DISTRICT COURT OF SOUTH AUSTRALIA

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Plaintiff: WILLEM MICHAEL ADRIANUS VAN SOEST

Counsel: MR J A MCINTYRE SC WITH MR
A POSSINGHAM
-

Solicitor: TURNER
FREEMAN LAWYERS

Defendant: BHP BILLITON LIMITED

Counsel: MR T G R PARKER SC WITH MR S DOWD
-

Solicitor: PIPER ALDERMAN LAWYERS

Hearing Date/s:
19/04/2012, 21/05/2012 to 23/05/2012, 08/11/2012 to 09/11/2012, 12/11/2012 to 16/11/2012,
03/12/2012 to
07/12/2012, 17/12/2012, 20/12/2012, 17/06/2013 to 25/06/2013

File No/s:
DCCIV
-
12
-
238

B

DISTRICT COURT OF SO
UTH AUSTRALIA

(Civil)


DISCLAIMER
-

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



VAN SOEST v BHP BILLITON LTD

(No

2)


[2013] SADC 95


Judgmen
t of Her Honour Judge Parsons


28 June 2013




DAMAGES

ASSESSMENT OF DAMAGES
-

MEASURE OF DAMAGES
-

EXEMPLARY DAMAGES

The plaintiff aged 73 suffers mesothelioma caused or materially contribute
d to by his employment
as a painter and docker with the defendant in 1962. Damages for pain and suffering and loss of
amenities, loss of expectancy of life, past and future medical expenses, aids, equipment and home
modification, past and future Griffiths
v Kerkemeyer damages and exemplary damages. Interest.


Dust Diseases Act 2005 (SA)

s 9
;

Hospitals and Health Services Act 1927 (WA)

s 37
;

Hospitals
(Services Charges) Regulations 1984

regs 7(1)(c), 8(a), 9(1)(a), referred to.

van Soest v BHP Billiton Limi
ted

[2013] SADC 31
;

BHP Billiton Limited v Parker

(2012) 113
SASR 206
;

Ewins v BHP Billiton Limited & Wallaby Grip Limited

(2005) 91 SASR 303,
considered.






VAN SOEST v BHP BILLITON LTD

(No

2)

[2013] SADC 95



1

By decision dated 17 June 2013
1

I found the defendant, BHP Billiton
Limited (‘BHP’) liable for the loss which the plaintiff sustained as a result of
mesothelioma caused or materially contributed to by his exposure to asbestos
dust and fibre when working at the Whyalla shipyards for elev
en weeks in 1962.
I now assess the plaintiff’s damages.

The evidence generally

2

The plaintiff and hi
s ex
-
wife, Maria Marcelle van Soest
, gave evidence
about the onset and progress of his illness up to the time of trial. Professor Musk,
the plaintiff’s trea
ting respiratory physician, gave evidence about the diagnosis,
the plaintiff’s medical treatment, the prognosis, the anticipated course of the
plaintiff’s illness, possible further treatment and the likely cost of such treatment.

3

Ms Cunningham, an occupat
ional therapist, assessed the plaintiff and
inspected his home for the purposes of these proceedings. She gave evidence of
her consultation with the plaintiff and Mrs van Soest and her opinion about his
past and ongoing
domestic and
personal
care needs and

associated costs, and

his
future requirements for aids, equipment
,

home mo
dification and home
maintenance
.

4

BHP called Dr Antic, a respiratory physician.

After examining

the
plaintiff’s medical and hospital records

and

Prof Musk’s reports,
he
gave
evidenc
e commenting on Prof

Musk’s assessment of the plaintiff’s condition

and
future medical needs
.

He also commented on the plaintiff’s functional needs.

5

BHP also called Mr Pearce, an occupational therapist. He assessed the
plaintiff and inspected his home and
that of Mrs van Soest. He gave evidence
about the plaintiff’s current and future care needs relating to his functional level
within the home environment and the current and future modifications,
equipment and appliances required to enable the plaintiff to
function maximally
and safely at home
. He also gave evidence about the cost free nature of such
requirements
.

The plaintiff

6

The plaintiff is 73 years old, single, retired and lives alone in rented
accommodation. He is divorced with one adult son. He and Mr
s van Soest, are
still close and since his illness she has assisted with his care.




1

van Soest v BHP Billiton Limited

[2013] SADC 81






[2013] SADC 95


2



7

His evidence about the onset and progress of his condition is largely set out
in the affidavit in relation to damages affirmed on 18 April 2012
2
. I accept that
the affidavi
t provides an accurate description of his condition
, treatment and
function

at that time
.


8

In about early February 2011 he started to suffer from shortness of breath
and a lightheaded feeling. In about late August 2011 he noticed increasing chest
pain and
fatigue, had a decreased appetite and lost weight.

9

On 27 September 2011 the chest pain, which was primarily right
-
sided,
worsened and was felt whenever he inhaled. By 3 October 2011 the chest pain
was so unbearable that Mrs van Soest took him to the emerg
ency room at the
Sir

Charles Gairdner Hospital (‘SCGH’
) where tests showed that he had fluid on
the right lung. He was admitted to hospital and the fluid was drained.

10

He was discharged after three days and then
saw a respiratory physician on

9

October 201
1 who advised a pleural biopsy to determine if he was suffering
from any malignancy. He was readmitted to SCGH on 10 October 2011 to
undergo a furt
her chest drain. At this point h
e became very apprehensive about
his condition.

11

He was readmitted to the SCGH

again between 19

October and 22 October
2011. On 19 October he underwent a right pleuroscopy when fluid was drained
from his right lung and biopsies were taken. He found this procedure very painful
and in the recovery stage
,

his right chest was very tende
r and it was difficult for
him to lie on his right side.

12

As it transpired the

biopsy

tissue was insufficient for a definite diagnosis
and a second biopsy was required. At this stage he was advised of a possible
diagnosis of mesothelioma. He found this new
s devastating.

13

He was readmitted to SCGH on 31 October 2011 and underwent a further
biopsy on 1 November 2011. This was an extremely painful procedure. He
remained in hospital until 4 November 2011 during which time the diagnosis of
mesothelioma was conf
irmed.

14

He was then referred to an oncologist, Professor Anna Nowak, who
recommended that he undergo chemotherapy. Between January and the time

of

his affidavit in April 2012 he had four cycles of chemotherapy
,

each about
two

weeks apart.

15

After each cycle

he suffered from extreme fatigue and nausea with vomiting
and had difficulty eating. Within a f
ew hours of the first treatment,

Mrs van Soest
collected him and took him to her home where he stayed for about
six

days
during which time
she

cared for him, on
ly leaving him for short periods of time
to do shopping or run errands.




2

Exhibit P4
Perth (part of Exhibit P1 before Judge Parsons)

[2013] SADC 95




3




16

Each chemotherapy treatment was followed by a period of severe reaction
requiring him to be cared for at his ex
-
wife’s home. He said that the
period of
severe reaction was longer af
ter each successive cycle. For example
,

he said that
after the second treatment he spent two weeks at Mrs van Soest’s ho
m
e.

17

In between the chemotherapy cycles and when the period of severe reaction
had passed, he returned to his own home but was not able

to do very much at all
to look after himself.
He said that d
uring these periods Mrs van Soest came to his
home to care for him about two days a week for about six hours on each occasion
when she did his grocery and pharmacy shopping, laundry, dishes, hous
e
cleaning and some cooking.

18

The chemotherapy was stopped because of his severe reaction but he will
undergo further chemotherapy and endure the severe side effects if he is so
advised by his oncologist.

19

As at April 2012 and continuing he

suffer
s

from se
vere and constant chest
pain. Sometimes it is a very sharp pain and he mu
st stop moving until it subsides
.
The pain interferes with his sleep. He experiences pain in his chest everyday
despite taking narcotic analgesia in the form of Oxycontin, Oxynorm and

Nortriptyline.

20

He also suffers from shortness of breath. This improved following the
drainage of fluid from his right lung but is experienced whenever he walks any
distance such as when shopping at the supermarket and is exacerbated by hill or
stair clim
bing. He becomes breathless when he showers and must rest before
getting dressed so that everything takes longer than it used to. He
is no longer

completely independent in all his activities of daily living.
3

21

When Mrs van Soest gave evidence at the tria
l
4

the
plaintiff was residing in
his own home and intends doing so for as long as possible with Mrs van Soest
continuing to care for

him about six hours each day for two days

a week. At
some point
,

when his condition deteriorates
,

he believes that he will not

be able
to manage at home and that he will need to move into Mrs van Soest’s home for
fulltime care.

22

Between his retirement as a roof repairer in 2005 and the onset of the
mesothelioma he was very fit and active. Up until late

2011 he could still do all
of
h
is

home maintenance

including repairs and heavy gardening
. However since
January 2012 his

mobility and

exercise capacity has changed dramatically. Now
he cannot even tidy up after himself because of pain and breathlessness.

