Stewart v QBE Insurance (Australia) Limited
[2008] NSWDDT 32
•18 March 2008
Dust Diseases Tribunal
of New South Wales
CITATION: Stewart v QBE Insurance (Australia) Limited & Ors [2008] NSWDDT 32 PARTIES: Irene Stewart as legal personal representative of the Estate of the Late Angus Clugston Stewart
QBE Insurance (Australia) Limited
Wallaby Grip LimitedMATTER NUMBER(S): 7279 of 2007 JUDGMENT OF: Kearns J CATCHWORDS: DUST DISEASES TRIBUNAL :- mesothelioma; deceased exposed to asbestos in course of employment; employer negligent; verdict for plaintiff against deceased's employer; verdict also sought against employer on basis of contributions assessment and clause 52 of Dust Diseases Regulation 2007; held that the Regulation did not permit the plaintiff to obtain a verdict on this basis; assessment of damages; agreed damages and interest; loss of expectation of life; gratuitous care; test for recovery of damages for gratuitous care is not the supply of the care but the need for the care; s15B damages; test is not the supply of services but whether the dependant was not capable of performing the services and whether the need for the services to be provided is reasonable in all the circumstances. LEGISLATION CITED: Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Regulation 2007
Civil Liability Act 2002DATES OF HEARING: 18/10/2007; 01/02/2008; 03/03/2008
DATE OF JUDGMENT:
18 March 2008LEGAL REPRESENTATIVES: Mr J Sharpe instructed by Turner Freeman appeared for the plaintiff
Mr G Little SC with Mr G Parker instructed by Moray & Agnew appeared for the first defendant;
Mr D J Russell SC instructed by Middletons appeared for the second defendant
JUDGMENT:
Outline
1. Mr Stewart contracted mesothelioma and died as a result. He died on 22 October 2007. Before his death, he commenced proceedings against QBE Insurance (Australia) Limited (QBE) and Wallaby Grip Limited (Wallaby Grip). Proceedings against QBE were brought on the basis that it was the workers’ compensation insurer of Pilkington Bros (Australia) Limited (Pilkington) by whom Mr Stewart was employed from about 1964 to about 1967. He claimed that during the course of that employment he was exposed negligently to asbestos dust and fibre which caused his mesothelioma. The proceedings against Wallaby Grip were on the basis that it was the supplier of the asbestos product.
2. Following the death of Mr Stewart, his widow was appointed legal personal representative of his estate and she is now the plaintiff as such legal personal representative.
Liability at common law
3. Mr Russell SC, who appeared for Wallaby Grip, did not make any submissions as to its liability to pay damages. Mr Parker, for QBE, made a submission that it was not unreasonable for Pilkington to have supplied asbestos gloves and asbestos tape to which Mr Stewart was exposed in the course of his employment. That was not a point that had been telegraphed in the conduct of the case, but that was my fault for not having asked the parties at the outset what the issues in the case were.
4. I gave the plaintiff leave to re-open his case and, in doing so, two further documents were tendered which became Exhibits PX26 and PX27.
5. PX26 was a notice served pursuant to s.25B of the Dust Diseases Tribunal Act 1989. The tender of PX26 was objected to, but I allowed it. The plaintiff relied on items 3 and 14.
6. Item 3 is as follows:
“It is futile for an employer which exposed an employee who now has an asbestos related disease to substantial asbestos dust during a period within the last 35 years to litigate foreseeability in the Dust Diseases Tribunal in other than exceptional circumstances. The fact that asbestos dust was generated or given off from products obtained from an apparently reputable supplier who provided no warning is not a circumstance which excludes foreseeability, at least if the employer was aware of the dust which was occurring.
Baldwin v Plane
(1998) 17NSWCCR434 at 4888 [III].”
Mr Stewart was employed within the time frame stated in this item.
7. Item 14 provides:
“By 1953, the state of knowledge was such that asbestos dust was perceived as being a dangerous material per se and in certain concentrations, that is, over five million particles per cubic foot of air, it was probably very dangerous.
