Moule v Amaca Pty Limited, Boral Cement Limited and Gerard Malouf and Partners Pty Ltd

[2019] NSWDDT 6

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	Moule v Amaca Pty Limited, Boral Cement Limited and Gerard Malouf & Partners Pty Ltd [2019] NSWDDT 6
Hearing dates:	6 June 2019
Date of orders:	08 July 2019
Decision date:	08 July 2019
Before:	Strathdee J
Decision:	(1)   Verdict and judgment for the plaintiff in the sum of $1,447,244.18.  (2)   The defendant to pay the plaintiff’s costs as agreed or assessed.
Catchwords:	DUST DISEASES – damages – mesothelioma – factual background – vicissitudes – personal maintenance during lost years PROFESSIONAL NEGLIGENCE – loss of opportunity – pure economic loss – breaches of contract – breach of duty of care
Legislation Cited:	Compensation to Relatives Act 1897 Dust Diseases Tribunal Act 1989 Law Reform (Miscellaneous Provisions) Act 1944
Cases Cited:	Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1 Astley v Austrust Limited (1999) 197 CLR 1 Henderson v Merrett Syndicates Limited (1995) 2 AC 145 Heydon v NRMA Limited (2000) 51 NSWLR 1 Johnson v Perez (1988) 166 CLR 351 Lavis v Amaca Pty Ltd [2018] NSWDDT 6 Livingstone v Rawyards Coal Co (1880) Rogers v Whittaker (1992) 175 CLR 479 Sellars v Adelaide Petroleum (1994) 179 CLR 332 Todorovic v Waller (1981) 150 CLR 402
Texts Cited:	“Professional Liability in Australia” (authors S Walmsley, A Abadee, B Zipser and G Sirtes 3rd Edition 2016)
Category:	Principal judgment
Parties:	Geraldine Tanya Moule as Legal Personal Representative of the Estate of the Late Timothy Michael Moule (Plaintiff) Amaca Pty Limited (First Defendant) Gerard Malouf & Partners (Third Defendant) Boral Limited (Cross-Defendant)
Representation:	Counsel: Mr P Semmler QC and Mr S Tzouganatos (for the Plaintiff) Mr J. Sheller (for the First Defendant) Mr G Watson SC and Ms L McFee (for the Third Defendant) Mr T Morahan (for the Cross-Defendant)   Solicitors: Slater & Gordon (for the Plaintiff) Mills Oakley (for the First Defendant) YPOL Lawyers (for the Third Defendant) Hunt & Hunt (for the Cross-Defendant)
File Number(s):	34/2019

Judgment

1. Mr Timothy Michael Moule (‘the deceased’) sued Amaca Pty Limited (‘Amaca’) and Seltsam Pty Limited (‘Seltsam’) by Statement of Claim filed in the Tribunal on 5 February 2019 seeking damages at common law for the disease of Mesothelioma. The proceedings against Seltsam were discontinued on 13 February 2019.

2. Amaca filed a cross claim on 13 February 2019 against Boral Cement Limited (‘Boral’) seeking contribution and/or indemnity for any damages it may have to pay to the plaintiff.

THE ORIGINAL PROCEDINGS

3. It was alleged that between 1962 and 1980 the deceased’s father (‘Mr Moule Snr’) was employed as a carpenter/builder in the building and construction industry in the State of New South Wales (‘the builder employment’). During the period of the builder employment Mr Moule Snr handled, cut, rasped, punched, edged, chamfered, chiselled, nailed, manipulated, installed and cleaned asbestos cement building products manufactured and/or supplied by James Hardie & Coy Pty Limited (‘JHC’).

4. In addition, during the course of the builder employment, Mr Moule Snr worked in the vicinity of other persons who handled, cut, rasped, punched, edged, chamfered, chiselled, nailed, manipulated, installed and cleaned asbestos cement building products manufactured and/or supplied by JHC.

