Ronald William Phillips v Amaca Pty Limited (formerly James Hardie and Coy Pty Ltd)

[2019] NSWDDT 5

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	RONALD WILLIAM PHILLIPS v AMACA PTY LIMITED (formerly James Hardie & Coy Pty Ltd) [2019] NSWDDT 5
Hearing dates:	20 & 21 May 2019
Date of orders:	24 May 2019
Decision date:	24 May 2019
Before:	Strathdee DCJ
Decision:	(1)   Judgment for the plaintiff against the defendant in the sum of $664,393.03. (2)   Order that the defendant pay the plaintiff’s costs as agreed or assessed. (3)   Liberty to apply to my associate within 14 days if a different costs order is sought.
Catchwords:	DUST DISEASES – damages – mesothelioma – s15A – factual background – past care – future care - reasonableness
Legislation Cited:	Civil Liability Act 2002 Dust Diseases Tribunal Act 1989
Cases Cited:	Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 Griffiths v Kerkemeyer (1977) 139 CLR 161
Category:	Principal judgment
Parties:	Ronald William Phillips (Plaintiff) Amaca Pty Limited (Defendant)
Representation:	Counsel: Mr J. Rush QC (for the Plaintiff) Mr J. Sheller (for the Defendant)     Solicitors: Segelov Taylor (for the Plaintiff) Mills Oakley (for the Defendant)
File Number(s):	430/2018

Judgment

1. Mr Ronald William Phillips (‘the plaintiff’) sues Amaca Pty Limited by Statement of Claim filed in the Tribunal on 21 December 2018 seeking damages at common law for the disease of Mesothelioma.

2. The plaintiff alleges that between approximately 1977 and 1985 he assisted his friend Mike Fisher to carry out building and construction work in the Sutherland Shire, and during the course of that work the plaintiff handled, cleaned-up, swept and otherwise worked with asbestos cement building materials manufactured and supplied by the defendant.

3. As a consequence, the plaintiff was exposed to and inhaled asbestos dust and fibre.

4. The hearing commenced before me on 20 May 2019 where the evidence of the plaintiff, his daughter Karen Felton, and his friend Pamela McKerral, was taken at the apartment in which the plaintiff is currently living in Cronulla.

5. Upon returning to Sydney for the continuation of the proceedings that afternoon, it was appropriately conceded by counsel for the defendant that having heard the plaintiff’s evidence, the matter would now proceed simply as an assessment of damages.

6. The plaintiff who was born on 14 June 1934 is a retired architectural designer. The plaintiff between 1953 & 1956 completed his apprenticeship as an engineer with Commonwealth Engineering at Rocklea, and then from 1956 to 1977 worked as a draftsman and design engineer at the Australian Atomic Energy Commission in Lucas Heights, NSW.

7. In or about 1977 or 1978 the plaintiff then set up his own business known as ‘Ron Phillips Designs’ in which he was self-employed as an architectural designer. He continued that work until approximately 4-6 years ago.

8. During the course of his work as an architectural engineer the plaintiff and his family travelled to and lived in the United Kingdom and Canada, for a number of years as part of the plaintiff’s career and continuing professional education.

9. Prior to contracting Mesothelioma the plaintiff lived on his own in an apartment in Cronulla where he was fiercely independent, without any need for any assistance in personal care or domestic activities. He was extremely fit and involved in many activities, including dancing and walking along the Cronulla boardwalk a couple of times per week.

10. In his Form 1 Statement of Particulars, which was tendered and marked ‘Exhibit A’, the plaintiff details that up until approximately late 2018 his health had been good, that he had no problems with his heart and the only medication that he was taking was ‘Nexium’ for reflux.

11. In October 2018 the plaintiff describes experiencing severe pain in his neck and right leg, which he put down to cervical stenosis from which he had suffered previously.

12. On 3 October 2018 the plaintiff went to see his local doctor, Dr Rowen Vickers, who recommended the plaintiff undergo and x-ray and a CT scan. These were reported to the plaintiff as showing pressure on his spinal cord and he was told that he needed an MRI scan. He was provided with pain medication and then sent to see a physiotherapist.

13. Within a week or so the plaintiff indicated his leg pain had settled however he continued to suffer pain in his neck and lower back. The plaintiff also noticed that he was starting to get short of breath on exertion and was losing weight. He had a cough and was coughing up sputum.

14. The plaintiff’s breathlessness became a particular problem when he was dancing. After these symptoms had persisted for more than 6 weeks, Dr Vickers suggested the plaintiff have a chest x-ray and a CT scan. These were done on 20 November 2018 and the plaintiff was told a dark ‘splodge’ was shown on his lung. He was also told that half of his right lung was black and filled with fluid and that he ought attend to Sutherland Hospital to have the fluid drained. The plaintiff did attend the hospital that day and waited to have the fluid drained from his lung.

15. He was finally told that the procedure was bigger than had previously been understood and that he needed to be admitted to the hospital for the procedure to occur. He was sent home and was told to come back to the hospital on 5 December 2018. At that point in time the plaintiff was very anxious about what his diagnosis may be.

16. The plaintiff was admitted to Sutherland Hospital on 5 December 2018 and underwent a pleuroscopy, a talc pleurodesis and a pleural biopsy. 3 litres of fluid were drained from his lung and a further 550 mls were drained over the next 24 hours.

