Dust Diseases Tribunal of New South Wales CITATION : Bathis v Wallaby Grip (BAE) Pty Limited [2004] NSWDDT 13 PARTIES : Ronald Bathis Wallaby Grip (BAE) Pty Limited MATTER NUMBER(S) : 39 of 2003 JUDGMENT OF: Walker J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 27/04/2004 DATE OF JUDGMENT: 04/28/2004 FOR PLAINTIFF: Mr A Leslie, QC, instructed by Turner Freeman. LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr Wallace instructed by Hicksons. JUDGMENT: THE CLAIM Ronald Bathis claims provisional damages against Wallaby Grip (BAE) Pty Limited in liquidation, pursuant to the provisions of s 11A of the Dust Diseases Tribunal Act 1989. HISTORY OF THE CLAIM 1. The plaintiff proceeds by way of amended statement of claim dated 17 April 2003 in which he claims damages for negligence against the defendant as well as making claims for breach of statutory duty pursuant to s 25(2) of the Factories and Shops Act 1912 and s 41(2) of the Factories, Shops and Industry Act 1962. The wrongdoing alleged by the plaintiff is that he was negligently exposed to inhaling asbestos dust and fibre in his employment with the defendant at its premises at 157 Canterbury Road, Bankstown, between 31 October 1970 and 31 December 1979. 2. The plaintiff's case is that as a result of that exposure he has contracted asbestos related pleural disease (hereinafter referred to as ARPD). Mr Bathis seeks provisional damages on that account but reserves his right pursuant to s 11A to claim further damages should he develop the following conditions: • Asbestosis • Asbestos related lung cancer • Pleural mesothelioma • Peritoneal mesothelioma • Asbestos induced carcinoma of any other organ. 3. The defendant instructed Hicksons solicitors to put on a defence which was duly filed on 27 February 2004. It put every possible matter in issue. 4. Allianz Australia Limited sought and was granted leave by President O'Meally to be appointed designated insurer of the defendant pursuant to the provisions of s 151AC(4) of the Workers Compensation Act 1987. 5. Tobias Julian Tancred, a solicitor employed by Hicksons acting on behalf of the defendant filed an affidavit dated 4 June 2003 in which he advised the Court that at the relevant times the insurers of the defendant were • CGU Insurance Limited, (1974 to 31 July 1975) • NEM Insurance Limited, (31 July 1975 to 31 December 1978) • Allianz Australia Limited, (31 December 1978 to 31 December 1979). 6. On 8 April 2004 Alan William Blanch, the solicitor on the record for the defendant, gave notice to its official receiver of his intention of ceasing to act for the defendant. On 16 April 2004 Mr Blanch duly filed a notice of ceasing to act. 7. When this matter came on for hearing at 10 am on 27 April 2004 there was no appearance on behalf of the defendant, nor was there any communication with the Court from the official liquidator concerning any intention to appear. 8. Mr Leslie of Queen's Counsel representing the plaintiff advised the Court that his instructions were that legal representation for the defendant was withdrawn because the insurer instructing Hicksons had decided to rely upon the decision of the Court of Appeal in Orica Limited and Another v CGU Insurance Limited (2003) NSWCA 331, a judgment delivered on 11 November 2003. In the circumstances Leslie QC asked the Court to proceed with the trial in the defendant's absence. 9. Accordingly I determined to exercise my discretion under rule 34.5(b) of the Supreme Court rules and proceeded with the trial to verdict. THE PLAINTIFF'S EVIDENCE 10. Ronald Bathis gave evidence per medium of his affidavit of 27 November 2003. The substance of that evidence was as follows: A. Exposure to Asbestos · Mr Bathis said he started work at the defendant's Bestobell factory in Canterbury Road Bankstown as a fitter and welder in 1974. · Between 1974 and 1977 he was exposed within that factory to large quantities of asbestos dust and fibre in the following circumstances: · On a daily basis he walked through the gland packing section of the factory in which asbestos braid was woven into gland packing. There was always asbestos dust and fibre on the floor of that section. · He also walked on a daily basis through the factory's mill machine area where raw asbestos was fed into milling machines. This section was very dusty with asbestos dust and fibre floating in the air. He needed to enter this section because his bundy machine was located there. · In the same enclosed area as the mill machine, grinding machines operated into which raw asbestos was fed. The workers there were covered in asbestos dust. The area had two large doors which were left open allowing the dust to circulate throughout the factory. · There was also dust and fibre on the floor of the factory workshop where repairs to the machines were carried out. · From time to time the plaintiff entered the asbestos storage room to perform welding tasks. That was an environment full of clouds of asbestos dust and broken bags of raw asbestos. · The plaintiff worked in the machine shop which was only 30 metres from the asbestos mill which spread dust throughout the shop. Cleaners working on the floor stirred up accumulated dust creating clouds of asbestos dust and fibre in his workplace. · One of the plaintiff's tasks was to repair expansion joints in hoses. That task involved removing asbestos cloth used to insulate the joints. To do so he had to tear the cloth, causing asbestos to get on his hands and clothes. · The machine shop was adjacent to the loading dock where broken bags