Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v The State of South Australia
[2006] WASC 270
•8 DECEMBER 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ELLIS, Executor of the Estate of PAUL STEVEN COTTON (DEC) -v- THE STATE OF SOUTH AUSTRALIA & ORS [2006] WASC 270
CORAM: EM HEENAN J
HEARD: 29, 30 & 31 AUGUST, 1, 2, 5 - 9, 12 - 16 & 19 - 23 SEPTEMBER 2005
DELIVERED : 8 DECEMBER 2006
FILE NO/S: CIV 2314 of 2000
BETWEEN: TERESA ELLIS, Executor of the Estate of PAUL STEVEN COTTON (DEC)
Plaintiff
AND
THE STATE OF SOUTH AUSTRALIA
First DefendantAMACA PTY LTD (ACN 000 035 512) formerly JAMES HARDIE & COY PTY LTD
Second DefendantMILLENNIUM INORGANIC CHEMICALS LTD (ACN 008 683 627) formerly SCM CHEMICALS LTD
Third Defendant
Catchwords:
Employer's liability - Asbestos - Lung cancer - Death - Estate claim - Law Reform (Miscellaneous Provisions) Act 1941 - Fatal Accidents Act 1949 - Dependants' claim - Overlap between statutory causes action - Employment in industry involving exposure to asbestos - Two periods of employment - Employment in laying of cement and asbestos water pipes in South Australia, working, cutting and grinding pipes in field - Later employment in mineral sands factory producing titanium dioxide within large industrial premises with asbestos cladding, insulation and roofing
Death due to progressive lung cancer - No asbestosis - No pleural thickening or plaques - Deceased formerly a smoker - Tobacco smoking a significant cause of fatal lung cancer - Extent of exposure to asbestos in working environments - Relatively low levels of exposure - Potential cumulative effects of exposure - Potential interaction of tobacco smoking and exposure to asbestos fibres as multiplying the toxic effect of both substances - Significance of statistical attempts to estimate harmful concentrations of asbestos fibres in working environments - Short-comings in statistical quantifications - Attempts retrospectively to estimate statistical concentration of asbestos fibres in each of plaintiff's two working environments - Causation - Contributory negligence - Voluntary assumption of risk - Onus of proof - Standard of proof - Damages - Significance of early onset of cancer disease after exposure to asbestos in either workplace - Cumulative effects of exposure to asbestos with respect to potential liability of each employer - Helsinki Protocol - Award criteria
Damages
Legislation:
Civil Liability Act 1936 (SA)
Crown Proceedings Act 1992 (SA)
Fatal Accidents Act 1959 (WA)
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA)
Law Reform (Contributory Negligence and Torfeasors' Contribution) Act 1947 (WA)
Law Reform (Miscellaneous Provisions) Act 1941 (WA)
Survival of Causes of Action Act 1940 (SA)
Result:
Judgment for plaintiff in both sets of claims
(a) In the estate claim against the
first defendant for $361,573.09
second defendant for $331,952.16
third defendant for $196,573.09
(b) In the claims for wrongful death against the
first defendant for $240,321
second defendant for $199,789
third defendant for $196,455
Category: A
Representation:
Counsel:
Plaintiff: Mr J R C Gordon
First Defendant : Ms C J Thatcher
Second Defendant : Mr G M Watson SC & Ms J M Kubacz
Third Defendant : Mr A J Power
Solicitors:
Plaintiff: Slater & Gordon
First Defendant : State Solicitor for Western Australia
Second Defendant : Minter Ellison
Third Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Adelaide Stevedoring Company v Forst (1940) 64 CLR 538
Astley v Austrust Ltd (1999) 197 CLR 1
Australian Capital Territory v Kitt [2004] NSWCA 444; (2004) 43 MVR 249
Badger v Ministry of Defence [2005] EWHC 2941; [2006] 3 All ER 173
Barker v Corus (UK) Ltd [2006] UKHL 20; [2006] 2 WLR 1027
Barker v Corus (UK) Ltd [2006] UKHL 20; [2006] 3 All ER 785
Beavis v Apthorpe [1963] NSWR 1176
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bennett v Minister for Community Welfare (1992) 176 CLR 408,
Betts v Whittingslowe (1945) 71 CLR 637
Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Campbells Cash & Carry v Fostif Pty Ltd [2006] HCA 41; (2006) 229 ALR 58
Chapman v Hearse (1961) 106 CLR 112
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Clarke v Chandler Clay Pty Ltd (1984) A Tort Rep 80‑631
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469
Commonwealth v McLean (1996) 41 NSWLR 389
CSR Ltd v Culkin, unreported; FCt SCt of WA; Library No 940570; 18 October 1994
Dalby v Wallaby Grip Ltd [2002] NSWDDT 15
De Sales v Ingrilli [2002] HCA 52; (2002) 212 CLR 338
Direct Engineering Services Pty Ltd v A Goninan & Co Ltd [2006] WASC 105
Distillers Co (Bio‑Chemicals) Ltd v Thompson [1971] 1 NSWLR 83; [1971] AC 458
Dumais v Hamilton [1998] ABCA 218
E M Baldwin & Son Pty Ltd v Plane [1999] NSWCA 130; (1999) 17 NSWCCR 434
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32
Fox v Wood (1981) 148 CLR 438
Gammell v Wilson [1982] AC 27
Goodwin v Nominal Defendant (1979) 54 ALJR 84
Grant v Sun Shipping Co Ltd [1948] AC 549
Haar v Uneedus Scaffolding Pty Ltd, unreported; SCt of VIC (O'Bryan J); 30 March 1990
Haigh v State Government Insurance Office (Qld) [1962] Qd R 534
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
Hole v Hocking [1962] SASR 128
ICI Australia Operations Pty Ltd v Walsh (1997) A Tort Rep 81‑452
In the Matter of TNN Limited & Ors and In the Matter of the Companies Act 1985 [2006] EWHC 1447
Insurance Commissioner v Joyce (1948) 77 CLR 39
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Jones v Bradley [2003] NSWCA 81
Jongen v CSR Ltd (1992) A Torts Rep 81‑192
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Judd v Amaca Pty Ltd (No 2) (2003) 25 NSWCCR 488
Margolis v Imperial Tobacco Ltd & Ors - UK Court of Appeal [2000] EWCA Civ 114
McDonald (Executrix of the estate of late T G H McDonald) v State Rail Authority (NSW) [1998] NSWDDT 4; (1998) 16 NSWCCR 695
McGhee v National Coal Board [1973] 1 WLR 1
McGilvray v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2001] WASC 345
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621
McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998
Misiani (as Executor of the Will of Misiani (Dec)) v Welshpool Engineering Pty Ltd (In Liq) [2003] WASC 263
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Murray v Shuter [1976] QB 972
Nance v British Columbia Electric Railways Co Ltd [1951] AC 601
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 33
Nguyen v Nguyen (1990) 169 CLR 245
O'Connor v S P Bray Ltd (1937) 56 CLR 464
Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR 14
Paris v Matkovich, unreported; FCt SCt of WA; Library No 980614; 27 October 1998
Public Trustee v Zoanatti (1945) 70 CLR 266
Purkess v Crittenden (1965) 114 CLR 164
Re Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475
Refalo v Stevedoring Industry Finance Committee [2002] NSWDDT 20
Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491
Reindel v James Hardie & Co Pty Ltd [1994] 1 VR 619
Robertson v Hobart Police and Citizens Youth Club (1984) A Tort Rep 80‑629
Roggenkamp v Bennett (1950) 80 CLR 292
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Shire of Brookton v Water Corporation [2003] WASCA 240
South Tweed Heads Rugby League Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113
Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 80 ALJR 646; (2006) 224 ALR 625
Sydney County Council v Furner (1991) 7 NSWCCR 210
TC (by his Tutor Sabatino) v State of New South Wales [2001] NSWCA 380
Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; (1976) 10 ALR 303
Vaughan v Olver [1977] Qd R 1
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Western Australia v Watson [1990] WAR 248
