Davies v Amaca Pty Limited & Anor [2004] NSWDDT 34

Reported Decision (2004) 1 DDCR 635

Dust Diseases Tribunal of New South Wales

CITATION : Davies v Amaca Pty Limited & Anor [2004] NSWDDT 34 PARTIES : Richard Davies Amaca Pty Limited MATTER NUMBER(S) : 206 of 2003 JUDGMENT OF: Duck J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 21 & 22/04/04, 30/06/04 & 01/07/04 DATE OF JUDGMENT: 07/02/2004

FOR PLAINTIFF: Mr G Holland instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT: Ms W Strathdee instructed by Phillips Fox

JUDGMENT: 1. The plaintiff brings proceedings against the defendant alleging negligent exposure to the products of the defendant as a consequence of which he suffered the inhalation of asbestos dust and fibre. He pleads that as a result he suffers from asbestosis, asbestos related pleural disease and symptoms related to and emanating from those conditions. The hearing thus far has occupied 21 April, 30 June, 1 July and 2 July, today. The exposure occurred in South Australia, the plaintiff is resident in South Australia and all his treatment has been administered here. The fact of exposure in this state means that the tort occurred in this state and the law of South Australia is to be applied. 2. In the statement of claim the plaintiff seeks an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (South Australia) within which to commence his proceedings. The evidence on the application has been heard in conjunction with the evidence in the case itself. I have come to the view that it is not in the interests of justice that the extension be granted and it is to explain that view that these reasons are directed. 3. The plaintiff filed in the proceedings and relied upon an affidavit. It is a convenient way of telling the story to refer to the affidavit although criticisms have been made of it, with justification. The following things emerge. 4. The plaintiff was born on 7 January 1929 in Liverpool, England. He went to school until the age of 14. He then had employments in 1943 in Liverpool. Then in 1944 he became an apprentice painter and then a painter employed by John Cothliff in Liverpool. His work involved the painting of houses, mostly houses that had been damaged by bombs during the war. He said that he worked in the post-war years on a number of prefabricated houses. In 1950 from about January to March he worked as a painter for WA Gale in Bootle painting factories. From March 1950 until June 1950 he said he worked as a painter employed by Costains at the Evans Medical Supplies premises in Speke, Liverpool. His work involved painting houses and buildings. 5. It is to be observed in respect of the employment with WA Gale and in the employment with Costains that the plaintiff asserted in his affidavit that this was not dusty work. He goes on to say that in 1950 for about three months he worked as a painter for a painting company in Liverpool the name of which he can no longer remember. He then worked at the English Electric Company building at Preston for about six weeks. As to that work he said: On occasion I was required to paint preformed asbestos pipe sections at this employment. This was not dusty work. 6. Then in 1950 for about three months he worked as a painter for the Bootle Corporation in Liverpool painting houses and buildings. He said on occasions he was required to paint preformed asbestos pipe sections at this employment. This was not dusty work. In 1951 for nine months he worked as a painter for Norwest Constructions in Liverpool painting factories and buildings. "I was not exposed to asbestos at this employment". During the years 1951 to 1956 the plaintiff worked as a heavy turner's mate for Harland and Wolff Ship Repairers at Bootle. He was assisting in the making of pistons out of casts which pistons were later placed in ships. 7. From 1956 until 1966 he worked at the British American Tobacco Company factory in Liverpool as a painter. He said on occasions he was required to paint pipes lagged with asbestos slurry and preformed asbestos pipe sections. He said this was not dusty work. In the years 1966 until 1968 he worked as a self-employed painter in Liverpool and Warrington, painting houses and offices with no exposure to asbestos. 8. In November 1968 the plaintiff migrated with his wife and his children to Australia. They ended up in Adelaide. Between the years 1968 and 1990 he worked as a painter and decorator in Australia. He asserts that he worked with James Hardie asbestos cement sheets, including Versilux and some other named products. When he gave his evidence he could remember Versilux but not the other ones. He also worked with asbestos cement flat sheets. 9. At par 15 he said he was required to sand, brush, paint and manually work with and handle asbestos cement sheeting and sweep off cuts and dust liberated from asbestos cement sheeting. In addition he said that he worked in the vicinity of other workers who cut, installed, sanded, brushed, painted and manually worked with and handled asbestos cement sheeting, and swept off cuts and dust liberated from asbestos cement sheeting. At par 16 he said he cannot remember the names of any other contractors who hired workers who worked in his vicinity during this period. 