Parkinson v Lend Lease Securities and Investments Pty Ltd [2010] ACTSC 49 (4 June 2010)

Last Updated: 21 June 2010

LEONARD PARKINSON v LEND LEASE SECURITIES AND INVESTMENTS PTY LIMITED [2010] ACTSC 49 (4 June 2010)

NEGLIGENCE – plaintiff employed by defendant as electrician from 1969 to 1976 – plaintiff exposed to lose asbestos fibres – contracted mesothelioma – defendant acknowledged liability – exemplary and aggravated damages claim abandoned as a result

DAMAGES – disabled son – family prefer to care for plaintiff themselves – smoker – no evidence smoking contributed to health problems – hypertension and heartblock – pacemaker – life expectancy agreed between the parties – benefits provided by the Dust Diseases Board of New South Wales not deducted from general damages – s12D of the Dust Diseases Tribunal Act 1989 (NSW)

Dust Diseases Tribunal ACT 1989 (NSW), s 12D

James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729

Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

No. SCC 702 of 2008

Judge: Higgins CJ

Supreme Court of the ACT

Date: 4 June 2010

IN THE SUPREME COURT OF THE )

) No. SCC 702 of 2008

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LEONARD PARKINSON

Plaintiff

AND: LEND LEASE SECURITIES AND INVESTMENTS PTY LIMITED ACN 008 412 904

Defendant

ORDER

Judge: Higgins CJ

Date: 4 June 2010

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff for the sum of $521,138.

1. This is a tragic and distressing case. The plaintiff contracted mesothelioma, a degenerative lung cancer condition, by reason of his exposure to lose asbestos fibres whilst employed by the defendant as an electrician required to access a contaminated space. He was so employed between 1969 through to 1976 in the building then known as “Monaro Mall” now called the Canberra Centre, that is, on the northern side of the latter complex before the southern side extension was constructed.

2. The defendant has acknowledged liability and seeks no contribution from any previous or subsequent employer. It is, therefore, unnecessary to determine whether or not the defendant was the sole contributor to the plaintiff’s disease. That is conceded.

3. The plaintiff had no knowledge of his exposure until 2008 when a diagnosis was made. He has since undergone various treatments but there is no cure and his condition is now terminal. The plaintiff had sought exemplary and aggravated damages but, in light of the admission of liability, that claim is abandoned.

The evidence

4. In advance of the main hearing from the plaintiff I took evidence on 12 November 2008. At that time he understood he had a life expectancy of about two years. Understandably, that knowledge left him very sad and worried about his family. He felt depressed and upset at the damage that the defendant had done to him.

5. The plaintiff’s evidence comprised also of two affidavits setting out some background facts. He is a married man, having married Mary Claudette Parkinson on 13 February 1960. They have three adult children, Mark, Jamie and Joanne.

6. Mark is profoundly deaf and requires some home support. In the late 1950’s, whilst qualifying as an electrician, the plaintiff worked on various dwellings in the Young region of New South Wales. The relevance of that history is that, although there is no evidence that he suffered asbestos contamination from such work, the Dust Diseases Board of New South Wales accepts that the plaintiff is entitled to benefits as if he had been so contaminated it being a reasonable hypothesis that he might have been.

7. The plaintiff continued in employment until 18 February 1997. At that time he suffered a fall from a ladder fracturing his right elbow. As a consequence he retired from employment. In 2004, the plaintiff had a pacemaker installed. However, in light of other evidence now given it does not seem to me that that circumstance significantly affected the plaintiff’s life expectancy but for the asbestos disease, though it is a factor to be taken into account as an adverse vicissitude.

8. The plaintiff attained the age of 72 years on 12 February 2010. He had been apprenticed as an electrician shortly after leaving school at Young, New South Wales, at age 15 or 16.

9. Despite his retirement in 1997 he was active as a handyman around the house, pursued lawn bowls with enthusiasm and had looked forward to a happy and active retirement.

