Diercke v Onesteel Wire Proprietary Limited

[2005] NSWDDT 20

Dust Diseases Tribunal

of New South Wales

CITATION:	Diercke v Onesteel Wire Proprietary Limited [2005] NSWDDT 20
PARTIES:	Michael Diercke Onesteel Wire Proprietary Limited
MATTER NUMBER(S):	DDT58 of 2005
JUDGMENT OF:	Duck J
CATCHWORDS:	Damages :- Exposure to asbestos dust factual issue Verdict for the defendant
DATES OF HEARING:	7, 8, 9 June 2005
DATE OF JUDGMENT:	06/20/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr A Leslie QC Turner Freeman FOR DEFENDANT: Ms L McFee Rankin and Nathan

JUDGMENT:

12

1. The plaintiff has brought proceedings seeking damages from the defendant his former employer. He pleads that between 31 May 1979 and 4 March 1980 he was employed by a predecessor of the present defendant to work at a wire works in Port Waratah near Newcastle. He pleads that in the course of his employment he was required to handle materials containing asbestos and further that he worked in the vicinity of workers who handled materials containing asbestos. As a consequence, he was exposed to and inhaled asbestos dust and fibre.

2. The defendant disputes that he was so exposed.

3. It is common ground that the plaintiff suffers from peritoneal mesothelioma.

4. If the plaintiff succeeds the parties have agreed that damages should be assessed as follows:

General damages $185,000

Loss of expectation of Life $ 20,000

Past and Future Care $ 15,000

Total $220,000

5. The plaintiff’s first account of his exposure was contained in his affidavit of 3 March 2005 PX1. At paragraph nine he said:

“I worked there for two years. I assisted workers to make all types of wiring and cabling including barbed wire, fencing wire and steel fabrication wiring. The factory at Waratah was very big. It was about the size of a football field. At any one time, it had about 1,000 workers inside the factory. All workers did a 3 shift rotation, morning, afternoon and night. Throughout the factory there was insulated ducting and piping.

10 . For about 6 months I did overtime work as an assistant maintenance worker on Saturdays and sometimes Sundays. The overtime work involved assisting tradesman carry out maintenance work on thermal insulation materials throughout the factory. I worked every second weekend, eight hours per shift and on occasion double shifts. I constantly assisted the tradesman remove old insulation from pipes and replaced it with new insulation material. I worked in a group of 3. I worked on pipes of various diameters. The insulation removed was old and crumbled when I handled it and it turned into a white powder. When I handled old insulation dust got onto my body and my clothes. I used a broom, dustpan and industrial vacuum cleaner to clean up the old insulation dust. I had no mask or protective clothing.………… In my near vicinity there were other groups of workers that carried out the same work that I did. The insulation work caused airborne dust. The dust covered my body and clothes. I could smell and taste the dust. I did this work consistently over this time.”

6. It may be said fairly that this account is simple enough and if true a cogent account of exposure to asbestos dust and fibre.

7. A second affidavit sworn on 15 March 2005 was relied on in the proceedings. It is PX2. The period of employment was amended so that in the second affidavit the following appears in paragraph 11: “………I worked at Waratah from 31 May 1979 until 4 March 1980. I assisted other workers to make all types of wiring and cabling including barb and fencing wiring and steel fabrication wiring. ……………”

8. Paragraph 12 of the second affidavit repeats the allegations of exposure set out in the first affidavit. There were however some variations. Relevantly they seem to be these: in the second affidavit the plaintiff asserted that he did the work he described on weekdays, Saturdays and sometimes on Sundays. In the second affidavit the plaintiff also asserted that he was assisting tradesman “……carry out maintenance work to insulate piping throughout the factory.”

9. The second affidavit omitted the allegation that the plaintiff could smell and taste the dust.

10. There are, however, problems with this account of things.

11. After the plaintiff had completed his second affidavit he was shown statements obtained by the defendant from Mr D G Newbold dated 22/3/05 and Mr J R Strickland dated 21/3/05 and 12/5/05. Mr Newbold commenced working at the defendant’s premises on 4 January 1965. Between 1974 and 1982 he was employed there as the project engineer responsible for all the major special maintenance projects including those involving minor capital expansion and expenditure. (See DX1 paragraph 6). Mr Strickland commenced working at the defendant’s premises on 3 February 1969. In 1977 he took up the position of Service Shop General Foreman in charge of some 30 employees including sheet metal workers, plumbers, motor mechanics and riggers. He held that position until 1982 when he became the Engineering Spares Controller (see his statement 21/3/05 DX3 paragraph 4).