17. Subsequent to the surgery the plaintiff was told that he had mesothelioma and that his prognosis was ‘bad’.

18. The plaintiff remained in Sutherland Hospital until 8 December 2018.

19. The night after the surgery, the plaintiff was found wandering around in another ward in the hospital and was confused and delirious. As a consequence a CT scan was taken of his brain, but it returned a normal result.

20. Blood tests were taken which revealed the plaintiff had very low sodium levels and he was put on a fluid restricted high salt diet.

21. On 12 December 2018 the plaintiff saw an oncologist, Dr Tracey Dunlop, who recommended chemotherapy but the plaintiff decided he did not wish to have it.

22. Since then the plaintiff has continued to be intermittently confused and disoriented, and very emotional.

23. Initially after his discharge from hospital the plaintiff was very weak and had little energy and he spent most of his days resting. He has however tried to push himself to get back to dancing. He has lost approximately 20 kilos in weight and is forcing himself to eat to try and build his strength.

24. The plaintiff has become increasingly short of breath and now is unable to walk more than a few paces without having to rest and break.

25. The plaintiff has not been able to go dancing for some months now.

26. The plaintiff is finding it difficult to sleep and gets up a number of times during the night to go to the bathroom and has difficulty going back to sleep.

27. The plaintiff has four children, a son Stephen who lives in Queensland, a son Ian who lives on the Central Coast, a son Adam who lives in Glenfield and a daughter Karen who lives in Loftus. His children have, to some extent, been involved in his care.

28. After the plaintiff was discharged from hospital in December 2018 he was unable to live on his own. He therefore moved in with his friend, Pamela McKerral, to be cared for by her.

29. Ms McKerral gave evidence before me on the first day of the hearing. She indicated that she had been the plaintiff’s dance partner for approximately 8 years and they used to go dancing and have dance classes together sometimes 3, 4 & 5 nights per week. They also went walking along the boardwalk, and both had a keen interest in art.

30. Prior to the middle of last year Ms McKerral said that the plaintiff was very fit and he would want to dance every set. It was a wonderful activity that they enjoyed together and they had made a number of friends at the various dancing venues they attended. They would sometimes have a meal before the dancing started and they assisted each other by driving each other to the venues and sometimes staying at each other’s home if they were closer to the venue that they were attending on the evening in question.

31. The plaintiff continued to reside with Ms McKerral until he was abruptly moved from her home at 3:00pm on Friday 17 May 2019. Ms McKerral had not seen him since that day.

32. Prior to the plaintiff being moved out of Ms McKerral’s home she indicated that she and her daughter, who is a nurse, lived with her for part of that time, provided extensive care and attention to the plaintiff, as he was virtually unable to care for himself.

33. Ms McKerral shopped and cooked for the plaintiff, prepared all of his meals, attended to all of his personal needs including showering, bathing and shaving and drove him to and attended all medical appointments that he required through the latter half of December 2018 up until a matter of days ago. As the plaintiff was having difficulty eating Ms McKerral would cut his food up into small pieces and attempt to get him to eat as much as possible.

34. In more recent times the plaintiff has often just masticated the food over and over in his mouth until a point in time when he would spit it out. On other occasions the plaintiff wouldn’t eat his own food but would take food from Ms McKerral’s bowl and eat that. Ms McKerral assisted in every way she could to try and get the plaintiff to eat and drink as he continued to lose weight.

35. Ms McKerral gave evidence before me in a very honest and straightforward manner. I was particularly struck by the way she detailed the symptoms that the plaintiff was experiencing and the high level of personal care that he required. Ms McKerral spoke most respectfully of what the plaintiff was suffering and her attempts to assist him.

36. It is very obvious to me that Ms McKerral and the plaintiff have an enduring friendship forged by their dancing but also their love of art, and that Ms McKerral has a very deep emotional connection with the plaintiff and is very distressed not simply by his illness, but by the fact that he has been removed abruptly from her home and placed in accommodation to which she had not been invited to attend. Quite simply, she misses the plaintiff and his company.

37. The plaintiff’s daughter, Karen Felton, gave evidence and indicated that she was born on 24 March 1958 and was a former web designer. She detailed her childhood years living with her mother and father and living overseas as a consequence of her father’s employment and study endeavours.

38. Mrs Felton indicated that her mother and the plaintiff divorced in approximately 1982/1983 and her father then moved to Yowie Bay for a period and then bought a home in Paddington. The plaintiff lived in Paddington for some time and then bought an apartment in Cronulla. Mrs Felton detailed that the apartment in Cronulla in which the plaintiff lived prior to December 2018, was a very small one bedroom apartment which was on the second floor but was actually on the third level of the building which made it very difficult for him to get up and down the stairs. The unit also had a shower over the bath which with the plaintiff’s current condition he would not be able to utilize.

39. Prior to the plaintiff’s illness Mrs Felton indicated he was very independent, was completely self-sufficient and that he was a very energetic man who enjoyed his dancing and was very light on his feet. He went for long walks, some 5 & 6 kilometres, at least 3 times per week and was out dancing on many evenings per week.

40. Mrs Felton gave evidence that the plaintiff was a health food fanatic and was very particular about maintaining his healthy nutrition. Mrs Felton also indicated that the plaintiff was very involved in art groups and was a very productive artist. Mrs Felton produced a short video which displayed a number of magnificent paintings and ceramics that the plaintiff had created. The plaintiff was continuing all of his artistic endeavours until 2018. Mrs Felton also identified two pieces of art that were in the apartment that the plaintiff is now living in as works he had done which had been displayed in a number of exhibitions.

