Agresta v Sydney Water Corporation

[2004] NSWDDT 8

Reported Decision (2004) 1 DDCR 450

Dust Diseases Tribunal

of New South Wales

CITATION:	Agresta v Sydney Water Corporation and Anor [2004] NSWDDT 8
PARTIES:	Sebastiano Agresta Sydney Water Corporation Telstra Corporation
MATTER NUMBER(S):	245 of 2002
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	:-
LEGISLATION CITED:	S 44, Safety Rehabilitation and Compensation Act 1988 S 51(xxxi) Australian Constitution Act
CASES CITED:	Commonwealth of Australia v Holland and Commonwealth of Australia v Sandiford (1991) 24 NSWLR 198; Georgiadias v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297; Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; Mohr v Berrigan Quarry Pty Ltd (In liquidation) & Others (1995) 11 NSWCCR 355; Macquarie Pathology Services v Sullivan [1995] NSWCA
DATES OF HEARING:	10/02/04 & 15/04/04
EX TEMPORE JUDGMENT DATE :	04/15/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr A J Leslie, QC instructed by Turner Freeman. FOR FIRST DEFENDANT: Mr J Sharpe instructed by Phillips Fox FOR SECOND DEFENDANT: Mr S E Torrington instructed by Sparke Helmore

JUDGMENT:

1. The plaintiff brings proceedings for damages against two defendants, the Sydney Water Corporation, first defendant, and Telstra Corporation Ltd, second defendant. In a sense his story is easy to tell. He is a man born in Italy on 30 October 1927. He married on 29 December 1956. On 4 October 1960 he arrived from Italy to live permanently with his family in Sydney. From 1960 to 1963 he was employed as a labourer by excavation subcontractors working for the Water Board. His affidavit discloses that he worked in sewerage trenches in the Northern suburbs of Sydney. He worked with a jackpick and shovel excavating trenches in what is described in his affidavit as "sandstone country." The work he said was very dusty work.

2. From about 1963 until 1986 he worked as a labourer for the Australian Telecommunications Authority. Whatever identity it has had over the years it has been common ground in the present proceedings that Telstra Corporation Ltd stands in the place of all such authorities, at least for the purposes of this case. His work with the second defendant in its various forms involved the excavation of trenches for telephone lines in what the plaintiff described at par 10 of his affidavit as "sandstone country of the northern suburbs of Sydney." He said that he worked from depots in Mona Vale, Dee Why and French's Forest. The work that he did in that period of his life involved excavating for telephone lines. He worked with a jackpick and shovel. Sometimes he operated a ditchwitch. He said at par 11:

My work in telephone trenches was very dusty work.

3. For at least two days weekly his body and clothes were covered in sandstone dust at the end of each day. He was also exposed to the dust associated with fibrous cement products.

4. In 1986 he had some ill health affecting his limbs. At about that time he had fallen into a trench and hurt a knee. His employment formally came to an end with Telstra on 11 May 1988. On that date he was formally terminated.

5. His case is that as a result of the exposure to dust in those two employments he developed silicosis and breathlessness related to exposure to silica. The silicosis led in turn to silicotuberculosis, an infective condition which was satisfactorily treated, and also to pneumonia. The case has taken time and been made difficult because the plaintiff suffers from a plethora of conditions not related to his work. Matters adverted to in various parts of the evidence include low back disorder accompanied by pain, neck pain, he has suffered from rheumatoid arthritis, a matter to which I need to return, he has had problems with his thyroid, he suffers from thyrotoxicosis, he had a broken left hip when he fell from a chair, he suffers from myeloma, glaucoma, leukemia, diabetes and sleep apnoea. He has previously had a duodenal ulcer and cholecystectomy. The mechanics of the hearing were made a little more difficult than was usual because the plaintiff gave his evidence through an interpreter and there were times when the interpreter had some difficulty rendering concepts from English to Italian and vice versa.

6. The plaintiff complains now of breathlessness. There is a dispute as to whether that is properly to be regarded as resulting from silicosis or whether it is to be properly explained by the fact that for a time during his adult life he was a smoker. There is at least the possibility that part of his breathlessness is to be explained by a condition of rheumatoid arthritis, from which he undoubtedly suffers, and from fibrosis associated with that condition.

