Thompson v CSR Ltd

[2003] NSWDDT 7

Dust Diseases Tribunal

of New South Wales

CITATION:	Thompson v CSR Ltd and Anor [2003] NSWDDT 7
PARTIES:	John Leonard Thompson CSR Ltd Midalco Pty Ltd
MATTER NUMBER(S):	399 of 2002
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:- Dust diseases mesothelioma liability admitted assessment of damages fear of contracting asbestos disease before mesothelioma developed claim for damages for fear no recognisable psychiatric illness damages for fear refused. Dust diseases South Australian tort claim for services provided to others not available in South Australia available in New South Wales conflict between South Australian and New South Wales law Dust Diseases Tribunal required to apply New South Wales law damages for services for others awarded.
LEGISLATION CITED:
CASES CITED:	CSR Ltd & Anor v Young (1998) 16 NSWCR 56; Tame v New South Wales heard with Annetts and Anor v Australian Stations Pty Ltd 2002 HCA 35, (2002) 24 NSWCCR 385, (2002) 76 ALJR 1348; Norfolk and Western Railway Company v Ayres and Ors (unreported) [2003] Supreme Court of United States; Avenhouse and Anor v Hornsby Shire Council (1998) 44 NSWLR 1; Napolitano v CSR Ltd and Anor (WASC, Seaman J, 30 August 1994, unreported, BC 940 1896); Fletcher v The Commissioners of Public Works in Ireland, (Supreme Court of Ireland) (unreported, 21 February 2003); White v The Chief Constable of South Yorkshire & Ors [1999] 2 AC 455; State of NSW v Seedsman [2000] NSWCA 119; Griffiths v Kerkemeyer [1977] 139 CLR 161; Sullivan v Gordon [1999] 47 NSWLR 319; Weinert v Schmidt [2002] SASC 340; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Kable v Director of Public Prosecution [1996] 189 CLR 51; Lipohar v The Queen (1999) 200 CLR 485
DATES OF HEARING:	21 March 2003 & 4 April 2003
EX TEMPORE JUDGMENT DATE :	04/04/2003
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr M J Joseph, SC instructed by Alex Stuart and Associates. FOR DEFENDANT: Ms C A Goodman instructed by Windeyer Dibbs

JUDGMENT:

1. This is a claim for damages by John Leonard Thompson against CSR Ltd and Midalco Pty Ltd. The plaintiff has contracted mesothelioma and liability to pay damages has been admitted by the defendants. The plaintiff had been employed in a factory owned and operated by the second defendant and was there exposed to asbestos. For reasons given in CSR Ltd & Anor v Young (1998) 16 NSWCR 56 each defendant is jointly liable to pay damages. My task therefore is to assess those damages.

Damages claimed for fear

2. In his claim for general damages the plaintiff seeks a component for the fear, which developed in the late 1980s, that he would contract mesothelioma or another asbestos related disease.

3. In the course of his employment by the second defendant the plaintiff was regularly exposed to high concentrations of asbestos. He had both a friend and an uncle who died of asbestos disease. Following their deaths, and because he considered his exposure to asbestos to be at a level greater than theirs, he had a fear of contracting mesothelioma or another asbestos related disease. It is relevant to observe that the first symptoms of mesothelioma presented in June 2002 and that disease was diagnosed in August 2002. The onset of his fear ante-dated the contraction of mesothelioma by something in the order of 14 years.

4. He was married in 1988 and thereafter expressed his fear to his wife. He consulted Dr Goh, whom he said was a psychiatrist, because of the fear. Dr Goh, according to the plaintiff’s evidence, treated him for anxiety and depression and prescribed Prothiaden. I have not been favoured with a report or oral evidence from Dr Goh, and there is no evidence sufficient to establish that the plaintiff, at any stage, has suffered a recognisable psychiatric illness. The evidence does, however, satisfy me, indeed it is not disputed, that after the late 1980s the plaintiff did have a fear of developing an asbestos related disease.

