Reid v Seltsam Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

DUST DISEASES LIST

S ECI 2021 01498

MARIA IRENE REID	Plaintiff
v
SELTSAM PTY LTD (FORMERLY WUNDERLICH LTD)	Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	22, 23, 27, 28 September 2021
DATE OF JUDGMENT:	7 October 2021
CASE MAY BE CITED AS:	Reid v Seltsam Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 653

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TORTS – Personal injuries – Dust diseases – Exposure to asbestos dust and fibres – Where plaintiff grew up on and around the Wunderlich factory – Mesothelioma – Assessment of damages – Loss of enjoyment of life, pain and suffering – Loss of expectation of life - Attendant care – Gratuitous care for others - Wrongs Act1958 (Vic), s 28IA, s 28ID.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J T Rush RFD QC with Mr J Gordon	Segelov Taylor Lawyers
For the Defendant	Ms M Britbart QC with Ms K Bradey	Colin Biggers & Paisley

HER HONOUR:

Maria Reid grew up in Barwon Street, Sunshine. Her house was close to the asbestos cement sheet factory operated by Wunderlich Ltd in Mcintyre Road, Sunshine. In April 2021, she was diagnosed as suffering from mesothelioma, caused by the inhalation of asbestos dust and fibres. She claims damages from the defendant, Seltsam Pty Ltd (formerly Wunderlich Ltd) for this injury which has dramatically affected the life expectancy of the 69 year-old mother and grandmother.

She alleges that between 1953 and 1967, while living as a child in the family home, she was exposed to asbestos in a number of ways. She described going to play on mounds of dust at the rear of the Wunderlich factory as a child of eight or nine (or thereabouts) with other children in the street. She was described walking past the Wunderlich factory going to and from school each day, both during her primary and secondary school years. She described the environment in and around her home where, particularly on windy days, the dust would be blown in the air. When Mrs Reid married in 1971, she and her husband, Barry, continued to regularly visit the plaintiff’s parents in the family home. Initially, they attended the parents’ home weekly to do their washing, but on top of that there were regular family functions and social visits, as Mrs Reid’s family were very close. She described exposure from regular visits from 1971 to mid-1977 and also during that period while working in Berkshire Road nearby in Sunshine in 1974 and 1975. The exposure commenced in 1953 when the plaintiff, who was born on 27 October 1951, was aged two and continued for almost 24 years.

The plaintiff commenced her evidence-in-chief on the afternoon of the first day of trial and gave some evidence as to her exposure. She was unwell and unable to continue her evidence on the second day. Late on the second day of trial, the defendant admitted that it owed a duty to Mrs Reid and that it breached that duty of care. Accordingly, the remaining question for me is to assess damages that flow from the breach of duty of care.

The question of damages raised three principal issues for determination. First, the appropriate measure of damages for pain and suffering, loss of enjoyment of life and loss of life expectancy. Since the onset of illness, Mrs Reid has needed others to assist her with personal care or undertake various domestic tasks for her because of her mesothelioma. This has been provided to the plaintiff by her family, principally her husband, Barry. The second issue is the quantum of damages for this gratuitous care in accordance with the principles in Griffiths v Kerkemeyer.[1] The claimed amounts for the past are disputed as to what was reasonably needed. The claim for future costs rested on disputed medical opinion as to probable life expectancy. Thirdly, Mrs Reid had been engaged in the care of her grandson Bodhi, up to three days per week, and claims damages for the loss of her capacity to provide gratuitous care to him and his parents pursuant to section 28ID of the Wrongs Act1958 (Vic) (Wrongs Act). The basis upon which any damages are to be calculated was in dispute as was the intention and ability for the care arrangements to continue absent Mrs Reid’s illness.
[1](1977) 139 CLR 161 (‘Griffiths v Kerkemeyer’).

The Evidence

Although Maria Reid gave only limited evidence, and no viva voce evidence as to damages, I have in evidence various histories she has provided to treating doctors and medico-legal examiners. I heard evidence from a childhood friend, Mrs Stroud, whose evidence went to questions of liability. On the question of damages, I heard evidence from: the plaintiff’s husband, Mr Barry Reid; one of her sons, Mr Simon Reid; and the fiancée of her other son, and mother of her grandchildren, Ms Ngo Thuy Vo (Thuy). I heard from Associate Professor Thomas John, her treating medical oncologist. Ms Natala Cogger, an occupational therapist, also gave evidence having undertaken an assessment of Mrs Reid’s care needs since diagnosis and caregiving responsibilities prior to that time.

Additionally, the plaintiff tendered medical reports of Dr Shah, treating medical oncologist and various extracts from clinical records.

The defendant called Professor Richard Fox, medical oncologist and haematologist, and tendered extracts of medical records. The defendant obtained but did not rely on an occupational therapist’s opinion.

The Plaintiff prior to injury

Maria Reid’s parents were Russian and Polish. They came to Australia in 1949 and settled in Bonegilla, the camp for migrants displaced by World War II. From there they purchased a block of land at Barwon Avenue, Sunshine and the plaintiff’s father built the family home there. She was the middle child of three sisters. She lived there from the age of about two or three until she married at the age of 20. She met her husband Barry in 1968 or 1969 and they married in 1971. After school, she worked mostly in secretarial and administrative jobs for a number of different employers, usually changing jobs every year or two. When their two children were born she chose to be a full-time mother and housewife. Barry was an auto mechanic and worked in supervisory roles in automotive and logistics industry until retiring some years ago. It was apparent from the evidence of Barry Reid and her son Simon Reid that Maria Reid remained very close to her parents, and that she and Barry have created the same close family unit with their two sons. Their marriage was one with a traditional division of labour, and her hobbies of more recent years had been gardening, cooking and baking, and caring for her grandson Bodhi (who was born in 2017). She anticipated having the same care involvement with her granddaughter Meadow, who was born more recently in 2020. She and Barry spent time at their holiday home at Anglesea, where they love walking the dogs.

Many of Mrs Reid’s activities (gardening, looking after a preschool grandchild, and walking) are certainly indicative of somebody at age 69 who remained active and in good physical health. In retirement, it seems that she and her husband did most if not all of their activities together as a couple. Her son described them as being ‘joined at the hip’.[2]
[2]Transcript of Proceedings, Maria Irene Reid v Seltsam Pty Ltd (formerly Wunderlich Ltd) (S ECI 2021 01498, Justice Forbes, 23 September 2021) 113.26 (‘T’).

She was in generally good health and rarely visited doctors. She had longstanding hypertension for which she had blood pressure tablets and she had a longstanding anxiety associated with a degree of agoraphobia. This condition was not managed medically but Mrs Reid used meditation as a coping mechanism. Some medical records dating back to 1998 suggest that the condition was limiting – at that time living in Werribee it indicates she was unable to leave the local area and went most places with her husband – and that she was resistant to the idea of medication but open to cognitive behavioural therapy. From the extracted medical records of her general practitioner that were tendered, consultation regarding anxiety rarely featured on the infrequent attendances. Barry Reid gave evidence that since retirement they generally went together whenever they went out. He said Maria didn’t like to drive and so he would generally drive her. Her dislike of driving was in part because their car was a big one, but even with a smaller one that they purchased, she preferred not to drive. Barry Reid said that before his retirement Maria was able to go shopping by herself. He described the anxiety as being controlled.

I formed the view that even before the diagnosis Maria and Barry Reid led a quiet life, they didn’t go out much and when they did, chose to go together and to socialise largely with family, and perhaps some neighbours. Maria was living a contented and fulfilling life deriving great joy from her family.

Diagnosis and Treatment

Maria Reid first attended her general practitioner with symptoms on 6 April 2021. For a period prior to this she had been feeling lethargic, had been losing her appetite and losing weight. I will return to this period as the duration and level of symptoms prior to April 2021 was an issue of some importance to the claim for reasonable past gratuitous care provided to the plaintiff.

On attending Dr Milone, CT scans revealed lung and abdominal lesions.

