Tromp v Amaca Pty Limited
[2008] NSWDDT 10
•22 April 2008
Dust Diseases Tribunal
of New South Wales
CITATION: Tromp v Amaca Pty Limited [2008] NSWDDT 10 PARTIES: Johannes T Tromp
Amaca Pty LimitedMATTER NUMBER(S): 7224 of 2007 JUDGMENT OF: Kearns J CATCHWORDS: DUST DISEASES TRIBUNAL :- mesothelioma; plaintiff 74 years old at time of onset of symptoms; onset of symptoms mid-2006; three hospitalisations with aspirations of fluid and other procedures; chemotherapy with reasonable response; otherwise low level of symptoms to date and likely so for next 12 months; life expectancy a further 18 months approximately; plaintiff's condition will deteriorate; inceasing need for care with last three months likely to require 24 hour care; general damages $220,000; plaintiff a sole trader working exclusively for one person at time of illness; whether plaintiff had retired for reasons unrelated to his illness; found not to have done so and likely to have worked until 80 years of age; plaintiff awarded damages for loss of earning capacity, both past and future. DATES OF HEARING: 06.02.2008, 07.02.2008, 18.03.2008, 19.03.2008, 22.04.2008
DATE OF JUDGMENT:
22 April 2008LEGAL REPRESENTATIVES: Mr P Semmler QC, instructed by Turner Freeman, appeared for the plaintiff
Mr J Sheller, instructed by Ellison Tillyard Callanan, appeared for the defendant
JUDGMENT:
JUDGMENT
KEARNS J
Outline
1. The plaintiff has mesothelioma. He contracted it from exposure to asbestos product that was manufactured and distributed by James Hardie & Coy Pty Limited (Hardie). The defendant has assumed the liabilities of Hardie. Assessment of damages is the only issue in this matter. In determining damages under different heads, I have essentially followed the heads of claim in the plaintiff’s schedule of damages.
2. I consider the plaintiff to be a reliable witness. He was calm and considered in the extensive cross examination. I thought he tended to understate his symptoms. To the extent that there are aspects of the plaintiff’s evidence that I do not accept, I shall indicate that in the course of these reasons.
Non-economic loss
3. The plaintiff was born on 24 September 1931 in Holland. He finished school at the age of 14 or 15 at the equivalent of extended primary school level. He arrived in Australia on 20 November 1954. On 15 April 1961, the plaintiff married. He and his wife have three children, five grandchildren and one great grandchild.
4. The plaintiff had quite an extensive employment history from leaving school until about 1970.
5. From about 1970, the plaintiff worked as a sole trader, in the name of John Tromp, doing carpentry for private clients and on a subcontract basis for builders.
6. In June 1976, the plaintiff acquired his builder’s licence. He last renewed it in September 2006.
7. From about 1978, the plaintiff did jobs for Mr Robert McMillan and work for other clients. Mr McMillan operated a number of companies, but it is convenient simply to refer to Mr McMillan, though the plaintiff might have done work for one or other of Mr McMillan’s companies. From about the early 1990s, Mr McMillan became the plaintiff’s main client and for many years before 2006, his work was exclusively for Mr McMillan. In the early period of his work for Mr McMillan, the plaintiff carried out construction and installation work on Mr McMillan’s commercial premises. In later years, he carried out construction work at Mr McMillan’s residence at West Pennant Hills and supervised building work on Mr McMillan’s commercial premises. Over the last six years, the plaintiff did no work “on the tools at all”. His job was to coordinate and supervise work carried out by tradespeople and to liaise with architects, engineers and council officers.
8. Mr McMillan operated a printing business. Initially, it was at Derby Street, Silverwater. He sold that and then bought at Euston Street, Rydalmere. The plaintiff did a lot of modification work to the Rydalmere building over many years. Mr McMillan then bought in Carter Street, Lidcombe. The plaintiff built the production offices and large concrete printing press pads and installed new electrical and air conditioning systems. He also organised other trades. As time went by, he simply organised trades and supervised the work. Sometimes, Mr McMillan organised the trades. Whatever the position, the plaintiff did the supervision. He was Mr McMillan’s right-hand-man. At Mr McMillan’s private dwelling, the plaintiff built a garage with a loft. He built a gazebo. He did a ceiling renovation, constructing two bedrooms and a bathroom. He built a conservatory. He built a cabana pool house. The home is worth about $15 million and is a substantial place that is heritage listed.
9. Between 2001 and 2006, the plaintiff’s main jobs for Mr McMillan included:
(a) work involving major refurbishment of the premises at Lidcombe;
(b) extensive work involving building, flooring, shelving, partitioning, pallet racking at premises Mr McMillan had bought at Ferndell Street, Granville. This was the old Rothmans factory. The building on the site is extremely large and comprises about 32,000 square metres;
(c) Mr McMillan’s printing work included the printing of HSC examination papers and election ballot papers and the plaintiff built security areas within the factory at Granville for ensuring security in relation to these papers.
10. The McMillan Printing Group was a family company. It operated a very large printing business. In 2006, the construction work that the plaintiff was doing for Mr McMillan “slowed down dramatically”. The Granville business was disposed of in about June 2007. In Sydney, Mr McMillan now operates real estate and investments.
11. Mr McMillan’s real estate and investments include:
- the Granville site which is now leased and the lessee runs a printing business on that site;
- operational plant of the business that was sold at Granville;
- buildings in Canberra and Brisbane;
- six properties in Sydney including Bay Street, Double Bay, West Pennant Hills and 6 acres on Castle Hill Road, Castle Hill.
12. The work that needed to be done on the Granville site before the business was sold included:
- upkeep and maintenance of the large building;
- air conditioning in that building;
- all the electricals;
- the printing operation.
It was a matter of continual maintenance. The property is worth about $40 million.
13. After the business was sold, there was still maintenance work to be undertaken, but some of the maintenance fell to the tenant occupying the premises. An undated lease (DX1) between Mr McMillan’s company and the lessee contains clauses setting out landlord’s and tenant’s obligations. Many obligations for repair and maintenance fell on the tenant, for example, clause 13.1(a). Other obligations fell on the landlord, for example, clause 13.1(b) and 13.4.
14. The six properties in Sydney need regular maintenance. The property on Castle Hill Road is ready for development.
15. The plaintiff was in charge of a team of people working full time on maintenance and construction. He was on call 24 hours a day.
16. An ordinary working day commenced with the plaintiff going to Mr McMillan’s home. There would be a work programme for the day. There would be a daily meeting at 7.00am. The plaintiff would report on progress of current works and future projects would be discussed.
17. In June / July 2005, Mr McMillan was feeling very ill, but was functioning. He was meeting less with the plaintiff. On 18 December 2005, he had a liver transplant. On 31 December 2005, he came home from hospital. He was then isolated for four months from everybody except family and doctors. He had a full time nurse at home over that time. About June 2006, he returned to work, but was struggling and he decided to sell his business. It was sold in about June 2007.
