Dust Diseases Tribunal New South Wales Medium Neutral Citation: Olson v CSR Ltd and Anor [1994] NSWDDT 1 Hearing dates: 5-10, 12-16, 21-24/12/1994 Decision date: 24 December 1994 Before: O'Meally P Decision: Verdict and judgment for the plaintiff Catchwords: DUST DISEASES TRIBUNAL - Mesothelioma - Environmental and domestic exposure to asbestos dust and fibre - Plaintiff as a child inhaled asbestos tailings dust in streets, back yard, own household and from father's work clothes - Relationship between defendants - Duty of care of both defendants towards workforce - Whether duty of care extends to workers' families and other residents - Whether duty of care owed to plaintiff - Foreseeability of risk - Knowledge of dangers of exposing residents to blue asbestos - Diseases of like class and character - Breach of duty - Failure to warn child's mother of danger of exposure to asbestos Cases Cited: Bonnington Castings ltd v Wardlaw [1956] AC 613 Burnicle v Cutelli [1982] 2 NSWLR 26 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Doughty v Turner manufacturing Co Ltd [1964] 1 QB 518 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Environmental Planning and Assessment Act 1979, Minister Administering v San Sebastian Pty Ltd [1983] 2 NSWLR 268 Griffiths v Kerkemeyer (1977) 139 CLR 161 Heys and Barrow v CSR Ltd and Midalco Pty Ltd (unreported, Supreme Court of Western Australia, Rowland J, 4 August 1988) Mt Isa Mines v Pusey (1970) 125 CLR 383 Nader v Urban Transit Authority (NSW) (1985) 2 NSWLR 501 Polemis and Furness, Withy & Co Ltd, Re [1921] 3 KB 560 Rowe v McCartney [1976] 2 NSWLR 72 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Van Girvan v Fenton (1992) 175 CLR 327 Wyong Shire Council v Shirt (1980) 146 CLR 40 Category: Principal judgment Parties: Vivien Margaret Olson (Plaintiff) CSR Ltd (First Defendant) Midalco Pty Ltd (Second Defendant) Representation: J T Rush, QC with A J Bartley and A J Katzmann appeared for the Plaintiff J Poulos, QC with J J E Fernon and R Sergi appeared for the First and Second defendants Turner Freeman for the Plaintiff Ebsworth & Ebsworth for the First and Second Defendants File Number(s): 72/1994 Judgment O'MEALLY J 1This is an action for damages by Vivien Margaret Olson against CSR Ltd and Midalco Pty Ltd. Midalco Pty Ltd was originally known as Australian Blue Asbestos Ltd, and subsequently as Australian Blue Asbestos Pty Ltd. For convenience sake, it will be referred to as ABA. THE PLAINTIFF'S CASE: 2The plaintiff seeks damages from the defendants alleging that in the township of Wittenoom they negligently exposed her to asbestos dust and fibre which she inhaled and as a result contracted malignant mesothelioma from which she soon will die. 3The plaintiff is gravely ill and her health is in a parlous state. Accordingly, my reasons for judgment are delivered ex tempore. In adopting this course I intend no disrespect to the careful arguments of counsel which were addressed to me, but in the process it is inevitable that aspects and details of the evidence will not be specifically referred to. I trust I shall deal with all issues which have been argued before me and in the event that some particular issue or matter of evidence is omitted, I invite counsel, at the conclusion of my reasons, to draw such matters to my attention. 4Wittenoom is a town located in the north west of Western Australia in the Hammersley Ranges. Mineral deposits, including deposits of crocidolite or blue asbestos, were discovered there and the rights to mine asbestos were acquired by the Colonial Sugar Refining Co Ltd, (CSR). A company, ABA, was incorporated and CSR was its majority shareholder, owning some 97 per cent of the shares. ABA was incorporated to extract blue asbestos from the area about Wittenoom. 5Wittenoom is an isolated place, some one thousand miles north of Perth. Mining operations began there in the mid 1940s and continued for about 20 years until the enterprise ceased operation. 6The plaintiff's father was engaged by ABA to work as a draftsman at the mine and moved to Wittenoom with his wife and one daughter. While they were there, a second daughter, Vivien Margaret Olson, the plaintiff, was born on 22 September 1959. The family remained at Wittenoom until the end of 1961. The plaintiff herself was there for something less than two and a half years. 7It is alleged by the plaintiff that whilst residing within the township of Wittenoom, she inhaled asbestos dust and fibre contained within tailings which had come from the mills and been deposited in the streets and footpaths, and about houses and recreational areas in the town. As a child the plaintiff played in the tailings and inhaled asbestos fibre. 8It is alleged also, that the plaintiff inhaled fibre which was transported from the site of the mine and mill upon her father's clothing, and that when caressed by her father upon his return from work and in playing with her, she was exposed to and inhaled dust carried upon his work clothes. It is these inhalations of asbestos dust which, it is said, caused her malignant mesothelioma. 9As is now well known, mesothelioma has a long latency period so that from first exposure to manifestation of the disease, might take anything from 10 to 50 years, but on average 37 years. 10It seems beyond doubt that the plaintiff contracted mesothelioma as a result of inhaling asbestos whilst she resided for something slightly more than two years in the township of Wittenoom. All asbestos exposure is causative of mesothelioma, though the minimum dose sufficient to cause the disease is not known. I am satisfied she had no relevant asbestos exposure other than at Wittenoom. 11The plaintiff argues that CSR so controlled the activities of ABA as to be responsible in law for its negligent acts and omissions. The plaintiff also argues that ABA, under the direction and control of CSR, established the township of Wittenoom and exercised such an influence over and in the town, that it owed a duty of care to its inhabitants. THE RELATIONSHIP BETWEEN THE DEFENDANTS: 12It is convenient to deal initially with the relationship between ABA and CSR. The defendants' argument is that CSR, though the parent company of ABA, was not in such a relationship with it that any carelessness on the part of ABA could reasonably be foreseen by CSR. CSR, it is argued, was at all times remote from the operations at Wittenoom, and the conduct of the operations at Wittenoom were the responsibilities of the employees and agents of ABA. 13The plaintiff on the other hand, argues that there is clear evidence, which emerges from the documents which have been discovered, to demonstrate CSR's absolute control of ABA. 14On 23 June 1943, as is demonstrated by PX-50, the board of CSR met and an agreement was entered into between CSR and ABA by which CSR was appointed managing agent and sole distributor of the products of ABA. It is said that under the agreement, CSR had absolute authority to do all things necessary for the proper management and control of the business and undertaking of ABA, and had other powers necessary for it to carry out its duties as managing agent and sole distributor, including the power to engage employees, to purchase equipment, to improve and control mining and milling, to fix wholesale and retail prices and to appoint sub agents and distributors. 15ABA was required to obtain the consent of CSR to appoint any agent or distributor or to offer for sale any of its products. ABA was required to refer all purchases to CSR and to keep separate accounts. CSR had the right to inspect the accounts. ABA was required to account to CSR for all expenditure pursuant to the agreement, at quarterly intervals. A copy of the agreement is contained within PX-50. In particular, CSR had the right to supervise and control the mining and milling of blue asbestos and other minerals on all mineral leases then owned or controlled or which might be acquired or controlled in the future, by ABA. CSR had the power to fix wholesale and retail prices and the power to appoint sub-agents and distributors. 16In order to determine the relationship and the nature of the relationship between CSR and ABA, it is useful to examine a number of the exhibits, being Minutes of the Meetings of the Board of CSR at various stages thereafter, and its Reports to Shareholders. 17The Minutes of the Meeting of the Board of CSR held on 6 February 1946, note that Mr Powell, who was the managing director of ABA, reported on ABA to the meeting and that the Board agreed to finance ABA in accordance with a suggestion contained in the memorandum which Mr Powell presented. On 6 October 1966, CSR decided that production at Wittenoom would cease. It is said that these two meetings show that CSR determined when ABA would commence its operations and when they would cease, and that therefore its influence was significant. 18CSR's Annual Reports issued between 1943 and 1962, are also relevant. 19In 1943, the Secretary of CSR was Mr G.N. Worledge, who held CSR's proxy at general meetings of ABA. The manager of the Perth branch of CSR was Mr J.L. Tucker, who was the company manager and a director of ABA. 20CSR's Annual Report for the year 1943, recorded that it was erecting a mill in Western Australia for the supply of asbestos. The Annual Report for 1944 disclosed that the secretary of CSR was Mr Worledge and the manager of the Perth branch, Mr Tucker. Such notations continue in the Annual Reports. In that of 1948, reference was made to "our mine in Western Australia". An examination of the annual reports of CSR show thereafter, as before, an identity of officers of CSR with directors of ABA. 21In 1957, the Annual Report of CSR disclosed that CSR had decided to expand the plant so as to produce, over the next two years at a rate of 25,000 tons per annum, and for that purpose to install additional plant. It noted that the results of ABA had much improved "...mainly owing to our success in obtaining overseas markets." It was CSR who decided to expand the plant at Wittenoom. 22The Report for 1958 includes a heading "Expansion of the Company's Mine in Western Australia". The half yearly report issued on 6 November 1958, recited that a new blue asbestos milling plant had been brought into operation at Wittenoom. 23In 1959, Mr K.O. Brown was recorded as being the assistant general manager of CSR. The fact also is that Mr K.O. Brown was frequently chairman of board meetings of ABA. In 1960, Mr K.O. Brown was again noted as the assistant general manager of CSR. The report noted that ABA was consolidating its position as a supplier of asbestos to Australia and overseas markets. 