Webber v Comcare

[2018] NSWDDT 10

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Webber v Comcare [2018] NSWDDT 10

Hearing dates:

3, 5, 7 December 2018

Date of orders:

11 December 2018

Decision date:

11 December 2018

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the plaintiff against the defendant for $1,101,685.
(2)   Order the defendant to pay the plaintiff’s costs.
(3)   Grant leave to contact my Associate within three days, if any party wishes to contend for a different order on costs.
(4)   Grant leave to the defendant and the cross-defendant to contact my Associate within three days, to indicate whether those parties wish a further hearing to take place in relation to the cross-claim.

Catchwords:

CHOICE OF LAW – choice of law rules at common law are part of the law of New South Wales – in respect of inter-State torts, the governing law is the lex loci delicti – questions of the kinds of damage and the amount of damages are substantive issues governed by the lex loci delicti

 

DAMAGES – assessment under New South Wales law – general damages – statutory damages for loss of capacity to provide gratuitous domestic services to a dependant

 

DAMAGES – assessment under Northern Territory law – general damages to include damages for loss of capacity to provide gratuitous domestic services to a dependant

  DAMAGES – mesothelioma is an indivisible injury – defendant liable for all of the damages assessed pursuant to choice of law rule

Legislation Cited:

Civil Liability Act 2002
Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Regulation 2013
Judiciary Act 1903 (C’th)

Cases Cited:

Amaca Pty Limited v Phillips [2014] NSWCA 249
Amaca Pty Limited v Raines [2018] NSWCA 216
CSR Limited v Eddy (2005) HCA 64; 226 CLR 1
Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161
Pfeiffer v Rogerson [2000] HCA 36; 203 CLR 503
Sullivan v Gordon (1999) 47 NSWLR 319

Texts Cited:

Prosser and Keeton on Torts

Category:

Principal judgment

Parties:

Kevin Webber (Plaintiff)
Comcare (Defendant)
Amaca Pty Limited (Cross-Defendant)

Representation:

Counsel:
G J Parker SC with A Giurtalis (Plaintiff)
G M Watson SC with D Tang (Defendant)
J Sheller (Cross-Defendant)

  Solicitors:
Maurice Blackburn Lawyers (Plaintiff)
Australian Government Solicitor (Defendant)
Holman Webb (Cross-Defendant)

File Number(s):

DDT 164/2018

Judgment

1. This judgment concerns the assessment of damages. The plaintiff was born on 30 June 1932 and is presently 86 years of age. Between 1956 and 1984 he served in the Royal Australian Air Force (RAAF) as a maintenance carpenter. He was posted at various times to locations in New South Wales, the Northern Territory, Queensland and Malaysia.

2. As a result of exposure to asbestos dust and fibre in the course of his service, he has contracted the disease of peritoneal mesothelioma. The Statement of Claim wrongly particularises the disease as pleural mesothelioma.

3. The defendant is the Commonwealth entity liable for the negligent exposure by the RAAF of the plaintiff to asbestos dust and fibre. The defendant has brought a cross-claim against Amaca Pty Limited (Amaca) seeking contribution towards the plaintiff’s damages and costs.

4. The matter has been through the Claims Resolution Process under the Dust Diseases Tribunal Regulation 2013 (the Regulation). The mediator issued a certificate dated 12 November 2018 certifying that the parties put one matter in issue, being “Quantum: Assessment of Damages”. This certificate was issued pursuant to cl 41(2) of the Regulation.

5. Clause 41(3) of the Regulation provides as follows:

“When a claim that is the subject of a mediator’s certificate under this clause is before the Tribunal for determination:

(a)   the Tribunal must determine the claim on the basis that the issues agreed to be in dispute are the only issues in dispute between the parties and on the basis of the agreed facts, as certified by the mediator, and

(b)   the parties are not permitted to raise any other issue as an issue in dispute between the parties.”

Evidence of the plaintiff

6. The plaintiff affirmed an affidavit on 5 July 2018 (first affidavit).

7. According to the Amended Defence filed on 5 December 2018, the plaintiff served in the RAAF as follows:

1. RAAF Richmond in New South Wales from 16 July 1956 until 22 October 1956

2. RAAF Kingswood in New South Wales from 23 October 1956 until 21 July 1964

3. RAAF Darwin in the Northern Territory from 22 July 1964 until 25 July 1964

4. RAAF Tindal in the Northern Territory from 26 July 1964 until 14 January 1965

5. RAAF Kingswood in New South Wales from 15 January 1965 until 3 May 1965

6. RAAF Richmond in New South Wales from 4 May 1965 until 13 November 1966

7. RAAF Tindal in the Northern Territory from 14 November 1966 until 9 March 1969

8. RAAF Darwin in the Northern Territory from 10 March 1969 until 9 January 1972

9. RAAF Richmond in New South Wales from 10 January 1972 until 24 February 1975

10. RAAF Darwin in the Northern Territory from 25 February 1975 until 30 July 1975

11. RAAF Richmond in New south Wales from 31 July 1975 until 24 June 1976

12. RAAF Butterworth in Malaysia from 25 July 1976 until 25 August 1976

13. RAAF Richmond in New South Wales from 26 August 1976 until 29 August 1977

14. RAAF Amberley in Queensland from 30 August 1977 until 14 January 1980

15. RAAF Richmond in New South Wales from 15 January 1980 until 16 June 1980

16. RAAF Darwin in the Northern Territory from 17 June 1980 until 15 July 1984

8. In his first affidavit the plaintiff set out the circumstances in which he was exposed to asbestos cement building products, at each base where he was stationed. He had regular exposure as a maintenance carpenter between the commencement of his service on 16 July 1956 and the conclusion of his service in Darwin, rebuilding after Cyclone Tracy, on 30 July 1975. After that date he was mainly working with timber in the workshops. There was a very small amount of exposure in Queensland. That can be ignored for present purposes.

9. On the approach I propose to take to assessment of damages, the overall level of exposure during each period is not relevant. However, if it should later prove to be important, I will record my findings of fact in that regard. The period between 16 July 1956 and 30 July 1975 is 228 months. During that time the plaintiff spent 73 months in the Northern Territory. This time was 32% of his total service during the period. The level of exposure as a maintenance carpenter was roughly the same at the New South Wales bases as it was at the Northern Territory bases. The exception to this is the period between 25 July 1975 and 30 July 1975, when the plaintiff was at RAAF Darwin cleaning up after Cyclone Tracy. This was much heavier exposure than the maintenance carpenter work.

10. I find that 60% of the plaintiff’s exposure to asbestos cement dust during service in the RAAF occurred in New South Wales and 40% of the plaintiff’s exposure occurred in the Northern Territory.

11. The plaintiff was advised as early as 2010 that he had pleural plaques on his lungs caused by prior asbestos exposure. In the middle of 2017 he developed a sharp stomach pain on the left side. A few months later his stomach started to swell up. In January 2018 a CT scan of his abdomen and chest confirmed that he had developed fluid in his abdomen which needed to be drained. The plaintiff was admitted to Darwin Private Hospital to undergo drainage in February 2018. When he was discharged from hospital on 28 February 2018 he was advised that he may have mesothelioma.

12. The plaintiff was re-admitted to Darwin Private Hospital on 19 April 2018 when he had seven litres of fluid drained. A biopsy was performed. On 10 May 2018 the plaintiff was told by doctors that he had developed peritoneal mesothelioma. Since that diagnosis the plaintiff has taken the strong opiate pain killer Oxycontin, as well as anti-nausea medication. Fluid has continued to accumulate in his abdomen.

13. In his first affidavit the plaintiff said that since January 2018 he had required significant assistance from his two daughters who live in Darwin, Jan and Bev. One of them visited the family home each day, spending at least one to two hours there on each visit. The plaintiff has also received assistance from neighbours who live across the road. The plaintiff’s two sons-in-law Rob and Ray have helped with gardening and outside maintenance.

