Cockatoo Dockyard Pty Limited v George Hartwell Gifford

AB v South West Water Services Ltd [1993] QB 507 Campbelltown City Council v McKay (1989) 15 NSWLR 501 CSR Ltd v Thompson (2003) NSWCA 329; (2003) 59 NSWLR 77 CASES CITED: Hunter Area Health Services v Marchlewski [2000] NSWCA 294; (2000) NSWLR 268 Kralj v McGrath [1986] 1 All ER 54 Skelton v Collins (1966) 115 CLR 94 Thurston v Todd (1966) 84 WN (Pt 1) (NSW) 231

PARTIES: Cockatoo Dockyard Pty Limited (Appellant) George Hartwell Gifford (Respondent)

COUNSEL: L King SC; JB Spinak (Appellant) A Katzmann SC; P A Horvath (Respondent)

SOLICITORS: Ellison Tillyard Callanan (Appellant) Turner Freeman (Respondent)

LOWER COURT JURISDICTION: Dust Diseases Tribunal of New South Wales

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40741/07

IPP JA BASTEN JA HANDLEY AJA

Ex tempore 3 July 2008 COCKATOO DOCKYARD PTY LIMITED v GEORGE HARTWELL GIFFORD Judgment 1 IPP JA: We were informed this morning by counsel that the plaintiff below has died. An order was then made appointing his widow as the legal personal representative of his estate in these proceedings. For convenience, I shall nevertheless refer to the deceased plaintiff as the respondent. 2 Between 1961 and 1968 the respondent was exposed to asbestos in the course of his employment with the appellant. In consequence he contracted mesothelioma. The diagnosis of the disease was made an 28 November 2006.

3 The respondent brought proceedings against the appellant in the Dust Diseases Tribunal relying on three causes of action, namely, negligence, breach of statutory duty, and breach of contract. In its defence the appellant did not admit that it was liable to the respondent under any of the causes of action pleaded. Nevertheless, at trial, the appellant accepted that liability was not in issue and the hearing before Curtis J concerned only the assessment of damages. 4 His Honour assessed general damages in the sum of $250,000 and interest on past general damages at $2,000.

5 The appellant appeals on one ground only, namely, that Curtis J "erred in law in including in his assessment of general damages an amount to compensate the plaintiff for a sense of outrage at the consequences of the claimant's carelessness". 6 The appellant did not dispute that damages for mental distress arising from the physical effects of the injury are compensable. Its basic argument was that Curtis J erred by including in the assessed damages an amount to compensate the respondent for his anger arising out of "the manner of commission of the tort". The appellant submitted that the respondent's anger that the appellant took no steps to protect him from the dangers of asbestos was not compensable; yet, it submitted, the judge took anger of that kind into account when assessing damages. 7 The appellant's argument turns substantially on a construction of his Honour's reasons. These have to be construed as a whole. 8 At an early stage in his reasons, Curtis J noted that two of the respondent's friends had died from mesothelioma and he was acutely aware of their suffering and death. When the diagnosis was made, the respondent was "terrified". The judge observed: "[h]e had reason for his terror".

9 His Honour went on to set out the extreme pain and suffering that the respondent suffered in consequence of the disease and the treatment he received. I shall mention but a few aspects of the more important features noted by the judge. 10 The surgeon who performed one of the several surgical procedures the appellant was required to undergo described it as "one of the most painful incisions known". Nevertheless, the respondent described the radiotherapy he received as the most painful part of his treatment (that is, even more painful than the incision in question). In consequence of his treatment the respondent developed atrial fibrillation. Several times he thought death to be imminent and he suffered great fear and anxiety, as well as depression. 11 Curtis J observed that the respondent was in constant severe pain, short of breath and tired. He had no appetite. After describing in detail the severity of the harmful interference the mesothelioma had had on the respondent's pattern of living, Curtis J said, "[f]ew more extreme examples of loss of enjoyment of life may be imagined". Prior to his illness, the respondent had had a full and active life, being involved in charitable pursuits related to his engineering profession, and several cultural, leisure and family activities that had given him much pleasure. He now had no capacity to partake in these activities. 12 His Honour proceeded: "[15] To a very large degree Mr Gifford is dependent on his wife who has given up her nursing career to care for him. He resents the loss of his independence and the burden that this has created for her. Before his diagnosis Mr Gifford had every expectation that he would enjoy many healthy years of life with his wife, children and grandchildren. He says that 'the prospect of this may not happen upsets me a great deal'. [16] Mr Gifford is angry that the defendant had cause to know that asbestos was dangerous and took no steps to protect him from its dangers. His damages must include compensation for his legitimate sense of outrage that the defendant's carelessness will rob him of his life, just at that moment when it had become most congenial." 13 After describing the terrible pain and suffering that the respondent was likely to experience in dying, Curtis J said: "[19] In the short life that remains for Mr Gifford he will suffer more physical pain than many seriously maimed or disabled persons suffer in a lifetime. He will suffer to no purpose, without hope of relief other than by his death."

