Virtu v Cockatoo Dockyard Pty Ltd [2003] NSWDDT 16

Dust Diseases Tribunal of New South Wales

CITATION : Virtu v Cockatoo Dockyard Pty Ltd [2003] NSWDDT 16 PARTIES : Angela Virtu as Administrator Ad Litem of the Estate of the late Giuseppe Virtu Cockatoo Dockyard Pty Ltd ACN 000 0250 918 MATTER NUMBER(S) : 374 of 2002 JUDGMENT OF: O'Meally P at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: Griffiths v Kerkemeyer (1977) 139 CLR 161; Sullivan v Gordon [1999] 47 NSWLR 319 DATES OF HEARING: 27/09/02, 24/06/03 & 03/09/03 EX TEMPORE JUDGMENT DATE : 09/03/2003

FOR PLAINTIFF: Mr P E Blacket, SC and Mr R A O'Keffe instructed by Slater & Gordon. LEGAL REPRESENTATIVES: FOR DEFENDANT: Ms W Strathdee instructed by Phillips Fox.

JUDGMENT:

1. This is an action against Cockatoo Dockyard Pty Ltd (the defendant) by Angela Virtu (the plaintiff) as Administrator Ad Litem of the estate of her late father, Giuseppe Virtu. 2. The late Mr Virtu was employed by the defendant from 1960 until 1990. In the course of his employment he was exposed to asbestos dust and fibre. He was, until 1991 or thereabouts, a smoker of cigarettes and had, according to the history given to one doctor, a 50 pack year history of smoking. One pack year, as is well known, equates to one packet of 20 cigarettes smoked each day for one year. 3. In August 2002 whilst Mr Virtu was an in-patient at Royal Prince Alfred Hospital a diagnosis of bronchogenic carcinoma was made. His carcinoma was of an epithelial kind and typically one caused by cigarette smoking. Nevertheless, because he had radiological and clinical evidence of asbestosis, the defendant concedes that Mr Virtu's exposure to asbestos made a material contribution to the carcinoma and accepts that it is liable to pay damages to his estate. 4. Shortly after the diagnosis was made, that is to say on 6 September 2002, a Statement of Claim was issued. Orders concerning the preparation of the case were made in the interlocutory list on 9 September 2002. On 26 September 2002, because the health of Mr Virtu was in a parlous state arrangements were made for the taking of his evidence at his home at 8 Steward Street, Leichhardt on the day following. 5. On 27 September 2002 counsel and myself attended his home. An affidavit, which had been sworn the day before, was admitted into evidence and some oral evidence was taken. I think it should be observed that, at that time, Mr Virtu was seriously ill and virtually moribund. Though he did respond to questions, the answers he gave were short, for the most part only of about three words or so, and it was apparent that he was having great difficulty in speaking. I mention these matters because in submissions Senior Counsel for the plaintiff urges me to accept at face value the assertions made in the affidavit of the late Mr Virtu and because of the absence of cross-examination on particular issues.