Virtu v Cockatoo Dockyard Pty Ltd

[2003] NSWDDT 16

Dust Diseases Tribunal

of New South Wales

CITATION:	Virtu v Cockatoo Dockyard Pty Ltd [2003] NSWDDT 16
PARTIES:	Angela Virtu as Administrator Ad Litem of the Estate of the late Giuseppe Virtu Cockatoo Dockyard Pty Ltd ACN 000 0250 918
MATTER NUMBER(S):	374 of 2002
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:	Griffiths v Kerkemeyer (1977) 139 CLR 161; Sullivan v Gordon [1999] 47 NSWLR 319
DATES OF HEARING:	27/09/02, 24/06/03 & 03/09/03
EX TEMPORE JUDGMENT DATE :	09/03/2003
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr P E Blacket, SC and Mr R A O'Keffe instructed by Slater & Gordon. FOR DEFENDANT: Ms W Strathdee instructed by Phillips Fox.

JUDGMENT:

1. This is an action against Cockatoo Dockyard Pty Ltd (the defendant) by Angela Virtu (the plaintiff) as Administrator Ad Litem of the estate of her late father, Giuseppe Virtu.

2. The late Mr Virtu was employed by the defendant from 1960 until 1990. In the course of his employment he was exposed to asbestos dust and fibre. He was, until 1991 or thereabouts, a smoker of cigarettes and had, according to the history given to one doctor, a 50 pack year history of smoking. One pack year, as is well known, equates to one packet of 20 cigarettes smoked each day for one year.

3. In August 2002 whilst Mr Virtu was an in-patient at Royal Prince Alfred Hospital a diagnosis of bronchogenic carcinoma was made. His carcinoma was of an epithelial kind and typically one caused by cigarette smoking. Nevertheless, because he had radiological and clinical evidence of asbestosis, the defendant concedes that Mr Virtu’s exposure to asbestos made a material contribution to the carcinoma and accepts that it is liable to pay damages to his estate.

4. Shortly after the diagnosis was made, that is to say on 6 September 2002, a Statement of Claim was issued. Orders concerning the preparation of the case were made in the interlocutory list on 9 September 2002. On 26 September 2002, because the health of Mr Virtu was in a parlous state arrangements were made for the taking of his evidence at his home at 8 Steward Street, Leichhardt on the day following.
5. On 27 September 2002 counsel and myself attended his home. An affidavit, which had been sworn the day before, was admitted into evidence and some oral evidence was taken. I think it should be observed that, at that time, Mr Virtu was seriously ill and virtually moribund. Though he did respond to questions, the answers he gave were short, for the most part only of about three words or so, and it was apparent that he was having great difficulty in speaking. I mention these matters because in submissions Senior Counsel for the plaintiff urges me to accept at face value the assertions made in the affidavit of the late Mr Virtu and because of the absence of cross-examination on particular issues.

6. The defendant with its customary fairness agreed that the evidence of the plaintiff should be taken notwithstanding that it was ill prepared to meet the case that Mr Virtu was then making. The failure to cross-examine on particular matters was, as it seemed to me, occasioned by the defendant’s lack of awareness of many aspects of the case, and also by a consideration of the state of the plaintiff’s health. Moreover, on 26 September 2002 an undertaking was given by the plaintiff’s solicitor that no Browne v Dunne point would be taken. The failure to cross-examine on those issues should be ignored.

7. The late Mr Virtu was born on 5 February 1926. He died on 7 October 2002. He was born in Italy and migrated to Australia in 1955. His wife followed him to Australia in 1957, he having arrived here three months after his marriage. They had two children, Salvatore and Angelina. Angelina is the plaintiff in this action. Throughout the course of his life, both in Italy and in Australia, and until February 2002 he led a fairly active life, which included prawning on Sydney harbour in a vessel jointly owned by himself and his brother.

8. From 1991 he experienced breathlessness, but his breathlessness was not great. Lung function tests carried out on a number of occasions after he first saw Dr Corte, a thoracic physician, generally showed no abnormality. He continued prawning and assisting members of his family in tasks, which involved considerable degrees of physical effort until February 2002. In February 2002 he had a fall from a ladder and as a result of that fall he sustained a compression fracture of L1. There is some evidence that he recovered from its effects after six weeks. In April 2002 his breathlessness increased and it continued to increase until his death. In May 2002 oxygen was supplied.

