Piatti v ACN 000 246 542 Pty Ltd

[2019] NSWDDT 7

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Piatti v ACN 000 246 542 Pty Ltd & Anor [2019] NSWDDT 7

Hearing dates:

12, 13, 14 August 2019

Date of orders:

23 August 2019

Decision date:

23 August 2019

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the plaintiff against the first defendant and the second defendant for $1,057,748.84.
(2)   Order the defendants to pay the plaintiff’s costs.
(3)   Grant leave to approach my Associate within 7 days if any party seeks a different costs order.
(4)   Stand over the cross-claims to a date to be fixed, for the making of further directions and if necessary, the allocation of a hearing date.

Catchwords:

DUST DISEASES – exposure to asbestos – need for evidence of product identification

 

DAMAGES – general damages – loss of expectation of life – gratuitous assistance

 

DAMAGES – loss of capacity to provide gratuitous domestic services to a dependant – s 15B Civil Liability Act 2002 – whether such damages available in estate claim – whether such damages precluded as analogous to damages for loss of earning capacity – whether estate precluded from recovery as claimant had no capacity after death – compensatory principle

DAMAGES - loss of capacity to provide gratuitous domestic services to a dependant – s 15B Civil Liability Act 2002 – life expectancy of dependant – whether services provided by claimant at time liability arose set an upper limit for such damages – whether need for the services is reasonable in all the circumstances – discount for vicissitudes

Legislation Cited:

Civil Liability Act 2002 (NSW)
Dust Diseases Tribunal Act 1989 (NSW)
Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Cases Cited:

Amaca Pty Limited v Raines [2018] NSWCA 216
CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1
Dionisatos v Acrow Formwork & Scaffolding Pty Limited [2015] NSWCA 281; (2015) 91 NSWLR 34
Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94
State of New South Wales v Perez [2013] NSWCA 149; (2013) 84 NSWLR 570

Texts Cited:

Brodaty et al, “Dementia time to death: a systematic literature review on survival time and years of life lost in people with dementia”, International Psychogeriatrics (2012) 24:7, 1034-1045
Luntz “Assessment of Damages for Personal Injury and Death” (4th ed, LexisNexis, para 1.1.5)

Category:

Principal judgment

Parties:

Roland Leon Piatti as Legal Personal Representative of the Estate of the Late Charles Rene Abegglen (Plaintiff)
ACN 000 246 542 Pty Ltd (First Defendant)
Amaca Pty Limited (Second Defendant)

 

Cross-Claim 1:
Amaca Pty Limited (Cross-Claimant)
Seltsam Pty Limited (Cross-Defendant)

  Cross-Claim 2:
Amaca Pty Limited (Cross-Claimant)
ACN 000 246 542 Pty Ltd (Cross-Defendant)

Representation:

Counsel:
S Tzouganatos (Plaintiff)
G Rundle (First Defendant/Cross-Defendant – ACN 000 246 542 Pty Ltd)
D A Priestley SC (Second Defendant/Cross-Claimant – Amaca Pty Limited)
D Miller (solicitor) (Cross-Defendant – Seltsam Pty Limited)

 

Solicitors:

  Segelov Taylor (Plaintiff)
Thompson Cooper (First Defendant/ Cross-Defendant – ACN 000 246 542 Pty Ltd)
Mills Oakley (Second Defendant/Cross-Claimant – Amaca Pty Ltd)
Colin Biggers & Paisley (Cross-Defendant – Seltsam Pty Limited)

File Number(s):

DDT 102/2018DDT 102/2018/1DDT 102/2018/2

Judgment

Introduction

1. Mr Charles Rene Abegglen died on 22 April 2018 from the asbestos-related disease of mesothelioma. Shortly prior to his death, on 13 April 2018, a Statement of Claim was filed against Granosite Pty Limited (Granosite) as first defendant and Amaca Pty Limited (Amaca) as second defendant. The current corporate name of Granosite is ACN 000 246 542 Pty Ltd.

2. Mr Abegglen alleged that between May 1965 and 1968 he was employed by the first defendant and that during that time he worked with asbestos cement fibro sheets manufactured and supplied by the second defendant. He further alleged that between 1968 and 1987 he was employed by Surface Shield Pty Limited (Surface Shield) (which has not been sued) and that during this period he worked with asbestos cement building materials manufactured and supplied by the second defendant. Finally, Mr Abegglen alleged that between 1987 and 2007 he worked as a self-employed carpenter carrying out the renovation of bathrooms and kitchens, and that during that period he worked with asbestos cement building materials manufactured and supplied by the second defendant.

3. After the death of Mr Abegglen, the present plaintiff Mr Roland Leon Piatti was substituted to represent the estate of Mr Abegglen.

4. By an Amended Statement of Claim filed on 29 October 2018, Mr Piatti alleged that during the period from May 1965 to 1968, Mr Abegglen was employed by and/or carried out work for the first defendant, as opposed to the original allegation of simply being employed.

5. A Statement of Particulars was filed on 6 November 2018 by Mr Piatti. One of the annexures to that Statement of Particulars was an affidavit by Mr Abegglen dated 19 April 2018. In paragraph 16 of that affidavit, Mr Abegglen said that he sub-contracted to Granosite, which explains the change of pleading between the original Statement of Claim and the Amended Statement of Claim, in respect of the relationship between Mr Abegglen and the first defendant.

6. The second defendant filed a cross-claim on 13 December 2018 against Seltsam Pty Limited (Seltsam). Mr Abegglen had said in his affidavit that he used both James Hardie and Wunderlich asbestos cement building products. Seltsam is the entity now responsible for any asbestos liabilities of Wunderlich. The cross-claim sought contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

7. Amaca filed a second cross-claim on 7 June 2019, against the first defendant, seeking contribution from a concurrent tortfeasor.

8. At the commencement of the hearing, the second defendant made application to sever the two cross-claims. This was not opposed by any other party and I thus granted an order for severance. Mr Miller, who appeared for Seltsam, did remain in court for part of the hearing. In those circumstances it is not necessary for me to make specific findings relevant to apportionment between the two defendants and the cross-defendant. That matter can be the subject of further discussion between those parties, or a further hearing if necessary.

9. The first defendant filed a Statement of Issues indicating that it was contesting exposure, quantum, and damages under s 15B of the Civil Liability Act 2002 (NSW). The second defendant filed a Statement of Issues which indicated that it contested exposure, damages including s 15B damages, and contribution/apportionment. Thus the defendants did not put in issue the existence of a duty of care, the content of a duty of care, or the breach of a duty of care, providing that exposure was proved.

10. The s 15B issue arose from the allegation that Mr Abegglen had been providing virtually full-time care to his long-term de facto wife Ms Margaret Piatti, who suffers from dementia. The present plaintiff Mr Piatti is the son of Ms Margaret Piatti.

Evidence for the Plaintiff

11. The late Mr Abegglen swore an affidavit on 19 April 2018. He was born in 1937 in Switzerland. There was no exposure to asbestos while in Switzerland. He came to Australia in 1962. He worked for 12 months for Peerless Engineering doing metal work, which did not involve any exposure to asbestos. During that time he met Margaret Piatti and moved in with her. They were together for more than 50 years. He then worked for 18 months for a company which built earthmoving equipment. Again he was doing metal work, and there was no exposure to asbestos.

12. Ms Piatti’s former husband, Rino Piatti, operated the business Granosite Pty Limited in Kogarah. The plaintiff took on work as a sub-contractor to Granosite. He did that work from 1965 to 1968. The business of Granosite involved spraying a substance onto the exterior of houses. The houses had to be sanded down first. Ninety percent of the houses which Mr Abegglen worked on were fibro. He removed the fibro cover strips using a claw hammer and then stripped back the paint on the fibro using an electric grinder with a disc. This was very dusty work. He worked in a dusty atmosphere, and he walked across fallen dust, all day.

13. If there was damage to a fibro sheet which was to be sprayed, then the sheet had to be repaired or replaced. Small holes were patched up with plaster. If the hole was bigger, the sheet was removed and placed with a new fibro sheet. These new fibro sheets were cut to size using fibro cutters. Mr Abegglen bought new fibro sheets from a hardware store close to wherever he was working. On about one in four jobs he replaced fibro sheets in this fashion.

14. Each job took about one week in total. Two to three days of this time was spent sanding the house and masking the fibro. The dust was very heavy. Sometimes he wore a paper mask but this did not help much.

15. In 1968 a Mr Lockie offered Mr Abegglen work with a different company Surface Shield. After a few months Mr Abegglen started doing work for Surface Shield installing cladding on the outside of homes. Most of the homes were made from fibro. He sub-contracted to Surface Shield between 1968 and 1973. To install the cladding he first removed the fibro cover strips. If there was a large hole in the fibro, the sheet was taken off and replaced with a new sheet. These new sheets were cut with fibro cutters or a saw. Mr Abegglen had to patch up holes or replace broken sheets on every second or third job.

16. At both Granosite and Surface Shield, Mr Abegglen bought new sheets from the store closest to wherever he was working. He said:

“The stores generally sold either James Hardie or Wunderlich fibro products and I bought whatever fibro sheets the store stocked. The James Hardie products had the word Hardiflex on the back in a dark colour.”

17. He handled, cut and installed new fibro sheets on every second or third job. He used to cut bits out of new fibro sheets to patch up holes. On one in every four jobs he removed the whole fibro sheet and installed a new sheet. These new sheets were cut to size using fibro cutters.

18. In 1973 Surface Shield asked Mr Abegglen to work in the office as a supervisor. He became the Assistant Works Manager. He did this job between 1973 and 1978. In 1978 he was promoted to be the Works Manager. In 1984 he became the Nominated Supervisor of Surface Shield. He continued in this role until he left the company in 1987, when he was 50 years of age.

19. Between 1973 and 1978 when he was the Assistant Works Manager, he spent most of his time on site. He measured out sites and quoted for jobs. He held a tape measure against the fibro sheets, and he found that dust got on his hands when he held the measure against the walls. He also put his hands under the bottom of the fibro and again got dust on his hands.

20. As the Assistant Works Manager Mr Abegglen supervised sub-contractors. He went on to sites where there was a problem and he inspected work that was being carried out. A lot of the time he was near contractors on site who were cutting and fitting new fibro sheets. When he became the Works Manager in 1984 he spent more time in the office but he still went to the site if there was a problem or he had to carry out an inspection.

21. Mr Abegglen left Surface Shield in 1987 and became a contractor trading as CRA Home Improvements. He sub-contracted to Norman Ross and later to Harvey Norman, doing kitchen and bathroom renovations. Some of the jobs required him to remove old fibro. He pulled these sheets out using crow bars. In the bathrooms he changed floor tiles. This involved the use of a Kango Hammer, which was like a small jackhammer. Underneath some of the floors was compressed fibro. When removing tiles from a bathroom floor he tried to preserve this compressed fibro, but sometimes bits came off the compressed fibro. He often had to cut out a section of the compressed fibro and replace it with new compressed fibro. He encountered compressed fibro a couple of times a year between 1987 and 2007.

22. Mr Abegglen continued to do this sub-contracting work until he was 70 years of age. However, from about 2000, he started taking precautions when working around asbestos. He wore a suit and a mask.

Findings in relation to Liability

23. The affidavit of late Mr Abegglen is the only evidence on the question of liability. I have already recorded the limited matters put in issue by the defendants and the cross-defendant.

24. In the case between the plaintiff and the first defendant, I make the following findings:

1. Mr Abegglen performed work for the first defendant between May 1965 and 1968;

2. During that time he was regularly exposed to asbestos dust and fibre from new asbestos sheets, purchased by him, to repair damaged external walls of houses;

3. Mr Abegglen was exposed to causally significant asbestos dust and fibre when he used an electric grinder with a disc to strip paint back from existing fibro sheets – this work was done on about 90% of the houses for which Granosite had a contract;

4. The work with asbestos fibro sheets took up about two to three days every week, most of which was sanding work.

25. In the case between the plaintiff and the second defendant, I make the following findings:

1. Mr Abegglen was exposed to asbestos dust and fibre from working with new asbestos sheets purchased during his time with Granosite (1965 to 1968) and with Surface Shield (1968 to 1987);

2. These new sheets were purchased by Mr Abegglen from the hardware store nearest to where he was working;

3. A causally significant portion of the asbestos cement fibro sheets purchased from the hardware stores was a James Hardie product, and in particular was the product Hardiflex;

4. Mr Abegglen was exposed to asbestos dust and fibre from cutting and handling the new James Hardie fibro sheets;

5. Mr Abegglen was also exposed to asbestos dust and fibre when he was on site and near tradesmen who were cutting or working with James Hardie fibro sheets.

26. Neither defendant ran a “de minimis” case and neither defendant disputed causation, if exposure was proved.

27. I find that the first defendant was negligent, and that it failed to protect the plaintiff from carcinogenic asbestos dust, at a time when it ought to have known of the dangers of exposing the plaintiff to visible dust. There will be judgment for the plaintiff against the first defendant.

