Strachan v Amaca Pty Ltd

[2003] NSWDDT 20

Dust Diseases Tribunal

of New South Wales

CITATION:	Strachan v Amaca Pty Ltd [2003] NSWDDT 20
PARTIES:	Ronald Strachan Amaca Pty Ltd (Formerly James Hardie & Coy Pty Limited)
MATTER NUMBER(S):	425 of 2002
JUDGMENT OF:	Johns J at 1
CATCHWORDS:	Damages - Miscellaneous Matters :-
LEGISLATION CITED:
CASES CITED:	Thomson v Smith's Ship Repairers (North Shields) Ltd [1984] 1 QB 405; Pamment v Pawelski (1949) 79 CLR 406; Sullivan v Micallef (1994) Aust Torts Reports 81-308]
DATES OF HEARING:	29 & 30/09/2003
EX TEMPORE JUDGMENT DATE :	09/30/2003
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr W Kearns, SC instructed by Turner Freeman. FOR DEFENDANT: Mr J Bartos instructed by Phillips Fox.

JUDGMENT:

1. This is an action in damages by Ronald Strachan against Amaca Pty Limited, formerly known as James Hardie & Co Pty Limited. The action arises as a consequence of the plaintiff being exposed to, and inhaling asbestos dust and fibre at the premises of the defendant in the course of his employment with his then employer.

2. The defendant in this matter does not contest the issue of breach of duty of care or foreseeability. Initially, the defendant put in question exposure to the products of the defendant. However, and I think sensibly, at the conclusion of the evidence and before submissions, it was indicated that the defendant would make no submissions in regard to asbestos exposure, and that the Tribunal was at liberty to find that the plaintiff, on the evidence, was exposed to asbestos dust and fibre emanating out of the use of the products of the defendant at its manufacturing premises.

3. The plaintiff contends that he suffers from asbestos related pleural plaques, asbestos related pleural disease in the form of diffuse pleural thickening and asbestosis. The consequence of these conditions is that he suffers from lung restriction and breathlessness.

4. His disease was caused by the inhalation of asbestos dust and fibre utilised by the defendant for the purpose of manufacturing asbestos related products. As a consequence of the concessions of the defendant, it is not necessary to detail the evidence in respect of the question of liability in the same way as otherwise would be the case.

EMPLOYMENT AND EXPOSURE

5. The plaintiff was employmed at Ameco Engineering between 1960 and 1961 for about three to four months. At the time he worked as a tradesman’s assistant, and throughout his entire period of employment with Ameco Engineering he was involved in the manufacture of a transfer machine that was commissioned by James Hardie & Co Pty Limited.

6. The transfer machine was to be used at James Hardie’s asbestos cement factory at Camellia. It was a large machine measuring about 20 feet long and about 5 feet wide, and was designed for continuous industrial use. The transfer machine was designed to print coloured patterns on asbestos cement fibro sheets, in particular Tilux, for James Hardie at its factory.

7. The machine was designed in such a way that the asbestos cement sheets were fed through a platform at one end of the machine onto rollers that directed the sheets onto a conveyor belt. The machine had a printer in its middle section which printed the patterns using rubber rollers onto the asbestos cement sheets. The printed sheets then moved along a conveyor belt to a finishing stage where four electric saws cut the sheets to size.

8. The design of the machine was that in the process it could vary the lengths and widths of the sheets then being cut. The transfer machine only worked on dry sheets, the consequence of which was that whenever the electric saws were in operation huge amounts of dust were released into the air from the asbestos cement sheets.

9. While the construction and trialling of the machine was taking place the plaintiff and his co-workers were provided with asbestos cement fibro sheets by James Hardie for testing the machine. The sheets provided were dry and always dusty, and the process always caused a cloud of dust which remained in the air around them while they worked. The atmosphere was described as thick clouds of dust in the air like a thick white mist. Dust also settled on the surfaces of the transfer machine as well as any other surface around which they were working.

10. The testing of the machine in these conditions continued for a considerable period of time until the supervisors of the plaintiff’s employer were happy that the machine was working as it ought. One or two weeks of testing took place at the Ameco Engineering premises. The amount of dust caused in the operation caused a conflict within the workplace, and a stop work meeting was called by Ameco employees.

11. The solution was that the machine was then taken to the James Hardie factory at Camellia where the asbestos cement products were manufactured, and the testing of the machine then took place.

12. A suitable place to install the machine was necessary and in this process the cleaning and sweeping of the floor to remove all asbestos dust was undertaken. This caused large amounts of asbestos dust to rise in the air which added to the thick white cloud.

