AMACA PTY LTD (formerly JAMES HARDIE & COY PTY LTD)

Damages - Assessment of damages - Mesothelioma - Future loss of earnings where constant employment uncertain - Loss of capacity to care for mother - Whether general damages or specific award - Burnicle v Cutelli considered and not followed

Damages assessed at $347,620 plus past expenditure to be verified

Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541

CSR Ltd v Young (1998) 16 NSWCCR 56

Graham v Baker [1961] HCA 48; (1961) 106 CLR 340

Helene Edwards v James Hardie & Coy Pty Ltd, unreported; DDT of NSW (Curtis J); 3 December 2000

James Hardie & Coy Pty Limited v Roberts & Anor [1999] NSWCA 314

Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Munro v Commonwealth of Australia, unreported; DDT of NSW (Curtis J); Matter No DDT 292 of 2001; 25 September 2001

Nagle v Rottnest Island Authority, unreported; SCt of WA; Library No 940724; 22 December 1994

Napolitano v CSR Ltd v Midalco Pty Ltd, unreported; SCt of WA (Seaman J); Library No 940487; 30 August 1994

Neal v CSR & Anor, unreported; FCt SCt of WA; Library No 8527; 3 October 1988

Nicholson v Nicholson (1994) 35 NSWLR 308

O'Dwyer v Leo Buring Pty Ltd [1966] WAR 67

Roads and Traffic Authority of New South Wales v Lolomanaia [2001] NSWCA 268

Sharman v Evans [1977] HCA 8; (1997) 138 CLR 563

Simon Engineering (Australia) Pty Ltd v Brieger, unreported; SCt of NSW; BC9002045; 31 August 1990

Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94

Stevenson v James Hardie & Co Pty Ltd & Ors (1997) 15 NSWCCR 568

Sturch v Willmott [1997] 2 Qd R 310; (1996) A Tort Rep 81-373

The Board of Management of Royal Perth Hospital & Anor v Frost, unreported; SCt of WA; Library No 970069S; 26 February 1997

Wallaby Grip Limited & Anor v Pierce & Ors; James Hardie & Coy Pty Limited v Pierce [2000] NSWCA 299

Wilke v Astra Pharmaceuticals Pty Ltd [1999] NSWSC 1047

Wynn v NSW Insurance Ministerial Corp [1995] HCA 53; (1995) 184 CLR 485

1 SCOTT J: The plaintiff has sued the defendant for negligence arising out of the supply of asbestos products which the plaintiff used in the course of his employment in the construction industry when he worked for Geraldton Building Company ("GBC").

2 The defendant admitted liability and at the commencement of the trial on 29 October 2001 judgment was entered for the plaintiff with damages to be assessed.

3 The plaintiff was born on 5 November 1934 and went to school in Geraldton until he was aged 16 years. After leaving school he started work as a junior stockman with Goldsborough Mort at Narembeen where he worked for a short period of time following which he was employed by a small co-operative business again only for a couple of months. After that employment the plaintiff obtained an apprenticeship with GBC in Geraldton. He was then still aged 16 or thereabouts.

4 The plaintiff started his apprenticeship as a wood machinist until he damaged his hand. He was then employed as a carpenter and joiner by the same company. The first work that the plaintiff undertook for GBC was the building of timber framed cottages. In addition to working on the timber framing, on the roofs and walls the plaintiff worked on the asbestos lining on the outside, in the dado, in the kitchens and in relation to the asbestos lining on the bathroom floors.

5 The plaintiff was employed by GBC until the age of 18 years when he had a 12 month period in Perth where he worked on cottages for Brackenridge Brothers doing inside fixing on skirtings and cupboards and the like.

6 The plaintiff returned to GBC and continued work until 1963. In the meantime he was married to his present wife on Christmas Eve 1955.

7 After his marriage, the plaintiff and his wife purchased a small block on which he built temporary premises out of asbestos which he lived in whilst he built his own house. The house was built in Trigg Street Bluff Point and took approximately three years to build.

8 In 1963 or thereabouts the plaintiff came to Perth and continued working with a building company following which he applied for a job as supervisor with Starline Homes. The plaintiff worked as a supervisor for Starline Homes for approximately 12 to 14 years. That work consisted of building cottages mainly of brick with some asbestos roofs. At that time the plaintiff and his wife lived in Mt Yokine until he built a house in Greenmount. The plaintiff assisted with the building of that house helping where he could. Because he was employed full time he was only able to work on that house on the weekends. Also during that time he built two beach cottages, one for himself and one for his in-laws at Point Perron.

9 The plaintiff became a registered builder in February 1977 and has remained a registered builder ever since. As at the date of his evidence at trial the plaintiff remained a paid up registered builder.

10 Following the obtaining of his builder's certificate the plaintiff worked with another company as the nominated builder being responsible for supervisory work.

11 The plaintiff then joined G & M Atwell doing insurance work in relation to residential and commercial properties. He joined the company because having a registered builder employed enabled the firm to carry out contracts in excess of $6,000 which they would not otherwise have been able to perform.

12 In the late 1980's the plaintiff left G & M Atwell and joined a roof tiling company again in the capacity of the nominated builder.

13 The plaintiff remained in that employment for about 8 or 9 years and in 1996 the plaintiff set up his own business name of B & M Easther being a partnership between himself and his wife. The plaintiff's wife, Margaret Ann Easther ("Mrs Easther") handled the accounts and the telephone for the business together with other matters to which I will refer to later on in these reasons.

14 During the subsistence of the business, B & M Easther, the plaintiff and his wife split their income which was advantageous to both of them because of the tax advantages involved in structuring the business in that way. The partnership of B & M Easther operated continuously from the date of its formation in 1996 until 30 June 2001 when the partnership was dissolved. In the course of its existence the partnership of B & M Easther did some renovation work both in a supervisory capacity and as hands on work in relation to renovation of cottages.

15 In addition to that work, B & M Easther contracted with GBC and carried out work at the shire offices in Dalwallinu and other jobs at Malaga and Kewdale. B & M Easther were engaged by GBC to act as site manager on major projects that GBC were undertaking in Perth. The plaintiff's role in those contracts generally speaking was to act as site manager. The plaintiff's history with GBC and his work for that company will be discussed later in these reasons.

