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[2007] NSWSC 1288
Supreme Court of NSW
2008-05-12
Kearns J
Original judgment source is linked above.
CITATION : (re Dawson) Novek v Amaca Pty Limited [2008] NSWDDT 12
PARTIES : Carina Maria Novek as legal personal representative of the Estate of the Late Margaret Denise Dawson Amaca Pty Limited
DUST DISEASES TRIBUNAL :- mesothelioma plaintiff dies general damages CLA s.15B damages construction of s.15B grandmother providing voluntary care and supervision of her grandchildren CATCHWORDS: whether damages available when care and supervision are undertaken while the parents are both at work, when one or other of them is at home, when they socialise whether the grandchildren were "wholly or partly dependent" on grandmother whether the grandmother's services were provided to the grandchildren or to the parents whether the services were gratuitous whether the services were reasonable whether the parents received benefits from the services so that no damages were payable under the section method of assessment the case for law reform in terminally ill cases to allow cases to be case-managed by judges from the filing of the statement of claim
Civil Liability Act 2002 LEGISLATION CITED: Workers Compensation Act 1987 Dust Diseases Tribunal Regulation 2007
Petrohilos v Hunter (1991) 25 NSWLR 343,346D Wallace v Amaca Pty Limited [2007] NSWDDT 4 CASES CITED: Kendrick v Bluescope Steel (AIS) Pty Limited [2007] NSWSC 1288 Graham v Baker (1961) 106 CLR 340,347 Browne v Dunn (1893) 6 R 67
Ms A Katzmann SC with Mr D Toomey, instructed by Turner Freeman, appeared for the plaintiff. LEGAL REPRESENTATIVES: Mr D Russell SC, instructed by DLA Phillips Fox, appeared for the defendant.
JUDGMENT KEARNS J Outline
Mrs Dawson contracted mesothelioma and became very ill with that disease and died on 27 January 2008. She contracted mesothelioma as a result of exposure to asbestos.
Mrs Dawson commenced proceedings in the Tribunal seeking damages from the defendant for the contraction of her disease. The proceedings have been continued by her daughter, Carina Maria Novek, as legal personal representative of her Estate.
The defendant has acknowledged its liability to pay damages for Mrs Dawson's illness and the only task for the Tribunal is to assess damages.
Damages are claimed under a number of heads and many are not in dispute. The two significant areas of dispute in the assessment of damages are general damages and damages under s.15B of the Civil Liability Act 2002 (CLA).
As to the general damages, there is no dispute as to Mrs Dawson's entitlement to a reasonable sum. The dispute centres on the assessment of that reasonable sum.
As to the claim under s.15B of the CLA, the defendant disputes that any damages at all are payable.
General damages 8. The plaintiff's evidence was given by two affidavits. She also gave evidence at Concord Hospital on 24 January 2008. I accept her evidence.
Mrs Dawson was born on 10 September 1943. She left school when she was 15 years old. She married on 23 December 1961. Carina, an adopted daughter, was born on 14 July 1977 and was the only child.
Carina is married to Neil who is a speculative builder. They have three children, although two only are relevant for the purposes of this case. Those two are Nicholas, who was born on 9 February 2002 and Chelsea, who was born on 2 June 2004. The third is not relevant. She was born after Mrs Dawson became ill, indeed after Mrs Dawson died.
On leaving school, Mrs Dawson obtained employment and maintained employment until 1977. From 1977 to 1989, she was out of the paid workforce being a full time mother to Carina. In 1989, she returned to work until ceasing in 2003.
In 2005, Mrs Dawson's father also lived in the same household and did so until he died on 20 June 2007.
In December 2006, Mrs Dawson developed a dry cough. She also developed shortness of breath which increased in severity.
Mrs Dawson first saw her general practitioner, Dr Nicolas, on 15 January 2007. Antibiotics were prescribed. They were of no help. She saw her general practitioner again on 7 March 2007. A chest x-ray of 9 March 2007 revealed a large, left-sided pleural effusion. She underwent a CT scan on 12 March 2007 and was referred to Dr Freiberg whom she saw on 13 March 2007.
Over this period, she had lost about 10 kilograms in weight.
Dr Freiberg referred Mrs Dawson to Dr Dixon. She saw him on 15 March 2007. Mrs Dawson underwent a very uncomfortable procedure, 1800ml of blood stained fluid being aspirated from her right chest.
Further x-rays in March 2007 revealed a build-up of fluid on the right side.
Mrs Dawson was referred to Professor McCaughan. She saw him on 13 April 2007. She then had increased breathlessness and increased loss of weight.
Mrs Dawson was admitted to Royal Prince Alfred Hospital on 30 April 2007. She underwent right-sided, video assisted thoracoscopy with aspiration of 500mls of blood-stained fluid, pleural biopsies and a talc pleurodesis. It is notorious that talc pleurodesis is a particularly painful procedure.
For three days following surgery, Mrs Dawson self-administered a morphine-based drug. She was then on a number of different medications for different purposes. The medications included oxycodone, endone, paracetomol, coloxil with senna and lactulose. Professor Clarke stated that the medications of oxycodone and endone were used usually only if there was severe pain.
Mrs Dawson continued to have right-sided lateral chest pain following the procedure of 30 April 2007.
When Mrs Dawson gave evidence at Concord Hospital, she said she had been on morphine since her admission to Campbelltown Hospital earlier in the year on 2 January 2008. The other medications were not effective in relieving her of her pain. That is not surprising as this Tribunal is used to hearing evidence of the difficulty of managing pain associated with mesothelioma.
