Nottle v Wallaby Grip Ltd

[2003] NSWDDT 10

Dust Diseases Tribunal

of New South Wales

CITATION:	Nottle v Wallaby Grip Ltd and Anor [2003] NSWDDT 10
PARTIES:	Brendan James Nottle Wallaby Grip Ltd Wallaby Grip (BAE) Pty Ltd
MATTER NUMBER(S):	473 of 2002
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Damages :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	30 April 2003
EX TEMPORE JUDGMENT DATE :	04/30/2003
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D G Letcher QC instructed by Turner Freeman FOR DEFENDANT Mr A Scotting instructed by Acuiti Legal

JUDGMENT:

1. The plaintiff, Brenton James Nottle, claims damages from Wallaby Grip Ltd and Wallaby Grip (BAE) Pty Ltd in consequence of his having contracted the fatal disease of mesothelioma as a result of their negligence. Neither defendant wishes to be heard on the issue of liability and it is unnecessary to give reasons to support a verdict for the plaintiff. The issues which remain concern the quantum of damages.

General Damages

2. The plaintiff was born on 14 December 1936 and is now only 66 years of age. He retired in 1988 and has enjoyed a fulfilling retirement, golfing twice each week, walking regularly with his wife and being deeply involved in the community. He has a daughter and a son who have succeeded in life beyond the expectations of all but the most optimistic parent. He has six grandchildren the youngest of whom is one. He is very close to his family.

3. In or about August 2002 the plaintiff developed respiratory symptoms and on 14 November 2002 he was given his diagnosis which he said he found “devastating.” Since that time he has experienced episodes of extreme pain unrelieved by drugs as strong as morphine. He has had multiple medical interventions including a pleurodesis, in which by the introduction of talc into the lining between his lung and his chest wall, inflammation is caused so that the lung bonds to the chest wall in the healing process. This is an exquisitely painful procedure. Chemotherapy and radiotherapy have now removed the plaintiff’s symptoms of pain although he does suffer serious fatigue and weakness. He is unable to walk more than a kilometre and sleeps during each day in the afternoon and sometimes each morning. The quality of his former active life has been terribly disrupted.

4. The defendant submits that because the plaintiff has achieved a relatively advanced age of 66 and is in no pain, the damages appropriate to his pain and suffering ought be in some sense modified in comparison with some others who suffer from this disease. I think in the present case the conclusion may be to the contrary. The plaintiff although stoic in evidence admitted to feeling very sad and feeling “let down badly.” Although the future course of this disease will visit upon him unrelenting exquisite pain, the greater part of his suffering is torment of mind. The plaintiff has what is in one sense a relatively short period of perhaps 8 or 12 months to live, but it is to him an appalling prospect of time during which he will suffer increasing mental distress because of his impending needless death. That suffering will increase and compound most awfully his physical suffering. I have described, in other matters, the physical course of this disease. It is unnecessary to repeat these comments here today in the presence of the plaintiff and his wife.

5. Taking into account the particular circumstance of Mr Nottle I award $190,000.

The Cost of Home Maintenance

6. The plaintiff was an extremely active and highly skilled cabinet maker. He has been very houseproud and a claim is made in relation to that work which he himself would have done upon his house but which because of his disabilities he is no longer able to perform. The claim has been the subject of a quotation by a Mr John Whitbread and he there sets out his quotations for labour for repairs to a pergola in the sum of $800; a new front gate, $600; cleaning gutters, $100; painting the pergola and gazebo, $1,075; painting a front fence $528; painting the outside of the house, $3,700, and painting the interior of the house, $8,000.

7. The plaintiff gave evidence that since his retirement some 15 years ago he has twice painted the exterior of his house, the last time last year. It does not in that circumstance seem reasonable that the amount of $3,700 for painting the outside of the house should be allowed.

8. The quotation includes $8,000 for painting the interior of the house. That does seem on the face of his estimated time of six weeks, excessive. Similarly the quotation for painting the pergola and gazebo of $1,075 seems excessive. It is difficult to be exact in these matters, however, I believe $6,000 fairly reflects the labour which is necessary to maintain the plaintiff's home from deterioration over the next 12 months.

9. So far as interest on general damages is concerned I allow interest at 2 per cent on $90,000 over seven months, which comes to $1,050. I acknowledge that the greater part of the plaintiff’s physical suffering will be in the future but nevertheless the greater part of this suffering is the mental torment which he has now endured, stoically I might say, for those months.

Loss of Expectation of Life

10. The defendant submits $15,000 is an appropriate figure. Although a conventional sum is awarded for loss of expectation of life the notion behind the award of damages is to give some compensation to the plaintiff for the loss of those pleasures which he would have enjoyed in the future. The sum has become conventional and modest because upon the birth of any child the future is unknown and some persons suffer much tribulation and little pleasure throughout the course of their lives. Others, of course, have extremely felicitous lives and have lost or would otherwise lose a great deal of pleasure. The contentment of Mr Nottle and his life, his family, his sport and his cabinet making are a model. I have no cause to believe other than that the plaintiff would have, had it not been for this illness, lived an extremely happy twilight. I award $20,000.

Other Damages

11. It has been agreed between the parties that the plaintiff should receive as part of his damages the cost of equipment to assist him in his debility, $2,500. The cost of past care is agreed at $1,000. The cost of future care is agreed at $35,000. The cost of future hospital and medical expenses is agreed at $25,000. The cost of past out of pocket expenses is agreed at $11,917.60.

12. Verdict and judgment for the plaintiff in the sum of $292,467.60.

13. The defendants are to pay the plaintiff’s costs.

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

Mr A Scotting instructed by Acuiti Legal appeared for the defendants