Raif v Sayer [1995] 13 NSWCCR 393 at 405AB.”
8. In relation to this particular item, it was agreed that if dust was visible in the atmosphere then its concentration was in excess of 5 million particles per cubic foot of air. Mr Stewart was exposed to dust that was visible in the atmosphere and in accordance with this particular item was exposed to a concentration of dust that was probably very dangerous. Apart from objecting to the tender of this document, Mr Parker had no further submissions to make in relation to it.
9. The evidence as to Mr Stewart’s exposure may be summarised briefly. Mr Stewart was employed on the multi-stage dye bending machine. Most of his time at Pilkington was on that machine and he worked an average of 50-60 hours a week. In working on that machine, he wore asbestos gloves for heat protection. Use of those gloves gave off visible dust in various circumstances. The dust settled on his working clothes to such an extent that when they were shaken at the end of a working day, they gave off visible dust. He also worked on the furnace. The work included replacing the seal around the inspection window. Visible dust was given off in that work process. The work was less frequent than the job on the multi-stage dye bending machine, but it was dustier work. He also gave evidence of lack of warnings and precautions. There is evidence from John McDermott and Edgar Furnass which, in essence, corroborates Mr Stewart’s evidence.
10. In the circumstances, I am satisfied that a case has been established that Pilkington was negligent in the occurrence of Mr Stewart’s mesothelioma. Wallaby Grip was the supplier to Pilkington of the asbestos gloves and tape. It did so without any warning as to the dangers of the products. Wallaby Grip was also negligent. There should accordingly be verdicts for the plaintiff against QBE and Wallaby Grip.
11. There is another basis on which a verdict was sought against QBE and that arises from the tender of the determination by the contributions assessor (Exhibit PX27). That also was objected to. Mr Parker submitted it can have no bearing on the issue between the plaintiff and QBE. Mr Sharpe, who appeared for the plaintiff, submitted it entitles his client to a verdict. Mr Russell SC submitted that the effect of Exhibit PX27 is that it is binding on me and he draws on clause 52 of the Dust Diseases Tribunal Regulation 2007. It provides:
(1) An agreement or determination as to apportionment among defendants for the purposes of this Division is conclusively binding on the defendants for the purposes of the settlement, or determination by the Tribunal, of the plaintiff’s claim and payment of the plaintiff’s damages.
(2) The agreement or determination is not binding for the purposes of the subsequent taking, or determination by the Tribunal, of a dispute between defendants as to apportionment.
There is not before the Tribunal in these proceedings any dispute between the defendants as to apportionment and, accordingly, sub-regulation (2) does not apply.
12. I do not think sub-regulation (1) supports the submission of Mr Russell SC. There has been “an apportionment among defendants” within the meaning of the regulation. It is conclusively binding on the defendants “for the purposes of … determination by the Tribunal, of the plaintiff’s claim …” If regulation 52 was designed to prevent a defendant from contesting its liability to a plaintiff in proceedings brought by the plaintiff, I would have expected it to do this in clearer language. Regulation 49(4) uses clearer language in requiring a Contributions Assessor to assume the liability of defendants. No such assumption is imposed on the Tribunal hearing a plaintiff’s case. One of the purposes of regulation 52 is to avoid a plaintiff’s case being delayed or prolonged by contests between defendants. That purpose is not defeated by allowing a defendant to contest its liability to a plaintiff. I do not accept that the plaintiff is entitled to a verdict based on Exhibit PX27.
13. I proceed now to determine the question of damages.
Non-economic loss
14. Mr Stewart was born on 16 November 1933 in Prestopans, Scotland. He was a married man with four children. He had three sons and one daughter. The children were born in 1957, 1959, 1962 and 1970. He had six grandchildren, ranging in age from 2 to 27 years and one great-grandchild.
