Russell v Cockatoo Dockyard Pty Ltd

[2004] NSWDDT 7

Dust Diseases Tribunal

of New South Wales

CITATION:	Russell v Cockatoo Dockyard Pty Ltd and Anor [2004] NSWDDT 7
PARTIES:	Colin Russell Cockatoo Dockyards Pty Ltd Commonwealth of Australia
MATTER NUMBER(S):	298 of 2002
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	01/04/04
EX TEMPORE JUDGMENT DATE :	04/01/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr A Leslie, QC instructed by Turner Freeman. FOR FIRST DEFENDANT: Mr B Hughes instructed by A O Ellison and Co. FOR SECOND DEFENDANT: Mr T J Morahan instructed by the Australian Government Solicitor

JUDGMENT:

1. The plaintiff brings proceedings for damages against two defendants, the first defendant Cockato Dockyard Pty Ltd and the second defendant the Commonwealth of Australia. In the upshot the defendants have indicated that they do not wish to be heard on the question of liability and the matter should proceed as an assessment of damages. I intend to approach it that way. It is convenient to tell a little of the story of the plaintiff's exposure so that what happened to him may be understood.

2. He is a man born on 4 January 1943. He married in 1967. His wife was born on 17 July 1945. He left school at the Intermediate. He became an apprenticed fitter and turner. After a couple of short stints of employment with other employers he became employed at the Cockatoo Dockyard where he worked from 24 November 1958 until mid 1965. During that period he obtained his qualification as a tradesman.

3. During much of the time when he worked for the first defendant, Cockatoo Dockyard Pty Ltd, he worked on naval vessels owned by the Commonwealth. He did some other work as well but much of his work was done on Commonwealth vessels. From time to time his duties required him to work alongside laggers. The evidence was that there were extensive steam lines through naval vessels which required thermal insulation. There was dust in the air while he was doing his work. The dust would float in the air for a time and then settle onto flat surfaces. There were times when he had to clean the settled dust away so that he could do his work. From time to time he had also to remove insulation from pipes so that he could do his work. That would create dust as well. The presence of dust was a constant feature he said while he worked there.

4. In 1965 the plaintiff left that employment and entered the Police Service where much of his time was spent in forensic laboratories. There is no suggestion of any further exposure to asbestos.

5. He retired from the Police Force I think in 1995 or thereabouts. His case about the effects of asbestos upon him commences at least in a temporal sense with an assertion that from 1996 onwards when he exerted himself he noticed that he became breathless. He developed a lifestyle in retirement in which he walks every day and continues to do so for three quarters of an hour or an hour on a flat surface, he swims every day winter and summer in the surf for a quarter to half an hour. He said that breathlessness becomes more noticeable for him if he exerts himself, for example digging in the garden or doing manual work or planting things.

6. In 2001 the plaintiff saw a television show about a worker from Cockatoo Dockyard who had died from an asbestos related condition. It disturbed him sufficiently that he went to see his GP to get his own position checked out. He was sent for an x-ray and then referred to a specialist, Dr Kaufman. The specialist arranged for a CT scan and furnished an opinion to the plaintiff. He said that at the time he saw the specialist if he was at rest, that is to say not exerting himself, he felt fine. It was his view that his condition has remained the same up to now as it was when he saw Dr Kaufman. He said that several times, firstly, to his own counsel and then to cross-examining counsel later on. He repeated that his problem was that he has difficulties with breathing when exerting himself. He does not have trouble, he said, with coughing nor does he have a sensation of tightness in his chest unless perhaps he has got the flu or some viral condition like that. If he is affected by breathlessness, the plaintiff said, and he then rests the breathlessness passes. An aspect advanced in respect of his claim was that he used to do a fair bit of the heavy housework at home but that his breathlessness has meant that he is not able to do as much. Now his wife does most of it.

7. It was asserted by the plaintiff when giving his evidence that his capacity to do the heavy things at home deteriorated as time went by. It is not clear to me how that piece of evidence sits with the proposition that he is no worse than he was in 2001.

