Van Soest v BHP Billiton Ltd (No 2)
[2013] SADC 95
•28 June 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
VAN SOEST v BHP BILLITON LTD (No 2)
[2013] SADC 95
Judgment of Her Honour Judge Parsons
28 June 2013
DAMAGES
ASSESSMENT OF DAMAGES - MEASURE OF DAMAGES - EXEMPLARY DAMAGES
The plaintiff aged 73 suffers mesothelioma caused or materially contributed to by his employment as a painter and docker with the defendant in 1962. Damages for pain and suffering and loss of amenities, loss of expectancy of life, past and future medical expenses, aids, equipment and home modification, past and future Griffiths v Kerkemeyer damages and exemplary damages. Interest.
Dust Diseases Act 2005 (SA) s 9; Hospitals and Health Services Act 1927 (WA) s 37; Hospitals (Services Charges) Regulations 1984 regs 7(1)(c), 8(a), 9(1)(a), referred to.
van Soest v BHP Billiton Limited [2013] SADC 31; BHP Billiton Limited v Parker (2012) 113 SASR 206; Ewins v BHP Billiton Limited & Wallaby Grip Limited (2005) 91 SASR 303, considered.
VAN SOEST v BHP BILLITON LTD (No 2)
[2013] SADC 95
By decision dated 17 June 2013[1] I found the defendant, BHP Billiton Limited (‘BHP’) liable for the loss which the plaintiff sustained as a result of mesothelioma caused or materially contributed to by his exposure to asbestos dust and fibre when working at the Whyalla shipyards for eleven weeks in 1962. I now assess the plaintiff’s damages.
[1] van Soest v BHP Billiton Limited [2013] SADC 81
The evidence generally
The plaintiff and his ex-wife, Maria Marcelle van Soest, gave evidence about the onset and progress of his illness up to the time of trial. Professor Musk, the plaintiff’s treating respiratory physician, gave evidence about the diagnosis, the plaintiff’s medical treatment, the prognosis, the anticipated course of the plaintiff’s illness, possible further treatment and the likely cost of such treatment.
Ms Cunningham, an occupational therapist, assessed the plaintiff and inspected his home for the purposes of these proceedings. She gave evidence of her consultation with the plaintiff and Mrs van Soest and her opinion about his past and ongoing domestic and personal care needs and associated costs, and his future requirements for aids, equipment, home modification and home maintenance.
BHP called Dr Antic, a respiratory physician. After examining the plaintiff’s medical and hospital records and Prof Musk’s reports, he gave evidence commenting on Prof Musk’s assessment of the plaintiff’s condition and future medical needs. He also commented on the plaintiff’s functional needs.
BHP also called Mr Pearce, an occupational therapist. He assessed the plaintiff and inspected his home and that of Mrs van Soest. He gave evidence about the plaintiff’s current and future care needs relating to his functional level within the home environment and the current and future modifications, equipment and appliances required to enable the plaintiff to function maximally and safely at home. He also gave evidence about the cost free nature of such requirements.
The plaintiff
The plaintiff is 73 years old, single, retired and lives alone in rented accommodation. He is divorced with one adult son. He and Mrs van Soest, are still close and since his illness she has assisted with his care.
His evidence about the onset and progress of his condition is largely set out in the affidavit in relation to damages affirmed on 18 April 2012[2]. I accept that the affidavit provides an accurate description of his condition, treatment and function at that time.
[2] Exhibit P4 Perth (part of Exhibit P1 before Judge Parsons)
In about early February 2011 he started to suffer from shortness of breath and a lightheaded feeling. In about late August 2011 he noticed increasing chest pain and fatigue, had a decreased appetite and lost weight.
On 27 September 2011 the chest pain, which was primarily right-sided, worsened and was felt whenever he inhaled. By 3 October 2011 the chest pain was so unbearable that Mrs van Soest took him to the emergency room at the Sir Charles Gairdner Hospital (‘SCGH’) where tests showed that he had fluid on the right lung. He was admitted to hospital and the fluid was drained.
He was discharged after three days and then saw a respiratory physician on 9 October 2011 who advised a pleural biopsy to determine if he was suffering from any malignancy. He was readmitted to SCGH on 10 October 2011 to undergo a further chest drain. At this point he became very apprehensive about his condition.
He was readmitted to the SCGH again between 19 October and 22 October 2011. On 19 October he underwent a right pleuroscopy when fluid was drained from his right lung and biopsies were taken. He found this procedure very painful and in the recovery stage, his right chest was very tender and it was difficult for him to lie on his right side.
As it transpired the biopsy tissue was insufficient for a definite diagnosis and a second biopsy was required. At this stage he was advised of a possible diagnosis of mesothelioma. He found this news devastating.
He was readmitted to SCGH on 31 October 2011 and underwent a further biopsy on 1 November 2011. This was an extremely painful procedure. He remained in hospital until 4 November 2011 during which time the diagnosis of mesothelioma was confirmed.
He was then referred to an oncologist, Professor Anna Nowak, who recommended that he undergo chemotherapy. Between January and the time of his affidavit in April 2012 he had four cycles of chemotherapy, each about two weeks apart.
After each cycle he suffered from extreme fatigue and nausea with vomiting and had difficulty eating. Within a few hours of the first treatment, Mrs van Soest collected him and took him to her home where he stayed for about six days during which time she cared for him, only leaving him for short periods of time to do shopping or run errands.
Each chemotherapy treatment was followed by a period of severe reaction requiring him to be cared for at his ex-wife’s home. He said that the period of severe reaction was longer after each successive cycle. For example, he said that after the second treatment he spent two weeks at Mrs van Soest’s home.
In between the chemotherapy cycles and when the period of severe reaction had passed, he returned to his own home but was not able to do very much at all to look after himself. He said that during these periods Mrs van Soest came to his home to care for him about two days a week for about six hours on each occasion when she did his grocery and pharmacy shopping, laundry, dishes, house cleaning and some cooking.
The chemotherapy was stopped because of his severe reaction but he will undergo further chemotherapy and endure the severe side effects if he is so advised by his oncologist.
As at April 2012 and continuing he suffers from severe and constant chest pain. Sometimes it is a very sharp pain and he must stop moving until it subsides. The pain interferes with his sleep. He experiences pain in his chest everyday despite taking narcotic analgesia in the form of Oxycontin, Oxynorm and Nortriptyline.
He also suffers from shortness of breath. This improved following the drainage of fluid from his right lung but is experienced whenever he walks any distance such as when shopping at the supermarket and is exacerbated by hill or stair climbing. He becomes breathless when he showers and must rest before getting dressed so that everything takes longer than it used to. He is no longer completely independent in all his activities of daily living.[3]
[3] P4 para 19 in Perth (part of Exhibit P1 before Judge Parsons)
When Mrs van Soest gave evidence at the trial[4] the plaintiff was residing in his own home and intends doing so for as long as possible with Mrs van Soest continuing to care for him about six hours each day for two days a week. At some point, when his condition deteriorates, he believes that he will not be able to manage at home and that he will need to move into Mrs van Soest’s home for fulltime care.
[4] 21 May 2012
Between his retirement as a roof repairer in 2005 and the onset of the mesothelioma he was very fit and active. Up until late 2011 he could still do all of his home maintenance including repairs and heavy gardening. However since January 2012 his mobility and exercise capacity has changed dramatically. Now he cannot even tidy up after himself because of pain and breathlessness. He finds this very frustrating.
His appetite is very poor. He has lost interest in food and struggles to eat a main meal every day. He has lost a total of eighteen kilograms since he became ill. He no longer socialises. He used to walk to the local hotel to meet friends. He is too tired and breathless to walk and to stand around socialising. He told Ms Cunningham that he used to go to the races or fishing but becomes too breathless and is anxious about being away from medical services.