15. He left school at 15 years of age and became a coal miner until 18 years of age. In 1951, he enlisted in the air force. He was discharged from the air force in 1955 and went back to the colliery. From 1957, he was employed as a sales representative and then as a truck driver for a total of about 7 years. He came to Australia in November 1964.
16. On arriving in Australia, Mr Stewart went to the Cabramatta migrant hostel for a couple of years. In 1956, he commenced employment with Wunderlich Glass.
17. Late in 1964 or early in 1965, he was employed by Pilkington and this was until 1967. There was some discussion during the course of the hearing as to the precise identity of Mr Stewart’s employer and I am satisfied it was Pilkington.
18. After 1967, Mr Stewart had a number of other occupations which it is not necessary to detail. He retired from work in 1998 when he was then 65 years of age or in his 65th year.
19. In 1999, Mr Stewart undertook a sky dive and it resulted in a collapsed lung with some ongoing problems for a period. That really became a red herring as he completely recovered from it some time in 2000.
20. In March 2006, Mr Stewart noticed that he was short of breath. He had pain and pressure on the right side of his chest. He had cough with blood stained sputum. He saw a doctor in his general practitioner’s practice on 28 July 2006. It is recorded that he had persistent cough with brown coloured phlegm and that x-ray showed a mass at the right lung base (Exhibit 8). A CT scan on 2 August 2006 revealed a loculated mass in the right lower lung and pleural thickening. He continued seeing a general practitioner who was prescribing antibiotics, but they were having no effect. On 14 September 2006, when he saw his general practitioner, it is recorded that he was coughing blood at night and his general practitioner referred him to Dr Johnson.
21. Dr Johnson saw Mr Stewart on 27 September 2006 and continued to see him on occasions through until 14 August 2007. When he first saw Mr Stewart, he thought he had chronic obstructive pulmonary disease from smoking and possibly a neoplasm. He arranged a bronchoscopy which was negative for malignancy. There is no need, however, to track through the history leading to Mr Stewart’s ultimate diagnosis of mesothelioma, because that diagnosis is not in doubt and there is no dispute that his symptoms are related to his mesothelioma.
22. Histopathology following a right video assisted thoracoscopy, which was undertaken probably on 27 November 2006, confirmed the diagnosis. That thoracoscopy revealed a lot of solid material consistent with tumour. Dr Johnson refers to the bronchoscopy which was negative for malignancy. He then notes that he then had two aspirations of pleural fluid.
23. During the thoracoscopy, a mucinous collection was evacuated and the resulting cavity washed out. Talc pleurodesis was performed and a single chest drain inserted. Talc pleurodesis is a notoriously painful procedure. Talc is introduced into the chest cavity. It is an irritant designed to create inflammation leading to scarring which binds the tissues together. The lung was inflated though it would not inflate fully.
24. Mr Stewart gave evidence that after the bronchoscopy, his condition deteriorated. He was breathless all the time. He was in pain and constantly fatigued. He had trouble sleeping. He was irritable and snappy and distressed and angry.
25. On 5 November 2006, an ambulance was called to Mr Stewart’s house and took him to Liverpool Hospital. It is recorded that he had had a bout of dizziness at the shops and that he had increased pressure on his right side more than normal. He was pale and hypertensive and tachycardic. He was given oxygen and he was dizzy on arrival at the hospital (Exhibit 10). At the hospital, it is recorded that there was dizziness and faintness over the past few days and a feeling as though he might collapse. There was a sensation of heaviness from the left side of the chest and his pulse was racing (Exhibit 11).
26. On 15 November 2006, he underwent CT fine-needle aspiration and in excess of 150mls of fluid was aspirated.
27. Dr Johnson referred Mr Stewart to Dr French. He undertook the video-assisted thoracoscopy procedure and on 8 December 2006, he informed Mr Stewart of his diagnosis of mesothelioma. Mr Stewart gave evidence that when told this, he was devastated, shocked and disbelieving. He was distressed, distraught and worried about his wife and family.
