CSR LTD v JAN BOUWHUIS

Court of Appeal (NSW)|1991-08-23|Before: Kirby P, Samuels JA, Priestley JA

KIRBY P, SAMUELS and PRIESTLEY JJA 19 August, 23 August 1991

APPEAL - fresh evidence mesothelioma - shorter life expectancy - new evidence rejected. Doherty v Liverpool District Hospital, CA, 13 March 1991 followed. PRACTICE - adjournment to allow review by Dust Diseases Tribunal refused INFERIOR COURTS and TRIBUNALS - DDT proper approach to review power. DAMAGES - voluntary home care- gross or nett rates GIO v Planas [1984] 2 NSWLR 677 applied. DAMAGES - use of like cases fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 dise'd

APPEAL - fresh evidence - belated application to offer new evidence in appeal -

plaintiff suffers terminal mesothelioma - contest in Dust Diseases Tribunal concerning his life expectancy - Tribunal estimates 8 months application for

expedition of hearing of appeal - medical evidence tendered - prognosticates life expectancy of days or weeks - tender by appellants of such evidence in appeal held: (by the Court).

The tender of the evidence should be rejected. Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235; Coffs Harbour Hardwoods Trading Pty Limited v Wall and Anor, Court of Appeal, unreported, 24 February 1989; (1989) NSWJB 27; Doherty v Liverpool District Hospital, Court of Appeal, unreported, 13 March 1991; (1991) NSWJB 21 applied. Mullholland v Mitchell (1971) AC 666, 679 (HL) referred to. Observations of Kirby P and Samuels JA on the virtues of judicial silence about binding decisions.

PRACTICE- adjournment - appeal to Court of Appeal belated application for adjournment to permit reconsideration by Dust Diseases Tribunal of fresh medical evidence as to life expectancy - held: The adjournment should be refused having regard, inter alia, to the meaning of s13(6) of the Dust Diseases Tribunal 1989, the full contest at first instance and the terminal condition of the plaintiff. Sydney City Council v Ke-Su Investments Pty Limited (1985) 1 NSWLR 246 (CA) distinguished.

INFERIOR COURTS AND TRIBUNALS - Dust Diseases Tribunal power to reconsider matters - meaning and purpose of power limitations on power - desirability of finality of damages awards - observations by the Court on the power of the Tribunal to reconsider decisions and occasions for the exercise of such power. Hardaker v Wright and Bruce Pty Limited (1962) 62 SR (NSW) 244 considered. (per Priestley JA): The power of reconsideration is very exceptional for cases where it later becomes clear that something of "a fundamental kind and of high importance to the litigation has happened".

DAMAGES - dust disease - life expectancy - damages for voluntary home care - wife who is nurse ceases work to attend to husband - whether allowance calculated at standard or market rates - whether gross or nett cost allowed - held: Neither fairness nor reasonableness in the particular case requires deduction of tax or other items from the market cost of nursing services. Government Insurance Office of New South Wales v Planas [1984] 2 NSWLR 671 (CA) followed. DAMAGES - general damages - relevance of like cases whether permissible to have regard to like cases - held: (Samuels and Priestley JJA; Kirby P contra) Awards in like cases may not be considered, including in appeals from awards of a specialised Tribunal. Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Morgan v McMahon (1985) 3 NSWLR 700; Lowe v The Queen (1984) 154 CLR 606 considered.

WORDS and PHRASES - "reconsider" - "whenever appropriate". Compensation Court Act 1984, s17(4).

Dust Diseases Tribunal Act 1989, s3, s13(6), s14, s32.

Kirby P This appeal from the Dust Diseases Tribunal (the Tribunal) raises fourpoints. The first concerns an application to admit further evidence in the appeal. The second concerns a related application for an adjournment to permit the appellant to apply to the Tribunal to reconsider the decision under appeal. The third concerns the use that may be made in quantifying general damages of other decisions of the Tribunal in like cases on that issue. The fourth concerns various other grounds of appeal against a judgment of the Tribunal awarding damages to Mr Jan Bouwhuis (the respondent) against CSR Limited and Midalco Pty Limited (the appellant).

I propose to deal with the first, second and third issues. On the fourth, I am in agreement with Priestley JA that the appeal should be dismissed. I am in general agreement with his Honour's reasons for so proposing.

A mesothelioma claim is expedited The respondent is suffering from mesothelioma. The effect of that condition is, as Judge Johns in the Tribunal described it, "devastating and extremely painful". It is also invariably fatal. The respondent will shortly die as a result of the mesothelioma. He acquired the condition as a result of work he did after 1963 when he was exposed to blue asbestos whilst employed by the second appellant (then known as Australian Blue Asbestos Pty Limited) at Wittenoom Gorge in Western Australia. The first appellant managed and operated the mine at Wittenoom. The respondent's case against the appellants is one of a number of cases of persons similarly affected by mesothelioma. The respondent's acute symptoms began in October 1990 when he noticed a severe shortage of breath. As is typical, his condition deteriorated rapidly. His treatment has been radical, prolonged, painful and ultimately unsuccessful.

The respondent commenced proceedings in the Tribunal claiming damages against the appellants for negligence. The proceedings were filed on 23 April 1991. The appellants admitted liability. The case came before Judge Johns for the assessment of the damages to which the respondent was entitled. His Honour heard the claim on 13 and 14 June 1991. On 28 June 1991, he delivered a reserved decision. He found a "verdict" in favour of the respondent in the sum of $267,106, made up of various heads as set out in the reasons of Priestley JA. He directed that judgment be entered accordingly.

From that judgment, the appellants have appealed to this Court. Provision for such appeal is made by the Dust Diseases Tribunal Act 1989 (the Act), s13 and 32. By s32(2), if the amount awarded is less than $5,000, an appeal lies only by leave of this Court. Otherwise, it lies, as here, as of right. By s32(3) of the Act, the decision of the Court of Appeal in the appeal is binding on the Tribunal and on all parties to the proceedings.

Because of his serious health condition, the respondent moved the Court, with a supporting affidavit, to expedite the hearing of the appeal. Although in legal theory, the appeal could be dealt with at any time, whatever in the interim befell the respondent, it was entirely reasonable that he should want to know the outcome of his case in his lifetime. Accordingly, when the appeal and motion were called over on Friday last, 16 August 1991, the Registrar directed that the appeal be listed for hearing with maximum expedition. It was listed on the next

succeeding hearing day, 19 August 1991. It is appropriate to commend the representatives of the parties for the efficiency with which they prepared and presented their respective cases. The whole litigation, from the filing of the statement of claim to the decision of this Court on the appeal has taken seventeen weeks. As I shall show, the establishment of the Tribunal was intended to provide especially speedy justice to the persons within its jurisdiction. It is appropriate that this Court should, in the exercise of its powers, deal with such people in a similar way.

The issue of the plaintiffs life expectancy In his reasons, at a number of points in calculating the respondent's damages, Judge Johns referred to the respondent's life expectancy. He recorded the evidence in the hearing before him of various estimates given in this regard. Thus Dr P Gianoutsos, a thoracic physician, in a report of 31 May 1991, gave an estimate that the respondent then had a life expectancy of six to eight months. Dr M R Joseph, physician, expressed an opinion in a report of 31 May 1991 that:

"The prognosis unfortunately is hopeless and it is probable that he will not survive more than a year." Dr Julie Epstein, physician, expressed the view that:

"[T]he prognosis of mesothelioma once diagnosed, is less than 1 year life expectancy."

Dr J H Lee, physician, whose report was tendered on behalf of the appellants, estimated, in January 1991, that the respondent had a life expectancy of six months.

In his oral evidence, Dr Gianoutsos acknowledged that the respondent's condition had deteriorated since his report. Accordingly, the appellants urged that the proper conclusion based on the evidence before Judge Johns, was that the estimated life expectancy should be fixed at six months. Judge Johns concluded:

"The determination rests in my view upon one's findings and ones reaction to those findings, drawing upon general experience. Southgate v Waterford (1990) Aust Torts Reports 81-065. I am of the view that the likely duration of the plaintiff's life is eight months."