41. It is obvious to me, having regard to the art works that I have been shown, that the plaintiff was a very talented artist across a number of mediums and I accept that this was something that he very much enjoyed prior to the onset of his illness. It was also something that he had in common with Ms McKerral.

42. Mrs Felton’s evidence was that to her observation the plaintiff is now very anxious and does not want to be left alone as he is fearful that he will not know where he is or that he may have a fall. She says that he panics a lot even if she steps out of the room to go to the bathroom or to take a shower, he will call for her as he does not want to be away from anybody for any period of time. She has indicated that he could not walk very far and was only able to take a few steps at a time. He feels he is a danger to society (see Ms Cogger’s report, p.8).

43. Mrs Felton indicated the reason that the plaintiff had to move into the serviced apartment he currently is in is because he had become unmanageable for Ms McKerral as his needs were too great. For the last few nights that the plaintiff has been in the serviced apartment, nurses have come in from 8:00pm until 8:00am to care for the plaintiff which includes bathing, dressing, preparing meals and drinks and attending to him throughout the night.

44. Mrs Felton gave evidence that there had been some suggestions some months ago that the plaintiff ought go into palliative care and that was what the family were attempting to do, however the plaintiff didn’t cope with the concept of moving into care, and it is his daughter’s belief that it would kill him if he were to have to move into a nursing home. The transcript records as follows: (Transcript p.10)

‘Q.   From your perspective and your assessment of your father, if he was to be put ‑ or it is said that he should be in a home.        A‑‑‑We feel that he would ‑ he thinks that if he goes into a home he's going to be liquidated. I think it would kill him.’

45. As the plaintiff became so distressed at the idea of moving into a nursing home, Ms McKerral again offered to care for him in her home.

46. This proposition was also put to Associate Professor Caplan as follows: (Transcript p.38)

‘Q.   Here we heard evidence this morning that Mr Phillips, if he was put in institutional care, would feel like he is being liquidated. That is what it means for him, and again, that is something you would understand.        A‑‑‑Almost every person that we send to a nursing home says, "But I don't want to go to a nursing home."

Q.   They do not want to go, and many just completely give up if they do ‑ many is an exaggeration. It happens.        A‑‑‑It is recognised that some people do give up when they go into a nursing home.’

47. As the demands on Ms McKerral were becoming more and more onerous, and I note that she herself suffers some significant health problems with her hip and knees, the family arranged for more help to be provided.

48. The demands on the plaintiff’s daughter are also significant as she cares for children two days per week and unfortunately her husband had a heart attack the night before the bedside hearing and she needed to care for him.

49. The plaintiff’s daughter has witnessed him in a delirious state on occasion when he was staying with her. He would wander around and urinate all over the house. That was about 2 months ago and the plaintiff stayed with his daughter so that Ms McKerral could have a break.

50. The plaintiff’s daughter indicated the reason she moved him into the apartment was that she wanted him to have a break and she wanted Pamela to have some respite.

51. It is not anticipated that the plaintiff will return to his home as it is obvious that he needs a high degree of care.

52. Associate Professor Gideon Caplan gave evidence before me on the first day of the trial. Associate Professor Caplan is a highly qualified expert geriatrician who examined the plaintiff in February this year. He was a very impressive witness and I have absolutely no hesitation in accepting his evidence. The main thrust of the questions asked of Associate Professor Caplan in the letter qualifying him was whether there were any identifiable cognitive impairments that the plaintiff has and the effect that they may have on his prognosis.

53. In relation to the question of prognosis Associate Professor Caplan indicated that the measure of the plaintiff’s life expectancy was to be calculated with regard to the trajectory of his condition. He said that as the plaintiff appears to have deteriorated quite rapidly, that is suggestive of a shortened prognosis, probably of a matter of months.

54. More importantly, Associate Professor Caplan was cross-examined extensively about whether or not the plaintiff suffered from delirium, depression or dementia and the circumstances in which any or all of those conditions could have arisen and, if there was a synergistic effect with his diagnosis of mesothelioma, and if the pleurodesis may have exacerbated his condition. He stated as follows:

‘Q.   Page 6, I am looking at Professor, it answers some questions that were put to you.        A‑‑‑Yes.

Q.   You indicate in the fourth line under (a) that "cognitive impairment can be due to three clinical conditions; a dementia delirium or depression".        A‑‑‑Yes.

Q.   I take it in relation to each one of those, that being a cognitive impact of any one of those is very similar.        A‑‑‑Similar but there are other symptoms which occur at the same time which allow one to identify one or the other, but as I said you can have two or even three of these conditions at the same time occurring in the same patient.

Q.   You say, "Delirium particularly if it is severe or prolonged can trigger the onset of dementia or aggravate it or accelerate the progress of pre existing dementia however judging by the record from St George Hospital the delirium was neither severe nor prolonged. This is likely why Dr Julian thought he had pre existing dementia. It is very unusual to develop this degree of cognitive impairment due to dementia rapidly".        A‑‑‑Yes.

Q.   "In addition the cognitive changes Mr Phillips have developed are moderately severe loss of activities of daily living function, unable to continue living independently from the time of admission to the Sutherland Hospital. This seems to have happened too quickly to blame on dementia or his mesothelioma".        A‑‑‑In 95% or 99% of cases of dementia, that's the case, yes.

