Nasr v Seltsam Pty Ltd

[2004] NSWDDT 6

Dust Diseases Tribunal

of New South Wales

CITATION:	Nasr v Seltsam Pty Ltd and Anor [2004] NSWDDT 6
PARTIES:	Joseph Nasr Seltsam Pty Ltd Amaca Pty Ltd
MATTER NUMBER(S):	194/03
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:-
LEGISLATION CITED:	S 11A, Dust Diseases Tribunal Act, 1989
CASES CITED:
DATES OF HEARING:	6-7/07/2004
EX TEMPORE JUDGMENT DATE :	04/07/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D G Letcher, QC instructed by McDonnell Schroder. FOR FIRST DEFENDANT: Mr G P F Rundle instructed by Hicksons. FOR SECOND DEFENDANT: Mr B H Hughes instructed by A O Ellison & Co.

JUDGMENT:

Nature of the claim

1. This is a claim for provisional damages by Joseph Nasr brought against Seltsam Pty Ltd (Seltsam) and Amaca Pty Ltd (Amaca) pursuant to s 11A of the Dust Diseases Tribunal Act, 1989. Seltsam stands in the shoes of Wunderlich Pty Ltd (Wunderlich) and Amaca stands in the shoes of James Hardie & Coy Pty Ltd (JHC).

The plaintiff
2. The plaintiff was employed by Wunderlich between 30 April 1965 and 20 April 1966, a period of about 12 months. He was further employed by Wunderlich between 23 and 26 February 1973, a period of employment which is of little significance in this case. He was employed by JHC from 4 March 1973 to 5 September 1975, a period of about 30 months.

3. In his employment by each corporation he was exposed to and inhaled asbestos dust and fibre. It is not in dispute that as a result of that inhalation he has contracted asbestos related pleural disease (ARPD) and entitled to damages.

4. The plaintiff was born, he believes, on 19 March 1938 in Lebanon. He had no formal education and his income has always been derived by selling his labour. In Lebanon he worked with his father on a farm and later with his brother erecting formwork. He migrated to Australia in 1965 and had no employment relevant to this case other than that which has already been recited. He returned to Lebanon and married in 1972, and came back to Australia in February 1973.

5. In assessing the weight which should be attached to the plaintiff's evidence it is important to bear in mind that he is illiterate and barely able to speak English. His evidence was given through an interpreter.

The plaintiff’s condition
6. There is now general agreement that as a consequence of his ARPD the plaintiff has a 10 to 20 per cent impairment of lung function. He suffers and has suffered from a number of unrelated conditions including a back injury which led to his ceasing work altogether in September 1976. Additionally, he suffers from emphysema, probably as a result of smoking, and he has had coronary artery by-pass surgery. Each of these conditions affects his respiratory capacity.

7. A precise assessment of the extent of his impairment has been made difficult by reason of either his inability or his unwillingness satisfactorily to complete lung function testing. Nevertheless, as has been noted, there is no dispute he has a compensable impairment of 10 to 20 per cent.

Areas of dispute
8. There are two principal areas of dispute. First, whether a pleural effusion, which he experienced in 1985 and which required hospitalisation for aspiration was related to his ARPD and, secondly, whether he suffers a psychiatric condition, said to be an adjustment disorder with severe anxiety and fear, related to his asbestos disease.

9. A large number of medical reports has been tendered. The only reports to which I have been referred are those of Dr Paul Despas, a specialist thoracic physician who treated the plaintiff between 1985 and 1988 and who saw him again on various occasions between 1993 and 1998, Dr Michael Burns, another thoracic physician, who was qualified by the plaintiff for the purpose of this case, and Dr Graham Edwards, a consultant psychiatrist, who was qualified by the plaintiff's solicitors. Dr Burns gave evidence and was cross-examined by counsel for the defendants. No other doctor was called.

Pleural effusion
10. The first question to be determined is whether the pleural effusion, which occurred in 1985, resulted, in the relevant sense, from the plaintiff's asbestos condition. On this question there are only the reports of Dr Despas.

11. In January 1985, Dr Despas examined chest x-rays which disturbed him. This was because he observed a substantial left-side pleural effusion. Reading a report of 18 January 1985 and subsequent reports it is easy to infer that Dr Despas considered the possibility that there was something sinister occurring in the plaintiff's lungs. He ordered further radiological examination and, in a second report of 18 January 1985, observed there was bilateral calcification in the mid zones and a left pleural effusion. The plaintiff was prescribed antibiotics, on the assumption that the cause of his pain and discomfort was an atypical pneumonia.

12. On 30 January 1985, Dr Despas reported the results of investigations to the plaintiff's general practitioner. Tuberculosis was excluded and a pleural biopsy negatived malignancy or granuloma formation. These results led Dr Despas to the view that there was a non-specific inflammation.