13. The testing and the working in this atmosphere by the plaintiff continued for about three months. Constantly there was testing of the machine using asbestos cement fibro sheets provided by the defendant. The state of the sheets were always, as previously described, dry and dusty and the process affected the atmosphere as previously described.

14. The activities of the plaintiff in this process created an intense dusty atmosphere. This added to the atmosphere in the factory itself which was constantly filled with a thick cloud of dust from the manufacturing processes that were taking place in the production of various asbestos cement products.

15. The mixing of asbestos materials by other workers in the factory, sawing and trimming of asbestos cement sheets and products were undertaken throughout the factory. Every surface of the factory had a thick layer of dust which when disturbed would cause the dust to rise in the air and hover like a cloud.

16. The plaintiff worked a normal working week of 40 hours per week, and also regular overtime because of the deadline that needed to be met to get the machine finished. The plaintiff worked some 4 hours on two nights a week as well as an 8 hour shift on Saturday. He worked over this period of time some 55 to 60 hours each week in the atmosphere that I have described.

17. The plaintiff gave a detailed description of his other employments. He was not exposed to any asbestos dust and fibre in any other employment which he had undertaken. Some minor contact in relation to fibro sheets occurred, but it seems to me in the circumstances irrelevant to the issues with which I have to deal.

18. There was a duty owed by the defendant to take all reasonable steps to satisfy itself that asbestos was safe in the sense that there were no risks to any injury to the health on part of the persons who were likely to be brought into contact with its use.

19. The defendant has failed in its duty to do whatever may have been reasonable in the circumstances, and as has been conceded by the defendant, it was in breach of its duty of care.

20. Given that I have found the nature and the extent of the exposure of the plaintiff to asbestos dust and fibre in the circumstances of the employment that I have described, it undoubtedly was an intensely laden atmosphere of asbestos dust and fibre.

21. In those circumstances, there is no contest or could there be any contest given the evidence in this case, that the plaintiff’s exposure to asbestos dust and fibre has been the cause of asbestos related disease that he now suffers.

GENERAL DAMAGES

22. The plaintiff was born on 7 December 1936 and married his wife on 17 September 1960. There were three children of the marriage, all of whom are now in excess of 30 years and are independent. There are eight grandchildren in the family. There is a close bond between the plaintiff and his wife, and it would seem to me, in relation to the whole family. Their marriage has obviously been one of mutual success, which is obvious from the evidence that they both gave in this case.

23. The plaintiff first noticed some pain in his chest in August 1997 and increasing breathlessness. He attended upon his general practitioner, Dr Purcell, who referred him for an ECG and a chest x-ray. The chest x-ray indicated that pleural based opacity, probably as the doctor said, an effusion. The pleural based effusion was still present when on 21 August 1997 the plaintiff was referred by his general practitioner to Dr Julian Lee, a respiratory physician. Dr Lee arranged for the plaintiff to undergo surgery at the hands of Dr McCaughan at the Strathfield Private Hospital.

24. In early September of 1997 a post lateral thoracotomy and pleurectomy was performed on the plaintiff. There was at the time some thought that the plaintiff suffered from mesothelioma. On the opening of the pleural space there was evacuation of some residual fluid, benign pleural plaques were present and the tissue between the plaques could not definitively be called malignant on macroscopic examination. Frozen sections were performed but were unable to give an accurate diagnosis. The pleurectomy was completed and Marcain was used on the intercostal nerves, which were necessarily cut in the process of this operation. Routine draining then took place.

25. The plaintiff on discharge from hospital was for six weeks significantly disabled and required significant care. The plaintiff’s wife stayed home from work for six weeks in order to care for him. The plaintiff required necessary assistance with respect to his care which included showering, dressing, and preparing meals. At the beginning of the period the plaintiff was not able, as he indicated, to do anything without his wife’s help. Following surgery his condition did improve, although he did not recover fully. He was able to play nine holes of golf with, what he describes, “some pensioners”. The plaintiff was in prior years an active golfer. He was still able, at his own pace, to mow his lawns and do general household chores, as described in paragraphs 35 and 36 of his affidavit (Exhibit PX18).

26. The plaintiff’s pathology after the first operation proved to be a benign asbestos related pleural disease. However, in February of 2002 the plaintiff presented to his general practitioner with increased breathlessness and thrombocytopenia, which was being managed at the Liverpool District Hospital by Dr Peter Collett, a consultant respiratory physician. The plaintiff had undergone a series of x-rays between 1997 and 2000 which showed no change in his left lung following surgery. He did report to his general practitioner on 13 December that he had right sided posterior chest pain. There was, as a consequence of x-ray, to be observed a subsegmental collapse with pleural thickening on the left side.

