Dust Diseases Tribunal New South Wales Medium Neutral Citation: Jolly v Idameneo (No 789) Limited [2016] NSWDDT 5 Hearing dates: 26 September 2016, 21 October 2016, 5 December 2016 Date of orders: 13 December 2016 Decision date: 13 December 2016 Before: KEARNS J Decision: Verdict and judgment for the plaintiff in the sum of $340,622.64. Catchwords: DUST DISEASES; mesothelioma; damages; liability; whether the plaintiff employed by Mayne Nickless Ltd or by its subsidiary company Cases Cited: CSR Limited v Wren (1997) 44 NSWLR 463 Category: Principal judgment Parties: Valma Elaine Jolly as the Executrix of the Estate of the Late Brian Richard Jolly (Plaintiff); Idameneo (No 789) Limited (formerly known as Mayne Nickless Limited A.C.N. 004 073 410) (Defendant) Representation: Counsel: Mr G Parker SC with Mr A Giurtalis appeared for the plaintiff; Mr J Sharpe appeared for the defendant Solicitors: Maurice Blackburn (Plaintiff); Thompson Cooper Lawyers Pty Ltd (Defendant) File Number(s): DDT 144/2016 Judgment Outline 1. Mr Jolly contracted mesothelioma. He sued the defendant for damages. He died of his illness on 25 October 2016. His wife and executrix of his Estate has been substituted as the plaintiff. Issues 1. There are only two questions on the issue of liability. 1. Was Mr Jolly employed by Mayne Nickless Limited? The issue here is whether he was employed by Mayne Nickless Limited (Mayne Nickless) or by East Coast Transport Pty Limited. It is common ground that East Coast Transport Pty Limited became a wholly owned subsidiary of Mayne Nickless in 1968. It remained a separate corporate entity; 2. If not, did Mayne Nickless nevertheless owe the plaintiff a duty of care akin to that of an employer? – CSR Limited v Wren (1997) 44 NSWLR 463. 1. If either question is answered 'yes', the plaintiff must succeed in the proceedings with damages to be assessed. Was Mr Jolly employed by Mayne Nickless? 1. Mr Jolly worked at premises at 30 Sir Joseph Banks Street, Botany (the Botany site) from about mid 1975 to about 1977. He worked as a supervisor and forklift driver. There was conducted at the Botany site a very large and busy transport and storage operation. 2. There was testimonial and documentary evidence given in this case. 3. The testimonial evidence consisted of oral evidence from the plaintiff and Mr Waterworth, an affidavit of the plaintiff and statements of Mr Waterworth, Mr Corben, Mr Storey, Mr Telfer, Mr Riccardo and Mr Simms. There was also a statement of Mrs Jolly going to the issue of damages. These, Mrs Jolly excepted, were all persons who worked at the Botany site at or about the same time as the plaintiff. They and the plaintiff all had the same employer. Some said they were employed by East Coast Transport Pty Limited, others by Mayne Nickless and others did not know. Some gave evidence pointing to East Coast Transport Pty Limited as the employer and others pointing to Mayne Nickless. 4. In his evidence, Mr Jolly said he heard all the people talking about Mayne Nickless. I do not regard that as evidence of the fact. Mr Jolly said his boss was Ronnie Bush. He was the manager of the yard. He was out there all the time. Mr Bush's boss was Rex Allsop. He ran the office. Mr Mullen was over Mr Allsop. Black Bart, later in evidence identified as Patrick Hayes from Melbourne, seemed to "run the lot" (T3.45). 5. Mr Jolly had a uniform with the name "East Coast Transport" on it. That name changed to "Intermodal" (T5.09). 6. Mr Waterworth gave evidence at his residence at Mollymook. An undated statement of Mr Waterworth was admitted into evidence (Exhibit PX 4). Much of the material in his statement did not advance the issue as it was limited to the evidence of his belief. I do not rely on that. In his statement, he said that East Coast Transport (ECT) had a name change to Intermodal in about 1977. Despite the name change, everything else remained the same. 7. Mr Waterworth was initially employed to operate the road patrol vehicles. They serviced the East Coast Transport trucks and drivers (Exhibit PX 4 [8]). They displayed the names East Coast Transport and Mayne Nickless (Exhibit PX 4 [8]). 8. Mr Waterworth was promoted to being the operations manager of New South Wales for ECT (later Intermodal). As operations manager, he worked with the following managers at ECT: Neville Owen, Jim Mullen, Rex Allsop, Ronnie Bush. 9. During Mr Waterworth's time at East Coast Transport, the senior and middle management kept a contact book. It contained the names and contact details of management persons of ECT and Mayne Nickless. 