Supreme Court New South Wales Medium Neutral Citation: Fawzi El-Saiedy v New South Wales Land & Housing Corporation [2011] NSWSC 820 Hearing dates: 27, 28 and 29 June 2011 Decision date: 09 August 2011 Jurisdiction: Common Law Before: Harrison As J Decision: 1. The defendant is to pay the plaintiff the sum of $4000. 2. Costs are reserved. 3. The matter is stood over for hearing on 1 September 2011 at 10.00 am. Catchwords: REMEDIES - repairs - pursuant to a residential tenancy agreement plaintiff as lessee sought to make defendant as lessor carry out the work on rented premises to remove and replace all the asbestos cement wall linings DAMAGES - contract - remoteness - whether plaintiff could seek damages for discomfort and loss of enjoyment of home life. Legislation Cited: Civil Liability Act 2002 Residential Tenancies Act 1987 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulations 2001 Cases Cited: Baltic Shipping Company v Dillon [1993] HCA 4 Barton v Lantsbery [2004] VCAT 926 Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 Hadley v Baxendale (1854) 2 CLR 517; [1843-60] All ER Rep 461; (1854) 156 ER 145 Hamlin v Great Northern Railway Co (1856) 26 LJ Ex 20 Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 Nolan v MBF Investments Pty Ltd (No 3) [2009] VSC 457 Spathis v Hanave Investment Co Pty Ltd [2002] NSWSC 304 Texts Cited: The Code of Practice and Management and Control of Asbestos in the Workplace NOHSC 2018 (2005) Working with Asbestos Guide 2008 Category: Principal judgment Parties: Fawzi El-Saeidy (Plaintiff) New South Wales Land and Housing Corporation (Defendant) Representation: D Hawkins (Plaintiff) M Barko (Defendant) JK Solicitors (Plaintiff) McCabe Terrill (Defendant) File Number(s): 2009/294748 Judgment 1HER HONOUR: It is common ground the plaintiff is a tenant of XXX Villawood (the premises), pursuant to a residential agreement with the defendant (Housing) dated 7 March 2007. It is also common ground that the premises and gardens of the premises contain asbestos as described in the Australian Safer Environment and Technology Pty Ltd report dated 19 February 2008. Hence, declarations (1) and (2) in the Further Amended Statement of claimed (FASC) filed 29 November 2010 are no longer sought. Matters in dispute 2The plaintiff seeks orders that Housing carry out the following work on the house and in the front and back yards at the premises (which premises are the subject of a residential tenancy agreement between the defendant as lessor and the plaintiff as lessee), namely: (a) Remove and replace all the asbestos cement wall linings and all asbestos cement sheets and linings of ceilings in the house; ... (d) Remove and replace all the asbestos cement sheets and linings on the premises including in the electricity meter box; ... within such a time as this Court deems appropriate. Matters no longer in dispute 3The plaintiff had sought orders that Housing carry out the following work: (b) Collect and remove all the loose pieces of broken asbestos cement from the front and back yards; (c) Excavate, remove and replace all the topsoil in the front and back yards; ... (e) Further and other work necessary to ensure that the house and front and back yards are decontaminated and can be used and occupied without undue risk of inhalation of asbestos fibres. 4The Housing has agreed to carry out this work outlined in paragraphs (b), (c) and (e) above. Housing has also agreed to provide adequate alternative accommodation to the plaintiff pending removal of the asbestos from the premises and garden while the work is carried out and until a clearance certificate has been obtained. The premises 5Both parties relied on the expert reports of occupational hygienists. The plaintiff relied on the reports of Mr De Silva of Australian Safer Environment & Technology Pty Limited (ASET). Housing relied upon the reports of Mr Rhyder of Pickfords and Rhyder Consulting Pty Limited (Pickfords). It is Housing's case that the expert evidence upon which the plaintiff relies, does not establish that the nature and extent of the rectification works Housing has offered to undertake (as recommended by its experts Pickfords) are inappropriate or unreasonable. 6The experts agree that the premises located at Villawood contain asbestos. The types of asbestos are, asbestos based fibre cement material containing chrysotile, crocidolite and amosite asbestos (ASET report ASET11636/14816/1 - 3 dated 2 April 2007). The parts of the house that are affected are the kitchen, bathroom, laundry, the eaves and the electricity box located on the outside the house (the affected areas). The current situation at the premises 7The premises are a single storey three bedroom brick home built on a suburban block with a front and back yard in Villawood. The house was built in 1959. It appears that the asbestos used in the bathroom, kitchen, laundry, eaves and electrical box was installed when the house was built. That is, the asbestos has been in situ for 58 years or so. It appears that in early 2007, an outhouse in the backyard was demolished. Loose pieces of asbestos were left in the front and back garden. So far as the front and backyards are concerned, the parties agree that they have to be removed and agree on the method of removal. 8The plaintiff resides at these premises with his wife and four children aged seven, five, three and a baby just over one year old. The plaintiff has a Master of Science in Production Engineering, a Master of Mechanical Engineering and a Bachelor of Science in Mechanical Engineering. (T 45.44-50). The plaintiff is currently on a disability pension due his medical condition. He suffers from a range of conditions including multiple sclerosis, chronic idiopathic neutropenia, which requires three injections per week for life and has side effects such as intermittent fever. He also suffers from liver active fibrosis, chronic lower back pain due to discopathy at L5/S1, severe tinnitus and severe anxiety disorder due to home conditions that are exacerbated by asbestos. His multiple sclerosis had not deteriorated since 1999. (See Report of Dr Alameddin GP dated 23 April 2008). 9Since March 2007, when the plaintiff and his family moved into these premises their activities in the house have been severely curtailed. Shortly after the plaintiff and his family moved into the premises, he became aware that the house contained asbestos. The affected areas of the house, the kitchen, laundry and bathroom, are the high traffic areas of the house. The plaintiff gave evidence as to what steps the family have taken since March 2007 to avoid the affected areas as much as possible. Laundry 10The plaintiff and his wife do not allow the children to go into the laundry because the plaintiff is scared they could be become sick from broken and damaged asbestos. He and his wife only enter the laundry on a daily basis to load and unload the washing machine. They do about two loads of washing per day and it takes about five minutes to load the machine and five minutes to take the washing out. Kitchen 11The kitchen and the dining rooms are in one open area. The plaintiff has moved the fridge out of the kitchen into another room. Since he found out about the asbestos in that area the family have not eaten a meal inside the dining room. When the plaintiff and his wife go into the kitchen, they use the stove to cook quickly, take the food out while it is still hot and keep it inside another room. The food is prepared in the living room and that is where they eat their meals. They keep the door between the laundry and kitchen and dining room area closed all the times. When the plaintiff's wife is in the kitchen and their son is not in the kitchen, their son bangs on the door so he can come in and be with them. The plaintiff gave evidence that it is a "nightmare" trying to control three kids and a younger baby in this situation. Because of the asbestos dust, he says, they do not clean the kitchen or the stove. Bathroom 12The children are not permitted to use the bathroom. The children bathe using a plastic bath container located in one of the bedrooms. The children have a potty in the other room. The plaintiff does not allow his children to use the bathroom because of damaged