10. That prospect was rudely shattered in August 2004. The plaintiff had experienced some breathlessness. Dr Burke, a thoracic and respiratory physician, examined him and discovered lesions in his right lung. As a result he was subjected to surgery on 4 November 2004 under the care of Dr Tharion, a thoracic surgeon. Initially it was thought to be sarcoma of the lungs. On operation however, plaques on the lungs were found indicating asbestos exposure with thickening effecting the mesothelial lining. On that initial occasion, the pacemaker was also installed though it was not a result of the asbestos disease.

11. The plaintiff saw Dr Tharion again in early 2008 who found that the plaintiff’s disease had significantly progressed. A second surgical intervention occurred on 15 May 2008. This involved removal of a portion of the right lung. Cancer had invaded into the right upper chest wall. That explained the very significant pain the plaintiff had been experiencing. Part of the intervention involved removal of the second and third ribs on the right side.

12. Under the care of Dr Austen radiation therapy followed on 17 June 2008. At that time mesothelioma was diagnosed. The plaintiff developed a substantial adverse skin reaction to the radiation therapy.

13. The plaintiff has continued to suffer increasing breathlessness and will do so as the cancer progresses. In January 2010 he was commenced on chemotherapy. Initially, that is, as at February 2010, he was told that his decreased life-expectancy, accompanied by increasing breathlessness and pain was five years. It now appears to be less than that, that is, 18 months from March 2010 approximately. As Mr Bartley SC summarised it, each breath he takes, as the disease progresses, feels as if burning sand had been tipped through his thoracic cavity with no significant relief available.

14. The family circumstances are also relevant. The eldest of the plaintiff’s adopted children is, as I have noted, profoundly deaf. The plaintiff has been significantly involved in his case. The plaintiff’s family are devoted to the plaintiff and anxious to care for him for as long as that is a viable option. That is particularly stressed by Mrs Parkinson and Jamie. They would go to great lengths to offer home care, rather than, for example, transferring the plaintiff to a hospice though they are conscious of the level of care they will need to give and the impact that will have on their employment.

15. Some relief from the expense that care will entail is available from the Dust Diseases Board of New South Wales.

16. The plaintiff also receives a fortnightly payment from the Board. It is not refundable out of the verdict. Medical expenses paid by the Board are, it is conceded, not to be awarded against the defendant.

17. Needless to say, the plaintiff has suffered and will continue to suffer not only extreme pain and distress but also anger and frustration at the wrong he rightly perceives his employer to have done him.

18. As well as that there is, I perceive, a sense of regret at being a burden upon his family even though it is a burden they are insistent on assuming.

19. In his evidence, the plaintiff added that had been interested in walking quite long distances.

20. In the first operation he had one rib broken off to access his right lung. Thereafter he was submitted to radiation therapy to try to stop the tumour from reappearing. Additionally, the pacemaker was and has been checked every six months.

21. Thereafter, he consulted again with Dr Yip on 18 February 2008, had a further CT scan on 26 February 2008 and on 4 March 2008 was referred back to Dr Tharion. This was because two large lumps had been detected on the CT scan. They were tumours. One was on the plaintiff’s ribs the other on the stomach lining.

22. He was also referred to Dr Austen for further radiation therapy.

23. Dr Tharion recommended an operation lifting two ribs to get at the tumours. That was done on 15 May 2008. As the plaintiff said, with, I think, understatement, it was “very painful”. Indeed, it was so distressing that the plaintiff “felt like I wanted to die”. It was the worst pain he had ever felt.

24. He was significantly disabled and required intensive home care, primarily from his wife. Drugs relieved the pain only a little.

25. As at 16 February 2010, the plaintiff was seriously handicapped by breathlessness, indeed walking to get to court he over-exerted and fell over from breathlessness.

