Phillips v Amaca Pty Ltd

[2010] NSWDDT 11

Dust Diseases Tribunal

of New South Wales

CITATION:	Phillips v Amaca Pty Ltd [2010] NSWDDT 11
PARTIES:	Vivienne Mae Phillips (Plaintiff) Amaca Pty Ltd (Defendant)
MATTER NUMBER(S):	375 of 2009
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- mesothelioma - general damages - loss of earning capacity
CASES CITED:	Griffiths v Kerkemeyer (1977) 139 CLR 161 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
DATES OF HEARING:	20 July 2010, 21 July 2010, 27 July 2010
DATE OF JUDGMENT:	27 July 2010
EX TEMPORE JUDGMENT DATE:	27 July 2010
LEGAL REPRESENTATIVES:	P C B Semmler, QC with S Tzouganatos instructed by Turner Freeman appeared for the Plaintiff G F Little, SC instructed by Ellison Tillyard Callanan appeared for the Defendant

JUDGMENT:

JUDGMENT

O'MEALLY P

1. Vivienne Mae Phillips (the plaintiff) has contracted the fatal disease of malignant mesothelioma, as a result of inhaling asbestos dust and fibre released from products manufactured by James Hardie & Company Pty Ltd in whose shoes Amaca Pty Ltd (the defendant) now stands. Its liability to compensate the plaintiff has been admitted and my task is to assess the damages to which she is entitled.

The Plaintiff
2. The plaintiff was born on 7 July 1950 and hence is now sixty years of age. She was married for the second time in June 1995 and of her first marriage she has three adult children. She left school in 1968 and thereafter engaged in a variety of employments and undertook a variety of tertiary courses. She has a Bachelor of Arts degree in Behavioural Science from the University of Southern Queensland which she attended between 1989 and 1992. She also obtained a bachelor's degree in Applied Science and Applied Psychology, though she has not practised as a clinical psychologist.

3. Relevantly to her claim here, she has been employed in organisations which provide services to the physically and intellectually handicapped. Her work in that field, for the most part, has been in north coast areas of New South Wales. However, between 1998 and 1999 she was an office manager with Heather Bowen Personnel in Toowoomba in the State of Queensland. Throughout her adult life she has occupied herself in work, rearing children and study.

4. On-Focus is a non-profit organisation which initially employed the plaintiff as a manager in its office at Casino. Between 2004 and 2007 she was its Chief Executive Officer. For reasons which will later be discussed there was a change in her employment in 2008, and until November 2009 she was the Finance Manager of On-Focus. She resigned on 10 November 2009 when she received the diagnosis of malignant mesothelioma. She received salary until 10 March 2010.

5. Consequent upon the diagnosis, she and her husband sold the farming property on which they lived outside Casino. They moved to the Sunshine Coast of Queensland earlier this year. She now works four hours weekly doing voluntary work in a recycling shop.

The Disease
6. Malignant mesothelioma is a devastating and painful disease. Its pathogenesis is not yet known but it is, of course, accepted that it is, and in this case was, caused by the inhalation of asbestos fibres to the lung from where they migrate to the pleura or lining of the lung. The pleura is a very sensitive pain receptor populated by numerous sensory fibres. Mesothelioma is the growth of a tumour on the pleura. There is no cure and the tumour ultimately grows causing increasing pain and ultimately strangling the lung so that each breath is accompanied by exquisite pain. Normal breathing becomes impossible. At best, palliative care is all that is available.

7. In Australia the usual treatment when pain presents is morphine. When pain reaches a crescendo MS Contin is prescribed in the hope, not always realised, that further relief of pain will be occur.

General Damages
8. The plaintiff's first symptoms of mesothelioma began with shortness of breath in October 2009. The diagnosis of mesothelioma was, as noted, conveyed to her in November 2009. She underwent a talc pleurodesis. That is a surgical procedure involving the introduction of talc through a cavity made through the chest wall to cause the lung and pleura to adhere to the chest wall with the intention of fixing them in the thoracic cavity, thereby reducing the intensity of recurring pain, the build up of fluid, and the need to aspirate it. It is not effective to relieve a mesothelioma sufferer of the painful consequences of the disease. The procedure itself is painful and is followed by a painful convalescence.

9. The plaintiff is not yet at the stage of constant and unremitting pain. Nevertheless, she does experience chest pain on bending and back pain as well. She has severe pain across her back on the left side every couple of days. Her sleep is interrupted by pain and she is forced to lie on her right side or on her back in order to minimise the feelings of pain and discomfort while in bed. She suffers coughing, fatigue and lethargy. She has experienced a six kilograms weight loss since diagnosis and she needs to rest frequently. She is not yet taking pain relieving medication. Instead, like some other sufferers of mesothelioma, she has placed herself on what has been called an anti-cancer diet. Essentially, that involves the consumption of juice extracts from vegetables and fruits and a diet of similar items.

10. There is no doubt that as her disease progresses she will experience constant and unremitting pain for which pain relieving medication will be necessary. Experience demonstrates that the protocols for pain relief used in Australia plateau rather than remove the pain of mesothelioma.

