Obst v Adelaide Brighton Cement Limited (No 2)
[2011] SADC 10
•11 February 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
OBST v ADELAIDE BRIGHTON CEMENT LIMITED (NO 2)
[2011] SADC 10
Judgment of His Honour Judge Barrett
11 February 2011
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
Fixing of special damages.
Held: The defendant is not liable for the costs of future medical treatment which would be required by reason of co-morbidities.
Griffith v Kerkemeyer (1977) 139 CLR 161 , applied.
PROCEDURE - COSTS
The plaintiff was awarded damages in excess of the filed offer. The defendant accepted that the plaintiff should receive his costs on a solicitor/client basis except for costs associated with the recall of the plaintiff's expert. The defendant submitted this was an indulgence for which the applicant usually pays.
Held: Application for recall was not such an indulgence that the plaintiff should be required to pay the defendant's costs or even lose his own costs.
Order that the defendant pay all the plaintiff's costs on a solicitor/client basis.
District Court Civil Rules 2006 (SA) r 188(6), referred to.
Nardell Coal Corporation (in liq) v Hunter Valley Coal Processing [2003] NSWSC 642, (2003) 178 FLR 400; Shaw v Jarldorn (1999) 76 SASR 28, considered.
OBST v ADELAIDE BRIGHTON CEMENT LIMITED (NO 2)
[2011] SADC 10
On 23 August 2010 I delivered judgment in this matter. I found that the plaintiff suffers from asbestosis caused during his employment with the defendant. I fixed general damages at $60,000, $30,000 for each of past and future loss. I indicated I would hear the parties as to the remaining heads of damage, namely interest on past general damages, past and future out of pocket expenses, past and future Griffith v Kerkemeyer damages, interest on past Griffith v Kerkemeyer and costs. I received written submissions from each party in October 2010. I delivered orally some findings on those topics on 23 December 2010 and heard final oral submissions on 4 February 2011.
Several heads of damage were agreed upon the premise of the judgment delivered on 23 August 2010. In other words, the defendant agreed that, in the light of my findings, certain sums would be the appropriate quantum of damages. Other heads of damage were the subject of argument.
The interest on the past general damages was agreed to be $4,800 and the past out of pocket expenses, $728.40.
There was no overall agreement about the future out of pocket expenses but several components were agreed. Given that I had generally preferred the evidence of Associate Professor Holmes where it conflicted with that of Dr Antic, the calculations were based on my acceptance of his evidence. I accept the opinion of Associate Professor Holmes that the plaintiff is at a 5 per cent risk of developing complications in relation to his asbestosis. Those complications include respiratory failure or cor pulmonale. I find therefore that the plaintiff should receive 5 per cent of his estimated future medical expenses to take account of that risk. In that way the calculation for future medical expenses is divided between damages where there are no complications and damages where there are complications.
As to the estimated future medical expenses without complications the plaintiff’s approach was to seek two-thirds of the costs of the anticipated visits to the general practitioner and respiratory physician and two-thirds of the anticipated costs of x-rays and CT scans. The reduction by one-third is an acknowledgement of the co-morbidities. I do not think that is the correct approach. The plaintiff suffers from a number of conditions which have nothing to do with his asbestosis[1]. Two of those conditions, asthma and emphysema, will require ongoing medical treatment similar to that required for his asbestosis. Some medical treatment would have been necessary irrespective of the injury caused by the defendant’s tort. The defendant is not liable for the costs of treatment that would be required for conditions not caused by its tort. In those circumstances certain costs should not merely be reduced by one-third to allow for the contribution by the co-morbidities, they should be excluded altogether. I would therefore disallow the claims for attendances by the general practitioner and respiratory physician and for lung function tests. CT scans would only be necessary by reason of the asbestosis but an estimated $500 would be required for x-rays in any event. I reduce the claim for CT scans and x-rays from $3,000 to $2,500.
[1] See judgment [76].
I make no reduction in the claim for $7,000 for future hospitalisation. The asbestosis increases the likelihood for the need for the plaintiff to be hospitalised. He is entitled to an award for that eventuality.
So far as the future medical expenses in the event of complications, I allow the plaintiff’s claim, reduced as it is to 5 per cent. I make that allowance because if there are complications caused by the asbestosis, then all of the medical expenses claimed would be compensable.
