Dunning v BHP Billiton Limited
[2014] NSWDDT 3
•31 July 2014
Dust Diseases Tribunal
New South Wales
Medium Neutral Citation: Dunning v BHP Billiton Limited [2014] NSWDDT 3 Decision date: 31 July 2014 Before: Kearns J Decision: There will be verdict and judgment for the plaintiff in the sum of $2,236,959.57.
Catchwords: Dust diseases;
mesothelioma;
whether hierarchical approach, giving priority to documents, to resolution of factual issues dictated by authority;
approach to the assessment of witnesses;
whether plaintiff was exposed to asbestos;
whether evidence may given by non-expert identifying asbestos;
whether injury to plaintiff employee foreseeable;
state of knowledge, actual and constructive, in 1979 of defendant concerning health risks associated with exposure to asbestos;
identity of person within corporate defendant who had actual knowledge of health risks from exposure to asbestos and whether defendant could dictate identity of that person;
whether on foreseeability of injury defendant could rely on NHMRC standard to the exclusion of all other learning;
whether defendant could rely on advice that might have been given by a reasonably competent occupational hygienist in 1979;
whether defendant breached duty of care to plaintiff;
whether on breach of duty defendant could rely on NHMRC standard;
whether reasonable practical alternatives were available in blast furnace;
whether plaintiff's injury caused by defendant's negligence (consideration of the cumulative effect mechanism of causation of mesothelioma);
whether defendant in breach of s41 of Factories, Shops and Industries Act 1962;
on damages, whether plaintiff being in remission Malec v Hutton discount should be made for possibility that mesothelioma may not recur;
whether plaintiff's damages should exclude aggravation or exacerbation of his depressive condition resulting from the litigation.Legislation Cited: Dust Diseases Tribunal Act 1989 Cases Cited: AMP General Insurance Limited v Roads and Traffic Authority of NSW [2001] NSWCA 186
Baker v Quantum Clothing Group Limited (formerly Taymil Limited) (2011) UKSC 17
BHP Billiton Limited v Parker [2012]
Booth v Amaca Pty Ltd and Amaba Pty Ltd [2010] NSWDDT 8
CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338
Fox v Percy (2003) 214 CLR 118
Graham v Co-operative Wholesale Society Limited [1957] 1 WLR 511, 522
Howard Smith & Patrick Travel Pty Limited v Comcare [2014] NSWCA 215
Julia Farr Services Inc v Hayes [2003] NSWCA 37
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638
McLean v Tedman (1984) 155 CLR 306, 313
McPherson's Ltd v Eaton & Ors (2005) 65 NSWLR 187
Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, 402
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Silvestro v Verbon Pty Limited [1973] 2 NSWLR 513
Thompson v Johnson & Johnson Pty Limited [1991] 2 VR 449Category: Principal judgment Parties: Jake Douglas Dunning as tutor for Steven Douglas Dunning (plaintiff)
BHP Billiton Limited (defendant)Representation: Mr P Semmler QC with Mr S Tzouganatos instructed by Slater & Gordon Lawyers appeared for the plaintiff
Mr T G R Parker SC with Mr D Talintyre instructed by Piper Alderman and HWL Ebsworth Lawyers appeared for the defendant.
File Number(s): DDT 79/2011
Judgment
A. THE COURSE OF THE LITIGATION [1]
B. THE PLAINTIFF'S CLAIM [2]
C. THE DEFENDANT'S OPERATIONS [3] - [16]
D. THE PLAINTIFF'S CASE ON EXPOSURE [17]
E. THE LIABILITY ISSUE [18] - [19]
F. THE RESULT [20]
G. THE APPROACH TO THE RESOLUTION OF THE ISSUES [21] - [23]
H. THE PLAINTIFF'S EVIDENCE [24]
(a) THE PLAINTIFF'S AFFIDAVIT (EXHIBIT PX 20) [25] - [35]
(b) THE PLAINTIFF'S ORAL EVIDENCE
(i) THE PLAINTIFF'S EVIDENCE IN CHIEF [36] - [62]
(ii) THE PLAINTIFF'S CROSS-EXAMINATION [63] - [91]
I. OTHER ORAL EVIDENCE IN THE PLAINTIFF'S CASE
(a) JOHN GILLESPIE [92] - [176]
(b) BRUCE BATES [177] - [226]
(c) TERENCE TURNBULL [227] - [269]
(d) KEVIN PARKER [270] - [338]
J. DEFENDANT'S WITNESSES
(a) ERNEST BRYON [339] - [365]
(b) MICHAEL HERRETT [366] - [370]
(c) STEVEN PATTEN [371] - [380]
(d) DAVID WARREN [381] - [414]
(e) LINDSAY THREADGATE [415] - [419]
(f) PETER CLARKE [420] - [423]
K. DOCUMENTS [424] - [493]
L. ASSESSMENT OF WITNESSES [494] - [533]
M. WAS THE PLAINTIFF EXPOSED TO ASBESTOS AND, IF SO, IN WHAT CIRCUMSTANCES AND TO WHAT EXTENT? [534] - [577]
(a) THE COOLING BLOCKS [578] - [590]
(b) THE TAPHOLE DRILL [591] - [603]
(c) GLOVES [604] - [624]
(d) BLANKETS [625] - [640]
(e) CLEANING [641] - [649]
(f) DAILY CHANGE OF CLOTHES [650]
N. WAS THE PLAINTIFF'S INJURY REASONABLY FORESEEABLE? [651]
(a) THE DEFENDANT'S ACTUAL KNOWLEDGE [652] - [670]
(b) KNOWLEDGE THE DEFENDANT OUGHT TO HAVE HAD [671] - [721]
(c) FORESEEABILITY OF INJURY [722] - [737]
O. BREACH OF DUTY - WERE THERE REASONABLY AVAILABLE PRACTICAL ALTERNATIVE MEASURES? [738] - [748]
(a) respiratory protective device [749] - [752]
(b) WARNING AND EDUCATION [753] - [755]
(c) vacuum cleaner [756] - [757]
(d) wetting down and ban on compressed air [758] - [760]
(e) atmospheric testing [761]
(f) laundering of clothing, sealing and disposal of waste [762] - [764]
P. DID THE DEFENDANT'S BREACHES OF DUTY CAUSE THE PLAINTIFF'S MESOTHELIOMA [765] - [772]
Q. STATUTORY COUNTS [773] - [782]
R. QUANTUM
(a) GENERAL DAMAGES [783] - [823]
(b) INTEREST ON GENERAL DAMAGES [824]
(c) LOSS OF EXPECTATION OF LIFE [825]
(d) PAST AND FUTURE GRATUITOUS CARE AND SERVICES INCLUDING INTEREST [826]
(e) PAST LOSS OF EARNINGS [827]
(f) PAST LOSS OF SUPERANNUATION BENEFITS [828]
(g) INTEREST ON PAST LOSS OF EARNINGS AND SUPERANNUATION [829]
(h) FUTURE LOSS OF EARNING CAPACITY [830] - [839]
(i) FUTURE LOSS OF SUPERANNUATION BENEFITS [840]
(j) LOSS OF LONG SERVICE LEAVE ENTITLEMENTS [841]
(k) SUMMARY OF FIGURES [842]
S. ORDERS [843] - [845]
A. The course of the litigation
This case has an unfortunate history. All that needs to be noted at this stage is that when the case commenced, the plaintiff was suing in his own right and interest. At the conclusion of his cross-examination on the third day of the hearing, shortly before lunch, an early adjournment was sought and granted. When the matter resumed after lunch Mr Semmler QC, who appeared with Mr Tzouganatos for the plaintiff, informed me that he had concerns for the plaintiff's capacity to instruct properly. Medical examination was arranged and from soon after that time the case has been conducted for the plaintiff by his tutor, Jake Douglas Dunning, who is his son.
