Dust Diseases Tribunal of New South Wales CITATION : Griffith v Cockatoo Dockyard Pty Ltd and Anor [2004] NSWDDT 24 Terrence Anthony Griffith PARTIES : Cockatoo Dockyard Pty Ltd Commonwealth of Australia MATTER NUMBER(S) : 156 of 2002 JUDGMENT OF: Duck J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 28 & 29/08/03, 8 & 9/12/03 DATE OF JUDGMENT: 02/25/2004 FOR PLAINTIFF: Mr A L McSpedden instructed by Turner Freeman. LEGAL REPRESENTATIVES: FOR FIRST DEFENDANT: Mr B Hughes instructed by A O Ellison. FOR SECOND DEFENDANT: Mr R S McIlwaine, SC instructed by Australian Government Solicitor. JUDGMENT: JUDGMENT DUCK J 1. The plaintiff claims provisional damages against Cockatoo Dockyard Pty Ltd and the Commonwealth of Australia. He was as a young boy employed by the first defendant, Cockatoo, firstly as an office boy and later as an apprenticed fitter and turner. He worked at the Cockatoo Dockyard and included in his work for a lot of the time was work on ships owned by the Commonwealth. 2. It is said that he was negligently exposed to the inhalation of asbestos dust and fibre. His case is that as a result of that exposure he has contracted asbestos related pleural disease and asbestosis and he seeks provisional damages on that account. 3. In the proceedings the defendants have not addressed on the question of liability. No formal admission has been made but no submissions have been made. Against that background I turn to address the question of liability in the proceedings. 4. The plaintiff tendered an affidavit sworn on 14 July 2003 which became plaintiff's exhibit 1. In it he sets out the ways in which and the places in which he was exposed to the inhalation of asbestos dust and fibre. He worked in various sheds in the dockyard. He speaks of dust being in the air and on the floor. He worked in ships. Part of the work involved the removal of lagging from valves and pipes. His affidavit sets out that by reason of his work in this way he was exposed to dust which on occasions he described, for example at paragraph 8, as large clouds of dust. 5. I am satisfied that his employment did expose him to the inhalation of asbestos dust and fibre. Did that mean that the defendant's operations involved a risk of injury which was reasonably foreseeable? Having regard to what has fallen from the Court of Appeal in cases such as Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 , CSR v Wren (1997) 44 NSWLR 463 and other cases the answer to that question must be, yes. It is to be observed that the plaintiff's employment commenced in 1960 so that the risks attaching to the use of asbestos were well and truly known by that time. 6. Were there reasonably practicable means of obviating such risk? Well, nothing was done. The means of prevention which may have been undertaken, the Court has heard often enough, include the use of masks, better ventilation and so on. As I say, nothing was done. 7. Was the plaintiff's injury caused by the risk in question? The medical evidence in this case is all one way, suggesting that the answer is, yes. 8. Did the failure of the defendants to eliminate the risk show a want of reasonable care for his safety? Having regard to the severe injuries which flow from such exposure the answer to that question is, yes. 9. I am satisfied that on the evidence that has been made available negligence has been established. The plaintiff will be entitled to a verdict against both defendants. 10. What has been at the heart of the case has been the proper assessment of damages to which the plaintiff is entitled. His affidavit sets out the course of his life in some detail. His apprenticeship finished on 5 April 1966. He then went to work for his brother for a time installing domestic heaters. In 1967 he was employed by Skilled Engineering to work at the Union Carbide premises at Rydalmere. In the period 1967 to 1968 he worked as a printer's engineer. From 1968 to 1970 he was employed by transport engineers at Botany as a fibreglass moulder. From July 1970 to August 1972 he worked for Australian Hydraulics as a sales and production schedular. From August 1972 to November 1973 he was employed by John White and Sons of Petersham as a production planner. In 1974 he worked for a firm W W Evans in connection with refrigeration. From 1974 to 1979 he worked for a firm described as Raymor Taps as a production manager. Then in 1979 he and his wife moved to Queensland. In the period 1979 to 1982 he ran a BMX track and bicycle store in Springwood, Queensland. This is apparently a southern part of Brisbane. From 1982 to 1994 he had a retail bike shop at Woodridge, Brisbane. He had a business known as Bikes Galore. He also manufactured a bicycle and he had a patent for a particular type of bike, although the evidence does not go so far as to say that he manufactured the bike according to his patent. 