The Act does not expressly state that the "damages" recoverable under the Act are those which would have been recoverable at common law. This Court in earlier decisions has assumed that such is the case. See eg Simon Engineering (Australia) Pty Ltd v Brieger, Court of Appeal, unreported, 6 September 1990; (1990) NSWJB 114. That assumption is justified by the language, structure and purpose of the Act. S11(2) provides that "duty" in s11(1) of the Act includes a reference to a duty imposed by statute as well as a duty improved under the common law. It is in respect of breaches of such duties that damages arising from dust diseases, brought under the Act, may be awarded in proceedings taken for that purpose. The requirement under s12(1) to transfer the proceedings to the Tribunal from the Supreme Court, where the claim is undoubtedly for common law damages, confirms this conclusion. It would be odd indeed if, upon transfer, without any statutory authority, a different principle were to be applied in the new venue for the calculation of the damages. The principle is thus the same.

Judge Johns's determination that the respondent had a likely life expectation of 8 months had consequences for his entitlement to general damages; for the calculation of the loss of the expectation of life; for future domestic care and assistance and for other help that would be needed by the respondent during the final stages of his illness.

In their amended notice of appeal, the appellants challenged his Honour's finding in this regard and the awards of damages which followed it. It would seem that originally the appellants intended to mount their challenge upon the basis of his Honour's preference for a life expectancy of eight months rather than six or fewer.

However, whilst awaiting the hearing, the appellants received the affidavit filed by the solicitor for the respondent in support of the motion for expedition of the hearing of the appeal. This annexed a medical report of Dr David Bell, a consultant physician who is treating the respondent in the Royal North Shore Hospital. His report, dated 15 August 1991, stated of the respondent:

"His current situation is very poor indeed. My estimation of his life expectancy is in the vicinity of days, to some weeks." The appellants sought to use this report in support of their primary argument in the appeal. They filed two affidavits which they asked leave to read. The first was an affidavit by the solicitor for the appellants. It deposed to the fact that until he had read the report of Dr Bell, he was not aware of "the change of circumstances" which the report suggested. The second affidavit was of Dr Bell himself. It deposed to the palliative treatment which he was supervising: his last examination of the respondent on 19 August 1991 and his opinion:

"[T]hat Mr Bouwhuis' life expectancy is to be measured in terms of days, or perhaps weeks. I do not expect Mr Bouwhuis to survive for more than one month."

The further evidence is rejected In the course of the hearing of the appeal, the Court rejected the tender of this evidence. It reserved its reasons. I now state my reasons for doing so.

The power of the Court to receive further evidence in an appeal is beyond doubt. It is provided by s75A of the Supreme Court Act 1970 and Pt51 rl13A SCR. The relevant subsections of s75A read:

(6) The Court shall have the powers and duties of the court, body or other person

from whom the appeal is brought, including powers and duties concerning - (a)... (b) the drawing of inferences and the making of findings of fact; and (c) the assessment of damages and other money sums.

(8) Notwithstanding subs(7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.

(9) Subs(8) does not apply to evidence concerning matters occurring after the trial or hearing.

In this case, the further evidence tendered falls within s75A(9). It concerns matters which have occurred after the hearing in the Tribunal, viz the expression of opinion by Dr Bell and the deterioration in the condition of the respondent (with reduction of his life expectancy) which, on one view, may be inferred from Dr Bell's opinion. Accordingly, the appellants argued that no "special grounds" were required to secure admission of this further evidence.

It was relevant to their first ground of appeal. It had consequential relevance to numerous other grounds. It should be admitted by the Court performing the function of an appeal by way of rehearing. Whilst finality of decision-making was important, justice to the parties presented an even higher claim. An injustice would be done if, in the appeal by way of rehearing, this Court were obliged to

proceed to test his Honour's conclusion and to calculate the damages properly payable to the respondent upon a premise which was clearly now shown to be false.

Not only was it false, but so to the knowledge of the Court. The Court already knew of the later condition of the respondent by reason of the affidavit material presented in support of expedition. That material was in the files of the Court and had been presented to the Registrar and to the judge ordering expedition. It would require a case of selective amnesia to put such information out of account in the appeal, although it had been important and relevant to the Court's decision in favour of expedition. Whatever might be the position where the Court was otherwise ignorant of further evidence, this was a case where the further evidence had been tendered to the Court by the opposing party. It would bring the legal process into disrepute to then oblige the Court to proceed as if the evidence had not been received, and the Court did not know of it. So ran the case for the appellants.

If I were not confined by authority, I would probably accept these arguments. I would do so because of the structure of s75A of the Supreme Court Act, the juxtaposition between subs(8) and subs(9) of that section and the undesirability (as I see it) of the Court's solemnly confirming a decision based on a premise which, since the trial and before the appeal, has been shown to be false and yet important for the decision under appeal. I expressed my views in this regard in Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235, 239ff. There, I traced the stream of authority in England and in this country and expressed the reasons of policy and principle that led me to my opinion. I do not repeat that analysis.

The Court in Radnedge decided otherwise. It has confirmed its approach in many cases since. It did so in Coffs Harbour Hardwoods (Trading) Pty Limited v Wall Anor, Court of Appeal, unreported, 24 February 1989; (1989) NSWJB 27. There, Priestley JA, giving the judgment of the Court in rejecting an application for leave to tender further evidence on the appeal, referred to Radnedge and drew upon the speech of Lord Wilberforce in Mulholland v Mitchell [1971] AC 666, 679. His Lordship in that case expressed the opinion that the matter was one of "discretion and degree"; that further evidence ought not to be admitted "when it bears upon matters falling within the field or area of uncertainty in which the trial judge's estimate has previously been made". Various instances, non-exhaustive, were given of exceptions to the general rule (eg falsification of common assumptions; affront to commonsense or to the sense of justice). But the general tule stood firm. It was applied in Radnedge and in Coffs Harbour Hardwoods.

It was also applied in Doherty v Liverpool District Hospital, Court of Appeal, unreported, 13 March 1991; (1991) NSWJB 21. That was a case where the plaintiff had died between the judgment under appeal and the hearing of the appeal. Gleeson CJ (with whom Meagher and Handley JJA agreed) decided that the defendant-appellant was precluded from reopening the assessment of damages to take account of the death. It was not a case for a "second look" at the facts. It did not affront their Honours' sense of fairness or justice to adopt that course.

There is a tension between the need for finality of litigation and the urgent demands of fairness and justice in a particular case. Given that a judgment has to be made, different judges will respond in different ways, according to the store they place, respectively, upon the ends of finality (on the one hand) or procedural fairness and substantive justice (on the other). I do not overlook the fact that

finality itself contributes to overall justice. But as I have said before, finality can sometimes be bought at too high a price.

Ihave to acknowledge that my approach to this problem is now in comparative disfavour. The clearest illustrations of the current mood of the High Court of Australia in favour of finality can be seen in Jones v Hyde (1989) 63 ALJR 349, 351; 85 ALR 23, 27 and Abalos v Australian Postal Commission (1990) 171 CLR 167, 179. However, the pendulum has swung in the past. One has only to contrast the earlier decisions of the High Court in Edwards v Noble (1971) 125 CLR 296, 303 and Warren v Coombes and Anor (1979) 142 CLR 531, 551 where the approach in Edwards was disapproved. The pendulum will doubtless swing again. The swings are a reflection of the inescapable influence of the judicial philosophies of those who currently hold office, stimulated perhaps, by the pressure of business in the appellate courts.

Whilst I adhere to the views which I expressed in Radnedge, derived from the particular language of this Court's enabling statute, I have to recognise that the proponents of finality are in the ascendent just now, both in this Court and, still more, in the High Court of Australia which has the final say.