When Mrs Dawson was in hospital, in April and May of 2007, Professor McCaughan informed her on 1 May 2007 that she had cancer of the right lung.
She was discharged from hospital on 2 May 2007. The trip home was described by her as a "pretty tough trip". She was still very sore following surgery.
On 11 May 2007, Dr Freiberg told Mrs Dawson that the presumed diagnosis was mesothelioma. He informed her that she had between six and 12 months to live. She was shocked.
On 17 May 2007, Professor McCaughan telephoned Mrs Dawson and confirmed that the diagnosis was mesothelioma. She was devastated. She says she went into shock. She says her first thought was that she would never see her grandchildren grow up.
Dr Freiberg referred Mrs Dawson to Professor Clarke, an oncologist. He saw her on 23 May 2007. By this time, Mrs Dawson had a number of significant symptoms. The pleural effusion had recurred. Her weight loss was now 19 kilograms. She had right-sided chest pain. Her voice was hoarse. She was lethargic. She was short of breath.
Mrs Dawson commenced chemotherapy on 5 June 2007. The days of chemotherapy were very long days.
She suffered side effects of chemotherapy, including:
• constant nausea, for which she took Pramin or Aprepitant and Stemitil. She had been taking Navosan, but it was not effective to control the nausea. The Stemitil was given in the form of suppositories because of the difficulty she had in keeping the oral medications down T.21.04;
• vomiting; • diarrhoea; • shocking taste in the mouth; • loss of sense of smell and taste; • fatigue; • loss of appetite from day 3 for about a week. I infer that this symptom occurred with each cycle of chemotherapy.
Mrs Dawson underwent chemotherapy in 2007 on or about 27 June, 18 July, 7 August, 29 August, 19 September, 10 October and 31 October.
During the course of chemotherapy, Mrs Novek, whose evidence I accept, confirmed that Mrs Dawson was weak, tired, sick and that she was bedridden for long periods of time.
On 27 August 2007, she underwent a CT scan. It showed blood clots in her lungs. She was told that she had developed a pulmonary embolus. This was treated with Clexane injections, morning and night. Her daughter was giving her Clexane injections at home and her body became covered in bruises from these injections. She went onto Warfarin which had side effects, including nose bleeds. There was still suspicion of ongoing pulmonary embolism when Professor Clarke gave evidence on 24 January 2008.
When Mrs Dawson went for her chemotherapy treatment on 7 August 2007, blood tests showed a problem and she was admitted to hospital. She underwent a blood transfusion. The chemotherapy was carried out the next day.
Similar problems arose in respect of the chemotherapy treatment due later in August 2007. Then she had transfusions on consecutive days before having the chemotherapy treatment.
Yet again, a similar problem arose with the chemotherapy due in September 2007. On that occasion, she had a transfusion in the morning and the chemotherapy in the afternoon.
The plaintiff swore her first affidavit Exhibit PX 1 on 26 September 2007. At that stage, she was still under treatment by Professor Clarke. She described a number of symptoms at that time including:
• a weight loss of 23 kilograms; • limited appetite; • nose bleeds; • restrictions on activities she could do on a trip from Adelaide to Darwin in May 2007; • unable to travel to Melbourne recently because of blood clots; • inability to cook when undergoing chemotherapy; • inability to do anything on some days; • significant restriction in her ability to go out with her family; • unable to undertake major shopping; • largely housebound during chemotherapy; • loss of confidence; • not able to drive much; • walking restricted to a slow walk of 5 to 10 minutes on the flat; • cough; • right-sided chest pain with inability to lie on her right side because of that pain; • inability to sleep without pain killers which caused constipation for which she needed also to take medication; • night sweats especially before chemotherapy; • very limited activity with activity necessitating rest. 37. Mrs Dawson became upset and angry with the knowledge that she would die prematurely by reason of her illness.
After September 2007, when Mrs Dawson swore her first affidavit, she continued to be treated by Dr Nicolas and Professor Clarke.
The reviews by her general practitioner were mainly to monitor her level of blood clotting.
The symptoms described in paragraph 36 above, continued through to Christmas 2007, but it would seem the plaintiff was in a considerably worsened condition. She described most of December 2007 as involving mainly lying down.
At the end of December 2007, she was admitted to Concord Hospital with pain and then on 2 January 2008, admitted to Campbelltown Hospital. She says she was admitted to Campbelltown Hospital because she was bleeding in the abdomen. The bleeding was preceded by pain. She remained in Campbelltown Hospital until she was transferred by ambulance to Concord Hospital on 24 January 2008.
It turns out that the bleed in her abdomen was a bleed into her liver Exhibit PX 6B. She then had an INR of 9.4. Professor Clarke explained that the INR is an international standard to determine how long it takes blood to clot. A normal person's INR is taken to be 1. Warfarin is an anti-coagulant and its prescription is designed to have a patient's INR in the range of 2 to 3.5. Not surprisingly, when Professor Clarke learned that Mrs Dawson's INR was 9.4, he thought her condition was deteriorating.
When the plaintiff was transferred to Concord Hospital on 24 January 2008, Professor Clarke was away and she was looked after by different registrars. She felt "not very good" about being left in that quandary.
Mrs Dawson was put on intermittent oxygen on her admission to Campbelltown Hospital on 2 January 2008.
Professor Clarke, in his report, Exhibit PX 6B, wrote on 11 January 2008,
"In the last week she has been hospitalised at Campbelltown Hospital with a bleed into her liver as a result of an unstable INR. She has also developed a splenic thrombosis and suggestion of bilateral embolic cerebro-vascular accident. This current picture is one of disseminated intravascular coagulation (DIC) and this is usually a poor prognostic sign and often occurs on the basis of progressive malignancy."