18. Between February and June 2005, the plaintiff’s elder daughter, Sharon, did a roof conversion on her house at Paddington. The plaintiff worked with her draftsman in drawing plans. He also liaised with council officers and supervised the construction phase. This involved him going to the site for a couple of hours every few days. He also attended the site if there were problems. The work extended over a period of four to five months. During this time, the plaintiff maintained his full time work with Mr McMillan.
19. In 2006, the plaintiff’s second daughter, Maryann, undertook extensions to her home. The plaintiff was involved in planning and liaising with the council. He supervised the work and did problem solving. The construction phase ran from February 2006 to September 2006.
20. The plaintiff went overseas in 2006. Before he went overseas, he had demolished the rear balcony of his house. He had intended to rebuild it on his return. He had bought new beams for this purpose. He has been unable to do the rebuilding.
21. I consider Mr McMillan to be a reliable and trustworthy witness. The effect of his evidence is that, had the plaintiff wanted work and been able to do it then from the time of his return to Australia, there would have been plenty of work available for him and that would still be the case and most likely would continue to be the case until the plaintiff turns 80 years of age. There would be more work for him than there was before (T.36.38), though there would not be more hours (T.38.47). The plaintiff could have kept going for as long as he wanted as far as Mr McMillan was concerned.
22. The work would involve properties at West Pennant Hills, Double Bay (which is a little property worth $4 million), Castle Hill and Granville.
23. Mr McMillan was always buying properties that needed renovation (T.37.16). He has properties at Granville, Double Bay, Castle Hill, West Pennant Hills, Glenhaven, Concord and the CBD (T.37.35).
24. The plaintiff would invoice Mr McMillan for work he did for him. His income had two sources. One source was an hourly rate for the maintenance work he did. The other source was a ten percent fee he charged to Mr McMillan as a mark-up when contracting with sub-contractors.
25. For the financial year ended 30 June 2006, the plaintiff earned less than he had before. Reasons for this included that Mr McMillan underwent a liver transplant, that he had been waiting some time for it, that he had fewer meetings with the plaintiff before the transplant, that he was isolated for four months after it (T36.17) and that the plaintiff was overseas from 18 May 2006. Another reason is that the ten percent mark-up was not available to the plaintiff for work on Mr McMillan’s home as the contractor insisted on dealing directly with Mr McMillan. That loss to the plaintiff was said to be about $50,000. The plaintiff was doing less work for Mr McMillan when he was recuperating from his liver transplant because Mr McMillan was not available to handle work.
26. There was no suggestion so far as Mr McMillan was concerned that the plaintiff was going to retire (T.36.04).
27. Mr McMillan gave some apparently inconsistent evidence. In his affidavit, he stated that when the plaintiff went on holidays, he appeared to be unwell and appeared to be slowing down (Exhibit PX 3, paragraph 19). In his evidence, he stated that the plaintiff was then fit and active (T.37.28). Mr McMillan was asked to explain these two pieces of evidence. He said he did not appear to be that well, that he had a feeling that there was something wrong, but the plaintiff, in effect, would not let on that he was unwell (T.124.10). My view is that there was probably some slowing down in the plaintiff at that time. Some medical histories shortly after the plaintiff’s return to Australia from his overseas trip support that there was some slowing down or other symptoms in the early part of his overseas trip or shortly before he left (Exhibits DX 6C; PX 12A, page 3, 2.8; DX 3, page 8).
28. The plaintiff had been diagnosed with prostate cancer in December 2003. He underwent radical surgery in January 2004, followed by radiation therapy. He had about three weeks off work as a result. There have been no complications to date from that illness.
29. The plaintiff was a chorister. He was a member of a number of choirs. In addition to performing with various choirs, the plaintiff performed as a soloist and in duets with his wife. One choir he was a member of was the Beethoven Choir. The plaintiff and his wife left for a trip to Europe in May 2006 with the Beethoven Choir. Prior to leaving on that trip, the plaintiff attended rehearsals for that choir in Sydney and also sung at charity functions in the Sydney metropolitan area. He became ill on that trip. He continues with some participation in the Beethoven Choir, taking rest breaks if necessary and that is with some frequency.
30. Since the plaintiff’s return from Europe in July 2006, he has not done any work of any significance.
31. On return from holidays, Mr McMillan says that the plaintiff saw him and told him he was very sick and that he had a problem with his lung and that he didn’t think he could return to work (Exhibit PX 3, paragraph 21). Mr McMillan told him to recover and then return to work.
32. To the extent that the plaintiff denies telling Mr McMillan that he could not return to work (T.25, 109), that must be understood in the context of a return to work at any time. Plainly, the plaintiff was unfit to return to work on his return to Australia and I do not understand him to be denying that he told Mr McMillan that he was unfit to return to work at that time (T.25.38). The plaintiff was, in effect, telling Mr McMillan that he was unfit at the moment, but that he intended to iron out his problems and get back to work.
33. The plaintiff became unavailable to Mr McMillan and he had to put a solution in place. He appointed Gary Mann, who was then in a different role, to take on the role that the plaintiff had been doing (Exhibit PX 3, paragraph 22). Mr Mann, an employee of Mr McMillan, was earlier appointed by Mr McMillan to undertake the work the plaintiff was doing during the plaintiff’s absence overseas in 2006. Mr Mann now does the job the plaintiff was doing, but in a slightly different way. He does not handle accounts and bills.
34. The plaintiff says that had he not become ill, then upon his return from Europe, he would have been fully occupied by Mr McMillan’s work, including maintenance of the several buildings owned by him at Granville, regular repairs and maintenance of his residence at West Pennant Hills, supervision of the extensive clearing operation of the land at Castle Hill and building work on premises at Double Bay.
35. The history of the development of the plaintiff’s illness is set out extensively in his affidavit and I accept that evidence. I do not intend to set out all that history, but I take it into account in my assessment of non-economic loss.
36. I summarise some of the highlights of that evidence.
37. The plaintiff noticed breathlessness on his holiday in Europe in June 2006. He was sick and in pain and coughing. He was hospitalised in Amsterdam from 12 June 2006 to 29 June 2006, but he was also treated then for a kidney ailment. Fluid was drained from his lungs on arrival at the hospital and this was a most painful procedure. Fluid continued to be drained from his lung and a left pleural biopsy was performed and this was associated with excruciating pain.
38. Soon after his return from overseas in 2006, the plaintiff saw Dr Eisinger for kidney stones (T.22.17). Dr Eisinger records on a consultation on 1 August 2006 that the plaintiff’s appetite was poor with weight loss and he had shortness of breath in association with pain (Exhibit PX 12A). The plaintiff needed surgery and for surgery purposes had a lung function test that was normal. He underwent surgery for his kidney stones on 15 August 2006. On 23 August 2006, Dr McNamara records that the plaintiff had returned to his choir singing (Exhibit PX 12B).