Her general practitioner organised some further tests and referred her to an oncologist, Dr Shah. The abdominal lesions were benign. The lung lesion was thought most likely malignant and a biopsy was arranged. The plaintiff initially had a CT-guided biopsy which was not diagnostic. She underwent a drainage of pleural effusion on 15 April 2021, which improved her breathing. At that time, the second biopsy confirmed a diagnosis of mesothelioma. Dr Shah described ‘a better prognosis type of mesothelioma’ but the presence of metastatic disease in her thoracic spine evident on her initial CT scan classified it at Stage IV.

She was referred to Associate Professor John, who began treating her in May 2021. She had a VATS, also described as a talc, pleurodesis on 25 May 2021 in the Royal Melbourne Hospital for the return of increasing shortness of breath. She was discharged early because the Covid restrictions in place meant she was unable to have visitors. Mrs Reid did not cope well with being there on her own during that time. A talc pleurodesis was described by Associate Professor John as not a minor procedure,[3] involving stripping away as much as possible of the tumour, draining fluid from the lung and spraying talc into the cavity between lung and chest wall. This is intended to provoke an inflammatory response and cause the lung to stick to the chest wall. This removes or reduces the space between lung and chest wall and therefore restricts the ability of fluid to collect in that space.
[3]T 121.24.

From there, the various treatment options were explained to her and it was decided that she would undergo standard chemotherapy. Immunotherapy as a first line of treatment was considered to carry a risk of kidney toxicity as a side effect and the plaintiff, only having one functioning kidney was at a higher than average risk of complication. As at the time of trial, she had had four cycles of chemotherapy the first commencing on 30 June 2021, and the last on 1 September 2021. She was too unwell to continue to a fifth and sixth cycle. There has been some concern that the tumour was affecting her thoracic spine and the present plan is to commence a five day course of radiotherapy to that area, commencing 27 September 2021 to inhibit any growth of the tumour so that it does not compress the spinal cord.

Beyond that, in terms of treatment, Professor John does not intend to conduct any further chemotherapy cycles. He considers that immunotherapy as a second line of treatment remains an option for her and that decision will be made assessing things after the conclusion of the radiotherapy treatment.

The history as recorded by Associate Professor John in May 2021 when he initially saw Maria Reid her main symptoms were shortness of breath and nausea. It would appear that since April 2021, most outings have become attendances on medical practitioners or attending hospitals for tests or surgery. Barry Reid recollects her condition as being stable between April and May but that she was becoming more fatigued because of needing to undergo tests, and visits to doctors and hospitals were wearing her out.

From June 2021, the impact of chemotherapy has been significant. Barry Reid described a fair degree of anxiety about the prospect of chemotherapy but described the first day of the treatment as causing her to be pleasantly surprised as the supporting drugs actually gave her more energy. However, he said the chemotherapy brought with it significant side effects which started to cause her to become more lethargic, to become worn out, gave her bowel problems and significant nausea. He said this would cause her to deteriorate for about 10 days and then would settle before the next cycle. He said during this time, unless she was going for treatment, she barely left the house.

Damages for attendant care
Principles

The defendant’s tortious conduct has created the need for provision of services for Maria to assist with, or undertake on her behalf, activities she was previously able to undertake independently. This includes assistance with personal care, domestic activities and attending treatment appointments. This is a loss that sounds in damages. The approach to quantifying such a loss is informed by the following principles:

(a) Determining whether the need for the services has been created by the tortious conduct;[4]
[4]Donnelly v Joyce [1973] 3 All ER 475; Griffiths v Kerkemeyer (n 1).

(b) Damages are not special damages and so do not measure an amount the plaintiff has incurred or might incur. The basis upon which the services have been provided, whether by money or by unpaid effort, is irrelevant to the question of loss and need;

(c) Where services are provided gratuitously it is intended that the plaintiff and not the wrongdoer receive the benefit of the gratuitous meeting of need, and to protect the plaintiff should that gratuitous provision be unable to continue;

(d) Therefore it is not necessary to show that the need will be productive of financial loss;[5] and

(e) The commercial or market value of the services that are needed is generally a fair and reasonable measure of the plaintiff’s loss. The circumstances of the person providing the services and whether or not they have foregone income to do so is not an appropriate measure of loss. [6]

[5]Van Gervan v Fenton [1992] 175 CLR 327 (‘Van Gervan’).

[6]Van Gervan (n 5); see also Nguyen v Nguyen (1990) 169 CLR 245.

The main issues in assessing the need for attendant and domestic care services between the parties were firstly the identification of what need was created by the tortious conduct. In particular the defendant argued that the plaintiff’s need to be accompanied when leaving the house, whether for shopping, medical appointments or otherwise at least while she was physically able to do so, was not caused by the tortious conduct, but arose previously by reason of her underlying agoraphobia. Further in respect of much of the care identified as ‘emotional support’, in particular the support provided during hospitalisation for the pleurodesis the defendant contended that ‘emotional support’ did not fall within Griffiths v Kerkemeyer damages. Otherwise, the defendant queried reasonableness as to the number of hours of care that have been claimed as greater than that which is needed by the plaintiff.

(i) Past loss and need

Past attendant care is claimed from 15 March 2021, shortly before the first attendance on Dr Milone. The commercial cost of care was calculated by reference to Calvary Community Care fee schedule. The parties agreed this was an appropriate basis for calculations. The dispute was confined to the amount of hours to be allowed.

The amount of assistance needed by Maria Reid was assessed by Natala Cogger, an occupational therapist. Her opinion divided the past care needs into four stages: stages one and two being the time from shortly prior to diagnosis until hospitalisation for the talc pleurodesis (15 March to 25 May 2021), then the hospital admission for that procedure (26-28 May 2021). Stage three covered the period after discharge, from 29 May 2021. When she undertook her initial assessment on 23 June 2021, Ms Cogger anticipated that a Stage 3 level of care would continue at a constant level until the date of her report on 1 August 2021. She was asked to prepare a supplementary report and conducted a further interview on 20 September 2021 to update her views. This amended the care needed in this period to reflect the events that have actually transpired since the initial assessment. In her opinion Stage 3 ended on 20 July 2021. Stage 4 level of care was, in Ms Cogger’s view needed from 21 July 2021, coinciding with the second cycle of chemotherapy and continuing until the time of trial.

The defendant chose not to call evidence it had obtained from an occupational therapist.[7] I was invited therefore to more readily accept the opinions expressed by Ms Cogger as to the level of assistance needed by the plaintiff. I can more readily accept her evidence, but observe that I was in any event comfortably satisfied that her opinions were grounded on reliable information from Maria and Barry Reid.

Stage 1 and 2

[7]An intent to call expert evidence from an occupational therapist was foreshadowed by defendant’s counsel but not in fact relied on.

Stage 1 assessed a need for domestic assistance at 7 hours per week and an estimated 38 hours of time transporting her to medical appointments and investigations (averaged to 3.75 hours per week). Maria Reid remained independent in personal care during this time. Stage 2 comprised inpatient treatment and allowed for transport to and from hospital and an estimated 2 hours per day of telephone contact.

The defendant submitted that contemporaneous accounts of the plaintiff’s functioning during stage 1 do not support any functional restriction.

Before the diagnosis she had been losing weight, losing her appetite, feeling lethargic and lacking in energy. This began gradually and whenever it was first noticed, nobody attributed it to illness. There was some dispute as to when the symptoms first began to impact on activity levels. It is relevant in assessing the need for past attendant care to look at the various description of onset and duration of symptoms to assist an understanding of whether Maria Reid was functioning at a restricted level by March 2021.

Simon Reid gave evidence of two events; his mother cancelling his birthday lunch in March 2021 and then being too unwell to attend an Easter family lunch for which his fiancée’s family had travelled from Sydney. Simon explained that he became angry at such out of character behaviour which led to cross words and as a result Maria went to see her doctor. Barry Reid was asked about changes he observed in the last twelve months or so. He described first noticing that Maria didn’t feel like cooking and lost her appetite. He said he noticed this more from the start of 2021.[8] Over that time he had also observed a tiredness and lack of energy and a shortness of breath. He said she had back pain which ‘she put up with for a fair while’[9] before one day saying she needed to go to the doctor. He said that prior to her diagnosis, when Maria became visibly unwell, he assisted with some ‘bits and pieces’ around the house but Maria was still attempting to do most of it herself.[10] Since her diagnosis, Mr Reid increased his assistance with housework.
[8]T 76.
[9]T 77.12.
[10]T 88.

