Phillip Raymond Kirkpatrick v Babcock Australia Pty Ltd

[2009] NSWDDT 4

Dust Diseases Tribunal

of New South Wales

CITATION:	Phillip Raymond Kirkpatrick v Babcock Australia Pty Ltd [2009] NSWDDT 4 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	Phillip Raymond Kirkpatrick Babcock Australia Pty Ltd
MATTER NUMBER(S):	8246 of 2008
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	DUST DISEASES TRIBUNAL :- Damages
DATES OF HEARING:	16, 26 and 27 March 2009
DATE OF JUDGMENT:	1 April 2009
LEGAL REPRESENTATIVES:	Mr D J Higgs SC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff Mr G F Little SC instructed by Moray and Agnew appeared for the defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number 8246 of 2008

Philip Raymond Kirkpatrick

v

Babcock Australia Pty Ltd

1 April 2009

JUDGMENT

CURTIS J

Introduction

1. The plaintiff, Mr Philip Kirkpatrick, has contracted mesothelioma as a result of his exposure to asbestos dust and fibre as an engineer in the employment of the defendant, Babcock Australia Pty Ltd (formerly Babcock and Wilcox).

2. Babcock Australia Pty Ltd admits liability.

General Damages

3. Mr Kirkpatrick was born on 21 March 1948 and has just turned 61. He has been married to his wife Jennifer for 34 years and has two children, Shane, aged 27 and Janelle aged 30. Janelle is the mother of Mr Kirkpatrick's only grandchild, Aaron, born on 14 October 2008. The family is close and affectionate.

4. Prior to contracting the disease Mr Kirkpatrick was fit, healthy and active. He enjoyed playing golf, boating, bushwalking, going out to dinner, and the company of his family and friends. He enjoyed music and played the guitar. He had a particular attachment to his new grandson. He loved his work and his family. His life expectancy at the age of 61 was 24.45 years.

5. Professor Brian McCaughan describes mesothelioma as “the most terrible disease”. Dr Schneeweiss says that the pleural pain caused by the disease is “one of the most severe pains known to mankind.” The pleura is “exquisitely sensitive, carrying a large number of pain receptors" and pain from mesothelioma is “almost so painful, it interferes with the desire to breathe”.

6. Mr Kirkpatrick's life has been destroyed by the mesothelioma. He is acutely aware that he will soon die a miserable and “very undignified death”, his suffering compounded by the inevitability of his fate. What little life remains to him will be blighted by exquisite physical and mental pain, suffered without hope, purpose, or relief.

7. His symptoms commenced in November 2006 when he became conscious of right-sided chest pain and shortness of breath. On 2 December 2006 he experienced acute pain in the right side of his chest and severe breathlessness while he was swimming. The next day he visited his General Practitioner, Dr Chris Hadgis, who diagnosed a right-sided pneumothorax and admitted him to the Hornsby Hospital Emergency Department.

8. On 13 December 2006 Mr Kirkpatrick underwent a pleural biopsy, pleural aspiration and talc pleurodesis, performed by Dr William Meldrum-Hanna. While in hospital, the Respiratory Registrar made three unsuccessful attempts to aspirate fluid from the right pleural cavity. Mr Kirkpatrick experienced extreme pain on each attempt.

9. Following this surgery Mr Kirkpatrick suffered significant problems with fevers and night sweats.

10. Mr Kirkpatrick was examined by his General Practitioner, Dr. Chris Hadgis, on many occasions between January 2007 and February 2007 for dressings to his surgical wounds because of persisting discharge.

11. In June 2007 Mr Kirkpatrick travelled overseas with his wife on a European holiday. The holiday had been pre-arranged in 2006. They were away for about a month. During this period Mr Kirkpatrick had constant problems with fatigue, pain and breathlessness.

12. Upon his return from overseas Mr Kirkpatrick consulted Dr Ogborne, a respiratory specialist, and arrangements were made for him to have a CT Scan and blood tests. Analgesics were prescribed to relieve his pain.

13. On 2 August 2007 he presented to Dr. Hadgis, telling the doctor that he could not bear the pain any longer. Dr. Hadgis arranged for him to be examined by Professor Brian McCaughan at the Royal Prince Alfred Hospital on an urgent basis.

14. On 14 August 2007 Mr Kirkpatrick was admitted to the Strathfield Private Hospital and Professor McCaughan performed a right sided thoracotomy, partial pleurectomy, pulmonary decortication and a further talc pleurodesis. Numerous biopsies were taken.

15. On 16 August 2007, Mr Kirkpatrick, still in severe pain following surgery, was informed by Professor McCaughan that he had a malignant pleural mesothelioma and would die in less than two years. Understandably he immediately broke down in tears.

16. On 15 September 2007, Mr Kirkpatrick, suffering from increasing stomach pain, was admitted to the Emergency Department of Hornsby Hospital for treatment.