14 His Honour concluded: "[20] Mr Gifford, in addition to the conventional sum intended as substitution for enjoyment in the lost years, is entitled to substantial compensation for that present mental anguish and rage occasioned to him by the knowledge that he is denied the capacity for future enjoyment. [21] Experienced counsel in this jurisdiction no longer distress dying plaintiffs with questions designed to elicit, in graphic terms and tears, the depth of their suffering. The Tribunal is entitled to draw upon human experience, and literature, in order to form conclusions in relation to the probable effect of a death sentence upon the victim."

15 The Civil Liability Act 2002 does not apply to the respondent's claims (see s 3B(1)(b) of that Act). Accordingly, the common law applies. It is trite that the common law recognises claims for mental trauma, not involving a recognised psychiatric injury, when the mental trauma is associated with physical harm caused by the negligence of the defendant; see, for example, CSR Ltd v Thompson (2003) NSWCA 329; (2003) 59 NSWLR 77 at [41]. The respondent in the present case suffered physical harm of a most severe kind. 16 An example of the common law is Kralj v McGrath [1986] 1 All ER 54 where Woolf J was concerned with a claim by a mother against an obstetrician who had attempted to deliver the mother's child by treatment described as "horrific and wholly unacceptable". The child was born with severe disabilities caused by the obstetrician's treatment and died eight weeks after birth. Woolf J (at 61), after observing that "it would be wholly inappropriate to introduce into claims of this sort, for breach of contract and negligence, the concept of aggravated damages", said: "I do, however, accept that the effect on a mother who during the course of her labour undergoes unnecessary suffering may be greater if this results not in the birth of a normal child but a child who is in the unfortunate condition that Daniel was here. It would be easier for a mother to forget or adjust to the consequences of that distressing experience if she has the comfort of a normal child. If instead of having the satisfaction of the birth of a normal child she has the distress of the knowledge that this child is disabled, subject to the disabilities that Daniel was, it would be more difficult for her to overcome the consequences and the unnecessary suffering may have a greater impact on her. What I am saying is no more than that what the court has to do is to judge the effect on the particular plaintiff of what happened to her. If the situation is one where the consequences are such that she feels able to make light of what has happened, then her loss is less than it will be where the situation is one where the impact of what has happened is accentuated because of the additional stress which the mother is undergoing at that time." 17 The reasoning expressed in Kralj v McGrath is, with respect, unexceptionable and reflects the law in Australia: See Hunter Area Health Services v Marchlewski [2000] NSWCA 294; (2000) 51 NSWLR 268 at [100] to [104] per Mason P (with whom Stein JA and Heydon JA agreed.) 18 In AB v South West Water Services Ltd [1993] QB 507 the English Court of Appeal struck out a claim for aggravated damages based on indignation at the defendant's conduct following a negligently committed public nuisance. The Court approved and followed Kralj v McGrath. Sir Thomas Bingham MR said (at 532-533): "I turn, lastly, to the claim ... for aggravated damages. The plaintiffs are of course entitled to be fully compensated for all they suffered as a direct result of the defendants' admitted breach of duty. The ordinary measure of compensatory damages will cover all they have suffered as a result of that breach, physically, psychologically and mentally. Full account will be taken of the distress and anxiety which such an event necessarily causes. To the extent that any of these effects was magnified or exacerbated by the defendants' conduct, the ordinary measure of damages will compensate. The question is whether, in addition to that full compensatory measure, the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damages. This is claimed in paragraph 27 on the basis that the plaintiffs' feelings of indignation were aroused by the defendants' high-handed way of dealing with the incident. I know of no precedent for awarding damages for indignation aroused by a defendant's conduct. Defamation cases in which a plaintiff's damages are increased by the defendant's conduct of the litigation (as by aggressive cross-examination of the plaintiff or persistence in a groundless plea of justification) are not in my view a true exception, since injury to the plaintiff's feelings and self-esteem is an important part of the damage for which compensation is awarded. In very many other tort actions (and, for that matter, actions in contract, boundary disputes, partnership actions and other disputes) the plaintiff is indignant at the conduct of the defendant (or his insurers). An award of damages does not follow: Nor, in my judgment should it, since this is not damage directly caused by the defendant's tortious conduct and this is not damage which the law has ever recognised."

See also Stuart-Smith LJ (with whom Simon Brown LJ agreed) at 527-528.

19 In Hunter Area Health Service v Marchlewski Mason P at [104] (with the concurrence of the other members of the Court) agreed with AB v South West Water Services Ltd and its reasoning.

