Dust Diseases Tribunal New South Wales

• Medium Neutral Citation: Colin McMaster Rodgers v Amaca Pty Limited (formerly James Hardie & Co Pty Ltd) t/as Amaca [2014] NSWDDT 1
• Hearing dates: 15, 16, 17 January 2014
• Decision date: 21 January 2014
• Before: Finnane J

Decision

See paragraphs [44] [45]

• Catchwords: DUST DISEASES - mesothelioma - illness; DAMAGES - general - "Griffiths v Kerkemeyer" - interest; ECONOMIC LOSS - consideration - factors - proposed age of retirement - assessment - distinction - loss of earnings - intention of plaintiff; OTHER - business interests - background of plaintiff
• Legislation Cited: Civil Liability Act 2002; Motor Accidents Compensation Act 1999
• Cases Cited: Griffiths v Kerkemeyer (1977) 139 CLR 161; Husher v Husher (1999) 197 CLR 138; State of New South Wales v Moss (2000) 54 NSWLR 536; Wilson v Eraring Energy [2002] NSWDDT 17
• Category: Principal judgment
• Parties: Colin McMaster Rodgers (Plaintiff); Amaca P/L (formerly James Hardie & Co P/L) trading as Amaca (Defendant)
• Representation: Mr J McIntyre SC/ Mr S Tzouganatos (Plaintiff); Mr GM Watson SC/ Mr JC Sheller (Defendant); Turner Freeman (Plaintiff); DLA Piper (Defendant)
• File Number(s): 235/2013

Judgment

1 The plaintiff, Colin McMaster Rodgers, sues the defendant Amaca Pty Ltd which stands in the place of James Hardie & Co Pty Ltd for damages, claiming that because of its negligent failure to warn him in any way of the dangers of asbestos, he contracted the disease of mesothelioma.

2 I have been invited by senior counsel for the defendant to find a verdict against the defendant and I have been told I need not give any reasons for so doing. I accept the invitation. There will of course be a verdict against the defendant.

3 The case then having determined liability comes down to a question of the assessment of damages. The plaintiff was born on 19 July 1941 and became 72 years of age on 19 July 2013. He currently is living in a de facto relationship which is permanent with Irene Fletcher who until November 2013 was employed as a director of nursing at a nursing home in Allambie Heights.

4 The plaintiff is a man who when he left school in 1958, commenced to work with a Masonite corporation of which his father either was at the time or had been, the general manager. His early employment was as a carpenter, an indentured carpenter and joiner, and he worked in a series of jobs from that time until 1967. During all that time, he was exposed to asbestos. In 1967, he then commenced to work in a company that he set up himself as a construction company.

5 He had, earlier, in about 1963 received, a degree from the University of Technology in Sydney as a quantity surveyor. He was also a qualified clerk of works. From 1967 until the year 2000, he worked extensively in the construction industry. That is of considerable importance to his claim for damages. The work that he was involved in during that period, involved his being concerned with very large building projects, both in this country and in overseas countries. He has worked on projects in Hong Kong, in Papua New Guinea and in other countries.

6 He provided, in a resume, a list of persons who could speak well of him. Some of those persons are wellknown people in the construction industry. He became the Deputy President of the Master Builders Association. He was on the State council of that body. At one stage he was the President and his qualifications, in very large scale building projects, is undoubted. The Hong Kong project for example, involved the design and installation of a roof on a stadium. He was involved in the Kuala Lumpur International Airport, a maritime centre in Singapore and other large building projects.

7 In the year 2000 at the age of 59 he retired from active large scale building project work and went to work substantially on a farm he had purchased at Coonamble. This farm, which came to be operated by the Glencoe Pastoral Company, was in fact two separate properties. At the time he took it over it had very limited watering facilities on it. Its fences were not in a good state of repair. There were two houses on the property, both of which needed repairs. The property itself was close to the Macquarie Marshes and obviously had some value because of its closeness to that particular body of water.

8 What he then did, up till the time he became struck down with mesothelioma, was to buy a large amount of equipment, the details of which were supplied in evidence, and improved the property. He did part of this work with the assistance of his de facto wife. She helped him particularly with fencing work. He renovated the second cottage on the property. He constructed dams and he constructed water channels between the dams. It was obvious to me from the evidence that he gave, that he very much enjoyed doing this work which he did largely himself with some employment of local persons to assist from time to time and, no doubt, with the employment of some tradesmen such as plumbers and electricians. But substantially he did all this work, the physical work and the mental work, himself. The doing of this work required not only considerable physical ability but also considerable planning. Putting in water facilities allowing for the proper gravitational falls, erecting fences and renovating a house all require a considerable degree of planning. He of course had enormous experience in planning because most of his working life from 1967 onwards was concerned with planning and building projects.