11. There is some evidence to suggest that in the period from 1984 to 1998 he was engaged in steel fabrication per medium of his business Bikes Galore. That involved the construction of stackable steel storage containers and safety rails for Repco bicycles and Malvern Star bicycles. In 1994 he worked for four months as a welder. In 1995 for six months he was engaged in the repair of hydraulic hoses. Commencing in 1996 he began to work in association with MIM Process Technology Pty Ltd, a subsidiary of MIM, that is Mt Isa Mines Ltd. His duties were described in some detail in evidence by Mr du Preez on Tuesday, 9 December 2003. That gentleman described himself as the contracts engineer at MIM Process Technologies. The evidence described his job as administering contracts for various technologies developed by MIM Holdings Pty Ltd. One of the technologies developed was given the name the Jamison Cell Quotation Technology. Another technology developed was the Isa Mill Ultra Fine Grinding Technology. 12. The MIM company had a warehouse at 75 Curzon Street, Tennyson in Brisbane. The function of the warehouse was to store parts and components for the Jamison Cell Technology project. The plaintiff was engaged to work at those premises on a subcontract basis. His job was to consolidate and pack the equipment that was there. He had to receive goods from suppliers, check on the quality of the goods and pack them into storage. From time to time he had to do a stocktake. Sometimes he had to build crates to contain the equipment that came there; in particular that requirement arose for equipment that was to be exported. The plaintiff's wife was on site with him. Mr du Preez said that the principal reason for her being there was to have someone present in case he was hurt or pinned under a load. It was, he said, purely a safety issue. From time to time the plaintiff sent MIM invoices for work that he had done or materials that he had acquired. The last such invoice was received in August 2001. 13. During that year around June, so far as Mr du Preez can remember, he had a conversation with the plaintiff. He told him that the company was moving in a direction with new technology (transcript p 106) and they were looking for facilities at different premises. He told the plaintiff that the new premises would have its own storeman. He said that there may be a need for someone to do crating up, such as the plaintiff had done, and he wanted to put the plaintiff's name forward for consideration for that type of work becasue he had formed a favourable view of the way the plaintiff did his work. The new premises were at Banyo, another Brisbane suburb. The Curzon Street premises were shut down shortly after August 2001. 14. The plaintiff's affairs were also developing. I return to the plaintiff's affidavit. He indicates at par 36 that in early 1999 his father-in-law Darcy Edmunds asked him for help caring for a cattle property near Jimboomba west of Brisbane. Mr Edmunds had cancer and his health was deteriorating. The plaintiff agreed to help. He said that from early 1999 he gave Darcy whatever help he could. By September 2001 Mr Edmunds health had deteriorated a lot and the plaintiff had to devote his attention to the property. He said that what was needed at the property became a full-time job. It will be seen readily enough that moving to full-time work on Mr Edmunds' property was happening at about the time the Curzon Street premises of MIM were being shut. The plaintiff said, affidavit par 40, that from September 2001 through until about February 2002 he concentrated mainly on the sale of cattle at Mr Edmunds' property. 15. In January 2002 the plaintiff attended upon his GP, Dr Dormer, complaining of breathlessness. There is a short report from that doctor, PX.11, which bears date 27 February 2002. It commences this way: This 57 year old patient presented with recent onset of dyspnoea associated with being easily fatigued. 16. Dr Dormer referred the plaintiff to Dr McEvoy and shortly afterwards to Dr Nikwan. As his health was being investigated concern arose about whether or not he had a heart condition as well as anything else, that is to say whether his breathing difficulties may have been caused by a heart problem. Initially it was thought that this was not so but later it became apparent that the plaintiff did have some heart difficulties and in August 2002 a stent was surgically inserted in a blood vessel in his heart. The insertion of the stent improved the plaintiff's condition considerably. 17. By 6 May 2003 Dr Nikwan was able to report that in his opinion the plaintiff's degree of breathlessness was not due to cardiac dysfunction as his left ventricular systolic function was almost within normal limits. He thought in short that the heart dysfunction was contributing less than 10 to 15 per cent of the plaintiff's breathlessness. 18. I digressed from a strict temporal recounting of what happened. As well as being sent to Dr Nikwan the plaintiff was sent to Dr David McEvoy, respiratory physician. He recorded complaints of shortness of breath walking for 100 metres on level ground and when climbing stairs and hills. The lifting of heavier objects, the doctor recorded, created difficulty for the plaintiff. The history included a history of smoking up to 30 cigarettes daily for 40 years, which smoking ceased in January 2001. He added: He has been a heavy drinker for 38 years. Currently he has a minimum of 12 standard drinks daily of beer from 4 pm each evening and up to 20 standard drinks daily. 