5. It should also be noted that I accept that the plaintiff was genuine in his fear. It is not surprising that anyone employed in the circumstances in which the plaintiff was employed, and having, as he did, both a relative and a friend contract fatal asbestos diseases, should be so affected. Neither could it be said that such consequences were not foreseeable by the defendants, a significant part of whose enterprise, in respect of the first defendant and wholly in respect of the second defendant, was the mining of asbestos and the production of asbestos products, and had been so for many years.

6. In Tame v New South Wales, heard with Annetts and Anor v Australian Stations Pty Ltd 2002 HCA 35, (2002) 24 NSWCCR 385, (2002) 76 ALJR 1348 Gummow and Kirby JJ at [172] referred to Consolidated Rail Corporation v Gottshall (1994) 512 US 532 at 544 in which it was observed that:

Nearly all of the [United] States have recognised a right to recover for negligent infliction of emotional distress” which is “mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury, but that may manifest itself in physical symptoms.

7. In Tame, Gummow and Kirby JJ referred to the United States line of authority which permitted recovery for mental distress to plaintiffs who were personally within the “zone of physical danger”. At [220] they said the zone of danger test:

... limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct and who are placed in immediate risk of physical harm by that conduct.

8. In support of the plaintiff’s argument that he receive compensation for the fear of contracting an asbestos disease, Mr Joseph SC cited the decision of the Supreme Court of the United States in Norfolk and Western Railway Company v Ayres and Ors, so far unreported, but delivered on 10 March 2003. There the Supreme Court of the United States was considering an appeal by a number of employees of the Norfolk and Western Railway Company who had been exposed to asbestos in the course of their employment. The case also considered the application of certain provisions of the Federal Employers Liability Act (FELA). In discussing the entitlement to damages for fear or emotional distress caused by the prospect of contracting an asbestos disease the Court considered the position of plaintiffs in “the zone of danger”. This test was used to delineate the proper scope of an employer’s duty under the FELA to avoid subjecting employees to negligently inflicted emotional injury. Ginsburg J said:

That test confines recovery for stand-alone emotional distress claims to plaintiffs who: (1) “Sustain a physical impact as a result of a defendant’s negligent conduct”; or (2) “are placed in immediate risk of physical harm by that conduct” - that is, those who escaped instant physical harm, but were “within the zone of danger of physical impact”.

Referring to earlier decisions, including Gottshall, Ginsburg J said that they described two categories:

Stand-alone emotional distress claims not provoked by any physical injury, for which recovery is sharply circumscribed by the zone-of-danger test; and emotional distress claims brought on by a physical injury, for which pain and suffering recovery is permitted.
Later she said:
Unlike stand-alone claims for negligently inflicted emotional distress, claims for pain and suffering associated with, or “parasitic” on, a physical injury are traditionally compensable.

She proceeded to observe that the second Restatement of Torts expressed the general rule:

If the actor’s negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for “(a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it …”.

A plaintiff suffering bodily harm need not allege physical manifestations of her mental anguish.

The plaintiff must of course present evidence that she has suffered, but otherwise her emotional distress claims, in whatever form, are fully recoverable.

Ginsburg J further cited the Restatement:

Once found liable for “any bodily harm,” a negligent actor is answerable in damages for emotional disturbance “resulting from the bodily harm or from the conduct which causes it ” .

9. The ultimate approach taken by the Supreme Court of the United States appears in the following words, also taken from the opinion of Ginsburg J:

We rule, specifically and only, on the question whether this case should be aligned with those in which fear of future injury stems from a current injury, or with those presenting a stand-alone claim for negligent infliction of emotional distress. We hold that the former categorization is the proper one under the FELA.

10. I am asked to follow the decisions of the United States Supreme Court and award damages for fear, but do those decisions go as far as the plaintiff argues?

11. Mr Joseph submits that damages for fear are akin to what have described as “parasitic”. In Avenhouse and Anor v Hornsby Shire Council (1998) 44 NSWLR 1, where there was a claim for pecuniary and non pecuniary loss (ie vexation) Sheller JA said that the claim for non pecuniary loss, though connected, was secondary. At 38E he said:

... such damages have been called “parasitic”, a word which so used, while graphic, may be misleading.

