KATIDIS v MMI LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, POWELL and COLE JJA 7 March 1995, 8 March 1995 [1995] NSWCA 232 Drawing of inference. Meagher JA I agree with Cole JA. Powell JA I agree with Cole JA. Cole JA The appellant, Apostolos Katidis is dying of mesothelioma. He brought a claim in the Dust Diseases Tribunal of New South Wales against MMI Ltd, the first respondent, as the insurer of his previous employer, C R Dickson and Co Pty Ltd ("the Dickson company") pursuant to the provisions of the Law Reform (Miscellaneous Provisions! Act 1946. In addition he sued Meggitt Overseas Ltd which between | January 1966 and 30 September 1966 was known as Bells Asbestos and Engineering (Australia) Ltd, and Wallaby Grip (BAE) Pty Ltd (In liquidation) which between | January 1967 and 31 December 1976 was known as Bells Asbestos and Engineering Pty Ltd. The plaintiff was employed by the Dickson company between 1966 and 1976. Answers to interrogatories provided by the second and third respondents, and tendered against them in the proceedings, established that each of those two respondents supplied to C R Dickson and Co Pty Ltd between | January 1966 and 30 September 1976 products described as "Bells' asbestos composition, Bells' asbestos rope, Bells' asbestos gloves and Bells' asbestos gauntlets". The appellant claims that the mesothelioma suffered by him resulted from exposure to asbestos dust at his place of employment between 1966 and 1976. He sued the insurer of his former employer on statutory and common law counts, and sued the second and third respondents in negligence. The hearing, in the sense of taking of evidence, concluded before Judge Maguire on | March 1995. Oral submissions were presented on 2 March 1995. His Honour indicated that he wished to hear submissions upon whether there was any evidence that the appellant was exposed to asbestos at the bottle factory where he worked for the Dickson company!. It was accepted that there was no direct evidence of exposure to asbestos, the plaintiff's case depending upon inferences2. Judge Maguire made clear that, at that time, the question of exposure to asbestos was the only matter upon which he wished to hear addresses3. Submissions on that matter concluded on 2 March 1995. Judgment was delivered by his Honour on Friday 3 March 1995. Maguire J held that "there must be a judgment for the defendant"4. All parties have understood that to be a judgment and verdict for all defendants. 1. Appeal Book, at 122. 2. Appeal Book, at 123. 3. Appeal Book, at 173. 4. Judgment at 6. 2 UNREPORTED JUDGMENTS The appellant contended at the trial that there were six aspects of operation at his employer's factory which exposed him to asbestos or asbestos products. The trial judge identified them as: "1. Gloves or gauntlets, which the plaintiff and others were obliged to wear from time to time; 2. Rope, which was wrapped around certain pipes as a means of insulation; 3. Slurry, which was used to apply an insulating coating to certain parts of equipment; 4. And this is perhaps the same as 3 - cement, which was used to place between fire bricks in the furnace; 5. Millboard, which was to be found at the top of one of the processors; and, 6. The insulation said to have been around the lear which was the annealing contrivance which dealt with the bottles which the plaintiff's employer manufactured."5 Evidence was called from the plaintiff and two other employees at the Dickson factory, Mr Faoros and Mr Kirby. The trial judge found, and Mr Letcher QC, for the plaintiff, accepted that none of those three could give evidence that the six items alleged to be the source of exposure to asbestos in fact contained asbestos. They were not qualified to do so. The appellant thus sought to have drawn an inference that such products did contain asbestos to which the appellant was exposed. It was undoubted as against the second and third respondents that they supplied asbestos gauntlets, asbestos gloves, asbestos rope and an asbestos composition for their interrogatories made that admission. When tendered against the second and third defendant that established supply of those asbestos products to C R Dickson and Co Pty Ltd. There was also in evidence the catalogue of the second and third defendant's products which described certain gauntlets as "Bestabel asbestos gauntlets" which were said to be used for "handling any hot materials. The catalogue stated: "The leather lined and leather faced pattens are suitable for handling anything within the capacity of leather with the additional protection of asbestos." No interrogatories on this question were administered to the insurer of the Dickson company. The interrogatories of the second and third respondent were not tendered against the first respondent. Thus they constituted no admission by the first respondent of receipt of the asbestos products®. The appellant sought to establish the purchase of such asbestos products by his employer by calling evidence from Mr Faraos that he had, at his employer's request, gone to factory premises of the second and third respondent where asbestos products of the categories mentioned were admittedly held, collected such products and brought them back to the Dickson factory. It was undisputed that Mr Faraos had collected rope and gloves and "certain ingredients" from a factory but Maguire J was not satisfied that that factory was the factory of the second and third respondent. That finding was not challenged on appeal. The appellant led one other aspect of evidence seeking to establish a connection between products with which he was in contact, and asbestos. In his statement the appellant said: 5. Judgment at 2. 