of asbestos being moved by forklifts released clouds of dust which covered the floor. · In about 1977 the asbestos side of the business was closed down. B. Failure to Warn or Protect 11. The plaintiff's evidence was that he was never told that asbestos or fibre was hazardous to his health, nor was he provided with a mask or any protective clothing. The air extraction system in the factory was not coping with the dust and was not improved. The applicant's evidence is that if the defendant had warned him that asbestos was injurious to his health he would have either demanded protection or left the job. DUTY OF CARE 12. To prove negligence the plaintiff must first prove that the defendant owed him a duty of care. Since 1937 the toxicity of asbestos and its hazards to workers' health in industry has been well known. see Bendix v Barnes (1997) 42 NSWLR 307 at 329(g). By 1950 it was well known, not only that asbestos was toxic and dangerous but that it was carcinogenic and was capable of causing fibrosis leading to death of workers. By 1962 it was well known to asbestos manufacturers that asbestos as a generic substance was hazardous to health and could cause asbestos related disease. (see Bendix v Barnes. Since Burnie Court Authority v General Jones Pty Limited (1994) 179 CLR 520 at 556 to 557 the High Court has recognised that a person who takes advantage of or control of premises to introduce a dangerous substance to carry on a dangerous activity or to allow another to do one of those things, owes a duty of reasonable care to avoid a foreseeable risk of injury or damage to the person or property of another. 13. It is patently clear from the plaintiff's evidence that his employment with the defendant between 1974 and 1977 exposed him to very large quantities of asbestos dust and fibre throughout each day he worked. The Court of Appeal pointed out in Baldwin v Plane (1998) 17 NSWCCR 434 at 448 that it is futile for an employer which exposed an employee who now has an asbestos related disease to substantial asbestos dust during a period within the last 35 years to litigate foreseeability in the Dust Diseases Tribunal in other than exceptional circumstances. No such circumstances are pleaded or are evident in this case. 14. Accordingly, having considered all the evidence I find on the balance of probabilities that the defendant had a duty of care not to expose the plaintiff to asbestos dust and fibre. BREACH OF DUTY OF CARE 15. The plaintiff's evidence establishes that the defendant between 1974 and 1977, despite being aware since at least 1962 and probably well before that date, that the inhalation of asbestos could cause asbestos related disease including terminal carcinomas, failed to take any measures to protect its workers and specifically the plaintiff from unsafe concentrations of asbestos dust and fibre in the factory environment. No safety equipment such as masks or protective clothing was provided, no extraction systems to keep the asbestos dust out of the air or off the floors was installed. Workers were not warned that the product they were working was liable to kill or seriously disable them. 16. I am satisfied on the balance of probabilities that the concentrations of asbestos in the air and on the floor of the defendant's factory were sufficient to constitute a breach of the defendant's duty of reasonable care. THE STATUTORY COUNTS 17. Having found negligence proved at common law it is superfluous for me to address in detail the two statutory accounts made under the Factories Act. Suffice to say that liability under those statutes is strict and the evidence is overwhelming that large amounts of asbestos were allowed into the atmosphere and workplace at the defendant's factory without effective measures being taken at the relevant time to protect workers against the inhalation of asbestos. I take the view that the plaintiff on the balance of probabilities must succeed under those counts as well. INJURY 18. The plaintiff having established that the defendant was negligent must then prove that negligence injured him by causing him to develop ARPD. He relies to prove this condition was work-related on the evidence of Associate Professor Dr Bryant, a thoracic physician of 25 years' experience. Dr Bryant's report of 13 November 2002 takes a work history which, I note, coincides with the plaintiff's evidence. He then recounts his findings on clinical examination, notes the radiology and the lung function test and finds: · diffuse pleural thickening at the base of the right lung · transpulmonary bands on the right underlying the area of pleural thickening · changes of diffuse interstitial fibrosis at the base of the right lung with associated traction bronchiectasis · similar but less extensive changes at the base of the left lung. On the basis for these findings Dr Bryant expressed the opinion that because of the extent of the changes he describes, their localisation in the lung distant from areas of benign asbestosis, related pleural disease, and his clinical findings of bilateral crepitations, the diagnosis of early pulmonary fibrosis was appropriate. However, Dr Bryant also noted in the CT scan "bilateral mid-zone ground glass change" which he thought suggestive of additional pathology within the lungs. He explained that ground glass effect is thought to represent active inflammatory change due to a combination of either alveolitis or bronchiectasis, that is inflammation of the pulmonary compartments of the lung and/or their small airways. Dr Bryant said such changes could be idiopathic or caused by past cigarette smoking. Nevertheless his ultimate conclusion was that the plaintiff's disability "is partly related to his respiratory diseases and partly due to arthritic changes and a spinal pain syndrome" . He went on to assess the reduction in diffusing capacity which, using the American Medical Association guidelines, he assessed at 30 per cent of the whole of the body. Then to complicate matters even further he added the rider: For the reasons described above it is possible that this impairment is at least partly due to steroid-responsive non-asbestos related inflammatory change in the lungs. 