A history given on 10 June 2021 at Peter MacCallum Cancer Centre was of symptoms dating to before Christmas 2020. Simon Reid attended. He agreed that was the earliest time he had heard his parents remark on noticing changes.[11] The defendant submitted that it was the end of 2020 or early 2021 before anybody observed anything out of character in her behaviour. Dr Shah, the initial medical oncologist reported to the general practitioner in April 2021 weight loss was a major issue that had gradually happened over 12- 15 months. That weight loss had been sufficient to change her clothes size. This suggests that a gradual loss of appetite and associated weight loss had been occurring through most of 2020 as recounted to Dr Shah.
[11]T 217.

According to the evidence of Thuy, she and fiancée Ben would collect Bodhi from his grandparents on the way home from work and would stay for dinner two or three times a week. They reduced the nights they stayed for dinner because Maria seemed tired. Thuy timed this to the first half of 2020 before the birth of her second child, Meadow, in July 2020. This accords with Dr Shah’s history. I accept that a subtle level of symptoms was developing from the first half of 2020 and became more noticeable to Barry Reid towards the end of that year, and came to a head in March and April 2021. This also accords with the evidence that Maria would rarely attend a doctor and in this case did not do so until her symptoms presented for ‘a fair while’, and were interfering at a level that was impacting upon her ability to undertake activities as she wished to do.

The contemporaneous history recorded by Dr Shah noted no cough or shortness of breath,[12] and Associate Professor John’s note of his consultation on 6 May recorded the plaintiff as being ‘fully independent all ADL’s’.[13] The defendant submitted that this belied any need for attendant care during Stage 1. A complete review of the symptomatology recorded at the time does demonstrate a variety of symptoms that might impact upon activity levels. It is clear from Dr Shah’s report that symptoms of nausea, sweats, chest pain and a change in diet to avoid dry food are all present. The fact that Associate Professor John described her as being ‘up and about’ most days when he saw her before chemotherapy started, and an absence of shortness of breath at rest observed by clinicians at this time, does not negate the other evidence that symptoms considered overall were limiting her activities of daily living by March 2021. The shortness of breath was improved by the drainage of fluid but was recorded as ‘beginning to increase again’.[14]
[12]On attendance on 22 April 2021.
[13]Notes of consultation of Dr Shah dated 6 May 2021, which were included in a bundle of documents tendered by the defendant (Exhibit D2).
[14]Exhibit D2 (n 13).

The estimate of time spent by Barry undertaking domestic assistance referred to in Ms Cogger’s report involved floor and bathroom cleaning, laundry and bed changing, tidying, gardening and shopping and running errands. In some of those tasks, Maria Reid was able to contribute but was unable to undertake the activity without assistance. Ms Cogger did not include any allowance for meal preparation at this time, although on the evidence of Barry Reid, it seems clear that cooking by that time was impacted. I accept that the estimates of time were those as best estimated by Maria and Barry as to the time spent in providing assistance. I accept that Maria was continuing to contribute to the domestic activities as she was able. At one hour per day in domestic assistance, it is a relatively modest allowance.

The time allowed for medical attendances also seems to me to be a reasonable time. Ms Cogger said she only included those appointments that were related to the mesothelioma diagnosis.[15] Barry Reid prepared a spreadsheet listing medical and other appointments and out of pocket expenses incurred. From that document it is clear that on 20 days during Stage 1 there was some medical attendance for advice, investigation or treatment. While some involved only a telephone call, others required attendance at the rooms of various practitioners or attendance for the various procedures outlined above. Barry Reid gave evidence Maria was

“getting worse because of all the tests that we were doing, we didn’t spend more than a couple of days not being somewhere, either having blood tests or MRI’s or going to doctors, going to hospital, she was just worn out. We’d come home at the end of the day, she’d have to go and lie down… The condition was one thing, but this was just wearing her out, all this movement we were doing, we were never home.”[16]

I accept that an average of 3.75 hours per week as allowed by Ms Cogger is an appropriate amount of time.

[15]T 158.11.

[16]T 80.12.

The defendant also disputed the inclusion of an allowance for time accessing the community, whether for medical appointments or shopping or other purposes until such time as the plaintiff became physically limited from doing so independently. This was on the basis that it was not a need created by the tortious conduct of the defendant but a need that pre-existed by reason of Maria Reid’s agoraphobia. The plaintiff did have long standing agoraphobia and anxiety which was managed, by her by choice, through meditation rather than medication. While she may have avoided travelling alone, and confined herself to areas within her immediate home suburb when she did, once Barry Reid retired they chose to do most if not all domestic and social activities together. That she did not like to drive was one reason why as a couple she and Barry managed their daily activities together.

Barry Reid disagreed that ‘she had to have somebody’ with her before she became ill.[17] He said that at times she would shop while he would wait outside[18] and said that prior to his retirement she had her own car and she would do the shopping and such things by herself.[19] I accept that although Maria Reid did not like to and so rarely went into the community alone, this was as a result of a shared retired lifestyle and the companionship of her marriage. It was a matter of choice by her. In any event, for the reasons outlined above, I accept that the fatigue and nausea that were present and increased by the volume of necessary appointments meant that for practical purposes her physical condition was such that there was a need for her to be taken to appointments throughout that time. The need is therefore one created by the defendant’s conduct.
[17]T 92.18.
[18]T 93.10.
[19]T 94.2.

In respect of care during hospitalisation for the pleurodesis, I was referred to the NSW Supreme Court case of Wormleaton v Thomas & Coffey.[20] In that case Campbell J was required to assess past gratuitous attendant care services under the Civil Liability Act 2002 (NSW). The joint expert report before his Honour gave a weekly allowance for ‘emotional support’ which was challenged by the defendants. He said:

…Griffiths v Kerkemeyer damages are awarded to plaintiffs to compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, … I accept that emotional support is not a ‘service’ that one is capable of rendering to oneself.[21]

In Wormleaton, the emotional support needed by that plaintiff was said to be directed at the maintenance of the plaintiff’s emotional state in the face of ‘psychological decompensation’. His Honour said that the benefit that we obtain from the company of friends and family is not described as a service.

[20][2015] NSWSC 260.

[21]Wormleaton v Thomas & Coffey [2015] NSWSC 260, [132] (emphasis in original).

While I agree that the psychological benefit of supportive friends and family, and social interaction generally that a plaintiff might engage in and receive, is not well described as a service provided by those people, I do not think that the provision of specific emotional support can never be a service that one is capable of rendering to oneself. The provision of professional psychological support is frequently directed at the development of strategies for self-managing an emotional state. The increasing focus on wellbeing and resilience of individuals in my view does support the idea that individuals may be able to, and do provide for, their own emotional wellbeing in specific ways. Of course such matters generally are, within a relationship of intimacy and closeness such as that which Maria and Barry Reid share, also a benefit that each gain from the other and in this sense I accept that emotional support is not characterised as a service. The distinction is perhaps best made by the evidence in this case.

Meditation was used by Maria as a specific tool to provide herself with emotional resilience to face challenging situations when she needed to. When hospitalised she found herself alone in an unfamiliar environment where, due to Covid regulations, she could not have family to visit and provide that familiarity and reassurance. Barry Reid’s evidence was that during that hospitalisation the plaintiff was agitated by the isolation from family necessitated by the Covid restrictions to such an extent that she was discharged early. The history given to Ms Cogger was that she has not continued to meditate and reported being ‘not as calm and I miss that very much’. In those circumstances I would accept that at least a component of the time spent talking on the telephone during hospitalisation was specifically directed at providing emotional support in the sense that it was attempting to alleviate agitation that Maria was unable to manage herself by meditation. Had Maria Reid chosen to manage her psychological difficulties with the support of a psychologist, such a person might very well be needed to provide support during a hospitalisation.