16 The work with GBC was substantial work in relation to contracts worth over $1,000,000 and in relation to the National Rail work at Kewdale the plaintiff was engaged in that work for just over 12 months.

17 In addition the plaintiff has assisted his son, Warren in relation to building work that he was undertaking. Warren Easther had built and sold a number of houses. Warren Easther used the plaintiff's building ticket for the purpose of his own construction work and the plaintiff acted as supervisor in relation to those jobs. Warren Easther did not pay his father for his assistance but provided his parents with a number of trips in exchange for his father's services. Warren Easther provided his parents with a trip to Tasmania, a trip to London and a further trip to Cairns. The significance of the plaintiff's assistance to his son and the compensation that he received by way of those trips will be discussed later in these reasons.

18 The plaintiff turned 65 on 5 November 1999. At that stage the plaintiff retired for about 3 months in order to obtain a superannuation pay out but he says, and I accept, that his intention was not to retire at that time, but to work through until he reached the age of 70. The additional work between 65 and 70 would, he said, have given his wife and himself a "little buffer" with the pension and thus assist them in their retirement.

19 In addition it should be noted that the plaintiff was offered a considerable amount of work with the company Crothers Construction Pty Ltd ("Crothers") on large scale projects. Crothers is a Geraldton based company which was looking for senior and experienced site supervisors for work in the metropolitan area. The evidence from Mr David Crothers, to which I will refer in more detail later, was that the plaintiff was a highly competent and experienced site foreman who ideally fitted the role required in Perth. I accept the evidence of Mr David Crothers that the plaintiff would have been offered work on those projects when it was available and therefore had a considerable amount of work available to him.

20 Prior to the plaintiff becoming aware that he had contracted mesothelioma he had agreed to accept a position working for Crothers on the Wool Stores in Fremantle. The plaintiff's part of that contract was valued at approximately $60,000. The plaintiff however did not carry out the work in the end because he was aware of union problems on the site and did not want to become involved. The evidence of Mr David Crothers was however that other large contracts were available in the metropolitan area and that the company would have sought the plaintiff to act as site foreman on those contracts.

21 Crothers also had work available in the north-west in relation to refurbishment of BHP houses. The plaintiff had agreed to carry out work on those houses in Mt Newman. He and his son and one other employee were intending to do that work, prior to his being diagnosed with mesothelioma. The plaintiff was to be paid $35 per hour for the work, which in that case included hands on work and would have involved the plaintiff in long hours of work.

22 In addition to his working activity the plaintiff was also a keen scuba diver and had been involved in that recreation since he was 13 to 14 years of age. He had completed the necessary accreditation to enable him to carry out diving up to 18 metres. The plaintiff obtained his certification in January 1999 and was looking forward to engaging in that recreation. The plaintiff had also purchased a small boat from which he and his son could go diving.

23 In addition to that recreation, the plaintiff was a good family man who enjoyed looking after his grandson and he utilised his carpentry skills to make rocking horses in a Queen Victorian style. He testified that those horses would attract about $1,000 each if they were sold.

24 Prior to his illness the plaintiff enjoyed the company of his grandson and playing sport with him. In addition, the plaintiff was responsible for building houses for other family members. The plaintiff also enjoyed beach fishing.

25 The plaintiff first noticed a deterioration of his health in the middle of 1999 when he suffered from shortness of breath. He saw his GP but no diagnosis was made. At that time he also noticed he was having night sweats, but again nothing positive was diagnosed.

26 In December 2000 the plaintiff had a physical examination for the purpose of his diving. He had decided to have a physical every 12 months to make sure that he was capable of diving to the depths for which he was certificated. At that stage he was told by his GP that his cardio-vascular level was down. The plaintiff decided to go to the gymnasium to improve his fitness and to try and increase his lung capacity. He said that he went to the gym three or four times a week in an attempt to improve his lung capacity so that he could continue with his diving.

27 In April 2001 the plaintiff went to see a Dr Wall for the purpose of having a mole cut out of his shoulder. Following that surgery he noticed pain in the top part of his chest. Following an x-ray he was sent to Professor Robinson to follow up what was thought to be fluid in his chest cavity. Professor Robinson ordered a pleural-tap which was performed with the removal of approximately two litres of fluid. Two biopsies were also done. The reduction in the fluid in the plaintiff's lungs improved his symptoms.

28 After an examination of the biopsies, Professor Robinson decided that the plaintiff should have further investigation and he was sent to Dr Edwards for that purpose. At that stage the plaintiff said he "half expected" that he might have mesothelioma because two of his friends had died from that disease. Dr Edwards performed the operation at the Hollywood Hospital and removed part of a tumour, which the plaintiff had developed.

29 On 24 May 2001 following surgery, and whilst the plaintiff was still in hospital, he was told by Professor Robinson that he had been diagnosed with mesothelioma. The plaintiff's evidence was that he did not know a great deal about mesothelioma but he did know that "if you contract it, it's a death sentence".

30 Following that operation the plaintiff was discharged from hospital and after he returned home and whilst sitting in a chair in the family room fluid started to flow from his chest. That caused him a great deal of anxiety and was a consequence of fluid coming out of his chest wall from the area where the operation had been performed.

31 Since the diagnosis of mesothelioma the plaintiff has lost 16 kgs in weight up to the date of trial, and because of the pain has been unable to do anything involving physical exertion. He has been on pain management since that time and said in his evidence that he has been in quite a lot of pain. The plaintiff, in my view is not a man to exaggerate his injuries and as all the medical reports and medical evidence establishes is a man who was stoic in his attitude to his illness and if anything understated the pain and discomfort which he has endured.

32 The plaintiff has been treated with painkillers including morphine and has had two trips to the Shenton Park Hospice for pain management. At the time of testifying the plaintiff had a pump fitted to his chest through which pain relieving medication was induced into his body. The plaintiff said that the medication causes nausea and constipation. He has lost all of his energy and is virtually confined to sitting in a chair. The plaintiff has been offered, and accepted, a new exploratory vaccination treatment, which involves the manufacture of a vaccine from his own tumour, which is re-injected into his body in the hope that the re-injected vaccine will turn on the mesothelioma and attack it. The course of treatment involves injections every couple of weeks and blood and skin tests at regular intervals. The treatment programme is planned for 12 weeks and the plaintiff's treatment in that respect will be completed in the middle of November of this year.