5. The cross-claim filed by Amaca on 13 February 2019 sought contribution and/or indemnity from Boral alleging that the deceased was exposed to asbestos dust and fibre in the course of his employment with Boral and whilst working on premises owned and occupied by Boral.

6. On the first day of the resumed trial, the proceedings between the plaintiff, Amaca and Boral were resolved and consent orders were entered.

7. The deceased was diagnosed with mesothelioma on 16 August 2018 and passed away on 22 February 2019 as a result of his mesothelioma. There can be no doubt that prior to his passing the deceased suffered greatly.

THE SUBSEQUENT PROCEEDINGS

BACKGROUND

8. The following chronology of events is not controversial.

9. On 24 August 2018, the deceased contacted GMP by their online portal to make enquiries about a potential claim for compensation for his mesothelioma. On the same date, Natalia Lapthorne (Ms Lapthorne), an employed solicitor of GMP contacted the deceased and was informed that he had been diagnosed with malignant peritoneal mesothelioma, which may have been as a consequence of exposure to asbestos dust and fibre whilst he was working at Boral and attending the Moss Vale Council tip.

10. On 27 August 2108, Ms Lapthorne contacted the deceased via telephone and was provided with further information about the deceased’s potential exposure to asbestos dust and fibre. She was informed that the deceased was to have a peritonectomy in September 2018. I note that this surgery is extremely invasive, lengthy and life-threatening.

11. On 29 August 2018, GMP wrote to the deceased and offered to act on his behalf in a potential claim, and to provide legal services and advice. They forwarded a Conditional Costs Agreement (‘CCA’) to the deceased and indicated once he had signed and returned the document a conference would be arranged with a Barrister. GMP asked to be kept informed of the deceased’s health and if his condition deteriorated.

12. The CCA was signed and returned to GMP in September 2018. On 18 September 2018, the deceased’s medical records were requested by GMP from his treating physicians.

13. On 25 September 2018, the deceased’s wife, Geraldine Tanya Moule, who subsequently became the plaintiff (‘plaintiff’) contacted GMP and informed someone employed by GMP that the deceased had gone into surgery, and that the surgery was expected to take 12 to 14 hours.

14. On 15 October 2018, the plaintiff again contacted GMP and informed an employee that the deceased had undergone surgery on 25 September 2018 but that he had taken ‘a turn for the worse’ on 14 October 2018, and was in the intensive care unit at St George Hospital in Kogarah. It was conveyed that his wounds had become infected, there was blood pooling in his abdomen and he had blood clots in his legs. GMP were further informed that his cancer was extreme according to his doctors. I note that Kogarah is not a great distance from the Sydney CBD, and was easily accessible should the plaintiff’s former solicitor wished to take face-to-face instructions from the deceased.

15. On 1 November 2018, the deceased contacted GMP to get an update on his claim. He told GMP that he was still in hospital but was doing better. He was told that his medical records had been requested and that a barrister would be briefed. He was told to call again when he had been discharged from hospital. He did so on 16 November 2018.

16. On 21 January 2019 the deceased again contacted GMP asking for an update and for assistance in completing the iCare Dust Diseases Care application. Shortly after this call, the deceased received an email from Megan Costenbole (‘Ms Costenbole’), an employee of GMP, requesting that he himself apply for compensation from iCare, and to update GMP once the application had been determined. No further assistance was offered by GMP. The deceased was left to his own devices. I note this was after the deceased had undergone radical surgery, suffered post-surgical complications, necessitating his admission to the Intensive Care Unit of St George Hospital, and remained an inpatient of that hospital for some 70 days.

17. At no stage did anyone from GMP ever meet the deceased or the plaintiff face to face.

18. At about 4:00pm on 5 February 2019, the plaintiff contacted her current solicitors, Slater & Gordon for the first time. A Statement of Claim was filed in the Tribunal seeking damages from Amaca and Seltsam at approximately 5.42pm that same day.