39. Dr Eisinger referred the plaintiff to Dr McNamara and Dr McNamara referred him to Dr Bayfield. He was admitted to Strathfield Hospital on 22 September and discharged on 25 September 2006. At hospital, he underwent bronchoscopy, left sided thoracoscopy, drainage of pleural effusion, biopsies and a talc pleurodesis which is a particularly painful procedure. About one litre of fluid was aspirated. He was in pain and hooked up to a morphine pump for self-medication of morphine. His appetite was badly affected and he lost about 8 to 10 kilograms in weight. He felt ill. He had no energy and was tired.
40. In the second half of 2006, the plaintiff says he felt unwell and listless (T.60.28). He said he had no drive and he would take a nap during the day.
41. The plaintiff continued with the shortness of breath and pain and lack of energy and tiredness. He was feeling unwell. He was admitted to Strathfield Hospital again on 28 June 2007 and discharged on 9 July 2007 (Exhibit PX11). He underwent a left sided thoracotomy, a parietal pleurectomy with decortication of the lung and drainage of pleural effusion. Again, he self medicated with morphine. It was at that time, he was told that he had mesothelioma.
42. In cross examination, the following evidence emerged:
(a) the plaintiff agreed he told Dr McNamara in August 2006 that he was well since his discharge from hospital (T.16.30), but at the same time, he said he had slowed down (T.16.35);
(b) it was put that the plaintiff told Dr McNamara after the stones were removed that he had no symptoms (T.24.23). The plaintiff said he did not know;
(c) he told Dr Bayfield that he had little in the way of symptoms (T.24.41);
(d) he agrees he told Dr Eisinger in October 2006 he was very well (T.28.07);
(e) it was put that he saw Dr Bayfield around Christmas 2006 with no chest pain or shortness of breath or cough (T.42.48; 43.17). The plaintiff did not recall that;
(f) he was asked about seeing Dr Eisinger in early 2007 (T.44.32) and how his health was then, but his history to Dr Eisinger then was not pursued.
(g) it was put that he had no coughing or shortness of breath before June 2007 (T.45.01). The plaintiff did not agree.
43. The defendant relies on the substantial time gap between the two hospitalisations in September 2006 and June 2007, together with a number of recorded histories, to found a submission that over this time, the plaintiff was, relatively speaking, well. The defendant says that there were no symptoms apart perhaps from some symptoms of lethargy and tiredness. I do not accept this submission. I thought the plaintiff was somewhat stoic and he seemed to me to be understating his problems. He undertook some activities such as attending family gatherings and attending Mass on Sundays at St Mary’s Cathedral, but his involvement in family gatherings was at quite a low level of activity. This is in contrast to his involvement before he was ill such as assisting with his daughters’ extensions to their houses. He had also intended to undertake some work at the rear of his own premises and had prepared for that before he left for overseas. He has not done it since his return from overseas. As he has not been working, lack of time cannot be the explanation. I consider that in the first instance, he was unable to undertake that work by reason of a combination of problems being his kidney stone and his symptoms of mesothelioma. Since October 2006, I consider it is because of his symptoms of mesothelioma that he has not completed that task. The same applies to the plaintiff not doing his lawns and garden which he has not done since his return from overseas. Accordingly, I accept that from the onset of his symptoms in mid-2006, the plaintiff has continued to be affected by symptoms of his mesothelioma though for the most part the level of symptomatology has been at a relatively low level.
44. It is curious that medical histories record no shortness of breath or tiredness. It is more curious that some histories in fact record that there is no tiredness or shortness of breath. That may be because the plaintiff was not the complaining type or because, at the time he reported such symptoms or lack of them, he was not short of breath or suffering from tiredness. The defendant argues that even if the plaintiff was not the complaining type, his wife, who was present at some medical examinations, would have corrected him. That may or may not be so. The difficulty I face is that I accept that the plaintiff would have completed the work at the rear of his home and, since October 2006, would have done his own lawns and garden were it not for those symptoms. If his symptoms were affecting him in these ways, then I do not think I can accept the recorded histories as accurately recording the plaintiff’s overall state of health. Perhaps the explanation lies in the fact that the plaintiff was doing virtually nothing and so when he saw the doctors, he had no complaints. Whatever the explanation, I am satisfied that the plaintiff continued throughout to be affected by symptoms of mesothelioma from July 2006.
45. I do not accept that the plaintiff’s symptoms were at the level and extent deposed to by Mrs Dawes in her evidence and, to the extent that other evidence puts his symptoms at such a level, I do not accept that evidence. This comment, however, does not apply to periods when the plaintiff was more acutely ill, such as at the time of his operative procedures or his chemotherapy. There are a number of reasons for the view I have expressed:
(a) the plaintiff does not put the level or extent of his symptoms as high as does Mrs Dawes. Whilst he may be somewhat underplaying his hand, I do not accept that he was doing so to that extent;
(b) the medical histories and records of complaints do not match up with symptomatology to the extent stated by Mrs Dawes. Whilst I accept that the histories and records of complaints may not be entirely accurate, I do think that they constitute plausible evidence contradicting the suggestion that the plaintiff was suffering to the nature and extent suggested by Mrs Dawes;
(c) the plaintiff had normal lung function tests in 2005 before his surgery for treatment of his kidney stones;
(d) there was little in the way of medical treatment before mid-2007;
(e) Dr Boyer has treated the plaintiff. He does not support the level of symptoms and disability as deposed to by Mrs Dawes. I do not see any reason to reject the views expressed by Dr Boyer.
46. The plaintiff was devastated and shocked when he received the news that he had mesothelioma.
47. Dr Bayfield referred the plaintiff to Dr Boyer. He saw Dr Boyer on 20 August 2007. He then underwent a course of chemotherapy. It commenced on 29 August 2007 and he underwent six sessions, concluding on 12 December 2007, with considerable side effects which are set out in the affidavit.
48. Dr Boyer in his report of 31 January 2008, reports on the side effects of chemotherapy including the plaintiff being pale and anaemic on one occasion and having watery eyes and fatigue.
49. The chemotherapy has been beneficial in reducing the disease and controlling it. The tumour has been reduced by about 25%. In his report of 31 January 2008, Dr Boyer says plaintiff has remained well and has no symptoms. That must be understood in the context of a patient with an established diagnosis of mesothelioma having just concluded six cycles of chemotherapy. It should also be understood in the context of evidence given by Dr Boyer only one week later where he appeared to confine the plaintiff’s ability to do things to reasonably simple tasks (T.54.17-43). I do not understand Dr Boyer to be resiling from that position in his evidence at T.56.16 where he thought the plaintiff should be able to do “most, if not all of the things that he wishes”. I think that was something of a broad brush without focussing on the specifics he had earlier referred to.