B. The plaintiff's claim
The plaintiff has mesothelioma. The Third Further Amended Statement of Claim alleges he contracted it from exposure to asbestos in the employ of BHP Billiton Limited at its Newcastle steelworks between 10 December 1979 and 4 October 1981. In submissions, the case became one confined to exposure from 10 December 1979 to March 1981 when the plaintiff was employed at the blast furnace department at the defendant's steelworks. The plaintiff sues the defendant alleging he was negligently exposed. He also sues for breaches of statutory duties said to be owed to him.
C. The defendant's operations
To understand the circumstances of exposure as alleged by the plaintiff, it is desirable to explain a little of the defendant's operations.
There were four blast furnaces in the blast furnace department. They produced molten iron from iron ore. They had an exterior metal shell with refractory bricks inside. Between the external metal shell and the refractory bricks was insulation.
Iron ore and other materials were fed into the top of the furnace. Hot air created by ovens in a lower part of a furnace mixed with materials fed into the furnace and produced molten iron and slag.
The furnace had what was known as a cast house floor and crew. The floor was an elevated platform. In some instances, it was six to eight metres above ground level. It was a large area. It had a cast house floor building on it. It had the tuyeres, taphole, cinder notches and other equipment.
The furnaces had a taphole at the bottom. That taphole was plugged with clay by a mud gun. The mud gun was a large piece of machinery with several hoses attached to it. The hoses were lagged with insulation.
A process called casting was undertaken. As part of this process, the taphole was tapped by a drill. This also was a large piece of machinery with several hoses attached to it. These hoses were also lagged with insulation. The drill was swung towards the taphole. It drilled through the clay that plugged the taphole. When the taphole was unplugged, molten metal then poured out into a trough. The molten metal ran down the trough. A refractory brick with a hole at the bottom at the end of the trough skimmed off the slag that floated at the top of the molten metal. It directed the slag into a runner called the slag runner. The slag ran down the slag runner into a pit at No. 4 blast furnace or into slag pots at the other blast furnaces. The rest of the molten metal ran through the hole in the skimmer and continued running down the metal runner and poured into a vessel known as a torpedo ladle. The torpedo ladle was located on the cast house floor and could carry up to 200 tonnes of molten metal. A cast took about one to three hours to complete. The slag runners and troughs were lined with refractory clay and sand.
At the completion of a cast, the taphole was plugged with clay by the mud gun.
I mention hereunder some of the features of the blast furnaces.
The cinder notch was a hole in the side of the blast furnace that was plugged during the iron ore making process by a mechanical bott. It was positioned above the taphole. It was a tap to let the slag flow out. The plug was removed from the notch so that, by force of pressure, some of the slag would be removed from the furnace to minimise the amount of slag that poured into the troughs. This was removed through a pipe known as a monkey pipe. Blast furnaces Nos 1 and 4 had one cinder notch. Blast furnace No. 2 had two. Blast furnace No. 3 had two and, later, one.
Stoves were very large domed objects. They were lined with insulation and refractory bricks. They were about 180 ft in height and about 30 ft in diameter. Blast furnace No. 1 had four stoves. No 2 had four. No 3 had four. No. 4 had three. Except for blast furnace No. 4, and two stoves on No. 3, the stoves had a round shaped door, which could be opened and shut to allow entry of the burner. The doors were sealed with a gasket.
The stoves were connected to tuyeres by way of a large refractory pipe line. This pipe line led off from the stoves and went to a large pipe called the bustle main. From there, the air was transported by a down leg pipe, then another blow pipe and then into the tuyeres and into the interior of the blast furnace.
Tuyeres were water-cooled copper tubes. They were located around the circumference of the furnace. They conveyed super-heated air from stoves. The air was conveyed through the skin of the furnace, through the refractory brick work and into the blast furnace. The air came from the stoves through the hot blast and bustle main, then the blow pipes and through the tuyeres into the blast furnace. The tuyeres were water-cooled to regulate the temperature in the metal shell and brick linings. Blast furnace No. 1 had 10 tuyeres. Numbers 2 and 3 had 16 and No. 4 had 20. The tuyeres consisted of one pipe around another. The interior pipe contained the hot air. The exterior pipe was called the tuyere's cooler pipe. It was a water cooled pipe. The tuyeres pipe that entered the furnace was encased within a blow pipe.
Two of the blast furnaces were cooled using cooling blocks. They were blast furnaces Nos 1 and 2. The cooling blocks carried water. They were driven into the shell of the furnace. They were about two feet long. They tapered from 18 inches to 15 inches in width. They were three inches deep. There were 200-300 of these on blast furnaces 1 and 2. On blast furnaces Nos 3 and 4, these cooling blocks were replaced by cooling staves. These were pipes that carried water. They were inside the furnace, but they entered through the metal shell. The cooling blocks and the pipes were packed with insulation.
Blast furnace No. 1 was decommissioned in May 1982. Blast furnace No. 2 was decommissioned in March 1985. Numbers 3 and 4 were decommissioned in September 1999.
D. The plaintiff's case on exposure
The plaintiff's case on exposure is that he undertook work in the blast furnace department that exposed him to asbestos dust and fibre. The processes that caused him to be exposed are said to have included work associated with:
- the use and repair of the taphole drill and the mud gun. Their hoses were lagged with asbestos;
- the re-sealing of the stove doors with asbestos gaskets;
- removing, replacing and repacking cooling blocks;
- repair and maintenance of tuyeres;
- plant maintenance on shut downs;
- removal and installation of asbestos lagging on fixed pipes; and
- cleaning associated with those tasks and general cleaning.
E. The liability issue
The defendant disputes the plaintiff's alleged exposure to asbestos. It says the exposure was nil or infinitesimal. There are two limbs to this. The first is that the dust which the plaintiff alleges he was exposed to was not asbestos. The second is that the plaintiff was not exposed for the frequency, duration and intensity he alleges. The defendant then says that the nature and extent of the plaintiff's exposure to asbestos leads to a number of conclusions:
(a) that the plaintiff's injury was not reasonably foreseeable;
(b) that the defendant was not in breach of the duty it owed the plaintiff. The defendant also says it was not in breach because it provided all proper and reasonable precautions it ought to have;
(c) that the plaintiff's exposure did not cause his mesothelioma.
The defendant also disputes that it was in breach of any statutory duty owed to the plaintiff.
Critical to the resolution of these issues are:
(a) the extent to which the plaintiff was exposed to asbestos;
(b) the knowledge the defendant had or ought to have had as to the risks to health posed by exposure to asbestos.
F. The result
I have come to the view that the plaintiff is entitled to succeed in this claim for reasons which follow.
G. The approach to the resolution of the issues
I shall proceed shortly with a recounting of the evidence or the effect of the evidence given by the witnesses. I shall then turn to some documentary material. In the course of doing so, I shall make some comments about some of the oral evidence and some of the documents. It is appropriate that, at this stage, I deal with one submission made by the defendant.
Mr Parker SC, who appeared with Mr Talintyre for the defendant, submitted I should take a hierarchical approach to the resolution of the issues. This submission was based on Fox v Percy (2003) 214 CLR 118. In the context of this case, that means that I should start with the contemporaneous documentary records, then other objectively established facts, then apply a process of logic and only then turn to the testimony of witnesses. That may be an appropriate approach in some cases. It cannot be the approach to be taken in all cases. That approach assumes the documents are contemporaneous records and gives the documents a primacy they may not have. The approach cannot apply in cases where the documents are shown to be wrong or where there are relevant gaps in them or where there is ambiguity in them.
It has been necessary for me to examine numerous documents in the resolution of the issues in this case. They do not all contain incontrovertible material. There are documents that contain error or gaps or are ambiguous. I will need to consider the whole of the evidence, documentary and oral.
H. The plaintiff's evidence
The plaintiff gave evidence partly by way of affidavit and partly orally. He also called evidence from a number of witnesses and tendered documents.
(a) The plaintiff's affidavit - Exhibit PX 20
The plaintiff started work in the blast furnace department on 10 December 1979. He worked in that department until he went to the ingot mill department in March 1981 (Exhibit PX 20 [12]).
The plaintiff's affidavit contains a history of his work before he started with the defendant. That history is short as he left school when 15 years of age and started with the defendant when he was 19 years of age. In that period of approximately four years, he had two different jobs. He was out of work for a period.
