Dalby v Wallaby Grp Ltd

[2002] NSWDDT 15

Reported Decision (2002) 24 NSWCCR 130

Dust Diseases Tribunal

of New South Wales

CITATION:	Dalby v Wallaby Grp Ltd and Ors [2002] NSWDDT 15
PARTIES:	Thomas Joseph Dalby v Wallaby Grip Ltd (Formerly Bells Asbestos & Engineering (Australia) Ltd) Wallaby Grip (BAE) Pty Ltd (in liquidation) (Formerly known as Bells Asbestos & Engineering Pty Ltd)
MATTER NUMBER(S):	151 of 2002
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	Damages :- Assessment of damages - smoking - carcinoma - injury indivisible - whether damages should reflect only casual contribution of asbestos Assessment damages - carcinoma - material contribution by asbestos exposure and smoking - injury indivisible - tortfeasor liable to compensate for whole damage
LEGISLATION CITED:	Limitation Act (SA) Law Reform (Miscellaneous Provisions) Act 1965 s(9)
CASES CITED:	Castings v Wardlaw [1956] AC 613; Dingle v Associated Newspapers Ltd [1961] 2 QB 171; Savini v Australian Terrazo and Concrete Co Pty Ltd [1959] VR 811; Commonwealth of Australia v McLean (1977) 41 NSWLR 389; CARLSHOLM (Owners) v CALLIOPE (Owners) [1970] P 172 at 184; Wilson v Peisley [1976] 50 ALJR 207; Jobling v Associated Dairies Ltd 1982 at 794; Bendix Mintax Pty Ltd v Barnes (1992) 42 NSWLR 307; Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262
DATES OF HEARING:	30 July; 23-27 August 2002
EX TEMPORE JUDGMENT DATE :	08/27/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr J McIntyre, SC instructed by Alex Stuart and Associates. FOR DEFENDANTS: Mr G F Little, SC instructed by Acuiti Legal

JUDGMENT:

1. Thomas Joseph Dalby seeks damages from Wallaby Grip Ltd and Wallaby Grip (BAE) Pty Ltd for bronchogenic carcinoma. It is not in dispute that both asbestos exposure and cigarette smoking made a material contribution to his lung cancer. The defendants concede he is entitled to a verdict, but argue that his damages should be limited to reflect the causal contribution made to his cancer by asbestos exposure and not the whole of his lung cancer.

The Plaintiff

2. The plaintiff was born on 29 November 1924, and accordingly is presently 78 years old. The life expectancy for Australian males, according to the report of Professor Fox who was qualified by the defendants, is 77.5 years. The plaintiff has lived beyond the ordinary life expectancy.

Asbestos Exposure and Cigarette Smoking

3. He was exposed to asbestos between 1948 and 1977 in operating a dry cleaning business which he conducted in partnership with his brother-in-law. He used products which were manufactured and supplied by each defendant. That exposure caused asbestosis and, as is conceded, made a material contribution to his lung cancer. He was a smoker of cigarettes from the age of 16 until about 1960, and in 1980, at a time when he had retired and at about the time he separated from his wife, he resumed smoking. From 1980 for a period of two years or thereabouts he smoked cigars and thereafter returned to cigarette smoking. He was then a heavy smoker of cigarettes until he ceased smoking in April this year.

4. Cigarette smoking is measured in pack years. A pack year is a consumption of one packet of 20 cigarettes each day for one year. There is insufficient evidence to enable me to determine the plaintiff’s consumption of cigarettes in pack years in the first smoking period, that is between his commencing to smoke at the age of 16 and his ceasing in 1960. It is difficult to determine in pack years his smoking between 1980 and his ceasing to smoke in April 2002. There is, however, evidence that he was a heavy smoker after he resumed cigarette smoking after 1980 and, as noted, he sometimes smoked between 50 and 60 cigarettes per day. His smoking in the second period is likely to have been 20 or more pack years and in this connection Dr M.D. Holmes, who was qualified by the defendants, reported on 12 August 2002 (DX1):

The increased risk of lung cancer in smokers is generally greatest after a 20 pack year smoking history. This information therefore supports an opinion that Mr Dalby’s smoking prior to 1960 has had a significant contribution to the development of his lung cancer. I do not believe that adequate information exists to apportion the contribution of smoking prior to 1960 and that undertaken after 1960.

Abandoned Defences

5. The defences filed by the defendants raised defences under the Limitation Act (SA), of contributory negligence as a result of the plaintiff’s smoking, and alleged volenti also. It will be apparent from what I have earlier said that those defences were abandoned.

