Dust Diseases Tribunal New South Wales Medium Neutral Citation: Torok v Allianz Australia Insurance Ltd (No. 3) [2023] NSWDDT 6 Hearing dates: 27 March 2023 Date of orders: 27 March 2023 Decision date: 27 March 2023 Before: Russell SC DCJ Decision: Ex tempore reasons given in court Catchwords: EVIDENCE – admissibility – evidence of deceased or unavailable workers tendered under s 63 of the Evidence Act – statement of former shipwright at Cockatoo Island – relevant to issue of whether there was asbestos at Cockatoo Island to which a worker might be exposed – whether identification of material as asbestos was inadmissible as opinion unable to be used to prove existence of a fact – evidence admissible as opinion based on specialised knowledge under s 79 of Evidence Act – no prejudice where evidence is broad and general Legislation Cited: Evidence Act 1995 (NSW), ss 63, 67, 79 Cases Cited: Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215 Category: Procedural rulings Parties: Attila Torok (Plaintiff) Allianz Australia Insurance Ltd (Defendant) Representation: Counsel: F McLeod SC (Plaintiff) D Toomey SC (Defendant) Solicitors: Segelov Taylor (Plaintiff) Rankin Ellison (Defendant) File Number(s): DDT 2022/212443 ex tempore revised Judgment 1. The Form 1 statement of particulars is in the usual format and contains Mr Kuether's representations as to his exposure to asbestos dust while working at Cockatoo Dockyard between 20 November 1962 and 3 July 1991. 2. Mr Kuether says that he was a shipwright, a loftsman, a liner off and a charge hand becoming eventually a foreman shipwright. He became a foreman shipwright in July in 1987 when he was responsible for overseeing repair work carried out by shipwrights and apprentices as well as training apprentice shipwrights and liaising closely with other trades. Mr Kuether said that he first worked on the Empress of Australia, a passenger ferry operated by Australian National Line. He worked on the lofting and lining out of the ship. This conforms with evidence given last Friday by Mr Johnston that shipwrights have two different types of work. Lofting involves marking out sections of the ships on pattern moulds which are then supplied to boilermakers and are used by the boilermakers to cut metal to the appropriate shape for insertion in the ship. That work was done by Mr Kuether in the mould loft on Cockatoo Island. 3. By contrast, lining off as a shipwright involves hands on working on the ship and measuring and marking the ship to show where rooms, compartments, and equipment were to be installed. I infer that lofting involves working from plans or blueprints of a ship, otherwise it would be impossible to produce a particular mould to be given to a boilermaker. 4. Mr Kuether gave evidence that he also worked on naval vessels on Cockatoo Island, and he nominates HMAS Stalwart, HMAS Torrens, HMAS Success, HMAS Supply, and HMAS Melbourne. He said that from the late 1960s, he did a lot of work on the RAN Oberon class submarines, including several major refits and modernisations. He worked on the Oberon class submarines right up until the time that Cockatoo Island closed, which on the evidence was 1991. 5. He says that in the Oberon class submarines, there was asbestos as lagging on steam pipes. He said he came into contact with the lagging while carrying out repair and maintenance work. Mr Kuether said in his Form 1 that he was exposed to asbestos insulation during work spraying such insulation onto bulk heads and deck heads. He said that when this work was done overnight, he would come to the ship in the morning, and there was a lot of loose spray that had settled as dust on the floor. He walked around on top of the dust. He used a scratcher and a popper to mark out bulk heads and deck heads for the purpose of fitting out, and that meant that he scraped through asbestos spray. 6. Mr Kuether said that he did lining off in the engine and boiler rooms, and while he was doing this, he worked around laggers who were putting asbestos lagging on the pipework. That asbestos lagging was made by mixing up powder with water to form a slurry and then putting the slurry on the pipes by hand. He worked nearby while this was done and breathed in dust in the air generated by this work. He said that on several naval ships, in particular, nominating the Supply and the Melbourne, refit work was dusty work because it involved working alongside people who were removing and replacing lagging on steam pipes. He also said that there was similar dust inhaled when working on the RAN Oberon class submarines which he said contained asbestos as lagging on steam pipes. 7. Objection was taken to the tender of that Form 1. 