Vartuli v Alinta LGA Ltd [2007] NSWDDT 28

Dust Diseases Tribunal of New South Wales

CITATION : Vartuli v Alinta LGA Ltd [2007] NSWDDT 28

PARTIES : Giuseppe Vartuli (Plaintiff) Alinta LGA Ltd (Defendant)

MATTER NUMBER(S) : 6316 of 2006

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :- Asbestosis - Assessment of damages - Damages assessed

DATES OF HEARING: 30, 31 October, 2 November 2007

DATE OF JUDGMENT: 2 November 2007

EX TEMPORE JUDGMENT DATE : 2 November 2007

G F Little SC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: T J Morahan instructed by Hicksons Lawyers appeared for the Defendant

JUDGMENT:

O'MEALLY P 1. Giuseppe Vartuli seeks provisional damages from Alinta LGA Ltd alleging that as a result of exposure to asbestos in the course of his employment by the Australian Gaslight Company (the Gas Company), as the defendant was called when it employed him, he was exposed to asbestos dust and fibre, and as a consequence has contracted asbestosis. There is no dispute that he suffers asbestosis, but, to my surprise, counsel for the defendant seeks to put in issue that his asbestosis is the result of exposure to asbestos in the course of his employment by the Gas Company.

2. On 15 October 2007 the hearing of this case was fixed for 30 and 31 October. On 15 October 2007 I was informed that the plaintiff was to prove employment, exposure to asbestos and the plaintiff would be required to prove his damages.

3. The basis upon which it is sought now to place liability in issue is that the plaintiff's oral evidence is not in all respects consistent with the matter to which he signed his name on the document called Form 1, which is the statement of particulars required by the Dust Diseases Tribunal Regulation 2007. It is true that there are some inconsistencies between what the plaintiff said in evidence and what he said in the Form 1, which is now PX1. Those inconsistencies, however, do not relate to his exposure to asbestos. The Form 1 was admitted without objection. In answer to the question in that document, "How were you exposed to asbestos?", the plaintiff replied: I worked as an assistant plumber with AGL at the Mortdale plant. I handled, removed and fixed asbestos gaskets, applied and removed asbestos insulation from pipes, handled asbestos blankets used by tradesmen for welding purposes, carried and installed asbestos-cement sheets that were broken by plumbers to reach pipes. I also carried out the cleaning of boilers and tanks. I dismantled tanks and removed the asbestos gaskets and asbestos lagging. I swept the removed asbestos lagging fallen from the pipes with a broom. I also swept the roof of the plant, which was made of corrugated asbestos-cement sheets. I did this work every day for about 8 hours a day for the entire duration of my employment with the defendant. 4. The principal area of inconsistency between the plaintiff's evidence and what appears in the Form 1, and which I think generally to be accepted, is the date on which the plaintiff ceased working for the Gas Company. It is a fact that some time in 1971 the plaintiff injured his back at work and has not worked since. He had a laminectomy. At that time he was fifty-one years old, and I think it fair to conclude it to be the case that that injury totally incapacitated him for work. In evidence he said that he had worked well after that and in 1990.