7. It is convenient I think to go to the medical material in the case. The doctors do not agree about a number of things. The first report tendered was that of Dr Michael Cohen, a consultant rheumatologist. It bears date 13 June 2001 and forms part of PX2. He was seeing the plaintiff for what he described as symmetrical polyarthritis. He instituted treatment of the plaintiff for rheumatoid arthritis which the doctor described as very aggressive and resistant disease. The treatment was not straightforward. Dr Cohen recorded at the top of p 2 of this report that between 1995 and 1996 the plaintiff developed an increase in his background level of dyspnoea. He was referred to Dr Keith Burgess, respiratory physician. Dr Cohen's comment about the referral is:

He made a diagnosis of probable silicosis with other possibilities being rheumatoid, lung disease and pulmonary disease secondary to drug therapy. Subsequently, the diagnosis of probable silica tuberculosis was made. Treatment was undertaken for the effective component of the latter condition with there being an adequate clinical response.
The doctor went on to describe the diagnosis in the plaintiff of muliple myeloma, a condition not sought to be related to his work with the defendants. He described further the development of type II diabetes melitis. Those conditions are discussed in the report. The doctor goes on to discuss the relationship between rheumatoid arthritis and silica exposure. I think it fair to say that his conclusion is, as is the conclusion of other experts in the case, that there is a weak association between the two but not an association sufficiently strong to say that on the balance of probabilities one leads to the other. Indeed, Dr Cohen, having discussed the issue wrote at the top of p 3 of his report:

Taking into account therefore that the association, if it exists, is not likely to be strong and that there is a background risk of rheumatoid arthritis in the population, it is my opinion that on the balance of probabilities exposure to silica is not causally related to the development of rheumatoid arthritis in a specified individual patient. As to whether silica could aggravate rheumatoid arthritis once the disease has developed is once again in the realm of speculation.

8. The doctor also raises the possibility of pulmonary toxicity from the drugs he has had to take for various conditions as a component of his lung disease. Once again while he is not prepared to exclude such a consideration he does not come to the view that on the balance of probabilities such an association has been established.

9. It is convenient, bearing in mind what Dr Cohen had to say, to go to the way in which the case was opened by learned counsel for the plaintiff. At p 1 of the transcript commencing at line 37 learned counsel said:

He [that is the plaintiff] claims provisional damages for loss of respiratory function in respect of his silicosis, tuberculosis and it is distinctly possible that the condition of rheumatoid arthritis which caused his retirement from work many years ago may have aggravated the symptoms of his respiratory disorder. However, it is not said in the present claim that the rheumatoid arthritis is directly related to his work, although most of the medical practitioners acknowledge a relationship between rheumatoid arthritis and silicosis but are unable to explain which comes first and how the pathogenesis may have arisen.

10. The case has been presented on the footing that the plaintiff suffers from silicosis and shortness of breath related to silica exposure and that is all. Related to the silicosis are the conditions which I have spoken of silicotuberculosis and pneumonia. To the extent that submissions were made suggesting that the presentation of the case in this way resembled a dancer stepping around egg shells, learned counsel for the plaintiff simply said that having regard to the medical opinions available no other approach was in effect reasonable.

11. Professor David Bryant was qualified by the plaintiff’s solicitors. He said at p 3 of the first of his reports, which bears date August 9 2001:

The Plaintiff had radiographic changes consistent with silicosis. The changes (he wrote) are simple silicosis. There was no evidence of progressive massive fibrosis.
The doctor went on to write:

However, he does have a history of tuberculosis which developed subsequent to the first radiographic changes of silicosis. He also has evidence of bilateral basal bronchiectasis.

Professor Bryant went on to write:

Bronchiectasis is a common complication of pulmonary tuberculosis although, in the absence of CT scans prior to the onset of his tuberculosis, I cannot be confident that the bronchiectasis occurred secondary to his tuberculosis rather than being due to a pre-existing illness.

He went on a couple of sentences later to say:

I believe it is more probable than not that his bronchiectasis is indeed secondary to his tuberculosis. His cigarette smoking history is quite short (5 pack years) and is likely to be insufficient to have resulted in chronic airflow limitation. Bronchiectasis and pulmonary tuberculosis are a common cause of chronic airflow limitation but I believe it is more probable than not that his chronic airways disease has occurred as a result of bronchiectasis, which was in turn secondary to his developing tuberculosis.

It is important to note that this opinion is not accepted by Professor Breslin whose report was tendered by the second defendant. I will come back to the professor’s opinion in a little while. Further at p 3 of Dr Bryant’s report of 9 August 2001, he wrote:

It has been known for almost 100 years that patients with silicosis have an increased risk of tuberculosis.

The doctor discusses that idea in the ensuing paragraph and ends it by saying:

As a result of developing tuberculosis he has developed airflow limitation due to bronchiectasis.

