Di Giuglio v Shell Refining (Australia) Pty Limited (No. 2)

[2004] NSWDDT 37

Dust Diseases Tribunal

of New South Wales

CITATION:	Di Giuglio v Shell Refining (Australia) Pty Limited & Ors (No. 2) [2004] NSWDDT 37
PARTIES:	Costanza Di Giuglio Shell Refining (Australia) Pty Limited Amaca Pty Limited
MATTER NUMBER(S):	456/03
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	5 - 8/04/04 & 2-3/08/04
DATE OF JUDGMENT:	08/04/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF:Mr A Leslie, QC, instructed by Turner Freeman. FOR FIRST DEFENDANT: Mr T J Morahan instructed by Coleman and Greig FOR SECOND DEFENDANT: Ms W Strathdee instructed by Phillips Fox

JUDGMENT:

1. The plaintiff in these proceedings is Costanza Di Giuglio, the widow of Guido Di Giuglio who died on 6 April 2004. He was the plaintiff. His case was that in the period from May 1962 to about December 1962 he was exposed to the inhalation of asbestos dust and fibre at the Shell Oil Refinery premises occupied and operated by the first defendant, the asbestos products being supplied, it is alleged, by the second defendant. There is little doubt that Mr Di Guiglio contracted mesothelioma from which he died.

2. The parties have been handicapped in the litigation by the passage of time and for the defendants by the absence of records. The attitude of the first defendant when the case commenced was that it was unable to say whether the deceased had ever been at its premises but that if he had been there was no dispute a duty of care was owed to him. As regards the second defendant exposure to asbestos, that being its product, was in issue. As the case unfolded it became clear as a matter of general observation that the deceased man had lived a good life. His family, that is to say his wife and his daughter, gave evidence in the proceedings and by the end of the evidence learned counsel for the first defendant was able to say that he accepted that the deceased had in fact been present at the first defendant's premises as his affidavit suggests he had.

3. The plaintiff's case is that the deceased was employed by an employer named Pen-Insula Pty Limited which employer is not a party to the proceedings. The evidence also discloses that in addition to the period of exposure relied upon the deceased was also exposed to the inhalation of asbestos dust and fibre during 1959 when for a period of eight months he worked for Australian Asbestos Pty Limited at Marrickville. That company is not a party to the proceedings either, no evidence being adduced about it. Having regard to the indivisible nature of the illness from which the deceased suffered I conclude that it was not thought necessary for whatever reason to join Australian Asbestos Pty Limited as a party.

4. The facts of the case are in a relatively narrow compass. The deceased completed an affidavit on 28 January 2004 which became PX1. He was born, he said, on 27 January 1935 in Italy. He went to school until age 12. He married his wife, Costanza, on 25 February 1962. He came to Australia in 1956. He worked in Cairns for a time on the sugar cane. He worked for a firm in Sydney excavating trenches for sewerage pipes and he kept doing that work until 1959 when he went to work with Australian Asbestos Pty Limited. Then in about 1959 he obtained a job with Civil and Civic as a labourer. In mid-1961 he went back to Italy for a year and during his sojourn in his home country he married Costanza.

5. He returned to Australia in May 1962. It was then that he said he started working for Pen-Insula Pty Limited as a lagger. He said that while working for them he worked at the Shell Oil Refinery at Clyde where he worked for about eight months. It was the only job that he did, he said, whilst employed by that company. The nature of his duties is set out at par 14 to 24 of his affidavit. I do not believe there is any need to recount it in detail. It was the work of a person putting insulation around various pipes in the first defendant's premises. He identified the material as being identical to materials illustrated in a brochure which was the second defendant's brochure. There is some evidence to which I need to make reference later arising from his cross-examination in that regard but that is the way his case was presented.

6. He had to also remove and replace old insulation. At par 23 he said he spent about 50 per cent of his time installing new insulation and 50 per cent of his time removing and replacing old insulation. Further he said he spent about 90 per cent of his time at work working on the pipes, installing and removing insulation and 10 per cent of his time working inside tanks. At par 25 Mr Di Giulio said that he was not provided with a mask, nor was he provided with any protective equipment when he was working inside. He said there was no mechanical ventilation or air extraction where he worked. He was never told about the dangers of asbestos. He said if he had known that asbestos was dangerous he would not have continued working at Shell.