asbestos and a worsening mould situation. When the plaintiff and his wife use the bathroom they are very careful not to touch anything inside that area. 13The plaintiff's evidence is that there are holes in the bathroom walls and material has been taken out of the wall lining. Some of the wall has been patched and painted, however the plaintiff has observed that patches have come out of the walls in both the bathroom and the laundry. The plaintiff says that a hole next to the cistern was sealed but after some time the material used to seal it went inside the wall. It has not been repatched. The plaintiff saw the ASET technician patch the wall when he came to inspect the premises and take some samples, although the patch then went inside the wall. The experts agree that there is a hole in the wall behind the cistern. Front and back yards 14It is not in dispute that there are loose pieces of broken asbestos cement in the front and back yards. The plaintiff and his wife do not allow their children to play in the yards. The plaintiff does not mow the front or back lawns because it may disturb the asbestos. He cannot grow vegetables, as there is asbestos in the topsoil. The lawns in both the front and back yards and nature strip are overgrown and this has resulted in complaints from his neighbour. The Joint Expert Report (Exhibit H) 15On 10 June 2010 the plaintiff's and Housing's experts prepared a joint report. Mr Mahen De Silva is the plaintiff's expert and Mr Gary Ryder is the defendant's expert. Both experts gave evidence and were cross-examined. 16Mr De Silva's qualifications are as follows. In 1980, Mr De Silva completed a Bachelor of Science Special Degree (Environmental Science) at the University of Colombo. In 1985 he completed a Certificate-Radio-Isotopes at ANSTO Training (Australian School of Nuclear Technology) and a Master of Science (Nuclear Science) from the University of Colombo and in 1996, he completed a Graduate Diploma (Occupational Hygiene) from Deakin University. He has been an occupational hygienist since 1989. Although qualified to be a member of the Australian Institute of Occupational Hygienists Mr De Silva is not a member. Mr Rhyder is a member and office holder of the Australian Institute of Occupational Hygienists. Mr De Silva acknowledged that Mr Rhyder is senior to him. 17Since 1999, Mr De Silva has been the Managing Director of Australian Safer Environment & Technology Pty Limited (see Ex J). His laboratory is accredited to the National Association of Testing Authorities. It is of an international standard and most laboratories are accredited to that standard. Aside from analysing samples in March 2007, Mr De Silva provided reports dated 19 February 2008, 31 August 2009, 18 December 2009 and 16 March 2010. (Ex K). There are photographs of the affected areas taken by Mr De Silva in the 2007 and 2010 reports - see Exs B, C, D, E, L, M (plus CD) and N. 18Mr Rhyder's qualifications are as follows. In 1983, he completed a Bachelor of Applied Science (Applied Chemistry) Degree. In 1995, he completed a Master of Occupational Health and Safety Degree. He is a full member and Fellow of the Australian Institute of Occupation Hygienists (MAIOH). He is a Certified Occupational Hygienist (COH) with the Australian Institute of Occupational Hygienists. Since 2003, he has been the Managing Director of Pickford & Rhyder Consulting Pty Ltd. He has been an occupational hygienist since 1985. Mr Rhyder's reports are the first ones he has done for court. His reports are dated 17 August 2007, 6 September 2007 and 9 September 2009 (Ex 2). 19It is fair to say that both experts are experienced in conducting site inspections, taking and analysing material in relation to the presence of asbestos. 20Counsel for Housing submitted that Mr De Silvia moved from the role of an independent expert to the tole of an advocate for the plaintiff's cause and therefore the evidence of Mr Ryder should be preferred. While the plaintiff paid for the analysis and reports in relation to initial samples, Legal Aid has paid for these reports. 21When Mr De Silva was being asked by Counsel for Housing about the affected areas of the premises, he explained that the photographs he took in 2007 and 2010 show signs of deterioration; that holes have been there for the last five years; that two hygienists have attended to this matter; that he made a recommendation yet nothing has happened. Mr De Silva then expressed his dissatisfaction and said: "The State is responsible for his and has failed in this instance". (T 118). Mr De Silva was asked, "Have you become personally involved?" (T 119) and he replied in the negative stating that was his independent opinion and that, "We give every client an independent opinion." When asked, "Mr Rhyder gave his independent opinion?" Mr De Silva replied, "But nothing has happened, we both have attended to this matter and nothing has happened for five years." When Mr De Silva was asked, "You may not appreciate that other things have been going one that you are not aware of?" He conceded that could be true. (T 119). I do not regard Mr De Silva as doing other than giving his opinion as to what needed to be done. His position did not change from that expressed in his written opinions. 22Both experts agree that where there is no damage to the asbestos material, it does not pose any safety risk and where there is slight damage, it can be fixed or maintained. The experts disagreed on questions (2), (3), (5) and (6). That is, they disagreed that the premises, in regard to asbestos, is inhabitable in its current condition; whether affected areas require total removal of asbestos; whether there is a risk of injury to the tenants; and whether the proposed work constitutes repairs or renovations. These issues will be examined below. I have deleted the parts of the answers that are the subject of agreement referred to at the outset of this judgment. The plaintiff's expert referred to lead but as this was not pleaded and the plaintiff's counsel accepted this is the case, so I have deleted any references to lead. I shall refer to each question in chronological order except that I have referred to the answers to Q 6 later in this judgment, as it is relevant to what constitutes "reasonable repair". Q 2 - Does the asbestos render the premises uninhabitable? If so why? 23Mr De Silva explained that there can be exposure due to natural driving forces, such as asbestos getting dislodged from broken edges and becoming airborne and/or there can be exposure due to human activities such as lawn moving, gardening, vacuuming, children playing in the garden etc. Although the risk is low to moderate from exposed/ broken edges, this situation is not acceptable, especially when the risk can be totally eliminated by removing the source/s, that is, removal of asbestos contaminated soil and damaged asbestos linings. 24It is Mr Rhyder's opinion that the premises, in regard to asbestos, are inhabitable in its current condition. It is Mr Rhyder's opinion that in areas where the asbestos cement is damaged it should be repaired or sealed to improve the amenity of the premises. The damaged walls are to be repaired and/or replaced and sealed. The broken exposed edges are to be sealed with Emerclad paint. As I understand it, although I could not find it in Mr Ryder's reports, he says that before any work is undertaken a risk assessment should be carried out. This prompted this court to ask the following questions of Mr Rhyder in relation to what a risk assessment involves. (T 152). "HER HONOUR Q ... How is that different to what Mr De Silva has done by sampling some walls and looking at the asbestos? I want to ask you two questions but I will start with the first one which is a different question. Who conducts this assessment of material? A. Generally that is done by an occupational hygienist in regard to the wall material. Q. Someone in the same field as you? A. Yes. HAWKINS Q. So you could do it, couldn't you? A. Yes I could. HER HONOUR Q. Then my next question was Mr De Silva, as you read his report, he sampled some of the walls? A. Yes. Q. I guess to ascertain whether it is asbestos or not. What else would this risk assessment of material do? A. It would look at the condition of the material itself as to whether it is in a sound condition or deteriorating. Q. But how would that be done? A. That would generally be done by visual examination. Q. Isn't that what has been done? A. Yes. Q. Anything else that they would do? A. That would be it." 25So, the risk assessment is the same process that has already been undertaken by both occupational hygienists, although I accept that a year or so has elapsed since the last risk assessment was carried out and some further deterioration may have occurred. Mr Rhyder says that it should be done again so that decisions can be made as to whether particular panels that contain asbestos need to be removed or repaired. Q 3(a) - Do the premises require total removal of asbestos? 