12. It became clear during the proceedings that the plaintiff was employed as a production worker on a wire drawing machine. That was associated with some cleaning duties. The maintenance workers were workers with a different classification. The plaintiff was never a maintenance worker. He admitted as much. (T5 line 16 – 18).

13. The plaintiff insisted however although not so classified he did the work of a maintenance worker helping tradesman. See for example T3 lines 42 – 43. He said there “well a tradesman – as a I would assume the tradesman would do a job somewhere and I would be allocated the duty of going and cleaning up the mess afterwards.” The evidence however, makes it clear the tradesmen had trades assistants whose job it was to clean up after them (See Mr Newbold: T28 L8-9; T28 L45-49; T29 L8-14). Further, members of different trades belonged to different unions. If a worker not of the appropriate trade attempted to do the work which should have been done by a union member a demarcation dispute would erupt. (See Mr Newbold’s evidence T29 ll1-22 See too paragraph 22 of Mr Newbold’s statement dated 22/3/05 PX1 also paragraph 27). (See also Mr Strickland’s statement 21/3/05 DX3 para 25.)

14. Further, production was organised in shifts over five or six days. On some days maintenance work was done. It was very rare that production work was undertaken on Sundays. (DX1 para 27). When this matter which on all of the evidence seems to be incontrovertible, was put to the plaintiff he said simply “What I actually saw was that I was working there” T4 ll29-30.

15. There was another problem about the plaintiff’s account. Each of his first two affidavits paints a picture of a factory with many pipes running through the factory with old insulation on them in respect of which he “constantly assisted” the tradesman removing the insulation. The evidence of Mr Newbold and Mr Strickland makes it plain that this broad picture is incorrect. In 1972 old boilers which had been present in the factory were removed. A new steam line was introduced from the BHP factory next door which carried steam to various parts of the defendant’s premises including the heavy mill in which the plaintiff did most of his work. It was there apparently fed into an existing steam line. That main line was five or six metres above the floor fastened to upright pillars. It was insulated and the insulation was covered with metal cladding. In the vicinity of machines which needed steam, such as the galvanising machines of which there were two when the plaintiff was working there, a dropper would pass from the main steam line down the inside of an RSJ to each of two galvanising machines. One of the machines had the pipe passing under the floor and then up into the machine. The second galvanising machine had piping with some insulating material attached to it in areas where the men might need protection. As will later appear that insulating material was not, certainly by the time the plaintiff was working there, asbestos material. The present point of these observations is that the picture painted by the plaintiff about a multitude of pipes requiring constant maintenance by plumbers whom he assisted is an incorrect picture.

16. As to the layout of pipes generally see Mr Newbold’s statement 22/3/05 (DX1) paras 9-16; Mr Strickland’s statement 21/3/05 DX3 paras 7-21. As to the absence of need for frequent maintenance of lagging see DX1 paras 9; 17; 28. DX3 paras 28; 44; 45.

17. The assertion contained in paragraph nine of the first affidavit and repeated in paragraph 11 of the second affidavit that the plaintiff assisted workers to make all types of wiring including barbed wire seems unlikely to be correct. He may have been taken to the barbed wire plant as part of his initiation but to suggest that he assisted workers making that product seems to me to be improbable. Firstly the plaintiff spent most of his time in the heavy mill. The barbed wire plant was 600 metres south of it in another building (see Mr Newbold’s statement DX1 paragraph 41b; see Mr Strickland’s statement DX3 paragraph 43.) Further each of the wire pulling machines required different skills. (See Mr Newbold’s statement paragraph 41b). It might take four to six months to learn a machine (Mr Newbold paragraph 32; Mr Strickland’s first statement paragraph 39). The plaintiff was there only for nine months.

18. Another matter deserving of comment is the claim by the plaintiff that he frequently worked overtime. During the period of his traineeship it was uncommon for a learner to be offered overtime as a production worker: see DX1 paragraph 34; Mr Strickland’s first statement paragraph 40. As to this issue it emerges from the annexure to the plaintiff’s third affidavit to which I am yet to come that on 20 August 1979 an entry was made on his personnel records because he had objected to being used as a labourer/sweeper and had refused duty. It appeared thereafter he was trained as wire drawer. At the end of the year or early in 1980 the plaintiff arranged to go onto the day shift as a cleaner in the production section because he had enrolled as a student rigger at a local technical college. The lectures were at night. Working on the day shift permitted him to attend them. This arrangement came to an end on 4 March 1980 when the plaintiff resigned his employment. The point of these observations is it would have been for a very restricted period that the plaintiff was likely to be offered overtime work as production worker ie only during the period between sometime after 20 August 1979 and the end of that year.