Q.   So you formed the opinion that the presentation was more consistent with a depressive pseudo dementia.        A‑‑‑Yes.

Q.   And that his loss of cognition was secondary to that.        A‑‑‑Yes.

Q.   And here this morning, her Honour has heard evidence from people close to him that the hospital admission and I think probably the notes you have seen indicate the delirium that he suffered from as far as those that were close to him was like the turning off of a switch as far as his cognition is concerned.        A‑‑‑Mmm.

Q.   In those circumstances accepting that history, would you agree that the likelihood of the problem that he's had since that time is the hospital admission and the general anaesthetic causing the pseudo dementia.        A‑‑‑Part of it is also the news, being given the news that it is ‑ you know that the biopsy shows mesothelioma, has an impact on the person as well, a huge impact on the person as well.

Q.   What is the sort of impact that occurs with such news insofar as the diagnosis that you have made.        A‑‑‑Well, in some people it can make them depressed very rapidly. People's ability to handle that kind of information varies tremendously. Some people seem to ‑ it seems to be like water off a duck's back, and other people can be floored by it.

Q.   And her Honour has heard evidence that the plaintiff is a man who's been described in his life as an atomic engineer, as a perfectionist who ‑ I think you have read it, but was for his age incredibly active, painting and the like.        A‑‑‑Yes.

Q.   Are those type of people with those characteristics more vulnerable than not to this sort of news.        A‑‑‑They are. Well, people who are very obsessive, which those kind of engineers are, are vulnerable to depression. People who are perfectionists.’

55. Associate Professor Caplan further stated as follows: (Transcript p.41)

‘Q.   You spoke about the facilities that are best available for him, just as far as bathroom facilities. If the evidence to be adduced is that it is a very large bathroom, open shower, easy access for schools and the like, but also is the sort of facility that should be available for bathing.        A‑‑‑If you can replicate a nursing home type of facility in another place, that makes it much better, that's appropriate, the physical facility and the care.’

56. Katerina Rhonda Spurway was also called to give evidence on the first afternoon of the trial. Her report on the letterhead of her Agency Nurse Watch, was tendered and became part of the Plaintiff’s Tender Bundle.

57. Ms Spurway was a very impressive witness and detailed her history as having been a nurse for 35 years, a nursing adviser to the Department of Health and now running a private agency providing private nursing services, with vast experience of palliative care.

58. Ms Spurway had nursed the plaintiff on the previous night from 8:00pm until 8:00am the next morning. She gave very forthright evidence about the plaintiff’s state, about the food that he continually masticated and then spat out on the Sunday night but the fact that he had had a good breakfast of Weetbix, fruit and Sustagen on the Monday morning. She indicated that he seemed robust from the ingestion of his breakfast and was quite co-operative in assisting her to shower and dress him for the day. She admitted that understandably, it is a nice day for a nurse to have it start off so well.

59. Importantly, Ms Spurway gave evidence about the dimensions of the Quest apartment in which the plaintiff is currently residing. She indicated that the distance from the bed to the bathroom was some 4 paces which was very convenient as it was not too far for someone who became breathless easily. She then indicated that there was a slope in the bathroom to the shower which had handrails, and the toilet was also at the appropriate height, and allowed for ease of toileting and showering of the plaintiff with the assistance of a nurse. She indicated that whilst there was additional equipment that could be required for nursing a person with the plaintiff’s disabilities could easily be hired and installed in the apartment (see Transcript p.45 l.44-p.46 l.15).

60. The tenor of Ms Spurway’s evidence was that the same care that would be provided to a plaintiff in a residential care facility could be provided to the plaintiff in the Quest apartments, but more likely the care in the apartment would be better as it would be on a one on one basis and all activities could be performed in a timely fashion commensurate with the plaintiff’s state of physical and mental health.

61. Ms Spurway gave evidence of her experience in observation of nursing homes and facilities for at least the past 4 years and was asked the following question (see Transcript p.48 l.16):

‘Q.   Based on that experience, are you able to give an opinion to her Honour as to the apartment where Mr Phillips is now located compared to an aged care facility.        A‑‑‑I can, in terms of the layout. As you walk in the front door you have got a galley kitchen on the left. The room on the right, which is very good in terms of getting your client in if they need to go to the bathroom or get changed in their room, that component is self‑contained. The kitchen is on the left, so it is open plan, so you can see what is going on. There is not too much clutter, and then to the left you have got the sitting area with a view out there, so you can tell between night and day, and then the small seating area. So for a small space, it works well, in terms of moving and vision.

Q.   Was there anything last night in relation to Mr Phillips getting out of bed.        A‑‑‑There is a certain time that he ‑ well, he is not unsettled, but he's a wanderer. So having that vision with the unit ‑ I was sitting in there and I was able to see him come out of his room to the kitchen, where he was. There's not a blind spot in terms of hearing and seeing, I guess, from my experience.’

62. Ms Natala Cogger, Occupational Therapist, gave evidence before me on Day 2 of the trial. Her report dated 6 March 2019 was taken into evidence and became ‘Exhibit J’.