Based on my findings the defendant has agreed the quantum of damages under the heads of past and future Griffiths v Kerkemeyer damages at $24,246.75 and $25,558.70 respectively. Commendably counsel for the defendant acknowledged an error understating the plaintiff’s claim for interest on past Griffiths v Kerkemeyer damages. The quantum is $6,304.15.
For convenience I set out in schedule form the plaintiff’s claims for future medical expenses together with my findings. I also set out the Griffiths v Kerkemeyer schedule provided by the plaintiff.
FUTURE OUT OF POCKET EXPENSES (MEDICAL EXPENSES)
Future Medical Expenses without complications
Plaintiff’s claims
Damages Awarded
Visits to a general practitioner (reduced by 1/3)
Visits to a respiratory physician (reduced by 1/3)
X-rays and/or CT scans (reduced by 1/3)
Lung function tests (reduced by 1/3)
Hospitalisation
$1,333
Nil
$1,000
Nil
$2,000
$2,500
$1,000
Nil
$7,000
$7,000
$12,333
$9,500
$9,500
Future Medical Expenses with complications
Plaintiff’s claims
Damages Awarded
Visits to a general practitioner
$2,400
$2,400
Visits to a respiratory physician
$600
$600
Oxygen
$1,000
$1,000
X-rays and/or CT scans
$1,700
$1,700
Hospitalisation
$14,000
$14,000
Palliative Care
$14,000
$14,000
Nursing Care
$$10,000
$10,000
Nursing Aids
$$3,000
$3,000
$$46,700
$46,700
Claimed at 5 per cent
$$2,335
$2,335
$14,668
$2,335
$2,335
Total
11,835
PAST AND FUTURE GRIFFITHS V KERKEMEYER DAMAGES
Past Griffiths v Kerkemeyer damages
June 2002 to 30 June 2006 (212 weeks)
Task
Frequency
Cost per hour
Cost for period
Cleaning - washing, vacuuming, making the bed, bathroom, dusting, floors
5 hours per fortnight
$29.44
$15,603.20
July 2006 to 31 December 2010 (54 months/234 weeks)
Task
Frequency
Cost per hour
Cost for period
Home and Garden Maintenance - general maintenance, tending to fruit trees, mowing the lawn
2 hours per month
$32.82
$3,544.56
Cleaning – washing, vacuuming, making the bed, bathroom, dusting, floors.
5 hours per fortnight
$29.44
$17,222.40
$36,370.00
Total past care = $36,370.16 then reduced by 1/3 = $24,246.75.
Future Griffiths v Kerkemeyer damages
6. January 2011 to 31 July 2020 (114 months/494 weeks)
Task
Frequency
Cost per hour
Cost for period
Home and Garden Maintenance - general maintenance, tending to fruit trees, mowing the lawn
2 hours per month
$32.82
$7,482.96
Cleaning – washing, the bed, bathroom, dusting, floors. vacuuming, making
5 hours per fortnight
$29.44
$36,358.40
$43,841.36
Total future care = $43,841.36 then reduced by 1/3 = $29,227.55 ($59.15 per week) reduced by 9.5 year 3 per cent multiplier (432.1) = $25,558.70.
INTEREST ON PAST GRIFFITHS V KERKEMEYER DAMAGES
Calculated at (commercial rate) on $24,246.75 for 8 years = $6,304.15.
SUMMARY OF AMOUNTS ORDERED
Past out of pocket expenses
Future out of pocket expenses
Past Griffiths v Kerkemeyer damages
Future Griffiths v Kerkemeyer damages
Interest on past general damages
Interest on past Griffiths v Kerkemeyer damages
$728.40
$11,835.00
$24,246.75
$25,558.70
$4,800.00
$6,304.15
Costs
There remains the question of costs. The plaintiff has been awarded damages in excess of the offer filed by the defendant. The defendant accepts that, with one exception, the plaintiff should receive his costs on a solicitor/client basis. The exception sought by the defendant relates to the costs of the recall of the plaintiff’s expert, Associate Professor Holmes. The defendant submits that my order granting permission to the plaintiff to recall Associate Professor Holmes was an indulgence by the court and there is authority for the proposition that the party who benefits from an indulgence should pay the costs of that indulgence. The defendant seeks its costs associated with that application.