9 The result has been that the property itself has risen very considerably in value. That I would think could be expected. Any rural property which has permanent watering facilities is obviously going to be extremely valuable. There was some controversy in the hearing about when it came to questions of earning capacity, because the Glencoe Pastoral Company and various other companies with which he is associated, have made losses for the last seven years. However, against that has to be taken into account the fact that the property itself was very significantly increased in its value and that must be of great extent because of the work done directly by the plaintiff.

10 Until he was struck down with mesothelioma, he enjoyed a very active life. He went every year on a number of skiing trips, at least one of them being to an overseas destination such as Aspen in Colorado. In his earlier days he had been a water skiing champion. He obviously very much enjoyed physical activity and obviously had a great degree of physical fitness.

11 In 2010, while he was overseas, he became ill, somewhat breathless and unable to account for his apparent difficulties in breathing. A doctor in the United States thought he might have had pneumonia. It is probable this was the first sign of mesothelioma. In the years 2010 and 2011 he went back to active work in the construction industry. Not on a fulltime basis and not as someone who did the actual physical work himself, but at the request of a friend of his, he became involved with that friend's son in a number of construction projects. Essentially his role was as a contract manager and organiser. The friend's son did the actual physical supervision of the work.

12 In each of those years, he was given income. That income was paid into one of the companies, Colmit Pty Ltd. That company made losses in each of those years, however it is clear he exercised an earning capacity and made something over $200,000 in each of those years working parttime and essentially with one other person as his enterprise partner.

13 He gave evidence, which I accept, that he intended to continue to do this type of thing. From time to time he intended to make himself available to do building projects and construction projects. He let it be known in the industry that he would be interested in anything that might come up but he did not intend to work on a permanent basis doing that work. He intended to engage in projects as they came up. He acknowledged, in crossexamination, that some projects would be successful and some would not. One of the projects in 2011 ultimately was not. There might be a number of projects that would occur during the year; there could be expected to be gaps between them because he did not intend at any point to work for another organisation as an employee. Indeed, as he acknowledged himself, it would be difficult to imagine any commercial organisation putting a man on as a building and construction manager who was in his seventies.

14 He also intended to work, he said, until he was 80, spending part of the week at his Coonamble property doing active work there and part of his week doing construction work. He pointed out that at Coonamble he had erected some quite sophisticated communications, technology, that enabled him to access the internet at faster rates than he could in Sydney and it was his evidence that he intended when he became involved in various projects in Sydney or elsewhere to engage in a great deal of the planning work and directional work from his property at Coonamble using the high speed internet access that he had. At the present time, he lives in a rented home in Gladesville with his de facto wife. Living there costs a rent alone of $1,000 a week.

15 He has quite a number of financial interests. One company which he controls, Colarena Investments, is the registered proprietor of two properties at Forster, two at Jindabyne and part of the farm at Coonamble. Raycol Investments is the registered proprietor of the balance of the property at Coonamble. Glencoe Pastoral Company is a partnership between Colarena Investments and Raycol Investments and it operates the property at Coonamble. Colbron Pty Ltd is owner of all the plant and equipment on the farm. In relation to that, his evidence was that he purchased all of that plant and equipment and none of it is subject to any type of mortgage or charge. He has a onesixth interest in a company called Avion Aviation which holds as a leaseholder, an interest in six hangars at Bankstown Airport. He owns two aeroplanes, one of which is a plane of historical interest, and which is in a hangar at Camden, and one of which is at Bankstown and was used by him over the years to fly from Sydney to his property in Coonamble, and in earlier times, to fly to the United States when he went on holidays. He had been the owner of a property at Woolwich, that property was worth $6 million. He sold that property and realised a profit on the sale of something like $1.2 million.

16 He was crossexamined extensively about his financial position and that crossexamination was directed to attempting to establish a proposition that in the last seven years, he had no earning capacity because every company that he was associated with made large losses and he had to borrow $250,000 to help him maintain his activities, and he had to use the $1.2 million profit on the sale of the property at Woolwich as well, to enable him to maintain his interests. I do not accept the proposition that he had no earning capacity in those years; he clearly did and he actually exercised it to make income in 2010 and 2011. For the rest of the time, he used that earning capacity to increase the value of the farming property to what it currently is and that involved his exercising an earning capacity.