26As I understand their evidence, both experts agree that if left undisturbed, fibro sheeting that contains asbestos poses no health risk. They also agree that if only one wall containing asbestos had a hole in it, all panels containing asbestos in the affected area would not have to be replaced. But the damage to the panels containing asbestos in the affected areas is more extensive than the examples given above. 27It is Mr De Silva's opinion that the affected parts of the premises require total removal of asbestos. He gives ten reasons as to why the premises needs total removal of asbestos. They are: 1. The damages observed are widespread [totalling approximately 30 small and large cracks, holes detected. Some of the damages seem to have been patched earlier, but as most of the patched areas show signs of loosening up, the remaining patched areas can be expected to loosen up and come out]. 2. Some previously damaged areas which had been repatched are now showing new damages and/ or the patches or parts of them have come out re-exposing asbestos edges. Most areas in the laundry show signs of deterioration having a bubbled up like appearance at the bottom of some of the asbestos wall panels which is most likely due to the absorption of moisture. There is evidence that not only asbestos linings but the timber backing support columns have deteriorated, which is most probably due to water seepage. The laundry has a wall area that can be pushed in when little pressure is applied, which indicates that the inner timber support plank is deteriorated. This can lead to collapse of the wall causing asbestos contamination and create an exposure situation as a secondary effect. 3. The ceiling in the bathroom is now sagging and showing signs of deterioration with crack like lines appearing and growth of mould over it, which indicates that it has moisture in the material - see photograph in Ex B which show the extent of the mould in 2010. 4. There is excessive mould growth in the kitchen and bathroom areas that will have health effects. If clean up of mould is undertaken on already deteriorated asbestos cement wall and ceiling linings, there is a strong possibility that asbestos will be liberated leading to contaminations and exposures. Excessive mould growth in these areas is also an indicator of moisture in the asbestos cement sheets that will aid the degradation process further. Moisture in the asbestos fibre cement sheets will cause the sheets to further deteriorate and the enhanced by mould growth will further destabilize the material and ultimately causing these sheets to crumble and collapse. This is evident in the case of ceiling lining in the bathroom that has started to sag with crack like lines appearing. Use of chemicals to cleanup the mould may further the deterioration process of the material, enhancing release of asbestos fibres from the surfaces being cleaned. 5. Total area of all asbestos based materials is approximately 70 m2 and is confined to the laundry, kitchen, bathroom and eave linings outside. Most asbestos panels in the above three areas are broken or damaged in areas. In addition the electrical meter box has deteriorated and it has damaged asbestos based inner linings with asbestos cement fragments and there are loose asbestos fibres present in the dust inside the box. 6. The cost of removal would be less than repairing, maintaining, carrying out risk assessments, reviewing risk assessments and monitoring. Monitoring the asbestos materials will be at a significant cost as visual inspections, air monitoring etc have to be carried out at least once a year or earlier by an occupational hygienist or an experienced person. 7. The eave linings are in a state that is not practicable to repair as they are covered with mould and there is evidence of plant growth over them. There are few damaged and sagged areas. The eave linings are bent downwards probably due to the deteriorating timber supporting structure. If this deterioration process continues, the eave linings may ultimately collapse, damaging asbestos linings and also causing liberation of asbestos fibres/fibrils to the surroundings thus endangering the occupants and neighbours. Therefore all eave linings should be removed. 8. In relation to the NOHSC 2018 (2005) Code of practice for the Management and Control of Asbestos in the Work Place, Mr De Silva says that consideration should be given to the removal of asbestos containing materials during renovation, refurbishment and maintenance rather than other control measures such as enclosure, encapsulation or sealing. I shall refer to this Code of practice in more detail later in this judgment. 9. Mr De Silva states that it is essential to determine whether maintenance or service work can be done without disturbing the asbestos containing materials and in this house it will be impossible as most of the materials are in damaged condition and/or are likely to get damaged due to other contributory factors. 10. The undamaged portion of the asbestos based linings in this house is small compared to the damaged or deteriorated portion. Mr De Silva recommends removing and replacing all deteriorated/damaged mould bearing asbestos panels, obtain clearance and replace with non-asbestos based materials. 28On the issue of the electricity meter box, Mr De Silva says it should be replaced. He gave evidence that he was concerned about the meter readers who have attended the premises in the past to read the meter. It is his opinion that there is a big chance that they have been exposed because the meter box has dust and a lot of broken edges (T 118). The warning that the box contains asbestos is located on the inside of the box. By the time the label is visible to the meter reader the meter box has already been opened and the exposure would by then possibly have occurred. 29Mr Rhyder does not accept the underlying premise that there are dust particles in the meter box. Hence he does not agree that the electricity meter box should be replaced. It is Mr Rhyder's opinion that the asbestos cement sheets and linings on the premises including the electricity box are in good condition. Where there are holes, cracks or raw edges he believes these areas should be repaired or sealed. He says that the electricity box doors are normally left closed and the occupants only need to access the electricity box in an emergency and that the panels in the electricity box are in good condition. 30So far as the bathroom ceiling was concerned, in cross-examination Mr De Silva gave evidence that he was entitled, in accordance with ATA guidelines to presume that there was asbestos in the bathroom ceiling. However, by means of observation through experience and generally from the other outlay of material and a rippling affect on the surfaces he had no doubt that the ceiling and lining of the bathroom ceiling and outside eaves were asbestos based. (T 139). 31Mr Rhyder's opinion was that the underlying asbestos cement was in good condition. Mr De Silva disagreed with this opinion and stated that the underlying asbestos cement showed signs of "bubbling up" and cracks and mould are present. 