24In the Report of Directors of ABA on 30 July 1943, it was noted that 20,000 ordinary shares had been allotted to CSR. The report discloses that the directors of ABA were: Mr C.W.R. Powell who, CSR's Minutes disclose, appeared frequently at CSR board meeting; Mr G.N. Worledge, who was secretary of CSR between 1943 and 1948 and held CSR's proxy at ABA meetings; Mr J.A. Emsley, who also held CSR proxies at ABA meetings; Mr J.L. Tucker, who was manager of CSR's Perth branch between 1943 and 1947, and manager of CSR's Melbourne branch from 1948 to 1957 and Mr E. Leighton who was manager of CSR's Adelaide branch from 1950 to 1952. Mr Powell was described as the company executive and Mr Worledge as company secretary; Mr Emsley as company officer, Mr Tucker as company manager, and Mr Leighton as company officer. That Report noted the agreement between CSR and ABA concerning the appointment of CSR as ABA's managing agent and sole distributor. 25The first meeting of ABA was held in Perth. Thereafter, general meetings of ABA were held at O'Connell Street, Sydney, the place at which the office of CSR is located. Meetings held subsequently demonstrate a coincidence of officers and directors of each company. That this is so, can be seen from the Minutes of the meetings of ABA, contained within PX-80. 26It is said for the plaintiff that an examination of the Minutes of ABA and of CSR, lead to the conclusion that ABA could do nothing without CSR's approval. 27PX-70 comprises Minutes of the Meetings of Directors of CSR between 6 January 1943 and 29 November 1961. On 13 January 1943, it was noted at the meeting of the CSR board, that "registration of the asbestos company in Western Australia under the name of Australian Blue Asbestos Ltd, was sanctioned". In 1943, the CSR board took up 10,200 deferred shares in ABA. On 3January 1945, CSR agreed to take up a further 50,000 ordinary shares in ABA. 28In February 1945, Mr Powell gave a report to ABA and the Board determined that the operations of ABA would continue. The Minutes of the Meeting of 23 January 1946, disclose a notation concerning a serious accident at Wittenoom. In February 1946, the CSR Board agreed that ABA should seek a selling arrangement with Johns Manville, an asbestos manufacturing company, as is well known, in the United States of America. In August 1946, the Board agreed to further development of ABA which involved an additional capital expenditure of 130,000. The CSR board gave approval for ABA to apply to increase its nominal capital to 400,00. In May 1948, the Board signed and sealed a 500 bond for ABA in connection with the establishment of licensed premises at Wittenoom. In September 1948, the CSR Board agreed to purchase 9,800 deferred shares in ABA, and agreed to send Mr Powell to the United Kingdom and the United States to engage a mine engineer. It agreed to ABA's being permitted to call up 40,000 of its capital. 29These types of notations are, it is said, evidence of the fact that day-to-day decisions for the conduct of ABA were being taken by the CSR Board. Further Minutes of the Meetings of CSR, to not all of which I shall refer, indicate that CSR injected capital into ABA and controlled, in detail, its functions. 30It is significant also, so it is said, that on 19 May 1954 when Mr King was present at the meeting of the CSR Board, it discussed an application to be made to the Tariff Board for consideration by it of the protection by tariff which was sought. The Minutes of that meeting recorded that "the case in support of our application to the Tariff Board for a protective duty on imported asbestos fibre was considered, Mr G. King being present." In June 1954, the general manager of CSR outlined the proceedings at the Tariff Board inquiry. 31In 1956, the CSR Board agreed to making a loan of 3,200 to Mr B O'Neill, who was a cartage contractor in Wittenoom, so that he might purchase a truck. In May 1961, the Board of CSR considered a memorandum from Mr Brown dealing with difficulties, which were not specified, and unsatisfactory results of ABA. In November 1961, the Board agreed not to change the ownership or method of operation of ABA. 32The association between ABA and CSR was confirmed by a document included in PX-61, which relates to a claim upon the United Insurance Co Ltd for damage caused by a fire to No. 2 barracks at the mine site at Wittenoom Gorge on 6 January 1948. The claim form recites that the property belonged to Australian Blue Asbestos Ltd and Colonial Sugar Refining Co Ltd. 33PX-80 contains the Minutes of the meetings of the directors of ABA from April 1943 to October 1946. It is, perhaps, unnecessary to consider in the same detail the Minutes of those Meetings to which I was taken by counsel, but I am of the view that they show that CSR's influence over and power to control ABA were such that CSR was virtually indistinguishable from ABA. 34The evidence which emerges from the reports and Minutes of Meetings to which I have made some reference, satisfies me that whatever may have been ABA's duties and responsibilities to employees and to residents of the town of Wittenoom, they were co-extensive with those of CSR. CSR directed and controlled ABA. WAS THERE A DUTY OF CARE TO RESIDENTS OF WITTENOOM? 35It was accepted in the pleadings that by reason of the extent of CSR's power to control, or control of, or involvement in, the operations of the mine and mill conducted at Wittenoom, there was sufficient relationship between it and the second defendant, so as to impose upon it a duty to take care for the safety of the workforce employed at the mine and mill, but it was not accepted that either CSR or ABA owed a duty to residents of the town. 36The plaintiff asserts that the defendants each had a duty of care to those in Wittenoom because they controlled the town. 37Construction of the town began in the 1940s. Much of it, though less than half, was owned by ABA. 38It is argued for the defendants that neither of them could have any responsibility concerning what transpired in the township of Wittenoom and had none in fact. The defendants argue that such involvement as there may have been, arose out of the relationship with the Government of Western Australia; that whilst tailings came from the mining activity, the defendants, nor neither of them, had any responsibility as a result. 39It was said that the township was founded and developed by the Government of the State of Western Australia and that the State Housing Commission of Western Australia held by far the greater proportion of titles to land within the town. 40The fact is that housing within the town was, to a large extent, constructed by ABA, and employees of ABA and their families lived in these houses, and of them, those who paid rent, paid it to the State Housing Commission. It is conceded by the defendants that ABA was involved in some services in the township upon which residents were dependent. It is conceded that ABA provided tailings, left over from the milling process, from dumps within the gorges where mines had been or were in operation. 41There is no dispute that tailings were brought to the town and were used to form roads and footpaths and were spread upon the land surrounding houses, which otherwise would have been affected by sharp rocks and uneven surfaces. Tailings were used for the construction of the airport, to cover the playground of the school, to surface the yards surrounding the hospital and church. Residents were able to request that tailings be brought to their homes and these would come in a truck, usually with the insignia of ABA upon it, and distributed. 42The defendant says that these factors do not disclose that ABA in any way controlled the town. 43PX-37 is a report by Mr K.O. Brown on a visit he made to Wittenoom between 27 November and 5 December 1944. Mr Brown said "We landed on our new aerodrome at Wittenoom (the first passengers to land)." He recorded "The houses and barracks we have built are quite good and the canite walls are standing well to date." He referred to a complaint made to him by one, Mrs Wallace "....that the heat from the fuel stove in the kitchen was almost unbearable". He went on to say "It may be that oil stoves may be better for this climate, and this could be looked into for future houses." He noted that water from the settlement was pumped from a well near the barracks, which was almost empty when he arrived. He noted that houses were not lit by electricity and lamps were used. 44PX-61 is a parcel of documents which were discovered and which relate to the township. In a letter of 4 January 1957 from the Managing Director of ABA to the Manager, it appears "We agree generally with your remarks that the single men's accommodation should be well away from the hotel and we should be ready to make a move in this matter as soon as the Government starts building houses. We believe that our present barrack building should be moved to the township and our procedure should be to erect a new set of barracks in the township as soon as the Government commences work." 45Reference is made to the purchase of an hotel building to be relocated at Wittenoom. There was reference also to business people to run a store, garage and picture show, but the managing director went on to say "We are rather anxious to own these buildings ourselves, particularly the picture show. We realise that even if we owned a store and garage building, there would be nothing to stop others also building a garage and store, but this is not likely to be the case with the picture show building or the hotel building. We feel that we should take steps to finance a hotel, picture show and single men's barracks, as soon as the Government commence building, but the store and garage buildings can be left for future decision." 46In a letter to the managing director of ABA on 13 January 1947, the manager said "We have made it clear that our main town site should be in the blocks to the east of the surveyed area and indicated on the enclosed sketch, so there can actually be little harm in accepting the present proposal, as we shall go on and plan the township to our own ideas." 