He worries about his condition and is apprehensive about his future. He had anticipated a long life because of his family history of longevity. He had previously been a smoker for about ten years but gave up 30 years ago[5]. He now knows that his life will be cut short. He is also worried about Mrs van Soest and how she will cope looking after him when his condition deteriorates.
[5] Tr 91-92 Perth
Mrs van Soest
Mrs van Soest is a retired anthropological researcher aged 65 years. Since she and the plaintiff divorced some years ago, they have maintained a harmonious relationship. Before his diagnosis of mesothelioma she saw him a couple of times a month. She observed that prior to the onset of mesothelioma he had always been fit and healthy other than a bout of shingles in about August 2011. It was her evidence that the plaintiff called her in early October 2011 saying that he felt ill with pain in his lungs. She took him to the SCGH. At that time she noticed that he was pale and perspiring. He appeared to be disorientated, in pain and unwell. During his three day admission she took him his personal requirements and visited with him. She drove him home when he was discharged. She also took him to hospital and home again on 10 October 2011 when the right lung was drained. In between those admissions she did some cooking, shopping and cleaning for him. She observed that he appeared to be in considerable pain[6]. She has been involved in the plaintiff’s care since October 2011.
[6] Tr 19
In between 10 October and 19 October 2011 when he was admitted again for the biopsy Mrs van Soest said that she visited the plaintiff at his home daily. During that time she observed that he was lethargic and appeared to be in significant pain.[7]
[7] Tr 21
When he was in hospital for the three days following the biopsy she visited him for about two to three hours a day and then when he was discharged she drove him to his home. She also drove him to the hospital for the second biopsy on 31 October 2011 and when he was discharged on 4 November 2011 she drove him to his home[8]. On discharge she observed that he had laboured breathing and appeared to be in significant pain.
[8] Tr 22
During the period between his discharge on 4 November 2011 and when he commenced chemotherapy on 25 January 2012 Mrs van Soest visited the plaintiff at home two or three times a week for about five hours each time, plus travelling time of about 45 minutes each way.
Mrs van Soest drove the plaintiff to his first chemotherapy session. She understands that he was driven home by a friend. Later that day he phoned her to say that he was very ill and she collected him and took him to her home where he remained for six days.[9]
[9] Tr 23
Mrs van Soest said that when he improved he went home where he remained until the second chemotherapy session on 15 February 2012. Following that session he began to feel unwell and drove to her home where he stayed for a further six days during which time his condition deteriorated and she was providing him with 24 hour care.
She said that he then returned to his home until the third session on 7 March 2012 after which he stayed with her for four or five days. Her recollection is that his condition was better than on the previous occasions. Following the fourth session on 28 March 2012 he also stayed with her for three or four days. The assistance which she gave during those occasions included getting him to and from the toilet, feeding him, general cleaning and making sure that he took his medication.[10]
[10] Tr 26
Since the plaintiff returned to his home following the fourth chemotherapy session Mrs van Soest has continued to visit him two or three times a week for about four to five hours on each occasion. She does shopping, washing up, laundry, cleaning, vacuuming, changes sheets and does other activities which are too heavy for him.[11]
[11] Tr 20, 27 and 30
It was her observation that, in between the time the plaintiff gave evidence in April 2012 and her evidence in May 2012, his condition had deteriorated. She noticed that he appeared to be in pain and had laboured breathing.[12]
[12] Tr 27
Mrs van Soest gave evidence that she attended the plaintiff’s assessment with Ms Cunningham. She said that she understands that the amount of care he will need will dramatically increase over time. She and the plaintiff have decided that she will endeavour to provide him with that care. She said that they have made that decision realising that down the track it might be the case that he becomes so ill that she cannot perform the required care. She said that in such an event hospice care may be necessary.[13]
[13] Tr 27
I accept Mrs van Soest’s general description of her involvement in the plaintiff’s past care. Any differences between her description of the plaintiff’s health and care requirements and that of the plaintiff are immaterial other than the various estimates of post chemotherapy care at her home. In that respect I prefer Mrs van Soest’s evidence. She is more likely to have an accurate memory of those periods.
However I am cautious about her estimate of the time she cared for the plaintiff at his home. She said that she spent about 90% of the time on household activities and 10% on companionship and support. She was clearly concerned about the plaintiff’s plight and became involved in his care as soon as she became aware that he needed help. The evidence suggests that she took it upon herself to assist with and organise his affairs. Ms Cunningham described her as advocating on the plaintiff’s behalf. I find that Mrs van Soest was probably at the plaintiff’s house for two to three days per week for four to five hours on each occasion together with travelling time of 45 minutes each way and that on such occasions, it was likely that she would have spent the majority of her time undertaking domestic duties but interspersed with a healthy dose of companionship and emotional support which I estimate at 25% of the time.
I find that the level and extent of care which Mrs van Soest will provide for the plaintiff will increase as he reaches the end stage of the disease at which time she will be required to provide for his care fulltime in her own home. I accept that it is her intention to care for him until his death unless she is unable to manage, in which case the plaintiff will probably be admitted to a hospice.
Professor Musk
Prof Musk provided five reports dated 30 January 2012, 21 February 2012, 12 April 2012, 15 June 2012 and 26 September 2012[14] and gave evidence via video link from Perth.
[14] Exhibit P24
He first saw the plaintiff in October 2011 for investigation of a pleural effusion. At that time the plaintiff gave a history of pleuritic pains in the right chest, was tired, breathless and sweaty. His report of 30 January 2012 described the plaintiff’s treatment, the investigations undertaken, the diagnosis and the prognosis.
The investigations and early treatment at the SCGH included:
·An ultrasound on 3 October 2011 revealing thickening of the right diaphragmatic pleura and loculated effusion. This resulted in the plaintiff undergoing pleural aspiration as an inpatient to remove fluid from his right lung. At that stage cytology was negative for malignancy.
·A CT scan of the chest, performed on 10 October 2011, revealing a massive right pleural effusion with bilateral calcified pleural plaques highly suspicious of malignant mesothelioma.
·Resultant admission to SCGH on 19 October 2011 for a pleuroscopy when his right lung was again drained, biopsies were performed but the diagnostic features of malignant mesothelioma were not seen.
·Re-admission on 30 October 2011 for a further biopsy. The combination of the biopsy result, the clinical history and the radiology resulted in the diagnosis of right malignant pleural mesothelioma.
Following the diagnosis Prof Musk referred the plaintiff to an oncologist, Dr Novak, who saw him for the first time on 30 November 2011.
In his report of 30 January 2012 Prof Musk reported that the plaintiff commenced chemotherapy on 25 January 2012. He expressed the opinion that the plaintiff had a life expectancy of six to nine months. He confirmed that the plaintiff would experience ongoing weight loss, tiredness, weakness and breathlessness as well as the side effects of chemotherapy.
He also outlined the anticipated future medical costs for the plaintiff’s care from that time including monthly outpatient’s visits, monthly chest x-rays, several CT scans, several hospital stays for the performance of pleural aspiration for the relief of symptoms, inpatient hospital care for about one month, chemotherapy costs including several overnight stays as an inpatient, a number of weekly visits to the day procedure unit, transport costs, medication costs and investigative blood tests, narcotic medication, palliative oxygen therapy, domiciliary palliative nursing care twice weekly for the final six months of his life and weekly hospice doctor visits for the likely four week terminal stage of his illness.
In a further report of 12 April 2012 Prof Musk reported that the plaintiff had completed four sessions of chemotherapy. He also noted that further CT scans had been performed on 30 March 2012 and 12 April 2012. Prof Musk noted that the scan results showed a decrease in pleural fluid and some change in the circumferential pleural thickening. As a result, Prof Musk modified his prognosis expressing the view that the plaintiff would survive a further six to nine months from that time because his disease process had been somewhat slower than anticipated from the usual clinical course of the disease. However, he also said that the plaintiff’s symptoms of pain, nausea and tiredness would progressively worsen; that he would continue to lose weight and become increasingly less active until the final one or two months when he would be virtually bed or chair bound. As a result of the extended life expectancy Prof Musk provided an updated list of the plaintiff’s future medical treatment and anticipated monitoring. The items are set out in detail later in these reasons.