28. As against the second defendant, I find that during both the Granosite and the Surface Shield employment years between 1965 and 1987 there was causally significant exposure to James Hardie asbestos sheets. This exposure was at a time when the second defendant knew, or ought to have known, of the dangers of such exposure. There will be judgment for the plaintiff against the second defendant.

29. I find that in the years of self-employment, between 1987 and 2000 (when Mr Abegglen started to take his own precautions against asbestos dust) there was exposure to compressed fibro, when bits of compressed fibro were disturbed by the Kango Hammer. There was no evidence to enable a finding against the second defendant in respect of the in situ compressed fibro, or the replacement pieces of compressed fibro. The Tribunal should not be asked to make findings of fact based upon its knowledge from other cases. Evidence should be called, or parties should use the evidentiary provisions in the Dust Diseases Tribunal Act 1989 (NSW) such as s 25 or s 25B.

Medical Evidence concerning Mr Abegglen

30. In 1995 Mr Abegglen had four stents inserted into his heart. This procedure was a success. In 1998 he was diagnosed with prostate cancer, which was successfully treated with surgery. He retired in 2007.

31. Until mid-2016 Mr Abegglen remained in good health. He walked for about five kilometres most mornings. Because of the dementia of his spouse Ms Piatti, he was doing most of the work around the house. In mid-2016 Mr Abegglen began to experience recurrent pain spreading from his back into his chest, particularly in the afternoon. It took a considerable time for his pains and problems to be diagnosed as mesothelioma.

32. On 28 July 2016 due to the pain in his chest Mr Abegglen had a stress echo cardiogram which was reported as normal. In August 2016 he saw Associate Professor Lattimore, a cardiologist. She recorded a complaint of pain radiating out from the back into the chest. The discomfort was mainly in the afternoon. Associate Professor Lattimore thought that there was a musculoskeletal component to the pain.

33. In January 2017 the GP Dr Basavaraj sent Mr Abegglen for a CT scan of his chest. He was prescribed antibiotics. By that stage he was coughing and getting chest pain on exertion such as walking. The CT scan was performed on 25 January 2017. It showed a few tiny calcified pleural plaques. There was minor bronchial wall thickening.

34. In May 2017 the GP suggested that Mr Abegglen go for physiotherapy. He had this for four months without improvement. Mr Abegglen had an MRI on 21 August 2017 but this did not reveal a cause for his pain.

35. By November 2017 Mr Abegglen’s pain had increased significantly. He said it was like a stabbing, burning pain. He described the pain in his affidavit as follows:

“…felt like someone had stuck a knife behind my right shoulder blade. I could not sleep as I was in so much agony. I was given pain medication including Targin and Lyrica as well as sleeping tablets, but I still have pain. I started to have trouble thinking straight because of all the medication. I became so dizzy and drowsy I stopped taking all medication in early January 2018 and I rang Margaret’s son, Roland, to come down from Queensland.”

36. Mr Piatti came down to Sydney from Brisbane on 20 January 2018 and he lived with Mr Abegglen and his mother Ms Piatti until the death of Mr Abegglen on 22 April 2018. During this time he returned to Brisbane only between 11 March 2018 and 26 March 2018. Prior to returning home for that period, Mr Piatti arranged for carers to come in to help his mother for 2-3 hours per day. He also arranged for his sister-in-law, and other friends and family members, to come in to help his mother and Mr Abegglen. Mr Piatti provided full-time support to his mother and to Mr Abegglen.

37. Dr Yu, an orthopaedic surgeon, sent Mr Abegglen for a bone scan. This was performed on 23 January 2018 and the report suggested that there was a “soft tissue density tumour mass encasing the right hemithorax with early erosion into the fourth rib anterolaterally which is likely to represent either a mesothelioma or lung carcinoma”.

38. Mr Abegglen was referred for a CT scan of the chest, which was performed on 1 February 2018. This showed a probable pleural base malignancy which was suspected to be mesothelioma.

39. Shortly after that CT scan Mr Abegglen was examined by a radiation oncologist Dr Yaw Chin. By this time he had lost eight kilograms in weight and suffered from constipation from the pain medication. He consulted with Dr Yaw Chin on 5 February 2018. Dr Chin found a palpable mass measuring four to five centimetres in the right upper anterior chest wall. He told Mr Abegglen that it was highly likely that he had malignant mesothelioma, but that he needed a PET scan to stage the cancer accurately.

40. Mr Abegglen had a whole body FDG-PET scan on 7 February 2018. Again it was thought that the right pleural mass was most likely to be mesothelioma.

41. The matter was put beyond doubt by a pleural biopsy at St George Private Hospital on 8 February 2018. That biopsy diagnosed:

“High grade sarcomatoid malignant tumour with cytokeratin expression.”

42. On 12 February 2018 Mr Abegglen was examined by Dr Chin and informed that he had mesothelioma. Mr Abegglen said in his affidavit that he was “devastated”.

43. On 22 February 2018 Mr Abegglen consulted with Dr Dunlop, an oncologist. In his affidavit he said that by this time he was “in so much pain despite my medication that I could not sit during the consultation I had to lay down”.

42. Dr Dunlop commenced radiotherapy treatment. Mr Abegglen was prescribed Targin and Endone for his pain. In a report Dr Dunlop noted that Mr Abegglen had such a level of pain that he could not sit for the consultation and he had to lie down on the examination couch. He was offered hospital admission but he refused this.

43. Radiotherapy commenced on 22 February 2018. There were 19 treatments of radiotherapy.

44. On 1 March 2018 Mr Abegglen made an application for compensation to the Dust Diseases Authority of NSW. He provided an Industrial History on 6 March 2018, which was completely consistent with the material in his affidavit tendered before the Tribunal.

45. On 9 March 2018, during the course of radiotherapy, Mr Abegglen returned to see Dr Dunlop, oncologist. Chemotherapy was discussed but not taken up at that stage. The radiotherapy was completed by mid-March 2018, but it did not assist in relieving what Mr Abegglen described as his “constant pain”. He continued to suffer from shortness of breath, lack of energy, reduced appetite, loss of weight, night sweats and hot flushes.

46. Mr Piatti gave evidence about Mr Abegglen’s condition at that time:

“Charlie’s condition deteriorated. He was in so much pain. The pain was horrific. He could not sleep. Charlie told me he could not stand it anymore. Palliative care kept changing his pain medication, but they could not get it right. They told me to take Charlie to Calvary Hospital, which I did on 11 April 2018. Charlie was admitted to Calvary Hospital and given methadone and morphine. He was however still in pain. Charlie remained in hospital and died on 22 April 2018.”

