Armitage v State of New South Wales

Background

1. Mrs Pond suffered from malignant pleural mesothelioma caused by the inhalation of asbestos dust and fibres emanated by the shaking out and laundering of the asbestos laden work clothes of her late husband. Mr Pond worked as a fitter for the Railways Department at the Enfield, Redfern and Chullora depots. Mr Pond began courting Mrs Pond in the first half of 1966 and the couple were married and commenced to live together on 12 October 1968.
2. There is no dispute that Mrs Pond's mesothelioma was caused by the defendant's negligence.
3. At the time of her diagnosis of mesothelioma, Mrs Pond was 76 years of age and was living independently in her home in Menai, NSW.

Statement of Jeremy Mark Pond

1. Jeremy Mark Pond ('Jeremy') who was born on 11 July 1994 is the son of the plaintiff and the grandson of the late Mrs Pond. He made a statement in the proceedings that became exhibit G.
2. He had lived with his grandmother for all of his life in her house in Menai until Mrs Pond moved to Melbourne to live with the plaintiff.
3. Jeremy's evidence in that statement was uncontested.
4. Jeremy stated that he first noticed Mrs Pond having 'significant issues with breathing when she exerted herself in about mid-2021.'
5. Prior to that, Jeremy stated that his grandmother was 'completely independent' and did not need any assistance, but that a couple of months before Christmas 2021 he noticed that his grandmother's health deteriorated, she stopped doing things around the house, everything became hard for her and he observed her becoming short of breath. Jeremy had to take on additional tasks and his uncle Chris also came to help and drive Mrs Pond to appointments. She had also stopped eating much at all.
6. In my view this evidence is consistent with the evidence that the plaintiff gave and the history recorded in Ms Cogger's report.

Davina Jean Armitage (the plaintiff)

1. The plaintiff gave evidence before me in person and she had also sworn an affidavit (exhibit A). Listening to her evidence, often through her tears, was heart breaking. She came across as a loving daughter who had to watch her mother suffer at the end stage of her mother's life.
2. Various passages of her evidence are highlighted in this judgment.
3. The plaintiff, in my view, was a very honest and open witness. To my mind she did not exaggerate or tell any falsities. She in fact gave evidence that she thought may not have been in her best interest, and when she could not remember she was frank and said so.
4. The defendant asserts that the following matters ought be kept in mind when assessing the plaintiff's evidence: 1. The plaintiff's evidence given under cross-examination should be preferred to the extent that there is any inconsistency between her oral and affidavit evidence. 2. The plaintiff's evidence was given at a high-level of generality. She candidly accepted that, for the most part, she could not remember details or dates, did not keep contemporaneous notes, and the last couple of years had been a 'blur'. Although there is no doubt that the plaintiff gave evidence on matters that she honestly believed to be true, the evidence the plaintiff gave is of limited assistance to the Tribunal. 3. The plaintiff attempted to suggest by her evidence that her mother endured a considerable level of pain. Mrs Pond's sworn accounts for the period up to 22 June 2022 are to the contrary and, because of this, the plaintiff's evidence on this topic should not be accepted. 4. The plaintiff's evidence about why she considered that full-time 'attendant care services' were required and were provided during the period 1 June 2022 to 27 September 2022 is inconsistent with the expert evidence, based as it was on Mrs Pond's own oral accounts, and the occupational therapist's own observations of Mrs Pond's demonstrated abilities. 5. Mrs Pond's level of cognition was not impaired for virtually all of 2022. Mrs Pond was self-mobile, and her risk of falls was not so great so as to warrant full-time 'attendant care services'. Further, although Mrs Pond undoubtedly was anxious from time to time (possibly, much of the time), she did not have a diagnosed anxiety disorder and was not being treated for any such disorder. The fact that Mr Pond was understandably anxious did not mean that full-time 'attendant care services' were needed and had to be provided. 6. The plaintiff's evidence ultimately was to the effect that to the extent that she provided 'attendant care services' for her mother it was in the nature of passive attendance, and she largely (and understandably) did so out of love and affection (and because she wanted to provide as much support as possible to her mother) rather than in response to any demonstrable need that her mother had at the time. 7. The plaintiff largely agreed with Ms Harvey's (the occupational therapist called by the defendant) assessment of Mrs Pond's capabilities, and also largely agreed with Ms Harvey's estimates of past care services that the plaintiff provided.

Affidavit of Mrs Pond

1. Mrs Pond swore an affidavit on 17 June 2022 which became exhibit E. In paragraphs 39-43, Mrs Pond details her three previous bouts with cancer, all of which she survived.
2. As there has been significant dispute and disagreement about what Mrs Pond experienced as a consequence of her mesothelioma, I quote the three final paragraphs of her affidavit as follows: '44. I noticed that I was developing shortness of breath in December 2021. I had a chest x-ray which revealed a build up of fluid. I went back to and saw Dr Dunlop. I had the fluid drained and they performed a talc pleurodesis and a biopsy. After the surgery, Dr Dunlop told me that I suffered from mesothelioma. 45. I do not have a great deal of pain at this stage but do suffer from persistent shortness of breath. I have no appetite. I cannot sleep but am always fatigued. I have low energy. 46. In March 2022, I moved down to my daughter's home in Caroline Springs, Melbourne. I plan to stay here for the foreseeable future and for her to look after me.'
3. It is clear to me that Mrs Pond was experiencing symptoms from December 2021. Additionally, Mrs Pond signed a Form 1 Statement of Particulars (exhibit D) which also provided an account of her symptoms. It is also corroborated by the plaintiff's oral evidence.
4. Although I have had regard to the defendant's submissions above, I accept the plaintiff's evidence entirely. She was a woman placed in a terrible situation of having to care physically and emotionally for her mother who was dying of the same condition that caused her father's death. In my view she provided loving and critical care for her mother over an extended period which ultimately ended tragically with Mrs Pond's death in her own home. The plaintiff's husband, Mr Armitage, also assisted - he set up the doorbell system by which Mrs Pond could press if she needed assistance day or night. This care was critical and provided with love and kindness.
5. I note that the defendant asserts that if there was a departure from her evidence-in-chief and her affidavit, then I should prefer the evidence given in cross-examination. I do not accept that assertion and decline to prefer evidence given in cross-examination. The defendant does not deny that Mrs Pond had seen what happened to her husband before he passed.
6. The defendant does not dispute that Mrs Pond suffered as a consequence of her mesothelioma. I accept that her suffering was magnified and exacerbated as she had seen her husband die of the same condition in June 2009. She had witnessed his suffering and knew what was ahead of her.

