Ness v State Rail Authority of New South Wales and Central Coast Area Health Service [2005] NSWDDT 32

Dust Diseases Tribunal of New South Wales

CITATION : Ness v State Rail Authority of New South Wales and Central Coast Area Health Service [2005] NSWDDT 32

William James Ness PARTIES : State Rail Authority of New South Wales Central Coast Area Health Service

MATTER NUMBER(S) : DDT28/96

JUDGMENT OF: Duck J at 1

Damages :- Lung cancer Non smoker CATCHWORDS: Causation Damages Chance of a recurrence of the cancer

LEGISLATION CITED: S5 Law Reform Miscellaneous Provisions Act 1946

DATES OF HEARING: 29, 30 November and 1 December 2004 15, 16, 17 March 2005

EX TEMPORE JUDGMENT DATE : 03/17/2005

FOR PLAINTIFF: Mr D Letcher QC with Mr A McSpedden instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR FIRST DEFENDANT Mr J Gracie instructed by Moroney Betts FOR SECOND DEFENDANT Mr B Ferrari instructed by Thompson Cooper

JUDGMENT:

JUDGMENT 1. I commence to give reasons in the case of William James Ness against State Rail Authority of New South Wales and Central Coast Area Health Service. I give the reasons ex tempore with all the deficiencies that that may produce because although there has been a lot of complex evidence given in the case the central matters for determination I think have become reasonably clear. 2. The plaintiff was born on 31 December 1931. He worked for the first defendant, the State Rail Authority from January 1949 to about January 1955 (see PX9 par 2). He joined the State Rail Authority as an apprentice fitter. He became a qualified tradesman fitter and after 1955 went off working in various jobs not related to these proceedings. His case against the State Rail Authority is that in the course of his employment with them he was exposed to the inhalation of asbestos dust and fibre which was negligent on their part and which produced in him certain effects including ultimately lung cancer. 3. The plaintiff worked for the second defendant, the Central Coast Area Health Service as a fitter from 7 July 1980 until he retired in 1997. His case against the second defendant is that between July 1980 and December 1987 he was again exposed, negligently, to the inhalation of asbestos dust and fibre in his work as a fitter at the Gosford Hospital and the hospitals which were near it and which its staff serviced. 4. It is the plaintiff's case that the lung cancer from which he undoubtedly suffered resulted from the exposure to asbestos in both employments and was the cumulative indivisible result of that exposure. As Professor Henderson put it at p 92 of the transcript lines 8 to 14: I regard his cancer as an indivisible singular outcome of his total cumulative asbestos exposure sustained over many years and in this respect the railway workshop exposure and the Mona Vale Hospital (sic) exposures would each have contributed causally towards the induction of his lung cancer. 5. It is important to state at the outset that the plaintiff has been effectively a non smoker all his life. There is a minor qualification required to that statement which is that when he was a young man, or in his teens, because some about him were buying cigarettes he bought a packet whereupon his older brother told him in no uncertain terms what he would do to him if he continued to smoke. Whether his brother's eloquence carried the day I do not know but it certainly had the desired effect and apart from that packet of cigarettes the plaintiff has never been a smoker. He has been treated by the experts in the case, knowing that, as a non smoker. 6. It is perhaps convenient to tell the story by reference to the development of medical symptoms and then to go back to look at questions of what caused them. The plaintiff said that the symptoms of breathlessness and fatigue and a feeling that he could not get enough air into his lungs commenced at about 1995 (see par 15 PX9). He was seen by Dr Michael Burns, thoracic specialist, in 1998. The doctor reviewed x-rays, indeed he reviewed a succession of x-rays commencing from 1988 onwards. He said of them the following: Those of 1993 and 1994 showed bilateral pleural plaques. There was some entrapped lung and rounded atelectasis at the left lung base and pleural thickening on the left side. There was transpulmonary bands and patchy basal fibrosis consistent with pulmonary asbestosis. In the 1994 films there was a new lesion in the left upper zone laterally. This was again another area of lung entrapment. The 1995 films were much the same. Those in 1997 showed that the left upper zone radiological lesion had diminished a lot in size. There was now pleural thickening at the right base in addition to the left and radiological evidence of asbestosis was more pronounced. His comments included the following: