Williams v Resi Corp

[2005] NSWDDT 23

Dust Diseases Tribunal

of New South Wales

CITATION:

Williams v Resi Corp and Anor [2005] NSWDDT 23

PARTIES:

Robert James Williams (Plaintiff)
Resi Corporation (First Defendant)
Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) (Second Defendant)

MATTER NUMBER(S):

211/04

JUDGMENT OF:

O'Meally P at 1

CATCHWORDS:

:- Dust Diseases Tribunal
action for damages
ARPD and asbestosis
liability admitted
damages assessed

DATES OF HEARING:

10-12 May 2005

EX TEMPORE JUDGMENT DATE:

05/12/2005

LEGAL REPRESENTATIVES:

D G Letcher QC instructed by Turner Freeman appeared for the Plaintiff

G P F Rundle instructed by Thompson Cooper Lawyers appeared for the 1st Defendant
J C Sheller instructed by Holman Webb appeared for the 2nd Defendant

JUDGMENT:

O'MEALLY P

1. This is a claim by Robert James Williams against Resi Corporation (Resi) and Amaca Pty Ltd (Amaca). The plaintiff brings proceedings alleging that in the course of his employment by the first defendant, Resi, he was exposed to and inhaled asbestos dust and fibre which came from products manufactured by James Hardie & Coy Pty Ltd, now Amaca, and as a consequence has developed asbestos related pleural disease (ARPD) and mild asbestosis.

2. The defendants have admitted their liability to pay damages to the plaintiff and have agreed between themselves on the contribution each should make to those damages.

3. The plaintiff was born on 1 January 1926 and is therefore now 79 years old. In 2003 he first sought medical treatment for shortness of breath following an episode on a hilly golf course. At examination subsequently held he informed the doctor that, in retrospect, he had been breathless for some years beforehand, but I think it fair to conclude that the first significant symptom of asbestos disease occurred in 2003.

4. It should be said at the outset that Mr Williams impressed me as a witness of truth who did his best honestly and accurately to recall what had happened and how he had been affected over long periods of time. He is a stoic individual who has not sought nor received a great deal of medical treatment in the past, indeed the liability to repay medical expenses to the Health Insurance Commission is a liability to pay $87.90, that being the amount incurred for treatment since 2003.

5. I am grateful to counsel for the compromises they have made, as a result of which agreement has been reached concerning items of special damages. As a consequence these reasons will be much shorter than otherwise they would have been, and it is unnecessary to refer in detail to the medical evidence or to the evidence of the plaintiff in respect of those items.

6. Past care, that is Griffiths v Kerkemeyer expenses, has been agreed in the sum of $13,050. Future care has been agreed in the sum of $11,100. Future medical and hospital expenses, including treatment and the provision of oxygen are now agreed in the sum of $15,000.

7. There is no suggestion that the plaintiff has a shortened life expectancy and according to the Australian life tables, as I am told, an Australian male of Mr Williams age might expect to live another 8.3 years.

8. Professor Alpers, who was qualified by the plaintiff's solicitors, and Dr Holmes, who was qualified by the first defendant, are in broad agreement on their clinical findings and opinions. Broadly speaking, it may be accepted that the plaintiff has mild asbestosis and ARPD. Asbestosis is usually progressive though it does not progress in any uniform way. It was described by Professor Alpers, when he gave evidence, as progressing in steps and starts.

9. The prospect of progression and deterioration in the plaintiff's asbestosis does exist but whether it is a probability or possibility it is difficult to determine. Epidemiologically, I think it may fairly be accepted, the situation is that people with asbestosis do experience a progression in their respiratory dysfunction. How and to what extent deterioration will occur in the plaintiff's case and with what effect is, as I have remarked, difficult to determine with any degree of probability. I think it fair to accept, however, that there will be some degree of deterioration.

10. Having seen a report of lung function studies, Professor Alpers, in a report of 16 March 2004, expressed the view that Mr Williams had a 40 per cent reduction in lung function. Dr Holmes did not express an opinion on the percentage or degree of reduction in lung function, but had available to him lung function studies which relevantly disclosed the same results as those upon which Professor Alpers had expressed his view. Apart from his shortness of breath, the plaintiff does experience chest pain upon exertion which ceases after rest. As a consequence and in order to avoid episodes of chest pain his activity is restricted.

11. The plaintiff's wife is currently a patient in a nursing home and he lives alone. He is visited by his daughter and by his son, who attend to some tasks the plaintiff is unable to perform. In respect of the cost of these, agreement has been reached, but I mention the fact of their visits because they are relevant to the assessment of general damages.

12. People who suffer from one asbestos disease are at risk of contracting another. In the opinion of Professor Alpers there is a 5 to 10 per cent chance of Mr Williams’ contracting mesothelioma and an identical chance of his contracting bronchogenic carcinoma. In this respect it might be appropriate to note that the plaintiff was a smoker but ceased smoking some 28 years ago, after what Professor Alpers has calculated to be a ten pack year history of smoking. It is well known that smoking and asbestos exposure act in synergy to increase the risk of contracting carcinoma but by reason of the plaintiff's slight smoking history and the fact that his smoking habit ceased long ago there is not a significantly increased risk beyond the 5 or 10 per cent mentioned by Professor Alpers.

13. Taking all these factors into account I think the sum appropriate to compensate the plaintiff for the episodes of pain and discomfort he has had and will experience and the risk of developing another asbestos disease is $60,000. As noted he became symptomatic and sought treatment in 2003. I think it appropriate therefore to allocate the sum of $10,000 to the past.

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

General damages $60,000.00
Interest on past general damages $400.00
Past Griffiths v Kerkemeyer expenses $13,050.00
Future Griffiths v Kerkemeyer expenses $11,100.00
Future medical and hospital expenses $15,000.00
Past medical expenses $87.90
Making a total of $87,937.90

15. Before I enter verdict and judgment I grant leave to issue cross-claims on or before 30 June 2005.

16. There will be a verdict for the plaintiff against each defendant and judgment in the sum of $87,937.90 which I shall round up to $87,950.

17. The defendants will pay the plaintiff's costs as agreed or assessed.

Mr D G Letcher, QC instructed by Turner Freeman appeared for the Plaintiff

Mr G P F Rundle instructed by Thompson Cooper Lawyers appeared for the 1st Defendant

Mr J C Sheller instructed by Holman Webb appeared for the 2nd Defendant