The plaintiff's affidavit then deals with his work with the defendant in the blast furnace from when he started on 10 December 1979. The issue of exposure here is highly contentious as is the plaintiff's evidence in support of it. I think it is appropriate in the circumstances if I set out verbatim those parts of his affidavit relating to his exposure. In doing so, I omit those parts of the affidavit I ruled inadmissible.
The affidavit contains the following relevant paragraphs 12 to 32.
12. The blast Furnace department was a section of the steelworks where raw materials such as iron ore and other ingredients where (sic) melted in 4 large chimney like Blast Furnaces to produce molten metal. The Blast Furnaces were metal structures covered with refractory bricks and insulation. Raw materials were put in at the top of each furnace and flowed down during the melting process towards the bottom of each furnace. This process was called "casting". The molten metal was extracted from each furnace from a taphole which was tapped by using a mechanical device that I knew as the "taphole drill". When a furnace was ready to be tapped, the drill was swung into place. The taphole drill was operated from a control room. It had a number of hoses on it.
13. On each furnace (Number 1, 2, 3 and 4) there were various platforms from which workers carried out their jobs. I was a labourer in the cast house crew. During a cast we worked on the cast house floor. The cast house floor was about 6 to 8 metres above ground level. On the cast house floor level there was the tap hole and a system of troughs into which the molten metal flowed from each furnace during a cast. The troughs led into vessels called ladles which were situated underneath the cast house floor. The iron went in ladles. The slag (the rubbish off the top of the iron) flowed into vessels called slag pots. Also on the cast house floor level was the taphole drill and the mud gun (this was the mechanical device used to plug up the tap hole with special clay which I understood contained pitch).
14. There were other work platforms on each furnace. There was a tuyere floor on each furnace. Tuyeres were a system of copper pipes that entered the circumference of each Blast Furnace carrying the hot air that generated the heat required by each Blast Furnace. The tuyeres were a couple of metres or so above the taphole level. There were a number of tuyeres on each furnace. The tuyeres were connected to a series of other pipes leading to what was called the Hot Blast system. The Hot Blast system is where the hot air was created and blown into each furnace. The air was heated in what were called "stoves" and then blown through via the tuyeres into each Blast furnace. Each furnace was connected to its own hot blast system and stoves. The stoves were made of refractory bricks and insulation. Each stove had an opening that looked like a door.
15. Above the cast house floor and tuyere level were other levels including (a) the areas were (sic) the cooling systems of each furnace were located, (b) where gases were released and (c) where the raw materials were put into each Blast Furnace. I vividly recall that whenever we left the cast house floor to go on to a higher level we took a canary in a cage to check for toxic gases. If the canary keeled over we had to get out of there.
16. Each furnace had a cooling system to cool the lining of each furnace. I think they were all water cooled. Some of the furnaces had rows of cooling blocks around the circumference. The cooling blocks were about two feet long and tapered from about 18 inches to about 15 inches. The cooling blocks were rammed into the furnace and they stuck out slightly from the furnace. There were hundreds of these cooling blocks on some of the furnaces. There were many hoses and pipes connected to each furnace. I am not sure what they carried but I saw them everywhere.
17. The Blast Furnace department was a very hot and dusty place to work. The cast house floor was probably the hottest and dustiest place to work. During a cast, workers (including me) on the cast house floor were working within about 5 or 6 metres from the molten metal pouring out of the taphole and were exposed to the constant risk of hot metal splashes. It was extremely hot.
18. In the blast furnace department we worked three eight hour shifts. The morning shift was 7am to 3pm. The afternoon shift was 3pm to 11pm. The night shift was 11pm to 7am.
19. Throughout my work in the Blast Furnace department the system of work was that no one worker was specifically allocated to a particular furnace. It depended on what was required by the company. For example it was often the case that I worked on the cast house floor on Blast Furnace Number 2 and the next day I worked on the cast house floor on Blast Furnace Number 4. There were about 50 workers on each shift (spread over the four Blast Furnaces) on the production side of things. In addition there were maintenance workers including boilermakers, fitters and electricians.
20. On each cast house crew there were a number of workers performing different tasks including filling the furnace with raw materials, operating the raw materials hoist, operating the tap hole drill, operating the mud gun, clearing and replacing the sand in the troughs, cleaning (with brooms and compressed air) and general labouring assisting other workers including tradesmen. Throughout my work in the Blast Furnace department I worked as a labourer but after the first six months I also operated the mud gun after each cast. When I finished with the mud gun I went back to labouring. In the Blast furnace department every worker on the cast house floor was expected to be able to work on each task as required.
21. The labourers performed the basic labouring work on the casting house floor and in the Blast Furnace department generally. That included shovelling the old sand out of the metal and slag runners, replacing the sand, helping clean the tap hole area after the Blast furnace had been tapped and helping to load the mud gun. Labourers also helped clean the mud gun after it had been used and prepared it for the next casting. The labourers cleaned (using brooms and compressed air hoses) around the Blast Furnace floor in order to clear the dust, dirt and other debris that had gathered there.
22. Throughout my work in the blast furnace department each Blast furnace was shut down for 24 hours for planned maintenance about every two months. The planned maintenance shut downs were rotated so that there was only ever one furnace not operating. During the planned maintenance workers including boilermakers, fitters, engineers, labourers (including me) and refractory bricklayers worked very close to each other repairing and maintaining parts of the furnace and hot blast system. At these times tuyeres, cooling blocks, hoses and pipes were repaired and maintained. In addition to the planned maintenance shut downs, running repairs and maintenance occurred regularly. This was usually done after a cast.
23. I worked with asbestos containing insulation and packing materials and was exposed to asbestos dust on a regular basis throughout my employment in the Blast Furnace department ... [inadmissible text]
24. I regularly worked with and around others using asbestos rope (woven texture, greyish white in colour in various thicknesses and lengths on wooden spools), asbestos tape (woven texture, greyish white in colour in various dimensions and lengths in coils), asbestos blankets (grey in colour with woolly fibres sticking out of them), asbestos cloth (grey in colour with a woven texture), asbestos sheets (grey in colour and square in shape), asbestos insulation blocks (greyish white in colour and used to line the internal metal shell of parts of furnaces and the hot blast system including stoves; courses of refractory bricks were laid on top of this material), asbestos gauntlets ... [inadmissible text]
25. Asbestos rope was used by tradesmen in the Blast Furnace department to insulate parts of hoses and pipes. On regular occasions I removed the old and brittle asbestos rope which crumbled in my hands. The tradesmen then cut lengths of asbestos rope with a hacksaw from spools and applied it around pipes and hoses. I assisted in this process. I also cleaned up with a broom and sometimes with compressed air. I saw a lot of dust in the air around me, on my clothes and hands as I did this work. I regularly inhaled asbestos dust in this process.
26. In my work in the Blast Furnace department I regularly used asbestos rope to pack and seal a number of areas in the Blast Furnaces and stoves including around each tuyere (sometimes I called this a "burner"), cooling block, and the stove doors. I cut lengths of asbestos rope with a hacksaw and then used my hands and a crow bar to pack it in to these areas. I saw a lot of dust go into the air around me from my use of the new asbestos rope and from when I removed old asbestos rope packing which was always dry, brittle, crumbled and gave off a lot of dust in the air. I regularly inhaled this dust. I used a crow bar to remove the old asbestos rope. This dust and debris from the old and new asbestos rope usually ended up on the open steel mesh walkways and fell through to the level below. I cleaned up this dust and debris with a broom and/or a compressed air hose. Occasionally I also used a compressed air hose to blow out the old asbestos rope packing because it was a really hard job to get it out. This generated dust in the air.
27. Tradesmen including fitters and boilermakers used asbestos blankets for protection against heat and metal splashes. They laid the blankets out on a walkway or placed them over a section of whatever they were working on as required. The blankets were dusty to handle. The heat dried them out and they gave off dust around the areas in which they were used. I handled asbestos blankets (moved them from one place to another) on a number of occasions throughout my employment in the Blast Furnace department. In addition I was occasionally within a few feet of others handling asbestos blankets. I inhaled dust that I saw in the air from the asbestos blankets on many occasions in my work at the Blast Furnace department.