10. Patrick Hayes became general manager at the Botany depot when Neville Owen died in 1975. That was a time of low staff morale and Mr Waterworth had concerns about Mr Hayes's ability to manage the Botany depot. His concern led him to ringing Mr Redpath in Melbourne. He obtained Mr Redpath's contact details from the contact book. Mr Redpath was listed in the contact book as the person in charge of ECT and the rest of Mayne Nickless road transport division. Following that call, there was a change of management of ECT. Gordon Telfer was transferred from another division of Mayne Nickless, Seaway, its shipping arm, and was brought into East Coast Transport at Botany to replace Mr Allsop. 11. In cross-examination, Mr Waterworth agreed he was employed by East Coast Transport Pty Limited. The Botany site was the depot for East Coast Transport. Mayne Nickless had an operation elsewhere. East Coast Transport Pty Limited had its own general manager. It had a financial director, John Mudd, at Botany. It had senior staff at Botany. Mr Waterworth said he never worked for Mayne Nickless, or at least, that was the effect of his evidence (T16.50). He did not know of the arrangements between "Mayne Nickless and East Coast" (T17.05). 12. Mr Corben provided a statement – Exhibit PX 5, Vol 2, 509. He said he worked for Mayne Nickless. That evidence is of little utility because he speaks generally of Mayne Nickless' structure and practices with regard to different business divisions of Mayne Nickless. He did not cover East Coast Transport or East Coast Transport Pty Limited. 13. Mr Storey provided a statement – Exhibit PX 5, Vol 2, 523. He worked for the business at the Botany site and said he was employed by "East Coast Transport which was a subsidiary owned and operated by Mayne Nickless Limited". There was a name change to "Intermodal" in the 1970s. Business continued in the same way. He recalls the name "East Coast Transport" displayed indicating it was a subsidiary of Mayne Nickless Limited. He recalls payslips in a Mayne Nickless envelope with "East Coast Transport a subsidiary of Mayne Nickless Limited" printed on the pay packet. Mayne Nickless had its own service vehicles for trucks on the road. The vehicles had "Mayne Nickless Limited" branding on them. They serviced "a number of the Mayne Nickless Limited subsidiaries, including East Coast Transport, Intermodal…". 14. Mr Riccardo provided a statement – Exhibit DX 1, tab 6. He said he was employed by East Coast Transport Pty Limited in the 1970s. Dockets contained the name " 'East Coast Transport' or 'East Coast Transport Pty Ltd' on them with 'MN' (for Mayne Nickless)". He had never heard of "Mayne Nickless trading as East Coast Transport". At this point, I note that it did as is demonstrated by documents later referred to. 15. Gordon Telfer provided two statements – Exhibit DX 1, tab 4; Exhibit PX 5, p 505. In the first statement, he stated he was employed by a number of Mayne Nickless Limited activities or subsidiaries from 1962 to 1994. His employer was always the activity or subsidiary he was working for. He said he was employed by East Coast Transport Pty Limited from August 1977 for approximately 18 months. In his second statement, he indicated that where in the first statement he was referring to East Coast Transport Pty Limited, he was referring to Intermodal. He said East Coast Transport Pty Limited was never known as "Mayne Nickless trading as East Coast Transport". East Coast Transport Pty Limited had its own general manager, financial director and other senior staff. 16. Eric Simms provided a statement – Exhibit DX 1, tab 5. He said he was employed by East Coast Transport Pty Limited from 1963/4 to 1976. He was paid by it. There were no signs or documents referring to "Mayne Nickless trading as East Coast Transport". 17. Mr G Parker SC, who appeared with Mr Giurtalis for the plaintiff, submitted that the testimonial evidence should yield to the documentary evidence in this case and the evidence overall, especially the documentary evidence, leads to the conclusion that Mr Jolly was employed by Mayne Nickless. I agree with both those points. 18. There are reasons why the testimonial evidence should yield to the documentary evidence. The first is that the events in issue occurred 40 years ago and memories may not be clear or correct. The second is that the events are essentially of a corporate nature and not matters the witnesses would be expected to be intimately aware of or even have much knowledge of. The third is that the events being of a corporate nature, the contemporaneous records and public records are likely to record accurately what eventuated. 