7. After the period of employment which I have described he set off on other employment doing formwork and he worked as a carpenter formworker. In 1970 he started his own formwork company. In 1979 his brother with whom he had been in partnership left the partnership and the deceased continued to trade until 1989. He then closed his business and commenced working at Parramatta City Council as a labourer. He then quickly became a truck driver and he retired from work on 13 September 1996. There is no reason not to accept the broad account of the deceased’s employment history. It has been given not only in his affidavit but to several people in the course of the case who found it necessary to record a history and it is all consistent. Furthermore, as I say, he conducted his life as a good person so that there is no need to suspect a fabrication of events involving the defendants.

8. The first defendant in answer to the claim submitted that whatever duties may have existed, those pleaded and relied upon were duties not to be undertaken by it the first defendant but rather by the deceased’s employer. Hence it was submitted that no case had been made out against the first defendant and the plaintiff should fail against it. It seems to me that the submissions made by Mr Leslie QC in answer to that approach are to be preferred. I conclude conformably with what was said by the majority in the High Court in Burnie Port Authority v General Jones Pty Limited (1992 – 1994) 179 CLR 520 that in a circumstance in which the plaintiff as a worker was engaged in the repair and maintenance of the first defendant's factory premises that a duty arose obliging the first defendant to ensure that reasonable care was taken in connection with the work being done by the men on its premises. As the High Court said in Burnie Port Authority at page 550:

Put differently the requirement of reasonable care in those categories of case extends to seeing that care is taken.

9. The plaintiff's evidence which I have recounted is that no care was taken at all. There is little doubt that the mesothelioma which killed him resulted from exposure to asbestos. There is evidence, not least from Professor Henderson, to say that the exposure at the first defendant's premises was sufficient to cause the condition. There has been no issue in the case about foreseeability and preventability. I conclude that as regards the first defendant the plaintiff is entitled to a verdict.

10. As regards the second defendant it is necessary to place alongside the evidence in the affidavit things said by the deceased when he gave evidence at his home on 5 April 2004. He was shown by learned counsel for the second defendant brochures headed "Bestobell 85 per cent magnesia". The thrust of what then happened was that the deceased agreed that the things shown in the brochure were what he had used in the course of his work at the first defendant's premises. I think there are some problems about taking that evidence at face value. They include these: firstly, an examination of the transcript will show that the plaintiff was far from composed throughout the giving of his evidence; secondly, his English is described as poor, for example by Dr Parsons in PX8 who had trouble obtaining a history from him, thirdly, he was on and had been for some time a morphine medication which was described by Dr Gianoutsos in PX9, at page 5“……… a very high dose of 80 milligrams daily of a morphine substance for his unrelenting pain”.

11. The real sting of the cross-examination was to suggest obliquely that what was shown in the pictures was what he had used and that it was nothing to do with Hardies. I intend no criticism of counsel about any of this, the plaintiff's condition made cross-examination difficult but at no stage was the real sting of the cross-examination made apparent to him. The pictures from the Bestobell brochure may well have shown materials just like the ones he worked with but he had no real chance, it seems to me, to deal with the underlying and important proposition that the material was not Hardies, it was a competing company's. I conclude therefore that although the material is available to be called in aid by the second defendant in the circumstances prevailing at the time the evidence was given, I do not think much store should be placed on it.

12. As to whether or not it was the second defendant's products which were being used in the refinery the plaintiff has produced in her case inter alia PX17, a Hardies brochure at the third page of which firstly it claims itself to be the sole manufacturer of Hardies 85 per cent magnesia. Interestingly enough a distributor in 1950 for the product was Australian Asbestos Pty Limited from Marrickville. Further, the brochure illustrates the extent to which the Hardies products had been used at the Shell refinery at Clyde. There are repeated illustrations of part of the first defendant's premises there and descriptions of vast quantities of the second defendant's products having been used in the first defendant's premises.