17 The plaintiff at the time he was diagnosed finally as having mesothelioma, was a robust, healthy man whose only problem was a family inherited heart complaint which was treated with drugs and which caused him no problems. He is quite a tall man and was quite strongly built. The consequences of the disease have been that he has been reduced to being but a shadow of himself. He came into Court and gave evidence on two separate days. He was at Court during the hearing for most of the three days the hearing was on last week. It was quite obvious to me that he found difficulty when it came to getting up from a chair and moving around. After he had given evidence with the assistance of his wife and his brother, an oxygen cylinder was attached to his nasal system via a line. From time to time, that oxygen cylinder has to be attached because he runs out of the ability to breathe properly.

18 The house in which he lives at the moment is not extremely well suited to someone with his problems. It has internal steps on two separate levels. According to his wife, he struggles and attempts to get up and down these steps.

19 His wife has given evidence of her assisting him since the time he was diagnosed with mesothelioma. He has been on a number of chemotherapy treatments, each one of which caused him very significant health problems, such as nausea, eye problems, lethargy, fatigue and a metallic taste that he had in his mouth. He lost the caps on his teeth as a result of this disease. They were replaced by the Dust Diseases Board. He has a loss of balance, smell and appetite. He suffers from tinnitus. He frequently dry retches. He engaged in a drug trial at the Mater Hospital in Newcastle in October 2013. This was a trial of drugs that he had not been exposed to before and it was hoped that they might help him. The first time he was exposed to it, he had minimal side effects although strange ones. He felt that ants were crawling all over him, he found it very hard to sleep. Then the second time he had the drug, he appeared to suffer a reaction described as a serious febrile allergic type reaction and was hospitalised for a week. During this drug trial he became very distressed and thought he was going to die. The effects of that drug trial since that trial completed were continuing fatigue and nausea and his use of oxygen every day or every second day depending on his level of exertion. At one point his weight significantly increased to something like 105 kilos, this was largely fluid apparently. When he returned home, all that was lost. So he was bloated above what he would normally have been and then reduced. It is obvious, from my looking at him today, he is not 85 kilos.

20 He proposes to engage in another trial in February. He does not know what the consequence of this trial could be. He has been told that he is likely to die in July of this year, 16 July I think has been fixed as the date. That must be a very sobering piece of information for anyone to get. He has been reduced then from a large strong healthy extremely physically and mentally active man to a man who finds it very difficult to function but nevertheless, he does attempt to continue to function. Quite surprisingly, he has continued his negotiations that have involved him in setting up an arrangement that involves a charity, an Aboriginal Land Council and a company that he controls in a building and construction project. The documents have been tendered to me. There was some objection to it, but I received them. And what those documents show, in my opinion, is that if that project continued and he were not the victim of mesothelioma, he would have been likely to have received considerable financial benefits.

21 He was approached by an official from the Land Council, someone he had known from previous construction work. The project itself seems to me to be very realistic. In principle it has been approved. The bank has been organised to provide funding and what the project involves is the erection of houses using a construction product known as Cemintel. And the lease of those houses on Aboriginal owned land to the charity, which would then use the homes to house mentally disabled people. The Cemintel process was explained by him and it involves essentially the taking of large sheets to the home site, pouring cement between the two sides of the sheet and the affixing of the sheets into place. The process provides very strong walls, is relatively cheap to erect and houses can be finished in 8 to 12 weeks.

22 His involvement with this project, which began before he became aware of his mesothelioma, has continued despite the difficulties from which he now suffers. He has not specifically told the charity or the Land Council of his health problems, however anybody who saw him would immediately recognise that he was suffering from considerable health problems. He intends to continue to try to bring this project to fruition.

23 The significance of the project is to show that he intended in a real way to involve himself in construction projects. His aim in this project was to facilitate the arrangements and make sure they were realistic but on a day to day basis he would be the contract manager, a builder would be employed to actually supervise the carrying out of the building work. He would not be an onsite supervisor. And his evidence was that he intended to make himself available for projects such as that, large or small, until he was 80. He did not intend to be a building supervisor as such. He did not intend to use his labour as such.