He finds
this very frustrati
ng.

23

His appetite is very poor. He has lost interest in food and struggles to eat a
main meal ever
y day. He has lost a total of eighteen

kilo
gram
s since he became



3

P4 para 19 in Perth (part of Exhibit P1 before Judge Parsons)

4

21 May 2012






[2013] SADC 95


4



ill.

He no longer socialises. He used to walk to the local hotel to meet friends. He
is too ti
red and breathless to walk and to stand around socialising.

He told
Ms

Cunningham that he used to go to the races or fishing but becomes too
breathless and is anxious about being away from medical services.


24

He worries about his condition and is apprehensive about his future. He had
anticipated a long life because of his family history of longevity. He had
previously been a smoker for about
ten

years but gave up 30 years ago
5
. He now
knows that his life will b
e cut short. He is also worried about Mrs van Soest and
how she will cope looking after him when his condition deteriorates.

Mrs van Soest

25

Mrs van Soest is a retired anthropological researcher aged 65 years. Since
she and the plaintiff divorced some year
s ago
, they have maintained a

harmonious relationship. Before his diagnosis of mesothelioma she saw him a
couple of times a month. She observed that prior to the onset of mesothelioma he
had always been fit and healthy other than a bout of shingles in abou
t August
2011. It was her evidence that the plaintiff called her in early October 2011
saying that he felt ill with pain in his lungs. She took him to the SCGH. At that
time she noticed that he was pale and perspiring. He appeared to be disorientated,
in p
ain and unwell. During his three day admission she took him his personal
requirements and visited with him. She drove him home when he was
discharged. She also took him to hospital and home again on 10 October 2011
when the right lung was drained. In betwe
en those admissions she did some
cooking, shopping and cleaning for him. She observed that he appeared to be in
considerable pain
6
. She has been involved in the plaintiff’s care since October
2011.

26

In between 10 October and 19 October 2011 when he was admi
tted again
for the biopsy Mrs van Soest said that she visited the plaintiff at his home daily.
During that time she observed that he was lethargic and appeared to be in
significant pain.
7

27

When he was in hospital for the three days following the biopsy she
visited
him for about two to three hours a day and then when he was discharged she
drove him to his home. She also drove him to the hospital for the second biopsy
on 31

October 2011 and when he was discharged on 4

November 2011 she drove
him to his home
8
.
On discharge she observed that he had laboured breathing and
appeared to be in significant pain.

28

During the period between his discharge on 4 November 2011 and when he
commenced chemotherapy on 25 January 2012 Mrs van Soest visited the plaintiff



5

Tr 91
-
92
Perth


6

Tr 19

7

Tr 21

8

Tr 22

[2013] SADC 95




5




at home t
wo or three times a week for about five hours each time
,

plus travelling
time of about 45 minutes

each way
.

29

Mrs van Soest drove the plaintiff to his first chemotherapy session. She
understands that he was driven home by a friend. Later that day he phoned
her to
say that he was very ill and she collected him and took him to her ho
m
e where he
remained for six days.
9

30

Mrs van Soest said that when he improved he went home where he
remained until the second chemotherapy session on 15

February 2012. Following
tha
t session he began to feel unwell and drove to her ho
m
e where he stayed for a
further six days during which time his condition deteriorated and she was
providing him with 24 hour care.

31

She said
that he then returned to his hom
e until the third session on 7

March
2012 after which he stayed with
her

for four or five days. Her recollection is that
his condition was better than on the previous occasions. Following the fourth
session on 28 March 2012 he also stayed with her
f
or thre
e or four days. The
assistance which she gave during th
os
e occasions included getting him to and
from the toilet, feeding him,
general
cleaning and making sure that he took his
medication.
10

32

Since the plaintiff returned to his home following the fourth chem
otherapy
session Mrs van Soest has continued to visit him two or three times a week for
about four to five hours
on
each occasion.
S
he does shopping, washing up,
laundry, clea
ning, vacuuming, changes sheets

and does other activities which are
too heavy for

him.
11

33

It was her observation that
,

in between the time

the plaintiff gave evidence
in April 2012

and her evidence in May 2012,

his condition ha
d

deteriorated. She
noticed that he appear
ed

to be in pain

and had

laboured

breathing.
12

34

Mrs van Soest gave evide
nce that she attended the plaintiff
’s assessment
with

Ms

Cunningham. She said that she understands that the amount of care he
will need will dramatically increase over time
.

S
he and the plaintiff have decided
that she will endeavour to provide him with tha
t care. She said that they have
made that decision realising that down the track it might be the case that he
becomes so ill that she cannot perform the required care. She said that in such an
event hospice care may be necessary.
13

35

I accept Mrs van Soest’s
general description of her involvement in the
plaintiff’s past care. Any differences between her description of the plaintiff’s



9

Tr 23

10

Tr 26

11

Tr 20
, 27

and 30

12

Tr 27

13

Tr 27






[2013] SADC 95


6



health and care requirements and that of the plaintiff are immaterial other than
the various estimates of post chemotherapy care

at her home. In that respect I
prefer Mrs van Soest’s evidence. She is more likely to have an accurate memory
of those periods.

36

However I am cautious about her estimate of the time she

cared for the
plaintiff at his home
.

S
he said that she spent about 90
% of the time on household
activities and 10% on companionship and support
.
She was clearly concerned
about the plaintiff’s plight and became involved in his care as soon as she
became aware that he needed help. The evidence suggests that she took it upon
herself to assist with and organise his affairs. Ms Cunnin
gh
am described her as
advocating

on the plaintiff’s behalf. I find that Mrs van Soest was probably at the
plaintiff’s house for two to three days per week for four to five hours on each
occasion tog
ether with travelling time of 45 minutes
each way
and that on such
occasions
,

it was likely that she would have spent the majority of her time
undertaking domestic duties but interspersed with a healthy dose of
companionship and emotional su
pport which I e
stimate

at 25% of the time.

37

I find that the level and extent of care which Mrs van Soest will provide for
the plaintiff will increase as he reaches the end stage of the disease at which time
she will be required to provide for his care fulltime in her own

home
. I accept
that it is her intention to care for him until his death

unless she is unable to
manage
,

in which
case
the plaintiff will
probably
be admitted to a hospice.

Professor Musk

38

Prof Musk provided five reports dated 30 January 2012, 21 February
2012,
12

April 2012, 15 June 2012 and 26 September 2012
14

and gave evidence via
video link from Perth.

39

He first saw the plaintiff in October 2011 for investigation of a pleural
effusion. At that time the plaintiff gave a history of pleuritic pains in the r
ight
chest, was tired, breathless and sweaty. His report of 30 January 2012 described
the plaintiff’s treatment, the investigations undertaken, the diagnosis and the
prognosis.

40

The investigations and early treatment at the SCGH included:



An ultra
sound o
n 3 October 2011 revealing

thickening of the right
diaphragmatic pleura and loculated effusion. This resulted in the plaintiff
un
dergoing pleural aspiration as a
n inpatient to remove fluid from his right
lung. At that stage cytology was negative for malign
ancy.




14

Exhibit P24

[2013] SADC 95




7






A CT scan of the chest
,

performed on 10 October 2011
, revealing a

massive
right pleural effusion with bilateral calcified pleural plaques highly
suspicious of malignant mesothelioma.



Resultant admission to SCGH on 19 October 2011 for a pleuroscopy when
his right lung was again drained, biopsies were performed but the
diagnostic features of malignant mesothelioma were not seen.



Re
-
admission
on 30 October 2011 for a further biopsy. The
combination of
the biopsy result, the clinical history and the radiology resulted in the
diagnosis of right malignant pleural mesothelioma.

41

Following the diagnosis Prof Musk referred the plaintiff to an oncologist,
Dr

Novak
,

who saw him for the first tim
e on 30 November 2011.

42

In his report of

30 January 2012 Prof Musk reported that the plaintiff
commenced chemotherapy on 25 January 2012. He expressed the opinion that
the plaintiff had a life expectancy of six to nine months. He confirmed that the
plainti
ff would experience ongoing weight loss, tiredness, weakness and
breathlessness as well as the side effects of chemotherapy.

43

He

also outlined the anticipated future medical
costs for the plaintiff’s care
from that time including monthly outpatient’s visit
s, monthly chest x
-
rays,
several CT scans, several hospit
al stays for the performance of

pleural aspiration
for the relief of symptoms, inpatient hospital care for about one month,
chemotherapy costs including several overnight stays as an inpatient, a num
ber
of weekly visits to the day procedure unit, transport costs, medication costs and
investigative blood tests, narcotic medication, palliative oxygen therapy,
domiciliary palliative nursing care twice weekly for the final six months of his
life and weekl
y hospice doctor visits for the likely f
our week terminal stage of
his illness
.