Other evidence generally was given of the need to be present to reduce anticipatory anxiety occurring with the onset of shortness of breath at home.[22] However, given the hospital discharge was brought forward by the level of agitation and given that the limited ability to use meditation practices generally, I am of the view that it is more appropriate to assess this aspect as forming part of the pain and suffering damages of the plaintiff rather than by way of provision of a service to her while in hospital or otherwise. I will allow the travel time for admission and on discharge at two hours for Stage 2.
[22]T 153.

Since discharge from hospital Maria has needed an increased level of care. She spent more time resting in bed and was able to assist less with domestic tasks. From Stage 3, an additional seven hours per week for meal preparation was assessed and domestic activities which she had previously needed assistance was doubled from seven hours per week to 14.25 hours per week. Some of this was increased because of she could no longer participate in the task with assistance. Ms Cogger agreed in cross-examination that where local council provided cleaning assistance for a two bedroom unit such as that lived in by the plaintiff and her husband, that one and a half to two hours per fortnight is allowed. I do not accept that a comparison with what a council might allow is necessarily an accurate indication of need. If all the tasks identified in the evidence as being undertaken by Barry Reid were to be provided I cannot see that being accomplished in a fortnightly visit of two hours or less. Ms Cogger obtained a history from Barry Reid as to the time he estimated he spent undertaking such activities as meal preparation.[23] Her estimates seemed based primarily on estimates of the time actually spent performing activities and I accept them.
[23]T 175.27.

In addition, an allowance of 3.5 hours per week for personal care was added, for Maria’s need for Barry to move around the home fetching items for her while resting in bed during the day.[24] This to me seems to overestimate time that might be incurred and may well incorporate aspects of emotional support as discussed above. Ms Cogger’s report did not give a descriptor for this and it is likely in any event to overlap to a large extent with the provision of domestic assistance otherwise allowed for. In the circumstances, I will allow 15 hours per week for domestic, gardening and personal care. Community access, largely spent attending medical appointments were allowed at two hours per week. By reference to the schedule prepared by Barry Reid, regular appointments at Peter MacCallum continued throughout June, prior to the commencement of chemotherapy. I accept the assessment of two hours per week. Therefore at Stage 3, I accept an overall allowance of 17 hours per week.
[24]T 159.17.

The defendant submitted that this level of care should continue until the commencement of the third cycle of chemotherapy and not end when the second cycle commenced on 21 July 2021. I accept this submission. The evidence disclosed that the plaintiff underwent 4 cycles of chemotherapy at three week intervals on 30 June, 21 July, 11 August and 1 September 2021. Associate Professor John described the three week interval as a time frame that balanced time to recover from side effects with a time frame for maximum therapeutic value. As I understood it, the side effects from each cycle might be significant particularly in the first ten days or so following which there would be improvement prior to the next cycle. This seems to have initially been the pattern with Maria Reid.[25] But her recovery lessened to a degree with each cycle. Accepting this pattern I would expect that for at least one week after chemotherapy attendant care needs might be greater than what has been allowed for above in Stage 3, balanced by a week before the next cycle where care needs might have reduced again. Ms Cogger understood the deterioration to have occurred ‘after the second cycle’ but the evidence really indicates a worsening from the start of the third cycle. Barry Reid described things becoming a lot worse in the last month or two.[26] Palliative care visits commenced in early August.[27] Simon Reid said his mother seemed okay after the first two cycles but became bedridden after the last two, describing the effect of the second half of her chemotherapy as ‘terrible’.[28] I would continue attendant care at the level of 17 hours per week to 11 August 2021.
[25]T 82.3.
[26]T 103.26.
[27]The plaintiff tendered a spreadsheet of medical and like appointments which was prepared by Mr Reid (exhibit PC).
[28]T 117.22.

Thereafter Ms Cogger’s supplementary report described Stage 4. The level of care at this time increases to 119 hours per week. From this time Maria has spent the majority of her time resting in bed. The loss of bowel control has become a significant, and at the time of trial ongoing, issue. For this stage, Ms Cogger has not differentiated between domestic, personal or community access care, assuming that such activities are done within the allocated personal care hours as can be accommodated while she is resting.

The bowel complication as a side effect of the chemotherapy was described as getting worse and worse. Associate Professor John said that constipation was a common side effect of chemotherapy and was treatable in Mrs Reid’s case by medication for the first two cycles. He described Maria Reid’s problem as overflow where blockage of the bowel nevertheless allows seepage around the blockage but the treatment remains focused on alleviating the constipation. He said that he was intending to escalate treatment for the bowel symptoms.[29]
[29]T 139.5.

She requires assistance to clean herself and change clothing and the bed linen needs frequent changing. Associated with this is the need to assist Maria out of the bed, to help her to the shower, assist with drying and dressing, and settle her while the bed is stripped and the linen changed, before helping her into bed again. Given her present fatigue and breathlessness this could not be a quick process. Only after this is completed could time be given to undertaking the associated laundry tasks.

Ms Cogger said that due to the unpredictable and spontaneous nature of the episodes of loss of bowel control someone needed to be present for most of the time. She understood that some days or nights might have no episodes but on other days there may be multiple occasions. Given that unpredictability it is not feasible to contemplate care costed by the provision of limited hours to attend in response. The defendant submitted it was not reasonable for someone to be present for lengthy periods in anticipation. While I agree viewed in isolation this might seem excessive, I am not convinced that a commercial costing of someone attending twice a day to respond to such a need would be reasonable as the defendant submitted.

Implicit in the different approach taken by Ms Cogger for Stage 4 was the need to fit domestic assistance and other personal care assistance around the unpredictable nature of the present bowel problems. Rather that assessing things on the basis that someone is present ‘just in case’, what really falls for assessment is how much of the day is taken up with all the attendant care activities needed to be undertaken for the plaintiff. Mr Reid said that after dinner he had an hour or two by himself which he described as a bit of a ‘break time for me’.[30] On occasion he is woken to respond in the middle of the night.[31] Simon Reid said he observed the week prior to trial when he spent days at his parents’ house he observed his father struggling with running around, with phone calls, and the toll of caring that his father was under. I formed a strong impression that Barry Reid’s days are almost fully occupied with tasks associated with care of his wife, while she has largely remained in bed. He said that he continued to encourage her to walk through the house and would walk with and support her to do so.[32] He estimates an hour or two of his waking time is not devoted to such care. In those circumstances I am persuaded that an overall allowance of 14 hours each day, plus an additional hour for overnight care, is appropriate. The reduction in hours, as for stage 3 reduces to remove any allowance for ‘emotional support’ or overlap. This totals 105 hours per week.
[30]T 84.26.
[31]T 85.1.
[32]T 104.4.

Therefore as to past care I assess the following amounts in accordance with the schedules and calculations provided by the parties. The details of the calculations are set out in Annexure 1.

Stage 1 $6,844.60

Stage 2 $123.00

Stage 3 $11,742.05

Stage 4 $48,126.13

(ii) Future

Central to the dispute as to quantum was the allowance for the cost of future care as informed by medical opinion as to Maria Reid’s life expectancy.

When initially diagnosed and before commencing treatment Associate Professor John advised generally a median survival time of 9-12 months. Based on Maria Reid’s fitness and disease burden before commencing chemotherapy, he estimated a prognosis of 12 months but said it was too early to make any more precise estimate. This would otherwise be informed by her tolerance of the chemotherapy and whether the tumour responds.

As detailed above, Maria Reid has had significant side effects associated with chemotherapy. Associate Professor John prepared a supplementary report on 20 September 2021. He noted she had not done particularly well with chemotherapy and he had ceased treatment after four cycles, rather than the planned six cycles because of the level of side effects, predominantly fatigue and nausea.[33] He said however, that recent scans showed disease stability, it neither having grown since chemotherapy began, nor shrunk in that time.[34] Clinically, her nausea had improved. He hoped that fatigue and bowel complications were side effects of chemotherapy and would improve in coming weeks.
[33]T 124.1.
[34]T 124.4.

He said without improvement in her present condition she would not be well enough for further therapies. With improvement he hoped to discuss commencing immunotherapy once she had recovered from the radiotherapy provided in the week of 27 September 2021.