47It was also said "Present indications are that the Government intend to take no part in the actual construction of the town other than provide the money. This is, of course, considered to be no drawback." And again "The surveyors have no instructions regarding water supply, which they claim is our responsibility. It is recommended that at present we sink a well, perhaps two, in the creek bed about a quarter of a mile from the site; install a small diesel engine and pump delivering about 20,000 gallons storage. Another factor to be decided is that of power supply." And again "I gather it is your intention that our company meets all costs in connection with the housing of single men." 48On 26 February 1947, a letter to the managing director of ABA contained the following "It seems that to have control over the cost of living and to net some of the profits which should be available from the township, we should control the store, garage and cinema in addition to the hotel. Profitable agencies would be Vacuum Oil and airlines and to get to former, it would be necessary to control the garage." 49The letter went on "It is considered essential that we have someone stationed at the township and in charge of all our activities there, except the hotel, which would have its own manager. This officer would receive his instructions from the local manager, and it is proposed that he be responsible for the operation of the cinema, control of the store and garage, and be in direct control of the barracks and mess." 50On 21 August 1947, the managing director of ABA was asked for instructions concerning charges to be incurred in connection with the setting out of the township. There was included an item for 800 for forming streets, filling in waterways, including rocks for filling and tailings for covering footpaths. 51On 6 December 1951, the manager of ABA wrote to the Perth engineer with the request that "Your staff be a bit more careful regarding the comments made to prospective female employees at the hotel." On 27 December 1951, the manager wrote to the managing director of ABA in Sydney saying, amongst other things "As some definition of 'water in reasonable quantities' is necessary to clarify the conditions under which CSR officers are employed, it is recommended that a concession be granted to CSR and ABA staff employees in that half their excess water account be paid by the company." 52On 6 February 1952, the principal architect of the Department of Public Works of the State of Western Australia, wrote to the manager of ABA concerning the Wittenoom Hospital. He informed the manager that approval had been received for two additional wards, and plans and specifications were attached to the letter for his information and use. The principal architect indicated that he would be grateful if the manager would have the additional work implemented as soon as possible. 53On 7 February 1952, the accountant submitted a memorandum to the manager concerning retail store trading. It referred to grocery, hardware, haberdashery, clothing and drapery, butchery, and noted that the store was inefficiently run. On 10 March 1952, a letter was written to the manager of United Insurance requesting that it insure the Wittenoom Gorge nursing post, then in the course of instruction, for 17,500. On 21 March 1952, the Perth engineer wrote a letter to the manager at Wittenoom Gorge in which there was discussion about plans and specifications for erection by ABA of the teachers' quarters and the police station. 54On 12 August 1959, a director wrote to the manager at Wittenoom criticising him for making a donation of 25 to a local church building fund, and requested that in future, the question of all donations be referred to Sydney for approval by the board. 55The documents discovered disclose that ABA spent money on housing, roadways, footpaths, the aerodrome and public buildings within the township. There was consideration given to the salary levels of people who were to work in the town. By way of illustration, on 4 November 1948, it was suggested in a letter to the managing director that one, F Millington, be offered the position of township manager and be responsible for the establishment of the store, garage, 'bus service, cinema et cetera, as well as exercising supervision over the cafeteria and cafe, and that he be given a salary of 800 per annum. 56There are accounts which relate to township trading, 'bus trading, hotel trading and retail store trading, township power distribution and township stocks. 57In 1951, approval was sought for proposals relating to the settlement, including a library, cafe, tennis court, billiard room, hotel and bakery. In a letter of 23 July 1951, are details of expenditure concerning miscellaneous matters, but including the Wittenoom Club building and a loan to the club for building. In July 1951, there was a letter concerning the Wittenoom Gorge Race Club, and the provision of trophies and race books. 58I have, I think, already referred to the letter of 21 March 1952, concerning teachers' quarters and police station to be erected by ABA. 59PX-62 contains also a volume of correspondence concerning expenditure on the nursing post and nurses' quarters; in April 1953, concerning street names; in September 1953, concerning street lights; in October 1953, a notation that one, Dr McQueen, would be put on "our salary list "be paid monthly" and "We will be reimbursed periodically by the Health Department." In June 1956, there was a letter concerning nomination to represent mine management on the Board of the Wittenoom Gorge Hospital. 60Notations of these types are made in letters and proceed throughout, but in the relevant period, 1959 to 1961, they are no less frequent than before. 61In July 1959, there was a query whether Mr Sterpini, who seemingly had the butcher shop, was selling meat or distributing it. In June 1959, tenders were being called for the lease of the cinema. In November 1959, there was concern about the quality of meat in the town. In April 1960, there was further discussion about the cinema. ABA indicated that of those who had applied for the lease of it, one was not approved. In June 1960, the company considered taking over the shop again, and running it. In June 1960, ABA reviewed the salaries of its staff, including Dr Oxer, and Mr Miller, who has been variously referred to as the town foreman or town manager. Neither of these men was employed in mining or milling operations. 62On 1 August 1960, there was a letter concerning the construction of labour and recreational facilities. Priorities were set for a swimming pool and bowling greens and it was noted that the company supported all of the 14 clubs in the town and thought it was "doing enough in that direction". In August 1960, it was determined that the company would assist in the construction of the swimming pool by making a grant of 10,000 plus the use of heavy equipment. The bowling green area was to be levelled while equipment was on site, but the establishment of a billiard room was to be left in abeyance for the time being. In a letter of August 1960, ABA expressed the view that it was certain that it would have to supply extra seating accommodation for another 150 persons in the cinema. 63PX-63 is financial records from Wittenoom which include those related to the Wittenoom Gorge Hospital Board; the Wittenoom Gorge Race Club; road construction at Colonial Gorge; installation of town lighting; garbage; rents; settlement maintenance; retail store trading account; doctors receipts; town bakery maintenance; butchery maintenance; town cafe maintenance; cinema maintenance; town library maintenance; town yard and gardening maintenance; additional seating in the cinema; CSR advances to staff personnel, to the hospital fund, to Mr O'Neill's loan account, to the Wittenoom play centre and so on. 64PX-68 is a copy of an agreement between ABA and Percy Thomas Johnson. That discloses that ABA owned the Hotel Fortescue and that the manager, Mr Johnson, was obliged to serve the company as manager of the hotel in accordance with the agreement. In December 1959, the company received a letter from the Tableland Road Board concerning street lighting and the short life of light globes which had been supplied by ABA for the town streets. On 11 May 1961, a letter was written concerning a tender for garbage collection in the township and on 9 June 1961, another regarding minor building repairs at the Wittenoom Gorge Airport, which ABA quoted to execute. 65PX-92 is a parcel of mixed correspondence and accounts between 1959 and 1960 with some half yearly accounts relating to township trading, 'bus trading, hotel trading, retail store trading, township power distribution, township stocks and so on. There is a report on town housing which makes reference to vacancies and maintenance. In May 1960, ABA accepted a tender for the removal of garbage from the Wittenoom township. 66In my view these documents reveal that each defendant had an undoubted role in the establishment of the town of Wittenoom; in its maintenance, in its appearance, and in its operation. 67There is contained in a letter written by Mr Allan to the managing director of ABA on 25 April 1962, an account of some difficulties which had been experienced in the town, and though it was written after the period with which we are concerned here, it relates to events which occurred before it was written. Mr Allen expressed concern about the transitory nature of the workforce at Wittenoom and reported on matters affecting the town. The topics covered in the report included the state of the houses; their cleanliness; the nature of transport and the absence of amenities. It referred to a tree planting programme to be implemented and noted that an approach had been made to local schools regarding an Arbor Day. It was thought desirable that a little persuasion or coercion was appropriate to have householders fence their properties because experience had revealed that fenced properties were more neatly kept than those which were not. The letter referred also to complaints which women had made about the manner in which single men dressed, and enclosed a memo which indicated the action taken to enforce proper standards of dress in the town. 68In my view, it is accurate to say that the township of Wittenoom was in truth a company town. It existed to serve the working population and the families of the mine and mill. ABA had a control that was significant, that was almost absolute, and an influence that was pervasive. It was, as senior counsel for the defendants submitted in his address, a one purpose town created for the purposes of the mine. THE PLAINTIFF'S EXPOSURE TO ASBESTOS: 69When mining began at Wittenoom the operation was conducted in the Wittenoom Gorge. At the time Mr Olson and his family moved there, operations at the Wittenoom Gorge had ceased, but another mine and mill were in operation in the Colonial Gorge. This mine and mill were located some 13.5 kilometres from the township of Wittenoom. 