King v Caltex Petroleum Pty Ltd [2013] NSWDDT 4

Dust Diseases Tribunal New South Wales Medium Neutral Citation: King v Caltex Petroleum Pty Ltd [2013] NSWDDT 4 Hearing dates: 23/05/2012; 29/01/2013; 25/03/2013; 26/03/2013 Decision date: 10 April 2013 Before: Kearns J Decision: Verdict for the defendant. Catchwords: Dust diseases; mesothelioma; no direct evidence of exposure to asbestos; whether case could be established on the basis of inferences from circumstantial evidence Cases Cited: (re Jones-Mashman) Amaca Pty Ltd v CSR Ltd No 2 [2009] NSWDDT 24; Eaton v Carrier Air Conditioning Pty Limited (2004) 1 DDCR 716; Booth v Amaca Pty Ltd [2010] NSWDDT 8 Category: Principal judgment Parties: Bronwyn Jane King (as the Legal Personal Representative of the Estate of the Late Victor John King) (Plaintiff) Caltex Petroleum Pty Ltd (Defendant) Representation: Mr G Little SC, with Mr T Little, Ms J Layani-Ellis and Mr R Foord, instructed by Denniston & Day, appeared for the plaintiff. Mr D Miller SC, with Mr T Morahan, instructed by Ellison Tillyard Callanan, appeared for the defendant File Number(s): DDT96/2012

Judgment

Background and claim

1Mr King died of malignant mesothelioma on 9 July 2012. Before he died, he commenced proceedings against Caltex. He alleged that the mesothelioma was contracted as a result of Caltex negligently exposing him to asbestos in the course of his work for Caltex. He had been employed by Caltex. His work had taken him over many parts of New South Wales. He visited numerous sites owned by Caltex and also by Golden Fleece after Caltex had taken over Golden Fleece. 2On the sites were buildings which were in part constructed of corrugated asbestos materials. They were in varying states of repair. The Golden Fleece sites were in a poorer state of repair than the Caltex sites. 3Mr King's work was mainly clerical, administrative and managerial, rather than hands-on. 4Whilst numerous sites had buildings constructed of asbestos materials, only one is of significance in this case. That is the site at Bonville. Mr King alleged that, when he visited that site, he was exposed to asbestos dust and fibre which resulted in his mesothelioma. 5Evidence was taken from Mr King at his home at Coffs Harbour on 23 May 2012. Since he died, the proceedings have been continued by his widow.