28. Tradesmen including fitters and boilermakers also used asbestos sheets for protection against heat and sparks during welding. The sheets were sometimes cut or damaged and gave off dust. The sheets were not fibro, they were softer than fibro.
29. Boilermakers and pipe fitters carried out regular repairs on many steam pipes, flanges, hoses, tuyeres and cooling blocks in the Blast Furnace department. On steam pipes I saw them removing the metal casing on the steam pipes and the insulation underneath. There was no metal covering the insulation on the flanges. As they were repairing the metal, they wrapped the pipe or flange with asbestos rope. If a tuyere was being repaired the flange had to be cut, removed and replaced. These processes involved cutting and handling of asbestos rope within a few feet of me. These processes generated dust which I saw in the air around me. I often assisted in cleaning up during and after this process. I regularly inhaled asbestos dust in this work.
30. Throughout my work in the Blast Furnace department in this period I occasionally worked in the vicinity of refractory bricklayers carrying out repairs (although in this period I cannot recall any major relines) on parts of Blast Furnaces and the hot blast system including the stoves. This occurred during shut downs. During these repairs parts of the lining (and insulation behind it) of the furnaces and hot blast system were demolished with crow bars or jackhammers. I (and other labourers) assisted in this process. The old bricks and insulation behind them crumbled in this process. Clouds of dust went everywhere and all over me each time I did this. The insulation behind the bricks looked like grey thick sheets or blocks. The bricklayers put in new insulation in the form of sheets or blocks before bricking over the top. I do not know what the new insulation material was made of. As a labourer I cleaned up the old bricks and insulation into skip bins using a broom and shovel. This caused more dust to go into the air which I inhaled. This type of work on the furnaces an stoves occurred mainly during planned or unplanned shut downs.
31. In my work as a labourer on the cast house floor I regularly wore asbestos gauntlets (grey and woven up to my elbows) and sometimes a heavy asbestos coat. I wore these in order to protect myself from metal splashes during casting. This gear was very dusty because the heat dried it out. The gauntlets and coat frayed and gave off dust. When I wore the gauntlets I regularly clapped my hands together in order to disburse the heat. I saw dust in the air from the gauntlets each time I did this. I wore this gear everyday during the casting process and I inhaled dust from this gear during these times.
32. One of the tasks that I regularly did as a labourer on the cast house floor was changing the tap hole drill. On the tap hole drill there were many hoses that had asbestos rope lagging on them. I handled the drill at least three or four times each shift in the Blast Furnace department. In doing so I usually brushed up against the lagging on the hoses and this gave off dust. Also during shut downs I assisted in the repair and replacement of the asbestos rope lagging on the hoses. I saw dust go into the air during this work. I inhaled this dust. I cleaned up after the removal and replacement of the asbestos rope lagging on those hoses on the tap hole drill using a broom and compressed air. This caused more dust to go into the air.
It is to be noted that insofar as the plaintiff referred to the use of, or being exposed to, asbestos materials, that evidence was admitted on the basis that it was the plaintiff's belief that the product was or contained asbestos.
After working in the blast furnace department, the plaintiff went to the ingot mill department in March 1981.
The plaintiff was sick of the work and the dust and left the defendant in October 1981 (Exhibit PX 20 [34]).
The plaintiff was never warned by the defendant that asbestos was dangerous or that it could lead to death. He was not told he should take precautions. Had he been warned, he would have taken precautions or even left the job (Exhibit DX 20 [35]).
The plaintiff then undertook a number of jobs. He worked at Royal Newcastle Hospital for about three years. During part of that time, he worked for Paul Wallace doing domestic bricklaying. It was a second job. Then from about October 1984 to about October 1985, he worked full time, but on and off, for Paul Wallace as a domestic bricklayer.
The plaintiff then entered on a new period of work as a refractory bricklayer from 1985 to 1992. This saw him back at the defendant's premises for a short time in the middle of 1989. He was working for a different employer, Andreco.
There are other parts of the plaintiff's affidavit that may be left out at the moment. I shall refer to them to the extent that I need to in due course.
(b) The plaintiff's oral evidence
(i) The plaintiff's evidence in chief
When the plaintiff commenced his evidence, he was "not good". He had been sick, vomiting and had trouble concentrating. He had not slept the night before and had slept little the night before that. He has had a problem with vomiting since undergoing chemotherapy. He felt nauseous. His mood state was down and had been for "Months, months and months" (T57.23). At this point, I note that the plaintiff had undergone surgery which involved a regime of chemotherapy commencing in March 2011, followed by radical pleuropneumonectomy in May 2011 and followed by radiotherapy commencing in June 2011. He was also under treatment for depression before the hearing commenced.
Cognitive behaviour therapy had not helped him. Nor had medication. He was feeling "buggered" (T57.32) physically and probably mentally also. "My mind has gone blank" (T67.26). He felt he had depression and had so for months. (T57)
His condition was the same when he resumed his evidence on the second day of the hearing.
This history has a relevance, especially in light of the nature and extent of cross-examination to which the plaintiff was subjected and the extent of concessions he made.
This history has a relevance especially in light of the nature and extent of cross-examination to which he was subjected and the extent of concessions he made.
To the extent that the plaintiff identified product to which he was exposed as being asbestos product, again that evidence was limited to that being the plaintiff's belief that that was what the product was.
I deal now with the plaintiff's evidence in chief that might assist in identifying the product as asbestos.
In terms of attempting to identify product to which he was exposed as being asbestos, the plaintiff said that at the defendant's premises, the term "asbestos" was used from time to time. It was used by the foremen (T66.14).
Rope was grey/whitish and had a woolly texture (T67.44). It was on spools.
In the period 1985 to 1992 when the plaintiff worked for a number of different companies, including work at the defendant's premises, at one point he described working with what he described as rock wool, an insulating product. His description of it is different to the description of the insulation products he worked with in the blast furnace department from 1979 to 1981 (T70).
The plaintiff worked with gaskets. These were called asbestos gaskets (T76.28).
The plaintiff worked with blankets. The plaintiff's belief that the blankets were asbestos was based on the fact that that is what everybody called them. That included superintendents and foremen. This was the case with everything, except gauntlets, the plaintiff believed was asbestos (T77.22). The blankets were about one to one and a half metres by two to two and a half metres. They were a grey/white colour with a "fibrey" texture and felt "real coarse" (T77.49 and T78.01). The edges were frayed.
The plaintiff wore gauntlets. The workers referred to these gauntlets as asbestos gauntlets. The plaintiff could not recall anyone other than workers referring to them as asbestos gauntlets, despite being led as to whether the foremen did.
I turn now to the plaintiff's evidence in chief concerning his exposure to the product he identified as asbestos when he was in the blast furnace department.
The plaintiff estimated that, on average, he was exposed to asbestos dust and fibre about once per week (T71.12). That is an odd piece of evidence. It does not fit with his description of the work he did, for example, changing the taphole drill with its asbestos lagged hoses three to four times each shift. I do not think the plaintiff's mind was on task when he gave that evidence.
Insulation of parts of hoses and pipes described in Exhibit PX 20 [25] (paragraph 28 above) occurred "it might be two or three shifts a week you're handling it" (T71.35). He then said it was used in lagging, probably once per week (T71.37) and it would be for about an hour or two (T71.42) and he was close to the lagging.
At times he worked with his hands above his head. This occurred when doing tuyeres and he would be removing lagging (T71.49). Dust then went all over his face and on his clothing (T72.04). His face would be a foot from the lagging.
When cleaning up with compressed air, or a broom, dust could be seen in the air.
In Exhibit PX 20 [26] (paragraph 28 above), the plaintiff described packing and sealing with rope and cleaning up. He said this occurred two to three times a week, two to three hours at a time (T72.39).