14. The plaintiff’s wife Gwen, to whom he has been married since 14 February 1953, was diagnosed with dementia approximately two years ago. The plaintiff said that she is often confused and disoriented. She has been unable to leave the house on her own for the last two years. The plaintiff has been Gwen’s full-time carer since she started to decline at least three or four years ago. Since then the assistance he has provided to his wife has been: cooking; cleaning; laundering; driving Gwen to and from medical appointments; shopping; and supervision to ensure that his wife does not hurt herself or get into trouble at home.

15. The plaintiff said in his first affidavit that since becoming ill, he has not been able to provide Gwen with the same level of care as before. This was frustrating and worrying for him. His two daughters Jan and Bev have been doing what they can for both father and mother.

16. The plaintiff affirmed an affidavit on 28 November 2018 (second affidavit). In it he gave much more detail about the care and assistance which he had been providing to his wife.

17. For the period from January 2016 to June 2017, before the plaintiff became ill, the couple usually woke at about 6.00am and the plaintiff prepared coffee for the two of them. The plaintiff’s wife could not work the kettle properly. After coffee, the plaintiff’s wife fed the dog and the cat. She could not regulate how much food was to be given to the animals and often made quite a mess in feeding them. She did not clean up after herself. The plaintiff was with his wife to make sure the animals got the right amount of food and to clean up after her.

18. At about 7.30am the plaintiff prepared breakfast for himself and his wife. The plaintiff observed that if his wife attempted to prepare a meal she became confused. She did not prepare food for herself and she lost the inclination to feed herself. The plaintiff was with his wife not only to prepare food for her, but to make sure that she ate, so as to stay healthy. The wife needed reminding to eat. The plaintiff then cleaned up the dirty dishes and packed them away.

19. The plaintiff’s wife took a shower after breakfast. The plaintiff adjusted the water temperature for her, as sometimes his wife became confused and could not do this for herself. He remained in the near vicinity while his wife was in the shower, in case she got into trouble. His wife had not slipped or fallen in the shower.

20. After her shower, the plaintiff’s wife dried herself and got changed. She did not clothe herself properly. Sometimes she put on three, four or five shirts or tops or wore her bra on the outside of her clothing. The plaintiff remained with his wife so that he could assist her to get changed into appropriate clothes for the day.

21. The couple then often pottered in the garden until it got too hot. The plaintiff’s wife joined him in the garden but did not do any of the work.

22. About three times a week, the plaintiff did a 30-minute round-trip to Woolworths to do the food shopping. This was the only time in the week when he left his wife at home by herself.

23. The plaintiff took over the washing of the clothes. He observed that his wife became easily confused with the dials on the washing machine. The couple hung the clothes out together, but the plaintiff often had to re-do the work done by his wife as she hung the clothes in odd ways. The wife helped with folding the clothes when they were removed from the line, but often she could not remember where they went, and the plaintiff had to supervise them being packed away.

24. The plaintiff prepared lunch for himself and his wife every day. Sometimes his wife helped, but when she did, it made the preparation much longer. The plaintiff gave the example of getting out the bread to prepare the lunch. Sometimes his wife put the bread away before he had a chance to make the lunch.

25. The couple had a short sleep after lunch each day. Later in the afternoon they went into the backyard to feed the wild birds or water the garden. The plaintiff stayed with his wife to keep an eye on her to make sure she did not get into trouble.

26. Every Monday afternoon, until about six months ago, the couple used to go to the casino. The plaintiff supervised his wife at the casino. He noticed that sometimes she became confused and disoriented in the casino. He supervised her to ensure that she did not spend too much money on the poker machines. It became too much about six months ago and they stopped going.

27. The plaintiff did all of the cleaning in the house until about 12 months ago when a cleaner was brought in to do the heavy cleaning. The plaintiff still did most of the cleaning. Until she became ill with dementia, the plaintiff’s wife did the cleaning, but after she declined, she forgot to do it and lost interest in doing it.

28. At about six o’clock each night the plaintiff prepared the evening meal. This took about an hour. The plaintiff’s wife could not work the stove or the oven any more. He cleaned up and packed up after dinner.

29. The couple watched television after the evening meal and usually went to bed at about 9.30pm. For many years they have slept in separate rooms, because the plaintiff had hip replacements and was uncomfortable on his old bed. The rooms were right next to each other.

30. Before he went to bed the plaintiff went in and checked on his wife. He made sure that the doors were open between the rooms. On occasions since early 2016, the plaintiff’s wife woke in the middle of the night in a confused state. She got up and tried to feed the dog and the cat and wandered around the house. When this happened the plaintiff got up and helped her back to bed or stopped her from feeding the animals. Sometimes he was so frustrated that he just let her feed the animals and then helped her back to bed. He was always listening for his wife at night, given that she could wake and become easily confused.

31. Since 2016 the plaintiff took over the financial management of the affairs of the household. His wife became confused when dealing with household bills. She could no longer use the telephone or any electrical appliances.

32. Between January 2016 and June 2017, the plaintiff was with his wife 24 hours a day, except for a 30-minute trip to the shops two to three times per week. He felt as though he could not leave his wife on her own, given her increasing confusion and lack of awareness of her own health and well-being.

33. The second affidavit gave details about a typical day of care for Mrs Webber after the plaintiff became ill in June 2017. Since that date he has, as best he could, continued to provide assistance to his wife. In early 2017 a cleaner started coming to house once a fortnight, but she now comes once a week. She works for one hour to mop the floors and clean the bathroom. The two daughters Jan and Bev come to the house at least once per week each, and they stay for three to four hours at a time. When they are there they wash the sheets, clean up and help prepare meals. At times they drive the plaintiff or his wife to their medical appointments. When the plaintiff has been in hospital since his illness, either Jan or Bev comes over and stays with their mother to look after her.

34. The second affidavit concluded as follows:

“Prior to becoming ill, the plan was for me to look after Gwen. I love her and I was committed to looking after her, even as she deteriorated. I may be 86 years of age, but I was fit and healthy and I found it no difficulty to look after her in the way that I have described above.”

35. The Tribunal convened at the plaintiff’s home in Darwin on 3 December 2018 to take his oral evidence. The plaintiff and the lawyers sat around a fine octagonal timber table made many years ago by the plaintiff.

36. In cross-examination the plaintiff said that during his first employment with V.H. Lossberg as an apprentice, then as a carpenter, between 1948 and 1954, he worked on about 50% Housing Commission houses in Queensland and about 50% private dwellings. The private dwellings were built of more expensive material. Often the interior lining was plasterboard instead of fibro. On both Housing Commission dwellings and private dwellings, there was cutting of fibro sheets to fit walls, ceilings and two foot eaves. Tilux was used in the bathrooms and kitchens. 90% of the cutting was done with a fibro cutter and the rest with a handsaw. Super Six roofing was always cut with a handsaw. The plaintiff said that he was sometimes working below a roof which was in the course of construction, and people above were sawing Super Six, causing asbestos dust to fall upon him. He said that it took between 130 and 140 sheets of fibro to clad a house inside and out.

37. From 1954 to 1956, when he was in the partnership Dwyer and Webber, he provided labour only and not materials. He said that he had daily exposure to asbestos cement products, either cutting fibro sheets or working near others who were doing cutting.

38. In cross-examination the plaintiff said that in 1956 when he joined the RAAF, he was 24 years old and a qualified carpenter. He was sent to 1RTU at the Richmond Base. On his recruit course, he was re-mustered from his initial job of chef, to be appointed as a carpenter. He was sent to the Kingswood Base. This was an existing base which had been shut down for some time but was being put back into service when the RAAF munitions were moved from Lithgow to Kingswood. He said that he did maintenance work there and not construction work. His exposure was less intense than the 1948-1954 exposure when he worked for Mr Lossberg. On about half of his days at work he was exposed to asbestos cement dust. Two years after starting at Kingsford, he then started doing work in the workshop. Thereafter he spent about 50% of his time in the workshop (making office furniture, cupboards and tables) and the other 50% doing maintenance work on existing buildings. It was this maintenance work which involved cutting fibro sheets and exposure to asbestos cement dust.