12. Mr Joseph referred to Napolitano v CSR Ltd and Anor (WASC, Seaman J, 30 August 1994, unreported, BC 940 1896). In that case the plaintiff, who had been exposed to asbestos, suffered a psychiatric illness caused by anxiety that he would develop an asbestos disease. The psychiatric illness occurred years before he developed mesothelioma. Seaman J (at 20) found:

… that the depressive illness was induced by the perception of the plaintiff of the distressing phenomena of asbestos-induced illness in his fellow Wittenoom workers who were his friends ...

13. Speaking of Napolitano, in his text Assessment of Damages for Personal Injury and Death (4th edition, 2002 at 182 n. 217), Professor Luntz remarked on the finding that psychiatric illness was of a different kind from lung disease, but psychiatric illness was foreseeable and sounded in damages. Professor Luntz observed:

... one explanation of this case is that the damages for the fear-induced psychiatric illness were parasitic on the mesothelioma that he did subsequently develop.

14. A different approach has been taken in the Republic of Ireland and in England.

15. In Fletcher v The Commissioners of Public Works in Ireland a decision of the Supreme Court of Ireland (unreported, 21 February 2003) the judges considered a case in which the defendants were an employer who, as a consequence, owed a duty of care to their employee. The question was, however, whether there was a duty of care to avoid psychiatric injury in the absence of physical harm. Their Lordships considered a number of the American cases, and also English and Australian cases, but ruled against the entitlement to damages for the fear of contracting an asbestos disease in a plaintiff exposed to asbestos. They held that, in the absence of an asbestos related disease, damages were not available. In that case their Lordships ruled against a plaintiff who, though he had a reactive anxiety disorder, had no asbestos related disease.

16. In White v The Chief Constable of South Yorkshire & Ors [1999] 2 AC 455 a number of police officers brought claims for psychiatric injury suffered as a result of tending victims of the overcrowding and crushing of spectators at a football match, many of whom died. The Chief Constable was responsible for policing at the football match. The House of Lords held that even though the Chief Constable owed police officers under his command a duty analogous to an employer’s duty to care for his employees and to protect them from unreasonable harm, that duty did not extend to protecting them from psychiatric injury when there was no breach of the duty to protect them from physical injury.

17. The High Court of Australia in Tame was of the view that in the circumstances of that case the State of New South Wales owed no duty of care to the plaintiff, notwithstanding that she suffered a diagnosed psychiatric illness. In Annetts the Court held that the parents of a youth who died whilst engaged as a jackeroo in a remote part of Western Australia were entitled to damages for psychiatric injury, if there were one established at trial, it being determined that the defendant owed the parents a duty of care.

18. The plaintiff stresses that nervous shock is not a pre-requisite to recovery. Mr Joseph submits that because Australian courts have not followed the Irish or English courts the plaintiff should be awarded damages for fear. He relies upon the decision of the Court of Appeal Division of the Supreme Court of New South Wales in State of NSW v Seedsman [2000] NSWCA 119 in which Mason P at [155] acknowledged the variance between the Australian and English law.

19. A number of cases are said by the plaintiff to affirm his entitlement to damages for fear. In Avenhouse Sheller JA said at 38E:

The commission of the tort primarily affected Mr and Mrs Avenhouse’s economic interest in developing their land, said to give rise to damages for pecuniary loss, particularised as wasted expenses and loss of profits. The claim for damages for non-pecuniary loss, vexation, though connected, was secondary...In Lynch v Knight (1861) 9 HLC 577 at 598; 11 ER 854 at 863. Lord Wensleydale said:
“Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested.”

In Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 359-360, Mason CJ said:
“... in some circumstances at least, a plaintiff can recover damages for injury to his or her feelings caused by tortious conduct; assault, false imprisonment, malicious prosecution and defamation are causes of action in which a plaintiff may recover damages on that score. This is not surprising.”
Sheller JA in Avenhouse also said, at 39A:
Damages for such non-pecuniary loss, irrecoverable if claimed alone, may be added if the plaintiff has suffered and the defendant is liable for pecuniary loss.