8. Following on consulting the doctors he went to see his solicitors. They referred him to Dr Michael Burns, who saw him first in November 2001. Lung function tests were administered. He was then sent to see other specialists Dr Breslin and Dr Maccioni.

9. The plaintiff was then asked some questions about what happened when he went to see his own specialist, Dr Kaufman. That doctor's report, which bears date 3 July 2001, was tendered not by the plaintiff but by the first defendant. The history recorded by the doctor in the third paragraph of the letter 1DX2 commences this way:

There are no respiratory symptoms. Specifically there has been no chest pain, shortness of breath or cough.

10. When taxed with the history the plaintiff said in answer to a question suggesting he had told the doctor that he had no respiratory symptoms: “I didn't have them at that time." He was asked:

Question Did you tell Dr Kaufman that you had been breathless since 1996.

He could not remember. Clearly enough the doctor's report contains no history suggestive of breathlessness from 1996 onwards or at all.

11. The next matter put to the plaintiff was that the doctor had arranged lung function tests, as appears from a letter from the same doctor of 20 August 2001, part of 1DX2, which were normal. He replied that he could not remember the conversation, in which the doctor reported to him about the test results. Shortly afterwards he added that the doctor reassured him that the condition that he had was nothing to worry about. Once again the question was put to him.

Question Do I understand that there has been no change since then.

Answer Only breathlessness on exertion.

Question That is how you were then.

Answer Yes.

Question How you were in 2001 is how you are now.

Answer That's correct.

12. When it was suggested that a sinus problem that he had had nothing to do with asbestos the plaintiff said that has never been discussed. It was then pointed out that Dr Chapman had seen him for that condition and said that he suffered from chronic rhinitis and the plaintiff said, "yes." He was asked some questions about matters which are not contentious in the proceedings: apparently in the 1970s, perhaps 1973, he had a car accident and he has had neck and back problems over the years since then. In 1998 he was sent to Dr Sears, neurosurgeon, for advice about them. There was nothing, apparently, that the doctor could offer by way of treatment. It was suggested to the plaintiff that that condition unrelated to the subject of this court case would affect his ability to do things around the house and he said that at the time symptoms were flaring up it would. He confirmed that the complaint to the GP which caused the referral to Dr Sears was a constant pain in the neck, dorsal spine and lumbosacral spine. The plaintiff said, and I accept, that he tries to maintain his fitness by his walking and his swimming.

13. The next matter about which he was taxed, substantially speaking, was that he told Dr Breslin that his effort tolerance was normal although sometimes he has to slow up going up steep hills and the plaintiff did not disagree with that suggestion. It was suggested to him that he did not tell Dr Breslin about breathlessness and he said he could not recall. It was put to him that he was exaggerating his difficulties and he said he did not think so. There were also some questions asked about coughing but I do not think they take the matter much further.

14. To learned counsel for the Commonwealth the plaintiff said that he had a knee problem which caused him to see the doctor in 2002. There is material now in evidence to say that he has a degenerative condition of the right knee. I do not know that it has any great part to play in the case. He acknowledged that he is on medication for blood pressure and cholesterol. He was then asked:

Question You can still do everything, can you not, but it takes you longer.

Answer More or less.

15. In re-examination he spoke of taking normal analgesic for his spinal discomfort and with the help of that analgesic he can manage his normal activities. As far as blood pressure medication has any part to play he was taking such medication whilst he was still working.

16. The medical evidence in the case, or the balance of it, comes firstly from Dr Michael Burns, who was qualified by the plaintiff's solicitors. I think it fair to summarise his approach this way: he had lung function tests carried out and thought that they demonstrated a loss of respiratory function of about 20 per cent which he thought was due to asbestos related pleural disease. He did not think at that stage that there was present any diagnostic marker for asbestosis, nor did he think the plaintiff would get any worse, that is that his respiratory function would be likely to decline. Further scanning was undertaken which disclosed, the doctor thought, the early signs of asbestosis. In this regard Professor Breslin comes to the same conclusion. That caused Dr Burns to say the following:

Many persons with asbestosis do exhibit some decline in respiratory function over the years and I believe that is now likely to be the case with Mr Russell.

17. He did not think that life expectancy would be shortened. In a report of 1 August 2003 on physical examination Dr Burns could find no abnormality. Progress respiratory function tests were undertaken and there was no significant difference, he thought, between those tests and the earlier ones.

18. On 18 November 2003 the doctor wrote that he agreed with the assessment of Mrs Tchan that Mr Russell is currently experiencing only slight difficulty in attending to his outdoor and domestic requirements. The doctor then wrote these words:

However, that breathlessness is increasing.

It seems to me that that is contrary to the evidence that I have heard today and I do not accept that part of his opinion.

19. The next two sentences become important in the case. They are these:

Mrs Tchan says that his condition may continue to slowly deteriorate. That is more likely to be related to the passage of time, ie his increasing age superimposed on a degree of restriction due to his asbestos related pleural disease.
One issue to be addressed is, is it more probable than not that his condition will get worse? To the extent that Dr Burns changed his mind and thought it might, that conclusion is hardly a ringing endorsement of the proposition.

20. Dr Kaufman did not think that the tests that he had done showed any loss of function at all, that is respiratory function.

21. Professor Breslin, whose reports are 1DX1, ultimately came to the view that I have already indicated, namely, that there were diagnostic signs for the diagnosis of asbestos related pleural disease and the very early signs of asbestosis, but he did not think that the plaintiff had any incapacity resulting from asbestos induced disease. He thought that there may be progression of asbestosis over the rest of his life to a maximum incapacity of 20 per cent.

22. The last of the experts whose evidence is available to the Court, and I mean last in time only, is the report of Dr Frank Maccioni dated 14 May 2003, 2DX1. At p 2 of his report in the last substantial paragraph on the page he seems to accept the presence of breathlessness on exertion. He undertakes a discussion of all the possible explanations for breathlessness in this plaintiff. He had lung function testing done and he said that based on the results of that he estimated between 10 and 15 per cent whole person impairment attributed to respiratory factors.

23. There is not much point in judges saying these are difficult things to work out, of course they are, but this case is difficult to work out. I accept that the plaintiff has some respiratory difficulty resulting from his exposure to asbestos in the course of his employment as alleged. I say so because he complains of it, he is supported by Dr Burns and by Dr Maccioni. I think the extent of the breathlessness is mild. Further I find that there has been no worsening since 2001 because the plaintiff said it repeatedly in court today.

24. I accept that there are present the early signs of asbestosis, those signs of themselves appear to be contributing nothing to the symptoms from which the plaintiff suffers. See in this regard, for example, Dr Breslin's reports.

25. I do not accept that there have been substantial symptoms since 1996. I think it more probable than not that the plaintiff was experiencing mild symptoms at about the time he went after the television show to see his GP, but the absence of any history about earlier years in any report that is available to the Court suggests that if there were such symptoms they were not significant. I accept that it is possible that his condition may worsen but I do not accept that on the evidence that is available in the court that it is more probable than not that his condition will worsen. I say so for the following reasons: Firstly, for reasons I have already given I find that there has been no change or worsening in his condition between 2001 and now. Secondly, I have already spoken of the extent of any support available from the opinion of Dr Burns on this issue. To the extent that the opinion may be said to be supportive of the proposition, I do not find it persuasive.

26. I bear in mind the other opinions which are available. Dr Kaufman who thought there was very little wrong at all. Dr Breslin acknowledged the possibility of worsening. Dr Maccioni deals with the matter in the last paragraph of his report this way: possible progression of any asbestos related pleural disease is best assessed in longitudinal fashion. The only chest radiology that he was able to review was dated 28 November 2001. He wrote that a repeat CT scan more recently could be taken and compared with the early film to determine whether there had been any significant increase in the amount of pleural plaques. If there had been little change then the likelihood of any significant further progression of asbestos related pleural disease would be low.