When Prof Musk re-examined the plaintiff on 15 June 2012 he recorded a history that, at that time, he had ceased chemotherapy and that he was able to walk for up to a mile without stopping if he walked slowly, otherwise he would become breathless. He noted that the plaintiff said that he tires quickly and that his pain was controlled by his regime of analgesia. Professor Musk reviewed a further CT scan from 11 June 2012 which he said showed stable disease. As a result of the stability of the disease process Prof Musk reviewed his prognosis and suggested that the plaintiff might have a prognosis of survival of twelve to eighteen months from that point with the possibility of further chemotherapy.
A further report which Prof Musk sent to the plaintiff’s general practitioner dated 26 September 2012 stated that the plaintiff had seen Prof Musk on that date, that he was undergoing radiotherapy to a painful area on his back and that his walking tolerance, without getting breathless, had reduced to about 200 metres of slow walking. A CT scan taken on 14 August 2012 did not show definite disease progression at that time but his condition reflected a progressive disease.
When Prof Musk gave evidence on 9 November 2012 he confirmed his opinion that the plaintiff had a life expectancy of around twelve to eighteen months from June 2012. He confirmed that the plaintiff may require further chemotherapy. He confirmed that the plaintiff may require up to a month’s inpatient care over his remaining life if he suffers any adverse affects from further chemotherapy or experiences any current illness.[15]
[15] Tr 442-443
He said that as the plaintiff had been doing better than expected he has not yet needed any of the anticipated treatment set out in his first report, that he cannot be sure that the plaintiff will need those services but that ‘many patients with mesothelioma do need them as their disease progresses depending on the circumstances’.[16]
[16] Tr 444
Prof Musk also confirmed the availability of occupational therapy and other services for terminal patients of the SCGH and his belief that the plaintiff fitted the category of ‘non-admitted patient’ and that he could be referred by Prof Musk or his treating oncologist to those services. He expressed his understanding that, if he was a public patient, those services would be free but that, if he was privately insured or covered by insurance in any way the hospital would charge him.[17]
[17] Tr 444. There is an error in the transcript; read in context Prof Musk said ‘If he’s privately insured or covered by insurance in any way then the hospital would charge him’.
Dr Antic
Dr Antic’s report of 10 August 2012[18] was based upon a review of the available cytology, histopathology, pathology, diagnostic and radiological material, the reports of Prof Musk, the reports of Prof Henderson[19], the hospital notes from the outpatient and oncology departments, the general practitioner’s notes, the reports of the occupational therapist, Ms Cunningham and the DVD of the plaintiff giving evidence on 19 April 2012.
[18] Exhibit D23
[19] Exhibit P26 Prof Henderson’s reports concerned diagnosis and causation
Apart from confirming the diagnosis of right pleural malignant mesothelioma, Dr Antic confirmed that the plaintiff’s symptom history demonstrated that he has an ongoing active malignant process interfering with his quality of life and function. He described the disease as advanced but currently ‘stable’ requiring modest supportive care. He said that this phase would be followed by a rapid terminal phase lasting one to three months during which he will require increasing amounts of supportive care for the activities of daily living provided through a combination of family carers, professional home help or hospice palliative care services. This evidence was generally consistent with that of Prof Musk. He understood that Prof Musk’s then current assessment was of a life expectancy of twelve to eighteen months. He did not express any contrary view.
Dr Antic’s report and oral evidence also addressed the possible further treatment and monitoring of the plaintiff’s condition. His opinion that there would be no need for any further hospital in-patient costs was based on the assumption that there will be no further chemotherapy. However he expressed the view that such treatment occasionally assists in symptom control and agreed that Prof Musk is in a position to make an assessment whether that would be likely to be of any benefit[20]. As to Prof Musk’s view that one month of inpatient care may be necessary for treatment other than chemotherapy, Dr Antic said that such a need may be more likely if the plaintiff lived alone than if he had a carer at home.
[20] Tr 1100
Dr Antic said that only two further chest x-rays would be needed and one CT scan. This is markedly different from Prof Musk’s assessment that monthly chest x-rays and six monthly CT scans will be required. I prefer Prof Musk’s evidence as he is better placed to anticipate the needs of his patient. The evidence of Prof Musk and Dr Antic was consistent that the plaintiff will need ongoing narcotic analgesia therapy and that, in the end stage of life, he may require palliative home oxygen therapy.
The final matter of significance referred to by Dr Antic related to the equipment and house alterations which Ms Cunningham recommended for the plaintiff. Dr Antic expressed the view that, if the plaintiff continues to live alone, more of his care would be conducted in hospital and the equipment specified would not be required. I do not accept that position. It is likely that the plaintiff will be cared for in a residential setting for some period and as such he will require equipment and home modifications to assist with the activities of daily living.
The Occupational Therapists
The evidence of Ms Cunningham and Mr Pearce as to the plaintiff’s personal care and equipment needs was based on the progressive nature of the disease described in the reports of Prof Musk and Dr Antic and the results of their respective functional assessments of the plaintiff. Their evidence differed as to the type of aids, equipment, home modification and care which the plaintiff will require as the disease progresses.
Both Ms Cunningham and Mr Pearce are qualified occupational therapists with considerable clinical experience, both in the hospital setting and in a private capacity. Both have experience in the assessment of the needs of terminal patients.[21]
[21] P22 Ms Cunningham’s CV and Exhibit D4 Mr Pearce’s report of 18 July 2012 p 3
Ms Cunningham provided three reports dated March 2012, 24 March 2012 and 6 September 2012 and gave oral evidence twice[22]. The second occasion was necessary firstly, to address her response to Mr Pearce’s report which post-dated the first occasion of her oral evidence and secondly, to modify her opinion given the plaintiff’s revised prognosis.
[22] Exhibits P3 (March reports) and P21; oral evidence 21 May and 8 November 2012
The report of March 2012 sets out Ms Cunningham’s opinion about the plaintiff’s level of function and his current and future equipment and care requirements. The opinion is based on the plaintiff’s history of the onset of symptoms, Prof Musk’s clinical assessment contained in the report of 30 January 2012 including his then prognosis of a six to nine months life expectancy. Ms Cunningham also interviewed the plaintiff and Mrs van Soest at the plaintiff’s home on 25 February 2012[23]. Ms Cunningham based the care and equipment requirements on a life expectancy of six to nine months and the plaintiff’s stated desire to continue to live alone in his own rented accommodation with care available as required.
[23] Exhibit P3 March report
The report considers areas of function such as mobility, seating, bedding, personal hygiene, dressing, eating and drinking, home management, transport, recreation and the functional design requirements of his dwelling. In respect of each of those topics Ms Cunningham has described the plaintiff’s then level of functioning and outlined what assistance he required at that time and would be likely to require in the future. An equipment schedule, Appendix 1 to the report itemises the anticipated cost of such equipment, services or home modifications. Appendix 2 refers to the need for assessment and care from a physiotherapist, dietician and occupational therapist but does not quantify the associated costs.[24]
[24] P3 March report Appendix 1 - Equipment Schedule and Appendix 2 - Allied Health Care
A summary of Ms Cunningham’s assessment of the plaintiff’s functioning and needs as at March 2012 is as follows:
Mobility: Ms Cunningham noted that the plaintiff was independent with mobility but limited by fatigue, pain and shortness of breath when undertaking any form of physical activity. She said the plaintiff may require a walking aid after assessment by a physiotherapist. He may need a handrail and ramp for access to his house and treatment of paths around the house to make safe. In the future he will require a lightweight wheel chair, a wheel chair cushion and a portable ramp for access in and out of the house. At the time of the assessment he was driving his car and doing his grocery shopping a couple of times a week, but in the near future he may benefit from access to an electric scooter for access in his community. With the progression of the disease he will need a mobile electric hoist and sling so that a carer can transfer him between the bed and his wheel chair.
