Lola Merle Evans v Queanbeyan City Council and Anor [2010] NSWDDT 7

Dust Diseases Tribunal of New South Wales

CITATION : Lola Merle Evans v Queanbeyan City Council and Anor [2010] NSWDDT 7

Lola Merle Evans PARTIES : Queanbeyan City Council Amaca Pty Limited

MATTER NUMBER(S) : 199 of 2009

JUDGMENT OF: Curtis J at 1

CATCHWORDS: DUST DISEASES TRIBUNAL - Negligence :- Causation - Asbestos - Smoking - Lung Cancer

Browne v Dunn (1893) 6 R 67 Amaca Pty Ltd v Ellis [2010] HCA 5 CASES CITED: Workers Compensation (Dust Diseases) Board of NSW v Smith, Munro and Seymour [2010] NSWCA 19 Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

DATES OF HEARING: 25 March 2010 - 26 March 2010, 29 March 2010 - 1 April 2010, 6 April 2010 - 7 April 2010.

DATE OF JUDGMENT: 20 April 2010

Mr G F Little SC with Mr R J M Foord instructed by Denniston and Day appeared for the plaintiff

LEGAL REPRESENTATIVES: Mr J L Sharpe instructed by Thompson Cooper Lawyers appeared for the first defendant

Mr G M Watson SC instructed by DLA Phillips Fox appeared for the second defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales Matter Number 199 of 2009 Lola Merle Evans v Queanbeyan City Council and Amaca Pty Limited 20 April 2010 JUDGMENT CURTIS J Introduction 1. The plaintiff is the widow of Mr Henry Evans who contracted lung cancer in 2007. Mr Evans, who died on 5 January 2010, was for many years a heavy smoker of cigarettes and he also worked as a carpenter extensively with asbestos cement building materials. Mrs Evans contends that asbestos fibre liberated from building products manufactured by Amaca Pty Limited, formerly James Hardie and Coy Pty Ltd, materially contributed to her husband's lung cancer. 2. Mrs Evans sues Amaca, and Queanbeyan City Council, which for a time employed Mr Evans to work with Amaca's products, in negligence. 3. I have concluded that, on the balance of probabilities, Amaca's products did not materially contribute to the development of Mr Evans' cancer. The Reliability of Mr Evans' Evidence 4. When Mr Evans gave evidence in his home on 8 August 2009, it was apparent that he was not mentally acute. He was then one week short of his 83rd birthday, five months short of his death, and in extremely poor health. I believe his evidence, although honestly given, was, in respect to his smoking history and his exposure to asbestos, unreliable. 5. Dr Anthony John Nicholls, a thoracic physician who initially saw Mr Evans on 3 November 2006, and who supervised his treatment from that time until his death on 5 January 2010, said that in the course of this period it became increasingly evident that Mr Evans suffered from dementia. 6. Mrs Evans said that from 2008, and in particular in the last six months of his life, Mr Evans "just went downhill" and that "he wasn't good with his memory or he just couldn't remember a lot of things". Mr Evans' Smoking History 7. Mr Evans was born on 13 August 1926. He said in evidence that he commenced smoking at the age of 14 or 15, (about 1941) and smoked three packets of cigarettes (20 to a packet) each fortnight until March 1984. He nevertheless agreed in cross-examination that it was probably true that when he was a smoker, "years ago" he smoked at least a pack a day. He did not deny that he smoked until 1990, but said "the wife would know more about it than me". 8. It is necessary to reconstruct the balance of Mr Evans' smoking history from contemporaneous records. 9. On 5 May 1992 Mr Evans attended the Woden Valley Hospital for surgical decompression of a right carpal tunnel syndrome. He was seen by a Dr Chanda, who, under the heading Personal History, recorded: "Non smoker for last 2 1/2 years. Used to 30-35 cigarettes/day". 10. On 14 November 2003 Dr Corbett, a gastroenterologist consulted by Mr Evans, recorded that "He is an ex-smoker stopping 13 years ago". On 18 November 2003 Dr Ross Hendry, Mr Evans' general practitioner, wrote in his notes: Smoker: Ex-Smoker. Quit date: 18/11/1990. I disregard a later entry in the notes of Dr Hendry made on 5 August 2009 where he records; "After discussion with lawyer's letter" … "Smoked until 1984, up to 20 daily". 