Westralian Caterers v Eastment Ltd (1992) 8 WAR 139
Wilsher v Essex Area Health Authority [1988] AC 1074
Wylie v South Metropolitan College of TAFE [2003] WASCA 34
Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25
Case(s) also cited:
Adams v Ascot Iron Foundry Pty Ltd [1968] 3 NSWR 305; (1968) 72 SR (NSW) 120
AMP General Insurance Ltd v Roads & Traffic Authority of New South Wales [2001] NSWCA 186; (2001) 22 NSWCCR 247
Attorney-General v Gilbert [2002] 2 NZLR 342
Australian Blue Asbestos Ltd v Rees, unreported; FCt SCt of WA; Library No 4283; 9 October 1981
Australian Iron & Steel Ltd v Connell (1959) 102 CLR 522
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Bale v Seltsam Pty Ltd, unreported; CA Qld; 8 March 1996
Bale v Seltsam Pty Ltd, unreported; SCt of Qld (White J); 14 December 1995
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Barker v Saint-Gobain Pipelines plc [2004] EWCA Civ 545; [2005] 3 All ER 661
Barrow v CSR Ltd; Heys v CSR Ltd, unreported; SCt of WA (Rowland J); Library No 7231; 4 August 1988
BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288; (2005) 3 DDCR 149
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Blomley v Ryan (1956) 99 CLR 362
Bowen v Tutte (1990) A Tort Rep 81-043
Browne v Cockatoo Dockyard Pty Ltd [1999] NSWDDT 19; (1999) 18 NSWCCR 618
Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81-017
Chandler v Water Corporation [2001] WASC 166
Clark v Kramer [1986] WAR 54
Cockatoo Dockyard Pty Ltd v Browne [2001] NSWCA 58; (2001) 21 NSWCCR 544
Commonwealth of Australia v Ryan [2002] NSWCA 372
Commonwealth of Australia v Stoilkovski, unreported; FCt SCt of Vic; 19 March 1981
CSR Ltd v Wren (1997) 44 NSWLR 463
CSR Ltd v Young (1998) 16 NSWCCR 56
Cuthill v State Electricity Commission of Victoria [1981] VR 908
Dahl v Grice [1981] VR 513
Davies v Adelaide Chemical and Fertiliser Co Ltd [1946] 74 CLR 541
Donoghue v Folkstone Properties Ltd [2003] EWCA Civ 231; [2003] QB 1008
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Dwan v Farquhar [1988] 1 Qd R 234
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Ewins v BHP Billiton Ltd [2005] SASC 95; (2005) 91 SASR 303
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
Finn v Commonwealth of Australia (2002) 24 NSWCCR 614
Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58
Foyster v Goynich [1984] WAR 80
General Cleaning Contractors Ltd v Christmas [1953] AC 180
Grove v Bestobell Industries Pty Ltd [1980] Qd R 12
Hall v Tarlinton (1978) 19 ALR 501
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Havenaar v Havenaar [1982] 1 NSWLR 626
Hetherington v Mirvac Pty Ltd [1999] NSWSC 443; (1999) A Tort Rep 81-514
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Hughes v Lord Advocate [1963] AC 837
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109
Imperial Chemical Industries of Australia & New Zealand Ltd v Murphy (1973) 47 ALJR 122
James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554
James Hardie & Coy Pty Ltd v Roberts [1999] NSWCA 314; (1999) 47 NSWLR 425
Jones v Dunkel (1959) 101 CLR 298
Jones v James Hardie & Co Pty Ltd [1966] 2 NSWR 85
Jones v Watney, Combe, Reid & Co (1912) 28 TLR 399
Jsekarb Pty Ltd v Plane (1999) 18 Leg Rep SL4a
Julia Farr Services Inc v Hayes [2003] NSWCA 37; (2003) 25 NSWCCR 138
Kember v Thackrah [2000] WASCA 198
Kilgannon v Sharpe Bros Pty Ltd (1986) 4 NSWLR 600
Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; (2002) A Tort Rep 81-673
Latimer v A E C Ltd [1952] 2 QB 701
Lawson v Flavel [2001] WASCA 272
Levi v Colgate-Palmolive (1941) 41 SR (NSW) 48
Lock v Lock [2001] WASCA 20
Maclenan v Segar [1917] 2 KB 325
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Margerson v J W Roberts Ltd, unreported; UKCA; 2 April 1996
Margerson v J W Roberts Ltd, unreported; UKQBD (Holland J); 27 October 1995
McNeill v Seltsam Pty Ltd [2005] NSWDDT 43; (2005) 3 DDCR 85
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Miletic v Capital Territory Health Commission [1995] HCA 13; (1995) 130 ALR 591
Morgan v Tame [2000] NSWCA 121; (2000) 49 NSWLR 21
Moriarty v Evans Medical Supplies Ltd [1958] 1 WLR 66
Murdoch v SG Sayer Pty Ltd [1961] WCR 182
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Naismith v London Film Productions Ltd [1939] 1 All ER 794
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613
Nolan v Hamersley Iron Pty Ltd [2000] WASCA 304; (2000) 23 WAR 287
Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Olson v CSR Ltd, unreported; DDT (NSW) (O'Meally J); 24 December 1994
Page v Smith [1996] AC 155
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Pollock v Wellington (1996) 15 WAR 1
Power v Snowy Mountains Hydro Electric Authority (1956) 57 SR (NSW) 9
Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v O'Connor (1980) 146 CLR 64
Rae v Broken Hill Proprietary Co Ltd (1957) 97 CLR 419
Restuccia v Workers Compensation (Dust Diseases) Board (2005) 2 DDCR 691
Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234; (2001) 53 NSWLR 43
Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1 WLR 948
Richards v State of Victoria [1969] VR 136
Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Ltd [1999] NSWDDT 5; (1999) 18 NSWCCR 653
Rowe v McCartney [1976] 2 NSWLR 72
RTA v AMP [2001] NSWCA 186
Rundle v State Rail Authority (2002) NSWCA 354
Seltsam Ltd v Minahan (1996) 13 NSWCCR 410
Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580
Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275; (2001) A Tort Rep 81-591
Simpson v Midalco Pty Ltd, unreported; FCt SCt of WA; Library No 7421; 7 December 1988
St George Club Ltd v Hines [1962] ALR 39
State Electricity Commission of Victoria v Johnson, unreported; SCt of Vic; No 6031 of 1994; 31 October 1995
State Government Insurance Commission (South Australia) v Laude (1984) 37 SASR 31
Stokes v Guest, Keen and Nettlefold (Bolts & Nuts) Ltd [1968] 1 WLR 1776
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Sydney County Council v Furner (1991) 7 NSWCCR 210
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317
Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405
Tomlinson v Congleton Borough Council [2002] EWCA Civ 309; [2004] 1 AC 46
Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46
Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88
Van Der Sluice v Display Craft Pty Ltd (2002) NSWCA 204
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110
Wintle v Conaust (Vic) Pty Ltd [1989] VR 951
Workers' Compensation (Dust Diseases Board) v Kelly [2000] NSWCA 57; (2000) 20 NSWCCR 234
Wright v Dunlop Rubber Co Ltd (1972) 13 KIR 255
Wyong Shire Council v Shirt (1980) 146 CLR 40
X & Y v Pal (1991) 23 NSWLR 26
Table of Contents
Introduction
The estate claims and the dependants' claims
Choice of applicable law
Grant of representation and testamentary distribution
The periods of the deceased's employment with the defendants
Personal background
Family and Dependants
History of deceased's health
Deceased's smoking history - effects of cigarette smoking
Varieties of asbestos
Composition of asbestos in water pipes
Composition of asbestos at the third defendant's premises at Australind
Asbestos - complete carcinogen or promoter
Lung cancer - divisible or indivisible disease
Paul Cotton's employment with the South Australian Engineering and Water Supply Department
Paul Cotton's employment with the third defendant and extent of exposure to asbestos
1. The workers at Australind
2. The Matprolab Reports of March and August 1990
3. Air monitoring
4. Complaints about asbestos at Australind site
5. Asbestos insulation removal