70The gorge itself was deep, some 600 feet, and the ore and the asbestos, and the rock within which its seams were contained, were extracted and crushed in a dry process. The process liberated considerable quantities of dust and fibre and, as is now accepted by the defendants, constituted a foreseeable risk of injury to its workforce at the mill and about it. 71The plaintiff's case is that in bringing asbestos tailings to the township of Wittenoom, the defendants were thereby exposing her and all residents of the town to a foreseeable risk of injury. 72Mining has always been a hazardous form of activity. In Roman times slaves and prisoners were sent to work in mines as punishment. History records ill effects upon their health. With the advance of knowledge and responsibility, the process of mining has become safer, but it is trite to say that any industrialist about to embark upon a mining enterprise, has and always has had a duty to inquire to ensure that its activities and processes will not harm or injure those to whom it owes a duty of care. 73In considering the questions committed to me for resolution, I remind myself that assessing the operations of the defendants with hindsight would be wrong. I must judge the conduct of the defendants according to what was reasonable in the light of knowledge as it existed at the times of ABA's operations in Wittenoom before and during the plaintiff's residence there. 74There is significant disagreement between the plaintiff and the defendants on the state of affairs as it existed in Wittenoom and the levels of dust during the time the plaintiff lived there. 75A number of former residents of the township of Wittenoom have been called to give evidence before me. As well, Dr McNulty, who was at the time an officer of the Western Australian Department of Health and who visited Wittenoom from time to time, also was called. On a number of occasions Dr McNulty raised with those involved with the management of the mine, the problems that he associated with continuing dust about the mine and mill. 76Mr John Edward Lever was employed at Wittenoom in April or May of 1959 and left there in late November 1960. He described the location of the mine, which was not a matter of controversy, and confirmed, what now has been conceded, that dust hung as a thick haze in the bagging room in which he worked, and about the mill. It was said that it follows from Mr Lever's evidence that the defendant had actual knowledge of the dangers of asbestos because when inspectors from the Mines Department visited the mine and mill, the processes were altered, that is to say the quantity of fibre being crushed was reduced and it was damped down. Mr Lever was a bushwalker. He said that he was able to determine the direction to lead him home by the sight of the dust emanating from the mill. Mr Simcock and Mr Taylor also referred to the dust about the mill. 77The plaintiff's father worked not in the mine or the mill, but as a draftsman. Nevertheless he was exposed to dust in such concentrations that it adhered to his clothes. Upon his return home, and before his clothes were washed, they were shaken out by his wife and in this process, dust was liberated into the atmosphere of his home. 78There is no doubt that tailings transported from the mines and mills in Wittenoom and Colonial Gorges, were deposited on the roads, footpaths, recreational areas and about the houses in the township of Wittenoom. It is not in doubt that as a child, the plaintiff played in tailings. The tailings contained asbestos dust and fibre. When the Olson children played in dust, it would cover them; fibre adhered to their clothing and hair. The veranda of the house in which they lived was daily coated with a fine bluish dust and the children, according to the evidence of the plaintiff's mother, peeled asbestos from rock. 79It is argued for ABA that the quantity of asbestos to which the plaintiff and other inhabitants of the town were exposed, could not, in 1959, 1960 and 1961, be seen as constituting a risk of injury and that therefore, even if a duty of care were owed to the plaintiff, it is not liable because it could not reasonably have foreseen the risk of injury. It becomes necessary therefore, to determine the extent of the dust within the town, and at a later stage, the defendants' knowledge of the dangers of exposure to asbestos. 80Mr T.F. Simcock was employed at Wittenoom between 1958 and 1966, though he was absent between 1964 until the middle of 1966. He lived in the township of Wittenoom. In order to get to Wittenoom, Mr Simcock travelled by aeroplane and did so in the period with which we are concerned here. He was asked whether he observed the atmosphere, the air around Wittenoom. He replied in answer to the question: "Q. What did it look like. A. From the airport, which was approximately a mile from the town, you could see as if somebody had lit a great fire and the smoke was - it was like a haze across the town, particularly midday when there was more vehicle movement and it looked like a grey smoke haze." He had earlier described the haze that emanated from the mine and mill at the Colonial Gorge, and was asked then, this question: "Q. In relation to the haze you have described at Colonial Gorge, the mine, as far as the colour is concerned, what do you say as to the colour over the town and the colour of the haze over the mine and mill. A. A similar colour." 81Dr McNulty also was asked, at 116, whether on flying into the town of Wittenoom, he made observations of the township itself. He replied: "A. Well, there was a very distinct sort of bluish tinge to thoroughfares generally, and when I got off the plane at the airport, there was obvious little clumps of blue asbestos everywhere. Q. When you say 'everywhere', relating to the township itself, where was that bluish tinge in the clumps. A. Well they were on all the roadways and driveways around the hotel, even around the hospital, around the school, around every domestic, every home, on the golf course, on the race course. They were just - they were just used like blue metal and where they were, were where bitumen had been put on the central roads, you could just, with your toe, dislodge the clumps where they had pushed their way through the bitumen." 82Dr McNulty was asked also to give his observations about the atmosphere in and round the mine and mill. He indicated that there was a blue tinge everywhere; the same type of description he had given concerning the atmosphere of the town. 83Mrs Dorothy Louise Taylor is the wife of Mr Taylor. She lived with him at Wittenoom. She was asked concerning the houses in which she had lived: "Q. During the course of a day, did you notice anything accumulate on the surface of the floor in each of the houses. A. Dust." 84She referred to that as being tailings dust and then indicated that it would be necessary to sweep the floor 20 times in a day. She described dust adhering to flywires. The dust and fibres were blue in colour. When her children bathed, fibres floated in the bathwater. The children's clothes were covered in tailings and it was necessary to shake them before washing them. After washing, dust adhered to the dried clothes. If the day were windy, the clothes would be shaken again before they were folded, to dispose of blue dust and fibres. 85I omitted to mention that Mr Simcock said asbestos contained within the water released from the wash house and bathroom water, was deposited in his garden. It discoloured the earth which was coated with fibre. 86When vehicles travelled through the township of Wittenoom, dust was excited and rose from the road. When people walked on the footpaths, dust rose and it also adhered to their footwear and clothing. By noon each day, more dust was in the atmosphere than when the day began, no doubt because of the vehicular and pedestrian traffic and because of the winds which were not uncommon in the area. Willy willys excited the dust and caused it to rise in the atmosphere. 87In my view it is not correct to say that the inhabitants of the town were exposed to transitory or insignificant quantities of dust. That dust was frequently visible in the atmosphere, satisfies me that its concentration was heavy. DISEASES OF LIKE CLASS AND CHARACTER: 88It is argued by the defendant that mesothelioma is not of like class or character as asbestosis and bronchogenic carcinoma. 89It is the case that pathologically, mesothelioma is different from asbestosis and bronchogenic carcinoma, but each is a disease caused by the inhalation of asbestos; each is dose-related, though the minimum dose necessary to cause each disease is not known; and each affects the respiratory system. 90It is urged upon me by senior counsel for the defendants that I should conclude that mesothelioma is not of like class or character as the other two diseases to which I have referred because the process of contracting mesothelioma is different. In support of this argument he has referred me to NADER v. THE URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES (1985) 2 NSWLR 501, and in particular those parts at 504, 505, 533 and 534. At 535 McHugh JA (as he then was) referring to ROWE v. MCCARTNEY [1976] 2 NSWLR 72, said of that case: 91"The case is not authority for the proposition that mental illness per se can be divided into categories. To so hold would be quite inconsistent with what Windeyer and Walsh JJ said in MT ISA MINES LTD v. PUSEY. ROWE v. MCCARTNEY belongs to the class of case of which DOUGHTY v. TURNER MANUFACTURING CO LTD [1964] 1 QB 518 is a member. The damage is different in kind because of the manner in which it was caused. Although there was a causal connection between the plaintiff's mental illness in the accident, the majority in ROWE v. MCCARTNEY saw the part played by the accident as so tenuous as to make the mental illness a different kind of damage." 92With respect to the argument of senior counsel for the defendants, I am not persuaded that the manner of the contraction of mesothelioma is different from the manner in which bronchogenic carcinoma or asbestosis are contracted. That is to say, each is contracted by the inhalation of asbestos dust or fibre. 93I am of the view, as was Rowland J of the Supreme Court of Western Australia in HEYS & BARROW v. CSR LTD & MIDALCO PTY LTD (1148 of 1987 and 1161 of 1987, unreported, 4 Aug 1988), that mesothelioma, asbestosis and bronchogenic carcinoma are of like class or character. DID THE DEFENDANTS HAVE OR SHOULD THEY HAVE HAD KNOWLEDGE OF FORESEEABLE INJURY? 94Should the defendants have foreseen that in exposing the inhabitants of the town of Wittenoom to dust it was exposing them to a risk of injury? 