63. Ms Cogger had the opportunity to examine the plaintiff at his apartment in February 2019. Of note, at the time of that examination she noted that the plaintiff was physically quite able, was not in any pain, his fatigue was relatively low and his shortness of breath was minimal on exertion. She surmised that he was physically capable of doing things.

64. Ms Cogger was asked by Senior Counsel for the plaintiff about the recommendations that she made with regard to the Cronulla apartment as opposed to that of an aged care facility which resulted in the following dialogue:

‘Q.   You recommended the Cronulla apartment.        A‑‑‑Yes I did.

Q.   Why not an aged care facility.        A‑‑‑I didn't recommend an aged care facility based on his needs at the time of my assessment, that he was very physically able, his mental health, just his affect in the assessment that I had he was very withdrawn. Aged care facilities in my experience working at St George Hospital when we were trying to place people within a short term timeframe, there's usually four to a room and there's very few single rooms that are available unless you are willing to wait several months for that to happen, and I felt that for him being in a four bed room with three other people that are at varying levels of function would impact on him further. I sort of felt that he was such a fiercely independent man before his diagnosis. He was very active in the community and he was someone that impressed to me as a very stoic sort of person who had always just done his own thing. Being put into a nursing home placement where he has to also conform to their timelines there, arrangements of when he has to shower, when he has to eat his meals, when he has to do certain things and he has very little control over that. So whereas the current arrangement on my recommendations at the Quest Apartments allows him to be cared for within his care needs and depending on the time of day as to if he wants to take a little bit longer to get ready in the morning or have his breakfast he can but he's got the staffing to support him, to regularly encourage him to eat, that he's got the staff too if he wants to go down to where his familiar environment is and go down to Cronulla, it's an easy access down to the area there where he can ‑ depending on his level of physical ability at the time, even if it's being wheeled down in a wheelchair but it's all ‑ from my perspective that would be the best environment for him to be in, to maximise that quality of life for him as his disease progresses.

Q.   There was evidence yesterday from the nurse who cared for him on Sunday night and Monday morning that quite deliberately two hours was spent getting him dressed, preparing him, getting his meal, putting him in a physical and mental position to be right to face the day. That sort of care in your experience in an aged care facility, how do you compare them.’

65. Ms Cogger gave evidence about trying to entice people like the plaintiff to eat, as they often change their minds about what they wanted to eat and when, and she indicated that a one-on-one care in those circumstances would be far superior as a person in the plaintiff’s position is unlikely to receive such intensive care if he was in a care facility.

66. Ms Cogger was also asked about the plaintiff’s mental state suggesting that he may have suffered from a depressive pseudo dementia as follows:

Q.   Professor Caplan gave evidence in Court yesterday to the effect that in his opinion as a consequence of the surgery and the diagnosis provided to the plaintiff in December of last year, that he suffered from a depressive pseudo dementia and that is a cognitive loss with low mood, sleep disturbance, depression, poor appetite, he referred to it as major depression that could disturb appetite, sleep pattern and in those circumstances combined with the physical deterioration that occurs with mesothelioma, how important from an occupational therapy point of view is care.        A‑‑‑It's crucial, because his mental health has already had such an impact on his ability to engage in everyday life as it is. He's lost complete confidence in himself and he feels like ‑ well, as he reported to me, sort of he feels that he's a danger within the society and environment and he's at risk, so from my perspective it's as his physical condition deteriorates, if his mental health is already impacted then that's going to be further impacted so it's important that where possible we can try and manage his mental health side to support him as the physical side starts to deteriorate.

Q.   In that sense of care, there's also evidence of the need or reassurance ‑ that a constant presence of reassurance again in the care that you have recommended, is that something that you have taken into account and would be provided by the sort of care that you have recommended.        A‑‑‑Yes.’

67. Ms Cogger was a very impressive witness who gave her evidence in a very forthright manner and when she was asked questions about matters that she felt were outside her area of expertise she clearly stated so.

68. I have absolutely no hesitation in accepting all of Ms Cogger’s evidence.

69. The prevailing theme of Ms Cogger’s evidence however was that all of the facilities that were available in a nursing home could be created in the Quest apartment and that the plaintiff’s daughter, Mrs Felton, and his friend, Ms McKerral, had both indicated that they would assist in caring for him if professional nurses were also available, in addition to family and friends of the plaintiff. In those circumstances he would be cared for on virtually a one on one basis which not only assists in ensuring his nutritional needs are met but also is far superior in terms of his mental health and degree of comfort and happiness.

ASSESSMENT OF DAMAGES

GENERAL DAMAGES

70. For all his life prior to the onset of his disease, the plaintiff was a man who was extremely organised and regimented. He enjoyed a very successful, intellectual career involving him travelling the world and he also had great interest and proficiency in painting and dancing. His painting involved attending classes and exhibiting and his dancing also required him to attend classes and various establishments where he could practice his skill in a very regimented fashion which is typical of his personality.

71. In October/November 2018 when the symptoms of the plaintiff’s disease started to manifest his regimented and organised life became chaotic, he began losing things, forgetting things, he had to stop driving, he was unable to walk on the beach, he couldn’t dance for very long and that continued to deteriorate until he underwent surgery in mid-December 2018 when his life as he then knew it stopped completely and his friends and family members describe his personality as being switched off like a light.

72. The defendant submits that the losing of the plaintiff’s watch and wallet was only evidence of dementia and that he had early stages of dementia before the onset of his mesothelioma.