6. Chronology of asbestos removal activities at Australind
Quantitative estimates of asbestos exposure
1. The WAIT AID Study
2. The Amdel Report
3. The A/C Pipe Producers Association Report
4. The James Hardie Asbestos Cement Cutting Tool Study of February 1980
5. Ontario Royal Commission Report
6. Japanese Study of 1993
The occupational hygienists
1. Mr M H Kottek
2. Professor de Klerk
3. Mrs Janet Sowden
4. Mr Geoffrey Pickford
5. Mr Paul Foley
6. Mr Alan John Rogers
Results of Attempts at Quantitative Assessment of Asbestos Exposure
Specialist medical opinion - clinical and epidemiological
1. Professor A W Musk, AM
2. Professor K Wan
3. Dr James Leigh
4. Dr Peter Kendall
5. Professor Geoffrey Berry
6. Professor R M Fox
Conclusions
Scientific literature
The Helsinki Protocol and the AWARD Criteria
Adelaide Workshop on Asbestos‑Related Diseases (AWARD Criteria)
Other literature
Knowledge of the hazards of asbestos - scientific literature relied upon by Dr James Leigh
The scientific literature relied upon by Mr Kottek
Further Conclusions
Liability for negligence, breach of contract or breach of statutory duty
Knowledge of the hazards of asbestos
Evidence of Mr Peter Russell
Knowledge about risks of asbestos
Newspaper and media publications
Findings of negligence, breach of contract and breach of statutory duty against each of the three defendants
Differential risks
Approach to causation
More aspects of causation
Contributory negligence and voluntary assumption of risk - the effects of smoking
Significance of anti-smoking campaigns
Contributory negligence
Further amendments to apportionment legislation
Damages - estate claims and dependants' claims
1. Estate claim - South Australia
2. Estate claim - Western Australia
3. Dependants' claims
4. Dependants' claims from the date of death until judgment
5. Loss of superannuation benefits
6. Dependants' claims for loss of services rendered by the deceased
Forms of orders or judgment
EM HEENAN J:
Introduction
The plaintiff has sued each of the three defendants claiming damages for personal injuries and loss suffered by her late husband Paul Steven Cotton and, in addition, for damages for herself and his four dependant children consequent upon his death on 6 January 2002. In May 2000, at the unusually young age of 43 years, the late Steven Cotton was found to be suffering from inoperable cancer in the right lung and abdomen. Following this diagnosis he underwent extensive courses of chemotherapy and eventually radiotherapy which, to some extent, ameliorated the progress of the disease but were themselves very debilitating. The cancer metastasised to his brain causing a series of grand mal epileptic fits which were eventually brought under control but he died as a result of the disease leaving a family of his de facto widow, the plaintiff, and their four daughters then aged from 16 to 5 years.
Mr Cotton had smoked cigarettes regularly since he was 17 years of age and only gave up that practice after the diagnosis of his lung disease in May 2000. This 26 year period of regular smoking, in the opinion of all the medical consultants, contributed significantly to the development of his lung cancer but, in the view at least of the plaintiff's physicians and oncologists, the level and extent of the smoking would not ordinarily be expected to result in the development of such a lung cancer at this early age, the more common presentation of a cigarette‑induced lung cancer appearing for a person, with Mr Cotton's history of smoking, in his fifties or sixties. Accordingly, the diagnosis of Mr Cotton's cancer led to a retrospective inquiry about whether or not he had ever been particularly exposed to asbestos in a working or other environment because such exposure is also a recognised cause of lung cancer, and more potent when associated with regular cigarette smoking.
In fact Mr Cotton had been employed by the Engineering and Water Supply Department of South Australia ("EWSD") for three years between September 1975 and October 1978 working for most of that time in laying and fitting cement and asbestos water pipes in various parts of the Adelaide metropolitan area. This work had involved cutting, filing or rasping pipe ends on the work site in conditions which, it is alleged, gave rise to quantities of dust and other particles containing asbestos some of which were probably inspired by the deceased and other workmen on the site. The plaintiff's case is that no warnings were given about the danger of working in conditions involving exposure to cement/asbestos dust and that no precautions were taken to avoid or minimise the dust problem. The first defendant, the State of South Australia, operated and conducted the Engineering and Water Supply Department of that State at the time and was the deceased's employer. The plaintiff's case is that the cement asbestos water pipes which were supplied to the EWSD during those years were manufactured and delivered by James Hardie & Coy Pty Ltd - by which name the second defendant Amaca Pty Ltd was then called. The plaintiff's case against the second defendant is that no warnings were given nor any precautions taken or recommended about the methods of installation, use or fabrication of its cement asbestos water pipes by any end user.
After leaving the employment of the EWSD in Adelaide in October 1978 Mr Steven Cotton took other employment, mainly on sheep stations in outback South Australia and in the Northern Territory, before settling in Katherine where he met the plaintiff. The couple and three of their children who by then had been born moved to Western Australia in 1989 or 1990 and eventually settled in the Bunbury region, although moving several times within that locality, where Mr Cotton obtained employment with SCM Chemicals Ltd as the third defendant was then known. The period under review in this litigation covers the change of name of the third defendant from SCM Chemicals Ltd ("SCM") to Millennium Inorganic Chemicals Ltd (its present name) and therefore, throughout the evidence there are many references to the third defendant in both names and this variable usage is also followed in these reasons.
The industrial operation undertaken by the third defendant was the production of titanium dioxide (Ti O2), a brilliant white pigment used in painting and many other chemical and industrial uses. The product, as finally prepared by the third defendant, is very fine white powder packed in bags for delivery or shipment. The process of the production of the Ti O2 which mostly concerns this litigation occurred within a very large industrial building or shed (some 200m x 20m x 10m) known as the Band Drier Room ("BDR"). Within that operation large volumes of a viscous slurry of the product would be fed via various conveyors through a drying process which removed liquid leaving a very friable chalk‑like solid product. This was then readily crushed to the final powder form which was placed in bags for distribution.
This process, essentially a drying process, was carried out on a very large scale and the source of heat was from steam, generated elsewhere, and passed into the operating areas through large steam pipes which were used to heat the slurry and convert it into the cake‑like solid. In the early years the many large steam pipes in the factory were covered in asbestos cladding and asbestos was also used in insulating doors to the Band Drier machine within which this drying process was concentrated. In addition, the very extensive overhead roof of this large building was covered with asbestos cement sheeting.