50. Over the next 12 months, Dr Boyer would expect the plaintiff’s condition to be good and for him to be functional and able to do most things. He may need some further chemotherapy treatment (T.56.15). The plaintiff is shortly to have some tests to see if further chemotherapy is to be undertaken.
51. To the extent that there was an issue as to whether the plaintiff’s symptoms in mid-2006 were symptoms of his mesothelioma, I accept that they were. The evidence of Dr Boyer supports this and so does Professor Breslin. In the end, I do not understand the defendant to contest this.
52. In mid-2006, when the plaintiff was hospitalised, he was treated for a pleural effusion and fluid was aspirated. Those symptoms for which the plaintiff was treated were symptoms of mesothelioma. The plaintiff also had other symptoms of mesothelioma. I accept the plaintiff’s evidence of his symptoms from his cough shortly before he left for overseas to his shortness of breath and other symptoms. In September 2006, Dr Bayfield undertook bronchoscopy, left thoracoscopy and drainage of pleural effusion, pleural biopsy and talc pleurodesis. These procedures were all related to his undiagnosed mesothelioma.
53. There was then as issue as to whether the plaintiff returned to normal health following his treatment in Amsterdam.
54. It is possible that after a pleural effusion that a patient can return to normal health (T.55.25).
55. Asked to assume that from early 2007 to Mid-2007, the plaintiff had no complaint of pain, shortness of breath, sweats or fevers, Dr Boyer said he could still have a feeling of unwellness (T55.43). I accept, as earlier indicated, that the plaintiff continued to have a feeling of unwellness from mid-2006.
56. Dr Boyer considers that the plaintiff is at the good end of the spectrum of mesothelioma sufferers. He considers that he is reasonably able to do a number of things including looking after himself, making simple meals, household chores and activities that are not intensely physical and drive. Dr Boyer would expect that the plaintiff’s next 12 months to be a good 12 months. He expects his symptoms then to progress.
57. Dr Boyer expects that as the plaintiff’s condition worsens, he could or would face worsening cough, worsening shortness of breath, restricted mobility and activity, very disabling pain which is very difficult to control and loss of appetite.
58. Dr Boyer expects that the events surrounding the plaintiff’s death would include increased pain, increased shortness of breath, emaciation and general loss of body condition.
59. Dr Boyer stated that shortness of breath can cause fear and apprehension and it can be a struggle simply getting to the bathroom. He would expect that there could be very disabling pain which occurs in many patients. He would expect loss of appetite and for the plaintiff to become emaciated and wasted (T.52).
60. I accept the evidence Dr Boyer gave about these matters.
61. The plaintiff has become more and more dependant on his wife.
62. His sleep became badly affected especially in the last few months although he has had sleeping difficulties throughout.
63. The plaintiff forces himself to eat and has regained some weight.
64. The plaintiff has lost a lot of his former enjoyment of his grandchildren.
65. The plaintiff’s great passion of singing is almost totally lost to him. For his mental well being, he still attends the Beethoven Choir, but sits and has a rest if he gets tired. It would seem that that might be fairly frequent. He can no longer hold a note.
66. The plaintiff has ongoing breathlessness on exertion and left sided pain. He has difficulty with swallowing since the second surgery. His complications have included an ulcerated palate and a boil on his neck. Despite this, he is not on any pain killing medication.
67. The plaintiff feels significantly depressed.
68. Mr Sheller submitted that I should assess non-economic loss at the low end of the range because the plaintiff’s level of suffering when compared to other cases of mesothelioma is not as significant. That applies to the physical symptoms and also the mental anguish, depression, despair, anger and sense of grievance that one often sees in these cases. There is some merit in this submission, but I do not think that it does full justice to the plaintiff’s case. Whilst the plaintiff’s relatively low level of symptomatology appears real, I think that appearance is deceiving. I have indicated that I think the plaintiff tends to understate his problems and my view is that his level of symptomatology is at a level higher than one would understand simply by looking at him or listening to him. I do not think, for example, there is any rational explanation for his not undertaking the work at the rear of his house or doing his lawns and garden other than that his symptoms will not allow him to do these things. That has been so since his return from overseas in mid-2006 or at least from October 2006. Similarly, I do not think there is any rational explanation for his failure to pursue his interest in singing other than that his symptoms will not allow him to do it. The evidence does not make it clear how long this has been the case. Also, for a person whom Dr Boyer at one point described as “well and has no symptoms” (Exhibit PX4B), he was, at the same time, saying that he was limited in his physical abilities (T.54).
69. I do consider that the plaintiff has had a relatively low level of symptomatology, but during such times, he has nevertheless had symptoms and they have certainly included lethargy and tiredness. I think they have also included shortness of breath which would explain the plaintiff’s inability to hold a note singing. I consider that most of those symptoms have been constant since mid-2006. In addition, the plaintiff has had from time to time specific symptoms of pain. He was suffering acute symptoms causing hospitalisation on three occasions. He suffered debilitating symptoms throughout his chemotherapy. He is now relatively well, but still has symptoms. They include tiredness and lethargy, loss of appetite, shortness of breath and pain. His symptoms will continue at this level for about another 12 months.
70. Another aspect of Mr Sheller’s submission that does not do full justice to the plaintiff’s case concerns the emotional effect on him. I need not spell out the full details of that. It is covered in the plaintiff’s affidavit in paragraphs 86 to 87, 93, 97, 108 to 112, 114, 122.
71. Another aspect of Mr Sheller’s submission that does not do full justice to the plaintiff’s case is that it does not deal with the future. Dr Boyer has explained what prospects the plaintiff faces and I have recounted those. It is clear that the plaintiff will suffer greatly and I must take that into account in my assessment of non-economic loss. I also take into account the plaintiff’s life expectancy is likely to be a further 18 months from now. For the estimate of life expectancy, I rely on the evidence of Dr Boyer especially at T.51.36-39 where he indicates that it was 18 months or a little more from when he gave his evidence on 7 February 2008. Overall, the plaintiff will have suffered symptoms for a period of time that is much longer than many other persons afflicted by this illness.
72. In all the circumstances, I think a reasonable figure for non-economic loss in this case is $220,000.
Interest on non-economic loss
73. The plaintiff has now had his symptoms for a period coming up towards two years and he is likely to suffer symptoms for about the same length of time into the future. It is clear, however, that symptoms up to the present will not be as significant as those in the future and, accordingly, I think it is appropriate to apportion about one third of the non-economic loss to the past.
74. I allow interest at 2% per annum on $73,000 from 1 June 2006 to date, $2,628.
Loss of expectation of life
75. I allow $10,000.
Out-of-pocket expenses
76. The plaintiff has been unable to undertake the work to the rear of his premises that he had planned to do before he went overseas. Exhibit PX13 costs the labour component of that work at $24,600 and I allow that.