73. Whilst the defendant submits that the plaintiff’s life expectancy has been reduced as a result of his dementia, I do not accept that proposition. In his report of 7 May 2019 (‘Exhibit H’), Associate Professor Caplan states on page 6, as follows:

‘(a) An assessment of the Plaintiff’s current condition and your diagnosis of the same.

At the time I saw Mr Phillips he is suffering from malignant mesothelioma for which there is no cure.

He also has significant cognitive impairment and has a markedly diminished ability to manage his own Activities of Daily Living. Cognitive impairment can be due to three clinical conditions: dementia; delirium or; depression. Delirium, particularly if it is severe or prolonged can trigger the onset of dementia, or aggravate and accelerate the progress of pre-existing dementia. However, judging by the record from St George Hospital the delirium was neither severe nor prolonged. This is likely why Dr Julian thought he had pre-existing dementia. It is very unusual to develop this degree of cognitive impairment, due to dementia, so rapidly. In addition to the cognitive changes, Mr Phillips has developed a moderately severe loss of Activities of Daily Living function and was apparently unable to continue living independently from the time of his admission to Sutherland Hospital in December 2018. This seems to have happened too quickly to blame on dementia or on his mesothelioma.

My opinion is that his presentation is more consistent with Depressive Pseudodementia. That is cognitive loss secondary to depression. The combination of low mood, sleep disturbance and poor appetite is consistent with Major Depression, albeit that advanced malignancy can also cause disturbances in appetite and sleep pattern, his cognitive deterioration seemed to happen too quickly to be accounted for by metastatic malignancy. His depression is largely a reaction to his new diagnosis of cancer, but it is of a severity that would likely benefit from pharmacological treatment, and that would likely improve his cognitive impairment and his quality of life, but not change his life expectancy. He has been briefly trialled on antidepressants, but not long enough, or at sufficient dose, to obtain a therapeutic effect. Many older people are reluctant to take psychiatric medication and need a lot of reinforcement to stick with it long enough to help.’

74. I do not accept that the plaintiff had or has dementia and I prefer Associate Professor Caplan’s diagnosis of depressive pseudodementia. Associate Professor Caplan diagnoses the plaintiff as suffering from a major depression which in my view is hardly surprising given his terminal diagnosis.

75. If I was to contrast the plaintiff’s lifestyle in May to June 2018 with his circumstances now it depicts a dramatic and severe deterioration in his quality of life.

76. Associate Professor Caplan does not endorse dementia as a diagnosis after having examined the plaintiff’s general practitioner’s notes nor are there any entries, it is submitted, in the journal kept by his friend Ms McKerral to suggest that there were effects of the dementia prior to October/November 2018.

77. I note that the plaintiff is currently aged 82 years old and I accept that some forgetfulness towards the end of last year is not in and of itself demonstrative of a condition of dementia but simply a gentleman who is ageing. He is a man who had it all, a wonderful life with family and friends that he enjoyed reflecting on an imminent and rewarding career and now retirement full of life, community and family engagement. Since the latter part of 2018 his life has been destroyed, he is now lonely and miserable travelling on a pathway to an inevitable death. He has suffered a severe psychological injury with the physical complications associated the diagnosis of mesothelioma. The only evidence of dementia is a suspicion in the report of Dr Julian where she believes he may have suffered a mild undiagnosed dementia prior to his surgery however Dr Julian in her report (‘Exhibit F’) dated 2 April 2019 opines that as a result of his cognitive impairment the plaintiff now requires constant supervision and can no longer live alone, nor does the defendant submit that he is capable of living on his own.

78. In relation to the question of general damages the defendant submits that these ought be modest compared to other cases because the two elements that is appropriate for me to have regard to in assessing general damages are the two striking features that the plaintiff has not they submitted suffered much breathlessness and nor has he made any complaint of any pain. They accept that no doubt as a consequence of the surgery the plaintiff suffered some pain however it was an uncertain duration.

79. The evidence given by Ms McKerral made no reference to the plaintiff experiencing pain nor did the plaintiff provide such evidence himself.

80. Mrs Felton, the plaintiff’s daughter, also gave no evidence about the plaintiff experiencing any pain.

81. The defendant submits that this matter sits atop all the appropriate matters for consideration in awarding the amount of general damages. They submit that there is no evidence that that situation will change. They submit further that the plaintiff was certainly not breathless by February 2019 when he was assessed by Ms Cogger and Associate Professor Caplan.

82. The defendant submits that the lack of pain is critical to the assessment of general damages however I am not convinced that whilst the plaintiff has not experienced much pain as a consequence of his illness which is in stark contrast to a lot of victims of mesothelioma who experience excruciating pain sometimes from the onset of symptoms that the plaintiff will not unfortunately go on and experience pain, perhaps mildly or perhaps quite severely, towards the end of his life.

83. I do not accept that the plaintiff has had minimal breathlessness to date as his breathlessness has severely interfered with his capacity to enjoy many activities that he did prior to October 2018, particularly walking and dancing. This is in part reflected in Ms McKerral’s journal.

84. The defendant accepts that the injury caused by the defendant has accelerated the plaintiff’s dementia (if he has it) and delirium. They refer my attention to Associate Professor Caplan’s evidence that the plaintiff’s anticipated date of death may be 2-4 months from 6 May 2019 because he is showing signs of starting to stop eating.