26. In cross-examination Mr McIntyre SC elicited that the plaintiff had been a 10 cigarette per day smoker from age 18 until age 49 or 50. I do not consider that this history caused or contributed to any health problems for this plaintiff. Indeed, there is no medical evidence to support such an hypothesis. The plaintiff did suffer from high blood pressure but it was and is controlled by medication. There was a finding of a “spot” on his right lung in 2004. It was suggested that in February 2008 that there was emphysema in both lungs. However, there is no evidence to connect that condition to any other cause than the asbestos inhalation.

27. The plaintiff was to some extent improved after the first operation. It did not relieve his then shortness of breath but he was able to walk several kilometres per day. However, his pain grew and breathlessness worsened. He had been walking up to 30 kilometres per week. That, however, did not continue after the second operation.

28. He was aware of the assistance which might be available from the New South Wales Dust Diseases Board but preferred to accept help from his wife and sons. He would accept help for what they could not provide both currently and in the future.

29. Mark Parkinson, one of the plaintiff’s sons gave evidence by signing. An interpreter translated for the court.

30. He deposed that prior to his dust disease becoming apparent his father was a fit and healthy man, and, as an electrician, handy around the house as well as doing gardening and mowing lawns. He relied on his father for assistance with phone calls, filling out forms, passing on messages. That assistance was not “regular”, but would have totalled about four hours weekly. That help ceased after the second operation.

31. Nevertheless, Mark Parkinson did take over some of the tasks his father had performed when the latter was well. He would spend about five hours per week on such tasks. In cross-examination he agreed that the gardens at the home had been redeveloped to achieve a native easy care layout.

32. Jamie Parkinson, the plaintiff’s other son, confirmed that picture of the plaintiff. He deposed that he was devoting an hour a week to performing tasks the plaintiff had, previous to his illness, performed. He was prepared to retire from his role as manager of an Australian indoor cricket team to take a role in the plaintiff’s care as the need arises. In so deciding, he was aware of the range of services offered by the Dust Diseases Board.

33. The decision to take care of all domestic services they could was the personal preference of the family.

34. Mary Claudette Parkinson, wife of the plaintiff, confirmed the plaintiff’s history and his good health before his illness became manifest. She works at the YMCA in child care. She has reduced her work load to four days per week. In cross-examination she revealed that she had asked for her days to be reduced to three days per week to give her more time to care for the plaintiff.

35. An issue addressed by counsel was that of the cost and the extent of care the plaintiff would increasingly require.

36. That issue was greatly affected by another. That is the plaintiff’s life expectancy. That difficult issue ultimately became the subject of agreement following a consultation between Professors Bryant and Breslin, experts engaged by the lawyers for the plaintiff and the defendant respectively. The parties agreed Mr Parkinson’s life expectancy on account of his mesothelioma is 18 months. The plaintiff’s life expectancy but for the mesothelioma, as agreed, is 9 years.

37. One matter to be noted is that Professor Breslin found, as at 19 February 2010, no emphysema. However, he also found that, since 2008, the plaintiff’s lung disease had progressed more rapidly than Professor Bryant had originally expected. He now considered life expectancy to be between 12 and 18 months from the date of his report (23 February 2010). He did not consider that the plaintiff’s smoking history would have shortened his life expectancy, otherwise 85 years. The only co-morbidity that might have shortened his life expectancy otherwise was his hypertension and heart block, each of which was well controlled by medication and pacemaker.

38. There was an issue as to the applicable rate for the domestic services the plaintiff has and will require. Ms Ravagnani, occupational therapist, had assessed the level of care required and had researched the applicable rates. Generally, the nursing care rate was $47.58 per hour. She agreed that unskilled assistance for purely physical tasks such as cleaning and gardening would cost less, possibly $27.50 per hour. At certain stages it would be necessary to have a continuous presence in attendance upon the plaintiff.

