Shepherd v Bluescope Steel (AIS) Pty Ltd [2006] NSWDDT 20

Dust Diseases Tribunal of New South Wales

CITATION : Shepherd v Bluescope Steel (AIS) Pty Ltd [2006] NSWDDT 20

PARTIES : William Shepherd (Plaintiff) Bluescope Steel (AIS) Pty Ltd (Formerly known as Australian Iron & Steel Pty Ltd) (Defendant)

MATTER NUMBER(S) : 90/05

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :- ARPD - Assessement of damages

LEGISLATION CITED: Dust Diseases Tribunal Act 1989

DATES OF HEARING: 18/05/06, 19/05/06, 01/06/06

DATE OF JUDGMENT: 06/01/2006

EX TEMPORE JUDGMENT DATE : 06/01/2006

Mr A C Scotting instructed be Alex Stuart & Associates appeared for the Plaintiff LEGAL REPRESENTATIVES: Mr T M Rowles instructed by Sparke Helmore appeared for the Defendant

JUDGMENT:

O'MEALLY P 1 This is an action for provisional damages by William Shepherd against Bluescope Steel (AIS) Pty Ltd brought pursuant to S 11A of the Dust Diseases Tribunal Act. The defendant was formerly known as Australian Iron and Steel Pty Ltd (AIS). 2 The statement of claim alleges that as a result of exposure to asbestos in the course of his employment by the defendant the plaintiff was negligently and in breach of statutory duty exposed to asbestos dust and fibre as a consequence of which he has contracted asbestos related pleural disease (ARPD) and asbestosis. In the course of argument it was conceded on behalf of the plaintiff that he did not suffer asbestosis and on behalf of the defendant that he suffers ARPD. 3 The issue for determination is whether his ARPD is the result of exposure to asbestos in the defendant's employ. 4 The plaintiff commenced employment by AIS on 9 January 1956 as an apprentice patternmaker. As an apprentice patternmaker he worked with wood and had no exposure to asbestos. On 24 August 1957 he terminated his apprenticeship as a patternmaker and entered upon an apprenticeship as a bricklayer, still in the employ of AIS. He ceased employment by AIS on 30 November 1957. Relevantly, his allegation now is that in the three months between August and November 1957 he was exposed to heavy concentrations of asbestos dust which caused or made a material contribution to his disease. 5 As a schoolboy, the plaintiff assisted his father who, seemingly, was a partner in a hot water service reconditioning business. His father, according to the plaintiff, sometimes brought water heaters home and worked upon them there. In return for the assistance he gave his father the plaintiff received pocket money. The reconditioning of hot water systems at home released an amount of asbestos into the atmosphere, though the plaintiff's evidence seems to suggest that he experienced no or no significant exposure to asbestos in the work he performed for his father. 6 It is relevant to record that the plaintiff is in receipt of payments of workers compensation from the Dust Diseases Board. The evidence does not enable me to say that the exposure to asbestos and his asbestos disease in respect of which the plaintiff has been found to be 50 per cent disabled by the Board's medical panel, relates to employment by the business his father conducted, or by the defendant, or by any other of a number of employers he has had during the course of his working life. He denied suggestions he was employed in his father's business and denied he had said that in such employment he was exposed to significant quantities of asbestos. There is no evidence that he was. He did, however, tell Mr O'Cass, an inspector of the Dust Diseases Board, that he was 'engaged' in servicing hot water tanks which required asbestos material to be removed and replaced. 7 In May 1991 the plaintiff was referred to Dr Bruce Cuthbert, a physician, because of dyspnoea, lethargy and recurrent bronchitis. He had had a persistent cough which ceased upon his giving up smoking some 18 months before that consultation. The reports of Dr Cuthbert are in evidence. They suggest that the examination was directed towards determining whether the plaintiff had cardiac disease and whether he experienced the consequences of smoking. To complete the picture in that respect, Dr Cuthbert expressed the view in August 1992 that the plaintiff's dyspnoea may have been related to a combination of obstructive airways disease related to cigarette smoking and impaired left ventricular function. He thought the latter might have been related to ischaemia. Subsequent examination, in particular lung function testing, excluded an obstructive defect, the relevance of that being an obstructive defect usually, though not exclusively, is associated with smoking. The plaintiff did not give a history of exposure to asbestos at any consultation with Dr Cuthbert, but neither does it appear from Dr Cuthbert's reports that his respiratory dysfunction was in any way associated with exposure to asbestos. 8 The plaintiff swore an affidavit on 3 January 2006. In that affidavit he recited his commencing employment by AIS as an apprentice patternmaker in 1956 and changing to a bricklaying apprenticeship. He said he did bricklaying for a period of four or five months. In that employment the plaintiff worked, he said, at two locations. One was in the blast furnaces where he undertook repair and refurbishment work for two or three months and the other was in the tin plate mill where he assisted in the construction of a new furnace. He said that work lasted for a period of one or two months. 9 It was agreed that the blast furnaces were about 100 metres in length, 10 metres in width and 3 metres in height. The exteriors were steel; inside, against the steel, the blast furnaces were lined with asbestos matting or sheets and bricks, between which asbestos caulking was inserted. 