10. The affidavit then includes a description of various products of the defendant, those descriptions are contained in par 17 to 21 of the affidavit. The plaintiff described an asbestos cutter and its working in par 23. He refers to the use of power tools in the same paragraph, which he said liberated dust into the air. All of the methods liberated dust, he said, but by far the most dust was liberated with power tools. Similarly an electric power drill was said to have released dust into the air about him which he inhaled. A similar result was achieved when saws, both hand saws and electric powered saws, were used on flat sheets to cut them. 11. Between November 1968 and September 1969 the plaintiff deposes to working for Ken Pratt as a painter and decorator. The work was mainly on residential houses. The work was all in South Australia. The plaintiff said that he is not able to remember the names of other contractors who hired workers who worked in his vicinity. He describes in a similar way exposure to the defendant's products in that employment. During the period October 1969 until December 1989 the plaintiff was a self-employed contract painter. He describes similar exposure. At par 47 he deposes to the fact that for three days he did some work at the James Hardie factory in Elizabeth where the dust was, to use his word, incredible. Between 1989 and August 1990 he worked for 18 months or so for Alan Norman as a painter. In 1978 the plaintiff deposes to the fact that he did some renovations at home using Hardie products. 12. He said at par 68 that he retired in about 1990 because of a knee injury which happened after he dropped an extension ladder onto his knee. In 1980 he had some chest pain, which led in June 1981 to a heart bypass operation at the Royal Adelaide Hospital. In 1992 he had a hernia operation. He then goes on to describe, from 2000 onwards, a worsening shortness of breath on exertion and the symptoms relevant to the pleaded ailments are described. He instructed solicitors in July 2001, because of his shortness of breath and some chest pain, in order to investigate the possibility of a claim in relation to his exposure in Australia and in the United Kingdom. The solicitors sent the plaintiff to see Professor Alpers, whom he saw in January 2002 and then again in June 2002. 13. The proceedings with which we are presently concerned were commenced by the filing of a statement of claim on 29 May 2003. According to par 81 of the affidavit in about March of 2003 the plaintiff received information, no doubt through his solicitors, that a firm in England who had been consulted on his behalf were not willing to commence proceedings in that country, that is in England, because of difficulties about the claim. The plaintiff then, at par 82, deposes to the fact that he received a modest lump sum compensation from the United Kingdom government and monthly payments of 46 pounds per month. Those payments, he said, were related to his exposure in the United Kingdom. 14. The plaintiff says, at par 83, that on 27 May 2002 he learnt from his solicitors that Professor Alpers had expressed the opinion that he had asbestos related pleural disease and asbestosis and the extent of his disability was 25 per cent. I am not sure what the percentage relates to but that is the way the material is set out in the affidavit. The plaintiff said that he was shocked by the extent of the disability referred to in the doctors opinion. He then instructed Turner Freeman to issue proceedings in relation to his asbestos related conditions in this Tribunal. 15. In the light of the contents of affidavit the plaintiff gave some evidence on 21 April 2004 which may be fairly described as surprising. At transcript p 9, after some questions about dust in the work places in England, at line 13 he was asked: Question Let us just deal with asbestos dust? Answer No asbestos. Question Do you say that you were exposed to any asbestos dust or fibre at any time whilst you were working in the United Kingdom? Answer No. Question Not at all? Answer No. Question Never? Answer Never. Question Despite working in five or six different occupations where you were working near asbestos pipe sections you say you were not exposed to it at all? Answer No. That evidence, just stopping there, is breathtaking in the circumstance that the plaintiff was not only later to recant it but he was receiving money from Britain because of the exposure. 16. He was asked, page 10 at the foot: Question Why is it, sir, that you would make a claim on a United Kingdom authority for exposure to asbestos dust when your evidence before his Honour here today is that you were not exposed to any asbestos dust in the United Kingdom? Answer I cannot explain. Question No explanation? Answer I was just told it and that's what I done. 17. Then he was asked, in relation to his work in the United Kingdom, page 11 at the top: Question I suggest, sir, it exposed you to asbestos dust on a regular basis from January 1950 until late 1968? The plaintiff answered, "M'mm".