Comcare v Howard Smith & Patrick Travel P/L [2013] NSWDDT 6

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Comcare v Howard Smith & Patrick Travel P/L [2013] NSWDDT 6 Hearing dates: 17, 18, 19 April 2013 Decision date: 21 June 2013 Before: Finnane J Decision: See paragraph [45] Catchwords: Dust Diseases - mesothelioma - employment history - exposure - knowledge of presence of asbestos by employer Liability - tortfeasor - duty of care - foreseeability - injury - breach Practice and Procedure - proceedings following settlement with plaintiff - delay - evidence Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 s 5 s. 25B of the Dust Diseases Tribunal Act1989 Cases Cited: Re Jones-Mashman (Amaca v CSR [No 2]) [2009] NSWDDT 24 Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 Crimmins v the Stevedoring Industry Finance Committee (1999) 200 CLR 1 Stevedoring Industry Finance Committee v Henderson (representing the Estate of Crimmins) [2000] VSCA 216 Gibson v Stevedoring Industry Finance Committee [2000] NSWCA 179 Category: Principal judgment Parties: Comcare (Plaintiff) Howard Smith and Patrick Travel P/L (Defendants Representation: JC Sheller (Plaintiff) GK Parker SC (Defendants) Australian Government Solicitor (Plaintiff) HWL Ebsworth (Defendants) File Number(s): 65/11

Judgment

Findings of Fact 1I make the following findings of fact: iThe late Mr Lindsay was employed by the defendant at all material times. iiThe defendant was a registered employer of waterside workers at Port Kembla. iiiThe late Mr Lindsay was not a registered waterside worker. ivThe late Mr Lindsay worked alongside waterside workers, sometimes in the holds of ships, sometimes on steam winches and at times was responsible for washing the clothes of Waterside workers. vFrequently when he worked in the holds of ships, he encountered loose asbestos particles and breathed in those particles. viThe steam pipes on the steam winches were covered with asbestos rope which was frequently in a bad condition, flaking and giving off particles of asbestos into the air. viiThe late Mr Lindsay breathed in these particles while he was working on the winches. viiiThe clothing of the Waterside workers was frequently covered in asbestos particles which created clouds of dust that were breathed in by the late Mr Lindsay. ixThe defendant was aware that Mr Lindsay was carrying out the work described above alongside the Waterside workers, and because he was working so closely with them was exposed to the breathing in of asbestos particles.