39. Professor Bryant, who is chair of the Medical Authority of the Dust Diseases Board of New South Wales has had immense experience of mesothelioma cases. He described the plaintiff’s progression towards death in the following terms:

... he will experience gradually-increasing levels of tiredness and lethargy so that he spends increasing amounts of time in bed. He’s likely to experience a gradual reduction in appetite with increasing nausea and weight loss as a consequence of that. He’s likely to experience feverish and chilly sensations as if he’s getting the flu, but in fact it never happens. He’s likely to experience increasing sense of restriction in the chest due to the growth of the mesothelioma resulting in pain and breathlessness. And those sensations just inexorably increase, further restricting the person’s ability to move, care for themselves or to undertake any sort of normal social life. The level of pain in some cases can be extreme, in other cases it’s a dull discomfort. The breathlessness gradually worsens. It can temporarily increase following respiratory infections and it’s a choking sensation, which gradually becomes worse until the person is – requires terminal care. And at this stage, they generally require very high doses of morphine-like drugs to alleviate pain. Same drugs are used to try and alleviate the sensations of breathlessness, and they may well require additional sedative drugs to alleviate the distress which is evidence both to them and visible by their carers. It’s not a very pleasant way to die. There’s no relief and it occurs gradually and progressively over long periods of time.

40. The very process of breathing as the mesothelioma encases the affected lung causes a constant dull ache increasing with deep breathing and on movement. It was likened to a knife being stuck into the side. Death ultimately is caused by suffocation accompanied by extreme pain.

41. In cross-examination, Professor Bryant agreed that some hospital or hospice admissions were likely from time to time to control symptoms. He did concede that there could be a cardiac condition which, even with the pacemaker, could have reduced, to some extent, the plaintiff’s life expectancy. However, he cautioned that a cardiologist would be better placed to express an opinion. He also agreed that on a CT scan dated 9 August 2004, some emphysema was present, however, it was not productive of any serious impairment. He described the narrowing related to it as “trivial” and unlikely to affect life expectancy. In re-examination, however, he did say of the plaintiff:

This man does not, to my knowledge, have any evidence of heart failure so providing his ischemic heart disease is not critical, and providing it is controlled, then I’m not aware of any factors that should be markedly reducing his life expectancy other than the family history of a tendency to ischemic heart disease.

42. Evidence was led by the defendant from Ms Anita Anderson, General Manager of the Dust Diseases Board of New South Wales concerning the benefits available from the Board to the plaintiff. Domestic assistance is available but it does take account of assistance from family members. Payment would not be made for more than 35 hours weekly nor at a rate greater than 1/30th of the estimated average weekly earnings of a full time adult worker in New South Wales. She did offer the view that Ms Ravagnani’s recommendations were within the “general range” of matters that the board regularly approves. The Board, however, would not pay more than $27.40 per hour for gratuitous services.

43. The defendant also led evidence from Ms Jacqueline Harvey who, like Ms Ravagnani is an occupational therapist. Her assessment was not in fundamental disagreement with Ms Ravagnani but she considered that the appropriate delivery of care was by way of engaging different agencies or persons to provide the different levels of services required at different rates. That, I accept, would be the most economical way of providing those services.

44. It was agreed that, if the plaintiff’s wife ceased work, as she intended when the plaintiff’s care required it, then the plaintiff’s pension from the Dust Diseases Board would increase by $106.40 per week. It was conceded that any ongoing pension or lump sum payable to the plaintiff’s wife upon his death should not be taken into account in the award of damages to the plaintiff.

45. As to the plaintiff’s future care, the agreed facts state the plaintiff’s life expectancy is 18 months. Ms Ravagnani does distinguish between nursing and non-nursing care. I consider that appropriate and I accept her estimates of the value of those services she outlines in her report, and, generally, the estimate she gives of the progression of the plaintiff’s illness and dependency. I think that it is likely, if the plaintiff’s family is not providing services, that a minimal number of agencies would be appropriate. This results in a total from March 2010 to the end of the plaintiff’s life, in round figures, of $175,000 . Applying a conventional reduction for contingencies results in an award of $148,750. Past care equates to a figure of $20,915. I add $6,464 for interest. Some part of the future services, I believe a minimal part, may be paid for by the Dust Diseases Board. That includes assistance to the plaintiff’s son. For general damages, the defendant suggests $225,000. Loss of expectation of life was suggested at $7,500.