Mr Hanus referred to the decision of Campbell J in Nardell Coal Corporation (in liq) v Hunter Valley Coal Processing [2003] NSWSC 642, (2003) 178 FLR 400 at [144]. His Honour referred to a number of earlier authorities in support of that proposition. However His Honour went on to say that while that proposition might be the “usual principle” it is not a principle of universal application. The costs discretion is a broad one and District Court Civil Rules 2006 (South Australia) r 188(6) specifically refers to the situation where a plaintiff betters the filed offer. Doyle CJ in Shaw v Jarldorn (1999) 76 SASR 28 said in relation to the operation of that rule:
[9]… it will only be in limited circumstances that a defendant will be able to demonstrate that it is proper for the Court to order that the plaintiff should not recover costs as between solicitor and client.
Ms O’Connor opposed the defendant’s application submitting that her application to recall Associate Professor Holmes was not the sort of indulgence contemplated in Nordell Coal Corporation (in liq) v Hunter Valley Coal Processing (ibid). Further, she submitted that it was reasonable and unexceptional in the circumstances for an application to be made.
I will briefly recapitulate the circumstances of the application and its consequences. On 19 June 2008 Ms O’Connor announced that she would be calling no further witnesses. However she needed to put before the court information relating to the rate at which care for her client should be provided. She did not formally close her case. Mr Hanus then presented the case for the defendant the following day. He called Dr Antic. Dr Antic was cross-examined and released. Mr Hanus closed his case. I adjourned the case for addresses.
On 17 July 2008, some three weeks later, Ms O’Connor made an interlocutory application to have Associate Professor Holmes recalled. She submitted that matters testified to by Dr Antic had not been put to Associate Professor Holmes. Mr Hanus opposed the application arguing, inter alia, that the information not put to Associate Professor Holmes had arisen during cross-examination of Dr Antic, not in examination-in-chief. That contention was correct. There was no failure on Mr Hanus’s part to put his case. Mr Hanus further submitted that the matters sought to be raised through Associate Professor Holmes were already adequately covered.
I allowed the application because I concluded that a fuller exposition of some topics might be necessary to enable me to arrive at a just result.
Associate Professor Holmes was not available to be recalled until 24 April 2009. He gave evidence for a little over an hour and a half on that date. Addresses were then delivered on 30 June 2009. At the conclusion of Associate Professor Holmes’s evidence I offered the defendant an opportunity to recall Dr Antic. Dr Antic was not recalled.
Without analysing Associate Professor Holmes’s further evidence in detail, it did not substantially add to what he had said earlier. Nevertheless the application for recall was made bona fide, if somewhat belated, and I granted it. The further evidence was concise and not repetitive.
In those circumstances I do not think the application for recall was such an indulgence that the plaintiff should pay the costs associated with it. I have considered whether I should instead simply deny the plaintiff his costs of that application rather than require him to pay the defendant’s costs, but I reject that course as well.
I order the defendant to pay all the plaintiff’s costs on a solicitor/client basis.
Orders
The court orders as follows:
1.Judgment for the plaintiff in the sum of $133,473.00 comprising of the following:
a) Past general damages $30,000.00
b) Future general damages $30,000.00
c) Interest on past general damages $4,800.00
d) Past out of pocket expenses $728.40
e) Future out of pocket expenses $11,835.00
f) Past Griffith v Kerkemeyer damages $24,246.75
g) Future Griffith v Kerkemeyer damages $25,558.70
h) Interest on past Griffith v Kerkemeyer damages $6,304.15
2.Judgment on a provisional damages basis pursuant to s 9(1) of the Dust Diseases Act 2005 ( SA) for the plaintiff’s conditions of:
a) Pleural plaques; and
b) Asbestosis.
3.The dust diseases for which the plaintiff may make a further claim pursuant to s 9(1) of the Dust Diseases Act 2005 ( SA) are:
a) Lung cancer;
b) Asbestos induced carcinoma;
c) Mesothelioma; or
d) Any other asbestos related condition, other than those referred to in order 2 above.
4. The defendant pay the plaintiff’s costs on a solicitor/client basis.
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