Williams v Amaca Pty Ltd

[2020] NSWDDT 2

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	Williams v Amaca Pty Ltd [2020] NSWDDT 2
Hearing dates:	5 and 10 March 2020
Date of orders:	11 March 2020
Decision date:	11 March 2020
Before:	Scotting J
Decision:	(1)   Verdict and judgment for the plaintiff in the sum of $709,613. (2)   The defendant is to pay the plaintiff’s costs of the proceedings, as agreed or assessed, on the ordinary basis.
Catchwords:	DUST DISEASES – COSTS – assessment of damages
Legislation Cited:	Civil Liability Act 2002 Dust Diseases Tribunal Act 1989 Workers Compensation (Dust Diseases) Act 1942
Cases Cited:	FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 Fuller v Avichem Pty Ltd [2019] NSWCA 305 Londos v Amaca Pty Ltd [2017] NSWDDT 7 State of New South Wales v Moss (2000) 54 NSWLR 536 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
Category:	Costs
Parties:	Denis Williams (Plaintiff) Amaca Pty Ltd (formerly James Hardie & Coy Pty Limited (Defendant) Ron Bohm Roofing Pty Ltd (First Cross Defendant)
Representation:	Counsel:    S Tzouganatos (Plaintiff)       A Fronis (Defendant) 5 March 2020       I Griscti (Defendant) 10 March 2020          Solicitors:   vbr Lawyers (Plaintiff)       Holman Webb Lawyers                (Defendant/Cross Claimant)       McCabe Curwood (First Cross             Defendant)
File Number(s):	429/2019
Publication restriction:	None

Judgment

Introduction

1. The plaintiff sues the defendant seeking damages for personal injury after contracting mesothelioma as a result of exposure to asbestos contained in the defendant’s products.

2. Liability was not in issue and the matter proceeded as an assessment of damages.

3. The plaintiff read an affidavit sworn by him on 4 March 2020. He was cross-examined before me at The Tweed Hospital on 5 March 2020. At the time that the plaintiff gave evidence he was a patient in the Coronary Care Unit. He gave evidence seated in a chair and he was on oxygen. The plaintiff was hooked up to a machine that was monitoring his heart. An alarm sounded at various times during the course of his evidence at which time he was required to rest until the alarm ceased. The plaintiff appeared to be mentally acute and was endeavouring to answer the questions put to him in detail. This often made him breathless, leading to the sounding of the alarm. The plaintiff was discharged from The Tweed Hospital on 6 March 2020 and is being cared for at home by his wife.

4. This judgment is being delivered quickly because the plaintiff has an economic loss claim that would not survive his death, I am concerned that his health is precarious and I have to leave shortly to go to Western Australia to take evidence in another mesothelioma claim.

The Plaintiff’s Case

The evidence of the plaintiff

The plaintiff’s background, work history and exposure to asbestos

5. The plaintiff was born on 22 February 1948 in Narrandera, New South Wales. He attended Narrabeen Boys High School, leaving school at the age of 13 years and 10 months. After leaving school, he attended the Sydney Technical College (STC) for about 18 months completing a shearing management course that enabled him to obtain a wool class certificate. The plaintiff attended STC from Monday to Friday and worked for Ron Bohm Roofing (RBR) on the weekends.

6. The plaintiff worked for RBR for a couple of months in 1961 prior to starting at STC. The plaintiff’s sister was in a relationship with Mr Bohm’s brother and it was through that connection that he got the job.

7. In or about 1962, the plaintiff commenced working for RBR on a regular basis. This involved working each Saturday and on the occasional Sunday. The plaintiff was employed in this pattern during the entire time he attended STC.

8. The work involved the installation of Super Six corrugated asbestos cement roof sheeting (Super Six) on both domestic and factory roofs around Narrabeen and surrounding areas. The plaintiff estimated that about 70% of the roofing work he did in this employment was on factory premises. The vast bulk of the plaintiff’s work for RBR involved the use of Super Six. The sheets were commonly referred to by the workers of RBR as Super Six and the plaintiff recalled that the pallet on which the sheets were stacked had a James Hardie logo on it, being the initials “JH”, enclosed in a circle. Towards the end of his employment with RBR the plaintiff used metal roof sheeting but about 95% of his work involved using Super Six.

9. The plaintiff described the Super Six sheets as corrugated with a deep profile. They were dusty to handle and dust and fibres went over his hands and clothes each time he handled the sheets. The sheets had to be cut to size. They were also cut to form mitres on the edges so that the sheets could be interlocked together. The cutting of the sheets gave off clouds of dust which the plaintiff saw in the air around him. The dust went all over his hands and face, was in his hair and all over his clothes.

10. During the first six months of his work with RBR the plaintiff did not cut the sheets himself because he was not strong enough to do so. The plaintiff was required to hold the sheets when they were cut with a handsaw and then brushed them down with his hands to clear the dust before carrying them onto the roof. After about six months in this employment the plaintiff regularly performed the cutting work himself, as well as carrying and fixing the sheets on the roof. When the plaintiff cut the Super Six sheets himself with a handsaw this created a lot of dust in the air around his face. He was also required to carry the Super Six sheets on his shoulders and up a ladder onto the roof area. When carrying the sheets in this way, visible dust would be around his face.

11. The plaintiff was also required to drill pilot holes with a hand drill and then brush away the dust as well as blowing out the dust from the hole which again created visible dust around his face. Initially, the plaintiff was not strong enough to do the hand drilling himself but later did so. The plaintiff was then required to put an object known as a “blackjack” into the end of the screw as a sealant prior to screwing the Super Six sheet in place. Later, rubber washers were used for this purpose.

12. When working on large factory premises, anywhere from 60 to 80 Super Six sheets would be used to construct the roof. When working on the weekends for RBR the plaintiff was either, handling, cutting, carrying or fixing the Super Six sheets. The plaintiff described his exposure to dust in this period as “intense”. In cross-examination the plaintiff agreed that he was exposed to asbestos daily in his work for RBR.

13. After completing his course at STC in March 1964, he obtained work in shearing sheds until about 1967 when he joined the New South Wales Fire Brigade. The work at the shearing sheds was not continuous and there were periods when he came home and worked for RBR. In this period, about 95% of the work for RBR was on metal roofs with only 5% of the work on Super Six roofs.

14. From about 1967 to about November 1973 the plaintiff served in the New South Wales Fire Brigade. He attained the rank of a First Class Fireman. The plaintiff accepted that it was possible he had some asbestos exposure during the course of this employment including being exposed to asbestos in buildings after a fire and he also had available to him asbestos blankets and asbestos fire fighting suits as part of the equipment stored in the fire trucks. The plaintiff did not believe that his exposure to asbestos as a firefighter was significant.

15. On 31 January 1970 the plaintiff married his wife, Luisa, who is known as Angela. They have three children, Darren, Eli and Carly and eight grandchildren.

16. From about late 1973 to about 1977 the plaintiff worked as a self-employed maintenance man/builder. He obtained work from a real estate agent that involved repair and maintenance of buildings that the agent managed. The plaintiff performed a lot of maintenance work on units and homes around the Manly area. Some of that work involved repair of damaged fibro sheeting. This involved cutting out patches out of old fibro walls in bathrooms and kitchens and fitting new Hardiflex flat asbestos cement sheets (Hardiflex). The plaintiff used a handsaw to cut many Hardiflex flat sheets to do this type of repair work. The plaintiff deposed that the cutting of the Hardiflex sheets would create a lot of dust around his face that settled on his clothes. The plaintiff estimated that he did this work once every few months throughout this period. The plaintiff also did some similar work for a real estate agent in Harbord.

