Agresta v Sydney Water Corporation and Anor [2004] NSWDDT 8

Reported Decision (2004) 1 DDCR 450

Dust Diseases Tribunal of New South Wales

CITATION : Agresta v Sydney Water Corporation and Anor [2004] NSWDDT 8 Sebastiano Agresta PARTIES : Sydney Water Corporation Telstra Corporation MATTER NUMBER(S) : 245 of 2002 JUDGMENT OF: Duck J at 1 CATCHWORDS: :- LEGISLATION CITED: S 44, Safety Rehabilitation and Compensation Act 1988 S 51(xxxi) Australian Constitution Act Commonwealth of Australia v Holland and Commonwealth of Australia v Sandiford (1991) 24 NSWLR 198; Georgiadias v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297; CASES CITED: Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; Mohr v Berrigan Quarry Pty Ltd (In liquidation) & Others (1995) 11 NSWCCR 355; Macquarie Pathology Services v Sullivan [1995] NSWCA DATES OF HEARING: 10/02/04 & 15/04/04 EX TEMPORE JUDGMENT DATE : 04/15/2004

FOR PLAINTIFF: Mr A J Leslie, QC instructed by Turner Freeman. LEGAL REPRESENTATIVES: FOR FIRST DEFENDANT: Mr J Sharpe instructed by Phillips Fox FOR SECOND DEFENDANT: Mr S E Torrington instructed by Sparke Helmore

JUDGMENT: 1. The plaintiff brings proceedings for damages against two defendants, the Sydney Water Corporation, first defendant, and Telstra Corporation Ltd, second defendant. In a sense his story is easy to tell. He is a man born in Italy on 30 October 1927. He married on 29 December 1956. On 4 October 1960 he arrived from Italy to live permanently with his family in Sydney. From 1960 to 1963 he was employed as a labourer by excavation subcontractors working for the Water Board. His affidavit discloses that he worked in sewerage trenches in the Northern suburbs of Sydney. He worked with a jackpick and shovel excavating trenches in what is described in his affidavit as "sandstone country." The work he said was very dusty work. 2. From about 1963 until 1986 he worked as a labourer for the Australian Telecommunications Authority. Whatever identity it has had over the years it has been common ground in the present proceedings that Telstra Corporation Ltd stands in the place of all such authorities, at least for the purposes of this case. His work with the second defendant in its various forms involved the excavation of trenches for telephone lines in what the plaintiff described at par 10 of his affidavit as "sandstone country of the northern suburbs of Sydney." He said that he worked from depots in Mona Vale, Dee Why and French's Forest. The work that he did in that period of his life involved excavating for telephone lines. He worked with a jackpick and shovel. Sometimes he operated a ditchwitch. He said at par 11: My work in telephone trenches was very dusty work. 3. For at least two days weekly his body and clothes were covered in sandstone dust at the end of each day. He was also exposed to the dust associated with fibrous cement products. 4. In 1986 he had some ill health affecting his limbs. At about that time he had fallen into a trench and hurt a knee. His employment formally came to an end with Telstra on 11 May 1988. On that date he was formally terminated. 5. His case is that as a result of the exposure to dust in those two employments he developed silicosis and breathlessness related to exposure to silica. The silicosis led in turn to silicotuberculosis, an infective condition which was satisfactorily treated, and also to pneumonia. The case has taken time and been made difficult because the plaintiff suffers from a plethora of conditions not related to his work. Matters adverted to in various parts of the evidence include low back disorder accompanied by pain, neck pain, he has suffered from rheumatoid arthritis, a matter to which I need to return, he has had problems with his thyroid, he suffers from thyrotoxicosis, he had a broken left hip when he fell from a chair, he suffers from myeloma, glaucoma, leukemia, diabetes and sleep apnoea. He has previously had a duodenal ulcer and cholecystectomy. The mechanics of the hearing were made a little more difficult than was usual because the plaintiff gave his evidence through an interpreter and there were times when the interpreter had some difficulty rendering concepts from English to Italian and vice versa. 6. The plaintiff complains now of breathlessness. There is a dispute as to whether that is properly to be regarded as resulting from silicosis or whether it is to be properly explained by the fact that for a time during his adult life he was a smoker. There is at least the possibility that part of his breathlessness is to be explained by a condition of rheumatoid arthritis, from which he undoubtedly suffers, and from fibrosis associated with that condition. 7. It is convenient I think to go to the medical material in the case. The doctors do not agree about a number of things. The first report tendered was that of Dr Michael Cohen, a consultant rheumatologist. It bears date 13 June 2001 and forms part of PX2. He was seeing the plaintiff for what he described as symmetrical polyarthritis. He instituted treatment of the plaintiff for rheumatoid arthritis which the doctor described as very aggressive and resistant disease. The treatment was not straightforward. Dr Cohen recorded at the top of p 2 of this report that between 1995 and 1996 the plaintiff developed an increase in his background level of dyspnoea. He was referred to Dr Keith Burgess, respiratory physician. Dr Cohen's comment about the referral is: He made a diagnosis of probable silicosis with other possibilities being rheumatoid, lung disease and pulmonary disease secondary to drug therapy. Subsequently, the diagnosis of probable silica tuberculosis was made. Treatment was undertaken for the effective component of the latter condition with there being an adequate clinical response. The doctor went on to describe the diagnosis in the plaintiff of muliple myeloma, a condition not sought to be related to his work with the defendants. He described further the development of type II diabetes melitis. Those conditions are discussed in the report. The doctor goes on to discuss the relationship between rheumatoid arthritis and silica exposure. I think it fair to say that his conclusion is, as is the conclusion of other experts in the case, that there is a weak association between the two but not an association sufficiently strong to say that on the balance of probabilities one leads to the other. Indeed, Dr Cohen, having discussed the issue wrote at the top of p 3 of his report: