Slatter v Wellparks Holdings Pty Ltd
[2007] WADC 185
•30 OCTOBER 2007
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : COMMISSIONER LEY | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : MELODIE JOY SLATTER |
Plaintiff
AND
WELLPARKS HOLDINGS PTY LTD
First Defendant
OCEANEERING AUSTRALIA PTY LTD
Second Defendant
Catchwords:
Negligence - Death of participant in helicopter underwater escape training course - Death caused by coronary artery thrombotic occlusion - Duty of care owed by provider of training course - Whether duty breached - Whether duty of care owed by company which retained deceased as consultant and arranged for him to undergo course - Whether duty breached - Causation - Whether any contributory negligence on part of deceased
Fatal Accidents Act 1959 - Assessment of damages for loss of dependency
[2007] WADC 185
Legislation:
Fatal Accidents Act 1959
Result:
Plaintiff's claim against first defendant allowed and damages assessed.
Plaintiff's claim against second defendant dismissed.
Representation:
Counsel:
| Plaintiff | : | Mr C L Zelestis QC & Mr D J Bayly |
| First Defendant | : | Mr J R Criddle |
| Second Defendant | : | Mr J G Staude |
Solicitors:
| Plaintiff | : | Bradley & Bayly |
| First Defendant | : | Pynt & Partners |
| Second Defendant | : | Allens Arthur Robinson |
Case(s) referred to in judgment(s):
Bus v Sydney County Council (1989) 167 CLR 78
Horton v Byrne (1956) 30 ALJ 583
Husher v Husher (1999) 197 CLR 138
Jongen v CSR Ltd [1992] Aust Torts Rep 81-192
March v E & MH Stramare Pty Ltd (1991) 171 CLR 507
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Public Trustee v Zoanetti (1945) 70 CLR 266
Ruby v Marsh (1975) 132 CLR 642
Spargo v Haden Engineering (1993) 60 SASR 39
Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234
Walden v Black [2006] NSWCA 170
Wyong Shire Council v Shirt (1980) 146 CLR 40
[2007] WADC 185
COMMISSIONER LEY
COMMISSIONER LEY: This is a claim by the plaintiff, Melodie Joy Slatter, for damages pursuant to the Fatal Accidents Act 1959 (WA) ("the Act") for loss of dependency as a result of the tragic death of her late husband, John Derwent Slatter ("the deceased"), on 8 August 2001.
The plaintiff brings the action under s 9(1) of the Act because there has been no grant of probate of the deceased's Will dated 15 April 1996.
3 In par 9 of the statement of claim, it is alleged that the plaintiff
brings the action for her own benefit and for the benefit of the two children of her marriage to the deceased, Timothy Lindsay Slatter ("Timothy") and Caitlin Joy Slatter ("Caitlin"). Timothy and Caitlin, who are twins, were born on 15 December 1983 and, therefore, were 22 years of age at the date of the trial. Notwithstanding the allegation in par 9 of the statement of claim, I was told, during the plaintiff's opening, that Timothy had not been dependent upon the deceased at the time of his death and that no claim for damages for loss of dependency was made for his benefit. I was told that Caitlin was dependent on the deceased at the time of his death but became financially independent in about December 2005 and, accordingly, the claim made for her benefit was limited to the period from the date of the deceased's death to 1 December 2005.
The deceased
4 The deceased was born on 8 November 1939 and, therefore, at the
time of his death, was 61 years of age. He had married the plaintiff on 14 February 1983. He was a metallurgist who worked as a corrosion engineer and provided his services on a consultancy basis to numerous industries to inspect and advise as to the effects of and measures to prevent corrosion, particularly in pipes. A good deal of the consulting which he did was to oil and gas companies both in Australia and in other parts of the world.
The defendants
5 The first defendant, Wellparks Holdings Pty Ltd, which trades as
ERG Training, is an Australian company which provides to industry and the public for reward helicopter underwater and sea survival training including a Helicopter Underwater Escape Training course ("HUET"), which is required by civil aviation regulations to be completed every two years by any person in Australia who intends to fly by helicopter over water.
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6 The second defendant, Oceaneering Australia Pty Ltd, is also an
Australian company which owns oil and gas platforms and drilling rigs which it leases to oil and gas exploration companies to drill for oil and gas in the oceans off the coast of Australia. The second defendant also provides a range of support services to the companies which lease its rigs. Relevantly, in August 2001, the second defendant was the owner of the "Ocean Legend" oil rig ("the rig"), which the second defendant leased to Woodside Petroleum Ltd ("Woodside") and which was then situated in the Indian Ocean about 70 kilometres offshore from Karratha on Western Australia's North West Shelf.
| HUET | |
| 7 | HUET, as conducted by the first defendant on 8 August 2001, was a |
| combination of classroom instruction and discussion and practical training in an environment which simulated to some extent conditions which would exist if the participants were passengers in a helicopter which had crashed in the ocean. The first defendant conducted its HUET at Challenge Stadium, Mount Claremont. The course usually lasted eight hours. The first part involved participants receiving instructions from senior instructors employed by the first defendant about the theory of underwater escape from a helicopter. At the end of that instruction, the participants were asked to answer a short written quiz to ensure that they had understood what they had been taught. | |
| 8 | After the theoretical part of the course was completed, the first |
| defendant gave the participants a light lunch. Then they changed into overalls, inflatable life jackets, boots and helmets to undertake the practical part, which was conducted in the diving pool at Challenge Stadium. |
In undertaking the practical part of the course, the participants were
required to:
(1)
escape from a simulated helicopter module which was turned upside down and immersed in about 2 metres of water;
(2)
swim or paddle for a distance, tow and be towed by other participants while swimming or paddling and huddle together with other participants in the water to practise maintaining body warmth;
(3) right an upturned rubber life raft and climb aboard from
the water;
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(4)
climb a mesh cargo net, jump into the water from the net and experience being lifted from the water in a metal sling.
The facts
10 In or about mid July 2001, Noel Bonnick ("Bonnick"), who then
provided engineering and maintenance support to the second defendant in a part-time capacity, telephoned the deceased and asked him if he could undertake a consultancy to the second defendant for a period of approximately eight days, to examine a seawater cooling system on the rig, which was leaking, and to provide a report of his findings.
11 The deceased told Bonnick that he would be happy to undertake the
consultancy but that he was about to leave for Indonesia, where he would be doing consultancy work for a number of weeks. Bonnick told the deceased that his work for the second defendant could be done upon his return from Indonesia, and they agreed that the deceased would do the consulting work for the second defendant in early August 2001. Bonnick told the deceased that there were at that time two helicopter flights operating from the mainland to the rig on Tuesday and Friday each week and that, therefore, the deceased could fly to the rig on Tuesday and come back on Friday, or fly to the rig on Friday and return the following Tuesday. To enable Bonnick to prepare a formal consultancy contract between the deceased and the second defendant, the deceased gave Bonnick the name of his consulting business. Bonnick and the deceased agreed that the second defendant would pay the deceased a daily rate based on a 12 hour day plus a premium for going offshore. The deceased told Bonnick that his consultancy business would render an invoice to the second defendant for the work that he did.
12 After his telephone discussion with the deceased, Bonnick drew up a
written scope of work, in anticipation of finalising a formal consultancy contract with the deceased when he returned to Australia. He also instructed Ms Sharon Buonvecchi, an administrative assistant employed by the second defendant, to make arrangements for the deceased to fly to the rig.
13 All travel to the rig was co-ordinated by Woodside. It was a
requirement of Woodside, as it was a requirement of all other oil and gas exploration companies which operated drilling rigs off the coast of Australia, that no person could fly by helicopter to an offshore rig which it operated unless that person was the holder of a certificate verifying that he had passed an approved HUET course within the previous two years. Whenever a person completes a HUET course conducted by an approved
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provider of HUET, such as the first defendant, the provider issues to the person a certificate that the person has successfully completed the HUET course on a specified date. That certificate is accepted as current for two years. When Ms Buonvecchi attempted to book the deceased's flight to the rig by helicopter, she used the second defendant's computer system, which was integrated with the computer system of Woodside. The deceased had previously consulted to Woodside and, accordingly, his personal details were recorded on the system. Included amongst those details was a record that the deceased had last undergone a HUET course in about June 1998 and, therefore, his HUET certificate was no longer current. Therefore, he would not be permitted to fly to the rig by helicopter unless he renewed his HUET certificate by undergoing another course.
14 When Ms Buonvecchi discovered that the deceased did not have a
current HUET certificate, she informed Bonnick. Bonnick attempted to telephone the deceased to inform him. However, by that time, the deceased was in Indonesia. Accordingly, Bonnick spoke to the plaintiff. He asked her to have the deceased telephone him, which the deceased did shortly thereafter. During that discussion, Bonnick told the deceased that he had found that his HUET certificate was not up to date and that he would need to do a refresher course and obtain a certificate before he could fly to the rig. Bonnick told the deceased that the second defendant would book him in to a HUET course for him to undertake shortly after he returned to Perth, but that the deceased would have to pay for the HUET course himself. The deceased apparently agreed to that. Also during that telephone conversation, the deceased told Bonnick that he would be arriving back in Perth a little later than he had previously anticipated and, accordingly, Bonnick and the deceased agreed new dates for him to fly to and from the rig. It was agreed that the deceased would fly to the rig on 10 August 2001.
15 Bonnick then provided that information to Ms Buonvecchi and asked
her to book the deceased in to undertake a HUET course between the time the deceased returned to Perth and 10 August 2001. Ms Buonvecchi then contacted the first defendant and made a booking for the deceased to undergo the HUET course to be conducted by the first defendant at Challenge Stadium on Wednesday, 8 August 2001. I did not hear any evidence about the circumstances in which the second defendant chose the first defendant to provide HUET for the deceased. Neither Bonnick nor Ms Buonvecchi gave oral evidence. The plaintiff had admitted into evidence an affidavit sworn by Bonnick on 9 May 2005 (Exhibit 23), but that did not deal in any way with the contact between the defendants
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pursuant to which the HUET for the deceased was arranged. Whatever the arrangement, the first defendant duly sent to Ms Buonvecchi a printed form, dated 6 August 2001, confirming that the deceased had been booked into the HUET course to be conducted at Challenge Stadium on 8 August 2001 and also confirming the price of $450, which was payable in advance (attachment 13 to Exhibit 13) (the "confirmation of booking form"). The confirmation of booking form also provided:
"Thankyou (sic) for booking with ERG Training (the first defendant). Please confirm your booking by returning this signed form or a written order by 5.00 pm two work days prior to the course. Confirmations received after this time will be considered late bookings and will be charged at the higher rate noted below. Should you not confirm prior to attending the course then no certification will be issued until payment of the late booking rate has been received in full.
…
Price: $450.00 per person ($500.00 for late bookings);
…Medical: We request that each attendee presents a current medical certificate (circa three months) confirming their fitness to undergo this training. A suitable certificate template follows.
…
Conditions
(1) Payment for self-sponsored participants must be received by 5.00 pm two work days prior to the course to avoid late booking rates. … (4) ERG Training strongly recommends that each attendee undergo medical fitness assessment prior to attending training. All attendees will be required to complete Medical Declaration and Assumption of Risk forms at the commencement of training. Please confirm your acceptance of the details and conditions on this form by signing, dating and fax back to 08 9414 1845;
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… ."
16 The medical certificate template which was attached to the
confirmation of booking form (and which was called a medical specification form) required a doctor who had examined the intending participant to provide details of the intending participant's blood pressure, pulse and weight, and to say whether he or she had suffered a hernia or a whiplash. It also required the doctor to answer "normal" or "unsound" in relation to "heart", "back", "skin condition", "ears", and "sinuses" and to enter any other relevant details in a box marked "other". It then required the doctor to say whether, in view of his or her understanding of the stresses associated with the HUET course, he or she considered that the intending participant was fit to undertake the course.
17 I did not hear any evidence as to whether the second defendant
provided the confirmation of booking form to the deceased, whether he signed it and faxed it back to the first defendant or whether he paid either the fee of $450 or the late fee of $500. Whatever happened in that regard must have been satisfactory to the first defendant, because it accepted the deceased as a participant in the HUET course on the morning of 8 August 2001.
18 The deceased arrived back in Perth from Indonesia on 1 August
2001. At some time after his arrival, he became aware that he had been
booked into the HUET course at Challenge Stadium on 8 August 2001.19 The deceased did not consult a doctor to obtain an assessment of his
fitness to undergo the HUET course prior to reporting to Challenge Stadium on the morning of 8 August 2001. The deceased's usual general medical practitioner was Dr A D Sharp ("Dr Sharp") of the Cottesloe Medical Centre, Stirling Highway, Cottesloe. The deceased and his family had been consulting Dr Sharp and other doctors at the Cottesloe Medical Centre since 1987. The plaintiff gave evidence that, after the deceased returned from Indonesia on 1 August 2001, he told her that he was obliged to undertake the HUET course and asked her for Dr Sharp's telephone number, in order to have a medical assessment before undertaking the course (T39). The plaintiff said that she wrote Dr Sharp's telephone number on a yellow "post-it" note and gave it to the deceased. She found it still in his wallet after his death (T29). There was no evidence that the deceased had consulted Dr Sharp or any other doctor immediately prior to undertaking the first defendant's HUET course on 8 August 2001.
[2007] WADC 185
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20 The deceased duly attended the HUET course on the morning of
8 August 2001. The first defendant's confirmation of booking form required those attending the HUET course to present themselves at Challenge Stadium by 7.40 am for course registration. Therefore, it seems likely that the deceased presented himself for the course at about that time.
21 As the deceased had not consulted a doctor prior to attending the
HUET course, he did not provide the senior instructor conducting the course, Philip Michael Sumner Aked ("Aked"), with a completed medical specification form. Accordingly, Aked gave the deceased a printed form which was headed, on one side, "Voluntary Assumption of Risk" and, on the other, "Personal Medical Declaration" (both forms comprised attachment 14 to Exhibit 13). Aked required the deceased to print his name on the Voluntary Assumption of Risk form, and sign and date the form. The Voluntary Assumption of Risk form provided inter alia:
"I am aware that the training activities and practical exercises conducted by ERG Training are potentially hazardous. I assume each and every risk relating to, associated with, or arising from, my participation in such activities or practical exercises.