The Main Issue

6. The substantial issue committed to me is whether the damages should reflect what the defendants say is the contribution made by asbestos exposure; in other words be discounted by the contribution made to his cancer by the plaintiff’s smoking.

7. The medical evidence to support the defendants’ submissions comes from the report of Dr Holmes bearing date 29 July 2002, which is part of both PX3 and DX1. In his report of 29 July 2002 Dr Holmes said this:

The association between asbestos exposure of moderate degree and smoking is thought to be multiplicative and as such the combination of asbestos exposure and smoking, with the assumptions made above, have increased Mr Dalby’s risk of lung cancer forty times. The apportionment of causality is difficult. One could argue that if Mr Dalby had not had asbestos exposure, then his risk of lung cancer would have been 20 times that of a non smoker. On the other hand if he had not smoked and had had asbestos exposure, his risk of lung cancer would have been two times that of a non smoker. However, he has been exposed to both of these synergistic factors.
One approach to apportionment which seems reasonable is the Norwegian approach as summarised in the book chapter by Henderson et al pages 151-152 (enclosed). This approach attempts to quantify attributability to relevant exposure separately and these relevant exposures include the interaction between exposures. Using this approach and the assumptions above for the case of Mr Dalby (ie two times increased risk of lung cancer due to asbestos exposure and twenty times increased risk of lung cancer due to smoking) then apportionment of each of these exposures (including their synergistic interaction) to the development of lung cancer is:

8. It should be observed that the assumption as to smoking made by Dr Holmes was that he had a 40 to 50 pack year smoking history and continued to smoke. As observed earlier the evidence does not enable me to conclude that the plaintiff in fact had a 40 to 50 pack year smoking history. It should also be observed that, garnered from the totality of his report, it seems to me that when he apportioned 35 per cent to asbestos and 65 per cent to smoking Dr Holmes was translating risk to causal contribution. That this is so is confirmed by his earlier reference to the Helsinki criteria:

According to the Helsinki criteria (enclosed) clinical asbestosis may occur at cumulative asbestos exposure that increases the risk of lung cancer two fold.

9. And by his later saying that a twofold increase in risk would be a reasonable estimate of the increased risk of lung cancer attributed to his asbestos exposure. Also by his reference to increased risk of lung cancer due to smoking in the last paragraph quoted above in [7], by his later saying that a twofold increase in risk would be a reasonable estimate of the increased risk of lung cancer attributed to his asbestos exposure and by what he said in his report of 12 August 2002 quoted in [4]. The Norwegian approach referred to in the Henderson chapter, pages 151 and 152 of which were attached to Dr Holmes’ report of 29 July 2002, is also based on risk.

10. The defendant also placed before me a report of Professor Fox, who is Professor and Director at the Department of Clinical Haematology and Medical Oncology at the Royal Melbourne Hospital. I assume that the Royal Melbourne Hospital is a teaching hospital associated with one of the universities in Victoria. He did not examine the plaintiff, but he was asked a number of questions by the defendants. These he answered in a report of 7 August 2002, which is DX2. He was asked to express an opinion on the contribution, if any, to the contraction of lung cancer by the plaintiff’s initial period of smoking up to about 1960. He answered:

It is not completely clear from the information given to me that his cigarette smoking was as heavy in the period 1940 to 1960 as it was in the period 1980 to the current time. Currently he smokes 55 to 60 cigarettes a day. I had assumed that his smoking habit was less and that he would have smoked 20 cigarettes a day and that would have been a 2-year pack history out of a 75 year pack history which would be, on a simple proportional basis, some 27% of his smoking risk. If this smoking was higher during this period (1940-1960) than [sic] it would have been proportionately greater.

11. Parts of the report of Professor Fox were deleted by agreement. They have been indicated by a line scored through those paragraphs. It should be observed, however, that on p 7 of Professor Fox’s report a line has been drawn through the first paragraph which answers the third question. Notwithstanding that line, that paragraph is in evidence, and in it Professor Fox expressed the view that the plaintiff’s asbestos exposure was less than 20 fibre ml years. 20 Fibre ml years is, according to a group of eminent medical scientists (of whom Professor Henderson is one) who met in Helsinki in 1996, sufficient exposure to asbestos to cause asbestosis. Professor Fox also expressed the view that the risks of developing lung cancer in association with asbestos exposure were not multiplicative but additive. In respect of that observation it should again be noted that the plaintiff does have evidence of asbestosis and for the purposes of this case at least, it is accepted by the defendants that cigarette smoking and asbestos act in synergy so that the risk is indeed multiplicative rather than additive. On the basis that the risk was additive rather than multiplicative Professor Fox expressed the view that his exposure to asbestos created a risk equivalent to the consumption of four to six cigarettes per day, that is about 10 per cent of the risk generated by the plaintiff’s smoking.