19. The plaintiff swore a third affidavit on 2 May 2005. He had by then seen the statements provided by Messrs Newbold and Strickland. It is not easy to reconcile what appears in the third affidavit with what appeared in the first two. It appears from this affidavit that the plaintiff became a cleaner on the day shift in the production section at the commencement of 1980 so that he could attend technical courses at night to train as a rigger. Those cleaning duties were carried out over January and February 1980 and up to the 4 March 1980 when his employment ended. The plaintiff speaks (see paragraph 14) of cleaning duties in the heavy mill. He asserts that he cleaned up thermal insulation materials around the galvanising plant in the heavy mill (see paragraph 15.) In the same paragraph he said “I saw workers stripping insulation material off pipes at floor level and replacing it with insulation rope.”

20. This is a description of exposure different from that set out in the first two affidavits. Further although it perhaps seeks to do so by implication nowhere in the third affidavit does the plaintiff say that he was exposed to asbestos products.

21. We come then to the plaintiff’s evidence in the proceedings.

The plaintiff’s evidence was given by the tendering of his affidavits. He was then cross examined.

22. At the outset I wish to say it was difficult to keep up with the variations in alleged exposures upon which he relied.

23. At various times he maintained the following propositions:

His weekend assistant maintenance work was a continuation of what he did during the week (T4.24).
He did not actually apply any new insulating material (T4.34). He was occasionally present when that work was done but he wasn’t actually applying the insulation “on my own” (T4 ll 38-39).
He assisted others who were applying asbestos half section pipes in which work he used asbestos rope (T4 ll40-41).
The main aspect of his work doing maintenance work and assisting the carpenter and the rigger would have been done in the last part of his employment, so early 1980 (T5 ll21-22).
The majority of the work assisting tradesmen was done in the latter part of his employment (T6 ll 44-46).
It was during the last six weeks or two months of his time with the defendant that he spent most of his time assisting tradesmen (T7 ll 7-8).
There was ducting with pre-formed insulation on it which he helped to remove in the barbed wire section, the fencing wiring section and the steel fabrication wiring sections (T7 ll 22-24).
The barbed wire plant was under the same roof as the heavy mill department (T7 ll29-30).
It was mainly around the galvanising plant that he observed insulated ducting and piping (T8 ll9-10).
He worked in the departments that produced barbed and fencing wire at the time of orientation and sometimes on Sundays that was the overtime thing (T8 ll15-18).
He was unable to say how many times per week he performed assistant maintenance work (T8 l 32).
He did not know what the stuff was he was cleaning up but he definitely cleaned up stuff during the week (T9 ll 13-14).
He could not recall the number of times he worked on Sundays assisting tradesmen doing maintenance (T11 ll 10-13); or how frequently there were tradesmen removing insulation and replacing it in his presence. He said “on occasions, that is the best I can come up with there.” (T12 ll 12).
He was unable to say what the pipes carried that had the insulation around them (T13 ll 3-10).

24. The list set out above is not intended to comprehensive be but rather illustrative of the problem faced by the court in coming to grips with the plaintiffs evidence.

25. The evidence overall was unconvincing.

26. In the plaintiff’s affidavit of 15 March 2005 PX2 at paragraph 24 he stated that he was granted a disability pension on 27 March 2000. He was then 43 years old. During the course of the hearing I indicated to the parties that I was curious about that evidence if anyone wanted to ask about it. Evidence was then adduced that the reason the plaintiff went onto the pension was because of alcoholism. Before that he suffered addiction to drugs including at different times, heroin and cannabis.

27. These matters may have affected the plaintiff’s recall or ability to give evidence.

28. Where the evidence of the plaintiff conflicts with the evidence of Mr Newbold or Mr Strickland I prefer the evidence of Messrs Newbold and Strickland. Their evidence was, firstly, inherently credible. Secondly it was evidence describing a state of affairs with which they were familiar because of years of work in the defendant’s premises. Thirdly their evidence was not directed in any way towards the conduct of the plaintiff. It was critical of his alleged exposure because what he said did not tally with their experience. Fourthly their credit was not adversely affected by cross examination.