49. The notes of Calvary Hospital bear out Mr Piatti’s description.

Findings on General Damages

50. I accept all of the evidence referred to and summarised above. It was not the subject of any contest in the case. The first defendant tendered no medical reports. The second defendant tendered reports relating only to the condition of Margaret Piatti.

51. Mr Abegglen went through almost two years of symptoms. Sarcomatoid mesothelioma is an aggressive form of the disease, and so it proved with Mr Abegglen. His pain was never properly controlled, and it was described in detail by both Mr Abegglen, and by Mr Piatti who was with Mr Abegglen during the last months of his life. In spite of being prescribed extremely strong pain killers, the pain could not be brought under control.

52. Before Mr Abegglen contacted Mr Piatti in January 2018 and asked him to come to Sydney because he could no longer cope, Mr Piatti suffered breathlessness, pain and the worry of not having a diagnosis. He was still directing his flagging energies into looking after his companion of over 50 years.

53. To properly compensate Mr Abegglen for his two years of suffering, and in particular for many months of intense and unrelenting pain before his death, I find that the appropriate figure for general damages is $370,000.

Interest upon General Damages

54. Interest on general damages is claimed. Interest runs at 2% until death and at 4% after death. The calculation is: $370,000 x 2% x 2 years = $14,800 + $370,000 x 4% x 1.25 years = $18,500 – total $33,300. There will be an award for interest upon general damages for $33,300.

Loss of Expectation of Life

55. The plaintiff submitted that $9,000 should be awarded, to reflect the 9.34 years of Mr Abegglen’s life expectancy in accordance with the Medium Life Expectancy Tables. The defendants submitted that the figure should be $8,000, to take account of the opinion of Dr Obeid that the life expectancy would be “mildly reduced” (DX 1 section 2). Dr Obeid took into account that the deceased had ischaemic heart disease (mitigated by a high level of fitness), was an ex-smoker (ceasing in 1980) and had gout (although there was no recent history of symptoms).

56. No doubt the Medium Life Expectancy Tables include many 80 year olds with a similar history. There was no evidence that any of these factors had impeded Mr Abegglen in leading an active lifestyle, walking 5 kilometres a day and doing just about everything for Ms Piatti. There was no evidence to support Dr Obeid’s impressionistic approach of saying that there should be a 15% reduction, from a figure which already takes into account that many 80 year old males in the overall population have some health problems anyway.

57. In those circumstances the appropriate award for loss of expectation of life is $9,000.

Gratuitous Domestic Assistance

58. There was no contest by either defendant with the submission of counsel for the plaintiff that the appropriate award was $32,336.28 plus interest of $1,393.56 being a total of $33,729.84.

Out-of-Pocket Expenses

59. There is no claim for out-of-pocket expenses, as these have been paid by the Dust Diseases Authority.

Section 15B damages in an Estate Claim

60. Senior counsel for the second defendant submitted that any entitlement that the deceased had to damages under s 15B of the Civil Liability Act 2002 did not survive his death as a matter of law. In the alternative, it was submitted that the plaintiff was not entitled to damages under s 15B, with respect to any loss of capacity of the deceased to provide services, for any period of time after his death.

61. At common law a cause of action did not survive the death of a plaintiff. Section 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (the 1944 Act) provides that on the death of any person, all causes of action vested in the person shall survive for the benefit of the person’s estate.

62. Section 2(2)(a)(ii) provides:

“Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:

(a)     shall not include:

(i)   …

(ii)   any damages for the loss of the capacity of the person to earn, or for the loss of future probable earnings of that person, during such time after the person’s death as the person would have survived but for the act or omission which gives rise to the cause of action…”.

63. Damages under s 15B are a creature of statute. In CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1, the High Court held that so-called Sullivan v Gordon damages were not part of the common law and were not available. As a consequence of that decision of the High Court, the Parliament of NSW enacted s 15B of the Civil Liability Act 2002. The terms of the section are considered more fully below.

64. Section 15B(2) provides that “damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants”.

65. Senior counsel for the second defendant submitted that while in s 2(2) of the 1944 Act, there is no specific reference to damages for loss of capacity to provide services to others, “such damages are relevantly analogous to the loss of capacity to earn”.

66. I reject this submission. Case after case has considered damages for loss of capacity to earn. This capacity is the capacity for a person to work, and by working, to earn money. This is so whether the person works as an employee, or is a contractor or self-employed. A person who has worked, and who can no longer work, or whose capacity to work is reduced, obtains damages because of the economic loss suffered through loss of receipt of income which would have been earned through exercising a capacity to earn money.

67. Nothing is earned in money terms by providing services to a dependant. Indeed, the award under s 15B can only be made where the lost capacity is a capacity to provide gratuitous domestic services to a dependant. No money changes hands, and no money could be earned, as there is no exercise of the capacity to earn, when one provides gratuitous domestic services to a dependant. Such services are provided out of a sense of moral obligation. I reject the first submission made by senior counsel for the second defendant.

68. In the alternative, senior counsel submitted that even if a claim for s 15B damages survives, “the Plaintiff has no entitlement for any period after the deceased’s death, a period often referred to as the lost years”. It was submitted that there was no loss of capacity to provide services, as the claimant was no longer alive, and no longer required any particular capacity. The submission recognised that in several previous cases s 15B damages have been awarded, without adverse comment. However, the point has not previously been argued and in those prior cases the issue was not contested.

69. In Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94 at 128 Justice Windeyer said:

“The one principle which is absolutely firm, and which must control all else, is that damages for the consequence of mere negligence are compensatory.”

70. The compensatory principle applicable to damages for personal injury is that “plaintiffs should be awarded such sums of money as will restore them to the positions that they would have been in if there had been no negligence” – Luntz Assessment of Damages for Personal Injury and Death 4th ed, LexisNexis, para 1.1.5 and the cases cited in footnote 36 (being Skelton v Collins, Cullen v Trappell and Nominal Defendant v Gardikiotis).

71. As previously recited, damages under s 15B(2) are awarded for loss of a claimant’s capacity to provide gratuitous domestic services. Mr Abegglen lost his capacity to provide those services for several months before his death (a matter dealt with in detail below) and completely lost his capacity to provide such services when he did die.

72. The submission of the second defendant, that there is no need for such capacity after death, fails to focus upon the correct application of the compensatory principle, and fails to recognise that the complete loss of capacity has been caused by the negligence of the defendants. If Mr Abegglen had not contracted mesothelioma, because the defendants had not been negligent, then he would have continued to not only have a capacity to provide services to Ms Piatti, but he would have exercised that capacity (a matter dealt with more fully below). He lost his capacity, which was destroyed by the negligence of the defendants. The compensatory principle requires him to be awarded such sums of money as would restore him (or in this case his estate) to the position it would have been in if there had been no negligence. Section 15B enables a court to put a monetary value upon the gratuitous domestic services which had been provided by the claimant.