19. On 6 February 2019 the deceased and the plaintiff met with Joanne Wade (‘Ms Wade’) a solicitor from Slater & Gordon at the St George Hospital, for the purpose of taking instructions. The iCare application was completed during this conference and lodged for processing by Ms Wade.

20. On 12 February 2019 the deceased swore his Affidavit and Statement of Particulars which had been prepared by Ms Wade subsequent to the conference on 6 February 2019.

21. On 13 February 2019, the deceased’s parents, Neville and Sandra Moule swore their affidavits, and an Amended Statement of Claim, Statement of Particulars and a Notice of Motion were filed with the Tribunal. The motion sought to remove the proceedings from the Claims Resolution Process (‘CRP’), an order for short service, and an affidavit in support of the motion by Ms Wade was filed in the Tribunal.

22. I heard the motion on 14 February 2019 and removed the matter from the CRP.

23. The following day, 15 February 2019, the evidence of the deceased and his wife, the plaintiff, was taken in their home and was stood over to 18 February 2019 for further directions. On that date orders were made as to the filing of replies and referral for a contributions assessment. The matter was listed for a two day hearing commencing 25 February 2019 before me.

24. On 19 February 2019 the matter was again before me and the deceased’s medical and economic loss material was tendered. Further directions were made on 20 February 2019, and access was granted to subpoenaed documents that had been produced.

25. The deceased passed away on 22 February 2019.

26. On 1 April 2019, I made orders such that the plaintiff was substituted as the legal personal representative of the deceased’s estate and Gerard Malouf & Partners (‘GMP’) were joined as the third defendant to the proceedings. The allegations against GMP were that they were professionally negligent (‘the professional negligence proceedings’) in the prosecution of the deceased’s claim in the Tribunal.

27. As previously stated, the plaintiff’s claim against the first defendant and the cross defendant were resolved by way of terms of settlement which were filed in court on 6 June 2019.

28. The plaintiff’s professional negligence proceedings against GMP were heard by me on 6 and 7 June 2019, and I reserved my final decision.

29. Senior Counsel for GMP submitted at the commencement of the professional negligence proceedings hearing, that the plaintiff had no standing to bring the proceedings, as GMP had pleaded in paragraph 11 of their Amended Defence. This submission was based on the assertion that the plaintiff had not received a grant of probate or letters of administration before GMP were joined to the proceedings.

30. They further submitted that the proceedings were therefore a nullity, for the same reason, and that the orders I made on 1 April 2019 joining GMP to the proceedings were either a nullity or improperly made.

31. These submissions were strenuously opposed by Queens Counsel for the plaintiff, and contrary arguments were ventilated.

32. I gave an extempore judgment on this preliminary point at 2pm on that day in which I found that the Tribunal had the power to make the order substituting Mrs Moule as the plaintiff, as I had done on 1 April 2019. I found that the proceedings therefore were not a nullity and nor was the order improperly made. The professional negligence proceedings continued that afternoon and in to the following day.

NEGLIGENCE OF GMP

33. The damages sought in the professional negligence proceedings relate to a claim that arose from the allegedly negligent conduct of GMP. Its basis is that although the deceased passed away before a judgment was entered, his damages for non-economic loss, past and future care and medical expenses, damages for loss of life expectation and interest, were all preserved by the Dust Diseases Tribunal Act 1989 upon the filing of a Statement of Claim in the Tribunal.

34. The component that is not preserved by the legislation is damages for future economic loss, as that entitlement was extinguished when the deceased passed.

35. The plaintiff’s case is essentially that had GMP commenced proceedings and prosecuted the deceased’s claim in a timely manner, the claim for economic loss would have been determined before the deceased passed away. It is alleged that the negligence of GMP deprived the deceased of a chance to receive financial compensation with regard to his economic loss.

36. The defendant, as part of its defence at paragraph 12.1(a) of its Amended Defence, maintains that no cause of action had vested in the deceased before his death. They draw my attention to s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (‘LRMP Act’) which reads as follows:

‘2 Effect of death on certain causes of action

(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under Division 2 of Part 3 of the Property (Relationships) Act 1984.