I understand that the practical elements of HUET training involve escape from a fully submerged and inverted helicopter simulator, life raft/jacket drills and swimming/towing techniques. I am aware that limited water ingestion may occur in water based training activities and some mild physical exertion is required to complete the training."
In the Personal Medical Declaration form, the deceased was required to provide his date of birth and indicate whether he:
(a)
was at that time undergoing any treatment for injury or illness;
(b) was at that time on medication; (c) suffered from heart disease; (d) suffered from asthma; (e) suffered from respiratory ailments; (f) suffered from haemophilia; (g) suffered from epilepsy;
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(h) suffered from joint or ligament damage; (i) suffered from allergies.
23 The deceased answered "no" to all of those questions. After he had
completed the Voluntary Assumption of Risk and the Personal Medical
Declaration, the deceased gave the forms back to Aked.24 The HUET course commenced at 8 am. The first part of the course
was entirely theoretical and was conducted in a classroom. Aked and the other instructors employed by the first defendant instructed the participants in the theory behind the practical techniques they would be required to undertake in the water in the afternoon. The participants then completed a written, multiple choice quiz to test how much they had retained of what they had been taught. That part of the course concluded at about 12 noon and then there was a short lunch, for about 15 minutes.
25 The participants were then dressed in overalls, inflatable life jackets,
dive boots and helmets and were taken to the Challenge Stadium diving pool. Over the pool was a module which was meant to simulate the cabin of a helicopter. There were also in attendance several SCUBA divers employed by the first defendant, who would be underwater in the pool while the helicopter immersion activities were being conducted, to provide assistance to any participant who experienced difficulties in escaping from the module while it was inverted underwater. In the first instance, one of those divers climbed into the module and Aked or another instructor explained to the participants what would happen. The diver sat in a seat in the module and fastened his seatbelt. The module was then inverted in the water and the diver unfastened his seatbelt, opened a window of the module and escaped to the surface.
26 The module was then returned to the upright position, above the
surface of the water, under instructions from Aked, four of the participants got into it, sat down and fastened their seatbelts. On the first occasion, the removable doors and windows of the module were not fitted to make it easier for the participants to escape when the module was underwater. The module was then inverted and the four participants were required to escape as they had been taught.
27 After the first immersion, the doors and windows were fitted to the
module and the participants were required to escape from the module by unfastening their seatbelts and then opening a door or window to escape to the surface. In total, each participant underwent the immersion exercise on six occasions. In the course which the deceased undertook, there were
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10 participants and the immersion exercise occupied approximately 45 minutes. In his evidence, Aked said that the deceased had some difficulty escaping from the module during the first immersion but had no difficulties after that.
28 After the immersion exercise, all the applicants entered the pool
together and were required to inflate their life jackets. They were then taught techniques of dealing with injured people in a real life situation, towing people to a life raft and swimming techniques generally. That part of the course took approximately 20 minutes.
29 After the swimming stage of the course was completed, the
participants got out of the pool. Aked and the other instructors then demonstrated to the participants how to inflate a life raft and how to lift it up. They then showed the participants all of the various components of the raft and told them what they did. They then threw the inflated life raft into the water upside down and called for a volunteer amongst the participants to get into the water and pull the raft onto its correct side. Once that was done, the other participants were told to jump into the water, swim to the life raft and board it as instructed. As participants boarded the life raft, they were instructed to assist other participants in boarding. Aked then jumped into the pool, boarded the life raft and gave the participants more instructions as to the use of the equipment on the raft. That activity took some 20 minutes but a large part of that time was spent simply sitting in the life raft listening to instructions.
30 When that activity was concluded, the participants were instructed to
jump out of the life raft, swim away from it and swim to the end of the pool where the diving boards were situated. The instructors had by then fitted a mesh cargo net to the diving boards. Each of the participants was instructed to swim over to the net, climb up a few feet and then fall back into the water. Instructors standing on top of the diving board then operated a winch, which dropped a steel sling to the participant who was required to place the sling around him or her, in preparation for being lifted by the winch. Once a participant had done that, the instructors would winch the participant up to a point where he or she was clear of the water and would then swing him or her out to the side of the pool.
31 The deceased completed the immersion exercise and the life raft
exercise without any apparent difficulty. He then left the life raft with the other participants and swam to the diving board end of the pool to await his turn to swim to the net and climb up. Eight of the participants successfully completed the net climb. The last two participants to attempt
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the net climb were Andrew John Blackshaw ("Blackshaw") and the deceased. Blackshaw completed the climb and the winch lift and then fell back into the water. He turned around to call the deceased over to start his climb. The deceased was by that time floating on his back with his life jacket inflated. When Blackshaw called him, he did not respond. One of the first defendant's divers then got into the pool, swam to the deceased and asked him whether he was all right. When he received no response either, he took the deceased to the edge of the pool and he and other divers lifted him out. The divers, pool attendants and a doctor, who happened to be swimming nearby, attempted to resuscitate the deceased but without success. An ambulance was called and the deceased was taken to hospital but could not be revived. He was pronounced dead. The deceased's death was investigated by the State Coroner. On 18 September 2001, the State Coroner found that the deceased had died due to natural causes.
Post-mortem
32 On 10 August 2001, Dr Karin Ann Margolius, a forensic pathologist,
conducted a post-mortem examination of the deceased's body at the
request of the State Coroner.
| 33 | Upon | examining | the | deceased's | cardio-vascular | system, |
Dr Margolius found that:
(a)
the right coronary ostium (passage) was occluded (blocked) by a thrombus (clot) with the thrombus extending into the right coronary artery;
(b)
the left coronary artery was almost 90 per cent occluded due to atheroma (cholesterol);
(c)
the right coronary artery was 90 per cent stenosed (narrowed) in the first centimetre and thereafter between 70 per cent to 50 per cent stenosed;
(d)
the left anterior descending coronary artery was initially 90 per cent stenosed then 70 per cent stenosed and thereafter 50 per cent stenosed;
(e)
the left circumflex artery was of the order of 50 per cent stenosed;
(f) all vessels showed prominent calcification; (g)
the aorta showed advanced complicated atheroma with aneurysinal dilatation in the descending aorta;
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(h) the heart weighed 480 grams and was enlarged due to left ventricular concentric hypertrophy; (i) the myocardium showed scarring in the posterior basal region of the left ventricle;
(j) the chambers of the heart were contracted.
34 In her oral evidence, Dr Margolius explained that the deceased's
heart was larger than it should have been for a man of his weight. She said that the deceased's heart had become enlarged due to a concentric enlargement of the left ventricle, which is a major pumping part of the heart. She said that concentric enlargement of the left ventricle was associated with hypertension or high blood pressure.