13. It is submitted that whatever may have been the position on 1 April 1950, a date which appears on the third page of the brochure, the plaintiff was doing his work in 1962, hence no conclusion ought be reached to the effect that it was the second defendant's products then being used. Two answers are made to that. The first of them is that half the time the plaintiff spent removing old asbestos which one would conclude was almost certainly the product of the second defendant having regard to the assertions set out in its brochure. Secondly, the location of the properties respectively, that is the Hardies property at Camellia on the one hand and the Shell refinery at Clyde on the other, meant that they were very close to each other, perhaps a couple of miles apart. One may examine a street directory to confirm that this is so.

14. It was submitted in connection with this aspect of the case that the materials being used might just as easily have been materials imported by Bestobell in connection with other aspects of its operations. That is certainly possible. Applying what I hope is ordinary common sense, if the factory had been decked out with the second defendant's product to the massive degree displayed in the exhibit PX17 and ongoing maintenance work was needed for the lagging of pipes, the product was available from a couple of miles up the road, it seems to me to be more probable than not that that is what happened. Be that as it may, when one couples those facts with the assertion of the plaintiff contained in his affidavit then on balance it seems to me more probable than not that in fact it was Hardies material that was being used at the Shell refinery, that is, the new material being applied as at 1962.

15. Other brochures have been tendered and arguments have been developed about them. A submission was made that in Bestobell's brochure when Hardies products are being identified an attribution to that effect is given. That may be so, but I do not think it cuts across what I have said. I conclude that the plaintiff is entitled to succeed against the second defendant as well.

16. As regards the assessment of damages competing views were put forward as to the seriousness of the suffering of the deceased. No one sought to diminish the horrible nature of his illness. What was argued by the defendants was that for him mercifully the length of suffering was not as great as it is for some others and hence the damages should be moderated. It is necessary, I think, to look at some of the medical material briefly to get the true picture. It may be observed that the deceased suffered from not only pleural mesothelioma but peritoneal mesothelioma. Perhaps I should go to the medical material and not try to paraphrase it.

17. PX8 is a report from Dr Parsons, consultant physician, who attended on the deceased. The first matter to be noted is that the patient's initial presentation was complicated by the presence of a partial ileus, an abdominal blockage. He had a pleural effusion on the right side. He had a closed pleural biopsy. He underwent pleural aspiration with a needle which was performed on 6 September 2003. A further biopsy was then to be undertaken. The deceased was readmitted to hospital, in the period from 24 September 2003 to 26 October 2003 thoracoscopic pleural biopsy and talc pleuradesis were undertaken.

18. His condition was complicated by a massive haematomesis, vomiting up of blood, on the fourth day post-operative. Mr Di Giulio then underwent an emergency gastroscopy and laparotomy and a tube was inserted to control the bleeding. He was intubated with mechanical ventilation from 28 September to 12 October. The reversal of the tracheostomy which had been necessary was not undertaken until 17 October. He had two subsequent gastroscopies on 3 October and 9 October. On the latter date the laparotomy wound was revised. The gastric complications were treated surgically by Dr Florica whose report is PX10 in the proceedings.

19. His report touches on a matter which was the subject of a submission. That was that the deceased had had a past history of peptic ulcer disease which had been treated with a partial gastrectomy. It was submitted that that was probably the explanation for the massive abdominal episode which occurred and for which Dr Florica was called in. I think the answer to the submission appears from the report. During the course of the surgery, the doctor said:

A large amount of clots was removed from within the lumen. The source of bleeding was identified as the gastro-oesophageal junction which appeared fixed, rigid and narrow, suggestive of malignancy. After the bleeding was controlled on examination of the rest of the abdomen multiple tumour deposits were identified throughout the peritoneal cavity. These involved the liver, spleen, large and small bowel. A biopsy taken from such a lesion confirmed the diagnosis of malignant mesothelioma.

20. In the light of that material it seems to me more probable than not that the bleed was the result of the peritoneal mesothelioma as the doctor indicated. The point of recounting the details is that what the deceased went through was not simply lying around at home and suffering. He suffered greatly. Having regard to the facts affecting him it seems to me that the submissions about moderating the damages on account of the shortened period of suffering do not carry much weight. I think the deceased’s suffering was marked. It commenced somewhere around May/June 2003 when symptoms began to trouble him and ended with his death the day after he gave evidence.