39. In cross-examination the plaintiff said that in 1964 when he was posted to Tindal Base at Katherine in the Northern Territory, he did work constructing the airfield and building the barracks. Twenty-four barracks were built which each housed 12 servicemen. They were built with galvanised iron cladding but shuttered on all sides with asbestos cement swing shutters. He had to cut this material to fit it.

40. In cross-examination the plaintiff said that he went back to Richmond briefly and then went back to Tindal between 1966 and 1969. There were 300 people on the base. Servicemen moved their families there. There were 114 privately built houses used for families. He said that the contractors were shoddy and that in the wet season the box gutters leaked. He had to do maintenance work to modify the houses to make them water tight. At Tindal in this period he worked in the workshop and he did housing maintenance involving exposure to asbestos cement products. He had to replace broken sheets of fibro.

41. In cross-examination the plaintiff said that when he was posted to Darwin in 1969 he was an NCO in charge of the barracks. He did workshop work and barracks maintenance work. He was still hands-on. Fibro sheets and glass louvres were broken on a daily basis and his maintenance work involved repairs.

42. After Christmas 1972 the plaintiff was posted to Darwin to assist with the clean-up after Cyclone Tracy. He worked demolishing old asbestos cement houses and buildings. The destroyed houses had fibro inside and out. He was involved in pulling these houses down and dumping the fibro on the kerb. This involved much more dust than his construction work or his maintenance work. New sheets were dropped off outside the demolished houses for construction the next day. He was in charge of one of the four teams. He did hands-on work during all of his time in Darwin after Cyclone Tracy.

35. Between 1975 and 1978 the plaintiff was stationed at Richmond as a flight sergeant. There he worked in the workshop. In 1977 he went to Amberley in Queensland for three years. There he did work in the workshop. Between 1980 and 1984 he was back in Darwin, again working in the barracks workshop.

36. The plaintiff was cross-examined about his Veterans Affairs white card. He said that he got it in the first place only for a specific hearing problem. He now believed that his asbestos-related illness was covered by Veterans Affairs and the white card.

37. The plaintiff was cross-examined about the cleaner who came in once a week and the man who came to mow the lawns. He was asked about having a four-wheel walker. He said that he had one but he had never used it. It was the same with the walking sticks which he was given after his hip replacement operations.

38. I accept the plaintiff unreservedly as a witness of truth. In spite of his debilitated state, he was lucid in giving his evidence. He had a very good memory of his service in the RAAF. He impressed me as a person who, if anything, understated his own problems. His main concern in life is the welfare of his wife.

Evidence of Ms Janice Dyer

47. Ms Janice Dyer, the elder daughter of the plaintiff, provided an affidavit dated 28 November 2018. I accept her unreservedly as a witness of truth. She is presently 65 years of age. Since January 2016, Ms Dyer noticed quite a few changes with her mother’s health. She noticed poor memory, confusion and inability to deal with simple everyday tasks like using the washing machine, working the microwave or answering the phone or making phone calls. To her observation the problems have progressed.

48. In November 2016 the plaintiff and his wife stayed at Ms Dyer’s home, as their bathroom was being renovated. During the night Ms Dyer’s mother became very confused and distressed. She could not orient herself as to where she was. Ms Dyer became concerned about her well-being, particularly at night time. It was then that the plaintiff and his wife went to the GP and on to a geriatrician, who diagnosed Mrs Webber as suffering from Alzheimer’s dementia.

49. Ms Dyer had observed her father to provide care and assistance to her mother since January 2016. Her affidavit confirmed the tasks performed by the plaintiff, set out in his evidence referred to above.

50. Ms Dyer spoke with her father every day or every second day and went to the house at least once a week. There she observed her father to provide her mother with care, undertaking the tasks described by the plaintiff and referred to above.

51. About 12 months ago Ms Dyer arranged for a cleaner to attend the home for an hour every fortnight. About six months ago this was changed to once a week, for one hour, to clean the bathroom and kitchen.

52. Ms Dyer gave evidence that she attended the family home at least once a week and sometimes twice, for about three to four hours each time. The care and assistance she provided to her parents was: transport to and from medical appointments; washing the bed sheets; vacuuming and dusting around the house; dishwashing and general cleaning; and meal preparation.

53. When the plaintiff had gone into hospital for tests or procedures she came to stay at the house to ensure that her mother was in familiar territory and there was no repeat of the incident which had occurred in 2016. Ms Dyer estimated that she provided her mother and father with about six hours of assistance per week.

54. Ms Dyer said of her father:

“Since dad became ill himself in mid-2017, he has soldiered on and continued to look after mum in the same way that he always did. It is remarkable that he continues to do so .”

55. In addition to the material in her affidavit, Ms Dyer gave oral evidence that she has observed her mother to be forgetful. She starts a conversation and then can’t recall what she was saying. Ms Dyer has observed her mother to put multiple shirts on, and wear bras on the outside of her clothing. She tends to wear the same clothes over and over, even though the family has bought her new clothes. Her bed-making skills are bad. Ms Dyer has sometimes found five sheets on the one bed. Sometimes Mrs Webber has “made” a bed, but Ms Dyer has found that there were no sheets on the bed.

56. Ms Dyer has had to hide all the scissors in the house. Her mother had used a pair of scissors to put a hole in the water bed when she became angry. After that Ms Dyer found a lot of cut up sheets around the house. Her mother has a disturbing habit of stuffing things behind her bed. This includes old barbeque knives and forks, and clothes.

57. Ms Dyer expanded upon the confusion and disorientation of her mother, when the couple came to stay as Ms Dyer’s house during their renovations. Ms Dyer’s mother got up and wandered around the house during the night, and then climbed back into bed with her son-in-law, Ms Dyer’s husband. She was disoriented and Ms Dyer had to put her back in her own bed. There had been times when she does not know one of her sons, and she has confused her two sons. She does not have much idea who the grandchildren and great-grandchildren are. Ms Dyer said that now “she is not my mother”, meaning she is not the person she was before her dementia. Ms Dyer said that before her illness, her mother was friendly, caring, an efficient housekeeper and a careful person.

58. Ms Dyer was cross-examined. She lives about half an hour’s drive away from her parents. Her sister Bev also lives about half an hour away. She was asked whether she did things for her parents before they both became ill. She said that she did bring food to contribute to family lunches on Sundays.

59. Ms Dyer had noticed a deterioration in her mother since the episode at her own house when her mother became confused and disoriented. She said that her mother was now “less mum”. She thought that the confusion had increased in the last three months. Her mother does now not know some people.

60. Ms Dyer is the one who has made enquiries with government authorities to see whether assistance can be provided to her mother. She said that her understanding was that people could come and provide care inside the house, but there was a waiting list of 12 months in Darwin for any assistance. Ms Dyer was aware that her mother had an ACAT (Aged Care Assessment Team) assessment and that she had been assessed as Level 4. A cleaner had been provided as a result of the ACAT assessment.

61. Ms Dyer was asked about the white card that her father had. She said that most of the treatment had been covered anyway by Medicare or a Private Health Insurer. Most doctors had simply charged the scheduled fee and billed Medicare.

62. By leave Ms Dyer was asked about an additional matter. She said that her mother had episodes of aggression and had threatened to hit her. She had raised her arm towards her. Ms Dyer had seen her mother angry at her father, which was out of character.