35 Dr Margolius said the scarring of the myocardium indicated that,
some time prior to his death, the deceased had suffered a myocardial
infarct, or heart attack, of which he had apparently been unaware.36 Dr Margolius said that there was significant atheroma or cholesterol
in the walls of the deceased's arteries. It was that cholesterol which had led to the stenosing or narrowing of the arteries. The stenosing had caused the blood to clot and form a thrombus, which had then blocked the right coronary ostium and the right coronary artery. She said that, in her opinion, it was that thrombus or blockage which had caused the deceased to suffer a heart attack and die. In her oral evidence, Dr Margolius said that the atheroma and stenosis of the arteries in the aorta were all associated with hypertension.
37 Upon examining the deceased's genitourinary system, Dr Margolius
found that there was fine surface cortical granularity in the kidneys with a mild decrease in the cortical medullary ratio. She said that she had also examined small sections of the kidney microscopically and had found evidence of congestion. In her oral evidence she said that such changes were associated with high blood pressure and hypertension.
In her report to the State Coroner dated 10 August 2001, Dr Margolius expressed the opinion that the deceased's death was caused by a coronary artery thrombotic occlusion.
Deceased's medical history
39 The plaintiff gave evidence that, at the time of his death, the
deceased was an active, apparently fit man of almost 62 years of age, who was heavily involved in his work as a corrosion engineer, which had required him to travel frequently to remote locations. She said that he had
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spent nine weeks working on a site in Indonesia shortly prior to his death. The post-mortem report indicated that, at the time of his death, the defendant was 170 centimetres in height and weighed 71 kilograms. The plaintiff said that he had not been an overweight person and that, when he had returned from Indonesia, he had been "trimmer" than he had been previously. The evidence suggested that the deceased had consulted doctors fairly infrequently during his life. The earliest medical consultation of which evidence was adduced was an attendance in 1987, when the deceased had consulted Dr Christopher Newall at the Cottesloe Medical Centre. That was for treatment of an injury to his left wrist, which he had suffered in a fall. The record of that consultation does not indicate that the deceased's blood pressure was taken at that time.
The deceased did not consult a doctor again until 12 January 1990, when he again consulted Dr Newall, for the treatment of a minor skin complaint. However, Dr Newall's note of that consultation also indicates that the deceased complained of casual indigestion. Dr Newall checked his blood pressure and found that it was 160/100, which Dr Newall would almost certainly have considered high (Dr Newall was not called to give evidence). He referred the deceased for blood tests to check his triglyceride level, his cholesterol and his high density lipids ("HDL"). Those tests revealed that the deceased's triglyceride level was 1.6, his cholesterol was 6.6 and his HDL was 1.3. Dr Newall noted that the deceased's cholesterol level had increased from an earlier occasion (although no record of his cholesterol level having been previously measured was admitted into evidence) and calculated that his coronary risk ratio was 5.1, which was also apparently an increase on an earlier calculation. Dr Newall advised the deceased to change his diet and to increase his level of exercise in an endeavour to reduce his cholesterol level and his coronary risk ratio. He suggested to the deceased that his cholesterol level be checked again in 6-12 months.
41 In fact, the deceased did not consult Dr Newall again until
23 December 1991, almost two years later. Dr Newall's notes of that consultation suggest that, even on that occasion, the deceased did not attend for a check of his cholesterol or blood pressure but rather for treatment of further skin lesions. Nevertheless, Dr Newall took his blood pressure and found that it was 180/100. He also referred him for blood tests to ascertain his HDL, his low density lipids ("LDL"), his total cholesterol and his triglyceride level. Those tests revealed that his total cholesterol was still high at 6.7 and that his LDL was 4.7 but that his coronary risk ratio had reduced to 4.6. Nevertheless, Dr Newall advised him to further restrict his diet.
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The deceased returned to see Dr Newall on 20 January 1992. On that occasion Dr Newall found that the deceased's blood pressure was 160/100. He conducted a urine analysis, which was normal, and performed an electrocardiogram, which revealed an abnormal left axis deviation but no left ventricular hypertrophy. The electrocardiogram was, however, "borderline". Dr Newall referred the deceased for a chest x-ray and placed him on Renitec, a blood pressure reducing medication, at a dose of 2.5 milligrams per day, increasing to 5 milligrams per day.
43 The chest x-ray was performed on 21 January 1992. That revealed
that heart size and shape were normal but that there was moderate unfolding of the thoracic aorta. The deceased saw Dr Newall again the same day. By then, his blood pressure had reduced to 150/95 and he was on 10 milligrams of Renitec per day. Dr Newall wrote him another prescription for the medication and noted that he would review him in six weeks.
44 The next note is of a consultation on 27 March 1992, again with
Dr Newall. It seems clear from the note that the deceased had been taking his medication regularly by that time and that, as a result, his blood pressure had reduced to 130/80, which was within normal limits. Nevertheless, Dr Newall recommended that the deceased improve his exercise routine and suggested also that his blood pressure be reviewed. He noted that the treatment (presumably the blood pressure medication) would continue for six months.
45 The deceased next saw Dr Newall on 16 March 1993. The
deceased's main problem at that time was rectal bleeding, which he had experienced on three occasions over the previous six months. He told Dr Newall that his mother had suffered from bowel cancer and, on examination, Dr Newall found that the edge of the deceased's liver was palpable on deep inspiration, meaning that it was enlarged. However, he felt no masses and his examination of the rectum revealed no abnormality. He diagnosed that the deceased was suffering from haemorrhoids but prescribed no treatment. He advised the deceased to undergo a colonoscopy if his rectal bleeding continued.
46 Also on that occasion, Dr Newall weighed the deceased and took his
blood pressure. His weight was 76.5 kilograms, which was a little heavier than the deceased had been at the previous consultation on 27 March 1992, and his blood pressure was 160/105, which was considerably higher than it had been on the two previous consultations.
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However, no note was made as to whether or not the deceased was continuing to take Renitec.
The deceased next saw Dr Newall on 21 September 1993. Dr Newall weighed the plaintiff and took his blood pressure. He found that his weight was 78 kilograms and that his blood pressure was 140/90. He gave him a further prescription for Renitec, to be taken in a dose of 10 milligrams per day. The deceased was still complaining of intermittent rectal bleeding and, as a result, Dr Newall referred him for a colonoscopy.
48 The deceased next saw Dr Newall on 7 April 1994. On that
occasion, his weight had reduced to 74 kilograms but his blood pressure was still 140/90, as it had been on 21 September 1993. Dr Newall referred him for blood tests, which revealed that his triglyceride level was 1.4, his HDL was 1.1, his LDL was 4.8, his total cholesterol was 6.6 and his coronary risk ratio was 5.9. Dr Newall wrote him another prescription for Renitec to be taken in doses totalling 20 milligrams per day and gave him five repeat prescriptions. He advised him to restrict his diet and increase his exercise and suggested a review in 12 months.
49 However, it seems that, shortly after that, the deceased developed
pain and inflammation in the second toe on his right foot. On 19 May 1994, he consulted Dr Sharp, who referred him for an x-ray and for a blood test to ascertain his uric acid level. It seems that the blood test revealed that the deceased's uric acid level was raised as, at a subsequent consultation on 21 May 1994, Dr Sharp diagnosed the deceased to be suffering from gout and prescribed Feldene, to be taken as required.