I can bear this acknowledgment with a certain equanimity in the present case. Here, no one can definitely say when the appellant will die. That is a fact which remains in the hands of the future. All of the medical practitioners (those called at the trial and Dr Bell now) are merely giving their prognoses on the basis of their findings and their common experience. The extraordinary individuality of human beings (of whom Mr Bouwhuis, by the evidence, is a remarkable example) daily demonstrates the significant margin of error that can affect estimates of life expectancy, even in terminal patients. The timing of death, as common experience teaches, often depends upon factors residing in the will of the patient which can triumph over the assaults of physical affliction. The prognosis for this patient was fought out at the trial. Subject to the dispute about the proper estimate at the trial, which the appellants originally sought to argue by their appeal, the parties have had their day in court. They have received an informed and reasoned conclusion. The burden on the respondent, his wife and their family in giving evidence addressed to that issue would have been considerable. The prospect that in this case, as in other cases down the line, this Court should be re-examining evidence on such an issue is not a welcome one. It causes less affront to my sense of justice to prevent the reopening of the question in this case than it does in other circumstances which have earlier come before the Court.

Therefore, whilst adhering to the opinion I expressed in Radnedge concerning the proper approach of the Court to its statutory functions, I believe that the consistent application of the decisions of the Court required that the tender of the further evidence of Dr Bell should be rejected. That is why I joined in the order to that effect made by the Court during the hearing.

Judicial obedience and criticism of authority Before I leave the first point, in the light of the contrary opinions expressed, I must add a few words on the suggested obligation of judicial silence in the face of binding authority.

Reference has been made to remarks of mine in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 13 5, 138. They are in no way inconsistent with my opinions expressed in this appeal. As a casual glance at the decision will show, my observations were there directed to the suggested disobedience of a judge in a Division of the Supreme Court to a holding of this Court and, in that context, repeated criticism of the holding. I have

never regarded criticism of a holding of any court (as distinct from the refusal to obey it if binding) as a matter for rebuke. The common law progresses in its magisterial way, principally by the interaction of the expressed ideas of the judges as they affect each other, the legal profession, law teachers and the wider community. Cf M A Kadzielski and R C Kinda "The Origins of Modern Dissent: The Unmaking of Judicial Consensus in the 1930s" 15 UWLA Law Rev 43, 50, 55 (1983). Judicial disagreements should be couched in temperate terms. They should never boil over into personal remarks about the current incumbents. See B J Quick, "Whatever happened to respectful dissent?", 77 ABA Journal 62 (1991). Judges are but temporary office-holders.

Disobedience by judges to law binding on them is impermissible. Criticism is a prerogative of all people in a free society. Intellectual honesty and candour in the expression of opinions is not only a judicial right. It is a judicial duty. Cf Bramwell B in Andrews v Styrap (1872) LTNSW 704, 705, 706; Jackson J in McGrath v Kristensen 340 US 162, 177f (1950) (US SC). If the exercise of that duty involves the respectful expression of a view different from that held by others, or even of binding authority, it should not occasion resentment, least of all amongst judges. It should be seen for what it is. A contribution to the gradual development of the law by an appeal, ultimately, to the conscience and intellect of the legal profession and of society. See R A Posner Cardozo: A Study in Reputation, Uni Chicago Press 1900, 126.

Silence is a pious virtue in a Trappist monk. The judge who covers his or her conscientious opinions in silence because of some misguided sporting or military instincts, betrays the office. See N H Andrews, "The Passive Court and Legal Argument" (1988) 7 Civil Justice Quarterly 125, 132 and J L Campbell, "The Spirit of Dissent", 66 Judiciature 305, 310.

Adjournment application rejected Connected with the application to read Dr Bell's further evidence was an application which the appellants belatedly made that the appeal should be adjourned so that they could repair to the Tribunal for a reconsideration of its judgment in the light of the further evidence of Dr Bell.

In support of this application, the appellant pointed to the provisions of s13(6) of the Dust Diseases Tribunal Act. The section provides for the proceedings before the Tribunal. The subsection provides:

"(6) Whenever appropriate, the tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the tribunal has previously made. "

The power to reconsider awards of compensation tribunals has long existed. By s36(2) of the Workers' Compensation Act 1926 it was provided:

(2) Nothing in subsection one of this section shall prevent the Commission from reconsidering any matter which has been dealt with by it, or from altering or amending any decision or order previously made, all of which the Commission shall have the authority to do.

There is a like provision under the Compensation Court Act 1984, s17(4).

The power so provided is an ample one. See Hardaker v Wright and Bruce Pty Limited (1962) 62 SR (NSW) 244, 255 (1961) WCR 26. Cf Hilliger v Hilliger (1952) 52 SR (NSW) 105, 110. However, in Hardaker, the Full Court emphasised the distinction between the existence of the power and the proper occasion for its exercise. It laid stress upon the principle of finality of litigation and the high public interest in preventing the relitigation of matters settled by a body with competent jurisdiction to do so.

Within the former Workers' Compensation Commission it was usually required that some change of circumstances should be shown to warrant the exercise of the discretion to rescind or amend a decision previously made. See eg Humphreys v Shell Co of Australia Limited [1947] WCR 134. The discovery of fresh evidence was the most common ground for applications to reopen such decisions. Yet, from the start, the Workers' Compensation Commission adopted an approach that, only if the new evidence was such that, if believed, it would probably have an important influence on the result, would it be admitted and an earlier decision rescinded or amended. See eg Gosper v Bulwinkle [1931] WCR 204. Cf Meredith v Innes (1931) 31 SR (NSW) 104; Deigman v State Coal Mines [1956] WCR 169.

In the present Act, there are particular reasons why an even more stringent approach by the Tribunal to an application for reconsideration is appropriate. The section appears in a statute which establishes a Tribunal with a particular jurisdiction for a specially vulnerable group of litigants. So much appears on the face of the Act when regard is 'had to the nature of some of the prescribed dust diseases mentioned in s3 and Schedule1. The urgency of disposing of many cases involving dust diseases is clearly one of the reasons for removing such cases from the ordinary courts and placing them in the jurisdiction of a special tribunal.

This conclusion is confirmed by a consideration of two extrinsic documents which were placed before this Court without objection. One, was the Second Reading Speech of the Attorney General (Mr J R Dowd) when he introduced into Parliament the Bill which became the Act. Explaining the need for such a Tribunal, Mr Dowd said:

"The bill seeks to marry the skills of Compensation Court judges with the power to deal with common law matters. The Compensation Court is a specialist jurisdiction that deals with medical matters which, it is intended, acquire expertise in common law. This measure is an attempt to stop duplication of common law and workers compensation limited liability determinations. From this experience the Government expects to learn how to marry together the Compensation Court, the Supreme Court and the District Court which will be inevitable as the Downing Centre is developed. One judge or several judges may be involved, but litigants are entitled to fast track procedures as a means of reducing the long hearing lists in the Nunter Valley. The Compensation Court is not overloaded but this measure will help to reduce the District Court lists.... I hope it will enable relief to be given to a group of needy workers in this State who belatedly have been found to have been let down by a society that has failed to recognise some aspects of dust disease". (emphasis added) See New South Wales Parliamentary Debates (Legislative Assembly) 3 May 1989, 7398, 7399.