32The following records Mr De Silva's opinion. So far whether as the underlying asbestos cement being in good condition, Mr De Silvia stated: "A. They are not in good condition. They show signs of bubbling up, there is cracks, there is other things like mould ... And there are so many areas damaged. We have marked around 30 damages, small and large in the whole house. So when it comes to this stage it's, there is no point repairing and keeping, maintaining. Because the, even the ones that have been fixed before seem to be coming out now. There are signs of that in various places I have observed. And also like maintaining. One has to employ an expert every year to inspect these things, carry out air monitoring just to make sure nothing comes out. So it is a small place and it is better to get rid of the whole thing, asbestos materials and to replace with materials which will at the same time get rid of any lead paint, the mould covered walls and also will stop even the workers who go to repair getting exposed to asbestos because you need very specialised workforce to fix these premises because it can be dangerous. Just the mould can cause problems for the workers who go in there to repair ... ." (T 101.48-50; 102.1-13) 33Mr Rhyder states that the asbestos cement walls and ceiling in the bathroom and laundry currently have mould on them and this will have to be removed prior to any repair work. The eaves need to be repaired and any plants growing on them need to be removed. It is Mr Rhyder's view that this can be done without damaging the asbestos cement panels. 34When Mr Ryder was asked if he would agree, that "the mould, water seepage, structural problems especially in the laundry ... with the posts behind the actual panel and the outside where there are issues in the eaves with respect to plants growing" complicates the issue, he replied, "yes." (T 151) Q 3(b) - What works are required for the premises to be habitable? 35It is Mr De Silva's view that all asbestos based materials including asbestos based ceilings, wall linings and electrical meter box inner linings should be removed. 36Mr Ryder's opinion is that the repair work would improve the amenity of the premises but the current damage to the asbestos cement is not a health risk to the occupants. Q 5 - Risk of injury to tenants Does the asbestos in the premises and on the property, if any represent any risk of injury to the tenants? If so: (a) What is the risk of injury and when would the risk of injury arise? 37The following exchange occurred during cross-examination (T 108.10): "Mr Barko: And you were satisfied that for the four years that you had been involved in this matter that was sufficient to ensure the reduction or minimisation of airborne particles? Mr De Silva: Well, it is a chance because one single fibre getting loose from asbestos material and falling on the ground and one person trampling it once can produce about thousand fibrils. That thousand fibrils, if we apply pressure by walking or something, or some human action it can produce 1 million fibres or more than a million fibres. This is why asbestos is dangerous. Mr Barko: So what you are saying is by walking through the house you can disturb fibres? Mr De Silva: If the chances low, chances are low but the thing is there is a risk. That risk is not zero. So in the plaintiff's house the fibre material are damaged. There is a possibility that here and there due to wind due to animals, cockroaches or whatever, there can be fibres getting released. The chance is low but we don't want any chance here." 38Mr De Silva says asbestos in the premises represents a risk of injury to the tenants, the effects of which may happen long after an exposure to asbestos and asbestos exposure is likely to cause lung cancer, mesothelioma disease, gastrointestinal and laryngeal cancers, which may take several years to develop. Therefore, Mr De Silva believes that any possibility of exposure to deadly asbestos should be stopped before exposure takes place that can lead to the injuries, symptoms of which will only show up after a long time. Asbestos containing materials can release asbestos fibres into the air whenever they are disturbed and non-friable asbestos containing materials that have been subjected to extensive weathering or deterioration also have a higher potential to release asbestos fibres into the air, as stated in the NOHSC 2018 (2005) Code of Practice for the Management and Control of Asbestos in the Work Place pages 15 and 16 . 39According to Mr De Silva, breathing in fibres of asbestos brings a risk of asbestosis, lung cancer and mesothelioma. Threshold of asbestos fibres needed to develop disease conditions is unknown. Evidence suggests that asbestos also causes gastrointestinal and laryngeal cancers in humans, but to far lesser extent than lung cancer according to many research papers. The Workcover Guide 2008 also states the same. Therefore any chance of ingestion of asbestos or inhalation of asbestos fibres should be stopped by eliminating the sources, in this house namely, the deteriorated/damaged asbestos fibre cement linings. 40Mr De Silva also recommends that the non-asbestos areas of the house be treated to get rid of any mould, which could be growing on non-asbestos, based materials of the house. This may also stop any water seepage into building materials, as the location/site seems to have high moisture content in the soil, which seems to be the root cause of material deterioration and mould growth. 41Mr Rhyder had stated in his report that the risk of injury from asbestos is through inhalation and there are no activities being carried out on the premises that would generate respirable fibres causing asbestos related illness. Mr Ryder states that during normal residential activities there is no risk of injury from asbestos fibres. During cross-examination, Mr Rhyder gave evidence that if a small child touched either the surface of asbestos or a broken edge of asbestos nothing would be generated. Even if there were some fibres hanging out from the edge and a child touched it, in his opinion, no risible fibres would be generated as a result of that activity. However, if a child touched asbestos and put his or her hand into their mouth and ingested them, there is a risk to their health and the level of hazard involved when swallowing asbestos is actually quite high (T 149). Renovation or refurbishment? Question 6 - Is the work required in the premises concerned classified as a renovation and/or refurbishment? 42Is the work required in the premises concerned classified as a renovation or refurbishment or both? If the answer is yes, should all damaged and undamaged asbestos based material be removed at the same time as recommended by WorkerCover Guide and pursuant to NSW Occupational Health and Safety Regulations 2001? 43Mr De Silva classifies the work as repair/renovation. He says the work required in this premises could be classified as a repair/ renovation and all asbestos materials should be removed and replaced with non asbestos based materials as recommended by the Code of Practice and due to all reasons mentioned above. The asbestos based materials in this house could be well over 30 years old and they show all signs of deterioration. The supporting timber frameworks are also deteriorated. 44Mr Rhyder classifies the work as a renovation and refers to the Macquarie dictionary definition which is to make new or as if new again; restore to good condition; repair. 