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:

(a) shall not include:

(i) any exemplary damages, or

(ii) any damages for the loss of the capacity of the person to earn, or for the loss of future probable earnings of the person, during such time after the person’s death as the person would have survived but for the act or omission which gives rise to the cause of action,

(b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry,

(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to the person’s estate consequent on the person’s death, except that a sum in respect of funeral expenses may be included,

(d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person’s expectation of life.

(3) (Repealed)

(4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Part, to have been subsisting against the person before the person’s death such cause of action in respect of that act or omission as would have subsisted if the person had died after the damage was suffered.

(5) The rights conferred by this Part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Compensation to Relatives Act 1897, as amended by subsequent Acts, and so much of this Part as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Act as so amended as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).

(6) The rights conferred by this Part for the benefit of the estates of deceased persons and the obligations continued or created by this Part against the estates of deceased persons shall be in addition to and not in derogation of any rights conferred or obligations created by or under the Motor Vehicles (Third Party Insurance) Act 1942 or the Transport Accidents Compensation Act 1987 or the Motor Accidents Act 1988.

(7) This section has effect subject to section 12B of the Dust Diseases Tribunal Act 1989.’

37. On the basis of this amendment to the Act the defendant submits that the cause of action must be one, which had already vested in the person before he died. They submit that it does not protect causes of action which arose after the death or because of the death.

38. The defendant further submits that there is no cause of action in tort as an essential element for a cause of action in negligence is actual damage. They refer my attention to the authority of Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1 @ para 8 which reads as follows:

‘Damage is the gist of the action

[8] The law is clear that actual damage or injury is an essential element of a cause of action in negligence for personal injury.  (It is not disputed that the respondent established the other elements of his cause of action, namely, the existence and breach of a duty of care, and that the mesothelioma was caused by the appellant's breach of duty.)  What may qualify as actionable damage is, however, a question of fact and degree and ultimately of policy.  Kiefel J observed in Tabet v Gett that the "damage necessary to found an action in negligence ... is the injury itself and its foreseeable consequences".  As Hayne and Bell JJ said in the same case, damage refers to "some difference to the plaintiff [which] must be detrimental". In similar vein, in Harriton v Stephens, Crennan J, with whom Gleeson CJ, Gummow and Heydon JJ agreed, said at [22]:

‘Because damage constitutes the gist of an action in negligence, a plaintiff needs to prove actual damage or loss and a court must be able to apprehend and evaluate the damage, that is the loss, deprivation or detriment caused by the alleged breach of duty.  Inherent in that principle is the requirement that a plaintiff is left worse off as a result of the negligence complained about, which can be established by the comparison of a plaintiff's damage or loss caused by the negligent conduct, with the plaintiff's circumstances absent the negligent conduct.’’

39. The defendant says no cause of action in tort could have vested in the deceased before he died, as the loss was only suffered at the moment that he died and therefore no cause of action could have crystallized before that moment in time.

40. The defendant further submits that there is a limited cause of action for breach of contract. They say, however, that this breach is different and more difficult to establish, as much depends upon what is said to be the breach of contract relied upon. Six different breaches are pleaded and four of those breaches would have occurred at different times. Moreover, the breaches they submit have different effects and consequences. They submit that the timing of any breach is important as, depending upon the breach which is relied upon or the timing of that breach, the damages may be minimal or nominal.

41. Interestingly, I note that it was submitted that there is no need for actual damage to be shown with respect to a breach of contract, that is, a plaintiff only needs to show that some promise has not been met, and in these circumstances it is the promise to provide appropriate, timely and competent legal advice which did not occur. GMP admitted breach of duty of care, but did not concede that such breach was causative of the damage.