24 With relation to the farm property he had a plan. That plan involved his waiting until May of this year and commencing to work on renovating the homestead. The homestead apparently is quite liveable. It needs work to bring it up to a higher standard. He had intended to do the work himself substantially as he had done on the other house, and he thought it would take eight plus weeks commencing in May when conditions were cooler to complete this work. It is obviously completely impossible that he could involve himself in such a task now. It must be doubtful whether he would be available in May to do anything, even planning work, in relation to that home.

25 Clearly he is going to get weaker and weaker. It could be that he could die at any time. That is the unfortunate consequence of mesothelioma. He is a stoic type of individual not given to complaining very much, but it is obvious from his evidence that he has suffered an enormous amount of pain and discomfort and that has required him to take, with the assistance of his wife who is a trained nurse, increasing amounts of medication to relieve the pain.

26 The consequences of his taking medication to relieve pain and the consequences of his chemotherapy have been at times to give him extreme discomfort of diarrhoea at times, constipation at times, and general pain and discomfort and breathlessness. It is hard to imagine, for someone who does not suffer this disease, just how bad it is. For anyone getting this disease and being told about it, that they have it, is to face a reality that they will die with no hope of that being put off. That they will suffer extreme agony and discomfort for periods of time that can go from days, weeks, months and sometimes a few years. They will suffer increasing breathlessness, inability to sleep and physical disabilities of an extreme type. Basically these people, the sufferers of mesothelioma, are subjected to torture before their death. Anybody faced with this would of course find it extremely difficult to accept. His wife has said that he has, on a number of occasions, cried. Something he did not do when he was well. I would accept that.

27 He is entitled to receive damages that compensate him properly for the pain and suffering he has had and will continue to have. For the losses of use of his body, his inability to function properly, his loss of enjoyment of life. His inability to travel by aeroplane, something he enjoyed doing. His inability to travel overseas, interstate. His inability to sky or engage in any physical activity of any significant type, and the fact that he is finding and has found, continuing extreme restriction on his activities. All those matters entitle him to damages. Quite apart from that, he is entitled to specific damages for other matters, such as loss of earning capacity, a Griffiths v Kerkemeyer claim and so on and I will come to them separately.

28 One of the controversies in the case was what should be the general damages that I award for the losses he has suffered. Up till the present time, this Tribunal has awarded general damages no matter what the case, at no greater level than $290,000. Indeed in the case of Dean which I gave judgment in some months ago and in which I was asked to review that situation, I declined to review it and allowed $290,000. My colleagues, Curtis J and Kearns J frequently have had submissions made that they should increase the level of damages for general damages and they have declined to do so. The question is whether I should do so. Damages generally do increase from time to time. It is obvious that that is so. Persons who make claims for what is called non economic loss by the Civil Liability Act as a result of suffering some accident or similar claims made under the Motor Accidents Compensation Act, are entitled to damages depending on the assessment of the judge, based on the judge's assessment of the relationship of the case to a most extreme case and the statute when it originally came in, the Civil Liability Act, fixed that at $350,000 with a provision for an increase each year because of what is known as the CPI factor, and every October, a Government Gazette item appears and the new level is fixed. That new level is something of the order of $551,500 at the present time. So a most extreme case under the Civil Liability Act entitles a person to that award of damages.

29 As the Court of Appeal has pointed out on many occasions, there is no such thing as "the" most extreme case, it is "a" most extreme case, and various cases have concerned what that is. At the top end without any doubt at all is quadriplegia. Damages in which there has been a finding of a most extreme case have been awarded for conditions other than quadriplegia. I mention this only by analogy, because I do not fix damages by reference to what occurs in the Civil Liability Act, I cannot merely look at that Act and look at that schedule and say, well, it is about time the damages here were equivalent to the damages there, that would be inappropriate. However, I can take into account the fact, in my opinion, that the progress of damages in that Act has gone on from year to year, every year it is raised, and that would seem to accord with common sense and reality.

30 In the Dean case, I could not see that I could change that, because I could not distinguish Mr Dean's case from any other case. I think having reflected on the matter that I was wrong and that the question is not one of deciding whether this case can be distinguished from some other case, the question is one of deciding what is an appropriate level of damages for pain, suffering and the loss of amenities of life, the loss of enjoyment of life and all those consequences for a particular person. Of course reference can be made to what other people have said and other people have done, but that is not the determining factor. This man has lost very considerably, apart from his pain and suffering which is extreme and is of a type suffered by others who have this disease, he can no longer do all the things that made life enjoyable to him; he cannot fly an aeroplane, he cannot drive a car, he cannot engage in any of his hobbies, he cannot work physically on a farm, something he enjoyed doing. He cannot really sit down and plot and plan and design. That has been taken from him.