17. In or about 1977 the plaintiff moved to Bryon Bay. He obtained a licence that enabled him to do plastering work.

18. The plaintiff was initially employed by Barry Wylie for a period of about 12 months. He was paid a weekly wage during the course of this employment. The work for Mr Wylie was mainly on new homes and it involved having to install Villaboard asbestos cement (Villaboard) sheets in bathrooms, laundries, kitchens and other wet areas of the new homes being constructed. The plaintiff used either the score and snap method or fibro cutters to cut the Villaboard sheets. The plaintiff had to punch holes in the Villaboard sheets in order to accommodate power points, light fittings and plumbing fixtures. He often used a rasp to clean up the edges of the holes he had punched through the Villaboard sheeting. The dust from his work often went all over him. The plaintiff was required to clean up the work areas after completing the work. This was done using a broom and his hands which usually created more dust.

19. After finishing work with Mr Wylie, the plaintiff commenced his own business as a self-employer plasterer. From about 1978 onwards, all of the work that the plaintiff did was on new homes, mostly constructed by A.V. Jennings in the Bryon Bay, Lismore, Ballina, Casino, Murwillumbah and Tweed Heads areas. The plaintiff’s work involved working on a new home each week, involving the use of gyprock to line most internal walls as well as the use of Villaboard sheeting in the bathroom and wet areas. During the course of this work the plaintiff was exposed to dust from the Villaboard sheets in the same way as he was exposed during the course of his work for Mr Wylie. In addition, the plaintiff used compressed asbestos sheeting on bathroom floors which was also manufactured by James Hardie. The compressed sheets were very heavy to carry and could only be cut with a power saw. The cutting of these sheets caused clouds of dust to go in the air around the plaintiff. The plaintiff recalled using compressed asbestos cement sheeting on at least a handful of jobs.

20. During the course of conducting his plastering business the plaintiff formed a building supply business in response to the difficulties that he and other plasterers had in obtaining a regular supply of plastering materials including gyprock from CSR and asbestos cement sheeting from James Hardie. Prior to commencing the business, all plasterers in the Byron Bay area had to purchase their materials from CSR in Brisbane and pay for a delivery truck to transport them to Bryon Bay. The plaintiff came to an arrangement with the other plasterers in the area that he would not compete for plastering contracts, other than the A.V. Jennings work, if the other plasterers purchased their building supplies from him. In about 1980 the plaintiff built a supply shed at his Bryon Bay property using Hardiplank asbestos cement sheeting to do so. The plaintiff was exposed to visible dust in the air around him when he constructed the building supply shed.

21. The plaintiff also had some non-occupational exposure to asbestos during the course of building his home in Bryon Bay. The plaintiff was involved in the construction of the house with the assistance of other tradesmen. The building work took place between 1979 and 1981. The plaintiff used Villaboard sheets in the wet areas of the home and Hardiflex sheets on the verandah ceiling areas and the eaves around the home. During the course of constructing the property, the plaintiff regularly handled and cut asbestos cement products including using a power saw on occasions to cut this material. The work took about a couple of months to complete.

22. The plaintiff continued to work as a self-employed plasterer until about 2000. From about 1977 to about 1983 about 95% of the plaintiff’s work was on new residential home construction. The plaintiff agreed in cross-examination that in the course of his work on the A.V. Jennings houses that he used Villaboard each week. The plaintiff also accepted that the majority of his work in the A.V. Jennings houses did not involve the use of products containing asbestos. After commencing the building supply business, the plaintiff hired more workers and engaged his sons as apprentices. The plaintiff became progressively less involved in day-to-day plastering work and spent his time inspecting completed work, supervising and attending to administration of the businesses.

23. The plaintiff understood that James Hardie did not use asbestos in its building products after about 1983.

24. From about 1983 onwards, the plaintiff continued to work on new home constructions but also did some renovation and extension work that required him to disturb old asbestos cement sheeting. The plaintiff said that exposure was minor and insignificant compared to his exposure to dust from cutting and installing new James Hardie building products.

25. During the course of being a self-employed plasterer and in the conduct of the building supply business, the plaintiff did not recall the presence of any warnings on the asbestos cement products that he worked with.

26. After ceasing the plastering business, the plaintiff and his wife converted the building shed into a small scale accommodation business known as the Cape Bryon Retreat, which they operated until about August 2017 when it was sold.

27. At about that time the plaintiff paid $900,000 towards the purchase of a business known as Malone Glass in association with his sons, Darren and Eli. The plaintiff paid that amount from two sources, the first amount of $650,000 was provided from funds that he had and the second amount of $250,000 from a loan account with the bank in his name that he could draw down.

28. The plaintiff intended to operate the glass business with his sons. He enjoyed working with them. They had both completed their apprenticeships as plasterers in his plastering business. At the time of the purchase of the glass business, Darren and Eli were involved with another company that they operated, Square Set Linings, that occupied a lot of their time. The plaintiff and his sons commenced operating the glass business in about April 2018.

29. The glass business supplies and installs windows, doors, security screens, shower screens, wardrobe doors, mirrors and replacement glass for residential and commercial projects. The plaintiff attended work at the premises of the glass business for several hours each day managing the business and performing tasks including the design and implementation of business strategies, logistical arrangements and various administrative duties. The plaintiff’s role included understanding the upcoming work in order to schedule the work, review quotes and to provide advice and guidance on the direction of the business. For this work, the plaintiff received the sum of $1,200 per week gross.

30. The plaintiff usually arrived at work at about 7.30am and would spend several hours at work each day, depending on the work that needed to be done. The plaintiff aimed to be home early at about 10.00am but would work as long as was required. The plaintiff gave evidence that he was usually home by lunch. The plaintiff estimated that he worked about 20 hours per week on average. The plaintiff has been unable to attend work since about October 2019 as a result of his health.

31. The plaintiff gave evidence that he enjoyed working and had no intention of retiring. Prior to becoming ill he envisaged working to at least the age of 80. He was excited to be back in business with his sons and enjoyed the opportunity to interact with them in the course of the business. The plaintiff’s sons have continued to consult with him at his home and in hospital whilst he has been ill, to ask for advice. The plaintiff considered the business to be an arrangement to benefit the family and in particular himself and his sons.

32. The plaintiff does not have a mortgage and described himself as living “very frugally”. He gave evidence that he does not drink, smoke or gamble, play sport or spend money on hobbies. The plaintiff occupied his time performing jobs around the house and spending time with his family. He estimated his living expenses to be approximately $200 per week. In cross-examination the plaintiff accepted that he had not taken into account electricity, water, internet, dental expenses and clothing (apart from underpants). The plaintiff gave evidence that his electricity bill was $75 per quarter and that the business paid for his petrol and car maintenance.

33. The sum of $400 per week was also paid from the business into the loan account in the plaintiff’s name. This amount was intended to cover only the interest payable by the plaintiff on the loan account. In about mid 2019 this payment was increased to $1,200 per week, an amount intended to repay principal and interest outstanding on the loan account held with the bank.

Medical History

34. The plaintiff described himself as being relatively fit and active during the course of his life. He suffered from Ross River Fever in 1987 and made a full recovery. He had a squamous cell carcinoma removed from his scalp in 2012. The carcinoma had metastasised and he had surgery at the Gold Coast University Hospital in about 2014 followed by radiation treatment. He has continued to have his condition monitored with no further incidence of the disease.

35. In about 2007 the plaintiff suffered a heart attack that required surgical treatment. The plaintiff was restricted in his gardening activities for 12-18 months following his heart attack. He engaged commercial services to do the gardening in that period. The plaintiff gave evidence that his treating specialist had given him the “all clear” and he has attended the specialist after that for monitoring only.