In his viva voce evidence Associate Professor John expressed the opinion that ‘absolutely immunotherapy would be on the cards’, if she is able to recover further from her present symptoms.[35] He thought recovery was possible because in his view her nausea having improved, he thought that she was still in the stage of recovery from the fatigue associated with chemotherapy and had bowel difficulty and psychological factors all of which were playing a part in why she was spending long periods in bed.
[35]T 125.26.

In his view prognosis was presently difficult to estimate. He said:

It’s very hard to tell, actually, the disease is in an area that could potentially cause problems in the short term, but it has been stable for quite some time now, and really the thing that would potentially cause the most problem would be the disease in the spine, so hopefully by controlling that, her life expectancy is longer. If her disease continues to grow through all of this, it would be, you know weeks. If she has a response and we can get to the next line of treatment, it could be months, or even longer than that.[36]

[36]T 126.17.

In cross-examination he was asked about a performance status scale (ECOG)[37] used as a measure to determine fitness for chemotherapy. At zero there are no symptoms, at four a person is needing to spend 100% of the day lying in bed or sitting in a chair. Relevantly, three is spending about 50% of time in bed or chair. In May and June, before commencing chemotherapy, he assessed Maria Reid at ECOG 1. He agreed that the situation presently for Maria Reid was that her performance status had dropped beyond three as she was spending the majority of her days sitting or lying in bed. He thought however that this wasn’t because of the level of symptoms that he ‘could hang on the mesothelioma’.[38] In his view she was not bedridden by profound fatigue as you might expect for someone assessed at or approaching ECOG 4. In his view the concern about loss of bowel control at present together with motivation and will were playing a part.
[37]The Eastern Co-operative Oncology Group Scale.
[38]T 131.18.

Given these factors, Associate Professor John was prepared to allow room for improvement. He disagreed that a present standard of ECOG 3 equated to a survival time of two months and disagreed with the proposition that the ECOG alone was a useful predictor of life expectancy. Ultimately, his view was that if the performance scale of three was purely due to her cancer he would agree ‘her prognosis would be measured in months’ but in his view ‘the overlay of other factors… which are definitely contributing to her performance status’[39] were also impacting upon his opinion as to life expectancy. He was not yet convinced that even with no further treatment, Mrs Reid fits into a category of prognosis of only one or two months.[40] He agreed however, that without some improvement prognosis is more likely to be measured in weeks.[41]
[39]T 134.29.
[40]T 135.30.
[41]T 139.19; see also an email tendered as a part of exhibit PD dated 20 September 2021 from Dr John to Ms Segelov.

The defendant called Professor Richard Fox medical oncologist and haematologist who examined Maria Reid on 20 August 2021. At the time he saw her, she had undergone the third of her four chemotherapy cycles nine days earlier. He noted a deterioration in her ECOG scale since starting chemotherapy, and found it difficult to assess how much of the deterioration was due to side effects of treatment and how much was due to disease activity. At that time he had no information as to the effect of chemotherapy on disease progression. Professor Fox in his report thought she had deteriorated since June at which time she was ‘a little over 3’ to now ‘approaching level 4’ but concludes in his report that she remains ‘a little over 3’. He expressed the opinion that on her current presentation further chemotherapy ought not be pursued and immunotherapy would not be appropriate.

In his viva voce evidence, some additional information of events since his examination was put to him for comment. He was advised that CT scan at the conclusion of chemotherapy showed stable disease with the tumour having neither grown nor shrunk. He was advised that radiotherapy was to commence for the tumour abutting the thoracic spine to prevent its possible growth and compression of the spinal cord. He was advised that as at the end of September, nearly four weeks post chemotherapy Maria Reid continues to have bowel problems. Professor Fox took this information to infer the plaintiff was ‘bedridden all the time’[42], that the radiotherapy was an indication that the disease was not stable but progressive in another spot.[43] He also expressed his opinion as to her prognosis and performance status on the presumption that she was on various medications to control pain or other symptoms which may be of a narcotic nature such as codeine, morphine or Endone.
[42]T 228.
[43]T 227.8.

Professor Fox opines a prognosis of two months from August 2021 based upon literature[44] that weights performance status as a predictor of survival. On the basis of a deterioration to level four he maintained a survival time of a further four weeks or so at the time of trial.
[44]T 230.16; see also and in particular referencing a report of Dr Fox dated 22 August 2021.

In cross examination he clarified that in the past 15 years he has not seen patients in a therapeutic doctor patient role and his practice is confined to the provision of opinions for medical legal purposes. He agreed that the era of his clinical practice, predated developments such as the advent of immunotherapy treatment. When asked about factors other than ECOG and their potential effect on prognosis he maintained that ECOG of itself was a reliable prognostic tool. His prognosis was based upon progression of disease, the commencement of radiotherapy and an assumption that she was suffering from intractable pain and on narcotic medication. He made a series of assumptions that in daily attending hospital for radiotherapy she was probably wheelchair bound. On these bases he classified her as bedridden.

Insofar as the prognosis of Associate Professor John and Professor Fox differ I prefer the evidence of Associate Professor John. He has the advantage of assessments over time, including in-person assessments and is therefore able to make some comparative judgments. He is also experienced in the clinical judgments associated with the provision of immunotherapy and its potential effects. He accepted that Maria Reid would need to improve her performance status from her current position in order to be suitable to undergo that therapy. But he thought that presently the time in bed was largely attributable to anxiety associated with the bowel control and motivation, in that sense described as a choice, and so was reversable with amelioration of symptoms. In the face of a stable tumour on the recent scans he seemed on balance to believe that prognosis was more likely to be measured in months than weeks.

By contrast, Professor Fox’s pessimistic prognosis was based upon a description of a person bedridden by intractable pain, taking narcotic analgesia and with a progressive and unstable disease. These assumptions are not borne out by the evidence and consequently I do not accept his opinion.

The plaintiff submitted that prognosis was best assessed on the basis of an allowance of twelve weeks from 28 September 2021. I accept this is a reasonable basis. The various factors that underlie Associate Professor John’s opinion as to life expectancy allow both a shorter and longer period being possible. Prognosis is a matter of estimation not of identifying a fixed point in time representing neither the worst or most optimistic prediction.

Ms Cogger calculated a time of complete care in the final weeks of life. During this time she anticipates Maria Reid will be completely bedbound. Active overnight care and two hours per day attendance of a second person to conduct all transfers would be required. Her family anticipate providing this care, allowing Maria to remain at home throughout. Ms Cogger increased the hours needed in these final weeks by 74.5 hours per week, largely to accommodate the active overnight care. The additional features that seem likely to develop in or approaching this stage are greater assistance with transfers, maintaining skin integrity and preventing pressure sores, and managing a need for supplemental oxygen. I would allow an increase in hours from 105 to 170 per week and allow complete care for a two week period.

Therefore, future attendant care is calculated at 10 weeks at 105 hours per week and two weeks at 170 hours per week. On that basis the total amount for future attended care is $100,628.00.[45]
[45]The details of these calculations are set out in Annexure 1.

Gratuitous care of others
Principles

The Wrongs Act provides for damages to be paid to a person for their loss of capacity to provide gratuitous care to their dependants. Section 28ID provides that:

Court may award damages for loss of capacity to provide gratuitous care to dependants
(1) Despite anything to the contrary at common law, a court may award damages to a claimant for any loss of the claimant's capacity to provide gratuitous care to the claimant's dependants.

(2)        However, a court may only do so if the court is satisfied that—
(a) in the case of any dependants of the kind referred to in paragraph (a) of the definition of dependants—the claimant provided the care to those dependants before the time that the liability in respect of which the claim is made arose; and
(b) the claimant's dependants were not, or will not be, capable of providing the care themselves because of—
(i)        their age; or
(ii)       their physical or mental incapacity; and
(c) there is a reasonable expectation that, but for the injury to which the damages relate, the gratuitous care would have been provided to the claimant's dependants—
(i)        for at least 6 hours per week; and
(ii)       for a period of at least 6 consecutive months; and
(d) there will be a need for the care to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

(3) In determining the amount of damages (if any) to be awarded to the claimant for any loss of the claimant's capacity to provide gratuitous care to the claimant's dependants, a court—
(a) may only award damages for that loss in accordance with this section and section 28IE; and
(b) must not include in any damages awarded to the claimant for non‑economic loss a component that compensates the claimant for the loss of that capacity.