42. I accept that there has been a breach of contract.

43. Senior Counsel for the defendant submits that the impact of s 2(2)(a)(ii) applies only in circumstances where the death of the person had been caused by the act or omission which gives rise to the cause of action. They submit further that it is the intention of the legislation to extinguish such right on the basis that the words are plain and exclude recovery for this head of damages in any survivor action, including a professional negligence action, irrespective of whether the claim is in contract or tort.

44. The defendant submits that if that result may seem harsh, there is a reason to explain why it is so and that in limiting the remedy available to the estate, the legislature was aware that the same kind of damages would be available to dependants under the Compensation to Relatives Act 1897. This was made explicitly clear in sub-section (2)(v) of the 1944 Act they assert.

39. A Statement of Claim (DDT 191 of 2019) was filed by the plaintiff in the Tribunal on 24 May 2019 which sought damages pursuant to the provisions of the Compensation to Relatives Act 1897, for and on behalf of all the dependents of the deceased being the plaintiff (born 23 December 1968), Joshua Michael Moule (born 17 July 1994) and Kirra Rhiannon Moule (born 15 December 1995). The defendant in those proceedings was Amaca Pty Ltd. Those proceedings were discontinued, by consent, on 6 June 2019.

40. Senior Counsel for the defendant submitted that the 1982 amendments to the LRMP Act 1944 were specifically designed to exclude these kind of damages. He further submitted that what is being valued is not the value of the future economic loss that the deceased may have had, it is actually the value of the loss of a chance to recover that. That is, the loss of a cause of action. He submits that if it is recoverable in compensation to relatives proceedings as it cannot be sought from anyone other than the tort feasor.

41. It is apparent that both parties accept that the loss suffered by the deceased is the loss of a chance to receive financial compensation.

42. However, counsel in his final submission (Transcript page 61) fairly indicated that their case rests on the embargo created by s 2(2)(a)(ii) that these damages are not recoverable, and that the question of double compensation, which may have been available, does not arise because of the embargo contained within s 2.

43. The plaintiff’s case is that the professional negligence proceedings seek compensation for the loss of a chance to bring the current proceedings in the original claim. They submit, professionals including solicitors owe concurrent contractual duties and tortious duties to take reasonable care in the provision of advice and services to their clients. The contractual duty is implied by the operation of law and the tortious duty arises out of the relationship between the parties: see Astley v Austrust Limited (1999) 197 CLR 1, 22-23, approving Henderson v Merrett Syndicates Limited (1995) 2 AC 145, 193-194.

44. GMP were instructed to act for the deceased on 24 August 2018 and it is from that date that GMP owed the deceased a duty of care, despite the fact that the CCA was not signed until September 2018. The plaintiff submits that in both contract and tort, the standard of care which is expected of a person with some special skill or competence is that of ‘the ordinary person exercising and professing to have that special skill’: see Rogers v Whittaker (1992) 175 CLR 479 @ 487.

45. Further, it is submitted that in Heydon v NRMA Limited (2000) 51 NSWLR 1 this standard was applied to solicitors and barristers. In that decision it was held that in determining whether a solicitor or barrister has exercised reasonable care in the provision of professional advice, the ‘standard of care and skill is that which may be reasonably expected of practitioners’.

46. The plaintiff submits that the principles with respect of proving the loss of an opportunity and a valuation of that loss are well established. They refer my attention to the following passage in Sellars v Adelaide Petroleum (1994) 179 CLR 332, Mason CJ, Dawson, Toohey and Gaudron JJ stated:

‘The general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has suffered loss or damage. The applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as this the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities.’

53. The plaintiff submits with reference to the claim against a lawyer, if the client loses the opportunity to pursue a legal claim or a particular aspect of a legal claim because of the lawyer’s negligence, the court must then determine the value of that lost opportunity and base damages, if any, on that determination (see Johnson v Perez (1988) 166 CLR 351). This necessitates the court effectively conducting a trial within a trial so as to attempt to value that lost opportunity and consideration of the plaintiff’s prospects of success in the trial of that claim if it had in fact been litigated.