28. In December 2006, Mr Stewart started on a course of chemotherapy. It was done by or under the supervision of Dr Moylan.
29. Mr Stewart gave evidence of the course of his treatment of chemotherapy which is broadly consistent with the material contained in the reports in relation to the treatment, though, not surprisingly, the evidence was more detailed.
30. The chemotherapy treatment ran from December 2006 to May 2007. There was course of six treatments about four weeks apart. The treatment caused nausea, loss of appetite, abscess on his gum, loss of teeth and constant fatigue. His stomach began to fill with fluid and was distended and painful.
31. Mr Stewart says that after the third session of chemotherapy, he was admitted to Liverpool Hospital where a peritoneal drain was performed and seven litres were drained. I am not sure about that amount of fluid as I was unable to find any record of that in the evidence. However, significant fluid was drained at a tap on 2 February 2007 when it recorded that approximately 2.1 litres of fluid were drained. At one point during the course of treatment, he became anaemic and needed blood transfusions. That resulted in some momentary improvement in his health. It was, however, only momentary and the fluid build-up in his abdomen returned and so did the fatigue. He lost his appetite, he was sick, he felt his hopes were shattered and he was distressed.
32. The last two sessions of chemotherapy were the most difficult.
33. During the course of this, a CT scan was undertaken on 19 January 2007. It showed extensive intra-peritoneal fluid tracking into the right inguinal area. The findings were consistent with peritoneal spread of his mesothelioma.
34. A CT scan undertaken on 2 July 2007 revealed almost complete resolution of the loculated right pleural effusion. There were other findings consistent with a partial response to the chemotherapy treatment. It was recorded, however, that Mr Stewart was developing symptomatic, progressive disease in August 2007 with recurrent abdominal discomfort and ascites. He needed drainage for the ascites.
35. After the completion of his chemotherapy, Mr Stewart said his condition deteriorated. He had been constantly fatigued, lost his appetite, lost 20kg in about six months, he had loss of energy, he was increasingly dozing in a chair, he had night sweats and trouble sleeping, he had episodes of constipation and diarrhoea. I note that symptoms of diarrhoea or fluctuating bowel habit were recorded by Dr Moylan earlier, in January 2007. Mr Stewart also had increased pain in his chest, pain in his stomach and groin and shooting pains down his leg. He took pain relief medication, but it caused disorientation, nausea and distress.
36. His evidence was that he had about seven visits to Liverpool Hospital since finishing chemotherapy. The visits included drainage of fluid from the peritoneum and also an attempt to drain fluid from the pleura, but that was unsuccessful. The frequency and extent of drainage was such that it necessitated a cannula.
37. On 8 October 2007, Mr Stewart was admitted to Braeside Hospital for palliative care. His evidence was that he had not eaten since September 2007. He became nauseous very easily. Even water tasted foul. The slightest movement caused him to be sick.
38. In his retirement, Mr Stewart was a very keen golfer. He played four to five times a week and he had developed many friends through his golf and his association with the golf club. He was unable to walk and play golf after he became ill. In 2006, he did make an attempt to play using a cart, but it was not successful. He was distressed at his inability to maintain his golf and golfing contacts. He was also active in the RSL and had a number of friends at his local club and when he became ill that was something that he missed.
39. At home, he had an above ground pool in which he used to swim for exercise. He was unable to undertake that since he became sick in 2006. He worked in the garden when he was well and he missed being able to do that when he became ill. He loved walking and that was lost to him when he became ill. He enjoyed his time with his grandchildren and great-grandchild. He was sad and angry that he could no longer play with them and would not see them all grow up. He used to be a regular visitor to Kiama and had hopes of moving down there. He was sad that he was unable to follow that through. He had hoped to visit family in Scotland and was upset when it became apparent that he could no longer do that. He was also unable to go to Queensland to visit his son and that caused him a degree of upset. He missed socialising and spending time with his family.
40. Mr Stewart gave his evidence at Braeside Hospital. He was plainly unwell. He died on 18 October 2007.
41. I take the view that the pain and suffering and anguish and loss of amenities and enjoyment of life endured by Mr Stewart were significant and that a reasonable allowance in the circumstances for non-economic loss is $200,000.
Interest
42. I accept the approach of Mr Russell SC to the calculation of interest. It is frankly acknowledged by him to be more favourable to the plaintiff than the plaintiff’s approach. I allow interest as follows:
(1) $200,000 x 2%pa x 21 months (2) $200,000 x 5%pa x 5 months
The reason for the change in interest rate is that from the time of Mr Stewart’s death, the whole of the general damages had, in fact, accumulated. The time periods are not precise, but the calculation of interest in these matters is not meant to be. For interest, therefore, I allow $10,333.
Loss of expectation of life
43. Traditionally, this is a modest or nominal sum and in the circumstances, I allow $13,000.
Gratuitous care
44. There is not much difference between the plaintiff’s claim and the amount allowed by the defendant. The plaintiff claims $64,743.66. The defendant allows $50,000.
45. There is little medical evidence as to the need for care around the time that Mr Stewart had chemotherapy, but it takes little to understand that Mr Stewart would have needed considerable care throughout that process. A broad brush approach is called for and I think it is reasonable to allow the plaintiff care to the extent that it is claimed which is in accordance with Mr Stewart’s evidence. That was to the effect that for about one week after each session of chemotherapy, he needed care to the extent of about 12 hours a day and for about three weeks before each session of chemotherapy, he needed care to the extent of about six hours a day. As to the former, I allow the plaintiff $11,546.64 as claimed and as to the latter, I allow $14,443.30, as claimed.
46. The remaining claim, from the end of the chemotherapy treatment in May 2007 until Mr Stewart’s admission to hospital in October 2007, at 12 hours per day is supported by the evidence of Mr Stewart and Mrs Stewart. That, however, is not really a satisfactory guide in making an assessment. The supply of the care is not the test. The test is the need for the care. I would expect his care needs would not have been even over the period. I would expect that some days would have required less than 12 hours’ care per day. The extent of time over which care was needed for 12 hours per day is not the subject of medical evidence. Medical evidence might support the view that Mr Stewart’s care need did not rise to over 12 hours per day. Dr Clarke, when he saw Mr Stewart on 30 August 2007, noted that he was in no distress and looked surprisingly well. This was, however, an appearance that tended to disguise his real illness. Dr Johnson, on 14 August 2007, noted there was no shortness of breath on exertion. Again, taking a broad brush approach to this item, I discount the plaintiff’s claim of $38,763.72 and allow about $30,000.
47. For gratuitous care, I allow in all $56,000.
Section 15B damages
48. The plaintiff claims four hours per day from 15 December 2006 until Mr Stewart’s death and four hours per day thereafter until 18 October 2017. The defendant allows seven hours per week for both the past and the future.
49. Section 15B of the Civil Liability Act 2002 (CLA) relevantly provides:
“(2) Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that:
(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)—the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and
(b) the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and
(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants:
(i) for at least 6 hours per week, and
(ii) for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.”
50. Mr Russell SC makes a number of concessions:
- he concedes that services were provided by Mr Stewart to Mrs Stewart to satisfy the requirement that they be gratuitous domestic services;
- he concedes that Mrs Stewart was a dependent;
- he concedes that ss2(a) and (c) are satisfied.
51. Mr Russell SC then takes issue, in part, as to whether ss2(b) and (d) have been satisfied. As to (b), he acknowledges that Mrs Stewart was not and will not be capable of performing services, but he does not acknowledge that this is to the extent claimed. As to (d), he submits that while (c) is satisfied, there is still a requirement that the services to the extent claimed be reasonable in all the circumstances.