10 From time to time, at intervals of about three months, the asbestos lining and bricks were removed and replaced. The fact that the process occurred at three monthly intervals would suggest that it took considerably less than three months to complete. The removal of bricks was done by specialist teams, rather than by bricklayers or apprentice bricklayers. After a period of three months into apprenticeships and after attaining the age of 18 years, an age the plaintiff would have attained on 31 May 1958, apprentice bricklayers were permitted to lay bricks within blast furnaces. When an apprentice bricklayer embarked upon his apprenticeship, ordinarily, according to the evidence of Mr Cross, who also was employed by the defendant, an apprentice could not and would not have been directly involved in work which exposed him to asbestos. During the three monthly refurbishments, apprentice bricklayers were unlikely to have been present when blast furnaces were shut down and bricks and asbestos removed. Nevertheless, I think it safe to conclude that asbestos would linger in the atmosphere by reason of the confined space and enclosed nature of blast furnaces. Those who entered the blast furnace after the removal of bricks and asbestos would have been exposed to quantities of residual asbestos dust and fibres lingering in the air. 11 The plaintiff's oral evidence generally was consistent with his affidavit, though the description he gave of asbestos exposure was rather more fulsome when he gave oral evidence. Within the plaintiff's evidence there are, however, contradictions and there are inconsistencies between his evidence and contemporaneous records made at the time of consultation with doctors who were treating him. The doctors who were qualified for the purposes of this case by both the plaintiff and defendant, accepting the plaintiff's history of exposure to asbestos given to them, conclude that his asbestos disease is related to the asbestos exposure described to them. That history is much the same as his evidence. 12 There can be no doubt that the plaintiff's accepted ARPD is the result of exposure to asbestos. It becomes necessary, therefore, to determine whether that exposure occurred in the course of his employment by the defendant. 13 The first thing to be said is that it is highly unlikely that the plaintiff could have had extensive exposure to asbestos in the three months between August and November 1957. In his affidavit, the plaintiff swore he worked on blast furnaces for two or three months and for one or two months in the construction of the new tin plate mill. Such exposure as he may and probably did have, occurred when he worked within a blast furnace. Some might have occurred in the tin plate mill. 14 It is of importance to have regard to what the plaintiff told Dr Thompson, to whom he was referred in October 1999 by his general practitioner, Dr Grant. The reports of Dr Thompson and copies of his clinical notes are in evidence. Dr Thompson arranged for lung function studies to be undertaken and also for x-rays. Plain x-rays of 5 October 1999 showed bilateral pleural thickening in the lower two-thirds of the lateral chest walls and some blunting of the costophrenic angles. Blunting of the costophrenic angles is usually associated with asbestosis. Bilateral pleural thickening is consistent with asbestos exposure. The lung function tests were consistent with asbestos disease. Dr Thompson's clinical notes of the consultation of 25 October 1999 contain the word "asbestos", though the copy is of poor quality and seemingly incomplete. It is difficult from the notes alone to decipher the context of their content. 15 Dr Thompson, as his report of 25 October 1999 confirms, questioned the plaintiff about his exposure to asbestos. Relevantly included in that report of Dr Thompson is this: There does not appear to be any obvious occupational exposure to asbestos. His father was a boilermaker, but did not come home in his workclothes and, to Mr Shepherd's knowledge, was not involved with the use of asbestos. 16 In November 1999, it would seem, CT studies were conducted and they revealed bilateral calcified pleural thickening and diaphragmatic pleural plaques. These would be asbestos related. These findings and the radiology suggested asbestos exposure. 17 Soon after this consultation with Dr Thompson, that is on 10 January 2000, the plaintiff made application for workers compensation to the Dust Diseases Board. On 21 February 2000 the plaintiff was seen by Dr Thompson's locum, Dr Janjis. The clinical notes from Dr Thompson's practice are in evidence. The notes made on the occasion of the consultation with Dr Janjis, presumably by him or someone else associated with the practice, are in evidence. Under the heading "Work History" the plaintiff's employment by BHP as an apprentice patternmaker doing woodwork is recorded as having occurred between 1955 and 1960. I think there is no dispute that BHP and AIS were related corporations and the difference is immaterial. Significantly, it is noted: No known asbestos exposure. Father boilermaker, welding, no asbestos exposure. Mother housework. 18 This is similar to, though not identical with the history given to Dr Thompson at the time of the consultation in October 1999. It is relevant to record that the quoted extract from Dr Thompson's report of 29 October 1999 that the plaintiff's father was not involved with the use of asbestos, is inconsistent with the plaintiff's evidence. 