pleural procedures, to diagnose mesothelioma without an open thoracotomy. 

After discussion with Mr and Mrs Mosley, he left it for them to make a decision as to whether or not the plaintiff would undergo a thoracotomy.  The plaintiff was not keen to undergo further surgery but his wife believed it was in his interests to undergo the further investigation.  Eventually because of his concerns about the state of his health he agreed to submit to a further operation.  The plaintiff underwent an open thoracotomy and pleural and lung biopsy followed by a pleurodesis of the right pleural space. 

A thoracotomy of the right lung requires a very long incision commencing from just to the right of the middle of the back around to the middle of the chest.  In Mr Mosley’s case it has left a long and unsightly scar.

The thoracotomy showed no evidence of malignancy but there was pathological evidence of pleural plaques, which in the opinion of Doctor Holmes was certainly caused by asbestos, as well as a pleural effusion on the right lung which was again certainly caused by asbestos exposure in the past.  Doctor Holmes also believed there was an area of entrapped lung on the right which was also due to the pleural inflammation caused by his previous occupational asbestos exposure.

In the opinion of Dr Holmes, Mr Mosley’s illness was that of asbestos related pleural disease. 

The thoracotomy was performed for the purpose of carrying out a pleural and lung biopsy to exclude malignancy in the form of lung cancer or mesothelioma.  Both were excluded.  The pleurodesis of the right pleural space was carried out so as to prevent further lung inflammation and therefore further diffuse pleural thickening and to prevent pleural inflammation in that area.

The plaintiff claimed that after the operation he suffered, as he described it, unbelievable pain; pain like he had never suffered before in his life.  He was treated with morphine whilst in hospital and discharged after six days.  When he was discharged he felt shocking.  He developed a staphylococcus infection in the surgical wound, and the wound burst open and excreted material on a regular basis.  He had to take medication to control the infection.  The infection increased the pain.  When he returned home because of the infection, he needed to go to the Whyalla Hospital for dressings.  Later his wife dressed the wound every four hours. The infection took four to six weeks to clear up.  He had to take Panadeine Forte to control the pain.  He was bedridden for two months. 

His wife gave evidence on his behalf.  Mrs Mosley was an excellent witness.  She gave her evidence in a clear and straightforward way.  There was no indication of embellishment or exaggeration in her evidence nor did she attempt to argue the plaintiff’s case.  She did not seek to lay blame on any person in relation to any of the matters arising out of the plaintiff’s illness.  I accept her evidence in all respects.  I believe her evidence to be an accurate account of the plaintiff’s pre-illness health, their relationship, the plaintiff’s reaction and behaviour after the initial diagnosis and the effect on their relationship.  Mr Phelps did not seek to cross examine Mrs Mosley and her evidence remained unchallenged.  I think the decision not to cross examine her was, with respect, right.  Her evidence was given in such a reasoned and balanced way that it was unlikely that cross examination would have affected her evidence in the slightest.

She said that when the plaintiff returned to Whyalla after the thoracotomy her husband appeared to be suffering a good deal of pain.  He suffered further pain as a result of the infection.  He spent a lot of time in bed.  She believed his mood changed for the better when he learned the result of the thoracotomy and that the biopsy of the mass in the right lung had disclosed no malignancy.

He was off work for about four months returning to work in about the middle of 1994 in the Marketing Division at a time when that division was undergoing structural changes.  As a result of those structural changes a number of additions were made to the staff and the plaintiff was moved from his office into an open space area. I think it is right to say that the plaintiff resented the changes on the restructuring and particularly resented the loss of his office and having to join other staff members in the open space area.  I think perhaps the plaintiff now views that as part of BHP’s attitude toward him and indicative of discrimination against him.  I am not quite certain that he did at the time.  I am sure that if he does view that as part of a process of discrimination against him he is wrong.

Prior to the thoracotomy the plaintiff’s mood was one of anxiety and concern about his health.  The thoracotomy relieved him of the immediate anxiety of any malignancy but not of concerns that he might develop lung cancer or mesothelioma in the future.  The thoracotomy had the complication of the wound infection and severe pain and general debilitation.

The plaintiff began to drink alcohol to excess prior to the thoracotomy but his drinking increased after it.  Indeed his drinking increased all through the period 1993 to May 1996 when ultimately his wife left him. 

I accept the plaintiff’s evidence and that of his wife that after the thoracotomy his drinking increased.  I accept Mrs Mosley’s evidence that he was often out drinking at nights and he would return home quite intoxicated.  She said he returned home “written off”.  I believe that in the early stages the drinking to excess was a reaction to his anxiety and concerns about his health and prior to the thoracotomy his concern that he was suffering either lung cancer or mesothelioma.  I believe that after undergoing the thoracotomy in early 1994 that he drank to excess because of the pain he was suffering and because of concerns that he might die prematurely from lung cancer or mesothelioma.

After November 1994 I believe there was a further factor influencing his drinking and that was the defendant’s denial of liability to the plaintiff’s claim and the consequential anxiety about these proceedings.

Whilst the plaintiff continued to suffer pain and discomfort arising out of the lung disease and the thoracotomy he was able to resume full time work in about the middle of 1994 and continue in his employment throughout that year.  In November 1994 he issued these proceedings claiming damages for the damage caused to his lungs by his exposure to asbestos in the periods to which I have referred.

On 19 December 1994 the defendant filed its defence denying that it had been guilty of negligence or any breach of contract; opposing the plaintiff’s application for an extension of time within which to bring the proceedings; not admitting most of the particulars given by the plaintiff in relation to his damages; denying that the plaintiff had suffered any emotional upset including depression; and denying that the plaintiff had experienced chronic pain, lethargy and difficulty in coping with the normal activities of life including his relationship with his wife and children.

An episode occurred in December 1994 which caused further upset to the plaintiff.  On 13 December 1994 the defendant wrote to Doctor Mark Holmes in the following terms:

“The abovenamed former employee of this Company was recently examined by you in respect of an asbestos related lung condition.”

The plaintiff was incensed by that letter which he saw as a deliberate action on the part of BHP in relation to his employment.  He sought an explanation from his employer as to why it would have written in terms of a former employee.  He was not satisfied by an apology given in writing by the Manager Human Resources and the Workers Compensation Co-ordinator.  Of course that apology came three days after the employer filed a defence denying that the plaintiff had suffered the damages to which I have referred.

By late December 1994 Doctor Holmes had diagnosed the plaintiff as becoming increasingly depressed and angry over his illness and as having heightened anxiety about possible symptoms which could be related to his asbestos related pleural and lung disease.  Doctor Holmes noted that the plaintiff was drinking heavily which was causing stress in his marriage and in his work.  At that time Doctor Holmes referred the plaintiff to Doctor Flynn, a psychiatrist. 

The plaintiff’s physical condition had not deteriorated to this point of time although the pain of which he had complained subsequent to the thoracotomy had not diminished in any way.  Doctor Holmes believed that the pain which he was suffering was unrelated to his lung or pleural disease and more likely related to the previous operation but did not believe the pain to be a progressing or ongoing problem.

