Zanetic v Amaca Pty Limited

[2017] NSWDDT 5

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	Zanetic v Amaca Pty Limited [2017] NSWDDT 5
Hearing dates:	21 June 2017, 5 and 6 July 2017
Date of orders:	07 July 2017
Decision date:	07 July 2017
Before:	Judge D. Russell
Decision:	1 Judgment for the plaintiff for $455,007.54 2 Order the defendant to pay the plaintiff’s costs
Catchwords:	DUST DISEASES – exposure - damages
Legislation Cited:	Dust Diseases Tribunal Act 1989 Civil Liability Act 2002 Workers Compensation (Dust Diseases) Act 1942
Cases Cited:	Amaca Pty limited v Hicks [2011] NSWCA 295 Amaca Pty limited v Novek [2009] NSWCA 50 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161
Category:	Principal judgment
Parties:	Marko Zanetic (plaintiff) Amaca Pty Limited (defendant)
Representation:	Counsel: Mr P. Semmler QC on 21 June 2017 (plaintiff) Mr J. McIntyre SC on 5 and 6 July 2017 (plaintiff) Mr J. Sheller (defendant)   Solicitors: Turner Freeman (plaintiff) Mills Oakley (defendant)
File Number(s):	DDT 9/2017

Judgment

1. Mr Marko Zanetic has sued Amaca Pty Limited seeking damages for the disease of mesothelioma.

2. The issues in the case are:

1. Exposure to James Hardie asbestos cement building products;

2. Damages;

Employment and Exposure

3. The plaintiff was born on 29 May 1939 in Croatia and is 78 years of age. He came to Australia at the age of 22 in June 1962. The plaintiff obtained work as a self-employed carpenter shortly after coming to Australia in 1962. He worked as a sole trader until 1970 doing renovation work all over Sydney. There was cottage work, factory work and commercial work. He also did some demolition work before starting renovations.

4. Between 1970 and 1972 the plaintiff worked with Mr Joe Protich in partnership. They worked extensively for one builder Mr Dick Jones in the Padstow area building a lot of fibro cottages.

5. The plaintiff and Mr Protich changed the structure of their business from a partnership to a company. The original name was Foxden Pty Limited, which later changed to Foxden Constructions Pty Limited. From 1972 onwards they did work for Mirvac on new houses and apartment projects. The work performed was carpentry including skirtings, architraves, doors, walls and ceiling linings as required. Mr Zanetic did that work until he retired in 2003.

6. Mr Zanetic gave evidence by an affidavit sworn on 20 June 2017. The Tribunal sat at the palliative care ward of Greenwich Hospital on 21 June 2017 to take the plaintiff’s evidence.

7. From 1962 onwards the plaintiff worked with a lot of fibro asbestos cement building products. He nominated working with Hardiflex, Hardies compressed sheets, Hardiplank, Hardies Log Cabin, Tilux, Super Six corrugated sheets and Villaboard. He said that he had exposure from 1962 onwards, including from 1972 with Mirvac, right up until asbestos was taken out of building products.

8. His heaviest exposure to asbestos dust occurred when he was cutting compressed asbestos cement sheets. He identified all of the products he used from a James Hardie brochure which was annexed to his affidavit.

9. The plaintiff was never warned about the dangers of asbestos and saw no warnings on the products. No-one ever came to job sites and told him that fibro sheets were dangerous. He said that he would not have worked with products containing asbestos, if he had been warned that asbestos dust could kill him.

10. I accept the plaintiff as a witness of truth in relation to his exposure to James Hardie asbestos cement building products. He had extensive exposure to products for which Amaca is responsible and I find that that exposure has caused his disease of mesothelioma.

Medical Evidence – before July 2015

11. For 18 years the plaintiff has suffered from chronic lymphocytic leukaemia (LLC). He has been treated by haematologists for that illness, which is a form of cancer of the blood. The disease compromises the patient’s immune system.