Seating: With the progression of the disease an electric recliner/lift chair with a hand held control will allow him to recline and transfer in and out of the chair more easily and will enable him to rest without needing to be transferred to bed.
Bedding: at the time of assessment the plaintiff was independently able to get in and out of bed, but required a bed wedge to facilitate sleeping on an incline to ease breathing and a bedrail to assist him in sitting, standing and rolling over independently. As the disease progresses he will need a height adjustable hospital bed to assist with transfers to facilitate his care, to allow him to sleep on an incline and for breathing and pain relief. Pressure mattresses and washable incontinence sheets will also be needed at that stage.
Personal Hygiene: at the time of assessment the plaintiff was independent when showering. Soon weight bearing grab rails, a hand held shower on an adjustable height pole and a shower stool will be required. As the disease progresses, he may require a shower transfer bench and the removal of the shower screen to enable easier access. Dressing aids such as a long handled shoe horn, dressing stick and a long handled reacher may be required in the future. At the time of the assessment the plaintiff did not have any incontinence problem but with deteriorating mobility, he may need incontinence pads. In the palliative stage a bedpan, urinal bottle and an overbed table will be required. When the plaintiff can no longer attend to his personal care he will require the assistance from a carer for such tasks.
Dressing: the plaintiff can dress himself but there will come a time when he cannot do so and will need assistance.
Eating and Drinking: the plaintiff has lost weight since his diagnosis and may require the assistance of a dietician to ensure that he maintains his weight.
Home management: At the time of the assessment the plaintiff could not clean his house adequately or undertake home maintenance. He requires immediate home maintenance, cleaning and domestic assistance.
Transport: The plaintiff was able to drive but requires a handy bar to assist transfers in and out of the car and a disabled parking permit.
Recreation: the plaintiff reported to Ms Cunningham that he feels too unwell to drive to friends for socialising. He used to attend organised activities with friends such as fishing trips and the races but now feels too breathless, fatigued, unsteady on his feet and anxious about being away from medical services.
Functional Design Requirements: At the time of assessment the plaintiff had no difficulty accessing his dwelling but should he become wheelchair bound he will require a ramp and platform at his main entrance and may need a wheeled commode for showering. Ms Cunningham also indicated that should the plaintiff move to Mrs van Soest’s house for care an occupational therapist will be required to visit her house to ensure that his access and functional needs are adequately met.[25]
[25] A copy of a product guide setting out the products referred to in her report and the costs was tendered as part of exhibit P4
Ms Cunningham also dealt with the level of care the plaintiff required at that time and his future care requirements. She indicated that he required an immediate increase in care hours and that as the disease progresses he will require a gradual increase of allocated care hours. At the palliative stage, as a single man with limited people to provide care, costs for such services can be expected to be high.
In the first report, Ms Cunningham divided what was then a period of nine months’ life expectancy into three periods of care being moderate care for 36 weeks, high care for ten weeks and palliative care for six weeks. However when she gave evidence she indicated that the reference to moderate care for 36 weeks was in error and should have been twenty weeks. In any event that period has been extended given the more optimistic assessment of the plaintiff’s anticipated life expectancy.[26]
[26] Tr 71
The report is accompanied by schedules setting out the level of care required for each of the three stages. Moderate care contemplates that the plaintiff will need some assistance with most of the domestic chores and someone to be on hand to render assistance as needed. The suggested care requirements for this stage are one hour of meal preparation per day, three hours per fortnight of domestic assistance, two hours per day for personal care assistance, one hour per week of nursing assistance and four hours per quarter for home maintenance. High care contemplates that the plaintiff will require assistance with all aspects of daily living including assistance with transfers and his personal care and hygiene. She suggested that he will need two hours of meal preparation per day, three hours per fortnight of domestic assistance, five hours per day personal care assistance, two hours per week of nursing assistance and four hours per quarter of home maintenance. Palliative care contemplates 24 hour care including one hour per day nursing assistance, clinical nurse assistance two hours per week and round the clock care provided by a trained carer. The cost of care for this period was assessed as significant given the plaintiff’s wish to be cared for in a home setting[27]. Ms Cunningham understood that in the palliative stage it is intended that Mrs van Soest will continue to provide domestic and personal care assistance and that professional nursing and medical care will also be required.
[27] P3 March report Appendix 3 – Care and Home Maintenance Requirement Calculation
The cost of care is set out in the schedules. The cost is based on the rates of an organisation known as Silver Chain. Ms Cunningham also used rates from an organisation called MACS Maintenance for the home maintenance requirements. Ms Cunningham used rates from Flex Health Care for the cost of overnight care in the end stage of the plaintiff’s disease[28]. She acknowledged that some of the services referred to in her report are available through the public system particularly Home and Community Care services (‘HACC’) but she said that these are subject to availability, eligibility and suitability for the plaintiff’s needs and in her view are not suitable.
[28] P3 March report Appendix 3 p 3; A copy of those rates was not provided.
Ms Cunningham assessed the cost of palliative care as a private commercial service although she acknowledged that palliative care services may also be available at no charge through Silver Chain’s Palliative Care Branch following a doctor’s referral and subject to availability and needs assessment by Silver Chain.
Ms Cunningham’s further report dated 24 March 2012 outlined the care and assistance which the plaintiff required between October 2011 and the date of her assessment on 25 February 2012. The report outlined her understanding of the level of care which Mrs van Soest provided to the plaintiff when he stayed with her following each period of chemotherapy and when she visited him at his home. It was apparent from her cross-examination that her summary of past care costs, based on Silver Chain’s commercial rates, was arrived at by multiplying the hours specified by Mrs van Soest in her evidence by the applicable Silver Chain hourly rate. No adjustment was made for time spent in companionship as opposed to care. It will be necessary to make a deduction in keeping with the finding that 25% of the time was spent in companionship.[29]
[29] P3 report of 24 March 2012; tr 73; A copy of the Silver Chain schedule of fees was tendered as exhibit P4
Ms Cunningham’s third report of 6 September 2012 responded to Mr Pearce’s report of 18 July 2012[30] and addressed differences in their respective approaches to the level and cost of care, eligibility for free palliative care and eligibility for free equipment and home modification. Her oral evidence on 8 November 2012 was also largely directed to these topics.
[30] D4
To put that report and her oral evidence into context it is appropriate to set out Mr Pearce’s documentary and oral evidence first and then to deal with Ms Cunningham’s response.
Mr Pearce’s evidence was based on consistent personal information and medical history. His clinical assessment of the plaintiff’s function was generally consistent with that of Ms Cunningham. With some exceptions he agreed with the list of equipment required. He formed a different view about home maintenance, home modification and the level of care required. He made a distinction between the plaintiff’s care needs up to and during the palliative stage of about six weeks. When he assessed the plaintiff his life expectancy was to about October 2012. When he gave evidence he confirmed that, if the plaintiff’s life expectancy was extended by about a year, the palliative stage would remain at about six weeks[31]. He also prepared his report on the understanding that the plaintiff wished to remain in his home for as long as possible, and that when he reached a level of dependency in his activities of daily living he intended to move to Mrs van Soest’s home and remain there for the palliative stage of his disease and that he did not wish to be cared for in a hospice. For that reason he also inspected Mrs van Soest’s home.
[31] Tr 570 & 582
On clinical evaluation he noted that the plaintiff demonstrated reduced standing balance, reduced general global strength, reduced upper body strength, increased respiratory breathing, agitation, complained of significant pain on a daily basis and had lost weight.