45However, even Mr Rhyder's definition refers to repair. It is my view that replacement of sheets of asbestos in the kitchen, bathroom and laundry constitute repair not renovation. The Code of Practice for Management and Control of Asbestos in the Workplace , Workplace Guidelines and the Regulations 46There are three instructive documents that have been referred to by both experts. They are the Code of Practice for the Management and Control of Asbestos in the Workplace [NOHSC 2018 (2005)] (Code of Practice), the Occupational Health and Safety Regulations (the Regulations) and Working with Asbestos Guide 2008 issued by WorkCover NSW (The WorkCover Guidelines). Both experts agree that the WorkCover Guidelines while instructive do not apply to residential premises. They do come into play when workers attend the premises to carry out work. 47The WorkCover Guidelines states that the ultimate goal is for all workplaces to be free of asbestos containing materials [ACM] and where practicable, consideration should be given to the removal of ACM during renovation, refurbishment and maintenance rather than other control measures such as enclosure, encapsulation or sealing (pages 2 and 19). The elimination/removal of asbestos in the workplace is most preferred. Attention is also drawn to s 9.4 Identifying ACM at domestic premises. It states: "9.4 Identifying ACM at domestic premises All contracting businesses that perform work which may involve exposure to asbestos, including work at domestic premises, should establish an asbestos management plan for the work they are contracted to carry out (see Part 8). Although many domestic premises contain ACM, they are unlikely to have a register of ACM for reference. Accordingly, before commencing any work in domestic premises precautions should be taken to identify the likelihood that ACM are present. Although particular caution needs to be taken when working on buildings built prior to 1990, recycled materials in later buildings may also contain asbestos. ... Work at domestic premises that may involve exposure to ACM includes: · demolition and renovation; · electrical maintenance or installation, including work on electrical meter boards; · the maintenance or installation of walls, roofing, ceilings or flooring; and · plumbing maintenance or installation. If there are any known or suspected ACM on the premises the owner, occupier and/or resident should be informed. Before work continues, the presence of asbestos should either be confirmed or ruled out through sampling and analysis (see section 9.1) or presumed (see section 9.2). For confirmed or presumed ACM the work should then proceed only in accordance with the risk assessment and control measures outlined in Part 10 and Part 11 of this code of practice. The NOHSC Code of Practice for the Safe Removal of Asbestos [NOHSC:2002 (2005)] should also be referred to if removal is identified as the best control measure. The owner, occupier and/or residents of the premises should be informed of the nature of any work to be undertaken and the reasons for the precautions. If ACM remain is to remain in situ, the owner of the premises should be provided with a report outlining the location of the ACM and any work carried out on the ACM. " 48Thus the occupier of the premises should be informed of the presence of suspected ACM on the premises, its location and any work carried out on the ACM. 49Part 9 refers to Part 10 (Risk assessment) and Part 11 (Control Measures) of the above Code of Practice . Although the Code of Practice mainly covers the work environments it imposes almost same recommendations for domestic premises through Part 10 and Part 11. 50The WorkCover Guidelines at Part 11 say that "ACM need to be removed before demolition, partial demolition, renovation or refurbishment if they are likely to be disturbed by those works", and that it is "essential to determine whether maintenance or service work can be done without disturbing the ACM." 51The objective of the Code of Practice , found in Part 2, is to set "out the steps to be taken to eliminate or otherwise minimise the risks of exposure to airborne asbestos fibres, including the identification of ACM, risk assessments and the implementation of control measures." 52The experts also agree that the Occupational Health and Safety Act 2000 ( OHS Act ), and its subordinate legislation are only applicable to workplaces and not residential properties. The OHS Act applies when tradespeople come to do work in the premises. The Controller of the premises, under the OHS Act , has responsibilities to these people because it becomes their workplace. However, the Code of Practice provides useful information on how asbestos should be managed and Mr De Silva says that it should be used as a guide for domestic premises. 53Regulations 43 and 44 of the Regulations provide: "43 Asbestos-risk assessment and control A controller of premises that contains asbestos or asbestos-containing material must ensure that risk assessment and control measures are carried out in accordance with the document entitled Code of Practice for the Management and Control of Asbestos in the Workplace [NOHSC: 2018 (2005)] published by the NOHS Commission, as in force from time to time." 54Regulation 44 provides for record keeping-register of asbestos. It provides: "A controller of premises must ensure that: (a) a register, in which the type, condition and location of all asbestos and asbestos-containing material in any place of work is recorded, is prepared and maintained, and (b) any action taken to control asbestos and asbestos-containing material in the place of work or in plant at the place of work is recorded in the register, including details of: (i) any assessment concerning the asbestos that took place before the work was carried out, and (ii) if the work was carried out by a contractor rather than by an employee of the controller, the name of the person who carried out the work, and (iii) the date on which the work was carried out, and (c) all occupiers of the place of work are provided with a copy of the register and all updates to it. 55Housing did not produce a register of asbestos in answer to a Notice to Produce in relation to these premises. What is Housing required to do under Clause 11 of the Lease? 56Both parties relied upon paragraph 11 of the residential tenancy agreement. Paragraph 11 reads: "CLEANLINESS, REPAIRS AND DAMAGE TO THE PREMISES 11 The landlord agrees: 11.1 to make sure the residential premises are reasonably clean and fit to live in; and 11.2 to keep the premises in reasonable repair considering the age of, the amount of rent paid for, and the prospective life of the premises." 57This provision mirrors s 25 of the Residential Tenancies Act 1987, which was in force at the time the lease was signed in 2007 . 58These premises were built in 1959. Nothing specific was put in evidence as to the prospective life of the premises. The plaintiff and his wife pay about $166.00 per week in rental payments to Housing in accordance with the residential agreement. 59Housing is obliged under the agreement to keep the premises fit to live in and in reasonable repair considering the age, the amount of rent paid and the prospective life of the premises. 60Housing submitted that by commissioning an expert report from Pickfords and carrying out the works recommended by that organisation, it has acted reasonably and in accordance its obligations under the Residential Tenancies Act 1987 and at common law. It says that the plaintiff would not be satisfied with anything other than a perfect repair. 61Furthermore, Housing submitted that the evidence establishes that the plaintiff has been unnecessarily obstructive and uncooperative throughout the course of this matter, providing no substantive basis for refusing to allow Housing to undertake the remedial work proposed, and refusing reasonable offers of transfer to alternative accommodation. 62It is convenient that I now record my observations of the plaintiff. I observed him closely when he gave evidence and was cross-examined and during the trial. He took a very active role in the running of his case. He signalled his counsel when he wanted to give her instructions. Counsel was obliged to seek his instructions as to whether he consented to the tender of various exhibits. He was certainly an advocate for his case but this stance is perhaps understandable given the conditions upon which he had been living under for the past four years. 63The difficulty with the plaintiff's evidence is that he did not concede anything that did not advance his cause. For example, when shown a photograph of premises at Chester Hill that the defendant's counsel submitted was offered to him as alternate accommodation, he would not admit it was a photograph of those premises. Eventually, he did so. He asserted the alternate accommodation was unsuitable to him due to his medical condition, but when he was asked a question as to the nature of his medical condition he said that he would not answer the question. Upon this court directing him to answer the question he did so. With the above reservations, I accept the plaintiff's evidence, particularly in circumstances where there is very little factual dispute and that relies on his evidence alone. 