11. On 16 December 2003, Mr Evans told Dr Burke, a consultant physician, that: "He has not smoked now for 13 years". On 13 February 2004 he told Dr David Coles, a cardiologist, that he had smoked quite heavily for many years, stopping 13 years ago. A clinical record of the Queanbeyan Hospital dated 7 July 2004 noted that Mr Evans had ceased smoking 14 years previously. 12. The Canberra Hospital Respiratory Laboratory, which Mr Evans attended for lung function tests on 1 November 2006, recorded a smoking history of 48 pack years over 40 years. 13. On 3 November 2006 Dr A J Nicholls examined Mr Evans for the Dust Diseases Board of New South Wales and completed a pro- forma smoking history. He was told by Mr Evans that he had smoked 25 cigarettes a day for 40 years, ceasing in 1990. 14. On 4 April 2007 Mr Evans attended upon Dr A J Nicholls, a consultant thoracic physician, who in a report to Dr Hendry said of Mr Evans that "He has a 40 pack year smoking history." In a subsequent report of 29 January 2008 Dr Nicholls wrote "He stopped smoking in early 1990". 15. On 17 December 2008 Mr Evans attended the Emergency Department of the Queanbeyan Hospital. Clinical notes taken at the time record: "No cigarettes in 19 years. 30/day till then. Started aged 14". 16. I believe that the earliest recorded history, given on 5 May 1992 and most proximate to the cessation of smoking, is probably correct; it has been consistently repeated by Mr Evans over the ensuing years. It is probably true that at the age of 14 or 15 Mr Evans smoked much less. It is also probably true that for a time he smoked three packets of cigarettes (20 to a packet) each fortnight. Nevertheless 50 years have elapsed between the time when Mr Evans commenced smoking and the time when he quit. It is probable that for 40 of those years Mr Evans smoked between 20 and 35 cigarettes each day. Mr Evans's Exposure to Asbestos Fibre The Evidence of Mr Evans 17. Two affidavits of Mr Evans have been tendered and he gave evidence in his home on 28 August 2009. 18. In his first affidavit Mr Evans said that between 1942 and 1962 he worked at the Lake George mine at Captains Flat. He was 16 years of age when he commenced. After working for some period of time as a labourer, he trained as a carpenter and worked constructing sheds and accommodation for the mineworkers. 19. Mr Evans said that he worked with asbestos cement sheets on approximately three occasions each week, cutting between 12 and 20 sheets on each occasion. A sheet took approximately 10 minutes to cut, sometimes half an hour. Initially he used fibro cutters and when these were used "there was hardly any dust". 20. He said that "in later years" he used an electrically powered cutting wheel to cut the sheeting. This activity created a lot of dust that formed a cloud around the worksite and by the end of the day's work he was "covered in dust". 21. Mr Evans' solicitors, in a letter of instruction dated 10 July 2009 to Dr Leigh, stated that he cut materials with power saws for a period of 30 years. Mr Evans retired in 1990, and it seems probable that the use of power saws commenced in about 1960, shortly before Mr Evans left Captains Flat. 22. Between 1964 and 1968 Mr Evans was employed as a carpenter by Mr Edward Malone, whose business was dismantling the houses at Captains Flat for relocation at Queanbeyan after the closure of the mine. Mr Evans said that a lot of dust was created when cutting the cement sheeting with an angle grinder when the houses were broken into compartments for transportation, and that he was "covered in dust in a similar fashion to when I worked at the mine". 23. Between 1968 and 1975 Mr Evans worked for various building companies in the Queanbeyan area. Most of the construction work was building Housing Commission homes clad in asbestos cement that was cut with an angle grinder. When working on these homes Mr Evans says he was exposed to a similar amount of dust as he was at Captains Flat. Not all of the work required cutting and fixing asbestos cement. That work followed the erection of the timber frame. 