19. I turn to the documents. * East Coast Transport Pty Limited changed its name on 12 September 1974 to Jacuna No. Fifteen (ECT) Pty Limited (Jacuna) – Exhibit PX 5, Vol 3, 949. * The activities of East Coast Transport Pty Limited in the year ended 30 June 1973 were reported by the directors in the directors' report to be "TRANSPORT AND STORAGE" " – Exhibit PX 5, Vol 2, 867. That is consistent with the testimonial evidence that that was the business being operated at the Botany site. * That continued to be the described activities in the year ended 30 June 1974 – Exhibit PX 5, Vol 2, 894. * In the year ended 30 June 1975, that changed. The directors' report for Jacuna for the year ended 30 June 1975 recorded the principal activities as "Non-operating changed from Transport & Storage" – Exhibit PX 5, Vol 2, 906. Consistent with the change of name, the directors' report was for Jacuna. It is clear from this document that the operations of East Coast Transport Pty Limited changed during the year ended 30 June 1975 from an active transport and storage business to "The principal activities" being "non-operating". It is clear, therefore, that East Coast Transport Pty Limited (later known as Jacuna) ceased to operate the transport and storage business at the Botany site. The oral evidence is clear that there was no change in the operations or in the busyness of the operations at the Botany site at this time or thereafter. Accordingly, some entity continued to conduct the transport and storage business. * That non-operating mode for Jacuna continued through to 1979 – Exhibit PX 5, Vol 2, 933; Vol 3, 973, 994 and 1016. In the last few years, the activities item was described as "property owners". * Consistent with a change in the description of the company's activities was a substantial drop in the trading profit of the company when the activities were changed to non-operating. The profit and loss statement for Jacuna for the year ended 30 June 1975 reveals a trading profit of $287,407 for the year ended 30 June 1974 and $1,711 for the following year – Exhibit PX 5, Vol 2, 911. This is consistent with the company changing from transport and storage operations in the 1974 year to non-operating in the 1975 year. Further, the operations at the Botany site continued without interruption through those years. Somebody must have been carrying them out. It was not Jacuna. * Exhibit PX 1, Vol 2, 965 comprises a profit and loss statement for Jacuna for the year ended 30 June 1977. It shows a trading profit of $10,408 for the 1976 year and $12,032 for the 1977 year. The defendant submits this shows it was operating and trading. I do not accept that submission at least for the force that the defendant seeks to obtain from this evidence. As indicated earlier, this company went from being a transport and storage company to a non-operating company in the year ended 30 June 1975. The drop in trading profit was consistent with that. The trading profit never came back to anything like what it was when the company was operating as a transport and storage business despite that business continuing as it always had. Further, a directors' report for the year ended 30 June 1977 records the principal activities as "Property owners" – Exhibit PX 5, Vol 2, 973. Trading profits of $10,408 and $12,032 are more consistent with rents or interest received rather than with earnings from operating a transport and storage business. * Also consistent with a change in the company's activities are records showing that the company had employees up to the year ended 30 June 1973. The balance sheets for East Coast Transport Pty Limited for the years up to 30 June 1973 reveal provision for employee leave and retirement benefits. In the year ended 30 June 1974, that dropped to nil. Though the activities of the company changed and the trading profit dropped dramatically in the year ended 30 June 1975, the elimination of employee benefits in the year ended 30 June 1974 is consistent with that. This is because the company may have shed itself of employees at or near the end of the 1974 financial year. That continued through to the year ended 30 June 1979 – Exhibit PX 5, Vol 2, 889, 912, 926; Vol 3, 966, 986, 1008. This is consistent with the company no longer having employees and with the change in stated principal activities and the substantial drop in trading profits. 