Davis v Amaca Pty Ltd

Court of Appeal (Vic)|2024-02-08

Solicitors: VBR Law (Plaintiff) Holman Webb (Defendant) File Number(s): DDT 2023/232314

Introduction

By a Statement of Claim filed on 21 July 2023 Mr Barry Davis seeks damages against Amaca Pty Limited (Amaca) for the fatal disease of mesothelioma. Mr Davis was born in 1941 and is presently 82 years of age. Mr Davis was employed as a carpenter in South Australia between 1955 and 1968. He was employed as a carpenter in Queensland between 1969 and 1977. He was a self-employed carpenter in Queensland between 1977 and 1983. In 1969 and again in 1978 Mr Davis built two homes in Queensland.
During all periods of employment and self-employment as a carpenter, and during the home building, Mr Davis was exposed to asbestos dust and fibre from Amaca (ie James Hardie) products.
The matter has been through the Claims Resolution Process. The Mediator's Certificate indicates that the only issue to be determined is quantum. In those circumstances I will not recite the detailed evidence concerning causative exposure to James Hardie asbestos cement building products.

Applicable Law

Amaca accepted that Mr Davis had sufficient exposure in South Australia alone to cause his mesothelioma. Similarly, Amaca accepted that Mr Davis had sufficient exposure in Queensland alone to cause his mesothelioma (Tcpt 86/2). All exposure, which is not trivial, causes or contributes to the disease of mesothelioma. Mr Davis is therefore to be compensated as the victim of a South Australian tort and as the victim of a Queensland tort. This raises the potential of different assessments of damage caused by the South Australian exposure and the Queensland exposure.
The test to be applied as to the governing law is clear, as a result of the decision of the High Court in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503 (Pfeiffer). In that case a plaintiff sued in the Supreme Court of the Australian Capital Territory for damages for personal injuries suffered in New South Wales. The question which arose was whether the applicable law for the assessment of damages was the law of the State or of the Territory.
The High Court examined various possibilities for a choice of law rule. The possibilities which emerged were the lex fori (the law of the forum), the lex loci delicti (the law of the place of the wrong) or the proper law of the tort.
For reasons set out at pars [72]-[87], the High Court came to the view that "the common law should now be developed so that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an inter-State element" - at [87].
The High Court also held that all questions about the kinds of damage, or the amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti - at [100].
Since mesothelioma is an indivisible injury and because the exposure in South Australia and the exposure in Queensland each made a material contribution to causing the disease, Pfeiffer means that the court must apply the lex loci delicti, being the law of South Australia and the law of Queensland to the determination of quantum.

General Damages - Submissions

In both South Australia and Queensland, the assessment of general damages for the dust disease of mesothelioma is a common law assessment. There is no statute in either State which modifies the common law in relation to the assessment of general damages.
There is no State common law. There is one indivisible common law of Australia - Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 at p 112; Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 at [44].
Senior Counsel for Amaca submitted that it was appropriate in assessing damages, applying the law of South Australia, to consider the decision of the Full Court of the Supreme Court of South Australia in Amaca Pty Ltd v Werfel [2020] SASCFC 125. In that case a judge of the District Court of South Australia had assessed general damages at $400,000. The Full Court on appeal reduced such damages to $280,000. The court said: "The review of the award of damages made in this case must give primary emphasis to the general level of damages awarded in South Australia" - at [416]. Further, the court said at [418]: "…It would be wrong to fail to give primary emphasis to awards made in this State. Though there is no reason why the pain and suffering of a South Australian should be assessed at anything less than the pain and suffering of any other Australian, there remain differences nevertheless."
The conclusion of the Full Court was that the award of $400,000 for general damages "was manifestly excessive and out of step with the general level of damages awarded in this State" - at [419]. The Full Court set aside that part of the award and fixed a figure of $280,000 for general damages.
Counsel for the plaintiff submitted (MFI 4) that: 1. The decision in Werfel is distinguishable, as Mr Werfel had mesothelioma of the tunica vaginalis, whereas Mr Davis suffers from pleural mesothelioma. Mesothelioma of the tunica vaginalis is an extremely rare condition, involving mesothelioma of the serous membrane within the scrotum. Its symptoms and effects are very different to those of pleural mesothelioma. 2. The substantive law which the Tribunal must apply to the assessment of damages is the common law of Australia, which is one indivisible common law. The Dust Diseases Tribunal has previously rejected the argument advanced by Amaca in this case that a lower amount should be awarded in the Tribunal for general damages to a plaintiff injured by an interstate tort. The cases cited were: Murfett v Wallaby Grip (2000) 20 NSWCCR 638 per Curtis J (South Australian exposure); Kennedy v Amaca Pty Ltd [2003] NSWDDT 21 per President O'Meally (Queensland exposure); Routley v Bridgestone Australia Ltd [2004] NSWDDT 4 per Curtis J (South Australian exposure). By contrast, there have been two decisions of the Tribunal where general damages were awarded in different amounts where a plaintiff suffered exposure in two jurisdictions: Webber v Comcare [2018] NSWDDT 10; Kennedy v CMIC Group Ltd and CPB Contractors Pty Ltd [2020] NSWDDT 7. However, the differential assessments in both those cases arose from the fact that in the New South Wales (Webber at [135]; (Kennedy at [171]) there had been a statutory modification of the assessment of general damages. That modification, arising from s 15B(5)(b) of the Civil Liability Act 2002 (NSW), is not relevant to the issues in this case and does not lead to different assessments. 3. The submission for Amaca was contrary to the principle set out by the High Court in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 where the High Court said: "The judgment of a court awarding damages is not to be overborne by what other minds adjudged right and proper in other situations". 4. There should not be any difference in the general damages to be awarded to Mr Davis depending on the location of the forum in which they are to be assessed. Nor should the assessment depend on where the suffering has occurred.
Senior Counsel for Amaca submitted (MFI 5): 1. There are significant differences in the evaluation of general damages from jurisdiction to jurisdiction. In the absence of any authority from the High Court as to what is the appropriate quantum of damages for a person suffering from mesothelioma, variations between jurisdictions will exist. 2. There is a "gross incoherence" when a 42-year-old sufferer of mesothelioma such as Mr Werfel receives $280,000 for a tort occurring in South Australia but Mr Davis, who is 82 years old, would receive a much larger sum if the submission for the plaintiff is adopted. 3. The post-tort residence of Mr Davis is not a relevant consideration. Regard should be had to the binding effect of the decision of the intermediate appellate court in South Australia, being the place of the tort.