95During the course of addresses it was accepted by the defendant that in exposing the workforce at the site of the mine or mill to asbestos dust and fibre on a continuing basis and in the concentrations that there existed, they were exposing the employees to the risks of foreseeable injury. 96Though I have not concluded that residents of the town were exposed to transitory or insignificant quantities of dust, it is said by the defendants they can not be held responsible to the plaintiff because they did not know and ought not reasonably to have known, that in exposing the plaintiff, or indeed any person, to a relatively small concentration of asbestos in 1959, 1960 and 1961, that they ought to have foreseen the risk of injury. 97It has been said in the High Court of Australia that foreseeability of a risk and the likelihood that it will happen, are two different things. The question is "....whether a reasonable man in the defendant's position would have foreseen his conduct involved a risk of injury to the plaintiff" per Mason J (as he then was) in WYONG SHIRE COUNCIL v. SHIRT (1981) 46 CLR 40 at 47. "....[I]t is not a condition of liability that either the precise character of the damage or the extent of it should have been foreseen. It is necessary only that the damage suffered should not be different in kind from that which was foreseeable." (per Walsh J in MT ISA MINES v. PUSEY (1971) 125 CLR 383 at 413-414) "....It is sufficient that the class of injury as distinct from a particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages ...." (per Barwick CJ at 390). 98I have had placed before me in PX-27, two volumes containing a vast quantity of medical, scientific and industrial literature on the use of asbestos and its dangers. It is not, of course, an exhaustive compilation or list of what was written, but merely illustrative of what, at various stages, has been available. 99In determining what the defendants knew or ought to have known, it is relevant to consider what was actually in their possession at the time and what CSR, as a large corporation with paid up capital of millions of pounds, and ABA ought to have known. 100Again I remind myself that hindsight plays no part in the determination of what they ought to have known in 1959, 1960 and 1961 and in the years before. (See Lord Pearce in DOUGHTY v. TURNER MANUFACTURING CO LTD [1964] 1 QB 518, quoting Viscount Simonds in POLEMIS v. FURNESS WITHY & CO 37 TLR 388 at 424.) 101In determining what the defendants knew or ought to have known, it is important to consider the oral evidence given before me as well as the tendered literature. 102The defendants called Emeritus Professor D J Ferguson, one time Professor of Occupational Health at the University of Sydney. I think I do no injustice to his opinion to summarise it in this fashion. It could not have been, and it was not appreciated before the 1960s, that exposure to a relatively small amount of asbestos was capable of causing mesothelioma. At 809 of the transcript, it emerges that his view was that there was no question that by 1950 any person looking at the available literature would have had an appreciation that exposure to asbestos caused asbestosis and that there was a link between asbestos and lung cancer, and would have appreciated that asbestos dust was dangerous in sufficient quantity. 103In the 1950s, an occupational physician reviewing the available literature would have appreciated that asbestos fibre in sufficient quantities was toxic, that in sufficient quantity it was dangerous, and that there was an established link between asbestosis and lung cancer. 104Professor Ferguson said that there is a general principle in occupational medicine, held for many years, that it is desirable to reduce unnecessary exposure to dust and certainly not only having regard to reducing exposure just below a putative safe limit, but to a level which is as low as is reasonably attainable. 105In 1938, Dreesen in the United States of America, published what came to be, and probably was then, an authoritative paper which referred to the hazards of asbestos. It was entitled, "A Study of Asbestosis in the Asbestos Textile Industry". It is, of course, true that we are not here dealing with the asbestos textile industry, but the significance of Dreesen's article is said to be that in it he established what was then regarded as, and for some time remained, a safe level of exposure, namely five million parts of asbestos per cubic foot. At page 91 of his paper, which was published by the United States Treasury Public Health Service in Public Health Bulletin No.241, 1938, he said "Because clean-cut cases of asbestosis were found only in dust concentrations exceeding five million particles per cubic foot and because they were not found at lower dust concentrations, five million particles per cubic foot may be regarded tentatively as the threshold value for asbestos dust exposure until better data are available." 106I do not think it accurate to say that Dreesen established a standard. He expressed a tentative view, but it seems thereafter to have been thought by some, that that was an acceptable standard. It should be noted that when dust is visible in the air, its concentration exceeds considerably five million parts per cubic foot. Dust is rarely visible when its concentration is five million parts per cubic foot and perhaps when it is, only in light coming from a particular direction. The tentative nature of the so-called Dreesen standard was affirmed by Professor Ferguson at 867 of the transcript. 107There was knowledge of the danger of asbestos available in Western Australia in 1948. Dr Saint, a doctor in the employ of the Western Australian Government, on 6 June 1948, had written to Dr Cook at the Department of Public Health informing him of his concerns concerning the likelihood of cases of asbestosis emerging from Wittenoom. In 1950, Dr Henzell, the Commissioner of Public Health for Western Australia, informed the Minister for Health that asbestos dust, if inhaled, constituted grave risk. 108In the British Medical Journal of 30 April 1960, is an article under the heading, "Complications of Asbestosis". An extract from this article was sent by Mr Allan to the Superintendent of ABA in Perth, and to the Managing Director of ABA in Sydney. To the Superintendent in Perth, Mr Allan wrote on 24 June 1960 "We are enclosing an extract taken from the British Medical Journal recently. It is the report of a discussion on the results of a post mortem on a man with asbestosis with fatal complications. We have not included the first part, but only the summing up. You could no doubt procure a copy of the journal if necessary. I have underlined several passages which have been stressed by Dr Oxer. It is quite interesting and gives some information previously not known to me. To the Managing Director in Sydney, he wrote "We enclose for your information, two copies of an extract taken from the British Medical Journal. It is quite an interesting article and reveals several facts not known to us before. There is quite a lengthy clinical description of the case also in this issue of the Journal." 109Relevantly, that which was communicated by Mr Allan, included these words "The disease usually makes its appearance rather suddenly, over the course of a few months, often long after initial exposure to the asbestos inhalation. It has been suggested that the asbestos lies dormant as an asbestos body which has to ripen over many years before it can break down and liberate it toxic contents. In this respect, asbestos is again like beryllium, which may also like dormant in the body and then suddenly produce its effects concurrently with other infections. Carcinoma of the lungs is a serious and well recognised complication in asbestosis. Its frequency in asbestosis is difficult to determine for it is now a common condition in the general population. Another hazard is mesothelioma of the pleura. This rather rare tumour may draw attention to the fact that a patient has worked in asbestos dust." Over the page, it was said "Asbestos was first described in this country" that is, the United Kingdom "by M. Murray in 1907. After that in 1930, Merewether and Price reported the dangers of asbestos dust in the lungs, and made recommendation for dust suppression. Thereafter there was a great improvement." The abstract sent goes on to say "Nevertheless, asbestos dust is most toxic, and the amount needed to cause asbestosis is not known, so constant vigilance and new preventative methods are needed, if this disease is to be abolished." 110It is to be emphasised that this knowledge was in the possession of ABA soon after the article appeared in the British Medical Journal. 111Professor Ferguson affirmed that the knowledge within that article was available. The fact that the letter was sent to ABA should have put it upon inquiry. Though of course, the defendants have no onus to prove anything, I have no evidence that there was a response or a reaction to those letters. 112A seminal article concerning mesothelioma was that published in the British Journal of Industrial Medicine in 1960 by Dr J C Wagner and others. In that article, Dr Wagner described the cases of several patients who had contracted mesothelioma in the Cape Province of South Africa. It is the case that they worked and dwelt in close proximity to crocidolite mines. 113The librarian at the Medical Library at the University of Western Australia gave evidence before me and indicated what material was available in Australia at relevant times. There was in fact a significant number of journals and texts relating to diseases caused by the inhalation of asbestos. Some of them she demonstrated were held in the library of CSR itself. It is interesting to note also that the library of CSR was commented upon in the Australian Library Journal in April 1959. It was said "The library of the Colonial Sugar Refining Co founded in 1928, is one of the oldest in Sydney. It covers the fields of pure and applied science and technology. As the interests of this company have developed in many directions, so the library has progressively expanded. It provides information for members of the CSR organisation at the mills and refineries and to subsidiary companies." 