52. It may be the case that Mrs Stewart has been and is receiving services to the extent on average of four hours per day, but that is not the test. The questions that must be addressed are:
- was or will Mrs Stewart not be capable of performing the services herself by reason of her age or physical or mental incapacity (ss(b));
- is the need for the services to be provided reasonable in all the circumstances (ss(d)).
Mrs Stewart’s health
53. Mrs Stewart has a number of health problems. She suffered a back injury in the 1990s. She gets around on an electric scooter or a wheelchair or uses a quad walking stick. For the last eight years, she says she has been in constant pain. She has little or no movement in her back. She uses an extender to pick up objects from the floor. Her shopping is done using her electric buggy which has a bag attached to it. She last drove a car around Christmas time 2007.
54. She also has some knee problems. She has had knee reconstruction surgery and she has had problems with her knees for several years. She has had problems with an irritable bowel syndrome for several years. She suffers migraines. She has obesity problems. She has psoriasis which can be itchy. She has insomnia.
55. Over the last several years, Mrs Stewart said that Mr Stewart made breakfast, did all the food preparation, except that she prepared the vegetables, that he did the shopping for food, that he cleaned the house and that cleaners now do that, that he hung the clothes on the line and brought them in and did the ironing. She estimated that he had been doing those things to the extent of four hours per day until 2000. I have no doubt that Mr Stewart did those things, but I really cannot see four hours a day in the doing of those things. Mr Stewart also did the gardening. He cut Mrs Stewart’s toenails and that is now done by a podiatrist. The son gave evidence and said that Mr Stewart used to do the cleaning including the vacuuming and mopping and also the outside work. Mrs Stewart gave evidence of a fall on one occasion when she needed to call the ambulance.
56. From December 2006 to May 2007, Mrs Stewart’s sister came out from Scotland and whilst she stayed with them, did the washing, ironing, cooking and cleaning and when she went back, family members pitched in and did these things.
57. Now her daughter comes down from Tweed Heads every fortnight and stays for three days. Sons do the garden, relatives do work and professional cleaners come in for two hours a week. There are two cleaners.
58. There was some important evidence given in cross examination which goes to the plaintiff’s ability to carry out a number of these chores and whether it is reasonable to allow the claim as made. She said that she is mostly in the house by herself although her daughter is down from Tweed Heads for three days once a fortnight and there are other visitors. She is able to shower and dress herself even if it is a slow process. She gets her own breakfast, even if it is a simple process. She gets her other meals, being lunch and her tea, even though they are simple matters to attend to. Mostly, she reads when she is at home. She moves around the house by herself. She has strategic points around the house where she can stop and rest and which are also designed to prevent her falling. It is not as if she needs somebody there all the time in case she falls. On the occasion of a fall, an ambulance was able to attend. When the daughter attends for three days at a time once a fortnight, she is not occupied full time in cleaning or other household tasks. She keeps her mother company. Mrs Stewart said she is able to go to the shops by herself using her electric buggy. If she needs to undertake a bigger shop, she goes in a taxi. She is able to do her banking and go to the post office and pay bills.
59. The plaintiff’s submissions were put on the basis of the time actually undertaken by cleaners and her son and daughter undertaking chores. No doubt, many of those chores Mrs Stewart cannot do by reason of her physical condition. However, there are many chores which she is capable of performing. She performs them, but with difficulty. There were extensive medical notes from general practitioners as to Mrs Stewart’s health, but they did not address the question of her ability to undertake the services in respect of which she is claiming, nor was there any other medical evidence addressing her capability of undertaking these services.
60. I proceed to analyse the evidence in relation to Mrs Stewart’s capability of performing the services in respect of which she claims and to make assessments in respect of her entitlements in that regard.
61. She prepares her meals. They are of the simplest and easiest kind to prepare, but she does it. It might be unreasonable to expect her to prepare frozen meals every night for the rest of her life or for the rest of the period of her claim, but equally, I think it would be unreasonable to expect she has all meals or all evening meals prepared for her. Some allowance, however, must be made here, but not to the extent claimed.