General Damages - Consideration

Counsel for the plaintiff submitted that an appropriate award of general damages, having regard to both South Australian and Queensland exposure, would be $485,000. Senior Counsel for Amaca submitted that an award of general damages of $340,000 would accord with the approach to general damages in the courts of South Australia. In respect of the Queensland exposure Senior Counsel for Amaca submitted that there was no particular guidance provided by courts in that State, and thus a "New South Wales approach" could be taken to the assessment of general damages arising from the Queensland tort (Tcpt 89/30).
This correct and proper concession means that the debate, about whether general damages should be lower in this case because of a South Australian tort, is rather academic.
In assessing damages for pain and suffering, there is no "grisly table of catastrophes": Southgate v Waterford (1990) 21 NSWLR 427 at 434. In Dell v Dalton (1991) 23 NSWLR 528 at 533, the Court of Appeal said that the assessment of damages for personal injuries: "…will involve questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment."
I accept the submission of Senior Counsel for Amaca that the different awards of damages in different States of the Commonwealth do lead to a "gross incoherence" (MFI 5, par 22), given that there is one common law of Australia. It is to be noted that while awards in South Australia are generally lower than awards made by this Tribunal, some awards in Victoria for general damages for mesothelioma have been higher than in New South Wales - see for example Amaca Pty Ltd v King [2011] VSCA 447 ($730,000) and Reid v Seltsam Pty Ltd [2021] VSC 653 ($580,000).
In Murfett Judge Curtis said at [8]: "Second, even if it were the case that South Australian judges award less than may be awarded by New South Wales judges on identical facts, they purport to apply the same law. There being a one and indivisible common law system throughout Australia each judge exercising common law jurisdiction must apply that same law with the same intention of fairly but adequately compensating the plaintiff. The assessment of general damages '...is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases': see Planet Fisheries Pty Ltd v La Rosa (1968) 11 CLR 118 at 124 - 125. If it were the case that there was a persistent difference in awards between State jurisdictions within the Federal entity that is Australia, it is for the High Court in the exercise of its supervisory jurisdiction to determine whether any particular verdict allowed to stand by a State Court of Appeal was 'so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case': see Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44."
It must be emphasised that the Full Court in Werfel made it plain that they were expressing their "opinion" about the appropriate level of general damages for that particular claimant - at [419]. I will approach the assessment of general damages in this case on the same basis. My opinion will be based on my findings of fact, and "matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment". I will have some regard for awards of general damages for mesothelioma made in the past five years (see MFI 3, par 39). However, common sense, and a correct legal approach, mandates that each case must be decided on its own facts.

Discount Rate for Future Losses

The law of South Australia imposes no statutory discount rate in relation to future losses. The common law discount rate of 3% thus applies: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402. In Queensland, a 5% discount rate applies because of s 61 of the Civil Proceedings Act 2001 (QLD). These two discount rates were the subject of agreement between counsel.
Thus there will be different assessments of damages for the lump sum for future care, in relation to the South Australian tort and in relation to the Queensland tort. The application of the tables to figures for the future, where there are so many imponderables, tends to lend an air of precision to what is really a broad evaluative exercise. In this case the court has to make findings about: life expectancy; when immunotherapy treatment will start; whether there will be side effects from such treatment; and whether such treatment will be efficacious. In those circumstances, to apply different deferral figures (calculated to three decimal places), while completely artificial and illusory, is necessary as a matter of law.

