Frederik Willem Van Vuren v AWI Holdings Pty Ltd [2004] NSWDDT 16

Dust Diseases Tribunal of New South Wales

CITATION : Frederik Willem Van Vuren v AWI Holdings Pty Ltd [2004] NSWDDT 16 PARTIES : Frederik Willem Van Vuren AWI Holdings Pty Ltd MATTER NUMBER(S) : 352 of 03 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Negligence :- Causation LEGISLATION CITED: CASES CITED: DATES OF HEARING: 7 July 2004, 8 July 2004, 23 August 2004, 31 August 2004, 2 September 2004 EX TEMPORE JUDGMENT DATE : 09/02/2004

FOR PLAINTIFF: Mr J L Sharpe instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT: Ms L P McFee instructed by A O Ellison & Co

JUDGMENT:

1. The plaintiff, Frederik Willem Van Vuren has contracted mesothelioma and sues the defendant, AWI Holdings Pty Ltd (formerly Stewarts & Lloyds (Australia) Pty Ltd), as his employer, asserting that the defendant failed to take reasonable care to protect him from the consequence of exposure to asbestos dust and fibre. 2. The defendant does not take issue with the plaintiff's assertion of breach of duty and defends the case upon the ground that the defendant's breach of duty did not cause his injury. 3. For a period of some six to seven months, commencing in late 1966, Mr Van Vuren was employed by Stewarts and Lloyds at the Torrens Island Power Station as a welder. The welding was of a particular character, which required that the pipes to be welded were heated to a temperature of some 900 degrees centigrade before welding. During this time, and throughout the welding process, the surrounding metal work was protected by asbestos mats. The work was performed in a tent like structure some 3 metres by 3 metres without ventilation. Mr Van Vuren applied the asbestos blankets and removed them after each weld. The heat was such that the blankets disintegrated at the end of each application. In addition to this exposure Mr Van Vuren was also present when asbestos blocks were sawn and placed into position and throughout his work he used asbestos gloves. 4. The basis upon which the defendant resists the finding of causation is that the plaintiff has failed to prove that this work by him in their employ materially contributed to his disease, which disease is sufficiently explained by other exposure to asbestos. Mr Van Vuren worked as a welder for the Netherlands Dock and Ship Company in Amsterdam between 1945 and 1959 and he also worked as a welder at the Port Stanvac refinery. 5. I find that such exposure as may have occurred at the Port Stanvac refinery was so minimal as to be irrelevant in calculation. 6. The evidence of Mr Van Vuren in relation to his work in his native Amsterdam was that he was employed as a welder in the shipyards. He says that he did not work in the engine rooms when laggers were working and that from the top deck as he passed he was able to look down into the engine rooms at their work some 20 to 30 metres below. However, approximately once each year he says that when in the vicinity of lagging operations, passing to other places, he would sometimes engage, he being a young man, in mud fights, where asbestos saturated with water was moulded into mud balls and thrown by the workers at each other. This asbestos would have eventually dried on his overalls and during the later course of that day he would be subjected to asbestos inhalation. 7. The defendant relies very much upon an analysis by the highly skilled consultant biostatistician and epidemiologist Geoffrey Berry. Dr Berry, applying the Peto formula in an attempt to assign relative contributions to the plaintiff's disease caused by asbestos exposure over the years, has concluded that the work at Torrens Island Power Station contributed 4 per cent to Mr Van Vuren's disease, that the work at the Port Stanvac refinery contributed 13 per cent and that the work at the Netherlands Dock and Ship Company in Amsterdam contributed 80 per cent. Unfortunately in performing his calculations Dr Berry made the assumption that the exposure in the shipyards, the exposure at Port Stanvac refinery, and the exposure at Torrens Island were similar in degree. Such an assumption is entirely unsupported by the evidence. 8. When asked to provide further calculations based upon the plaintiff's evidence, which I accept, Professor Berry then concluded that the contribution of the Torrens Island Power Station was more than double the contribution of the Netherlands Dock and Ship Company. 9. Professor Henderson and Professor Alpers are both of the opinion that Mr Van Vuren's exposure in the defendant's employ made a material contribution to his contraction of the disease of mesothelioma and I accept their evidence. 10. There was no medical expert called by the defendant. 11. The submissions by Ms McFee as to why the defendant should not be liable appear to be threefold. First, she submits that the plaintiff ought not be accepted as a reliable witness. In the light of a letter from the defendant's solicitor to the plaintiff's solicitor after the evidence of the plaintiff and his witness in which the defendant's solicitors assert that no challenge will be made to their evidence I do not believe that that submission may now be made. In any event I accept the plaintiff as a witness of truth. 12. Secondly, it is Ms McFee's contention that because each exposure in isolation, that is the Dutch exposure and the Torrens Island exposure, was sufficient to cause a risk of the contraction of mesothelioma, there is no logical basis to inculpate one exposure rather than the other as the cause of the plaintiff's disease. Ms McFee asserts that, accepting Dr Berry's assignment of 4 per cent of the total responsible toxic exposure to the defendant, the plaintiff has failed to demonstrate that he would probably not have contracted mesothelioma in any event absent that exposure. She says that on a statistical analysis the plaintiff was probably going to get mesothelioma anyway and that where the exposure in the defendant's employment was small and additional, then the plaintiff has not discharged his onus. 13. Two responses may be made to this submission. As Mahoney JA pointed out in Barnes v Hay [1984] 12 NSWLR 337 at 352 "the law has accepted that it is sufficient if the event in question . . .is "a" cause; it is not necessary that it be "the" cause". In law as in life there can be more than one cause of an event. Further, the submission elides the distinction between a contribution to risk and a contribution to that biological matrix which has as its end result the contraction of a disease. In Mr Van Vuren's case we are not concerned with quantifying the risk of contracting mesothelioma because the risk has come home; and as Professor Henderson says, the risk came home because of the totality of the fibre burden, which includes the 4 per cent of the defendant if that be accepted as the proportional contribution. Where that is the only medical evidence, it is idle to suggest, as Ms McFee does, that the plaintiff must also prove that he was unlikely to contract mesothelioma without his exposure in the defendant's employment. 14. In any event it is quite patent that not everyone exposed to a degree of fibre similar to Mr Van Vuren's before his employment with the defendant will get mesothelioma. Upon such limited statistics as are before me his chances were no higher than one in ten, and very probably very much lower. 15. The third ground advanced by Ms McFee is that even if it were accepted that 4 per cent was the contribution of the defendant to the plaintiff's disease, that contribution may fairly be described as de minimis. De minimis is a concept which speaks of something which is so transient and trifling as to be reasonably ignored; that is when commonsense prevents scientific inference from overstepping its reach. Upon the plaintiff's evidence this is not such a case. 16. I find the defendant's contribution to be material. 17. Damages have been agreed in the sum of $250,000. 18. I enter verdict and judgment for the plaintiff in the sum of $250,000 and order that the defendant pay the plaintiff's costs. Mr J L Sharpe instructed by Turner Freeman appeared for the plaintiff Ms L P McFee instructed by A O Ellison appeared for the defendant