12. As a consequence of that, the plaintiff has had a higher level of problems than usual when he has suffered from a chest infection. He started consulting his general practitioner complaining of pain in the left side of his chest in early 2009. Investigation showed a pleural effusion. In February 2009 he was admitted to Calvary Hospital due to left-sided pleuritic chest pain which was probably due to moderately severe pneumonia. He also suffered from breathing difficulties. In early 2009 the plaintiff was questioning his doctors as to whether his chest problems could be due to a malignancy because of his past asbestos exposure. He raised this possibility regularly with his doctors over subsequent years.

13. The problems with chest pain and breathing difficulties continued in 2009. In March 2010 the plaintiff consulted a specialist Dr Wilson, who is a general physician. He is an infectious diseases specialist. The plaintiff reported persisting discomfort in the left lower lateral chest. Dr Wilson looked at the radiology and reassured the plaintiff that there was nothing sinister going on. Complaints to the GP of chest pain, coughing and shortness of breath continued during 2010.

14. These problems continued in 2011 and again in May 2011 Dr Wilson reassured the plaintiff that there was nothing sinister causing his pleuritic chest pain. The problems and complaints of chest pain and shortness of breath continued during 2012. The plaintiff suffered from pneumonia again in September 2012 which was associated with a left pleural effusion and chronic left pleuritic chest pain.

15. There was one complaint of this sort in 2013, but in 2014 there were regular complaints of chest pain and shortness of breath.

16. In 2014 the plaintiff commenced chemotherapy and intragram infusions to treat his LLC. He was regularly seen by Dr Yuen his haematologist. In October 2014 Dr Yuen reported to the GP that he was not clear what was causing the chest wall pain, but he wondered whether it was related to a persistent splenic disease. Dr Yuen provided a similar report in December 2014 by which time he suspected splenomegaly, which is an enlargement of the spleen. The spleen is located on the left side of the chest and its enlargement can lead to chest pain.

17. The chemotherapy for the LLC continued in 2015 and by mid-2015 the complaints of chest pain and shortness of breath were being made again.

18. Mr McIntyre SC submitted that the chest pains and problems from mid-2012 onwards were due to the plaintiff’s mesothelioma, which was not diagnosed until late 2016 or early 2017. In support, he called evidence from Professor Stephen Clarke, a medical oncologist with extensive experience in treating patients with mesothelioma.

19. Professor Clarke had not provided a report dealing with the question of the likely start date of the mesothelioma symptoms, but he was asked to make a number of assumptions about past medical history and provide an opinion “on the run” as it were. Given the assumptions he was asked to make, he said that he thought it was probable that in 2012/2013 the symptoms were likely to be due to the development of mesothelioma.

20. The difficulty in accepting Professor Clarke’s opinion is that he was not given the medical material, which ran to several hundred pages, setting out the plaintiff’s treatment by other specialists in the years leading up to the diagnosis of mesothelioma.

21. It is beyond doubt that the plaintiff suffered from CLL in those years. I have no medico-legal report from his treating haematologist, who could have been asked to look back at the symptoms over the years and now offer a view as to whether those symptoms, with the benefit of considerable hindsight, could be attributed to mesothelioma. Nor do I have the benefit of such a view from the treating general physician Dr Wilson, who in his reports in early years considered the possibility of an asbestos-related disease and dismissed it.

22. Professor Clarke said that some patients in his experience have had mesothelioma for several years and have suffered its symptoms for those years. If the plaintiff had had no other inter-current chest problems, then I may have been able to find that from 2012 onwards his symptoms were caused by his mesothelioma.

23. However, the picture is so complex, that I am not convinced on the balance of probabilities that his symptoms from 2012 to 2015 were caused, either wholly or partly, by mesothelioma. Firstly, his CLL did lead to an enlarged spleen from time to time, and a complication of that condition is that there can be chest pain. Secondly, the plaintiff suffered from pneumonia from time to time, with pleural effusions and recurrent infections. Those conditions can also lead to pleuritic chest pain. As I have said, I have not had the benefit of a considered view, either from a treating specialist, or from Professor Clarke, where the expert has taken into account the entire medical picture. In those circumstances I do not accept the submission of Mr McIntyre that the problems from 2012 to 2015 were due to the mesothelioma.