44

In a further report of 12 April 2012 Prof Musk reported th
at the plaintiff
had completed four

sessions of chemotherapy. He also noted that further CT
scans had been performed
on 30 March 2012 and 12 April 2012. Prof

Musk
noted that the scan results showed a decrease in pleural fluid and some change in
the circumferential pleural thickening. As a result
,

Prof Musk modified his
prognosis e
xpressing the view that the p
laintiff wou
ld survive a further six to
nine months from that time because his disease
process
had been somewhat
slower than anticipated from the usual clinical course of the disease. However
,

he
also said that the plaintiff’s symptoms of pain, nausea and tired
ness wo
uld
progressively worsen;

that he would continue to lose weight and become
increasingly less active until the final one or two months when he would be
virtually bed or chair bound. As a result of th
e extended life expectancy
Prof

Musk provided an updated l
ist of the plaintiff’s future medical treatme
nt and
anticipated monitoring. The items are set out in detail later in these reasons.






[2013] SADC 95


8



45

When Prof Musk re
-
examined the plaintiff on 15 June 2012 he recorded a
history that
,

at that time
,

he had ceased chemotherapy and that he was able to
walk for up to a mile without stopping if he walked slowly
,

otherwise he would
become breathless. He noted that the plaintiff said that he tires quickly and that
his pain was controlled by his regime of a
nalgesia. Professor Musk reviewed a
further CT scan from 11 June 2012 which he said showed stable disease. As a
result of the stability of the disease process Prof Musk reviewed his prognosis
and suggested that the plaintiff might have a prognosis of survi
val of
twelve
to
eighteen

months
from that point
with the possibility of further chemotherapy.

46

A further report which Prof Musk sent to the plaintiff’s general practitioner
dated 26 September 2012 stated that the plaintiff had seen Prof Musk on that
date,
that he was undergoing radiotherapy to a painful area on his back and that
his walking tolerance
,

without getting breathless
,

had reduced to about 200
metres of slow walking. A CT scan taken on 14 August 2012 did not show
definite disease progression at th
at time but his condition reflected a progressive
disease.

47

When Prof Musk gave evidence on 9 November 2012
he confirmed his
opinion

that the plaintiff had a life expectancy of around
twelve

to
eighteen

months from
June 2012
. He confirmed that the plaintif
f may require further
chemotherapy. He confirmed that the plaintiff may require up to a month’s
inpatient care over his remaining life if he suffers any adverse affects from
further chemotherapy or experiences any current illness.
15


48

He said that as the
pla
intiff had been doing better than expected he has not
yet needed any of the anticipated treatment set out in his first report, that he
cannot be sure that the plaintiff wil
l need those services but that ‘
many patients
with mesothelioma do need them as thei
r disease progresses depending on the
circumstances
’.
16


49

Prof Musk also confirmed the availability of occupational therapy and other
services for terminal patients of the SCGH and his belief that the pl
aintiff fitted
the category of ‘
non
-
admitted patient


a
nd that he could be referred by Prof

Musk
or h
is treating oncologist to tho
se services. He expressed his understanding that
,

if he was a public patient
,

those services would be free but that
,

if he was
privately insured or covered by insurance in any way

t
he hospital would charge
him.
17




15

Tr
442
-
443

16

Tr 444

17

Tr 444
.
There is an error in

the

transcript; r
ead in context Prof Musk said ‘
If he’s privately insured or
covered by insurance in any way then the hospital
would
charge him’
.

[2013] SADC 95




9




Dr Antic

50

Dr Antic’s report of 10 August 2012
18

was based upon a review of the
available cytology, histopathology, pathology, diagn
ostic and radiological
material,

the reports of Prof Musk, the reports of Prof Henderson
19
, the
hospital
notes from the outpatient and oncology departments, the general practitioner’s
notes, the reports of the occupational therapist
,

Ms Cunningham and the DVD of
the plaintiff giving evidence on 19 April 2
0
12.

51

A
part from confirming the diagnosis of r
ight pleural malignant
mesothelioma, Dr

Antic confirmed that the plaintiff’s symptom history
demonstrated that he has an ongoing active malignant process interfering with his
quality of life and function. He described the disease as advanced but currently

stable


requiring modest supportive care
. He said
that this phase would be
followed by a rapid terminal phase lasting one to three months during which he
will require increasing amounts of supportive care for the activities of daily
living provided throug
h a combination of family carers, professional home help
or hospice palliative care services.
T
his evidence was generally co
nsistent with
that of Prof

Musk.

H
e understood that Prof Musk’s then current assessmen
t was
of a life expectancy of twelve to eighte
en

months. He did not express any
contrary view.

52

Dr Antic’s report and oral evidence also addressed the possible further
treatment and monitoring of the plaintiff’s condition. His opinion that there
would be no need for any further hospital in
-
patient cos
ts was based on the
assumption that there will be no further chemotherapy. However he expressed
the view that such treatment occasionally assists in symptom control and agreed
that Prof

Musk is in a position to make an assessment whether that would be
like
ly to be of any benefit
20
. As to Prof Musk’s view that one month of inpatient
care may be
necessary for treatment other than chemotherapy, Dr

Antic said that
such a need may be more likely if the plaintiff lived alone than if he had a carer
at home.

53

Dr Ant
ic said that only two further chest x
-
rays would be needed and one
CT scan. This is markedly different from Prof Musk’s assessment that month
ly
chest x
-
rays and six

monthly CT scans will be required. I prefer Prof Musk’s
evidence as he is better placed to
anticipate the needs of his patient. The evidence
of Prof

Musk and Dr Antic was consistent that
t
he
plaintiff
will need ongoing
narcotic analgesia therapy and that
,

in the end stage of life
,

he may require
palliative home oxygen therapy.

54

The final matter

of significance referred to by Dr Antic related to the
equipment and house alterations which Ms Cunningham recommended for the



18

Exhibit D23

19

Exhibit P26 Pr
of Henderson’s reports concerned diagnosis and causation

20

Tr 1100






[2013] SADC 95


10



plaintiff. Dr

Antic expressed the view that
,

if the plaintiff continues to live alone,
more of his care would be conducted in ho
spital and the equipment specified
would not be required.
I do not accept that position. It is likely that the plaintiff
will be cared for in a residential setting for some period and as such he will

require
equipment an
d home modifications to assist
with
the activities of daily
living.

The Occupati onal Therapi sts

55

The evidence of Ms Cunningham and Mr Pearce as to the plaintiff’s
personal care and equipment needs was based on the progressive nature of the
disease described in the reports of Prof

Musk and D
r Antic

and the results of
their respective functional assessments of the plaintiff
.
T
heir evidence

differed as
to

the type of
aids,
equipment
, home modification and care
which the plaintiff
will re
quire as the disease progresses
.

56

Both Ms Cunningham and M
r Pearce are qualified occupational therapists
with considerable clinical experience, both in the hospital setting and in a private
capacity. Both have experience in the assessment of the needs of terminal
patients.
21

57

Ms Cunningha
m provided three reports da
ted

March 2012, 24 March 2012
and 6

September 2012

and gave oral evidence

twice
22
. The second occasion was
necessary
firstly,
to address her response to
M
r Pearce’s report which post
-
dated
the first occasion of her oral evidence and

secondly,

to modify her opinion given
the plaintiff’s revised prognosis.

58

The report of March 2012 sets out Ms Cunningham’s opinion about the
plaintiff’s level of function and his current and future equipment and
care
requirements. The opinion is based on the plain
tiff’s history of the onset of
symptoms, Prof Musk’s clinical assessment contained in the report of 30

January
2012 including his then prognosis of a six to nine months life expectancy
.

Ms

Cunningham also

interview
ed

the plaintiff and Mrs van Soest at the
plaintiff’s home on 25 February 2012
23
. Ms Cunningham based the care and
equipment requirements on
a life expectancy

of six to nine months and the
plaintiff’s stated desire to continue to live alone in his own rented
accommodation with care available as req
uired.

59

The report considers areas of function such as mobility, seating, bedding,
personal hygiene, dressing, eating and drinking, home management, transport,
recreation and the functional design requirements of his dwelling. In respect of
each of those t
opics Ms Cunningham has described the plaintiff’s then level of
functioning and outlined what assistance he required at that time and
would be

likely to require in the future. An equipment schedule
,

Appendix 1

to the report



21

P22 Ms Cunningham’s CV and
Exhibit
D4 Mr Pearce’s report of 18 July 2012 p 3

22

Exhibits P3

(March reports )

and P21
; oral evidence

21 May and 8 November 2012

23

Exhibit P3
March report

[2013] SADC 95




11




itemises the anticipated cost of

such equipment, services or home modifications.
Appendix

2 refers to the need for
assessment and care from a physiotherapi
st,
dietician and occupational
therapist but does not quantify
the associated costs.
24


60

A summary of Ms Cunningham’s assessment of t
he

plaintiff’s functioning
and needs
as at March 2012 is as follows:

Mobility: Ms Cunningham noted that the plaintiff w
as independent with
mobility but limited by
fatigue, pain and shortness of breath when
undertaking any form of physical activity.
She said
the

plaintiff may require
a walking aid after as
sessment by a physiotherapist. He may need
a handrail
and ramp for access to his house and treatment of paths around the house to
make safe.
In the future

he will require a lightweight wheel chair, a wheel
ch
air cushion and a portable ramp for

access in and out of the house
.
At the
time of the assessment
he was driving his car and doing his grocery
shopping a couple of times a week,

but

in the near future he may benefit
from acce
ss to an electric scooter for
a
ccess in his community. With the
progress
ion of the disease he will need a mobile electric hoist
and sling so
that a carer can transfer him between the bed and his wheel chair.