36. The plaintiff had a right knee replacement in about 2015 and a left knee replacement in about 2017. The plaintiff described both surgeries as going well and that he made a full recovery from these operations. The plaintiff continued mowing the lawns after each of these surgeries.

37. In or about early August 2019, the plaintiff first noticed a feeling of pressure in his chest at night which interrupted his sleep. At the time he thought he was suffering from anxiety. He would get out of bed and it would take some time for the feeling to go away. The plaintiff experienced some shortness of breath on exertion particularly on hills and stairs. The plaintiff believed that he may have had a cold or the flu.

38. In or about October 2019, the plaintiff was spending time with his family at Hastings Point Beach. His granddaughter ran away from him at the beach and he was in the process of chasing after her when he felt as if he could not breathe. He collapsed to the ground with his granddaughter in his arms. He described himself as “gasping for breath”. He told his granddaughter to run and get her father. He recovered from the episode and went home.

39. The following morning the plaintiff was struggling to walk short distances without becoming very short of breath. He attended Murwillumbah Hospital on 21 October 2019. He was admitted for one day and had various tests performed. He was told that he had a build-up of fluid in his pleura and was prescribed some medication to reduce it. He was told to see his general practitioner for review. He consulted his general practitioner, Dr Cardone, on 23 October 2019.

34. About 10 days later the plaintiff drove with his wife to Sydney to attend a family wedding. He had to stop a number of times because he was feeling unwell. He had difficulty walking long distances, up and down stairs or carrying luggage. He became extremely short of breath and often had to sit down to catch his breath. The plaintiff was finding that he would be gasping for air after exerting himself. The plaintiff collapsed whilst packing luggage into the car.

35. On his return from the wedding, he was feeling particularly unwell and suffering from breathing difficulties. The plaintiff’s son, Darren, called the ambulance to take him to hospital.

36. The plaintiff was admitted to The Tweed Hospital on 4 November 2019. He underwent various investigations and had the fluid drained from his lungs on a number of occasions. On 14 November 2019 he underwent a CT guided biopsy. The plaintiff described the procedures that he underwent causing him great pain and discomfort. The plaintiff was eventually discharged home on 16 November 2019.

37. On his return home, there was a slight improvement from his shortness of breath following the fluid drainage but he was still feeling quite fatigued and anxious about the future because he did not know what was wrong or how serious the condition would be. His condition and symptoms of breathlessness continued to deteriorate over the following weeks.

38. On 20 November 2019 the plaintiff attended Dr Cardone who informed him of the results of the biopsy procedure which confirmed a diagnosis of mesothelioma.

39. The plaintiff was referred to a respiratory physician, Dr Rob Nickels at the John Flynn Hospital. Dr Nickels confirmed the diagnosis and told the plaintiff that it was a form of cancer caused only by asbestos exposure and that his condition was terminal. The plaintiff described himself as being in “complete shock”. Dr Nickels gave the plaintiff a prognosis of anywhere between 12 and 18 months. The plaintiff described himself as being devastated to receive this news. He experienced disbelief and difficulty in comprehending the situation.

40. Dr Nickels organised a follow-up chest x-ray. When the plaintiff saw Dr Nickels later in the day, Dr Nickels told him that there had been significant changes indicating that his condition was very aggressive and that it was likely that he would deteriorate quickly. Dr Nickels informed the plaintiff that his prognosis was probably worse than what he had first anticipated and that he may only have three to six months left to live. The plaintiff described himself as shocked and confronted and sad that his wife was very upset.

41. Dr Nickels discussed treatment options with the plaintiff. He advised the plaintiff that chemotherapy was likely only to extend his life by a few weeks and that there would be considerable adverse side effects. The plaintiff decided not to proceed with chemotherapy.

42. The plaintiff described himself as being in “dramatic decline” since the beginning of the New Year. He was admitted to The Tweed Hospital on or about 1 February 2020 after calling for an ambulance. About five days later he was transferred to the John Flynn Hospital and was discharged on 11 February 2020. The plaintiff was experiencing severe pain. He was prescribed pain relief medication and referred to an oncologist and palliative care physician. Prior to that admission, the plaintiff had been trying to cope with constant chest pain using Panadol Osteo, an over-the-counter medication. He described himself as reaching a point where he could not take it anymore.

43. In or about early February 2020 the plaintiff underwent his first session of immunotherapy treatment. He described the treatment as really knocking him around and leaving him feeling quite ill. He decided after that not to undergo any further immunotherapy treatment.

44. On 28 February 2020 the plaintiff collapsed at home. He was suffering from severe breathlessness and severe pain. He had been suffering cold shivers and felt as though he was “burning up inside”. His son again called the ambulance and he was taken to The Tweed Hospital. He suffered a “strange episode” that felt like all his energy had been drained. He felt as though he had the shakes and his heart was fluttering. There was no bed available at The Tweed Hospital and he was transferred to John Flynn Hospital for the night. He returned home a day or two later.

45. The plaintiff felt like he had had another episode or attack in the car on the way home which he managed himself. He arrived home and did not feel well. He was concerned that he may die suddenly. All of his children and grandchildren were at home and he took time to speak with all of them individually to say goodbye to each one of them. His family members were very concerned that something may happen to him and he agreed to return to hospital. He was taken by ambulance back to The Tweed Hospital where he was later discharged. He was admitted to the Coronary Care Unit suffering from unstable ventricular tachycardia. The plaintiff was told that his lungs were not able to function properly and as a result his heart was over-compensating.

46. The plaintiff described his present condition as suffering from increasing shortness of breath, fatigue, intense pain and discomfort, anxiety and weight loss. The plaintiff has lost about 18 kgs since he became ill. He rated his continuing pain as about seven out of 10 with the assistance of pain relief medication. The pain is located on the right hand side of his chest and feels like a sharp stabbing sensation. The plaintiff feels as though he would not be able to cope without pain relief medication. He described the pain as constant and exhausting. He finds it difficult to focus or concentrate when the pain is bad. The pain relief medication takes the edge off the pain but the plaintiff still experiences a significant dull ache that is with him all the time. The pain affects his sleep and also is having an adverse effect on his mood. He finds it draining to fight the pain on a daily basis.

47. The plaintiff described himself as suffering shortness of breath on minimal exertion. He describes breathlessness after performing menial tasks such as getting out of bed or having a conversation which he finds extremely frustrating and upsetting. In the time leading up to Christmas he had to sit down and recover after doing something as simple as walking to the letterbox. He found having a shower and bending over to dry himself caused him to become quite short of breath. He stopped doing simple tasks like helping Angela do the shopping because walking caused him to become significantly short of breath. After the New Year he has been unable to perform self-care tasks such as showering and toileting without assistance. He now carries around a bottle to urinate in.

Loss of Amenities

54. The plaintiff described himself before his illness as a very active person. He enjoyed camping, fishing, playing with his grandchildren and performing various jobs around the house. He always loved to keep busy. He has gone from being extremely active each day to rarely leaving the house and sleeping for most of the time.

55. The plaintiff finds it upsetting that he is unable to perform simple maintenance tasks around the house and that he is reliant on others to care for him. The plaintiff feels as though he has become a burden on his family.

56. The plaintiff has been suffering from a low mood and anxiety concerning the uncertainty that surrounds his future. He is concerned about what will happen to his family. He is heavily reliant on his wife for support to talk through his feelings and try to process what is happening in his life. He described his wife as being very comforting when he is upset and assisting him to improve his low moods which are becoming more frequent. The plaintiff described his wife as spending a lot of time talking to him each day and trying to lift his spirits. He finds this of great assistance.