77. I think it also reasonable to make some allowance for changes to a bathroom to permit wheelchair access in due course. I accept $5,000 as a reasonable cost for that. The figure should be discounted as Dr Boyer considers this expenditure may not occur. I allow $3,000.
Loss of earning capacity - Had the plaintiff retired or intended to retire?
78. The first issue I need to determine is whether the plaintiff is entitled to anything for economic loss. It is the defendant’s case that by mid-2006 or by September 2006, the plaintiff had retired from work for reasons unrelated to his mesothelioma and, accordingly, is not entitled to anything by way of economic loss. It is the plaintiff’s case that he intended to work at least until he was 80 years of age.
79. The defendant put forward a strong argument that the plaintiff intended to retire at least by 9 August 2006.
80. The argument is to the following effect. The plaintiff was in his mid-70s. He had worked hard all his working life. He was a keen singer with opportunities to travel overseas, especially with the Beethoven Choir. Retirement would facilitate these opportunities for him. It would also facilitate his being able to spend more time with his family. His income had dropped in the last two years before he travelled overseas. These were all matters that would suggest a considerable incentive for the plaintiff to retire. In addition, the defendant argues, there was evidence corroborative of the fact of retirement. In his affidavit, the plaintiff said that he retired officially in July of 2006. His wife’s affidavit (Exhibit PX7, paragraphs 7 and 8) indicates that the plaintiff and his wife had spoken about retirement. When the plaintiff was in Europe, the first disabling symptoms he suffered were related to his kidney stone. His symptoms were severe and required hospitalisation. The plaintiff was treated in hospital in Amsterdam for that condition, but not successfully. When he returned to Australia, the immediate treatment the plaintiff needed was for his kidney stone and it was some time before it was treated successfully. Indeed, following the last surgery for that condition in September 2006, his wife rang the doctor reporting that he was still in pain (Exhibit DX3, page 13). I accept that evidence despite Mrs Tromp’s evidence to the contrary. It was not until 26 October 2006 that he was reported very well and being stone free (Exhibit DX3, page 15). It was argued that the condition of the kidney stone caused the plaintiff’s retirement. Further evidence supporting retirement is to be found in recorded histories. For example:
- on 31 July 2006, Dr Elliott describes the plaintiff’s occupation as “Retired Builder” (Exhibit DX3, page 2);
- on 9 August 2006, Dr McNamara’s note describes the plaintiff as “Builder - just retired” (Exhibit DX3, page 5);
- on 9 August 2006, Dr McNamara reported to Dr Eisinger, but it does not really add to the previous item, although it does describe the plaintiff as “retired Builder” and later adds that he has “recently retired as a Builder” (Exhibit DX3, page 7).
81. I do not accept the defendant’s submission that the plaintiff had retired or intended to retire at any time before September 2006. The defendant rightly points out that there were indeed incentives for retirement. I accept the defendant’s submission as to this and also as to discussions about retirement. I think it is inconceivable that the plaintiff and his wife could have got to mid-2006 without having discussed retirement. Mrs Tromp’s evidence was not easy to follow on this, but I think it is clear that she and her husband had discussed retirement. More critical, however, is whether they had discussed retirement in any specific way or merely in generalities and my view is that it was the latter. It does not seem to me that there was any discussion as to when the plaintiff would retire. Whilst I think they were discussing the benefits of retirement, I do not consider they had decided there would be a time for retirement. When the plaintiff in his affidavit said he retired officially in July 2006, that must be a statement about events in retrospect. It is inconceivable that on 4 February 2008, he could be saying that he had retired officially in July 2006 when on 4 February 2008, he was plainly making a case that he had done no such thing.
82. In paragraphs 79 and 80 of his affidavit, the plaintiff states that he came to the realisation that he would not be able to return to work and that he gave up all work. It may be inferred that the timing of this is September 2006. Again, I do not read this, in the context of the evidence overall, as meaning that, at that time, the plaintiff had determined that he would never work again no matter what. It is incompatible, in my view, with his life’s work history and his love of his work. Further, if this was a retirement, it was not one to enable the plaintiff to enjoy the fruits of his labour as it was forced, as he perceived it, by poor health that would not improve. Even if this was a decision to retire, then it was one brought about by his symptoms of mesothelioma, if not entirely, at least in part. This is what he says in paragraphs 79 and 80 of the affidavit. The symptoms he is describing there are symptoms of mesothelioma and they include significant loss of weight. With that loss of weight, one could understand the plaintiff’s mental attitude at that time.
83. It is true that the plaintiff suffered symptoms of kidney stones when in Amsterdam. In my view, it was that condition that caused his hospitalisation in Amsterdam. However, contemporaneous with that were symptoms related to his mesothelioma. Those symptoms were of some significance. The plaintiff was admitted to the department of respiratory medicine at the hospital on 12 June 2006 (Exhibit PX21). He was complaining of exertional dyspnoea. He had a large amount of pleural fluid on the left. He had drainage of the fluid followed by thoracoscopy and talc pleurodesis, these procedures being most painful. For reasons already given, I accept that following discharge from hospital, he continued to have symptoms of tiredness, lethargy and shortness of breath and that these were symptoms of his then undiagnosed mesothelioma.
84. When the plaintiff returned to Australia from his overseas trip, he was still troubled by his kidney stone, but again, he had symptoms related to his mesothelioma. On 9 August 2006, Dr McNamara noted “not tired”, but he also noted “Appetite” and “Weight ↓ed - 5Kg prior to trip”. He also noted a small left effusion. He also noted that he was ok for proposed surgery for his kidney stone with lung function being normal. Dr McNamara also records the plaintiff being well since discharge from hospital in Amsterdam. That wellness must be a relative concept as the plaintiff was, in fact, under treatment when he was described as being well. He was being treated for his kidney stone and Dr McNamara was also suggesting further investigations for his chest condition.
85. I do not place much weight on the recorded histories that the plaintiff was a retired builder or recently retired. I do not know what caused Dr Elliott and Dr McNamara to make these records. It may simply be their shorthand versions for their understanding of the situation that the plaintiff was a builder and that he had not worked since he went overseas. That understanding would be correct. It was not the role of the doctors to obtain a detailed and accurate employment history. It was their role to assess medical history, symptoms, examine the plaintiff and treat him. It was not a critical matter for the doctors to record whether the plaintiff had ceased work, much less was it critical for them to determine when and why he had ceased work if he had. Further, these histories are recorded quite soon after his return to Australia at a time when his arrangement with Mr McMillan was that he would recover and then return to work.
86. An illustration of the dangers of placing too much emphasis on the history recorded by the medical practitioners in this fashion lies in the notes from Strathfield Private Hospital (Exhibit PX11). There it is recorded on 28 June 2007 that the plaintiff is a “recently Retired chorister”. At one level, that might be accurate. At another, it lacks accuracy because it does not cover the situation that the plaintiff was still attending choir, though had difficulty maintaining his singing.