85. By contrast, Senior Counsel for the plaintiff suggest that assessing general damages is extremely difficult because the plaintiff is so damaged and so overwhelmed by the consequences of his disease and the psychological effect of mesothelioma on a man who led an exemplary life and was a perfectionist.

86. I accept that the plaintiff presented a persona and a character of the perfectionist atomic engineer, but as a consequence of the defendant’s negligence everything he was, and everything he did had been destroyed.

87. His work, his enjoyment of art across a number of mediums, his friendships and nights out dancing and delight in the company of the community in which he has lived for many years. His regimented and organized life has been thrown into complete disarray, and his former personality and life have been switched off like a light.

88. I do not accept that he has dementia, and the entries in Ms McKerral’s journal to my mind do not support that diagnosis nor does Associate Professor Caplan’s evidence. I think it is far more likely that his confusion arose as a consequence of the anaesthetic for the pleurodesis, and his depression as a consequence of his terminal diagnosis. For a man so fiercely independent, who took such diligent and particular care of his health, this is an evil blow to receive when he was at a stage in his very regimented and planned life, to enjoy his pastimes, interests and friends.

89. He is now a lonely, dying man, with no control over his future or his daily life, which having been totally independent for so much of his life and looked after himself, must be excruciating. He is clearly a perfectionist and having to deal with the predicament he now finds himself in, subject to the whims of others must be devastating.

74. The appropriate award under this head is $350,000.00.

75. The plaintiff is entitled to interest on his past general damages which I assess as ½ at the rate of 2%.

LOSS OF EXPECTATION OF LIFE

92. The plaintiff submits that the appropriate figure for loss of expectation of life is $8,000.00. The defendant submits it ought be $4,000.00. The plaintiff is 82 years old and based on the actuarial figures prepared by Cumpston Sarjeant Pty Ltd, and affirmed in Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15, the plaintiff had a life expectancy of 8.17 years. Given the convention in the Tribunal, I award the figure of $8,000.00 for loss of expectation of life.

OUT-OF-POCKET EXPENSES

93. The parties have agreed the past out-of-pocket expenses in the sum of $10,905.27, and I make that award.

94. The plaintiff has produced a schedule of future out-of-pocket expenses which totals $6,724.95. The defendant submits the appropriate figure is $5,000.00. Given that the plaintiff has not had much medical treatment this year, I am of the view that the appropriate figure is $5,000.00, and I make that award.

GRATUITOUS ATTENDANT CARE SERVICES

95. Section 15A of the Civil Liability Act 2002 applies to the determination of civil liability for damages for gratuitous attendant care services (often referred to as ‘Griffiths v Kerkemeyer damages’: Griffiths v Kerkemeyer (1977) 139 CLR 161) in proceedings brought under s11 of the Dust Diseases Tribunal Act 1989.

96. ‘Attendant Care Services’ are defined in s15(1) as follows:

15(1) In this section:

‘Attendant Care Services’ means any of the following:

(a)   services of a domestic nature,

(b)   services related to nursing,

(c)   services that aim to alleviate the consequences of an injury.

‘Gratuitous Attendant Care Services’ means attendant care services:

(a)   that have been or are to be provided by another person to the claimant, and

(b)   for which the claimant has not paid or is not liable to be paid.

97. Section 15A(2) provides that the hourly rate prescribed by s15(5) applies to the calculation of damages. It is accepted by the parties that the rate for gratuitous care is $31.03 per hour.

98. The defendant, through its schedule of damages, suggests the rate for nursing care is $50.00 per hour.

99. The significant area of dispute between the parties is in relation to the plaintiff’s claim for part 15A damages. The defendant concedes that from the date of the surgery, 5 December 2018, to the Friday before the commencement of the trial the plaintiff required 16 hours per day of attendant care. For the 7 days encompassing the trial from 16 May to 23 May they concede that the plaintiff was entitled to 2 days of 24 hour personal attendant care which was provided by Mrs Felton and her brother, 12 hours of professional nursing for 5 days and 12 hours of personal attendant care for 5 days.

100. The plaintiff has calculated the cost of attendant care as follows:

7 nights per week commercial nursing care:

$1,012.80 weekday

$1,071.60 Saturdays

$1,368.00 Sundays

3 weekday’s commercial nursing care:

$918.00 per day

I note these figures are actually less than those contained in Ms Cogger’s report and I accept that the plaintiff also allows the gratuitous care at $31.03 per hour for 4 days per week. I accept that these rates are appropriate.

101. With regards to the future, the defendant submits on the basis of an 8 week life expectancy that the plaintiff is entitled to 40 hours of care per week which, they submit, would be provided either by his daughter Mrs Felton or his friend Ms McKerral however I note that both ladies have restrictions on the amount of care that they are available to provide (Mrs Felton with her family responsibilities, and Ms McKerral due to her own health issues).

102. The defendant submits that there is no evidence that the current care regime is intended to be kept in place long term. They point to the fact that there is no evidence from Ms McKerral as to what she wants to do nor is there any evidence from the plaintiff’s daughter, Mrs Felton, regarding the plans for the future. They submit therefore I ought find that the situation is fluid.

103. The defendant submits that there is no evidence from the Quest apartments that an extended stay has been paid for and that at best there is a chance that the current care arrangement might continue for some time but may not continue long term due to each of the carers’ own commitments.