Apart from a clot to the lung and the spleen, Mrs Dawson also developed cerebral clots which made her unsteady and caused problems with feeling in her face. At the same time she was having clots, she was also paradoxically having the bleed into her liver T.22.14.
Professor Clarke stated that a lung clot can make one pretty short of breath and that is bad on top of a pre-existing mesothelioma. It can be fatal and it worried Professor Clarke that she could be having that despite anti-coagulant therapy.
Professor Clarke explained that Mrs Dawson, having been on intermittent oxygen, was put on continuous oxygen from around 24 January 2008. A measure of the level of the difficulty she was having with shortness of breath was that she could not go to the toilet without someone helping her. For the same reason, she could not have a shower by herself.
Professor Breslin thought his examination findings on 24 July 2007 were consistent with spread of the mesothelioma to the upper abdomen.
Mrs Dawson was a member of a close, caring and loving family. I accept the submission of Ms Katzmann SC, who appeared for the plaintiff, that Mrs Dawson had a torrid and most rocky period with her illness. She had complications of clotting and bleeding, not often seen in this Tribunal. It is obvious that the level of pain and suffering was significant and great. Apart from the physical pain and sickness associated with her illness, she was disabled in many activities in daily living. The need for assistance in getting to the toilet or in having a shower because of shortness of breath demonstrates how feeble she had become by reason of her illness. Then there is the mental anguish and hurt and anger associated with her illness and its ultimate cost to her. It must indeed have been extremely disheartening to learn at 64 years of age that she would not see her grandchildren grow up. At 63 years of age, she was relatively young to be afflicted by symptoms of mesothelioma.
In relation to her level of pain, it is worthy of note that Mrs Dawson was on medications that Professor Clarke said were used only if there is severe pain. I had an impression that Mrs Dawson's case might have been understated on pain. That would be consistent with evidence given by Mrs Novek T.14.32-33 and by Professor Clarke T.24.17 and with her presentation to Ms Ravagnani Exhibit PX 21.
I make an allowance for general damages at $235,000.
Interest on general damages 53. Interest is calculated as follows.
1 December 2006 - 27 January 2008 $235,000 x 2% p.a. x 14 months: $5,483
28 January 2008 to 12 May 2008 $235,000 x 4%p.a. x 15 weeks: $2,712
Interest on loss of expectation of life 55. I allow $150.00.
Out-of-pocket expenses 56. These are agreed at $71,469.
Past care and services 57. This is agreed at $13,739.
Interest on past care and services 58. I allow $1,277.
Section 15B damages - the evidence 59. Again, except for one item which I shall deal with, I accept the evidence of Mrs Dawson and Mrs Novek. I proceed to state the effect of the evidence.
Mrs Dawson last worked in 2003. She then ceased her work with the GIO when she was 59 years old. She was then living with her daughter and son-in-law and had been since 2001. Before that, she had been living on her own in rented premises. The grandchild, Nicholas, was born on 9 February 2002. Chelsea was born on 2 June 2004.
Mrs Dawson continued to live with her daughter and son-in-law, except for periods of hospitalisation until she died. Mrs Dawson's father also lived in the household from 2005 until he died in June 2007. When Mrs Dawson's father moved in with them in 2005, Mrs Dawson was his primary carer. He was not looking after himself well. She received a carer's pension until he died on 20 June 2007. Later in 2007, she commenced to receive the aged pension.
Mrs Dawson retired from her work so that she could look after Nicholas to enable her daughter to start a new business.
In March 2003, Mrs Novek decided to purchase a Donut King franchise. She had to go to Queensland for five weeks' training. She went with her husband and son and Mrs Dawson went with them. The Donut King franchise was to be in the names of both Mr and Mrs Novek. Mrs Dawson decided to retire and look after Nicholas so that Mr and Mrs Novek could continue to work.
For a time, Mr and Mrs Novek both worked in the Donut King business. At the same time, Mr Novek continued with his business as a speculative builder. The Donut King business was sold at the end of 2004. Mrs Novek then opened an Italian restaurant at the beginning of 2005. She worked in it on Friday, Saturday and Sunday nights and on occasional days. The business was sold in January 2006, but Mrs Novek continued to do the night work.
Mrs Novek obtained a licence as a conveyancer in December 2006. She commenced business as such in Camden from February 2007. The business has taken off and been very successful. She works odd hours, operating from premises in Camden, from home and also travelling to people's places.
Mrs Novek has always been an industrious worker. When the Donut King business started, she would start work at 2.00 or 3.00 in the morning and usually go through to 8.00pm. After a while, she stopped those hours and worked only during the days. She did all the paperwork for her husband's business. She also dealt with his customers allowing him to work full time on the building of houses. He often works 7 days a week, starting at any time from 6.00 to 8.00 in the morning. During the week, he does not get home until 5.00pm. It is unlikely that he maintains those hours on Saturdays and Sundays and the history to Dial-An-Angel Exhibit PX 22 would confirm that. Mrs Novek did not take any time off work with her pregnancies or when the children were born.
Nicholas started pre-school in 2006. He went on Mondays and Tuesdays during school term. He started kindergarten in 2008. In 2008, Chelsea started going to pre-school on Wednesdays. Exhibit PX 3, para 19
Before she became ill, Mrs Dawson usually woke around 7.00 to 7.30am. Sometimes, she would make Milo for breakfast for Nicholas in the morning. She made Chelsea's breakfast and tidied the kitchen.
