Lawrence v BHP Billiton Ltd and Anor [2003] NSWDDT 19

Reported Decision (2003) 1 DDCR 50

Dust Diseases Tribunal of New South Wales

CITATION : Lawrence v BHP Billiton Ltd and Anor [2003] NSWDDT 19 Edward Lawrence PARTIES : BHP Billiton Ltd Amaca Pty Ltd MATTER NUMBER(S) : 23 of 2003 JUDGMENT OF: O'Meally P at 1 CATCHWORDS: :- Limitation Act (SA) 1936 Industrial Code (SA) 1920 LEGISLATION CITED: Industrial Code (SA) 1967 Broken Hill Company's Steel Work Indenture Act (SA) 1958 S 11A, Dust Diseases Tribunal Act 1989 CASES CITED: DATES OF HEARING: 6-7/07/03 & 3-4/09/03 EX TEMPORE JUDGMENT DATE : 09/04/2003

FOR PLAINTIFF: Mr J L Sharpe instructed by Turner Freeman. LEGAL REPRESENTATIVES: FOR FIRST DEFENDANT: Mr D K Jordan instructed by Piper Alderman. FOR SECOND DEFENDANT: Ms W Strathdee instructed by Phillips Fox.

JUDGMENT: 9 Dust Diseases Tribunal of New South Wales Matter Number DDT23 of 2003 Edward Lawrence v BHP Billiton Ltd (Formerly The Broken Hill Proprietary Company Ltd) First Defendant Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) Second Defendant 4 September 2003 JUDGMENT O'MEALLY P 1. This is an action for damages by Edward Lawrence against BHP Billiton Ltd and Amaca Pty Ltd. BHP Billiton Ltd was formerly known as The Broken Hill Proprietary Company Ltd (BHP) and Amaca Pty Ltd was formerly known as James Hardie & Company Pty Ltd (JHC). The Plaintiff's Employment and Exposure 2. The plaintiff was employed by BHP between 15 May 1961 and 20 April 1970 as a carpenter and joiner. In the years between 1961 and 1968 the plaintiff worked in what was described as "the town workshop" and he was required to repair and conduct maintenance work on buildings and houses used and occupied by the BHP's employees. In that work he was frequently required to cut, rasp and otherwise deal with flat and corrugated sheets of asbestos cement sheeting which were manufactured and supplied by JHC. Between 1968 and 1970 he carried out carpentry style work in the construction of lockers to be installed in ships under construction at BHP's Whyalla shipyard. All of the plaintiff's employment was in Whyalla and it is in Whyalla that the plaintiff continues to live. 3. It is not now disputed that as a result of exposure to asbestos dust and fibre in the course of his employment by BHP, which dust and fibre emanated from products manufactured by JHC, he has contracted asbestosis. Defences 4. Par 11 of an Amended Defence filed yesterday by BHP said: 11… if the plaintiff was [sic] exposed to asbestos dust and fibre at levels considered to be hazardous as alleged and has contracted the alleged asbestos dust related diseases, including asbestosis, benign pleural disease and bronchiectasis as a direct result of that exposure, (all of which is [sic] not admitted), then the first defendant admits that: 11.1 it breached its duty of care to the plaintiff and its contractual obligations to take reasonable care for the plaintiff's safety; 11.2 the said breach of its duty of care caused or materially contributed to the development of the alleged asbestos dust related diseases; 11.3 all of the alleged asbestos dust related diseases were foreseeable consequences of its breach of duty of care 5. BHP also raised a defence under the Limitation Act (SA) 1936, but during the course of submissions that Defence was withdrawn. Par 4 of its Amended Defence pleaded that it did not admit it "was bound by the Industrial Code (SA) 1920 and the Industrial Code (SA) 1967 and/or their regulations in relation to its Whyalla premises at any relevant time by virtue of the Broken Hill Proprietary Company's Steel Work Indenture Act (SA) 1958". This no doubt was to meet the allegation in the plaintiff's Statement of Claim that the first defendant was in breach of its statutory duties under the codes referred to. 6. In s 3 of the Broken Hill Proprietary Company's Steel Works Indenture Act (SA) 1958 (the Steel Works Act) "the indenture" was defined to mean the indenture set out in the schedule to the Act and "the company" was defined to mean the Broken Hill Proprietary Company Ltd and included its successors and assigns. S 7 of the Act provided: 7. The Company and any subsidiary company as defined in the Indenture shall not be liable for discharging, from its works at or near Whyalla, effluent into the sea or smoke dust or gas into the atmosphere or for creating noise, smoke, dust or gas at such works, if such discharge or creation is necessary for the efficient operation of the works of the Company or subsidiary company and is not due to negligence on the part of the Company or subsidiary company as the case may be. 7. Immediately it should be observed that the immunity applies in