Evidence of Mr Davis

The evidence-in-chief of Mr Davis was given by an affidavit sworn on 11 January 2024 (PX 1, p 1).
The affidavit provided detailed evidence in relation to the symptoms and disabilities of Mr Davis since he first noticed in 2020 that he was short of breath. His evidence concerning medical treatment is in accord with the medical records and clinical notes which were tendered (PX 1, pp 51-105).
After noticing that he was short of breath in about 2020, Mr Davis consulted his GP Dr Kapadia on 6 July 2021. Dr Kapadia conducted various tests and referred Mr Davis to a cardiologist.
On 22 November 2022 Mr Davis was walking up a hill near his home when he experienced right-sided chest pain which was intense. He suffered the pain again two days later when he was at home walking up stairs. He went back to Dr Kapadia on 29 November 2022. His chest pain had resolved by that time.
On 14 April 2023 Mr Davis saw Dr Kapadia due to a chronic cough and wheezing. He was referred for a chest x-ray. This test was done, and it showed a left lung opacity and a pleural effusion. Dr Kapadia referred Mr Davis for a CT scan of his chest. Mr Davis was also referred to Dr Deller, a respiratory specialist.
Mr Davis saw Dr Deller on 22 May 2023 when he was referred for an ultrasound drainage of his chest. 1,250ml of fluid was drained via a large needle inserted into his lungs from his back. A chest x-ray performed following this procedure showed a left lower lobe collapse. The cytopathology from the pleural fluid showed no malignant cells. Dr Deller referred Mr Davis to the John Flynn Private Hospital for a left video-assisted thoracoscopy (VATS) and pleurodesis.
On 30 June 2023 at that hospital Mr Davis had the left VATS, a talc pleurodesis, a biopsy, an abrasive pleurodesis and an intercostal nerve block under the care of Dr Sanders. He was in intense pain after that surgery. Mr Davis was discharged from the hospital on 4 July 2023.
Mr Davis saw Dr Deller on 14 July 2023 when he was informed that the results of the procedures were consistent with epithelioid mesothelioma. He was advised that the disease was terminal. Dr Deller referred Mr Davis to an oncologist, Dr Horwood.
Mr Davis saw Dr Horwood on 10 July 2023. He told the doctor that he was feeling better since the surgery and he was back to walking 30 minutes per day. Dr Horwood discussed combination immunotherapy as an option but given that the symptoms were not great at that time, it was decided to simply observe the condition. Mr Davis was advised by Dr Horwood to commence treatment once he began to experience severe pain and shortness of breath caused by the mesothelioma.
On 28 July 2023 Mr Davis had a repeat CT scan of the chest. He consulted Dr Horwood again on 2 August 2023 and was advised that the CT scan showed a small volume of pleural fluid remaining in the base of the left lung, but no evidence of a progressive pleural mass lesion. Dr Horwood advised that there was no indication to proceed at that time with immunotherapy.
Mr Davis had another CT scan of the chest on 17 October 2023. He saw Dr Horwood again on 25 October 2023 and again was advised that there was no need to commence immunotherapy at that time. An appointment with Dr Horwood was scheduled for early 2024.
Mr Davis said that before he was diagnosed with mesothelioma, he was enjoying living "an active and busy lifestyle". Since his diagnosis he has lost a lot of energy and has experienced breathlessness every day. He also suffers from giddiness. He has lost 10kg in weight and has lost his appetite.
Mr Davis has been a member of the Men's Shed at Ashmore for about five years. There he has used his skills as a carpenter to complete maintenance and joinery work. He used to go to the Men's Shed five days per week. He enjoyed this work and felt that his volunteering helped members of the community. By the time of his affidavit he was only going to the Men's Shed about once per week.
Mr Davis has been a member of the Ulysses Club, which is a social club for motorcyclists aged over 40 years. He received the Telemachus award for excellent services to the Ulysses Club in 2022. He was the president of the Gold Coast branch about five years ago. Mr Davis attended meetings in Nerang once a month and went to social events. Mr Davis has no longer been able to do club rides due to his declining mental and physical health. He gets out of the house and goes to see off the motorcyclists for their rides.
Mr Davis used to travel by motorcycle to the AGM of the Ulysses Club, which meant travelling all over eastern Australia. He and his wife used to go away for camping trips. He is unable to do this anymore.
Prior to 2020 Mr Davis used to walk for over an hour each day at a brisk pace. By the time of his affidavit he could only manage to go about twice per week for 30 minutes. He feels very puffed during and after his walks. Dr Horwood has advised him to continue walking for as long as he can.
Mr Davis is a keen wood carver. He now struggles to stand up for long periods of time to do this task.
Mr Davis' wife Gwyneth (known as Gwen) retired in 2020. The couple wanted to travel around Australia together and had been looking at brochures in relation to travelling to Perth, the Kimberly, the Flinders Ranges and on the Indian Pacific train. After Mr Davis was diagnosed, they threw the brochures out. Mr Davis has not been able to travel as he has needed to be home for medical appointments. Mr Davis used to travel to a family reunion every four years in South Australia but was unable to attend the 2023 reunion because of his condition. Mr Davis said that he was looking forward to enjoying his retired years with his family and his wife Gwen, but he regards his future as "bleak". The thought of leaving Gwen behind "is sometimes too much for me to bear".
Mr Davis lives with his wife and his son Curt in a five-bedroom, three-bathroom, two-storey house in Ashmore which he and his wife built 45 years ago. There are 15 stairs to get from the bottom level to the top level. When the affidavit was sworn Mr Davis was able to shower and dress himself independently. He installed shower rails in case he had a fall. He experiences shortness of breath when bending forward to put on underwear or socks or shoes. His wife Gwen is 10 years younger and is in good health. Gwen has always taken care of the majority of the domestic chores. She is now responsible for the lawnmowing.
Before Mr Davis was diagnosed with mesothelioma, he carried out maintenance work around the house. He still does small jobs but cannot do anything heavy and will often ask his son for assistance. Mr Davis used to do the hedging every few months using hand shears, but this task now takes much longer as he has to have breaks as needed. He paid a worker $500 to come to his home and cut back the cane palms. That task was too heavy and hard for him.
Mr Davis said that he understands that because he has a terminal disease, his symptoms will progress and he will deteriorate. He said that he has been independent his whole life and does not want to be a burden to his wife or others around him. Mr Davis said "I will pay for any assistance I need as my condition progresses".
In his oral evidence-in-chief Mr Davis spoke in more detail about his love of motorcycles and motorcycling. He said that before he became ill, he used to lead the Sunday ride for the Ulysses Club. Mr Davis has stopped riding his motorcycle because he has lost confidence in doing so. He said that he felt dejected about not riding motorcycles "because I'm missing out on the fun". He said that it had been a large part of his life and he missed the companionship of riding with his mates.
Mr Davis also gave more detailed evidence about his involvement in the Men's Shed. He was involved in initially renovating the shed when it was first purchased by two Rotary Clubs. He said that the Men's Shed was a place where men could get together and socialise and build things. It gave them a sense of worth. He described it as "basically all about men's health". He said that he obtained a lot of enjoyment out of his involvement with the Men's Shed. Since he became ill, he has lost interest in making things. He is still one of the Shed captains and goes there to keep an eye on people to see that they are using the equipment properly. He also helps with the clean-up at the end of the day.
Mr Davis gave evidence that although he was not suffering pain while giving his evidence, he had found that he was breathless at times, particularly when going up or down stairs. He struggles for wind when he goes out walking, which he can still do for half an hour.
Mr Davis said that he now suffers from anxiety. Little things get him quite upset. He said that the diagnosis had hit him "like a tonne of bricks". He now loses track of what he is doing and loses track of what he is saying.
Mr Davis was asked about that part of his affidavit where he said that he wanted to stay home for as long as possible. This is something which he has discussed with his wife Gwen. They built the house in which they live in 1978. Both husband and wife worked on building the house. They still have great pride in the house, not only because they built it, but also because they brought up their family in it. Mr Davis said that he loves the house and so does his wife. Mr Davis said that his wife was determined to stay there and was determined to look after him for as long as she could.
Mr Davis was asked by counsel to describe how he felt about the future. He said that he had lost a lot of the things he was looking forward to doing. This was not only motorcycling and the Men's Shed, but he had a passion for hiking which he can no longer do.
In cross-examination Mr Davis was asked firstly about his sleep apnoea. He said that he had consulted doctors for sleep apnoea but that using a machine had not really helped him.
Mr Davis was asked about his motorcycle accident in 2015. He ran off the road in fog having swerved to avoid a wombat. He had an operation which resulted in a lumbar fusion. His 1300cc Honda motorcycle was written off in that accident. In 2016 Mr Davis bought another motorcycle, a Honda 650cc bike ("the little Honda"). With the little Honda Mr Davis went back to riding with the Ulysses Club. He became a ride leader. Until two months prior to the trial, Mr Davis had ridden his motorcycle once a week, as a ride leader. It was a day ride, where the group rode together in the morning, had a break somewhere for lunch, and rode home a different way. Mr Davis said that he was not riding at present as he had lost confidence in his ability to ride. He had not ridden for the last two months.
In cross-examination Mr Davis said that before his diagnosis he was going to the Men's Shed four times a week. He could not go five days, as he was riding his bike on the fifth day. Mr Davis said that it was a very popular Men's Shed, with about 95 members. On a good day 25 men would turn up to the shed. He now gets to the shed once a week.
Mr Davis was asked about being diagnosed with depression in 2017. He admitted that this was so, and he related his depression to some problems he had in the business at that time. He said that he had never suffered from any sort of anxiety before his diagnosis.

Evidence of Mrs Davis

The evidence-in-chief of Mrs Davis is contained in her affidavit sworn on 11 January 2024 (PX 1, p 11). The couple were married in 1970. Mrs Davis was born in 1951 and is presently 72 years of age.
Mrs Davis said that she first noticed her husband slowing down and becoming short of breath in about 2020. He was also going for fewer walks than usual and she noticed he was puffing and needed to sit down and rest after a walk. Her affidavit corroborates the evidence of Mr Davis concerning his medical treatment.
Mrs Davis said that her husband has always been an active person. She regarded him as fit, strong and healthy before he was diagnosed with mesothelioma. Mrs Davis and her husband had built two homes together and before the mesothelioma Mr Davis was able to manage very heavy hands-on tasks. She and her husband were enjoying living an active and busy lifestyle.
Mrs Davis said that since the diagnosis her husband has lost a lot of energy. She can hear him breathing heavily and sees him puffing when he walks too far or up stairs. She has observed him to be breathless when bending over. She knows that he has lost his appetite and his weight has reduced by about 10kg. Mrs Davis corroborated the evidence of her husband regarding involvement in the Men's Shed and the Ulysses Club.
Mrs Davis retired in 2020 and she and her husband had plans to travel around Australia together. Those plans have since been abandoned.
Mrs Davis has observed that her husband spends a lot more time reading and looking into space rather than getting out and about in the community and doing tasks around the house. She said: "It is hard watching him slowly lose his energy. I can see him deteriorating in front of me. I can see that he is sad and that he is carrying the burden of the terminal diagnosis on his mind."
Mrs Davis corroborated the evidence of her husband regarding the work he used to do around the house, and the things that he can now do. She said: "I want to help and assist Barry as best I can. However, as time goes on and we need help with Barry we will have to pay for it."
In her oral evidence-in-chief Mrs Davis said that prior to her husband's diagnosis with mesothelioma, she had never been concerned about any depression or anxiety from which he had suffered. She said that he did suffer depression in 2017 but that he made a recovery from that episode.
Mrs Davis said that her husband's life was his family, and as husband and wife they had enjoyed being together during their 53-year marriage. Mrs Davis said that the motorcycle was her husband's "pride and joy". She also said that he loved going to the Men's Shed "because he's a very talented man". Mrs Davis described how Mr Davis had made most of the furniture in their home and had become a wood carver since his retirement.
Mrs Davis said that since the diagnosis of mesothelioma, her husband had become very withdrawn. He sometimes got agitated with her, and while she found this difficult, she understood that it was a result of his disease and his reaction to it.
In cross-examination Mrs Davis said that her husband had always enjoyed being busy and "was always on a mission to keep himself occupied". Mrs Davis said that her husband was not a person to wallow and feel sorry for himself. Neither of them are.
Mrs Davis was cross-examined about past episodes of depression. She described her husband as a quiet man and a proud man. She said that he did have short periods of time feeling uncomfortable about something, but that everyone had had those feelings. Mrs Davis said that her husband was a sensitive man who valued fairness and honesty. He was proud of who he was and had always taken pride in being a good husband and father. Mrs Davis confirmed that she and her husband took pride in what they had achieved and the home they had built. She said that she keeps the home nice because "I like to see people come and feel at home".