On Mondays and Tuesdays, Mrs Novek would take Nicholas to pre-school at around 9.00 to 9.30am and Mrs Dawson then looked after Chelsea for the rest of the day. She used the time, apart from attending personally to Chelsea to tidy and clean the house, cook, shop, run errands and do washing and ironing. The routine was much the same on days when Nicholas was not at pre-school.
Since Mrs Dawson became ill, Mrs Novek started working more from home. She did so to help look after her mother to ease the burden on her.
On days when Nicholas was at pre-school, Mrs Novek would arrive home around 3.00 to 3.30pm. Mrs Dawson would start dinner, give the children a snack and continue supervision while Mrs Novek worked. Mrs Dawson did the cooking for the whole family the majority of the time.
Mrs Dawson usually made the dinner. The family ate together. Mrs Novek then bathed the children. If Mrs Novek worked late, Mrs Dawson settled the children down and put them to bed.
Before she became ill, Mrs Dawson had Chelsea full time on Mondays and Tuesdays between about 9.00 or 9.30am through to about 3.00 or 3.30pm. She had both of them full time between those hours on Wednesdays, Thursdays and Fridays. When Mrs Novek worked late, which was about three nights a week, she supervised the children from about 3.30pm, settled them down and put them to bed around 7.30 to 8.00pm. Mrs Dawson always prepared the meals for the children with the exception of the occasional breakfast for Nicholas. She dressed Chelsea every morning and helped get Nicholas ready for pre-school.
On weekends, Mrs Novek and Mrs Dawson usually shared the caring of the children and looking after the house. Mrs Dawson looked after the children if Mr and Mrs Novek went out on weekends or during the week.
It was intended that, but for her illness, Mrs Dawson would have continued to look after the children.
Section 15B damages - whether available 76. The question is whether, in these circumstances, damages may be awarded under s.15B of the CLA. The submissions of Mr Russell SC included the observation that the section is not without its difficulties in interpretation. Despite the able assistance I have received from him and from Ms Katzmann SC, that remains so.
(a) the defendant acknowledges that grandchildren can be dependants, but submits that Nicholas and Chelsea were not "wholly or partly dependent" on Mrs Dawson;
(b) the services were not provided to the grandchildren, but to Mr and Mrs Novek;
(e) the provision of the services benefited Mr and Mrs Novek to such an extent that by reason of s.15B(11)(b), no damages may be awarded.
Were the grandchildren "wholly or partly dependent" on Mrs Dawson? 80. There can be no doubt that Mr and Mrs Novek had the legal and moral obligation to care for their children with all that goes with that in caring for children. Dependency, however, is not exclusively a legal question or a moral question or a combined legal and moral question. Dependency is also a question of fact Petrohilos v Hunter (1991) 25 NSWLR 343, 346D. There can be little doubt, in my view, on the facts of this case that with the type and extent of care Mrs Dawson was putting into her grandchildren, they were, in fact, to an extent, dependent on her.
Were the services provided to the grandchildren? 85. The defendant submits that the services were provided to the parents and not to the grandchildren. I do not accept this submission. Even if one part of the submission is correct, namely, that the services were provided to the parents to fulfil their obligation to provide full time care for their children, that does not mean that, in doing so, Mrs Dawson did not provide gratuitous domestic services to the grandchildren. By the very nature of what she was doing, she was providing services to her grandchildren. It is not the case that the provision of the services must necessarily be categorised to fit into one or other of two categories, that is, the services were provided to the grandchildren or the services were provided to the parents. The services could be provided to both.
Were the services gratuitous? 89. The defendant submits that because Mrs Dawson was residing in the house, rent and board-free and without making any contribution to the household expenses, she was, in effect, being paid in kind.
Were the services reasonable? 94. The defendant submits the services are not "reasonable in all the circumstances" - s.15(2)(d). This is because the legislation is intended to apply in cases of greatest need. It was submitted that damages are available where the primary care giver is disabled.
Before getting to the test of reasonableness in s.15(2)(d), there are other tests the provision of the services must satisfy.
The dependants must lack the capacity to perform the services by reason of age or physical or mental incapacity. This might be called a needs test. For damages to be recoverable, therefore, there must be the provision of services and the provision of those services must fulfil a need.
The services must be provided for the period of time that satisfies some minimum limits. This might be called a threshold test. It is not sufficient that services alone satisfy the threshold test. They must be services of a kind that satisfy the needs test.
One does not get to the test of reasonableness until the provision of services has satisfied the needs test and the threshold test.
It is services that are provided to satisfy a need and that are provided for a required minimum time that must still satisfy the test of reasonableness. The test is that the "need is reasonable in all the circumstances".
The question arises as to what it is that must be reasonable. What must be reasonable is "that need". That phrase is a reference to "need" where earlier used in (d). The need referred to therefore is the "need for the services to be provided for (the threshold periods of time)". However, if the provision of the services has already satisfied the needs test and the threshold test, then it has satisfied the "need for the services to be provided for (the threshold periods of time)". If that was sufficient, to satisfy the test of reasonableness, it would give that test no work to do.
It is apparent, therefore, that the test of reasonableness cannot be satisfied simply by determining that the provision of the services satisfies the needs test and the threshold test.
Reasonableness must, therefore, go to something more than the needs test and the threshold test. What it goes to, I think, is all the circumstances that brought about the need and reasons for the need. Some examples may be given. There is the example in the Second Reading Speech of the wife and mother who looked after the children while the husband and father went to work. That is a clear case of need. It is also an example of the need being "reasonable in all the circumstances". It is reasonable that a family have a breadwinner and that if there are children the one who is not the breadwinner cares for the children. Another example might be one of a neighbour or neighbours volunteering to look after neglected children night after night, because the parents choose to neglect them and spend every night at the local hotel or socialising with friends. Again, that is a clear case of need. It is not a need that is "reasonable in all the circumstances", because it is a need that has arisen by the parents and primary care givers choosing to neglect their children. The difficulty in many cases, as in this case, will be in determining on which side of the reasonableness test a case falls.