114Her evidence establishes that between 1948 and 1953 CSR subscribed to a publication called, "Clinical Abstracts". In those abstracts, are reports of articles and texts available on a wide variety of subjects but, in particular, there are many references to asbestos exposure and diseases caused by asbestos. Of significance, is one referred to in Volume 53 in 1959, entitled "Amount of Dust in the Residential Sections of the City of Asbest and its Effect on the Children's Health". It was written by A T Bobyleva, R M Bukhantseva and others. The article was said to be a "comparison of the health of children aged 7 to 14 years, living in a dusty part of town with that of those living in less dusty shows that they have a lesser lung vol. and an increased incidence of respiratory diseases". I emphasise that this abstract was in a journal which was kept in the library of CSR. 115In the Scientific American, a reputable journal circulating throughout the world, there was in the edition of January 1949, an article which incriminates asbestos as an environmental carcinogen. 116Dr McNulty frequently informed officers of ABA, between 1959 and 1961, and before, of the dangers of asbestos. However, the defendants say that at no stage did he draw to the attention of the defendants or of anyone acting on their behalf, that asbestos tailings in the town were dangerous. That is as may or may not be, but is it that Dr McNulty said nothing to them sufficient to excuse the defendants from knowledge of the dangers of asbestos in the town? 117The evidence concerning the dangers of asbestos is significant. In 1959, Dr McNulty wrote to Mr Allan saying, amongst other things "There is a particular problem and a particular hazard which has not yet been fully investigated or remedied." 118There was reference in the report of the Chief Commissioner for Health for Western Australia in 1959, which is PX-13, that the exposure to asbestos sufficient to cause asbestos, was shorter than that which caused silicosis on the gold mines. 119In 1959, 12 per cent of the people employed over four years at Wittenoom, had industrial chest disease. It was said that people in occupations not normally associated with the disease, were affected. In October 1960, Mr Allan, the manager at Wittenoom, was advised that he had contracted asbestosis. Dr McNulty wrote a letter to Mr Allan in which, amongst other things, he said "As you know, I was a bit suspicious last year, but the changes were too indefinite and we do not usually associate managerial staff with industrial chest disease." Further on, he said "There is no immediate need for concern but actually you should avoid further exposure to harmful dust, like the plague until your chest condition is completely investigated." The defendant argues it is significant that Dr McNulty did not tell Mr Allan to leave the area or completely to cease association with the operations at Wittenoom. 120In October 1961, two meetings, seemingly, were held in Perth to discuss the dust problems at the Wittenoom mine. In a report which Dr McNulty said he prepared for a meeting on that day, he said "I am seriously concerned that these cancers of the pleura which are being reported in large numbers from South Africa, are due to an individual susceptibility and a minimal exposure to blue asbestos." There is some dispute as to whether that memorandum was placed before the meeting which Mr Thomas, from ABA, attended, but it is significant that had he been asked, Dr McNulty would have expressed that as his view. 121Dr McNulty diagnosed his first case of mesothelioma in a Wittenoom worker towards the end of 1960. He had been supplied with literature concerning mesothelioma in 1960 by the Department of Health. He imagined that the situation would not be that he did not discuss that diagnosis with the people connected with ABA. 122Dr McNulty, at page 153, was asked this question: "Q. As a consequence of the diagnosis of mesothelioma in a former Wittenoom worker in 1960, what do you say as to your view, if any, as to dangers associated with tailings being used for road surfacing and the like in Wittenoom. A. Well initially I had the impression from reading the article you have referred to ... " and that was that by Wagner Sleggs and Marchand, in Vol 17 of the British Journal of Industrial Medicine, in 1960 - "... that the situation at Wittenoom was different from the situation in South Africa and it was a much more intimate relationship between the environment of people who were referred to in Wagner's paper developed mesothelioma, more intimate connection with the mine and mill, that is they lived really on the main site and that Wittenoom being removed, the town being removed from the mine site, then their situation was not as acute if you like. But I had developed a growing conviction that the introduction of tailings to the town in fact brought the mine to the town instead of the other way around." At page 157 Dr McNulty was asked: "Q. What I want to ask you is, did you have an opinion in 1961 as to whether the exposure to asbestos from road surfacing at Wittenoom may be dangerous. A. Yes I thought I expressed that explicitly. Q. Did you have an opinion in 1961 as to whether the tailings used on road surfaces at Wittenoom may be dangerous to persons in Wittenoom. A. Yes. Q. What was that opinion as to what dangers they may or may not suffer from. A. It was expressed in that sentence in the letter. Q. Perhaps you can tell us again. A. Well, that a combination of individual idiosyncrasy or predilection or genetic predisposition or something and minimal asbestos exposure such as from road surfacing, may be dangerous." 123The letter referred to was one written by Dr McNulty to Dr H Maynard Rennie, then a thoracic physician practising in Macquarie Street, Sydney, and from time to time a consultant to CSR. 124In the letter of 18 September 1961 (PX18), Dr McNulty wrote "Dry ore residue is dumped a few hundred yards from the main workings, and in a breeze blows all over the place. Even in the township much of the road and path surfacing is made of waste material from the mine, and blue asbestos fibres are obvious." He went on to say in his letter "No one connected with the problem should wait until conditions at Wittenoom are ideal and the foregoing does not suggest that this stage has been realised. The known hazard is real enough but reading papers on pleural mesothelioma, (notably J C Wagner [and others], British Journal of Industrial Medicine 1960 17-260), one is left with a suspicion that a combination of individual idiosyncrasy and minimal asbestos exposure such as from road surfacing, may be dangerous." At 190 of the transcript, Dr McNulty said that apart from writing to Dr Rennie, he had informal discussions with mine management and with the Shire, at which his feelings would have been expressed. 125On 6 November 1961, the Senior Inspector of Mines wrote to the manager of ABA at Wittenoom. Amongst other things, he said "Dust arising from tailings at the tailings bin, tailings dump and all areas built up with mine tailings, is a nuisance to persons employed on them and in their vicinity and detrimental to their health, and such places must constantly be sprayed or sealed to effectively lay the dust." 126It is said on the defendant's behalf that this related only to the tailings dump and not tailings in the town, but nevertheless it raises, in my view, the notion that tailings free to blow about where people are, was undesirable. There are, within the letter, various other matters which are irrelevant to the questions I am considering here, and therefore unnecessary to recite. 127Mr Lever's evidence, it is said, demonstrates clearly that the defendants knew of the dangers of asbestos dust, but attempted to hide the magnitude of the risk by damping down fibre and reducing production when mines inspectors were visiting. 128I should say I accept the evidence of Mr Lever on this question, and, as I have recited, there is no dispute now that the defendants knew that exposure to significant quantities of asbestos dust was dangerous. 129There is no doubt that the asbestos tailings are and were in fact dangerous, and carcinogenic, and exposure to them constituted a risk of injury. 130The defendants knew that exposure to asbestos was dangerous to its workforce. 131The evidence satisfies me that dust in significant and dangerous concentrations was present constantly in the township of Wittenoom, and constituted a risk of foreseeable injury. DID THE DEFENDANTS OWE A DUTY OF CARE TO THE PLAINTIFF AND OTHER RESIDENTS OF THE TOWN?: 132In WYONG SHIRE COUNCIL v. SHIRT 146 CLR 40, Mason J, (as he then was) said at 44 "... a duty of care arises ... when there exists a sufficient relationship of proximity, such as a reasonable man in the defendant's position would see that carelessness on his part may be likely to cause damage to the plaintiff." At 48, his Honour said: "The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur, may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable, but as we have seen, the existence of a foreseeable risk of injury does not in itself, dispose of the question of a breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 133In determining whether the defendants owed a duty of care to the plaintiff and residents of the town, guidance is to be obtained from the judgment of Mason J (as he then was) in SUTHERLAND SHIRE COUNCIL v. HEYMAN (1984-1985) 157 CLR 424. At 461, his Honour said: "And then there are situations in which a public authority not otherwise under a relevant duty, may place itself in such a position that others rely on it to take care for their safety so that the authority comes under a duty of care calling for positive action. Such a relationship has been held to arise where a person, by practice or past conduct upon which other persons come to rely, creates a self imposed duty to take positive action to protect the safety or interests of another or at least a warning that he or his interests are at risk." 134I have observed that the influence of ABA in the township of Wittenoom was pervasive. It controlled the town. In that situation, it created a self imposed duty to take positive action to protect the safety and interests of residents of the town and to warn them that their interests were at risk. 135At 479 Brennan, J. said: "Where a person, whether a public authority or not, and whether acting in exercise of a statutory power or not, does something which creates or increases the risk of injury to another, he brings himself into such a relationship with the other that he is bound to do what is reasonable to prevent the occurrence of that injury unless statute excludes the duty. An omission to do what is reasonable in such a case is negligent, whether or not the person who makes the omission is liable for any damage caused by the antecedent act which created or increased the risk of injury." 136By the nature of ABA's association with and influence in the town, I am of the view that the defendants put themselves into a proximate relationship with residents of the town, including those who were families of its employees. 