The rope for the packing of the stove doors was on a wooden spool (T73.16). The tradesmen would scrape the old rope out. The plaintiff would be about a metre from them. Dust would go in the air. It was "flickery" (T73.26). The process of removing the packing would take about 20 minutes (T73.33). After the rope was removed, a new length would be cut sometimes by the plaintiff using a hacksaw (T73.45). After the job was done, the old rope was on the ground. The labourer cleaned up by hand (T74.17).
The packing and sealing of the tuyeres was sometimes done by tradesmen and sometimes by labourers (T75.07). The old rope had to be scraped out. This was done with a little bar or an air hose (T74.30). The plaintiff's face was near the old rope when it was being removed (T74.32). The old material was brittle and plenty of dust came off and over the plaintiff (T74.43). Repacking with the new rope was done by the labourers (T75.12). Asbestos was used to pack and seal tuyeres (T74.20). The rope would be cut from the spool with a hacksaw (T75.18). That gave off dust. Two metres of rope could be used (T75.23). It had to be rammed in with a bar. That gave off some dust, but not as much as the old stuff coming out (T75.29). The process of getting rope, cutting it and packing it in took about 20 minutes (T75.33). The whole process could take up to half an hour (T74.46). The labourers cleaned up. Compressed air was used. At first, they would pick up what they could and throw it away in a trough or over the edge in a furnace (T75.35-.41).
The plaintiff replaced gaskets on equipment (T76.18). The equipment included dog legs and a pipe attached to the down pipe (T76.22). An asbestos gasket was placed between the pipes. The plaintiff helped the tradesmen in the replacement process. In the process, the removal of the old gasket involved the removal of a dusty gasket (T76.44). The tradesmen would remove it and hand it over and then the labourer would throw it away (T76.46). There was a "glistening" in the air (T77.01). There were plenty of places where this was done, although the plaintiff assisted on only a few (T77.09). The plaintiff breathed in the dust (T77.12).
With blankets, the plaintiff would put them on mesh floors so nothing would fall through (T77.27). Levels above the cast house floor were mesh. The tuyere floor was mesh. The cooling block or stave floor was mesh (T77.32). The plaintiff laid the blanket on the floor a few times. When carrying them, or laying them down, they gave off dust. The plaintiff carried them by holding them in front of him, not far from his face (T78.17). Dust got on the plaintiff's hands. When the job was complete, the plaintiff picked up the blanket and shook it. That created and dust and fibres collected on the plaintiff (T78.27).
The plaintiff also handled sheets. They were about one metre by two metres (T78.37). The plaintiff carried these. Dust rubbed off on his clothes (T79.21).
The plaintiff's work with refractory brick layers was mainly on the troughs (T79.23). He was present when demolition of the old material was being done. The plaintiff helped by throwing the bricks in the skip and by cleaning up afterwards (T79.30). The clean up involved bricks and insulation. There was a jack hammering process involved that created dust. The plaintiff's clothing, face and body were all dusty (T79.35).
The plaintiff wore asbestos gauntlets that come up to his elbows. They were grey. They were "texturey" and made him itch (T79.47). They handled heat better than the leather gloves. The plaintiff wore these gauntlets every shift during casting. There were two, sometimes three, casts in a shift. A cast took about an hour or so. They were taken off after cleaning up. The mitt parts frayed and gave off dust (T80.18). The plaintiff clapped his hands to disperse the heat about ten times a shift and that would give off a bit of dust (T80.26). When he did this, the gloves were about 18 inches from his mouth.
The changing of the taphole drill was sometimes done by labourers and sometimes by others (T81.19). There were about ten hoses attached to the drill. The plaintiff regularly brushed up against them. That gave off dust. The lagging on the hoses frayed. The plaintiff noticed that fraying about once per week.
(ii) The plaintiff's cross-examination
The plaintiff felt depressed for a couple of months after his radio therapy and has plateaued since then (T88.30). His radiotherapy commenced in June 2011. He gave evidence that his concentration had been affected since he was diagnosed (T87.28), then he could not recall a short time later giving that evidence (T88.44). I am not satisfied he understood what he was being asked.
His short term memory has been a problem since the beginning of 2012 (T89.04). The plaintiff did not know how long his memory had been affected (T89.06).
The plaintiff was first aware that asbestos was dangerous when he became ill (T89.22), a long time ago (T90.11), at least since the 1990s. He was aware it was life threatening (T90.30).
The plaintiff first believed his condition was related to work with the defendant when he was diagnosed (T91.07). He did not then believe he had been exposed in other work (T91.42).
The questioning relating to when the plaintiff first believed asbestos posed a health risk was confusing. He was asked if he had heard about while working as a contractor (T92.44). The question was not qualified and probably referred to the whole period from 1985 to 1992 when the plaintiff worked as a refractory bricklayer. The plaintiff agreed that when working as a refractory bricklayer, he believed asbestos could be a health risk (T92.48). This was the basis for the next two questions with false premises being put to the plaintiff. They were:
Q. So we now know that by the mid-80s you must have picked up from the media the idea that asbestos could be a health risk, do we not.
MR SEMMLER
I object to that. That is not a fair conclusion from the -
HIS HONOUR
It does not follow, does it?
MR PARKER
I will put it again.
Q. You told me earlier that you could not remember one way or the other, in the 1980s, whether you were aware that asbestos could be a potential health risk. Remember giving that evidence. A---Yes.
Q. You have now told me that when you started work as a contractor you believed that asbestos could be potential health risk.
(T93.01-.16)
The questions were objected to and when the error was corrected, the plaintiff said it was about half way through the period 1985 to 1992 that he first learned that asbestos was a health risk (T93.32).
The same type of error on the same subject matter emerged a short time later in the cross-examination. The plaintiff told Mr Parker that it was after he went to work for Andreco that he became aware of potential health risks of asbestos (T94.04). That was followed immediately with the following question,
So by the time you worked at Andreco, you were aware of potential for risk from asbestos.
The question was not objected to and the answer was "yes" (T94.06).
The plaintiff agreed that paragraph 47 of his affidavit was false. In that paragraph, he stated that he did not know that working with asbestos was dangerous to health when working as a refractory brick layer (T97.30).
The system at the defendant's steelworks was that a worker was allocated to a particular furnace and he did not go to another furnace unless someone was sick or something like that (T104.31-.40). This proposition which was put to the plaintiff, and accepted by him, was not supported by Mr Warren who gave evidence for the defendant. It was not uncommon to be sent to the other three furnaces (T105.21). It could be once per week or once per month. The total number of days he spent working on a furnace, other than his principal furnace, was not that great.
It was put to the plaintiff that every furnace could be shut down "every few months". The plaintiff answered "every two". That was followed by "Every few I put to you, could be two, could be three, months". He answered, "As far as I - as far as I remember it was every couple of months" (T104.50).
The plaintiff was cross-examined about an interview he had with an officer from the Dust Diseases Board (DDB). The following emerged.
- The plaintiff could not remember telling the person from the DDB that he wore leather gloves (T106.06). He did not wear leather gloves (T106.09). He did at times (T106.09). He did not mention wearing gauntlets to the person from the DDB (T106.14).
- It was put that he told the person from the DDB that lagging fell of steam pipes. He could not remember that as a fact (T107.05). Then it was put again and there was added that he had to clean up the floor with a broom and shovel and that increased dust. He agreed he said that to the person from the DDB (T107.11). That is not in the affidavit and he did not know why (T107.16).
- He did not tell the person from the DDB anything about installing or removing pipes (T107.28).
- He did not tell the person from the DDB about using compressed air (T108.20).
- He did not mention to the person from the DDB anything about gaskets (T109.10).
- He told the person from the DDB that when he changed a burner (tuyere), he would pack a blanket type of material around it (T109.19).
- He did not mention rope to the person from the DDB (T109.34).
- He told the person from the DDB he changed burners about four times (T110.16). He said he "Didn't change many out. But I packed plenty of them" (T110.20). Cross-examination then proceeded on this point and the plaintiff disagreed with the suggestion that the only time he could have been involved in packing around the burners was when he was changing them (T110.31). He scraped the old rope out (T110.38). He packed the burners about two to three times a week (T110.44). Work on changing burners happened on shutdowns and when they failed (T111.36). They only failed on a handful of occasions (T111.42).