50 The deceased next consulted Dr Sharp on 12 September 1995, when
she diagnosed him to be suffering from conjunctivitis and prescribed some Chlorsic eye ointment. She renewed the prescription of Feldene for his gout and took his blood pressure, which she found to be 140/70. She made no note as to whether he was then still taking Renitec. However, in her evidence-in-chief, Dr Sharp said that she believed that the deceased was taking Renitec at that time (T93). Also at that consultation, Dr Sharp advised the deceased to have repeat blood and cholesterol tests carried out in early 1996.
51 The deceased next consulted Dr Sharp on 8 February 1996, when he
had a lesion on his right calf. She applied cryotherapy (liquid nitrogen) to remove the lesion. She did the same thing to a lesion on his left arm above his left scapula.
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52 The deceased did not attend at the Cottesloe Medical Centre again
until 9 June 1998. On that occasion, he was seen by a locum, Dr N G Watson. That consultation was for the sole purpose of having Dr Watson assess whether the deceased was fit to undergo a HUET course. Dr Watson took the deceased's blood pressure and found that it was 180/100. He then conducted a general external examination to ascertain any abnormalities in the deceased's cardiovascular system, respiratory system, locomotion, ear, nose and throat, nervous system, eyes and skin and to ascertain if the deceased was unusually anxious or stressed. That was to enable Dr Watson to complete a "Report of Medical Examination – Offshore" (Exhibit 30) and to allow him to form an opinion as to whether the deceased was fit to undertake the HUET course. If Dr Watson concluded that he was fit to undertake the course, he was required to express that opinion in a document entitled "Medical Examination Certificate for Basic Offshore Survival Course" (Exhibit 29), which Dr Watson was also required to sign. When he gave evidence, Dr Watson said that he had completed and signed Exhibits 29 and 30 at his consultation with the deceased on 9 June 1998. However, he could not recall how he came to have Exhibits 29 and 30 in the first place. He did not know whether the deceased had given them to him or whether they were available from the Cottesloe Medical Centre. Nor could Dr Watson recall what he did with Exhibits 29 and 30 after he had completed and signed them.
53 Dr Watson said that after he had taken the deceased's blood pressure,
he listened to his heart sounds and then checked his ears, his nose, throat and chest. He found that they were all normal. He then checked his abdomen, his reflexes and his coordination and found that they were all normal. He then checked his colour, which he also found to be normal.
54 When Dr Watson had taken the deceased's blood pressure and found
it to be 180/100, he considered that that was above acceptable limits. For that reason, Dr Watson took the deceased's blood pressure again at the end of the consultation. However, he found it to be 180/90, which was still elevated. For that reason, Dr Watson recommended to the deceased that his blood pressure needed to be rechecked in one to two weeks. However, for some reason, which was not satisfactorily explained, Dr Watson did not complete that part of Exhibit 30 which required details of the patient's blood pressure to be completed. He said in his evidence that he may have been holding the forms back until the deceased's blood pressure was rechecked, but that seems quite unlikely when the deceased had consulted Dr Watson for the purpose of obtaining a certificate that he was fit to undergo the HUET course and Dr Watson had completed such a
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certificate (Exhibit 29). There was no evidence that the deceased used Dr Watson's certificate to gain entry to a HUET course at some time shortly after 9 June 1998, but it seems likely that he did.
55 Notwithstanding Dr Watson's recommendation that the deceased
have his blood pressure rechecked in two weeks, the evidence indicated that he did not do that and did not consult a doctor again until 4 September 2000, over two years after he had seen Dr Watson. The deceased's consultation on 4 September 2000 was with Dr Sharp. She took the deceased's blood pressure and found it to be 160/90. The deceased's main complaint on that occasion was pain in the left loin, which Dr Sharp diagnosed to be of muscular origin. She prescribed Celebrex, an anti-inflammatory. That was the last time that the deceased was seen by a doctor prior to his death on 8 August 2001.
Pleadings
56 In the statement of claim, the plaintiff does not specifically allege
that the first defendant owed the deceased a duty of care in conducting the HUET on 8 August 2001. However, such an allegation is implicit in par 7A of the statement of claim, in which it is alleged that the first defendant, by its servants and agents, was negligent in that it:
(a)
permitted the deceased to participate in the HUET when it knew that he had not recently undergone appropriate medical examination and tests and did not have a medical certificate certifying him fit to participate in HUET;
(b)
failed to warn the deceased of the risks associated with participating in HUET without undergoing appropriate medical examination and tests;
(c)
failed to establish the deceased's state of fitness for HUET before causing or permitting him to participate in it;
(d)
failed to ensure that the deceased had undergone appropriate medical examination and tests and had produced a certificate of medical fitness prior to causing or permitting him to participate in HUET;
(e)
failed to establish, implement or follow a system whereby all proposed participants in HUET were compelled to undergo appropriate medical tests and obtain medical clearance before participating in HUET.
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57 In his opening, senior counsel for the plaintiff said that the plaintiff
relied principally on the allegations described in par (a), par (c), par (d) and par (e) above. In other words, the plaintiff alleged that the first defendant breached its duty of care to the deceased by permitting him to participate in HUET without requiring him to first produce a certificate from a doctor who had examined him certifying that he was fit to participate. The plaintiff relied on the allegation in par (b), the alleged failure to warn, as an alternative to the allegations in par (a), par (c), par (d) and par (e). That allegation assumes that no prior medical assessment was required.
58 In par 7C of the statement of claim, the plaintiff makes allegations of
negligence against the second defendant in similar terms to those made against the first defendant. The only real differences in the allegations against the second defendant are that:
(a) it is alleged, as an alternative to the allegation that the second defendant knew that the deceased had no medical certificate, declaring him fit to participate in HUET, that the second defendant ought to have known that the deceased had no such certificate (particular (i)); (b) it is alleged, in addition to the allegation that the second defendant failed to ensure that the deceased underwent appropriate medical examination and tests and that he produced a medical certificate before participating in HUET, that the second defendant failed to ensure that the deceased was medically fit to work on a remote offshore oil rig (particular (ii)); (c) it is alleged, as an alternative to the allegation that the second defendant failed to establish the deceased's state of fitness before permitting him to participate in HUET, that the second defendant failed to inform the deceased of the first defendant's requirement for a medical certificate (particular (iv)); (d) it is alleged that the second defendant failed to ensure that the first defendant established, implemented and followed a system whereby all proposed participants in HUET were compelled to undergo appropriate medical tests and obtain medical clearance before participating in HUET (particular (v)).
In par 5 of the statement of claim, the plaintiff alleges inter alia that:
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(a) HUET required a participant to perform tasks which placed the participant's body, including the heart, under significant stress and the participant was at risk of injury or death unless physically fit; (b) it was the general practice of the first defendant to require a proposed participant in HUET to undergo medical examination within three months prior to participating and to produce to the first defendant, immediately prior to participating, a medical certificate declaring the participant fit for HUET; (c) the first defendant informed the second defendant of its general practice.