The doctor then went on to say:

This man also has significant impairment due to rheumatoid arthritis.

12. He discusses then the relationship between silica exposure and that condition. He concludes that an association is possible according to some authors and that there is a real association in the opinion of others. As I say, the evidence does not permit such an association to be found to be more probable than not. In a report of 11 June 2002 Professor Bryant wrote:

Silicosis is not typically associated with significant airflow limitation.

I interpolate that Professor Breslin is of the same view at least in respect of this plaintiff. There is then, I think a typographical error at the end of the line. It reads this way, “However there is no evidence that workers who have had silica dust exposure are at greater risk of developing chronic airflow limitation than are non-exposed workers.” I think the word “no” which appears before the word “evidence” should be “now” because the whole sense of the paragraph thereafter is to explain the authorities upon which he relies for such a view. So much may be seen from the first sentence in the following paragraph, for example. The doctor repeated his view that it was more probable than not that Mr Agresta’s silica dust exposure has made a material contribution to his chronic airflow limitation. He went on to write:

I believe that silica dust exposure has either exacerbated or aggravated his chronic airflow limitation.

13. On 8 July 2003 the doctor wrote that there had been no change in the plaintiff’s breathlessness since he last saw him. He described a difficulty walking over a distance of 15 metres. The doctor recorded that the plaintiff told him he had to stop then because of pain in his hip, pain in various other joints in his body and shortness of breath. Lung function tests obtained at the time of that report showed no significant change since the results in 2001. The doctor found no evidence of any deterioration in his respitory function since he had first seen him. The doctor thought that it was unlikely that the plaintiff’s life expectancy would be shortened by any worsening of his silicosis. He was at risk of developing lower respiratory tract infections which would need treatment and might necessitate hospitalisation. That possibility arose from his leukemia.

14. On 10 February 2004 the doctor reported again. He was of the view that one of the reasons for the plaintiff being breathless is his silicosis and previous tuberculosis. He wrote:

However the breathlessness that he feels when he bends over is likely to be largely a reflection of his silicosis.

15. The doctor had expressed the view, in his report of 8 July 2003, that the plaintiff’s level of impairment was 10 per cent of the whole person. In making that measurement he used the recommendations of the American Medical Association as contained in the “Guides to the Evaluation of Permanent Impairment (5th Edition 2001)”. He said that this had not changed since he saw the plaintiff in June 2001.

16. There is in evidence a document which has caused confusion. It is PX4, a certificate of disablement from the Workers Compensation Dust Diseases Board. It certified that the plaintiff had contracted silicosis 20 per cent in New South Wales and that his disablement for work from the dust disease is partial and the percentage of his disablement for work from the dust disease is nil per cent. The Board is not paying the plaintiff anything by way of weekly payments and has not paid, and will not pay, any of his medical expenses.

17. The first defendant tendered the history taken by the Dust Diseases Board inspectors. The document is, it seems to me, confirmatory of the exposure about which he spoke. It has not been the subject of submissions at the end of the case.

18. There is another letter from Dr Cohen tendered. It bears date 5 April 2001, it is 2DX1 in the proceedings. It confirms that the doctor first observed clinical abnormalities with regard to the plaintiff’s pulmonary condition in 1995 and that they subsequently progressed significantly. In the second last paragraph the doctor wrote:

He was seen in consultation by Dr Keith Burgess when the diagnosis of likely silicotuberculosis was made on histological grounds. Though, so far as I am aware, mycobacterial cultures were negative. Nonetheless, he was treated with anti-tuberculous therapy with some degree of clinical response.

19. The doctor discussed whether the plaintiff’s symptoms might represent rheumatoid lung disease and he thought that that was not his predominant problem, although it may be making some contribution.

20. There is a report from Dr Mackinlay which deals with the diagnosis of chronic myeloid leukemia.

21. There are reports from Dr Burgess. In the first of them which bears date 19 March 1996, the doctor recorded a history of 15 years of progressive dyspnoea but getting progressively worse in recent years. In the second last paragraph he wrote:

I suspect that Mr Agresta has silicosis from his previous work with Telecom.

22. The next of the letters, which bears date 9 May 2003 is really concerned with inter-current illnesses, although it mentions that the plaintiff is recovering from his weakness and dyspnoea and chest discomfort. The next letter bears date 10 July 2003. The doctor wrote:

His PFT’s showed moderate airflow obstruction with a moderate reduction in DLCO and a partial acute bronchodilator response in the FEV1.