9. While suffering asbestosis and emphysema the late Mr Virtu was affected by a number of other unrelated conditions. In December 1991 it was observed that there was an asthmatic component to his disease and in 1996 the view was expressed by Dr Corte that his fibrosis was idiopathic in nature. He has suffered from hypertension and other cardiac disorders, but symptomatically at least, he seemed not to have been troubled by the effects of cardiac disease. In 2001 he had a stress exercise test and, though he was unable to complete it, he stopped because of exhaustion without any observed ECG change.

10. Dr Sindone, under whose care and at whose direction the test was conducted, observed in a report of 22 August 2001:

I am quite pleased with Mr Virtu’s current cardiac condition but the two factors I am not happy with are his significant bradycardia and his hypertension. I am certain he has underlying conduction disease and may require a pacemaker in the distant future…

11. In successive reports, Dr Corte commented upon Mr Virtu’s being overweight, but nevertheless thought him to be generally well. There have been other disorders, some involving surgical intervention, but they were insignificant so far as any continuing disability or incapacity were concerned.

General Damages

12. In assessing general damages I must take into account not only the pain and discomfort experienced by the late Mr Virtu by reason of his asbestosis and carcinoma, but I must also consider the fact of his emphysema and to a lesser extent that there was an asthmatic component to his disease. It is relevant to observe, that though there was some shortness of breath from 1991, which undoubtedly had a dual cause, his breathlessness did not become significant until April 2002. Mr Virtu died in October 2002 after some five or six months of significant symptoms.

13. Senior Counsel for the plaintiff submits that an appropriate amount to be awarded for general damages is $200,000. With all respect, I consider that to be an extravagant claim. Such a sum is not awarded in cases of mesothelioma where a sufferer endures exquisite and unrelieved pain, usually for a period of 12 months. It is true that the late Mr Virtu experienced some pain, but he experienced more discomfort than pain and for a period lasting about five or six months.

14. The defendant concedes a liability to pay general damages in the sum of $150,000 and in the light of that concession, that is the appropriate sum to be awarded.

15. In submissions Senior Counsel for the plaintiff submitted it would be appropriate to allow interest until today’s date. The award of interest is, of course, a discretionary matter and I am not disposed to award interest beyond the date of death. The fact is that the defendant with little or no knowledge of the case agreed that the plaintiff’s evidence should be taken at his home soon after the Statement of Claim was issued. Various events occurred during the course of the case which led to its being adjourned until yesterday when some evidence was taken. Submissions began yesterday and concluded today. Because the late Mr Virtu had only slight symptoms until mid or late April 2002, I would be disposed to allow interest on general damages from 1 May until 7 October 2002.

Loss of Expectation of Life

16. According to the most recent life tables, an Australian male of 76 years of age has a life expectancy of 9.64 years. In the course of submissions it was agreed that an appropriate amount to award for loss of expectation of life was $10,000.

Pass Griffiths v Kerkemeyer Expenses

17. By a process of give and take and by compromise, the parties have agreed that past Griffiths v Kerkemeyer (1977) 139 CLR 161 expenses should be awarded in the sum of $16,000.

Sullivan v Gordon Expenses

18. The claim for past Sullivan v Gordon [1999] 47 NSWLR 319 expenses has been withdrawn and the only matter now to be considered is future Sullivan v Gordon expenses.

19. The late Mr Virtu lived with his wife in suburban Leichhardt. In 1998 Mr Virtu developed problems with his eyesight and in 1999 or 2000 the Royal Blind Society visited his home in order to give some practical assistance on the manner in which he might continue to lead his life and operate and conduct himself about his home.

20. In 1999 Mrs Virtu became ill. She now has a number of quite debilitating disorders which for many other people would have resulted in admission to a nursing home. The Virtu family, however, is a close-knit one, both in respect of the children of Mr and Mrs Virtu and the brother and sister of the late Mr Virtu.