33 The plaintiff was also attending Dr Dean in the St John of God Hospital, Subiaco for pain relief. Dr Dean's evidence will be referred to later in these reasons but it is fair to say that the plaintiff has suffered from adverse side affects from the drugs administered to him. Eventually the quantity and strength of the pain killing drugs will be such that his quality of life will be impaired by reason of the fact that his mental processes will be affected. His pain relief however is likely to be reasonably effective.

34 The plaintiff has of course totally ceased work and has difficulty sleeping. He rises frequently during the night often in pain. His sleep patterns are such that his wife is now sleeping in a separate bed because she is unable to sleep properly with the plaintiff being in constant pain.

35 In addition the plaintiff holds a power of attorney from his 91 year old mother and has helped his mother by paying her bills and looking after her. At the date of giving evidence (29 October 2001), the plaintiff was still able to pay bills for his mother but was unable to help her in any other respect particularly in relation to her shopping. The plaintiff's wife however has been able to assist the plaintiff's mother in that respect.

36 The plaintiff is virtually unable to do ordinary household jobs. His son comes and mows the lawn and his wife does most of the gardening. The plaintiff has always done repairs on the house and maintenance on the car but is unable to carry out that work.

37 The plaintiff said that he is unaware of his ultimate prognosis and he is unaware of the period he is expected to live.

38 As at the date of giving evidence the plaintiff was able to take care of his personal hygiene and dressing but was unable to drive a car because of the pain killing medication.

39 The plaintiff agreed in cross-examination that in the final stages of his illness he would like to be placed in a situation which imposed the least demands upon his wife, both physically and psychologically subject to the availability of proper hospital care. The plaintiff accepted that once the demands upon his wife became too great he would move into a hospice during the final phase of his illness.

40 The plaintiff accepted that he had received the age pension after his retirement but he testified that he had instructed his accountant to terminate the pension because he was intending to go back to work rather than receive the pension and the additional benefits that being a pensioner offered. The plaintiff said that he was aware that he could earn up to $47,000 a year without terminating his pension rights. He was however intending to continue work at a remuneration level which would terminate his pension rights. The plaintiff's evidence was that he had spoken to his financial adviser and instructed him to cancel his Centrelink payments prior to his illness being diagnosed. That agent however had not terminated the payments prior to the plaintiff's illness being diagnosed and so it was allowed to run.

41 In the 1997-1998 taxation year B & M Easther had a total business income of $67,979 with a net income after deduction of expenses of $46,455 which was split evenly between the plaintiff and his wife.

42 I accept the plaintiff's evidence that his intention was to terminate his pension and return to the workforce up until the age of 70 earning as much money as he was reasonably able to do. He said, and I accept, that he was prepared to forfeit the benefits that a pension offered in order to try and maximise his income. Even after being diagnosed with mesothelioma the plaintiff said that he was hoping to recover his physical fitness to the stage where he was able to return to the workforce. That however has not been possible and the evidence clearly establishes that there is now no prospect of the plaintiff returning to the workforce.

43 The plaintiff's evidence, particularly in relation to his work with the GBC was supported by Geoffrey John Crothers ("Mr Crothers") who had known the plaintiff for 42 years through GBC. Mr Crothers also worked for that company up until its liquidation. Mr Crothers' evidence was that the plaintiff was an extremely good worker and Mr Crothers was pleased to have him working as a site manager in a number of jobs which Mr Crothers' company, Crothers Construction had undertaken. Mr Crothers confirmed that the plaintiff had been offered work in the north repairing houses at Newman but that the plaintiff had been unable to take on that work due to the diagnosis of his illness. The plaintiff was to be paid $30 per hour for that work although his usual rate of remuneration in working for Crothers Construction was $35 per hour.

44 There is however in my view some doubt as to whether the plaintiff would have been employed full time between the ages of 65 and 70 or that he would have been able to earn the amount of money which he anticipated. The plaintiff's work was clearly regulated by the availability of suitable work and there may have been times when work was not available. No doubt the plaintiff would have worked for his son during those times without remuneration other than holidays. In my view however, it is unlikely that the plaintiff would have been employed full time on his normal remuneration between the time of his diagnosis and the age of 70. The effect of that will be discussed later in these reasons. That conclusion is contributed to in part by the fact that the building industry suffers from fluctuation and that continual work is not available even to a person with the plaintiff's high level of skills and substantial reputation in the industry. In addition because of the plaintiff's age his capacity to work long hours doing physical work with tools was likely to be limited.

45 Mr Crothers evidence was supported by his brother, Mr David Crothers a co-owner of Crothers Construction Pty Ltd. Mr David Crothers said of the plaintiff:

"Barry was what I classify as one of the old school. They are just professionally trained as trades people and his quality of his work, his whole mannerism and the other thing that amazed me is his enthusiasm at his age for the industry still."

46 Mr David Crothers made it clear that the plaintiff's work standard was excellent and he was delighted to have the plaintiff as project manager for the projects that Crothers Constructions was undertaking in Perth. Mr David Crothers said that the plaintiff had ensured that work was carried out on budget, on time and competently. Mr David Crothers said that the plaintiff and his son worked as a team which was extremely important in the industry and that he was pleased to have the plaintiff work for him.

47 The plaintiff's son, Warren Barry Easther ("Warren Easther") testified that his father had taught him a lot of skills in the building industry (his trade being a first class welder) and that he and his father had worked together on a number of projects. He said that he and his father had hoped for continuous work with the Geraldton Building Company using the plaintiff's building ticket. Warren Easther said that his father refused to accept payment when he worked on private jobs for his son. As a consequence Warren Easther provided holidays to his parents in exchange for his father's services. Warren Easther said that up until the diagnosis of his father's illness his father was an extremely fit and competent worker who was capable of hard physical work. Warren Easther's evidence was that he hoped that his father would still be able to act as supervisor on his own jobs and that he would be able to utilise his father's building ticket with his father as supervisor.

48 Having dealt with the general history and background of the plaintiff, his family and his work history I then turn to the question of the plaintiff's medical treatment both past and future.