1. These are the principal documents the plaintiff relies on. They present a compelling case that from the year ended 30 June 1975, Jacuna (formerly known as East Coast Transport Pty Limited) was not operating the business at the Botany site. The plaintiff also relies on other documents. I shall come to them. 2. Before doing so, I turn to documents relied on by the defendant. * A letter of 31 August 2016 from State Insurance Regulatory Authority discloses that East Coast Transport Pty Limited A.B.N./A.C.N. 56 093 992 066 was insured under a workers' compensation insurance policy by EMI in two periods being 1972 to 1977 and 30 June 2011 to 30 June 2017. This document is unreliable for two reasons: 1. East Coast Transport Pty Limited changed its name to Jacuna on 12 September 1974. It is most unlikely that renewals of this policy would have continued under the name of East Coast Transport Pty Limited up to 1977; 2. even more compelling is the cover for the period 30 June 2011 to 30 June 2017. The A.B.N./A.C.N. reveals this is the same insured company. There cannot be a policy for that company in that period. Jacuna (formerly known as East Coast Transport Pty Limited) was wound up on 13 March 1985 – Exhibit PX 5, Vol 3, 1173. The company did not exist in that period. No reliance can be placed on this document; * A record in the annual return of Mayne Nickless for the year ending 30 June 1976, identified Jacuna as being a subsidiary of Mayne Nickless carrying on business in Australia – Exhibit PX 5,Vol 2, 579. This is a note being Note 19 to the balance sheets as at 30 June 1976 of Mayne Nickless and subsidiary companies – Exhibit PX 5, Vol 2, 572, 579. It reveals Jacuna as carrying on business in Australia. That has to be read with other documentary material revealing that its principal business in that year was non-operating and in the following year, property owners. It also has to be read with the documentary evidence that the balance sheet for Jacuna for that year revealed nil allowance for employee benefits. Further, this note does not say what business was carried on by Jacuna. There is nothing to indicate it was a transport and storage business at Botany. Much the same comments may be made in relation to the documents at Exhibit PX 5, Vol 2, 611. 1. I do not think there is anything in these documents to detract from the force of the plaintiff's submissions. 2. Other documentary material comprised: * Victorian Government Gazette of 11 August 1976 contained a notice of an application by East Coast Transport to operate warehouses in sites in Victoria. East Coast Transport was described in the notice as a unit of Mayne Nickless Limited – Exhibit PX 5, Vol 2, 615; * New South Wales Government Gazette of 18 and 25 August 1978 contained two notices of petitions to wind-up companies. The petitioner in both cases was "Mayne Nickless Limited trading as East Coast Transport" – Exhibit PX 5, Vol 2, 617, 620. Here are two instances of litigation in the Supreme Court of New South Wales with one of the parties describing itself as operating under a trading name which had no indicia of incorporation. The inference is available that Mayne Nickless was using East Coast Transport as a trading name. It was not trading as East Coast Transport Pty Limited. If it were trading as that entity, one would expect it to be described by its corporate status and, perhaps more significantly, by its then name which was Jacuna; * Exhibit PX 5 at Vol 2, 501 is a letter on letterhead of "East Coast Transport". This is dated 27 October 1975. The letterhead includes a number of addresses including head office at 30 Sir Joseph Banks St, Botany and that address also being one of the depot addresses. It is a letter supporting Mr Waterworth's application to the Commonwealth Bank for a loan. It describes him as "an employee of this company". It is signed by N J Owen as general manager of ECT. It has a footer being "Unit of Mayne Nickless Ltd. (Inc. in Vic)". It may be drawn from this document, and I do, that Mayne Nickless used East Coast Transport as a name in which to trade. The only "company" of which Mr Waterworth could have been an employee was Mayne Nickless because, as has just been seen, East Coast Transport Pty Limited at this time did not exist under that name, but under the name Jacuna, and Jacuna had gone into a non-operating mode. The defendant also relies on this letter. It relies on the statement that Mr Waterworth has been "an employee of this company" and says that must be East Coast Transport Pty Limited. Of itself, that phrase is ambiguous. It needs context to establish its meaning and I have dealt with that. The defendant also submits that the document is signed by Mr Owen and he was not employed by Mayne Nickless, but was the general manager of East Coast Transport Pty Limited and employed by it. I do not think that can be so as, by then, provision for employee benefits and employees had been moved out of Jacuna. Also contrary to the defendant's submission here is the fact that East Coast Transport Pty Limited had changed its name to Jacuna in September 1974. It is unlikely that Mr Owen would, in that situation, be putting his signature to a letter from a company and using a company name which no longer existed and had not existed for over 12 months. * A staff newsletter of 17 December 1975 under the logo of "MN" with the words "THE MAYNE NICKLESS ORGANISATION" written through the letters "MN", reported the death of Mr Owen, general manager of ECT. It was signed by Mr Redpath, managing director of both Mayne Nickless and East Coast Transport Pty Limited – Exhibit PX 5, Vol 2, 502. 