Doctor Flynn saw Mr Mosley first on 22 February 1995 and reported the following:

“My impression was that Mr Mosley does have a significant depressive state which developed secondary to his respiratory disease and thyracotomy (sic).  The circumstances concerning his medical condition and his relationship with his employer are factors which are probably working to exacerbate his condition.  The adversarial nature of litigation which seems likely to ensue may make it more difficult for him to make a speedy recovery from this psychiatric state.”

The plaintiff’s physical condition did not deteriorate throughout 1995, but nor did it improve.  He continued to consult Doctor Flynn in connection with his depression.

On 21 November 1995 Doctor Flynn reported to Mr Mosley’s solicitors in the following terms:

“OPINION  

I initially assessed Mr Mosley as having a Major Depressive Disorder which developed secondary to his respiratory disease and thoracotomy.  When reviewed in May 1995 and with the benefit of an adequate trial of the antidepressant medication Fluoxetine, Mr Mosley reported that he was much less irritable, depressed and withdrawn than he had previously been.  He felt more relaxed and his level of energy had improved.  He resumed interest in his soccer club as team manager and his wife commented that his mood and demeanor (sic) were considerably improved.  Mr Mosley regained some enthusiasm for his work and he was beginning to feel more confident of his personal abilities.  His memory and concentration had not completely returned to normal.

When I reviewed Mr Mosley on the 2nd November 1995 he had stopped taking his antidepressant medication at the end of August.  Subsequently he had felt more grumpy, irritable and short tempered.  He outlined to me a number of personal worries.  These included:

1.Intermittent pain and tightness in his chest.  Mr Mosley stated that he had expected this to have abated by this time.

2.Mr Mosley was worried about the long term outcome of his illness.  He still felt like a “walking time bomb”.

3.Mr Mosley was uncomfortable about being involved in continuing litigation.  He was angry that BHP were denying liability with regards to his asbestos exposure.

4.Mr Mosley was worried about persistent sleep problems.

5.Mr Mosley often recollected aspects of his relationship with one of his former workmates who had died.

6.Mr Mosley had persistent troubles with concentration and feeling committed to work.

Specific psychiatric enquiry at that time revealed that Mr Mosley’s mood state was more depressed, especially in the evening.  He felt panicky when under pressure at work and he had again begun to lose energy.  He was not as enthusiastic about regular walks which he had been taking with his daughter.  His libido was significantly reduced and he was still indecisive about matters which he would have previously handled assertively.  He had once more started to drink alcohol in binges as a way to help forget about the pressures that he was under.  He felt it would be easier to leave work but he considered this impossible because of the principle that was involved.  His only medication at the time of my last review was Panadeine for pain relief.

My overall impression of Mr Mosley’s psychiatric state is that he has had an upsurge in symptoms attributable to a Major Depressive Disorder since the cessation of his Fluoxetine treatment.  I have encouraged him to recommence antidepressant treatment which he should continue for the foreseeable future.

I expect that Mr Mosley’s Major Depressive Disorder will respond, at least partially, to the reinstitution of antidepressant treatment.  The major perpetuating features with regards to his psychiatric illness are his health state and work related factors.  While these problems remain, it seems likely that his health will be an ongoing concern to him and he is more likely to suffer features of depression as they currently present.

It is difficult to precisely estimate Mr Mosley’s longer term prognosis.  While it is conceivable that his depressive symptoms will abate within the next six months and require no further treatment, I consider it more likely that he will be troubled by symptoms of depression and will need ongoing treatment involving antidepressant medication and, possibly, psychiatric consultations for some years into the future.  His relative isolation from conventional psychiatric services while he is resident in Whyalla will limit his accessibility to regular psychiatric treatment.  My best estimate of the likely cost of psychiatric treatment for Mr Mosley in the future is $4,000.”

It appears clear enough from that opinion that Mr Mosley suffered a major depressive disorder as a result of a reaction to the disease in his lungs caused by exposure to asbestos.  It is also clear enough that that depressive order made him anxious and panicky.  The depressive disorder interfered with his social relationships, and his relationship with his wife.  As a result of that depressive disorder he started drinking alcohol in binges.

I think it also a reasonable inference that Mr Mosley’s depressive illness was partly if not wholly controlled by medication but in the absence of medication the depressive illness would return.

In May 1996 the plaintiff and his wife separated.

The plaintiff and his wife have three children.  The youngest one, Charlotte, who in May 1996 was about eight years of age, began to exhibit behavioural changes shortly before that time.  She became disrespectful and cheeky to her father and on occasion she slapped him.  Mrs Mosley said that by May 1996 she felt she could not get through to her husband any longer.  She felt he desperately needed help but that she was unable to provide it.  She said there was nothing she could say or do which appeared to help him.  She thought that she might be able to shock him back into reality and leaving him would either make or break him.

The night before she left the plaintiff came home “in a really disgusting state”.  She packed her bags and the next day she left with the youngest daughter.  The eldest daughter was then living in Adelaide.  The second daughter Claire stayed with her father.  Mrs Mosley’s leaving did have an instant therapeutic result.  He immediately stopped drinking and has not drunk since.  In fact he now drinks significantly less than he did before he was diagnosed with this illness.

Mrs Mosley’s evidence was:

“HIS HONOUR
         Q     How long after you left did he stop drinking?

A      Straight away.

Q     That night, as it were.

AYes.  According to Claire, I checked up ‘Where’s dad, is dad home, yes’.  He didn’t go out.  Yes, he didn’t drink at all after that.

QTo your observations, is that still the case.

AYes.  As far as I know, only one or two drinks have ever passed his lips since then.

QSo he’s reverted to the type of drinking that he had before all this arose, or even less.

AHe’s drinking much less now.

Qhe’s drinking less than he ever did.

AYes.

XN

QIs it the situation that to your perception he’s virtually on the wagon, so to speak.

AYes.

QThat’s actually quite a marked change from his previous situation where he was, if you like, a sort of normal range of social drinker.

AYes, dramatic.

I accept Mrs Mosley’s evidence in relation to this matter.

I find that the plaintiff’s drinking problems between 1993 and 1996 were caused by his psychological reaction to his illness which was caused by his employer.

I find that the plaintiff and his wife separated as a result of his excessive drinking which was brought about by a psychological reaction to the illness caused by exposure to asbestos which in turn was caused by his employer.

In September 1996 the plaintiff was referred to the pain clinic at the Royal Adelaide Hospital.  At that time he complained of two different problems.  The  first was a deep aching pain in his chest and the second was a sharper pain originating in an area over the thoracotomy scar.

Serial local anaesthetic blocks were administered for the purpose of treating the more acute, sharp pain and consistent, good responses were obtained.  The serial local anaesthetic blocks did not relieve the deeper aching pain.

In November 1996 a longer term procedure was used using cryoanalgesic equipment and this also gave him a good response from the more acute pain.  Again it did not relieve with the deeper aching pain.

The sharper pain, said Doctor Rounsefell in his evidence, is a pain often seen following a thoracotomy and it occurs because the nerve is damaged in the thoracotomy process.  The effect of the local anaesthetic blocks is to numb the nerve and so prevent the pain.