Seating: With the progression of the disease an electric recliner/lift c
hair
with a hand held control wi
l
l

allow him to recline and transfer in and out of
the chair more easily and will enable him to rest without needing to be
transferred to bed.


Bedding: at the time of assessment the plaintiff was independently able to
get in an
d out of bed, but requi
red a bed wedge to facilitate sleeping

on an
incline to ease breathing and a bedrail to assist him in sitting, standing and
rolling over independently
. As

the
disease progresses

he will need a height
adjustable hospital

bed to assist

with transfers

to
facilitate

his care, to allow
him

to sleep on an incline and for breathing

and pain relief. Pressure
mattresses and
washable incontinence sheets wi
l
l

also be needed at that
stage.


Personal Hygiene
:

at the time of assessment the plaintiff was independent
when showering.
Soon

weight bearing grab rails, a hand held shower on an
adjustable height pole and
a shower stool will be required
. As the disease
progresses
,

he may require a shower transfer bench and the removal of the
shower screen to enable easier access. Dressing aids such as a long handled
shoe horn, dressing stick and a long handled reacher may be required in the
future. At the time of the assessment the

plaintiff did not have any
incontinence problem but with deteriorating mobility, he may need
incontinence pads. In the palliative stage a bedpan, urinal bottle and an



24

P
3
March report

Appendix 1

-

Equipment Schedule

and A
ppendix 2

-

Allied Health Care






[2013] SADC 95


12



overbed table will be required. When the plaintiff can no longer attend to
his personal
care he will require the assistance from a carer for such tasks.


Dressing: the plaintiff c
an dress himself but there will

come a time when he
cannot do so and will need assistance.


Eating and Drinking: the plaintiff has lost weight since his diagnosis a
nd
may require the assistance of a dietician to ensure that he maintains his
weight.


Home management: At the time of the assessment the plaintiff could not
clean his house adequately or undertake home maintenance. He requires
immediate home maintenance,
cleaning and domestic assistance.


Transport: The plaintiff was able to drive but requires a handy bar to assist
transfers in and out of the car and a disabled parking permit
.


Recreation: the plaintiff reported to Ms Cunningham that he feels too
unwell to

drive to friends for socialising. He used to attend organised
activities with friends such as fishing trips and the races but now feels too
breathless, fatigued, unsteady on his feet and anxious about being away
from medical services.


Functional Design
Requirements: At the time of assessment the plaintiff
had no difficulty accessing his
dwelling
but should he become wheelchair
bound he will require a ramp and platform at his main entrance and may
need a wheeled commode for showering. Ms Cunningham also i
ndicated
that should the plaintiff move to Mrs van Soest’s house for care an
occupational therapist will be required to visit her house to ensure that his
access and functional needs are adequately met.
25


61

Ms Cunningham also dealt with the level of care the

plaintiff required at
that time and his future care requirements. She indicated that he required an
immediate increase in care hours and that
as the disease progresses he wi
l
l

require a gradual increase of allocated care hours
. At the

palliative

stage
,

as

a
single man with limited people to provide care
,

costs
for such services
can be
expected to be high.

62

In the first report,
Ms Cunningham divided what was then a period of nine
months’ life expectancy into three periods of care being moderate care for
36

weeks, high care for
ten

weeks and palliative care for six weeks. However
when she gave evidence she indicated that the reference to moderate care for
36

weeks was in error and should have been
twenty

weeks. In any event that



25

A copy of a product guide setting out the products referred to in her report
and the costs
was tendered
as part of exhibit P4

[2013] SADC 95




13




period has been extended given

the more optimistic assessment of the plaintiff’s
anticipated life expectancy.
26


63

The report is accompanied by schedules setting out the level of care
required for each of the three stages. Moderate care contemp
lates that the
plaintiff will n
eed some assis
tance with most of the domestic chores and
someone to be on hand to render assistance as needed. The
suggested
care
requirements for this stage are
one hour of meal preparation per day, three hours
per fortnight of domestic assistance, two hours per d
ay fo
r personal care
assistance
, one hour per week of nursing assistance and four hours per quarter for
home maintenance
. High care contemplates that
the plaintiff will require
assistance with all aspects of daily living including assistance with transfers and
h
is personal care and hygiene. She suggested that he will need

two hours of meal
preparation per day, three hours per fortnight of domestic assistance, five hours
per day personal care assistance, two hours per week of nursing assistance and
four hours per

quarter of home maintenance. Palliative care conte
mplates 24 hour
care including
one hour per day nursing assistance, clinical nurse assistance two
hours per week and round the clock care provided by a trained carer. The cost of
care for this period was a
ssessed as significant given the plaintiff’s wish to
be
cared for in a home setting
27
. Ms

Cunningham understood that
in the palliative
stage
it is intended that Mrs van Soest will continue to provide domestic and
personal care assistance and that profession
al nursing and medical care

will also
be required
.

64

The
cost of care
is set out in the schedules. The cost is
based on
the rates of
an

organisation known as Silver Chain.
Ms

Cunningham
also used rates from an
organisation called MACS Maintenance for the
ho
me maintenance requirements.
Ms

Cunningham used rates from Flex Health Care for the cost of overnight care
in the end stage of the plaintiff’s disease
28
. She acknowledged that some of the
services referred to in her report are available through the public
system
particularly Hom
e and Community Care services (‘
HACC

) but
she said
that
these are subject to availability, eligibility and suitability for
the plaintiff’s

needs
and in her view are not suitable.

65

Ms Cunningham assessed the cost of palliative care as

a private commercial
service although she acknowledged that palliative care services may also be
available at no charge through Silver Chain’s Palliative Care Branch following a
doctor’s referral and subject to availability and needs assessment by Silver
Chain.

66

Ms Cunningham’s

further report dated 24 March 2012 outlined the care and
assistance which the plaintiff required between October 2011 and the date of her
assessment on 25 February 2012. The report outlined her understanding of the



26

Tr 71

27

P3
March report
Appendix 3


Ca
re and Home Maintenance Requirement Calculation


28

P3

March report Appendix 3 p 3; A copy of those rates was not provided.






[2013] SADC 95


14



level of care wh
ich Mrs van Soest provided to the plaintiff when he stayed with
her following each period of chemotherapy and when she visited him at his
home
.

It was apparent from her cross
-
examination that her summary of past care
costs, based on Silver Chain’s commerci
al rates
,

was arrived at by multiplying
the hours specified by Mrs van Soest

in her evidence

by the applicable Silver
Chain hourly rate. No adjustment was made for time spent in companionship as
opposed to care. It will be necessary to make a deduction in
keeping with the
finding
that 25% of the time was spent i
n companionship.
29


67

Ms Cunningham’s third report of 6

September 2012 responded to
Mr

Pearce’s report of 18 July 2012
30

and addressed differences in their respective
approaches to the level
and

cost of

care
, eligibility for free palliative care and
eligibility for free equipment and home modification. Her oral evidence on
8

November 2012

was also largely directed to these topics.

68

To put that report and her oral evidence in
to

context it is appropriate

to set
out Mr

Pearce’s documentary and oral evidence first and then to deal with
Ms

Cunningham’s response.

69

Mr Pearce’s evidence was based on consistent personal information and
medical history. His clinical assessment of the plaintiff’s function was gene
rally
consistent with that of Ms Cunningham.

With some exceptions he agreed with
the list of equipment required. He formed a different view about home
maintenance, home modification and the level of care required.

He
made a
distinction between the plaintif
f’s care needs up to and during the palliative stage
of about six weeks
.
When he assessed the plaintiff his life expectancy was to
about October 2012. When he gave evidence he confirmed that, if the plaintiff’s
life expectancy was extended by about a year,

the palliative stage would remain
at about six weeks
31
. He
also prepared his report on the understanding that the
plaintiff wished to remain in his home for as long as possible, and that when he
reached a level of dependency in his activities of daily livi
ng he intended to
move to Mrs van Soest’s ho
m
e and remain there for the palliative stage of his
disease and that he did not wish to be cared for in a hospice.
For that reason he
also inspected Mrs van Soest’s home.