General Damages

1. In a tortious action for personal injury, damages are awarded to a successful plaintiff by the payment of a sum of money to compensate them for the injuries caused. The general compensatory principle of damages has three elements outlined in Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412: 'In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries. Secondly, damages for one cause of action must be recovered once and for ever, and (in the absence of any statutory exception) must be awarded as a lump sum: the Court cannot order a defendant to make periodic payments to the plaintiff. Thirdly, the Court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it.'
2. The purpose of general damages is to compensate the injured person for their pain and suffering and loss of enjoyment and amenities of life that they have experienced, and when setting general damages, my task is an evaluative one. I accept the submission of the defendant that I must ensure that the damages award constitutes fair and reasonable compensation for the injury received, and every case 'must be looked at on the footing that it is', as it is in fact, different from every other case: CSR v Bouwhuis (1991) 7 NSWCCR 223 at [251]-[252].
3. I accept that in determining an appropriate award of general damages, I must not directly compare verdicts or awards of general damages, however, I note that although a direct comparison with other cases is not permitted, it is appropriate when assessing general damages I ought have regard to awards made in other cases to ensure that the proposed award accords with 'general experience' and 'current general ideas of fairness and moderation': Planet Fisheries Pty Limited v La Rosa (1968)119 CLR 118 ('Planet Fisheries') at 125.
4. Nonetheless, I am expected to draw on my experience in coming to the correct figure, provided that I am not 'overborne by what other minds [had] judged right and proper for other situations': Planet Fisheries at 125.
5. In James Hardie & Coy Pty Limited v Newton (1977) 42 NSWLR 729 the Court of Appeal confirmed this approach. Mahoney AP observed in Sullivan v Micallef; Macquarie Pathology Services Pty Limited v Micallef [1994] Aust Torts Reports 81-308 at 61, 790, 'There is no market price for pain.'
6. The plaintiff submits that the appropriate figure is $485,000.00.
7. The defendant submits that the appropriate award ought be $360,000.00 and submits that such amount is consistent with awards given in relatively comparable circumstances in Hudson v Amaca Pty Ltd [2022] NSWDDT 6, Kennedy v CIMIC Group Limited [2020] NSWDDT 7, Phillips v Amaca Pty Limited [2019] NSWDDT 5, Piatti v ACN 000 246 542 Pty Ltd [2019] NSWDDT 7 and Webber v Comcare [2018] NSWDDT 10.
8. Both parties have addressed me with regard to a decision of Russell SC DCJ in Torok v Allianz Australia Insurance Ltd [2023] NSWDDT 2 ('Torok').
9. The defendant submits that Torok was an extreme case, involving a claimant who had suffered pain for over five years and that in awarding general damages in the sum of $420,000.00, his Honour was not purporting to establish a new 'baseline' or 'standard'. At [187]-[188], the Tribunal concluded: 'Mr Torok first experienced shortness of breath in January 2018 and has suffered quite severe symptoms and restrictions since August 2021. He has recently deteriorated to the point where he is now in palliative care. Mr Torok has suffered for a longer period than many plaintiffs who come before the Tribunal. Taking into account the long period of suffering of Mr Torok, his two hospital admissions and one hospice admission, and his worsening symptoms, I find that the appropriate figure for general damages is $420,000.'
10. The defendant seeks to distinguish Mrs Pond from the claimant in Williams v Amaca Pty Ltd (2020) NSWDDT 2 ('Williams') [2020] NSWDDT in that Mrs Pond's symptoms were not as severe as those detailed in Williams.
11. Whilst the defendant acknowledges that Mrs Pond died prematurely as a result of the defendant's tortious conduct, they submit that based on the summary of evidence at [104] of the defendant's written submissions, to which I have had regard, Mrs Pond did not suffer to the same extent as many other plaintiffs who bring cases in the Tribunal.
12. The defendant submits that although Mrs Pond was hospitalised on two occasions following her diagnosis and suffered general shortness of breath ('SOB') which it is asserted, was managed with oxygen, and lethargy, the evidence does not suggest that Mrs Pond experienced levels of pain amounting to debilitating pain.
13. Further, the defendant asserts that although Mrs Pond experienced low oxygen levels (hypoxia), that this was managed with oxygen, which Mrs Pond was able to self-administer. In support of this contention, the defendant draws to my attention, to which I have had regard, references in exhibit 6 and entries in medical notes where Mrs Pond makes complaints about pain.
14. The defendant asserts that the evidence of the plaintiff was:

• vague and was cast at too high a level of generality to be of any assistance to the Tribunal;
• directed to her own beliefs how she thought her mother was faring;
• doubtful in chronological reliability;
• characterised by an inability (noting that she did not keep a diary) on her part to recall even to a reasonable degree of precision the dates, or the periods of time, when she did certain things or how many times she did things to assist her mother.