Credibility of Mr and Mrs Davis

I have no hesitation in accepting everything said by Mr and Mrs Davis as the unadorned truth. There was no submission to the contrary made by the defendant.

Dr Deller

Dr Deller is a respiratory and sleep physician who was first consulted by Mr Davis in July 2022 for sleep-related issues. In May 2023 Dr Deller saw Mr Davis for respiratory-related concerns which led to a diagnosis of mesothelioma. Dr Deller offered the opinion in a report dated 28 July 2023 (PX 1, p 51) that Mr Davis had a life expectancy of less than 18 months. He estimated that Mr Davis would remain at a low dependency level for a further 9-12 months, before experiencing moderate dependency for 4-6 months, high dependency for 1-2 months, and complete dependency for a couple of weeks or less before his death.
Dr Deller provided estimates of the cost of medical care based on an estimated survival of less than 18 months. I will return to the precise figures after dealing with the opinion of other medico-legal experts discussed below.
There was no cross-examination of Dr Deller.

Dr Horwood

Dr Horwood is a medical oncologist who was first consulted by Mr Davis in July 2023. In a report dated 6 December 2023 (PX 1, p 64) Dr Horwood said that Mr Davis has been diagnosed with epithelioid mesothelioma. Dr Horwood thought that because the malignancy was of a lower grade there was no indication at the present time for active treatment. In his report dated 6 July 2023 Dr Horwood thought that the life expectancy was in the order of 18 months to 2 years. He thought at that time that Mr Davis would have a low level of dependency for 12 months, then have 6 months of moderate dependency, 3 to 4 months of high dependency and 1 to 2 weeks of complete dependency before his ultimate death.
Dr Horwood provided a second report which is dated 31 January 2024 (PX 6). He considered the reports of Professor Fox dated 20 January 2024 and Mr Stephen Hoey, occupational therapist, dated 19 October 2023. Those reports are discussed further below.
Dr Horwood reported that he saw Mr Davis again on 31 January 2024. A CT scan showed no significant change compared to a scan performed in October 2023. There was no evidence of progression of the pleural-based tumours and no evidence of pleural effusion. Dr Horwood said that Mr Davis continued to remain well and was walking 30 minutes per day without stopping. Mr Davis continued to do light gardening including pruning. He denied any pain. His appetite was good and his weight was stable.
On examination on 31 January 2024 Dr Horwood found reduced breath sounds in the left base of the chest. He thought that Mr Davis was deteriorating very slowly. He confirmed the life expectancy opinion given in the report of 6 December 2023 (ie 18-24 months from 6 December 2023).
Dr Horwood agreed with the assessment of Professor Fox, that the mesothelioma was progressing slowly. For that reason, Dr Horwood elected not to proceed with combination immunotherapy. Mr Davis will be reviewed again in May 2024. Dr Horwood said that he would start immunotherapy based on symptomatic or radiologic progression.
Dr Horwood said that he agreed with the contents of Mr Hoey's report. He believed that the level of care requirements noted in each Eastern Cooperative Oncology Group Performance Status (ECOG) dependency phase was "reasonable and appropriate". The concept of ECOG is discussed below.
Dr Horwood provided a third report dated 22 January 2024 (PX 8) which confirmed his compliance with the Expert Witness Code of Conduct.
Dr Horwood gave oral evidence by telephone from Queensland. The connection was very clear and I was at no disadvantage in hearing but not seeing Dr Horwood.
In his evidence-in-chief Dr Horwood explained that there are several different types of mesothelioma. The epithelioid type tends to be less aggressive and progresses more slowly than some of the other variants. At the aggressive end of the spectrum is sarcomatoid mesothelioma. Patients with epithelioid mesothelioma live significantly longer than patients with other types of the disease. The disadvantage of this is that the symptom burden is spread out over a longer time period. Patients often require more care and support over an extended period of time. Dr Horwood said that the symptoms as the mesothelioma progresses will be the same as the symptoms suffered by other patients with a different form of the disease. These future symptoms include breathlessness, chest pain and weight loss. Patients with mesothelioma develop progressive chest pain related to chest wall and nerve entrapment. They then require larger and larger doses of analgesics, often opioids. There is a general deterioration in appetite and the patient loses weight and strength. Eventually the patient becomes bed-bound and is unable to care for themself.
Dr Horwood explained that he had not commenced immunotherapy treatment, as this treatment would not cure the condition, but would only slow the rate of change. Dr Horwood said that Mr Davis is still functioning, so the treatment would be commenced at some future time when there was progression of the disease. Once immunotherapy was commenced, Dr Horwood hoped that it would continue for "perhaps 12 months". The immunotherapy drugs are available on the PBS system, and thus there would be no cost to Mr Davis in having this treatment. However, the administration of the drugs would require admission to an oncology day unit every three weeks. The drugs would be administered intravenously. There is a day admission fee which is "perhaps $1,000-$1,200 every time he came along". There would also be a medical supervision fee of $200. Dr Horwood said that Mr Davis would require a CT scan every three months, but that once treatment was started the CT scans would become more frequent. They would then be done every nine weeks to monitor progress. Each scan would cost about $400.
Dr Horward said that there was a possibility that Mr Davis would require radiotherapy to help with pain control. Dr Horwood said that it was undoubted that Mr Davis would require pain medication in the future. He said that there were possible side effects of immunotherapy, which occurred in between 7% and 10% of patients. Complications could include abnormal liver function, diarrhoea, endocrine or glandular complications, abnormal thyroid and adrenal function. If these side effects occurred, they would require treatment. Another possibility was that Mr Davis might develop very stiff joints or arthritic-type of pain. The immunotherapy could create an auto immune response which would lead to rheumatological complications. Dr Horwood thought that it was certain that Mr Davis would require oxygen at home.
In relation to future hospital admissions, Dr Horwood said that Mr Davis would need at least four or five hospital admissions.
In cross-examination Dr Horwood confirmed that once immunotherapy started it would continue for up to 12 months. Progress would be monitored every nine weeks, and treatment would only be stopped because of side effects or because there was a clear-cut indication that the mesothelioma had progressed despite the treatment. Dr Horwood said that most patients stop immunotherapy within a 12-month period, but there were some patients who had it for up to two years.
Dr Horwood was asked whether a patient, who had needed four or five hospital admissions, would get to the point where they could no longer be cared for at home. He said that this was not necessarily the case, providing that pain could be kept under control and other symptoms managed. He did say that there was a point of deterioration where the patient would not be able to be managed at home. The terminal phase of patients with mesothelioma was usually dealt with in a hospital or a hospice. Dr Horwood said that some patients were able to have their end-of-life care managed at home, but the majority of patients ended up in hospital or a hospice.
Dr Horwood was specifically asked about the report of Dr Deller dated 28 July 2023. Attention was drawn to Dr Deller's estimates of the periods of time in which Mr Davis would progress through the ECOG phases. He said that he agreed with the views of Dr Deller expressed in the report. There would be low dependency for 9-12 months, but he expected probably more than 12 months. In relation to moderate dependency, Dr Horwood thought that this would be more likely 6 months rather than 4 months. Generally, he foresaw the dependency of Mr Davis as being at the upper end of each range put forward by Dr Deller. Dr Horwood agreed that this would make the total life expectancy closer to two years.