The approach of the Tribunal is expressed by its President, Judge O'Meally, in the second such document placed before the Court. This was the decision of the Tribunal in John Ellul v Norton Pty Limited, (unreported, 17 April 1991). There, his Honour referred to s13(6) and said: "[The subsection] allows the Tribunal to reconsider any matter that it has previously dealt with or rescind or amend any decision that the Tribunal has previously made. So far as I am aware, this is a power unique in a Common Law Court to this Tribunal and no guide is given in the statute concerning the circumstances in which it is appropriate for the Tribunal to reconsider any matter previously dealt with. In the absence of further argument and as presently advised, I think that the provision authorises the Tribunal to correct errors of fact or law.... What is suggested is that depending on future contingencies it is appropriate that the Tribunal reopen individual cases. It

is a long settled principle of law that there should be finality to litigation. A claim for damages is a much different claim from one for Workers 'Compensation. Awards of Workers' Compensation continue; awards of damages are final. I am thus not persuaded that it is appropriate to refuse to make an allowance for the risks of developing bronchogenic carcinoma or a deterioration of the plaintiff's condition of asbestosis. "

It is true, as the appellants point out, that Judge O'Meally was there dealing with a suggested postponement of an item of damages rather than the reopening to reconsider an award already made. However, the considerations to which his Honour referred were clearly pertinent to the kind of application foreshadowed here. Subject to any appeal in which the decision of this Court would be final (see s32(3)) the judgment of the Tribunal is normally expected to be final. It is perhaps notable that it is called a "judgment". (See s14(1)). It provides a lump sum of damages and not continuing compensation. The power to reconsider and to deal with a matter contained in such a judgment, as provided by s13(6) is therefore wholly exceptional. This may explain why the power is not, in the terms conferred, at large, as it was under s36(2) of the Workers' Compensation Act. It is prefaced with the cautionary requirement that it should be used only "whenever appropriate."

Because of the public interest in finality, the features of this Tribunal and its jurisdiction, the language of the subsection and the condition of many of the litigants before the Tribunal, it will require a very strong case to render it appropriate for the Tribunal to reconsider a matter finally dealt with in a contest between the parties.

Otherwise, parties who, like the present respondent, are extremely ill and suffering terminal conditions could be harassed, or at least troubled, by the reopening of a decision which has the merit of giving finality to the judgment, subject to any appeal.

Because s13(6) is in the Act it cannot be ignored. The discretion provided by the subsection, when invoked, must be exercised according to law. But for the reasons I have given it would take a very strong case to have a matter reconsidered. For a number of reasons I do not believe that this is a strong case.

An application for an adjournment to exercise legal rights should ordinarily be acceded in, at least where the party resisting the adjournment can be adequately protected by procedure orders, eg as to costs and as to expedition of the hearing of the resumption. See generally Sydney County Council v Ke-Su Investments Pty Limited (1985) 1 NSWLR 246, 252 (CA). Here, the appellants have an undoubted right to apply to the Tribunal for reconsideration. Unless they do so before this Court's final order they would lose that right by reason of s32 of the Act. Ordinarily, these considerations would have persuaded me to grant the application, upon terms.

However, this is not an ordinary case. The appellants did not seek reconsideration in the Tribunal at any time between the Tribunal's decision on 28 June 1991 and the commencement of the appeal in this Court. They only do so now because of further evidence provided by the respondent, although for another purpose. That further evidence goes to an issue which was fully litigated before the Tribunal, namely the respondent's life expectancy. If an application such as the present were allowed, there is a risk that this Court would, in many cases of terminal conditions from dust diseases, be faced by late applications for adjournment of the appeal to permit reconsideration under s13(6) in the Tribunal. On the appellants' wide construction of the section, they could have raised

virtually all of their grounds of appeal before the Tribunal. They could have sought reconsideration there, rather than in this Court on appeal, as s32 envisages. Whatever may be the precise life expectancy of the respondent, he does not have long to live.

He is entitled to have the burden of litigation off his mind. So is his wife and their family. Some pain from the necessities of litigation was unavoidable in this case. But that pain should not be unduly prolonged. The foregoing were the considerations which moved me to join in the order of the Court refusing the belated application for adjournment.

General damages and reference to like cases A further issue of principle arose in the calculation of the respondent's damages. Counsel for the appellants sought to attack the general damages allowed by the Tribunal, upon the basis that the allowance under this head was excessive, measured against recent decisions to which he drew attention, particularly Brieger (above). In that case general damages of $85,000 allowed by the Tribunal were reduced by this Court to $60,000.

At first, the respondent resisted the comparison of the general damages allowed in other cases. His counsel relied on Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 124. See also Bresatz v Przibilla (1962) 108 CLR 541, 548; Moran v McMahon (198S) 3 NSWLR 700 at 724, 726. He made the point that each case depends upon its own facts and circumstances. So much is self-evident. The Court was informed that the award of $60,000 as general damages in this Court "s reassessment in Brieger was regarded, in some quarters, as setting a tariff, even a limit, which the Tribunal should observe in cases generally. I say at once that that is not the law, could not be the law of damages and is not what Clarke JA said for the Court in Brieger. To the extent that any contrary view is abroad, it should be dispelled.

Once having embarked on the comparisons, however, counsel for the respondent embraced the exercise with energy. He put before the Court a number of decisions in cases of mesothelioma and like dust diseases. The facts of each case were necessarily different. The plaintiffs were of different ages. The prognoses were marginally different. The evidence on pain and suffering was different. The family predicament of the plaintiffs varied. The usual variety of evidence was there. However, the levels of awards for general damages provided were remarkably similar and within a generally defined range:

(a) Simon Engineering (Australia) Pty and v Brieger

In the Tribunal 85,000 In this Court 60,000 (b) McPherson's Limited v Palmer, unreported, 70,000

Supreme Court of Victoria (Full Court) 26 November 1985 - a jury verdict of $222,500 say

(d) Barrow and Heys v CSR Ltd and Anor Supreme 100,000 Court of Western Australia each

(e) Quigley v Wellcome Australia Ltd unreported, 75,000

(f) McIlwain v XMB Pty Limited, unreported, $ 75,000 DDT, O'Meally J, 14 April 1990

I have never disguised the fact that I respectfully regard the holding of the High Court in Planet Fisheries (as distinct from the decision in that case) as unpersuasive. See Moran v McMahon (above) at 709. Forbidding any reference to like cases in damages appeals denies appellate review, provided by statute, the logical and rational attributes which are the prized features of a normative system of justice. Especially unpersuasive is the argument that appellate judges can rely on their current general ideas... a product of general awareness" (see ibid p 125), but not on experience derived from particular cases which can then be examined and distinguished or utilized as their similarity permits.

However, this Court is bound by the approach sanctioned in Planet Fisheries. The Court has resisted attempts to distinguish or circumvent the holding. See Moran v McMahon (above). I am bound by those decisions.

Nevertheless, for three reasons, I consider that Planet Fisheries is distinguishable from this case and that this Court may take into account the decisions of the kind referred to by counsel for both parties: 1. Planet Fisheries, as I have observed, permits judges to draw on their general experience. Our general experience in this Court in reviewing general damages awards in the case of plaintiffs with dust diseases is necessarily much more confined than that of the Tribunal. It deals with cases of the present kind all the time. We must discharge our function, reserved by s32 of the Tribunal's statute. However, the Tribunal will, of necessity, be much better informed of its own standards. Subject to discharging independently our obligation of appellate review, we do well to inform ourselves of the Tribunal's standards in considering, on appeal, an assertion that the Tribunal's award in a particular case is appealably excessive or inadequate; 2. Planet Fisheries was a case involving a review of a judgment in a court of general jurisdiction (the Supreme Court of Western Australia). The Tribunal is not such a court. The class of cases which it hears is much narrower than the range coming before general courts and, on appeal, this Court. The variables of difference will be significantly reduced in the Tribunal's cases. Differences still necessarily exist. Any suggestion of a fixed tariff or uniform standard must be emphatically rejected. But there will typically be a high similarity within the cases: involving, generally, male workers of middle years with a terminal dust disease, with a fairly standard prognosis and common characteristics of severe pain and suffering and needs for terminal care. In such circumstances, the high degree of similarity in the awards of general damages made by the Tribunal in reasoned judgments, is not really surprising. On the contrary, such comparability is to be expected; 3. Within the specialised Tribunal, established by Parliament, the just award of statutory damages suggests a need to award comparable general damages in like cases. If this is a legitimate consideration in the Tribunal, it cannot be ignored in this Court. In Lowe v The Queen (1984) 154 CLR 606, Mason J, at 611, observed that like treatment of similar cases was the "badge" of a just legal system. Unequal treatment under the law was calculated to lead to an erosion of public confidence in the integrity of the administration of justice. His Honour was there dealing with the comparison of sentences imposed on criminal co-offenders. However, the principle is so fundamental to equal justice under law that it surely also applies within the Tribunal in the determination by it of damages and in this Court, on appeal from

the Tribunal's judgments. This does not mean that what the Tribunal does must simply be accepted by this Court, confirming without question its levels of general damages.