1. Accordingly, the defendant submits that Mrs Pond retained a considerable level of independence in terms of her ability to move around the house, shower, use the toilet and eat and drink, up to the date of death. The defendant submits that I must ensure that the proposed award accords with the 'general experience' and 'current general ideas of fairness and moderation'. Having regard to all these matters the defendant asserts that the appropriate award for general damages is $360,000.00.
2. On the basis of the evidence before me, I make the following findings of fact: 1. Mrs Pond was a strong woman who had had a hard life, but was not one to complain; 2. Mrs Pond led an active life completely independent, and required no assistance with domestic activities or personal care prior to her diagnosis of mesothelioma in March 2022, when she moved to Melbourne to live with the plaintiff so the plaintiff could care for her; 3. David Pond, Mrs Pond's husband, died of mesothelioma. 4. Mrs Pond had some pre-existing medical problems: 1. She suffered breast cancer and had a mastectomy in 1985, but survived her cancer; 2. In 1998 she had her parathyroid removed; 3. In 2014 she had an ovarian cyst which resulted in a hysterectomy; 4. In 2019 she was diagnosed with thyroid cancer and had her thyroid removed; 5. In October 2019, whilst having investigations of her thyroid, she had a PET scan which revealed a small lesion on her left lung. Lung cancer was diagnosed, and resected, and Mrs Pond required no further treatment; 6. After which she resumed her normal, and completely independent and active life, doing all cooking, laundry and cleaning and driving to visit friends or go shopping. She enjoyed Pilates and gardening. She also enjoyed domestic and overseas travel; 1. Mrs Pond noticed in about December 2021 that she was developing some SOB, which accorded with the evidence of her grandson Jeremy who was at that stage living with her; 2. The medical records reflect that she had been complaining of SOB and mild thoracic back pain since May 2021 (exhibit F pages 170-177), and a new radiological finding was made of a small right sided pleural effusion. Her symptoms were SOB, pain and fatigue, and she required domestic assistance from about October 2021 because of her symptoms of mesothelioma; 3. From mid-2021, Mrs Pond's condition deteriorated, she complained of not feeling well and had back pain, and she had had numerous courses of antibiotics. At T26.6-10, the plaintiff described that her mother sounded more breathless on the telephone; 4. Jeremy described his grandmother's health as deteriorating as she stopped doing things around the house, and everything became hard for her, she became short of breath when trying to do things and she stopped eating normally; 5. By Christmas 2021, Mrs Pond was very unwell, was often 'puffed out' and complaining of thoracic pain. She was uncharacteristically untidy and was struggling to get in and out of bed; 6. Having undergone a CT scan on 28 January 2022, a 'moderate to large pleural effusion' was found and Mrs Pond attended her oncologist, Dr Tracy Dunlop, and provided a history of increasing breathlessness, chest heaviness and insomnia (exhibit F page 184); 7. On 7 February 2022, 45 millilitres of fluid was drained from Mrs Pond's right pleural effusion, and on 1 March 2022 Mrs Pond underwent a bronchoscopy, right VATS, thorascopic pleural drainage, pleural biopsy and talc pleurodesis. After the surgery, Dr Dunlop told Mrs Pond she likely suffered from mesothelioma. 8. The surgery knocked Mrs Pond around and she was in pain and required analgesic medication which made her confused. She was unsteady on her feet and needed help to walk. She also had a chest drain inserted in her pleura until 5 March 2022. 9. At the hospital, Mrs Pond was extremely anxious because she knew exactly what was coming having seen her husband pass from mesothelioma some 16 years ago: T42.34-38. 10. On numerous occasions when the plaintiff visited her mother, Mrs Pond said 'Please don't leave me, can you stay, I want you to stay.': T42.41-43. 11. Mrs Pond was discharged from hospital on 6 March 2022, at which time she was lethargic, tired, clammy, sweaty, constipated and complained of pains in her abdomen: T43.7-11. 12. On 7 March 2022, when the plaintiff was leaving for the airport to fly home to Melbourne with her husband and son, Mrs Pond said to her: 'Please don't leave me, I need you, I think I'm really going to need your help.': exhibit A at [10] and T43.22-26. 13. Mrs Pond was again admitted to hospital for constipation and was discharged on 11 March 2022. 14. Mrs Pond had a video conference with Dr Dunlop on 16 March 2022 when Dr Dunlop confirmed the diagnosis, and that unlike the previous cancers that Mrs Pond had experienced, there was no cure for this one. Mrs Pond was shocked and said 'This is what dad had' and the plaintiff described her reaction: T43; 'You could see in her face she knew this was not something she could beat'. 15. On 19 March 2022, Mrs Pond relocated to Melbourne to live with the plaintiff until her death on 27 September 2022, and as such she was not able to see her friends and other family who lived in Sydney. 16. Mrs Pond suffered severe anxiety as a result of her symptoms and her diagnosis of mesothelioma. 17. Mrs Pond suffered from several falls in 2022 including an unconscious fall on 1 July 2022 that required an ambulance and hospitalisation. She remained at significant risk of falls. 18. Mrs Pond's condition deteriorated and from 1 June 2022 she required fulltime care and supervision as she was unsteady on her feet, breathless on any exertion, required oxygen, was hypoxic, sometimes confused, highly anxious and very unsteady on her feet even when using a four-wheel walker. 19. Mrs Pond required care during the day and night and would become anxious when she was left alone, even for short periods of time such as when the plaintiff went upstairs to shower. 20. The terminal phase of Mrs Pond's mesothelioma began in about late May 2022. 21. Mrs Pond died as a consequence of her mesothelioma on 27 September 2022 in the plaintiff's home.

Interest on General Damages

1. The appropriate calculation is 2% from the commencement of symptoms, 1 December 2021 to the date of death, 27 September 2022, and thereafter at 4% until date of judgment, 21 July 2023, as agreed by the parties.
2. Interest on general damages in the period 1 December 2021 to 27 September 2022 at 2% is $7,397.26.
3. Interest on general damages in the period 28 September 2022 to 21 July 2023 at 4% is $14,726.85.
4. The total interest on general damages is $22,124.11.

Loss of Expectation of Life

1. The plaintiff submits that the appropriate figure for loss of expectation of life is $13,630.00. The defendant submits it ought be $12,800.00. Mrs Pond was 76 years of age when she passed, and thus on the life expectancy tables, Mrs Pond had a life expectancy of 13.5 years. Given the convention in the Tribunal, I award the figure of $13,500.00 for loss of expectation of life.