12. The defendants have been content to argue that the plaintiff is entitled to only 35 per cent of the damages which would otherwise be assessed to compensate him for all the effects of his bronchogenic carcinoma.

13. This is the first time that such an argument has been advanced in the Tribunal and its approach always has been that where an injury such as lung cancer or mesothelioma is one and indivisible, as is conceded here, then any tortfeasor who made a material contribution to the injury is liable to pay compensation for the whole.

14. This approach has been based on the decision of the House of Lords in Bonnington and Castings v Wardlaw [1956] AC 613 and Dingle v Associated Newspapers Ltd [1961] 2QB 171. In Bonnington at 621 Lord Reid said:

I am in agreement with much of the Lord President’s opinion in this case, but I cannot agree that the question is: which was the most probable source of the respondent’s disease, the dust from the pneumatic hammers or the dust from the swing grinders? It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within the exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.

15. It is accepted by the defendants, as has been noted, that exposure to its products and inhalation by the plaintiff made a material contribution to his carcinoma and it is accepted by the plaintiff and the defendants that his smoking also made a material contribution to his carcinoma.

16. In Dingle Devlin LJ said at 188:

Where an injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it.

17. In his text on the Law of Torts Professor Fleming wrote at p 229 of the 9th edition:

Usually the interaction of several, though independent, wrongful acts produces a single indivisible result. They may have been simultaneous, as when two cars collide injuring a passenger; or successive as where one car is dangerously parked and another piles into it. The resulting harm (to which both contributed) being indivisible, each will be answerable for all the damage (in solidum), though the plaintiff is of course not entitled to more than a single satisfaction of his claim.

18. The defendants say I should depart from the approach heretofore taken by the Tribunal on assessing damages for lung disease in such circumstances as here existing.

19. Relying on a number of cases, to some of which I shall now refer, the defendants say that they are not liable to compensate the plaintiff for the whole of his damage.

20. Savini v Australian Terrazo and Concrete Co Pty Ltd [1959] VR 811 was a case in which a plaintiff was injured and spent a period of time in hospital and was absent from work for a period of 25 weeks. During his time in hospital he underwent surgery and had his appendix removed. The trial judge directed the jury that the hospital expenses and loss of wages to be awarded to the plaintiff should be reduced by reason of the appendix operation. On appeal it was held that no reduction should be made in expenses and loss of wages by reason of the appendix operation.

21. At p 821 of the report Sholl J, after referring to a number of cases said:

In cases such as those so far discussed, the loss is ultimately shown to be distributable between two actual causes - first, the defendant’s tortious conduct, and secondly, an act of God or other event for which the defendant is not responsible. Damage flowing from two sources has joined, so to speak, to form one stream, but if it is found still to be possible to measure the respective volumes of the components the law will take notice of the measurement and treat them as distinct. Otherwise, it will not; for it does not lie in the mouth of the defendant to say that, although he originated one stream of damage, its inseverable admixture with another means that none can be traced back to him. The law has so held as a matter of social policy, though it is perhaps not easy to fit the relevant principles into the framework of accepted doctrines as to presumptions and burdens of proof.

22. It should be noted that the application of the first principle referred to by Scholl J is confined to cases where it is possible to measure the respective volumes of the components and this, as I view it, is another way of saying where it is possible to isolate the causal contributions made by separate events. It could apply to a case where one event was tortious and another non tortious and unrelated. It should also be noted that the plaintiff’s injury in Savini was not one and indivisible.

23. The defendants submit that the plaintiff’s own contribution to the harm suffered by him may be relied upon by them, notwithstanding their breach of duty, even though that contribution does not arise in the context of the breach of duty itself. This submission is based upon the joint judgment of Handley and Beazley JJA in Commonwealth of Australia v McLean (1977) 41 NSWLR 389. Under the heading “Contributory Negligence Available in Law” their Honours quoted the terms of s 10(1) of the Law Reform (Miscellaneous Provisions) Act 1965. That section was replaced by an amendment in 2000 and is now s 9 of the same Act. It provides:

9 (1) If a person ( ` the “claimant” ) suffers damage as the result partly of the claimant’s failure to take reasonable care ( “contributory negligence” ) and partly of the wrong of any other person:
(a) The claim in respect of the damage is not defeated by reason of the contributory negligence of the claim; and

(b) The damages recoverable in respect of the wrong are to be reduced to such extent as a Court thinks just and equitable having regard to the claimant’s share in responsibility for the damage.

is defined in s 8 and means an Act or omission that:

(a) gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law; or

(b) ...