- The plaintiff did not mention to the person from the DDB about working on the cooling blocks (T114.16).
- The plaintiff did not tell the person from the DDB about the use of blankets put over equipment or on the floor (T114.42).
- The plaintiff did not tell the person from the DDB about putting rope on stove doors (T115.02).
Mr Parker returned to the second item in the previous paragraph in his cross-examination the following day. In cross-examination, the plaintiff could not then remember cleaning up insulation from pipe sections that had fallen to the ground (T128.43). When he informed the person from the DDB of this, he thinks he must have been mistaken. He could recall seeing insulation being removed from or installed on pipes (T128.50). He remembered taking covers off and seeing tradesmen do that (T129.02). He remembered seeing tradesmen put insulation on (T129.04). He did not help in the installation process (T129.14) or cleaning up. That work was only done during shutdowns (T129.18).
Demarcation was enforced at the worksite (T113.09). This was in the context of who was responsible for undertaking particular tasks with the plaintiff agreeing that he would not undertake tasks that belonged to a trade other than his. In this context, the plaintiff agreed that packing the burners was done by tradesmen and the plaintiff helped (T113.34). It was done during shutdowns, planned or unplanned. It was never of an urgency requiring it to be done outside of shutdowns (T113.39) The plaintiff did not do it himself. He only ever assisted. He ultimately agreed with the proposition that he could have been involved in this sort of work only a small number of times (T114.02). This evidence relating to burners must be understood as referring to tuyeres, not cooling blocks. It was apparent during submissions that there was some confusion about this.
The plaintiff was cross-examined on Exhibit DX 1 (T117.40ff). This is a DDB document completed on behalf of the plaintiff. When he signed the form, he wanted the recipient to believe that he did not know whether he had any exposure with the defendant at the blast furnace (T121.11). He thought he had not. He wanted the recipient to believe that his exposure had come during the period he was back at the defendant's premises with Andreco after he had left the defendant in 1981 (T121.15).
The plaintiff told Dr Johnson in May 2011 that he worked as a labourer for the defendant from 1978 to 1981, that he worked in blast furnaces for six months and then the ingot mill (T122.13). He told him there were steam pipes that were lagged, that he wore a gauntlet, but he did not know if it contained asbestos (T122.21).
The plaintiff conceded he was wrong in saying in chief he used compressed air to clean the floor (T127.33), and in this regard he agreed that paragraph 21 of his affidavit was wrong (T139.41).
Maintenance was done during shutdowns unless it was an emergency (T127.46).
The plaintiff did not fetch blankets or board from the store (T128.25). He did not fetch any product containing asbestos from the store (T128.31).
The plaintiff was cross-examined about the use of rope. It was used in the context of packing burners, replacing burners as a seal around burners and around cooling blocks. The plaintiff assisted with all of these tasks. The burners and packing were done only during shutdowns. The plaintiff's occasions of assistance were few and far between. Work on the doors was done only on shutdowns. The plaintiff's opportunities for that work were few and far between. Work on the coolers was done on the shutdowns. The plaintiff could not recall if it was done at other times. His opportunities for that work were few and far between. When this point was repeated a little later, the plaintiff did not respond (T129-131).
Work was done on the blast furnace by refractory brick layers from time to time. A team would come in and only on shutdowns. Sometimes no one from the blast furnace would be involved (T133.29). Sometimes one or more persons from the blast furnace would assist, not necessarily the plaintiff (T133.34). The plaintiff's opportunity to do that was only a handful of occasions (T133.41).
The plaintiff was shown catalogues (T122.35, T134.27ff) and asked if he could identify products in the catalogues. I do not find this evidence helpful.
In paragraph 21 of his affidavit, the plaintiff said it was often the case that he worked on the cast house floor of No. 2 blast furnace and the next day he worked on the cast house floor of No. 4 blast furnace. Mr Parker had him agree that this was a mistake on the basis that this was less often than not (T139.33).
In paragraph 22 of his affidavit, the plaintiff said "In addition to the planned maintenance shutdowns, running repairs and maintenance occurred regularly". The plaintiff agreed "In the light of the evidence (he gave) today" that maintenance did not involve asbestos products (T139.49).
In paragraph 29 of his affidavit, the plaintiff stated boilermakers and pipe fitters carried out "regular" repairs and that the plaintiff "often" assisted in cleaning up and that he "regularly" inhaled asbestos dust (T140.19). Mr Parker had the plaintiff agree that each of these matters was false.
In paragraph 25 of his affidavit, the plaintiff stated he regularly removed old and brittle ropes from pipes and hoses and that he "regularly" inhaled asbestos dust. Mr Parker had the plaintiff agree that each of these matters was false (T141).
In paragraph 26 of his affidavit, the plaintiff stated he was involved in removing old insulation rope. The plaintiff agreed with Mr Parker that this was false. He also stated that he packed new insulation materials in (T142.06). When it was put to him that this was false, the plaintiff said he did help (T142.13). Then he agreed he did not pack the material in. When it was put to him again that that was false, the plaintiff said he did pack it in. Then he agreed he was just supposing (T142.17). Then, at the suggestion that the recollection of this was false, he said he could not remember (T142.19).
In paragraph 26 of the affidavit, the plaintiff also stated that he "regularly" inhaled asbestos dust. The plaintiff said that he did inhale it. He agreed the use of the word "regularly" was false.
In paragraph 26 of the affidavit, he also stated that he cleaned up the fallen dust with a broom and/or compressed air. It was put that was false. The response was "Some areas we did". He later agreed that he could not recall an occasion when he cleaned up with something other than water and he was just supposing he used compressed air (T141-142).
In paragraphs 25, 26 and 29 of his affidavit, the plaintiff did not mention gaskets (T142.32). The plaintiff agreed that the evidence about gaskets was wishful thinking because he hoped it would support his case (T142.47). The plaintiff agreed the whole of his affidavit concerning his work for the defendant was wishful thinking because he hoped it would support his case (T143.01). The plaintiff agreed he has allowed himself to overstate his case as a result of wishful thinking in a desire to support his case (T143.35).
I Other oral evidence in support of the plaintiff's case
(a) John Gillespie
Mr Gillespie commenced work with the defendant in 1969. He does not recall the plaintiff.
Mr Gillespie had extensive experience working in the blast furnace department in different capacities. He spent 70-80% of his time on the furnaces and was aware of what the various cast house crew members did.
He worked in the blast furnace department from 1974 to 1977 as a furnace foreman. From 1978 to 1986, he was in that department, progressing through positions being General Foreman Blast Furnaces in 1978 and 1979, Senior Site Services Supervisor Blast Furnaces from early 1980, Project Manager Blast Furnaces in late 1984 and Assistant Superintendent Blast Furnaces in 1986.
In about 1986, Mr Gillespie moved out of the blast furnace department for about 6 to 12 months and became the Superintendent of the Sinter Plant Department at the Newcastle Steelworks.
In about 1987 he took up a position as Superintendent of the Blast Furnace Department at the Newcastle Steelworks. In about 1988, the Sinter Plant Department and the Furnace Department merged. Mr Gillespie was Manager of those departments at the Newcastle Steelworks until 1996.
Between 1994 and 1996, as part of his role as Manager of the Blast Furnace and Sinter Department, he was also the Project Director for the complete rebuild of the No. 4 blast furnace. When the planning for that project was completed, he left the Newcastle Steelworks.
Since then, up to the present time, he has continued to work in the steel industry.
Mr Gillespie gave evidence about the work practices and working conditions in the blast furnaces and about the use of asbestos.
At this stage, I shall focus on some of Mr Gillespie's evidence going to the issue of whether there was asbestos product in the blast furnace department.
The blast furnace department was the section of the steelworks that had the greatest need for insulation (T232.07).