Out-of-Pocket Expenses

1. Any claim for out-of-pocket expenses has been abandoned.

General Principles

1. Section 15A of the Civil Liability Act 2002 (NSW) ('CLA') applies to the determination of civil liability for damages for gratuitous attendant care services (often referred to as 'Griffiths v Kerkemeyer damages': Griffiths v Kerkemeyer (1977) 139 CLR 161 ('Griffiths') in proceedings brought under s 11 of the Dust Diseases Tribunal Act 1989 (NSW).
2. 'Attendant Care Services' are defined in s 15(1) as follows: '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 Attendant Care Services' means attendant care services: (a) that have been or are to be provided by another person to the claimant, and (b) for which the claimant has not paid or is not liable to be paid.'
3. The principles that guide an assessment of the value of gratuitous services are uncontroversial and well established: Griffiths at 173- 4; 192-3; Van Gervan v Fenton (1992) 175 CLR 327 ('Van Gervan') at 338-340; Kars v Kars (1997) 187 CLR 354 ('Kars') at 361, 369 - 370, 374.
4. A plaintiff may recover for gratuitous attendant care services, both past and future rendered necessary as a result of the injury: Griffiths at 183 and Van Gervan. Damages are generally to be calculated by reference to the market costs of the services provided and are not to be reduced by invoking notions of marital or familial obligations to provide the services free of charge or at less than market rates: Van Gervan at 335. In some cases the market costs may be too high to be the reasonable value of the services: Van Gervan at 333. The service provided must also be reasonably required: Griffiths at 164.
5. Damages for gratuitous services are recoverable by a plaintiff for the loss of capacity which occasioned the need for the services. Once the need for the services is demonstrated, the plaintiff does not have to show that the need is, or may be, productive of financial loss: Griffiths at 173-175, 193; Van Gervan at 333, 340, 347; Kars at 361, 369 - 370, 374.
6. Where the defendant's tort creates a need for services to be provided to the plaintiff, the plaintiff is entitled to elect to have them performed gratuitously or to pay for similar services: Van Gervan at 338.
7. Gratuitous services are gratuitous in the sense that they are services provided without payment by the plaintiff and without incurring any legal obligation to pay: East Metropolitan Health Service v Martin [2017] WASCA 7 (13 January 2017) at [107], citing Griffiths at 163, 170, 191, 193 - 194.
8. Thus, 'gratuitous' is not a reference to whether the services are provided without payment to the provider of the services.
9. The fact some of the services may have been provided to Mrs Pond regardless of her disease is irrelevant. The defendant is not entitled to a credit for any care, supervision, or service which her daughter and family may have provided to her had she not suffered disability, where there is no pre accident proven need for such a service: Van Gervan at 338 (Mason CJ, Toohey and McHugh JJ); Whyte v Seenikatty (Supreme Court of Western Australia 6 March 1996) 16-21 (Parker J) at p.16-21 (with whom the other members of the Court agreed).
10. Damages may be awarded in respect of attendances on Mrs Pond by close family whilst she was in hospital recuperating and in need of solace and comfort: Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523; Chapman v Katheappa [2002] WADC 47 [76] (an appeal was allowed in Katheappa but not in relation to this item: Chapman v Katheappa [2003] WASCA 50).
11. Damages can include compensation for the provision of passive care, which includes forms of protective attention, such as constant supervision and the availability to step in, in the case of an emergency: Van Gervan at 344 (Deane and Dawson JJ); Amaca Pty Ltd v Raines [2018] NSWCA 216 at [67]-[70] and [160]-[163].
12. Section 15A of the CLA limits the hourly rate payable in the assessment of damages for dust-related conditions to the amount specified in s 15(5). There is no longer any dispute that the appropriate hourly rate is the rate under the CLA, and the parties have agreed to use the rate of $34 per hour for the entirety of the period that I determine to be appropriate.
13. The plaintiff tendered and relies upon a report of Natala Cogger, Occupational Therapist (exhibit C), who was not required for cross-examination.
14. The defendant called Ms Harvey, Occupational Therapist, and tendered her report of 11 October 2022 and her handwritten notes (exhibit 7) based on her assessment of Mrs Pond on 2 September 2022. The contents of her recommendations for Mrs Pond are contained within her report.
15. This is a case where the evidence of the occupational therapists is of limited assistance. Their assessments were of limited duration (and Ms Harvey did not have access to, nor did she request, Mrs Pond's medical records). The prognostications of each occupational therapist as to the future are irrelevant. In my view, all of the care needed by Mrs Pond was in the past. To my mind, the best evidence of need for care is that of the care giver and the contemporaneous medical records.
16. In her report, Ms Harvey described the circumstances she observed in her interview with Mrs Pond and the plaintiff on 2 September 2022. She recorded matters as set out in the defendant's written submissions at [62].
17. A significant issue between the parties was how much care Mrs Pond needed and for how long. Ms Harvey gave evidence over a number of hours before me during the course of the trial. The plaintiff's submissions as to her evidence are contained in the plaintiff's written submissions at [78]-[120]. The defendant's submissions are contained at [61]-[92]. I do not propose to repeat those submissions although I have had regard to them.
18. With regard to the question as to whether Mrs Pond needed full-time attendant care and services, the defendant relies on the following: 1. The sworn evidence of Mrs Pond, contained in her affidavit should be preferred to the evidence given by her daughter, the Plaintiff. The plaintiff gave evidence about the pain her mother was in during examination-in-chief and in cross-examination. 2. That the sworn evidence given by Mrs Pond describes little pain, and as such, the evidence of the plaintiff as to this aspect should be rejected, and the plaintiff's evidence as it is also inconsistent with the evidence of the occupational therapists. 3. The plaintiff's evidence was that her mother 'was not the complaining type' who always dumbs thing down (T37). The defendant points to that page of the transcript and suggests that the evidence of the plaintiff was 'emblematic of Mrs Armitage's attempts to suggest that Mrs Pond was in truth suffering from pain where Mrs Pond did not suggest that she was'. 4. The concession made by the plaintiff about the poor state of her memory, and that she made no attempt to catalogue the hours that she spent caring for her mother, suggests that I ought not accept her evidence. 