46. Mr McIntyre did submit that the benefits provided by the Dust Diseases Board should be deducted from general damages. That was said to follow from James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729. It was a similar case to the present.

47. Handley JA in that case, pointed out that awards for general damages should, over all, be comparable. He would have awarded $110,000. Stein JA, Cole JA agreeing, noted that a pension payment would be undoubtedly be deductible from a claim for future economic loss. No such claim was made. Thus the payments were not able to be set off against a particular head of damage.

48. Stein JA considered the issue of the deductibility from general damages of the benefits payable. That is, whether they were the result of benevolence, in which case they would not be so deductible, or whether they were imprinted with a statutory intent to the contrary. His Honour concluded, having regard to the consideration that only “dusty” employers contributed to the fund set up to make the payments under the relevant legislation that they were set off generally against damages. The fundamental issue for Stein JA was whether the benefit was impressed with a statutory intent that they be additional to rather than in place of compensatory damages. That is, of course, different from a question as to whether the payment negates a particular loss, either wholly or partially, that otherwise would be incurred.

49. His Honour decided that the legislative intent was that, irrespective of whether the worker had a claim for loss of earnings, past or future, the Board payments were a set off against the total damages award. Otherwise, for a plaintiff aged 71 years his Honour upheld, in 1997, an award of $130,000 for general damages. This was not an award subject to any legislative cap.

50. I accept the authority of that decision but, since then, and before the plaintiff’s condition became productive of Board payments, the New South Wales legislative enacted s 12D of the Dust Diseases Tribunal ACT 1989 (NSW). It provides:

Damages for non-economic loss not to be reduced by certain compensation payments

12D Damages for non-economic loss not to be reduced by certain compensation payments

(1) This section applies to proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) for damages in relation to dust-related conditions.

(2) In determining damages for non-economic loss in any such proceedings, no deduction is to be made for any amount of compensation already paid or payable, or payable in the future, under the Workers’ Compensation (Dust Diseases) Act 1942.

(3) In this section:

“damages for non-economic loss” means damages or compensation for the following:

(a) pain and suffering,

(b) loss of amenities of life,

(c) loss of expectation of life,

(d) disfigurement,

(e) the need for services of a domestic nature or services relating to nursing and attendance which have been or are to be provided to a person by another person, and for which the first person has not paid and is not liable to pay any fee or charge.

51. That indicates, as clearly as is possible, that payments by the Board, after that amendment are not to be so characterised as the Court of Appeal did in Newton.

52. However, Mr McIntyre seeks to draw comfort from the opening words of s 12D(1) to contend that Newton is negated only in respect of damages awarded in New South Wales, granted that the Dust Diseases Tribunal has exclusive jurisdiction in dust disease cases.

53. I do not accept that submission. Newton’s case makes it clear that the point of principle is the character which the legislature intended the statutory payments to bear. Section 12D makes it clear, in my view, that the payments made by the Board are to be treated as s 12D requires. That characterisation of the payment, at least by analogy with Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, should be so recognised by this Court, and I do so.

54. One payment the Board will make, to which I have alluded, is the allowance for Mrs Parkinson once she becomes dependant. However, that is in no different position than the pension now paid to the plaintiff absent that allowance. It does not diminish general damages nor, in my view, the Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 component based on Mrs Parkinson’s provision of gratuitous services, now and in the future.

55. Payment of medical expenses by the Board is, of course, in a different category. In so far as the Board accepts and pays for those expenses the plaintiff suffers no loss. The Board does not seek reimbursement.

56. The philosophy behind that is apparent. Dusty employers pay a levy and the levy funds the payments. If the Board was reimbursed from a particular employer that party would in effect be paying twice.