19. At the foot of p 2 the doctor expresses this view: Overall the findings are consistent with chronic obstructive lung disease from smoking. There is also restriction of ventilation occurring as a result of bilateral asbestos pleural plaques which are quite extensive and minor lung parenchymal changes which could be attributed to asbestosis. The fine lower zone end inspiratory crackles would be consistent with asbestosis but are not nearly so specific in the presence of smoking related chronic obstructive lung disease. 20. The plaintiff has not resumed working. 21. The rest of the history unfolds by reference to the court case and the various doctors to whom he has been sent by various parties. Without reading all of the medical reports I think it tolerably clear that the consensus of medical opinion is that the plaintiff suffers from asbestos related pleural disease and the early stages of asbestosis. As to the latter part of the diagnosis I note that Dr Heiner thinks that to be so, Dr Allen thinks that it is so, Dr Fielding thinks that that is so and Dr Slaughter, a radiologist, supports that view. In regard to the latter see his report PX.6. 22. The question becomes, to what extent is the plaintiff incapacitated by these matters or these conditions. Dr Heiner gave evidence in the proceedings and supported his reports. It has been submitted about his evidence that the doctor became an advocate rather than an expert and I think that that submission is fairly made. I too formed the view that the doctor was advocating a point of view rather than dispassionately furnishing expert opinion. One of the things the doctor did was to conduct a test which involved the plaintiff walking in the doctor's rooms over a measured distance while certain measurements were made about him. Dr Heiner seemed to regard the results of the tests as demonstrating beyond question that the plaintiff had significant breathing troubles. On the other hand Dr Fielding looked at the results and said that while statistically the results suggested irregularity and breathing difficulty for the plaintiff, as a matter of medical practice he would not have been alarmed by them. 23. Dr Allen furnished reports and gave evidence in the proceedings. He was supportive of the plaintiff. I do not think the same criticism as was made of Dr Heiner can be levelled at Dr Allen, nor was it. At p 3 of his report of 15 July 2002 he expressed his view this way: In conclusion he is suffering from the following conditions, (a) benign asbestos pleural disease (i) pleural plaques (ii) pleural thickening. (b) early asbestosis. (c) Ischaemic heart disease with a past inferior and inferolateral myocardial infarction and with reduced left ventricular function. 24. The doctor went on in the next numbered paragraph as follows: In my opinion his asbestos related disease is contributing to his reduced exercise tolerance but not causing chest pain. I also believe that his cardiac disease is contributing to his reduced exercise tolerance roughly by an equal amount to the asbestos related diseases. 25. He modified that latter part of his opinion later. He added that it was difficult to be precise in these matters and he would value the opinion of a cardiologist. In the next paragraph the doctor wrote this: In my opinion his asbestos disease, which is fairly extensive already will continue to progress and in particular his asbestosis. 26. That is a matter which is not agreed by the experts. Pursuant to s 25B material was put in from Dr Michael Burns who said that he was of the view that asbestosis did not progress in this way. Dr Fielding testified that the condition progressed in some people and not in others and that it was not possible in respect of any one person to say whether the condition of asbestosis was likely to progress. I think, subject to one matter to which I will advert in just a moment, the Court is left with the position that a worsening of the condition is possible but not certain. The one piece of evidence to which the plaintiff points is that some later tests showed a change of modest degree suggesting that there had been a worsening. 27. On 17 March 2003 Dr Allen wrote, p 3: In conclusion there is evidence now that his lung disease is progressing in terms of both his restrictive element and also his diffusing capacity which indicates that his asbestosis is progressing in addition to his pleural disease. 28. The doctor writes other things in connection with the topic but I think there is no need to recite them at length at this stage. The doctor repeated his view in a letter of 29 May 2003 that he believed that the plaintiff would continue to deteriorate. He concluded that paragraph by saying: He currently has a moderate restrictive defect due to fairly extensive pleural disease. 