8. As a background, I should say that it is not in dispute that the document is tendered under the provisions of the Evidence Act 1995 (NSW), enabling written representations to be received into evidence, notwithstanding the fact that the maker of the representation is not called. In this case, notice was given under s 67 of the Evidence Act that the plaintiff intended to tender the statement of Mr Kuether in reliance on s 63 of the Evidence Act. A death certificate for Mr Kuether was provided. There was no point taken concerning the appropriateness of the notice given or the fact that if otherwise admissible, the statement could go into evidence under s 63 of the Evidence Act. 9. Mr Toomey of senior counsel raised three matters in opposition to the receipt of the Form 1. The first objection was relevance. This was dealt with at Tcpt 110 starting at line 5. Mr Toomey said: "There's no suggestion that this man worked with the plaintiff at any time. The work he did from the late 1960s he said was on the Oberon class submarines, including several major refits. The evidence that Mr Kuether gives about the worst of his exposure on HMAS Stuart [sic] and HMAS Supply cannot rationally affect the assessment of the probability of the existence of a fact in issue, namely whether the plaintiff himself was exposed to asbestos above de minimis in his employment at Cockatoo Dockyard." 1. That is the first objection. The evidence of the plaintiff was that he worked at Cockatoo Dockyard for a relatively short period. He thought six months, but he was willing to accept that the records showed a period of just over four months. The plaintiff was employed essentially as a labourer, although his classification was painter and docker. The plaintiff himself gave no evidence that any particular material to which he was exposed was asbestos. He gave evidence in broad terms that he did a lot of sweeping and cleaning up, and that there was dust involved in this work. He gave evidence that he himself wrapped his face and particularly his nose and mouth in rags to avoid inhaling dust, which was obviously an unpleasant experience for him. 2. Whether or not any of that dust to which the plaintiff was exposed was asbestos dust will involve fact finding as to whether there was asbestos present in any area where the plaintiff worked. I find that the evidence of Mr Kuether is relevant to that matter. True it is that Mr Kuether does not give evidence that he ever worked with the plaintiff or that he worked on any particular ships yet associated with the plaintiff in the evidence, but the evidence of Mr Kuether speaks to exposure to asbestos dust and material on just about every job done by Mr Kuether at Cockatoo Island. In fact, he says: "My exposure to asbestos continued right up until I left Cockatoo. [Which I pause to say is 1991.] My recollection is that just before Cockatoo was shut down, we were told to register with the Dust Diseases Board and given masks. Other than this we were not given any warnings of the dangers of exposure to asbestos, or told to take any precautions." 1. The evidence of Mr Kuether is thus relevant to a fact in issue which was whether there was extensive use of asbestos at Cockatoo Island Dockyard. 2. The next objection taken by Mr Toomey to receipt of the evidence was that the use of the term asbestos by Mr Kuether should be confined to being his belief as to the nature of the material but should not be received as proof of what the material was. In relation to that submission, I have obtained guidance from the decision of the Court of Appeal in Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215. That case concerned the exposure of stevedores at Port Kembla to the unloading of cargoes of asbestos from merchant ships. Evidence was given in the case by the plaintiff himself as to his understanding of the nature of the cargo to which he was exposed. Evidence was also given in the case by the statements from three other workers on the wharves, all of whom were deceased, which had been given in their own proceedings in the Tribunal. 3. Beazley P at [1] of the judgment said that she agreed with the reasons of Basten JA and with the additional reasons of Sackville AJA. The decision of Basten JA commences at [2] of the judgment and deals with a number of different issues. His Honour dealt with evidence of exposure to asbestos dust at [11]-[20], which was his Honour's summary of the material in the Form 1 statements from the three other workers. His Honour dealt with principles relevant to admissibility of such evidence at [21]-[29]. His Honour noted that: "Generally evidence of an opinion is not admissible to prove the existence of a fact about which the opinion was expressed and which the opinion was tendered to prove: see s 76 of the Evidence Act." 1. His Honour said: "The rule does not apply to evidence which constitutes an account of perceptions of facts nor does it apply if the opinion is based on what the witness perceived and is necessary, so expressed, to obtain inadequate understanding of the perception: see s 78." 1. His Honour said further: "The rule does not apply to expert opinion." 1. His Honour referred to s 79 of the Evidence Act. Section 79(1) reads as follows: "If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." 