57. In or about mid-January 2020 the plaintiff and his wife went to New Zealand as a compromise. He felt this was an opportunity to travel prior to his condition reaching a point where he could no longer do so. The plaintiff could not walk around but travelled to different places in the car. The plaintiff and his wife had friends in New Zealand that provided them with support. His condition deteriorated quickly and they came home six days into their 10 day planned trip. Since their return from New Zealand the plaintiff’s wife has been providing him with full time care and assistance.

58. On 31 January 2020 the plaintiff and his wife celebrated their 50th wedding anniversary. He described them as being very close and as “soul mates”. It is very upsetting for him to think that they will not celebrate any more wedding anniversaries together. They had planned to go to Europe in April 2020 to mark their wedding anniversary with one of their sons and his family. They have cancelled the trip as a result of his condition.

59. On their wedding anniversary they hired a car and went out to dinner at a restaurant. They arrived at 6pm and were home by 8.30pm. The plaintiff wanted to stay and spend time with his family but he was too tired and had to come home. He found this particularly upsetting. The plaintiff described his family as the most important thing to him in the world.

60. The plaintiff and his wife have eight grandchildren. They are very close to their family and would do anything for them. All of their family live close by. The plaintiff and his wife are very close to their grandchildren and take care of them on a regular basis. His mesothelioma has greatly affected his ability to provide care and assistance to his grandchildren. The plaintiff finds this very distressing. The plaintiff is very concerned that his mesothelioma has deeply affected his family and they are all worried about his condition. He feels that this has put their lives on hold. The plaintiff has been honest with his grandchildren about his life expectancy. He has found their responses distressing. He describes the overall process as having a significant, emotional toll on himself and his family.

61. On Monday or Tuesday of each week the plaintiff and his wife looked after one of their grandchildren, Ever, from about 9am to about 3.30pm to allow her mother to work as a ballet teacher. On a Wednesday afternoon they cared for their grandsons, Jack and Henry for a couple of hours in the afternoon, usually from about 3.30pm until about 5.30pm. On a Friday, they cared for one of their grandsons, Coby from 3.30pm and he usually stayed overnight until Saturday when he was picked up at about lunch time. Each of these arrangements has ceased since the plaintiff became ill. The plaintiff would regularly see his other grandchildren at family catch-ups, functions or over the weekends.

62. The plaintiff loved looking after his grandchildren and would provide care to them to help out his children. The plaintiff and his wife shared the care of the grandchildren on a 50/50 basis. Angela would perform tasks such as preparing meals, snacks and drinks while he would spend time with the grandchildren, supervising them and occupying them with activities like woodwork, reading and other projects on the computer. He enjoyed taking them out onto the tennis court to practice their tennis skills. The plaintiff described himself as being actively involved in their care and doing things to assist them with their learning and development. The plaintiff gave evidence that the projects that he worked on with his grandchildren brought him great joy. It is distressing for him to see the unfinished projects around the house that he can no longer complete.

63. Prior to his diagnosis the plaintiff would look after the yard and garden on a weekly basis. The plaintiff and his wife live in a five bedroom, two bathroom, low set house on a one acre block. The house has a large lawn and a number of shrubs that require regular maintenance. The plaintiff also maintained the pool and the tennis court and undertook any necessary maintenance tasks. Prior to becoming ill the plaintiff mowed the lawns for about four to five hours a week, performed mulching, weeding, hedging and tree trimming, cleaned the gutters and cleaned the patio. About once every three months he would clean the exterior windows and screens. The plaintiff also assisted in the kitchen by washing up after meals, assisted with laundry by hanging washing and changing bed linen and bringing in the grocery shopping. His wife tended to perform most of the other indoor chores such as vacuuming, mopping, cleaning the bathrooms and meal preparation.

64. The plaintiff continued to do all of his household chores until about October 2019 when he was first hospitalised. After his diagnosis in November 2019 he required assistance from his wife to perform jobs that he would ordinarily do around the house and garden. He also engaged commercial services to assist. A company, known as TK Lawn attends to mow the lawns about every 10 days at a cost of $100. The plaintiff has been informed that the cost of this service is likely to increase in the near future. The plaintiff has also engaged a pool company to maintain the pool and a gardener to look after the gardens. The gardener charges $50 per hour.

65. At around the New Year the plaintiff’s condition declined to the extent that he could not perform simple self-care tasks such as showering and dressing. Since their return from New Zealand the plaintiff describes himself as requiring around-the-clock care from his wife. He requires assistance with fetching and carrying tasks, assistance with showering and drying, purchasing, managing and administering medication and general supervision and observation because he is unsteady on his feet. The plaintiff described himself as not being able to be left alone since his return from New Zealand. His wife now prepares all of his meals. As a result of increasing levels of fatigue the plaintiff spends most of his day either in bed or sitting in a chair. The plaintiff purchased an electric adjustable bed because he could no longer transfer in and out of bed without assistance.

66. The plaintiff’s wife now only leaves the house to perform grocery shopping on a weekly basis. His wife makes sure that someone else is with him in the house when she does this. The plaintiff’s wife has arranged for his medications to be delivered to the house to reduce the need for her to leave. The plaintiff presently has significant issues in moving around. The plaintiff describes himself as being required to walk slowly and becoming exhausted after a few steps.

67. The plaintiff wants to stay and be cared for at home as long as possible. He is not interested in being admitted to a care facility.

Credit

68. The plaintiff was a thoughtful and considered witness. In my view, he was doing his best to give honest evidence in difficult circumstances and I accept his evidence. His evidence was corroborated in most respects by the other witnesses called in his case and by the medical evidence.

The Evidence of Darren Williams

69. The plaintiff read an affidavit of his son, Darren Williams (Darren), sworn 9 March 2020. Darren was cross-examined by telephone on 10 March 2020.

70. Darren described his father as a hard worker with an extraordinary work ethic. Darren trained as an apprentice with his father together with his brother, Eli. Darren described his father as an invaluable source of wisdom and guidance in both his personal and working life. Darren described the plaintiff as very family oriented.

71. Darren set up a business known as Square Set Linings in about 2007. Square Set Linings operates a business installing interior linings, mainly in commercial premises. In 2007 Eli was living in Sydney and Darren invited him to come back to the north coast of New South Wales to get involved in the business. The plaintiff provided advice and guidance with the set-up of Square Set Linings, at a time when he was busy with his own bed and breakfast business.

72. Darren had planned with his father to go into business together again once the Cape Bryon Retreat was sold. When the glass business opportunity arose, Darren only agreed to participate if his father would take an active role in it. At the time when the glass business was acquired, Darren had other business interests that required a lot of his time and attention. By that time, Darren was operating Square Set Linings as well as Square Set Constructions and an electrical contracting business. At the time of acquiring the glass business, Darren believed that his father’s involvement was essential otherwise he and his brother would not have had the manpower required to take it on.

73. It was originally envisaged by Darren that his father would spend about four hours per day in the glass business and be otherwise available by telephone if required. Darren agreed with his father that the plaintiff would be paid a wage of $1,200 per week. Since the commencement of the glass business in April 2018 the plaintiff has been paid that amount. A further payment of $400 was made to cover the interest costs on a loan account held in the plaintiff’s name. From about mid 2019 payments of principal and interest were made on this loan in the sum of $1,200 per week.

74. The purchase price of the glass business was $1.2 million plus the incidental costs of acquiring it, such as legal fees. Of that amount, the plaintiff contributed $650,000 from funds that he had and $250,000 from the available funds he had in a loan account in his name. Darren and Eli contributed the balance of the purchase price of $300,000 and the incidental costs.