Medical evidence in relation to the plaintiff

63. Dr Charakidis, medical oncologist, provided a report dated 13 August 2018. He first saw the plaintiff in his clinic on 23 March 2018. He presented with recurrent ascites (fluid in the abdomen). He underwent a laparoscopy at Darwin Private Hospital. A biopsy confirmed primary peritoneal mesothelioma. It is inoperable. Dr Charakidis described the plaintiff as “very frail at presentation”. Chemotherapy was not available as the potential risks outweighed the benefits. At that stage he thought that the prognosis for the plaintiff was “long months but very unlikely to be more than a year”.

64. Dr Edwards, a respiratory physician, saw the plaintiff for medico-legal purposes at his home on 17 August 2018. He noted a history that the plaintiff became unwell in December 2017 and developed abdominal discomfort and swelling. A CT scan of the abdomen in January 2018 showed fluid in the abdominal cavity. The plaintiff was admitted to Darwin Private Hospital on 26 February 2018 and discharged on 28 February 2018. Three litres of pleural fluid were drained. The plaintiff underwent an laparoscopy and a biopsy of the omentum (a sheet of tissue in the abdominal cavity) on 19 April 2018. A large volume of ascitic fluid was drained. There were widespread peritoneal adhesions and studding of the peritoneum. A biopsy was taken.

65. The plaintiff was advised of the diagnosis on 10 May 2018. He had been using Oxycodone at night for pain control. He was transferred to palliative care at the Royal Darwin Hospital on 23 July 2018.

66. When Dr Edwards saw the plaintiff, he was still able to shop and carry out activities of daily living. He was still caring for his wife who had dementia for the last four years. The couple had help once a week for general cleaning of the house and someone came to mow the lawns.

67. Dr Edwards offered the opinion that the plaintiff’s exposure to asbestos between 1956 and 1984 had materially contributed to the development of peritoneal mesothelioma. He thought, in August 2018, that the prognosis was in the vicinity of six months. Patients with peritoneal mesothelioma survive a little longer than those with pleural mesothelioma. He thought that six months was the maximum, and the prognosis could be as short as three months.

68. Dr Edwards gave evidence about the likely future reasonable medical treatment costs. In the light of other evidence, this became irrelevant.

69. The plaintiff obtained a medico-legal report from Dr Johnson, another respiratory physician. He had not seen the plaintiff, but was given a history of employment in accordance with the plaintiff’s first affidavit. His opinion was:

“The periods of exposure at the RAAF Kingswood (1956-64) as set out in paragraphs 16-21 in his affidavit and RAAF Richmond between 1965 and 1966, as set out in paragraphs 24-25 of his affidavit, were of sufficient intensity and in [an] appropriate time period to have caused his malignant peritoneal mesothelioma.”

70. There was no cross-examination of Dr Edwards or Dr Johnson. The defendant tendered no medical evidence directly relating to the condition of peritoneal mesothelioma, apart from a report of Dr Gal, pathologist, who agreed with the diagnosis.

71. I find that the exposure of the plaintiff to asbestos cement dust in New South Wales was of sufficient intensity and in an appropriate time period to have caused or to have made a material contribution to the cause of the plaintiff’s malignant peritoneal mesothelioma.

72. Because there was also a significant exposure to asbestos cement dust in the Northern Territory, I make the same finding in relation to exposure in the Northern Territory.

Medical evidence in relation to plaintiff’s wife

73. Mrs Lila Gwen Webber was born on 12 December 1932. Her geriatrician is Dr Lowe who has seen her several times. His diagnosis is of moderate to severe dementia. In his view her dementia is due to mixed Alzheimer’s disease and vascular dementia. In a report dated 28 September 2018, Dr Lowe said that people with this disease generally deteriorate over time. Mrs Webber’s most recent minimental score was 17/30. He said that average people deteriorate on the scale by 2-3 points per year. Most people require nursing home care after their scores are around 10-12 “unless they were heavily supported by their relatives”. Dr Lowe said that “the average life expectancy for a person with Alzheimer’s diseases is 6-8 years from diagnosis”.

74. Dr Lowe provided a second report dated 19 November 2018. He noted that Mrs Webber had some difficulties with anger. On the day of her most recent examination, he found Mrs Webber to be in good spirits and she appeared to be in good health.

75. In oral evidence Dr Lowe said that his opinion was still that Mrs Webber had a life expectancy of four years from the present time. He said that estimations of life expectancy, particularly in older patients with dementia, are notoriously inaccurate. On examination Dr Lowe had found Mrs Webber to be “fairly healthy”, in spite of her dementia. He was treating her with the drug Aricept, which in his experience led to patients with dementia doing better than usual. He said that life expectancy depends upon the age of the patient when dementia starts. With a person in their 80s, he said that it is “hard to tell”.

76. Dr Lowe had access to the medical tests regarding Mrs Webber’s kidney disease. He said that results in late 2016 showed an improvement on the position since early 2016. He thought that she had Stage 3 kidney disease which was “not particularly serious”. He did not agree that Mrs Webber’s chronic kidney disease would result in a 50% reduction in life expectancy (this was the opinion of Dr Obeid).

77. Dr Lowe said that he treated every patient with dementia in the Northern Territory. He had seen Mrs Webber on several occasions.

78. In cross-examination he said that it was more important to look at the person, rather than at average life expectancies. There was a need to take into account concurrent illnesses. He had reviewed Mrs Webber every six months. He looked at an x-ray from October 2016 and said that he did not think that her emphysema was too bad. He said that her high blood pressure and high cholesterol did not have a large impact upon life expectancy, considering Mrs Webber’s age.

79. Dr Lowe noted the opinion of Dr Obeid (referred to below). He said:

“I see that the expert witness in Kevin’s legal case has cited a Swedish study on the life expectancy with dementia that noted ‘the treated SATS participants diagnosed > than 85 years exhibited a mean survival time of 5.2 years’…I think these findings are roughly in line with my previous expectations.”

80. The defendant tendered a report from Dr Obeid, a geriatrician. He had not personally assessed or treated Mrs Webber and he relied upon the medical documentation provided to him. He agreed that Mrs Webber suffers from dementia. He said that her prognosis is relatively poor. Dementia is a progressive condition and Mrs Webber appears to have been progressing fairly rapidly. He said:

“It is reasonable to expect her to require increasing support and assistance over the course of the next year or so. By 18-24 months she will likely require full assistance with all care and mobility tasks.”

81. Dr Obeid noted that the medium life expectancy for a woman of Mrs Webber’s age was seven years. He noted her co-morbidities of moderate dementia, vascular risk factors and severe chronic kidney diseases. He felt that her life expectancy was reduced by approximately 60% compared to the average for women her age, or to a residual 2.8 years i.e. to around mid-2021.

82. Dr Obeid was asked to provide an opinion about the level of care required by Mrs Webber from the plaintiff. He said that “at most therefore I estimate that Mrs Webber required no more than periodic daytime supervision to ensure she did not endanger herself (approximately one hour per day)”. His opinion was that the total gratuitous care and assistance that the plaintiff likely provided was in the order of 20.25 hours per week.

83. I reject this opinion. It does not accord with the evidence of the plaintiff or the evidence of Janice Dyer, who I completely accept as witnesses of truth. Neither were cross-examined to suggest that Mrs Webber needed a mere 20 hours of care per week. The fact is that she has not been left alone for any more than 30 minutes a few times a week, and the reality is that she has needed full-time care and supervision for some time.

84. Dr Obeid said:

“With the progression of her dementia in 2018 (and the expected future progression) Mrs Webber likely started to need increasing care and assistance, but I understand this was increasingly provided by her daughters rather than the plaintiff.”

85. Dr Obeid is wrong. The plaintiff, apart from periods in hospital, has continued to provide full-time care and support to his wife. When the daughters do visit, they are providing general assistance, mainly with housework and cooking, rather than care of their mother.