20 No claim was made in the present case for aggravated damages but that fact is not presently relevant. The sole question on appeal is whether the anger and distress on the part of the respondent, which Curtis J took into account when assessing damages, were compensable in accordance with the principles expressed above. As I have mentioned, the appellant (rightly in my view) accepts that, if the judge approached the assessment of damages in this way, his Honour's reasoning was correct. 21 To repeat, therefore, this Court is now required to determine whether his Honour had regard to the respondent's anger and distress arising from the mesothelioma (that is, whether that anger and distress was "parasitic" on those injuries), or whether the anger and distress his Honour took into account was unrelated to the mesothelioma being caused by the manner in which the appellant breached its duty. 22 The appellant focussed on the passage in Curtis J's judgment which I have already set out, namely: "[16] Mr Gifford is angry that the defendant had cause to know that asbestos was dangerous, and took no steps to protect him from its danger. His damages must include compensation for his legitimate sense of outrage that the defendant's carelessness will rob him of his life, just at the moment when it had become most congenial." 23 The appellant submitted that Curtis J awarded damages for the "legitimate sense of outrage" felt by the respondent "in the context of the trial judge's findings that the respondent was '... angry that the defendant had cause to know that asbestos was dangerous and took no steps to protect him from its dangers ...'". The appellant submitted that, viewed in context, his Honour included in the general damages an amount to compensate the respondent for his anger at the appellant's failure to take steps to protect him from the dangers associated with asbestos exposure. 24 The appellant submitted that this conclusion was supported by the following statement the respondent made in an affidavit produced at trial: "I am very angry with what has happened. What makes me particularly angry is the fact that I have learned that asbestos was known to be dangerous prior to the time I started working for Cockatoo Dockyard but nothing was done to protect me and my workmates from its dangers". The appellant submitted that the respondent did not testify that his anger had any particular effect on his response to the disease. The correct question is whether his anger was part of his response to the disease. 25 Looked at by reference only to the evidence and the particular passage of his Honour's judgment to which I have referred, the appellant's argument has some force. But there are several other references in his Honour's reasons that elucidate precisely what his Honour had in mind when referring to compensation for the respondent's "legitimate sense of outrage". These are contained in the other passages that I have quoted above. 26 Curtis J referred (at [15] of his reasons] to the respondent's resentment for the loss of independence and the burden that this has created for his wife. His Honour referred (also at [15]) to the respondent's distress in not having his expectation fulfilled that he would enjoy many healthy years of life with his wife, children and grandchildren. The resentment and distress in question was directly caused by the mesothelioma. 27 The judge proceeded (at [16], in the passage principally relied on by the appellant) to say that "the respondent's damages must include compensation for his legitimate sense of outrage that the defendant's carelessness will rob him of his life, just at that moment when it had become most congenial." This statement, when seen in context, in my view is entirely orthodox. It reflects a view that the respondent is entitled to be compensated for his feelings of anger (or distress or despair, call it what you will - see Campbelltown City Council v McKay (1989) 15 NSWLR 501 at 511E-F per McHugh JA) caused by the reduction in his life expectancy brought about by the mesothelioma. 28 Significantly, in a concluding statement (at [20]), Curtis J said that the respondent was entitled to substantial compensation for his mental anguish and rage occasioned by the knowledge that his illness has denied him the capacity for future enjoyment of life. This statement speaks for itself. 29 His Honour's remarks to which I have referred make it plain that, in assessing damages, his Honour had in mind the respondent's anger caused by the mesothelioma. 30 The absence of evidence by the respondent expressly linking his feelings with mesothelioma is not conclusive, particularly having regard to what the judge said at [20] and [21] of his reasons. I would refer also to Thurston v Todd (1966) 84 WN (Pt 1) (NSW) 231 where Jacobs JA, after referring to the view expressed by Taylor J in Skelton v Collins (1966) 115 CLR 94 that the subjective and objective elements of a loss should be treated together as a composite loss where there is a subjective element, said (at 242): "The importance of this approach is that it would leave open the course of regarding both elements as part of a composite whole and assessing damages on this head by a standard of what a person in the position of the particular plaintiff in all the circumstances would lose and would in the normal course appreciate that he or she had lost by the injury. Upon such an approach the absence of evidence of grief and mental suffering would not debar the tribunal of fact from allowing a very substantial amount for the reasonably expected sense of loss of expectation of life, amenities of life and enjoyment of life. It seems to me that such an approach would be in accord with the previous understanding of what a person in possession of his faculties was entitled to by way of damages for future loss of expectation of life even in the absence of evidence of grief or worry or dismay or anger or any particular subjective reaction which had occurred or was likely to occur in the particular person."

31 The context, in my view, demonstrates that the appellant's argument is unfounded. I am not persuaded that Curtis J included in the assessment of damages any award for anger unconnected to the consequences of his illness. 32 In the circumstances I would dismiss the appeal with costs. 33 BASTEN JA: I agree with Justice Ipp. 34 HANDLEY AJA: I agree. 35 IPP JA: The order of the Court would be the appeal is dismissed with costs. Indemnity costs payable by the Appellant to the Respondent as from 4 December 2007.

05/08/2008 - Counsel for Appellant should read L King SC; JB Spinak Counsel for Respondent should read A Katzmann SC; PA Horvath - Paragraph(s) Coversheet

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