6. Cross on Evidence Australia Edition, para33520. URJ KATIDIS v MMI LTD (Cole JA) 3 "When we picked up bottles or worked at the furnace, we wore gauntlets without separate fingers and up to my elbows, LIKE the copy photo number F20 and F25, marked A annexed hereto." (emphasis added) That annexure was a copy of a page from the product manual of the second and third respondents entitled "Heat and fire protective equipment asbestos gauntlets, and overalls". It depicted two forms of gauntlets known as F20 and F25. In chief the appellant thus did not identify the gauntlets as those of the second and third respondent admittedly supplied to the Dickson company, but merely that the gauntlets were "like" those shown. In cross-examination the appellant gave the following evidence: Q. "If you have a look at the last page of your affidavit, are the gloves you are talking about THE gloves which are shown in the...?" A. "Yes, them." (emphasis added) It was contended, but faintly, by Mr Letcher that that was a specific identification of the gloves as gloves of the second and third respondent although ultimately I understood him to accept that it was merely identification of gauntlets of that type and shape. Mr Kirby also ave evidence regarding the gauntlets. He said: "Well, the gloves shapes or mitten shapes are similar in appearance to the ones that were used by the furnacemen and by the operators on the machines, when dealing with extremely hot articles." Mr Faraos, when asked to look at the relevant catalogue page showing the gauntlets said: "These ones I recognise". Properly understood, there was no direct evidence that the gauntlets used by the appellant were those shown in the catalogue of the second and third respondent, or those which, as between the appellant and the second and third respondent, were proven by the interrogatories to have been supplied by the second and third respondent to the Dickson company. It was in those circumstances that his Honour held: "My view is that, in all the circumstances, I am not able to infer that there is an identification of the Bestabel gloves as depicted in PX25 with the gloves worn by the plaintiff and others at the factory premises concerned."7 The trial Judge held that the gloves constituted the "high point" of the plaintiff's case, no doubt because there was better identification in relation to the gauntlets and there was evidence that the plaintiff used gauntlets. Not being satisfied that the gauntlets were the Bestabel asbestos gauntlets, his Honour was not satisfied of the existence of asbestos in the workplace to which the appellant was exposed. Accordingly he dismissed the appellant's claim. There was undoubted medical evidence before the trial Judge that the appellant is suffering from mesothelioma. His Honour then considered whether, arising from that fact, he should nonetheless draw the inference that, during the ten years employment with the Dickson company, there must have been exposure to asbestos or otherwise the appellant would not have suffered from mesothelioma. His Honour felt unable to draw that inference because there was evidence before him from Dr Gianoutsos that, for a period in excess of 30 years, the appellant had worked on a farm in an area in Greece where the land was said to contain tremolite, and there was available a view that tremolite caused mesothelioma. Notwithstanding that evidence, Dr Gianoutsos had stated: 7. Judgment at 4. 4 UNREPORTED JUDGMENTS "The only evidence that I have before me that is absolute is that he had exposure at his place of work, any other exposure in terms of his earlier environment when living near Kizani is speculative, and I don't believe I have any evidence to say that that is contributory to his mesothelioma.'8 Absent evidence of asbestos in the appellant's workplace with the Dickson company, it would not be possible to attribute the mesothelioma to such exposure. Maguire's J discussion regarding the medical evidence dealt solely with whether an inference of exposure to asbestos in the workplace could be inferred from the existing condition of mesothelioma. His Honour held it could not. The question on appeal was whether the trial Judge was correct in not inferring that there was asbestos at his workplace with the Dickson company. The trial Judge held that he was not so exposed because he would not infer that the gauntlets used by the plaintiff and others were the Bestabel asbestos gauntlets shown in the catalogue. A distinction needs to be drawn in relation to the evidence admitted against the second and third respondents on the one hand and the first respondent on the other. As against the second and third respondents there were three relevant aspects of evidence. There were: 1. An admission that the second and third respondents supplied to the Dickson company for a period of ten years the four asbestos products to which I have referred. 