87. I accept that before he first suffered symptoms of mesothelioma, the plaintiff had no specific intention to retire and that he intended to work to at least 80 years of age.
88. In addition to reasons already stated, there are the following reasons for my findings in this regard.
(1) the plaintiff did not cease work at what might be seen by many to be the retirement milestone of 65 years of age;
(2) he continued to work beyond 65 years of age and beyond 70 years of age;
(3) the plaintiff was diagnosed with prostate cancer in December 2003 and treated for that with radical surgery in January 2004 followed by radiation therapy. He was then 72 years of age. That might have been a good opportunity to retire. He took only about three weeks off work and kept working;
(4) he was almost 75 years of age when he took the European trip with the Beethoven Choir and he was still then actively working;
(5) when he left on that trip, there was nothing to suggest he would not resume work on his return. He had not made any plans to cease work and Mr McMillan seemed to think that he would be returning to work;
(6) he has a long and extensive work history and enjoyed his work;
(7) by 2006, his work was physically easy and he enjoyed his working relationship with Mr McMillan and found the work satisfying.
Why did the plaintiff cease work?
89. The next issue I address is what caused the plaintiff to cease working. I am satisfied that the matter that stopped the plaintiff working on his return to Sydney from the European trip was the condition of his kidney stone. If it was not the sole cause, it was an effective cause and whatever the plaintiff’s health otherwise, he would not have been able to work by reason of that condition on his return to Australia.
90. In terms of the onset and progress of the condition related to the kidney stone, I prefer the evidence of records more proximate to that time to that of the plaintiff and his wife to the extent that there are discrepancies. The plaintiff’s mesothelioma has, not unnaturally, assumed a significant aspect of the life of the plaintiff and his wife. This seems to be more so with Mrs Tromp. Their attention on it and its effects upon them has, in all likelihood, overwhelmed other aspects of their lives. Despite their best intentions to give accurate evidence, their efforts in that regard are likely to be affected by the significance of the plaintiff’s current illness. Other problems, not unnaturally, tend to be down-played. I am of the view that this has had an effect whereby the importance and impact of the kidney stones on the plaintiff’s state of health has been minimised, though unintentionally.
91. One record reasonably proximate to the plaintiff’s time in Europe in mid-2006 lies in the history given to Dr Bayfield on 28 August 2006. That history was to the effect that when holidaying in Europe, the plaintiff thought he had developed renal colic and was admitted to hospital for that.
92. Dr Eisinger had treated the plaintiff for his prostate condition from 5 November 2003. He continued to treat the plaintiff. He saw the plaintiff on 1 August 2006. This was in relation to the episode of right renal colic when he was overseas. Further history was that a stent had been placed in Holland. I note further treatment on 15 August 2006 when he had a cystoscopy and removal of the stent and stone. The stent was reinserted. A further procedure was undertaken on 12 September 2006. This was removal of the stent. A stone was also removed. On 26 October 2006, he was reported as being very well and apparently stone free (Exhibit DX3, page 15). On 29 January 2007, there were no continuing complications from the stone.
93. I am satisfied that the plaintiff would have been unable to work by reason of his kidney stones until Dr Eisinger saw him on 26 October 2006 and thought he was very well and apparently stone free. I consider that from then, were it not for the symptoms of his mesothelioma, the plaintiff would have returned to work with Mr McMillan. Following the successful treatment of his kidney stone, I am satisfied that the plaintiff has been unable to work by reason of his condition of mesothelioma.
Loss of earning capacity - Determination of loss of earnings
94. I accept that were it not for his symptoms of mesothelioma, the plaintiff would have been working and undertaking work for Mr McMillan from 26 October 2006 and still doing so.
95. The plaintiff has presented reports from Mr Rossetto and the defendant from Ms Lindsay. They both seek to assess the plaintiff’s loss of earnings by reason of his mesothelioma. They both seek to do so by trying to assess a fair estimate of his earnings before he became ill and projecting that forward. To the extent that they both do that, I do not think the assessments are entirely helpful. This would be a useful strategy in seeking to determine prospective earnings over the medium to long term, but the exercise here is to determine likely earnings in the short term. I think this requires closer attention to events as they were immediately before the plaintiff became ill. I shall return to this, but in the meantime, shall analyse the reports of Mr Rossetto and Ms Lindsay.
Loss of earning capacity - Past loss of earnings
96. For the plaintiff, Mr Rossetto, assessed past economic loss at $95,056 as at 1 December 2007 in his first report (Exhibit PX18A). This assessment was made on the basis of a cash received basis of determining earnings.
97. His next report undertook calculations to 18 March 2008. The calculations in this report were undertaken on an accruals basis. Argument proceeded on this being the preferred basis. This report also assumed two different scenarios. One scenario assumed continued earnings of the plaintiff on the basis of his earnings in the years 2001 to 2005 and the other scenario assumed continued earnings on the basis of his earnings in the year 2001 to 2006. Past loss of earnings on the former assumptions was assessed at $101,246 and on the latter assumption at $84,607.
98. Mr Rossetto’s third document (Exhibit PX18C) was a summary of economic loss and the figures had been adjusted. They are respectively $82,488 and $65,849. These are net figures after deduction of payments received by the plaintiff from the Dust Diseases Board (DDB) and after deduction of income tax. The weekly DDB payment is $464.60. The total DDB payment to 18 March 2008, the date of Mr Rossetto’s calculations, is $69,365.00.
99. Whilst the first report of Mr Rossetto was prepared on a cash basis, it contains some methodology that is carried through into his next report. It notes:
(a) the plaintiff charged 10% margin on material and sub-contractor costs;
(b) his hourly rate was $40.00. His evidence was that the rate was $50.00;
(c) the refurbishment of the Rothmans site was completed in the financial year ended 30 June 2005;
(d) the plaintiff paid his wife for secretarial services, $45,600, in the year ended 30 June 2005 and $40,000 in the year ended 30 June 2006;
(e) if Mrs Tromp were unable to do her work, the plaintiff would have had to engage somebody else;
(f) payments to Mrs Tromp do not reflect market value. Mr Rossetto has added Mrs Tromp’s earning back into the plaintiff’s earnings and then deducted a reasonable figure for secretarial services being $9,784;
(g) Mr Rossetto then assumed work related expenses of $280 per annum;
(h) calculations have been done from 1 August 2006. For reasons I explained in paragraph 92 and 93, it should be 26 October 2006.
100. Mr Rossetto calculated the plaintiff’s earnings over the years as follows:
30 June 2001
30 June 2002
30 June 2003
30 June 2004
30 June 2005
30 June 2006
$114,784
$309,579
$41,902
$79,511
$14,510.