23. There is a report from Dr Gabrielle Howard who is concerned with his thyroid complaint. In fact there are several reports from that doctor but I do not think it necessary to turn to the detail of those.

24. Then we get the report of Dr Breslin about which I made mention earlier. It is dated 16 August 2002, exhibit 2DX5 in the proceedings. Ho obtained a history of the plaintiff’s work with the Water Board. As to that he wrote:

There is no doubt that this three year period on contract to the Sydney Water Board would have been associated with significant silica exposure but I could not detect any asbestos exposure.
The doctor then wrote this:

He then moved to Telstra Corporation from 1963 to 1998 working as a labourer. He mainly worked in earth and soft ground and occasionally in rock.

25. That aspect of the history it seems to me is contrary to the plaintiff’s evidence to which I will go in a little detail later, but it is important to note immediately that I think that aspect of the history is incorrect. Further, the doctor went on, “His job was to lay fibro asbestos cement conduits”, which he described. Once again, I think that part of the history is insufficient and not in conformity with the plaintiff’s evidence about his work. The doctor then wrote, that is a little later:

There was very little work in rock and very little silica exposure would have occurred.

Once again, that appears to me to be contrary to what the plaintiff had to say. Nonetheless, the doctor seemed to think that silica exposure occurred in both employments, he thought 90 per cent of it occurred at the Water Board and 10 per cent at Telstra.

26. He then took a smoking history. The plaintiff disagreed with what the doctor had recorded when it was put to him in cross-examination. The doctor expressed his views in a number of numbered paragraphs commencing at the top of p 5. It is not necessary now to refer to all of them. He wrote that the plaintiff now had simple pulmonary silicosis; this was due, he said, to the totality of his silica exposure, 90 per cent of which occurred at the Water Board and 10 per cent at Telstra. In the paragraph numbered 5, the doctor wrote that in addition to the simple silicosis the plaintiff had smoking induced airways disease. He then wrote this sentence:

The airways disease, I believe, is the cause of his dyspnoea and the airways disease is entirely due to his smoking. The silica exposure that he had was essentially out doors and I do not believe made a significant contribution to the development of his airways disease.
A little later:

The obstructive airways disease is entirely due to his cigarette smoking. The obstructive airways disease is the cause of his dyspnoea as evidenced by nocturnal dyspnoea and wheezing and triggers to his dyspnoea. The lack of response to inhaled bronchodilator is fairly characteristic of smoking induced airways disease. The smoking induced airways disease is causing a 20 to 30 per cent respiratory incapacity and this incapacity is unrelated to his silicosis. His silicosis is not causing any disability and highly unlikely to ever cause any disability.

A little later the doctor wrote that the episodes of pneumonia relate not to silicosis but to the smoking induced airways disease. At paragraph numbered 8, he wrote:

It does appear on the evidence available to me that he has had superinfection in his lungs with atypical mycobacterium.

He then wrote about rheumatoid arthritis and the possible association between it and silica exposure. In other words, if the doctors opinion were accepted at full value the plaintiff would fail.

27. What is one to make of the competing opinions? It may be said, firstly, that I thought the opinion proferred by Professor Bryant contained material indicating a considerable amount of research and on its face it was impressive. There are aspects of Professor Breslin’s report in this case which need to be looked at. I wish to say that I have seen the professor give evidence many times, I am always interested to hear what he has to say. There are some matters in this case, however, which cause me to wonder. Firstly the history of smoking relied upon by the professor in forming his views was not accepted by the plaintiff when put to him. (See p 20 of the transcript, lines 33 to 49, p 21 lines 1 to 5.)

28. Secondly, in Professor Breslin’s report there was no mention made of the development of silicotuberculosis, whereas both Dr Cohen and Dr Bryant seem to accept that that had occurred. Further, the fact that it had occurred was accepted as part of the plaintiff’s history by Dr Naomi Mackinlay in her report. Nextly, it may be accepted that silicosis simpliciter may not commonly produce airflow limitation, both Dr Breslin and Dr Bryant say so, but I was favourably impressed by that part of the report of Dr Bryant which details studies into the fact that silica dust exposure itself can produce an adverse effect on breathing. (See Professor Bryant’s report 11 June 2002. See also his comments to this effect in the report 8 July 2003.) I note further that Dr Burgess thought that the breathlessness was probably due to a combination of factors including silicosis and pulmonary fibrosis associated with rheumatoid arthritis. (See his report 19 March 1996.) That, it seems to me, is a much different conclusion from the conclusion of Dr Breslin that it all results from smoking.