11. Before her diagnosis the plaintiff was healthy and led an active life. As her employment history demonstrates and as her pursuit of further education confirms, she enjoyed working in specialist occupations.

12. It is relevant also to note that her father died of mesothelioma in 2002. She saw his progress from diagnosis to death and was affected emotionally by it. Now she is again emotionally affected by the certain knowledge that she will follow the same course. She has become angry, worried and shocked by the diagnosis and by the effects it will have upon her.

13. Her mother is still alive at age 80, though the transcript erroneously records her age as seventy (this would mean that her mother was ten when she gave birth). Apart from occupying her time doing voluntary work as earlier mentioned, the plaintiff engages in meditation sessions for two and a half hours on Tuesday mornings.

14. Counsel these days, at least those experienced in the jurisdiction as those who are appearing in this case are, seldom address on an allowance appropriate for general damages. Usually a range is put which takes into account the age at diagnosis, the likely duration of suffering and its physical and emotional effects. That has happened here.

15. The plaintiff has submitted a sum of $300,000 is appropriate for general damages. The defendant submits $200,000. My own view, and consistent with the trend in the assessment of general damages in the Tribunal, is that the sum appropriate to compensate the plaintiff for pain and suffering and loss of enjoyment of life and its amenities is $250,000. Of this, I would allocate $50,000 to the past.

16. It is not disputed that the plaintiff is entitled to the sum of $27,500 for loss of expectation of life.

Special Damages
17. Her past out of pocket expenses are agreed at $25,000. It is not disputed that her future medical and hospital expenses amount to $75,000 and the situation is the same in respect of past and future Griffiths v Kerkemeyer Griffiths v Kerkemeyer (1977) 139 CLR 161 expenses, for which an allowance of $70,000 should be made. That sum includes interest. It is agreed that the cost of necessary adaptive equipment to be used by the plaintiff as a consequence of disabilities created by the disease is $3,410 and that a sum of $4,000 might be awarded for naturopathic medicines.

18. A claim is made for the cost of alteration of the plaintiff's bathroom by elevating the shower recess. I can see no basis upon which that or any sum should be allowed. If anything, I would have thought it more appropriate to remove the hob or lower the entry to a shower recess to permit easier access, rather than raise it.

19. The remaining areas of concern are past economic loss and loss of earning capacity.

Past economic loss
20. In 2006 the plaintiff decided to leave the position of CEO of On-Focus and to turn her attention to the fields of finance and accounting. The plaintiff's deputy at On-Focus was one Fiona Miller. A plan was approved by the board of On-Focus that Fiona Miller should replace the plaintiff as CEO and be helped into the position by the plaintiff. The plaintiff had intended to leave that employment in 2009, but before then, the payroll officer of the organisation left. In order to ensure a seamless transfer of Ms Miller to the position of CEO, it was thought appropriate that the plaintiff remain with On-Focus as Finance Manager, a position specifically created so that consultation as appropriate could take place and the transfer occur.

21. The plaintiff came to that position in January 2008 and worked as Finance Manager for 45 hours per fortnight. At the beginning of 2009, she enrolled in a diploma course in accounting at a TAFE college and continued the course until November 2009 when the diagnosis was made. She passed eleven of the twenty-five required units. It is her evidence, which I accept, that it had been her intention to undertake a Masters degree in Commerce in 2011 in the field of professional accounting. As noted, following her resignation in November 2009, she continued to receive salary payments until 10 March 2010.

22. It is appropriate to record that the farming property on which the plaintiff and her husband lived was situated about twenty minutes drive from Casino. There they ran a few head of beef cattle. It was run as a hobby farm and provided a lifestyle which the plaintiff and her husband both enjoyed. It provided taxation concessions available to primary producers and as a consequence reduced the plaintiff's taxable income.

23. I accept it to be the fact that the plaintiff intended to work until age seventy. Her past employment history, her expressed intentions in evidence which were confirmed by others to whom reference will shortly be made, lead to the conclusion that she was a woman well motivated to work and one who wished to maintain herself in employment. It is relevant also to recall that there were financial reasons why she should maintain herself in employment for as long as she could.

24. After ceasing as CEO her employment by On-Focus continued on a part-time basis and occupied her over four days in a week. This left one day available to pursue other activity.

25. The plaintiff had been a patient of one Veronica Chadwick, a physiotherapist practising in Lismore. Lismore is about 20 minutes distant from Casino and, therefore, something in the order of 40 minutes from the plaintiff's home. Ms Chadwick had moved her practice from Victoria to Lismore, but she was without a bookkeeper and, after some discussion during the course of a physiotherapy session with the plaintiff, it was agreed that the plaintiff would be engaged by Ms Chadwick for four hours a week to do the bookkeeping and accounting. This discussion took place before the plaintiff's diagnosis.

26. With On-Focus the plaintiff would have earned $30.84 per hour and I am persuaded to the view that she would have worked there for 30 hours per week. This, I am informed, would have returned $865.80 per week net. I am satisfied also that until the present the plaintiff would have worked four hours per week at $25 per hour with Ms Chadwick. This I am told amounts to $75 a week net. Thus she would have earned a total of $940.80 per week net.