19 In cross-examination, the plaintiff agreed that in February 2000 he remembered he had past asbestos exposure saying when asked: yes of course I did. I worked with it, didn't I? When he gave this answer, the plaintiff was being questioned about a consultation with Dr Thompson, but the consultation of February 2000 was not with Dr Thompson; it was with his locum, Dr Janjis. No doubt the confusion arose because Dr Janjis' report was on the letterhead of Dr Thompson. When these questions were put to him neither the plaintiff nor counsel for either party appreciated that the February 2000 consultation was with Dr Janjis. Oddly, the plaintiff also said he had no recollection of what he told Dr Thompson, and though he did tell the doctor he worked at the steel works, he did not tell him of asbestos exposure. Later the plaintiff gave evidence that he would have told Dr Thompson of asbestos exposure at the steel works, and, rather than saying to Dr Thompson he could not remember any asbestos exposure, gave evidence that he would have remembered, and the suggestion that he said he could not remember was wrong. 20 In evidence the plaintiff was questioned about his knowledge of the presence of asbestos at the defendant's works. His answer was that he knew asbestos was present because he was told so by his workmates. To say, as has been submitted, that I should not conclude that the plaintiff omitted to give a history of asbestos exposure, as distant from saying he did not work with asbestos, might have more force if it were a note only once made. In this respect it is important to bear in mind experience confirms that what a patient tells a doctor and what a doctor records are not always identical. Due allowance must be made for that phenomenon. The fact that when questioned by Dr Thompson and his locum, the plaintiff did not report asbestos exposure while employed by the defendant, is a matter which must be borne in mind in determining whether the plaintiff has satisfied the onus of establishing that his employment exposure was of such a degree and of such an intensity and of such a duration as was capable of causing his accepted asbestos disease. The fact that both Dr Thompson and his locum each recited the word "asbestos" in notes and referred to it in reports, must also be considered. 21 In evidence the plaintiff identified a number of men who worked with him when he was an apprentice bricklayer. Some of those are dead, with others he has lost contact or is unaware of their existence or location. However, a fortnight before he gave evidence, the plaintiff spoke to one of them, Mr Sidney Mountford. It would have been of considerable assistance to me and, if his evidence corroborated the plaintiff's, to the discharge of the onus of proof had Mr Mountford been called. He was not called and no explanation for the failure to call him was given. I conclude therefore that his evidence would not have assisted the plaintiff's case. 22 I am not satisfied that the plaintiff worked in the demolition of brickwork in blast furnaces. This is because such work was done by gangs of specialised tradesmen. The plaintiff has satisfied me, however, that probably under supervision he did some work connected with laying bricks within a furnace and in this work he was exposed to some asbestos. I am not satisfied that the work the plaintiff described as having been performed by him was in fact performed by him. He would not have been allowed to lay bricks alone in the blast furnace because he had not reached the age of 18 years. Even though he was described as a third year apprentice, he was at the beginning of the bricklaying trade. At that time he would lack bricklaying skills. The admissable evidence does not enable me to say whether, nor if so to what extent, he was exposed to asbestos in the tin plate mill. 23 Internal contradictions within the plaintiff's evidence and inconsistencies between what he told Dr Thompson and Dr Janjis on the one hand and his evidence on the other, lead me to doubt the accuracy of his evidence. It well may be that because these events occurred nearly fifty years ago the plaintiff's memory is not accurate and he has been moved to reconstruct circumstances as he now believes them to be. Because of the failure to call corroborative evidence, and in particular Mr Mountford, and because of the contradictions and inconsistencies, I am not satisfied that the plaintiff was exposed to sufficient asbestos in his employment by AIS to cause his present condition. 24 For the purposes of this case, it is conceded by counsel for both parties that ARPD is a divisible injury. All asbestos exposure other than that which is de minimis would make a material contribution to that disease. The plaintiff has satisfied me that he was exposed to a small quantity of asbestos sufficient to contribute to not more than 5 per cent of his disease. I am not satisfied such exposure would contribute to any need for future care or loss of expectation of life or to any other head of damages ordinarily available to a plaintiff before this Court. The plaintiff does suffer exertional dyspnoea and to a degree his life has been adversely affected. I would have thought that the sum appropriate to compensate the plaintiff for the total effects of his disease, that is to say if all of his ARPD were compensable by way of general damages, would be $75,000. The plaintiff is entitled to 5 per cent of that sum, that is $3,750. 25 There will be a verdict for the plaintiff and judgment in the sum of $3,750. 26 The defendant will pay the plaintiff's costs as agreed or assessed. 27 I order that the plaintiff may claim further damages should he develop asbestosis, mesothelioma, asbestos related carcinoma or any of them.