Stiles v State of NSW

[2005] NSWDDT 53

Dust Diseases Tribunal

of New South Wales

CITATION:	Stiles v State Of NSW and Ors [2005] NSWDDT 53
PARTIES:	Agnes Catherine Stiles administrator ad litem representing the estate of the late Prosper Durward Stiles (Plaintiff) State Of New South Wales (First Defendant) Gilbarco Australia Limited formerly known as Gilbarco Australia Ltd ACN 000 020 799 (Second Defendant) The University Of New England (Third Defendant)
MATTER NUMBER(S):	5007/05
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:- Dust Diseases Tribunal - estate claim - diagnosis of malignant mesothelioma - damages assessed
CASES CITED:	Sullivan V Gordon (1999) 47 NSWLR 319; CSR Ltd V Thompson (2003) 59 NSWLR 77; (2003) 1 DDCR 176
DATES OF HEARING:	27 July 2005, 27 September 2005
EX TEMPORE JUDGMENT DATE:	09/27/2005
LEGAL REPRESENTATIVES:	P E Blackett, SC and R A O'Keefe instructed by Stacks - The Law Firm appeared for the Plaintiff G P F Rundle instructed by Hicksons appeared for the First Defendant C M Egan instructed by A O Ellison & Co appeared for the Second Defendant G J Parker instructed by Wotton & Kearney appeared for the Third Defendant

JUDGMENT:

O'MEALLY P

1. On 20 July this year Prosper Durward Stiles issued a statement of claim seeking damages from the State of New South Wales, Gilbarco Australia Limited and The University of New England alleging that each defendant had negligently exposed him to asbestos dust and fibre as a result of which he contracted malignant mesothelioma. On 18 August 2005 Mr Stiles died from the effects of malignant mesothelioma and yesterday his widow, Agnes Catherine Stiles, was substituted as plaintiff and now continues the action on behalf of his estate. It is accepted that each defendant is liable to pay damages to his estate. My task is to assess those damages.

2. Mr Stiles gave evidence before me at his home in Taree on 27 July 2005. The only other evidence is an affidavit of the plaintiff sworn on 22 July 2000 and two medical reports, the first from Dr Anthony Johnson, a thoracic physician who was qualified by solicitors for the purposes of this case, and Dr Anne Knight, a thoracic physician practising in Taree, to whose care he was referred.

3. In November 2004 Mr Stiles travelled to Thailand to attend the wedding of his son. Upon his return to Australia, he began to experience worsening symptoms in his chest. He developed a cough, and breathlessness on physical activity. In April 2005 he went on a camping trip to central Queensland with his wife. During the course of this trip his symptoms increased and, at his wife's suggestion, while in Baralaba he consulted a doctor who ordered x-rays. In due course he was taken by ambulance to Rockhampton Hospital, 150 kilometres from Baralaba. He underwent an aspiration in Rockhampton Hospital, but contrary to medical advice discharged himself from hospital and determined to return to Taree, where he arrived by car some three days later.

4. When he arrived in Taree he was experiencing a general feeling of malaise together with breathlessness and, seemingly for the first time, pain in his chest. He attended the Manning Base Hospital in Taree with a letter of referral which had been given to him in Rockhampton. He was admitted to hospital in Taree and underwent further aspiration of fluid which eased his breathing. Not surprisingly the drainage was a painful procedure.

5. In May 2005 a diagnosis of malignant mesothelioma was made. As not infrequently happens the tumour migrated along the path of the channel made by the aspiration tube and notwithstanding medication the plaintiff experienced severe pain, certainly until the time he gave evidence and, I think it fair to assume, until he died on 18 August 2005.

6. Mesothelioma is a disease which produces exquisite pain. The pleura is a very sensitive pain receptor and as the tumour grows it invades the pleural wall and compresses the lungs so that every breath is accompanied by horrible pain. The severe symptoms experienced by the plaintiff began at the end of April or the beginning of May 2005 and endured until his death in August. He was symptomatic, although not to a significant degree, from November 2004 until the end of April 2005.

7. I think a sum appropriate to compensate the plaintiff for the pain and suffering and the discomfort he endured as a result of his mesothelioma is $150,000.

8. At the time of his death Mr Stiles was aged 64 years. According to the Australian Life Tables a 64 year old Australian male has a life expectancy of 18 years. The plaintiff's life expectancy was affected by the fact that he suffered hypertension and seemingly polyposis. He had a family history of ischaemic heart disease and bowel cancer. These factors should be taken into account in determining a sum appropriate to compensate his estate for loss of expectation of life. In my view the sum of $12,500 is appropriate to award under this head.

9. It has been agreed that costs of past care amount to $30,000.

10. Interest on general damages should run from the beginning of May 2005 and has been agreed at $1,000.

11. The plaintiff makes a claim for Sullivan v Gordon (1999) 47 NSWLR 319 expenses. There is evidence that the late Mr Stiles performed domestic chores about his home notwithstanding the fact that he had retired early on account of injury and that he suffered ischaemic heart disease. His evidence contained an assertion of work performed by him about the household. His affidavit recites that his wife was incommoded to some extent by reason of injury. There is, however, no medical evidence upon which I can comfortably assess the reasonable necessity of the tasks performed to assist her. Always when assessing Sullivan v Gordon damages it is impossible in the absence of precise diary records and supporting medical evidence to be precise and inevitably a broad brush approach is all that can be taken. Doing the best I can to do justice between the parties I think it appropriate to allow the sum of $3,000 for Sullivan v Gordon expenses.

12. It should also be observed that mesothelioma is an injury which is indivisible and all exposure to asbestos makes a material contribution to that disease. Accordingly, the defendants will be jointly and severally liable to the plaintiff.

13. Before judgment is entered I grant leave to issue cross-claims on or before 31 December 2005.

14. The plaintiff is entitled to damages made up as follows:

General damages $150,000.00

Interest on general damages $1,000.00
Loss of expectation of life $12,500.00
Past care $30,000.00
Sullivan v Gordon damages     $3,000.00

Making a total of $196,500.00

15. There will be verdict for the plaintiff jointly and severally against each defendant and judgment in the sum of $196,500.

16. The defendants will pay the plaintiff's costs as agreed or assessed.

17. At the request of Mr Parker I note the submission made on behalf of each defendant that Sullivan v Gordon was wrongly decided. They no less than myself await with interest the decision of the High Court of Australia in CSR v Thompson on appeal from the Court of Appeal division of The Supreme Court of New South Wales, (2003) 59 NSWLR 77; (2004) 1 DDCR 176.

P E Blackett, SC with R A O'Keefe instructed by Stacks – The Law Firm appeared for the Plaintiff

G P F Rundle instructed by Hicksons appeared for the first Defendant

C M Egan instructed by A O Ellison & Co appeared for the second Defendant

G J Parker instructed by Wotton & Kearney appeared for the third Defendant