75. Darren’s evidence was that the plaintiff’s involvement in the business was “important”. The plaintiff attended to management duties such as advice and instructions on contracts, designs and business strategies, truck driving, deliveries to and from site, banking and postal duties. The plaintiff was involved in understanding the work coming into the business and scheduling future jobs, reviewing quotes and providing advice and guidance to Darren and Eli on a daily basis.

76. Darren’s evidence was that the plaintiff’s involvement was not limited to the hours he was physically in the office. Darren and Eli also regularly contacted the plaintiff whilst he was at home to discuss various aspects of the business. Darren described the plaintiff’s experience, guidance and wisdom as invaluable and worth more than the $1,200 per week that he is paid. Darren gave evidence that the glass business was profitable.

77. Since the plaintiff became ill, Darren and Eli have continued to meet with the plaintiff at his residence and in hospital to discuss the business with him. The plaintiff continues to provide guidance and advice on the work coming up in the business and generally.

78. Darren oversees the three businesses, while Eli is the day-to-day manager of the glass business. Darren does not believe it is possible to hire someone to replace the plaintiff because such a person would want a full time role and probably demand a significantly higher wage than is currently being paid to the plaintiff.

79. Darren believes that he may have to sell one of the other businesses to become more involved in the glass business to take over the plaintiff’s role in it.

80. Darren described himself and his brother as excited to be working with their father again. Darren’s evidence was that family was very important to himself, Eli and the plaintiff. The plaintiff had told Darren that he had no intention of retiring and Darren would have wanted the plaintiff to work for as long as he desired.

81. In cross-examination, Darren denied that it was accurate to describe any payments made by the glass business to his father as “loan repayments”. He gave evidence that each of the participants in the business including himself and his brother had loan accounts within the bookkeeping software which were used as an accounting holding entry until distributions were made. Darren gave evidence that his understanding was that the plaintiff had purchased the business together with himself and his brother. Darren described the sum of $1,200 that has been paid to his father since the beginning of their operation of the business as the plaintiff’s wage.

69. Darren gave his evidence in a forthright manner. I formed the impression that he was doing his best to give honest evidence and I accept his evidence.

The Evidence of Luisa Williams

83. The plaintiff read an affidavit of Luisa Angela Williams sworn 9 March 2020. Mrs Williams was cross-examined by telephone on 10 March 2020. Mrs Williams is known as Angela.

84. The plaintiff and Mrs Williams were married on 31 January 1970. They have two sons, Darren and Eli and a daughter, Carly. They also have eight grandchildren.

85. Mrs Williams described the plaintiff and herself as being very close to their grandchildren and that they are active in providing care to their grandchildren. Relevantly, Darren and his wife, Rebecca, have three boys, Elijah (17 years), Jack (10 years) and Henry (8 years) and Carly and her husband, Dylan, have three children, Coby (10 years), Lyric (7 years) and Ever (3 years).

86. Mrs Williams gave evidence that the plaintiff would attend work each week day for a few hours generally arriving home at about 10am or sometimes later, depending on his work commitments. On Monday or Tuesday they looked after Ever from about 9am to about 3.30pm. At 3.30pm either Mrs Williams or the plaintiff would take Ever home and then watch Coby, Lyric and Ever until their father, Dylan returned home from work about 4.30pm.

87. On Wednesday afternoon, the plaintiff and Mrs Williams looked after Jack and Henry from about 3.30pm until about 5.30pm.

88. On Friday, Coby would come to stay with the plaintiff and Mrs Williams from about 3.30pm until about lunch time on Saturday.

89. Mrs Williams gave evidence that they loved looking after the grandchildren and enjoyed being involved grandparents. She gave evidence that looking after the grandchildren was very important because it helped their children and their partners who were very busy with work.

90. During the times when the grandchildren came to visit, Mrs Williams generally prepared all the meals, snacks and drinks and also cleaned up after everyone. She would then attend to her usual housework while Mr Williams looked after the children by engaging in activities with them and generally supervising them. The plaintiff involved the children in activities like woodworking, reading and doing things on the computer. He also enjoyed taking them outside to play and getting physical exercise with them. In particular, he would often take the grandchildren to the tennis court to hit tennis balls. He did not let the children sit in front of the television and would ensure that they were doing something active.

91. Mrs Williams gave evidence that they were both involved in the care of the grandchildren and shared those responsibilities roughly equally.

92. Mrs Williams gave evidence that she noticed the onset of breathlessness in the plaintiff in about August 2019. He now suffers from increasing shortness of breath, severe chest pain and discomfort, fatigue, weight loss and anxiety. Whilst he takes pain medication to manage his pain, Mrs Williams observed his movement to be restricted by pain and has regularly seen him wincing in pain when he moves around. Mrs Williams has found it very difficult to cope with seeing her husband suffer in this way.

93. Prior to his illness, the plaintiff was active in looking after the yards and garden areas on a weekly basis. The plaintiff did some gardening but Mrs Williams did most of it. They live in a five bedroom, two bathroom low set house on a one acre block. The house has a large lawn and shrub areas that require regular maintenance that the plaintiff would attend to. The plaintiff was also responsible for maintaining the pool and the tennis court. The plaintiff was a handyman and attended to any necessary maintenance work around the house.

94. When he first became ill the plaintiff tried to push through his usual tasks and modified how he performed them. For example, he got in the pool to clean it to avoid bending over as this was causing him pain.

95. Since his diagnosis Mrs Williams has observed the plaintiff suffer from increased symptoms of breathlessness and pain. She has had to assist him with increasing levels of care and assistance. She has taken over some of the jobs that he would ordinarily perform around the house including the weeding, cleaning the patio area, taking the bins out, performing all of the cleaning up after dinner and performing all the laundry duties. Cleaning up after dinner and the laundry duties are things that the plaintiff would sometimes assist with.

96. The plaintiff has engaged commercial services to assist in mowing the lawn and maintaining the pool. Mrs Williams is in the process of arranging for someone to clean the windows. Mr Williams would previously pay all the bills using the computer, but he can no longer do this. The plaintiff’s daughter is assisting Mrs Williams to learn how to do these tasks.

97. Prior to Christmas 2019, Mrs Williams took over taking the bins out because the plaintiff was having difficulties walking up and down the driveway. The plaintiff also stopped going to the shops with Mrs Williams as he found it too difficult to walk around without becoming breathless.

98. Mrs Williams observed the plaintiff suffering from breathlessness when undertaking simple self-care tasks such as showering and dressing. He would take a long time to recover after doing these things for himself.

99. In or about mid-January the plaintiff and Mrs Williams went on a trip to New Zealand. They had to return home early from that trip as a result of the plaintiff’s health.

100. Mrs Williams estimated that from about mid October 2019 to about mid-January 2020 when they returned from New Zealand, that she spent between six to eight hours per week providing care and services to the plaintiff as a result of symptoms. On their return home from New Zealand Mrs Williams described the plaintiff as requiring “constant care and assistance”. She has been close to him at all times. He has required assistance in fetching items, showering, taking his medication and generally having someone to observe and supervise him. He has collapsed on a number of occasions and she has become concerned that he may fall and hurt himself if she is not close by. On the rare occasion that she has left him for shortness periods of time, Mrs Williams has made sure that there was someone else in the house with him.

101. Mrs Williams described the plaintiff as fatigued and exhausted a lot of the time. This is in stark contrast to the active man he was before his diagnosis. The plaintiff enjoyed keeping himself busy and loved to work on different projects. He has been in rapid decline since the New Year, has been in and out of hospital and now rarely leaves the house. He struggles to stay awake for a few hours before he has to have a sleep. When he is awake, he spends a lot of time sitting in the chair or lying in bed.

102. Mrs Williams described the plaintiff as very anxious and upset about his illness and the uncertainty that surrounds his future and the future of the family. She has spent many hours each day talking to him about his feelings and trying to keep his spirits up.