70

On clinical evaluation
he noted that the
plaintiff demonstrated reduced
standing balance,
reduced general global strength, reduced upper body strength,
increased respiratory breathing,
agitat
ion,
complained of
significant pain on a
daily basis and had lost weight.

71

In assessing the plaintiff’s fu
nctional activities of daily living, his overall
view was that, at that time, the
plaintiff was unable to prepare meals for himself,
could not attend to laundry tasks or undertake house work, home maintenance



29

P3 r
eport
of
24 March 2012
;

t
r 73
;
A copy of the Silver Chain
schedule of fees

was tendered as exhibit
P4

30

D4

31

Tr 570 & 582

[2013] SADC 95




15




and could not undertake other than light shoppi
ng when he felt well enough,
could not drive very far and could not attend to his persona
l banking and postal
business. He described the plaintiff’s likely future physical and cognitive
limitations and anticipated equipment and home modification needs. Alt
hough
Mr

Pearce and Ms Cunningham largely agreed about the equipment, notable
exceptions were that Mr Pearce did not agree with the hire of a Shop Rider
scooter and did not consider that a dedicated electric recliner/lift chair was
necessary as Mrs van Soe
st already had one at her home.

72

They differed about the need for home modifications at the plaintiff’s
home. As Mr

Pearce anticipated that the plaintiff would be moving to Mrs van
Soest’s house within six to eight weeks from his assessment
32
, he assessed t
he
home modifications likely to be required at her home instead. These included
reversing the bathroom door, installation of grab rails and a hand held shower.

73

As to domestic service and personal care needs Mr Pearce was of the view
that the plaintiff wou
ld be well served with pre
-
prepared meals from Meals on
Wheels or Home Chef instead of home prepared meals, that his household
requirements could be provided by home delivery from a local supermarket,
prescriptions could be delivered by the local pharmacy
and that the plaintiff
could use transport services via subsidised taxis or volunteer hospital transport
rather than family members incurring associated costs. Mr

Pearce also formed
the

view that no home maintenance work was required at the plaintiff’s ren
tal
accommodation
.
33

74

Mr Pearce assessed the domestic and care needs as follows:
34

Current

I. Domestic Assistance
-

assistance with cleaning floors and wet areas
,
and assistance
with laundry. Current anticipated requirements are a maximum six hours per week.

II. Daily Support with Meals
-

either Home Chef or Meals on Wheels would be adequate.
Current ant
i
cipated requirements are seven meals per week.

Ill. Shopping delivery through Coles organised twice weekly would be sufficient.

IV. Medications can be
delivered by his local pharmacy once per week
-

there is no cost
for delivery services
.

Future

I. Domestic Assistance
-

assistance with cleaning floors and wet areas, and assistance
with laundry. Anticipated requirements are two hours per week requ
i
red unt
il end stage,
finishing on the
12th
October
2012.




32

D
4 p 17

33

D4 p 17

34

D4 p 22






[2013] SADC 95


16



II. Personal care, nursing and medical care services
-

provided through Silver Chain
Palliative Care Services as determined following assessment by Silver Chain and adjusted
according to Mr. Van Soest's dec
line. Provided at no cost to eligible clients.

75

The fundamental difference in their evidence was

the cost
of equipment,
home modification and domestic and personal care services.

I
t was
Mr

Pearce’s

understanding that the plaintiff qualified for the provisio
n of aids, equipment and
home modification at no cost through the Department of Health, West
ern
Australia because he was a
current and recent WA H
ealth admitted or non
-
admitted
patient
35
.

It was Mr

Pearce’s understanding that all essential items such
as bed

rails, an electric hospital bed and mattress, a hoist, a slide sheet, an over
bed table, an over toilet frame, bedside commode, handheld shower, shower
chair, transfer bench
,

walking frame, wheelchair and a temporary ramp for wheel
chair access would be p
rovided to him at no cost through either Silver Chain
Palliative Care Services or the Occupational Therapy Department of the SCGH.

76

Mr Pearce also understood
that the plaintiff qualified for personal care
assistance at no charge through a division of Silv
er Chain Palliative Care
Services prior to the
palliative

stage.
H
e
also said that the plaintiff
would be
entitled to receive personal care support, nursing, oxygen therapy equipment and
medical services at the palliative stage at no cost.

77

However

Mr Pear
ce agreed
,

in cross
-
examination
,

that a government
department may seek to recover the costs of equipment, care and services from a
compensable patient
, and he

agreed that hospice costs are

usually

recoverable.

Nevertheless

h
e maintained his earlier positio
n that no cost services could be
obtained for all the plaintiff’s needs.

78

In her last report and oral evidence
Ms Cunningham responded to

this
evidence. She said that free palliative care was
provide
d

via referral from a
general practitioner and the fulfil
ment of certain eligibility criteria for the active
dying process
. It was her view that this service was
unlikely to meet the
plaintiff’s needs

and that p
alliative care provided by Silver Chain as a private
provider at commercial rates w
ould

be more timely

and efficient and allow
greater levels of comfort for the end stage of life.
36


79

Ms Cunningham clarified

that the palliative care team does not provide

24

hour care,

that its role is to support
a carer who is already in place,

that
Mrs

van Soest would receive instruction in the plaintiff’s care
and
that if the
plaintiff live
d

alone
with no carer
Silver Chain would not be able to facilitate
home palliative care
. This is because

pa
lliative care is separate from
domestic or
personal care su
ch as toileting, showering or dressing which are required to be
maintained throughout
. P
alliative care is limited to the active dying process when
breakthrough pain and breathing difficu
lties cannot be managed by the g
eneral



35

D4 p 4

36

Tr 372

[2013] SADC 95




17




p
ractitioner. For that reason a

free palliative care program would not provide
nursing care during the earlier moderate or high care periods.
37

80

In relation to equipment and home modification
Ms Cunningham

said the
plaintiff does not qualify under the Department of Health Guidelines for a
ids,
equipment and home modifications at no charge or reduced charge through the
occupational therapy department of the SCGH or the Communi
ty Aids and
Equipment Program (‘CAEP’
). She said that CAEP would be unlikely to respond
to his requirement for assess
ment and equipment in a timely fashion and that
,

in
any event
,

it is her understanding that recipients with a compensation claim are
required to pay for the equipment provided. She said that a number of the items
of equipment and home modification she has
recommended are not funded under
any government system. She also maintained her opinion that the plaintiff
requires a dedicated electric lift chair, an electric scooter and a portable ramp
contrary to Mr Pearce’s view. She described a scooter as a basic ne
ed once he
cannot drive.
38

81

As to Mr Pearce’s suggestion that the plaintiff can access community
services for nursing care and personal assistance, Ms Cunningham clarified that
she did not make enquiries about services provided by community programs
because
she did not regard such services as suitable given the level of assistance
that the plaintiff required at that stage and was likely to require in the future.
Such services are capped to five hours per week and there are delays in
assessment and in waiting
for care to be arranged. Once in the palliative stage,
the five hours permitted for domestic and personal care through one of the
community care services would be inadequate to change his bedding, turn him
every two hours

and

change pads. She also understo
od that there is a
reimbursement required in the case of compensation claims although she was
unable to clarify that.
39

82

She stressed that, when recommending equipment and personal care, she
nominated the most basic economical type that would meet his assess
ed essential
functional needs with the proviso that it is very hard to predict the hours of care
which a person will need. She denied that she had
taken

into account his spiritual
or emotional needs.

She agreed that the course of palliative care cannot be
accurately predicted because
the disease process is variable; that

sometimes there
is a rapid decline and sufferer
s

end their days either in a hospice or a hospital
rather than dying at home.
40

83

She agreed that in

domestic assistance

and

nursing care she use
d the rates
commercially charged by Silver Chain without any discount to take into account
the possibility that free services would be available
.

This reflected her view that



37

Tr
361, 370
-
371,
377

and
379
-
380

38

Tr 385

39

Tr
74, 362
-
363 and 382

40

Tr 365
-
366
, 381
-
382

and
386






[2013] SADC 95


18



such services would not be adequate and that the services would be the subject of

reimbursement from compensation payable. She was also of the view there was
efficacy in using the costings of the same provider for all aspects of care
throughout each period of need.
41

84

She disagreed with Mr Pearce’s assessment of the plaintiff’s needs
42

an
d
expressed the view that he had misinterpreted the guidelines
for

free
or reduced
cost services
.

Financial Responsibility for Care and Equipment

85

I have little confidence in Mr Pearce’s opinion that the plaintiff
can receive

equipment, home modification,

domestic care, personal care or palliative care at
no or reduce
d

cost. His opinion was not based on any authoritative advice from
the SCGH
,

from Silver Chain
or any other

provider of state or federal
government community programs

about the availability of

their services for a
potentially compensable client
.
He also acknowledged

that the government may
seek to recover the cost of equipment, care and services provided by
organisations and hospitals from a person who recovers damages.
43


86

T
hat position is consi
stent with

Ms Cunningham’s understanding
and that
expressed by Prof Musk
. The probability
that recovery will be required
also
accords with the material referred to in the WA Health Polic
y, P
rovision of Aids
Equipment and Home Modification published by the
Department of Health
which was attached to Ms

Cunningham’s report of 6 September 2012
44
. The
policy states that it is governed by the
Hospitals and Health Services Act 1927

(WA)

and
the

Hospitals (Services Charges) Regulations 1984
. The Act defines
‘service
s’

to include

the items covered by that policy. The Act also authorise
s

hospitals to charge for their services and the Regulations set out the charges and
the circumstances in which they are charged. In accordance with the Regulations
compensable

inpatient
s, day patients, outpatients, and same day patients will be
charged for those services in an amount determined by the Minister according
to
the cost of the service (Reg

5)
45
.

I
draw the inference that,

if the plaintiff uses
state or government funded
commun
it
y programs through Silver Chain or other
providers or SCGH services to
access equipment, home

modification, and
domiciliary, medical
and nu
rsing care during the moderate,

high care and
palliative stages
,

he wil
l be required to make recovery.

87

Other
differ
ences between the opinions o
f the occupational therapists are

dealt under the relevant heads of damage.




41

Tr
382
-
383

42

Tr 367

43

Tr 576
-
577

44

P21

45

Compens able patient is defined in Reg 8(a), 7(1)(c) and 9(1)(a) as one who has received or

who on
attendance at a hospital appears
prima facie

to have the right to receive any such payment in respect of
an injury, illness or disease for which he is recei
ving care and treatment…

.

[2013] SADC 95




19




Pai n and Sufferi ng and Loss of Ameni ti es

88

The plaintiff suffers from a debilitating and painful progressive disease.
I
accept his evidence and the descri
ptions of his condition given by Prof Musk,
Dr

Antic, Ms Cunningham, Mr Pearce and Mrs van Soest.
He experiences
increasing shortness of breath and chest pain, he is fatigued, he has lost weight
and has loss of appetite. He requires narcotic analgesia to c
ontrol his pain. He has
undergone the extremely painful procedure of aspiration of fluid from his right
lung
twice
and
has had
two biopsies. He has had four cycles of chemotherapy
with the associated nausea, vomiting and fatigue and may undergo further
che
motherapy if advised by his oncologist.

89

He has lost his independence. He is becoming increasingly disabled and
will eventually be totally dependent on Mrs van Soest for assistance with even
the most basic aspects of daily living. He ca
nnot socialise with h
is friends and

he
is anxious and distressed about the future and his impending death. He is anxious
that Mrs van Soest may not be able to care for him until his death.

90

During the remaining period of his life, which based on Prof Musk’s
prognosis may exten
d to
about
December 2013, he will become increasingly
debilitated until in the final stages of the disease he will be bedridden, will suffer
double incontinence, will have difficulty breathing and will be totally dependent
on the care of others. He will re
quire additional

narcotic analgesia to control
severe and unremitting pain
. He is likely to suffer a diminution of cognitive
function as time progresses and he will require oxygen to assist with breathing.

91

Mr McIntrye
SC
submitted that the assessment of general damages should
be comparable with the level of damages awarded in other dust disease cases in
other jurisdictions however I am bound by
Ewins v BHP Billiton Limited and

Wallaby Grip Limited
46

in which Doyle CJ said t
hat awards for pain and suffering
in cases of mesothelioma should have regard in a general way to the general level
of awards for damages for personal injury made by Courts of this State.

92

I award $120,000 having regard to the fact that
Ewins

was decided s
ome
seven years ago and taking into account the expected prognosis.
The plaintiff has
lived
with the physical pain and limitations of his condition and its treatment, a
nd
the emotional consequences of his disease since late 2011
.

He has the expectation
of
a further six months of unrelenting pain and severe disability.

To
accommodate both those aspects I attribute half of the damages to the past and
half to the future.

I award an amount of
interest in the sum of $2,400.

Loss of
Expectation of L
ife

93

The
plaintiff is currently

73 years of age and has a prognosis of
twelve

to
eighteen
months from
Prof

Musk
’s examination in June 2012
. Mr

McIntyre



46


(2005) 91 SASR 303






[2013] SADC 95


20



submitted that
,

on current life tables
,

a 73 year old male has a life e
xpectancy of
14.04 years and that

was not
disputed. The plaintiff has no comorbitities. Prior to
his diagnosis he was an active, fit and independent man who had an expectation
of a long life based on his family history of longevity and his health status. In
Ewins v BHP

the award for a similar aged

man was $10,000 based on what
should have been a number of years in retirement. Bearing in mind that this head
of damage is to be moderate but not nominal I award $12,000.

Past
m
edi cal
and l i ke expenses


94

The Notice of the Government of Western Australia,

Department of Health,
Health Corporate Network dated 17 June 2013
47

advises that the plaintiff has
incurred a total of $52,435 for admissions to the SCGH comprising $20,590 for a
total of eleven days as an inpatient between 3 October 2011 and 4 January 201
3,
$22,104 for twelve separate attendances as a same day patient between
10

October 2011 and 12 June 2013 and $9,741 for a total of 54 outpatient
attendances between 10 October 2011 and 29 May 2013.

95

The Notice of Charge of Medicare Australia dated 26 June
2013
48

itemises a
number of medical expenses which the plaintiff has incurred for specialist
consultations, investigations, radiation oncology treatment and consultations
with and attendances by his general practitioner. These services were incurred
betwee
n 8 September 2011 and 11 June 2013 totalling $3609.30. I accept that the
plaintiff has incurred the expenses outlined in those notices and allow past
medical and like expenses at $56,044.30.

Future medical
and like expenses

96

Determining the quantum of
future medical expenses is not an exact
science. I have made the best estimate I can on the available evidence and then
taken into account various contingencies. In April 2012 Prof Musk estimated the
plaintiff’s future costs at $58,556 taking into account
the following items:
49


My estimate of his future medical expenses is


Monthly outpatient visits

9@ $130.00

$1,170.00

Monthly chest x
-
rays

9@ $142.00

1,278.00

CT scans: initial
,

3@ $810.00

2,430.00




47


Exhibit P57

48


Exhibit P58

49


P24 p 3

[2013] SADC 95




21




Inpatient hospital care for one month@ $400
/
day

12,000.00

Chemotherapy costs:


Hospital costs:


Inpatient treatment: 6 overnight stays

3,000.00


12 Weekly Day Procedure Unit visits


2,000.00


Transport cost
s:

300.00

Medication costs:

a) Chemotherapy: assuming he

undergoes 6 further cycles of chemotherapy

at $3,100.00 each

18,600.00


b) Anti
-
nausea drugs for six cycles

840.00


c) Antibiotics for febrile neutropenia

3,200.00


Investigations:


Blood tests: 20 blood tests
@
$45.00 each

900.00

Narcotic analgesic ther
apy

6,000.00

Palliative oxygen therapy

1 month
@
2 L/min

287.00

Course of palliative radiotherapy

3,751.00

Domiciliary palliative care nurse

2
/
weekly for final 6 months @ $50
/
visit

2,400.00

Hospice doctor weekly for terminal phase

4 visits
@
$100 each

400.00

Total

$58,556.00

97

It is clear that, at the time that the list was prepared, Prof Musk thought that
the plaintiff had a life expectancy of about ten months hence the reference to nine
monthly outpatients visits and nine chest x
-
rays, and other treatm
ent
followed by
one month’s palliative care. Since Prof Musk prepared that list he has expressed
the view that the disease
has progressed more slowly than
expected
and altered
his estimate of the plaintiff’s life expectancy to the end of 2013.

In addition,

in
the time that has passed since Prof Musk’s estimate of future treatment the
plaintiff has continued to receive active treatment and so some of his anticipated





[2013] SADC 95


22



costs have become incurred costs and have been
incorporated in the past
expenses as evidenced

by the
Notice of Health Corporate Network dated 17 June
2013.


98

For that reason I have assessed future medical expenses from now,
assuming a life expectancy of six months. I accept Prof Musk’s
identification of
the

categories
of expenditure
.

The
refore the

plaintiff’s future medical expens
es
should include allowance for

regular outpatient’s visits, monthly chest
x
-
rays,
several CT scans, hospital care for a total of about a month for complications
which might arise in his treatment, further sessions of chemo
therapy with
associated hospitalisation, medication and blood test
s

and twice weekly home
visits from

a palliative care nurse

for six

months. For the purposes of making
allowance for future medical expenses during the palliati
ve care stage I have
assumed a

four, rather than six,

week period
.