49 The plaintiff called Bruce William Stanley Robinson ("Professor Robinson") a Professor of Medicine at the Department of Medicine at the University of Western Australia. It is not necessary to go into details of Professor Robinson's qualifications except to say that the Court was provided with a curriculum vitae running into some 54 pages testifying as to the qualifications and experience of Professor Robinson particularly in the area of respiratory medicine (a discipline which includes mesothelioma).

50 I accept Professor Robinson's evidence in relation to the area of the plaintiff's mesothelioma illness without reservation.

51 Professor Robinson described in detail the way in which mesothelioma invades the body particularly between the two layers of pleurae within the chest space between the lungs and the chest wall. Professor Robinson said that mesothelioma has the characteristic of uncontrolled growth which spreads and invades different parts of the body. In particular it invades the chest space between the chest wall and the lining of the lungs. The inhalation of asbestos damages the body's DNA inside the cells damaging cancer-causing genes which grow uncontrollably.

52 Professor Robinson said that the disease starts with irritation of the outside lining of the chest wall and begins very slowly. It spreads to the pleura on the other side and sometimes between the ribs and under the skin. It could also grow inward towards the heart and major blood vessels. It can crush the oesophagus so that the patient cannot swallow. It can obstruct major blood vessels into the heart and obstruct the heart itself. It can also invade the spinal cord.

53 Professor Robinson said that the effect of the development of the tumour is that it causes a sharp knife like pain on breathing because of the inflammation within the pleural cavity. Professor Robinson said that there were sensitive nerves in that area and that the inflammation caused by the tumour growth will "fire off these sensitive nerves and create a sensitive pleurisy".

54 Professor Robinson described three different types of pain, one of which was "a deep, often sharp, often achy sort of pain" which Professor Robinson said was the hardest pain to treat.

55 Professor said of mesothelioma that "[It] is probably one of the worst cancers that one would ever have to deal with in a patient". He went on to say that the median survival is about 8 and a half to 9 months from diagnosis. In addition he said that the course of the illness is different between one patient and another. Professor Robinson indicated that some patients would be subject to a lot of pain while others would not; some would get breathless and some would not; some would get night sweats and weight loss and other would not. The plaintiff has suffered from all of those symptoms from the time of diagnosis of his illness.

56 Professor Robinson said that there are three standard ways to treat cancer. Namely radiotherapy (try to burn it), surgery (try to cut it out) and chemotherapy (try to poison it). He said that radiotherapy does not really work on this sort of cancer and that surgery does not seem to improve the prognosis. He said that chemotherapy has until recently said to be useless.

57 In addition Professor Robinson said that he was doing experimental treatment using a fourth type of modality namely immunotherapy by which he was endeavouring to get the body's immune system to fight the cancer. He said that he had achieved some quite remarkable success in a few patients.

58 Professor Robinson then described the history of the plaintiff's diagnosis which he ultimately confirmed as malignant mesothelioma in May 2001.

59 Professor Robinson described the plaintiff's course of treatment including the surgical intervention by Mr Mark Edwards, a cardiothoracic surgeon which revealed the tumour. Professor Robinson explained the incident following surgery which the plaintiff described in evidence as being caused by the fluid in the chest being under enough pressure to break through the sutures. The brown fluid which the plaintiff described in his evidence was simply blood in the chest fluid.

60 Professor Robinson said the plaintiff had agreed to the vaccination trial which he was conducting with two drugs. The drugs were usually administered at the Oncology Department of the Sir Charles Gardner Hospital but had the side effects of causing nausea for which the plaintiff needed medication. In addition the plaintiff needed to have blood tests from time to time to test his immune response and to receive the vaccine. In addition the plaintiff had to have blood tests, periodic CAT scans and breathing tests.

61 In relation to the plaintiff's illness, Professor Robinson said that the plaintiff had a lot of pain right from the beginning and that he had suffered from different sorts of pain. Importantly Professor Robinson said that in addition to the plaintiff having the knife like pains "he has also had the deeper, neuropathic pain that I mentioned earlier on, mostly in the right lung but not exclusively, but yes, pain has been a big problem for him".

62 Professor Robinson said that the deeper neuropathic pain was very debilitating, and it was difficult for the plaintiff to function, so that the plaintiff had been fairly sick from early on. Professor Robinson described how the plaintiff had suffered from weight loss, fevers, loss of appetite as well as night sweats and difficulty in breathing. Professor Robinson said of the plaintiff that "[He] has quite a severe pattern of disease". In addition he said that the pain is probably going to get worse and that the systemic features are not going to disappear but get worse. Professor Robinson said:

"As time goes on he will be able to do less and less for himself, number (1) because of the tumour itself and the pain it causes, as we have mentioned, which can limit what you can do; and number (2) simply because he has got an advanced cancer and patients with advanced cancer become lethargic, get sleepy, they lose their strength, they have difficulty getting out of bed or out of a chair. They basically spend most of the day sitting in a chair, most of their day in bed after a period of time and then can't do much for themselves at all, or can't do anything for themselves in the end."

63 Professor Robinson said that he had read a report and recommendations from Ms Sharp an occupational therapist to which I will refer later in these reasons with respect to the assistance that the plaintiff would be likely to require in the course of his illness and the equipment that might be necessary for him. Professor Robinson supported the recommendations that Ms Sharp made.

64 As to the progress of the plaintiff's disease, Professor Robinson said that he thought the plaintiff had another week or two before he entered the middle stages of the disease which would last for about two months. The plaintiff would then reach the end stage of the disease. In the end stage, Professor Robinson said that the plaintiff would be unable to have a shower by himself and would have difficulty even going to the toilet. He said that the plaintiff would have difficulty sometimes changing his clothes and that sort of thing, and would be unable to do much in or outside the house. Professor Robinson's prognosis was that the plaintiff had approximately four or five months to live.

65 Professor Robinson made an estimate of the expected medical costs for the plaintiff from the end of June 2001 until his death, which he appended to a report of the 11 June 2001. Those costs total $26,443.30 and are shown as an appendix to his report. He said that this did not include support at home where the plaintiff would require some non-medical support. The cost of chemotherapy and drugs which the plaintiff would probably require was anticipated to cost $1,650 per month for three to four months or a maximum total of $6,600 which should be added to Professor Robinson's estimate of $26,443.30, giving a total of $33,043.30. That aspect of the plaintiff's claim, however, will be discussed later in these reasons.