13. On 27 February 1985, after a follow-up consultation, Dr Despas said the plaintiff looked quite well and had no abnormal physical signs. He expressed the view that the left-sided pleural effusion was of unknown cause. He recited that the plaintiff had a history of asbestos exposure. By 27 February 1985 the pleural effusion had completely cleared though there was some haziness at the costophrenic angles which he thought was due to pleural disease. Dr Despas thought it appropriate to arrange a CT scan, noting that he would see the plaintiff again after that had been done.

14. The next report of Dr Despas provided is one of 7 June 1985, in which Dr Despas said of the pleural effusion that its cause was never definitively diagnosed. In September 1985 at another follow-up examination, Dr Despas observed that there were no abnormal physical signs and only a few vague constitutional symptoms of questionable relevance. He noted that the radiology showed bilateral pleural changes.

15. In February 1986, Dr Despas wrote that the plaintiff looked very well, adding, however, that he had some discomfort over the left hemithorax. Speaking of the pleural effusion Dr Despas said:

He has had several years exposure with James Hardie and this syndrome may be a consequence of his asbestos exposure.
I conclude from his use of the word “may” , that Dr Despas was speaking of a possibility, rather than a probability, of a relationship between pleural effusion and the plaintiff's asbestos exposure.

16. In March 1988, the plaintiff was again examined by Dr Despas. The doctor detected a few wheezes at the bottom of the plaintiff’s lungs and expressed the view that there was some airways obstruction, probably due to cigarette smoking. He added the thought that the plaintiff's pleural disease could have been a consequence of asbestos exposure.

17. The next report of Dr Despas which has been placed before me is one which bears date 23 September 1993. In that report Dr Despas said:

In the early eighties he had a pleural effusion that went undiagnosed, it was followed for a fair while and a presumptive diagnosis was that it probably followed some asbestos exposure in bygone days.
Additionally, Dr Despas referred to radiology studies undertaken between 1986 and 1988 noting that they were stable, that is, there was no relevant change. He recorded the plaintiff's difficulty in walking, which was accompanied by exhaustion and, by reason of the description given to him, he did not believe that that difficulty was caused by cardiac disorder. When the plaintiff was examined on that occasion Dr Despas found no abnormal signs and thought the plaintiff looked well. He noted mild airflow limitation which he thought due to the plaintiff's cigarette smoking. Again, radiology was undertaken and Dr Despas observed that the radiological situation was unchanged. He observed there were some changes in respect of which he thought there was no evidence that they and the pleural effusion were due to asbestos exposure because there were no pleural plaques present. He added:
On the other hand the man has had asbestos exposure and that accounts for just the same as pleural plaques.
He was unable to explain the plaintiff's complaints as a result of anything he observed at examination.

18. When next seen in September 1993, Dr Despas thought that the plaintiff's ventilation was in excess of oxygen consumption and, as a consequence, thought it to be due to physical unfitness. In May 1998, radiology demonstrated no changes; antibiotic treatment was continued. In a report of 13 May 1998, having examined high resolution CT scans, Dr Despas said they demonstrated the presence of ARPD together with an area of rounded atelectasis involving the right lower lobe. He did not think asbestosis was present.

19. PX5 is a copy of a report of a high resolution CT scan, seemingly conducted on 11 May 1998. It is there recorded that the plaintiff had bilateral calcified and non-calcified pleural plaques. This is the first recorded mention of pleural plaques. I am asked to infer that because pleural plaques are slowly progressive and because they can exist uncalcified before calcifying, the cause of the plaintiff's pleural effusion in 1985 was his ARPD. I am unable to draw that inference. There are several inferences available and the one I am invited to make is not more probable than others. In my view it is significant that, at various stages, the plaintiff was treated, apparently successfully, by antibiotics. The effusion could equally have resulted from an infective process. The observation in the report of 23 September 1993 that: “a presumptive diagnosis that [the pleural effusion] probably followed some exposure in bygone days” was not recorded in 1985, and it is not clear whether Dr Despas intended to ascribe a temporal or a causative connection Dr Despas is a thoracic physician, well known to judges of the Tribunal for his treatment of patients suffering asbestos diseases. He has not established a causal connection between the pleural effusion and the plaintiff's asbestos disease. In any event, the effusion in 1985 is of little overall significance in this case; it troubled the plaintiff for only a month or so.

Psychiatric condition
20. The second question to be determined is whether in truth the plaintiff suffers a psychiatric disorder as a consequence of his disease.

