Winton v Amaca Pty Ltd

[2005] NSWDDT 3

Dust Diseases Tribunal

of New South Wales

CITATION:	Winton v Amaca Pty Ltd [2005] NSWDDT 3
PARTIES:	Norma Shirley Winton Amaca Pty Ltd
MATTER NUMBER(S):	482 of 2004
JUDGMENT OF:	Curtis J at 1
:-
DATES OF HEARING:	4 & 9 February 2005
EX TEMPORE JUDGMENT DATE:	02/09/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D Toomey instructed by Slater and Gordon FOR DEFENDANT: Ms W Strathdee instructed by Phillips Fox.

JUDGMENT:

1. Norma Shirley Winton, who on 30 January this year turned 72 years of age, has contracted mesothelioma in consequence of exposure to the defendant's asbestos cement building products. She sues for damages and Amaca Pty Ltd (Amaca) concedes that the only issue is quantum.

2. Ms Winton was in good health and playing regular golf with friends until August 2004 when she found herself suffering from breathlessness and consulted medical practitioners. On 24 August fluid was drained from her right lung. Further fluid was drained during an admission to hospital between 31 August 2004 and 2 September 2004. Her breathing deteriorated after these procedures. She was again admitted to hospital between 11 November 2004 and 18 November 2004. It was then that she was told that her diagnosis was mesothelioma. She was shocked and upset by the diagnosis.

3. A course of chemotherapy with the drug Alimta followed but this appears to have had no effect upon her symptoms. Rather, her condition deteriorated and she felt ill and nauseous.

4. Ms Winton has had unusual difficulty with pain management. She has been admitted several times to hospital to assist with relief but to no avail. When she gave evidence before me in her home on 4 February 2005 she spoke of uncontrolled pain which restricted whatever she could do. It was intended that she should be admitted to St George Hospital this week for further attempts to control this pain.

5. Her prognosis is eight weeks, expiring, for the purpose of calculations, on 6 April of this year. It is probable the last four weeks will be spent in hospital.

General Damages

6. There are factors which militate towards higher general damages and factors which militate towards a reduction from those awarded by me in similar cases. Those which militate towards a reduction in damages are the plaintiff's age, she is now 72; the fact that there has been a mercifully brief period between diagnosis and probable death and the fact that her mental suffering is not compounded by the circumstance of leaving children uncared for or without support or grandchildren in whose future she would have maintained a close interest. As against that her degree of physical suffering I accept is greater than the norm, and significantly greater.

7. Doing the best I can I award $170,000 for general damages.

8. Because the most part of the plaintiff's suffering is behind her I allow interest on $150,000 for six months at 2 per cent in the sum of $1,500.

9. Past out of pocket expenses have been agreed in the sum of $22,710.

10. Future out of pockets have been agreed to the extent of future hospital care in the sum of $22,260. For reasons expressed in a debate between the Bench and the Bar table I allow a contingency of $5,000 towards possible future chemotherapy expenses and I allow $1,370 in respect of medications. So the total future out of pocket expenses are $28,630.

11. The plaintiff had upon the tables 15 years in prospect and I allow $15,000 in respect of loss of expectation of life.

12. I allow $1,000 in respect of home aids.

13. Past Griffiths v Kerkemeyer has been agreed in the sum of $5,000.

14. So far as future Griffiths v Kerkemeyer is concerned the plaintiff, notwithstanding her pain, is able to perform her own toileting and make such food as she is disposed to eat. I allow future Griffiths v Kerkemeyer in the sum of $5,000.

15. Judgment for the plaintiff in the sum of $248,840.

16. I order the defendant to pay the plaintiff's costs, such costs to be assessed on an indemnity basis on and from Wednesday, 9 February 2005.

Mr D Toomey instructed by Slater and Gordon appeared for the Plaintiff

Ms WS Strathdee instructed by Phillips Fox appeared for the Defendant