29. He then went on to say that he thought that the lung disease meant that the plaintiff's life would be shortened by about seven years. The letter concludes with the paragraph which commences: I believe his asbestos related disease is the predominant cause of his dyspnoea and accounting for at least 90 per cent of this if not more. The severity of his lung disease is graded as class 2 (10 to 25 per cent impairment of the whole person). I would classify his incapacity as approximately 20 per cent impairment of the whole person solely from asbestos diseases. 30. There are a couple of things to be said about the doctor's conclusions. Firstly, when he gave evidence he was an acceptable witness and nothing in his demeanour would call into question the opinions that he offered. Secondly, as I have mentioned, not all doctors agree that a deterioration in the plaintiff's condition is to be expected. Thirdly, the measurement of impairment by reference to whole person impairment is a concept of with which we are not familiar in these courts. Perhaps it will be necessary to become familiar with it, but at this stage I am not quite sure how to interpret what those words mean. 31. I have taken some time to set out a description of what one of the specialists thinks is wrong with the plaintiff. It is convenient now to turn to the cross-examination of the plaintiff when he gave his evidence. He was cross-examined in a way to suggest that in August 2003 he had been engaged in building work at his house. The evidence suggests that he had acquired a Queenslander house which was cut in two and transported to a five acre block in the general area near his father-in-law's place. The house was located on the block and the parts joined together again and it was the plaintiff who was doing much of the work to do with reinstating and refurbishing the house. It was put to him that he had been observed enlarging a hole that had been dug by a machine with he, the plaintiff, using a crowbar and shovel, that he had wheeled barrow loads of cement to the hole and a post was put into the hole and cement from the barrow placed into it around the base of the post. That later he climbed up a ladder and used an electric drill on beams in the roof area of the house with a view to some bolting being done. The activities were observed over a couple of hours. The plaintiff acknowledged that he had done all those things. Dr Fielding thought that the ability to do such things was consistent with the loss which had been measured in various tests relating to his breathing difficulties. 32. Dr Allen thought that the plaintiff could do such things consistently with the test results that he, Dr Allen, had seen provided he could do it at his own pace. In this regard Dr Allen said that his assessments are based on lung function and he does not pay much attention to what people observe about the activities of a patient or a particular person. I think that gives a reasonable picture of the plaintiff's abilities, notwithstanding that his breathing difficulties have been confirmed on tests. 33. It is convenient I think to say something about the plaintiff's own evidence. He was a wordy man, often he would commence giving an answer and then change direction and then change direction again, but during the changes of direction he would keep talking. A number of times while he gave his evidence it seemed to me that he was doing the best he could to make sure that his case went well. Some topics on which I thought that tendency was evident are as follows: Firstly, in his affidavit and evidence in chief he made no attempt to describe the activities that he was engaged in in joining up his house and refurbishing it. Secondly. he was asked questions about the onset of breathlessness. He seemed to have difficulty acknowledging that the serious trouble started in December 2001 or early 2002 when he went to see Dr Dormer. Thirdly, he seemed to paint the brightest possible picture about his future income earning activities, although, as will become apparent, I do not accept that the brightest picture is the appropriate picture for him. 34. Nextly, he was asked why breathlessness would interfere with using a ride on mower or a tractor, which he asserted to be the case, and he could not proffer any reason why this would be. 35. Nextly, the fact that he enjoyed relatively normal social activities had to be drawn from him in cross-examination: for example, he and his wife go out to dinner each weekend. That was not volunteered. 36. Nextly, his estimates of the time it would take to slash five acres seem to me to be wildly overstated. 37. So that I think his evidence needs to be looked at fairly closely. I do not wish to decry the standard of work he did for MIM. Clearly when he did his work he did it well, as Mr du Preez readily acknowledged. I accept that is so. But overall I remain of the view that the plaintiff was keen to make sure that his case went as well as it could. 