The circumstances in this case are that both Mr and Mrs Novek work and have worked at all times under consideration. Mrs Novek had been in regular work with different employers since leaving school up until 2000. From 2000, she worked in her husband's business.
Mrs Dawson worked up until March 2003. At that time, Mrs Novek and her husband had bought the Donut King franchise. Mrs Dawson gave up work to look after Nicholas. This enabled both Mr and Mrs Novek to work.
There can be little doubt that if either Mr or Mrs Novek had given up work to look after Nicholas, enabling the other to work, and had become tortiously injured, then damages would have been available to that partner under s.15B. The provision of services in such circumstances satisfying a need would be reasonable in all the circumstances. Everything about it would be reasonable. It is reasonable that a husband or wife earn income for the family. It is reasonable that a husband or wife not in work stay at home and look after young children.
Because it is reasonable that a husband or wife earn income, it does not follow that it is not reasonable that both do so. Likewise, because it is reasonable that a husband or wife stay at home and care for the children, it does not follow that it is not reasonable if neither do so. Two income families are now commonplace. There can be different reasons for this. It may be that both husband and wife work because they need to financially. That is a well recognised matter. It may be that both husband and wife work because both want working careers. That also, is a well recognised matter. There may be other reasons why both husband and wife work.
In considering reasonableness, I bear in mind also that Mr and Mrs Novek have both conducted very successful businesses. This means, I infer, that either of them, or Mrs Novek at least, would have been able financially to give up work and care for the children had Mrs Dawson not been available to do so. This inference is supported also by Mrs Novek's evidence that if Mrs Dawson had not been around, she would have devoted most of her time to caring for the children. She said also that if her mother was not around that she would not have engaged outside care and that she would not have opened the Donut King or the restaurant and that she may have got her conveyancing licence later when the children were at school.
On balance, in my view, the provision of the services in this case does satisfy the reasonableness test. I think it was reasonable in all the circumstances that Mrs Dawson provide services in looking after the grandchildren to enable Mr and Mrs Novek to work. There are aspects of the care provided that I do not think satisfy the reasonableness test and they are the provision of services when Mr or Mrs Novek were available or to enable them to pursue a social life. I shall deal with these matters later in these reasons.
Mr Russell SC has argued that if s.15B damages are awarded in this case, then they are available in any number of cases that might be considered to be unworthy and he gave examples, as follows:
I do not think it follows that an award of s.15B damages in this case leads to the results suggested by Mr Russell SC. This is because these examples he gave would be filtered out by the reasonableness test.
It was argued that the provision of damages under s.15B was to be limited to cases of greatest need. This was submitted to be the intent of Parliament. It is clear that there are statements to this effect in the Second Reading Speech, but it is not so clear that this intent has made its way into the wording of the section. There is nothing on the face of the section confining the benefits to cases of greatest need. A combination of provisions may go towards that end. Combining the definitions of "dependants" with "gratuitous domestic services" and with the needs and thresholds tests limits the cases in which the remedy is available. It is available only as follows:
In this way, it might be said that the remedy is available only in cases of greatest need, but there is no other reason for limiting the section to cases of greatest need based on some criteria that are not spelt out in the section.
It is not uncommon for Parliaments to limit entitlements to the more needy in the community, for example, certain Commonwealth pensions are subject to means and assets tests. Section 15B contains no such limitation or restriction. Further, Parliament has been known to place a maximum limit an injured person may recover for certain heads of damage. Examples of this include the well known limits on non-economic loss under the Workers Compensation Act 1987 (WCA) and the CLA and also limits under those Acts in respect of claims for loss of earnings Section 151I, Section 12(2) of those Acts respectively. The principal restriction on the quantum of s.15B damages lies in the limit imposed on the hourly rate that may be allowed (s.15B(4) and s.15(5)). There is no limit on the number of hours that may be claimed each week for the provision of the services. In fact, s.15B(4) specifically contemplates no limit on the hours that might be allowed each week. There is no restriction of the remedy to cases where the breadwinner earns less than the amounts specified by s.151I of the WCA or by s.12(2) of the CLA or some other amount. The entitlement of the wife and mother in the example in the Second Reading Speech is not dependent on the amount the husband and father was earning. It is difficult in these circumstances to accept the argument that the damages under the section are to be limited to the case of greatest need, except as spelt out in paragraph 110.
The next argument the defendant raises on the reasonableness test is that the damages are available where the primary care giver becomes disabled. That is so, but I do not accept this argument to the extent that this is a requirement for a number of reasons:
(1) the section very specifically allows damages where it is a person other than the primary care giver who becomes disabled. The damages are available to a claimant to whom certain persons stand in a relationship of dependency. The dependant may be a grandchild, sibling, uncle, aunt, niece, nephew, parent, grandparent or a member of the household;
(2) the section has gone to some pains to provide a number of definitions. There are definitions of "assisted care", "dependants" and "gratuitous domestic services". It has not defined "primary care giver" or given any role to a primary care giver in a determination of whether or not damages are available;
(3) in the case of the single parent family where the mother has died, and where the father goes to work and his mother is able to look after the children, voluntarily, whilst he does, if the grandmother were tortiously injured, I would consider that the section applies. It would do so, even though the grandmother was not the primary care giver.