respect of discharge of the materials referred to from the works and to discharge that is not due to negligence. It is the case that the plaintiff worked within the works as well, seemingly, as outside them. The dust to which he was exposed was not discharged from the works. He was exposed to dust within the works, and otherwise outside the works to dust which did not come from the works. Moreover, in light of the concession referred to in par 3 of these reasons BHP further concedes in par 11 of its amended defence that it was in breach of its duty of care, that that breach of duty made a material contribution to the plaintiff's asbestosis and that the diseases referred to were foreseeable consequences of its breach. It follows that s 7 of the Steel Works Act provides no defence. 8. I have referred to the plaintiff's suffering asbestosis and I think it is that disease which, so far as his action for damages is concerned, is the relevant one, though benign asbestos pleural disease and bronchiectasis have been referred to. By concession and to the extent necessary the plaintiff has established he is entitled to a verdict against BHP. JHC has conceded the plaintiff is entitled to a verdict against it. Provisional Damages 9. I should earlier have mentioned that, in his Statement of Claim, the plaintiff, seeks provisional damages pursuant to s 11A of the Dust Diseases Tribunal Act 1989 for the conditions of asbestos related pleural disease, asbestosis and bronchiectasis. Relying on s 11A he seeks an order that he may claim further damages if in the future he should develop any of asbestos induced lung cancer, asbestos induced carcinoma of any other organ, pleural mesothelioma or peritoneal mesothelioma. S 11A of the Dust Diseases Tribunal Act is as follows : (1)This section applies to proceedings of the kind referred to in section 11(1) that are brought after the commencement of this section and in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the person who is suffering from the dust-related condition in respect of which the proceedings are brought ("the injured person") will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition. (2) The Tribunal may, in accordance with the rules: (a) award damages assessed on the assumption that the injured person will not develop another dust-related condition, and (b) award further damages at a future date if the injured person does develop another dust-related condition. 10. In my opinion s 11A is a substantive provision and its operation is limited to cases in which the cause of action arose in New South Wales. S 11A affects the entitlement to damages, not the manner of their assessment. During the course of submissions I indicated to counsel my view that s 11A was substantive in nature. I have been informed that this question is soon to be considered in the High Court of Australia. It has been agreed that if the High Court determines that s 11A is procedural then the parties may return, in the event that that becomes necessary, and make application pursuant to s 13(6) Dust Diseases Tribunal Act. The Plaintiff 11. The plaintiff was born in Glasgow, Scotland on 24 July 1927 and is thus 76 years old. According to the 1998 Australian life tables a 76 year old Australian male has a life expectancy of 9.68 years. There is a more recent publication of Australian life tables in which the life expectancy of a 76 year old Australian male is slightly less than 9.68 years. 12. The plaintiff was, as noted, employed by the first defendant between 1961 and 1970. In 1970 after he had ceased employment by the first defendant he was involved in what appears to have been a fairly serious motor vehicle accident in which he suffered a significant head injury and a back injury as well. Afterwards, he obtained employment with Bridgestone Australia Pty Ltd and in the course of that employment he again suffered an injury to his low back. He ceased employment altogether in 1979 following the back injury in Bridgestone's employment. As well as his back injury the plaintiff, who was a smoker, has emphysema and some other general medical problems. He has significant reduction in exercise tolerance, intermittent pleural chest pain and his lung function testing demonstrates both obstructive and restrictive defects. 13. Professor Alpers was qualified by his solicitors for the purposes of this case. In a report of 17 October 2002, which became PX6, Professor Alpers observed: 7) In regard to permanent level of disability to his asbestos condition he has been a smoker and does suffer from airflow obstruction and emphysema on his x-rays. However I would suggest that at least 50 per cent of his lung function deficit in terms of low gas transfer and all of the restrictive defect is related to his asbestos condition. Current disability is unlikely to be the permanent level; given his history the condition is likely to progress. 