In par 6 of the statement of claim, the plaintiff alleges inter alia that:
(a) had the deceased been aware of the first defendant's requirement that proposed participants in HUET first produce a medical certificate, he would not have participated in HUET without first seeking to obtain such a certificate; (b) had the deceased's general practitioner been asked to certify that the deceased was fit to participate in HUET, she would have refused; (c) the deceased presented for HUET without producing a medical certificate to the first defendant; (d) as a result of participating in HUET, the deceased suffered a heart attack from which he died.
In par 7 of its defence, the first defendant, in responding to par 5 of the statement of claim:
(a)
says that its practice was to recommend and request a current medical certificate from proposed participants in HUET;
(b)
says that if a proposed participant failed to provide a current medical certificate, it required him or her to complete the Personal Medical Declaration and the Voluntary Assumption of Risk;
(c)
says that each proposed participant in HUET was made aware of the physical nature of the activities involved before being required to undertake them.
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62 In par 8 of its defence, the first defendant denies the allegation that,
if the deceased had known of the first defendant's requirement that a proposed participant in HUET obtain a medical certificate, he would have sought to obtain one. It also denies the allegation that if the deceased's general practitioner had been asked to certify the deceased fit to participate in HUET, she would have refused, and the allegation that, as a result of participating in HUET, the deceased suffered a heart attack and died.
63 In par 9 of its defence, the first defendant denies that it was negligent
and that the deceased's death was caused by its negligence. In par 10 of its defence, the first defendant says that the deceased was predisposed to the possibility of suffering a heart attack and that, regardless of his participation in HUET, he would have been subject to similar physical stresses as part of the normal activities of living and/or his occupation. In other words, the deceased could have suffered a fatal heart attack at any time and not just because of his participation in HUET conducted by the first defendant on 8 August 2001.
64 In par 11 of its defence, the first defendant says that it asked the
second defendant to arrange for the deceased to obtain a current medical certificate prior to 8 August 2001. Also in that paragraph, the first defendant pleads that the deceased completed the Personal Medical Declaration and the Voluntary Assumption of Risk and says that, therefore, he voluntarily assumed the risk of injury or death while participating in HUET.
65 In par 12 of its defence, the first defendant says that the deceased
knew or should have known that providers of services such as the first defendant typically requested a current medical certificate prior to participation, knew or should have known of the physical nature of the activities involved in HUET, knew or should have known whether there was any reason to doubt his medical fitness to participate in HUET and failed to express any concerns about his ability to participate in any aspect of HUET and/or about his state of health. The first defendant says on that basis also the deceased voluntarily assumed the risk of injury and/or death whilst participating in HUET. In par 14 of its defence, essentially on the same grounds, the first defendant says that the deceased was guilty of contributory negligence.
66 In par 13 of its defence, the first defendant says that it was not
reasonably foreseeable that the deceased might suffer a heart attack whilst
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participating in HUET and that there was nothing further which it could
have done in the circumstances.67 In par 4 and par 5 of its defence, the second defendant denies that
there was a concluded contract of employment between it and the deceased but admits that its servant, Bonnick, agreed to facilitate enrolment by the deceased in HUET conducted by the first defendant. The second defendant says that if, which is denied, there was a contract of employment between it and the deceased, it was a term of the contract that the second defendant would exercise reasonable care to provide the deceased with a safe system of work but that the deceased died prior to the commencement of his employment with the second defendant.
68 In par 10 of its defence, the second defendant says that the first
defendant was a reputable and well established provider of training services and required participants in HUET to complete the Personal Medical Declaration and the Voluntary Assumption of Risk. Like the first defendant, the second defendant also pleads that the deceased voluntarily assumed the risk and/or was guilty of contributory negligence. Also in par 10 of its defence, the second defendant pleads that it was not reasonably foreseeable that the deceased might suffer a heart attack whilst participating in HUET.
Medical Evidence
69 Apart from the evidence of the pathologist, Dr Margolius, and
Dr Watson, who gave evidence about certifying the deceased fit to undertake a HUET course in 1998, all the other medical evidence was directed towards the questions of whether a reasonably competent general medical practitioner who examined the deceased immediately prior to 8 August 2001, for the purpose of determining whether he was fit to undertake the HUET course on that day, would have certified him fit to do so, and whether the thrombotic occlusion which the deceased suffered on 8 August 2001, and which caused his death, was caused by his participation in the HUET course conducted by the first defendant.
Darian Ann Sharp
70 I have already made reference to the evidence of Dr Sharp.
According to her evidence, the deceased first consulted her on 19 May 1994, complaining of pain in the second toe on his right foot, which was inflamed. By that time, the deceased had consulted Dr Newall on a number of occasions over the previous four years and had been taking Renitec, as prescribed by Dr Newall. However, when Dr Sharp saw the
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deceased on 19 May 1994, she did not take his blood pressure and made no note as to whether he was then still taking Renitec. In her evidence, she said that she had not taken the deceased's blood pressure because she had seen from the notes that the deceased had been seen a month before (on 7 April 1994) by Dr Newall "who had done all the cholesterol and blood pressure readings". Therefore, there was no need for her to request them (T103). Dr Sharp said that she had not made a note as to whether the deceased was still taking Renitec because she had seen that, on 7 April 1994, Dr Newall had written a prescription for the medication, with five repeats. She said that that was six months supply.
71 As I have already indicated, Dr Sharp next saw the deceased on
12 September 1995, for conjunctivitis, but she also took his blood pressure and found that it was 140/70, which, she believed, was "quite acceptable" (T103).
72 After that, Dr Sharp saw the deceased on 8 February 1996, when she
treated his skin lesions, and on 4 September 2000, for a muscle strain. On that occasion, she again took his blood pressure and found it to be 160/90. She said that that was the last time she had seen the deceased.
73 Dr Sharp said that, at some time, she had discussed with the deceased
his high blood pressure and hypertension and had "encouraged him strongly to continue on his Renitec". However, it was not clear when she had that discussion or those discussions with him. No note of them was produced.
74 Dr Sharp said that she had experience in assessing patients who were
about to undertake HUET. She did not, however, ever examine the deceased for that purpose. Notwithstanding that, she said, in a letter to an insurance company dated 21 January 2002 (Exhibit 17), that if the deceased had attended her (presumably, in August 2001) and had requested a certificate stating that he was fit to participate in HUET, she would have refused. In her evidence-in-chief, she went even further and said that she would have "strongly counselled him not to undertake such an assessment" (ie not to undergo HUET) and, if he had insisted, she would have referred him to a cardiologist for assessment.
75 Under cross-examination, Dr Sharp said that, when she had seen the
deceased on 12 September 1995, she had advised him to have repeat blood and cholesterol tests carried out not then but early the next year. She said she had suggested that to avoid the Christmas period, during which over indulgence could result in false readings. However, when she
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next saw the deceased, on 8 February 1996, it does not appear that she followed up the blood and cholesterol testing in any way. Nor did she take his blood pressure. She said that, when she had seen the deceased on 4 September 2000, she had seen the blood pressure readings obtained by Dr Watson on 9 June 1998 (180/100 and 180/90), and said that it was because of those readings that she had taken his blood pressure on that occasion. However, she could not recall whether the deceased was on Renitec at that time or whether she prescribed Renitec for him. There was certainly nothing about it in her notes. Nor did the notes suggest that she had any discussion with the deceased about his cholesterol on 4 September 2000 (T109).