19. Dr Byrant wanted a trial before he made a final assessment. There was no such trial or further assessment. 20. Professor Breslin, the defendant's equally eminent thoracic physician rejects Dr Bryant's opinion expressing the view that: In the absence of pleural plaques a history of asbestos exposure that was not heavy and radiology that is not characteristically that of asbestosis I am of the view that this man does not have asbestosis and there is no diffuse pleural thickening. 21. He explains the plaintiff's lung abnormalities entirely on the basis of his long history of cigarette smoking. I must say that I was confused by Dr Breslin's report. He claims he got the impression from Mr Bathis that his workplace was separated by a wall from other areas of the factory and he never needed to go into the building where the asbestos was being made. That history is in stark contrast to the plaintiff's sworn evidence which attests to a great deal of exposure to asbestos dust and fibre. I can only assume Dr Breslin has failed to get an accurate history. That is a fundamental flaw in his report and makes it difficult to give much weight to his opinion. 22. Further, despite the fact that he asserts in paragraph 4 of his report of 8 September 2003 that there is "an absence of pleural plaques" and "there is no diffuse pleural thickening". The CT scan of 4 February 2002 shows two areas that even Dr Breslin says could be pleural plaques and the CT scan of 9 July 2002 shows "some localised pleural thickening". Given these apparent inconsistencies I find that I am more comfortable with Dr Bryant's evidence in this case and on the balance of probabilities accept his diagnosis that as a result of his exposure to large quantities of asbestos dust and fibre between 1974 and 1977 plaintiff has contracted asbestos related pleural disease characterised by pleural plaques, diffuse pleural thickening at the base of both lungs and diffuse interstitial fibroses at the base of the right lung. DAMAGES 23. The plaintiff relies on Dr Bryant (whose evidence I have accepted) to ground his claim for general damages on the ground that he has a 30 per cent permanent impairment of the whole of the body. His forensic difficulty is that Dr Bryant also opines that it is possible that this impairment is at least partly due to steroid responsive non-asbestos related inflammatory changes in the lungs and airways. There is no evidence before me to assist in determining whether that possibility might be a probability because the trial suggested by Dr Bryant was either not taken or not reported upon. In those circumstances I can only do the best I can with the evidence before me in assessing damages that solely relate to the asbestos related disease I have found. 24. The plaintiff at paragraphs 41 to 50 of his affidavit sets out in detail his breathlessness since 1993, his distress associated with learning about the nature of his disability and its possible sequelae, his difficulties in walking up hills and stairs, difficulties performing household tasks and maintenance of his home, problems with bending and problems with personal hygiene, lethargy after activity, insomnia from breathlessness and anxiety. The plaintiff tells the Court that his daughter assists him from time to time but he is very independently minded and gets upset by the need to be assisted. The plaintiff is 77 years of age and in the normal course of events will have another nine years of pain and suffering to endure. 25. To my mind the plaintiff's major disability is the reduction in his diffusing capacity, that is breathlessness caused by an inability to use all the oxygen he inhales which is an asbestos related condition. While he gave up smoking over a decade ago, given Dr Bryant's rider, I take the view on the balance of probabilities that residual inflammation from smoking is making, albeit not a major contribution to his total disability, a material contribution. 26. Taking all the evidence into consideration I formed the view that the plaintiff is entitled to a more modest verdict than that suggested by Leslie QC and that I should award a verdict of $65,000 for his general damages. OUT OF POCKET EXPENSES 27. There is only one account for out of pocket expenses and that relates to the Health Insurance Commission, reimbursement of $946. 28. In the result there should be a verdict for the plaintiff in the sum of $65,946. ORDERS I make the following orders: 1. The plaintiff is entitled to a verdict for provisional damages of $65,946 2. The defendant pay the plaintiff's costs 3. The plaintiff may claim further damages should he develop asbestosis, asbestos related lung cancer, pleural mesothelioma, peritoneal mesothelioma, or asbestos related induced carcinoma of any other bodily organ. I make the order of judgment. Liberty to apply for further costs if appropriate. 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.