D
uring
t
h
is

time allowance should
be made for the continuation of twice weekly trained nurse visits, weekly
doctor’s visits, palliative radiotherapy, oxygen therapy and narcotic analgesia
therapy. I
also

allow for
a
nig
ht
-
time
paid
carer

to

provide Mrs van Soest with
respite.
I do so on the basis of Ms Cunningham’s recommendation for such care.
In determining this head of damage it is also relevant that the plaintiff may need
hospice care after all. T
he letter of Bethsed
a Hospital dated 5

December 2012
50

provides the current cost of a public palliative care bed of $783.65 per night
.

99

In determining the quantum of future medical expenses I am generally
guided by the frequency and costs specified by Prof Musk but w
ith the
following
modifications
.

As to the number of outpatient

visits I would allow
twelve visits
over the next six

months. I do so on t
he basis that the notice of past medical
expenses provided by Health Corporate Network indicate
s

that
instead of one
outpatient
s visits per month he has already had fifteen

such visits to SCGH since
the beginning of 2013.

Therefore
I infer that some aspect of his condition
requires ongoing
close monitoring.
I would also allow each visit at $189

as that
appears to be the cost charg
ed by the SCGH
51

rather

than $130 as estimated by
Prof

Musk
.

I allow outpatient visits at $2,268.
As to nursing care I prefer
Prof

Musk’s opinion that the plaintiff will require twice weekly nurse visits for
the entire
six month period rather than Ms

Cunnin
gham

s
greater
estimation as to
the extent of nursing care. However I have used the Silver Chain hourly rate
of
$90
for a registered nurse

rather than the estimate made by Prof Musk.
I

allow
that item at $4,680.

I have
also
assumed eight hours of paid care

by a night care
aide for
four

weeks using the
Silver C
hain rates of $39 per hour for weekdays,
$43 per hour for Saturdays and $50

per hour for Sundays. I allow that
future paid
care at $
9
,
216.

100

The total estimate for future medical expenses after
making
those
modifications is $71,150.





50

Exhibit P50

51

P57

[2013] SADC 95




23




101

However the plaintiff’s life expectancy cannot be regarded as certain. His
condition could suddenly deteriorate so that his need for ongoing active medical
treatment may be curtailed. This may result in the palliative care
stage being
brought forward within the next six months. Another possibility is that he may be
hospitalised and not need the special palliative care proposed at home or in a
hospice. I also bear I mind that there is a cost difference between the home
pallia
tive care and that provided in a hospice. On my best estimate (leaving aside
Mrs van Soest’s gratuitous services which are not relevant to this head of
damage) it would appear that paid home palliative care would be cheaper than
hospice care. I have made a

deduction to allow for the unpredictable nature of the
disease and taken into account the variable nature of the cost of palliative care. In
my view, it is unrealistic to make any countervailing allowance for the possibility
that the plaintiff may live lo
nger than the end of 2013. Doing the best I can I
award $62,000 for future medical and like expenses.

Ai ds,
equi pment

and
home modi fi cati on

102

Ms Cunningham and Mr Pearce arrived at a very similar list of equipment
required by the plaintiff to meet his future needs from the date of trial. Their
views about home modification differed. Mr Pearce was of the view that there
was no need to modify the
plaintiff’s bathroom as he was likely to move to
Mrs

van Soest’s home within eight weeks of the assessment. That opinion was
based on an earlier prognosis of a shorter life expectancy. I prefer
Ms

Cunningham’s view that the plaintiff would have a reasonabl
y long period of
moderate care in his own home. Removal of a shower screen and the installation
of a hand held shower would assist in the plaintiff’s independence. I accept
Mr

Pearce’s assessment that the bathroom at Mrs van Soest’s house also needs
modifi
cation by reversing the bathroom door and installing a hand held shower.
As to the cost I have adopted those specified in Ms Cunningham’s report. I
accept Mr Pearce’s opinion that modification of the paths in the plaintiff’s garden
is probably not necessar
y. I accept Mr Pearce’s opinion that home maintenance,
which was probably not the plaintiff’s sole responsibility in any event, is not a
reasonable future expense.

103

In terms of the equipment I also agree with Mr Pearce that the provision of an
electric sco
oter is not necessary or reasonable. Ms Cunningham seemed to
suggest that this would be a suitable form of transport, providing the plaintiff
with independence, when he reaches the point that he is unable to drive as a
result of physical, cognitive or narc
otic medication effects. When one considers
that similar levels of cognitive and physical function are required for the control
of a scooter on public roads, footpaths and other public places it is unlikely that
the plaintiff would be well served by the us
e of such a piece of equipment. I
agree with Mr Pearce that an electric recliner/lift chair, which he has viewed at
Mrs van Soest’s house, will be adequate.






[2013] SADC 95


24



104

With those specific modifications, I allow the other items of equipment
recommended by Ms Cunningha
m’s schedule at the costs derived from the River
Abilities Product Guide 6th Edition
52
, with the following adjustments. Instead of
a permanent ramp built at the plaintiff’s rental accommodation I make allowance
for two portable ramps. In this way the ramps
can be used while he remains in his
own rental accommodation and can then be used again as a means of access to
and from Mrs van Soest’s house. Most of the items have been claimed at the cost
of purchase with only relatively few items claimed on a three mo
nth hire. I
accept that Ms

Cunningham has accurately determined which items are capable
of being hired. The total of the items after making the adjustments referred to
above is $8,390. These items are all necessary for the maintenance of the
plaintiff’s ca
re whether he is residing in his own home or at Mrs van Soest’s
home and they will be required even if his life expectancy is shortened. Many of
the aids and equipment will be required to assist with his care even if at a later
stage he is admitted to a ho
spice. Accordingly I have not made any deduction for
contingencies. I allow this head of damage at $8,390.

Past Gratui tous servi ces

105

This
head of damage
relates to Mrs van Soest
’s assistance to the plaintiff
for the following periods and activities;
drivin
g him to and from hospital
and
visiting him in hospital on the three days between 3

October and 6 October 2011;
driving him to and from hospital on 10

October 2011 and staying with him for
his day procedure; driving him to and from hospital and visiting hi
m each day for
five days between 31 October and 4

November 2011; providing domestic
assistance at the plaintiff’s home between 6 and 19 October 2011 and then again
between 4

November 2011 and 25 January 2012; providing domestic and
personal care at her hom
e for approximately 22

days

after each of the four
sessions of chemotherapy in January, February, March and late March 2012;
providing domestic care at the plaintiff’s home between the chemotherapy
sessions and providing domestic care at the plaintiff’s ho
me following the fourth
session up to the date of trial, commencing on 21 May 2012.

106

Generally speaking I am satisfied that the commercial rates appearing in the
Silver Chain Schedule of Fees relating to domestic assistance and care represent
appropriate r
ates for the calculation of past gratuitous services
53
. However I have
made certain deductions and adjustments to Ms Cunningham’s costs’ assessment
to take into account my findings and to ensure a reasonable allowance for this
head of damage.

107

As I underst
and Mr Pearce’s evidence he did not specifically address the
plaintiff’s past care needs but provided an opinion about the care needs at the
time of his assessment on 18 July 2012 and into the future. Nevertheless his
specific views about the provision of
meals, shopping, transport and the filling of



52

P4

53

P4

[2013] SADC 95




25




prescriptions are relevant to the level of Mrs van Soest’s past services to the
plaintiff. I do not accept Mr Pearce’s opinion in relation to the provision of home
delivered pre
-
prepared meals. The plaintiff wa
s very ill, he had lost weight and
he had little appetite. That situation was not likely to be helped by the provision
of prepared meals of limited choice delivered at nominated times of the day. To
ensure his sustenance it was reasonable that Mrs van Soes
t prepare his meals. As
to the home delivery of foodstuffs and other household requirements from a
supermarket it may well have been feasible to obtain a home delivery but the
plaintiff was probably not well enough to check provisions, prepare twice weekly

shopping lists and organise the placement of the order and payment. It was
reasonable for Mrs van Soest to do the shopping herself. I take Mr Pearce’s point
in relation to the delivery of medications assuming that such a service was
available from his pha
rmacist. As to travel to and from the hospital I note
Ms

Cunningham’s comments about availability and consider that it was
reasonable for her to provide transport services.

108

In relation to the periods when Mrs van Soest drove the plaintiff to and
from the
hospital and visited him between October and early November 2011 I
have reduced the total claimed by half to reflect that part of the period would
have been spent in companionship rather than assistance. I allow that part of the
claim at $945.

109

Prior to tri
al
54

there were approximately 27 weeks when Mrs van Soest went
to the plaintiff’s home to assist him with domestic chores, cooking, shopping,
transport etc. I have found that during this time she spent two to three days per
week for four to five hours each
occasion plus travelling time. I have included
cooking and shopping time within the amount allowed. I have used the Silver
Chain domestic assistance rate of $45 per hour. Allowing four hours travelling
per week, and ten hours care per week reduced by 25% I

allow this part of the
claim at $13,970.