20. Relying on these cases, the plaintiff submits he is entitled in his general damages to a component for the fear of developing an asbestos disease before he did so, because the fear resulted from the negligent conduct of the defendant. He submits that this Court is not concerned with whether a duty of care existed, because its existence has been admitted. He submits that the various authorities might be distinguished from the decisions of the Supreme Court of Ireland in Fletcher and the House of Lords in White on the basis that there there was no evidence of injury other than psychiatric injury. It is the case that the Irish and English cases do not reflect the law in Australia.

21. With all respect to the arguments of Senior Counsel for the plaintiff I do not believe that the cases referred to support an entitlement to damages for the fear of contracting an asbestos disease. Where damages are claimed for non-organic consequences of a tort it is important to distinguish between cases of negligence in which a plaintiff seeks an award for personal injury from cases in which another tort produced such consequences. In cases of defamation, false imprisonment and intentional torts, damages are recoverable for hurt feelings, or feelings of outrage or vexation. At [44] in Tame Gaudron J expressed agreement with Gummow and Kirby JJ, that damages are recoverable in negligence only for a recognisable psychiatric injury. They are not recoverable for emotional distress.

22. It is only when, as a consequence of exposure to asbestos, a plaintiff without physical disease develops a psychiatric disorder, such as clinical depression or a diagnosed anxiety state, that he or she would be entitled to damages. Similarly, only if a plaintiff develops some physical disorder or abnormality as a result of asbestos exposure and subsequently develops an anxiety state or a depressive condition at the prospect of developing carcinoma or mesothelioma would there be an entitlement to damages for a non-organic response. It sometimes happens that a person with pleural plaques or asbestosis develops a morbid fear and a consequent psychiatric reaction that bronchogenic carcinoma or mesothelioma will develop. Such a plaintiff is entitled to damages for the fear or reaction if and not before a recognisable psychiatric condition develops.

23. I am not satisfied that here the plaintiff is entitled to a component in his general damages for the fear of developing an asbestos related disease. It should be emphasised that I am not satisfied that the plaintiff did have a diagnosed psychiatric illness from 1988. The situation may well have been different had there been evidence from Dr Goh confirming a discrete psychiatric disorder. I do accept that he had a fear of developing an asbestos related disease. It might be noted that that the plaintiff has not developed any psychiatric disorder since the diagnosis of mesothelioma.

24. I have been requested by counsel to express a view on the allowance which should be made, in the event that I am wrong in declining to award damages for the fear of developing mesothelioma or an asbestos related disease. Only because of that request do I say that the plaintiff’s fear of developing such a disease would otherwise be assessed at $10,000.

General damages

25. Mesothelioma is a dreadful and horrible disease characterised by exquisite and intractable pain. Its effect and progress have been referred to in many cases. The plaintiff seeks an award of general damages in the sum of $180,000. The defendant concedes an entitlement to $165,000.

26. The plaintiff first began to experience symptoms of mesothelioma in June 2002. The diagnosis of malignant mesothelioma was made in August 2002. It has been agreed between the parties that the presumed date of death may be taken to be 13 February 2004. It will be apparent immediately that the plaintiff’s life expectancy is greater than the median life expectancy of those who suffer mesothelioma. Death usually occurs within 12 months of first symptoms or diagnosis. It seems that the plaintiff has an epithelioid mesothelioma which has a slightly better prognosis than sarcomatous mesothelioma. He has also undergone a number of sessions of chemotherapy. Chemotherapy is not a usual, though certainly it is not an uncommon treatment for patients with mesothelioma. The plaintiff is not experiencing and has not yet experienced severe pain as a result of his mesothelioma. He has a sensation in his chest which might be likened to the presence of a foreign body. His most significant present complaint is breathlessness. Experience, however, confirms that all sufferers of mesothelioma will at some time experience excruciating and intractable pain. The plaintiff has not yet arrived at that stage, but it is inevitable that he will.