For reasons which I have explained, this Court cannot, and should not, do that. Its functions involve a reconsideration of the general damages awarded in the particular case. Because this Court is a generalist court it performs its functions with the knowledge of general damages awarded in a much wider range of personal injury damages cases. However, it is legitimate for the Court to take into account the current standards of general damages applied in the Tribun, al. That can only be done if the Court allows information about similar cases to be placed before it. I do not believe that doing so defies the holding of the High Court in Planet Fisheries. That decision could not have anticipated the special problem of comparative justice presented to an appellate court in reviewing an award of general damages made by a specialist Tribunal, of limited numbers, dealing with one case in a sadly large series of cases, each with special features, but each also with many common features. The Tribunal knows its common standard. To deny this Court such knowledge and to require it to pretend that it has general knowledge from general awareness, when it does not, indulges a fiction which is unnecessary and intellectually less than honest. Only clear authority would constrain me to act in such a way. Planet Fisheries does not touch the point.

Accordingly, in the general way I have described, this Court is entitled to look at the levels of general damages awarded by the Tribunal in similar cases of terminal dust diseases.

Drawing upon that material and on my own general experience in damages appeals, I do not conclude that Judge Johns erred in the award to the respondent in this case of $70,000 for general damages. I consider that the award is proper. If that is the conclusion reached, this Court is not authorised to disturb that component of his Honour's judgment.

Damages appeals and orders I agree, for the reasons stated by Priestley JA, in the determination of the other points argued in the appeal. I therefore agree that the appeal should be dismissed with costs.

Samuels JA I have had the benefit of reading in draft the judgments prepared by Kirby P and Priestley JA. I agree with Priestley JA that the appeal should be dismissed with costs on the footing that the appellants have failed to show that the assessment of damages is so excessive as to require any intervention by this Court.

There are two other matters which were the subject of argument on the appeal. First, my reasons for rejecting the new evidence which the appellants offered are very much the same as these which Priestley JA has given. However, at the risk of reinventing the wheel, I will shortly add my view of the matter in my own words.

As the President has indicated, the argument put by the appellants was that if the material were not received the appeal would be determined upon evidence which, to the knowledge of the Court, had clearly been shown to be false.

This, of course, would bring the processes of justice into disrepute and would require intellectual gymnastics of a disreputable kind to enable the Court to put what it knew out of mind.

In my view, this argument is wholly misconceived and, authority apart, entirely lacks plausibility. It cannot be said that the new evidence falsified the evidence which was before Judge Johns at the trial. The new evidence offers another prognosis of a condition whose precise course it is notoriously difficult

to assess; and evidence about the difficulty of prediction was led before the Tribunal. The opinion of Dr Bell may or may not be correct; it certainly does not justify discarding the material before the primary judge, notwithstanding that Dr Bell's view is the most recent analysis of the respondent's situation. In the present case, the material was originally placed before the Court by the respondent himself as an unnecessary adjunct to the existing medical evidence which alone would have justified the grant of a high order of expedition. It seems that it was accepted at face value by the judge who heard the application for expedition. It was, however, tendered for that limited purpose (whatever the ultimate use which could be made of it) and no doubt with the knowledge that the Court would certainly reject material of that kind in its consideration of the award of damages.

Although the affidavit of Dr Bell had first been tendered by the respondent, the tender made when the appeal was opened made it evidence offered by the appellants. Thus it would have been open to challenge by the respondent and since, had it been admitted, it would have gone in to the evidentiary pot along with the other material before Judge Johns, reception of the material would have led inevitably to a whole reopening of the principal issue in the case.

When I spoke of reinventing the wheel I had in mind the fact that the course that the Court took is settled practice now firmly established by Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 and applied in a number of cases since, as Priestley JA points out. The principle is firmly grounded in the requirement of certainty which is a not inconsiderable element in the doing of justice.

It would be quite unacceptable if appeals in this Court resembled an infinite series of regressions in which new material to augment, or to diminish, the force of that tendered in its proper place at trial was endlessly pursued. Adopting with respect what Gleeson CJ (with whom Meagher JA and Handley JA agreed) said in Doherty v Liverpool District Hospital, Court of Appeal, 13 March 1991, unreported, (in which the High Court has refused special leave to appeal), at 18, I regard the rejection of this new evidence as neither an affront to common sense nor an offence to my sense of fairness.

I need not examine the merits further because, as I have indicated, the principle, which was well established long before Radnedge was decided, is now, I venture to say, beyond question. The status of the doctrine may be described in the trenchant words which Kirby P used in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 148. The President said this:

"Tn my opinion, this Court should not retreat. [The case in question] states the law in this State. It is binding on this Court. Its approach should be followed both in this Court and at first instance until, by leave, this Court agrees to review its holding or it is disapproved by the High Court of Australia."

In that case, the President was critical of judicial criticisms of a holding of this Court. He did so, no doubt, on the footing that consistent carping at decisions of the Court, if it occurs, is contrary to the doctrine of stare decisis and suggests disloyalty to the doctrine of precedent upon which our system depends. The obligation of every court (and of every judge) to follow decisions of any superior court (or of their own court) was clearly stated in Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166 at 177 by Moffitt P. I believe that members of a collegiate court have a particular obligation to accept the decisions of their colleagues and to abstain from a guerilla warfare designed to diminish their binding authority. I express no view upon the facts of the matter, but the

President's disapproval in Drummovne at 147 of "a consistent series of criticisms of the holding of this Court", expresses the attitude which I regard as proper. The role of the judicial dissenter, after the initial protest has been made, is necessarily to maintain a silent vigil in the wings of jurisprudential history. It may remain solitary, or it may culminate in a summons to centre stage. But it does not involve denigrating the current'script or booing the players.

There remains the question whether there is any basis for regarding the decision in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 as inapplicable in the present case. For the reasons advanced by Priestley JA I think that there is not.

Priestley JA On 23 April 1991 Mr Bouwhuis as plaintiff began proceedings in the Dust Diseases Tribunal of New South Wales against CSR Limited and Midalco Pty Ltd as defendants. By his amended statement of claim, filed 29 May 1991, the plaintiff alleged that in 1963 he was exposed to and inhaled asbestos fibres while residing in the township of Wittenoom in Western Australia, that that exposure resulted in his contracting mesothelioma and other damage, and that the cause of the damage was the defendants' negligence.

By their defence, filed on 4 June 1991, the defendants put the plaintiff to proof of his damage but did not deny they had caused the mesothelioma.

The proceedings were heard by his Honour Judge Johns on 13, 14 and 24 June 1991. On 28 June 1991 Judge Johns gave judgment for the plaintiff in the sum of $267,106, after handing down written reasons for his decision.

The Dust Diseases Tribunal Act 1989 confers upon the Dust Diseases Tribunal exclusive jurisdiction to hear and determine proceedings for damages at common law in respect of (inter alia) dust related conditions: see in particular s10 and s11.