The cryoanalgesia treatment is done by a small three millimetre probe which is inserted to touch the intercostal nerve.  The procedure is to literally freeze the nerve.  This produces a block of the nerve that can last for some weeks or months.  Sometimes the pain comes back and sometimes it does not.  The plaintiff has had cryoanalgesia treatments which have given him pain relief for three to four months.  Doctor Rounsefell’s opinion was that it is still possible that he may get a longer response duration and so he would attempt the cryoanalgesia treatment two more times.

If the cryoanalgesia treatment does not lead to permanent relief in respect of the sharp pain, Doctor Rounsefell said that the plaintiff could submit to a procedure which includes a division of the nerve.  Of course a division of the nerve is a permanent procedure which cannot be reversed.  It does have side effects in some people.  It will leave an area of numbness but with some people there is a possibility of a slow onset of a very unpleasant nerve sensation including a tingling or burning sensation.  With some people it is simply a different type of pain and there is little relief. 

Cryoanalgesia treatment costs $150 per visit for the treatment together with consultation fees.  Doctor Rounsefell suggested that if he continued to have two cryoanalgesia treatments per year it would cost in the order of $720 per year.  On the other hand, in the event that the cryoanalgesia treatment was not giving the plaintiff relief and he was to have surgery then the cost of surgery, which would occur only once, would be in the order of $1100 to $1200.

In respect of the deeper aching pain in the chest of which the plaintiff complains, Doctor Rounsefell said that the source of that pain was from the lining of the lung and he described it as visceral pain.

That pain can be treated by taking Panadeine Forte but that treatment can itself cause side effects.  Panadeine Forte is one of the opiate group of analgesics and can lead to a dependency upon the drug.  Other side effects include blunting of sensibility and some interference with concentration and some alteration in function.

Doctor Rounsefell said that there is a possibility the deep seated pain could get worse.  In the event that it did get much worse it could be treated by long acting morphine compounds and if looking at long term treatment there could be an implantation of devices to deliver drugs such as morphine in the spinal cord area.  Such a device is called a morphine pump.

Doctor Rounsefell thought there was a psychological or emotional component to the pain which Mr Mosley was experiencing and that any alleviation of his psychiatric or psychological sequelae will make it easier for Mr Mosley to cope with the pain.  However he was of the opinion that the pain would continue.

I accept the opinion of Doctor Rounsefell and I accept the assumptions upon which the opinions are based.

Doctor Rounsefell has assumed, and I find it to be the fact, that the plaintiff suffers from two sources of pain.  The first is the sharp pain which is related to nerve damage caused during the thoracotomy and the second is the deep seated pain which is visceral in nature.

I am satisfied that at present the sharp pain can be managed by  cryoanalgesia treatment but there is a risk that, if that treatment ceases to have effect, the plaintiff may have to undergo a division of the nerve which is the source of the pain.  If he undergoes that treatment there is a further risk that he will continue to suffer pain but of a different nature and kind.

I also accept the plaintiff’s evidence that he suffers deep seated pain, which is visceral in nature, and can only be treated, at present, by the use of Panadeine Forte.  I therefore consider that it is likely that he will need to treat that pain by taking Panadeine Forte for the rest of his life.  In assessing his damages for pain and suffering regard must be had to the fact that continuing treatment by Panadeine Forte for the whole of his life could lead to the side effects mentioned in Doctor Rounsefell’s evidence.  The cost of the Panadeine Forte must be allowed for in the assessment of future medical expenses.  I do not think it likely that there will need to be an implantation of any device to deliver him morphine.

I therefore conclude that the plaintiff will continue to suffer pain which can be treated but not alleviated.

The plaintiff’s physical condition has not changed much since 1996. Doctor Holmes wrote in his report of 12 November 1997:

“Mr Mosley’s ongoing problems predominantly relate to his asbestos related pleural disease which has caused ongoing right anterior chest pain.  This has required treatment with pain relief medication in the form of Panadeine Forte, up to eight daily as well as injections into the nerves in that area performed by Dr Rounsefell to try to reduce the pain.  Neither of these measures have been entirely satisfactory and Mr Mosley is left with pain.”

He went on to say:

“Mr Mosley therefore has chronic right anterior chest pain related to his asbestos related pleural disease and also the operative intervention required for both diagnosis of this disorder and treatment to prevent reaccumulation of fluid around the right lung.  The length of time since his operation and the continued need for pain relief medication and also procedures to try to dull the pain in his right chest indicate that the prognosis for complete resolution of this problem is poor.”

The plaintiff is left therefore with the pain to which I have referred.  He also has a loss of lung function which was described by Doctor Holmes:

“If you go from March of 1993 to September 1997, if you look at the FEV1, which is one of the main measures we use for measuring airways obstruction, there has been a fall of approximately 450 mls.  If you then put that to February of 1995, the fall since February 1995 has been 130 mls.  So there have been a 300 ml, or thereabouts, fall in lung function between when I first saw him and February of 1995.  Certainly he has had an operation in that time which may have had some effect on lung function.  The accepted fall in lung function for a non smoker is approximately 30 ml per year in age, and the fall in the smoker is less predictable.  It can be in a susceptible smoker 200 or 300 mls a year, but generally 100 mls a year.  The point I am trying to make is that Mr Mosley gave up smoking in 1994 and it is generally thought that the excess reduction in lung function associated with smoke plateaus once you have given up, although you don’t regain what you have lost.  It is thought you go then on to the usual level of reduction in function.  He certainly has had 130 ml loss of lung function over the last two years, which is probably double what would be expected, which raises at least some concern in my mind that some of his lung function loss may be due to asbestos related:-”

He was asked:

“QWhat is his present capacity running at in terms of a percentage.

AAgain, his FEV1, which is probably the best measure of lung function, is 62 for his age and sex.

QAgain you would ascribe some of that to his smoking history, correct.

AYes.

QAs I understand it, it is considered some concern that also some of that reduction is due to his asbestos related condition.

AI think that certainly would be a concern, and I think also he seems to have plateaued in loss of lung function as his pleural disease has plateaued.

QDoes that suggest you have a connection between the two.

A I certainly think that that is a concern.”

He later described the plaintiff as having a sixty three per cent capacity compared with a person who is neither exposed to asbestos or smoking and that most of the thirty seven per cent loss could be ascribed to smoking.  He offered the opinion that seventy five per cent of the loss of lung function is due to the plaintiff having been a smoker.  To put it another way if the plaintiff had not smoked then it could be said that ten per cent of his present lung function could be due to the asbestos related disease.

The plaintiff therefore presently has a reduced lung function and lung capacity, most of it is due to his smoking but some of which is due to asbestos exposure. 

His emotional condition has not improved since Doctor Flynn reported in November 1995.

Doctor Flynn’s wrote in his report of 12 September 1997:

“The relapsing nature of Mr Mosley’s Major Depressive Disorder over a long period of time in the context of additional stress brought about by his psychosocial circumstances or by a deterioration in his health points to the strong likelihood of him experiencing further depressive episodes at a later time should he once again be exposed to similarly stressful situations.  Nevertheless his mood state and functioning at present is stable and, although I consider it advisable for him to remain on an adequate dose of an antidepressant medication, he may manage on a small dose of a traditional tricyclic treatment given to him by the Pain Clinic.”