(4) The claimant may not be awarded damages for any loss of the claimant's capacity to provide gratuitous care to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.
(5) A person (whether or not a dependant of the claimant) may not be awarded damages for a loss sustained by the person because of the claimant's loss of capacity to provide gratuitous care if the claimant has previously recovered damages in respect of that loss of capacity.

A dependent in this context is defined under section 28 as:

(a)any persons who are wholly, mainly or in part dependent on the claimant at the time that the liability in respect of which the claim is made arises; or
(b)any unborn children of the claimant (including unborn children derived by adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time;

Dependency is a complex factual question and one that does not always align with a legal or primary duty to maintain another but looks to the nature of the relationship between the individuals.[46] Dependency can be demonstrated even if the gratuitous services are benefiting more than one or all members of a household or family group.[47] No issue was taken as to the dependency of the grandchildren to whom Maria Reid provided or intended to provide care.
[46]Middleton v Kiama District Hospital [1970] 3 NSWR 136.
[47]Amaca Pty Ltd v Novek (2009) NSWCA 50.

In CSR Limited v Eddy,[48] the High Court set out a number of reasons why a loss of a capacity to provide care to others was not like a loss of capacity to provide for one’s own care. To that extent the Court said such damages are not analogous to Griffiths v Kerkemeyer. The differences as a matter of principle underpinned the reasoning. At common law there is no ability to recover damages for the value of the gratuitous care of others provided by a plaintiff. A NSW Supreme Court decision[49] that held such damages were recoverable was overturned by the High Court in CSR Limited v Eddy.
[48][2005] 226 CLR 1 (‘CSR v Eddy’) .
[49]Sullivan v Moody (1999) 47 NSWLR 319.

Section 28ID of the Wrongs Act was in force and commented on in CSR Limited v Eddy. Statutory provision for the recovery of such damages as provided by some legislative intervention provided little assistance in determining what the common law position should be.[50] It remains in force since CSR Limited v Eddy was decided.
[50]CSR v Eddy (n 48), [54].

However as to the calculation of damages where available under statute, a method for assessing that loss must be made. Damages for loss of ability to provide gratuitous care to others may be assessed within the parameters of s 28ID(3) and the maximum provisions set out in s 28IE. Otherwise the way in which such loss may be calculated is not prescribed by statute. It may vary depending upon the facts.

The requirement that the number of hours be considered and the prescription of maximum amounts by recourse to average weekly total earnings of all employees in Victoria is indicative of an approach to calculation of loss that is analogous to the approach for Griffiths v Kerkemeyer damages. On these facts, it is in my view appropriate to approach the assessment in accordance with principles applicable to provision of attendant care to a plaintiff as outlined above.

Evidence

The plaintiff’s family members were questioned about Mrs Reid’s likely ability to provide care to others had her diagnosis not arisen. The evidence was predominantly provided by Benjamin Reid’s fiancée, Thuy Vo. Thuy said at trial that her family and her son, Bodhi, were dependent on the care provided by Mrs Reid, and were expecting to be dependent on such care until Bodhi reached the end of his primary schooling. Upon returning to work part-time after maternity leave, Thuy and Benjamin had an arrangement with the grandparents; they would drop their son at their house around 7am on work mornings, and collect him at the end of the work day. The routine would occur three days a week. Thuy gave evidence that the intention for their second child, Meadow, was that a similar routine would be in place.

During Thuy’s evidence she said that the routine gradually reduced in days per week because the plaintiff was becoming increasingly tired and unable to properly care for the toddler. Thuy said that the plaintiff’s tiredness started to become evident around early 2020. Thuy continued to work from home up until taking maternity leave for the birth of Meadow and remains on extended maternity leave, which since approximately March 2021 has been unpaid leave. Had Maria been able to care for the grandchildren Thuy intended returning to work part time eight to ten months after the birth or may have started her own business at that time.

As the grandchildren grew to kindergarten age, and then school age, it was anticipated that Maria and Barry would care for them before and after those hours and do drop-off and pick up duties.

This evidence was confirmed by Barry Reid who described the days that they cared for Bodhi. He described how Maria would look after Bodhi by making breakfast, playing with him, reading to him. He said as grandparents they would have great fun with him.[51] Barry was unsure whether they cared for him two or three days per week when Thuy resumed work.[52] The effect of Covid interrupted these arrangements as did the time Thuy was on maternity leave. The plan was to recommence when Thuy returned to work.[53]
[51]T 73.31.
[52]T 99.
[53]T 74.22.

When cross-examined, Thuy explained that Bodhi commenced three year old kindergarten in 2021. She described him as a very energetic and persistent toddler. She agreed that as the grandchildren are now aged four and one, their care and supervision can be physically demanding.[54] She said that she had not observed Maria to have difficulty coping with Bodhi’s energetic behaviour, describing that it was good to see Maria get up and dance with him. Thuy said caring for their grandchild gave Maria and Barry a good excuse to be more active and they appeared to enjoy it.
[54]T 208.

The defendant submitted that by 2020 it was clear that the care of an active toddler was becoming too much for Maria and it was unlikely that she could continue to provide such care. As such they submitted that no allowance should be made for such care. If I was to award damages, the defendant submitted that in respect of future care, it was unlikely that the plaintiff would have been able to provide such care for a further ten years bearing in mind she would by that time be eighty years old.

For the reasons outlined above as to the gradual and early commencement of symptoms I do not accept that absent illness, an energetic grandchild (or two of them), would have been beyond Maria and Barry in the present or immediate future. The kindergarten initially chosen was close to their home , anticipating their involvement in care arrangements during kindergarten.[55] It is not clear where primary school might be. To the extent that pickups or school drop-offs involve driving, that would more likely fall to Barry given the evidence as to Maria’s dislike of driving. Nevertheless, I accept that she would provide care outside of school hours on the days that Thuy and Benjamin were both at work.
[55]T 193.5.

I am satisfied of the matters set out in s 28ID(2).

Past care of others is claimed from 15 September 2020. This is the time at which Bodhi was placed in childcare near to Maria and Barry’s home, although also at a time when Thuy was on maternity leave. From September 2020 to 31 March 2021 gratuitous care of others is claimed at 22 hours per week. Given that Thuy would in any event have been on maternity leave for much if not all of that period of time, I believe it is more likely that a lesser level of care would have been needed, time to give respite to the mother and to maintain a regular routine for Bodhi with his grandparents. It seems unlikely that the same pattern of care would occur as it would when both parents were at work. I propose to allow 11 hours per week. Excluding the time that Melbourne was locked down under stay-at-home orders, this amounts to 20 weeks, rounded up.

From 1 April to the time of trial I accept three long days representing care on the return of Thuy to part-time work, to cover the three days both parents work. I note that this is also likely to cover the time when Bodhi is at three year-old kindergarten, but that Maria would otherwise be minding Meadow. Again, excluding periods when stay-at-home orders were in force, the period covers 14.29 weeks.

The evidence as to the commercial cost of providing childcare comes from Ms Cogger’s report. She relied on an hourly rate of $35.00 sourced from weneedananny.com.au. In a schedule of damages the plaintiff calculated gratuitous care of others by an hourly rate of $43.75 with reference to 1/40^th of average weekly earnings of $1,750. The statute does not mandate the use of such a calculation to determine the appropriate rate. Section 28IE is directed at amounts that may not be exceeded in an award of damages for gratuitous care of others. The amount of care I have assessed would be provided is less than 40 hours per week. Therefore s 28IE(2) might be applicable.[56] The section provides:
[56]The defendant in reply submitted by operation of s 28IF, that s 28IE was not applicable to the plaintiff’s claim in any event. Given my conclusion, it is not necessary to address that question.