24. However, as set out in the next section of this judgment, I do find that the problems from mid-2015 onwards were symptoms of emerging mesothelioma.

Medical Evidence – after July 2015

25. In about July 2015 the plaintiff started having severe left-sided chest pain. He was sent for a chest x-ray which showed an abnormality in the left lung. A CT scan confirmed this. Throughout the second half of 2015 he continued to have left-sided chest pain.

26. In January 2016 the plaintiff developed a cough and started getting short of breath. He consulted his general practitioner. This continued through the first half of 2016. The plaintiff also started to experience back pain.

27. In August 2016 the pain and breathlessness was so bad that the plaintiff went to the Emergency Department of Tomaree Community Hospital. He had another admission to the Emergency Department on 4 September 2016 with severe left-sided chest pain and breathlessness.

28. In 2014, 2015 and 2016 he was having chemotherapy for his CLL. During this treatment his chest pain was further investigated but nothing was advised to the plaintiff.

29. The plaintiff was admitted to Calvary Mater Hospital in October 2016. He had a second admission to Calvary in November 2016 with ongoing chest pain. A chest x-ray showed a left-sided pleural effusion. By this stage he was taking eight Panadeine Forte tablets each day to manage his chest pain.

30. The plaintiff went again to both Tomaree Community Hospital, and Calvary Mater Hospital, in December 2016. The plaintiff was living at that time at Shoal Bay and travelled to the Royal North Shore Hospital in mid-December 2016 in severe pain. A pleural effusion was again discovered. The plaintiff came under the care of a respiratory physician Dr Michael Harris.

31. Dr Harris arranged for a biopsy which was done on 19 December 2016. The results were suspicious for mesothelioma. Dr Harris informed the plaintiff that his diagnosis was mesothelioma, but that he needed surgery. By Christmas 2016 the plaintiff had lost 10 kilograms in weight over a three week period. He was having night sweats and he had no appetite. He was referred to Dr Nick Pavlakis, an oncologist.

32. The plaintiff went to stay with his daughter Audrey. On 28 December 2016 his chest pain was terrible and could not be controlled by strong medication. He was taken to Greenwich Hospital where he was admitted on 29 December 2016. On 5 January 2017 he was transferred to Royal North Shore Private Hospital by ambulance. Nothing was controlling his pain.

33. At North Shore Private Hospital in early January 2017 the plaintiff came under the care of Dr Michael Harden, a cardiothoracic surgeon. He performed a left-sided thoracotomy, a bronchoscopy and a pleural biopsy. Dr Harden confirmed with the plaintiff that he had mesothelioma.

34. In mid-January 2017 the plaintiff was transferred back to Greenwich Hospital where he remained until early February 2017. He then went back to live at his daughter Audrey’s house.

35. On 16 March 2017 the plaintiff was taken from his daughter’s house by ambulance to Royal North Shore Hospital as he was dizzy and confused. He was transferred to Greenwich Hospital. He was diagnosed with an infection and treated with antibiotics. Dr Pavlakis saw him on 20 March 2017 as an inpatient at Greenwich Hospital. He was discharged on 24 March 2017 and went back to live with his daughter.

36. The plaintiff saw Dr Pavlakis in April and May 2017. Dr Pavlakis did not recommend chemotherapy and said that the focus should be on controlling the pain.

37. On 20 April 2017 the plaintiff underwent intragram treatment for leukaemia at Royal North Shore Hospital to boost his immune system. He went back to his daughter’s house but woke that night in a lot of pain. He was taken by ambulance to Royal North Shore Hospital the next day. He was diagnosed with an infection and given intravenous antibiotics and a blood transfusion. On 24 April 2017 he was transferred to Greenwich Hospital where he remained until 3 May 2017.