31 Plaintiff's counsel sought the sum of $350,000. Defendant's counsel said I should leave the matter unchanged at $290,000 and in a subsequent written submission, I was referred to my own decision of Dean as well as to decisions of other judges. I have considered all of that material and having considered all that material and having considered his particular case, I am of the opinion there should be general damages in the sum of $350,000 and that is what I propose to give him.

32 We then come to the other heads of damage. It has been agreed between the parties there should be damages for loss of expectation of life in the sum of $15,000 and of course I propose to award that. It is also agreed that damages past and for the future for what is known popularly as Griffiths v Kerkemeyer damages, they are agreed at $65,000. I agree that that should be done.

33 Interest on past general damages is to be granted on the basis of 2% of 50% of that sum. Over a period of four years, that would amount to $14,000 and I would award that sum of money.

34 We turn then to the question of economic loss. There is a claim for past economic loss going from 1 July 2013 to 17 January 2014 in the sum of $200 a week. That amounts to a claim for $5,714. It is based on the need to employ a person to work on the property at Coonamble to maintain it essentially. That is a loss because the plaintiff himself would have done that had he not been disabled so I propose to allow that loss.

35 There is then a claim by the plaintiff for future economic loss and future earning capacity loss of $880,000. Senior counsel for the defendant as I have said, adopted a fairly simple approach and said he should be given nothing for future economic loss or future earning capacity loss. With all due respect to senior counsel for the defendant, that submission cannot be accepted. There is a distinction between loss of earnings and loss of earning capacity and he does not appear to have appreciated that distinction. The Courts make plain that that distinction exists. Reference was made to Husher v Husher (1999) 197 CLR 138, as an example. The subject matter has been analysed very comprehensibly and in a most learned way if I may say so by Heydon J who at the time was a judge of appeal in The State of New South Wales v Moss (2000) 54 NSWLR 536, (see especially p 554 to 559). The plaintiff's position in reality is this type: before he became struck down, he was going to engage in construction work for the purposes of getting money. He was going to exercise an earning capacity. Precisely what that would bring, of course, is very difficult to determine because he did not intend to work for an employer, he intended to keep his eye out for projects that might be attracted and engage in them from time to time. Some would be profitable, some would not.

36 It could be possible that months would go by without any project at all, perhaps a project would emerge that went for a considerable period. The project involving the Land Council and the charity would appear to be a project which when it gets off the ground is likely to continue for some time, but even that cannot be totally certain. All sorts of things can go wrong. The last project that he actually worked on, in 2011, something did go wrong. The person for whom the work was being done refused to pay and the project became unprofitable. So there is a certain amount of uncertainty. This however, in my opinion, amounts to nothing more than to say very often it is difficult if not impossible to estimate or determine precisely the loss of earning capacity in the future.

37 Now sometimes evidence can be produced to show what other person working in the industry could expect to get and that can be taken into account. It seems to me his case is quite similar to that of a university student or a school student who was severely disabled by an accident and at the time of the disablement has not really embarked upon any active earning life. In cases such as that, the Courts have to do the best they can on the evidence as presented because clearly enough the university student or school student would in the future attempt to exercise an earning capacity. So traditionally what is done is to get evidence to show what capacities they have. Their abilities. How well they did at school or university. What there career expectations were. Was that realistic that they should have that type of expectation? And then the Court would sometimes as well take into account the evidence that was presented of earnings in particular professions. So a wouldbe law student might say, "I wanted to be a solicitor" or a wouldbe dental student might say, "I wanted to be a dentist" and some material might be provided to show what the earnings were. However, there are even authorities that went to the High Court where no precise evidence was presented of what the earnings could be and nevertheless the Court said once it is determined that that person has lost the chance of engaging in that activity, they are entitled to substantial damages because it is obvious that lawyers and dentists earn significant sums of money.

