William Melville Best v Yellow Express Carriers Ltd (in liquidation) and anor [2004] NSWDDT 46

Dust Diseases Tribunal of New South Wales

CITATION : William Melville Best v Yellow Express Carriers Ltd (in liquidation) and anor [2004] NSWDDT 46 William Melville Best PARTIES : Yellow Express Carriers Ltd (in liquidation) H Brightwell and Sons Pty Ltd MATTER NUMBER(S) : 172 of 2004 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Damages :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 24/11/04 EX TEMPORE JUDGMENT DATE : 11/24/2004

FOR PLAINTIFF: Mr D G Letcher QC instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR 1st DEFENDANT: Mr W P Y Austron instructed by Leigh Virtue and Associates FOR 2nd DEFENDANT: Ms L P McFee instructed by Leigh Virtue and Associates

JUDGMENT:

1. Mr William Melville Best was born in Sydney on 28 December 1925 and presently lives in Booroomugga Street, Cobar, at which address he will soon die. His death will be caused by the disease of mesothelioma. He alleges that this disease was caused by the inhalation of asbestos dust and fibre in his employment by Yellow Express Carriers Ltd (in liquidation) (Yellow Express) and H Brightwell & Sons Pty Ltd (Brightwells) for whom he worked transporting bakers' ovens. He worked for Yellow Express in this occupation between 1958 and 1972 and for Brightwells for approximately one and a half to two years between 1973 and 1974. 2. Each defendant concedes that as the plaintiff's employer it owed to him a duty, which duty extended to protecting him from the inhalation of all asbestos dust and fibre. It is the contention of the defendants that either (a) Mr Best inhaled no asbestos dust or fibre in their respective employ or (b) that if he did, such inhalation was de minimis and did not cause his disease. 3. Mr Best gave evidence before me and I accept him to be an honest witness. He was exposed to some asbestos dust and fibre as an apprentice in the 1940s. However, the defendants make no point of this exposure which appears to be relatively insignificant. In any case it is not alleged by either defendant that it was the cause and sole cause of his mesothelioma. 4. In his work transporting bakers' ovens in both employments Mr Best was required to load the ovens by slings and lifting equipment onto the backs of trucks and transport them to the place in which they were to be installed. I have evidence before me by persons engaged in the manufacture of bakers' ovens at the relevant time that the bakers ovens were insulated to some degree with asbestos tape, asbestos rope and asbestos millboard. 5. The plaintiff identified asbestos millboard as very thick white cardboard-like sheets or pads placed around fittings. Such a description accords with the nature of that substance and there is evidence from Mr Gett and Mr Owers that asbestos millboard was applied to the ovens. Mr Best was tested as to whether in fact he came in contact with millboard but, because he was able to identify the material and because it was positioned where he may come in contact with it I accept that he was exposed to that particular material. 6. In the course of his work these asbestos materials would have been very probably brushed by the lifting slings or gear or by the plaintiff as he clambered over the machines. 7. It is the case that the plaintiff mistakenly identified rockwool, a fibrous material placed around the ovens, as asbestos, and it is on this account that the reliability of his evidence as to the extent of his exposure is contested. I find that the balance of his evidence is reliable. 8. Not only did Mr Best have to deliver the ovens, which gave rise to some inhalation of asbestos dust and fibre, but he was charged by his employers with removal of old ovens. He says, and I accept, that when he was there to take away the old ovens the fitters disturbed old insulation on those ovens and removed lagging around the air ducting and flues. In his affidavit Mr Best identified the ducting insulation around those flues consistently with it being millboard and not at all like the fibrous rockwool which he misdescribed as asbestos. There was also asbestos tape which lined the flanges which were to be joined when large ovens were transported in two pieces. 9. There is evidence that Mr Best attended upon the factories where the ovens were manufactured and it does not seem other than probable that he was there exposed to the residual dust and fibre in the atmosphere created by the manufacturing process. Even without such exposure it is patent to my mind that in the course of his employment with each defendant Mr Best inhaled asbestos dust and fibre and that that inhalation was in consequence of a breach of duty by each defendant. 10. The defendants rely very much upon the issue of causation and submit that even if there were such inhalation it was de minimis and could not constitute a material cause of the plaintiff's mesothelioma. 11. The report of Professor Henderson is in evidence before me. Professor Henderson says that there is no minimum threshold dose of inhaled asbestos which has been delineated below which there is no increase in the risk of mesothelioma. It is clear that the employment of Mr Best constituted an exposure above background exposure. While the extent of the excess exposure was in Professor Henderson's assumptions greater than the actual exposure, because he was told that the rockwool was asbestos, I conclude that the exposure of this plaintiff in the course of his employment did constitute a material increase in risk and it is that risk which has come home. I draw this inference more confidently because the defendants call no medical or expert evidence. 12. The plaintiff is entitled to an award of damages. 13. I am particularly obliged to each of the three counsel who appeared before me in their concessions that an order of general damages in the sum of $150,000 is not outside the realm of discretionary considerations and is not inappropriate in the circumstances. 14. I am also very grateful for Mr Letcher's concession that the amount which may be properly awarded for past and future care is $50,000. This concession, it should be noted, is made in the light of evidence upon which I may have found a greater sum. 15. The amount for loss of expectation of life is conceded by the defendants to be not inappropriately $15,000. The amount for past out of pocket expenses is $2,370.85. I allow interest arbitrarily in the sum of $3,000 upon the general damages. 16. Verdict and judgment for the plaintiff in the sum of $220,370.85. 17. Leave to the cross-defendants to issue cross-claims on or before 30 April 2005.