17. On 9 October 2007 he commenced chemotherapy. He was then in intense pain, and began vomiting during the treatment.

18. Between 13 October 2007 and 20 October 2007 Mr Kirkpatrick was treated in the Royal Prince Alfred Hospital for pain management. When discharged from hospital he was prescribed MS Contin, a powerful analgesic, to be taken morning and night, liquid morphine for breakthrough pain, Amitriptyline for nerve pain, and Movicol for treatment of constipation.

19. On 22 October 2007 he was again admitted to the Hornsby Hospital with fevers and constipation, vomiting and abdominal pain.

20. Between 29 October 2007 and 21 January 2008 Mr Kirkpatrick received a course of chemotherapy. He experienced significant side effects from this treatment, including vomiting, constant nausea, loss of sense of taste and smell, vision difficulties, mouth ulcers, body rashes, reduced appetite, broken sleep, problems with urine flow and fatigue.

21. On 12 February 2008 he received a blood transfusion due to the amount of painkilling medication he was taking.

22. Between 2 June 2008 and 6 October 2008 Mr Kirkpatrick received a further six doses of chemotherapy.

23. In August 2008 he travelled to Fiji with his wife to attend her nephew’s wedding. He was in pain throughout the entirety of the trip.

24. On 27 December 2008 Mr Kirkpatrick was again taken to the Hornsby Hospital Emergency Department with severe constipation and abdominal pain, and on 4 January 2009 he was taken to the Royal Prince Alfred Hospital Emergency Department with neuropathic chest pain and constipation.

25. On 5 January 2009 Mr Kirkpatrick commenced radiotherapy. After 13 days of this treatment with no pain relief, he was, on 19 January 2009 admitted to the Royal Prince Alfred Hospital for pain control and management. A nerve block in the cervical spine between C1 and C2 failed to relieve the pain. He was discharged from the hospital on 10 February 2009.

26. Between 20 February 2009 and 26 February 2009 Mr Kirkpatrick was admitted to the Sydney Adventist Hospital for pain management.

27. On 4 March 2009, in the Royal Prince Alfred Hospital, he underwent a procedure to widen his prostate to counter fluid retention caused by morphine based analgesics.

28. Mr Kirkpatrick's libido was completely destroyed by the first surgery on 13 December 2006. Any physical contact can induce pain. He is hypersensitive to touch when in pain. This surgery also left him with right shoulder droop which has distorted his spine.

29. Mr Kirkpatrick gives graphic evidence of his pain. He described himself as being “reduced to tears” and “writhing in pain on the floor”. His treating Oncologist, Professor Michael Boyer, speaks of “many months [of] intense and unremitting pain." This pain, which for many months was “impossible to control”, has continued despite repeated hospitalisation, chemotherapy, radiotherapy, antero-lateral spinal cordotomy and the use of many different opiate analgesics.

30. Professor Boyer says that "Mr Kirkpatrick has survived much longer than is usually anticipated for this type of mesothelioma… his prolonged life expectancy has come at a significant price… in comparison with most patients with mesothelioma he has suffered more severely and for longer".

31. General damages must reflect compensation not only for the acute physical suffering endured by Mr Kirkpatrick, but also compensation for his overwhelming mental anguish. I award the sum of $280,000.

Interest on past General Damages

32. I allow interest at 2 per cent on $200,000 for 2.5 years; $10,000.

Loss of Expectation of Life

33. I allow a conventional sum of $24,000.

Past Out-Of-Pocket Expenses

34. These are agreed in the sum of $6,656.

Future Out-Of-Pocket Expenses

35. I disallow the claim for the cost of a chairlift to Mr Kirkpatrick's study. I appreciate that Mr Kirkpatrick may wish to continue long-standing family arrangements pursuant to which unoccupied upstairs bedrooms are reserved for visiting children, rather than being converted to a study, however the cost of $10,300 exceeds the reasonable cost of accommodating his wishes in this regard.

36. The claim is allowed in the otherwise agreed sum of $53,139.

Section 15B Civil Liability Act Damages

37. Agreed in the sum of $15,000.

Past and Future Griffiths v Kerkemeyer Damages

38. Agreed in the sum of $75,000.

Future Economic Loss

39. Mr Kirkpatrick commenced work as a draughtsman with Babcock and Wilcox in 1966, before completing a degree in chemical engineering at the University of Technology. He left Babcock and Wilcox in 1978, and, in 1980, after a short period with Simon-Carves, another engineering company, he established himself as a consultant to the mining industry. In December 2000 he accepted employment with Barclay Mowlem Pty Ltd as the company’s Principal Mechanical Engineer. In February 2006 he was asked by Mr Robert Fletcher, an Executive Director of Bilfinger Berger Services (Australia) Ltd, to join that company as Principal Mechanical Engineer, because "he was one of the best mechanical engineers going around". Bilfinger is a very large enterprise with over 3000 employees across Australia and New Zealand.