27. I think a sum appropriate to compensate the plaintiff for the pain and suffering he will yet endure and has endured, which includes also the consequences of unpleasant reaction to sessions of chemotherapy, is $165,000. Of this sum one quarter should be allocated to the past. On this interest is agreed at $4,125.

Loss of life expectancy

28. According to the Australian life tables an Australian male of the plaintiff’s age has a life expectancy of 21 years. It has been agreed that an appropriate sum to compensate the plaintiff for loss of life expectancy is $20,000.

Loss of earning capacity

29. On 12 November 1998 the plaintiff was involved in a motor vehicle accident in the course of his employment as a truck driver. He suffered a severe injury to his right wrist, which was arthrodesed. Until March 2002 either he was in receipt of remuneration from employment, or, when not working, he was receiving workers compensation as though totally incapacitated. During the course of surgery to arthrodese his wrist it seems that the plaintiff experienced some trauma to his cervical spine. Since surgery he has been troubled by pain and discomfort and lack of use of his right arm and wrist, and he has developed neck and back pain.

30. His attempts to maintain himself in employment have been commendable though unsuccessful. The inability to maintain himself in the employments he obtained after the motor accident has been occasioned by the consequences of the injury and subsequent treatment. He did, however, hope to obtain employment in which, unlike in other employment he had obtained, he would not be required to impose forces or stresses upon his right arm or his spine. He was hopeful of obtaining employment as a yardman at the premises of a former employer, which essentially was clerical and supervisory in nature. However, that position was to become available only when the incumbent of the office retired at the age of 70. Before that event occurred the plaintiff had contracted mesothelioma.

31. It is difficult to predict what the future may have held for the plaintiff had he not contracted mesothelioma. Severe limitations were placed upon his capacity to work by reason of the motor vehicle injury of November 1998. The plaintiff variously expressed an intention of working for a further five or 10 years or until the age of 65 or 70. His entitlement to compensation for economic loss is, to a significant degree, affected by the motor vehicle injury and its consequences. It is impossible to make an arithmetic calculation by reason of the absence of data upon which it might be made. I am required in these circumstances “to do the best” I can. Doing my best to do justice between the parties I think it appropriate to allow a sum of $20,000 for loss of earning capacity.

Griffiths v Kerkemeyer expenses

32. There has been an agreement in respect of Griffiths v Kerkemeyer expenses both past and future and also past and future out of pocket expenses.

33. Past Griffiths v Kerkemeyer expenses are agreed at $21,828 upon which interest of $945 is payable. Future Griffiths v Kerkemeyer expenses to 14 January 2004 being a date one month before the presumed date of death have been agreed at $37,312 and for the next month at $12,500.

Out of pocket expenses

34. Future out of pocket expenses are agreed at $7,500 and past out of pocket expenses are agreed at $11,209.49.

Sullivan v Gordon damages

35. The plaintiff makes a claim for damages assessed in accordance with the principles enunciated by the Court of Appeal in Sullivan v Gordon [1999] 47 NSWLR 319.

36. If it is not apparent from what has earlier been said, the negligence in respect of which the plaintiff sues occurred wholly within the State of South Australia. In Weinert v Schmidt [2002] SASC 340 the Full Court of the Supreme Court of South Australia determined that damages for the inability to provide services to others are not available in South Australia. Notwithstanding that decision, the plaintiff submits that I am obliged by New South Wales authority to award such damages. Though not conceding an entitlement to damages the defendant has agreed that if the plaintiff were entitled to such damages then the sum of $165,480 would be appropriate.

37. Before John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 was decided by the High Court of Australia it had been recognised that there is a common law of Australia as opposed to a common law of individual states. Pfeiffer affirmed the existence of one common law for Australia. In Kable v Director of Public Prosecution [1996] 189 CLR 51 McHugh J said at 112:

Unlike the United States of America where there is a common law for each State, Australia has a unified common law which applies in each State but is not itself the creature of any State. Perhaps the validity of that proposition is not as readily apparent to a State judge bound by the authority of his or her own Full Court or Court of Appeal as it is to a judge of a federal court who must apply the common law.