5. With regard to Mrs Pond's cognitive ability, although she may have been forgetful, and on one occasion she couldn't use her iPad, she did not need 'round the clock' care from 1 June 2022, and there is no basis for the Tribunal to conclude she needed full-time care. 6. Mrs Pond was generally mobile and could move around the house with the assistance of a walker, she was not a fall-risk and had mobility around the home. 7. The plaintiff recalled two instances of Mrs Pond falling, the first being not long after Mrs Pond moved to Melbourne, and a second fall on 1 July 2022 when she was returning into the house from the alfresco area, when she was not using her walker. The defendant states at [43] of the Defendant's written submissions 'provided that she used her walker, she did not present a significant falls risk that necessitated full time observational or stand-by care'. 8. The medical evidence details five falls in all and the defendant asserts that the alleged care required after a fall risk is limited to that of contacting emergency services after a fall, which can be saved by Mrs Pond wearing a personal medical alarm or monitor. Ms Harvey did not accept that Mrs Pond needed an alarm and was not aware that one had been ordered for her at the time of her assessment of Mrs Pond. 9. The plaintiff's evidence about what she inferred about her mother's anxiety can be accepted as a natural human reaction of a person in the terminal phase of a disease. However, this claim of acute anxiety must be viewed in the context of the medical evidence noting that there was no qualified medical evidence to demonstrate that Mrs Pond's anxiety or other disorder would warrant full-time care.
19. Finally, the defendant asserts that the plaintiff's motivation to care for her mother was to ensure that her mother was in comfort rather than acting in response to a need to address a matter of care that Mrs Pond could not provide for herself.
20. Having regard to all of the evidence, there can be no doubt that Mrs Pond suffered greatly as a consequence of a disease that robbed her of her independence, her strong character despite a very difficult life, any enjoyment of her family and friends, and ultimately her life.
21. Mrs Pond's pain and suffering during the course of her affliction with mesothelioma was horrific and immense. She suffered both physically and mentally. At all times she was aware of the terrible fate that awaited her because her husband David had died of the same terrible illness some 16 years before her.
22. In every sense, Mrs Pond's life was destroyed by the mesothelioma. She died a miserable death made worse by her acute and anxiety-stricken awareness of its inevitability and imminence. She had seen it all before. She knew she was 'following in her husband's footsteps'.
23. An analysis of Ms Harvey's evidence begins with an acknowledgement that there are three sources of information upon which an Occupational Therapist ('OT') must base recommendations as to appropriate care and assistance, in my view. Firstly, observation and functional assessment; secondly, histories provided by the patient and persons involved in providing care; and thirdly, contemporaneous medical and clinical records in respect of the patient's health and level of function. If a patient has had an injury or a condition prone to fluctuations in the nature, extent and severity of symptoms (good days and bad days), the patient's level of functioning observed by the OT during a limited window of observation (say 2 hours) must, by definition, be of limited utility and potentially misleading.
24. In these circumstances, obtaining a comprehensive and detailed history and examining the medical and clinical records, acquire a heightened level of significance. I accept in this case, where all the care is in the past, the expertise and limited nature of the observations of the OT are of marginal relevance.
25. In my view, the history taken by Ms Harvey was deficient. She was not provided with, and nor did she request, medical and clinical records. She did not take a detailed history of important and critical events. In these circumstances, I find that the evidence of Ms Harvey is of limited assistance in determining the ultimate question of Mrs Pond's need for care as a consequence of her mesothelioma.
26. Her observations during her examination of Mrs Pond on 2 September 2022 are summarised at [80]-[81] of the plaintiff's written submissions, and I do not propose to repeat them here.
27. However, the following passage from her report is important: 'She described how she had lost her appetite and was "wobbly" and declined further treatment (paragraph 30.0 page 6), had been experiencing anxiety "…regarding her condition and her terminal prognosis. She described herself as having "an active mind", waking at night and ruminating…' (paragraph 6.3 page 7)
28. At paragraph 6.3, page 8, Ms Harvey notes that Mrs Pond described taking pain medications including morphine. Pain was reported to be spontaneous at times, as well to increase with activities and shortness of breath.
29. Importantly, what is absent from Ms Harvey's report is any mention of Mrs Pond's longstanding hypoxia and that Mrs Pond's husband died of mesothelioma some 16 years ago. I find that these are critical matters if a proper assessment of the care needed is to be assessed. Ms Harvey later conceded that these were omissions on her part (T146.6-10).
30. Furthermore, despite the significant history of Mrs Pond having had multiple falls, absent from Ms Harvey's report is any detail in relation to the circumstances of the falls. She makes no comment as to whether she considered Mrs Pond to be a falls risk, and it appears that at least in her report, Ms Harvey had not considered this to be a significant issue that needed attention. To my mind, this is a critical issue that she has overlooked, and affects the totality of her evidence.
31. Under the heading 'Occupational Therapists Recommendations' commencing at paragraph 6.8 of her report Ms Harvey concluded as follows: 'Mrs Pond is currently well supported by her family in Melbourne. She is able to mobilise independently through the home with a 4 wheel walker. She experienced dyspnoea, pain and fatigue, and would rest as required. She has been set up with a powered adjustable bed, commode, shower seat and a power tilt chair for rest. She uses oxygen through the day and morphine for pain management. Mrs Pond has family assistance to wash and dress and fetch and carry intermittently. She can get a drink and feeds herself, noting a low appetite. Mrs Pond is able to manage at home on her own for short periods, with access to a pendant alarm for emergency contacts. They just got her a pendant alarm. Basic activities take time due to dyspnoea and rest required.' (page 17) [emphasis added]
32. Based on this passage, it is hard to see how this is not an expert opinion provided by Ms Harvey, that Mrs Pond required someone to be on call for her day and night, should something happen and she could not look after herself.