2. The evidence that employees of the Dickson company, including the plaintiff, used gauntlets of a shape similar to those supplied by the second and third respondents to the Dickson company. 3. The evidence of Mr Kirby that the gloves "were used when dealing with the high temperature devices that were too hot to handle with the leather." Those three aspects, in combination, in my view lead inevitably to a finding that the gloves used by the appellant and others were those supplied to the appellant's employer, the Dickson company, by the second and third respondent. It is inconceivable that the Dickson company would have purchased such gauntlets obviously designed for the use in handling hot plant or equipment yet have retained those gauntlets for use elsewhere distributing some other form of gauntlets to its employees. As against the second and third respondents the three aspects of evidence referred to previously were undisputed. This Court is in a position to draw the proper inference that the gloves used by the appellant and others around him were those supplied by the second and third respondent to his employer!°. The learned trial Judge was thus in error in failing to draw that inference as between the appellant and the second and third respondent. It follows that it was established as between the appellant and the second and third respondents that there was asbestos present in his workplace. The nature and extent of any exposure of the appellant to such asbestos, as may have been present, has not been considered by the trial Judge, nor have other questions concerning liability such as causation. Thus there must be a new trial. In those circumstances it is inappropriate that this Court should comment upon other aspects of evidence regarding the presence or absence of other asbestos products. 8. Transcript at 67. 9. Transcript at 109. 10. Warren v Coombes and Anor (1979) 142 CLR 541 at 551. URJ KATIDIS v MMI LTD (Cole JA) 5 The position regarding the first respondent, is, however, different, That is because the evidence in paral above was not tendered against nor is it admissible against the first respondent. The evidence in para2 and para3 is not sufficient to enable the drawing of the inference that the gloves used by the appellant, although of a shape and type similar to those supplied by the second and third respondents, were in fact those gloves containing asbestos. To many it may seem to be an absurdity that this Court must hold, because of a quirk of the law of evidence, that as between the appellant and the second and third respondents it has been established that they supplied gloves containing asbestos to the Dickson company, the appellant's employer, as between the appellant and his former employer's insurer, that same fact is not established. I regard it as an anachronistic aspect of the law of evidence. Nonetheless Mr Letcher accepted that it was the law and, indeed, the interrogatories establishing the supply by the second and third respondent to the appellant's former employer over a period of ten years were not tendered against the first respondent. It follows, in my view, that his Honour's decision as between the appellant and the first respondent was correct in that no inference of exposure to asbestos through products supplied by the second and third respondents could be drawn. It was not, however, correct as between the appellant and the second and third respondents. In the result the appellant fails against the first respondent but is entitled to a new trial as against the second and third respondents. I propose the following orders: Appeal dismissed as against the first respondent. The appellant is to pay the first respondent's costs. Appeal upheld as against the second and third respondents. Order that the verdict and judgment of the Dust Diseases Tribunal of New South Wales in favour of the second and third respondents be set aside and that there be a new trial as between the appellant and the second and third respondents. 5. Order that the second and third respondents pay one half of the appellant's costs of the appeal but that the second and third respondents, if qualified, have a certificate pursuant to the Suitor's Fund Acct. RYN Representation: Counsel for the appellant: DG Letcher QC/ Mrs H Kiel Solicitors for the appellant: Turner Freeman Counsel for the first respondent: CR Hoeben Solicitors for the first respondent: Hickson Lakeman and Holcombe Counsel for the second and third respondents: IM Newbrun Solicitors for the second and third respondents: Middletons Moore and Bevins