The evidence for the plaintiff is that, within this working environment, the condition of the asbestos lagging on the steam pipes was deteriorating and that strips of the insulation would often, indeed all the time, break from the overhead lagged piping, and that the fragments and associated shredding would fall onto the floor of the workplace below. In addition, the opening and closing of the doors to the heating appliances in the BDR resulted in the asbestos insulation within them wearing and shedding, giving rise to further fragmentation of the insulation in the workplace. The plaintiff's case also is that the asbestos roof material was ageing and deteriorating and the dust and fragments from the overhead roof would also fall to the floor below. Shifts of workmen, including the plaintiff, were regularly required to sweep up the floor, clear it of these fragments and deposits and did so simply by the use of brooms. This process itself generated dust in which the plaintiff worked without any warning from the employer or any protection against the risk of respiration in an area containing dusty fragments of asbestos, including airborne asbestos particles.
During the time that Mr Cotton was working with SCM Chemicals the company took extensive steps to remove or reduce the risk of asbestos exposure to its workforce. There were a series of initiatives described by the third defendant. Firstly, independent consultants were brought in to assess and then to remove the asbestos lagging on the steam pipes and this was done, in controlled conditions, in late 1991 and early 1992. Next, another group of consultants were brought in to remove and replace the asbestos cement sheeting on the roofs and to install asbestos‑free roofing material. That was done from about 1994 in stages until 1998. Finally, the asbestos insulation behind the metal sheeting on the doors to the heating appliances within the BDR was removed and a form of asbestos‑free rock wool insulation was installed, again under controlled conditions in or about 1996. Consequently, the third defendant maintains that it was not possible, or at least it was highly improbable, that the deceased was exposed to ambient asbestos fibres during his employment with it which could have caused or contributed towards the development of his fatal lung cancer. The timing and duration of the asbestos removal programmes are, however, rather more complicated and extensive and are examined in detail later in these reasons.
At this point it is enough simply to note that the plaintiff alleges that the harmful and carcinogenic properties of asbestos were well‑known in public health circles and in industry long before his first employment with EWSD in Adelaide in 1975 and that, by that time, any employer who conducted a system of work which exposed employees to uncontrolled ambient atmospheric asbestos particles, asbestos dust or asbestos products was both negligent and in breach of relevant statutory provisions then applying or relating to occupational health and safety.
There is an issue in this case as to whether or not the levels of exposure, if any, occurring in the workplaces in which Mr Cotton was employed transgressed then applicable regulatory standards, but, otherwise, all the parties to this litigation have accepted that the harmful effects of asbestos in workplaces, and indeed elsewhere, were well‑known by 1975.
Each of the defendants denies that Mr Cotton was exposed to asbestos, whether in the two periods of employment identified or, in the first period of employment by asbestos cement products supplied by the second defendant. More significantly, in the light of the evidence examined later, each defendant also denies that any exposure to asbestos which Mr Cotton experienced, during either of the two periods of employment in Adelaide and Bunbury respectively, whether alone or in combination with each other, or in combination with his tobacco smoking, caused or contributed to the development of his lung cancer and his death.
The real point upon which this case appears to me to turn is whether or not the plaintiff has established to the requisite degree of proof that Mr Cotton's death was caused or contributed to by such exposure to asbestos as he actually experienced. This must be shown as distinct from a position where all that the plaintiff can demonstrate is that there may have been an elevated risk of Mr Cotton developing asbestos‑induced lung disease without any proof that in the circumstances of this case, that risk actually materialised. This issue loomed very large in the trial and was the subject of a great quantity of expert opinion from diagnostic clinical physicians, from epidemiologists, from occupational hygienists and epidemiological statisticians. As will be seen later in these reasons the controversy developed into a complicated scientific argument over the establishment or acceptance of criteria sufficient to allow a diagnosis of asbestos‑induced lung disease, and in particular lung cancer, and attempts at quantification of levels of atmospheric asbestos contamination sufficient to warrant a conclusion that a particular lung cancer, a disease known to result from one or more quite separate and distinct causes, did in this particular instance develop because of, or because of the contribution of, alleged asbestos contamination.
The more is this controversy significant in the present case because, unlike asbestos‑induced lung diseases such as mesothelioma or asbestosis, or even lung cancers associated with pleural plaques, themselves indicative of pleural irritation due to asbestos fibrosis or inspiration, there is no unequivocal diagnostic finding or feature of Mr Cotton's case which directly demonstrates asbestos as the principal, or a material, contributing cause. That is by no means uncommon in lung cancers where it is known that asbestos can be a cause, or a precipitating or promoting factor, but it does raise the question of whether or not Mr Cotton's lung cancer can be shown to have probably been caused or contributed to by the alleged periods of asbestos exposure during his working life. To a large degree each of the defendants tacitly asserts that Mr Cotton's fatal disease was caused solely by his smoking or that, at least, it is not possible for the plaintiff to prove on the probabilities that any occupational asbestos exposure contributed materially to it.
In addition to these main defences, the first and second defendants plead volenti asserting that Mr Cotton's long history of cigarette smoking must be regarded by him as a voluntary assumption of the risk of developing lung cancer or another fatal disease. To an extent this plea seems misplaced because the plaintiff has never alleged that the first or second defendants caused or is any way responsible for the deceased's smoking or its effects. However, the defence may be applicable if all that the evidence can establish is that the level of asbestos exposure to which Mr Cotton was subjected whilst employed by the EWSD was harmless for anyone who was not a chronic smoker and that, as a chronic smoker with an elevated susceptibility to the effects of asbestos, Mr Cotton knew and willingly accepted the risk involved in working in an environment with ambient asbestos. However that is not the way upon which the first defendant advanced this plea.
Similarly, the first defendant alleges that the cause of the deceased's cancer was a novus actus interveniens for which it was not responsible. In effect this appears to be a plea that it was the subsequent period of exposure of the deceased to asbestos at the workplace of SCM Chemicals near Bunbury which, if there was any asbestos contribution to the fatal lung disease, was the cause and not any earlier exposure during the employment with the EWSD. However, each defendant also alleges that Mr Cotton's smoking was a significant contributory cause of his fatal disease and that his engagement in tobacco smoking, particularly in the light of a long history of public health warnings of the hazards of smoking canvassed elaborately in the evidence, constituted contributory negligence.
The estate claims and the dependants' claims
The claims against the first and second defendant arise out of a series of events which, putting aside the long latency of asbestos‑induced diseases before the presentation of symptoms and disability, occurred during Mr Cotton's employment with the EWSD in Adelaide between September 1975 and October 1978. Conversely, and again putting to one side the initiating or contributing effect, if any, of prior exposure to asbestos in South Australia, the claims against the third defendant arise from the period of the deceased's employment in Western Australia with SCM/Millennium between April 1990 and his death in January 2002. In respect of each of the two sets of claims the plaintiff seeks damages on behalf of the estate of Steven Cotton (deceased) for pain and suffering, economic loss and other special damages which Mr Cotton himself suffered or incurred up to the date of his death. These claims, "the estate claims", are brought against the first and second defendants under the provisions of the Survival of Causes of Actions Act 1940 (SA) and against the third defendant pursuant to the Law Reform (Miscellaneous Provisions) Act 1941 (WA).