38. The next thing I think might be said in a summary fashion is that he has breathlessness associated with his exposure to asbestos and the conditions identified in respect of that exposure, but also there are concurrent ailments which affect him. They are some obstructive airway disease related to smoking and the effect on his breathing of his heart condition. As regards the smoking Dr Heiner in his report of 21 May 2003 p 7 attributed 20 per cent of his breathlessness to smoking. Dr Allen attributed 15 per cent. As regards the heart condition I have already mentioned that Dr Nikwan attributed less than 10 to 15 per cent of his breathing difficulties to his heart condition. 39. It is convenient I think then to turn to try to assess the damages. The first head of damage to be addressed is that of general damages. I have described the plaintiff's condition by reference to test results and the opinions of experts. I accept that he does have some breathing difficulties. To regularly have insufficient breath day after day is a bad affliction. The assessment of this head of damages to be undertaken bearing in mind the co-morbidities, that is the heart condition and the smoking effects. It should also, I think, take account of the possibility of worsening, that matter about which the experts are in disagreement. I think that the general damages ought to be augmented to some degree to take account of that fact. It will be necessary later to deal with future medical expenses. It seems to me that the need for such expenses will depend upon a worsening of the plaintiff's condition or substantially so and the general damages ought also take account of that possibility. 40. Bearing those matters in mind the figure for general damages which seems to me to be proper in this case is one of $80,000. Interest at 2 per cent on that proportion of the damages which is referrable to the past, namely, $35,000 might be allowed. 41. As regards economic loss an expert's report has been tendered by the plaintiff and by a defendant. The plaintiff's expert, Mr Thompson, has done a number of calculations based on premises which he acknowledges he has had to assume and I think that the assumptions upon which he proceeds are not appropriate in light of the evidence in the case. On this occasion I do not think that his report helps much. It seems to me that to be tolerably clear that around the middle of 2001 the plaintiff had disengaged from MIM, he had notified Mr du Preez that he was going off to attend to his father-in-law's cattle and would be less readily available to be called upon. He then went off and started working full-time with the cattle. In due course the father-in-law died and left the plaintiff and his wife a sum of money. Since then the plaintiff has contented himself with restoring the house on the five acre block. He has not sought work although on a number of assessments he is quite able to do some work and he himself acknowledges that he could do 19 hours work per week paid at the rate of $27 an hour if he could get such a job. 42. It seems to me that in effect the plaintiff has voted with his feet. He has stepped back from the world of regular employment. Associated with this fact is the fact that over the past few years his tax returns have shown very modest incomes. At p 6 of Mr Thompson's report at the paragraph numbered 4.6 he has set out what he describes as the true net profit from the plaintiff's business. Stated shortly those profits are as follows: Year ending 30 June 1997 $3,622. Year ending 30 June 1988 $11,862. Year ending 30 June 1999 $2,293. Year ending 30 June 2000 no records available. Year ending 30 June 2001 $3,488. Those are very modest returns. In light of them Mr Thompson adopted some notional income so that he might undertake his assessment of economic loss, but as I indicated earlier I see no warrant for proceeding in that fashion in this case. I do not want to over emphasis this next point but it is a consideration: that is if the history obtained by Dr McEvoy about beer drinking is right then that approach to life is not consistent with great exertion in the course of employment. Further, I think it points up the reality that the plaintiff had walked away from a life involving regular employment. 43. Submissions were made to the effect that par 44 of the affidavit, PX.1, suggests an intention on the plaintiff's part to re-engage in income earning activity. I regret that I do not see the contents of that paragraph in that light. The plaintiff asserts that in effect because the cattle property was then under control, that is by April 2002, he would have been in a position to recommence the manufacture of the steel crates and pallets. The chance to do such work with MIM or its subsidiary had gone. No step had been taken to further any introduction of the plaintiff to the people running the new premises for MIM, those people having their own storeman, and in a circumstance in which the plaintiff admits that he has some capacity for work the fact that he has taken no step at all to exercise that capacity speaks against par 44 having any persuasive significance. 