"Dust-related condition" is defined as including mesothelioma: see s3 and Schedule1. $13 and s32 create a right of appeal against decisions of the Tribunal, exercisable only in the Court of Appeal. The defendants exercised their right of appeal by filing a notice of appeal on 26 July 1991. On 16 August the hearing of the appeal was expedited and it was heard on 19 and 20 August. In support of the application for expedition the plaintiff's representatives filed an affidavit the annexures to which included a letter from Dr Bell of the Royal North Shore Hospital saying the plaintiff had been admitted there on 4 August and that Dr Bell's estimation of his life expectancy was in the vicinity of days to some weeks.

One of the issues before Judge Johns, which was material to various aspects of his assessment of the plaintiff's damage was his life expectancy. Judge Johns had, on the material before him, formed the opinion that at the date of his judgment the plaintiff's life expectancy was about eight months.

When the appeal was called on for hearing counsel for the appellant-defendants applied to the court pursuant to Pt51 r13a to receive evidence additional to evidence in the court below, as permitted by s75A(7), s75A(8) and s75A(9) of the Supreme Court Act 1970. In support of the application Dr Bell's letter was relied on as being material to the issue of the life expectancy of the plaintiff. This court's practice in such matters has for many years been based on the approach stated by Lord Wilberforce in Mulholland v Mitchell (1971) AC 666 at 679-680:

".. negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge's estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively,

too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense or a sense of justice... these are only non exhaustive indications... [their] application... must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that Court..." For this practice, see amongst many examples, Warr v Santos (1973) 1 NSWLR 432; Gibson v Saunders (unreported) CA 16 December 1983; Sinclair v Graham (1984) 2 NSWLR 253; Radnedge v GIO (1987) 9 NSWLR 235; Coffs Harbour Hardwoods (Trading) Pty Ltd v John, Henry Wall and Anor (unreported) CA 24 February 1989 and Doherty v Liverpool District Hospital (unreported) CA 13 March 1991.

The reasons underlying the court's settled practice would, if that practice were applicable to appeals from judgments of the Dust Diseases Tribunal, require refusal of the defendants' application. That is because the transcript of the evidence and argument before the trial judge shows that the proceedings were conducted on the footing that mesothelioma is a disease which frequently, from the time of its symptoms appearing, has an onset which is commonly rapid and fatal, but the precise rapidity of which in individual cases is difficult to predict. Against that background evidence was received at the trial from a number of doctors, all indicating in their various ways that their estimates of the plaintiff's life expectancy were approximate only, and giving their best estimate either at a date shortly before the hearing or at the hearing itself. The life expectancy issue was as good an example as can be imagined of a matter falling within the field or area of uncertainty in which the trial judge made an estimate, on the evidence then available, of the time of happening of a future event, which all parties to the litigation knew was extremely difficult to predict with any accuracy. No basic assumptions, common to both sides of the record were falsified by what Dr Bell later said in his letter. In regard to the third of the three matters Lord Wilberforce referred to, in circumstances where the court's task is to estimate as well as it can the length of the remaining life of a dying man, and the court has materials before it on which to make the estimation, the defendants being financially able to put whatever medical evidence might be available before the court, it seems to me that it would affront common sense and a sense of justice to allow the issue to be re-opened on appeal.

In an effort to avoid such a view being formed by the court the defendants sought to argue that the court's usual approach to the matter of fresh evidence was not applicable to appeals from the Dust Diseases Tribunal. This submission was founded on s13(6) of the Dust Diseases Tribunal Act. That subsection says: "Whenever appropriate, the Tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the Tribunal has previously made."

For the defendants it was argued that this provision would enable a party to return to the Tribunal after judgment in the common law proceedings dealt with by the Tribunal, or even after appeal, and have any matter dealt with in those proceedings reconsidered. Once the argument reached this point, following some discussion between counsel and the bench, counsel for the defendants was instructed by his clients to seek an adjournment of the further hearing of the appeal pending an application to the Tribunal to reconsider, amongst other things, the opinion Judge Johns had formed concerning the plaintiff's expectation of life. Both this application and the application for the reception of the additional evidence were opposed by counsel for the plaintiff.

After argument this court refused both applications, saying it would give reasons for the refusals when delivering judgment on the appeal.

Ihave already indicated my opinion that the only prospect the defendants had of persuading the court to depart from its usual practice in such matters was by distinguishing the situation of appeals from the Tribunal from the general run of appeals to the court. In regard to the application for the adjournment, the only prospect of success in that was if the very broad construction of s13(6) for which the defendants contended was accepted by the court. Thus, both applications depended upon the view the court took of s13(6).

In my view, s13(6) cannot receive a construction anything like that for which the defendants contended. The first four subsections of s13, taken together with other sections in the Act such as s15, s16, s17, s18 and s23 (this being by no means an exhaustive list) all indicate that the Act is designed to enable a common law claim for damages in respect of a dust related condition or death to be litigated with as few procedural impediments as reasonably possible. The various powers given to the Tribunal by the Act however, are all in aid of the speedy and efficient litigation of what remains a common law claim which can only end in a final judgment.

S13(6) is thus dealing with a subject matter quite different from that dealt with by s17(4) of the Compensation Court Act 1984 from which its words seem to have been taken. What in its context subs(6) seems to me to do is to recognise that there may occasionally be very exceptional cases in which it becomes clear that after judgment something of a fundamental kind and of high importance to the litigation has happened, that it has happened in regard to a case which because of the nature of the Tribunal's jurisdiction needs to be dealt with with the greatest available expedition and that it may be more efficient, rather than leave the supervening and basic matter to be dealt with by the appeal mechanism, to have it dealt with by the court of first instance.

On this approach it would be very rare for the power under subs6 to be properly exercisable by the Tribunal. The power would in my opinion only be one the Tribunal should even consider exercising in the kind of circumstances referred to by Lord Wilberforce in Mulholland, that is, stated shortly, where something basic to the decision had been clearly falsified by subsequent events. For the reasons I have explained there does not seem to me to have been anything of this character shown by the letter of Dr Bell and there was therefore no basis either for permitting the reception of further evidence or adjourning the hearing of the appeal for the making of an application to the Tribunal which would in my opinion have inevitably been doomed to failure.

The points argued in the appeal itself are most easily explained, after indicating something of the plaintiff's circumstances at the time of and following the onset of his disease. Before that onset he had been for twenty-five years or so working in the field of airconditioning as a maintenance fitter and in airconditioning commissioning positions. What then happened was summarised by Judge Johns in his reasons:

"In October 1990 he suffered the first onset of symptoms in that he noted pain in the right side of his chest and shortness of breath. In early November he underwent medical examinations firstly from Dr Dermott who referred the plaintiff to Dr Epstein. He was subsequently referred to Dr Gale for a biopsy which was undertaken at the Sydney Adventist Hospital in late November 1990. This comprised of open plural biopsy right thorocotomy and biopsy. He spent a number of days in hospital and on 26 November 1990 after a report by a

pathologist he was diagnosed as suffering from malignant mesothelioma. The plaintiff has subsequently entered hospital on three other occasions, twice at Royal North Shore and for a significant time at Neringah Hospital at Wahroonga. The plaintiff underwent interferon treatment at Sir Charles Gardner Hospital in Perth between 3 and 14 March 1991.

The condition of mesothelioma is devastating and extremely painful. People who suffer it vary in their response but the plaintiff in this case I suspect has put on a braver face than one might otherwise expect. The progression of his disorder has been accompanied by various periods in hospital. He has undergone a variety of treatments which have caused significant and painful sideeffects. He is constantly on medication which is currently controlled by analgesic tablets and liquid morphine. It is inevitable that as the condition progresses he will need increasing morphine injections and oxygen. Undoubtedly he has suffered a staggering blow and has been and certainly will be in the future subjected to extreme pain. His condition and treatment has and will impose a severe stress upon him. He has lived in the shadow of impending death, his life has in my view been miserable from the time he was diagnosed. His situation in the future will deteriorate which will be the situation for the rest of his life. It seems to me a fair inference that work was for the plaintiff a very important and central part of his life. He has been deprived of that and this no doubt is to him a great loss.