103. During the course of his hospital admissions Mrs Williams has stayed with the plaintiff for about 12 hours per day. During those times, she has provided the plaintiff with emotional support and got him anything that he needed. She has brought him clothes to wear, material to read and anything else that he wanted. When she returned home she attended to washing the plaintiff’s clothes.

104. Since about mid-January 2020 Mrs Williams has been with the plaintiff on a daily basis. She only leaves his side for a short time to do grocery shopping. She has arranged for the pharmacist to deliver any medication to the house so that she does not need to leave. Her daily routine is currently based around the plaintiff’s need for care. She attends to his needs day and night. In cross-examination she gave evidence that the plaintiff woke up at about midnight on the previous day because the pain he was experiencing made it difficult for him to sleep. On such occasions Mrs Williams would sit up with the plaintiff to get whatever he wanted such as a drink or to provide breakthrough pain medication. She would stay up with him until he went back to sleep. She described last night (the day on which she gave evidence) as a bad night and became upset when recounting her experience of it.

105. In cross-examination Mrs Williams gave evidence that the plaintiff went to work every day prior to his illness. He came home at different times but would usually be home early when they had Ever. So far as Mrs Williams is aware there was no plans for Ever to go to pre-school, at least not this year.

106. In relation to Coby, Mrs Williams gave evidence that he spent Friday nights with them partially as a result of his behavioural problems. She believed that it was important that they tried to help him because Coby listened to his grandfather and enjoyed spending time with him. Mrs Williams said that they provided that care to Coby to help his parents and also out of love for their grandson.

107. Mrs Williams gave her evidence concisely and without hesitation. My view was that she was doing her best to give honest evidence and I accept her evidence.

The Plaintiff’s Medical Evidence

108. The plaintiff tendered the following medical reports:

1. Reports of Dr Rob Nickels, the plaintiff’s treating respiratory physician dated 23 January 2020, 14 February 2020 and 6 March 2020;

2. Ms Amy Vincent, Occupational Therapist dated 29 January 2020; and

3. Dr David Deller, respiratory and sleep physician dated 24 February 2020.

109. The plaintiff also relied on the evidence of Professor Michael Boyer and Professor Nick Pavlakis given in Londos v Amaca Pty Ltd [2017] NSWDDT 7 before Russell J, pursuant to section 25(3) Dust Diseases Tribunal Act 1989. The subject of that evidence was the significance of emotional support provided by family members to terminally ill patients and its impact on their wellbeing.

110. The parties agreed on a number of important factual matters and many other matters were not in dispute. Accordingly, it is not necessary to summarise the medical evidence, but I will refer to select parts of it if it is necessary to do so.

Economic Loss Evidence

111. The plaintiff relied on two reports of Mark Thompson, chartered accountant, dated 15 January 2020 and 9 March 2020.

112. The defendant relied on a report of Tamara Lindsay, chartered accountant, dated 9 March 2020 and a set of alternate schedules (DX2).

113. The experts gave evidence concurrently on 10 March 2020. The experts largely agreed on the various approaches that could be taken to assessing the plaintiff’s economic loss and on the interpretation of the accounts for the glass business for the period ending 30 June 2019 (PX4). The experts also agreed on the basic premise that the appropriate methodology was largely dependent on my findings of fact as to the characterisation of the plaintiff’s involvement in the glass business. The parameters that the experts considered in their various calculations were refined by the time that they gave evidence and the options in serious contention were helpful and conveniently summarised in Ms Lindsay’s schedule 12 in DX2. Accordingly, it is not necessary to consider all of the various options that were considered at various times by each of the experts. It must be noted that there was an addition error in schedule 12 in that the first figure for past economic loss in the Forensis Scenarios 1 and 2 should have been $12,998 rather than $7,378. That error changed the final figure for Total Economic Loss on the Forensis Scenario 1 to $63,968 and on the Forensis Scenario 2 to $162,751.

114. Mr Thompson’s position was that the work that the plaintiff did in the glass business amounted to personal exertion for which he was entitled to be compensated. He then referred to published salary material to estimate that the mid-point of the salary range for operations or production managers in the Brisbane area which is geographically proximate to the business, was $120,000 per annum. This figure was then halved to reflect that the plaintiff worked an average of 20 hours per week, giving a gross figure of $60,000 which is close to the payments he received from the business of $1,200 per week or $62,400 per annum. Mr Thompson was instructed to assume that the plaintiff would retire at 80, that he spent $200 per week on his personal maintenance and that the appropriate deduction for vicissitudes was 10%.

115. Ms Lindsay’s primary position was that the payments made to the plaintiff by the business were to compensate him for his capital investment, and therefore did not amount to economic loss. Ms Lindsay’s secondary position was that the plaintiff’s replacement value was best quantified by taking the earnings of the highest paid employee of the business and adding a 15% premium to compensate him for the managerial responsibility that the plaintiff had. Ms Lindsay then reduced that amount by 75% and in the alternative 50% to represent the amount of time that the plaintiff spent at work. Ms Lindsay adopted a retirement age of 75 and further retirement age of 80. She used a figure for vicissitudes of 15% up until age 75 and then used the figure of 25% from age 75 to 80. Ms Lindsay adopted an amount of $250 per week for personal maintenance based on the figures provided for household expenditure by the Australian Bureau of Statistics (ABS) with some tailoring to the plaintiff’s circumstances.

116. Based on the evidence, I would make the following findings of fact relevant to the economic loss issue.

117. When the glass business commenced each of the plaintiff and Darren and Eli intended that the plaintiff would work in the business and that the plaintiff would receive a wage of $1,200 per week to compensate him for that personal exertion.

118. The plaintiff worked an average of 20 hours per week in the business. The plaintiff’s direct evidence on this point was not challenged in cross-examination.

119. I am satisfied that the plaintiff intended to work until the age of 80 and that his role in the glass business and the relationship with his sons provided him with the opportunity to do so. I am satisfied that the plaintiff would have retired at age 80.

120. Most of the plaintiff’s work was performed at the premises of the glass business, but he also provided managerial advice and strategic input at other times when requested to do so by Darren and or Eli, or when the plaintiff thought it was required. In addition to his supervisory duties the plaintiff also provided other services such as deliveries and administrative support. In my view these services were incidental to the plaintiff’s role in the glass business, but essential for its smooth running. I am satisfied that those lesser duties were typical of services provided by owners of small businesses on a day-to- day basis to ensure the continuation of the operation and service the needs of its customers.

121. I am satisfied on the basis of the payment of $1,200 per week into the loan account in the plaintiff’s name that it was the objective intention of the parties that the amount of $250,000 that had been drawn down on that account to be repaid within about five years, consistent with usual commercial lending arrangements. The evidence does not permit me to make a finding as to how the other amount of $650,000 provided by the plaintiff towards the purchase price of the business was to be treated by the parties. Bearing in mind my finding that the plaintiff was exercising an earning capacity by working for an average of 20 hours per week in the business, I do not need to make any further finding on that issue.

122. I am not satisfied that the creation of a general ledger entry in the MYOB software described as a loan account for the plaintiff, was intended to record that the funds provided by the plaintiff towards the purchase price of the glass business was a loan to his sons or that his only involvement in the glass business was as an investor.

Assessment of Damages

123. It was common ground that the plaintiff had a life expectancy of one month and all of the calculations put to me by the parties assumed a date of death of 6 April 2020. I will proceed to calculate damages based on that agreed position.

General Damages

124. The plaintiff is presently 72 years of age. Before the onset of symptoms in about August 2019 the plaintiff was a very active man who enjoyed working with his sons, an outdoor lifestyle and spending time with his family.