29. Having regard to the spread of opinion available in the case I am not pursuaded on this occasion that Dr Breslin is right. I do not accept the contention that all of the plaintiff’s breathing trouble results from his smoking. On the balance of probability I accept that his breathing difficulties have been contributed to by the silicosis, from which he undoubtedly suffers, and from the exposure to silica dust. Further I accept that he had silicotuberculosis and this has produced its own effects, as I have previously indicated.

30. It will be necessary in a moment or two to consider legal submissions about Commonwealth legislation. Related to those submissions it will be necessary to determine when the plaintiff first suffered from breathlessness and when he first suffered impairment, as that term is used in the Safety Rehabilitation and Compensation Act 1988. As to the onset of symptoms there is firstly the plaintiff’s evidence at transcript p 21, lines 13 to 40, when he said he thought his symptoms started in 1989. Then at p 22, lines 27 to 29, when he thought that the breathing trouble first set in after 1991 or 1992. The history to Dr Burgess, if accepted as telling the whole story, would have symptoms commencing in about 1981. In respect of that history the plaintiff was cross-examined, see in particular p 25 of the transcript, and he resisted the notion that he had been troubled with breathing difficulties since that time.

31. A lot of questions were put to the plaintiff about what he had told Dr Cohen the forensic object of which was to try to obtain a concession that the plaintiff had had breathing trouble ever since 1981. He was then asked a question which had two components, at line 14 and 15, p 25. After having been asked many questions about what he had told the doctor, it was put to him: Question, “And what you told him was the following, 15 years of progressive shortness of breath but getting progressively worse in recent years.” Answer, “It’s getting worse even now.” Question, “Do you agree that is what you told the doctor?” Answer, “Yes.” Quite what that question and answer conveys is not clear but it seems that the plaintiff was readily assenting to the proposition that he told the doctor things had been getting worse. I am not so sure that the answer adopts the other part of the proposition, namely, that he had had 15 years of progressive shortness of breath.

32. When one looks to Dr Cohen’s reports there is material firstly in the report of 13 June 2001, commencing at the top of p 2, in which the doctor wrote:

Between about 1995 and 1996 Mr Agresta developed an increase in his background level of dyspnoea. He was then referred to Dr Keith Burgess, respiratory physician.

33. In the letter tendered by the second defendant, 2DX1, a letter from Dr Cohen bearing date 5 April 2001, the doctor wrote, “With respect to his pulmonary condition I first observed clinical abnormalities in 1995.” It is to be noted that the doctor had been seeing him since 15 March 1994. In the light of that material it seems to me improbable that the plaintiff had been suffering symptoms from 1981. I say so, firstly, because of the terms in which Dr Cohen has expressed himself and secondly because of the absence of any other material relating to treatment of such a condition available in the case. I conclude that it is more probable than not that the onset of symptoms occurred as Dr Cohen has described, that is to say in 1995, 1996. I have not forgotten the plaintiff’s own various attempts at identifying the commencing period. At one time 1989, at another time after 1991/1992. But I think an important feature of all of that is the absence of any medical material from anybody purporting to treat or diagnose any condition associated with his breathing.

34. When I was considering Professor Breslin’s report there was an aspect that I had forgotten to include, and that is this: Professor Breslin saw some significance in the lack of response to inhaled bronchodilator on the part of the plaintiff. (See his report of 16 August 2002, 2DX5, p 5.) In that regard, I note that Professor Burgess reported a partial acute bronchodilator response (See his report of 10 July 2003, 2DX3.) That material is not of startling significance, it is just another illustration of an opinion different from Dr Breslin’s being available in respect of an aspect of the plaintiff’s condition.

35. Learned counsel for the second defendant submits that so far as Telstra is concerned the plaintiff cannot succeed because of the provisions of s 44 of the Safety Rehabilitation and Compensation Act 1988. The submission is developed in two ways. Firstly I should say what the section says. It is in these terms:

44 (1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or

(b) the loss of, or damage to, property used by an employee resulting from such an injury;

whether that injury, loss or damage occurred before or after the commencement of this section.

(2) does not apply.

36. It has been common ground that the second defendant is either the Commonwealth, Commonwealth Authority or a licenced corporation. Nothing turns on that.

37. The submission is, firstly, that a proper view of the facts would induce the Tribunal to say that from 1981 the plaintiff had an impairment, namely breathlessness, and that in the absence of an election as provided for in s 45, he is de-barred from bringing these proceedings against the second defendant. The finding of fact that I have made in respect of the onset of symptoms, provides a basis to say that the argument is not available to the second defendant.

