Dust Diseases Tribunal of New South Wales CITATION : Buttner v Wallaby Grip Pty Ltd and Ors [2005] NSWDDT 50 Reinhold Buttner (Plaintiff) Wallaby Grip Pty Ltd (First Defendant) PARTIES : Wallaby Grip (NSW) Pty Ltd (Second Defendant) PHR Pty Ltd (Third Defendant) Unbehaun and Johnstone Pty Ltd (Fourth Defendant) MATTER NUMBER(S) : 408/04 JUDGMENT OF: O'Meally P at 1 CATCHWORDS: :- Dust Diseases Tribunal - asbestosis and ARPD - damages CASES CITED: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 DATES OF HEARING: 24 August 2005 EX TEMPORE JUDGMENT DATE : 08/24/2005 G F Little, SC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: G P F Rundle instructed by Thompson Cooper Lawyers appeared for the Third and Fourth Defendants JUDGMENT: O'MEALLY P Nature of the claim 1. On 2 November 2004 Reinhold Buttner issued a statement of claim seeking damages from Wallaby Grip Ltd, Wallaby Grip (NSW) Pty Ltd (in liquidation) PHR Pty Ltd (PHR) and Unbehaum and Johnstone Pty Ltd (U & J). He sought damages for the consequences principally of asbestos related pleural disease and asbestosis. 2. His claim against the first two defendants has been settled. Counsel for the plaintiff and the third and fourth defendants have agreed between themselves that I not be informed of the terms of the settlement against the first two defendants. Liability to pay damages has been conceded by counsel for the third and fourth defendants and the approach I have been requested to take is to assess damages as though the plaintiff were still proceeding against the four parties and then separately determine the proportion of the damages which should be borne by the third and fourth defendants. 3. Though the third and fourth defendants are successive tortfeasors they have come to an accommodation so that I will not be required to determine the separate liability of the third defendant and the fourth defendant but merely the amount of damages which in total should they should pay. The plaintiff and his work 4. The plaintiff was born on 8 December 1940 and is accordingly 64 years old. Relevantly, he was employed by the fourth defendant from 1961 to 1964 during which period he worked on a number of building sites at which asbestos was being sprayed or had been sprayed onto structural steel work. One of these sites was located at the corner of North Terrace and King William Street in Adelaide where the plaintiff, as a sheet metal worker, was engaged for about three or four weeks installing ducting for airconditioning. Whilst at this site a company which traded as Bradford Insulation was spraying limpet asbestos onto structural steel work. Frequently the plaintiff came into contact with asbestos dust and fibre which failed to adhere to the surface upon which it was sprayed by or through a pressure hose. Asbestos spraying continued for a period of about three weeks while the plaintiff was on that site. 5. The plaintiff also worked at Elizabeth East and Elizabeth South Primary Schools for a period of about four months in total though not in one continuous period. Again limpet spraying was carried out by Bradford Insulation in the same way it had been done on the first-mentioned site. The plaintiff described working about 6 or 7 metres away from those engaged in spraying. He said asbestos dust rose into the air as the composition was prepared for spraying. After the process was concluded he scraped dry asbestos from steel beams with a screwdriver or chisel in order to install brackets to which airconditioning ducts might be fixed. When this was done, as occurred during the process of limpet spraying, the plaintiff inhaled asbestos dust and fibre. 6. While still with U & J the plaintiff worked also at Torrens Girls College. Again Bradford Insulation employees were present spraying limpet asbestos. They were on site for about four to five weeks and operated in proximity to the plaintiff. As a consequence he inhaled asbestos dust and fibre during that period of four to five weeks. 7. He worked at other sites whilst employed by U & J. At the RAAF base at Salisbury he used a screwdriver and chisel to remove asbestos lagging from pipes. He inhaled asbestos dust and fibre in a process which, undertaken twice a day, took about 20 minutes. He was engaged also to work at the plant of James Hardie, a manufacturer of asbestos products. Whilst in the factory premises he was exposed to and inhaled asbestos dust and fibre. During the construction of Royal Adelaide Hospital in North Terrace Adelaide again he was exposed to asbestos in the process of removing it from structural steel beams which task he undertook twice a day for a period of about 20 minutes. 8. Though he was employed by Bells Asbestos between 1965 and 1967 I think it appropriate next briefly to refer to his exposure while employed by PHR, the third defendant. He commenced his employment with PHR in 1970. Initially he was engaged in making airconditioning ducts for about six or eight months, during which time he had no exposure to asbestos. He left that corporation for a short while and returned when an increased salary was offered to him. He remained with it until 1973, but over a period of about 18 months at Flinders Medical Centre, he was exposed during two or three months when he cut inspection holes in asbestos pipes. His exposure was significantly less in this employment than it was with U & J. 9. As noted, he was employed by two corporations referred to as Bells Asbestos but which now are Wallaby Grip Pty Ltd and Wallaby Grip (NSW) Pty Ltd (the Bells companies). In his employment by the Bells companies he had considerable exposure to asbestos. He was engaged to work initially at the Osborne Power House on maintenance work. He and a lagger worked together as a pair. The lagger removed and applied asbestos and mixed water and asbestos powder into a slurry to apply to prefabricated pipe sections. The plaintiff was also engaged in removing slurry and prefabricated pipe sections. In all of this he had constant and considerable exposure to asbestos. 