The plaintiff can only be described in my view as a devoted family man. He has two children, a daughter who was born in 1976 and a son who was born in 1980. The plaintiff is a man who married late in life. He has had the benefit of a remarkable marital relationship with his wife and is a devoted father to his children. He is a man who has a great sense of family and the extent of the loss that he feels seems to me to have been impressively articulated by his wife who gave evidence in this case. The future as indicted can only be described as bleak, the period of extreme pain and its increasing severity will result in him becoming increasingly breathless. In addition to the pain and will develop progressive weight loss and loss of appetite. He will have increasing difficulty in caring for himself, the administering of medication will result in him suffering side-effects to his normal everyday bathroom needs. Towards the end it will be necessary for him to be given a great deal of assistance and in the last month he will require hospitalisation. The palliative care that he will be given will probably be insufficient to cope with the pain that he will be suffering."

I will also set out here what the trial judge said concerning the plaintiff's life expectancy:

"The plaintiff's life expectancy in this matter has been stated to be somewhere in the vicinity of 6 to 8 months by one of his medical practitioners, Dr Gianoutsos. Dr Joseph who was tendered on behalf of the plaintiff in his report of May 1991 gives a prognosis that the plaintiff will not survive more than a year. Dr Lee who was tendered on behalf of the defendants gave a prognosis in January 1991 of 6 months."

After referring to some other relevant matters, the judge came to the conclusion the likely duration of the plaintiff's life was eight months.

He then considered the evidence relating to the various heads of damages claimed for the plaintiff and came to the conclusions which he summarised as follows:!

PERIOD 1. 14,500.00
PERIOD 2. 68,585.00
PERIOD 3. 27,278.00 110,363.00

When the hearing of the appeal began the defendants sought, and were granted, leave to file a fresh notice of appeal in place of the original one. Grounds (a) to (g) in para 1 of this notice were argued; ground (h) was abandoned. The effect of this notice of appeal was that the items of damage numbered 3, 4, 5, 9, and 11 in the trial judge's summary list were not in issue in the appeal.

Ground (a) asserted that the trial judge was wrong in his estimation that the plaintiff's expectation of life at the date of judgment was eight months. This ground of appeal went, to a greater or lesser extent, to the soundness of the trial judge's conclusions in regard to each of items 1, 6, 7, 10 and 12.

The argument in support of the first ground was short. Reliance was placed on the fact that Dr Gianoutsos, referred to by the trial judge in the first of the passages from his reasons earlier set out, in giving oral evidence at the trial, said in cross-examination concerning his opinion of the plaintiffs life expectancy: "I said initially six to eight months and that may well be a lesser period of time now and it may well be that it's nearer six rather than eight months of life that has." It was said that in the face of this evidence there was no basis upon which the trial judge could reach his estimate of an expectancy of eight months at the date of judgment.

If the sentence relied upon by the defendants from the evidence of Dr Gianoutsos had been, at the conclusion of the evidence in the case, the only reliable evidence on the question of life expectancy, then there may have been something to be said for the defendant's submission.

However, as the passage earlier set out from the judge's reasons shows, there were other materials before the judge that he was entitled to take into account. The most obvious one is the report of Dr Joseph given in May 1991. Further, even if the evidence of Dr Gianoutsos alone is looked at, when the whole of his evidence is read, it conveys to me and I assume would have conveyed to the trial judge, a different impression from that gained by focusing solely on the quoted sentence. The overall impression from the doctor's evidence is that when he was giving his oral evidence in late June he was still of the view that six to eight months was a proper forecast but was conceding that in the area of forecasting in which he was involved it was possible that the lower of the two figures he mentioned would be closer to what would actually happen. Viewed in this way, his evidence does not seem to me to have the effect that the estimate of six months was more probable than the estimate of eight months. Rather he was emphasising the uncertainty of prediction in the area while remaining of his six to eight months opinion.

Whatever the precise effect of Dr Gianoutsos' evidence, the trial judge was entitled to consider it in the light of the opinion of Dr Joseph as well as in the light of the report of Dr Lee. That report had been made in January, so that it seems to me quite reasonable for the trial judge to have given greater weight to the more recent reports of Drs Gianoutsos and Joseph. I do not see any error in the conclusion reached by the trial judge. Nor do I think that this court, in fulfilling its obligation to approach the appeal "by way of rehearing" should come to any different conclusion on this aspect of the case from that reached by the trial judge.

The first specific head of damage challenged by the defendants in the appeal was the figure of $70,000 for item 1.

Two points in particular were relied on by the defendants in regard to this item. The first was that the trial judge had approached it on the basis of his eight month expectation of life estimate and that it was necessarily flawed because that estimate was wrong. For the reasons I have given I do not agree with this argument.

The other argument was based on this court's decision in Simon Engineering (Australia) Pty Ltd v Brieger (CA, unreported, 6 September 1990). This was a case rather similar to the present in which an appeal against a judgment of the Dust Diseases Tribunal had been upheld. In that case an amount of $85,000 awarded by the Tribunal for the same head of damage as the $70,000 was awarded in the instant case was held to be excessive and reduced to $60,000. The defendants sought to rely on the analogy to persuade this court that Judge Johns must have been wrong in the same way as the Tribunal had been in the earlier case.

There is a fundamental difficulty with this approach. It is precluded by the view earlier decisions of this court have taken of the High Court's decision in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118. I have in past cases said that I hope the High Court will reconsider this decision so as to allow intermediate appellate courts to approach the review of this aspect of damages cases in a way that would be not only more realistic but fairer than the charade-like process imposed by Planet Fisheries. Most of the cases in which this matter has been dealt with by this court are collected and discussed by Professor Luntz in his Assessment of Damages (3rd ed, 1990) particularly at pp 507-510, where a number of cases from the appellate courts of other states are also referred to. These cases show that the difficulties felt by this court in regard to this matter

are experienced by judges throughout Australia. I will not now again go over the ground covered by all these cases. The position is, so far as this court is presently concerned, that we cannot decide whether the $70,000 figure is disproportionate to the facts of the plaintiff's relevant head of damage by reference to other cases.

Even if Planet Fisheries did not prevent the entertaining of the argument based on Simon Engineering, that argument would face difficulties. Because of the situation created by Planet Fisheries it is strictly not relevant to explore those difficulties, and I will confine myself to two comments relating to them, which I think appropriate because of having been a member of the court in Simon Engineering.

On any approach to the assessment of damages for personal injury, whether or not it is legitimate to look for and apply patterns established by the cases in regard to particular types of injury, attention must always be paid to the individual circumstances of each plaintiff's case. Injuries of a more or less identical kind although often they will affect plaintiffs in much the same way may also affect different individuals quite differently both in a physical sense and in the impact on family, social, artistic, sporting or other aspects of their lives. Thus, every case must be looked at on the footing that it is, as it in fact is, different from every other case. The difference in the results of cases of similar injuries will be smaller or larger dependent on the court's assessment of the effect of the injury on the particular plaintiff.

The other comment is that I had in mind, in agreeing with Clarke JA in Simon Engineering, that the appellant-defendant conceded an award of $60,000 would not be inappropriate. I was also influenced by the overall outcome in the case. Further, my agreement represented my attempt (to use the words of Planet Fisheries at 125) to "be aware of and give weight to current general ideas of fairness and moderation". The judicial awareness of which the High Court was speaking was that which was the "product of general experience" (at 125).

In the year that has passed since Simon Engineering was heard it is inevitable that my own general experience has in some degree altered, and I would hope, widened.

In my opinion, neither of the two particular points relied on by the defendants in regard to the $70,000 figure has any weight. A further, general, argument was also put concerning it. This was that on considering the facts found at first instance, it appears that the amount is plainly excessive.