38. The derivation and unity of the Australian common law were referred to in Lipohar v The Queen (1999) 200 CLR 485. Gaudron, Gummow and Hayne JJ said at 505 [44]:

The common law has its source in the reasons for decisions of the courts which are reasons arrived at according to well recognised and long established judicial methods. It is a body of law created and defined by the courts. Whatever may once have been the case in England the doctrine of precedent is now central to any understanding of the common law in Australia. To assert that there is more than one common law in Australia or that there is a common law of individual States is to ignore the central place which precedent has in both understanding the common law and explaining its basis.

39. Thus, the common law which I am bound to apply derives from decisions of the hierarchy of which this Court is a member. Its hierarchical superiors are the Court of Appeal Division of the Supreme Court of New South Wales and the High Court of Australia. The Full Court of the Supreme Court of South Australia is not a member of this hierarchism. In Lipohar, with a prescience that was not unexpected the three justices of the High Court added at 505 [45]:

Different intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions of common law. This disagreement will indicate that not all of these courts will have correctly applied or declared the common law. But it does not follow that there are as many bodies of common law as there are intermediate courts of appeal. The situation which arises is not materially different to that which arises where trial judges in different courts or within the same court reach different conclusions on the same point of law.
At 507 [50] they said:
As indicated above, from time to time there will be decisions made by courts of record which will bind courts lower in the relevant curial hierarchy but which are not decisions made by this Court as the final appellate court for Australia. Because that is so, it is tempting, as McHugh J pointed out in Kable, for a state judge bound by the authority of his or her own Full Court or Court of Appeal to conclude that the common law for the State is fixed by that appellate decision. And inevitably there will be times when intermediate appellate courts do not speak with one voice on particular questions. It by no means follows, however, that a common law rule enunciated by the appellate courts of that State is a rule which is or should remain peculiar to that State. This Court is the final appellate court for the nation. When an appeal is dealt with in this Court, and its reasons are published, those reasons will form part of the common law of Australia and will bind all courts in the country.

40. The difference of opinion between the Full Court of the Supreme Court of South Australia and the Court of Appeal of New South Wales is not one that is open to me to resolve. I accord full respect to the decisions of each Court. I am bound by the decisions of the Court of Appeal of New South Wales and, where there is a difference between these courts I am required to follow the decision of the Court of Appeal of New South Wales. I am bound to apply the decision in Sullivan v Gordon.

41. Accordingly, the plaintiff should be allowed the sum of $165,480. If he is to be deprived of that entitlement, it seems to me that unless either the Court of Appeal changes its mind or determines that I am wrong, or unless it does both, that deprivation must occur by order of the High Court of Australia.

42. Thus the plaintiff is entitled to damages made up as follows:

General damages $165,000.00
Interest on past general damages $4,125.00
Loss of life expectancy $20,000.00
Loss of earning capacity $20,000.00
Past Griffiths v Kerkemeyer expenses $21,828.00
Interest on past Griffiths v Kerkemeyer expenses $945.00
Future Griffiths v Kerkemeyer expenses to
14 January 2004 $37,312.00
Future Griffiths v Kerkemeyer expenses from
15 January 2004 to 13 February 2004 $12,500.00
Past out of pocket expenses $11,209.49
Future out of pocket expenses other than
those already allowed under other heads $7,500.00
Sullivan v Gordon damages $165,480.00
Making a total of $465,889.49

43. There will be verdict and judgment for the plaintiff in the sum of $465,899.49. The defendants will pay the plaintiff’s costs as agreed or assessed.

44. As to $165,480 I grant a stay conditionally upon the defendant’s filing, within 28 days, a Notice of Appeal and applying for expedition of the appeal.

Mr M J Joseph, SC instructed by Alex Stuart and Associates appeared for the plaintiff

Ms C A Goodman instructed by Windeyer Dibbs appeared for the defendant