Mr Gillespie stated that he had some training in the use and appearance of various materials including asbestos and experience and a certificate in refractories. He was able to distinguish products he understood to be asbestos from other products. The distinction included the fibrous nature of asbestos products and the texture of them. Furthermore, asbestos product was kept and stored by the defendant. One of his jobs was ordering and making sure that stocks were kept up on the furnaces. Asbestos was labelled as asbestos and the word "asbestos" appeared on wrapping. The product was commonly referred to as asbestos, including by superintendents and foremen in the workplace (T165). The replacement products did not look like the asbestos-based products (T212.13).
Mr Gillespie was involved in implementing a direction that asbestos be removed from the plant. This was in about 1979 (T166.42, T174.12). This was timed at about the time Mr Gillespie understood an edict came out to get rid of asbestos. Mr Gillespie did not see the directive of the general manager, Mr Harden, of 25 July 1979 (Exhibit DX 3, 322) or any other relevant document, but as there is considerable reference to the directive in these reasons, it is convenient to take it as the edict and also to take Mr Gillespie's awareness of it occurring on 25 July 1979, even though that timing may not be precise. Nothing turns on taking that approach. There was no urgency transmitted to Mr Gillespie about the removal of asbestos (T178.44). It did not appear to be any more urgent than other matters requiring attention (T332.09).
In about 1979, attempts were made to replace asbestos materials. Different materials were tried and failed. The furnace had to be kept going, "...we did our best to control the immediate risks against the long term risks of exposure to asbestos." Immediate risks were heat and splash and gas. (T174.12-16)
Up until the mid 1980s, asbestos materials were used. Those materials comprised rope, tape, blankets, cloth, gaskets, millboard sheets, insulation blocks and clothing being gloves, gauntlets, aprons, spats and coats. (Exhibit PX 21[40])
Asbestos ceased to be used in about 1985 (T189.16).
Mr Gillespie was shown a document which became Exhibit DX 3 at page 78. Another copy is at page 195. It is dated 17 September 1979 and sets out certain action taken by the defendant with regard to asbestos. As to that document, Mr Gillespie gave the following evidence:
- there was an asbestos survey;
- he was involved in looking at substitutes for asbestos;
- the issue of cloth was to be strictly policed and only to be issued when absolutely unavoidable;
- insofar as the document stated that rope was not to be purchased on the plant, that was not correct;
- nor was it correct that Kaowool had replaced rope;
- fibreglass replaced tape;
- Bellite, Klingerite and Palmeto continued to be used. Mr Gillespie thought that this referred to pipes;
- there was a large gasket in No. 2 Blast Furnace. It was two inches square and 20 feet long. It was replaced in 1985;
- millboard was replaced, but he could not say that was in September 1979;
- the majority of lagging was done by Insulation Industries. They may not have used asbestos after September 1979;
- asbestos substitutes were being sought for hand and foot protection. He said they could not be replaced when right up next to heat. The document notes that replacement material on gloves was revealing a problem with abrasion. Mr Gillespie said abrasion was not a problem in the blast furnace department;
- blast furnace personnel were sent for medical examinations. Mr Gillespie could not recall if that was in July or August of 1979;
- monitoring did not directly involve Mr Gillespie. This item refers to a circulated memorandum he would have expected to receive, but had no recall of seeing it. It notes that Mr Grogan was to arrange for the laboratory to carry out sampling. Mr Gillespie had never heard of Mr Grogan;
- the document refers to vacuum cleaners. Mr Gillespie said he never saw them and then added that he had no recollection of them;
- the document states that no orders were to be placed outside of the plant without approval of the safety superintendent. Mr Gillespie said that the department only ever ordered within the plant so he had no comment to make about that item;
- the document notes that a specialised group of men from the power department were to be trained to deal with major and minor sized asbestos demolition jobs. Mr Gillespie had no recall of that;
- the document refers to a handbook in the printing stage. Mr Gillespie had no recall of receiving it. He could not deny that this was issued;
- the document refers to a booklet for employees to be published. Mr Gillespie had no recall of that. He could not deny that this was published.
Mr Gillespie was shown some photographs of product. He could not tell from the photographs what some of the material was. It included rope and braid (T228.32), boards (T228.44), some rolled up material (T228.50). The blanket or carpet did not look similar (T228.36). I do not find this evidence of attempted identification from photographs to be helpful.
Mr Gillespie spoke about the processes of removal of asbestos from the defendant's work processes. In about 1979, the defendant made some attempts to investigate and trial asbestos-free products such as Refrasil, Kaowool and Parramatta Cloth (Exhibit PX 21 [50]).
It is a regrettable function I have to undertake and as A/Prof McCaughan said, "It's total guesswork". A/Prof McCaughan has patients who have survived in the range of seven to 10 years. Whilst he would not be surprised if a patient survived ten years, he was reluctant to go beyond that. He also noted the plaintiff could have mesothelioma in a year. My best determination on the evidence is that the plaintiff would probably survive a total of seven years approximately from the surgery.
It was submitted by Mr Parker that the plaintiff is relatively independent and by reason of his prognosis compared to other mesothelioma victims, he has some "compensations". I am not impressed by the submission that the plaintiff is relatively independent. It hardly emerges from pages 58 to 60 of the transcript to which Mr Parker referred me and it is hardly compatible with paragraphs 793 to 797.
As to compensations, Mr Parker submitted that the plaintiff is in remission. He is, however, left with the significant ongoing physical and mental disabilities from which he suffers. The longer he is in remission, the longer he will be in that position. Added to that, is his depression and the misery of his plight which is ongoing. Further, his state of mind is one of extreme concern and fear that the mesothelioma is going to kill him. He is not wrong in that. He might be in remission, but the longer he lives, the longer he lives with that fear and with his physical disabilities, his depression, misery and mental anguish.
It was submitted I should make a discount in accordance with Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 for the prospect that the plaintiff may not get a recurrence of his mesothelioma. A/Prof McCaughan said he will. The defendant called no evidence to counter that or cast any doubt on it. In light of this and as the period is so short, I make no discount.
It was submitted I should put the effects of mental anguish arising from the litigation to one side. In AMP General Insurance Limited v Roads and Traffic Authority of NSW [2001] NSWCA 186, the employer had negligently caused back injury to an employee. The employee applied for an extension of time in which to bring common law proceedings for his injury. He suffered stress from cross-examination in those proceedings. He developed depression and committed suicide shortly after the hearing of the application. The issue was whether his widow could recover in respect of the suicide. Spigelman CJ said:
35 The legal proceedings concerned the injury which the deceased suffered by reason of the employer's default. That does not mean that the employer is responsible for whatever happens in court. The employer would not necessarily be liable if the employee suffered different harm whilst in a hospital which he attended for treatment of his original injury. This is not a case in which the events in court can be treated as some form of exacerbation of the original injury. (Cf Mahony v J Kruschich (Demolitions) Pty Ltd [19985] HCA 37; (1985) 156 CLR 522 at 529-530.)
36 Neither the trial judge's findings, nor the evidence in the case, suggest that the cross-examination operated in a manner which can be described as reactivating the psychiatric injury caused by the accident. The trial judge expressly found that the depression was "effectively cured in early March some six weeks before the proceedings took place" (at [56]). He further found "Mr Boxsell's suicide was caused by events which took place during the application for leave and it was that event which triggered the later depression which led to him taking his life" (at [57]).
The Deceased in that case had ceased to suffer from any depression before the proceedings. This case is different. It is clear from the plaintiff's own evidence, that of his wife and the fact that he was being treated for depression before the hearing and up to the time of the hearing, that the plaintiff was suffering a significant ongoing depression when the case commenced. This was not a case of litigation causing depression in a person of normal fortitude who was not suffering depression when the case commenced. This was a case, when it commenced, of a person already suffering depression by reason of the negligence of the defendant. It can be expected that litigation would follow the negligence. That was foreseeable. It can also be expected that litigation would increase depression in an already depressed person. That is what happened here and that was foreseeable. The defendant submitted that it was entitled to exercise its rights and defend the proceedings. Indeed it was. The plaintiff was also entitled to exercise his rights and bring proceedings. It was the defendant's negligence that resulted in the proceedings. It can hardly be an answer to that that the plaintiff did not have to bring proceedings.