54. It seems to me that it is clear that GMP breached its contractual and common law duty for the provision of legal advice and services to the deceased. The first contact was made in August 2018 and the Retainer was executed in September 2018, and then the return of the CCA. However, it appears that very little else was done by Ms Lapthorne on behalf of GMP, and there is no evidence of her having provided any advice or legal services to the deceased despite the inherent promise to do so. The deceased never met Ms Lapthorne, and proper instructions from him about his work and medical situation were never obtained. The documents produced by GMP and then tendered by the plaintiff (Exhibit G) show that the only steps taken were to subpoena some notes from the deceased’s treating doctors.

55. It is clear that no legal advice was given at all, and in fact the deceased was asked to make his own application to iCare for benefits.

56. The plaintiff’s Queens Counsel called the widow (the plaintiff) to give evidence as to what she and the deceased did to try and contact GMP, which I note occurred on a number of occasions with little or no appropriate response. I accept the plaintiff as a witness of truth, and that she and her husband, when he was alive, attempted to contact GMP many times with a far from satisfactory result.

57. The estate makes no claim against GMP for damages for the loss of the capacity of the deceased to earn, or for loss of future probable earnings. The claim is one for pure financial loss as a result of the breach of contract and breach of a common law duty of care owed by GMP to the deceased.

58. I accept that there were multiple and continuing breaches of contract by GMP commencing in about early September 2018 (when the CCA was signed and returned). The causes of action for breach of contract accrue when each breach occurs: see Hawkins v Clayton (1988) 164 CLR 539.

59. I accept the submission made by Queens Counsel for the plaintiff that the actions on behalf of GMP were grossly negligent, in that they breached their common law duty to the deceased. He had a complete cause of action prior to his death (even moments before it), when it became inevitable that because of GMP’s negligence, he had lost the opportunity to successfully complete his claim against Amaca by way of settlement or judgment in his lifetime. At that point his cause of action was complete and he was entitled to sue GMP for pure economic loss.

60. This breach of contract and the negligence deprived the deceased the opportunity of successfully completing his case against Amaca either by way of settlement or verdict. More than likely, either of those events could have occurred before the end of 2018 and certainly before instructions were withdrawn from GMP and provided to Slater & Gordon in February 2019.

61. Pure economic loss is described by the authors in “Professional Liability in Australia” (authors S Walmsley, A Abadee, B Zipser and G Sirtes 3rd Edition 2016) at [1.380] as follows:

‘Pure economic loss is economic or financial loss not consequent on physical damage to the plaintiff. This type of loss is also referred to as “mere economic loss” or “financial loss”, or sometimes just “economic loss”. In contrast, economic or financial loss consequent on physical damage, such as loss of income or the incurring of medical expenses following personal injury, is not pure economic loss. The loss of a benefit may be a form of pure economic loss. In Hill v Van Erp (1997) 188 CLR 159 at 170, Brennan J stated:

‘A benefit that a plaintiff would have received but for the negligence of the defendant is a loss, whether or not the benefit would have been gratuitous.’’

62. And further at [1.400]:

‘For claims against professionals by clients, in most cases the relationship between the parties provides the element, in addition to foreseeability of injury, which gives rise to a duty of care: Bryan v Maloney (1995) 182 CLR 609 at 622-624. Legal practitioners, accounting professionals, building professionals, valuers and brokers are likely to owe their clients a duty of care in respect of pure economic loss.’