It is argued then that it cannot have been the intention of Parliament that "Carina and Neil should, in effect, receive paid child care from the defendant until 2024!" That year has been changed to meet a matter the parties agreed on, but it does not affect the point. I would think that if the claimant in this case is entitled, that is exactly what Parliament would have intended. Parliament's intention will not be gathered from the fact that there could be an entitlement that will last or be assessed for the duration of the children's dependency. It was, no doubt, Parliament's intention that if there was an entitlement, it would be assessed until dependency ceased or the care giver became unable, by reason other than the tort, of providing the care, whichever first occurred.
Are damages not available because of the benefits to Mr and Mrs Novek? 115. Damages cannot be awarded to Mr or Mrs Novek under the section. The questions then are whether they have benefited from the provision of the services by Mrs Dawson and, if so, to what extent that should be taken into account.
Section 15B damages - the assessment 118. The damages are awarded for Mrs Dawson's loss of capacity to provide gratuitous domestic services. The assessment of the damages, however, must be limited to the extent that Mrs Dawson would have exercised that capacity. I think that is a proper reading of the section, especially considering sub-sections (2)(c), (d) and (4). Sub-section (2)(c) speaks in terms of services the claimant would have provided. Sub-section (2)(d) speaks of the need for the services to be provided for certain hours and (4) speaks of the hours "involved". This interpretation is also consistent with principle that allows compensation for loss of earning capacity to the extent that it was or may have been productive of financial loss Graham v Baker (1961) 106 CLR 340, 347. It is also consistent with the observation of Hoeben J in Kendrick [326].
(a) earlier in that affidavit, she said that she had been providing 50 to 60 hours per week care and assistance to the grandchildren and previously to her father. There are two things to be said about that. The first is that it is an estimate in a range which puts 60 hours per week at the maximum. The second is that it may be inferred, and I do, that it included some care for her father;
(b) when Mrs Dawson provided calculations of times in her affidavit Exhibit PX 2, paras 18 and 19, the calculations are less than 60 hours per week;
(c) it is unlikely, in any event, that the care provided would total 60 hours per week. If weekends are excluded, it would require care being provided for 12 hours per day on each of the other days of the week and that was not the case. Even if the weekends are included, it would still require the provision of care for over 8.5 hours every day of the week and weekend and Mrs Dawson was not providing care to that extent.
Claim from 2008 to 2010 when Nicholas is at school and Chelsea is at pre-school 121. In 2008, Nicholas commenced school. He attends school Mondays to Fridays, inclusive.
From the beginning of 2008, Chelsea has been at home on each of the school days, except on Wednesdays, when she attends pre-school.
On weekdays, other than Wednesdays, Mrs Dawson, had she not been ill, would have cared for Chelsea from about 9.00am to about 5.00pm when Mr Novek returned home from work. The children would have needed care over that time and it is reasonable that Mrs Dawson would have provided it. There is no reason, on the evidence, why Mr Novek could not have provided the necessary care from 5.00pm. Mrs Novek, for a time, was returning home from work at about 3.00-3.30pm, but that was because her mother was ill. She would most likely not have done so had her mother not been ill. Mrs Dawson was providing some care for Chelsea before 9.00am, but I do not propose to allow it as, on the evidence, there is no reason why Mrs Novek could not have provided it. The care provided for these days, that I allow, is 32 hours per week. This applies during the school term which totals 38 weeks per annum. The total annual hours are 1,216.
On Wednesdays, when Nicholas is at school and Chelsea is at pre-school, Mrs Dawson would have provided care for Chelsea for about two hours in the afternoon and for a shorter time in the morning. Again, the afternoon care is care that it would be reasonable and necessary to provide. I do not propose to allow for the morning time for reasons given in the previous paragraph. The total hours for these Wednesdays is 38 weeks per annum x 2 being 76 hours.
During school holidays, Nicholas would have been at home. There are 12 weeks of school holidays each year, that is 60 week days. On those days, Mrs Dawson would have cared for Nicholas and Chelsea for eight hours per day, a total of 480 hours. This is necessary and reasonable care.
The above care would have been provided throughout 2008 and 2009 until Chelsea went to school in 2010.
On weekends, Mrs Dawson and Mrs Novek shared the load looking after the children and the house. When Mr and Mrs Novek wanted to go out on weekends, or during the week, Mrs Dawson looked after the children. This was for a few hours at a time. I find that the care provided amounted to four hours per week.
I do not allow the claim in respect of the weekend care. They were hours of care provided by Mrs Dawson when Mr and Mrs Novek were available to provide care themselves. The reason they did not care for their children during those hours was because they chose to socialise or spend time alone together. That is no criticism of them. One would expect that they would do these things. In my view, the need for the services to be provided is not reasonable in all the circumstances within the meaning of the section. I do not think it is reasonable that for something very much akin to babysitting while the parents undertake a social occasion, the claimant can expect to be compensated in damages at commercial rates for inability to do such as a result of a tortious injury.
I do not allow the claim for public holidays as there is no evidence as to whether Mr or Mrs Novek might have been available to care for the children.
I have not allowed, in this period, for any pupil free days as it would make an insignificant difference to my calculations.
The total hours of care in this period is 1,772 per annum or 34 hours per week.
The allowance for the period is 34 hours per week x $22.91 x 101.3 being $78,907. The period is so short that there should be no discount for vicissitudes.