64Each case depends upon its facts. Where asbestos remains undisturbed, in situ, it does not pose a risk to tenants and nothing needs to be done. However, this is not the situation here. Nor is it the situation that only one panel had been damaged. It is my view that in order for Housing to comply with its obligations under clause 11 of the lease it should carry out the work as proposed by Mr De Silva. 65The work outlined by Mr De Silva will make sure the residential premises are reasonably clean and fit to live in and will keep the premises in reasonable repair considering the age of the premises and the amount of rent paid to Housing. 66This is because Mr De Silva has visited the premises on numerous occasions since March 2007 and taken photographs, both in 2007 and 2010. Mr De Silvia observed that the damage to the asbestos sheeting is widespread [a total of approximately 30 small and large cracks and holes detected] in the walls of the bathroom, kitchen and laundry. Mr De Silva stated that some of the damage seems to have been patched earlier, but as most of the patched areas show signs of loosening up and the remaining patched areas can be expected to loosen up and come out. Some previously damaged areas that had been repatched are now showing new damages and/or the patches or parts of them have come out re-exposing asbestos edges. This means that it is likely that these panels will further deteriorate over time and will need to be further repaired. 67As discussed most areas in the laundry show signs of deterioration and there is excessive mould growth in kitchen and bathroom areas as shown in Ex B. According to Mr De Silva, if clean up of mould is undertaken there is a strong possibility that asbestos will be liberated leading to contamination and exposure. With four young children in the premises the children may hit the walls, resulting in the release of asbestos fibres into the air. If any of the four children touch the asbestos walls and then put their hands into their mouth, there is a risk of harm through ingestion of the fibres. 68I accept that, for the reasons outlined by Mr De Silva, both the eves and the electricity meter box need to be replaced. Damages 69The plaintiff seeks damages for discomfort and loss of enjoyment of his home life though not amounting to personal injury or distress. The plaintiff gave evidence that after he told his friends about the asbestos in the premises he and his wife's friends have stopped visiting. His activities around the house and backyard are curtailed. The neighbours disapprove of the long unmown grass in the front and back yards. 70Under clause 6 of the residential agreement the tenant's right to quiet enjoyment is set out. It reads: "TENANTS RIGHT TO QUIET ENJOYMENT 6. The landlord agrees: 6.1 that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title to that of the landlord; and 6. 2. that the landlord or the landlord's agent will not interfere, or cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in using the premises." 71This provision mirrors s 22 of the Residential Tenancies Act 1987. 72Thus there is a contractual provision between the parties that first the tenant will have quiet enjoyment of the premises and secondly that the landlord will not interfere or cause or permit any interference with the reasonable peace, comfort or privacy of the tenant using the premises. 73Housing submitted that the plaintiff is not entitled to damages under common law and referred to Baltic Shipping Company v Dillon [1993] HCA 4, 176 CLR 344; Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 and submitted that the Civil Liability Act 2002 precludes this claim for damages either in contract or negligence. The position at common law 74Traditionally, damages for discomfort and loss of enjoyment were not recoverable for breach of contract because they were too remote. The rule was described in Baltic Shipping Company v Dillon by Deane and Dawson JJ in the following terms (see also Nolan v MBF Investments Pty Ltd (No 3) [2009] VSC 457) because they were too remote: "One of the general rules relating to the assessment of compensatory damages for breach of contract which has been accorded the status of settled principle, is the rule that a plaintiff is not entitled to recover damages for the "disappointment of mind", distress and injured feelings "occasioned by the breach of contract" ((145) Hamlin v. Great Northern Railway Co. (1856) 1 H. and N. 408, at p 411 [1856] EngR 918; (156 ER 1261, at p 1262); and see, e.g., Addis v. Gramophone Co. Ltd. [1909] UKHL 1; (1909) AC 488). That rule, where applicable, represents an essentially pragmatic and judicially imposed assumption which is to be made for the purposes of the application of the second limb of the rule in Hadley v. Baxendale ((146) [1854] EngR 296; (1854) 9 EX 341 (156 ER 145)), that is to say, it is to be assumed that disappointment or distress flowing from the breach of contract would not have been in the contemplation of the parties, at the time they made the contract, as a likely result of breach." 75The case of Hamlin v Great Northern Railway Co , which their Honours referred to above, was explained in Automatic Totalisators Ltd v Oceanic Steamship Co [1965] NSWR 702 (in relation to contracts of carriage), where Manning J stated: "I have come to the conclusion that the statements of law referred to do nothing more than state the applications of the first branch of the rule in Hadley v Baxendale ... My conclusion is that this is saying in a different language that the damages which flow from the breach are such as may fairly and reasonably be considered as arising according to the usual course of things from the breach of contract itself. My further conclusion is that none of these decisions limits the further application of the second branch of the rule which applies where there are special circumstances and, as was laid down and had been applied so often, the law is that if there are special circumstances and they were wholly unknown to the party breaking the contract, he at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. 76Hadley v Baxendale (1854) 2 CLR 517; [1843-60] All ER Rep 461; (1854) 156 ER 145 has led to a more expansive approach to damages. In that case it was held that a plaintiff was entitled to damages that were within the reasonable contemplation of the parties at the time of entering into the contract. The principle of that case is found as stated by Alderson B at 354 to 355: "Now we think the proper rule in such a case as the present is this:- Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, arid in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case, and of this advantage it would be very unjust to deprive them " Baltic Shipping Company v Dillon 77The facts of the case are that Baltic Shipping , the owner and operator of a cruise vessel, the "Mikhail Lermontov", entered into a contract with Mrs Dillon to take her on a fourteen day cruise for a fare of $2205. Mrs Dillon paid the fare in advance. On the ninth day the ship struck a shoal off Cape Jackson, on the north-eastern tip of the South Island of New Zealand, was holed and sank. Ms Dillon lost possessions and suffered certain injuries as a result of the sinking. 78Together with 122 other passengers, Mrs Dillon commenced proceedings against Baltic Shipping and its agent, Charter Travel Company Ltd. The trial judge awarded damages for the sum of $1,417 described as "Restitution of fare" and $5,000 described as "Compensation for disappointment and distress at the loss of entertainment [and facilities for enjoyment which had been promised]". It is only the latter amount of damages that is relevant here. 79Baltic Shipping appealed. The appeal was dismissed by a majority of the Court of Appeal, which made a number of findings, including that the award of compensation for disappointment and distress was properly made. 80Baltic Shipping appealed to the High Court on two issues, relevantly, one of which was whether damages could be awarded for disappointment and/or mental anxiety for breach of contract. 