27. It has been submitted to me by Mr Little of Senior Counsel for the defendant, that in assessing her past economic loss I should take into account the deductions available to her in the conduct of the farm. I do not agree. In my view, the plaintiff is entitled from 10 March until today an award for past economic loss calculated on the basis that she would have earned $940.80 per week. If that figure is not correct then liberty is reserved to apply to vary it.

Loss of earning capacity
28. There is evidence from accountants which relates to the next item of damage to be considered, namely, loss of earning capacity.

29. It seems that the accountants have approached their task as being to assess future economic loss. Future economic loss and loss of earning capacity have elements of similarity, but they are not always the same thing. It has been submitted by Mr Little that the actual cost of producing income by way of enabling the exercise of capacity to work should be deducted from her potential gross income. That would require me to consider the deductions available to the plaintiff as a result of conducting the farming property. I am also asked to take into account the costs of operating the motor vehicle on the one day per week she would have travelled to Lismore. I do not agree. Her income with On-Focus and Ms Chadwick would have been derived from personal exertion, and work of the type she wanted to do was available to her. The farm was a hobby farm. The costs of travelling to and from work are not deductible expenses. The work as a volunteer, like the meditation sessions, is therapeutic and should not be considered.

30. The determination of the plaintiff’s loss of earning capacity involves a consideration of what the plaintiff could have earned had she continued working as she intended. Because of her mesothelioma she has lost the capacity to do so.

31. It is put to me that in the events that have happened it is unlikely that the plaintiff would have continued employment by Ms Chadwick. Ms Chadwick’s evidence was that her practice has increased by 50 per cent at least in the past six months. Because the plaintiff was unavailable, she employed one Jacqueline Standish. Ms Standish works 12 hours per week in the practice doing some of the work which the plaintiff would have been employed to do, and other tasks as well. Mr Semmler of Queen's Counsel for the plaintiff, urges upon me that the plaintiff would have worked for Ms Chadwick for substantially more than four hours per week, as Ms Standish does, and that that should be considered in assessing the plaintiff's loss of earning capacity.

32. It was the plaintiff’s intention to undertake further study. In my view it is not probable that she would have continued to work more than four hours per week in Ms Chadwick's physiotherapy practice. It is, in my view, possible, that she would have worked for longer than four hours; however I am not satisfied it would be probable, nor am I satisfied that she would have performed all the tasks now performed by Ms Standish.

33. It is urged upon me by Mr Little that the plaintiff’s earnings with Ms Chadwick should be considered taking into account the cost of maintaining and running her motor vehicle over a distance of 110 kilometres one day a week. Whilst it is undoubtedly correct that had she worked in Ms Chadwick's practice she would have been required to travel 110 kilometres per week that would have been merely as a matter of choice by her and the cost of travelling is not a consideration in determining her net income because the cost is not deductible.

34. So far as her maintenance during lost years is concerned, my view is that it is appropriate to assess that in the sum of $175 per week.

35. It is urged upon me that in this case the conventional deduction for vicissitudes should be reduced from 15 to 10 per cent, substantially because of the plaintiff's previous good health, her motivation to work and what is said to be her relatively youthful age. In my view, the conventional sum of 15 per cent should apply. This sufficiently takes into account the possibility that employment with Ms Chadwick may not have continued or its weekly duration may have varied and, contrary to the submission of Mr Little that it should be discounted to thirty per cent in accordance with the principles enunciated by the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, I am of the view that the conventional discount of 15 per cent is adequate for future contingencies.

36. On my findings past loss of income is calculated to be $18,441.64 and the amount for future loss of earnings taking into account the deduction for vicissitudes is $293,152.82 which should be rounded up to $294,000 to reflect the plaintiff’s loss of earning capacity. Consequent upon my findings, an amount appropriate for past loss of superannuation is, I am informed, $1,387. Also consequent upon the findings, the appropriate award for interest on past loss of earnings is $1,057.26. Consistent with the findings, future loss of superannuation would be $27,095.00.

37. Thus, the plaintiff is entitled to judgment made up as follows:

General damages $250,000.00

Interest on past general damages $750.00

Loss of expectation of life $27,500.00

Past out of pocket expenses $35,000.00

Future medical and hospital expenses $75,000.00

Past and future Griffiths v Kerkemeyer expenses and interest $70,000.00

Adaptive equipment $3,410.00.00

Naturopathic medicine $4,000.00

Past loss of income including superannuation and interest $20,886.19

Loss of earning capacity $294,000.00

Future loss of superannuation $27,095.00

Making a total of $797,461.19

38. There will be verdict and judgment for the plaintiff in the sum of $797,641.19.

39. I grant liberty to the parties to apply in respect of calculation of past economic loss, superannuation interest, loss of earning capacity and future loss of superannuation if so advised.

40. The defendant will pay the plaintiff's costs as agreed or assessed and indemnity costs from 18 June 2010.

P C B Semmler QC with S Tzouganatos instructed by Turner Freeman appeared for the Plaintiff

G F Little SC instructed by Ellison Tillyard Callanan appeared for the Defendant