104. By contrast, Senior Counsel for the plaintiff submits that the appropriate care for the plaintiff would be continuing in the manner in which he is, that is staying in the serviced Quest apartment in Cronulla, having care from his friends and family for some of the day but full time nursing care for at least the overnight part of each 24 hour period, and some weekdays when friends and/or family are not available.

105. The defendant refers to the plaintiff’s prognosis as being somewhere between 3-6 months based on the report of Associate Professor Caplan who indicated months and that of Dr Julian who suggested 12 months from the date of diagnosis which I accept to be October 2018.

106. Senior Counsel for the plaintiff submits that the care that can be provided to the plaintiff in the Quest apartment at Cronulla is far superior to that that can be provided in a nursing home and in particular whilst this man may not have yet experienced any physical pain his psychological suffering is enormous and his needs can be far better met on a one to one basis in the apartment. The apartment allows the plaintiff’s entry and egress from the building via a lift where he can walk or be pushed in a wheelchair down to observe the boardwalk and the beach or he can sit on the balcony of the apartment and overlook his location at Cronulla where he has lived for many years.

107. Accommodation of this style is such that also allows for the plaintiff’s dressing, toileting, eating and personal care be done in an unhurried fashion by one person who is there to give him 100% of their attention as opposed to a timetabled regime which would be imposed in a nursing home or care facility with a far higher staff to patient ratio which necessitates periods of time where the plaintiff’s needs may not be met immediately or even in the short term depending on what is happening to the other residents of the facility.

108. Senior Counsel for the plaintiff urges this approach on me as akin to him being nursed at home but the necessity for it to occur in a serviced apartment as opposed to the plaintiff’s own home, as his home is a one bedroom apartment which necessitates ascending and descending three flights of stairs for entry and exit of the apartment and has an over-bath shower in which it would be virtually impossible for the plaintiff to bathe.

109. I also note in the calculation of the plaintiff’s 15A damages the claim is made for the cost of the care and equipment but not for the cost of the accommodation itself, that is not for the cost of the rental fee for the Quest apartment in Cronulla. Their claim is framed in that way so as to identify its corollary with circumstances if the plaintiff was to be cared for in his own home where there would be no additional cost for accommodation. I think that component of the claim is made quite fairly and appropriately.

110. I accept that given the plaintiff’s independence, busy and active life, and noting that he now suffers from total dependence on others for everything, it is reasonable for him to be accommodated as he is at present, in a serviced apartment with full-time care.

111. I think it is reasonable that he is cared for in the apartment with a combination of nursing care and care provided by his friends and family. He deserves to be comfortable and to the extent that he may find some comfort looking out from the balcony to see his beloved beach and boardwalk, it is reasonable for that to be provided to him.

112. Given his current state of health, and knowing most unfortunately, that his condition will only deteriorate, I accept that it is reasonable that he be cared for 12 hours each night by a nurse. I accept that during the daytime he cannot be left alone at all as he becomes very anxious and upset. Given that his daughter and sons can hopefully care for him in daytime hours and keep him company 4 days per week, he should have daytime nursing for the remaining 3 days per week.

113. Based on Associate Professor Caplan’s opinion as to prognosis, I accept that it is about 3 months from now, and I have calculated that for 13 weeks from today. He is entitled to interest on the past care at 2.75% since mid-November 2018 to date.

PAST GRIFFITHS v KERKEMEYER

Date	Description/Calculations	Sub-Total	Total
20.11.18–04.12.18 (14 days)	Staying with Ms McKerral – 6 hrs per day @ $31.03 phr	$ 2,606.52
05.12.18-07.12.18 (3 days)	In hospital, attended by Ms McKerral - 6 hrs per day @ $31.03	$ 558.54
08.12.18-17.05.19 (160 days)	Full-time care Ms McKerral/Mrs Felton - $31.03 x 24 x 160	119,155.20	122,320.26
18.05.19-24.05.19 (7 days)	Quest apartments to date of Judgment - Full-time care 7 nights nursing	7,503.60
- 7 days gratuitous care	2,606.52	132,430.38
Total Past Griffiths v Kerkemeyer:	$ 257,357.16

FUTURE GRIFFITHS v KERKEMEYER

Date	Description/Calculations	Sub-Total Per Week	Total Per Week
25.05.19 x 3 months (13 weeks)	Full-time care
- 7 nights nursing @ $7,503.60 pw	$7,503.60
- 3 weekdays nursing @ $2,754.00 pw	2,754.00
- 4 week days gratuitous care $31.03 x 12 x 4 @ $1,489.44 pw	1,489.44	$ 11,747.04
Total Future Griffiths v Kerkemeyer:	$ 11,747.04 Per Week

114. I make the following awards:

General damages

$ 350,000.00

Interest @ 2% on ½

3,500.00

Loss of expectation of life

8,000.00

Past Out-of-Pocket Expenses

10,905.27

Future Out-of-Pocket Expenses

5,000.00

Past Care Services

132,430.38

Interest on Past Attendant Care @ 2.75% for 185 days

1,845.86

Future Care

152,711.52

TOTAL:

$ 664,393.03

Plus Costs

ORDERS

115. My orders are:

1. Judgment for the plaintiff against the defendant in the sum of $664,393.03.

2. Order that the defendant pay the plaintiff’s costs as agreed or assessed.

3. Liberty to apply to my associate within 14 days if a different costs order is sought.

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Decision last updated: 03 June 2019