137I am satisfied that the defendants owed to the plaintiff and to other residents of the town, the ordinary common law duty of care, namely to safeguard them against the risks of foreseeable injury. It is argued here that the defendants failed to do what was reasonable, that is to warn the plaintiff's mother that she and her family were at risk of injury. The evidence of Mrs Pedlar, the plaintiff's mother is, that had she known of the dangers of the surroundings, the circumstances in which her children played, or had she been warned of them, she would not have stayed in the town. This is credible evidence. 138Though the cases are different, the attitude of the plaintiff's mother, accords with the attitude of the plaintiff in ELLIS v. WALLSEND DISTRICT HOSPITAL (1989) 17 NSWLR 553. That was a case alleging medical negligence. It is authority for the proposition that where damage is caused by failure to warn a patient the question for determination is whether the risk was such that the patient should have been told and if told, would have accepted the treatment offered. The plaintiff in that case underwent surgery. There was a risk that the surgery might lead to paralysis. That in fact occurred, but the possibility of it had not been disclosed to her. She was asked in evidence, what would have been her attitude if it had been disclosed and whether she would have had the operation. She replied, "Definitely not". She said she "would have run to Bourke." In the same way the plaintiff's mother would not have remained in Wittenoom had she been warned that there was a risk of injury. Had she been warned they would have left immediately. She was given no warning. (See transcript p. 220) 139I am satisfied that during the whole of the time the plaintiff's family lived in Wittenoom, the defendants knew or ought to have known of the dangers of exposing the townspeople to asbestos dust. If they were ignorant of the dangers, a fact which I very much doubt, there was no excuse for their ignorance. CSR as a large and multi-faceted corporation, had an obligation, not merely to acquaint itself with what was in the literature, but to seek out information before engaging in an enterprise which was known to carry risks. It was not sufficient that it and ABA wait for information to be conveyed to them. They had a positive obligation to seek out information and acquire knowledge and direct and modify operations and conduct to accord with safe practices. 140PX57 reveals that in 1926 CSR constructed a research laboratory in Sydney. The laboratory was its main centre for chemical and technological research for improvement of factory processes and investigation of new processes of manufacture. I was referred to nothing within PX57, nor to anything in any of the many other documents placed into evidence, which indicates any research was undertaken to determine or prescribe safe or unsafe uses and methods of handling asbestos. 141It has been argued that the plaintiff has not demonstrated when it was that the tailings in which she played were taken to the town; and that if they were put there from its inception, and they were the offending fibres, then no knowledge in the defendants can be found to exist at the time the tailings were put there. 142In my view, it should at all times have been known to the defendants that tailings were dangerous. In my view tailings should never have been placed in the town. But they were placed and continued to be placed there in such quantities as, during the plaintiff's residency, to create daily a blue haze in the town, which were capable of causing a foreseeable injury. The plaintiff has proved that it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendants might cause damage of some kind to her. (See Glass JA in MINISTER ADMINISTERING THE ENVIRONMENTAL PLANNING ACT 1979 v. SAN SEBASTIAN PTY LTD [1983] 2 NSWLR 268 at 296) 143I am satisfied that the defendants and each of them, owed a duty of care to the plaintiff; that they failed to observe that duty of care; that as a result, the plaintiff was injured and that the risk of her injury was, at all times the defendants were operating their enterprise, foreseeable. 144It has been argued that because all asbestos exposure was causative of the plaintiff's mesothelioma, I should determine also what follows as a consequence of the breach of duty which the defendants owed to her father, but in the light of the conclusions as to which I have come, it is unnecessary to examine that issue. Whilst exposure to asbestos from both the tailings about the town and from her father's work clothes contributed to the mesothelioma, that from the town tailings would have been more significant and without doubt made a material contribution to the disease. (See BONNINGTON CASTINGS LTD v. WARDLAW [1956] AC 613) 145It has also been argued that consequent upon the decision of the High Court of Australia in BURNIE PORT AUTHORITY v. GENERAL JONES PTY LTD 120 ALR 42, I should conclude that the defendants owed the plaintiff a non-delegable duty of care, but again, in the light of the conclusions to which I have come, I think it unnecessary to consider that submission. 146The plaintiff has satisfied me that she is entitled to a verdict. DAMAGES: 147Some items of damage have been agreed and, if I may, I commend the solicitors for the parties for the agreements which have been reached and the compromises made on each side to achieve them. General Damages: 148The plaintiff is now 34 years of age and is the mother of two young children. The rest of her life will be painful and of short duration. She has undergone open thoracotomy, itself a painful procedure, and she gave her evidence before me in pain. She has developed a posture in an endeavour to reduce her discomfort. 149Mesothelioma and its consequences are frightening. Mesothelioma is a terrible disease. Morphine is the drug usually used in Australia for pain control. I have heard a sufficient number of cases of people suffering mesothelioma to know that pain control by morphine usually is inadequate. Morphine plateaus the pain; it does not remove it. It can cause and in the plaintiff's case probably has caused nightmares. The physical pain the plaintiff has suffered and will continue to suffer until her death, is great. The surgery she has undergone also produced for some time an increase in the level of her symptoms. During the course of this case the plaintiff returned to hospital for the aspiration of fluid. That process also was painful. 150The plaintiff, if I may say so, has faced her lot with courage and fortitude. She is conscious of the situation of her children and for as long as possible endeavoured to keep from them the news of her impending death. However, as her physical condition deteriorated, she thought it proper to inform her elder child, who is capable of appreciating the significance of her illness. Her concern has been more for members of her family than herself; however, she has experienced anger, fear and rage at her lot. She has been distressed at the prospects which she faces. Her emotional and physical conditions will deteriorate as her death comes closer. 151Most parents see their children grow to adult life. Ordinarily, parents share the joys of their children and the company of each other. Ordinarily, parents enjoy happy times with their children. Ordinarily, parents accept the responsibility of assisting their children to grow to adulthood and of advising them and encouraging them in life. The plaintiff will be deprived of these pleasures and of the satisfaction of responsibilities honourably discharged. 152The plaintiff has been deprived of a life in which she would participate, as she had in the past, in the community in which she lived. She is to be deprived of the company of her friends and acquaintances. 153It is difficult to recollect a more tragic case which has come for hearing before this Tribunal. The plaintiff's young age makes the deprivation she will suffer from loss of contact with her family profound. 154Authority prevents a comparison of awards of damages in like cases and in each case the assessment of general damages must be looked at according to its own facts. I have in a relatively short time and in few words, summarised the affects of the disease upon the plaintiff. The time spent and the words used are inadequate to describe accurately the pain and the loss and the suffering which the plaintiff has experienced and will continue to experience. 155I think a sum adequate to compensate the plaintiff for the pain and suffering she has endured and is likely to endure until her death is $150,000 of which $125,000 should be allocated to the past. LOSS OF EXPECTATION OF LIFE: 156The plaintiff is entitled to a sum for loss of expectation of life. A sum commonly awarded in the Tribunal, in cases of plaintiffs in their late 50s, or in their 60s or 70s, is $12,500. The plaintiff is a relatively young woman and therefore, in my view, is entitled to a sum greater than that ordinarily awarded to older plaintiffs. However, I am constrained by authority to award but a modest amount. I think the sum appropriate to award the plaintiff for loss of expectation of life, is $20,000. AGREED OUT OF POCKET EXPENSES: 157It has been agreed that in the event the plaintiff was entitled to a verdict, there should be included an amount of $4,400 for out-of-pocket expenses, and for future out-of-pocket expenses, $15,000. It was further agreed that in the event the plaintiff succeeded, an amount of $42,500 should be allowed for past and future home nursing care. COST OF CHILD CARE: 158What remains disputed is the plaintiff's past and future economic loss, and an amount to be allowed for child care. It has been agreed that if the plaintiff establishes, as a matter of law, that she is entitled to damages for past and future child care, then past child care amounts to $213.60 and future child care, $32,500. 159This question was considered by the Court of Appeal in BERNICLE v. CUTELLI [1982] 2 NSWLR 26. In that case, Reynolds and Mahoney, JJA. were of the view that loss of the ability to perform services for others gratuitously is a loss which, although compensable as part of a plaintiff's general damages, is not to be measured by the value of those services provided by another person. 