21. In October 2000 Mrs Virtu was referred to the Geriatric Medicine Out-patients at Royal Prince Alfred Hospital. There she was seen by Dr Scott Murray, a specialist in geriatric medicine, who gave evidence yesterday. Dr Murray’s first consultation with Mrs Virtu occurred in November 2000. In a report of 25 September 2002, Dr Murray itemised the disorders then suffered by Mrs Virtu. This was done following an assessment he made on 27 August 2002. The disorders suffered by Mrs Virtu included supranuclear palsy, a slowly progressive debilitating neurodegenerative condition involving vertical gaze impairment and Parkinsonian features. She had previously been diagnosed as having small vessel ischaemia and cerebral atrophy, hypertension, aortic stenosis, type II diabetes, hypercholesterolaemia, incontinence of both urine and faeces and she had suffered numerous falls. She was at the time of consultation largely confined to a wheelchair.

22. I have observed that it was in 1999 that, according to the plaintiff’s evidence, her mother became ill. Nevertheless, it was not until towards the end of October 2000 that she was referred for geriatric assessment and treatment. Late in 2000 the plaintiff moved into her parent’s home at Leichhardt and in November 2001 an arrangement for home care was made.

23. Sullivan v Gordon damages are claimed in accordance with a schedule which was handed to me during the course of submissions. I think it important to bear in mind that no doctor qualified in the field of geriatric care, examined the late Mr Virtu. His capacity to provide services before he became ill has not been the subject of objective medical assessment. I have indicated that I do not think it safe to accept at face value the evidence contained in Mr Virtu’s affidavit sworn, as noted, the day before he gave evidence. It is the case, and it is conceded by the defendant, that the late Mr Virtu did give some assistance to his wife before he became debilitated and seriously ill in April 2002, but so did a number of other people. These included his brother, his sister, his children and neighbours. Mr Virtu was, before his fall, affected to a significant degree by sight impairment. It was accepted before his fall in February 2002 that he was legally blind and was entitled to government benefits as a consequence. The evidence of the plaintiff is that after February 2002 Mr Virtu was incapable of looking after his wife. One might fix February 2002 as the time upon which he was incapable of looking after Mrs Virtu by reason of the fall; but also the tasks which I am persuaded he did perform beforehand, he would not have been able to perform after April or May 2002 by reason of the effects of his cancer.

24. The types of tasks which I am persuaded the late Mr Virtu did perform to assist his wife were the administration of medication, though at some stage that would have ceased by reason of his blindness, assistance in helping her move about the home and the preparation of some meals or snacks. I am not persuaded that, before he fell or before symptoms of significant breathlessness occurred, he gave 24 hour a day care. Much of the care was shared by members of the family and neighbourhood for reasons associated with Mrs Virtu’s illness.

25. The assessment of Sullivan v Gordon damages must of necessity be an imprecise exercise. People seldom keep diarised notes of tasks performed before injury or illness occurs and the necessity to perform tasks, particularly for a spouse who suffers deteriorating conditions which produce an increasing incapacity can only be assessed by the application of a broad brush. What I am disposed to do, as best I can to achieve justice between the parties, is to assess a rate, which, though, in reality, it would have been less at the beginning of the period and greater at the end, will be a single daily rate which will take account of that variation. I think in the circumstances of this case a rate appropriate to allow for a period, which it has been agreed, will expire 12 months from today, is three hours per day.

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

General damages $150,000

Interest on general damages $1,305

Loss of expectation of life $10,000

Past Griffith v Kerkemeyer expenses agreed at $16,000

Interest agreed at $1,246

Sullivan v Gordon

expenses from 7 October to date $23,625

Interest $1,840

Sullivan v Gordon

expenses to September 2004 $27,300

Making a total of $231,316

27. There will be verdict and judgment for the plaintiff in the sum of $231,316.

28. The defendant will pay the plaintiff’s costs as agreed or assessed but not the costs of 5 March 2003 and 25 June 2003.

Mr P E Blacket, SC and Mr R A O’Keefe instructed by Slater & Gordon appeared for the plaintiff.

Ms W Strathdee instructed by Phillips Fox appeared for the defendant.