73. There is nothing in s 15B, and there is nothing in the 1944 Act, which suggests that damages for future loss of capacity to provide gratuitous domestic services die with the claimant. It would have been a simple matter for parliament to insert a provision in the 1944 Act, similar to s 2(2)(a)(ii), and exclude damages for future loss of capacity to provide gratuitous domestic services. Parliament did not do so.

74. I reject the second submission made by senior counsel for the second defendant. I now turn to whether there is an entitlement, on the facts, to s 15B damages, and if so, their quantification.

Facts in relation to Section 15B Damages

75. The affidavit of Mr Abegglen sworn 19 April 2018 gave very little detail about this aspect of his claim. He said:

“57.   My partner, Margaret Piatti (born 17 May 1926) was diagnosed with dementia a few years ago. Margaret is now 92 years of age. About three years ago she started forgetting things. Physically she is well, and her mental state varies depending on the day. Sometimes she knows who I am and sometimes she does not. She spends most of the day wandering around and easily becomes agitated.

58.   Before I got sick I was Margaret’s fulltime carer. Margaret is not able to cook or do housework. I supervised her showering and getting dressed as she gets confused. I got all her clothes out for her and got everything ready for her shower. Other than helping me make the bed and helping with the washing I did everything for Margaret. Margaret does not like to leave the house and if she needed to go out of the house I accompanied her. I also looked after any repair work on the home as well as the lawn and garden.

59.   As a result of my pain I could not look after Margaret and Roland (Margaret’s son) came from Queensland in January 2018 to look after both Margaret and myself. On occasions when Roland takes me to doctor’s appointment or treatment we have left Margaret on her own but never more than an hour to an hour and a half. If Margaret is left any longer then she becomes agitated and starts to look for me. When I come home I find her very distressed. Roland has now arranged for us to have aged care coming twice a week for three hours.”

76. The affidavit of the plaintiff Mr Piatti sworn 26 July 2019 said:

“3.   I was born on 22 December 1955. My mother was in a de-facto relationship and lived with the late Charles Abegglen (Charlie) since the 1960s.

4.    Even though I lived in Brisbane, for many years before Charlie got sick I regularly visited my mother and Charlie. I estimate that I drove to Sydney for this purpose about every couple of months. I stayed at their house for between 4 and 7 days each time I visited. I have been semi returned [sic] since about 2013.

5.    A few years ago my mother was diagnosed with dementia. From then until a few months before his death, Charlie was her fulltime carer. As I have said above, I visited my mother and Charlie regularly for many years. From about 2014 I observed that my mother became increasingly reliant on Charlie. Charlie took over doing everything in the house. My mother could not do the cooking or housework, this was done by Charlie. He did the cleaning, laundry, shopping, paying bills and looking after the house and garden. He also supervised my mother showering and dressing as she got confused. He turned on the shower to the right temperature and laid out all her clothes. Most of all he supervised, reassured and redirected her.

6.   From about a couple of years before Charlie got sick, I observed that my mother became increasingly agitated and spent most of the day wandering around. She would follow Charlie around. Sometimes she knew who Charlie was and sometimes she did not. She would forget if she had eaten and would repeatedly ask questions such as “who are you?” and “have we had lunch?”. Charlie would answer her, reassure her and redirect her. When I was staying with them, she asked me the same type of questions. She repeated herself a lot.”                (Emphasis added)

77. Mr Piatti gave evidence about his mother’s state after he came down from Queensland in January 2018. In para 8 of his affidavit sworn on 26 July 2019 he said:

“8.    On the few occasions we did leave for an hour or so, by the time we got back my mother was extremely agitated. On occasions she would be waiting out the front for us, stripping a tree of bark. We also found her wandering up the road stripping bark of the neighbours trees in an agitated state. She was angry and confused. From when I came back to Sydney in January 2018, I observed that my mother was incapable of making a telephone call. I tried to get her to ring my mobile in preparation for leaving the house to take Charlie to a medical appointment but she just could not do it. She threw her arms up in the air in exasperation.

78. Mr Piatti also said, in para 9 of the same affidavit:

“9.   In addition to her being angry and confused, I also avoided leaving my mother alone as she exhibited dangerous and troubling behaviour such as putting the stove on and forgetting it was on, taking food out of the fridge and leaving it out of the fridge, trying to cook food that shouldn't be cooked such as a salad or trying to eat food that had not been cooked such as a raw pork sausage. I observed her trying to do these things. I would then try to distract her while I sorted the situation. She would try and do stuff around the house such as laundry but would forget to put the clothes in the machine before turning it on or forget to put the washing powder in the machine.”

79. Ms Piatti came under the care of Dr Millie Ho a staff specialist psychiatrist at Calvary Hospital. She first saw Ms Piatti on 17 December 2015 at the outpatient clinic at the hospital. Ms Piatti had been referred by her GP Dr Basavaraj due to concerns about memory impairment. The history on that occasion was of a two year decline in memory characterised by forgetting names, repetitive questioning, misplacing items, perseveration on ideas, apathy, poor insight, slowed information processing and inflexible thinking. Ms Piatti had sold her accountancy business four years earlier due to memory changes and she ceased driving two to three years earlier. Dr Ho recorded Mr Abegglen as attending to the cooking, cleaning and shopping. He also arranged the medical appointments. Ms Piatti exhibited “sundowning” being a worsening of confusion in the afternoon and evening.

80. Objective cognitive testing revealed significant deficits. A diagnosis of mixed Alzheimer’s and vascular dementia was made.

81. Dr Ho saw Ms Piatti next on 3 March 2016. By this stage Ms Piatti had started to “shadow her husband”, in that she would not leave him alone. She had stopped doing crosswords.

82. When Dr Ho saw Ms Piatti on 4 April 2016, Mr Abegglen reported that she kept repeating the same idea, usually “I have no friends left”. She also started to wake at night, possibly in the context of grief after the loss of her daughter. Dr Ho described the help given by Mr Abegglen as “constant supervision and assistance”.

83. Dr Ho saw Ms Piatti next on 9 June 2016. Again Mr Abegglen reported repetition of phrases and sundowning. Ms Piatti was eating well, had a stable weight, normal bowel and bladder function and was sleeping well. Mr Abegglen reported that he could manage at home and that they did not require services.