Professor Fox

Amaca tendered the report of Professor Fox dated 20 January 2024 (DX 1). Professor Fox had not seen Mr Davis but had been asked to comment upon the various reports. He agreed with the diagnosis of epithelioid mesothelioma. Professor Fox also agreed that the disease would progress, and he put forward a total survival time of 18 months. Professor Fox hypothesised that the disease would progress after 7 months, at which time Mr Davis would pass through the ECOG 2 phase for 6-7 months. He would then have 2 months in the ECOG 3 phase and 2 weeks in the ECOG 4 phase. Based on clinical trial evidence, Professor Fox thought that the life expectancy was 12-18 months. He did not identify any other medical conditions which would have affected life expectancy.
Professor Fox agreed with the prognosis put forward by Dr Deller. Professor Fox was also in general agreement with Dr Horwood's report. Professor Fox noted that the median survival time in initial clinical trials of immunotherapy was 18 months.
Professor Fox was asked to comment on the occupational therapy report of Mr Hoey (discussed below). He noted the report and said "these are reasonable figures". Professor Fox said there was little need for care until the disease progressed.
Professor Fox was not required for cross-examination.

Mr Hoey

Mr Stephen Hoey, occupational therapist, provided a report dated 19 October 2023 at the request of the solicitor for the plaintiff (PX 1, p 54). He conducted a telephone interview with Mr Davis on 6 October 2023 but later spoke to Mr Davis in person. His report contains photographs of parts of the family home.
Mr Hoey gave an opinion by reference to the ECOG scale. Mr Hoey made assumptions about the periods during which Mr Davis would be at different levels of dependency, by adopting the figures in the report of Dr Deller. To repeat, those figures were: 1. ECOG 1 (low dependency) - 9-12 months. 2. ECOG 2 (moderate dependency) - 4-6 months 3. ECOG 3 (high dependency) - 1-2 months. 4. ECOG 4 (complete dependency) - a couple of weeks or less.
Mr Hoey described the activities which a person at various ECOG levels could perform and those which would have to be performed for them. There was no dispute between the experts about the efficacy of the ECOG scale and the description of the various stages on the scale.
Mr Hoey provided an opinion as to the "market cost of providing services to Mr Davis (expressed as an hourly rate)". Mr Hoey said that these rates were in his view "conservative". He explained that the National Disability Insurance Scheme (NDIS) had created an unprecedented demand for care workers in the community. Mr Hoey said that demand for care services far exceeded capacity. Mr Hoey has over 26 years of experience in providing support or case management to persons with medical conditions or disability, who require care in their home to assist with activities of daily living. He said that he had never before seen a situation like the present, where demand for care is so high. The experience of Mr Hoey was that people in organisations are now paying well above market rate just to secure carers. It was for those reasons that he said that the rates he put forward in his report were a conservative view of the market cost of services.
The hourly rates in the report of Mr Hoey were as follows: Weekdays $70 Weeknights $75 Saturday $95 Sunday $120 Public Holiday $150 Inactive sleepover $300