Dealing with the cost of future treatment Doctor Holmes went on to say:

“On the balance of probabilities, taking into account his past history and the longitudinal natural history of Major Depressive Disorder, I consider that Mr Mosley will require psychiatric treatment in the future.  Based on the expectation of sixteen psychiatric consultations at $150 per consultation and $600 medication costs I estimate the total cost of future treatment to be $3,000.”

Doctor Flynn’s evidence was that there were various factors causing the plaintiff’s major depression.  The overriding reason for the problems which he has with his mood is his concern about his physical health.  That concern has been complicated by his relationship with his employer and more recently his symptoms of depression have been exacerbated because of the breakdown of the relationship with his wife.

In Doctor Flynn’s opinion the plaintiff’s mood has also been influenced by the existence of the litigation and the finalisation of that litigation will be to his benefit by removing one of the stressors acting upon him.

In relation to his physical health it was Doctor Flynn’s opinion that any deterioration in his physical health is likely to adversely affect his mental condition.  So also the presence of pain will maintain his depression.

However, in Doctor Flynn’s opinion the predominant overriding factor in Mr Mosley’s condition is his own concern about his physical health.

Doctor Flynn said that having regard to the poor relationship between the plaintiff and BHP since at least 1994 there is a real risk that he will not continue in his employment.  The negative feelings which the plaintiff harvest towards his employer may continue to affect his relationship.  The defendant’s admission of liability and the alleviation of the plaintiff from the risk of costs in relation to the litigation against his employer are positive factors which would influence the plaintiff to stay at work.  Those signs of reconciliation were a positive sign but Doctor Flynn said that one had to be cautious of short term expressions of goodwill towards the defendant.

Doctor Flynn said that the plaintiff would need to undergo further psychiatric treatment in the future.  His opinion was that he would need something like sixteen future psychiatric consultations at $150 per consultation and would need to expend something in the order of $600 on medication and that the total cost of future treatment in relation to his depressive illness would be in the order of $3,000.

Doctor Blakemore was more positive about the plaintiff’s prognosis.  In particular he believed that Mr Mosley’s psychiatric condition will not prevent Mr Mosley from performing his normal employment duties and provided he continued with his present treatment regime he should continue to improve gradually with time and eventually not require psychiatric treatment, although some further treatment was necessary.  In respect of future treatment he agreed with Dr Flynn.

Dr Blakemore was provided with Mr Mosley’s evidence before he gave his own evidence.  His attention was directed to a passage, to which I shall refer in more detail later, where the plaintiff expressed a very positive reaction to the defendant’s admission of liability.  Dr Blakemore said that the plaintiff’s expressed attitude increased his chances of being able to remain with BHP.  Moreover the cessation of the litigation will further increase his chances of staying with the defendant.

Dr Blakemore was asked about the plaintiff’s relationship with his wife and the prospects of a reconciliation and the effect of a reconsideration:

“QYou were made aware that Mr Mosley’s marriage had broken down.

AYes.

QDuring May of 1996, do you understand that to have been the separation time.

AYes.

QDid Mr Mosley express any opinions to you or did he express any attitudes to you in relation to reconciliation of the marriage.

AYes, he was hopeful of there being a reconciliation of the marriage.

QWere you aware that, in fact, Mr Mosley has taken steps to sell the former matrimonial home, his own home, for the purpose of moving in with his estranged wife.

AYes.

QDid he express any attitude as to whether or not that was a strong indication or otherwise of his intentions in relation to the reconciliation of the marriage.

AI wasn’t aware of his selling the house to move in with Mrs Mosley when I saw him.  I think I have subsequently become aware of that.  I knew the house was being sold, so I can’t answer that one.

QWhat effect would a reconciliation of the marriage have upon Mr Mosley’s psychiatric state.

AThat would be only helpful.”

For reasons I will later express I believe that the plaintiff and his wife will successfully reconcile.  Such a reconciliation can only have a positive effect upon the plaintiff.  His wife will be a support to him, particularly in his relationship with BHP.

Dr Blakemore was also asked about the possibility of re-occurrence of depression:

“QDr Flynn in his evidence expresses the opinion that he believes that there may be a recurrence or a redeveloping of depression again in the future for no particular reason.  Do you have an opinion on that item.

AThat’s always a possibility, but really Mr Mosley has coped very well.  Even with all this going on, he hasn’t missed much time from work, he’s kept going.  There have been really huge causes for the depression.  I think the balance of probabilities is that in the future there wouldn’t be recurrences of the depression for no reason, particularly if he is prepared to continue taking medication for some time to help him get over it.”

I accept that opinion.  In respect of his future working it has to be remembered that even when the plaintiff was subject to all of the stressors which have acted upon him namely: concern over his health; fear of early death; pain; the litigation; the refusal of BHP to admit liability; fear of losing everything in legal costs; excessive drinking; and the deterioration of his relationship with his wife and child; he was able to function at work and was recognised by his immediate supervisors as a valued employee.  With the removal of a number of these stressors his ability to exercise his earning capacity must be increased.  I will return to that.

Whilst I prefer Dr Blakemore’s evidence, in the end there is little between the psychiatrists except by way of emphasis.

I think both recognised that the defendant’s admission of liability and the plaintiff’s reaction to that were positive signs in relation to the plaintiff’s perception of the defendant.  Both believe that the plaintiff will require some further psychiatric treatment at a cost in the order of $3,000.  Both believe that there are a number of stressors acting upon him of the kind identified.  Removal of those stressors is likely to alleviate the plaintiff’s emotional problems. 

One of the stressors which operated on the plaintiff' ceased to exist when he stopped drinking in May 1996.  The plaintiff and his wife will reconcile which will remove another.  His relationship with Charlotte is bound to improve by that reconciliation.  The finalisation of the litigation will ipso facto remove another stressor.

Other stressors were addressed during the trial.  The plaintiff’s reaction to the defendant’s admission of liability is important.

There is no doubt that right up until trial the plaintiff’s harboured a resentment and a distrust of the defendant.  That has arisen out of the defendant’s failure to admit liability to the plaintiff and a perception by the plaintiff of being discriminated against because he brought these proceedings.

As to the first factor the defendant did not seek to put any evidence before the Court as to why it defended the action until trial and then admitted liability.  Of course the defendant is entitled to defend itself against any claims which are brought against it.  It is not obliged to give any reasons for why it has defended itself.  One can speculate as to why it might have filed the defence it did which simply denied the plaintiff’s claim and did not seek to put forward any positive assertions upon which it would base its defence.  No doubt there are other factors which the defendant has to take into account apart from these proceedings.  The defendant might have defended these proceedings to discourage other proceedings from being brought.  It might have defended these proceedings because it honestly believed it was not liable.  It might have defended these proceedings because it thought the plaintiff was not able to establish a liability on the part of the defendant.  In the end I do not think I should speculate as to why it has defended these proceedings.  It is probably enough to say that it was entitled to do so.  However in defending itself it had to take into account the evidence which was contained in the medical report to which it had access.  That evidence suggested that its continued denial of liability was causing an exacerbation of the plaintiff’s psychiatric and psychological sequelae.