81In relation to this issue, Justice Brennan explained the different policy considerations that underlie a plaintiff's entitlement to damages in contract and in tort. His Honour (at CLR page 369) explained that the policy underlying the rule that "[r]esentment, disappointment and the loss of esteem of friends are not proper elements" of an award for breach of contract because the legal institution of 'contract' can only operate effectively if parties are able to form some estimate of their potential liability if they were to default in performing their part of the contract. His Honour explained it is not possible to estimate liability for the subjective mental reaction of an innocent party to a breach. However, Brennan J went on to point out that this policy does not relate to damages in tort because "the rights infringed by a wrongdoer are not acquired by bargain but imposed by law in order to keep an innocent party secure from the consequences of proscribed acts of omissions. Unlike a party entering in to a contract who negotiates to protect himself from a risk of injury, the wrongdoer's victim has no opportunity to negotiate protection." 82Mason CJ (at CLR 364) quoted from Watts v Morrow [1991] 1 WLR 1445 and explained that damages for disappointment and distress caused by breach of contract could be recovered only if those issues were within the reasonably contemplated terms of the contract (citations omitted): "On other occasions reference has been made to the concept of reasonable foreseeability which is the test for remoteness of damage. However, the remoteness test does not provide a satisfactory explanation for the approach now adopted in England. If that test be the sole determinant for the recovery of damages for disappointment and distress, such damages would generally be recoverable so long as they were not too removed; their availability would not be relegated to an exception to a general rule denying recovery. Furthermore, it is clear that in England emphasis is given in the cases to the limited circumstances in which such damages are awarded for breach of contract. Thus, in Watts v Morrow, Bingham LJ denied that the general exclusionary rule was founded on the assumption that the plaintiff's feelings are not foreseeable and asserted that it was founded on considerations of policy. He went on carefully and convincingly to delineate the circumstances in which damages could be awarded, observing : '...Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided... In cases not falling within this exceptional category, damages are in my view recoverable for physical inconvenience and discomfort caused by the breach and mental suffering directly related to that inconvenience and discomfort.' The rule in Hadley v Baxendale presents a somewhat narrower test than that posed by the concept of foreseeability and therefore avoids some of the criticisms to which that concept is exposed. The rule in Hadley v Baxendale would entitle the plaintiff to damages for disappointment and distress when those damages are: 'such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it". Likewise, the plaintiff would be entitled to such damages if the case fell within the second limb of the rule by showing knowledge by the parties of special circumstances.'" 83At page 366 his Honour stated: "In the present case, the contract, which was for what in essence was a "pleasure cruise", must be characterised as a contract the object of which was to provide for enjoyment and relaxation. It follows that the respondent was entitled to an award of damages for disappointment and distress and physical inconvenience flowing from that breach of contract. Indeed, an award for disappointment and distress consequential upon physical inconvenience was justified on that account alone." The High Court in Baltic Shipping decided that as the contract between the parties had the object of providing enjoyment or relaxation Ms Dillon was entitled to recover damages of $5,000 for anxiety flowing from the breach of contract." 84Most importantly, the High Court qualified the rule that recovery would depend on whether the damage fell within a defendant's reasonable contemplation as being a probable consequence of the breach. Excluding a natural sense of disappointment at the contract being breached, the High Court created three categories where mental distress is recoverable: firstly, distress caused by breach of a contract which had the object of providing enjoyment, pleasure or relaxation; secondly, distress caused by breach of a contract to prevent molestation or vexation; and thirdly, distress that was caused by physical inconvenience or injury that occurred because of the breach. 85McHugh J stated (at CLR 405): "... Unless this Court were to refuse to follow Burton , Hobbs and Bailey as well as the decisions in Stedman and Athens-McDonald Travel Services Pty Ltd , damages must also be recoverable for distress or disappointment consequent upon the suffering of physical inconvenience as the consequence of a breach of contract. Furthermore, because damages for personal injury may be recovered in an action for breach of contract and because psychiatric illness constitutes personal injury, damages for mental distress associated with a psychiatric illness or physical injury must also be recoverable in an action for breach of contract. In the result, the Court should not presently reject the general rule enunciated in Hamlin and substantially confirmed in Addis . At the same time, it should recognise that damages for distress or disappointment are recoverable in an action for breach of contract if it arises from breach of an express or implied term that the promisor will provide the promisee with pleasure or enjoyment or personal protection or if it is consequent upon the suffering of physical injury or physical inconvenience. The question whether the general rule enunciated in Hamlin should be overruled can be considered when the Court has heard full argument on the question." 86In Musumeci at 752E, Santow J (as he then was) considered whether the issuance of notices to quit constituted a breach of a covenant for quiet enjoyment of a lease of commercial premises in a shopping centre and whether this gave rise to damages for mental distress. His Honour stated: "In my opinion those damages are not recoverable, even if suffered and even if following and caused by the lessor's entry on January 1994. (The psychiatrist's evidence did not attempt to apportion the extent to which any mental distress might have been caused by earlier events, but I am assuming, without determining, in the plaintiffs' favour that the precipitating factor was the events of 17 January 1994.) I consider the matter is settled by Baltic Shipping Co v Dillon (1993) 176 CLR 344. The covenant for quiet enjoyment in the lease is very different from the notion of providing "pleasure or enjoyment or personal protection". As was put by McHugh J (at 405), though with some reservation, damages for disappointment and distress are not recoverable unless they proceed from physical inconvenience caused by the breach or unless the contract is one, the object of which is to provide enjoyment, relaxation or freedom from molestation. That is not the case here." [my emphasis] 87In Musumeci , Santow J decided damages for disappointment and distress are not recoverable unless they proceed from physical inconvenience caused by the breach of the lease. 88Since the introduction of the Civil Liability Act , this principle has been considered and applied by Ward J in Celermajer Holdings Pty Ltd v Kopas [ 2011] NSWSC 40, by Campbell J in Spathis v Hanave Investment Co Pty Ltd [ 2002] NSWSC 304 and by M F Macnamara, Deputy President of the Victorian Civil and Administrative Tribunal in Barton v Lantsbery [2004] VCAT 926 but no mention has been made to the Civil Liability Act in this decision. 89The decision of Deputy President Macnamara in Barton v Lantsbery is perhaps the most instructive. He considered that the plaintiff, Mr Barton, could be regarded as having suffered mental distress that directly derived from physical interference with his possession of a rental property. That interference was caused by paint fumes and over spray. Mr and Mrs Lantsbery were ordered to pay Mr Barton damages in the sum of $3,000. In assessing the damages for mental distress the Deputy President stated at [60]: "60 There is no clear mathematical formula which can be adhered to in assessing damages for mental distress. The question in its nature must be at large. ... In my view that is an appropriate range thought the need for moderation in an area of damages which could easily get out of control through its lack of mathematical constraints, the more moderate figure of $5,000 would seem to be an appropriate one. I should be further reduced to $3,000 in light of the act that the problem is less severe than alleged." 