The distinct and special statutory cause of action for loss of dependency following the death of Mr Cotton is brought against the first and second defendants pursuant to the Civil Liability Act 1936 (SA) (which, uniquely, allows recovery of an allowance for solatium) and the Fatal Accidents Act 1959 (WA). Both causes of action for the alleged breaches of duty by the employer in South Australia are brought against the first defendant pursuant to the Crown Proceedings Act 1992 (SA). Similarly, in relation to both sets of claims, the defences of contributory negligence advanced against the first and second defendants rely upon the provisions of the Wrongs Act 1936 (SA) now the Civil Liability Act 1936 (SA) and, in relation to the claim against the third defendant, reliance is placed upon the Law Reform (Contributory Negligence & Tortfeasors' Contribution) Act 1947 (WA). As set out below, there are some differences in the nature and extent of damages recoverable in an estate claim and in a dependant's claim because of differences in the detail of the applicable legislation in South Australia and in Western Australia.
Choice of applicable law
However, it is now clear that, notwithstanding that this action has been brought and determined in this Court of Western Australia, the provisions of the legislation relating to the place of the alleged tort or breach of duty apply to the determination of the existence and quantification of the respective claims for damages - John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503; 172 ALR 625; Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 and Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 80 ALJR 646; (2006) 224 ALR 625. No question of the jurisdiction of this Court to entertain and determine the claims brought out of the alleged breaches of duty in South Australia exists and the authorities cited establish that the choice of law rules, both as to the law relating to the alleged liability of the defendants and the quantum, if any, of damages recoverable in the event of liability will be the respective laws of the States in which the alleged breaches of duty occurred.
This follows not only because laws relating to defences such as contributory negligence or to quantum of damages have been treated as being substantive rather than procedural notwithstanding the decision in McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 which recognised and preserved the former distinction between substantive law and procedural law, the latter being provided by the lex fori, because that result was superseded by the decision in John Pfeiffer (supra). Hence laws which previously may have been regarded as procedural, such as the discount rate to be applied for the assessment of damages involving future occurring economic loss, and indeed whether a component of interest may be added to an award of damages, or parts of it, and if so for what period and at what rates, should now be regarded as being matters of substantive law to be governed by the operative provisions of the lex loci delicti - John Pfeiffer (supra) 203 CLR 503 at 542 [97] ‑ [103].
In relation to the estate claims the legislation in Western Australia in most cases excludes the recovery of damages for pain and suffering, any bodily or mental harm or curtailment of the expectation of life. Also in the case of the estate claims the legislation of both States in most cases excludes recovery of damages for loss of earning capacity after the date of death. The consequence, therefore, subject to the exceptions to be mentioned, is that in the estate claims, if successful, the plaintiff may recover damages for:
•medical, hospital and other therapeutic expenses incurred for or on behalf of the deceased until his death;
•loss of earning capacity, if any, to the date of death; and
•funeral expenses;
•and (in the South Australian claims only) general damages.
Also available are damages for the recovery of the value of voluntary services. Excluded are the costs of obtaining a grant of probate or administration and the costs of administration: Gammell v Wilson [1982] AC 27 at 47 but funeral expenses may be recovered because of the provisions of the statutes. In neither jurisdiction are exemplary damages recoverable as part of the estate claim (Law Reform Act WA, s 4(2)(a), Survival of Causes of Action Act 1940 (SA), s 3(1)(b)).
In relation to certain claims for damages (but not this one) where the death results from a latent injury which is attributable to the inhalation of asbestos which has been caused by the act or omission giving rise to the cause of action where proceedings in respect of that cause of action had been instituted before his death and were still pending at the time of death, the estate action may include (in Western Australia) damages for pain or suffering or for any bodily or mental harm suffered by him or curtailment of his expectation of life. This is only possible where the death occurs after the commencement of the provisions of the Law Reform (Miscellaneous Provisions (Asbestos Diseases)) Act 2002 which came into operation on 21 March 2002, that is after the death of Steven Cotton. For those estate claims in which damages for future economic loss is recoverable the discount rate for the calculation of damages is fixed at 6 per cent (Law Reform Act, s 5(1)(e)).
In South Australia, however, under s 3(2) of the Survival of Causes of Action Act 1940 (as amended), if a person commences an action for damages in respect of a dust‑related condition and dies as a result of that condition before the action is finally determined, damages for pain and suffering, bodily and mental harm and curtailment of expectation of life are recoverable for the benefit of the estate of the person. In the SA legislation a dust‑related condition means a disease specified in the schedule or any other pathological condition of the lungs, pleura or peritoneum which is attributable to dust and the schedule specifically includes asbestos‑induced carcinoma as one of several prescribed dust diseases.
Under the legislation of which Lord Campbell's Act is the prototype, no non‑pecuniary loss is recoverable and exemplary damages are excluded - Reindel v James Hardie & Co Pty Ltd [1994] 1 VR 619. But in South Australia, unlike in Western Australia, there is provision for the payment of a solatium - Wrongs Act 1936 (SA), s 23A ‑ s 23C, but the allowance for a surviving spouse is capped at $4200 - Wrongs Act Amendment Act 1975 (SA) - and the maximum is conventionally awarded in South Australia in most cases - see Luntz, "Assessment of Damages for Personal Injuries and Death", 4th ed, [9.7.2]. However, the plaintiff did not seek any such allowance in this case and no party addressed any submission to this point.
Despite the dual claims, it is established that the benefits accruing to dependants by reason of the death of the deceased must be taken into account in reduction of the claim for dependency under the dependants' action so that, where there is recovery of damages in an estate action which goes to benefit the dependants entitled under the dependants' action there must be, pro tanto, a reduction of the damages in the latter claim.
The present action was commenced by Steven Cotton in person before his death and, since then, has been continued by the plaintiff, his de facto widow and executrix. After his death the claims were expanded, by amendment, to include the fatal accident claims under the legislation of both States.
It follows from the foregoing, therefore, that if the plaintiff is successful in her claims against all the defendants, the estate claim against the third defendant cannot include any component for loss of expectation of life, damages for pain and suffering or loss of amenity or loss of earning capacity subsequent to the date of death, but that under the applicable law of South Australia the estate claim will accommodate each and all of those heads of damages. Similarly, if the plaintiff is successful in her actions against each of the defendants, the dependants' claim, against the first and second defendants arising from the alleged breaches of duty in South Australia may include a component for solatium but no such component will be recoverable against the third defendant in relation to the alleged breaches of duty occurring in Western Australia. All this will give rise to some complexities of calculation if and when it is necessary to set off the benefits derived under the estate claims from the damages recoverable under the dependants' claims and in determining the different extent of the liabilities of the several defendants for the several causes of action. The details of these calculations will be addressed later when the quantification of damages, if recoverable, is undertaken.
I therefore accept the submissions of the plaintiff and both the first and second defendants that the law applicable to both the estate claim and the dependants' claim for damages arising out of the deceased's employment in South Australia is the law of the place of the alleged wrong - that is, the law of South Australia: Distillers Co (Bio‑Chemicals) Ltd v Thompson [1971] 1 NSWLR 83; [1971] AC 458; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 567 and John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [87]. Each of those claims now originates in or derives from statute law, rather than from common law; namely the Survival of Causes of Action Act 1940 (SA) for the estate claim, and the Wrongs Act (now the Civil Liability Act 1936 (SA)) for the dependants' claim. As they provide the substantive law, this also determines that the law relating to the measure or quantum of damages, discount rates and other rules for the quantification of damages applying in South Australia shall apply to the determination of any damages recoverable in this first action - a proposition confirmed by subsequent decisions of the High Court in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331; Campbells Cash & Carry v Fostif Pty Ltd [2006] HCA 41; (2006) 229 ALR 58 and Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 224 ALR 625. None of the parties contended other than to the effect that the law of South Australia should be applied in relation to the claims against the first and second defendants, including liability and quantification of damages, if any. Furthermore, pursuant to the law of South Australia, any claims of damages arising from the estate claim or the dependants' action are subject to the potential apportionment for contributory negligence of the deceased - see s 27A(8) and (9) in the Civil Liability Act 1936.