38. If it be accepted that symptoms did commence in 1995 or 1996, as I have found that they did, then any argument to the effect that s 44 prevents this action from being brought against Telstra, it has been submitted, runs foul of the decision of the Court of Appeal in Commonwealth of Australia v Holland and Commonwealth of Australia v Sandiford (1991) 24 NSWLR 198. The reason is twofold. Firstly, when a person, such as the plaintiff has left the employment of the Commonwealth, before seeking medical treatment for an ailment, which would include breathlessness in this case, he is not an employee of the Commonwealth within the meaning of the Safety Rehabilitiation and Compensation Act 1988 s 44(1). Nor can the ailment in such circumstances be an injury sustained in the course of employment with the Commonwealth within the meaning of that provision. That decision binds me. I accept the submission.

39. If it is sought to say that the plaintiff is prevented by s 44 from bringing the proceedings because he had rheumatoid arthritis whilst working for the Commonwealth and that that is sufficient to cause s 44 to have effect, I think two answers must be made. Firstly, the terms of the section itself speak of an action lying in respect of an injury sustained by an employee. This is not an action lying in respect of any condition of arthritis. Indeed that is expressly what this proceeding is not about. So that having regard to the terms of the section itself there seems to me to be no room for such an argument. Secondly, if the argument were otherwise available it is submitted by learned counsel for this plaintiff that it would fall foul of the decision of the High Court in Georgiadias v Australian and Overseas Telecommunications Corporation (1993/1994) 179 CLR 297. In respect of that case it is to be remembered that this plaintiff completed his employment with Telecom in May 1988, the Safety Rehabilitation Compensation Act 1988 commenced in June of that year. As the terms of the Act purported to remove from the plaintiff, if they had application, a right to sue in respect of a condition arising at work, it is submitted that the High Court decision in Georgiadias means that in its application to a person such as the plaintiff, s 44 is invalid on the ground that it effected an acquisition of property, namely his right to bring an action for damages other than on just terms as required by s 51 (xxxi) of the Constitution. In view of the finding of fact previously made about when symptoms commenced it is not necessary to deal with this argument further.

40. Another issue arose which was to the effect that the out of pocket expenses claimed, a total of $7,060, related to some treatment for conditions other than the silicosis, silicotuberculosis and pneumonia. The submission was put in various ways. In the end it came to a submission that the court would take off from the $7,060 claimed an amount of $4,800 because the sums totalling $4,800 related to the plaintiff’s attendances upon Dr Burgess and that it was apparent from the many letters of Dr Burgess, which were tendered by leave and became 2DX6, that the attendances had nothing to do with the conditions the subject of the proceedings. If the submission were accepted in its terms the plaintiff would have been left with an out of pocket entitlement of about $3,000.

41. An examination of the letters in 2DX6 leaves it open, it seems to me, to argue that many of the attendances were for multiple purposes including purposes to do with his breathing difficulties. In an effort to prevent further time being spent on an issue of limited significance learned counsel for the plaintiff indicated that he was prepared to accept a total sum for out of pocket expenses of $3,500. Counsel for the second defendant did not consent to this course being adopted but in the circumstances of the case it seems to me a sensible approach on the part of counsel for the plaintiff and I propose to proceed as he suggests. It seems to me to be entirely counter productive to have a case within a case about the purposes for which any attendances upon a doctor occurred and to apportion the bill for each attendance according to how one views the need for attendance. I propose to proceed on the footing that $3,500 is the fair cost of medical treatment occasioned by the plaintiff up to the date of trial in respect of the illnesses which are the subject of these proceedings.

42. There was a further submission made that the plaintiff should not be permitted to recover any out of pocket expenses because the oddly worded certificate from the Dust Board had the legal effect that the Dust Board was required to pay the plaintiff’s medical expenses and that to permit him to recover them as damages in the proceedings would be to permit double dipping. I think it is sufficient to say, firstly, that the Dust Diseases Board has made it plain that it will not be voluntarily making any payments and secondly, whatever intricacies of argument might be developed in respect of the Boards obligations in that regard, they were not developed in fact in the proceedings. The evidence is clear that the plaintiff has not been paid anything for his medical expenses nor is there any evidence to suggest any likelihood that he will be paid. In that circumstance to permit recovery of the out of pocket expenses seems to me not to offend principle but rather to accord with it.