62. She travels to the shop in her electric buggy and is able to shop in this way. She is not incapable of doing it and it would be unreasonable to expect the defendant to have to pay for services that include such shopping. For larger shopping, she hires a taxi that can take her with her electric buggy. It is reasonable to allow for that and whether it is allowed as return taxi fares or some hourly rate for somebody to assist her probably would not make much difference. She would need assistance with transport on other occasions, for example, attending upon friends, relatives, medical appointments and allowance should be made for that.
63. She has cleaning help in the house. It is four hours per week. I think it is reasonable to expect that there would be some occasional extra cleaning from time to time. As Mrs Stewart lives in the house by herself, I would not expect that to be much, but I think some allowance should be made for it.
64. Gardening and lawn mowing need to be done. I think that the son’s evidence of 30-40 minutes for the lawn mowing and one to one and a quarter hours for gardening is not unreasonable. These items would not need attention every week throughout the year and to allow two to three times per month would be reasonable.
65. There are other matters for which she would need assistance. These would cover matters such as household maintenance, cutting of toe nails and car cleaning. Allowance should be made for these.
66. I allow for the cleaning of four hours per week. I allow for lawn mowing and gardening at about one hour per week, although I expect it to be somewhat in excess of that. I allow for some meal preparation and some assistance with shopping and other travel assistance and other miscellaneous assistance to the extent of about four hours per week. This allows nine hours per week.
67. The plaintiff claims up to 2017 and the defendants concede an allowance up to 2014. The defendants’ rationale for selecting 2014 is that it allows for this claim in the future until the plaintiff is 80 years of age. Mr Stewart would then have been 81 years of age. I think this is a reasonable approach. I propose to allow the claim up to 2014. On this basis, then, I allow from 15 December 2006 to 18 October 2007, 44 weeks x 9 hours per week x $22.91 per hour, being $9,072. From that point, I allow 9 hours per week x $22.91 per hour x 330.3 (multiplier for 7 years), $68,105. In closing off this part of the claim at 2014, I have already accounted for the factor that would loom largest in the vicissitudes. That factor is whether the life circumstances or health of Mr Stewart or Mrs Stewart would have embraced the continued provision of gratuitous services through the life expectancy of the first of them expected to die. Once that has been factored in by closing off this part of the claim at 2014 what is left is such a short period that I do not think there should be any discount under s15B(11) of the CLA for vicissitudes.
68. The allowance for damages under s15B of the CLA is, therefore, $77,177.
69. Summary of figures
Non-economic loss Interest on non-economic loss Loss of expectation of life Gratuitous care S15B damages: Past $9,072
From October 2007 $68,105
70. There will be a verdict and judgment for the plaintiff against each of the defendants in the sum of $356,510.
19 March 2008
ADDENDUM TO JUDGMENT
KEARNS J
1. I am sorry to have dragged the parties back in this matter, but after I published my reasons yesterday, one of my staff drew my attention to an error in the judgment. The error lies in Mr Stewart’s date of death. It is correctly recorded in para 1 as 22 October 2007. It is incorrectly recorded in para 40 as 18 October 2007. Similarly in para 67. Calculations of damages, proceeding from the plaintiff’s schedule of damages, were done on the basis that it was 18 October 2007, but I do not propose to change anything except have these comments added as an addendum to my judgment.
2. The reason I do not propose to change anything in relation to the calculation of damages is that there is only a four day difference and should every item of damages be re-adjusted, there would be pluses and minuses going both ways and the end result, if there was any difference, would be so tiny it is not worth making any adjustment.
3. I apologise again for having brought the parties back. I understood wrongly that it was one of the parties that drew my staff’s attention to the error. In fact, it was my staff that drew the error to my attention.
Mr J Sharpe, instructed by Turner Freeman, appeared for the plaintiff
Mr G Little SC, with Mr G J Parker, instructed by Moray & Agnew, appeared for the first defendant
Mr D J Russell SC, instructed by Middletons, appeared for the second defendant
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