The admission of liability made by the defendant became a matter of significance in this trial.  I asked the plaintiff: 

“Q.... If it was the case in the future that when this litigation is completed, that the compensation section thereafter have no influence on your further career at BHP, and if it was the case that the influence in relation to your further career at BHP comes through your marketing department and above it, would that affect your view of your employer.

A...... I think my view of my employer has changed over the last week with them sort of saying, holding their hand up eventually, that has been a big factor in this matter all along.

Q..... Dealing with my question for the minute, if it was the case that the compensation section had no influence, after the end of this litigation on your future career, and that the influence of your career came through your marketing department and above, would that affect your view of your employer.

A...... I think it would have a positive effect.

Q..... Is it right from what you have just said, just taking up what you did say, that BHP’s admission of liability on Monday, has had a positive effect on your impression of your employer.

A...... Quite right, yes.

Q..... A significant positive effect.

A...... Yes.  I would say so.

Q..... Has it been the fact that their failure to admit liability has been the most significant factor affecting your view of your employer since March 1993 when you were told they refused to admit liability.

A...... I believe so.

Q..... There is an expression used often these days of reconciliation, has that point been arrived at now, having regard to what’s been done by BHP this week in admitting liability.

A...... I believe so.  It’s a very good starting point to try and re-build that bridge, re-building a trust I suppose. 

Q..... Do you feel significantly better by the fact of what they have done.

A...... Yes, it’s relieved the financial burden that had been placed on myself and my family as an individual fighting a huge organisation, yes.

Q..... That was another concern you have had up until now, the possibility of having to pay a very large sum of legal costs. 

A...... Potentially lose all the equity in my house too, yes.

Q..... And you were relieved of that burden on Tuesday when BHP agreed to pay your costs.

A...... Yes, I was.”

He went on to say that the fear of having to pay a substantial amount by way of costs has been a matter of concern to him and his wife and a matter of marital discord and a particular worry within the relationship.  He said that the worry about having to pay costs has left him unable to sleep at night.  He said that he believed that having been relieved of the risk of paying a substantial amount of costs left him more able to focus on building a bridge with his wife again and getting the relationship back on the road.

He also made it clear at or about that same point that he and his wife were making every effort to reconcile.  They had sold their house so that he could move in with his wife and he expected that a reconciliation would take place. 

I had the opportunity and the advantage of viewing the plaintiff when he gave that evidence.  His demeanour after the admission of liability was quite different to that which had been evident prior to the admission of liability.  There was no doubt he was still angry with BHP for having put him through the rigours of having to prove that BHP was negligent and in breach of contract and he expressed that anger on one occasion in quite positive terms.  I have already referred to that evidence.

However I believe that as his evidence unfolded that the plaintiff exhibited a more positive attitude towards his employer.

The plaintiff’s evidence finished shortly before lunch time on the fourth day.  The plaintiff’s counsel sought an adjournment so that he might take instructions in relation to re-examination.  The matter resumed immediately after lunch.

He was asked:

“Q.... You told his Honour before lunch that you felt very hopeful about reconciliation.  Were those factors that made you feel hopeful.

A...... I was hopeful, but I’ve still got lingering doubts about the sincerity, if that’s the case.  I think what happens in a month’s time if I go back to work and the effect of living in a company town.  I stated earlier before lunch I get on well with David McNeil.  He’s a recent addition to my department, but I am sort of wondering what’s happening at higher levels.  Have I hit the glass ceiling and is there a black mark there because I have sort of blown the whistle in this instance, you know.  That’s a real concern.

Q..... Was it a relief to you that liability was admitted in this matter yesterday.

A...... Yes, it was.

Q..... Rather on Tuesday I think.

A...... Yes, it was.

Q..... Small relief or a big relief.

A...... I think it was a huge relief.  I could be bankrupt over all this.  They are a big corporate body; to them it’s just another bloody court case, it’s just another number.

Q..... Does the admission of liability, if you like, solve your problem with BHP do you think or completely remedy your feelings with BHP.

A...... No, I don’t think I will ever forgive them.

Q..... What do you mean ‘ever forgive them’; for what.

A...... They knew before 1970 that there was serious problems with using asbestos and they chose to do nothing about it and I never started work for them until 1970 onwards and probably ’72 was the time I was badly affected by the stuff, so how can you ever forgive that.

Q..... Do you see yourself getting over that feeling that you won’t be able to forgive them.

A...... I don’t know, I really don’t know.”

His demeanour in re-examination changed quite markedly.  Whilst in cross examination he had been alert, responsive and even enthusiastic, in re-examination, he appeared dejected.

Apart from the passage to which I have referred he said that he has not got enthusiasm or passion for doing the job which he is presently doing and he was not able to say whether the admission of liability would restore that passion.

The re-examination continued:

“Q.... Let’s take a concrete example.  If your condition should worsen, for example, such that you need to have another operation like the thoracotomy or a thoracotomy operation in regards to adverse elements in your left lung, would you think that would affect your views about your employer.

A...... Undoubtedly.

Q..... In what way.

A...... I would be more cheesed off than what I already am.

Q..... Is it the situation that say particularly over the last two years that you have tended to fluctuate about feeling happy and sad, that your emotions go up and down.

A...... Without a question I think.

Q..... Is it the situation that you can feel quite good one day, then feel bad the next day for no particular good reason.

A...... That’s true.

HIS HONOUR

Q..... And before and after lunch.

A...... Depending on how things are put, I have still got an underlying concern that I believe that these people are only being nice because we are in here today.  They haven’t demonstrated that to me over the whole time that I have been real sick, and I have got a real problem handling that.  It’s like I said before, I don’t know what effect this is having on my kids back in Whyalla.  The statement has been made up there in Whyalla ‘Don’t worry about Mosley coming back to work’.  That’s got back to me, so obviously that’s floating around BHP in Whyalla.  I certainly haven’t said that, so it concerns me where is that type of information coming from.”

I do not believe the plaintiff’s evidence in re-examination.  I believe that his evidence in re-examination arose out of a concern that, perhaps, in cross examination he had given answers which would adversely affect the award of damages for loss of future earning capacity.  I believe that both his demeanour and his evidence in re-examination were contrived for the purpose of influencing me to reach the conclusion that his reaction to the admission of liability was less favourable than he had expressed in his cross examination.  I reject his evidence in re-examination.  I will act upon his evidence in cross examination in making my findings.

I believe that the plaintiff’s Major Depressive Disorder will resolve over a period of three years.  The finalisation of this litigation, the improved relationship with his employer and a reconciliation between the plaintiff and his wife will assist in the resolution of his mental condition.  I think he will need the treatment which both psychiatrists said he would need over that period.  I will allow the sum of $3,000 in the allowance for future medical expenses for medication and treatment over the next three years.