63. I make the following findings:

1. (a)   GMP failed to elicit an exposure history to asbestos dust and fibre, nor any identification of products that may have been manufactured and/or supplied by JHC;

2. (b)   GMP failed to commence, prosecute and conclude the deceased’s claim for damages within the deceased’s lifetime, and failed to advise him that if proceedings did not conclude within his lifetime, he would lose the entitlement to an award of damages for future economic loss and earning capacity;

3. (c)   These breaches continued from the taking of initial instructions in August 2018 until the deceased passing on 22 February 2019;

4. (d)   The proceedings could have reasonably been concluded before the end of 2018, and certainly before the deceased’s passing due to the facilities of the Tribunal to hear matters on an urgent basis when appropriate;

5. (e)   A competent solicitor exercising a standard of care and skill that could reasonably be expected of a solicitor would have known that the deceased’s life expectancy was significantly limited simply by the nature of his disease, and additionally by the fact that he had undergone extremely invasive surgery with subsequent complications necessitating his transfer to an Intensive Care Unit in hospital;

6. (f)   In accepting the evidence given by the deceased’s widow before me, I find that if she had been told with regard to the deceased’s right to damages, she would have either instructed GMP to proceed with appropriate haste given the deceased’s parlous state of health, or retained other solicitors, as she ultimately did;

7. (g)   The failure by GMP to inform the plaintiff of the matters raised in (f) above was directly causative of the loss complained of in the professional negligence proceedings;

8. (h)   The cause of action vested in the deceased, which crystallises on death was caused by the negligent actions of GMP;

9. (i)   The failure to act as a competent solicitor exercising and professing to have that special skill constitutes a breach of retainer and as such a breach of contract;

10. (j)   The breach of the common law duty owed by GMP to their client directly caused the deceased’s loss of opportunity to seek compensation for his loss of future earnings.

DAMAGES

64. Noting that the assessment of the deceased’s damages in the professional negligence proceedings effectively involves a trial within a trial, I believe that I am in a good position to assess those damages as I heard the deceased and the plaintiff give evidence, and I can assess all the expert evidence and submissions tendered in these proceedings in the context of the overall claim.

65. In assessing those damages, I must also have regard to the plaintiff’s prospects of success. Damages that the plaintiff may recover from GMP are to be assessed by reference to the amount which would have awarded when his action would have ordinarily been determined, but for GMP’s negligence (see Johnson v Perez (ibid)).

66. I must assess a sum that will nearly as possible place the plaintiff in the same position as she would have been in had she not sustained the solicitor’s wrong (see Livingstone v Rawyards Coal Co (1880) 5 App Cas. 25, Todorovic v Waller (1981) 150 CLR 402.

67. As this assessment is occurring only some weeks after the assessment would have been done, the dates do not require any variation, as the value of the claim would not be different due to the passage of time.

68. Drawing on my own experience of matters that are successful in the Tribunal, and the agreement reached between the plaintiff, Amaca and Boral, I find that the plaintiff’s prospects of success were very high.

69. The deceased was born on 12 July 1962, and was 56 years old when diagnosed with mesothelioma in August 2018. Up until 22 February 2019, he continued to derive earrings by utilising his accrued leave entitlements.

70. Both parties have qualified forensic accountants. The report of Mariano Rosetto of Vincents dated 18 February 2019 is contained within Exhibit E. The report of Tamara Lindsay of Forensis Accounting dated 18 February 2019 is Exhibit 4.

71. There is no great difference between the reports.

72. The Rosetto report is calculated on the basis that the deceased would have worked to age 75, allows a weekly maintenance figure of $150 per week for the lost years, and makes no discount for vicissitudes.

73. The Lindsay report has calculated the loss in three different scenarios. The first that he would work to age 67, the second to age 70, and the third to age 75. It allows the figure of $269 per week for personal maintenance during the lost years. Finally it calculated the total loss, utilising a 15% for vicissitudes.

74. In the primary proceedings the deceased gave evidence (TC 15.2.19 page 2 lines 1-5) that he loved his work and intended to work to age 75. He further gave evidence that there were currently workers employed at Blue Circle who were aged in their 70s.

75. At page 7 of the transcript, lines 1-10 the following exchange occurred:

‘Q. Is this right that before you became unwell back in say August last year, that you had not turned your mind to when you would stop work. A. I just thought I’d be a guy that could work his whole life and keep his family and everyone happy without having to worry about the government or anything. I was all set up, had everything set up, you know, super and everything.