24. The defendants submit that that section authorises a reduction in damages for other than contributory negligence. At 398 in McLean Handley and Beazley JJA said:

Where a clear line can be drawn, the plaintiff’s intervening negligence breaks the chain of causation between the original wrong and later damage. ... In other cases the subsequent negligence of the plaintiff may aggravate the damage caused by the original injury without interrupting the chain of causation. Such a case falls within the literal meaning of s 10(1) [now s 9(1)], and no reason appears for giving the words a narrower meaning.

25. The view that apportionment is available in cases such as the present is said to be supported by CARSLHOLM (Owners) v CALLIOPE (Owners), THE CALLIOPE [1970] P 172 at 184 where Brandon J said:

The view which I have formed … is that it is open to the court, as a matter of law in a case like the present, to find that the alleged consequential damage was caused partly by the original casualty, and partly by the claimant’s own intervening negligence, and to make a further or sub apportionment of liability accordingly.

26. As it seems to me, what their Honours and his Lordship were saying was that contributory negligence may arise in either of two ways; firstly, when a plaintiff does something which contributes to the event which causes damage, and secondly, when a plaintiff subsequent to the event does or fails to do something which adds to the damage. I do not see that s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 or the observations of their Honours and his Lordship which I have quoted, give support to the proposition for which the defendants contend. Those observations were confined to considerations of contributory negligence. It should again be noted that in this case the defendants do not rely upon a defence of contributory negligence.

27. Wilson v Peisley [1976] 50 ALJR 207, was a case in which a plaintiff was injured in a motor vehicle accident. She had a pre-existing but latent psychosomatic disorder which manifested itself after she was injured in a motor vehicle accident caused by the negligence of the defendant. The Chief Justice, Sir Garfied Barwick said at 209:

Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellant’s negligence intervened. The judge included this possibility in the vicissitudes of life which he was bound to bring to account in connexion with the assessment of economic loss. In my opinion, he was not in error in so doing.
And at 210 he said:
In a case such as the present, the claim of the defendant to a just consideration of the likely results of that pre-existing condition, as reducing to its proper proportion the damages he should pay for what he has caused, is an important element in assessment. It was for the judge to decide what were the chances of the respondent’s pre-existing condition having brought her psychological harm in the future in the ordinary pursuit of her life, and at what level those chances should be evaluated in making an award against the appellant ... I cannot accept that it would be unreasonable for the judge, in estimating the damages which the defendant should pay, to refuse to treat her as if she was [sic] unimpaired psychologically or to refuse to regard the impairment she undoubtedly had as only of trifling financial consequence in the estimation of damages.

28. Relying on the second of the passages quoted the defendant says it is entitled to have the damages reduced according to the contribution to his injury made by the plaintiff’s smoking. In respect of what was said in Peisley two things might be observed. The first is that here the plaintiff did not have a pre-existing condition. His carcinoma was diagnosed on 17 September 2001. He did not have carcinoma before or at the time of his exposure to asbestos. Secondly, the assessment of damages made by the trial judge in Peisley was affected by his taking into account the latent psychosomatic disorder. This is apparent from what the Chief Justice said in the first passage quoted when he referred to the possibility of the condition being evoked in the ordinary course of life being included in the vicissitudes of life.

29. Mr Little, SC also referred me to the decision of the House of Lords in Jobling v Associated Dairies Ltd 1982 AC at 794. That was a case in which a plaintiff was injured in the course of his employment. The injury left him with continuing and disabling back pain in respect of which he claimed damages. Following the injury but before trial he was found to be suffering from an unrelated condition of myelopathy, which was in no way connected with the event which caused injury to his back. The probability was that that condition would have totally incapacitated him after the expiration of about three years from the time he was injured and without injury. In assessing damages the trial judge did not consider the disability caused by myelopathy. The Court of Appeal held that damages were to be reduced to the extent that the further disability was the cause of the plaintiff’s loss and that decision was affirmed by the House of Lords on appeal. Without quoting any part of the speeches delivered it is sufficient to note that, unlike the present case, there was a distinct and separate and supervening cause of the plaintiff’s disability. In this case it is impossible to distinguish between the causal contribution made by asbestos exposure and the causal contribution made by smoking. At best what has been done is that a distinction has been drawn between the risk of developing carcinoma as a result of each of asbestos exposure and cigarette smoking, but increase in risk does not equate to cause: see Bendix Mintax Pty Ltd v Barnes (1992) 42 NSWLR 307 and Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262.