I believe that if his physical condition worsened and he was to suffer further diffuse pleural thickening, asbestosis, mesothelioma or lung cancer the condition would re-occur. 

For the reasons which I will express I think the probabilities are that he will not suffer any of these complications.  But the possibility must be allowed for.

It is necessary to make some findings in relation to his future physical condition because that is the predominant factor which will affect his mental condition in the future. 

The plaintiff has lived with his daughter Claire since May 1996.  He has had daily contact with his wife and youngest daughter Charlotte.  He has given up drinking and is now leading an orderly life.  He has also continued at work during the whole of that period although he is presently on long service leave.

The plaintiff’s physical condition has not changed much since his separation.  His present physical condition does not prevent him from working nor, in my opinion, if it remains as it does, will it in the future.  Moreover if his physical condition remains as it is, the probabilities are in my opinion that his mental condition will improve with the course of treatment suggested by both psychiatrists and will not of itself or in conjunction with his physical condition prevent the plaintiff from working in the future.

It will only be, in my opinion, if the plaintiff’s physical condition worsens to an appreciable degree that he will not be able to exercise his earning capacity into the future.

There are four possible complications which the plaintiff might suffer in the future.  He might suffer further pleural effusions and diffuse pleural thickening, asbestosis, mesothelioma or lung cancer.  There is a remote possibility that he could suffer more than one of those four separate conditions.

The thoracic physicians were not agreed on the particular likelihood of the contraction of each of those four complications.  However, they were all agreed that the probabilities were that he would suffer none of the complications.

However, the plaintiff is entitled to be compensated for the possibility that he might suffer one or more of the complications and it is necessary therefore to consider the evidence of the three physicians.

I think all of the physicians were agreed that the plaintiff would not suffer any further diffuse pleural thickening in respect of the right lung.  The pleurodesis which the plaintiff underwent will prevent that happening.

Doctor Holmes believed that there is a fifty per cent chance that he might contract diffuse pleural thickening in respect of the left lung.  He was of the opinion that there was no clinical evidence of asbestosis but that there was a ten per cent chance that the plaintiff might contract that disease.  The fact that the plaintiff was a smoker put the plaintiff at two to five times the risk of contracting asbestosis as a non smoker who had suffered the same exposure.

He believed that the plaintiff had a one to two per cent risk of developing mesothelioma.  He also thought the plaintiff was at an increased risk of developing lung cancer and if he was to contract asbestosis an increased chance of developing that disease.

He thought it unlikely that the plaintiff would remain in the work force beyond five or ten years after the trial.

Doctor Antic believed that having regard to the stability which has been observed over the last two years or so it was unlikely that the diffuse pleural thickening would worsen.  The fact that the plaintiff has some pleural plaques on his left lung is no indication that he will develop diffuse pleural thickening on that lung.  He thought the possibility of the disease reactivating itself and thereby occasioning further diffuse pleural thickening was less than ten per cent.  He rated the possibility of pleural thickening on the left lung as small.  He disagreed with Doctor Holmes in relation to the possibility of the plaintiff developing asbestosis.  He said that the prospect of the plaintiff developing asbestosis was small.  He thought that if the plaintiff was to develop asbestosis there would already be radiological signs of that disease.

He believed that there was a two to three per cent chance that the plaintiff would develop mesothelioma by reason of the exposure to the asbestos.

In relation to the prospects of the plaintiff developing lung cancer, he believed that the plaintiff’s self exposure to smoking had made him ten times more at risk of developing lung cancer than someone who had never smoked.  The exposure to asbestos had increased the prospects of the plaintiff developing lung cancer from ten times to eleven times.

I suggested to him that that meant an increase of ten per cent in his chances of suffering lung cancer.  Doctor Antic said, as I understand his evidence, that he did not mean to express that opinion.  If he were a non smoker Doctor Antic said his chances of having lung cancer would be one or two times more than the normal population.

Doctor Antic was examined about the reduction in lung function and he offered the opinion that it was possible to explain the plaintiff’s loss in lung function by reason of his smoking. 

Doctor Lee is a very experienced thoracic physician practising in Sydney.  He is currently a member of the Medical Authority Of The Dust Diseases Board Of New South Wales which deals with diseases including silicosis and asbestos related conditions, as well as a number of other less common conditions.  Since 1971 he has had cause to review and consider hundreds of claims from workers in relation to asbestos related conditions.  His evidence was that the risk of the plaintiff developing further diffuse pleural thickening on the right lung was minimal.  In relation to the left lung the risk is exactly the same as existed in relation to the right lung.  Most people, however, do not contract the disease on both lungs and in his opinion it was more probable than not it would not occur, although there was some chance that it might occur.

He thought the plaintiff had some risk of developing asbestosis and when it was put to him that Doctor Holmes had offered the opinion that his risk was ten per cent, Doctor Lee said that it was very speculative in his opinion but that there was an immeasurable risk and he was not able to give a figure.

He agreed that if the plaintiff did contract asbestosis then that would put him at an increased risk for lung cancer of the order of fifteen to twenty per cent greater than someone who did not smoke.  The plaintiff’s smoking was by far the more significant factor likely to influence the contraction of lung cancer.

He thought the plaintiff’s risk of contracting mesothelioma was in the order of two to five per cent.

In relation to lung capacity he thought a diminution of 130 mls was excessive but was not able to say how much of the diminution was caused by smoking and how much was caused by exposure to asbestos.

In so far as is necessary I prefer the evidence of Doctor Antic and Doctor Lee to that of Doctor Holmes.  I do so upon the greater experience and the fact that their evidence was, in effect, nearly the same. 

I make the following findings.

The plaintiff has by reason of his exposure to asbestos contracted a disease which has given rise to diffuse pleural thickening in the right lung.  There is evidence of exposure to asbestos in the left lung because of the existence of pleural plaques in that lung.

The diffuse pleural thickening gives rise to a deep seated pain on the right side of the chest which can be treated but not alleviated by using Panadeine Forte.  The plaintiff underwent a thoracotomy which has given rise to a second source of pain which has so far been treated by cryoanalgenic treatment and will be treated in the future by the same treatment.  There is a risk that if the pain which is caused by damage to the nerve in the thoracotomy operation cannot be treated by cryoanalgenic treatment that the plaintiff will have to undergo an operation to divide the nerve.  If he submitted to that surgery there is a risk that he will suffer a different not insubstantial pain in the future.

The plaintiff’s physical condition does not prevent him from working and will not prevent him from working in the future unless he suffers any one or more of the four complications to which I have referred.

The probabilities are that he will suffer none of those complications over the rest of his life.  There is a possibility that he will suffer diffuse pleural thickening in the left lung.  There is no possibility that it will re-occur in the right lung because that has been prevented by the pleuredesis.  I accept Doctor Lee’s evidence in that regard.  The prospect of him suffering left sided diffuse pleural thickening is small.  It is substantially less than the fifty per cent spoken of by Doctor Holmes.  If he were to suffer diffuse pleural thickening on the left side then in my opinion that would give rise to a re-occurrence of his Major Depressive Disorder and the consequences of the worsening of his physical condition and the re-occurrence of his mental condition would mean that he would not thereafter be able to work.