Calculation of damages for gratuitous care
(1)If the court is satisfied that a claimant would have provided gratuitous care to his or her dependants for not less than 40 hours per week, the amount of damages that may be awarded to the claimant for any loss of the claimant’s capacity to provide that care must not exceed –
(a)the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in Victoria for –
(i)in respect of the whole or any part of a reference occurring between the date of the injury in relation to which the award is made and the date of the award, being a reference period for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award – that reference period; or
(ii)in respect of the whole or any part of any other reference period – the most recent reference period occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award; or

(b)if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(2)If the court is satisfied that a claimant would have provided gratuitous care to his or her dependants for less than 40 hours per week, the amount of damages that may be awarded to the claimant for any loss of the claimant’s capacity to provide that care must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (1)(a) or (b), as the case requires.

The actual commercial hourly rates for a nanny do not exceed the hourly rate produced by the formula for ascertaining a maximum award. In the circumstances, I will calculate the past loss based upon the figure identified by Ms Cogger.

11 hours per week, $385 x 19.71 weeks = $7,588.35.

33 hours per week, $1,155 x 14.29 weeks = $16,505.00.[57]

[57]The details of these calculations are set out in Annexure 1.

As to future gratuitous care of others the first period covered a three and a half year period until commenced school. The claimed hours remained constant at 33 hours per week until January 2025 when Meadow commences primary school. However, I would reduce this in 2023 and 2024 to allow for Meadow’s attendance at 3 and 4 year-old kindergarten. I would allow 30 hours in 2023 and 27 hours in 2024. As can be seen in the Annexure I have averaged the various weekly amounts for the purpose of applying the relevant multiplier for the whole period. The total calculation for this period would be $179,737.25.

Thereafter, when both children are at primary school, the plaintiff claimed 11.23 hours per week, comprising 8 hours per week during term times and 22 hours per week during 12 weeks of school holidays. From this I would deduct four weeks for parental leave where care and supervision would not be required. I would also reduce the allowance for transporting children to and from school or activities as more likely being principally undertaken by Barry if driving were to be required. Combined this would allow a total of 416 hours per year. Averaged over 52 weeks would amount to 8 hours, and therefore $280 per week for a seven year period.

The plaintiff submitted that for future losses the appropriate 3% multipliers are 173.5 (being the multiplier for a 3.5 year loss), 0.9015 (for the loss deferred by 3.5 years) and 330 (for a loss of seven years). Although the Wrongs Act prescribes a 5% discount rate for pecuniary loss damages, there is no prescription for attendant care or gratuitous care for others. As is made clear in Van Gervan, damages for attendant care of a plaintiff are not damages for economic loss. By analogy nor are damages for gratuitous care of a dependent. Accordingly, in my view it is appropriate to use the common law prescription of a 3% discount.

The calculation for future loss applying that discount is $179,086.70 for the next 3.5 years and $83,298.60 thereafter.[58]
[58]The details of these calculations are set out in Annexure 1.

The plaintiff submitted that in the Wrongs Act there is no mandate to discount damages of this nature for vicissitudes, in contrast to the equivalent provision in the NSW legislation. It is nevertheless appropriate to consider whether a reduction for vicissitudes should be applied. Ordinarily damages for future pecuniary loss are to be assessed at their present value discounted for the advantage of receiving compensation for those future losses before they are actually incurred.[59] This has been undertaken by the use of the 3% multiplier already for the damages under this head. For pecuniary loss damages the amount is also discounted for the uncertainties that other future events might independently impact upon a person’s capacity to earn.[60]
[59]Todorovic v Waller (Jetson v Hankin) (1981) 150 CLR 402.
[60]Malec v JC Hutton Pty Ltd (1990) 92 ALR 545; see also Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208.

Damages for loss of capacity to provide care to others is not loss and damage of a type known to common law, it is a creature of statute. Like attendant care it may be calculated by reference to the commercial provision of services but is not dependent upon any demonstration that it is productive of financial loss. Analogous to attendant care, the rationale for awarding damages is to compensate the injured plaintiff for her inability to provide that care to dependants. The application of vicissitudes reminds the person making the assessment that mathematical precision cannot be achieved when predicting future losses, even those amenable to a theoretical calculation. What is important is the exercise of judgment in estimating what might have occurred into the future absent injury. It is to this exercise that the consideration of vicissitudes is applied. The loss of ability to provide continuing care, and a level of that care, are even less susceptible to mathematical precision than pecuniary loss damages. I see no good reason to depart from the general approach to assessing future damages by considering vicissitudes in assessing future gratuitous care of others. In circumstances where no particular vicissitudes are identified that might lead to a heightened discount, I propose to apply a 15% discount.

Special Damages

Past and future medical and other out of pocket expenses were agreed between the parties as follows: Past expenses $10,002.38 and future expenses $10,000.

General Damages

Many of the aspects of Maria Reid’s life that are relevant to an assessment of general damages are detailed in the foregoing reasons. I include in this the references to problems managing anxiety in the context of diagnosis which did feature through the evidence in a number of ways. She is the matriarch of a close and loving family, in a lifelong companionable marriage. She had recently become a grandmother for the second time and enjoyed and intended an active and involved participation in the lives of her grandchildren. She and Barry enjoyed time together at Anglesea where they enjoyed long walks. The evidence touched on her pride in her appearance, and that of her homes. It was also my clear impression from Simon Reid’s evidence in particular, that she hid any concern she might have noticed in her own behaviour or capacity from her family for as long as was possible. Her present quality of life is poor and has been so for much of the time since diagnosis, overwhelmed as it has been with interaction with the medical profession. Barry Reid described there being only one day where she was able to sit out in the sun in her garden.[61] He described that as a beautiful day in the midst of great suffering.
[61]T 83.

The defendant submitted that a figure of $250,000 was an appropriate sum for pain and suffering and loss of enjoyment of life. The plaintiff submitted that $600,000 would be a fair and reasonable award. Mesothelioma is presently incurable and inevitably fatal. Barry Reid movingly expressed how he was facing the prospect of the future. When asked if the doctor’s had outlined what the future might hold, he said: ‘Not really. I’m not sure that we really want to know too much, to be honest. I’d be scared to tell [her]’.[62]
[62]T 90.27.

In considering an appeal against a jury award of $730,000 for general damages in a mesothelioma case, the Court of Appeal said whilst this was the highest jury award of damages for mesothelioma in Victoria it was one that was proportional to previous jury verdicts.[63] The Court referred to Mr Rabenalt, then aged 52, who in 1988 was awarded $426,000 compensatory damages, a component of which was economic loss.[64] In Crimmins v Stevedoring Industry Finance Committee,[65] the plaintiff was nearly 62 years at the time of trial. He was awarded $833,000 in 1998. Given his age and the fact that he’s been unable to work for a year before trial, the Court estimated his general damages award to have exceeded $500,000. Crimmins was the last jury verdict for the development of mesothelioma before King in 2011. King itself is now ten years old.
[63]Amaca Pty Ltd (under NSW Administered Winding Up) v King [2011] VSCA 447 (‘King’).
[64]Midalco Pty Ltd v Rabenalt [1989] VR 461, $250,000 in exemplary damages was also awarded.
[65](1998) Aust Torts Reports 81-477.

I have regard for the observation of the Court of Appeal that these three jury verdicts, spanning 30 years are proportionate to each other given the passage of time between them. The task of a judge in assessing damages is different to that of a jury (or of a court assessing whether a jury verdict is excessive). My task, like that of a jury, is to arrive at a figure representing fair and reasonable compensation in the particular circumstances of this case. A judge inevitably brings professional experience of the range of outcomes but I do not approach the task by seeking out a norm or standard for damages to determine whether they are proportionate to the injury sustained by Mrs Reid.[66] In Victoria, civil juries bring the community perspectives to an assessment of what value is proportionate in cases that they determine. In Planet Fisheries, the High Court said ‘It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation’. [67] In Victoria a judge may have regard for the value that wider community places on pain and suffering as reflected in jury verdicts, in this case when occasioned by persons contracting mesothelioma. It remains important to have regard for the expression of community ideas of fairness and moderation even while civil jury trials, such as had been requested by this plaintiff, are suspended by the Covid pandemic.
[66]Planet Fisheries Pty Ltd v La Rosa [1968] 119 CLR 118.
[67]Ibid [12].