86. Dr Obeid said:

“The plaintiff would have been limited in the extent of care he would have been able to provide given his age and history of arthritis and back pain. It is unlikely therefore that he would have been able to undertake heavier tasks such as lifting, toileting and assisting transfers.”

87. There is nothing in the evidence to suggest that even today the plaintiff has any limitation in providing care, supervision and assistance to his wife. There is nothing in the medical evidence to suggest that any existing physical problems of the plaintiff would have prevented him from offering care to his wife for several years into the future.

88. The opinion of Dr Obeid was that but for the diagnosis of mesothelioma, the plaintiff would have been able to continue providing the same care to Mrs Webber for another two years. Thereafter he would have been able to provide some care for another 0.5 years, but would have required assistance from paid services to provide the heavier aspects of personal care. Dr Obeid offered the opinion that, given that his view was that there was a life expectancy of 2.8 years, in the last 0.3 years of her life Mrs Webber would have required nursing home level care.

89. Dr Obeid was cross-examined. He agreed that figures on the life expectancy tables are only average figures. Any doctor would be assisted by clinical examination and clinical knowledge.

90. Dr Obeid was cross-examined about his opinion that Mrs Webber had Stage 4 chronic kidney disease and that this reduced her life expectancy by about 50%. He recalculated his figures when asked to make the assumption that Mrs Webber had Stage 3 chronic kidney disease. He thought that Stage 3 disease would reduce her life expectancy by 32%. On this theoretical basis, he offered the opinion that there was a 55% reduction in life expectancy rather than one of approximately 60%, as per paragraph 5.3 of his report.

91. Applying those percentages to a life expectancy of 7.16 years (as per paragraph 5.1 of Dr Obeid’s report), the adjusted life expectancy for Mrs Webber would be 3.2 years rather than 2.8 years.

Conclusions and findings in relation to Mrs Webber

92. I accept the opinion of Dr Obeid that dementia is a progressive disease and one which to some extent shortens life. I find that Mrs Webber did not have a normal life expectancy.

93. Dr Obeid offered the opinion that Mrs Webber had a 60% reduction in her life expectancy. In part this was due to moderate dementia, vascular risk factors and severe chronic kidney disease. He offered detailed reasons in his report, including consideration of medical material relating to the chronic kidney disease. I accept the evidence of Dr Lowe that the chronic kidney disease suffered by Mrs Webber is Stage 3 rather than Stage 4. He gave reasons for that opinion based upon an improvement in test results. Further, Dr Lowe has had the benefit of seeing Mrs Webber several times over the years of her illness. Straight away, the adoption of an assumption of Stage 3 kidney disease rather than Stage 4 kidney disease, raises Dr Obeid’s prediction to a life expectancy of 3.2 years rather than 2.8 years.

94. Further, the prediction as to the life expectancy of a patient with dementia is just that – a prediction. It is important to not just look at average tables, but to look at the patient in context. Dr Lowe has had that opportunity and Dr Obeid did not. I find that the adjusted figure of Dr Obeid, of 3.2 years, has to be increased, to take account of the superior position of Dr Lowe in making an assessment of life expectancy. The reality is that a prediction of life expectancy is as much art as science, and part of the art is knowing and assessing the patient’s concurrent illnesses and their possible effects on life span. Dr Lowe has had that opportunity and has vast experience in dealing with dementia patients. For those reasons I take into account and give weight to the opinion of Dr Obeid, but I have come to the view that the life expectancy finding I make must increase above his adjusted figure, to take account of the advantage Dr Lowe has in assessing his own patient.

92. I find that the life expectancy of Mrs Webber is 3.5 years, in other words to about the middle of the year 2022.

93. I reject the opinion of Dr Obeid concerning the present level of assistance, which he thought was 20.25 hours per week. I have already set out my reasons for rejection of that part of the opinion of Dr Obeid. I reject the opinion of Dr Obeid that the plaintiff, but for his disease of mesothelioma, would have had his own physical restrictions in caring for his wife in future years. There was no medical evidence to support this hypothesis.

94. I reject the opinion of Dr Obeid that the plaintiff would have been limited in the extent of care he would have been able to provide given his age and medical problems apart from mesothelioma. There was nothing in the evidence to suggest that any of the work which the plaintiff did caring for his wife involved any heavy activities. She does not need assistance in getting into or out of bed, getting onto or off the toilet, or getting into or out of the shower. Her abilities may well deteriorate as her dementing illness progresses. There is no evidence of the likely progression of her physical decline. Even at the moment, the plaintiff is able to provide every bit of assistance that his wife needs. This is illustrated by the fact that when the daughters come to the house, they do general housework for the benefit of both parents, but do not specifically do any tasks involving care for their mother.

95. The defendant submitted that there would come a time in the near future when Mrs Webber’s illness had progressed to such an extent that she could no longer be cared for at home and would have to go into a nursing home. This submission was based upon the evidence given by both geriatricians. Dr Lowe said, in his report dated 28 September 2018:

“People with Alzheimer’s diseases generally deteriorate over time. Her most recent minimental score – when taking her medications – was 17/30. On average people deteriorate on this scale by 2-3 points per year. Most people would require nursing home care when their scores were around 10-12, unless they were heavily supported by their relatives.”

(Emphasis added)

99. Mrs Webber’s minimental score has varied during the time she has been seen by Dr Lowe. In his report dated 19 November 2018 he said:

“She started Aricept in July 2017 when her MMSE was 17/30. Her MMSE rose to 18/30 but then she stopped the Aricept. When we reviewed her in February 2018 her MMSE had fallen to 13/30. With restarting the Aricept it then rose to 16/30 by May 2018 and today was 14/30. I interpret these findings as her cognition remaining stable throughout this year.”

100. From that I discern that it is not unusual for an MMSE to vary, to some moderate extent, from test to test. At the start of 2018 the minimental score was 13/30 and at the end of 2018 it was 14/30. This does not show a deterioration over the year, hence the conclusion of Dr Lowe that Mrs Webber’s cognition remained stable throughout the year.

101. Dr Lowe gave evidence, which I accept, that deterioration in a person in their 80s with dementia does not follow a regular downward curve, but sometimes proceeds in a step-like pattern. While there was a drop in the minimental score between July 2017 and early 2018, there was no drop between the start of 2018 and the end of 2018 – in fact there was a one point increase.

102. Even though a dementia patient usually decreases their score by 2-3 points per year, this can vary from one patient to the next. Clearly the stability of the score obtained by Mrs Webber in 2018 is evidence of that.

103. The defendant submitted that Mrs Webber would end up needing nursing home care, in any event, by the end of 2019. I do not think that the minimental scores in evidence support that submission.

104. I have found that that the life expectancy of Mrs Webber is 3.5 years, to the middle of the year 2022. It is almost inevitable that as she declines towards death, she would get to the point where she would need nursing home care. Dr Obeid offered the view that Mrs Webber would require nursing home care for the remaining 0.3 years of her life as her mobility deteriorated and she required total assistance in all aspects of self-care and continence.

105. I accept that opinion and find that Mr Webber would have been able to care for his wife at home, had he not suffered the disease of mesothelioma, for a further three years. I also find that in the last 0.5 years of Mrs Webber’s found life expectancy, she would be in a nursing home and Mr Webber would not be able to provide care when she was at that stage.

106. I therefore propose to calculate damages for loss of capacity to provide gratuitous domestic assistance to Mrs Webber, for a further three years.

107. I find that Mr Webber, at the time of his diagnosis, was providing care and supervision for his wife 24 hours per day. He only left her alone for 30 minutes three times a week, when he went out to do the shopping. I find that, at the time of his diagnosis, Mrs Webber required 24 hour care and supervision. The same findings are made for the situation at the date of the trial.

108. Both the occupational therapists who gave expert reports (Mrs Kahren White for the plaintiff and Ms Anne White for the defendant) agreed that this was so.

109. There was (quite properly) no cross-examination of the plaintiff or Ms Dyer to suggest to the contrary.

110. Mr Sheller, who made submissions on damages on behalf of both Comcare and Amaca, properly conceded that Mrs Webber could not be left alone, and that equated to 24 hour care (T 106/43-50).

Assessment of damages – agreed matters

111. The parties agreed upon a lump sum of $160,000 to compensate the plaintiff for the following heads of damage: loss of expectation of life; past out-of-pocket expenses; future out-of-pocket expenses; past domestic assistance to the plaintiff; future domestic assistance to the plaintiff; future loss of earning capacity.

112. This meant that the heads of damage left to be assessed were: general damages; interest on past general damages; and damages (if any) for past and future loss of capacity to provide gratuitous care and assistance to Mrs Webber.

113. I have already recorded my factual findings relevant to this last head of damages. However, the parties were at odds as to whether any damages at all could be awarded for Mr Webber’s loss of capacity in future to provide gratuitous domestic services to his wife. This dispute centred around the appropriate choice of law for assessment of damages in the case. The choice of law question also impacted upon the amount to be awarded for general damages.

Choice of law – the issues

114. The plaintiff submitted that the assessment of damages was entirely governed by the law of the State of New South Wales. The statute law of New South Wales contains s 15B of the Civil Liability Act 2002 (CLA). Prior to the decision of the High Court in CSR Limited v Eddy (2005) HCA 64; 226 CLR 1, it was thought that the loss of capacity to provide services to dependants was compensable at common law. Such damages were known as Sullivan v Gordon damages. This name came from the case in the New South Wales Court of Appeal which decided that such a loss was compensable at common law – Sullivan v Gordon (1999) 47 NSWLR 319.

115. In CSR Limited v Eddy the High Court held that a person who is rendered unable to provide gratuitous personal or domestic services for another because of a personal injury, cannot recover as damages an amount calculated by reference to the commercial value of those services. However, loss or impairment of the amenity constituted by capacity to assist others may be compensated as part of general damages. Sullivan v Gordon was effectively overruled.

116. After that decision, some States of Australia legislated to create a statutory right to damages of the kind awarded in Sullivan v Gordon. Different States took different approaches. In New South Wales parliament enacted s 15B of the CLA. It provided a limited right to such damages. One of the limits was upon the hourly rate which could be awarded as damages. By contrast, Queensland enacted legislation which allowed damages to be calculated at a commercial rate. At present, Western Australian and the Northern Territory have no statutory equivalent of s 15B. In those two law areas, the common law applies as laid down in CSR Limited v Eddy. No damages can be awarded for loss of capacity to provide gratuitous domestic services, but such a loss may be taken into account in awarding general damages.

117. The plaintiff submitted that the assessment of damages in the present case was entirely governed by the law of New South Wales, as the law of the forum. The defendant submitted that the assessment of damages was entirely governed by the law of the Northern Territory. If the plaintiff’s submission is accepted, then the plaintiff could recover all of his damages for loss of capacity to provide services to his wife, assessed in accordance with s 15B. If the defendant’s submission is right, then the plaintiff can obtain nothing for this loss, apart from what was submitted would be a modest increase in the level of general damages awarded.

118. For reasons set out below, I have come to the view that neither submission can be accepted. The damages in this case must be assessed twice, once in accordance with the law of New South Wales and once in accordance with the law of the Northern Territory. My reasons are set out below.

John Pfeiffer Pty Limited v Rogerson

119. The test to be applied as to the governing law is clear, as a result of the decision of the High Court in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; 203 CLR 503 (Pfeiffer). In that case a plaintiff sued in the Supreme Court of the Australian Capital Territory for damages for personal injuries suffered in New South Wales. The question which arose was whether the applicable law for the assessment of damages was the law of the State or of the Territory.

120. The High Court examined various possibilities for a choice of law rule. The possibilities which emerged were the lex fori (the law of the forum), the lex loci delicti (the law of the place of the wrong) or the proper law of the tort. In the present case the plaintiff contended that the appropriate choice of law was the lex fori and the defendant contended (in effect) that the appropriate law was the proper law of the tort. I will deal more fully with those submissions below.

121. For reasons set out at pars [72]-[87], the High Court came to the view that “the common law should now be developed so that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an inter-State element” – at [87].

122. The High Court also held that all questions about the kinds of damage, or the amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti – at [100].

123. In a case where there is one wrongful act, such as a car accident or a frank injury suffered in the workplace, there is clearly only one place of the wrong. Pfeiffer is a classic example of this.

124. However the present case involves a wrong done to the plaintiff by the defendant in New South Wales, for many years, and in the Northern Territory, also for many years. That being said, the injury suffered by the plaintiff is the disease of mesothelioma, which has always been held in this Tribunal and in other courts, to be an indivisible injury. The American text Prosser and Keeton on Torts contains the following illustration of the difference between a divisible injury and an indivisible injury:

“The distinction is one between injuries which are reasonably capable of being separated and injuries which are not. If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury between them, and each will be liable for all of it. If they shoot the plaintiff independently, with separate guns, and the plaintiff dies from the effects of both wounds, there can still be no division, for death cannot be divided or apportioned except by an arbitrary rule devised for that purpose. If they merely inflict separate wounds, and the plaintiff survives, a basis for division exists, because it is possible to regard the two wounds as separate injuries; and the same of course is true for wounds negligently inflicted. Upon the same basis, if two defendants each pollute a stream with oil, in some instances it may be possible to say that each has interfered to a separate extent with the plaintiff’s rights in the water, and to make some division of the damages. It is not possible if the oil is ignited, and burns the plaintiff’s barn.”

125. Thus since mesothelioma is an indivisible injury, and because on the findings I have previously made, exposure in New South Wales and exposure in the Northern Territory each made a material contribution to causing the disease, Pfeiffer directs the court towards a finding that the lex loci delicti is the law of New South Wales and the law of the Northern Territory.

The competing submissions on choice of law

126. Mr Parker, senior counsel for the plaintiff, drew attention to the federal aspect of the present proceedings. Section 56 of the Judiciary Act 1903 (C’th) provides that a person making a claim against the Commonwealth, whether in contract or in tort, may bring a suit against the Commonwealth in the High Court, in the Supreme Court of a State or Territory, or in any other court of competent jurisdiction in that State or Territory. The Dust Diseases Tribunal is the court of competent jurisdiction in which a claim of the type brought by Mr Webber can be litigated. It has exclusive jurisdiction in New South Wales in relation to claims for damages arising out of dust-related conditions – Dust Diseases Tribunal Act 1989 s 10.

127. Mr Parker’s argument then looked at s 80 of the Judiciary Act 1903 which provides:

“So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.”

128. Mr Parker’s argument proceeded that, given that the High Court in CSR Limited v Eddy had overruled Sullivan v Gordon, the laws of the Commonwealth were insufficient to provide an adequate remedy in the present case. Thus, he argued, the common law as modified by the statute law of the court hearing the case (being New South Wales, and specifically being s 15B of the CLA) should be held to be applicable to assessment of the plaintiff’s damages.

129. There are several reasons why this submission is rejected. Firstly, even though the High Court in CSR Limited v Eddy overruled Sullivan v Gordon, that left the common law still providing a remedy to a person such as Mr Webber. The decision of the High Court recognised that general damages would have to be assessed so as to compensate a person who had lost capacity to provide gratuitous domestic services to a dependant. There was thus a remedy available under the common law of the Commonwealth for the loss of capacity suffered by Mr Webber. It is not for the Tribunal to make a value judgment as to whether the common law remedy is inadequate and it is not for the Tribunal to compare the result obtained under the common law with the result obtained under s 15B of the CLA, and say that the common law remedy is inadequate.