There is a small possibility that the plaintiff will contract asbestosis.  That possibility is something less than ten per cent but again if the plaintiff was to contract that disease, in my opinion, that would cause his Major Depressive Disorder to re-occur and the combination of his physical condition and his mental condition would disqualify him from his employment.

There is a very small prospect that the plaintiff will contract mesothelioma although the prospects are higher if he was also to contract asbestosis.  If he was to contract mesothelioma the disease would be fatal and he would be likely to die within one year of the contraction of the disease.

His prospects of contracting lung cancer are mainly due to his smoking cigarettes but the prospects have been increased to a small degree by reason of his exposure to asbestos.

There is a possibility that he will contract lung cancer.  I believe that he has smoked significantly more cigarettes than he admitted to Doctor Holmes.  I accept Doctor Lee’s evidence that the evidence of emphysema suggests the plaintiff was a significantly heavier smoker than he has otherwise admitted.

It is likely that if he was to contract lung cancer then the disease would prove fatal within five years.  Doctor Holmes said that 80 per cent of those who contract lung cancer have a life expectancy of five years.

I believe that if he did contract lung cancer that disease together with the re-occurrence of his Major Depressive Disorder, which would be a likely sequelae, would also prevent him from exercising his earning capacity after the disease was diagnosed.

The plaintiff therefore has to be compensated for the possibility that he might contract one or more or all of those diseases and the consequent probabilities that would give rise to a re-occurrence of his Major Depressive Disorder with the result that he would be unable thereafter to exercise any earning capacity.  He must also be compensated for the possibility he will suffer a premature death either by reason of mesothelioma which is totally related to the exposure to asbestos or by reason of lung cancer which his prospects of contracting have been increased by reason of his exposure to asbestos. 

He must also be compensated for the possibility that his present physical condition and mental condition will alone or jointly interfere with his capacity to earn an income.  Whilst I believe the probabilities are that that will not occur it cannot be denied that there is some possibility that that will happen.

The plaintiff has suffered a ten per cent diminution in his lung function which combined with a diminution caused by cigarette smoking leaves him with sixty-two to sixty-three per cent of lung function for a man of his age.

The plaintiff will have to undergo medical treatment over the rest of his life and in that respect I am prepared to accept the evidence of Doctor Holmes as to the likely cost of it.  I will return to that matter when I discuss that particular head of damages.  I now turn to each of the three heads of damages.

Pain And Suffering

The plaintiff has to be compensated for the pain and suffering to the date of the trial and future pain and suffering.

There is no need for me to recapitulate all that the plaintiff has suffered to date.  He has experienced the contraction of a disease, the real fear of early death, an adverse psychological reaction to that disease and the consequences of the disease, separation from his wife, the breakdown in relationship with at least one of his children, the sense of indignation, resentment and resentment in relation to his employer’s conduct, and the loss of his social life including playing soccer.  He has also undergone extensive medical investigation, treatment and surgery.  He has suffered a major depressive disorder.  He has suffered considerable pain and suffering over these last five years.

I assess his pain and suffering to the date of trial at $30,000.

The plaintiff will continue to suffer pain and loss of amenities into the future.  I think, however, that the future is brighter for him than the immediate past.  I believe that he will successfully reconcile with his wife and as a consequence his relationship with his daughter will improve.

I believe his relationship with his employer will improve and he will exercise his earning capacity as much as he is able.  I think he will have continuing difficulties, however, with social relations and he has lost for all time the chance to enjoy any active sport.

He will suffer pain for which he will need to be treated over the rest of his life by way of medication and by way of cryoanalgesic treatment or even more radical surgery.

The decreased lung function, the fear of early death and the pain will be a constant reminder of the disease which he has contracted.  I assess his damages for future pain and suffering and loss of amenities at $35,000.

Future Medical Expenses

I have been provided with a report of Doctor Holmes in relation to future medical expenses which the plaintiff is likely to have to meet.

He will need to consult with a thoracic physician at least two times and perhaps four times a year at a cost of somewhere between $125 and $250 in total.  He will need to consult with his general practitioner so as to ensure that the disease has not reactivated or progressed.  I estimate that he will need to do that about four times a year at a cost of about $120.  He will have to undergo chest x-rays between two and four times a year at a cost of somewhere between $96 and $192.  He will need to undergo a CT scan at least once per year and perhaps twice.  The cost of each CT scan is $375.  He will have to undergo lung function tests at least twice a year and perhaps as many as four times a year at a cost of between $200 and $400.  He will have to undergo blood tests which would be in the order of $800 to $1,000 per year.  He will need to take Panadeine Forte at a cost of $20 per month or $240 per year.

The plaintiff presently lives in Whyalla and I think will remain there.  Not all the medical treatment, which he requires, is available in Whyalla.  He will need to travel to Adelaide for a number of the medical investigations.  That would involve him in substantial cost.  Plaintiff’s counsel in his final address submitted a list of future medical expenses identifying travel at a cost of somewhere between $2,000 and $2,500.  I am prepared to assume that that would be the approximate cost that the plaintiff would have to meet in order to undergo the treatment which the disease obliges him to take.  It must be remembered that the plaintiff will have to travel to Adelaide and may have to stay overnight so that a figure of $2,000 to $2,500 seems to me to be not unreasonable.

Plaintiff’s counsel identified the cost of further future medical treatment at somewhere between $81 and $110.80 per week.

It is not possible to be precise about the cost of medical treatment.  I am sure that the plaintiff will take advantage of all treatment available to him so that he can be reassured that his health is not declining.  I think it is likely therefore that he will, not unreasonably, undertake all of the medical investigations available to him to monitor his health.

In assessing the capital value of the future cost of medical treatment I have had regard to the interest tables in Luntz[1] and note that the value of an annuity of $1.00 per week for the rest of the plaintiff’s life (which is the appropriate annuity) is $1,003.  The plaintiff tendered a certificate from an actuary certifying the value of the annuity at $1,053.  The difference is explained by reliance on different mortality tables.

[1] Luntz, Assessment of Damages for Personal Injury or death, Third Edition, Butterworths, Sydney, 1990

I assess the future cost of medical treatment at $100,000 which assumes weekly cost of something just short of $100 per week.  That is nearer the higher end of the range of figures put to me by counsel for the plaintiff but is reasonable in the case of this plaintiff because of the genuine concerns that he has for his own health.  That figure includes in it the sum of $3,000 which the psychiatrists believed it would cost to treat his medical condition over the next three years.

Loss Of Future Earning Capacity

The plaintiff will turn forty-five next month.  Evidence was led from a number of employees of the defendant in relation to this aspect of the plaintiff’s claim.  The defendant called Mr Sharp, Project Co-ordinator for the Administrative Services Department, Mr Hamence, Employee Relations Manager as at August 1996, Mr Johnson, National Sales Manager Newcastle; Mr McNeil, Structural Products Manager Whyalla; and Mr McCarrom, Senior Human Resources Officer. 

The plaintiff’s counsel suggested to some of those witnesses in cross examination that their evidence was coloured by reason of their loyalty to their employer.  It was also suggested that the evidence which they gave to the Court suited their employer’s interests.