38. On 5 June 2017, while living at his daughter’s house, the plaintiff suffered from pain and unsteadiness on his feet. Greenwich Hospital did not have a bed available for him. He had a fall at home and injured himself. The next morning he was taken to Royal North Shore Hospital, as Greenwich could not provide treatment. He was admitted to Greenwich Hospital on 7 June 2017 and has remained there ever since, in the palliative care unit. While in Greenwich Hospital on 12 June 2017 he had another fall.

39. The plaintiff has been attended by palliative care doctors since April 2017 who have either come to his daughter’s house or seen him in hospital. He has had little interest in food and has slept about 19 or 20 hours a day. Some days he cannot get out of bed. He has had a cough and breathlessness which vary in intensity. The pain is always with him.

40. At the bedside hearing at Greenwich Hospital on 21 June 2017 the plaintiff appeared most unwell. Some of his answers to questions were long, rambling and not to the point. I find this to be because he was taking such strong pain medication. Nevertheless, I formed the opinion he was doing his best to be truthful in his answers at Greenwich Hospital.

General Damages

41. The plaintiff retired at the age of 63 and moved from Sydney to Shoal Bay with his partner Carole Babcock. He had a dinghy and went fishing with his friends. He played bocce at the local Croation Club. He maintained his garden and lawns. He built a second story onto the home at Shoal Bay. There is a large Croation community in the Shoal Bay/Nelson Bay area and the plaintiff spent a lot of time socializing with fellow countrymen and with his partner. Some years ago he bought an apartment in his home village of Blato in Croatia, and from time to time he went back there to visit his family.

42. The effects of mesothelioma upon the plaintiff and the treatment he has had are set out above. The plaintiff has moved to Sydney to receive better treatment for his mesothelioma, which saddens him because he loves Shoal Bay.

43. The plaintiff has not been well for many years. He had to undergo chemotherapy in 2014, 2015 and 2016 for CLL. He has been in and out of hospital over the last eight years with bouts of pneumonia, chest infections and pleural effusions.

44. Nevertheless, the plaintiff has led an active life in retirement in Shoal Bay with a long term partner. He built a complex of units in Shoal Bay and his daughter gave evidence that in spite of his problems, he has managed to carry out the care and maintenance of those units over the years.

45. The plaintiff has now suffered the effects of mesothelioma for the last two years. He has been in and out of several hospitals over that time, often because his pain has become overwhelming. He has had to move away from his home and his partner and he is being cared for largely by his daughter Audrey.

46. When the plaintiff’s evidence was taken at the bedside hearing at Greenwich Palliative Care Unit, he appeared quite debilitated and had little quality of life.

47. Mr McIntyre tendered evidence under s 25(3) of the Dust Diseases Tribunal Act 1989 concerning the usual course of mesothelioma, the nature of a thoracotomy operation, the growth of a mesothelioma tumour, and how pain and nerve problems are caused in the pleura by the tumour. Mr McIntyre also called evidence from Professor Clarke about the current palliative treatment available for end stages of mesothelioma. Without reciting that evidence I have taken it all into account in assessing general damages.

48. The plaintiff and his daughter have agreed that when he is shortly discharged from Greenwich Hospital, who cannot offer him accommodation any more, he will move to a nursing home at Northbridge which offers palliative care. It is likely that he will, in the last weeks of his life, have difficulties with his pain levels. Professor Clarke gave evidence that such a patient will require higher and higher levels of pain relief, to the point where breathing is compromised. The parties agreed that the plaintiff should be treated as having a life expectancy of another eight weeks. Professor Clarke set out the problems he will suffer from during that time.

49. I assess the plaintiff’s general damages at $350,000.

Interest on Past General Damages

50. The parties agreed that interest should be awarded at 2% on the entire general damages figure. Interest on $350,000 at 2% for two years is $14,000.