33. I accept the plaintiff's argument that an examination of the letter of instruction (defendant court book, tab 2, page 42) reveals that Ms Harvey was unfortunately asked to consider the wrong questions which are not in accord with the principles set out in the High Court in Griffiths and Van Gervan. Importantly, she was asked to consider a number of matters including the following: '(e) In the period from March 28 2022 to date, to what extent has there been an increase in the overall work load of Davina and/or members of her household in order to provide care and assistance to the plaintiff [for example, what extra time has been taken by Davina and/or her household in cooking, cleaning, laundry etc beyond that which Davina and/or her household undertook in respect of their own needs prior to the plaintiff's relocation]? … (f) Assuming the plaintiff does not enter respite care or hospice care but rather remains living with Davina and her household for the balance of her life, what level of personal care and/or domestic work will the plaintiff require from Davina and/or members of her household beyond that which Davina and the members of the household would have undertaken their own needs?'
34. I note that Mrs Pond was never a member of the plaintiff's household until she moved there to be cared for because of her mesothelioma. To assess this question on the basis of the above would in my view be incorrect.
35. In her evidence before me, Ms Harvey expressed that in her opinion Mrs Pond was not a falls risk (T124.19-20). However, it became apparent that Ms Harvey did not consider the question of falls, did not indicate that Mrs Pond had hypoxia, as she had not asked Mrs Pond or the plaintiff about the circumstances in which Mrs Pond had fallen previously.
36. Nor did she ask other than cursory questions in respect of Mrs Ponds symptom of anxiety. She conceded it was a common feature in patients who were dying of mesothelioma that they suffered from increased anxiety (T144.20-21). Ms Harvey conceded before me that Mrs Pond would get nervous when her daughter went upstairs to have a shower, yet this would have no effect at all on her recommendations as to her care (T145.28-31). She did, however, finally concede that the alleviation of anxiety would include a family member sitting with a patient, talking to them, and calming them down was a reasonable thing to do (T145.37-39).
37. Ms Harvey was a very unimpressive witness. She did not have available to her any clinical notes, nor did she ask for any, or believe that it was necessary for her to see them. She would not concede, amongst a number of other propositions based on the evidence from the plaintiff and Mrs Pond, that an example of her not conducting a proper assessment or careful or appropriate assessment was the failure by her to ask the solicitors to send her the medical notes that she accepted were critically important to her assessment and her recommendations (T146.24-28).
38. Importantly, Ms Harvey did not accept that Mrs Pond was a fall risk, and that full-time care was not required to deal with this risk and allowed for very limited care and assistance.
39. When it was put to Ms Harvey in cross-examination the fact that she could not have conducted a proper assessment without having had the benefit of access to Mrs Pond's medical records (which she admitted would have been very relevant to her recommendations), Ms Harvey disagreed (T146.29-31).
40. When it was suggested to her that if she had more information or better information or the kind of information that had been put to her in cross-examination from Mrs Pond's clinical notes that her recommendations may have been different about Mrs Pond's care she said, 'It may have, but not necessarily' (T146.34-36).
41. That response suggests to me that she would say anything, or at least caveat her answers such that she could minimise the amount of care that Mrs Pond, a woman dying from a horrible cancer, who had seen her husband die before from the same cancer, would potentially be entitled to. Her evidence in this regard was so partisan, I find that it is of little assistance to the Tribunal.
42. In support of my finding above the following exchange took place: T132.24-38: 'Q. In her state, as you saw her on 2 September, if Mrs Pond did not have any family at all, could she live by herself at home. A. If she had the required care services. Q. Those required care services would be commensurate with the kinds of things that you recommended on 2 September. A. Yes Q. That she would always need someone there or someone available to be on call in case there was a problem or an emergency, do you accept that. A. No, I Don't Q. What would happen if she had a fall. A. If someone has a fall when they are home, then they - then they have to - she would have people coming in to provide her with care. They would have to access to emergency services. Q. Sorry, could I - I see. How? How would the emergency services people know that she was on the floor. A. By the people that are coming in to provide her with assistance. Q. I see, so she would have to wait for the next person that was scheduled to come in to find her on the floor and ring an emergency number, is that what you are saying. A. Yes Q. I see, do you think that this is a reasonable thing in this case. A. I didn't consider in this case that she was at risk of having a fall.' (T132.24-38)
43. I find this passage of Ms Harvey's evidence troubling. She is in my mind suggesting that an elderly lady, in the end stages of a terminal condition could be left lying on the floor if she had a fall, which there is evidence to indicate that she had done so on a number of previous occasions, until the next carer turned up, whenever that might be.
44. Not only did Mrs Pond have a history of falls, was hypoxic, was seen to be unstable on her feet, required regular morphine and was also using oxygen, I find the concept of leaving her there until someone else turned up abhorrent.
45. It leaves a tenor to all of Ms Harvey's report which included a recommendation that Mrs Pond only required one hour a day of supervision, that she did not require overnight care and her oral evidence, such that I do not accept her recommendations.
46. The defendant asserts that during cross-examination, the plaintiff was shown, and was asked questions about, the expert report prepared by Ms Harvey, and was asked if she agreed with Ms Harvey's conclusions and the responses to this line of questioning are summarised at [59]-[60] of the defendant's written submissions, which I do not propose to repeat. They also submit that Ms Harvey's assessment of Mrs Pond's abilities is consistent with what Ms Emily Munoz said in her NSW iCare report (pages 342-356 of exhibit F).
47. The defendant asserts that it is apparent from the text of the report that Ms Munoz's report was based on her observations and discussions with Mrs Pond and Mrs Armitage on 5 September 2022. A summary of Ms Munoz's report is found at [65] of the defendant's written submissions, which I do not propose to repeat.
48. The plaintiff tendered an expert report of Natala Cogger prepared on 8 July 2022 (exhibit C) after her examination of Mrs Pond on 19 May 2022. The defendant accepts that I should accept Ms Cogger's assessments for the period 1 December 2021 to 19 May 2022, or say 1 June 2022, subject to certain deductions and adjustments.