27. He was thereafter referred back to Royal Prince Alfred Hospital to Dr Julian Lee, who then referred the plaintiff again to Dr McCaughan, who arranged a diagnostic thoracotomy of his right sided pleural effusion. He presented to Dr Lee with significant shortness of breath, with a large right pleural effusion and pleural changes to be observed on a CT scan. The low platelet count was a complicating factor which necessitated some post-operative management. It is of some significance to observe that in February 2002 there had been a significant deterioration in the ventilatory function of the plaintiff’s lungs. Exhibits PX4, PX5, PX7, PX8, PX12, PX14, PX15 and PX16 illustrate the extent to which the spirometry results have shown the marked deterioration in the plaintiff’s ventilatory function. This is indicative of significant constrictive disease, the consequence of which is breathlessness.

28. The plaintiff was treated with steroids prior to operation. As a result, his platelet count had risen substantially and the surgery could therefore proceed. The fluid was drained and the procedure undertaken by Dr McCaughan is indicated (Exhibit PX3) in his report of 27 February 2002. Again, Marcain was used on the intercostal nerves which were necessarily cut in the procedure.

29. Initially, following surgery the plaintiff had improved. His condition was confirmed as a benign asbestos related pleural disease, consequent upon post-operative and pathological reports. He developed post-operative complications which did have a detrimental effect on his initial recovery. It is significant that in his report of 2 April 2002, Professor McCaughan was not at all happy that he had sorted out all the issues in relation to the plaintiff’s condition. The plaintiff was, on his evidence and corroborated by the evidence of his wife, more disabled after the second operation than he was as a consequence of the first. His wife stayed home some six weeks to care for him in not a dissimilar way than what was required previously. The nature of the care was required for a considerable period of time, including through the night because of the plaintiff’s regular night sweats and the need for changing of both his own nightwear and the bed clothes.

30. Since the second operation the plaintiff indicates that his breathing has become increasingly worse. He is constantly tired and can no longer perform much physical activity. It seems to me, he is greatly restricted in his general activities. Although he did have, it would appear, some improvement as a consequence of a recent three month holiday which he undertook with his wife, prior to that time he was very severely disabled. He is still greatly restricted and he suffers from episodes of weakness and tiredness. The extent of his present breathlessness disables him in his ordinary and everyday life to a significant extent.

31. The plaintiff’s ability to engage in general activities had diminished to a degree after the first operation, but much more significantly after the second. The plaintiff’s wife indicated that the plaintiff was quite distressed and had suffered from significant emotional distress as a consequence of his inability to engage in general activities. He has lost the ability to interact with his grandchildren in a way that he would desire, and which he has illustrated in the past. There is a distinct level of emotional response to his condition.

32. I thought that Mr Strachan in his evidence did not overstate his circumstances. In a sense he was stoic, but he still suffers grievously, and it is my view that he finds it very hard to take and he does not accept gently his positi

33. He is denied the joy of what otherwise would have been an active and joyful retirement in and around his home, the servicing of his motor vehicles and the endless joy and happiness that he describes his grandchildren have brought him and the deep sense of emotional attachment he has to them. He has looked after and cared for his grandchildren, which is now denied him.

34. Social occasions with family and friends are necessarily curtailed. Any volunteer work that he enjoyed in the past is now something that is not open to him. He is angry and in his own words, he is ‘depressed’ with what has happened to him. He finds it difficult to accept that he has to suffer this condition for the rest of his life.

35. The plaintiff has attended various support and social groups, but he says none of these can change the way he feels or reverse his condition. He has concern for the future, particularly for his wife and family, and he expects his condition to deteriorate. There is a significant part therefore, of the plaintiff’s present suffering which is mental anguish as well as the greater part of his physical suffering, much of which is still to come.

36. The unchallenged medical evidence in this case is summarised by Dr Carr, whose report was tendered by the defendant and is Exhibit DX2 which says:

There can be no doubt that the plaintiff suffers from asbestos related pleural disease. There is diffuse pleural thickening and there is convincing high resolution CT scan evidence of asbestosis.

37. Dr Carr concludes that it is reasonable to accept that there is asbestos related pleural thickening, subpulmonary bands and parenchymal fibrosis, which is as he describes it, asbestosis.

38. The plaintiff has honeycomb cysts on his lungs, and widespread areas of coarse shadowing are to be observed throughout both lower lobes in the pattern of scarring. The radiological picture shows that the plaintiff is a man who has very significant lung disease, which explains the symptoms and disabilities of which he complains. The low blood platelet counts, which the plaintiff also suffers, add to the nature of his condition and its consequences. The extent of his lung function disability illustrates the radiological picture and accounts for his severe breathlessness.