I indicated to the parties a preliminary view that I thought this was one of the worst cases of mesothelioma I have seen. I indicated in effect that I could be awarding a substantial figure for general damages. I cannot be ignorant of awards of general damages given by this Tribunal, but my task is to award the plaintiff a sum that fairly compensates him for all he has suffered and will suffer. Reasonableness must guide the assessment. In the circumstances of this case, I consider an appropriate figure to be $500,000.
I am conscious that this figure is $150,000 in excess of any figure that has been awarded for general damages in the Tribunal before. That, in itself, has caused me to pause and consider and reconsider over a prolonged period. Whilst Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 directs that each case needs to be considered on its own merits, there is undoubtedly a benefit in the administration of justice in parties being able to assess general damages based on assessments and patterns and trends in other cases. This is probably even more so in a specialist tribunal where the same illness keeps recurring. One might expect something of a benchmark or approximate benchmark to be recognised. These matters have troubled me, but in the end, I have determined that I have to provide a reasonable assessment for Mr Dunning for his general damages.
This is not any ordinary mesothelioma case. Features of it that have impressed me in the making of this assessment include:
- the plaintiff's young age in contracting the disease;
- the torrid surgical treatment the plaintiff underwent;
- the torrid time the plaintiff had with his chemotherapy and subsequent radiotherapy;
- the prolonged (for a mesothelioma victim) physical disability the plaintiff has had and will have. Most mesothelioma victims die within about 18 months of contracting the disease and, for a lot of that period, not all have intense, ongoing suffering;
- the impact this illness has had and will have on the plaintiff including the miserable situation in which he now finds himself.
(b) Interest on general damages
I allow 2% per annum for 3.66 years on $250,000, being $18,300.
(c) Loss of expectation of life
I allow $30,000.
(d) Past and future gratuitous care and services including interest
This is agreed at $100,000.
(e) Past loss of earnings
This has been calculated by the plaintiff and not challenged by the defendant at $242,612.75 as at 20 June 2014. To bring the matter up to date, I add $9,710.10 being $1,618.35 per week for 6 weeks. The total is $252,322.85.
(f) Past loss of superannuation benefits
Likewise, this has been calculated by the plaintiff and not challenged by the defendant at $37,792.66 as at 20 June 2014. To bring this up to date, there needs to be added earnings of $12,724.80. With the superannuation added to that, the loss of superannuation benefits is $39,192.38.
(g) Interest on past loss of earnings and superannuation
Likewise, this has been calculated by the plaintiff and not challenged by the defendant at $44,163.85 as at 20 June 2014. Again, to bring the figure up to date, the allowance should be $48,012.55. Here, I have used a multiplier of 3.66 years, rather than the 3.5 years in the plaintiff's schedule.
(h) Future loss of earning capacity
At the time of his illness, the plaintiff was working in the coal mining industry. He started this in 1992. He worked as an underground coal miner in Queensland for three years. He did likewise at Muswellbrook for the next 11 years with Anglo Coal (Dartbrook MGMT) Pty Limited. Then he worked for Austar Coal Mine Pty Limited, again as an underground coal miner. In April 2007, he left Austar and worked as an underground coal miner with UGM Engineers Pty Limited. In October 2008, the plaintiff left UGM and worked for North Wambo Pty Limited at Warkworth as an underground coal miner. He worked there until 11 November 2010 and has not been able to work since.
The plaintiff said he intended to work until at least 70 years of age (Exhibit PX 20, [55]). That is in issue. In his evidence, the plaintiff said he intended to work as long as possible (T85.10). It was a well paid job. His work as an underground miner was as a miner driver. He supplied the underground with materials (T85.22). His job was driving machinery. He was probably doing that for about 12 months before he became ill. He had not worked at the face for 12 months before he became ill (T85.37). The driving job he preferred and it was easier on the body. He enjoyed the job. It was a much better job than jobs he had before. He enjoyed the money and the camaraderie.
Mr Dunning was not cross-examined on this subject matter, either on the content of his affidavit or on his evidence in chief. It is necessary to determine for how long the plaintiff would have worked.
Mr Parker submitted there is no basis for an assumption that the plaintiff would have retired at 70 years of age. There is no assumption about it. It is supported by evidence. In his affidavit, the plaintiff said he planned to work until at least 70 years of age and he had no plans to retire and in his evidence in chief he said he intended to work as long as possible. Putting that together allows that the plaintiff may have continued beyond 70 years of age.
There are features that might work against the plaintiff working until 70 years of age. One is the current downturn in the coal industry. I do not see that as a major factor. It is an industry that has survived many ups and downs in the economic cycles. Mines have closed. Others have started. Fluctuations in the industry may be more likely to affect the rate of remuneration rather than a cessation of employment. Another matter that may work against the plaintiff working until 70 years of age is the eligible age for a person to obtain a pension. It is 67 years. Again, I do not think that is a major factor. It is 67 years because the Government has, of relatively recent time, pushed eligible age out from 65 to 67. If there is a trend, it is one to have people working longer.
There are factors that support the plaintiff's intention to work to or beyond 70 years of age. They are that the job was well paid, it was an easy job and he enjoyed the camaraderie and he had no plans for doing anything in retirement. I am not bound by what the plaintiff says about his intentions in this regard, even though he was not cross-examined on it. However, I accept that it was his intention to work until at least 70 years of age and I find that he would have worked up until then.
There are two periods in the future to consider.
The first is the period up until the plaintiff's expected date of death and the second is the period thereafter. In the first period, the net weekly earnings are $2,120.80. After deduction of payments from the Dust Diseases Board that reduces to $1,618.95 per week net. I have estimated the plaintiff's life expectancy at another seven years approximately from May 2011. It is convenient to take that out to the end of July 2018. The multiplier for that period is 196.9, thus yielding $318,771.25. There is an issue as to whether there should be a discount for vicissitudes because the period is so short. I think it is appropriate to allow 5%. For this period, I allow $302,832.68.
In the second period, the factors are as follows:
- $2,120.80 per week net earnings;
- less $150 per week for the plaintiff's maintenance in the lost years;
- 517 being the approximate multiplier for 11.75 years;
- 0.888 being the deferred multiplier for 4 years.
These factors yield $904,786.39.
At issue is what amount to allow for vicissitudes. Fifteen percent is the traditional figure. That is so for the whole of working life. The shorter the remaining working life, the stronger is the case for a lesser allowance for vicissitudes. In this case, the remaining working life is 13 years in this period. It is not, however, 13 years from now. It is 13 years commencing in three years' time. In other words, the plaintiff would have to reach the year 2030, not 2027. I think a figure less than 15% is appropriate. I allow 12.5%. The result is $791,688.09 for this period.
(i) Future loss of superannuation benefits
This has been calculated by the plaintiff at $155,207.84 without allowance for vicissitudes. There is no challenge to the plaintiff's methodology. I think there should be a discount of 12.5% for vicissitudes. I allow $135,806.86.
(j) Loss of long service leave entitlements
Again, the plaintiff has calculated this item and there is no challenge to the methodology. The calculated amount is $21,490.47 without allowing for vicissitudes. I allow 12.5% for vicissitudes. I allow $18,804.16.
(k) Summary of figures
Summary of figures
General damages
$500,000.00
Interest on general damages
$18,300.00
Loss of expectation of life
$30,000.00
Past and future gratuitous care
$100,000.00
Past loss of earnings
$252,322.85
Past loss of superannuation benefits
$39,192.38
Interest on past loss of earnings and superannuation
$48,012.55
Future loss of earning capacity
$302,832.68
$791,688.09
Future loss of superannuation
$135,806.86
Loss of long service leave entitlements
$18,804.16
TOTAL
$2,236,959.57
S. Orders
There will be verdict and judgment for the plaintiff in the sum of $2,236,959.57.
The plaintiff is to bring in short minutes of order dealing with the payment and investment of the judgment sum.
I shall hear the parties on costs.
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Decision last updated: 31 July 2014
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