Claim from 2010 to 2 June 2020 when Chelsea turns 16 years of age 133. This period covers the time from when Chelsea commences school until she turns 16 years of age. This period can be approached with some guidance from the evidence and otherwise the application of common sense and a broad brush. The problem is there are many imponderables as to the future and the needs of the children. It becomes further complicated by a number of changes that occur in this period. Those changes include, Nicholas going from primary to secondary school, Chelsea likewise going from primary to secondary school and Nicholas turning 16 years of age. At the end of this period also Mrs Dawson would have been approaching 77 years of age. The lack of precision in determining damages over this period does not warrant breaking it up into smaller periods.
(a) Nicholas and Chelsea will both be attending school full time;
(b) neither Mr nor Mrs Novek would be likely to return home from work before about 5.00pm, but Mr Novek would probably return home from work at about 5.00pm;
(c) Nicholas and Chelsea would return home from school at times that vary over the period, but probably average in the range of 3.30pm to 4.00pm;
(d) Mrs Dawson would have cared for Nicholas and Chelsea after school for about one and a half hours a day during school term. I think it is necessary and reasonable that children have somebody at home to care and provide for them after school. Whether that should be right through to 16 years of age might be questionable, but I think it would be necessary and reasonable up to about 13 years of age. Even after that age, there would still be a need for some care. Before school over this period, the needs of Nicholas and Chelsea would probably increase. The simple breakfast of Milo or a peanut butter sandwich would become a more sustaining breakfast that would need to be prepared. For reasons already given, I do not see why on the evidence, Mrs Novek could not have done that and I do not allow for it. I allow one and a half hours per day during the school weeks, being 38 weeks a year making a total of 285 hours.
During school holidays, the need for care that Mrs Dawson would have provided would vary from what a five year old needs at the beginning of the period to what a 15 year old needs at the end of the period. The five year old needs constant supervision which, in this case, amounts to eight hours per day until Mr Novek returns home from work. The 15 year old needs supervision which, in some respects, may be more intense, but is less in terms of hours.
The 15 year olds would be spending time with friends at their home or at their friends' homes, they would be engaged in recreational activities, they would be capable of being left at home on occasions when, for example, shopping was done. On the other hand, some needs could increase. It is not uncommon, for example, for siblings to engage in sporting activities at the same time at different venues which may be in the same suburb or even suburbs far apart. That sort of problem would give rise to increased transport needs. Further, young teenagers need careful vigilance and guidance, even if it is not constant. What would commence in this period as a need for care that Mrs Dawson would have provided of eight hours per day would diminish to about two hours per day.
Taking a broad brush over this period, I allow five hours a day for the 12 weeks of school holidays a year, making a total of 300 hours.
I treat the weekends, public holidays and pupil free days as I did earlier.
The total for this period is 585 hours per annum, being 11.25 hours per week x $22.91 x 471.1 x 0.943, being $114,500. During this period, whilst Mrs Dawson would be getting into her mid-70s, as time went on the physical requirements of care would become considerably less. I think it is appropriate in these circumstances that there be no discount for vicissitudes.
The final comment I make on this subject matter is that whilst I have allowed this claim under s.15B, I have not made allowance in the assessment of general damages for the effects upon Mrs Dawson of her lost capacity to care for her grandchildren.
General damages $235,000 Interest on general damages $8,195 Loss of expectation of life $24,000 Interest on loss of expectation of life $150 Out-of-pocket expenses $71,469 Past care and services $13,739 Interest on past care and services $1,277 Section 15B damages $193,307 Total $547,137
Orders 142. There will be a verdict and judgment for the plaintiff in the sum of $547,137.
In her written outline of submissions, Ms Katzmann SC wrote:
"When the Deceased gave evidence, she was obviously frail, cachexic and jaundiced in appearance. Her voice was hoarse, her breathing extremely laboured. She was on continuous oxygen. Her situation was precarious. Indeed, she died only three days later."
The observations of Ms Katzmann SC in this submission were undoubtedly correct. I might add that Mrs Dawson was heavily medicated.
The only reason Mrs Dawson was in such a state of poor health when she gave her evidence was that, by reason of the Dust Diseases Tribunal Regulation, the judges of the Tribunal are denied the ability to hear or otherwise deal with asbestos cases unless certain conditions are satisfied. Fundamentally, the Regulation provides for an alternate dispute resolution process and there is nothing wrong with that. What is wrong, in my view, is that it provides for such process to the exclusion of any involvement by the judges. A judge is unable to hear or deal with an asbestos case until the alternate dispute resolution is exhausted or certain other conditions are satisfied. This means, as happened in this case, and happens in many cases, that a judge is unable to hear or otherwise deal with a case until the plaintiff's state of health is especially parlous and the hold on life quite tenuous. It also means that when plaintiffs give their evidence, they are often weak and enfeebled and not always lucid. It also means that defendants are often denied the opportunity to cross examine plaintiffs fully. The Browne v Dunn protection that defendants have is only a part solution. Comment cannot be made or inference drawn adverse to a defendant for not putting certain matters to a plaintiff, but a full and proper presentation of a defendant's case requires that a defendant be able to do so. A defendant's inability to do so can result in significant procedural unfairness.
The statement of claim in this case was filed on 24 May 2007. If, on the filing of the statement of claim, this case was soon thereafter listed before the President, as used to be the case, the issues in this case would have been promptly isolated and the parties ready for hearing soon thereafter. There is no reason why this case, in such an eventuality, could not have been heard and disposed of by the end of June 2007. True it is that the plaintiff's state of health was deteriorating then, but from about the end of June 2007, there would have been many opportunities to take her evidence when she was in a state of health considerably better than that described in paragraphs 143 and 144.