130. The second reason for rejecting Mr Parker’s argument, is that it ignores the fact that the choice of law rules, particularly those clarified in Pfeiffer, apply as part of the common law of Australia and apply in New South Wales courts as part of that common law. Thus the law of New South Wales is that the common law test in Pfeiffer governs choice of law in relation to assessment of damages in respect of an inter-State tort. The lex loci delicti must be applied to assessment of such damages. Thirdly, to accept the submission put forward by Mr Parker would be to ignore the choice of law rule in Pfeiffer and to make choice of law entirely dependent upon where the plaintiff had chosen to sue for damages. If Mr Parker’s submission was accepted, and if the plaintiff sued in Queensland, then he could not only obtain damages for loss of capacity to provide gratuitous domestic services to his wife, but he could obtain such damages at a commercial rate. If he chose to sue in some other State which had a more liberal or more restrictive statutory regime, even a State which had no connection whatsoever with the place of the wrong, then the damages would be governed by the law of that State. Such an approach would only encourage forum shopping.

131. For those reasons the submission put by Mr Parker SC, that only New South Wales law applies, is rejected.

132. Mr Watson, senior counsel for Comcare, submitted that a number of factors had to be looked at, which would lead to the conclusion that the law to be applied was only that of the Northern Territory. These factors were collected at T 104/10-50 as follows: the plaintiff had resided in the Northern Territory for the last 38 years; the Northern Territory is where he suffered most of his exposure; the Northern Territory was the place where he had suffered his injuries, disabilities and losses; the Northern Territory was the place where he needed care to be provided to him; the Northern Territory was the place where he was unable to provide care to his wife. Mr Watson submitted that “the only conclusion open is that the place of the tort, for the purposes of choosing the law in his claim, must be the Northern Territory”. I reject that submission. Of the three options considered in Pfeiffer, such an approach would appear to be one which urges the Tribunal to apply the proper law of the tort. Such a notion was specifically rejected in Pfeiffer. The loci delicti, in the case of a tort, is the place where the wrongful act of the defendant occurred. For example, in Pfeiffer it was the breach of duty of care which occurred in the accident in New South Wales. In the present case the Commonwealth breached its duty of care to the plaintiff in New South Wales for many years and it breached its duty of care to the plaintiff in the Northern Territory for many years.

133. The choice of law rule laid down in Pfeiffer provides one answer to the question: what law governs the assessment of damages? The answer is the lex loci delicti. The complication in the present case is that there were two places in Australia, New South Wales and the Northern Territory, where the breach of duty of care by the defendant made a material contribution to the contraction of mesothelioma, which is an indivisible disease.

134. In the case of a single event, there is only one law which can be applied – the law of the State or Territory in which the particular wrong occurred. In the case of an ongoing wrong, such as the breach of duty of care by the Commonwealth to the plaintiff over decades, occurring in New South Wales and later in the Northern Territory, the answer to the question which law governs the assessment of damages, is that there are two systems of law which govern the assessment of damages – because there are two places where the wrong has occurred. The lex loci delicti applies, and because there are two places of the wrong, there are two systems of law under which damages have to be assessed.

Assessment of general damages under New South Wales law

135. General damages for pain, suffering and loss of enjoyment of life are assessed on a common law basis. Such damages cannot include a component that compensates the claimant for loss of capacity to provide gratuitous domestic services to a dependant – s 15B(5)(b) CLA.

135. The plaintiff has been symptomatic since the middle of 2017. He has had several occasions when he has been admitted to hospital for drainage of fluid which has accumulated in his abdomen. He has been through an operation and a biopsy. Since May 2018 he has been taking the strong opiate pain killer Oxycontin. The plaintiff was previous an active elderly man, but since January 2018 he has needed significant assistance from his two daughters who live in Darwin. He has continued to provide care and assistance to his wife Gwen, as he has for the last three or four years.

136. I observed the plaintiff as he gave his evidence at his home in Darwin. He appeared to me to be a very stoic individual, who even at this late stage of his terminal illness, is concerned for his wife and not for himself. The worst stages of his disease are yet to come. He will suffer increasing pain and discomfort, and will soon get to the stage when he needs 24 hour care. This is likely to be in February 2019, which was the prospective date of death agreed between the parties.

137. I assess general damages in the amount of $350,000.

138. I assess past general damages at $200,000. Interest on this amount is calculated as follows: $200,000 x 2% x 1.5 years = $6,000.

General damages under the law of the Northern Territory

140. This is a pure common law assessment, in the sense that, there being no s 15B type damages, the plaintiff is to be compensated for his pain, suffering and loss of enjoyment of life, and also for his loss of capacity to provide gratuitous domestic services to his wife.

141. After the High Court overruled Sullivan v Gordon damages in CSR Limited v Eddy, it considered whether to remit the matter to the Dust Diseases Tribunal in order to reconsider general damages. In that judgment at [72] the High Court decided not to remit, on the basis that an additional component for general damages to reflect loss of capacity to provide gratuitous domestic services was “likely to be relatively small, if only because of the much graver seriousness of the other factors going to the general damages awarded and because of the short period – less than two years – in which the relevant capacity was impaired”.

142. The High Court noted at [73] that the award for Sullivan v Gordon damages was based upon lack of ability to provide gardening services, looking after a car, painting the house and maintaining the house. That was the assessment of the trial judge. The Court of Appeal had thought that the Sullivan v Gordon damages represented “loss of capacity to care for his disabled wife”, a reference to his loss of capacity to assist his disabled wife in cleaning the house, as well as a loss of capacity to carry out gardening, maintenance and mechanical work on the family car. The High Court said at [73] that “virtually all of the services were not services to the wife alone, but would also have brought benefits to the plaintiff himself and the other member of the household, the wife’s mother”.

143. The High Court held that most of the additional damages had been allowed at trial under Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 at [75]. These views led the High Court to decline to allow the matter to be remitted to the Tribunal to reassess general damages.

144. The present case is distinctly different from the circumstances in CSR Limited v Eddy concerning the type of help provided by the injured husband to his disabled wife. In this case all of the services which Mr Webber has lost the capacity to provide relate to care for a wife suffering from dementia. As previously recited, there is no dispute that Mrs Webber needs 24 hour care. There is also no dispute that Mr Webber has been and would have been, but for his illness, the person who provided the 24 hour care. I have found that he would have done so for another three years.

145. In those circumstances I find that there must be a significant increase in New South Wales type general damages to compensate the plaintiff additionally for his loss of capacity to provide care and assistance to his wife. The matters recited in the second affidavit of the plaintiff are enough to demonstrate that, out of love, and a sense of duty to his wife, Mr Webber had devoted himself, for the rest of his days, to caring for his wife. This loss of capacity cannot be compensated simply by a very small amount being included in general damages.

146. I find that general damages assessed under Northern Territory law is a figure of $450,000.

147. To calculate interest on past general damages, I again select the figure of $200,000 for the past. The loss of capacity to provide gratuitous domestic services to Mrs Webber is one which would run in the future. To date Mr Webber has been able to provide nearly all of those services, in spite of the late stage of his terminal illness. The calculation is the same as that set out above under the New South Wales law. Interest on past general damages will be $6,000.

Damages for loss of capacity under the Northern Territory law

148. For the reasons discussed above, there can be no separate award for damages for Mr Webber’s loss of capacity to provide gratuitous domestic services to his wife. There is no statute in the Northern Territory which enables an award of such damages and such a loss can only be compensated within an award for general damages. The figure in this regard has been set out above. There will thus be no separate award under Northern Territory law for loss of capacity to provide gratuitous domestic services.

Damages for loss of capacity under New South Wales law

149. Mrs Webber is a dependant of Mr Webber within the meaning of s 15B(1)(a)(i). Mr Webber has been providing gratuitous domestic services within the meaning of s 15B(1), which is defined to mean “services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid”.