84. Dr Ho next saw Ms Piatti on 7 November 2016. This consultation took place at Ms Piatti’s home, as she refused to leave the house to come to the outpatient clinic. Mr Abegglen was having difficulty managing Ms Piatti, as she would refuse to get into the car to go anywhere. Dr Ho recorded that “Margaret was also misidentifying her situation although she was not misidentifying Charlie”.

85. Ms Piatti was next seen by Dr Amy Kelly on 4 May 2017. Dr Kelly was one of Dr Ho’s registrars. Ms Piatti was seen at her home. Mr Abegglen reported that there had been a mild, gradual deterioration in Ms Piatti’s cognitive state since her last review. She remained very repetitive in her questioning and her short term memory was very poor. She remained independent in personal care with only gentle prompting. Mr Abegglen did most of the domestic tasks. Mr Abegglen could leave Ms Piatti at home to go out and do shopping and see friends, but only for a couple of hours. It was noted that Mr Piatti, who lived in Brisbane, had been coming once a month for a couple of days to give Mr Abegglen a break.

86. Dr Ho next saw Ms Piatti on 7 May 2018. This was another review at home. By this stage Mr Abegglen had passed away. Dr Ho observed greater cognitive impairment at this review. She could not conduct a Mini Mental State Examination, as Ms Piatti could not concentrate adequately. Ms Piatti was disoriented as to time and place. Dr Ho recommended higher level permanent care, due to the level of impairment as a result of dementia. She thought that the care which Ms Piatti would need would increase over time, in keeping with the diagnosis.

87. Dr Ho provided a medico-legal report dated 5 August 2019. She could not provide an exact figure for life expectancy, which she said was difficult to predict, and dependent not only on medical co-morbidities.

88. Dr Ho in that report gave a short summary of the material earlier provided. She noted that her letter dated 4 April 2016 referred to Mr Abegglen providing “constant supervision and assistance”. Dr Ho said that if Ms Piatti had resided alone, she would not be able to manage with only low level care provision and would likely require constant supervision. Her impaired executive function meant that there would be significant difficulty managing the routine of the day (such as timing of meals) without someone to prompt her. Dr Ho said that there was impaired insight and awareness into her deficits, present through the whole time that Dr Ho knew Ms Piatti. At the time of the death of Mr Abegglen, Dr Ho was of the view that Ms Piatti required high level care. This would be 24-hour care.

79. The other medical evidence on the topic, tendered by the plaintiff, came from a GP Dr Spinks. Ms Piatti had been visited by a doctor each week at Hammond Care Dementia Unit since her admission in June 2018. Dr Spinks said:

“Mrs Piatti is physically fit and life expectancy would be expected for several more years”.

90. The second defendant tendered a report from Dr John Obeid dated 23 May 2019. Dr Obeid is a consultant physician and geriatrician. He did not meet Ms Piatti or Mr Abegglen.

91. Dr Obeid said that, based upon a reading of the reports of Dr Ho, it would appear that Ms Piatti had the symptoms of dementia for two years prior to first seeing Dr Ho in 2015. He said that dementia is a progressive condition, with worsening expected over the medium term. It is associated with increasing functional impairment and reduced life expectancy.

92. Dr Obeid was asked to provide an opinion on Ms Piatti’s life expectancy. She is now aged 93 years. Her medium life expectancy on the Tables is 3.9 years. Dr Obeid had the notes on Ms Piatti from Hammond Care Nursing Home which indicated that Ms Piatti: required assistance with personal care; exhibited behavioural disturbances at times; was independently mobile; required prompting and assistance with toileting in order to maintain continence. He thought that there was “a substantial reduction” in life expectancy. He referred to an article by Brodaty and others which “showed the diagnosis of dementia reduces life expectancy by about two-thirds from the time of diagnosis at almost every age”. He thought that this would apply in the case of Ms Piatti. Dr Obeid noted that Ms Piatti also had diabetes and hyperlipidaemia, which also reduced life expectancy. He thought that her present life expectancy should be reduced by two-thirds to approximately 1.3 years.

93. It should be noted straight away that the Brodaty article measures reduction in life expectancy from the time of diagnosis. If such reduction is two-thirds (which is not borne out by a reading of the Brodaty article, which was put into evidence), then from the time of diagnosis in December 2015, under Dr Obeid’s theory, Ms Piatti would have died several years ago. She is still going, although in a nursing home.

94. Dr Obeid was asked about other matters. He noted that Mr Abegglen was “relatively robust and fit”, and thought that he would have been able to provide care for the rest of Ms Piatti’s shortened life. Dr Obeid noted that prior to the onset of mesothelioma, Mr Abegglen had been able to provide the care which Ms Piatti required. Finally, Dr Obeid was of the view that, given the nursing home records, Ms Piatti presently required 24-hour per day care, and that that was consistent with the severity of the dementia described by Dr Ho.

95. The Brodaty article was tendered as part of Exhibit DX 3. It does not apply a two-thirds reduction generally to life expectancy. The tables on p 1040 of the article, in relation to mixed dementia (that is the kind which Ms Piatti has) only give statistics for people up to the age of 80 at diagnosis. Ms Piatti was well past 80 when she was diagnosed. The graphs on p 1041, in relation to moderate dementia, show that those diagnosed at age 85 have their life expectancy reduced by about 50%. This of course is from the time of diagnosis.

96. Dr Obeid was cross-examined about the percentage of elderly Australians who have dementia. He said that between 20% and 25% of Australians over the age of 85 have dementia. He acknowledged that the medium life expectancy tables for a 93 year old female would include a significant proportion of a population who already had dementia. Thus the life expectancy reflected in those tables includes not only (if there are any) 93 year old women who have no health problems, but includes those who have health problems, including dementia. Dr Obeid acknowledged that “one can’t make a judgment about one individual person based on the median [sic: medium] life expectancy”. Dr Obeid also acknowledged that people with dementia can live for many years after the date of diagnosis. Both Dr Obeid and Dr Ho were in agreement that dementia is a progressive illness, and it has a significant impact on life expectancy.

Life expectancy of Ms Piatti

97. The question of the life expectancy of Ms Piatti is a very important one when it comes to assessment of damages pursuant to s 15B. The doctor who has had the most experience of Ms Piatti, and who is the most qualified to offer an opinion (Dr Ho), declined to give any view as to life expectancy. Dr Spinks, who is a GP but not a specialist, offered the view that the life expectancy was for several years. While he does not have the qualifications of Dr Ho or Dr Obeid, it must be acknowledged that Dr Spinks has been seeing Ms Piatti every week in a nursing home context, and thus he has had a good opportunity to make his own assessment of her progress. Dr Obeid has never met Ms Piatti. Further, Dr Obeid draws conclusions about life expectancy based upon his assertions about the findings in the Brodaty paper. A reading of the Brodaty paper does not bear out his approach.

98. All that having been said there must be some reduction in life expectancy, because of the common view of Dr Ho and Dr Obeid that dementia has a substantial effect on life expectancy. I take into account the current state of Ms Piatti, and her progress. I also take into account the evidence of her son, who said that when he saw his mother the day before the hearing, she was able to feed herself (when the meal was put before her), and could go for a short walk in the garden. Mr Piatti said that she walks very slowly, but does not have any assistance in walking. Mr Piatti was able to play a board game with his mother at the nursing home. When asked to compare his mother with what she was like in January 2018 when he came down from Queensland he said that she was “slightly worse”.

99. While the life expectancy of Ms Piatti on the Tables is presently 3.5 years, I propose in my calculations to reduce that to 2 years, to reflect the evidence concerning the effect of dementia upon life expectancy.

Consideration of Section 15B Damages

100. Section 15B(1) defines “dependants” to include a de facto spouse of the claimant who is wholly or partially dependent on the claimant at the time that the liability in respect of which the claim is made arises. Mr Abegglen first commenced to suffer his symptoms in mid-2016. The symptoms progressed until the diagnosis of mesothelioma. The plaintiff’s claim for general damages is for the period from mid-2016 to the date of death. The medical evidence suggests that the symptoms which commenced in mid-2016 were those of mesothelioma, although the formal diagnosis was not made until much later. The time that the liability in respect of which the claim is made arises is therefore mid-2016. I must consider whether at that time Ms Piatti was wholly or partly dependent on the claimant. For reasons set out below, I find that she was partly but not wholly dependent on the claimant at that time.

101. Section 15B(1) also provides that “gratuitous domestic services” means “services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid”. What Mr Abegglen was doing for Ms Piatti falls into that definition.

102. Section 15B(2) governs when damages may be awarded. It provides that damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that:

1. the claimant provided the services to the dependant before the time that the liability in respect of which the claim is made arose, and

2. the claimant’s dependants were not (and will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

3. there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants for at least six hours per week and for a period of at least six consecutive months, and

4. there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

103. Section 15B(4) provides that the hourly rate for gratuitous domestic services prescribed by s 15(5) must be applied, although there is no limit on the number of hours involved.

104. Section 15B(11) provides that in determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account:

1. the extent of the claimant’s capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and

2. the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under sub-section (2), and

3. the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.

105. In State of New South Wales v Perez [2013] NSWCA 149 at [14]; (2013) 84 NSWLR 570; Justice Basten (with whom Justice Ward agreed) found that the preferable reading of subs (2) is that “it speaks from the date at which the liability arose”. His Honour said that “the activities of the claimant prior to that time will set the upper limit of what can claimed, subject to satisfaction of the subsequent paragraphs”.

106. This approach was cited with approval by the Court of Appeal in Dionisatos v Acrow Formwork & Scaffolding Pty Limited [2015] NSWCA 281 at [297]; (2015) 91 NSWLR 34.

107. The first task for the Tribunal is therefore to determine what services Mr Abegglen provided to Ms Piatti in mid-2016, being “the time that the liability in respect of which the claim is made arose”. This finding is required by s 15B(2)(a), as explained in the decisions of Perez and Dionisatos.

108. I have reviewed the lay and expert evidence above in relation to the services provided to Ms Piatti from time to time by Mr Abegglen. I accept the evidence of Mr Piatti reproduced in paragraph 76 above. It is clear from that evidence that by mid-2016 Mr Abegglen was doing everything around the house for Ms Piatti. He was also supervising her showering and dressing. I infer from that evidence that Ms Piatti was not capable of living alone, and was completely dependent, at least during daylight hours, upon Mr Abegglen to provide services to her, and to supervise her so that she did not become confused, agitated and helpless.

109. It is to be noted that Mr Piatti does not give evidence that there were any sleeping issues by mid-2016.

110. The conclusion above is supported by reference to the first report of Dr Ho, who saw Ms Piatti on 17 December 2015. The findings of Dr Ho are summarised in para 79 above. Dr Ho recorded “sundowning”, being a worsening of confusion in the afternoon and evening. However, Dr Ho at that stage did not record any sleeping difficulties. Nor were any such difficulties recorded at the next consultation on 3 March 2016.

111. By the time of the consultation on 4 April 2016, there were sleeping problems, because Ms Piatti was waking at night. It was thought that this was as a result of the grief after the loss of her own daughter. There was no specific description recorded by Dr Ho of Mr Abegglen providing care and assistance to Ms Piatti at night.

112. I infer that the sleeping problem, resulting from the death of the daughter, was transient. At the next consultation on 9 June 2016, Mr Abegglen reported that Ms Piatti was sleeping well.

113. Ms Piatti had become more difficult in her behaviour by 7 November 2016, when she refused to leave the house to come to the outpatient clinic. However, there was no record made of any sleep problems. Nor were such concerns recorded by Dr Kelly on 4 May 2017.

114. Based upon the lay and expert evidence summarised immediately above, I find that in mid-2016, when the liability in respect of which the claim is made arose, Mr Abegglen was effectively providing full-time care and supervision to Ms Piatti during the hours she was awake. However, he was not providing any support or supervision to her at night. I therefore find that the gratuitous domestic services provided by Mr Abegglen to Ms Piatti, as at mid-2016, were services for 16 hours per day. It is true to say that Mr Abegglen was not providing hands-on work or doing tasks for Mrs Piatti for all of those 16 hours. Nevertheless, as a person with dementia, Ms Piatti could not be left to do things for herself, as she was a danger to herself. Dr Ho records that Mr Abegglen was providing constant care and supervision, and that Ms Piatti effectively shadowed him all day. As counsel for the plaintiff pointed out in submissions, there was no evidence that Mr Piatti left the house or had any outside interests or time to himself, even by mid-2016 when he started to develop his own problems. Mr Abegglen was completely devoted to his partner, and provided her with constant gratuitous domestic services at that time.

115. The medical evidence as to whether or not Ms Piatti would have been capable of performing the services themselves is all one way. Ms Piatti was not prevented from performing services for herself by reason of her age or her physical capacity. However, the evidence of Dr Ho establishes that Ms Piatti, who by mid-2016 had been suffering from dementia for about three years, was incapable then of performing the services which were provided to her by Mr Abegglen. The requirements of s 15B(2)(b) have been satisfied.