57. Mr McIntyre made the valid point that, great though the plaintiff’s pain and suffering may now be, he had minimal symptoms or awareness of his plight till, first, 2004, and then 2008. As at 2004 his suffering was real but from 2008 they had become serious verging upon and becoming extreme as the period of 18 months from March 2010 progressed.

58. Mr McIntyre referred to a number of damages awards suggesting that the figure for general damages had been in a range of $200,000 to just under $300,000.

59. Mr Bartley, by way of contrast, submitted that the impact of inflation should lead to an award of something in the order of $575,000 to $700,000.

60. For the award for gratuitous services Mr McIntyre urged the view that it is the overall value of the services which is the proper measure for the award. Thus, even if a commercial choice might be made to adopt one agency as a service provider at the rate applicable to the most skilled of the range of services provided, the correct measure is to adopt a differential rate taking account of the variation in value of the various services to be provided.

61. I respectfully agree with that submission.

62. Mr McIntyre, whilst accepting the reasonableness of the plaintiff’s decision to accept family members assistance rather than Board benefits, submitted that for non-personal services the availability of those benefits, being at no cost to the plaintiff, should be offset against the amount otherwise to be awarded. I agree that some allowance should be made for that contingency.

63. That would be additional to the usual discount of 15% for adverse vicissitudes.

64. Mr Bartley, in response, in addition to the matters noted above, submitted that Mr McIntyre’s submission as to voluntary services should take account of the plaintiff’s circumstances, not merely the least expensive commercial alternative. In particular, he referred to the desire of the plaintiff, even in respect of non-personal services, to have as few persons as possible entering his house.

65. I understand that and accept that Mr McIntyre’s submission, though generally accepted, should be so qualified. Mr Bartley accepted that a median figure as an hourly rate would be an appropriate response.

66. Past medical expenses at $25,274 were not disputed but would be paid by the Board and so, do not form part of the damages to be awarded.

67. Dealing with general damages, I accept that the plaintiff’s remaining days will be attended by increasing levels of suffering up to the most extreme category of case, though over a limited period.

68. Given the circumstances I would award $300,000 for general damages and I attribute $100,000 to the past for the purpose of the award of interest. That is, to date, in round figures, $26,531.

69. The plaintiff is entitled to damages for loss of expectation of life. I award $8,000 for the 7.5 years loss agreed upon. That is a slight uplift from previous cases to reflect some inflationary influences.

70. As to past care, I consider that the appropriate award, falling between the two extremes, should be $20,915. I add interest of $6,464 as previously noted.

71. For future care, making due allowance for Mr McIntyre’s submissions, I award $148,750.

72. For dietary supplements identified by Ms Ravagnani, I award $478.00.

73. For assistance to the plaintiff’s son I award $10,000, on the same basis as care to the plaintiff.

74. I do not deduct weekly payments from the Board for the reasons outlined above in considering the effect of Newton’s case. I do not award a sum for past or future medical needs. They are and will be met by the Board. That is conceded.

75. Thus, in my view, the plaintiff should be awarded the following sums:

General damages $300,000

Interest thereon $26,531

Loss of expectation of life $8,000

Past voluntary services $20,915

Interest $6,464

Future voluntary care $148,750

Dietary supplements $478

Assistance to disabled son $10,000

_______

Total $521,138

76. That sum seems appropriate and I enter judgment for the plaintiff for that sum accordingly.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 4 June 2010

Counsel for the plaintiff: Mr A J Bartley SC with Mr F Tuscano

Solicitor for the plaintiff: Ken Cush & Associates

Counsel for the defendant: Mr J McIntyre SC with Mr D Miller

Solicitor for the defendant: Moray & Agnew (Sydney Office)

Date of hearing: 12 November 2008, 15, 16, 17, 18 & 19 February 2010 and 23 March 2010

Date of judgment: 4 June 2010