44. I accept that the breathlessness complained of by the plaintiff would reduce his ability to do heavier work, but as was submitted by Mr McIlwaine, learned senior counsel for the Commonwealth, a diminution of earning capacity is compensable in the event that it produces financial loss. The Court was referred to Graham v Baker (1961) 106 CLR 340 at 347. In the joint judgment of Dixon CJ, Kitto and Taylor JJ the following appears: We mention this matter because it has been suggested that since an injured plaintiff is entitled to recover damages for the impairment of his earning capacity, the fact that a totally incapacitated plaintiff has, during the period of his incapacity, received his ordinary wages is not a matter to be taken into consideration. To be more precise, however, an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss. 45. In this case the plaintiff had elected, it seems to me, to make his life away from the world of employment. Acknowledging that the heaviest of labouring would not be possible for him because of his relevant sickness, nonetheless I am not satisfied on the balance of probabilities that any interference with his earning capacity would have been productive financial loss. That being so it seems to me that the claim for damages for loss of earning capacity ought not succeed either as to the past or into the future. 46. There is a claim for damages for past gratuitous domestic and attendant care. In support of that claim a report from Lesley Stephenson, of L J Stephenson Pty Ltd has been tendered in the proceedings. The functional status, which is the springboard for her opinion, mentions the following matters: tiredness, anxiety, shortness of breath, limited capacity to do things around the house, limited capacity for walking. It is submitted that the plaintiff has a much greater capacity to do things at home than was assumed by Ms Stephenson. Transcript p 19 to p 28 are quoted in support of that submission. I think the submission has force. Further, it is submitted that the plaintiff agreed that domestically nothing much had changed for him. Transcript p 30 to p 32 are said to contain evidence in support of that proposition. I accept the submission. 47. Acknowledging that the plaintiff has some breathlessness, I am not satisfied, he being independent in all activities of daily living that it has been demonstrated that he has the need for assistance. If things get worse in the future then a cushion has been built in in respect of general damages to take account of it. 48. The claim for damages for the provision of services ought not succeed. 49. The report of Ms Stephenson includes a section dealing with equipment that the plaintiff might come to need. That has been largely overlooked I think in addresses. The items are listed on p 11 of the report. The evidence does not permit the conclusion that these things have been shown to be needed at this stage. Nor does the evidence, it seems to me, permit the conclusion that they are more probably than not going to be needed in the future. The matters listed include a self draining shower recess. The plaintiff does not need that. A shower chair, a shower hose, a shower rail, toilet rails, a bath board, a bath rail, a shower hose, a ramp to the front of the dwelling. The evidence does not suggest that any of those things are needed. The list goes on, incontinence pads, a bed pan, a spillproof urinal. The plaintiff is able to manage his personal care. Sheepskin underlay and sheepskin pieces. The same comment applies. I do not think that aspect of the claim ought to succeed. 50. There is one head of damage which I have yet to deal with and that is the question of the damages for loss of expectation of life. This is not a mesothelioma case where a plaintiff's death is pending. There is evidence, however, from Dr Allen, which I have already recounted. It is uncontroverted that the plaintiff's life will be shortened by perhaps seven years. He is now 59. There is the uncertainty further about the effect that his heart condition has on his life expectancy and there is the fact that part of his breathing difficulties results from the after effects of smoking. The damages under this head are customarily awarded in a conservative amount. In this case the whole proposition is or ought to be subject to speculation, the real picture is not clear. 51. Having regard, however, to Dr Allen's opinion, it seems to me that a sum of $5,000 should be allowed in respect of this head. 52. As regards out of pocket expenses it is the expectation of those present that the Dust Diseases Board will pay for the medical expenses. If that proves to be wrong then the power of reconsideration might be invoked and the matter re-examined. 53. In the result then there will be verdict for the plaintiff for $86,400 plus costs. 54. The plaintiff may claim further damages should he develop mesothelioma, lung cancer or asbestos induced carcinoma. Mr A L McSpedden instructed by Turner Freeman appeared for the plaintiff Mr B Hughes instructed by A O Ellision appeared for the first defendant Mr R S McIlwaine, SC instructed by Australian Government Solicitor appeared for the second defendant 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.