21. The view that I have come to is that the figure submitted by learned counsel for the plaintiff about general damages is appropriate and that the correct figure for general damages is $185,000. Interest on the past, it is submitted, might properly be allowed at $3,700. That submission attracted no adverse comment. As regards loss of expectation of life, the plaintiff was 69. One submission made about this aspect of the claim was that he had been a smoker which would have had an effect on his longevity in any event. The reply to that comes, it is submitted, from the report of Dr Breslin who would allow the plaintiff 10 or 15 years more life but for his illness. Further it was submitted that pursuant to the oft quoted authority of Purkess v Crittenden (1965) 114 CLR 164, if the defendant wanted to allege such things the defendant bore the burden of proof in respect of them. This head of damages is conventionally modest. It seems to me that in this case the proper figure is $12,500.

22. So far as past care is concerned there is evidence from an occupational therapist, Mrs Heather Tchan. It is the only evidence. She was not required for cross-examination. Further, in this case the events affecting the plaintiff have all taken place so far as care is concerned. We are not, required as we have to in some cases, to guess about the future. Having regard to the lack of dispute about the evidence when it was introduced and the fact that it is the only evidence, I do not see that the Tribunal is required to trouble itself by analysing with a fine tooth comb the various computations contained within it. There are, however, three matters which I think need to be addressed and I wish to do that now.

23. Mrs Tchan's report is PX7. Her calculations commence on 1 May 2003. The evidence as to the commencement of symptoms is variable. In the deceased’s affidavit they commence in early June. In the history obtained by Mrs Tchan they commence some time in May. Dr Gianoutsos records a history of symptoms commencing some time in May. It is not possible to be precise about the exact date of onset of symptoms. I think it is making too generous an allowance to allow the whole of May as being part of the period during which care had be provided. I think two weeks should come off the first period dealt with by Mrs Tchan. So that approximately $1,100 should be deducted from her starting figure of $61,003.

24. The second obvious deduction which needs to be made is that the figures continue on until 31 April 2004. I seem to remember a jingle from my childhood that suggested that April has only 30 days. That is not the problem. The deceased died, of course, on 6 April so that approximately three weeks needs to come off at that end of the computation, which would require a reduction of about $8,200 there.

25. The other matter about which submissions were made which I think were valid was the built-in provision for sleepovers. Having regard to the evidence in the case it seems to me that that was an allowance that was overly generous. The other area of deduction, I think, is one that we deal with from time to time in the Tribunal and it relates to the period of a month or so during which the plaintiff was hospitalised. It was submitted that notwithstanding the hospitalisation the family did many things which supplemented the necessary care. To the extent that one can find a principle it seems to me to be contained in Nicholson v Nicholson (1994-1995) 35 NSWLR 308 in particular at 323. The president as he then was, Kirby P, said this:

The services performed by the appellant's sister which certainly helped improve his level of comfort could not be classified as fulfilling a relevant need in view of the fact the appellant was already enjoying full-time hospitalisation. Although it may not be realistic to expect the nursing staff at all time to apply the creams to the appellant the respondent already bears the burden of providing compensation for the costs of hospitalisation. I do not believe that it should be required to compensate the appellant's sister as well for the minor activities.

26. The activities of Mr Di Giulio's family were not minor but I think the principle set out in that passage has application. Bearing in mind all of those matters it seems to me that the amount for care that ought be allowed is one of $50,000. Interest thereon from mid-May to 6 April at 5 per cent I calculate to amount to $2,290. Interest thereon from 7 April to 2 August 2004 approximately three months at 10 per cent I calculate to amount to $1,250.

27. There will be verdict for the plaintiff against each defendant for $254,740 plus costs. Defendants are to pay plaintiff's costs.

Mr A Leslie QC instructed by Turner Freeman appeared for the plaintiff

Mr T J Morahan instructed by Coleman and Greig appeared for the first defendant

Ms W Strathdee instructed by Phillips Fox appeared for the second defendant