In assessing the plaintiff’s functional activities of daily living, his overall view was that, at that time, the plaintiff was unable to prepare meals for himself, could not attend to laundry tasks or undertake house work, home maintenance and could not undertake other than light shopping when he felt well enough, could not drive very far and could not attend to his personal banking and postal business. He described the plaintiff’s likely future physical and cognitive limitations and anticipated equipment and home modification needs. Although Mr Pearce and Ms Cunningham largely agreed about the equipment, notable exceptions were that Mr Pearce did not agree with the hire of a Shop Rider scooter and did not consider that a dedicated electric recliner/lift chair was necessary as Mrs van Soest already had one at her home.
They differed about the need for home modifications at the plaintiff’s home. As Mr Pearce anticipated that the plaintiff would be moving to Mrs van Soest’s house within six to eight weeks from his assessment[32], he assessed the home modifications likely to be required at her home instead. These included reversing the bathroom door, installation of grab rails and a hand held shower.
[32] D4 p 17
As to domestic service and personal care needs Mr Pearce was of the view that the plaintiff would be well served with pre-prepared meals from Meals on Wheels or Home Chef instead of home prepared meals, that his household requirements could be provided by home delivery from a local supermarket, prescriptions could be delivered by the local pharmacy and that the plaintiff could use transport services via subsidised taxis or volunteer hospital transport rather than family members incurring associated costs. Mr Pearce also formed the view that no home maintenance work was required at the plaintiff’s rental accommodation.[33]
[33] D4 p 17
Mr Pearce assessed the domestic and care needs as follows:[34]
[34] D4 p 22
Current
I. Domestic Assistance - assistance with cleaning floors and wet areas, and assistance with laundry. Current anticipated requirements are a maximum six hours per week.
II. Daily Support with Meals - either Home Chef or Meals on Wheels would be adequate. Current anticipated requirements are seven meals per week.
Ill. Shopping delivery through Coles organised twice weekly would be sufficient.
IV. Medications can be delivered by his local pharmacy once per week - there is no cost for delivery services.
Future
I. Domestic Assistance - assistance with cleaning floors and wet areas, and assistance with laundry. Anticipated requirements are two hours per week required until end stage, finishing on the 12th October 2012.
II. Personal care, nursing and medical care services - provided through Silver Chain Palliative Care Services as determined following assessment by Silver Chain and adjusted according to Mr. Van Soest's decline. Provided at no cost to eligible clients.
The fundamental difference in their evidence was the cost of equipment, home modification and domestic and personal care services. It was Mr Pearce’s understanding that the plaintiff qualified for the provision of aids, equipment and home modification at no cost through the Department of Health, Western Australia because he was a current and recent WA Health admitted or non-admitted patient[35]. It was Mr Pearce’s understanding that all essential items such as bed rails, an electric hospital bed and mattress, a hoist, a slide sheet, an over bed table, an over toilet frame, bedside commode, handheld shower, shower chair, transfer bench, walking frame, wheelchair and a temporary ramp for wheel chair access would be provided to him at no cost through either Silver Chain Palliative Care Services or the Occupational Therapy Department of the SCGH.
[35] D4 p 4
Mr Pearce also understood that the plaintiff qualified for personal care assistance at no charge through a division of Silver Chain Palliative Care Services prior to the palliative stage. He also said that the plaintiff would be entitled to receive personal care support, nursing, oxygen therapy equipment and medical services at the palliative stage at no cost.
However Mr Pearce agreed, in cross-examination, that a government department may seek to recover the costs of equipment, care and services from a compensable patient, and he agreed that hospice costs are usually recoverable. Nevertheless he maintained his earlier position that no cost services could be obtained for all the plaintiff’s needs.
In her last report and oral evidence Ms Cunningham responded to this evidence. She said that free palliative care was provided via referral from a general practitioner and the fulfilment of certain eligibility criteria for the active dying process. It was her view that this service was unlikely to meet the plaintiff’s needs and that palliative care provided by Silver Chain as a private provider at commercial rates would be more timely and efficient and allow greater levels of comfort for the end stage of life.[36]
[36] Tr 372
Ms Cunningham clarified that the palliative care team does not provide 24 hour care, that its role is to support a carer who is already in place, that Mrs van Soest would receive instruction in the plaintiff’s care and that if the plaintiff lived alone with no carer Silver Chain would not be able to facilitate home palliative care. This is because palliative care is separate from domestic or personal care such as toileting, showering or dressing which are required to be maintained throughout. Palliative care is limited to the active dying process when breakthrough pain and breathing difficulties cannot be managed by the general practitioner. For that reason a free palliative care program would not provide nursing care during the earlier moderate or high care periods.[37]
[37] Tr 361, 370-371, 377 and 379-380
In relation to equipment and home modification Ms Cunningham said the plaintiff does not qualify under the Department of Health Guidelines for aids, equipment and home modifications at no charge or reduced charge through the occupational therapy department of the SCGH or the Community Aids and Equipment Program (‘CAEP’). She said that CAEP would be unlikely to respond to his requirement for assessment and equipment in a timely fashion and that, in any event, it is her understanding that recipients with a compensation claim are required to pay for the equipment provided. She said that a number of the items of equipment and home modification she has recommended are not funded under any government system. She also maintained her opinion that the plaintiff requires a dedicated electric lift chair, an electric scooter and a portable ramp contrary to Mr Pearce’s view. She described a scooter as a basic need once he cannot drive.[38]
[38] Tr 385
As to Mr Pearce’s suggestion that the plaintiff can access community services for nursing care and personal assistance, Ms Cunningham clarified that she did not make enquiries about services provided by community programs because she did not regard such services as suitable given the level of assistance that the plaintiff required at that stage and was likely to require in the future. Such services are capped to five hours per week and there are delays in assessment and in waiting for care to be arranged. Once in the palliative stage, the five hours permitted for domestic and personal care through one of the community care services would be inadequate to change his bedding, turn him every two hours and change pads. She also understood that there is a reimbursement required in the case of compensation claims although she was unable to clarify that.[39]
[39] Tr 74, 362-363 and 382
She stressed that, when recommending equipment and personal care, she nominated the most basic economical type that would meet his assessed essential functional needs with the proviso that it is very hard to predict the hours of care which a person will need. She denied that she had taken into account his spiritual or emotional needs. She agreed that the course of palliative care cannot be accurately predicted because the disease process is variable; that sometimes there is a rapid decline and sufferers end their days either in a hospice or a hospital rather than dying at home.[40]
[40] Tr 365-366, 381-382 and 386
She agreed that in domestic assistance and nursing care she used the rates commercially charged by Silver Chain without any discount to take into account the possibility that free services would be available. This reflected her view that such services would not be adequate and that the services would be the subject of reimbursement from compensation payable. She was also of the view there was efficacy in using the costings of the same provider for all aspects of care throughout each period of need.[41]
[41] Tr 382-383
She disagreed with Mr Pearce’s assessment of the plaintiff’s needs[42] and expressed the view that he had misinterpreted the guidelines for free or reduced cost services.
[42] Tr 367
Financial Responsibility for Care and Equipment
I have little confidence in Mr Pearce’s opinion that the plaintiff can receive equipment, home modification, domestic care, personal care or palliative care at no or reduced cost. His opinion was not based on any authoritative advice from the SCGH, from Silver Chain or any other provider of state or federal government community programs about the availability of their services for a potentially compensable client. He also acknowledged that the government may seek to recover the cost of equipment, care and services provided by organisations and hospitals from a person who recovers damages.[43]
[43] Tr 576-577
That position is consistent with Ms Cunningham’s understanding and that expressed by Prof Musk. The probability that recovery will be required also accords with the material referred to in the WA Health Policy, Provision of Aids Equipment and Home Modification published by the Department of Health which was attached to Ms Cunningham’s report of 6 September 2012[44]. The policy states that it is governed by the Hospitals and Health Services Act 1927(WA) and the Hospitals (Services Charges) Regulations 1984. The Act defines ‘services’ to include the items covered by that policy. The Act also authorises hospitals to charge for their services and the Regulations set out the charges and the circumstances in which they are charged. In accordance with the Regulations compensable inpatients, day patients, outpatients, and same day patients will be charged for those services in an amount determined by the Minister according to the cost of the service (Reg 5)[45]. I draw the inference that, if the plaintiff uses state or government funded community programs through Silver Chain or other providers or SCGH services to access equipment, home modification, and domiciliary, medical and nursing care during the moderate, high care and palliative stages, he will be required to make recovery.