The average is $101,711 if one takes the six years to 30 June 2006 or $119,151 if one takes the five years to 30 June 2005. The average of the years excluding 2003 and 2006 is $71,544.
101. One of the significant problems with Mr Rossetto’s approach is that it includes one extraordinary year with earnings over $300,000. That probably relates to a time when substantial work was done on the old Rothmans site. Another problem is the low invoiced figure of $14,510 for the year ended 30 June 2006. I have set out what might be explanations for that in paragraph 25. It seems that in that year there were no ongoing developments, capital works or contract works, except for work at Mr McMillan’s residence. It is likely that the plaintiff’s earnings in that year related entirely or principally to maintenance work. I think the 2006 year was a year that was not likely to be repeated. Likewise, in the absence of some major projects, the 2003 year was a year that was not likely to be repeated. There is a major project coming up in the proposed sub-division of Mr McMillan’s development on Castle Hill Road. However, such figures as have been put before me (Exhibit PX3, paragraph 28) do not enable me to make any calculation of what the plaintiff might have been able to earn out of that or over how many financial years he could earn income out of it. One thing is clear and that is that there is potential for substantial earnings. Another thing is clear and that is that the plaintiff would not have earned anything out of that project to date because it has not commenced.
102. Ms Lindsay, in Exhibit DX2A, considers that Mr Rossetto’s assessment has overstated the plaintiff’s earning capacity but for his illness for the following reasons:
(1) no account is taken of the decline in turnover or profitability in the 2006 year. I have commented on that and will add nothing further to it, except to note that Ms Lindsay’s analysis does not appear to allow for the factors I have specified in paragraph 25;
(2) the 2007 earnings were wrongly included in the 2006 year. It would seem that in the financial years ended 30 June 2007 and the current financial year, there were two invoices issued by the plaintiff to Mr McMillan for $11,611.80 (30 January 2007) and $7,469.00 (13 November 2007), both inclusive of GST. The former included a service fee for the plaintiff of $2,400. The latter did not include a service fee. It would seem that these invoices comprise mainly materials;
(3) no account is taken of the fact that the business declared income on a cash as opposed to an accruals basis. This was a comment on Mr Rossetto’s first report. That issue has now been dealt with;
(4) no account is taken of the fact that a large portion of the income generated by the business in the 2001-2005 years represents a 10% mark-up on the cost of materials and sub-contractors, the cost of which was passed on to Mr McMillan. Ms Lindsay says once the profits of the plaintiff’s business exceed a point of reasonable return, the plaintiff’s margin is no longer a return on his personal exertion. I do not accept this. If the plaintiff’s business in its relationship with its only client is structured in such a way that the plaintiff at times is able to earn handsome profits, those profits are as much a return for his skill and personal exertion as are profits in the leaner years. Ms Lindsay picks a figure in excess of a range of $50,000 to $60,000, being the average remuneration for building and construction managers, and says such excess is not a return on personal exertion. For there to be an average, there need to be building and construction managers who earn above the average. Their earnings, in my view, should count as earnings from their personal exertion. In my view, it would be wrong to exclude from the calculations of the plaintiff’s earning capacity earnings in financial years on the basis simply that the earnings were high. On this basis, one would exclude the earnings of those barristers, doctors, accountants, plumbers, electricians and others to the extent that their earnings exceeded the average earnings in their occupations.
103. Another approach to assessing loss is to look at what Mr McMillan has been paying Mr Mann. The problem with that is that the evidence on this is sparse. Mr Mann is on a package which was stated to be between $175,000 and $200,000. When he went on it is not stated. It is not stated whether it gross or net. It seems to be based on an hourly rate of $80.00. If that were the only component, it would have Mr Mann working about 50 hours per week and that may or may not be right. One of the other problems with this approach is that this is a basis of remuneration that the plaintiff was never on and had he not become ill, he may never have been on it. Mr McMillan gave evidence that he thought he was paying the plaintiff fairly and the plaintiff certainly seemed to be happy with his work and remuneration. I am of the view that it is unlikely that the nature of the plaintiff’s work or his method of remuneration with Mr McMillan would have changed and, accordingly, I do not think it is appropriate to seek to calculate loss by using Mr Mann’s remuneration as a guide.
104. In seeking to determine the plaintiff’s loss of earnings to date, I take into account that his work for Mr McMillan would have been mainly maintenance work. There would have been some contract work, for example, in the development of the Double Bay premises. That work would have yielded him his 10% margin on materials and sub-contractor fees. I take into account also that in his work to date, he would have been working with Mr McMillan who then would have been in a state of good health and able to apply himself fully to his investments and projects and it is likely that the plaintiff would have been undertaking considerably more remunerative work than in the 2006 year. I have indicated that I think the 2003 and 2006 years are years that are not likely to be repeated. They should be left out of the consideration. It would be possible to include the 2006 year and add in to it the notional 10% that the plaintiff could have earned on the job at Mr McMillan’s residence. However, the evidence on this is not sufficiently precise and, in any event, if that is done, it could bring the earnings for that year more or less into line with some of the other years. In the circumstances, I consider the allowance Mr Sheller has made in his submissions of $60,000 net per annum to be reasonable and appropriate (T.199.10).
105. The calculation of the plaintiff’s loss of earnings to date, in my view, needs to be calculated from 26 October 2006. The plaintiff was troubled by his kidney stone, it requiring surgery as late as September 2006. It was not until a consultation on 26 October 2006 that the plaintiff was described as very well and apparently stone free (Exhibit DX3, page 13).
106. I assess the plaintiff’s loss from 26 October 2006 to date at about $60,000 per annum to be $90,000. From that, there needs to be deducted DDB payments of $71,688. I allow the difference, being $18,312.
Interest on past loss of earnings
107. I allow interest on the difference between the loss of earnings to date and DDB payments to date, namely, $18,312, at 6%p.a. from 26 October 2006 to date (1.5 years) x 50%, $825.00.
Loss of earning capacity - Future economic loss
108. I have already indicated that I consider that the plaintiff probably did intend to work until he was at least 80 years of age. Whether that intention would have been carried through might be another thing.
109. As the plaintiff has only about 3½ years to go until age 80 with nothing other than his mesothelioma preventing him from working, I think it is likely he would have continued to age 80.
110. Again, I accept Mr Sheller’s suggested loss of $60,000 net per annum as the plaintiff’s likely earnings, but for his illness.
111. Strictly speaking, the future period should be divided into a period before the plaintiff’s expected dated of death and a period after that. The reason for this is that in the latter period there needs to be deducted from the net earnings monies the plaintiff would have expended on his own personal use. However, the period is quite short (less than two years) and the amount is relatively small ($100 per week) that I do not propose to divide the future period into two periods. In saying that the personal expenditure is $100 per week I prefer the plaintiff’s evidence to the statistical evidence relied on by Ms Lindsay.