76 Also under cross-examination, Dr Sharp said that she had examined
about 20 patients for the purposes of certifying them for HUET. She said
that all of those patients had been young, fit men in their early 20's.
Dr Sharp conceded that, on none of the five occasions on which she had examined the deceased between 19 May 1994 and 4 September 2000, did she consider that he was suffering from heart disease of any kind. Nor on any of those occasions did she prescribe any medication for high blood pressure or refer him to a specialist cardiologist for investigation or review. Nevertheless, she maintained that, had she seen him in August 2001, she would not have permitted him to participate in HUET. Her view in that regard appeared to be based on reactions to HUET by some of her other patients. She said that she had seen young, fit men go "white as a sheet" when they told her about the stress involved in HUET.
78 Dr Sharp said that, notwithstanding the presence in the practice file
of Dr Watson's notes of his consultation with the deceased on 9 June 1998, she had not realised until a week prior to the trial that Dr Watson had certified the deceased fit for HUET at that consultation. In a report dated 21 January 2002 (Exhibit 17), she said that she believed that no-one over 50 years of age should attempt HUET without "a rigorous medical examination, including a stress test (an exercise electrocardiogram)". Under cross-examination, she said also that, if the deceased had consulted her (instead of Dr Watson) on 9 June 1998, she would have wanted an opinion from a cardiologist before certifying him fit to participate in HUET (T117). She also said that, if she had examined the deceased at that time and also in August 2001, she would have suggested to the deceased that he undergo an exercise or stress electrocardiogram (T118). She said that if the deceased had undergone such a test in August 2001, it was highly likely that it would have shown that both his right and left coronary arteries were 90 per cent occluded.
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79 In re-examination, Dr Sharp said that, in addition to the anecdotal
evidence she had heard about HUET, would not have certified the deceased fit to undergo HUET in August 2001 because of his age and his past history of raised blood pressure and hypertension.
Graham Neil Cumpston
80 Dr Cumpston is a Perth cardiologist who has been practising since
1968. The plaintiff called him to give evidence. He produced a report dated 24 August 2006 (Exhibit 25) written in response to a letter from the plaintiff's solicitors dated 21 August 2006 (Exhibit 24). The plaintiff's solicitors provided Dr Cumpston with a copy of the first defendant's pro-forma medical certificate and a description of the deceased's clinical history. In their letter, they asked Dr Cumpston inter alia:
" …
2. …with reference to the attached pro-forma medical certificate, the clinical history of the deceased, had the deceased attended upon a doctor for examination before the material date (8 August 2001), is it likely (ie more probable than not) he would have been certified unfit for HUET?
3. Had his cardiological medical condition been diagnosed upon attendance of a medical practitioner, what is the advice and treatment the deceased would have reasonably been expected to receive?
4. If the advice/treatment referred to in your answer to question 3 includes referral to a cardiologist, what tests would have been undertaken by a cardiologist?
5. Had such tests been undertaken, what would have been the findings on examination/testing, taking into account the pre-material date clinical history and the post-mortem finding?
6. If the deceased's cardiological medical condition had been diagnosed as a result of testing and clinical examination, what treatment would have been available to him?
…
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9. …
In your opinion is it the case that the stressors and physical exertion experienced by the deceased during his participation in the HUET course caused his myocardial infarction?"
| 81 | In his report, Dr Cumpston answered those questions as follows: " … |
Question 2
In my opinion if a man of Mr Slatter's age with risk factors of high cholesterol and treated high blood pressure attended for a medical examination prior to a HUET course with its inherent physical component, I would not have certified him fit for this course without a preliminary stress echocardiogram or the like.
Question 3
As I consider the result of a stress echocardiogram would have indicated the presence of myocardial ischemia on exertion, he would have been advised to pursue further very precise investigations such as coronary arteriography.
Question 4
I have indicated the tests that would have been pursued or undertaken by a Cardiologist.
Question 5
A coronary arteriogram would have demonstrated the severe coronary artery obstruction which were revealed at autopsy.
Question 6
As a result of these findings, coronary angioplasty with stenting or coronary artery bypass graft surgery would have been recommended.
…
Question 9
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I have carefully examined the details you provided of the components of the HUET course and note that Mr Slatter was about to commence the rope climb exercise when he became unresponsive. It can be presumed at that time the heart rhythm was ventricular fibrillation.
…
The fact that he had already participated in various physical manoeuvres with the onset of presumed ventricular fibrillation shortly after, it is extremely likely that the physical efforts & stress that had already taken place were the principal cause for his demise. The so-called law of 'dramatic propinquity'."
two other corrosion consultants: John Peter Grapiglia and Anthony Brian
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Polomka. Grapiglia gave evidence and produced documents which indicated that, at the time of trial, he was earning a little over $2,000 per week net. Polomka gave evidence that, in 2004 and 2005, his earnings had been of a similar order as those of Grapiglia. On that basis, the plaintiff suggested that I should assess the past loss of dependency from 1 July 2003 to 1 December 2005 by using a weekly figure of $1,757, the loss of dependency from 1 January 2006 to 30 June 2006 by using a weekly figure of $1,850 and the loss of dependency thereafter by using a weekly figure of $2,150. However, both Grapiglia and Polomka are considerably younger than the deceased was when he died and neither of them expressed any desire to decrease their workloads to spend more time with their families or to pursue leisure interests, such as sailing, as, on the evidence, the deceased had done. For those reasons, I do not consider that their levels of earnings to be a true indication of what the deceased would have earned had he lived. Accordingly, I intend to assess the past loss of dependency, from 8 August 2001 to 30 June 2006, by using the base weekly figure of $1,700, but, having regard for the more generous tax regime which was introduced by the Federal Government on 1 July 2006, to assess damages for loss of dependency from that date by using a base figure of $2,000.
178 Although damages are awarded for loss suffered at the date of death,
it is customary to assess past and future loss separately: Ruby v Marsh
(1975) 132 CLR 642 at 658; De Sales v Ingrilli (2000) 23 WAR 417.179 The parties agree that the dependency of a surviving spouse with one
child is 71.9 per cent of the deceased's income. The weekly figure is, therefore, $1,222. The plaintiff claims loss of dependency for her daughter, Caitlin, to 1 December 2005, which is a period of 223 weeks. Therefore, the loss for that period is $272,506.
180 The parties also agree that, after 1 December 2005, the dependency
for a surviving spouse alone is 65.6 per cent of the deceased's income. If that proportion is applied to the figure of $1,700, the result is $1,115. The period from 2 December 2005 to 30 June 2006 is 30 weeks. Therefore, that loss is $33,450. For the period from 1 July 2006 to judgment, which is 72 weeks, I use the higher base figure of $2,000. Therefore, the agreed dependency figure is $1,312. Over 72 weeks, the loss is $144,000.
Accordingly, damages for past loss of dependency total $449,956, which I round up to $450,000.