66 In the list of expenses Professor Robinson included hospital admissions for 28 days at $350 per day totalling $9,800 which included hospice visits and some allowance for the plaintiff to die in hospital.

67 Professor Robinson indicated that the plaintiff's pain was very severe and had occasioned his admissions to hospice for palliative care service. He anticipated further hospice palliative care. Professor Robinson said that the plaintiff had developed such a severe neuropathic pain that he required more sophisticated medications and he said that the plaintiff's illness was "profoundly affecting him".

68 As to his prognosis Professor Robinson said that the plaintiff would get worse and would be on a lot of medications. He would lose more weight, become lethargic and be confined to bed or chair and would develop breathlessness. Professor Robinson also indicated that the plaintiff may have additional complications arising out of the tumour invading other parts of his body. Professor Robinson referred to the constipation caused by painkillers, which the plaintiff could anticipate.

69 Professor Robinson however made it clear that so far as pain care was concerned Dr Andrew Dean was responsible for the plaintiff's pain management. That will be discussed later in these reasons.

70 Professor Robinson indicated that at the end of the day it would be a matter for the plaintiff whether he spent the end of his life in hospice or at home but he said that it was "very unusual" for patients to want to spend their last few months of life in hospice except for the terminal phase of about two weeks.

71 Professor Robinson emphasised that his estimate of future medical costs was from the period of the end of June 2001 until the plaintiff's death, some of which would have already been utilised between that date and the date of trial.

72 Professor Robinson in cross-examination said that the plaintiff would be expected to wake up in pain at night regularly so that his management would be a matter of some difficulty and that it was preferable for a carer to have a nursing background. The significance of that conclusion will be discussed later in these reasons.

73 I turn now to Dr Dean the second of the plaintiff's medical witnesses. Andrew Peter Dean ("Dr Dean") testified that he was a consultant physician in palliative medicine. Dr Dean said that he provided medical care to people with incurable illnesses between diagnosis and death concentrating mainly on things like symptom control, pain management, nausea management, stimulation of appetite and the like with the overall goal of an improving quality of life. Dr Dean said that pain management was one of the most tricky areas in managing patients with mesothelioma because it was probably one of the most painful tumours.

74 Dr Dean said that the plaintiff in this case had difficulty tolerating morphine which was prescribed for him and so he was admitted to hospice initially for one week. In that time he was treated with fentanyl patches which seemed to agree with the plaintiff reasonably well.

75 Dr Dean said that the plaintiff was never free from the cloud which hangs over him (that being the depression which comes from constant pain). Dr Dean said that the plaintiff suffered from attacks of drowsiness but that he was not one of those patients who could be well controlled on minimalist medication.

76 Dr Dean maintained that anaesthetic drugs had now reached the stage where the plaintiff's pain could be controlled but that it would require an operation inserting a small plastic tube adjacent to the plaintiff's spine which would be fed up the spinal cord around the level of the chest. The tube would enable drugs such as morphine or fentanyl to be administered directly on to the spinal cord in doses which block the pain locally without getting into the circulation which causes general side effects. Dr Dean said that he was 99 per cent certain that such treatment would be required in the plaintiff's case. Dr Dean said that with such treatment the plaintiff could expect to have good pain relief but it would involve inconvenience in terms of hospital time and going through the procedures including carrying pumps around. Dr Dean also said that if the tumour spread to other parts of the body then the plaintiff may not be able to get adequate pain control from the intra thecal catheter which may require supplementation by oral medication. Dr Dean said that to insert the apparatus requires a day in hospital under general anaesthetic including the installation of an infuser port for injection of the medication. Dr Dean said that the pump involved which would be attached to the plaintiff externally costs about $7,500. The advantage to the plaintiff of having the pump externally would be that the medication could be adjusted manually. The pump that he recommended for the plaintiff being an external pump weighed about half a kilogram and contained a cassette which holds 100 mls of fluid. The external pump was expected to cost $7,500 rather than $15,000 for a subcutaneous internal pump. In addition the plaintiff would be required to spend $20 a day for the drug mixture and the hospital costs would be $3,000. In addition the plaintiff would require 7 to 10 days hospitalisation plus imaging fees to check that the tube is in the right position. Assuming that this will be done before the hospice end stage (as is likely) the cost will be $11,700.

77 Dr Dean then suggested that if this treatment was administered to the plaintiff he would expect a good level of pain control. He said that other methods were available for controlling pain but they were not recommended in the plaintiff's case.

78 I finally turn to the evidence of Ms Sharp the occupational therapist referred to earlier in these reasons and who was called to give estimates as to the plaintiff's likely future requirements.

79 In dealing with Ms Sharp's evidence it is important to bear in mind that Professor Robinson had the opportunity of reviewing Ms Sharp's report and verified the conclusions that she reached. In assessing her evidence therefore it must be kept in mind that her evidence has been verified by Professor Robinson whose evidence has been referred to earlier in these reasons. His evidence, as I have said, I accept without reservation in this particular area of medicine.

80 Ms Sharp's report was criticised because some of the information in the report had been obtained from other sources. Ms Sharp had contacted Carealot Home Health Services to ascertain the services that they provided and their fees. Ms Sharp had evaluated that material in the light of her assessment of the plaintiff's requirements particularly with reference to the plaintiff's need for qualified nursing services. Ms Sharp had also drawn upon information provided to her by one Raylene Nestor from Perth Home Care Services in particular with reference to the hours required for current and future care for the plaintiff. Ms Sharp accepted that as an occupational therapist she required the additional information from Ms Nestor in relation to the provision of carers for people in the plaintiff's situation. In evaluating Ms Sharp's evidence I have taken into account the extent to which that evidence is said to be hearsay, and the extent to which that evidence was supported by Professor Robinson. I will return to that evidence when I come to deal with the specific headings of the plaintiff's claim for damages.

81 Ms Sharp was cross-examined in relation to the fact that the report she prepared had come from a word processor and was apparently prepared under headings commonly used for all patients suffering from mesothelioma or similar debilitating conditions. Ms Sharp however denied that she used a word processor generated report in the plaintiff's case.

82 In making an assessment of the plaintiff's carer needs, Ms Sharp took into account that the plaintiff awoke frequently during the night (a view supported by Professor Robinson) so that the general care provided by an organisation such as Carealot would not be appropriate to his condition. That evidence I accept and has been taken into account.