Loss of Expectation of Life

51. The plaintiff has a reduced life expectancy, even absent mesothelioma, because of his long term condition of CLL. The defendant tendered a report by Professor Tattersall, who suggested that the plaintiff would have a life expectancy of between two and five years. Mr McIntyre submitted that 4 years should be adopted and Mr Sheller did not want to be heard against this proposition.

52. I assess damages for loss of expectation of life at $4,000.

Out-of-Pocket Expenses

53. The plaintiff seeks to include in his damages the following figures:

1. $8,343.35 payable to Medicare

2. $5,531.35 repayable to HCF

54. Mr McIntyre submits that these are legal obligations of the plaintiff and should be included in his damages. My only reluctance to do so is because some of the plaintiff’s exposure occurred during periods of employment, and it is likely that the Dust Diseases Authority would pay or reimburse these expenses if asked. However, those expenses have not been passed on to the Authority to be covered by it.

55. Mr McIntyre submits that I should include the total of those two figures, being $13,874.70 in the judgment. He also submits that part of the judgment, equivalent to that amount, should be stayed, pending determination of whether or not the Dust Diseases Authority will pay those expenses.

56. The plaintiff cannot recover those heads of damage twice. Ultimately they will be paid by the defendant, either by including the amounts in this judgment, or, if the amounts are paid by the Authority, by the Authority recovering them from the defendant under s 8E of the Workers Compensation (Dust Diseases) Act 1942.

57. In the circumstances I find that it is probable that both amounts will be paid by the Authority. There will be no award for past out-of-pocket expenses. The plaintiff can always seek a reconsideration of this part of the judgment under s 13(6) of the Dust Diseases Tribunal Act 1989.

Future Out-of-Pocket Expenses

58. The plaintiff’s daughter gave evidence that, as a result of a family conference, her father was going to be moved from Greenwich Hospital to a nursing home in Northbridge which could offer him palliative care. It was agreed that the cost of that nursing home, after deducting a small payment which would be made by the Dust Diseases Authority, was $300 per day.

59. The life expectancy of the plaintiff was agreed at eight weeks. Thus for future out-of-pocket expenses I award damages of $16,800, being eight weeks at $300 per day.

Gratuitous Attendant Care Services

60. Section 15A of the Civil Liability Act 2002 applies to the determination of civil liability for damages for gratuitous attendant care services in proceedings brought under s 11 of the Dust Diseases Tribunal Act 1989.

61. By s 15A(4) the phrase “attendant care services” as defined in s 15(1) applies under s 15A. So does the phrase “gratuitous attendant care services”.

62. Section 15(1) provides:

“In this section:

‘Attendant Care Services’ means any of the following:

(a) services of a domestic nature,

(b) services related to nursing,

(c) services that aim to alleviate the consequences of an injury.

‘Gratuitous Attendance Care Services’ means attendant care services:

(a) that have been or are to be provided by another person to a claimant, and

(b) for which the claimant has not paid or is not liable to pay.”

63. Section 15A(2) provides that the hourly rate prescribed by s 15(5) applies to the calculation of damages, although the restriction in s 15 as to a maximum number of hours does not apply – s 15A(2).

64. The plaintiff must establish three elements in order to obtain such damages: a level of disability giving rise to the need for assistance; a quantification of the hours over which assistance had been and would be required; and a rate at which such assistance should be valued – Amaca Pty Limited v Hicks [2011] NSWCA 295 at [20].

65. There is no evidence as to any care given to the plaintiff prior to moving to Sydney in December 2016 for treatment, and to live with his daughter. If there was any care during this period it would have been provided by the plaintiff’s partner. She was not called and her absence from the witness box was not explained. There will be no award for the period before 16 December 2016.

66. The plaintiff’s daughter Ms Audrey Haley swore an affidavit on 23 June 2017 and gave oral evidence. She said that on 16 December 2016 her father came to Sydney for treatment at Royal North Shore Hospital and moved in to live with her so that she could care for him. She also gave up her employment at that time to look after her father.