Grant of representation and testamentary distribution
In September 2005, that is during this trial, the plaintiff applied for a grant of probate of a will of Paul Steven Cotton which was dated only "1989" without specifying the day or month of execution. This document, said to be Mr Cotton's last will and testament, appointed Teresa Ellis as his sole executor and the sole beneficiary of his entire estate. The application for probate was supported by an affidavit from the plaintiff annexing a statement of the deceased's assets and liabilities. That statement purported to place a value on the present claim for damages of $360,561.68 which was listed as part of the moveable property of the deceased. Putting that to one side the only other assets were:
Jewellery and personal effects $1000
Commonwealth Bank Everyday Account $200
1989 Nissan Pintara Station Wagon $1000
$2200
Liabilities:
William Barrett & Sons - funeral expenses $5209
Legal fees due to Slater & Gordon, lawyers $2000
$7209
Deficit $5009
By the completion of the trial no grant of probate had been made, but the position was left by the parties that the court would be notified, or could ascertain, if and when a grant of probate was made in which case the title of the plaintiff to sue on behalf of the estate would be established and would become retrospective to the date of death - see Administration Act, s 8 and Re Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475 at 491. The action is to be brought by the personal representative of the deceased but if no grant of representation has been made within six months of the death the action may be brought by any dependant - Fatal Accidents Act, s 9 and Civil Liability Act 1936 (SA), s 23 and s 27.
Since the end of the trial I have had notice, through the Court's own processes, that probate of the will of the deceased was granted to the plaintiff on 27 September 2005. The matter was left on the basis that the parties had liberty to apply in relation to any matter arising from the pending grant for probate. No attempt has been made to avail of this opportunity and, accordingly, as I am satisfied that a grant of probate has been made, as described, and I conclude that the plaintiff has the standing to bring and pursue the estate claims.
The evidence is that the deceased's car was taken over and used by the family before being sold for a modest amount and that no advantage was derived from his other assets which were utilised to defray expenses associated with the administration of his estate. There is no surplus for division to the sole beneficiary: the widow. I have no hesitation in concluding that the only assets of value are the claims for damages instituted by the deceased himself and pursued by this current litigation. To the extent that the estate claims succeed the damages will become an asset of the estate distributable to Teresa Elizabeth Ellis alone. Accordingly, in the dependants' claims, the widow will have to bring to account against any assessed loss of dependency, the value of the benefit derived from the estate action which will diminish and may well extinguish that claim. By contrast, however, the four daughters would have their respective losses of dependency undiminished because none succeeds to any benefit under her father's will.
The periods of the deceased's employment with the defendants
Paul Steven Cotton was first employed by the EWSD of South Australia at its Marden depot in the eastern suburbs of Adelaide on 4 September 1975. His initial role in that employment was as a gardener for about six months but from early March 1976 he joined a gang of pipe layers whose responsibilities were to lay water or sewerage pipes in suburban areas and to do so by laying asbestos cement piping, usually of about four inches in diameter, and that the task involved cutting and shaping these pipes in the field - processes which generated quantities of dust containing asbestos and cement fibres.
The controversy about the frequency and concentration of exposure to dust containing asbestos particles can be deferred for the present but it was certainly a daily occurrence for the five day working week which the deceased put in during this interval of a little over two and a half years.
Despite an issue arising on the pleadings over the identity of the manufacture and supply of the cement and asbestos pipes used for these purposes by the EWSD, the evidence clearly establishes that the pipes were manufactured by the second defendant under its name of James Hardie & Coy Pty Ltd at its Elizabeth manufacturing plant in South Australia and were supplied direct by the second defendant to the first defendant for use in the Adelaide water and sewerage system. The only doubt which arose about the source of the pipes can be attributed to the deceased Steven Cotton himself who, when giving evidence before the Workers' Compensation Workcover Review Directorate on 16 October 2000 in proceedings in which the identity of the supplier or manufacturer of the pipes was not a material issue, said that he believed that the pipes had come from Humes. However, other evidence established that the pipes which Humes manufactured were made of cement only, were of a much larger diameter and were manufactured in Tasmania. The only cement asbestos pipes sought and installed by the EWSD of South Australia at the time were Hardie's cement and asbestos pipes from Elizabeth.
The facts of significance emerging from this history are that Mr Cotton had an aggregate period of exposure to ambient dust containing asbestos particles on a regular week day basis for two and a half years and that the commencement of the period of exposure in March 1976 is slightly more than 24 years before the diagnosis of his lung cancer in May 2000, signifying that this is within the possible period for the latency of his lung disease if it were entirely asbestos caused. He had, of course, commenced smoking about the time he turned 17 in October 1973. His period of exposure to asbestos dust when employed by the first defendant coincided with a time when he was smoking regularly. He had indeed been smoking regularly for about two and a half years before he commenced working with those pipes.
On moving to Western Australia in 1990 Mr Steven Cotton first obtained employment with the third defendant, then SCM, on 19 April 1990 when he was engaged as a full‑time casual employee and worked in that role until 19 February 1991. His employment then ceased but he was re‑engaged, again on a full‑time casual basis on 14 October 1991, and worked until 28 January 1993. There was then a short break of two weeks before he was re‑engaged on 11 February 1993, later being made a full‑time permanent employee and working continuously for the third defendant until the diagnosis of his disease on 8 May 2000.
Immediately upon the diagnosis being made he was classified as totally and permanently incapable of further work but remained in the employ of the third defendant and in receipt of workers' compensation and other benefits until his death on 6 January 2002. Consequently, the aggregate period of his employment with the third defendant before the diagnosis of his disease was about 10 years and three weeks - from April 1990 until early May 2000, including two periods totalling about 8½ months for the interruptions to that employment. In other words there was a maximum period of about nine years and four months during which he was working on the Australind work site. Not all of this involved actual or potential exposure to asbestos because Mr Cotton was working in other places besides the large factory which has been described as the BDR. Nevertheless, the asbestos removal programmes had been carried out in stages so that, according to the third defendant, the working environment was largely asbestos free by 1997. This means a total possible period of exposure to asbestos during his employment with the third defendant of about 6½ years. This also coincided with a time when the deceased maintained his daily smoking habit.
This period of potential exposure to asbestos while in the employ of the third defendant, provisionally estimated at about six and a half years duration, began not earlier than 11½ years after he had stopped working with the concrete asbestos pipes while with the EWSD in Adelaide. If the deceased's lung cancer was wholly caused by exposure to asbestos during his employment with the third defendant, then the maximum latency period before diagnosis would be just over 10 years which, as some expert evidence later examined suggests, would be rather short. However, it is not possible to undertake an adequate consideration of this case by attempting to segregate factors such as the separate episodes of alleged exposure to asbestos, assumed latency periods or other circumstances because the evidence shows that a combination of causes acting together, rather than any one alone, could have caused the disease.
