Comcare v Howard Smith & Patrick Travel P/L

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

1. I make the following findings of fact:

i   The late Mr Lindsay was employed by the defendant at all material times.

ii   The defendant was a registered employer of waterside workers at Port Kembla.

iii   The late Mr Lindsay was not a registered waterside worker.

iv   The 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.

v   Frequently when he worked in the holds of ships, he encountered loose asbestos particles and breathed in those particles.

vi   The 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.

vii   The late Mr Lindsay breathed in these particles while he was working on the winches.

viii   The 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.

ix   The 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.

Background of the Proceedings

1. David Lindsay was born in the United Kingdom on 8 August 1939.

1. The defendant was incorporated on 31 December 1936.

1. The Australian Stevedoring Industry Board was incorporated on 18 July 1949. The plaintiff in these proceedings assumed liability for the responsibilities of the board.

1. Mr Lindsay arrived in Australia in 1961 and worked at Port Kembla between 1964 and 1982. His claim was that the defendant employed him during those years and that the successor to the Board was responsible for stevedoring operations at Port Kembla and because of this owed him a duty of care to…