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182 That calculation of course assumes that the deceased, had it not been
for the catastrophic events of 8 August 2001, would have lived until now and beyond. However, the defendants urged me to heavily discount any allowance for past loss of dependency. The first defendant did that on the basis that the deceased's 2001 tax return showed that he was not working as hard as he had previously and the fact that, when he was 61 years old, the deceased had prepared a spreadsheet headed "Dreams" (Exhibit 8), which suggested that the deceased was then considering retirement or at least reducing his workload. The second defendant said that I should also take into account the precarious state of the deceased's chronic and longstanding cardiac condition, which rendered him at high risk of sudden death from thrombotic occlusion, at least up until the point at which he underwent bypass surgery. The second defendant also said that the bypass surgery itself would have incapacitated the deceased for some time and would have interrupted his consultancy practice.
183 However, I have already found that if the deceased had consulted
Dr Sharp immediately prior to 8 August 2001, Dr Sharp would not have certified him fit for HUET, without first fully examining him and conducting an exercise electrocardiogram. The evidence of Dr Cumpston and Professor Richards suggests that, if that had happened, the deceased's coronary artery disease would have been discovered and he would have been treated. They both said that the deceased could then have been successfully treated and Professor Richards said that, if he had been, his life expectancy would have been reduced by a figure of approximately 10 per cent.
184 On the basis of that evidence, I find that, if Dr Sharp had examined
the deceased in August 2001, she would have caused him to undergo an exercise electrocardiogram, as a result of which his coronary artery disease would have been discovered and successfully treated. In that event, he would have survived although his life expectancy would have been reduced by approximately 10 per cent. However, I also find that, at the time of his death, the deceased was not working as hard as he had in previous years and that his income had reduced as a result. I find that he was looking to further reduce his workload in order to spend more time with his family and to indulge his favourite leisure activity, sailing, and would have done so upon moving from Cottesloe to Fremantle, which he had done just before his death. I find that, notwithstanding those reductions in his workload, and the consequential reduction in his income, the deceased was self-employed in an occupation which he enjoyed, and may have worked until he was 70 years old. There is, however, a distinct possibility that he may have given up work before that and, if he had
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lived, may even have given up work by now, when he would have been almost 68 years old. For those reasons, I will discount the allowance for past loss of dependency by 30 per cent to reduce it to a figure of $315,000.
The plaintiff is entitled to interest on that amount. However, she has already received worker's compensation benefits totalling $124,398, including funeral and ambulance expenses of $4,792. Accordingly, she is entitled to interest on the difference between the damages for past loss of dependency and the workers' compensation benefits, net of the funeral and ambulance expenses. The difference is $195,394. At the rate of 3 per cent for 6 years, the interest is $35,171.
186 In respect of future loss of dependency, that could only have been
until the deceased reached 70, if he worked that long. I have already found that he may have done that. I again use the base dependency figure of $1,312. The deceased would now have been almost 68. The multiplier for two years is 98.5. The future loss is therefore $129,232, which I would discount by approximately 50 per cent (mainly for the possibility that the deceased would not have worked until he was 70), to give a figure of $65,000.
There is no dispute as to the ambulance fee or the funeral expenses, which together total $4,792.
188 However, in assessing damages for loss of dependency under the
Act, there must also be taken into consideration and deducted from those damages the value of any accelerated benefits which the plaintiff received as a result of the death of the deceased: Public Trustee v Zoanetti (1945) 70 CLR 266 at 276-7. That does not simply mean that the value of the assets which the plaintiff receives upon the distribution of the estate is to be deducted. The benefit is to be measured by the value of the acceleration of the plaintiff's receipt of the assets: Horton v Byrne (1956) 30 ALJ 583. The family home and the deceased’s personal effects, of which the plaintiff would have had the benefit in any event, are not to be taken into account.
189 The assessment is made by determining the value at the date of death
of the assets which the plaintiff will receive, applying to that sum the statutory discount factor of 6 per cent, in order to arrive at the present day value, and deducting that amount from the actual value to arrive at the value of the accelerated receipt.
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190 In her evidence, the plaintiff said that, during her marriage to the
deceased, they had first lived in a house at 29 Holdsworth Street, Fremantle, of which the deceased was the sole registered proprietor. They were living there when their children were born. Then, in 1984, the deceased sold that house and the plaintiff and he together bought a house at 45 Florence Street, Cottesloe ("Florence Street"), to which they and their family moved. In 1992, they bought an investment property at 3 Gold Street, Fremantle ("Gold Street"). In November 1999, they bought a duplex at 430A South Terrace, Fremantle ("South Terrace"). In about June 2001, the plaintiff and the deceased sold Florence Street and moved, with Caitlin, into South Terrace.
The net proceeds of the sale of Florence Street were $608,071. However, the plaintiff and the deceased then had existing loan debt to GIO Finance Ltd in respect of Florence Street, Gold Street and South Terrace. Accordingly, $541,869 of the sale proceeds were used to pay that loan debt. At the date of the deceased's death, Gold Street was valued at $290,000. However, the plaintiff sold it, after the deceased's death, for a net amount of $281,507. In addition, the deceased had $7,000 in the bank and a motor vehicle worth $10,000.
Accordingly, the value of the assets inherited by the plaintiff as a result of the deceased's death was, at the time of his death, $182,354, comprised as follows:
| Gold Street | $281,507 | ||
| Proceeds of sale of | $608,071 | ||
| Florence Street | |||
| Less: GIO debt |
| ||
| Cash | $7,000 | ||
| Motor vehicle | $10,000 | ||
| TOTAL | $364,709 |
| Deceased's | share | $182,354 |
| (50 per cent) |
193 At the date of his death, the deceased had a life expectancy of
18.9 years. That would have been reduced to about 17 years due to his
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treated coronary artery condition. Accordingly, it could be said that the plaintiff's inheritance of that amount was accelerated by 17 years. At 6 per cent discount, the value as at August 2001 of $182,354 receivable 17 years later was $67,724. Therefore, the difference between the accelerated benefit and the actual benefit would be $114,630.
194 There are, however, many uncertainties and much speculation in
connection with such a calculation. Precision cannot possibly be expected. If the court is satisfied that a plaintiff has obtained some tangible benefit, a broad estimate should be made: Walden v Black [2006] NSWCA 170 at [140]-[152]. I am satisfied that, in this case, the plaintiff has received some tangible accelerated benefit but, in all the circumstances, do not believe that it should be assessed at an amount approaching the calculated figure. I would allow an amount of $50,000.
Summary
In summary, the plaintiff's damages amount to $369,963, comprised
| as follows: Loss of past dependency | $315,000 |
| Interest | $35,171 |
| Loss of future dependency | $65,000 |
| Funeral and ambulance | $4,792 |
| Sub-total | $419,963 |
| LESS: Value of accelerated benefit | $50,000 |
| TOTAL | $369,963 |
196 Those damages must be reduced by 20 per cent for the contributory
negligence of the deceased. That reduces the figure to $295,970. The plaintiff is entitled to an award of that amount against the first defendant. The plaintiff's claim against the second defendant should be dismissed.
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