67. While her father has been in hospital, Ms Haley said that she has provided two hours of active care per day. While her father has been at home, Ms Haley has provided five hours of active care per day. The reality is that when the plaintiff has been at his daughter’s house, she provides five hours of active care but is supervising him for almost 24 hours per day.

68. The parties agreed that the value of care provided between 17 December 2016 and 12 January 2017 was $5,003.74.

69. The recent hospital admissions since the latter date have been:

1. Greenwich Hospital from 13 January 2017 to 5 February 2017 (24 days);

2. Greenwich Hospital from 17 March 2017 to 24 March 2017 (8 days);

3. Royal North Shore Hospital from 20 April 2017 to 24 April 2017 (5 days);

4. Greenwich Hospital from 24 April 2017 to 3 May 2017 (13 days);

5. Greenwich Hospital from 5 June 2017 to 6 July 2017 (32 days);

70. The parties agreed that since 12 January 2017 the plaintiff has spent 11.71 weeks in hospital. The other 13.43 weeks have been spent at his daughter’s house.

71. The value of care provided by the plaintiff’s daughter while he has been in hospital is: 14 hours x 11.71 weeks x $29.77 = $4,880.49.

72. For the days when the plaintiff was at home being cared for by his daughter, Mr McIntyre submits that 168 hours per week of Griffiths v Kerkemeyer damages should be awarded. Mr Sheller submits that 45 hours per week should be awarded. The competing submissions are as follows.

73. Mr McIntyre points to the fact that the plaintiff’s daughter gave up her employment immediately upon her father coming to Sydney in mid-December 2016, so that she could look after him at her home in Castle Cove. The plaintiff’s long term partner did not come down to Sydney. The plaintiff’s daughter gave evidence, which I accept, that while her father has been in hospital she has provided two hours of active care per day to him, and while he has been at home she has provided five hours of active care. The plaintiff’s daughter also gave evidence that she provides supervision for her father at all times, as well as attending to his needs as and when they arise.

74. The plaintiff’s daughter said that while her father has been in her home, he stays in the room next to her. He has been in bed or sleeping about 19 of 20 hours per day, and even when he gets up he has usually just sat on the lounge and watched television. Ms Haley has been conscientious about supervising her father’s pain medication. She has had to get up to him at night from the time he moved into her house in December 2016. On a bad night the plaintiff has woken up several times in the middle of the night feeling discomfort with pain, or feeling thirsty. Ms Haley gets up about three or four times a night, although on a good night the plaintiff will only wake up once. She provides pain medication to her father at night and gets him something to drink. She talks to him and settles him back to sleep.

75. While the plaintiff has been living in her house, Ms Haley has taken care of all the cooking and cleaning and prepared all of the food for her father. This preparation of food has continued when he has been in hospital, as the plaintiff has not liked the hospital food.

76. As a result of taking strong pain medication, the plaintiff has been vague and confused and Ms Haley has therefore supervised his medication to make sure he is taking the right tablet at the right time of day.

77. When the plaintiff has gone to bed, or up and down stairs, or to the bathroom, Ms Haley accompanies him and stands close by to assist him if he needs help. The plaintiff has been unsteady on his feet, and Ms Haley has had to be quite close to him at all times when he is moving about at home.

78. Ms Haley described having to deal with breakthrough pain suffered by her father. This does not come on at regular times of day or night, but when it does occur she has had to act quickly to administer the right pain medication to see that her father has his pain reduced.

79. As previously recited, Ms Haley gave up her full-time job upon her father moving to Sydney to live with her. She did not work between December 2016 and April 2017. In April 2017 she took on part-time job which she has done for four hours per day from home. She only works on the days when her father has not needed extra help. Usually she has been able to prepare her father in advance so that she can get some work done at home. Nevertheless, she deliberately works from home now, on a part-time basis, so that she can look after her father and deal with his needs as they arise, often at unpredictable times.