The description of the form of cancer suffered by Mr Cotton was given by Professor Musk as "non small cell carcinoma with features of squamous cell carcinoma". The pathologist Dr Shilkin reported that the tumour was a "poorly differentiated squamous cell carcinoma of the lung". Professor Musk testified that there are a variety of carcinogenic tumours including squamous carcinoma, large cell (or adeno‑carcinoma) and small cell carcinoma, but that it is not possible to identify the cause or precipitant of the cell mutations leading to the development of the cancer from the particular variety of the lung tumour. Similarly, the site of the origin of the development of the tumour in the lung will not reveal the cause of the tumour either. Professor Musk explained how that, sometimes, the diagnostician may find evidence of asbestos in the lung biopsy which may lead one to think of asbestos as a cause of the tumour but even this may not be determinative and that the ultimate diagnosis is essentially a clinical one.
The exact pathogenesis of lung cancer whether caused by smoking or by asbestos or a combination of both is not fully understood, yet the causal relationship has been known to medicine and industry for many years. The plaintiff's lung cancer is quite distinct from other asbestos‑related lung diseases such as mesothelioma and asbestosis. Mesothelioma is a cancer of the mesothelia cells, that is cells in the wall of the lung and the lining of the chest wall. This disease was endemic in Turkey where there were large exposures to asbestos in the form of aryionite. The mechanism of the disease was thought to be that the inspiration of asbestos fibres results in them becoming lodged in air sacs within the lung which are only microns away from the pleural surfaces resulting in a migration of the asbestos fibres from the sacs to the pleura and mutation in the lining of the chest wall or mesothelium. This form of carcinoma is readily recognisable as asbestos caused and has been studied in considerable detail resulting in a large measure of international consensus about cause and latency period.
Like other forms of asbestos‑induced disease lung cancer is dose related and the studies have led to various attempts to establish protocols for the diagnosis of asbestos‑induced lung cancer, one of which is the Helsinki Protocol upon which the defendants place great reliance as excluding any permissible attribution of asbestos as a cause of Mr Cotton's lung cancer. However, the plaintiff's treating consultants and other expert witnesses respond, first, by observing that the Helsinki Protocol was only ever an attempt to reach a diagnostic consensus for the recognition of lung cancer and then only for a particular form of statutory compensation then available in Scandinavian countries. They observe that there are limitations and uncertainties about the Helsinki Protocols but that they are not appropriate to exclude cases such as the present.
Professor Musk also distinguishes the disease of asbestosis from the cancer suffered by Mr Cotton. While asbestosis is also dose related, it is a form of interstitial fibrosis caused by the inspiration of asbestos fibres causing microscopic irritation and scarring to the lung tissues. It sometimes may lead to consequent mutation and a form of cancer from this fibrotic origin. There was no asbestosis discovered in the investigations of Mr Cotton, nor were any pleural plaques reported on X‑ray. These are formations involved in the thickening of the lung tissues in various areas and are thought to indicate the effects of accumulated irritation of the cells in those areas by asbestos fibre deposits which had been inspired over time but which may have been partly or totally expelled through mucous effusions and other protective responses of the body itself. Professor Musk explained, and all the other consultants accepted, that all three diseases, lung cancer, mesothelioma and asbestosis, were dose responsive in the sense that the higher the dose of exposure to asbestos the greater the risk of contracting the disease and that there was an approximately logarithmically linear relationship between the total dose exposure over time and the development of the disease. To identify the relationship as being logarithmically linear, of course, denotes it as being exponential in the sense that the greater the aggregate exposure, the greater the risk at an ever increasing magnitude.
Professor Musk maintained that there was no demonstrated threshold of exposure to asbestos at which the risk of lung cancer or other asbestos related disease disappeared or was regarded as tolerable. While accepting this proposition in general, a number of the consultants for the defendants nevertheless advanced theses which involved, to a greater or lesser extent, propositions that exposure at less than certain levels (the identification which was a further source of controversy) meant that attribution of asbestos as a cause of the carcinoma is not justifiable. These theses, in effect, if not overtly, advanced the argument that the plaintiff should fail unless a minimum degree of aggregate exposure to asbestos could be demonstrated.
Personal background
Paul Steven Cotton was born at Adelaide on 6 October 1956. He lived with his family in a brick house in an Adelaide suburb and there is no suggestion of any special exposure to asbestos or to asbestos fibres during his childhood or adolescence beyond the background levels of exposure experienced by all members of the general population. He left school at the age of 16 and his subsequent employment history was as follows:
•1972 - employment with a Mr Ted Hamood in a wood factory. There his role was to pick up pieces of wood, to stack wood and to sweep up. The work area was a tin shed.
•1972 - employment as a brickies labourer with a builder Mr Bob Bennett. His role was to carry bricks and materials and to perform general manual labour.
•1972 - Employment as a general hand at Mt Victor Station. Mr Cotton's role was as a general cowboy mustering sheep and fixing fences.
•1972 - employment as a general hand on McCoy Station performing the same general work as at Mt Victor Station for the same employer.
•1975 - employment at the South Australian Engineering and Water Supply Department. Initially, for a period of six months, Mr Cotton was engaged in the gardening department but he then transferred to a pipe laying gang from the Marden depot where his work involved cutting and laying asbestos concrete pipes throughout various regions of the eastern suburbs of Adelaide and sometimes beyond. This period of employment relates to the plaintiff's claim for damages against the first and second defendants and it lasted until 1978.
•1978 - stock work with Delamere River Ranch in the Northern Territory.
•1979 - gardening and general labouring work for the Katherine Town Council.
•1983 - employment as a general hand at meat works involved in trimming hides and general clean‑up. The meat work sheds were constructed of brick and tin and he was not conscious of any exposure to chemicals.
•1984 - Astral Plumbing - employed to carry materials and dig trenches and holes to lay pipes in position. The pipes worked on were PVC and he was not involved in the use of adhesives or the heating or burning of pipes.
•1990 - employment with SCM Chemicals - Millennium Inorganic Chemicals until retirement in 2002. This relates to the claim for damages against the third defendant and more detailed descriptions of this are set out later.
After moving to Western Australia in about 1990 Mr Cotton and his family lived at Dardanup in a brick and tile home at 10 Trustee Place. From there the family moved to 20 Main Way, Clifton Park, in Bunbury and this, too, is a brick and tile home.
On the evidence which he gave in the Workers' Compensation Review proceedings (Exhibit 2) and in his statutory declaration of 2001 (Exhibit 1) Mr Cotton said that he began smoking at the age of 17 but that he quit smoking after his diagnosis with cancer in May 2000. On his evidence, he smoked regularly about 15 cigarettes (less than a pack) per day. Counsel for the third defendant refers to a reference in Exhibit 57 (clinical notes from Sir Charles Gairdner Hospital, recording a statement of smoking 20 per day).
Family and Dependants
Paul Steven Cotton met the plaintiff Teresa Elizabeth Ellis at Katherine in about 1981. She had been born in the United Kingdom and came to Western Australia with her mother at the age of 10 and grew up, was educated and, initially, was employed in the Perth area. When she was about 18 or 19 years of age she embarked on travel throughout the Northwest and into the Northern Territory and it was there that she met Paul Cotton. They started living together about eight months later and remained together until his death. The couple had four children:
•Amy Rae Cotton - born 8 May 1985
•Kristie Lee Cotton - born 12 December 1986
•Mandy Jane Cotton - born 10 October 1988
•Madeline Marie Cotton - born 21 January 1996.