1. The defendant has not produced any documentary material that diminishes the case made by the plaintiff. 2. I said earlier that Jacuna was not operating the business at the Botany site from at least the year ended 30 June 1975. Some entity must have been. The only available organisation was Mayne Nickless. It is acknowledged that if this be the correct finding, there must be a verdict for the plaintiff. Damages 1. This Tribunal and indeed all those who practise in it are very familiar with the disease mesothelioma and its impact on its victims. The result of this is that for some time now detailed evidence about the painful and harrowing effects the disease has on a victim is rarely, if ever, tendered. Without intending to belittle in any way the consequences for Mr Jolly of the contraction of the disease in this case, Mr Sharpe, who appeared for the defendant, submitted that this was a conventional mesothelioma case. I think that understates it. 2. In addition to symptoms commonly associated with the disease, Mr Jolly had other symptoms and a regime of treatment not undertaken in all cases. He underwent nine cycles of chemotherapy with side effects including lethargy and dry mouth. He developed pneumonia in December 2015 and was hospitalised in January 2016 for three days. He was very unwell at home after discharge. He was re-admitted to hospital shortly thereafter with worsening cough and shortness of breath. He commenced a second line treatment in April 2016 and was administered Keytruda. Side effects included excessive phlegm production and a dry mouth. 3. He had multiple admissions to hospital. His symptoms included shortness of breath, right sided chest pain, pleural effusion, weight loss, cough, pleural thickening, sleep disturbance, anxiety attack. 4. On 19 September 2016, Dr Teo noted significant muscle wasting and frailty – Exhibit PX 5, Vol 3, p1389. 5. When Mr Jolly gave his evidence, he was seated in a recliner chair under a blanket. He was on oxygen. He looked grey and appeared somewhat wasted. 6. I think in the circumstances, a reasonable assessment for damages is $300,000. 7. I think it is reasonable to allow interest for two years and I allow $12,000. I have allowed interest for two years rather than 797 days as claimed by the plaintiff. 8. I think it is reasonable to allow interest up to the date of death. From the date of death to date, I allow interest as claimed in the sum of $2,416.44. 9. I allow $12,000 for loss of expectation of life. 10. The plaintiff makes a claim for past gratuitous care in accordance with the following schedule. Period Type of care Rate Calculation 1 April 2016 to 3 June 2016, a period of 9 weeks or 64 days: 6 hours per week Personal care and domestic assistance provided by Valma 29.41iii 6 x 29.41 x 9 =1,588.14 PX 5, Vol 2, p521 [4] 4 June 2016 to 11 June 2016, a period of 1 weeks or 7 days: 14 hours per week Personal care and domestic assistance provided by Valma 29.41 14 x 29.41 x 1 = PX 5, Vol 2, p521 [5] $411.74 12 June 2016 to 12 September 2016, a period of 13 weeks or 93 days: 6 hours per week Personal care and domestic assistance provided by Valma 29.41 6 x 29.41 x 13 weeks = PX 5, Vol 2, p521 [4] $2,293.98 13 September 2016 to 21 September 2016, a period of 1 week or 9 days: 14 hours per week Personal care and domestic assistance provided by Valma 29.41 14 x 29.41 x 1 week = PX 5, Vol 2, p521 [6] $411.74 22 September 2016 to 25 October 2016, a period of about 5 weeks or 34 days: 63 hours per week Personal care and domestic assistance provided by Valma and Racheal [sic] 29.41 63 x 29.41 x 5 = PX 5, Vol 2, p521-2 [7]-[11] $9,264.15 iii Vincents Chartered Accountants, Litigation Tables 2016 The highlighted references are references to the evidence supporting the claim. 1. I consider this is reasonable and I allow $13,969.75. 2. I allow interest on past gratuitous care from April 2016 to the date of death (six months) in the sum of $140.00. I allow further interest as claimed from the date of death in the sum of $96.45. 3. Summary of figures Non-economic loss $300,000.00 Interest $14,416.44 Loss of expectation of life $12,000.00 Care $13,969.75 Interest $236.45 TOTAL $340,622.64 result 1. Verdict and judgment for the plaintiff in the sum of $340,622.64. ********** 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: 14 July 2017