Mr Hoey said that Mr Davis was presently at the ECOG 1, or low dependency, phase. His needs at the moment are for assistance with outdoor chores, including lawn, garden and house maintenance, as well as carrying groceries upstairs. He put the need at no less than five hours per week. Lawn or garden services can be sourced at $55 per hour, and thus the cost of providing five hours per week in the market was $275.
In the moderate dependency phase (ECOG 2) Mr Davis will require not only outside assistance, but will also need assistance with indoor chores including cleaning, laundry, cooking, and transportation to and from medical appointments. Mr Hoey put the need at four hours per day. Using his market rate figures, this results in a figure of $2,260 per week, on top of the $275 per week for outdoor chores and maintenance, a total of $2,535 per week. The calculations are set out in par 30 of his report.
In the high dependency phase (ECOG 3) Mr Hoey said that Mr Davis would only be capable of limited self-care, and would be confined to a bed or chair for more than 50% of his waking hours. He would be dependent on carers for assistance with basic tasks such as showering, dressing or toileting. Assistance would be required with all domestic chores and transportation to medical appointments. Mr Davis will need pressure care management including turning in bed or repositioning in his chair. There would be a need for overnight assistance with pain management or toileting.
Mr Davis would need direct care during his waking hours (12-16 hours per day) as well as the presence of an inactive sleepover carer. This is defined as a carer who sleeps within the home, but is available to tend to the patient for up to two hours per night. His calculation of the market costs of these services was $10,010 per week plus $275 for outdoor chores and maintenance, a total of $10,285. The calculations are set out in par 32 of his report.
During the complete dependency phase (ECOG 4) Mr Hoey said that Mr Davis would be completely disabled and unable to care for himself, being totally confined to a bed or chair. Mr Hoey said that this palliative stage of care can be met in a hospice setting, but in his experience many patients prefer to die at home. He said that this could be managed with proper support and experienced carers.
The market cost of providing those services is $13,810 per week plus the $275 for outdoor chores and maintenance, a total of $14,085. The calculations are set out in par 36 of his report.
In par 28 of his report Mr Hoey said that the Davis home is on a sloping block with multiple stairs, which would pose difficulties for a disabled person. The main living area is upstairs. Mr Hoey said that Mr Davis will require the following expenditure on home modifications: 1. Installation of an internal chair lift - $11,000. 2. Outside extendable ramps - $20 per week. 3. Two suction support bars in the upstairs bathroom - $300. 4. Anti-slip floor mats in the shower as well as the bathroom floor - $180. 5. A disability shower handset and wall connection - $185. 6. Hire of a dual-motor electric lift chair - $65 per week. 7. Pressure relief cushion - $35 per week. 8. A lightweight wheelchair for outings - $35 per week.
Mr Hoey also said that to set up the care services and coordinate the hire and purchase of equipment, as well as the instruction of carers, would require 10 hours of consultation with an occupational therapist at of cost of $200 per hour. The total was $2,000.
During the high dependency phase Mr Hoey said in pars 33 and 34 of his report that the following would be required. 1. If an internal chair lift is installed, then a ShowerBuddy SB1 can be installed in the upstairs bathroom - $3,100 to purchase or $110 per week to rent. 2. If the internal stair access is not installed, then Mr Davis would need to move to the downstairs bathroom, which will need renovation at a cost of $23,000. 3. Hire of an adjustable hospital bed - $95 per week. 4. Hire of an alternating air mattress overlay - $80 per week. 5. Hire of an overbed table - $15 per week.
Mr Hoey provided a second report dated 19 January 2024 (PX 4) which confirmed his compliance with the Expert Witness Code of Conduct.
Mr Hoey provided a third report dated 5 February 2024 (PX 5) which referred to a face-to-face interview and examination of Mr Davis at his home on 31 January 2024. He said that he had now had the benefit of viewing the residence which was a very large two-storey home, together with expansive lawns, gardens and a garden shed area. His opinion was unchanged as a result of that meeting.
Mr Hoey came from Brisbane and gave evidence in court. He said that he spent over an hour at the residence looking inside and outside the home. He spoke to Mr Davis and Mrs Davis separately but also together. Mr Hoey said that it is the cornerstone of occupational therapy to visit people in their homes to understand the dynamics of the home environment. He was reliant upon medical specialists as to diagnosis and prognosis. The role of an occupational therapist was to look at the disability that a person may suffer within their home. Mr Hoey said that he did not think that a proper opinion could be provided about the nature and extent of care needs without speaking to Mr Davis or his wife.
Mr Hoey had been an occupational therapist for almost 28 years. He has been in private practice in Brisbane for 25 years with a staff of up to 10 occupational therapists. He has completed a post-graduate diploma in palliative care and has seen patients with mesothelioma at various stages of the course of their disease. He has seen such patients towards the end of their life. Mr Hoey was aware that epithelioid mesothelioma patients have a longer life expectancy. He said that the care and the suffering was something that such patients went through for a longer than average period.
Mr Hoey was asked about the hourly rates in his first report. He said that they were the published rates from the NDIS for home care. Mr Hoey confirmed that it was difficult to find carers since the NDIS started. He described this as follows: "A daily battle for myself and occupational therapists who work with me is the ability to source carers full stop, let alone source carers who are appropriate to the disability we're dealing with". He confirmed that in his experience people were paying above the prescribed rate to obtain appropriate carers.
Mr Hoey was asked about the opinion of Mr Woolley, the defendant's occupational therapist. His report is discussed below. Mr Woolley had made reference to a Calvary Care website which referred to a per 24-hour shift rate of $733.20 Monday to Friday and $953.28 per shift rate for Saturday and Sunday. Mr Hoey acknowledged that Calvary Care did offer this rate, but he said "it's a cheaper rate that advocates [sic] for someone with, for example, more basic needs". Mr Hoey said that the needs of a person with mesothelioma, who is dying, are far more complex than a generic 24-hour rate can provide. He said that such care would not meet the needs of a person with mesothelioma. Mr Hoey doubted that anyone could be found to do care at the 24-hour rate, when the published NDIS rates were much higher, and carers were aware of this and charged accordingly.
Mr Hoey disputed that a mesothelioma patient could obtain 24-hour rate care from Calvary Care. He also pointed out that Calvary Care adds fees and charges to the 24-hour rate. Further, that organisation sends an occupational therapist to determine the appropriate rate of care. Mr Hoey offered the view that the model was "not appropriate to a patient with mesothelioma".
In cross-examination Mr Hoey said that patients with mesothelioma have unique circumstances in their dying stages. Mr Hoey agreed that if a patient suffered from mesothelioma they could ring up a care agency and ask someone to come out to assess whether they were suitable for 24-hour care at the 24-hour rate. He confirmed his opinion that appropriate care could only be provided at the hourly rate set out in his report. He emphasised that these were market rates.
Mr Hoey acknowledged that the report of Mr Woolley did contain hourly rate figures similar to his own, and the difference between the reports related to the proposed Calvary Care 24-hour rate.
In cross-examination Mr Hoey said that during his visit to the Davis home, he walked around the property with Mr Davis and was able to identify multiple areas where Mr Davis had been unable to continue with outside work. To date this had involved getting someone in to deal with palm trees and large trees that ran along the fence line which Mr Davis could no longer trim. Some of the work had simply not been done because Mr Davis could not do it.
Mr Hoey was cross-examined about whether he had discussions with Mr and Mrs Davis concerning their willingness or desire to install an internal chair lift. He said that Mrs Davis said that she was happy with the chair lift he had suggested. Mr Davis suggested an alternative of installing a lift.
Senior Counsel for Amaca drew the attention of Mr Davis to that part of his report where a weekly figure of $13,810 was quoted for the complete dependency phase. When it was suggested that Mr Hoey was not familiar with circumstances in which agencies were quoting that amount, Mr Hoey said (Tcpt 41/10): "The agency I consult to, we provide quotes of that amount on a weekly basis."

Mr Woolley

The defendant tendered the report of Mr Woolley dated 13 January 2024 (DX 2). Mr Woolley is an occupational therapist and also a registered nurse. Mr Woolley acknowledged that his report was prepared without an assessment of Mr Davis. Mr Woolley is based in Victoria. Mr Woolley also used the ECOG performance scale.
Mr Woolley assumed that Mr Davis would progress through the ECOG scale over a 12-month period. He based this upon a study published in a medical journal concerning the median survival rate for mesothelioma, which was just less than 12 months. I say immediately that I reject this as a valid assumption in this case. There is evidence from Dr Deller and Dr Horwood, both treating doctors of Mr Davis, who posit an 18-24-month life expectancy. Professor Fox agrees with them. That having been said, the figures provided by Mr Woolley, if otherwise accepted, can be adjusted for an appropriate longer life expectancy.
Mr Woolley disagreed with the opinion of Dr Hoey that care in the complete dependency phase had to be provided at the hourly rates set out. Mr Woolley said that there was a commercial care model which provides 8 hours of active care and 16 hours of inactive care per day for clients who need 24-hour care. In a footnote he cited the Calvary Care website with the figures of $733.20 per shift Monday to Friday and $953.28 per shift Saturday and Sunday.
The fee schedule of Calvary Care, taken from the website, was tendered as DX 4. It does set out these figures, describing them as "24-Hour Care (Includes eight hours of active support)". The same website also refers to a package management fee per fortnight and a case management fee per fortnight.
For garden and handyman assistance, Mr Woolley offered the opinion that two hours of weekly commercial garden and handyman assistance would be sufficient to mow lawns, whipper snip edges, maintain the gardens, complete home maintenance tasks and clean the outdoor areas. There was no indication that Mr Woolley took into account the size or scale of the home, and in this regard I accept the evidence of Mr Hoey who had the benefit of a home visit and an interview with Mr and Mrs Davis. In any event, I would regard two hours per week to perform all of those tasks in a suburban home as unrealistic.
In relation to home modifications Mr Woolley agreed with the recommendations of Mr Hoey for an internal chair lift, suction grab rails for the bathroom and a disability shower handset.
Mr Woolley also said that Mr Davis would need 15 items of assistive equipment, detailed in Section 10 of his report. Mr Woolley said that there would need to be 8 hours of occupational therapist reviews conducted over a 12-month period.
For the palliative care stage, Mr Woolley divided the time up into 15 weeks and a final 9 weeks. In the first 15 weeks he offered the opinion that Mr Davis would need a personal care attendant for two hours per day and a registered nurse for one hour per week. For the later period of 9 weeks, Mr Woolley offered the opinion that Mr Davis would need a personal care attendant of four hours per day and a registered nurse for one hour three times per week. For the final two weeks of life Mr Woolley said that the cost of hospital palliative care was $1,663.50 per day. This equates to $11,644.50 per week, as opposed to Mr Hoey's figure of $13,810 for Mr Davis to be cared for at home just before death.
For the last two weeks of life, if it were provided in home, Mr Woolley said that Mr Davis would need a personal care attendant 24 hours per day and a registered nurse for two hours per day. The personal care attendant for 24 hours per day was costed at the Calvary Care rates cited in the report.
Mr Woolley gave evidence by AVL from Melbourne. The connection was very clear and I had no difficulty in seeing and hearing Mr Woolley. Counsel were not at a disadvantage in conducting this part of the case by AVL.
In oral evidence-in-chief Mr Woolley confirmed that he had assumed a 12-month life expectancy, of which the last six months would require palliative care.
Mr Woolley said that by the time a patient got to the 24-hour care per day phase, there would need to be active care for eight hours and the carer would then be in the house but inactive. He said this included an "overnight sleepover". These sleepovers included the provision of two hours of active care, to assist with toileting, pressure area care, hydration and pain relief. A person would be in the residence all the time. There may be two or three shifts over the 24 hours but there would be someone there at all times to assist the patient. If a patient needed help while the carer was on an inactive sleepover, a family member could rouse the carer to provide services.
Mr Woolley was asked about whether end-of-life care could be provided at home, and he said that this depended on the individual and the families. Mr Woolley said that it could be done if services were in place to allow the patient to have a dignified passing. Mr Woolley said that if an agency offered a 24-hour shift with an overnight sleepover, and more than two hours care was required, then an hourly rate would be applied to the active care that was provided. If it was required, a second person might provide additional care and assistance.