10. Later he travelled to the shipyards of the BHP Company at Whyalla. He was there for a period of about six months making sheetmetal cladding to cover lagging on pipes. He worked in proximity to laggers and had considerable exposure to asbestos. Following his work at the shipyards at Whyalla he returned to work at the Osborne Power House where further exposure to asbestos occurred. Comparative asbestos exposure 11. In his affidavit the plaintiff recited that his exposure to dust and fibre whilst employed by the Bells companies was more continuous than his exposure to asbestos dust and fibre whilst employed by the third and fourth defendants. He said that he was exposed to asbestos dust and fibre all day every day at the Osborne Power House. His exposure to asbestos spray whilst employed by U & J was more intense than his exposure to asbestos while employed by the Bells companies and by PHR, but it was for shorter periods. His exposure to asbestos dust and fibre whilst working at the James Hardie factory he described as being "quite intense." He did say also that of his overall lifetime exposure to asbestos, he estimated that about 50 per cent occurred whilst he was employed by Bells Asbestos, about 35 per cent whilst he was employed by U & J and about 15 per cent occurred whilst employed by PHR. These percentages relate to duration rather than intensity of exposure. 12. Asbestosis and ARPD are dose related diseases so that in determining the liability which the third and fourth defendants should bear, it is appropriate to consider both duration and intensity of exposure. Calculations have been made by senior counsel for the plaintiff and by counsel for the third and fourth defendants. Mr Little for the plaintiff submits that the third and fourth defendants should bear liability to pay 40 per cent of the damages assessed as payable to the plaintiff in respect of the total consequences of his asbestos disease. Mr Rundle for the third and fourth defendant submits that that figure should be 28 per cent. Neither percentage has been arrived at with precision. Doing the best I can to do justice between the parties I think that the third and fourth defendants should contribute 35 per cent of the damages to be awarded to the plaintiff. To the extent possible this assessment takes into account both duration and intensity of exposure. Progress of the plaintiff's condition 13. The diagnosis of the plaintiff's asbestos disease was, in a sense, coincidental. During the 1990s he injured his back and underwent x-ray examination. This revealed asbestos changes in his lungs, presumably by way of pleural plaques. As is well known, pleural plaques are not of themselves disabling. Seemingly, they were not in the plaintiff's case because he continued to work as a sheetmetal worker, work which is of a heavy nature, until mid 1998. In due course he consulted his general practitioner in relation to the asbestos changes and was referred to Dr Robinson, a respiratory physician whom he saw in consultation in January 2003. Surprisingly, the plaintiff has sought and has had little treatment. Relevantly, the only consultations for purposes other than this case were those with Dr Robinson and his general practitioner. 14. He has been examined by Professor Alpers, who was qualified by his solicitors, and by Dr Antic and Dr Holmes, who were qualified by the defendant. Each of these doctors is a well regarded respiratory physician, but as not infrequently happens there is not unanimity in their opinions and prognostications. 15. It is relevant to record that the plaintiff is a smoker with a smoking history, according histories given to doctors, varying between 20 and 30 pack years. Not surprisingly, as a consequence, the plaintiff has emphysema, a disorder which is known to cause breathlessness and other forms of respiratory inhibition. He also has rheumatoid arthritis, a disorder which is capable of causing respiratory disability and capable of causing interstitial fibrosis. In the opinion of Dr Antic he has asthma, a disorder which is capable of causing respiratory impairment. The evidence does not enable me to conclude that he does suffer asthma, nor does it enable me to conclude that his rheumatoid arthritis is playing a part in his respiratory difficulty. The defendants carry an evidentiary onus to persuade me that it does. This onus is undischarged. 16. Remarkably, the plaintiff has exhibited few symptoms of disability. He lives alone and is able to manage those things that are required. He is divorced, but is visited about twice a week by his three children. He does not need assistance from them. He is able also to walk 4 kilometres each day, but does become breathless upon walking up hills. Many people of lesser age would have such difficulty and perhaps even on walking on flat surfaces for distances of 4 kilometres. Nevertheless, lung function testing shows that objectively his condition has deteriorated of recent times though symptomatically he has undergone no change. Radiological examination reveals the presence of interstitial fibrosis with the development also of rounded atelectasis. Dr Antic has detected inspiratory crackles over all lung zones, whereas Professor Alpers and Dr Holmes have noted such crackles in the lower zones. Lower zone crackles are associated with asbestosis; widespread crackles can be associated with rheumatoid arthritis. General damages and loss of expectation of life 17. I am comfortable in coming to the view that the plaintiff's respiratory disability is the result of asbestosis and of emphysema caused by smoking. I am not satisfied that he suffers respiratory disability as result of asthma or rheumatoid arthritis. 