29. Each of Mr Newbold and Mr Strickland was aware of the properties of asbestos at least by the mid 1970’s see DX1 para 37 and DX3 para 31. In Mr Strickland’s case it was the later part of 1973.

30. Further I accept that from the mid 1970’s the safety of workers from any asbestos materials was a demarcation issue and that steps were taken to ensure that no asbestos materials were used in the plant (DX3 para 31).

31. I accept that from the mid 1970’s no asbestos material was introduced to the plant and steps were being instigated to remove any exposed sections of asbestos material which might present as a danger to the workforce (DX3 para 31).

32. I note in this regard the evidence of Mr Strickland T52 commencing L24 to the effect in 1974 the plant had a magistrate call to examine the workplace and direct workers as to whether what was proposed about the use of new insulation material Rockwool was safe practice or not. Mr Strickland said at L30-31: “That’s the interest our plant had in avoiding asbestos”.

33. In addition in this regard, I note the evidence of Mr Strickland about some lagging on piping in the vicinity of one of the galvanising machines. It was put to him that such insulation was effected by lagging with asbestos rope. He denied it (T42 l21). He was asked what it was and his answer was “it was a non asbestos asbestos, we referred to it as”.

34. See too in this regard para 21 DX 3: “……… The section of pipe from the valve to the nozzle was wrapped with a fibrous insulation rope which was installed more for personal safety than to retain heat. Until the mid 1970’s that insulation rope may have been an asbestos product, however no asbestos would have been used after that time.”

35. See too Mr Strickland’s evidence at T50 commencing at l3. See also in this regard Mr Strickland’s second statement dated 12 May 2005 part of DX3 at para 10.

36. The plaintiff’s affidavit of 15 March 2005 PX 2 discloses two alternative sources of exposure to asbestos:

i In the period 1973 to January 1974 he worked at a copra and cocoa plantation in Papua New Guinea. On two occasions he assisted with maintenance work on insulation around ducting which carried hot air used to dry coconut and cocoa. See para 7. About this work the plaintiff deposed: “I spent about one hour each time I did this work. My father said it was asbestos insulation…………”.

ii During the period 1980 to 1985 the plaintiff was employed on a casual basis by Mansley Building Contractors at Katoomba as a builder’s labourer. He took part in demolishing part of a pub at Mt Victoria which had been burnt out. He spent two days removing old fibro materials PX2 (para 17). In the same period he also worked on extensions to houses. He used a power saw to cut compressed sheets for use in bathrooms (see para 18). The paragraph is constructed in such a way that it suggests by implication that the compressed sheets contained asbestos.

37. It was submitted by Mr Leslie QC on the plaintiff’s behalf that the evidence permits the conclusion that he was exposed to the inhalation of asbestos dust and fibre when cleaning up because he had to clean up asbestos rope pads which had been used by galvanising plant operators to wipe excess galvanising off the product.

38. The starting point for the submission was para 22 of Mr Strickland’s statement of 21 March 2005 part of DX 3. The paragraph ends with these words: “I believe that no such asbestos products would have been used, at Rylands, after the mid 1970’s.”

39. Cross examination of Mr Strickland on this topic which appears at T43 and T44 does not remove the qualification appearing in that last sentence.

40. Mr Leslie also submitted that the heavy mill was a dusty place and that it had been for years. It was submitted that it was probable that some of the dust which was stirred up by fans in the building contained residues of asbestos from prior years. That was another way, it was submitted, in which the plaintiff may have been exposed to asbestos in the course of his employment by the defendant.

41. The submission evoked protests from Counsel for the defendant. She submitted:

1. Such matter had never been pleaded or particularised.

2. There was no evidence to support the submission.

42. I accept that there is simply no evidence which permits the conclusion propounded to be drawn.

43. For the reasons given then I do not accept the plaintiff’s account of his exposure to asbestos in the employment of the defendant. Further I do accept the evidence of Messrs Newbold and Strickland about the steps taken to get rid of asbestos from the employment premises from the mid 1970’s.

44. I am not satisfied on the whole of the evidence than more probably that not the plaintiff was exposed to the inhalation of asbestos dust and fibre in the course of his employment by the defendant.

45. There will be a verdict for the defendant.

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

Ms L McFee instructed by Rankin and Nathan appeared for the defendant.