14. Professor Alpers also observed that because of the plaintiff's asbestos related condition and beacuse he has been a smoker, he is at high risk of developing serious complications "such as lung cancer or mesothelioma". 15. The plaintiff was examined on behalf of each defendant by Dr Antic. Dr Antic is a thoracic physician practising in Adelaide and has considerable experience in the diagnosis and treatment of dust diseases, especially those caused by asbestos. The defendants did not call Dr Antic nor seek to put his report into evidence. 16. The plaintiff has submitted that an amount appropriate to award for general damages is $150,000 and an appropriate sum to award for loss of expectation of life is $15,000. During the course of submissions on my indicating my view that an appropriate for loss of expectation of life was $5,000 the parties agreed that sum was appropriate. 17. I think it important to bear in mind that Professor Alpers is of the view that 50 per cent of the plaintiff's respiratory impairment is due to asbestos disease. 18. On 1 July 2002 Dr Peter Windsor, a consultant physician practising in Whyalla, to whom the plaintiff was referred by Dr Connolly, his general practitioner, reported to Dr Connolly. His report ended with these words: I would think that most of his problems are due to his emphysema, for which he is receiving treatment but the best we can hope for is a slow improvement in that. 19. I think it important also to bear in mind that the plaintiff has been troubled, from time to time quite seriously troubled, by back pain. He has been admitted to hospital because of back pain and other unrelated conditions. It is the case that as early as June 1999 Dr Felix Lim, an orthopaedic surgeon practising in Whyalla reported to Dr Connolly that the plaintiff had multiple levels of disc degeneration in his lumbar spine and that at L4/5 CT study revealed spinal stenosis. He also has an L5-S1 disc prolapse. However, I think it is significant that on clinical examination on 25 June 1999 the plaintiff did have normal straight leg raising without any neurological abnormality. It would seem therefore that though the plaintiff has from time to time been incapacitated by back pain he has been symptom free for prolonged periods. 20. I omitted to mention that the plaintiff has undergone cardiac investigation. In his report of 1 July 2002 Dr Windsor referred to an echocardiogram of the plaintiff which showed mild right heart dilatation but not much else. Heart sounds were normal. He was on Pulmicort and Micardis. His heart condition seemed not to be causing difficulty. 21. Since discharge from hospital in January 2003 the plaintiff has been on oxygen for 24 hours each day. He has also been confined to a wheelchair. Considering that much of his respiratory disability and inability to mobilise are due other than to asbestosis, considering the contribution made to his general level of disability by emphysema, discounting the effect of his back and cardiac conditions and considering there is a remote chance of bronchogenic carcinoma or mesothelioma I think a sum appropriate to award the plaintiff for general damages is $75,000. 22. I think it generally now to be accepted that the plaintiff has required full time care since 28 January 2003 and that he will continue to need it until he dies. It has been agreed that his presumed date of death is 31 December 2003. I think also it has not been seriously disputed that taking into account the difficulty of achieving precision in the costs of care, it might be assumed that since July 2002 the plaintiff had a need for 4 hours care daily. No costs of care are to be awarded in respect of periods when the plaintiff was confined to hospital. These amounts have been agreed, as have amounts for past medical expenses, future medical expenses and interest. 23. Thus the plaintiff is entitled to damages made up as follows: General damages $75,000.00 Interest on past general damages $1,250.00 Loss of expectation of life $5,000.00 Past medical expenses $309.30 Future medical expenses $960.00 Past care $47,258.40 Interest on past care $2,205.39 Future care $33,639.00 Making a total of $165,583.09 24. There will be a verdict for the plaintiff jointly and severally against each defendant and judgment in the sum of $165,582,70. 25. The defendants will pay the plaintiff's costs as agreed or assessed. 26. The cross-claim between the defendants will be listed for hearing tomorrow, 5 September 2003 at 9am.