43. Submissions were made to the effect that the plaintiff’s affidavit ought to be regarded as unsatisfactory because it did not attempt to deal with his intercurrent medical conditions. It does not seem to me to require criticism of the plaintiff on that account. I assess that what has happened is that there has been some attempt made at keeping clearly in mind what is the subject of the claim for damages and to limit the material being proffered in support of it. I find nothing sinister about the way in which the affidavit has been prepared.

44. As to whether or not the risk of injury was foreseeable the medical reports indicate clearly enough that the knowledge of dangers of exposure to silica is long standing. Further in this regard there has been tendered in the proceedings a book published under the auspices of the Water Board in 1988, the book became PX7 in the proceedings. At p 171 the following appears:

Another hazard associated with the Water Boards area of operations in particular has been the lung disease silicosis which is caused by the inhalation of flinty particles. Sydney and its surrounding areas rest on a shelf of sandstone that has an extremely high free silica content, which means that workers and excavators in this area run a very high risk of contracting the disease. In the past underground sewerage miners and rock choppers have been particularly at risk and before the war overseers were obliged to check for the silicosis registration card which board employees free of the disease were supposed to carry.
The article goes on:

William Branham remembers, “At one time you were supposed to be tested for silicosis before you started in a sandstone job or mining, but the Water Board was always reluctant to send you for a silicosis test.”

At p 172 the following is quoted in the book:

Around 1971 or 1972 full compensation came in and then the union came in and stuck their beak in everything. They improved the safety conditions I must say. Now we have water to spray the dust. Before we just used to stand in it all day. Now with the Board it is safety first, if it’s not safe the men don’t go in, that’s it. It makes it a lot slower though and sometimes they over do it.

45. The passages are not only interesting for their human content, they speak of the risk, the speak of the nature of the terrain through which men, including the plaintiff, had to work. They speak of measures of prevention which might have been adopted if anybody could have been bothered. The evidence says that nothing was done, no masks were issued, no wetting down was undertaken, no warnings were given. I accept that requiring men to work in sandstone country, as the plaintiff was required to work, involved with it a forseeable risk of injury, that is that he might get sick from exposure to silica. That risk has come home. The risk was forseeable, nothing was done, the Board’s own book suggested things that might have been done which were not done. The injury was preventable. I am satisfied the plaintiff’s illness resulted from the exposure, that is, his silicosis, his silico tuberculosis and pneumonia. In the circumstances I am satisfied that the failure to take steps to prevent the men from such exposure or to minimise the risk to them showed a want of care for them and involved a breach of the duty of care which was owed. That is so in respect of the Water Board. See generally Tame v New South Wales; Annetts v Australian Stations Pty Limited (2002) 211 CLR 317.

46. Mr Torrington, learned counsel for the Water Board, submitted that there was insufficient evidence to permit the Tribunal to find that a duty of care was owed. Written submissions were made to give legal flesh to that skeleton. The submissions were elegant and scholarly but I regret that I do not accept the premise on which they are based. The risk to the men was known, was foreseen and forseeable and yet nothing was done to prevent injury. To say it in another way, there were steps reasonably available to be taken to prevent the men from risk of harm that was readily forseeable. That is, the risk that they would contract illnesses because of their exposure to silica. To do nothing in that circumstance and to require the men to work in those conditions showed a want of care for their well being.

47. In respect of submissions that were made saying that the evidence did not permit the conclusion to be drawn that the Water Board inspectors played any part in the men’s work the Conditons of Work, PX6, make it clear that the Board retained control of the work. It directed or had the power to direct the contractor as to who they should employ, the Board retained the control over the order in which work was to be done. The superintending officer could direct work to be stayed or delayed for such time as he thought fit. The contractor had to comply with the directions of the superintending officer. The contractor had at all times to give uninterrupted access to the engineer, superintending officer and any other person authorised by the engineer in writing, to all or any portions of the works. The engineer had the power to direct the contractor in writing to omit and not carry out any part of the works. The hours of work were as prescribed by the Board. The contractor was obliged to give preference to members of the union. There were specifications for excavation work. The general sewerage construction details, which were in the form of a diagram, annexed to the conditions of work, dealt with tunnelling in rock. With that degree of control over the worksite I am satisfied that the relationship between the Water Board and the men doing the work was such as to impose on the Board the duty to take reasonable steps to prevent them from being hurt by forseeable risk of injury. In fact, no steps were taken at all.