21. The Statement of Claim alleges that the plaintiff suffers depression, anxiety and an adjustment disorder. In support of these allegations I have, as noted, the report of Dr Edwards, a consultant psychiatrist. He reported to the plaintiff's solicitors on 14 October 2002. He was not charged with the treatment of the plaintiff and no psychiatrist has treated the plaintiff. At the consultation with Dr Edwards, the plaintiff's wife acted as an interpreter. In my view it is significant, as recorded by Dr Edwards, that the plaintiff:

…was a man of few words and was very imprecise in relation to details and appeared quite uncomfortable trying to recollect aspects of his long-term history.
In many respects the history recorded in the report of Dr Edwards is not identical with the evidence given by the plaintiff. The plaintiff has spoken of a fear of contracting cancer. I am prepared to assume, though this is doubtful, that that fear exists because of the fact that he has ARPD, but I am not satisfied that he has a recognised psychiatric illness. Many people exposed to asbestos, depending on their knowledge and what may have been said to them, develop a fear that their disease will progress to another and more sinister one. Some people, also, are so concerned by asbestos exposure, that they develop psychiatric illnesses without suffering an asbestos disease.

22. The plaintiff has a son who is a doctor. He has spoken to his son about the possibility of his developing cancer. It is well known that smokers are at risk of developing cancer, and though the plaintiff says that his consumption of cigarettes now is limited to something of the order of seven per day, he has told at least one doctor that his consumption was one packet per day, over what period is not clear, but he commenced smoking in 1965. It is equally consistent that his fear of developing cancer has its origin in the fact that he is a smoker and earlier was a heavy smoker, as it is because of asbestos exposure. I am not disposed to accept the opinion of Dr Edwards when it appears that the greater part of the consultation was with the plaintiff's wife, rather than the plaintiff, and also because symptoms and signs upon which a diagnosis of a psychiatric condition might be made were not present when the plaintiff gave evidence.

23. It should also be noted that a claim was put forward for the cost of psychiatric treatment in the future. There is no evidence that the plaintiff intends to undergo such treatment and I think that improbable in any event in view of the fact that he has undertaken no psychiatric treatment to the present.

Damages
24. Thus the plaintiff is, in my view, entitled to damages only for the consequences of a 10 to 20 per cent impairment of lung function. He is not entitled to damages for the consequences of the pleural effusion, nor for a psychiatric disorder.

25. There is little, if any, dispute about the plaintiff’s respiratory disability and its consequences. He has spoken of difficulties in mobilisation and of carrying out tasks, which, notwithstanding his injured back, he was able to do. These were minor tasks such as assisting with the shopping and, one assumes, some minor domestic tasks. The great bulk of the plaintiff's respiratory difficulty, however, has its origin in non-compensable factors. He experiences chest pain and interrupted sleep. Doing the best I can to do justice between the parties, I think an appropriate amount to compensate the plaintiff for the discomfort that he has had and will continue to have by reason of ARPD is $40,000.

26. There is no suggestion that the plaintiff's life expectancy has been shortened as a result of his ARPD. It seems he comes from a family of long livers; his father, it is said, died at the age of 102 and his mother at 99. According to current Australian life tables an Australian male of the plaintiff's age has a life expectancy of 16.44 years. I think it appropriate to allocate 15 per cent of general damages to the past. My view is that the disease first manifested itself in 1993. The interest component, I am informed by counsel computes to $1,320.

27. Thus the plaintiff is entitled to damages of $41,320.

Apportionment
28. The question now to be determined is the contribution which should be made to the judgment sum by each defendant.

29. As observed earlier, the plaintiff was employed by Wunderlich for something in the order of 12 months and by JHC for something in the order of 30 months. It is the case that generally his exposure to asbestos products manufactured by Wunderlich was not as intense as the exposure from products manufactured by JHC. Whilst employed by Wunderlich he was required to handle, for the most part, moist AC sheets which would not and did not release as much dust as dry sheets of asbestos cement. While employed by JHC he did handle dry sheets. In the employ of Seltsam, he was required, from time to time, to carry bags containing loose asbestos. These bags were 25 kilograms in weight and were carried on his shoulder. It is accepted they contained asbestos, and dust was released from them and inhaled by the plaintiff. He was also required to sand fibro cement products. His employment by JHC was in character much the same as his employment by Wunderlich, though its duration was longer. ARPD is the result of a cumulative process and constitutes an injury which is not indivisible. By reason of the nature of the employment tasks carried out for each employer and by reason of the intensity and duration of exposure it is my view that the first defendant should bear liability to pay 25 per cent of the damages and the second defendant 75 per cent.

Verdicts, judgment and costs
30. Thus there will be verdict and judgment for the plaintiff against the first defendant in the sum of $10,330.

31. There will be verdict and judgment for the plaintiff against the second defendant in the sum of $30,990.

32. The defendants will pay the plaintiff's costs as agreed or assessed in the same proportion as their liability to pay damages.

33. The plaintiff may seek further damages pursuant to s 11A of the Dust Diseases Tribunal Act should he develop all or any of the conditions of asbestosis, mesothelioma of the pleura or peritoneum, or asbestos induced carcinoma of the lung.

Mr D G Letcher, QC instructed by McDonnell Schroder appeared for the plaintiff

Mr G P F Rundle instructed by Windeyer Dibbs appeared for the first defendant

Mr B H Hughes instructed by A O Ellison & Co appeared for the second defendant