150. Section 15B of the CLA provides as follows:

“(2)   When damages may be awarded

Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that:

(a)   in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of"dependants" in subsection (1)—the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b)   the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c)   there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants:

(i)   for at least 6 hours per week, and

(ii)   for a period of at least 6 consecutive months, and

(d)   there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.”

151. There are four elements in s 15B(2). The first is satisfied, as Mrs Webber is a dependant of Mr Webber within the meaning of that term in s 15B(1) and Mr Webber provided the services to his wife before the time that the liability in respect of which the claim is made arose. He became symptomatic in the middle of 2017. This is when the mesothelioma first presented, although it was not diagnosed until much later. By the middle of 2017 Mr Webber had been providing services to his wife for some years. Thus s 15B(2)(a) is satisfied.

152. The second element of s 15B(2) is also satisfied. Mrs Webber was not and will not be capable of performing the services herself by reason of her physical or mental incapacity, arising from her dementia – s 15B(2)(b). This was the view of Dr Lowe for the plaintiff, Dr Obeid for the defendant, and both occupational therapists. It was not a matter in dispute in the case.

153. The third element of s 15B(2) satisfied, as there was a reasonable expectation, indeed a certainty, that but for Mr Webber’s mesothelioma, he would have provided the services to his wife for at least six hours per week and for a period of at least six consecutive months – s 15B(2)(c). On the findings of fact I have made, he would have provided the services to his wife for 24 hours a day for the next three years of her life.

154. The fourth element of s 15B(2) is satisfied, as there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances – s 15B(2)(d). Once again, there was agreement among the expert witnesses, and indeed it was conceded in submissions by the defendant (and the cross-defendant) that there was a need for 24 hour care and supervision for Mrs Webber.

155. By s 15B(4), damages are not assessed at a commercial rate, but are assessed at a rate prescribed by statute. The current hourly rate, which will be used for assessment of s 15B damages, is $31.03 per hour.

156. Mr Sheller, who made the submissions on damages not only for the cross-defendant but also for the defendant, submitted that the award should not be assessed at 24 hours per day, as there were some hours in the day when Mr Webber was asleep and was not actively providing services to his wife. As previously recited, there was no challenge to the evidence that sometimes Mrs Webber awakes at night and performs irrational acts such as feeding the animals in the middle of the night. Mr Webber has to get up and supervise her and put her back to bed, as well as clean up after her. This was corroborated by the evidence of Ms Dyer, about the behaviour of her mother when she came to stay at her house.

157. True it is that Mr Webber is asleep for quite a bit of the night, but at any moment, and without warning, he may have to get up to his wife to help her. She is disoriented and confused and does not really know what she is doing. She is a danger to herself. When this happens and how often it happens cannot be predicted. There was no challenge to the evidence that Mr Webber, although he slept in the adjoining room, left the doors open so that he could hear his wife if she got up so that he could get up and assist her.

158. This sort of assistance, including standing by ready to serve, is the kind which has been previously assessed as a gratuitous domestic service in cases such as Amaca Pty Limited v Phillips [2014] NSWCA 249 and Amaca Pty Limited v Raines [2018] NSWCA 216.

159. While Mr Webber was leaving the home for three periods of 30 minutes per week in order to do the shopping, this also was a service provided to his wife, which she could not perform for herself.

160. I propose to award damages under s 15B at the rate of 24 hours per day for the next three years.

161. Section 15B(11) provides as follows:

"(11)   Determining value of gratuitous domestic services

In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account:

(a)   the extent of the claimant’s capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and

(b)   the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and

(c)   the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.”

162. I find that Mr Webber had full capacity to provide the services before he sustained “the injuries that is the subject of the claim” within the meaning of s 15B(11)(a).

163. I find that the extent to which provision of the services to Mrs Webber would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under sub-section (2), is nil. The couple lived by themselves in the family home and the services provided by Mr Webber to Mrs Webber were not of benefit to anyone else.

164. I do make an allowance for the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages. In the case of an elderly claimant and an elderly recipient of the services, a significant discount for vicissitudes is required. At the advanced age of both Mr and Mrs Webber, some other illness could manifest itself in the next three years, which would have meant either that Mr Webber could not provide the services, or that his wife would no longer require the services because she passed away earlier than anticipated. I find that the appropriate discount is 25%.

165. The 3% multiplier for three years is 149.8. The hourly rate is $31.03 per hour. There are 168 hours in the week. Adopting a 25% discount for vicissitudes, the assessment of damages for loss of capacity of Mr Webber to provide gratuitous domestic services to Mrs Webber, assessed under s 15B of the CLA, is: $31.03 x 168 hours x 149.8 x 0.75 = $585,685.

166. I do not propose to apply any deferral factor. On the evidence Mr Webber will deteriorate to the point where by next month he needs 24 hour care himself. Thus his ability to provide any services to Mrs Webber will disappear after the next few weeks.

167. I do not propose to award any s 15B damages for the past. Ms Dyer gave evidence that she provided about six hours per week of services to her parents, but cross-examination disclosed that most of those things could still be done by Mr Webber, and that she was, out of love and affection for her parents, helping out the couple by performing domestic chores. These were for the benefit of Mr Webber as well, and to my mind are subsumed into the figure of $160,000 which has been agreed, and includes domestic services performed for Mr Webber.

Conclusions

168. The damages assessed under Northern Territory law are as follows:

HEAD OF DAMAGE	AMOUNT
General damages	$450,000
Interest on past general damages	$6,000
Loss of capacity to provide gratuitous domestic services	Nil (although included as a component in general damages)
All other heads of damage as agreed	$160,000
TOTAL	$616,000

169. The damages assessed under New South Wales law are as follows:

HEAD OF DAMAGE	AMOUNT
General damages	$350,000
Interest on past general damages	$6,000
Loss of capacity to provide gratuitous domestic services (s 15B CLA)	$585,685
All other heads of damage as agreed	$160,000
TOTAL	$1,101,685

170. The wrong committed by the Commonwealth was one which occurred, to a substantial degree, both in New South Wales and in the Northern Territory.

171. Damages fall to be assessed under the law of New South Wales as the lex loci delicti for the breach of duty of care which occurred in New South Wales, and the law of the Northern Territory, as the lex loci delicti for the breach of duty of care which occurred in the Northern Territory.

172. Mesothelioma is an indivisible injury.

173. The breach of duty of care by the Commonwealth in New South Wales caused or made a material contribution to the plaintiff’s condition.

174. The breach of duty of care in the Northern Territory caused or made a material contribution to the plaintiff’s condition.

175. As a result of the above, the plaintiff is entitled to a judgment against the defendant for $616,000 in relation to the defendant’s breach of duty of care which occurred in the Northern Territory. The plaintiff is entitled to a judgment against the defendant for $1,101,685 for the breach of duty of care which occurred in New South Wales. These figures overlap.

176. Since the defendant is responsible for all of the damages caused by the breach of duty of care in New South Wales, the plaintiff is entitled to one judgment, being against the defendant for $1,101,685.

177. The plaintiff is also entitled to an order for costs against the defendant.

The cross-claim

178. Because of the urgency of the plaintiff’s case, little attention was paid to the cross-claim. I indicated to the parties that I would give judgment on the action brought by the plaintiff against the defendant, and then give the defendant and the cross-defendant the opportunity to consider my judgment. If they can settle the cross-claim then they can bring in Consent Orders. If they cannot settle the cross-claim then I will hear those two parties further.

179. My orders are:

1. Judgment for the plaintiff against the defendant for $1,101,685.

2. Order the defendant to pay the plaintiff’s costs.

3. Grant leave to contact my Associate within three days, if any party wishes to contend for a different order on costs.

4. Grant leave to the defendant and the cross-defendant to contact my Associate within three days, to indicate whether those parties wish a further hearing to take place in relation to the cross-claim.

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Decision last updated: 11 December 2018