18. This case has troubled me in coming to a view on what the future holds for the plaintiff. There is a large variety of possibilities, but the evidence does not enable me to form to a view on the probabilities other than in a general way. I am of the view that the plaintiff does have a shortened life expectancy. His life has probably been shortened by about five years and half of this is due to asbestosis. As to his future medical treatment and the likelihood of his developing other disorders such as carcinoma or mesothelioma or his becoming an invalid by reason of the progression of his compensable disease, I am unable to conclude with any degree of probability what will happen. Accordingly, in respect of the costs of future medical treatment and care I will make an assessment in accordance with the principles enunciated by the High Court of Australia in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. 19. Taking into account the fact that there is a risk that the plaintiff's condition will deteriorate, that he may develop mesothelioma, of which there is a 5 per cent risk, or carcinoma, in respect of which there is a 10 per cent risk, I think a sum of $60,000.00 is appropriate to compensate the plaintiff for all of his asbestos related disorder. 20. Of the five years loss of expectation of life I think half would be related to his asbestos disease and I think a sum appropriate to compensate him for loss of expectation of life on that account is $2,500.00 Special Damages 21. Past asbestos related medical expenses have been agreed at $513.95. 22. In respect of the future I think the plaintiff is likely to live for another twelve years. I consider it reasonable that he should be permitted six visits per annum to a general practitioner, one visit to a thoracic or respiratory specialist, one CT examination and one lung function test each year. Taking into account the risk of his becoming decrepit or developing either of the asbestos cancers referred to, I think it appropriate to allow a sum of $1,500.00 per year for a period of twelve years which amounts to $18,000.00 23. Thus the plaintiff would have been entitled to damages made up as follows: General damages $60,000.00 Loss of expectation of life $2,500.00 Past medical expenses $513.95 Future medical expenses $18,000.00 Making a total of $81,013.95 MR RUNDLE No, your Honour, this is where the problem arises, your Honour should then, in my submission, be told of the settlement between - HIS HONOUR You can tell me afterwards. MR RUNDLE Because then you have got to take into account the figure paid then the balance is - HIS HONOUR No, you are going to pay 35 per cent of $81,013. MR RUNDLE Yes, then if - the plaintiff cannot receive more than $81,000. MR LITTLE Yes, the plaintiff can. HIS HONOUR This is what I wanted to know, I am proceeding to assess damages the way I was invited to. 24. Thus the third and fourth defendants should pay 35 per cent of $81,013.95 which I am told is $28,354.88. MR RUNDLE I need to file cross-claims, your Honour. HIS HONOUR 25. Before I enter judgment I grant leave to issue cross-claims on or before 31 January 2006. There will be verdict and judgment for the plaintiff against the third and fourth defendants and judgment in the sum of $28,354.88. The third and fourth defendants will pay the plaintiff's costs as agreed or assessed. MR RUNDLE I would like to make application under 13(6) for your Honour to revisit that judgment if I need to do it under that or for your Honour to identify why I say your Honour should not have proceeded to enter that judgment for $28,000. HIS HONOUR If you wish to make an application under section 13(6) of the Dust Diseases Tribunal Act you may do so. As to the other I have done precisely what I was invited by counsel to do. MR RUNDLE No, your Honour, I asked you not to proceed - at all times I have indicated to your Honour that you have to determine what the final is and then before you enter it goes further then to question arises as to what the figure is because at the end of the day the plaintiff should not be over compensated of what he has received so that your judgment as to $81,000 is no issue, what I can indicate to your Honour, unless my learned friend wants me not to alter the figure, because you would be handing up terms for the sum of $60,000 and in my respectful submission your Honour then is required to deduct that from the total figure. HIS HONOUR I will note your submissions, but I think your remedy, if you have one, is elsewhere. 26. Qua the first and second defendants there will be verdict and judgment in accordance with pars 1 and 2 of the terms of settlement. I note pars 3, 4, 5 and 6. G F Little, SC instructed by Turner Freeman appeared for the Plaintiff G P F Rundle instructed by Thompson Cooper Lawyers appeared for the Third and Fourth Defendants 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.