90In these current proceedings, the plaintiff alleged that his movement in the house is restricted so that he uses those parts of the house where the asbestos cement wall linings are broken and damaged as little as possible; he cannot use the back yard and front yard without the risk of being exposed to the inhalation of asbestos fibres; the back yard and front yard cannot be mowed, because of the danger of breaking up pieces of asbestos cement and releasing and spreading asbestos fibres and as a result have become overgrown and unattractive; and his friends have stopped coming to the premises because of fear of asbestos contamination. (ASC [22]). 91I have referred to the evidence that the plaintiff gave earlier in this judgment as to the use of the premises. He is physically inconvenienced in the use of the high traffic areas, namely the laundry, kitchen and bathroom, front and back gardens and this inconvenience due to the presence of asbestos. He can move freely in the other areas of the house such as the three bedrooms and the lounge room. The plaintiff gave one example in evidence as to the one occasion when he had a friend over to visit. When he told the friend about the presence of asbestos in the house, the friend left before he finished his cup of tea. 92The plaintiff's general practitioner's report dated 23 April 2008 states that the plaintiff suffers from "severe anxiety disorder due to home conditions that is exacerbated by asbestos." So far as evaluating the plaintiff's claim, the plaintiff has refused to allow Housing to have any doctors examine him for the purpose of obtaining medico legal reports. Hence this opinion of a general practitioner has not been able to be tested by the defendant particularly in relation to the diagnosis of severe anxiety. 93However, the plaintiff's claim is one for disappointment and distress caused physical inconvenience caused by Housing. The physical inconvenience is a result of the contractual breach of its duty to keep the premises in reasonable repair. The plaintiff notified Housing of the problems with asbestos in the premises in May 2007 and he has been living with this physical inconvenience since that date, which is a period of over four years. The plaintiff's physical inconvenience or discomfort is experienced from living in a home with: asbestos in the topsoil of the yard; visibly deteriorating asbestos walls; a problem of excessive mould which can cause deterioration the asbestos and potentially cause health problems; in circumstances where the defendant is aware of the plaintiff's existing medical conditions, is a situation that can be reasonably contemplated by the defendant as being a consequence of their breach of contract. The plaintiff's claim for discomfort and loss of enjoyment is successful. I assess the plaintiff's damages in the sum of $4000. 94The defendant further contended that the Civil Liability Act is applicable to claims for breach of contract and negligence and that the plaintiff is not entitled to damages under this Act. Civil Liability Act 2002 "3 Definitions In this Act: court includes tribunal, and in relation to a claim for damages means any court or tribunal by or before which the claim falls to be determined. damages includes any form of monetary compensation but does not include: (a) any payment authorised or required to be made under a State industrial instrument, or (b) any payment authorised or required to be made under a superannuation scheme, or (c) any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy. non-economic loss means any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement. 3A Provisions relating to operation of Act (1) A provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law. (2) This Act (except Part 2) does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract with respect to any matter to which this Act applies and does not limit or otherwise affect the operation of any such express provision. (3) Subsection (2) extends to any provision of this Act even if the provision applies to liability in contract. ... 5 Definitions In this Part: harm means harm of any kind, including the following: (a) personal injury or death, (b) damage to property, (c) economic loss. negligence means failure to exercise reasonable care and skill. personal injury includes: (a) pre-natal injury, and (b) impairment of a person's physical or mental condition, and (c) disease. 5A Application of Part (1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. (2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B. 16 Determination of damages for non-economic loss (1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. (2) The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case." 95The plaintiff has not claimed damages for physical injury. He has claimed damages for discomfort and loss of enjoyment. It is my view that these types of damages do not fall within the definition of personal injury contained in the Civil Liability Act . Therefore Act does not apply. Relocation 96Housing has offered alternative accommodation to the plaintiff and his family. On 17 May 2010, the plaintiff was offered alternative accommodation at Chester Hill. It was a three bedroom villa. In 2009, the plaintiff was offered alternative accommodation in a three bedroom, two storey semi detached brick home at Bass Hill - see Ex 1. On both occasions the plaintiff has refused the offers on the basis it is unsuitable because of his medical condition. It is the plaintiff's evidence that Housing is obliged to offer him two further properties as alternate accommodation. 97On each occasion the plaintiff inspected the outside of the property but did not go inside. His evidence was that he found them unsuitable because they were attached to other premises and that will affect his tinnitus. So far as the Bass Hill property is concerned the plaintiff also thought that it was also unsuitable because transport was limited, no buses ran on Sunday and he could not walk 700 metres to the train station. The plaintiff does not hold a driver's licence nor does he own a car. When the plaintiff suffers an episode due to his multiple sclerosis he may be bedridden. 98The plaintiff has agreed that he and his family will move to alternate premises while the work is being undertaken. As the alternate accommodation is not permanent, the plaintiff should be prepared to make some compromise so that the work at his current premises can be undertaken promptly. 99The plaintiff has claimed there are a number of errors in the transcript of proceedings. I have considered each of these alleged errors and even accepting the plaintiff is correct in what he says, they do not make any difference to my decision. I make an order that Housing is to pay the plaintiff the sum of $4000 in damages for disappointment and distress. 100Costs are reserved. Orders (1) Housing is to pay the plaintiff the sum of $4000 in damages for disappointment and distress. (2) Costs are reserved. (3) The matter is stood over for hearing on 1 September 2011 at 10.00 am. Proposed order (3) 101The order that I propose to make is that the defendant carry out the following work on the premises the subject of a residential tenancy agreement between the defendant as lessor and the plaintiff as lessee, as follows: (a) Remove and replace all the asbestos cement wall linings and all asbestos cement sheets and linings of ceilings in the bathroom, kitchen and laundry; and remove and replace all the asbestos linings on the eaves and in the electricity meter box. 102The parties are to make short submissions to the Court as to the form of proposed order (3) and on the issue as to what would be a reasonable time period to have this work carried out and when the work can commence. ********** 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: 10 August 2011