39. Bearing in mind the fact that the plaintiff will suffer for a considerable number of years I assess general damages in the sum of $125,000 and I allow 2 per cent interest on a third for the past.

PAST CARE

40. I now turn to care for the past. As I indicated, after the first operation for six weeks the plaintiff was significantly disabled and required live-in care, which was provided by his wife. In calculating that sum I have been provided with figures which relate to a daily rate and an hourly rate, and in respect of each, the results as provided by the plaintiff are almost the same. I think an appropriate allowance in regard to the six week period is $8,000 and the plaintiff is to be awarded that sum accordingly.

41. In regard to the post-operative period for six weeks in February 2002, again the rates provided as described in Exhibit PX20 for live-in care, which in my view the plaintiff required during this period, either on an hourly rate per day or on a daily rate, amount in my view to a reasonable sum of $11,000, and this sum should be awarded.

42. Between March 2002 and June 2003 the evidence, as described in paragraphs 35 and 37 of the plaintiff’s affidavit which is Exhibit PX18, describes the extent to which the plaintiff is now no longer able to engage in physical activities in and about the home. It also describes the amount of time which is necessary to be spent by the plaintiff’s wife in order to provide for his care. I think the allowance by the plaintiff of 7 hours per week for this period is appropriate. Given the rates as found in Exhibit PX20 and in Exhibit DX1, the appropriate sum to award is $12,000.

43. In respect to lawnmowing and the attention to the plaintiff’s motor vehicle for the future, it seems to me the nature of the requirement for lawnmowing and the attention to the motor vehicles, given the stage of life that the plaintiff has reached and the contingencies that are to be considered at his time of life, an appropriate sum to be awarded in respect of lawnmowing is $2,500. In respect of motor vehicles $4,500 is to be awarded.

44. In regard to his future care there is a sum of $211 provided for a life expectancy of 15 years, and the sum claimed is $133,415 as rounded. As has constantly been said and as has been illustrated in this judgment, the measure of damages or the principle in regard to the measure of damages, is that so far as possible the Tribunal should endeavour to restore the plaintiff to a position in which he would have found himself but for the defendant’s wrongful act.

45. However, as described by Mustill J in Thomson v Smith's Ship Repairers (North Shields) Ltd [1984] 1 QB 405 at 437:

The impracticability of giving full effect to this principle is to be recognised at every stage of the process. Quantification for personal injury involves the use of conventional measures the adoption of which makes nonsense of any attempts at mathematical accuracy. In a field where the subject is matter is people not contracts, bank balances and abstract rights the recognition that certain results are unacceptable in human terms must rightly lead to alternative solutions which cannot be easily rationalised. Complete logical rigour cannot be obtained.

46. Moreover, I think, as Dixon J indicated in Pamment v Pawelski (1949) 79 CLR 406 at 401 and 411:

The standards which generally prevail and a reasonable conception of what is adequate of the occasion is necessary.

47. In damages assessed according to the common law no sums are fixed to measure compensation for loss. This does not mean that a judge is left to his own intuitions as to the level of what is fair compensation, the concept of fairness involves two things, that the award would be in proper proportion and that the losses are compensated by the awards. In other words there are principles of proportionality and equality which to an extent are to be adopted in the law of damages. [See Kirby P as he then was, in Sullivan v Micallef (1994) Aust Torts Reports ¶81-308]

48. As I have indicated in respect to the lawnmowing and the amount awarded for the attention to motor vehicles in the future, various contingencies must be taken into account given the nature of the plaintiff’s condition. In particular, the progression of the radiology in more recent times by high resolution CT scanning and the particular time of the plaintiff’s life. It would seem to me to be unrealistic to award the amount claimed. I think an appropriate sum in relation to future care is the sum of $90,000 and the plaintiff should be awarded that sum accordingly.

SUMMARY OF AMOUNTS TO BE AWARDED

49. General damages $125,000

Interest on a third of general damages at 2 per cent for annum for

six years $5,000

Past care - September 1997 $8,000

Interest in respect of past care at 10 per cent for six years $4,800

February 2002 $11,000

Interest at 10 per cent for past care for 1.5 years $1,650

Past care in respect of March 2002 to June 2003 $12,000

Interest at 10 per cent $1,200

Future care, lawnmowing and motor vehicles $7,000

Future care $90,000

Total $265,650

50. There will be verdict for provisional damages under s 11A of the Dust Diseases Tribunal Act 1989 and judgment accordingly.

51. The plaintiff’s right to recover damages in the future for other associated conditions is reserved.

52. I order the defendant to pay the plaintiff’s costs.