Weckert v Amaca Pty Ltd

[2004] NSWDDT 20

Dust Diseases Tribunal

of New South Wales

CITATION:	Weckert v Amaca Pty Ltd [2004] NSWDDT 20
PARTIES:	Morris Ivan Weckert Amaca Pty Ltd
MATTER NUMBER(S):	35 of 2004
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	28/09/ 2004
EX TEMPORE JUDGMENT DATE :	09/28/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr M J Joseph, SC instructed by Slater & Gordon FOR DEFENDANT: Ms W Strathdee instructed by Phillips Fox

JUDGMENT:

1. This is an action by Morris Ivan Weckert against Amaca Pty Ltd (Amaca). The plaintiff seeks damages consequent upon his contracting mesothelioma as a result of inhaling asbestos dust and fibre which emanated from products produced and manufactured by James Hardie & Coy Pty Ltd (JHC), in whose shoes Amaca now stands.

2. Upon evidence having been called, sufficient to establish that the plaintiff was exposed to asbestos dust and fibre from products manufactured by JHC, liability was admitted and the case became one for assessment of damages. During the course of submissions much has been agreed and, for the concessions and compromises made by counsel in order to reach agreement, I am grateful.

3. The plaintiff was born on 18 March 1936 and is therefore 68 years old. He was married in 1963. He has two children and two grandchildren. He and his wife have spent much of their time babysitting and looking after and enjoying the company of their grandchildren.

4. Generally the plaintiff has enjoyed good health, though it would seem that well before the onset of mesothelioma, he suffered from clinical depression and was treated for it. In October 2003 he developed a cough and flu like symptoms which persisted and he began to develop shortness of breath. In particular, he suffered dyspnoea when he was climbing hills. Malignant mesothelioma was diagnosed in October 2003, though it had been suspected beforehand. The plaintiff underwent a series of surgical procedures, notorious for the pain and discomfort they produce.

5. On 3 November 2003 Dr Jurisevic, a cardiothoracic surgeon, operated on the plaintiff. At operation he found bulky tumour deposits in the mediastinum abutting the plaintiff's pericardium which were up to three centimetres in diameter. The entire parietal pleural surface of the chest wall was studded with sheets of tumour and the left lower lobe appeared to be partly trapped. The plaintiff underwent a talc pleurodesis, a procedure designed to prevent the build up of further fluid by causing the adherence of the lung to the inner layer of the rib cage. That procedure was not entirely successful and the plaintiff underwent further aspiration and drainage. It is well known that these procedures are extremely painful and there is no doubt that the plaintiff experienced exquisite pain and discomfort as a consequence. Mesothelioma is a terrible and devastating disease. There is no cure and death is inevitable. It has been agreed, that the plaintiff’s death is likely to occur and, it may be presumed, will occur on 1 March 2005.

6. In addition to aspiration and drainage the plaintiff had a course of radiotherapy followed by a course of chemotherapy. He had adverse reactions to each course of therapy but particularly to the chemotherapy. The latter resulted in nausea and vomiting for prolonged periods. As his death approaches the level of his pain and discomfort will increase. The tumour will surround his lungs and strangle them. He will not be able to breath without extreme discomfort. The protocols for pain relief ordinarily used in Australia allow for the administration of morphine and MS Contin. At best pain is plateaued rather than removed.

7. Bearing in mind what the plaintiff has so far experienced and will experience as his death approaches general damages should be assessed in the sum of $160,000. This is a figure conceded by counsel for the defendant and in my view properly conceded. Counsel for the plaintiff put forward a higher figure but that does not find favour with me.

8. According to the Australian life tables the plaintiff would have had a life expectancy of 15.3 years. I think the sum appropriate to compensate him for loss of expectation of life is $15,000.

9. Past out of pocket expenses have been agreed in the sum of $15,889.85. Future out of pocket expenses have been agreed in the sum of $4,612. Future care has been agreed in the sum of $72,030.

10. What remains in dispute is an amount for future Sullivan v Gordon expenses. The figure proposed under this head by the plaintiff is something slightly in excess of $75,000. This figure was calculated on the basis that the plaintiff previously spent something in the order of eight hours a week on household tasks and maintenance chores in and about his home. The plaintiff has taken an amount of $120 per week, which for earlier periods was allowed for Sullivan v Gordon expenses, multiplied that by eight hours per week and on the basis of the plaintiff's life expectancy of 15.3 years has produced the sum of $75,000, which has not been discounted. In my view that is extravagant. Undoubtedly as the plaintiff aged he would have done less. He has had treatment for depression, though that is not a profound factor in this case. He also had some cardiac malfunction and he suffers diabetes. It is impossible to assess an entitlement to future Sullivan v Gordon expenses by a mathematical process. The defendant has conceded an allowance should be made in the sum of $7,000 and I am of the view that that is an appropriate amount. It is true that life tables take into account statistical data based upon life expectancy of all males who die from whatever cause. Nevertheless some account, in my view, must be taken of the fact that the plaintiff has co-morbidities and it is inevitable that the performance of future maintenance tasks about his home would decrease with the passing years. Accordingly only $7,000 should be allowed rather than the $75,000 sought by the plaintiff.

11. Thus the plaintiff is entitled to judgment made up as follows:

General damages:.................................................. $160,000.
Interest on past general damages agreed at:... $1,600.
Loss of expectation of life:...................................$15,000
Past medical expenses at:.....................................$15,889.85.
Future medical expenses:.....................................$4,612.
Past and future care:...............................................$72,030.
Interest on past care:..............................................$1,543.05.
Future Sullivan v Gordon expenses................$7,000.
Total:......................................................... $277,674.90

12. There will be verdict and judgment for the plaintiff in the sum of $277,674.90.

13. The defendant will pay plaintiff's costs as agreed or assessed.

14. Leave to defendant on or before 31 December 2004 to issue cross-claims.

Mr M J Joseph, SC instructed by Slater & Gordon appeared for the plaintiff

Ms W Strathdee instructed by Phillips Fox Appeared for the defendant