24. Between 1975 and 1990, Mr Evans was employed by Queanbeyan Council as a maintenance carpenter. He said in his affidavit that "a lot of the work" involved repairing older fibro buildings, which involved cutting fibro with an angle grinder. 25. Mr Evans recalled one particular job at Queanbeyan Council, rebuilding the dog pound with thick sheets of asbestos cement. The job took two weeks. He said that he would "often" get covered in dust when doing this work. 26. In cross-examination Mr Evans rejected the suggestion that there was not much work with asbestos at the Council. He said: "there was actually quite a bit". 27. Mr Evans was not cross-examined by counsel for Amaca in relation to his evidence of asbestos exposure at Captains Flat. When Mr Evans' evidence was taken, Amaca appeared solely in response to a cross-claim by Queanbeyan City Council. The Captains Flat exposure was not relevant to any claim pleaded by Mr Evans against the Council or by the Council against Amaca. No Browne v Dunn submission is available. 28. Mr Anthony James Wynd worked as Mr Evans' offsider at the Queanbeyan Council from 1975 to 1990. His affidavit was tendered by Queanbeyan Council. Mr Wynd says that work repairing damaged asbestos cement sheeting on council buildings took place only once every couple of years, occupying a couple of days on each occasion. The work on the dog pound occurred on three or four occasions over the years, occupying a few days each time. 29. Where Mr Evans' recollection of the work at Queanbeyan Council differs from the recollection of his younger workmate Mr Wynd, I generally prefer the evidence of Mr Wynd. Quantitative Estimation of Asbestos Exposure Mr Alan Rogers 30. Mr Rogers has 24 years of experience as an occupational hygienist. He is the coordinator of the Occupational Hygiene Panel for the New South Wales Dust Diseases Board. 31. Mr Rogers says that in his experience carpenters spent only 10 per cent of their time working with asbestos cement products. He further says that, based on his review of the available data, the daily time weighted average exposure of workers cutting, handling and fixing asbestos cement products in the building industry is around 1.25 fibres/ml or less. He concludes that Mr Evans' cumulative exposure to asbestos dust for around 10 per cent of his working time over 27 years amounts to 3.24 fibre/ml/years or less. 32. I do not find this evidence persuasive. No other witness with relevant experience estimates that carpenters spent only 10 per cent of the time working with asbestos cement products. If Mr Rogers were correct, a carpenter working with asbestos cement products from the age of 15 to retirement at the age of 60 would accumulate an asbestos dose of no more than 6.25 fibre/ml/years. Such a calculation cannot stand with the circumstance that some carpenters contract asbestosis. The lowest threshold for that disease is 25 fibre/ml/years. Mr Geoffrey Pickford 33. Mr Pickford is an occupational hygienist with 37 years experience retained by Amaca. He has purported to reconstruct Mr Evans' work experience in terms of a typical carpenter working with a mixture of asbestos and non-asbestos tasks as part of his day-to-day duties. 34. Pursuant to this reconstruction Mr Pickford estimates Mr Evans' cumulative fibre burden as between 3 and 13 fibre/ml/years. 35. Mr Pickford proceeded by assigning a particular concentration of airborne asbestos fibres to the various tasks involved in asbestos cement construction, and multiplying those concentrations by the time spent on each task. 36. He says that, on the basis of his experience of typical jobs in the field, the percentage times for each phase of construction, and the resultant fibre exposures, are as follows; Task % Exposure (fibres/mL) Carrying and handling asbestos-cement 20% 0.60 Measuring and other planning activities (asbestos-cement) 26% 0.05 Using hand cutting methods 30% 0.40 Nailing or screwing asbestos-cement 20% 0.10 Using power saws and grinders 4% 20.00 Total time working with asbestos cement 100%