This Tribunal was left with the bulk of Mrs Dawson's evidence having been given by way of affidavit and with very limited, indeed barely any, opportunity for Mrs Dawson to expand upon any of these matters and with limited opportunity to the defendant to explore more fully, if it wished to do so, issues it was contesting.
The result has been that this has been another case where the plaintiff died before it could be completed. I remain unimpressed by arguments that that is of no moment, because general damages survive death. If, without prejudice to the defendant in the proper preparation and conduct of its case, a case can be completed in a plaintiff's lifetime, it should be. I have raised this before on several occasions. I shall not repeat what I have said. I shall merely add as an addendum to these reasons, some remarks I made at an interlocutory level, in Snashall Snashall v Comcare DDT7376/07.
I urge the regulators to consider making appropriate amendments to the Regulation with some urgency.
Ms A Katzmann SC and Mr D Toomey, instructed by Turner Freeman appeared for the plaintiff. Mr D Russell SC, instructed by DLA Phillips Fox appeared for the defendant.
COPYRIGHT RESERVED NOTE Copyright in this transcript is reserved to the Crown. The reproduction, except under authority from the Crown, of the contents of this transcript for any purpose other than the conduct of these proceedings is prohibited. Matter No DDT7376/07 DUST DISEASES TRIBUNAL OF NEW SOUTH WALES - SYDNEY BEFORE HIS HONOUR JUDGE KEARNS GARRY RAYMOND SNASHALL v COMCARE TRANSCRIPT OF PROCEEDINGS Friday, 29 February 2008 (Continued from Thursday, 21 February 2008) COUNSEL IN THE INTEREST OF For the Plaintiff Ms Segelov For the Defendant Ms Princi COMMENT .29/02/08 5 EXTRACT Snashall DDT7376/07 1 MATTER COMMENCED 2 3 MS SEGELOV 4 Your Honour, the matter was listed today to seek a hearing date. I can inform the Tribunal that 5 Mr Snashall died two days ago. The orders were complied with in relation to the previous 6 orders. Before we can get a hearing date we need to substitute the executor as the legal personal 7 representative. If we could just have the matter stood over for six weeks to, say, 11 April. We 8 will file a motion. 9 10 HIS HONOUR 11 I put it in for directions then. Before I make any order there is a comment or two I wish to make. 12 This is yet another sad case of a plaintiff dying before his case could be concluded. In a number 13 of cases I have expressed some views about this situation and I regret I find it necessary to repeat 14 and perhaps say more in relation to this situation. Mr Snashall is not the only plaintiff of recent 15 time to have died before his case could be completed. Within the last few days another plaintiff 16 whose case was allocated to me died before her case could be completed. In both instances these 17 plaintiffs died within a couple of weeks of the case being allocated to a judge. Indeed, of cases 18 allocated to me this year, and today is 29 February 2008, Mr Snashall is the fourth plaintiff to 19 have died before his case could be completed. 20 21 One of those plaintiffs died without being able to give evidence. I have checked through a 22 number of cases that have been allocated to me where a plaintiff has died without giving 23 evidence or before the case was completed. There have been at least ten and my time on this 24 Bench has been reasonably short. In practically every instance the plaintiff died within about a 25 fortnight of the case being removed from the claims resolution process. These are cases where 26 they were removed from the CRP because of the deteriorating health of the plaintiff. There is 27 something seriously wrong with a system that because of its structure denies a plaintiff access to 28 a judge until the last fortnight or the last few days of his or her life and at a time when he or she 29 is in a state of seriously poor and deteriorating health and with little prospect of his or her case 30 being completed during his or her lifetime. 31 32 In practically every case the statement of claim was filed in ample time for the case to be 33 disposed of before the plaintiff's death, if the case was managed by a judge from the filing of the 34 statement of claim. If the previous system had been in place practically every case, if not indeed 35 every case, could have been managed by the President from the time of the filing of the 36 statement of claim and would have been managed in a way that would have enabled the hearing 37 to be completed in the lifetime of the plaintiff without causing any prejudice to defendants. It is 38 true that general damages survive the death of the plaintiff. It should not be thought, however, 39 that because general damages survive the death of a plaintiff that cures all ills. 40 41 There are two matters to be considered here. One is the anguish, on top of the anguish 42 associated with the illness, that plaintiffs must be under not knowing the outcome of their cases. 43 A successful result for a plaintiff if the plaintiff is entitled to a verdict must be a matter of some 44 relief especially seeing that some provision is made for their loved ones and/or dependants. I am 45 reminded of some comments to this effect by Judge Walker on the occasion of his retirement 46 from this Tribunal. The comments I have in mind can be found in 2006 volume 3 of the Dust 47 Diseases and Compensation Court Reports at XLII. 48 49 The second matter that arises from the fact that judges cannot handle or hear cases until the 50 plaintiff's condition deteriorates is that most often a plaintiff's health is in such a state when he or .29/02/08 6 EXTRACT Snashall DDT7376/07 she gives evidence that they are weak, often in pain and/or medicated 1 with heavy opiate 2 medication for relief of pain and their attention and concentration span are severely affected such 3 that their ability to give lucid evidence can be significantly compromised. They ought to be able 4 to give their evidence when they are in better health and lucid. 5 6 I repeat my call for the regulators to reconsider the effect of the claims resolution process and 7 consider allowing all cases of terminal illness to be brought before a judge on the filing of the 8 statement of claim. 9 10 The order I make in this matter is that it be stood over for directions to 11 April 2008. 11 12 MATTER STOOD OVER FOR DIRECTIONS ON FRIDAY, 11 APRIL 2008
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(re Dawson) Novek
Amaca Pty Limited
(1991) 25 NSWLR 343
(1961) 106 CLR 340