Q. You have contributed to your super account over and above just what your employers paid. A. For sure, for sure.

Q. You have managed your affairs so well that you and your wife own this house without a mortgage is that right... A. Exactly. Exactly, if I had a mortgage I’d be probably so worried now because the banks would be chasing me for money.’

76. The deceased’s evidence that he would have continued to work to age 75 needs to be taken in context. He had been a hard worker for all his young life and made all efforts he could to look after his family financially. He had paid off his mortgage. He enjoyed his work and was aware that there were other workers with his employer who had worked into their 70s. This satisfies me that the opportunity to work beyond the normal retirement age was available to him.

77. However, as a plant operator, a role that required physical labour, the deceased’s body may not have stood up to the demands of the job in which he was working before he became ill. Similarly, he may have decided before age 75, that having paid off his mortgage, he wanted to retire, or at least cut back his work hours, and work part time.

78. I accept that the appropriate figure for vicissitudes is 15% to cover the exigencies of life. But that figure should only apply to age 70.

79. Beyond that, to age 75, I believe the appropriate deduction should be 30% due to other factors that may have affected his working life and that it is possible that he may not have worked either to that age or on a full time basis.

80. Ms Lindsay’s report calculates a figure for personal maintenance in the sum of $269.00 per week. Her figure was calculated having regard to statistical information. That information was tendered at trial and marked as follows:

• Exhibit 5 – Printout from Australian Government Department of Human Services entitled “How much you can get” in relation to the Age Pension

• Exhibit 6 - Printout from Australian Government Department of Human Services entitled “How much you can get” in relation to the Newstart Allowance

• Exhibit 7 - Printout from Australian Government Department of Human Services entitled “How much you can get” in relation to Rent Assistance

81. Mr Rosetto allows a figure of $150.00 per week for personal maintenance.

82. Having had the opportunity to hear the deceased give evidence, I accept that the deceased was someone who was careful with money and not someone to spend unnecessarily. Having been in the family home, it was not the home of someone who lived an extravagant lifestyle.

83. However, I think that the figure proposed by Mr Rosetto is too low as the deceased had paid off his mortgage and he and his wife had recently travelled to the Maldives. I do not believe that the amount expended on the deceased lifestyle would be in the area of $269 per week as advocated by Ms Lindsay given the circumstances.

84. The appropriate figure for maintenance in the lost years in my view is $180 per week. The deceased and his family did not lead an extravagant life, and he had paid off his mortgage to provide security for himself and his family. In accordance with the decision of his Honour Judge Scotting in Lavis v Amaca Pty Ltd [2018] NSWDDT 6 at [56] that the appropriate sum is $180.00 per week.

85. The wage loss figures vary in a very small degree, and I will calculate the loss in accordance with Ms Lindsay’s figures as to pre-illness earnings. $180 pw for personal expenditure will be deducted.

86. For the years ending 30 June 2022 I will allow $2,087 per week after tax, superannuation at 9.5% on the 3% tables with a deduction for vicissitudes of 15%.

87. For the years from 1 July 2022 to 30 June 2024 I will allow $2,123 per week after tax, superannuation at 9.5% on the 3% tables with a deduction for vicissitudes of 15%.

88. For the years from 1 July 2024 to 30 June 2032 I will allow $2,149 per week after tax, superannuation at 9.5% on the 3% tables with a deduction for vicissitudes of 15%.

89. For the years from 1 July 2032 to 12 July 2037 I will allow $2,149 per week after tax, superannuation at 9.5% on the tables with a deduction for vicissitudes of 30%.

90. Superannuation will have a similar deductions as above for vicissitudes.

ORDERS

91. My orders are:

1. Verdict and judgment for the plaintiff in the sum of $1,447,244.18.

2. The defendant to pay the plaintiff’s costs as agreed or assessed.

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Decision last updated: 08 July 2019