[44] P21
[45] Compensable patient is defined in Reg 8(a), 7(1)(c) and 9(1)(a) as one who has received or ‘who on attendance at a hospital appears prima facie to have the right to receive any such payment in respect of an injury, illness or disease for which he is receiving care and treatment…’.
Other differences between the opinions of the occupational therapists are dealt under the relevant heads of damage.
Pain and Suffering and Loss of Amenities
The plaintiff suffers from a debilitating and painful progressive disease. I accept his evidence and the descriptions of his condition given by Prof Musk, Dr Antic, Ms Cunningham, Mr Pearce and Mrs van Soest. He experiences increasing shortness of breath and chest pain, he is fatigued, he has lost weight and has loss of appetite. He requires narcotic analgesia to control his pain. He has undergone the extremely painful procedure of aspiration of fluid from his right lung twice and has had two biopsies. He has had four cycles of chemotherapy with the associated nausea, vomiting and fatigue and may undergo further chemotherapy if advised by his oncologist.
He has lost his independence. He is becoming increasingly disabled and will eventually be totally dependent on Mrs van Soest for assistance with even the most basic aspects of daily living. He cannot socialise with his friends and he is anxious and distressed about the future and his impending death. He is anxious that Mrs van Soest may not be able to care for him until his death.
During the remaining period of his life, which based on Prof Musk’s prognosis may extend to about December 2013, he will become increasingly debilitated until in the final stages of the disease he will be bedridden, will suffer double incontinence, will have difficulty breathing and will be totally dependent on the care of others. He will require additional narcotic analgesia to control severe and unremitting pain. He is likely to suffer a diminution of cognitive function as time progresses and he will require oxygen to assist with breathing.
Mr McIntrye SC submitted that the assessment of general damages should be comparable with the level of damages awarded in other dust disease cases in other jurisdictions however I am bound by Ewins v BHP Billiton Limited and Wallaby Grip Limited[46] in which Doyle CJ said that awards for pain and suffering in cases of mesothelioma should have regard in a general way to the general level of awards for damages for personal injury made by Courts of this State.
[46] (2005) 91 SASR 303
I award $120,000 having regard to the fact that Ewins was decided some seven years ago and taking into account the expected prognosis. The plaintiff has lived with the physical pain and limitations of his condition and its treatment, and the emotional consequences of his disease since late 2011. He has the expectation of a further six months of unrelenting pain and severe disability. To accommodate both those aspects I attribute half of the damages to the past and half to the future. I award an amount of interest in the sum of $2,400.
Loss of Expectation of Life
The plaintiff is currently 73 years of age and has a prognosis of twelve to eighteen months from Prof Musk’s examination in June 2012. Mr McIntyre submitted that, on current life tables, a 73 year old male has a life expectancy of 14.04 years and that was not disputed. The plaintiff has no comorbitities. Prior to his diagnosis he was an active, fit and independent man who had an expectation of a long life based on his family history of longevity and his health status. In Ewins v BHP the award for a similar aged man was $10,000 based on what should have been a number of years in retirement. Bearing in mind that this head of damage is to be moderate but not nominal I award $12,000.
Past medical and like expenses
The Notice of the Government of Western Australia, Department of Health, Health Corporate Network dated 17 June 2013[47] advises that the plaintiff has incurred a total of $52,435 for admissions to the SCGH comprising $20,590 for a total of eleven days as an inpatient between 3 October 2011 and 4 January 2013, $22,104 for twelve separate attendances as a same day patient between 10 October 2011 and 12 June 2013 and $9,741 for a total of 54 outpatient attendances between 10 October 2011 and 29 May 2013.
[47] Exhibit P57
The Notice of Charge of Medicare Australia dated 26 June 2013[48] itemises a number of medical expenses which the plaintiff has incurred for specialist consultations, investigations, radiation oncology treatment and consultations with and attendances by his general practitioner. These services were incurred between 8 September 2011 and 11 June 2013 totalling $3609.30. I accept that the plaintiff has incurred the expenses outlined in those notices and allow past medical and like expenses at $56,044.30.
[48] Exhibit P58
Future medical and like expenses
Determining the quantum of future medical expenses is not an exact science. I have made the best estimate I can on the available evidence and then taken into account various contingencies. In April 2012 Prof Musk estimated the plaintiff’s future costs at $58,556 taking into account the following items:[49]
[49] P24 p 3
My estimate of his future medical expenses is
Monthly outpatient visits
9@ $130.00 $1,170.00
Monthly chest x-rays
9@ $142.00 1,278.00
CT scans: initial,
3@ $810.00 2,430.00
Inpatient hospital care for one month@ $400/day 12,000.00
Chemotherapy costs:
Hospital costs:
Inpatient treatment: 6 overnight stays 3,000.00
12 Weekly Day Procedure Unit visits 2,000.00
Transport costs: 300.00
Medication costs:
a) Chemotherapy: assuming he
undergoes 6 further cycles of chemotherapy
at $3,100.00 each 18,600.00
b) Anti-nausea drugs for six cycles 840.00
c) Antibiotics for febrile neutropenia 3,200.00
Investigations:
Blood tests: 20 blood tests @ $45.00 each 900.00
Narcotic analgesic therapy 6,000.00
Palliative oxygen therapy
1 month @ 2 L/min 287.00
Course of palliative radiotherapy 3,751.00
Domiciliary palliative care nurse
2/weekly for final 6 months @ $50/visit 2,400.00
Hospice doctor weekly for terminal phase
4 visits @ $100 each 400.00
Total $58,556.00
It is clear that, at the time that the list was prepared, Prof Musk thought that the plaintiff had a life expectancy of about ten months hence the reference to nine monthly outpatients visits and nine chest x-rays, and other treatment followed by one month’s palliative care. Since Prof Musk prepared that list he has expressed the view that the disease has progressed more slowly than expected and altered his estimate of the plaintiff’s life expectancy to the end of 2013. In addition, in the time that has passed since Prof Musk’s estimate of future treatment the plaintiff has continued to receive active treatment and so some of his anticipated costs have become incurred costs and have been incorporated in the past expenses as evidenced by the Notice of Health Corporate Network dated 17 June 2013.
For that reason I have assessed future medical expenses from now, assuming a life expectancy of six months. I accept Prof Musk’s identification of the categories of expenditure. Therefore the plaintiff’s future medical expenses should include allowance for regular outpatient’s visits, monthly chest x-rays, several CT scans, hospital care for a total of about a month for complications which might arise in his treatment, further sessions of chemotherapy with associated hospitalisation, medication and blood tests and twice weekly home visits from a palliative care nurse for six months. For the purposes of making allowance for future medical expenses during the palliative care stage I have assumed a four, rather than six, week period. During this time allowance should be made for the continuation of twice weekly trained nurse visits, weekly doctor’s visits, palliative radiotherapy, oxygen therapy and narcotic analgesia therapy. I also allow for a night-time paid carer to provide Mrs van Soest with respite. I do so on the basis of Ms Cunningham’s recommendation for such care. In determining this head of damage it is also relevant that the plaintiff may need hospice care after all. The letter of Bethseda Hospital dated 5 December 2012[50] provides the current cost of a public palliative care bed of $783.65 per night.