Further evidence as to care

1. Much of the evidence in relation to Mrs Pond's need for care has been canvassed above. It establishes that Mrs Pond required significant care and assistance as a result of her mesothelioma and, further, that from at least 1 June 2022 she required full-time care and supervision.
2. As noted above, the plaintiff was the primary care giver for Mrs Pond.
3. Mrs Pond first required care from about October 2021. Jeremy Pond, who was living with his grandmother in October 2021, gave uncontested evidence that a couple of months before Christmas 2021, his grandmother's health deteriorated and she stopped doing things around the house. If she tried to do anything, he saw that she got short of breath. As a result, Jeremy started doing things around the house including cooking every day, mowing lawns on Sundays and, cleaning the floor doing what he could around the house. His uncle Chris began driving Mrs Pond to appointments.
4. Mrs Pond's neighbour, Kerry, also assisted with tasks around the house 1-2 hours a week and a friend also took Mrs Pond to appointments if Chris was not available.
5. From Christmas 2021 until Mrs Pond moved to Melbourne on 19 March 2022, the plaintiff regularly visited. When she was in Sydney, the plaintiff picked up the slack around the house because her mother was visibly breathless doing anything.
6. The plaintiff estimates that she provided her mother with at least 30 hours of care a week while she was in Sydney including preparing meals, tidying up after meals, floor and bathroom cleaning, dusting, changing bed linen, laundry, shopping, running errands, lawn, garden and pool maintenance, driving and accompanying to medical appointments and packing to relocate to Melbourne.
7. While Mrs Pond was in hospital, the plaintiff visited each day, liaising with doctors and hospital staff, taking her dirty laundry, bringing her clean clothes. She took and picked her up from the hospital. The plaintiff estimates that she spent at least 3 hours per day caring for her mother while she was in hospital. In her evidence, the plaintiff confirmed the care to her mother while she was in hospital was 3-5 hours per day.
8. From the time Mrs Pond relocated to Melbourne she was unable to do any domestic work. She could not go to the shops.
9. The plaintiff gave the following evidence that her mother required full-time care from 1 June 2022: 'From 1 June 2022, aside from the two occasions when my mother was in Westin Private Hospital, I was looking after her on a fulltime basis. Not only was my mother incapable of any domestic tasks, but she required assistance to get out of bed, on and off chairs and the toilet, when walking, showering, dressing, making special meals and encouraging her to eat, bringing her drinks and snacks throughout the day, managing medication, managing her appointments, assisting her at night with pain medication and going to the toilet and assisting her when she became anxious. This care continued day and night up until her death.' (exhibit A at [51])
10. Even though Mrs Pond was said to be able to mobilise independently with a four-wheel walker, the plaintiff's evidence was that she was unsteady on her feet even with a walker, that she hit the wall and that from May 2022 the plaintiff needed to walk behind her (T103). The plaintiff gave evidence that her mother could not walk on her own or get herself up (T45.12). The plaintiff needed to position the four-wheel walker for her when getting in and out of her recliner chair (T103.48-104.7).
11. The care provided to Mrs Pond included alleviating symptoms of her anxiety. The plaintiff gave evidence that Mrs Pond suffered from anxiety from the time she moved to Melbourne (T94.22). The plaintiff gave evidence about her mother describing racing thoughts and that she wished she would not wake up (T49.13).
12. The issue of Mrs Pond's anxiety is a matter of great significance. Mrs Pond had a hard life, she suffered and beat cancer on 3 previous occasions, and had an active and fulfilling life until her mesothelioma manifested itself. Mrs Pond had seen her husband pass away from mesothelioma and was consequently said to be anxious.
13. One can only imagine how she truly felt. She was the elder of the family, her husband having passed. Her mesothelioma was contracted from her late husband's clothes, and she had watched him die from the same hideous disease. It is common knowledge that the suffering of a death from mesothelioma is painful and torturous. The symptoms proceed unabated and often unable to be controlled by medication. Mrs Pond's pain was such that she was 'swigging Ordine straight from the bottle' (T13.14-16; T143.9-11).
14. The plaintiff testified that her mother was scared (T49.9) and that the care provided by the plaintiff to her mother included alleviating symptoms of her anxiety, which she said commenced when she moved to Melbourne (T94.22). The plaintiff gave evidence of her mother describing racing thoughts (T96.8) and that she wished that she would not wake up (T49.13).
15. Mrs Pond clearly was a determined lady who tried to press on as best she could, but ultimately it all became too much for Mrs Pond to do on her own. This unfortunately is not an unusual circumstance when someone is dying from mesothelioma.
16. Whether sitting next to her, rubbing her legs or back or just sitting with her, this is a vital need created by the negligence of the defendant. The care that was provided to Mrs Pond was warm, loving and necessary. As one never can anticipate when the next fall might be, when Mrs Pond may need toileting assistance or a change of clothing, or simply a hand to hold or someone to chat and be there, the only manner in which this need created by the tort is by fulltime care. Whether or not this care was provided is irrelevant, however, here the appropriate loving care was provided by the plaintiff, and importantly despite that circumstance, the plaintiff needed that care.
17. In my view there is a vast difference between caring for someone and giving care to them. Some care is physical and clearly demonstrative and calculable. But other care cannot be specifically defined by a portion of an hour or minutes, as emotional and psychological care is an ongoing obligation and thus a need.
18. One cannot describe precisely what is care, for example someone can't carry their coffee or attend to soiling of clothing and to do so is dehumanising. But to speak, engage and support someone in those circumstances is a crucial part of meeting the needs created by the tort.
19. Care may have been provided by others instead of the plaintiff but that does not diminish the need, whether the plaintiff was being paid or not is not exemplary of the hours she was at home as someone else could have stepped in.
20. It would be impossible to guess when she might fall or soil herself but to suggest that she should lie there until the next carer arrives is inhumane.
21. The plaintiff testified that her mother was scared (T49.9) and did not want to be alone (T42.43). If she went for a shower upstairs, her mother would question her as to where she was going and when she was coming back. She would say to her 'don't be long'. If the plaintiff had to go and pick up her son from after school care, her mother would ask her where she was going and how long would she be. Sometimes Mrs Pond would ask to come, and especially towards the end, the plaintiff would take her (T49.18-24).
22. On the occasions when the plaintiff left her mother for a period of 10 minutes, her mother would be sitting in a reclining chair asleep or watching TV and that before she left, she got her some water, put on her oxygen, tucked her in with a blanket, told her not to move and she would be back in 10 minutes. At times, when she tried to leave, Mrs Pond would ask to come with her because she was very anxious being left alone (T84.21-33).
23. The plaintiff said that from June 2022 she provided care to her mother overnight. Her mother would press the doorbell her husband had rigged up if she wanted to use the bathroom or if she had woken up or could not get to sleep. Sometimes when the plaintiff would go down to her mother, her mother did not know what she wanted or why she pressed the doorbell, but she just wanted her there and the plaintiff would sit next to her and rub her legs or her back. Sometimes she would just sit there and talk (T49.18-24).
24. The plaintiff was cross-examined about her mother's ability to get out of a recliner chair and in and out of bed. While the plaintiff conceded that her mother could do these tasks, she gave evidence that she struggled to do so (T86.21). Similarly, she gave evidence that while her mother could make a hot drink, she would spill it (T86.84). While Mrs Pond was able on occasions to use a commode herself, the plaintiff gave evidence about times when her mother defecated herself and she had to clean her up (T90.21).
25. The evidence referred to in the preceding paragraph is important. To the extent the defendant relies on Ms Harvey's observations that Mrs Pond could do certain things, it ignores Mrs Pond's struggle and the consequences of her attempting to do these things - significant shortness of breath, need to sit down and rest between every room, and increased pain on any exertion. The point of the assistance given by the plaintiff was to alleviate these terrible symptoms brought on by the very kinds of activities Ms Harvey asked Mrs Pond to do. The other problem with the defendant's approach to care is that it simply elides Mrs Pond's significant need for on call assistance in order to alleviate her severe anxiety and fear, let alone her proven risk of falls, incontinence and pain.
26. Based on the contemporaneous medical records and the lay evidence called by the plaintiff, the facts in relation to what happened to Mrs Pond, and the nature and extent of her pain and suffering and need for care, are clear.
27. The parties helpfully agreed the sum of $34.00 per hour is appropriate for the entire period.
28. Below are tables of the care that I find Mrs Pond needed and the calculations thereon: Past Griffiths v Kerkemeyer (s 15A) Damages: 1. 1/10/2021 to 28/02/2022: Weeks Hours Per Week Services Hourly Rate Total Cost 21 14 Laundry, cooking, cleaning, shopping, lawn, garden and pool maintenance. Transport, liaising with doctors and hospital staff, collecting and returning laundry. $34.00 $9,996.00