30. The defendants have failed to persuade me that I should depart from the Tribunal’s long standing approach, that is where an injury is one and indivisible any person who makes a material contribution to that injury is liable to compensate for the whole.

Damages

31. I turn now to an assessment of damages. In this task I have been much assisted by agreements which have been reached between senior counsel for each party. The only areas in respect of which agreement has not been reached are an amount appropriate for general damages and an amount for loss of expectation of life. On the first of these the plaintiff submits a sum of $170,000 is appropriate and the defendants concede an amount of $120,000 is appropriate. During the course of submissions I indicated to counsel that my view was that a sum of $150,000 was appropriate. This sum takes into account that the plaintiff suffers unrelated health disorders, though not to a degree that have troubled him significantly. He does have some circulatory disability resulting in peripheral disorders and, not surprisingly, he suffers emphysema, no doubt due to smoking.

32. Because of the concession made by Mr Little, SC I can be somewhat briefer than otherwise I may have been in indicating why I am of the view that $150,000 is appropriate. The plaintiff first began to experience breathlessness in 1998. A series of studies was undertaken at a number of hospitals and he underwent aspirations to remove accumulations of fluid. Aspiration is a distinctly painful and uncomfortable procedure. He also underwent thorascopy, another unpleasant and painful procedure. His carcinoma was diagnosed as a consequence of fine needle biopsy, though it was the second of two biopsies which resulted in the diagnosis. His cancer has metastasised and he has metastatic deposits now in his bowel and in his brain. Though lucid when he gave evidence he had been and will remain confined to a wheelchair. It seems that his inability to mobilise is a result of metastatic damage in his brain. He has become incontinent of urine and faeces and has experienced embarrassment and unpleasant situations as a consequence. It is likely that with the progression of his disease he will suffer pain and discomfort at an increased level. He described the pain that he suffered in April 2002 when admitted to hospital as a result of a bowel obstruction caused by metastasis as terrible and shocking.

33. Taking into account the pain and suffering he has endured and the increasing intensity of that pain, but considering also unrelated conditions, I think the sum appropriate to compensate him by way of general damages is $150,000.

34. The plaintiff is, as noted, presently 78 years old. According to the Australian Life Tables an Australian male of 78 years has a life expectancy of 8.46 years. It is impossible to determine how long the plaintiff would have lived had he not developed cancer, as it is impossible to determine whether he would have developed cancer if he had not smoked or had not been exposed to asbestos. He has already exceeded the mean life expectancy for Australian males. The plaintiff submitted that an amount appropriate to compensate him for loss of expectation of life was $15,000. The defendant submitted an appropriate sum was $5,000. Authority requires that a modest or conventional sum be awarded. I think the sum appropriate is $7,500.

35. The items of special damages have been agreed.

36. The plaintiff is entitled to damages made up as follows:

Past out of pocket expenses are agreed at $4,000.
Future out of pocket expenses are agreed at $42,500.
Past care and assistance are agreed
in respect of the period 10 October 1998
to 29 April 2002 at $14,496.

Interest on past care and assistance is agreed at $2,754.
Care in respect of the period 10 May 2002

when the plaintiff was discharged from hospital
until 30 June 2002 is agreed at $14,331.

Future care is agreed in the sum of $44,884.

I would allocate half of general damages to the past
and on that allow interest in the sum of $1,500.
General damages $150,000.
Loss of expectation of life $7,500.
__________

Thus the plaintiff is entitled to judgment in the sum of $281,965.

37. There will be a verdict for the plaintiff jointly and severally against each defendant and judgment in the sum of $281,965.

38. The defendant should pay the plaintiff’s costs as agreed or assessed.

39. I grant a stay upon condition:

(1) The defendants file a notice of appeal within 28 days.

(2) The defendants apply for expedition of the appeal.

(3) The defendants pay to the plaintiff within 28 days 50 per cent of the damages assessed.

40. I will note the stay does not relate to costs.

Mr J A McIntyre, SC instructed by Alex Stuart and Associates appeared for the plaintiff.

Mr G F Little, SC instructed by Acuiti Legal appeared for the defendants.