I believe each of these witnesses were like all of the other witnesses in this case.  They all had a desire to assist me in the determination of the issues in this matter.  Whilst clearly some of their evidence did suit their employer, in my opinion the evidence was not given for that reason nor was it coloured for that reason.  I believe all of the witnesses were truthful and they were doing their very best to assist me.

The defendant’s evidence was first directed to the period over which the plaintiff might exercise his earning capacity.  The defendant has no policy which requires an employee to resign at any particular age.  However, evidence was led to show that the vast majority of staff employees retired before they reached the age of sixty.  I accept that evidence.  I think that most employees of Mr Mosley’s age would not now expect to be working in a company such as BHP much past sixty years of age.  Superannuation benefits are structured to encourage employees to leave their employment before the age of sixty.  Even if the plaintiff had not suffered from this disease, in my opinion, he would not have worked past the age of sixty.  Indeed, I would have thought, he would be likely to retire somewhere between fifty-five and sixty years of age.

The defendant next addressed its attention to the company’s future employment needs at Whyalla.  BHP has undergone significant restructuring in Whyalla over the last few years and has, to use the witness’ expression, downsized its operations.  There are prospects, which are not insubstantial, that the plaintiff’s position in the company may be made redundant between now and an age just short of sixty.  Indeed, the company intends to reduce its work force over the not too distant future by some hundreds of employees.          It has in the recent past reduced its employees from 2100 to 1800 and presently intends to reduce its labour force from 1800 to about 1300.  In downsizing its operation further it would offer separation packages to its employees.  Presently separation packages provide for 2.5 weeks pay for every year of service together with an additional fourteen weeks pay.  The further attraction of those separation packages is that taxation is imposed at a substantially lesser rate than the marginal rate.  The separation packages are an inducement to those who have worked for lengthy periods of time to retire.

If the plaintiff’s position became redundant he would expect therefore a separation package of the kind to which I have referred.

The plaintiff would also be entitled to his accrued superannuation to the date of his retirement.

However the plaintiff is at a disadvantage, in my opinion, if he was to retire early.  I believe his disease would make it more difficult for him to obtain employment in the labour market.  It is hard enough, in any event, for a man in his forties or perhaps in his early fifties to obtain employment in the open labour market.  It is a considerable disadvantage for a person to attempt to obtain employment in the open labour market to have to disclose that that person has a lung disease and has suffered from a Major Depressive Disorder.  The plaintiff therefore in my opinion is at a real disadvantage if he has to retire early and seek to supplement his separation package and superannuation in the open labour market.  He must be compensated for that.

The defendant’s policy however is not to require anyone to retire.  If a position becomes redundant the defendant has a system whereby it attempts to relocate those persons somewhere else within the works.  That system has been in place for about a year and has achieved some success in relocating persons whose positions have become redundant.  It was put to me that in the event that the Marketing Department was downsized that Mr Mosley would be assisted to obtain another position within the company.

Lastly, the defendant led evidence from Mr Mosley’s previous supervisor and his present supervisor as to Mr Mosley’s performance within the department.  I accept the evidence of Mr Johnson and Mr McNeil that Mr Mosley’s performance has been more than adequate and he is a valued member of the staff.  I also accept the evidence of Mr Johnson that the plaintiff was not discriminated against and was not overlooked in any promotions.  Nor was he passed over for work travel opportunities.

I accept the evidence of Mr McNeil that the plaintiff performs very well in his job and is a valued member of the Department.  I accept that his work is of a standard which does not require supervision or direction and that he is a valued member of the Department.

The plaintiff has some regard for Mr McNeil who, he said, has supported him and been very good to him.  He has no reason, he said, not to trust Mr McNeil and he has no complaints about working with and for him.

I think it is clear enough that the plaintiff does bear some animosity to one employee of the Marketing Department and that is Mr Greg Dick.  Mr McNeil said there was a clash between the plaintiff and that gentleman. Whilst he has a degree of animosity towards Mr Dick, I accept the evidence of Mr McNeil that he exhibits that animosity by being somewhat cooler in his relations with that gentleman and more reserved and restrained and more formal.  Mr McNeil said the plaintiff otherwise has a good relationship with all of the Department. 

In my opinion there is nothing in the nature of the employment or on the part of the employer which will prevent the plaintiff from resuming work and continuing to work after the expiration of his long service leave. 

The probabilities are, in my opinion, that the plaintiff will work with this company for the same period that he would have but for exposure to asbestos and the negligence of the defendant.

However the plaintiff must be compensated for the possibility of a number of factors operating.  There is the possibility that he will not resume work after the expiration of his long service leave.  There is the possibility that the Major Depressive Disorder will continue.  There is the possibility that his physical condition will worsen as a result of which he will either be unable to work or alternatively the condition which he will contract will prove fatal.  There is the possibility that his position at BHP will become redundant and he will be forced out on to the open labour market with the probability that he will be unable to obtain any employment.

All of these possibilities have to be allowed for in an assessment of the plaintiff’s loss of future earning capacity.  All of the possibilities if they occurred would give rise to a serious interruption and perhaps a total destruction of the plaintiff’s earning capacity. 

The plaintiff presently earns in excess of $50,000 per annum.  On 3 September 1997 his salary was increased by $2,900 per annum to a sum of $50,300.  The plaintiff’s after tax earnings are about $35,000.

On top of that he is paid a generous amount by way of superannuation.  Presently if he was to leave the company his superannuation benefit is nearly $143,000.  He also enjoys, at the cost of the company, a lump sum death disablement benefit on his life of nearly $342,000.

The plaintiff also is entitled to family health care cover commensurate to the top table of cover.  If he were to lose his employment he would therefore lose the significant benefits attaching by reason of the superannuation and the health cover.

The quantification of the possibilities to which I have referred is a matter of judgment.  The plaintiff tendered a number of actuarial certificates which in the end result were of no assistance.  They really assume, contrary to my findings, that the plaintiff would have worked to age sixty-five and that the plaintiff’s earning capacity has been totally destroyed.

I think in any event the plaintiff would have worked only another twelve years at the most.  There is a possibility that that period will be reduced by reason of all the matters to which I have referred.

I assess the damages for those possibilities at $85,000.

Interest

As the plaintiff’s damages have been assessed in the dollar value at trial the plaintiff is entitled to interest on the past pain and suffering at four per cent.  It would be appropriate to allow for interest for two and a half years which would reflect in a rough and ready way the pain and suffering as it developed over the period since 1992.  I allow interest of $3,000.

Conclusion

I assess the plaintiff’s damages as follows:

1.     Past Pain And Suffering  $30000.00

2.     Future Pain And Suffering  $35000.00

3.     Future Medical Treatment  $100000.00

4.     Loss Of Future Earning Capacity  $85000.00

5.     Interest  $3000.00

TOTAL  $253000.00

The plaintiff will have judgment for the sum of $253,000.00.

I note that the defendant has undertaken to pay the plaintiff’s costs in relation to the issues on liability but I will hear the parties as to the appropriate orders for costs.