1. 01/03/2022 to 5/03/2022 - St George Hospital - 5 days: Hours Services Hourly Rate Total Cost 3 hrs per day = 15 Transport, liaising with doctors and hospital staff, collecting and returning laundry $34.00 $510.00

1. 06/03/2022 to 07/03/23 - 1 day: Hours Services Hourly Rate Total Cost 8 Preparing meals and tidying after meals, floor and bathroom cleaning, dusting and tidying, changing bed linen, laundry, shopping, running errands, lawn, garden and pool maintenance, sorting and packing. Transport and accompanying to and from medical appointments and treatment and access the community. $34.00 $272.00

1. 08/03/2022 to 11/03/2022 - Sutherland Hospital - 4 days: Hours Services Hourly Rate Total Cost 3 hrs per day = 12 Transport, liaising with doctors and hospital staff, collecting and returning laundry $34.00 $408.00

1. 12/03/2022 to 20/05/2022: Weeks Hours Per Week Services Hourly Rate Total Cost 10 30 Preparing meals and tidying after meals, floor and bathroom cleaning, dusting and tidying, changing bed linen, laundry, shopping, running errands, lawn, garden and pool maintenance, sorting and packing. Transport and accompanying to and from medical appointments and treatment and access the community $34.00 $10,200.00

1. 21/05/23 to 31/05/2023 - 10 days: Hours Per Day Services Hourly Rate Total Cost 3 Preparing meals and tidying after meals, floor and bathroom cleaning, dusting and tidying, changing bed linen, laundry, shopping, running errands, lawn, garden and pool maintenance, sorting and packing. Transport and accompanying to and from medical appointments and treatment and access the community $34.00 $1,020.00

1. 01/06/2022 to 27/09/22 (Mrs Pond's date of death) less 10 days for hospitalisation at Western Private Hospital; calculated separately below Weeks Hours Per Week Services Hourly Rate Total Cost 15 168 Supervision throughout the day with all transfers getting out of bed, chairs and on and off the toilet) and when walking, assistance with showering and dressing, fetching and transporting meals, snacks, drinks and other items throughout the day, assistance at night to toilet, manage medication, diary and finances, assistance overnight with toileting and managing medications and while the plaintiff is sleeping preparing meals and tidying after, floor cleaning, bathroom cleaning, bed making and changing bed linen, laundry, running errands, collecting medication and shopping, relieving anxiety, liaising with icare, palliative care, doctors, purchasing equipment. $34.00 $85,680.00

1. 16/06/2022 to 21/06/2022 and 01/07/2022 to 05/07/2022 - Western Private Hospital - 10 days: Hours Services Hourly Rate Total Cost 3 hrs per day for 10 days Transport, liaising with doctors and hospital staff, collecting and returning laundry $34.00 $1,020.00

1. Total Griffiths v Kerkemeyer Damages = $109,106.00 2. Schedule of Damages: General Damages $ 450,000.00 Interest on General Damages 22,124.11 Loss of Expectation of Life 13,500.00 Past Griffiths v Kerkemeyer Damages 109,106.00 Interest on Past Griffiths v Kerkemeyer Damages 10,566.21 Total: $ 605,296.32

Orders

1. I make the following orders: 1. Judgment for the plaintiff against the defendant in the sum of $605,296.32. 2. The defendant to pay the plaintiff's costs on an ordinary basis as agreed or assessed up to and including 7 December 2022. 3. The defendant to pay the plaintiff's costs on an indemnity basis as agreed or assessed from 8 December 2022.

Amendments 22 August 2023 - Orders of 21 July 2023 revoked and further orders made on 11 August 2023 (as follows): (see cover page and at paragraph 131):

Orders of 21 July 2023 (revoked on 11 August 2023): (1) Judgment for the plaintiff against the defendant in the sum of $605,296.32. (2) I reserve the question of costs. (3) I order the defendant to respond to the plaintiff's submission with regard to indemnity costs from 8 December 2022 within 7 days.

Orders of 11 August 2023: (1) Judgment for the plaintiff against the defendant in the sum of $605,296.32. (2) The defendant to pay the plaintiff's costs on an ordinary basis as agreed or assessed up to and including 7 December 2022. (3) The defendant to pay the plaintiff's costs on an indemnity basis as agreed or assessed from 8 December 2022. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2023