83 I turn now to the particular headings of the plaintiff's claim for damages. The first matter for consideration is the plaintiff's claim for general damages. In the plaintiff's synopsis of damages the plaintiff claims the sum of $180,000 for that component of his claim. As counsel for the plaintiff indicated in the course of submissions, this was simply an indicative figure that counsel considered appropriate in this case. That figure was formulated by reference to a series of decisions emanating from the Dust Diseases Tribunal of New South Wales where a range of awards of general damages were referred to. Six decisions of that Tribunal were provided to this Court covering a period from 29 August 2000 through to 24 October 2001. Each plaintiff had contracted mesothelioma and the awards of general damages range from $150,000 to $200,000:

Enzio Panizza v Amaca Pty Limited, unreported; DDT of NSW (Little J); Matter No DDT 81 of 2001; 4 July 2001;

Helene Edwards v James Hardie & Coy Pty Ltd, unreported; DDT of NSW (O'Meally P); Matter No DDT 198 of 2000; 30 November 2000;

Brennan v James Hardie & Coy Pty Ltd, unreported; DDT of NSW (Curtis J); 2 March 2001;

Stephen Smith v Sydney Water Corporation Ltd [2000] NSWDDT 13;

Arthur Murfett v Wallaby Grip Limited & Anor, unreported; DDT of NSW (Curtis J); Matter No DDT 105 of 2000; 29 August 2000;

Bevan v Amaca Pty Ltd, unreported; DDT of NSW (Curtis J); Matter No DDT 254 of 2001; 24 October 2001.

84 Each of these cases turns upon its own particular facts and in some cases the adverse effect of the disease is greater than that suffered by the plaintiff in the present case. For example in Stephen Smith v Sydney Water Corporation Ltd [2000] NSW DDT 100 of 2000; 20 December 2000 in the unreported judgment at [50] Curtis J said:

"The plaintiff's mental distress is apparent, he is often in tears. His wife says he is getting more emotional because he has more pins and needles higher in his body and he is increasingly frightened by the inexorable progression of his tumour. He shakes; whether that be from fear or some organic cause is not clear. It does not matter much. The plaintiff will probably die about the end of April 2000. The remaining month of his life will be marked by an increasing struggle to breathe, each breath at the cost of increasingly relentless and incessant pain."

85 Each of those decisions has been taken into account. However in doing so I have kept in mind the observations of Barwick CJ, Kitto and Menzies JJ in Planet Fisheries Pty Ltd v Larosa [1968] HCA 62; [1968] 119 CLR 118 at 125:

"The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties and other actions, even if some similarity between their situations may be supposed to be seen. ... The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a Judge who is making such an assessment will be aware and give weight to current general ideas of fairness and moderation."

86 I have looked to other awards of general damages in other cases with that injunction in mind including Coulthard v CSR Ltd & Anor, unreported; (Owen J); Library No 920496 2 October 1992; and Jongen v CSR Ltd & Anor [1992] ATR 81. In my opinion the appropriate award of general damages in all the circumstances of this case is the sum of $130,000. As was said in Paul v Rendell (1981) 55 ALJR 371 at 372:

"The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive."

87 The next aspect of the plaintiff's claim is the claim for loss of expectation of life. As I have said at the time of trial the plaintiff was almost 67 years of age. In Jongen v CSR Ltd & Anor (supra) Anderson J said at 5:

"The plaintiff must also be compensated, objectively for the loss of his expectation of life. The courts have long recognised that no attempt can be made to place a calculated worth on the amenity of the lost years and it is settled that the award for expectation of life must be modest."

88 I have taken into account all of the facts of the case and the plaintiff's personal circumstances. In my view the appropriate sum for this head of damages in this case is $15,000.

89 The next head of damages is the plaintiff's past loss of earning from the date of diagnosis of the disease on 24 May 2001 to the commencement of the trial on 29 October 2001. That is a period of 26 weeks. In this respect the plaintiff's claim is based upon a gross income of $45,000 per annum with a net income of $38,065 per annum allowing for the fact that the plaintiff split his income with his wife through the partnership of B & M Easther so as to gain a tax advantage for the plaintiff.

90 In Husher v Husher & Anor [1999] HCA 47; (1999) 197 CLR 138 the High Court had occasion to consider a similar tax splitting partnership between a husband and wife where the income was derived from the husband's physical work. In that case the High Court held that the partnership income was produced by the exploitations of the husband's earning capacity and the husband chose to apply that income to the partnership. The financial loss occasioned by the impairment of his earning capacity was the loss of his ability to control and dispose of the income he would have earned had there been no accident. Gleeson CJ, Gummow, Kirby and Hayne JJ said at 146:

"Here, of course, it was found that the existing partnership arrangements would very probably have continued into the future. In this case, then, it was found that, but for the accident, the future would have reflected the past. But finding that past partnership arrangements would probably have continued into the future, had the plaintiff not been injured, does not inevitably mean that the calculation of the damages to be allowed for loss of future earning capacity must be limited by reference to the amount of the plaintiff's share of partnership profits. Again, if Seymour v Gough [1996] 1 Qd R 89 was intended to establish such a proposition, it is wrong and should be overruled.

To explain why that is so, it is necessary to return to basic principles. Those principles are not in doubt. It is the application of those principles that has produced differences of opinion. The appellant submitted that contrary views to those in Seymour v Gough have been expressed elsewhere in Australia. And it may well be that the dominant view in States other than Queensland, and, indeed, in other common law jurisdictions, is not the view adopted in Seymour v Gough. But the decisions reached in particular factual contexts must not be permitted to obscure what we have referred to as the basic principles.

Those principles require identification of what earning capacity has been impaired or lost and what financial loss is occasioned by that impairment or loss. In the present case there is no doubt that the capacity that the appellant lost was a capacity to earn whatever he could have earned working as a block layer. But the enquiry does not stop at what the appellant could have earned. It is necessary to ask what loss the appellant suffered because of the diminution of that capacity and that invites attention to what would have happened but for the negligent infliction of injury (as best a court can predict that future course of events). The latter question (what would have happened but for the negligent infliction of harm) was said to be answered, in this case, by identifying that it was highly probable that the partnership at will would have been maintained but for the occurrence of the accident. But it is necessary to consider the content and consequences of that conclusion with some care."