I earlier set out the trial judge's summary of the general effect upon the plaintiff's life of the onset of his disease. That summary was accepted by the defendants in the appeal as being beyond challenge. Although only a summary, it succeeds in conveying some sense of what the mesothelioma has caused to the plaintiff in what are conventionally called pain, suffering and loss of the amenities of life. Approaching the question of this aspect of damages by the method required by Planet Fisheries, I have no hesitation in saying that my own general awareness of current general ideas of fairness and moderation leads me to the firm opinion that the figure of $70,000 arrived at by his Honour Judge Johns was in no way excessive or disproportionate.

The next ground of appeal argued concerned item 6 in the trial judge's list. This represented the plaintiff's loss of earnings for the period of eight months which the judge estimated as the plaintiff's actual life expectancy. The only ground of criticism of this item was that his Honour had taken the period of eight months instead of six months. For the reasons earlier given I do not think this argument can succeed. Similarly, the argument which the defendants later put

concerning item 10, which also was based only on the contention that the trial judge was wrong in finding the plaintiffs life expectancy was eight months, cannot be accepted.

The next matter argued concerned item 7 which was the trial judge's estimate of the plaintiff's loss of future earnings for the period following the estimated date of death to age sixty-five, being four years and four months. His Honour arrived at the figure of $68,585 for this period by estimating that $86 a week should be deducted from the agreed wage rate to be taken for the period of $461 per week and then discounting the figure of $375 by 15% to take into account "the positive and negative vicissitudes". The figure of $86 being the difference between $461 and $375 thus represented what the judge took to be what would have been required for the plaintiff's own maintenance. The defendants submitted that this figure was far too low. However, an examination of the evidence concerning this matter shows that what was said by the plaintiff, and more particularly by his wife, in a general way supported a figure in the order of that arrived at by his Honour. The matter was not pursued with any particularity in cross-examination of the plaintiff or his wife. The result was that the evidence on this particular point was left in somewhat general terms. The combination of the generality of the evidence and the way in which the case was conducted for the defendants in leaving the evidence in that state seems to me to have left it fairly open to the judge to come to the decision that he did. I do not think that his conclusion was mistaken or that this court should take a different view of it.

Item 8 was next attacked, this being the $27,278 estimated by the judge as the plaintiff's loss of earnings from the age of sixty-five. The particulars of the precise method by which the trial judge arrived at this figure were criticised. I do not propose to deal with the criticism directly, because the evidence in the case is such that it seems to me the court can properly look simply at the amount awarded and say that on the evidence it was amply justified. The judge accepted that the plaintiff had powerful reason for wanting to work past the age of sixty-five and that he had intended to do so until his illness interfered. The trade in which he was engaged was one in which he was capable of earning amounts which would have yielded a considerably higher figure than that arrived at by the judge, even after making all deductions which should be fairly made in favour of the defendants. I have no doubt that a man in the state of health, which on the evidence the plaintiff was likely to have been in from the age of sixty-five, but for the mesothelioma, with the ability, the work opportunities shown by the evidence to be likely, and the incentive the plaintiff had, would on the probabilities have earned considerably more than the figure arrived at by the trial judge. I would therefore not interfere with his estimation, which in my opinion rather favoured the defendants in the various deductions he made in the course of arriving at it.

The final argument for the defendants concerned item 12, an amount awarded for future domestic care and assistance to be provided by the plaintiffs wife.

The evidence shows that one bright spot in the difficult and painful last stage of the plaintiffs life is that his wife who is a triple certificated nurse has been giving and will continue to give him both devoted and professionally expert care on a round the clock basis. The standard or market cost of the services for the period during which this care would, according to his Honour's estimate, be necessary, was calculated on the evidence as $29,892. The defendants submitted that the period in respect of which this care would be necessary was shorter than his Honour estimated.

As earlier explained, I do not accept this contention. The defendants further argued that his Honour was wrong in using in his calculation the gross market cost of the services; he should have deducted various amounts, principally the tax which would have been paid by a market provider of the services, so as to arrive at the net figure which would have been received by such a provider.

It was said that such an approach was required because of the way this aspect of damages was dealt with by the High Court in Griffiths v Kerkemeyer (1977) 139 CLR 161 and subsequently applied in a series of decisions in lower courts.

The view I take of the matter is as stated in this court's decision in GIO v Planas (1984) 2 NSWLR 671 at 676-7:

"Put shortly, it is our view that a faithful application of the principle in Griffiths v Kerkemeyer required a computation of the amount payable for future attendant services by reference to gross wages and not wages nett of tax. This is because (i) what is being compensated, as Mason J pointed out in Griffiths v Kerkemeyer (at 193) is the loss of the plaintiff's capacity to do for himself what now must be done by others providing services for him and (ii) this loss is to be calculated in money terms by reference to the standard or market cost of such services: per Mason J, ibid, and see also Gibbs CJ (at 162 and 169) and Stephen J (at 176). In the market place the plaintiff would indubitably have to pay the gross figures to secure the attendant services. To ignore those figures could amount to an injustice to the plaintiff in that, were he later obliged to secure attendant services, he would be insufficiently compensated for them, having to find from his own means the amount referable to the taxation component those attendants would have to be paid.

It is true that this may result, in some cases, in the inclusion of a tax component which will never be paid. But that is no answer to the principle in Griffiths v Kerkemeyer because the whole point of the case is to escape from a purely indemnity basis for calculating the compensation for this aspect of the plaintiff's losses.

Of course, it is still the obligation of judges and juries to look to the final resulting figure and to ensure that it is reasonable. It may well be that according to the facts of a particular case some deduction will be appropriate for the possibilities that a wife has provided and will continue to provide household services and attendance and that a figure calculated by reference to the full rate of gross salary of commercial attendants would be unreasonable. It may involve unfairly, as against the defendants, a profit element.

It may involve, with equal unfairness, an allowance for taxation which the plaintiff will not have to pay. Indeed, it may involve an over-compensation having regard to the intensity and nature of the services. It must also be remembered that Mason J was careful to say that it was in general that the value or cost of providing voluntary services will be the standard or market cost of providing such services. Although this seems to us clearly to mean the cost the recipient of the services would be liable to pay to a non-voluntary provider, and thus include any tax payable by the recipient, the general rule will bow to the force of particular factual situations. Each case must be determined on its own facts.

In the present case the lay and medical evidence were at one. This was a case of the need for intensive, continuous service. The jury were entitled to proceed upon that basis for the future and to compensate the plaintiff's consequent needs against the contingency that the wife might not always be there to provide them."

In the present case what was eventually submitted for the defendants was that, in terms of Planas, the general rule that the market cost of the services should be taken must bow to the force of the factual situation in order to reach a reasonable result in regard to the provision of future domestic care and assistance.

I think this is a proper and acceptable way of putting the submission, but I am not persuaded that the facts of the case require its acceptance.

At the time of trial the judge's estimate of the plaintiffs expectation of life was that there was a significant period remaining during which nursing assistance of an expert kind would be necessary for the plaintiff on a 24-hour at call basis. The evidence justified this view of the nursing requirement. Although the probabilities were that Mrs Bouwhuis would be able to meet these requirements throughout the period, a number of contingencies had to be taken into account. The strain upon her, or other events beyond the plaintiff's control or her control might prevent her carrying out all nursing requirements through the whole period.

Particularly towards the end of the period the call for nursing would become evermore intensive and continuous. No matter how willing Mrs Bouwhuis would be to do everything necessary for her husband, matters might quite conceivably reach a stage beyond her capacity to handle. Considerations of this kind lead me to think that in the circumstances of the case neither reasonableness nor fairness calls for the deduction of tax and other items from the market cost of nursing services in order to reach a net figure. I do not think that the trial judge erred in regard to this item or that this court should reach any different conclusion.

In my opinion the appeal should be dismissed with costs.

Counsel for Appellant: J D Cummins QC with P E King Solicitors for Appellant: Toomey Pegg and Drevikovsky Counsel for Respondent: P C B Semmler

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