112. The period of about 3½ years is so short that normally there would be no deduction for vicissitudes. However, it is a period between about 76½ and 80 years of age and I think this is a period where adverse contingencies are at a higher risk of occurring and, if they do occur, recovery from them (if they are health related) may take longer than normal. Also, whilst I consider the probability that the plaintiff would work to 80 years of age, the idea of retirement could have become more appealing to him as time passes. I think it is appropriate to allow a 15% deduction for vicissitudes.
113. I assess future economic loss as follows:
$60,000 per annum net = $1,153.85 per week x 175 (approximate multiplier for 3.5 years) x 85% = $171,635.
114. From this figure of $171,635 there needs to be deducted future DDB payments. Continuing payments are $464.60 per week. The present value of the continuing payments is $464.60 x 75 x (approximate multiplier to estimated date of death) = $34,845.
115. The plaintiff’s entitlement to damages for future economic loss is therefore $136,790.
116. In calculating economic loss, I have not allowed anything for the plaintiff’s residual earning capacity. No submission was made suggesting I should. Considering the plaintiff’s age and his special relationship with Mr McMillan, I think it is unrealistic to expect that he would have had a residual capacity to earn.
Care
Past care
117. At one level, the plaintiff pitches the claim for care on the extent to which his wife has in fact spent time caring for him and that claim is usefully contained in Exhibit PX 31.
118. I do not accept the plaintiff’s claim for care on this basis. Such an approach does not address the fundamental questions that need to be addressed. Those questions are:
Has there been a need for care and, if so, what was the need?
119. It is not to be critical of Mrs Tromp to say that she has been quite devastated by her husband’s diagnosis and has done everything possible for him that she could. That, however, does not address the test that I need to address.
120. There are two aspects of the past that need to be addressed. One is the plaintiff’s ongoing condition generally and the other is his condition at specific times when he has been under treatment.
121. So far as the plaintiff’s condition generally is concerned, he has had symptoms from mid-2006, but at a relatively low level.
122. It is fairly common in this Tribunal to see periods of care divided into four categories. Those categories are minimal dependency, moderate dependency, high dependency and total dependency. There cannot be any precision about those periods, but it is a useful exercise in helping to assess damages for care.
123. Ms Ravagnani (Exhibit PX32) has defined what she means by each of the four categories of dependency (page 5), although she seems to have stages 1 and 2 transposed. I consider the plaintiff falls within the minimal level of dependency. That position is supported by Dr Boyer. It is also consistent with the plaintiff’s evidence (eg. T.26.22-39; 45.10).
124. At the minimum level of dependency, Ms Ravagnani assesses that the plaintiff would have required six hours of care per week. This is in relation to household type chores and car cleaning. It became unclear whether that was an assessment on the basis of what the plaintiff and Mrs Tromp told Ms Ravagnani or on the basis of her own assessment of the needs having carried out her assessment at the plaintiff’s residence. I do not think it matters. She is an expert occupational therapist, experienced in making these assessments and I accept her assessment.
125. The level of care that Mrs Tromp has been providing to Mr Tromp far exceeds the needs of Mr Tromp created by his level of minimal dependency. As to the plaintiff’s needs to date, I obtain better guidance from the evidence of Dr Boyer. As to what is required to satisfy those needs, I obtain my main guidance from Susan Ravagnani (Exhibit PX 32).
126. In addition to the general care specified above, there have been periods when the plaintiff has needed a higher level of care. These are periods when he has been under treatment and I consider those periods to be as follows:
(a) June 2006, around the hospitalisation in Amsterdam;
(b) the period around his hospitalisation in September 2006;
(c) the period around his hospitalisation in June and July 2007;
(d) the period during which the plaintiff was undergoing chemotherapy from 29 August 2007 to 12 December 2007.
127. There is no defining medical evidence as to the length of these periods and the extent of the plaintiff’s needs. For the first three periods, I consider it is reasonable to allow 10 hours a day over three weeks. The period of the chemotherapy would have involved considerable fluctuations in the plaintiff’s needs. Overall, I think it is reasonable to allow six hours a day for a week over each of the six cycles of chemotherapy.
128. The calculations for the care to date are as follows:
(a) June/July 2006 - 210 hours x $21.41
(e) balance of the period from June 2006 to date being 97 weeks less the 35 weeks already allowed is 62 weeks.
(b) September 2006 - 210 hours x $21.81
(c) June/July 2007 - 210 hours x $22.64
(d) the chemotherapy period - 252 hours x $22.78
62 weeks x $22.25 (approximate average hourly rate) x 6 hours per week$ 4,496
$ 4,580
$ 4,754
$ 5,740
$ 7,277
$27,847
Interest on past care
129. I allow interest on $27,847 x 5%p.a. x 1.8 years, $2,506
Future
130. It will be evident that I have not accepted Ms Ravagnani’s assessment of the timing of the different periods of dependency. She has the plaintiff already in a state of high dependency.
131. I obtain my main guidance as to the different levels of dependency from the evidence of Dr Boyer.
132. The first thing to note is that, for the purpose of assessing damages, the plaintiff has a life expectancy which I have allowed as a further 18 months from now.
133. Dr Boyer considers that the plaintiff should remain in his present condition for another 12 months. Because of the lapse of time since he gave his evidence, I allow about another 11 months. I allow six hours per week x 48 weeks @ $22.91 per hour, $6,598.
134. Over that period of about 11 months, the plaintiff may have some chemotherapy when his need for care will be increased. Accordingly, I make some additional allowance and round up the entitlement over the next 11 months to $10,000.
135. The next period I deal with is the end period which Dr Boyer says should last about three months (T.56.08). Dr Boyer did not address the plaintiff’s needs in this period, but Ms Ravagnani did and stated the plaintiff would need 24 hour care. That opinion has not been contradicted by other evidence and I accept it. It is not difficult to envisage such a need when even a task as simple as walking to an ensuite bathroom becomes a Herculean effort and this is assuming the plaintiff is even able to do that in this period. I allow 24 hours x 7 x 13 x $22.91 x 0.97 (approximate deferral multiplier), $48,534.
136. That leaves the period in between. It is from March 2009 to July 2009 being about 17 weeks. It cuts across the two middle phases of dependency. Taking a broad brush, I allow 30 hours per week x 17 x $22.91 x 0.97 (approximate deferral multiplier), $11,334.
137. The total figure for future care is $69,868.
138.
Non-economic loss Interest on non-economic loss Loss of expectation of life Out-of-pocket expenses Past loss of earnings Interest on past loss of earnings Future loss of earnings Past care Interest on past care Future care
139. I order verdict and judgment for the plaintiff in the sum of $516,376.
Mr P Semmler QC, instructed by Turner Freeman, appeared for the plaintiff.
Mr J Sheller, instructed by Ellison Tillyard Callanan, appeared for the defendant.
0
0
0