116. I have already found that such services were being provided for 16 hours per day. Dementia is a progressive condition and thus Ms Piatti was going to need gratuitous domestic services until the end of her life. I pause to remark that the level of such services would only increase over time, but I am constrained by the judgments of the Court of Appeal in Perez and Dionisatos, to awarding damages based upon the level of services provided as at mid-2016. I do find that the provisions of s 15B(2)(c) have been satisfied, in that there is a reasonable expectation, that but for Mr Abegglen suffering mesothelioma, he would have provided services to Ms Piatti for at least six hours per week and for a period of at least six consecutive months.

117. The fourth element in s 15B(2) is that it must be shown that “there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances”. The medical evidence clearly establishes that the need for the services was going to be for at least six hours per week and for at least six consecutive months. The medical evidence, including the opinion of Dr Obeid, is that since January 2018 and to the present time Ms Piatti has required 24-hour care and supervision. However, I am precluded from awarding damages based upon 24 hours per day, by the decisions of the Court of Appeal in Perez and Dionisatos. All of the medical evidence, including the opinion of Dr Obeid, establishes that there will be a need for the services to be provided for at least six hours per week and for a period of at least six consecutive months. My findings are that the need will be for a period for the rest of Ms Piatti’s life, and that the hours per week have been increasing from 16 hours as at mid-2016, to 24 hours per day by January 2018, when Mr Piatti had to travel from Brisbane to Sydney to look after his mother and Mr Abegglen. The evidence about the state of Ms Piatti at that time is set out in paras 77 and 78 above.

118. In Perez, Justice Basten said at [19]:

“The critical reference to ‘need’ in paragraph (d) focuses upon the specific temporal scope of the services provided. That scope, as identified in paragraph (c), is that the services be provided for at least six hours per week for at least six consecutive months. The phrase ‘reasonable in all the circumstances’ qualifies not the word ‘need’, but the phrase ‘that need’. Read in context, the focus is not merely the need of the dependant, but the time which would have been taken to deliver services in satisfaction of that need. No doubt some service providers will be more efficient than others. There is an evaluative judgment involved which, the paragraph provides, shall be undertaken by reference to the standard of reasonableness and having regard to all relevant circumstances in the particular case. It is thus not merely an abstract quality of the need which is in issue.”

119. This approach was recited, with approval, by the Court of Appeal in Dionisatos at [301]. In Amaca Pty Limited v Raines [2018] NSWCA 216, the Court of Appeal considered whether so-called “passive care” fell within the definition of “gratuitous domestic services” in s 15B. The Court of Appeal held that such services include forms of “protective attention” such as constant supervision and availability to step in, in case of emergency – at [67-70] and [160-163]. Simpson AJA pointed out that such care enabled the dependant to continue to live in his own house but with constant supervision. Without such constant supervision, that would not have been the case – at [161]. Her Honour said, quoting Milton, “They also serve who only stand and wait” – at [160].

120. That is precisely the situation with Ms Piatti, even in mid-2016. On the evidence there is no way that Ms Piatti could have lived by herself, and the only way in which she continued to stay at home was because of the constant care and supervision provided by Mr Abegglen during the daylight hours. He did everything for her, and supervised her in the most basic of tasks including showering and dressing. The suggestion was made that Ms Piatti was still doing the washing. This was part of her routine and perhaps brought her comfort. However, she did not effectively do the washing unless someone stood by her reminding her to put clothes in the machine, put powder in the machine, and turn it on. This alone is a demonstration that all of the hours of gratuitous domestic services provided by Mr Abegglen to Ms Piatti in mid-2016 were to fulfil a need for the services, and that that need was reasonable in all the circumstances. The requirements of s 15B(2)(d) have thus been met.

121. As previously recited, the prescribed hourly rate has to be applied to the assessment of damages – s 15B(4). It was submitted without disagreement that the present hourly rate is $31.54 per hour.

122. The court must take into account the extent of the claimant’s capacity to provide the services before injury was sustained – s 15B(11)(a). As previously recited, Mr Abegglen was fit and well prior to developing symptoms of mesothelioma and there was no restriction on his capacity to provide the services to Ms Piatti.

123. The court must take into account the vicissitudes or contingencies of life for which allowances are ordinarily made in the assessment of damages – s 15B(11)(c). I will apply a 10% discount for these vicissitudes. The chance that Mr Abegglen might die or that Ms Piatti might die have already been taken into account in my determination of their life expectancy. However, I must make a discount for vicissitudes to reflect the fact that even though Mr Abegglen was a hale and hearty 79 year-old man before he developed symptoms of mesothelioma, there are other diseases of age, or accidents, which could cause him to have a restricted capacity to provide gratuitous domestic services. The Tribunal is only considering a short period of time, for future s 15B damages. The discount I apply is 10%.

Calculation of Section 15B Damages

124. Based upon the above findings, the calculation of past s 15B damages, to reflect the period between January 2018 (when Mr Abegglen could no longer provide any services) and August 2019 (a period of 82 weeks) is:

16 hours x 7 days x 82 weeks x $31.54 = $289,663.

125. For future s 15B damages, the 3% multiplier for two years, to reflect the life expectancy of Ms Piatti, is 101.3. There will be a 10% discount for vicissitudes.

126. The calculation for future damages pursuant to s 15B is:

16 hours x 7 days x $31.54 x 101.3 x 0.9 = $322,056.

127. But for the interpretation of the Court of Appeal, which restricts the assessment of damages to the number of hours being provided as at the date the liability for the disease arose (mid-2016) I would have awarded 24 hours per day for the past and the future. In case I am in error in the way I have understood the Court of Appeal, and my error is later corrected by that Court, I find that s 15B damages calculated at 24 hours per day would be:

Past s 15B damages: 24 hours x 7 days x 82 weeks x $31.54 = $434,495

Future s 15B damages: 24 hours x 7 days x $31.54 x 101.3 x 0.9 = $483,084

Conclusion and Orders

128. The plaintiff is entitled to a judgment against both defendants. The heads of damage which I have assessed are set out in the following table:

Head of Damage	Amount
General damages	$370,000.00
Interest on general damages	$33,300.00
Loss of expectation of life	$9,000.00
Gratuitous domestic assistance, including interest	$33,729.84
Past s 15B damages	$289,663.00
Future s 15B damages	$322,056.00
TOTAL	$1,057,748.84

129. My orders are:

1. Judgment for the plaintiff against the first defendant and the second defendant for $1,057,748.84.

2. Order the defendants to pay the plaintiff’s costs.

3. Grant leave to approach my Associate within 7 days if any party seeks a different costs order.

4. Stand over the cross-claims to a date to be fixed, for the making of further directions and if necessary, the allocation of a hearing date.

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Decision last updated: 23 August 2019