40. After joining Bilfinger, Mr Kirkpatrick was promoted to the position of Engineering Manager to oversee the work of all engineers employed by the company. He is well known in the mining industry, and obtained for Bilfinger an amount of new business because of his personal reputation. He has declined offers of employment by other companies in the engineering field.

41. On December 2008 Mr Kirkpatrick instructed his solicitors that, uninjured, he would have continued working for Bilfinger on a full-time basis until the age of 65 and thereafter for three days each week from age 65 to retirement at the age of 70.

42. When giving evidence on 16 March 2009, Mr Kirkpatrick said that uninjured he would have worked full-time to the age of 70, and from then on part time. He gave three reasons for this change of heart. He says that his wife, five years his junior, intended to continue her work as a kindergarten teacher until she was 65 and he 70; he learned his employer had plans to promote him to a senior role as Operations Manager, offering him new prestige and new challenges; and the value of his superannuation fund had declined from $900,000 to $600,000.

43. I accept Mr Kirkpatrick entirely as a witness of truth, however intentions are seldom static. Mrs Kirkpatrick only works three days a week, and Mr Kirkpatrick's earlier intention to work three days a week after his retirement at the age of 65 would match the demands of his wife's employment. I am not convinced that Mrs Kirkpatrick's intentions explain the change of heart.

44. The second reason given by Mr Kilpatrick for revising his intentions is provisional. The promotion foreshadowed by Mr Fletcher, the Operations Director of Bilfinger, was contingent upon Bilfinger purchasing additional businesses, and increasing the number of employed engineers from 100 to 500 over the course of the next two or three years. While possible, I do not think this contingency probable.

45. I find the third reason persuasive. When in December 2008 Mr Kirkpatrick instructed his solicitors, it is probable that he declared the intention that he held before November 2006 when he contracted mesothelioma. Thereafter, gravely ill as he was, he probably did not reflect on the necessarily hypothetical question of his intentions had he not fallen ill. His earlier intention was held before the stock market crash caused a substantial diminution in his superannuation fund.

46. It is entirely plausible that in the altered circumstances, had he not fallen ill, Mr Kirkpatrick would have revised his plan of retiring at the age of 65 and continued working to recoup the losses of his fund.

47. Mr Kirkpatrick conceded that if Mrs Kirkpatrick were to alter her intentions, or if the losses in his superannuation fund were recouped by economic recovery, then he may have, uninjured, further revised his retirement intentions.

48. Mrs Kirkpatrick said in evidence that she greatly enjoyed her work and the satisfaction and companionship it offered. I think it extremely unlikely that she will retire before the age of 65. The date and extent of economic recovery are unknown.

49. I find that Mr Kirkpatrick, who greatly enjoyed his work, and who is now better informed as to the instability of financial markets, would, uninjured, have continued full-time work as an Engineering Manager until the age of 70 in order to re-establish his retirement savings on a sounder basis. Thereafter, his wife being retired, I find that he would have worked two days each week for 40 weeks each year until the age of 75.

50. Because of the brevity of the period, and the security of his employment, the discount on the value of the loss until the age of 65 will be 5 per cent. The possibility that Mr Kirkpatrick may have again changed his mind as to working to age 70, or working part time after the age of 70, will be reflected in a 25 per cent discount on the value of the loss after the age of 65.

51. The possibility that Bilfinger may have promoted Mr Kirkpatrick to the position of Operations Manager requires an additional allowance of 20 per cent of the value of the increased income that he would have received had he been promoted to such a post on 1 January 2013 and served in that capacity until his 70th birthday on 21 March 2018. The increased salary was not available in respect of part time work thereafter.

52. Mr Kirkpatrick estimated that he spent no more than $100 per week in maintaining himself at work. I do not think this estimate can include the cost of rates, electricity and maintenance on his house. I find the cost to be the average figure estimated by the Australian Bureau of Statistics at $185 per week.

53. The evidence is that in the employment as an engineering manager Mr Kirkpatrick would have received a gross salary of $235,000 a year. In addition, he would have received $15,000 in annual bonuses and a further $15,000 in a retention bonus. The evidence is also that had Mr Kirkpatrick been promoted to the position of operations manager his annual salary would have been $300,000. In addition, he would have received annual bonuses.

54. On the findings of fact that I have made, economic loss is $1,307, 845.00.

55. There will be judgment for the plaintiff against the defendant in the sum of $1, 771, 640.00.

56. The defendant will pay the plaintiff’s costs..

Mr D Higgs SC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff

Mr G F Little SC instructed by Moray and Agnew appeared for the defendant

13/05/2009 - amended pursuant to slip rule - Paragraph(s) 53-56