General Damages

Because I accept the evidence of Mr Davis and his wife, and because there is no dispute between the medical specialists, I make the following findings of fact in relation to general damages: 1. Mr Davis first noted symptoms in 2020 when he became short of breath. 2. Mr Davis consulted his GP in July 2021 and was referred to a cardiologist. 3. In November 2022 Mr Davis was walking up a hill when he experienced chest pain which was intense. 4. In April 2023 Mr Davis saw his GP due to a chronic cough and wheezing. 5. In April 2023 a chest x-ray and CT scan showed a left lung opacity and pleural effusion. Mr Davis commenced seeing Dr Deller, a respiratory specialist. 6. In May 2023 Mr Davis had 1,250ml of fluid drained by means of a large needle inserted into his lungs from his back. 7. In June 2023 Mr Davis had a left VATS and pleurodesis performed. He was in intense pain after that surgery. 8. In July 2023 Mr Davis was informed by Dr Deller that a biopsy taken during the hospital admission in June 2023 showed that he had epithelioid mesothelioma. He was advised that the condition was terminal. 9. Mr Davis first consulted Dr Horwood, oncologist, in July 2023. Dr Horwood discussed the prospect of future immunotherapy but decided to simply observe the condition. 10. Mr Davis has continued to consult Dr Horwood and has had repeat CT scans. 11. Before he was diagnosed with mesothelioma, Mr Davis was living an active and busy lifestyle. While he had medical conditions in the past, the reality is that he was busily engaged five days a week until he fell unwell. Four of those days he spent as a captain at the Men's Shed at Ashmore and on the fifth day he rode his motorcycle with the Ulysses Club. 12. In addition, Mr Davis performed all of the outside work at his home, including gardening work and home maintenance. 13. Mr and Mrs Davis had an active lifestyle, which included walking, going on holidays and hiking. 14. Mr Davis has lost his confidence about motorcycle riding and no longer participates in this activity, which was his great passion. 15. He only goes to the Men's Shed on occasions. 16. Mr Davis still walks twice a week for 30 minutes but feels very puffed during and after his walks. 17. Mr Davis has been married to his wife Gwen for 53 years. He was looking forward to enjoying his retired years with his family and his wife. 18. Mr Davis now regards his future as "bleak" and the thought of leaving his wife behind "is sometimes too much for me to bear". 19. Mr Davis has understood since his diagnosis that he has a terminal disease, that his symptoms will progress and that he will deteriorate, eventually dying from his condition. 20. Mr Davis has been independent his whole life and does not want to be a burden to his wife and others. He expressed the wish to pay for any assistance he needs as his condition progresses.
I must take into account the plaintiff's age in coming to an appropriate figure for general damages. In NSW Insurance Ministerial Corporation v Hay (1993) 18 MVR 375, Meagher JA said (in the context of a motor vehicle accident damages claim): "It must also be remembered that the accident has destroyed the entire quality of the plaintiff's remaining years at a time when those years were at their sweetest."
That phrase sums up precisely what has happened to Mr Davis as a result of the negligence of the defendant, leading to Mr Davis contracting the fatal disease of mesothelioma, at a time when he was enjoying his life to the fullest.
In my view an appropriate figure for general damages is $475,000.

Interest on Past General Damages

The worst is yet to come for Mr Davis. I will allow interest on $200,000 for past general damages at 2% per annum. The calculation is: $200,000 x 2% x 3.5 years = $14,000.

Loss of Expectation of Life

The plaintiff submitted that the appropriate figure was $6,500 and the defendant submitted $5,000.
Mr Davis is presently 82 years of age. The prediction of Dr Horwood last December was that Mr Davis will survive for another 18 months to two years. Having regard to the opinion of Dr Horwood concerning the very slow progress to date of the disease, I find that the life expectancy of Mr Davis will be to December 2025. By then he will be 84 and 7 months. The medium life expectancy tables for an 84-year-old male show a life expectancy of 7.08 years. I will allow the plaintiff's figure of $6,500 for this head of damages.

Past Out-of-Pocket Expenses

The parties agreed that the appropriate figure for past out-of-pocket expenses is $23,550.29.

Future Out-of-Pocket Expenses

The evidence in support of future medical and treatment expenses comes from the report of Dr Deller, as modified by the opinion of Dr Horwood, oncologist, regarding immunotherapy and future progress. There was a measure of agreement on some of the items claimed for future out-of-pocket expenses (see MFI 2 and MFI 3, Schedule B).
I find that the plaintiff is entitled to the following items for future medical and treatment expenses: GP review monthly for 18 months $1,350 Home oxygen $4,650 Hospitalisation (four times for a week each time) $40,000 CT scans (four scans) $1,120 Chest x-ray (six x-rays) $350 Palliative radiation - this may not be necessary, unless it is to treat a side effect of immunotherapy. The figure of $5,000 for such radiation is claimed, and given that side effects occur in 7%-10% of immunotherapy patients (as per Dr Horwood) I allow the figure of $500 $500 Immunotherapy (every three weeks for a period of 12 months at a cost of $1,400 per session, which includes the consultation fee for Dr Horwood) $23,800 Medications including analgesia $1,500 TOTAL $73,270

Modifications, Aids and Equipment

I accept the opinion of Mr Hoey, the occupational therapist, about the equipment needed and the modifications required to the house of Mr Davis. Mr Hoey had the advantage of going to the house and speaking to Mr and Mrs Davis. The main expense is the installation of an indoor chair lift at a cost of $11,000. Mr Hoey specifically raised this with both Mr and Mrs Davis, and they were not only willing to have their house modified in this way but indicated that they wanted such a modification to be made.
Counsel for the plaintiff set out in MFI 3 Schedule C, the particular items for which a claim was made. I do not allow the claim for $23,000 for bathroom modifications, as that was very much an alternative to the installation of an indoor chair lift to convey Mr Davis to the upstairs living area and bathroom. In relation to the items which can be hired, I accept the calculations made by counsel in MFI 3 Schedule C.
I find that the plaintiff is entitled to the following modifications, aids and equipment: Occupational therapy consultation $2,000 Indoor chair lift $11,000 Suction support bars $300 Anti-slip floor mats $180 Disability shower handset and wall connection $185 Outside ramps (hire) $960 Wheelchair (hire) $1,680 Electric lift chair (hire) $3,120 Pressure relief cushion (hire) $1,680 Shower stool $100 Over-toilet frame $107 TOTAL $21,312