91 Those principles need to be applied to this case, where in my view it is clear that, but for the contraction of mesothelioma, the partnership of B & M Easther would have continued. The income splitting between the plaintiff and his wife would in my opinion also have continued in the same manner as had been the case in the past.

92 It follows in my opinion that the plaintiff's claim for $19,032.50 as set out in Schedule A of the plaintiff's synopsis of damages should be allowed in full on this component of the plaintiff's claim. In addition the claim for interest on past loss of earnings should also be allowed. The past loss of earnings figure of $19,032.50 and the interest on past loss of earnings for 6 months at $808.88 are both allowed in full.

93 I turn then to the claim for loss of future earning capacity. This item was strongly contested by counsel for the defendant.

94 The plaintiff's claim with respect to this item assumed that the plaintiff's net earnings of $38,065 would have continued to the age of 70 years. As I have said earlier in these reasons in my view, there was no guarantee that the plaintiff would have been constantly employed throughout that period or that his income would have remained constant. The work which the plaintiff would have performed for Crothers was intermittent and there would likely have been times when that employment was not available to him. I accept that whilst not employed by Crothers the plaintiff may have assisted his son both with the provision of supervisory and other services and by way of enabling his son to utilise his builder's registration. However the plaintiff was not remunerated for that work other than by the provision of holidays and in my view that was the only remuneration that he could expect. In dealing with that aspect of the plaintiff's claim I have taken the plaintiff's figures for future loss of earnings including the 20 per cent deduction for personal expenses. I have however deducted from that figure a further 15 per cent for contingencies including the prospect that the plaintiff would have periods where remunerative work was not available to him. I allow that figure at $86,496.

95 As to any paid holidays which the plaintiff may have received from his son in exchange for his supervisory work and the provision of his builder's licence I do not accept the plaintiff's claim that such holidays would have been provided every 2 years at an average value of $8,000 for each holiday. In my view such a claim is speculative and in any event was unlikely to continue until the plaintiff was 80 years of age. It is not possible to make a precise calculation for this component of the plaintiff's claim which I would allow at the sum of $10,000.

96 I turn then to the plaintiff's claim for past care services. In this respect part of the plaintiff's claim is for time spent by his wife in looking after him. This claim is one of a number which come within the principles of Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. That case was followed in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. In the latter case Mason CJ, Toohey and McHugh JJ said at 338:

"In this case, the appellant's need is essentially for constant care and attention. No doubt some of the services which are now needed by the appellant were provided for him by his wife before the accident. But with great respect to those Judges who have taken the contrary view, no allowance in favour of the respondent can be made for such matters. A defendant is no more entitled to have the pre-accident voluntary contribution of a spouse taken into account than a defendant would be entitled to have the pre-accident work of a paid housekeeper taken into account. If the defendant has created the need for the services, that person is not entitled to have the damages reduced because, before the accident, the plaintiff elected to pay for similar services or had the benefit of having them performed gratuitously. By the tort, the defendant has transformed the choice of the plaintiff to pay for such services or to have them done voluntarily into the need for the plaintiff to have those services performed for him or her."

97 In this case the plaintiff's wife has kept a detailed diary recording the time and expense occasioned by reason of the plaintiff's illness. Many matters are included in the schedule kept by her and a perusal of that schedule reveals not only the time taken to transfer the plaintiff from house to hospital but also a substantial allowance for what it described as "juicing". As I understand it, the plaintiff derives some benefit from consuming juice which his wife prepares utilising a blender. That involves not only the preparation of the juice but the cleaning of the blender after that process is complete. The schedule prepared by the plaintiff's wife reveals that she has prepared such juice almost every day since 15 June 2001 for which she claims a period of half an hour each time. With respect to that item it does seem to me that this claim is excessive. The other claims however relate to her services in taking the plaintiff to hospital, obtaining items for him from the chemist and taking him to other medical and hospice appointments. Mrs Easther's time has been costed at $25 per hour a rate provided for in Ms Sharp's report which I am prepare to allow. In all the circumstances, however in my view the appropriate allowance for this item would be 100 hours to the date of trial at $25 per hour being a total of $2,500.

98 To that figure must be added the cost of care services provided to the plaintiff from 1 May 2001 to the end of October 2001 being a period of 26 weeks. As referred to in Ms Sharp's report the past care services are extracted from Table 1 of Ms Sharp's report which details a weekly allowance of $177.50. An analysis of that table however reveals a claim of $100 a week for respite which I understand is the need for some person to care for the plaintiff so that his wife could have a break from that duty. In my view at least in relation to past care such a component is not appropriate as no need for that respite has been demonstrated. I would however allow the balance of the claim at $77.50 as set out in Ms Sharp's report. That component of past care will be 26 weeks at $77.50 per week or a total of $2,015. In addition the plaintiff is entitled to interest on that sum at 8.5 per cent or $171.00.

99 The next item of the plaintiff's claim is for future care and services. In this respect once again the plaintiff relies upon the report of Ms Sharp supported as I have said by the evidence of Professor Robinson. This is in relation to the mid stage of the plaintiff's illness which is expected to be a period of two months commencing approximately one month after the trial. For the one month prior to the mid stage an allowance of four weeks at $77.50 a week is appropriate making a total of $310.

100 During the mid stage in my view, the assessment made by Ms Sharp should be accepted. The evidence establishes that the plaintiff will require assistance with personal hygiene; will be unable to perform even minor household duties and will be quite unable to perform any garden and home maintenance. In addition during that period in my view, the claim by Mrs Easther for respite based upon four hours a week is reasonable. The claim therefore for eight weeks at $357.50 to a total of $2,860 is in my view reasonable.

101 In the end stages I have said it is likely that the plaintiff will spend four weeks in hospice prior to his death. That hospice care for 28 days will cost $410 per day or a total of $11,480. During that period the plaintiff will not require the assistance of his wife. The plaintiff will however require assistance at the end stage for the four weeks that he is at home prior to entering the hospice and I accept the report of Ms Sharp that the end care cost will be $4,802.60 per week which for four weeks totals $19,210. During that four weeks the plaintiff's wife will be required to drive the plaintiff to appointments, collect medication and do other things for him. I accept Ms Sharp's estimate of 8.4 hours per week for 12 weeks being the mid and end stages at $25 per hour totalling $2,520.