1. In the case of Mr Kuether, while he was a shipwright, and in particular one involved in lofting work, there is no evidence in the case as to what a shipwright would obtain by way of specialised knowledge imparted by training or study. Nevertheless the evidence of Mr Kuether shows that in his work as a shipwright, particularly in his lofting work, his experience would be relevant to whether or not he could say that a material was asbestos. This is similar to the decision of Basten JA in Howard Smith where his Honour said at [22]: "In the present case none of the waterside workers claimed any specialised knowledge by study or training. The question is rather, whether by working on the Sydney waterfront for periods of some ten years each they acquired a degree of experience sufficient to allow them to identify the fibrous substance with which they worked on many occasions as asbestos. Common knowledge can be acquired by experience and may be identified as a perception." 1. At [23] Basten JA said: "The proper analysis must commence with identification of the facts sought to be proved. The ultimate fact was whether the deceased was exposed to airborne asbestos dust and fibre in the course of his employment with Port Kembla Stevedoring." 1. In the present proceedings the ultimate fact is whether the deceased was exposed to sufficient asbestos dust and fibre in the course of his employment at Cockatoo Island so as to cause his disease of mesothelioma. Basten JA noted that, "A stevedore could give evidence of his perceptions of dust and fibrous material". In the present case there is no dispute that Mr Torok could give evidence of his perception of dust and its inhalation by him. Basten JA said that the question was whether, through the evidence of the other stevedores or the evidence or other workers, the plaintiff in that case could establish on the balance of probabilities the dust was asbestos. At [25] of the judgment his Honour said: "People who work with particular materials may acquire knowledge which is not common to the population at large. A carpenter may be able to identify a wide range of woods, a skill which others would not possess." 1. His Honour acknowledged that the waterside workers did not construct or manufacture from the materials they handled. He said at [25]: "Nevertheless, manual handling and knowledge of shipping will undoubtedly form a basis upon which to identify cargos in an age before cargos travelled in uniform boxes or containers." 1. At [27] Basten JA said it was clear from the evidence of the three deceased workers that their jobs involved identifying relevant cargo, usually by word of mouth. They gave details of the manner of unloading and stacking asbestos cargoes which they said was always the same. The conclusion of Basten JA is at [28], as follows: "Given the proper identification of the issue to which the evidence went, the experience of the individual workers over many years, and the fact that no attempt was being made to distinguish types of asbestos or quantities of airborne material, what they described was based on what was for them common knowledge. Their evidence in that regard was admissible as evidence of a fact which they perceived." 1. In the present case I have identified the issue to which the evidence of Mr Kuether goes which is whether there was asbestos at Cockatoo Island to which a worker might be exposed. 2. The experience of Mr Kuether ranged over 29 years at Cockatoo Island, he was by training a shipwright but part of his work involved lofting which meant working from some sorts of plans or blueprints to create pattern moulds. His work also involved direct contact with asbestos spray and being adjacent to people involved in lagging and de lagging. With access to the documents which he used for lofting, one would expect and I infer that he would have known from those documents what materials were being used in what parts of the ships. The evidence of Mr Kuether does not attempt to say what type of asbestos was being involved or what quantities of asbestos were involved, but what he described, over 29 years at Cockatoo Island, right up until the day he left, was for him common knowledge. In particular it was for him common knowledge that the lagging on the steampipes in vessels was asbestos lagging. 3. I reject the second submission of Mr Toomey that the evidence of Mr Kuether in relation to stating that material was asbestos is inadmissible. I regard his evidence that the material he saw and sometimes worked with was asbestos as admissible to prove that fact. 4. The third objection of Mr Toomey was that the evidence was of such little weight on the question of the plaintiff's exposure over a four month period in 1980, and there was prejudice because this could not be tested through cross examination, that the prejudice outweighed the probative value and should be excluded on the basis of my discretion under the Evidence Act to exclude such evidence. I decline to exercise that discretion. The evidence of Mr Kuether goes no more than to say that there was ample use of asbestos in many ships and submarines and in many areas of Garden Island. There is no prejudice as there would be if Mr Kuether purported to say that on particular jobs done in 1980 for four months by Mr Torok, he was exposed to asbestos. The evidence of Mr Kuether is broad and general and only goes to establish the broad and general topics that I have identified. 5. For those reasons, the material of Mr Kuether, being his Form 1 and the s 67 notice tendered with that Form 1 statement will be admitted for all purposes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 02 August 2023