48. In so far as Telstra was concerned they were the direct employers of the plaintiff. They had a duty to him the content of which was similar in terms. It was a duty owed directly as employer. The knowledge of the risks of injury, I infer from the materials to which I have already referred, was widespread in the community. It is inconceivable that Telstra were not in fact aware of them. In any event, they should have been. The failure to take steps to prevent harm being suffered from the forseeable risk of injury showed a want of care for the plaintiff, that is, there was a duty and a breach of that duty.

49. The plaintiff will be entitled to succeed against both defendants. They will be consecutive tort feasors, each responsible for the damage done by it. In this regard see Mohr v Berrigan Quarry Pty Limited (In Liquidation) & others (1995) 11 NSWCCR 355. That was a silicosis case in which Johns J discussed the relevant principles at length. I gladly acknowledge and accept the guidance that his judgment offers. In conformity with the approach the judge adopted in that case I propose to assess the entitlement that the plaintiff has to damages and then to apportion responsibility for each of the defendants concerned.

50. As regards the assessment of damages the principal compononent is that of general damages. In that regard the plaintiff is now 76 years old. He is afflicted by a multitude of non-compensible conditions. He has suffered since 1996, or thereabouts, from a shortness of breath. The need for breath is basic to human existence and an insufficiency of air in the lungs is a constant and cruel matter to have to deal with. The plaintiff has borne that difficulty for 8 years now, he will continue to have to deal with for as long as he is granted the grace of life. The degree of impairment is not great. I note the competing opinions of Doctors Bryant on the one hand and Breslin on the other, about the extent to which the plaintiff has trouble breathing. I have already dealt with the causes of that. They express their views in terms of measurements which are in effect measuring different things. The view that I have come to is that the plaintiff is entitled to general damages in respect of the shortage of breath and the tuberculosis which required treatment in a total sum of $40,000. He will be entitled to interest calculated at the rate of 2 per cent on half, which Counsel tell me, amounts to $3,200.

51. There is a claim for the provision of care. I accept readily that the plaintiff is in a fairly parlous state with his health generally. I am not satisfied, however, that any need for care results from breathlessness. In this regard, Dr Bryant considered the question of the provision of care and in his report of 10 February 2004 provided support for the view that he needed an hours assistance each day in dressing because of his respiratory condition. In his report of 8 July 2003 the doctor said: “However his overall ability to care for himself has fallen as a result of a fracture of the neck of his femur and the development of chronic myeloid leukemia. He now requires assistance with the activities of daily living.” As I say, I accept that he has dreadful physical troubles but on all of the evidence I am not satisfied that a need for care arises as a result of a modest breathlessness and that part of the claim ought not to succeed.

52. It is necessary then to consider what verdict is appropriate in respect of each of the defendants. The matters to be borne in mind in determining this aspect of the matter are causal potency of the conduct of each of the defendants and their moral culpability. (See Macquarie Pathology Services v Sullivan (1995) NSWCA). The time over which exposure to dust took place is approximately three years in the employment of the Water Board and 24 years in the employment of Telstra. The Telstra period was almost 25 years but some long service leave had to come out of it. Although efforts were made to differentiate between the type of work done in each employment, it seems to me that its nature is essentially the same. That is the digging of ditches and so on, through whatever country the workmen came across. There would be days when there would be sandstone, there would be days when there would be other rock, there would be days when there was just dirt, but the essential nature of the work remained the same. Sometimes the duties required them to put in, for Telstra, manholes at the end of a line and that would provide relief from digging and cutting through rock but the broad nature of each employment was similar to the other.

53. As regards moral culpability there is not much to say. Neither employer took any safety precaution at all although the risks were well known. I conclude that responsibility ought be allocated according to the time of exposure in each employment. It follows that 1/9 will be borne by the first defendant and 8/9 borne by the second defendant.

The total damages are as follows:

General Damages $40 000

Interest $ 3200

Out of Pocket Expenses $ 3500

$46 700

54. There will be verdict and judgment for the plaintiff against the first defendant and the sum of $5,189. Verdict and judgment for the plaintiff against the second defendant $41,511. Defendants to pay plaintiff’s costs in the same proportions.

55. The plaintiff may claim further damages against either defendant should he develop any of the following conditions: 1) systemic scleroderma 2) silica induced lung cancer 3) silica induced cancer of any organ. The plaintiff may claim further damages against the second defendant should he develop mesothelioma.

Mr A J Leslie, QC instructed by Turner Freeman appeared for the applicant.

Mr J Sharpe instructed by Phillips Fox appeared for the first defendant.

Mr S E Torrington instructed by Sparke Helmore appeared for the second defendant.