[50] Exhibit P50
In determining the quantum of future medical expenses I am generally guided by the frequency and costs specified by Prof Musk but with the following modifications. As to the number of outpatient visits I would allow twelve visits over the next six months. I do so on the basis that the notice of past medical expenses provided by Health Corporate Network indicates that instead of one outpatients visits per month he has already had fifteen such visits to SCGH since the beginning of 2013. Therefore I infer that some aspect of his condition requires ongoing close monitoring. I would also allow each visit at $189 as that appears to be the cost charged by the SCGH[51] rather than $130 as estimated by Prof Musk. I allow outpatient visits at $2,268. As to nursing care I prefer Prof Musk’s opinion that the plaintiff will require twice weekly nurse visits for the entire six month period rather than Ms Cunningham’s greater estimation as to the extent of nursing care. However I have used the Silver Chain hourly rate of $90 for a registered nurse rather than the estimate made by Prof Musk. I allow that item at $4,680. I have also assumed eight hours of paid care by a night care aide for four weeks using the Silver Chain rates of $39 per hour for weekdays, $43 per hour for Saturdays and $50 per hour for Sundays. I allow that future paid care at $9,216.
[51] P57
The total estimate for future medical expenses after making those modifications is $71,150.
However the plaintiff’s life expectancy cannot be regarded as certain. His condition could suddenly deteriorate so that his need for ongoing active medical treatment may be curtailed. This may result in the palliative care stage being brought forward within the next six months. Another possibility is that he may be hospitalised and not need the special palliative care proposed at home or in a hospice. I also bear I mind that there is a cost difference between the home palliative care and that provided in a hospice. On my best estimate (leaving aside Mrs van Soest’s gratuitous services which are not relevant to this head of damage) it would appear that paid home palliative care would be cheaper than hospice care. I have made a deduction to allow for the unpredictable nature of the disease and taken into account the variable nature of the cost of palliative care. In my view, it is unrealistic to make any countervailing allowance for the possibility that the plaintiff may live longer than the end of 2013. Doing the best I can I award $62,000 for future medical and like expenses.
Aids, equipment and home modification
Ms Cunningham and Mr Pearce arrived at a very similar list of equipment required by the plaintiff to meet his future needs from the date of trial. Their views about home modification differed. Mr Pearce was of the view that there was no need to modify the plaintiff’s bathroom as he was likely to move to Mrs van Soest’s home within eight weeks of the assessment. That opinion was based on an earlier prognosis of a shorter life expectancy. I prefer Ms Cunningham’s view that the plaintiff would have a reasonably long period of moderate care in his own home. Removal of a shower screen and the installation of a hand held shower would assist in the plaintiff’s independence. I accept Mr Pearce’s assessment that the bathroom at Mrs van Soest’s house also needs modification by reversing the bathroom door and installing a hand held shower. As to the cost I have adopted those specified in Ms Cunningham’s report. I accept Mr Pearce’s opinion that modification of the paths in the plaintiff’s garden is probably not necessary. I accept Mr Pearce’s opinion that home maintenance, which was probably not the plaintiff’s sole responsibility in any event, is not a reasonable future expense.
In terms of the equipment I also agree with Mr Pearce that the provision of an electric scooter is not necessary or reasonable. Ms Cunningham seemed to suggest that this would be a suitable form of transport, providing the plaintiff with independence, when he reaches the point that he is unable to drive as a result of physical, cognitive or narcotic medication effects. When one considers that similar levels of cognitive and physical function are required for the control of a scooter on public roads, footpaths and other public places it is unlikely that the plaintiff would be well served by the use of such a piece of equipment. I agree with Mr Pearce that an electric recliner/lift chair, which he has viewed at Mrs van Soest’s house, will be adequate.
With those specific modifications, I allow the other items of equipment recommended by Ms Cunningham’s schedule at the costs derived from the River Abilities Product Guide 6th Edition[52], with the following adjustments. Instead of a permanent ramp built at the plaintiff’s rental accommodation I make allowance for two portable ramps. In this way the ramps can be used while he remains in his own rental accommodation and can then be used again as a means of access to and from Mrs van Soest’s house. Most of the items have been claimed at the cost of purchase with only relatively few items claimed on a three month hire. I accept that Ms Cunningham has accurately determined which items are capable of being hired. The total of the items after making the adjustments referred to above is $8,390. These items are all necessary for the maintenance of the plaintiff’s care whether he is residing in his own home or at Mrs van Soest’s home and they will be required even if his life expectancy is shortened. Many of the aids and equipment will be required to assist with his care even if at a later stage he is admitted to a hospice. Accordingly I have not made any deduction for contingencies. I allow this head of damage at $8,390.
[52] P4
Past Gratuitous services
This head of damage relates to Mrs van Soest’s assistance to the plaintiff for the following periods and activities; driving him to and from hospital and visiting him in hospital on the three days between 3 October and 6 October 2011; driving him to and from hospital on 10 October 2011 and staying with him for his day procedure; driving him to and from hospital and visiting him each day for five days between 31 October and 4 November 2011; providing domestic assistance at the plaintiff’s home between 6 and 19 October 2011 and then again between 4 November 2011 and 25 January 2012; providing domestic and personal care at her home for approximately 22 days after each of the four sessions of chemotherapy in January, February, March and late March 2012; providing domestic care at the plaintiff’s home between the chemotherapy sessions and providing domestic care at the plaintiff’s home following the fourth session up to the date of trial, commencing on 21 May 2012.
Generally speaking I am satisfied that the commercial rates appearing in the Silver Chain Schedule of Fees relating to domestic assistance and care represent appropriate rates for the calculation of past gratuitous services[53]. However I have made certain deductions and adjustments to Ms Cunningham’s costs’ assessment to take into account my findings and to ensure a reasonable allowance for this head of damage.
[53] P4
As I understand Mr Pearce’s evidence he did not specifically address the plaintiff’s past care needs but provided an opinion about the care needs at the time of his assessment on 18 July 2012 and into the future. Nevertheless his specific views about the provision of meals, shopping, transport and the filling of prescriptions are relevant to the level of Mrs van Soest’s past services to the plaintiff. I do not accept Mr Pearce’s opinion in relation to the provision of home delivered pre-prepared meals. The plaintiff was very ill, he had lost weight and he had little appetite. That situation was not likely to be helped by the provision of prepared meals of limited choice delivered at nominated times of the day. To ensure his sustenance it was reasonable that Mrs van Soest prepare his meals. As to the home delivery of foodstuffs and other household requirements from a supermarket it may well have been feasible to obtain a home delivery but the plaintiff was probably not well enough to check provisions, prepare twice weekly shopping lists and organise the placement of the order and payment. It was reasonable for Mrs van Soest to do the shopping herself. I take Mr Pearce’s point in relation to the delivery of medications assuming that such a service was available from his pharmacist. As to travel to and from the hospital I note Ms Cunningham’s comments about availability and consider that it was reasonable for her to provide transport services.
In relation to the periods when Mrs van Soest drove the plaintiff to and from the hospital and visited him between October and early November 2011 I have reduced the total claimed by half to reflect that part of the period would have been spent in companionship rather than assistance. I allow that part of the claim at $945.
Prior to trial[54] there were approximately 27 weeks when Mrs van Soest went to the plaintiff’s home to assist him with domestic chores, cooking, shopping, transport etc. I have found that during this time she spent two to three days per week for four to five hours each occasion plus travelling time. I have included cooking and shopping time within the amount allowed. I have used the Silver Chain domestic assistance rate of $45 per hour. Allowing four hours travelling per week, and ten hours care per week reduced by 25% I allow this part of the claim at $13,970.
[54] I have taken the date of trial to be 21 May 2012 rather than the date when evidence was taken on Commission in Perth.