27. There is a comparative analysis of the available x-ray material undertaken in the first substantial paragraph of Dr Breslin's letter of 21 July 2003. It does not suggest significant progression of the disease. On balance therefore I accept that it is possible there may be worsening but I do not accept that it is probable that it will happen to this plaintiff.

28. I turn to the question of the assessment of damages. Clearly enough the symptoms that he has are mild. On the other hand to get a sufficient breath each time you try to breathe is a basic to human existence. The assessment of general damages in this case is, as I said, not easy. The plaintiff's life expectancy is of the order of 22 years or a little more.

Having regard to the evidence I assess general damages at $25,000.

29. Out of pocket expenses have been agreed at $395.65.

30. There is an entitlement to interest on that proportion of general damages referrable to the past. The interest should be calculated on $10,000.

31. As regards the claim for damages for care, I do not accept the proposition fundamental to this aspect of the claim, that in the period up to today that the plaintiff has needed any care. His own description of his disability does not suggest any such need. His answer to Mr Morahan at the end of that cross-examination was to the effect that he can do what he wishes to even if he has to slow down sometimes. Moreover, I find it a strange proposition that it should be thought that a man as active as the present plaintiff generally can be thought to need assistance in his daily living activities, I just do not accept that that is so. As regards the future having regard to the fact to that I do not accept on the evidence presently available that there will be any substantial worsening, I am not satisfied that it is more probable than not that the plaintiff will need nursing care in the future.

32. I do accept, however, that it is proper that he should have medical review. I say so because Dr Burns thinks it is necessary and Dr Breslin also. Dr Burns turned his mind fairly closely to the needs. I accept the first five needs described in his table on the second page of his report of 18 November 2003, that is I accept that it will be necessary for the plaintiff to see his GP as suggested, attend on specialists for check ups every two years, have chest x-rays every two years, have CT scans every two years and have respiratory function tests yearly. The cost allowed over 22 years for those items amounts to $15,315. If one undertakes the necessary mathematics to make allowance for the fact that the full cost of the items is being handed over in cash in the verdict and allowing a discount for vicissitudes of 15 per cent the figure thrown up I think is $9,604.

33. In case it is necessary for someone inspecting these reasons later I undertake the mathematics as follows. The costs disclosed by Dr Burns' report $15,315. It is clear that he has done the calculation not over 20 years but over 22 years. If one divides that sum by 22 a remainder is obtained of $696.137. If one divides that by 52 to obtain the weekly value a figure of $13.39 is obtained. The multiplier for 22 years is 844.0. Applying the multiplier that will leave $11,298.83. Discounted by 15 per cent for vicissitudes, a figure of $9,604 is thrown up.

34. I do not accept, given the state of the evidence, that it is more probable than not that the plaintiff will need the ambulance to attend on him.

35. In all a proper allowance for future medical supervision seems to be one of $9,500.

36. There is no claim for economic loss.

37. The plaintiff's verdict should be for $35,495.65 calculated as follows:

General Damages $25,000

Interest thereon $ 600.00

Agreed out of Pocket Expenses $ 395.65

Costs of medical services $ 9500.00

38. I enter verdict and judgment for the plaintiff in the sum of $35,495.65.

39. Defendants to pay plaintiff's costs.

40. Order that the Plaintiff may claim further damages pursuant to s 11A Dust Diseases Tribunal Act 1989 should he develop any of the following conditions:
1. Asbestosis
2. Asbestos related lung cancer
3. Pleural mesothelioma
4. Peritoneal mesothelioma
5. Asbestos induced carcinoma of any organ.

Mr A Leslie, QC instructed by Turner Freeman appeared for the plaintiff

Mr B Hughes instructed by A O Ellison and Co appeared for the first defendant

Mr T J Morahan instructed by Australian Government Solicitor appeared for the second defendant