80. Ms Haley has two teenage children who live with her one week in two, as they reside with the father in each alternate week. On the weeks when her children live with her, Ms Haley drives her 14 year old son to school in the morning, and her round trip takes about 1-1¼ hours. She has been able to leave her father by himself during that time, as she has got him fed and settled before she takes her son to school. That is the only time she has been away from the house. She has never been able to leave her father alone for any period longer than those trips to school. She has not been able to leave her father either in the day time or at night.

81. Ms Haley struck me as a very loving and devoted daughter and I accept her evidence as to the level of care she has been providing without reservation.

82. The plaintiff served an occupational therapy report of Ms Joanne Oates. She attended upon the plaintiff and his daughter in April 2017 and took a detailed history of the care which had been given since December 2016 by the daughter. Ms Oates made the following direct observations of the plaintiff:

1. He was extremely breathless on any exertion;

2. He was at significant risk of falls because of his dizziness when changing position, medication, pain and general frailty;

3. He had a stand-by carer (his daughter) for all transfers and internal mobility;

4. He had a lot of difficulty negotiating stairs without full carer assistance to prevent him from falling;

5. He had not left the home much since January 2017;

6. He spent all his time lying on the lounge;

7. There had been several episodes of incontinence in the six weeks prior to the assessment on 14 April 2017;

8. He was wearing continence pull-ups and was assisted to the toilet regularly to avoid accidents; he was also using a urinal overnight;

9. He had stand-by care for all showering and transfers but wanted to shower himself for privacy reasons;

10. The daughter was responsible for additional duties in relation to hydration and nutrition;

11. The daughter was cleaning, keeping the home in a hygienic and sterile manner, regularly washing clothes, managing issues to deal with continence and maintaining the home and gardens.

83. Ms Oates assessed the need for care as “continuous around the clock”.

84. Apart from the five to six hours every second week that Ms Haley is away from home, she has always been there for her father to provide whatever care and assistance he has needed. The plaintiff has clearly been very frail and debilitated ever since mid-December 2016.

85. I find that the plaintiff has needed almost full-time around-the-clock care since mid-December 2016. This has largely been provided on a gratuitous basis by Ms Haley his daughter. The Dust Diseases Authority have provided eight hours of carer assistance per week, but even when those carers come to the home they are assisting Ms Haley with the plaintiff rather than taking over his care. The plaintiff has a son, but I had the impression from the evidence that apart from transporting his father now and then, he has not been providing hands-on care and assistance.

86. Mr Sheller submitted that the care of 45 hours per week was on the basis of:

1. The five hours of active care per day which Ms Haley said she had been providing to her father; and

2. An allowance of an extra 10 hours per week for other tasks which arise on an irregular basis.

87. I find that the plaintiff could not have been left alone for any significant period at any stage since mid-December 2016. If I ask the theoretical question – could Ms Haley have gone away for the night – the answer must be “no”. Even if I ask the theoretical question whether Ms Haley could have gone out for the afternoon, the answer must also be “no”. I do note that Ms Haley had to give up full-time work away from the home straight away when her father came to Sydney, as he needed care full-time from December 2016 onwards.

88. I find that, even though only five hours of active care was being provided per day, Ms Haley was providing gratuitous attendant care services to the plaintiff for almost every hour she was at home. The evidence discloses that the needs of the plaintiff arise on an irregular but urgent basis, whether it be pain or breakthrough pain, or needing a drink or to go to the toilet.

89. The fact that Ms Haley was able to do other tasks, either domestic chores or four hours of casual work per day from home, does not distract from the fact that she needed to be there all the time for her father.

90. In the context of a claim under s 15B of the Civil Liability Act 2002, the Court of Appeal in Amaca Pty Limited v Novek [2009] NSWCA 50 considered a submission that damages under s 15B for loss of capacity to provide gratuitous domestic services to others should be reduced because at the same time as babysitting was being provided by a grandmother, the grandmother was able to fit into her day various household tasks. At paragraph [99] the Court of Appeal said:

“In my view, the judge did not commit an error in this respect. The act of performing the childcare did not itself benefit the [parents], where that benefit lay in having household tasks done for them. The time when she was carrying out childcare may well have provided Mrs Dawson [the grandmother] with the occasion or opportunity to carry out household tasks, but it was not itself a part of the childcare that any household tasks be done. She could have carried out the childcare just as effectively without doing a jot of housework.”