38 The problem with the plaintiff's way of doing things, in my view, is it is not entirely in accordance with the evidence that he has presented because he has made it plain that he does not intent to work every day of the week as a construction manager. The submissions by plaintiff's counsel is based on the notion that he can be compensated having regard to the earnings of construction managers. Construction managers are employees normally. The wage rates that are set out by Mr Thompson in his report are no doubt correct. There has been no challenge to them. But they would be applicable only if one were talking about someone who was going to work in that capacity on a permanent basis. He clearly did not intend to do that. What he intended to do was to work on his farm and build up its value. In a way that shows a very real exercise of earning capacity because you are building up assets in a significant way. And part of the weeks we might spend three days a week doing that and then the other three days he would spend as a consultant if he got the job. And he envisaged being able to do some of the consulting work from his farm. That being said, it is not possible to equate what he in fact intended to do with the work of a construction manager. I have been referred to an earlier decision of Duck J. That was Wilson v Eraring Energy [2002] NSWDDT 17. Because it was said Duck J adopted the basis that loss of earning capacity could be measured against what a person working in the industry could get, the examination of the facts show it is quite a different situation and that the person concerned intended to work in the wide industry on a fulltime basis. That is not what this man intended to do and it says economic loss or future earning capacity loss on the basis suggested by counsel for the plaintiff would not be correct. It would be to overcompensate him.

39 The next question is: is it realistic to provide compensation on the basis that this man would work until he was 80 years old, as he claimed? When assessing that question I have to take into account a number of factors. First of all, before he became struck down with this disease he was in very sound health. Secondly, he enjoyed doing a great deal of physical work and he showed that he had the skill as well as the physical ability to do it. Thirdly, he enjoyed doing a lot of mental work associated with the physical work, that work involved planning, and he showed great skill. Fourthly, he obviously intended to spend various parts of the year on holidays. In the past he went skiing three or four times a year. I would have thought that he would be likely to continue to go skiing three or four times a year. Why would he stop?

40 Nextly, he retired, when he was 59 years old, from active construction work although he was quite capable of continuing. He then exercised an earning capacity in building up the value of his farm. He spent a considerable amount of time, however, enjoying himself and clearly did not intend to work fulltime. It is quite probable I think that until the age of 80 he could engage in work that involved planning, internet use, directing activities, organising the buying and selling of supplies, contract administration, that would be quite possible or quite probable that he would be able to do that. I can see no basis for suggesting that he would do it after the age of 80. The claim is made here that I should be awarding him damages up to the age of 85. I can see no reason whatsoever. He does not say he is going to work past 80. On what basis would that claim be justified?

41 I raised the question, is it realistic? Should he be regarded as capable of doing all this sort of work, this planning work, until he was 75 with perhaps some physical work thrown in but thereafter not anymore? And I pondered that question. Both counsel put submissions about it. Ultimately I have come to the conclusion that he would be likely to continue to exercise an earning capacity until the age of 80, however I cannot be sure exactly what that would get him. Because he has been deprived of his capacity and he intended to exercise it, he is entitled to damages but I cannot give him a precise sum because it would be wrong, in my opinion, to treat him as a fulltime worker. And additionally I would think that he would find it harder to engage in an eight or ten hour day as he got towards 80. It would seem to me probable that he would start to ease off. It is very difficult to work out what this deprivation, total deprivation, his loss of ability to earn would give him. He is in a similar situation to that of the school student who appears to have some ability, who is injured at the age of 15 or 16 and it is not even clear what future career he might have had.

42 The Court still has to try and make an estimate of some kind. He has sought up to the age of 80, $586,399.55 for loss of earning capacity as a construction worker, as well as labour costs for a household renovation, that is cost he will have to get somebody else to pay and an additional amount for 26 weeks between January and July 2014 for farm managers. On the basis of a farm manager's salary, somebody would have to be employed to do that work. When you add those figures together, what is being claimed up to the age of 80 is a sum well over $600,000. I cannot see how I can work out precisely what he has lost. I know he has lost an earning capacity; it is difficult to measure it. The best I can do, and that is what I intend to do, is to award him $200,000 for that loss of earning capacity. That $200,000 takes into account all the contingencies to which I have referred, the possibility he might be employed at various times as a consultant, that he might not be, that he might have ill health at various times, that he might go on holidays at various times and from that sum, the payment should be made to the Dust Diseases Board of $40,000.

43 So that then amounts to as I calculate it, $350,000 for general damages. $14,000 for past general damages, $15,000 for loss of expectation of life, $65,000 for future Griffiths v Kerkemeyer damages and $200,000 for loss of earning capacity minus the $40,000 already paid by the Dust Diseases Board and $5,714 for past economic loss.

44 I enter verdict for the plaintiff in the sum of $609,714.

45 I order the defendant to pay costs.

46 I note that the defendant may wish to bring a notice of motion on.

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Decision last updated: 27 February 2014