Future Care

I have already indicated that I accept the evidence of Mr and Mrs Davis that when Mr Davis needs care in the future, it should be provided by others. Both in South Australia and Queensland the law provides that care is to be assessed at commercial rates.
The evidence of the two occupational therapists has been reviewed above. I accept the opinion of Mr Hoey and reject the opinion of Mr Woolley for the following reasons: 1. Mr Hoey visited the Davis home and spoke to Mr and Mrs Davis. Mr Hoey described such a visit as "the cornerstone of occupational therapy", so that the therapist can understand the dynamics of the home environment. Mr Woolley did not have the advantage of a home visit. 2. The hourly rates quoted by both occupational therapists were very similar. I accept the rates quoted by Mr Hoey, as these are published rates from the NDIS for home care. 3. Mr Hoey gave evidence that in his considerable experience, the NDIS had created an enormous need for carers, and the shortage of such workers meant that people were paying above the NDIS rates to obtain home care. I accept the evidence of Mr Hoey when he described his hourly rates as "conservative". 4. I accept the evidence of Mr Hoey that while Calvary Care offers a 24-hour rate (something which Mr Woolley only knew from searching a website), a 24-hour rate is not suitable for someone with the complex needs of a mesothelioma patient. I accept the evidence of Mr Hoey that this cheaper rate is for someone with more basic needs. 5. In any event, Calvary Care adds fees and charges to its 24-hour rate and sends an occupational therapist out to the home to assess whether the patient is suitable at all for the 24-hour rate of care. There was no indication in the report of Mr Woolley that he knew what the processes and procedures were of Calvary Care in this regard, and no opinion as to whether such occupational therapist might find that the 24-hour rate was suitable for Mr Davis as he deteriorates. 6. Mr Hoey gave evidence in cross-examination that his weekly figure of $13,810 for the complete dependency phase came from his experience, which included providing "quotes of that amount on a weekly basis". 7. The figure of two hours a day for the first 15 weeks of the palliative care phase, and four hours per day for the last nine weeks of the palliative care phase, seem to me to be unrealistic. These were the figures put forward by Mr Woolley. Further, he suggested that in the last two weeks of life, there could be active care for eight hours a day and the carer would then be inactive. In this regard I accept the evidence of Mr Hoey that eight hours of active care would be insufficient to meet the needs of a person who was in the last two weeks of life. In any event, the prescription of Mr Woolley required someone else to be in the house to rouse the carer during the inactive hours if care was required. In my view that is a wholly unsatisfactory way of providing care to a person in the last few weeks of life.
Counsel for the plaintiff set out his calculations for future care in MFI 3, Schedule E. I accept this approach. It accords with: 1. My finding above that the life expectancy of Mr Davis is two years, calculated from December 2023. 2. The opinion of Dr Horwood regarding immunotherapy and its likely benefits for Mr Davis. 3. My acceptance of the opinion of Mr Hoey over the opinion of Mr Woolley.
To the calculations made in MFI 3, Schedule E, I have added an extra column using a 5% deferral figure, to reflect the law of Queensland. My calculations are set out in the following table: Period Type of Assistance Hours p.w. Rate Cost Cost p.w. (3% Deferral) (5% Deferral) 09.02.2024 -31.12.2024 ECOG 1 5 $275.00 $12,925.00 $12,925.00 (47 weeks approx.) Outdoor chores 01.01.2025 -14.07.2025 ECOG2 Indoor chores 28 $2,260.00 $2,260.00 X 28 weeks x 0.959 (3% discount multiplier for 1.4 years) $2,260.00 X 28 weeks x 0.934 (5% discount multiplier for 1.4 years) (28 weeks) = $60,685.52 = $59,103.52 1.01.2025 -14.07.2025 ECOG2 Outdoor chores 5 per week $275.00 $275.00 X 28 weeks x 0.959 (3% discount multiplier for 1.4 years) $275.00 X 28 weeks x 0.934 (5% discount multiplier for 1.4 years) (28 weeks) = $7,384.30 = $7,191.80 15.07.2025-17.11.2025 ECOG3 2 hours during the night 7 nights at $300.00 per night= $2,100.00x18 weeks x 0.949 (3% discount multiplier for 1.77 years) $2,100.00x18 weeks x 0.917 (5% discount multiplier for 1.77 years) (18 weeks) Inactive sleepover carer $2,100.00 = $35,872.20 = $34,662.60 15.07.2025-17.11.2025 ECOG3 12 to 16 hours per day $7,910.00 $7,910.00 X 18 weeks x 0.949 (3% discount multiplier for 1.77 years) $7,910.00 X 18 weeks x 0.917 (5% discount multiplier for 1.77 years) (18 weeks) Direct care during the waking hours = $135,118.62 = $130,562.46 15.07.2025- 17.11.2025 ECOG3 Outdoor maintenance 5 per week $275.00 $275.00 X 18 weeks x 0.949 (3% discount multiplier for 1.77 years) $275.00 X 18 weeks x 0.917 (5% discount multiplier for 1.77 years) (18 weeks) = $4,697.55 = $4,539.15 18.11.2025-01.12.2025 ECOG4 Around the clock care Around the clock care $13,810.00 $13,810.00 X 2 weeks x 0.948 (3% discount multiplier for 1.81 years) $13,810.00 X 2 weeks x 0.916 (5% discount multiplier for 1.81 years) (2 weeks) = $26,183.76 = $25,299.92 18.11.2025 -01.12.2025 Outdoor maintenance 5 per week $275.00 $275.00 X 2 weeks x 0.948 (3% discount multiplier for 1.81 years) $275.00 X 2 weeks x 0.916 (5% discount multiplier for 1.81 years) (2 weeks) = $521.40 = $503.80

Conclusion and Orders

I award the following heads of damage to Mr Davis, assessed under the law of South Australia: Head of Damage Amount General Damages $475,000.00 Interest on Past General Damages $14,000.00 Loss of Expectation of Life $6,500.00 Past Out-of-Pocket Expenses $23,550.29 Future Treatment and Medical Expenses $73,270.00 Modification, Aids and Equipment $21,312.00 Future Care $283,388.35 TOTAL $897,020.64

I award the following heads of damage to Mr Davis, assessed under the law of Queensland: Head of Damage Amount General Damages $475,000.00 Interest on Past General Damages $14,000.00 Loss of Expectation of Life $6,500.00 Past Out-of-Pocket Expenses $23,550.29 Future Treatment and Medical Expenses $73,270.00 Modification, Aids and Equipment $21,312.00 Future Care $274,788.25 TOTAL $888,420.54

Mr Davis is entitled to a single judgment for the higher of these two totals.
The orders are: 1. Judgment for the plaintiff against the defendant for $897,020.64. 2. Order the defendant to pay the plaintiff's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2024

(2000) 20 NSWCCR 638

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