110

Accepting Mrs van Soest’s evidence about the number of days that she
cared for the plaintiff at her home following his chemotherapy sessions there
were between 19 and 21 days in total when Mrs van Soest spent part
of everyday
actively caring for the plaintiff. I have assumed that this applied to her waking
hours. I have calculated this period as 20 days. I have allowed four hours of
personal care and three hours of domestic care daily. I have allowed all hours at
th
e base rate of $45 per hour for domestic assistance and $50 per hour for
personal care. I have assumed that the domestic assistance included cooking and
shopping. I have allowed this period at $6,700.

111

The total amount which I allow for past gratuitous ser
vices including
interest at 3.25% is $22,317.




54

I have taken the date of trial to be 21 May 2012 rather than the date when evidence was taken on
Commission in Perth.






[2013] SADC 95


2
6



Future Gratuitous Services

112

The amount to be allowed for Mrs van Soest’s future gratuitous services spans
the period from the commencement of the trial on 21 May 2012 to the present
time and ongoing for the per
iod of the plaintiff’s life expectancy. I have formed
the view that Mr Pearce’s assessment of the plaintiff’s need for domestic
assistance, both at the time of his assessment and for the future, was inadequate
to provide the plaintiff with the level of car
e that he requires. I have used
Ms

Cunningham’s assessment of the plaintiff’s future domestic and care needs as
a basis for estimating the value of Mrs van Soest’s services. I am satisfied that
Ms

Cunningham’s opinion focused on basic functional needs and
that her
cognisance of the plaintiff’s spiritual and emotional needs did not impact on that
assessment. I think that she was just expressing an understandable empathy with
the plaintiff in his distressing plight.

113

In determining this head of damage I have
made certain assumptions. Firstly, that
the plaintiff continue
d

to require moderate care in his own home
for some
months before moving in with Mrs van Soest. When Prof Musk wrote to the
plaintiff’s general practitioner on 26 September 2012 he noted that th
e plaintiff
was able to walk 200 meters slowly before stopping for breath. That level of
mobility suggests to me that he was able to live in his own home at that time.
Relying on the details available about his hospital attendances in 2013 I have
assumed t
hat level of independence until February 2013, say 36 weeks.
During
this time
I have allowed domestic assistance by Mrs van Soest twice weekly for
five hours on each occasion together with travelling time calculated at $45 per
hour. I have reduced the assi
stance hours by 25% to reflect companionship.
I

allow this period at $18,630.

114

Secondly, I assume that from about February 2013 until about September
2013, say 28 weeks, the plaintiff may not be able to live independently and will
live with Mrs van Soest b
ut may not yet require a high level of care. It is likely
that in this period Mrs van Soest will provide domestic assistance for one hour a
day and personal care for two hours per day. That is, domestic care for seven
hours per week for 28 weeks at $45 per

hour totalling $8,820 and fourteen hours
of personal care per week for 28 weeks at $50 per hour totalling $19,600. I allow
this period at $28,420.

115

Thirdly, I assume that for ten weeks from September 2013 she will divide
her time between providing him with

domestic care for about fifteen hours per
week and personal care for about 30 hours per week. Using the same hourly
rates, I allow this period at $21,750.

116

Fourthly, I assume that the plaintiff will be in the palliative stage for the last
four weeks of his

life during which time Mrs van Soest will provide domestic
and care assistance for sixteen hours per day and that there will a paid carer for
the remaining eight hours of each day to provide Mrs van Soest with respite. On
[2013] SADC 95




27




the basis that the predominant ac
tivity within that sixteen hour period will be
care, I have used the hourly rate of $50 per hour. I allow this period at $3,200.

117

On these figures the total allowance for future gratuitous services from the date
of the trial is $72,000. It is to be noted th
at I have calculated this figure using the
ordinary time rate for domestic assistance and personal care rather than the
various penalty rates for weekend or night time work.

118

It is appropriate that I make allowance for certain contingencies which might
red
uce the level of care required to be given by Mrs van Soest particularly
between now and the end of the year. The disease process cannot be accurately
predicted. The plaintiff’s condition may deteriorate faster than expected such that
his life expectancy i
s not reached. He may be hospitalised for a brief or a lengthy
period of time. Mrs van Soest may not be able to manage and the plaintiff may be
admitted to a hospice either at the beginning or during the palliative stage. There
may be some other reason why

Mrs van Soest cannot continue to care for the
plaintiff at some time between now and the end of the year. When determining
the effect of those contingencies I bear in mind that I have already reduced the
claim by using the ordinary time rates.

119

Doing the

best that I can to assess this head of damage I award future gratuitous
services at $55,000.

Exempl ary Damages

120

Section 9 of the
D
ust
D
iseases
A
ct provides:

(1)

If it is proved or admitted in a dust disease action that an injured person may, at
some time

in the future, develop another dust disease wholly or partly as a result of the
breach of duty giving rise to the cause of action, the Court may


(a)

award, in the first instance, damages for the dust disease assessed on the
assumption that the injured pe
rson will not develop another dust disease; and

(b)

award damages at a future date if the injured person does develop another
dust disease.

(2)

The Court should make an award of exemplary damages in each case against a
defendant if it is satisfied that the

defendant


(a)

knew that the injured person was at risk of exposure to asbestos dust, or
carried on a prescribed industrial or commercial process that resulted in the injured
person's exposure to asbestos dust; and

(b)

knew, at the time of the injured per
son's exposure to asbestos dust, that
exposure to asbestos dust could result in a dust disease.

(3)

Despite any other Act or law, the Court must, when determining damages in a dust
disease action, compensate, as a separate head of damage, any loss or impai
rment of the
injured person's capacity to perform domestic services for another person.






[2013] SADC 95


28



Note

This subsection is intended to restore the effect of
Sullivan v Gordon

(1999)
47

NSWLR 319.

121

The operation of this section was considered in the recent decision of
BHP
Billiton Limited v Parker
55
.

Doyle CJ an
d White J stated that an award
of
exemplary damages pursuant to s

9(2) is dependent upon the defendant being in a
defined category and having the requisite knowledge. The section is to be
contrasted with the commo
n law purpose of exemplary damages which restricts
such an award to reprehensible conduct or conscious and contumelious disreg
ard
for the plaintiff’s rights.
56

122

Consistent with the language and purpose of the
Dust Diseases Act 2005
,

when read as a whole
,

s

9
(2) is intended to have a beneficial effect for plaintiffs.
Therefore if the conditions are satisfied an award should usually be made unless
there is some sufficie
nt countervailing consideration.
57

123

In accordance with my findings on liability
58

BHP is in the
defined category
and had the requisite knowledge.
Usually
an award
of exemplary damages under
s

9(2)
will not be large
. However there is a residual discretion such that where
the Court finds that the defendant’s conduct was
reprehensible
there may be a
lar
ger assessment and where there are sufficient countervailing considerations
there may be no award.
59

124

I
n this instance there are no sufficient countervailing considerations which
militate against an award of exemplary damages. In 1962, BHP knew that the
plai
ntiff was exposed to asbestos dust and fibre and that such exposure could
cause a dust dis
ease. BHP’s involvement in the 1962
Commonwealth
Conciliation and Arbitration Commission
proceedings
60

should have alerted it to
the need to conduct its own
investigat
ion into the working conditions of the

plaintiff and other employees in his class
working in the engineroom of the
PJ

Adams

where asbestos dust was generated by lagging activities. In particular
BHP should have undertaken asbestos dust counts and instigate
d steps to
minimise the risk of harm from exposure to its emp
loyees including the plaintiff.

The majority in
BHP v Parker
drew attention to the fact that the contraction of a
dust disease
in that case
did not result from a casual act of negligence or an
isolated breach of duty but resulted from a systemic failure to make the
workplace safe
61
.

This applies here with equal force. BHP’s negligence had the
effect of leaving

its employees
including the plaintiff
vulnerable and unable to
protect themselves. The
award in
BHP v Parker

was $20,000 which is a modest
amount. I too award $20
,
000.




55

(2012)
113 SASR 206


56

Ibid

at 254

57

Ibid

at 258

58

Supra van Soest v BHP Billiton Limited

59

Supra
BHP Billiton Limited v Parker

at 259

60

Exhibits P31 and D6

61

Ibid

at 261

[2013] SADC 95




29




Summary

125

The total award of damages is as follows:

Pain and Suffering an
d Loss of amenities

$120,000

Interest on the past

$ 2,400

Loss of Expectation of Life

$

12,000

Past
medical and like

expenses

$ 56,044.30

Fu
t
u
r
e
medical and like

expenses

$ 62,000

Aids, equipment and home modification

$ 8,390

Past gratuitous services and interest

$ 22,317

Future gratuitous services

$ 55,000

Exemplary Damages

$ 20,000

Tot
al:

$3
58
,
15
1.30

126

I therefore award the plaintiff a total of $358,151.30 by way of damages. I
will hear the parties on the question of costs.