91. It seems to me that similar considerations apply in the present case. It would be an odd result indeed if the damages for gratuitous attendant care services were reduced, because the carer was filling in her time doing other chores, as opposed to standing like a sentinel waiting to be summoned. The need for Ms Haley to be on-call arose entirely from her father having the disease of mesothelioma for which the defendant is responsible. That need could not be met by Ms Haley coming and going from the house and dealing with her father when it suited her. She had to be there all the time.

92. I therefore make the following findings:

1. The level of the plaintiff’s disability gave rise to the need for constant assistance, even where that assistance was merely supervising or standing by ready to render assistance;

2. That assistance needed to be provided for 20 hours a day after 16 December 2016;

3. The appropriate rate at which such assistance should be valued is that under s 15A of $29.77 per hour.

93. Mr Sheller did submit that for the times when Ms Haley was not providing active assistance, some figure less than $29.77 per hour should be awarded. I do not accept that submission. The figure of $29.77 per hour is an artificial cap imposed on damages under s 15A of the Civil Liability Act 2002. The common law, under Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161, awarded damages at commercial rates. There is no evidence about commercial rates in this case. In particular, there is no evidence of what the commercial rate might be to provide stand by assistance, where the carer might have to, on short notice, administer strong pain medication, provide comfort and support, provide drinks, or deal with toileting and incontinence issues. It could very well be that the commercial rate for providing such care and assistance is no less than the commercial rate for providing full-time assistance. I simply do not know. In those circumstances, there is no justification in awarding a figure less than the statutory cap. To award a lesser figure would be to guess at the rate for which such services could be provided on a commercial basis.

94. For the days in the past when Ms Haley has provided care and assistance to her father, I award care at the statutory rate for 20 hours per day. The reduction from 24 hours per day takes account of several factors:

1. Ms Haley has been able to leave her father for an hour each morning, every second week, to drive her son to school;

2. Therefore the father could have been left alone for that hour even in the weeks when Ms Haley was not driving her son to school;

3. I infer that if the plaintiff could be left alone for an hour each morning, there was perhaps some other short time each day when he might have been left alone.

4. There has been some benefit to the plaintiff (and to Ms Haley) in having the eight hours of care per week provided by the Dust Diseases Authority and that must have reduced the burden on Ms Haley to some extent.

95. I award damages for gratuitous attendant care services, for those days when Ms Haley cared for her father in her home as follows: 140 hours x 13.43 weeks x $29.77 = $55,973.55.

96. The total for past care is $5,003.74 + $4,880.49 + $55,973.55 = $65,857.78.

97. Finally, the plaintiff is entitled to interest upon damages for past gratuitous attendant care services. The total amount for the past is: $65,857.78.

98. The plaintiff is entitled to interest on half that amount at 5.75% from 16 December 2016 until 31 December 2016 and thereafter at 5.5%. Interest on past gratuitous domestic services amounts to $1,015.52.

99. For the next eight weeks the plaintiff will be in palliative care in the nursing home. Nevertheless his daughter will, I find, continue to provide him with two hours of active care per day. The damages for the future are: 2 hours x 56 days x $29.77 = $3,334.24.

Conclusion

100. I award the following heads of damage:

(a)	General Damages	$350,000.00
(b)	Interest on past general damages	$  14,000.00
(c)	Loss of expectation of life	$    4,000.00
(d)	Future out-of-pocket expenses	$  16,800.00
(e)	Past gratuitous attendant care services	$  65,857.78
(f)	Interest on past care	$    1,015.52
(g)	Future gratuitous attendant care services	$    3,334.24
TOTAL	$455,007.54

101. Judgment for the plaintiff for $455,007.54.

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

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Decision last updated: 07 July 2017