Accepting Mrs van Soest’s evidence about the number of days that she cared for the plaintiff at her home following his chemotherapy sessions there were between 19 and 21 days in total when Mrs van Soest spent part of everyday actively caring for the plaintiff. I have assumed that this applied to her waking hours. I have calculated this period as 20 days. I have allowed four hours of personal care and three hours of domestic care daily. I have allowed all hours at the base rate of $45 per hour for domestic assistance and $50 per hour for personal care. I have assumed that the domestic assistance included cooking and shopping. I have allowed this period at $6,700.
The total amount which I allow for past gratuitous services including interest at 3.25% is $22,317.
Future Gratuitous Services
The amount to be allowed for Mrs van Soest’s future gratuitous services spans the period from the commencement of the trial on 21 May 2012 to the present time and ongoing for the period of the plaintiff’s life expectancy. I have formed the view that Mr Pearce’s assessment of the plaintiff’s need for domestic assistance, both at the time of his assessment and for the future, was inadequate to provide the plaintiff with the level of care that he requires. I have used Ms Cunningham’s assessment of the plaintiff’s future domestic and care needs as a basis for estimating the value of Mrs van Soest’s services. I am satisfied that Ms Cunningham’s opinion focused on basic functional needs and that her cognisance of the plaintiff’s spiritual and emotional needs did not impact on that assessment. I think that she was just expressing an understandable empathy with the plaintiff in his distressing plight.
In determining this head of damage I have made certain assumptions. Firstly, that the plaintiff continued to require moderate care in his own home for some months before moving in with Mrs van Soest. When Prof Musk wrote to the plaintiff’s general practitioner on 26 September 2012 he noted that the plaintiff was able to walk 200 meters slowly before stopping for breath. That level of mobility suggests to me that he was able to live in his own home at that time. Relying on the details available about his hospital attendances in 2013 I have assumed that level of independence until February 2013, say 36 weeks. During this time I have allowed domestic assistance by Mrs van Soest twice weekly for five hours on each occasion together with travelling time calculated at $45 per hour. I have reduced the assistance hours by 25% to reflect companionship. I allow this period at $18,630.
Secondly, I assume that from about February 2013 until about September 2013, say 28 weeks, the plaintiff may not be able to live independently and will live with Mrs van Soest but may not yet require a high level of care. It is likely that in this period Mrs van Soest will provide domestic assistance for one hour a day and personal care for two hours per day. That is, domestic care for seven hours per week for 28 weeks at $45 per hour totalling $8,820 and fourteen hours of personal care per week for 28 weeks at $50 per hour totalling $19,600. I allow this period at $28,420.
Thirdly, I assume that for ten weeks from September 2013 she will divide her time between providing him with domestic care for about fifteen hours per week and personal care for about 30 hours per week. Using the same hourly rates, I allow this period at $21,750.
Fourthly, I assume that the plaintiff will be in the palliative stage for the last four weeks of his life during which time Mrs van Soest will provide domestic and care assistance for sixteen hours per day and that there will a paid carer for the remaining eight hours of each day to provide Mrs van Soest with respite. On the basis that the predominant activity within that sixteen hour period will be care, I have used the hourly rate of $50 per hour. I allow this period at $3,200.
On these figures the total allowance for future gratuitous services from the date of the trial is $72,000. It is to be noted that I have calculated this figure using the ordinary time rate for domestic assistance and personal care rather than the various penalty rates for weekend or night time work.
It is appropriate that I make allowance for certain contingencies which might reduce the level of care required to be given by Mrs van Soest particularly between now and the end of the year. The disease process cannot be accurately predicted. The plaintiff’s condition may deteriorate faster than expected such that his life expectancy is not reached. He may be hospitalised for a brief or a lengthy period of time. Mrs van Soest may not be able to manage and the plaintiff may be admitted to a hospice either at the beginning or during the palliative stage. There may be some other reason why Mrs van Soest cannot continue to care for the plaintiff at some time between now and the end of the year. When determining the effect of those contingencies I bear in mind that I have already reduced the claim by using the ordinary time rates.
Doing the best that I can to assess this head of damage I award future gratuitous services at $55,000.
Exemplary Damages
Section 9 of the Dust Diseases Act provides:
(1) If it is proved or admitted in a dust disease action that an injured person may, at some time in the future, develop another dust disease wholly or partly as a result of the breach of duty giving rise to the cause of action, the Court may—
(a) award, in the first instance, damages for the dust disease assessed on the assumption that the injured person will not develop another dust disease; and
(b) award damages at a future date if the injured person does develop another dust disease.
(2) The Court should make an award of exemplary damages in each case against a defendant if it is satisfied that the defendant—
(a) knew that the injured person was at risk of exposure to asbestos dust, or carried on a prescribed industrial or commercial process that resulted in the injured person's exposure to asbestos dust; and
(b) knew, at the time of the injured person's exposure to asbestos dust, that exposure to asbestos dust could result in a dust disease.
(3) Despite any other Act or law, the Court must, when determining damages in a dust disease action, compensate, as a separate head of damage, any loss or impairment of the injured person's capacity to perform domestic services for another person.
Note—This subsection is intended to restore the effect of Sullivan v Gordon (1999) 47 NSWLR 319.
The operation of this section was considered in the recent decision of BHP Billiton Limited v Parker[55]. Doyle CJ and White J stated that an award of exemplary damages pursuant to s 9(2) is dependent upon the defendant being in a defined category and having the requisite knowledge. The section is to be contrasted with the common law purpose of exemplary damages which restricts such an award to reprehensible conduct or conscious and contumelious disregard for the plaintiff’s rights.[56]
[55] (2012) 113 SASR 206
[56] Ibid at 254
Consistent with the language and purpose of the Dust Diseases Act 2005, when read as a whole, s 9(2) is intended to have a beneficial effect for plaintiffs. Therefore if the conditions are satisfied an award should usually be made unless there is some sufficient countervailing consideration.[57]
[57] Ibid at 258
In accordance with my findings on liability[58] BHP is in the defined category and had the requisite knowledge. Usually an award of exemplary damages under s 9(2) will not be large. However there is a residual discretion such that where the Court finds that the defendant’s conduct was reprehensible there may be a larger assessment and where there are sufficient countervailing considerations there may be no award.[59]
[58] Supra van Soest v BHP Billiton Limited
[59] Supra BHP Billiton Limited v Parker at 259
In this instance there are no sufficient countervailing considerations which militate against an award of exemplary damages. In 1962, BHP knew that the plaintiff was exposed to asbestos dust and fibre and that such exposure could cause a dust disease. BHP’s involvement in the 1962 Commonwealth Conciliation and Arbitration Commission proceedings[60] should have alerted it to the need to conduct its own investigation into the working conditions of the plaintiff and other employees in his class working in the engineroom of the PJ Adams where asbestos dust was generated by lagging activities. In particular BHP should have undertaken asbestos dust counts and instigated steps to minimise the risk of harm from exposure to its employees including the plaintiff. The majority in BHP v Parker drew attention to the fact that the contraction of a dust disease in that case did not result from a casual act of negligence or an isolated breach of duty but resulted from a systemic failure to make the workplace safe[61]. This applies here with equal force. BHP’s negligence had the effect of leaving its employees including the plaintiff vulnerable and unable to protect themselves. The award in BHP v Parker was $20,000 which is a modest amount. I too award $20,000.
[60] Exhibits P31 and D6
[61] Ibid at 261
Summary
The total award of damages is as follows:
Pain and Suffering and Loss of amenities$120,000
Interest on the past $ 2,400
Loss of Expectation of Life $ 12,000
Past medical and like expenses $ 56,044.30
Future medical and like expenses $ 62,000
Aids, equipment and home modification $ 8,390
Past gratuitous services and interest $ 22,317
Future gratuitous services $ 55,000
Exemplary Damages $ 20,000
Total: $358,151.30
I therefore award the plaintiff a total of $358,151.30 by way of damages. I will hear the parties on the question of costs.
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