160Senior counsel for the plaintiff has referred me to the decision of the High Court of Australia in VAN GIRVAN v. FENTON 175 CLR 327 and in support of his argument that those amount should be allowed, relies upon a passage from the joint judgment of the Chief Justice and Toohey and McHugh JJ. At 333, their Honours said: 161Consequently it should now be accepted that the true basis of a GRIFFITH v. KERKEMEYER [(1977) 139 CLR 161] claim is the need of the plaintiff for those services provided for him or her, and that the plaintiff does not have to show, as Gibbs, J. held, that the need "is or may be productive of financial loss". 162With respect to the argument advanced to me by Mr Rush QC, I am unable to agree that the case is authority for the proposition for which he contends. Their Honours referred to services provided for the plaintiff not by the plaintiff, and though BERNICLE was not referred to in VAN GIRVAN, I do not think that VAN GIRVAN alters the effect of BERNICLE which binds me not to allow a sum for past and future child care. ECONOMIC LOSS: 163The remaining matter to be considered is the plaintiff's claim for economic loss. This may be divided into claims for lost wages, for lost superannuation entitlements and lost long service leave. 164It is necessary to consider under this head, aspects of the plaintiff's early life. It is the fact that the plaintiff's father died some few years after the family left Wittenoom. She went with her mother on a holiday to Canada and then to the United Kingdom, where her mother remarried. After some time in the United Kingdom, the family returned to Australia, and the plaintiff's youth was spent in this country living with her mother and stepfather. There were frequent disagreements between the plaintiff and her stepfather and without reciting the detail of those disagreements, they led to the plaintiff's leaving home and seeking and obtaining employment in Canberra with the Commonwealth Bank. She did not last there long, and returned to her home. There then followed a period of unemployment. She underwent psychological counselling. 165The plaintiff commenced a career in the Public Service in 1978, or, at least, then commenced her training in the Attorney-General's Department. In 1979, she was given a permanent position in the staff branch of the Attorney-General's Department. At that stage, the Attorney-General of New South Wales was the Honourable F.J. Walker QC, MP. She came under his notice. She came also under the notice of the Honourable I.M. McDonald, who was before election to the Legislative Council of New South Wales, a staff member of Mr Walker. 166At some stage, Mr Walker assumed the portfolio of Youth and Community Services and it was whilst he was holding that portfolio, that the plaintiff came closer to his observation. She also came into contact with Ms Gay Raby, now a senior officer with Freight Rail. 167Mr Walker, now Minister for Administrative Services in the Federal Ministry, gave evidence before me. He formed an impression of the plaintiff which was such that he wanted her to become his private secretary. The work of a private secretary to a Minister of the Crown was described by Mr Walker as "an administrative task in one sense, in that the paper that flows across the Minister's desk and back, was controlled by the private secretary, the appointments that the Minister engaged in, it also requires political judgment about who you see and how you organise your time, that sort of thing." Mr Walker thought that the plaintiff would well be suited for work in a policy area in the Government and that she would be in high demand. Also, she would be able to secure good credentials from people like himself. 168Ms Raby was of a similar view. She thought that the plaintiff could achieve quite a good career in the community service policy area. 169The defendants submit that the plaintiff's career is unlikely to have been as was argued by senior counsel appearing for her. She had suffered depression and had received some psychiatric treatment. She had an unsettled early life. All this is true, but as it seems to me none of it interfered with her capacity to engage in employment, nor to advance and to come under the favourable notice of people who would be critical as well as capable of accurate assessment. 170It is true that whilst the plaintiff worked as a district officer in the Department of Youth and Community Services, she was subjected to stress. Dr Pickering, a psychiatrist qualified by the plaintiff, but called by the defendant, had some knowledge of the operation of that Department and those engaged in it. There is little doubt that those who work in what was described as face to face contact with their clients, are subjected to stress. There are many stressful occupations in the world, some of them in New South Wales, but that does not mean that those who carry them out are incapable of doing so or are unlikely to fail in their employment. The overwhelming impression I get from the evidence of Mr Walker and Mr McDonald, is that the plaintiff was well able to deal with stress and stressful situations. 171The plaintiff, whom it will be apparent I regard as a truthful and reliable witness, informed me that she intended to work until the age of 60 or 65. She had ceased work because she was having difficulty conceiving. After ceasing work she did conceive and a son has been born. 172The plaintiff's evidence, which I accept, is that she intended to return to the workforce and to engage in mediations in the Community Justice Division of the Department of Courts Administration then to return full time to the civil service. This, according to all the evidence, is something for which the plaintiff is qualified by experience and temperament. Moreover, the plaintiff enrolled at Macquarie University and embarked upon a course of study which would assist her in progression in the civil service, or as it is now called the public sector, upon her return to it. 173Employment in the public sector is now easier for married women than once it was. At various levels work may be done at home, flexible working times are permitted and whilst there is, as was emphasised by counsel for the defendant, a general curtailing of the number of public servants, there is ample opportunity for those qualified to work in policy areas. 174Calculations have been made by accountants engaged both on behalf of the plaintiff and the defendant, based upon the assumptions that the plaintiff would have returned to mediation work on 1 April 1994, but on 31 December 1995 that work would have ceased when she would, as she intended, have become a full time civil servant. It was assumed that her mediation work would be for 48 hours a week which returned $15.07 per hour, that each mediation would take three and a half hours and that there would be two mediations per month. It was assumed that she would commence as a Grade 6 civil servant and progress in accordance with a schedule in Exhibits PX-46 and DX-11, becoming ultimately a Grade 12. Whilst agreeing to the correctness of the calculations, the defendants do not agree that the plaintiff's career in the civil service would have been as assumed. 175I am, however, satisfied that it is probable that the plaintiff would have returned to work and progressed as postulated. I am of the view that her previous psychiatric consultations and disturbed childhood would have had no effect upon her employment nor upon her achieving her intention to remain in the workforce. 176It is argued that I should conclude that the plaintiff would retire when her husband retired. The plaintiff indicated she intended to work till the age of 60 or 65. I see no reason to disregard that evidence though, because of the alternatives, I will proceed upon the basis that she would have worked to age 60. 177The calculations which have been agreed between the parties on the assumptions made and which I am satisfied would probably have become facts, entitle the plaintiff to a sum of $473,000. It should be said that that sum allows for deductions for the vicissitudes of life and for her own maintenance. 178A claim is made also for lost superannuation benefits. There is little difference in the calculations made by the accountants engaged on behalf of the plaintiff and the accountants engaged by the defendants. However, whilst the plaintiff's calculations put the sum at $112,694 that is a figure assessed upon investment returns in superannuation funds over the past 10 years. A figure has been taken by the defendants' accountant on investment return over the past 12 months and whereas the plaintiff's accountant postulates a return in the order of 10 per cent, the defendants' accountant postulates a net return in the order of 7.5 per cent. 179It is my view that the accountant qualified by the plaintiff has taken what is the more reasonable and probable approach and therefore his calculation of the loss of $112,694 should be accepted. 180The defendants argue that from this, should be taken a sum which would reflect the cost of the plaintiff's maintenance, after the superannuation became payable. Though it has not been recited, a figure of $100 was accepted by me as being the cost of the plaintiff's maintenance during her working life. I can see no reason in fact or in law why further deductions should be made from the value of the lost superannuation and I would propose therefore to award the sum of $112,694 to the plaintiff. 181Before leaving the case, there is one thing I regret should be said and I am unhappy to say it. Whilst the plaintiff's husband was in the box, senior counsel for the defendant asserted that he was to be the beneficiary of any money to be awarded to the plaintiff. In my view that remark was insensitive and unworthy of Mr Poulos. It was open to him to withdraw the remark, but he declined to do so. There was, in my view, no basis for making it. In my view it should not have been made. 182The plaintiff is entitled to a verdict made up as follows. General damages $150,000 Interest on past general damages $2,000 Loss of expectation of life $20,000 Out-of-pocket expenses $4,400 Future out-of-pocket expenses $15,000 Past and future home care $42,500 Wage loss $473,000 Lost superannuation $112,694 Loss of long service leave agreed at $4,000 Making a total of $823,594 183There will be verdict and judgment for the plaintiff against the defendants in the sum of $823,594. The defendants will pay the plaintiff's costs. 184I grant a stay conditionally upon the defendants': (1)Paying to the plaintiff's solicitors within 14 days the sum of $412,000. (2)Lodging a Notice of Appeal in the Court of Appeal Division of the Supreme Court of New South Wales within 28 days. (3)Agreeing to expedition of the appeal. Solicitors for the Plaintiff: Turner Freeman. Solicitors for the Defendants: Ebsworth & Ebsworth. 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. Decision last updated: 24 May 2011