I am also mindful of the further comment of the Court of Appeal:

We acknowledge that there is a significant gap between sums which appear to have been awarded by judges in other states for pain and suffering damages for mesothelioma and the sum awarded by the jury in this case – and, very probably, in their day by juries in Rabenalt and Crimmins. Part of the difference however, is explicable on the basis of different statutory regimes. As has been seen, in this state there is no statutory mandate for referring to other decisions in order to determine damages for non-economic loss the result of asbestos related injuries, and the upper limit on non-economic loss damages does not apply. There is also the possibility that judges ‘continue to apply past precedents even after …”large and relatively permanent” changes have occurred’. [68] Juries of course do not.[69]

[68]King (n 63) quoting Harold Luntz, Assessment of Damages for Personal Injury and Death (Butterworths, 3^rd ed, 1990) 7.1.7.

[69]King (n 63), [183].

The injury caused to Maria Reid has not simply diminished her quality of life, it is destroying it in every aspect as surely as the malignancy is invading her lungs. In my view, an award of $580,000 is an appropriate figure for general damages, together with damages at $20,000 for the objective loss of life expectancy.

In summary therefore I assess damages as follows:

Past and Future special damages $20,002

’Griffiths v Kerkemeyer’ Damages:

Past $66,836

Future $100,628

Damages pursuant to section 28ID Wrongs Act:

Past $24,093

Future $223,028

General Damages, including for loss of expectation of life: $600,000.00

Total (exclusive of interest) $1,034,587

ANNEXURE 1

Schedule of past Griffith v Kerkemeyer damages

STAGE 1: 15/03/2021 to 24/05/2021 – 10.75 hours per week care

Start Date	End Date	Weeks	Hours Per Week		Hourly Rate	Weekly Cost	Total Cost
15/03/2021	24/05/2021	10.14	Personal Care	0	$71.00	$0.00	$0.00
Domestic	6.25	$61.50	$384.38	$3,897.61
Gardening	0.75	$80.00	$60.00	$608.40
Community	3.75	$61.50	$230.63	$2,338.59
TOTAL	10.75	$675.01	$6,844.60

STAGE 2: 25/05/2021 to 28/05/2021 – 2 hours per admission (Royal Melbourne Hospital)

Start Date	End Date	Weeks	Hours Per Week		Hourly Rate	Weekly Cost	Total Cost
25/05/2021	28/05/2021	0.57	Personal Care	2	$61.50	$123.00	$123.00
TOTAL	2	$123.00	$123.00

STAGE 3: 29/05/2021 to 11/08/2021 – 17 hours per week

Star Date	End Date	Weeks	Hours Per Week		Hourly Rate	Weekly Cost	Total Cost
29/05/21	11/08/21	10.57	Personal Care (Mon-Fri)	2.25	$61.50	$138.38	$1,462.62
Personal Care (Saturday)	0.55	$79.73	$43.85	$463.51
Personal Care (Sunday)	0.55	$86.86	$47.77	$504.96
Domestic (Mon-Fri)	9.75	$61.50	$599.63	$6,338.04
Domestic (Saturday)	0.95	$79.73	$75.74	$800.61
Domestic (Sunday)	0.95	$86.86	$82.52	$872.20
Community	2	$61.50	$123.00	$1,300.11
TOTAL	17	$ 1,110.89	$11,742.05

STAGE 4: 12/08/2021 to 28/09/2021 – 105 hours per week

Start Date	End Date	Weeks	Hours Per Week		Hourly Rate	Weekly Cost	Total Cost
12/08/21	28/09/21	6.71	Personal (Mon-Fri)	70	$61.50	$4,305.00	$28,886.55
Personal (After Hours)	5	$73.69	$368.45	$2,472.30
Personal (Saturday)	15	$79.73	$1,195.95	$8,024.82
Personal (Sunday)	15	$86.86	$1,302.90	$8,742.46
TOTAL	105	$7,172.30	$48,126.13

The total of past gratuitous care awarded is $66,836

Schedule of future Griffiths v Kerkemeyer damages

HIGH CARE: 29/09/2021 to 18/11/2021 – 105 hours per week care

Start Date	End Date	Weeks	Hours Per Week		Hourly Rate	Weekly Cost	Total Cost
29/09/21	18/11/21	10	Personal (Mon-Fri)	70	$62.18	$4,352.60	$43,526.00
Personal (After Hours)	5	$74.50	$372.50	$3,725.00
Personal (Saturday)	15	$80.61	$1,209.15	$12,091.50
Personal (Sunday)	15	$80.61	$1,209.15	$12,091.50
TOTAL	105	$7,143.40	$71,434.00

COMPLETE CARE: 19/11/2021 to 03/12/2021 – 170 hours per week care

Start Date	End Date	Weeks	Hours Per Week		Hourly Rate	Weekly Cost	Total Cost
19/11/21	03/12/21	2	Personal (Mon-Fri)	75.5	$71.00	$5,360.50	$10,721
Personal (After Hours)	45.5	$84.00	$3,822.00	$7,644.00
Personal (Saturday)	24.5	$103.00	$2,523.50	$5,047.00
Personal (Sunday)	24.5	$118.00	$2,891.00	$5,782.00
TOTAL	170	$14,597.00	$29,194.00

The total of future gratuitous care awarded is $100,628

Schedule of past section 28ID damages

STAGE 1 - 15/09/2020 to 31/03/2021 – 11 hours per week care

Start Date	End Date	Weeks	Hours Per Week		Hourly Rate	Weekly Cost	Total Cost
15/09/20	31/03/2021	19.71[70]	Personal Care	11	$35.00	$385.00	$7,588.35
TOTAL	11	$385.00	$7,588.35

[70]28.29 weeks less 8.57 weeks in lockdown subject to COVID stay at home orders.

STAGE 2 - 1/04/2021 to 28/09/2021 – 33 hours per week care

Start Date	End Date	Weeks	Hours Per Week		Hourly Rate	Weekly Cost	Total Cost
01/04/2021	28/09/2021	14.29[71]	Personal Care	33	$35.00	$1,155.00	$16,505.00
TOTAL	33	$1,155.00	$16,505.00

[71]25.86 weeks less 11.57 weeks in lockdown subject to COVID stay at home orders.

The total of past gratuitous care of others awarded is $24,093

Plaintiff’s Schedule of future section 28ID damages

STAGE 1: 29/09/2021 to 31/01/2025 – 25 hours per week

Start Date	End Date	Weeks	Hours Per Week		Hourly Rate	Weekly Cost	Total Cost
29/09/2021	31/01/2022	17.71	Personal Care	33	$35.00	$875.00
01/02/2022	31/01/2023	52.14	Personal Care	33	$35.00	$1,155.00
01/02/2023	31/01/2024	52.14	Personal Care	30	$35.00	$1,050.00
01/02/2024	31/01/2025	52.14	Personal Care	27	$35.00	$945.00
174.13	Av. = $1,032.20
Application of 3% multiplier	$179,087[72]

[72]$1,032.20 per week x 173.5 (3% 3.5 year multiplier)

STAGE 2: 01/02/2025 to 15/12/2031 – 8 hours per week care

Start Date	End Date	Weeks	Hours Per Week		Hourly Rate	Weekly Cost	Total Cost
01/02/2025	15/12/2031	Personal Care	8	$35.00	$280.00
8	$280.00
Application of 3% multiplier	$83,299[73]

[73]$280 x 0.9015 (3% 3.5 year deferred multiplier) x 330 (3% 7-year multiplier)

The total of future gratuitous care of others awarded is $262,386

Less 15% discount for vicissitudes is $223,028

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Citations

Reid v Seltsam Pty Ltd [2021] VSC 653

Most Recent Citation

Seltsam Pty Ltd v Reid [2021] VSCA 326

Cases Citing This Decision

2

Davis v Amaca Pty Ltd [2024] NSWDDT 2

Seltsam Pty Ltd v Reid [2021] VSCA 326

Cases Cited

7

Statutory Material Cited

0

Griffiths v Kerkemeyer [1977] HCA 45

Amaca Pty Ltd v Novek [2009] NSWCA 50

Sullivan v Gordon [1999] NSWCA 338

[2021] VSC 653

7 October 2021