102 As to future out of pocket expenses for medicals, equipment and travel as I have said in my view the plaintiff is likely to have the tube inserted next to his spinal cord and a pump in order to provide palliative care. I have outlined earlier the costs involved in that process including the daily costs for medications for the pump that will alleviate the need for most other medications and other pain relief procedures. The appropriate pathology tests will still be required. Those costs total $11,480 as outlined earlier in these reasons to which should be added the cost of medical and specialist consultations totalling $1,455 and investigations totalling $2,543 plus pathology tests at $558.83.

103 The next component of the plaintiff's claim relates to equipment needs which are conveniently set out in Schedule E of the plaintiff's synopsis of damages. In my view the manual wheelchair would only be required for three months at $60 per month totalling $180 and the Delta telescopic ramps for three months at $100 per month. The hospital bed hire would only be required for 8 weeks prior to the plaintiff's end care in hospice costing $320. The mobile shower commode will also be required for 8 weeks costing $120. I would not allow the plaintiff's claim for wheelchair maintenance because the wheelchair will only be required for a short time. From the plaintiff's total claim of $5,706.70 I would therefore deduct a total of $600 leaving a balance of $5,107.

104 The plaintiff has also claimed an allowance for the fact that he will no longer be able to assist his mother by acting as her attorney pursuant to his power of attorney. Those services include paying her accounts and assisting her with shopping and the like. As to that claim it is clear that the plaintiff performed these services voluntarily for his mother. If he is no longer able to perform these services then either his wife or brother will do so. Alternatively his mother would need to pay somebody to perform those services on her behalf.

105 The plaintiff's claim however in this respect is for a loss of his capacity to look after his mother. The plaintiff's mother is aged 91 years. The plaintiff said in his evidence that he was still able to exercise his power of attorney by signing cheques and other documents for his mother but he was unable to assist her with shopping and other like matters. That is now done by his wife.

106 The plaintiff says that a separate allowance should be made for this loss of capacity: see Burnicle v Cutelli [1982] 2 NSWLR 26 where it was held that an allowance for this type of loss should be part of the general damages award. That decision was disapproved of, if not overruled, in the case of Sullivan v Gordon (1999) A Tort Rep 81-524 where a bench of five comprising Spigelman CJ, Mason P, Beasley JA, Powell and Stein JA considered the earlier decision of Burnicle v Cutelli and disapproved of that decision. Beasley JA with whom Spigelman CJ, Powell JA, and Stein J agreed said at [56] to [59]:

"[56] In Burnicle v Cutelli the capacity which the plaintiff lost was one which she had exercised prior to the accident - that is, she already had a family for whom she cared. The same position applied in Sturch v Willmott. That is not the case here. The appellant did not have children until after the accident. Notwithstanding that factual difference, the question for determination is the same as that which arose in Burnicle v Cutelli - mainly, whether damages to compensate for the loss of the capacity to care for dependent children is compensable, and if so, what is the measure of the compensation payable. In Burnicle v Cutelli it was held that whilst the loss of capacity was compensable, it only sounded in general damages.

[57] When this appeal was originally argued neither party made reference to Burnicle v Cutelli. In my opinion, if that decision was to stand, it would govern the outcome of this part of the appellant's claim so as to restrict the plaintiff to having this part of her lost capacity reflected in general damages only. Although making no reference to Burnicle v Cutelli, the trial Judge clearly applied the principle stated by the majority that such a claim sounds only in general damages.

[58] For my part, I cannot see any logical basis for the distinction drawn in Burnicle v Cutelli between the measure of damages in a traditional Griffiths v Kerkemeyer claim and the measure of damages for the loss sustained by the inability to care for a dependent child. The decision does not, in my opinion, reflect the true nature of a claim of this type, based as it is in a loss of pre-accident capacity which gives rise to a specific post-accident need: see Nguyen v Nguyen and Van Gervan v Fenton. It is for this reason that the matter was re-listed for further argument.

[59] On the further argument in the matter, senior counsel for the respondent accepted that Burnicle v Cutelli appears no longer to be good law. It will be clear from what I have said that I consider that to be the case. A person who has lost the capacity to care for a child or children is entitled to be compensated on the same basis as a traditional Griffiths v Kerkemeyer claim."

107 On this point see also "Luntz" Assessment of Damages 3rd ed 193 [4.1.11] and in Western Australia the judgments of Wickham J and Kennedy J in Maiward v Doyle [1983] WAR 210 where Burnicle v Cutelli was followed.

108 Applying those decisions to this case this head of damage should attract a separate award rather than reflect in the allowance for general damages.

109 In this case, to assess a monetary value of the plaintiff's loss of capacity to look after his mother as he did prior to contracting mesothelioma is difficult. As I have said he can still write cheques and sign documents. He cannot however assist his mother by doing her shopping and looking after other personal needs. He may well be unable to do so for the balance of her remaining life and of course he will be unable to do so during the "lost years".

110 As I have said, at the date of trial the plaintiff's mother was aged 91 years and had a life expectance of 4.41 years. I would allow this claim at $50 a week which using a multiplier of 202.4 and the 6 per cent tables results in a figure of $10,100. A contingency deduction of 10 per cent should be applied to that figure resulting in an allowance for this component of the plaintiff's claim of $9,090.

111 The plaintiff has also claimed for his loss in being unable to continue mowing his own lawn, carrying out his car repairs and house maintenance which he said he was able to do prior to contracting his illness. I accept that the plaintiff is entitled to the cost of lawn mowing to the age of 80 years which using the plaintiff's multiplier totals $4,117 but in my view his claim for car repairs is excessive at $1,000 per annum. A more realistic figure would be $500 per annum which using a multiplier of 475.7 totals $4,574.

112 I would allow the claim for house maintenance and repairs at $1,000 per annum as claimed making a total for that item of $9,148.

113 To these figures must be added the past out of pocket expenses as vouched for in the two certificates which are to be provided by the plaintiff in due course verifying the past expenditure.

114 The items allowed are shown in summary form in the attached schedule.

Past out of pocket expenses as vouched for in certificates to be provided by Plaintiff from HIC verifying past expenditure