125. The progression of his disease has been swift and without compromise. The plaintiff has lost his physical capacity quickly, requiring full-time care from about mid-January 2020 when he returned from New Zealand. The tumour has invaded his pericardium placing pressure on the function of his heart and has put him at risk of an imminent demise. The plaintiff has suffered from debilitating pain and breathlessness during the course of his disease.

126. The plaintiff has been reduced from a strong and independent person to being entirely reliant on others for basic self-care. His present existence is the antithesis of how he lived his life and how he wants his life to be.

127. This case is a joyous reminder of the importance of the family unit and how strong it can be with the right kind of leader. The plaintiff has lived for his family and strived to provide for them financially and emotionally. He has enjoyed a loving marriage with Angela for just over 50 years. He has raised three thriving children and supported their families. He has invested time and money in ensuring the financial success of his sons. He has provided his grandchildren with the love and support because he and Angela have enjoyed playing a significant part in their lives. He has every right to be a very proud family man and to be very proud of his family.

128. Unfortunately these observations simply demonstrate what he will lose by reason of his premature death caused by the defendant’s tort.

129. The plaintiff contended that the appropriate award for general damages is $390,000. The defendant contended that the appropriate award for general damages is $380,000.

130. In my view, the appropriate award for general damages is $385,000.

Interest on General Damages

131. Based on the plaintiff’s limited prognosis, most of the plaintiff’s suffering is now in the past.

132. I will allow interest on $320,000 at 2% for 8 months, resulting in an award of $4,266.

Loss of expectation of life

133. I will award the conventional sum of loss of expectation of life. It was common ground that the plaintiff’s life expectancy is 14 years. The appropriate award is $14,000.

Out-of-pocket expenses

134. The plaintiff’s claim for benefits pursuant to the Workers Compensation (Dust Diseases) Act 1942 has been accepted by the Dust Diseases Authority (DDA). Accordingly, the plaintiff’s past and future out-of-pocket expenses will be met by the DDA.

Gratuitous Attendant Care – section 15A Civil Liability Act 2002

135. There was very little difference between the parties on this head of damage.

136. It was common ground that the appropriate rate for the provision of the care was $32.18 per hour.

137. The plaintiff sought an award based on the provision of past gratuitous attendant care for the following hours of care provided to him, being:

1. 7.25 hours per week for the period 21 October 2019 to 2 December 2019 (6 weeks);

2. 8 hours per week for the period 3 December 2019 to 20 January 2020 (7 weeks with some slight rounding up);

3. 24 hours per day for the period 21 January 2020 to 10 March 2020, except for the 17 days when the plaintiff has in hospital (32 days); and

4. 12 hours per day for the 17 days that the plaintiff was in hospital.

138. The plaintiff also sought an award for the provision of future gratuitous attendant care for 24 hours per day for the period of 11 March 2020 to 6 April 2020 (26 days).

139. The defendant accepted the plaintiff’s claim as outlined in sub-paragraphs (a) (b) and (d) of [137] and in [138]. The defendant contended that an award of 18 hours per day was the appropriate award for the period in sub-paragraph (c) of [137].

138. Mrs Williams gave evidence that there was a significant change in the plaintiff’s condition when they returned from New Zealand describing him as needing constant care and assistance from that time. I am satisfied that the evidence of Mrs Williams was reliable because it had the reference point of the New Zealand trip, it was a relatively recent event and there was nothing in her evidence or the medical evidence to suggest that the plaintiff’s condition had significantly deteriorated after that time. Further, it was not put to her in cross-examination that the amount of care provided by her to her husband in the relevant period was less than what she is presently providing. I am satisfied on her evidence that by reference to the care that she is currently providing, particularly by reference to what happened in the early hours of 10 March 2020, that the claim for 24 hours per day is appropriate.

139. If I am wrong on this, then I am satisfied that by the time that the plaintiff was taken to hospital by ambulance in severe pain on 1 February 2020 that his condition had deteriorated to the extent that he required care for 24 hours per day. This alternate finding would reduce the award I am going to make by $1,931 (6 hours at $32.18 per hour for 10 days and rounded up to the nearest dollar).

140. The appropriate award for past gratuitous domestic assistance by reference to the periods set out in [137] is (rounded to the nearest dollar):

1. $1,400;

2. $1,802;

3. $24,714;

4. $6,564.

143. The total for past gratuitous attendant care services is $34,480.

144. I will allow interest on that figure calculated by applying half Court interest rates (5.5%) for a period of six months. The appropriate award is $474.

145. The appropriate award for future gratuitous attendant care services is $20,080.

Loss of capacity to provide care and services – section 15B Civil Liability Act 2002

146. It was common ground that the appropriate rate for the provision of care and services under this head of damage was $32.18 per hour.

147. The plaintiff’s claim for the past loss of capacity to provide care and services to his grandchildren, or alternatively to his children in relation to caring for the grandchildren is for the following hours for the period of 1 November 2019 to 10 March 2020 (being 50% of the care provided by himself and his wife):

1. 2.75 hours per week for the care of Ever, while her mother worked;

2. 1 hour per week for the care of Jack and Henry to assist their mother who worked from home as a designer;

3. 10.5 hours per week for the care of Coby who stayed overnight with the plaintiff to assist Coby with his behavioural issues.

148. The plaintiff’s claim for future loss of capacity to provide similar care was for 14.25 hours per week until the plaintiff reached 80 years of age.

149. The defendant’s submission was that the plaintiff’s care for his grandchildren did not satisfy the cumulative requirements of s15B Civil Liability Act 2002 and that no award should be made under this head of damage.

150. Section 15B Civil Liability Act 2002 relevantly provides:

(1)   Definitions In this section—

…

dependants, in relation to a claimant, means—

(a)   such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises—

…

(iii)   a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),

(iv)   any other person who is a member of the claimant’s household, and

…

gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid.

(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.

Note. Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant’s dependants.

…

(4)   Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant’s capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved.

(5)   In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, a court—

(a)   may only award damages for that loss in accordance with the provisions of this section, and

(b)   must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity.

…

(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.

151. I am satisfied that the requirements of s15B Civil Liability Act 2002 have been met for the following reasons.

152. First, Ever, Jack, Henry and Coby were each grandchildren of the plaintiff that were dependent on the plaintiff for care when they were left in his care by their parents. The arrangements for each of the children were in place prior to the plaintiff losing capacity to provide domestic services to them.

153. Second, the grandchildren were unable to provide the services to themselves as a result of their age.

154. Third, I am satisfied that there is a reasonable expectation that but for the plaintiff contracting mesothelioma that he would have continued to provide the services for more than six hours per week and for a consecutive period of six months. The arrangements had been in place for an extended period prior to the plaintiff’s illness and it is likely that the services would have been required for the remainder of the 2020 school year.

155. Fourth, there is a need by reason of their age that the services will be provided for six hours per week for more than six months and that need is reasonable. I accept the evidence of the plaintiff and Mrs Williams that the plaintiff was engaged in providing care for half of the time that the grandchildren were in their shared care.

156. It is however appropriate to reduce the plaintiff’s claim in so far as it relates to Coby. Whilst it is fair to say that Coby’s childhood asthma and behavioural issues have created a need for him to have regular and extended contact with the plaintiff, I do not think that it is appropriate to extend this to compensating the plaintiff for the overnight care provided, even though that is ordinarily needed by a child of his age. The evidence fell short of convincing me that the overnight stay with the plaintiff should form part of the provision of domestic services. It is more reasonable in my view that there is a need for active support by means of interaction between Coby and the plaintiff for a period of four hours per week.

157. Accordingly the appropriate award for the past is 7.75 hours per week at the rate of $32.18 per hour for a period of 17 weeks (from 1 November 2019), which comes to an award of $4,240.

158. For the future, it is reasonable to allow the claim for Ever for a further two years by which time she will have started primary school. It is also reasonable to allow the claims relating to Jack, Henry and Coby for a further four years, by which time I am of the view that they will no longer require the type of care that is the subject of the claim.

159. It is appropriate to allow the usual figure for vicissitudes of 15%.

160. The future loss relating to Ever is 2.75 hours per week at $32.18 per hour for 2 years (multiplier of 101.3) less 15%, coming to a figure of $7,620.

161. The future loss relating to Jack, Henry and Coby is 5 hours per week at 32.18 per hour for 4 years (multiplier of 196.9) less 15%, coming to a figure of $26,929.

162. The appropriate award for the future loss of capacity to provide domestic services is $34,549.

Economic Loss

163. For the reasons given, I am satisfied that the plaintiff was exerting himself in the business and that his inability to do so as a result of his condition is productive of economic loss. In addition, Ms Lindsay conceded that it was reasonable for the plaintiff to be compensated for any personal exertion that was reasonably necessary to protect his investment in the glass business. In my view, he was doing more than that, however, it is a further and alternative reason to reject the defendant’s primary position on economic loss.

164. Based on my earlier finding that the plaintiff worked an average of 20 hours per week in the glass business, Forensis Scenario 1 set out in Schedule 12 of DX2 can be put aside because it is based on the plaintiff working 10 hours per week.

165. Forensis Scenario 2 was based on Ms Lindsay’s valuation of the plaintiff’s replacement value by applying a premium of 15% to the earnings of the highest paid employee of the business arriving at a gross figure of $100,740 which was then reduced by 50% to represent 20 hours of work per week. This amounts to a gross loss of $50,370 per annum or a nett figure of $820 per week.

166. Ms Lindsay gave evidence that applying a premium was a method employed in a previous case. In that case, the plaintiff was a coal miner who had purchased a vineyard with a view to trying his hand at viticulture. The judge applied a 15% premium to the highest paid employee at the vineyard to represent the value of the entrepreneurship of the plaintiff. As it was explained to me the coal miner had little or no prior experience in the wine industry.

167. I am not satisfied that the premium concept can be readily applied to the present case or, if it can, that 15% is the appropriate premium to be applied for the following reasons. The plaintiff has considerable experience in the building industry and in operating small businesses with considerable past success. The glass business was purchased with a considerable goodwill component, indicating that it had an existing customer base and/or a good name in the industry and in the area in which it operated, such that it would continue to attract customers. I am satisfied that the plaintiff’s prior experience in operating small businesses in the building industry in a regional area put him in a superior position to successfully continue the glass business. The circumstances of the case relied on by Ms Lindsay are so different that to rely on it would involve considerable speculation on my part.

168. For these reasons I would reject the Forensis Scenario 2 and I need not consider Mr Thompson’s counter calculations relating to it.

169. A further option was advanced by the defendant in its final submissions. The defendant contended that I should find that the value of the plaintiff’s contribution to the glass business was 20% of the profit of the business for the year ending 30 June 2019. I am not satisfied that this would accurately or fairly reflect the plaintiff’s contribution to the glass business. Further, no authority was advanced to support this methodology and I am not convinced that it is sound in principle.

170. I am satisfied that the most appropriate methodology is that adopted by Mr Thompson, based on the comparative salary information. Whilst it is true that the glass business does not reach the turnover of $5 million to $10 million that the data refers to, it has a turnover of over $4 million and, on the evidence, it is a profitable business with the capacity to pay a salary commensurate to the ones relied on by Mr Thompson. Taking into account all of the evidence, I am satisfied that the appropriate comparative salary is $120,000 inclusive of superannuation, which translates to a loss of $60,000 per annum gross to the plaintiff which represents a nett loss of $937 per week.

171. There are two remaining issues. First, the appropriate allowance to be made for vicissitudes and second the appropriate figure to be adopted for personal maintenance in the lost years.

172. A discount for vicissitudes provides for the possibility that adverse events, unrelated to a plaintiff’s accident, may occur after the trial and affect a plaintiff’s income earning capacity: Fuller v Avichem Pty Ltd [2019] NSWCA 305 at [63] per Macfarlan JA. The principal possibilities are sickness, accident, unemployment and industrial disputes Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497.

173. In New South Wales, 15% is a conventional allowance for such vicissitudes. As Bryson JA described it in FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 at [18] the discount

…is an expedient and approximate resolution of many imponderables, and the difficulty of producing a justification for any greater or lower figure in a particular case tells strongly against departing from the conventional figure.

174. In State of New South Wales v Moss (2000) 54 NSWLR 536; Heydon JA said at [100]:

…[w]hile 15 per cent is the starting point, and, indeed, as the figure [is] used in most cases, usually the finishing point as well, it can be departed from in an appropriate case.

175. The discount for vicissitudes can be increased or reduced depending upon the individual circumstances of the plaintiff: Wynn at 498.

176. In the present case, the plaintiff contends that his involvement in the family business was likely to continue as a result of his relationship with his sons, the nature of the work and the state of his health prior to him contracting mesothelioma. The plaintiff contends that the appropriate figure to be applied for vicissitudes is 10%.

177. The defendant contends that the plaintiff’s age and his previous health warrant the use of the standard figure of 15% for the first five years and 25% for the second period of five years.

178. I am not satisfied that any of the competing arguments provides a persuasive reason to depart from the conventional figure of 15%. Further, the competing arguments satisfy me that each cancels the other out, fortifying my view that 15% is the appropriate figure.

179. On the second issue, the plaintiff contended that the appropriate figure was $200 per week based on the plaintiff’s estimate of his weekly expenditure. The defendant contended that the appropriate figure was $250 per week based on the ABS data.

180. On the one hand, I accept the plaintiff’s evidence that he lived a fairly frugal lifestyle. On the other hand it is likely that he did not take into account some matters that he should have in arriving at his estimate considering the collective experience of the collected date. Taking a robust approach, the appropriate figure to be deducted for personal maintenance in the lost years is $225 per week.

181. The appropriate figure for past economic loss is as calculated by Mr Thompson in Alternative A, in the sum of $13,499.

182. Because I have adopted different figures for vicissitudes and personal maintenance, it is necessary for me to re-calculate the future economic loss figure. The appropriate figure for future economic loss is calculated at the rate of $937 per week less personal maintenance of $225 per week from 7 April 2020 to 22 February 2028 (7 years and 10 months multiplier of 364.8) less 15% for vicissitudes, being an amount of $220,777.

183. To arrive at the appropriate awards for economic loss the plaintiff’s past and future DDA benefits have to be subtracted in the sum of $21,752, adopting Mr Thompson’s figure which is slightly higher than Ms Lindsay’s figure.

184. The appropriate total award for economic loss is then $212,524.

Conclusions

185. The appropriate awards of damages can be summarised in the following table.

General damages	$385,000
Interest on general damages	$4,266
Loss of expectation of life	$14,000
Gratuitous attendant care services – past	$34,480
Interest on past gratuitous attendant care services	$474
Gratuitous attendant care services – future	$20,080
Loss of capacity to provide domestic services – past	$4,240
Loss of capacity to provide domestic services – future	$34,549
Past and future economic loss	$212,524
Total	$709,613

Orders

186. The orders I make are as follows:

1. Verdict and judgment for the plaintiff in the sum of $709,613.

2. The defendant is to pay the plaintiff’s costs of the proceedings, as agreed or assessed, on the ordinary basis.

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Decision last updated: 03 April 2020