Initially there was a plan for the two to be married but as they could not decide on where to hold the wedding the ceremony was simply put off and never actually eventuated. They lived in Katherine with the three children they then had before coming to Western Australia in 1989 and it was in Perth that Madeline was born. The family lived with Ms Ellis' parents in Perth for several months before moving to Bunbury where they lived in an SHC home at Withers before moving to a rental property in South Bunbury. Paul Cotton was seeking work and soon obtained a position as a full‑time casual worker at Millennium Inorganic Chemicals, then known as SCM Chemicals, at Australind. Later, the family moved to Stanbury Crescent in Bunbury, later to Dardanup in about 1993 or 1994, then to another home in Dardanup before moving back to 20 Main Way, Clifton Park, Bunbury, where the family was living when Paul Cotton died.
Mrs Ellis describes Paul Cotton as complaining, uncharacteristically, of chest pain and feeling tired in about April 2000 and it was this which led him to see Dr Mincham who ordered the chest X‑rays.
History of deceased's health
The medical evidence, beginning with Exhibit 57 - a letter of referral to Dr Tribe at SCGH from Dr G Mincham of the general medical practice at Bunbury - reveals that Mr Cotton had presented for a routine work‑screening chest X‑ray which had shown right mediastinal masses. He was said to be a smoker and had positive hepatitis C serology. Dr Mincham asked Dr Tribe to see him for further investigation and management. The initial notes at SCGH (Exhibit 57) show that Cotton was examined on 8 May 2000 and noted to be a 43‑year‑old process worker for Millennium Organic Chemicals. He had had a chest X‑ray on 27 April 2000 and a reported finding of a mass in the right pera trachial and right hilar region. The differential diagnosis was then noted as being lymphoma, first grade lung cancer or sarcoidosis. His previous medical history was noted as including hepatitis C from maternal foetal transmission. His mother had died from hepatitis C. The family history showed a paternal grandmother who died of bowel cancer at the age of 57. The patient's own history was that he lived with his wife and four daughters in Bunbury, smoked a packet a day but said he would give it up and was a non‑drinker. On examination he was noted to look well and a series of detailed investigations were ordered.
The initial chest examination of Paul Cotton by X‑ray conducted on 27 April 2000 was reported by the radiologist, Dr John Pederson (Exhibit 225) as follows:
"Chest:
Heart size within normal limits. Abnormal soft tissue seen in the right para tracheal and right hilar region. The left hilum is relatively normal in size.
There is no parenchymal opacity or pleural fluid.
Conclusion:
Abnormal right hilum and right para tracheal lesion. Further investigation with CT is recommended. Differential diagnosis would include lymphoma, primary lung cancer and possibly sarcoidosis although bilateral hilar lymphadenopathy is usually present with this disorder."
There was then a CT scan of the chest performed at Sir Charles Gairdner Hospital on 12 May 2000 and reported on by the Radiologist Dr Thompson (Exhibit 227) which included the following:
"In the chest there is a 2 ‑ 3 cm mass located in the anterior portion of the right upper lobe.
In addition, there is a right hilar lymphadenopathy and extensive mediastinal lymphadenopathy. A large lymph node mass is present in the retrocaval/pretracheal location and nodal disease extends up almost to the level of the sternal notch.
There are contra lateral nodes and subcarinal nodes also.
Both axillae are clear.
The lung windows show two small nodules in the right lung, the most anterior of which is quite dense and may well be calcified. The other lesion is not necessarily a metastisis and has a rather teardrop shape on one scan. Otherwise the lungs are clear.
Below the diaphragm the spleen is noted to be significantly enlarged and contains a 4 cm low density focus in its posterior aspect. The liver appears normal but is not seen in its entirety. There are some tiny nodes in a retro pancreatic location and small retro peritoneal nodes are seen around the aorta and vena cava at the level of the renal hilar.
Conclusion:
There is evidence of an extensive neoplastic process. The mass at the lung and adjacent mediastinal lymphadenopathy suggests a lung primary but the large spleen and low density lesion in that organ, as well as the extensive abdominal lymphadenopathy, suggests lymphoma. Differential would also include widespread metastatic disease from some other primary such as a melanoma."
Later, in May 2001, Dr Peter Leaver of SKG Radiology reported to Dr Mincham upon a cranial CT scan conducted after a history of headaches lasting three weeks and vomiting. The findings of these axial brain scans (Part of Exhibit 84) were:
"There are two mass lesions situated within the medial aspect of the right frontal lobe, associated with marked surrounding oedema. The largest lesion, at the level of the frontal horns, abuts the anterior falx. This measures 2.5 x 2 x 1.5 cm and demonstrates substantial mass affect, with effacement of the frontal horns and sub falcine herniation of the right frontal horn. Oedema extends into the left hemisphere via the corpus callosum. A second, smaller, 1 cm contrast enhancing nodule is present more inferomedially within the right frontal lobe. Again, this has substantial surrounding oedema and displacement of the midline towards the left. No further focal enhancing lesion is identified. The right lateral ventricle and the right sylvian fissure are generally effaced.
Conclusion:
Two contrast enhancing masses in the right frontal lobe, as described, compatible with metastatic disease. Significant mass effect is identified in relation to both nodules."
In the investigations which were conducted which led to the diagnosis of Mr Cotton's lung cancer in May 2000 it was discovered that he showed positive symptoms for hepatitis C and for hepatitis B and this was reported on by Professor Musk following the consultation of 16 June 2000. There was some enlargement of his liver but no evidence of hepatic fibrosis or other symptoms of liver disease. Doctor Kendall, in his reports of 13 October 2000 (Exhibits 67 and 69), reported that the hepatitis C infection was due to a blood‑borne route of viral infection, probably due to a maternal infection which had been transmitted to him in utero. There was, therefore, the potentiality for a future liver disease had Mr Cotton not died of his lung tumour but there was no clear indication that this was imminent or inevitable. The prospect of future liver disease and potential for a shorter life expectancy or working life can therefore only be regarded as contingencies to be taken into effect in the event that damages are recoverable.
Similarly, Mr Cotton showed signs of chronic bronchitis and, in the extensive medical investigations conducted from May 2000, described producing approximately a quarter of a cup of white sputum per day. This was, apparently, associated with his long history of tobacco smoking. However both Dr Musk and Dr Kendall concluded that there was no reduction in lung capacity, that his spirometry tests were within the normal range, and that there was no emphysema. Dr Musk excluded any chronic obstructive airways disease (COAD). Nor had there been any symptoms of breathlessness recorded preceding the diagnosis of lung cancer in May 2000 which, it seems, was an entirely unexpected development.
Mr Cotton, in October 2000 when giving evidence to the Conciliation and Review Officer under the provisions of the Workers' Compensation Act (Exhibit 2), described (at 47) feeling ill in early 2000 and, therefore, attending for a company medical examination under the auspices of the third defendant. In his words that investigation revealed a "big shadow on his lung" leading to the discovery of a cancerous mass in his lung and stomach for which he saw Dr Mitcham in Bunbury, Dr Tribe at the Sir Charles Gairdner Hospital in Perth and Dr Spinx. He commenced chemotherapy under the direction of Dr Beer at SCGH and later by Dr Martin Buck in Bunbury.
He was admitted to Sir Charles Gairdner Hospital on 11 May 2000 and, following the diagnosis, was told that he may only have about six months to live. Dr Musk later said that his condition at that time was that Mr Cotton had a large cell cancer in the upper lobe of the lung with no bony metastatic spread. Enlarged lymph nodes were discovered on 12 May 2000 but at that point there had been no weight loss. This was a Stage IV lung cancer which had spread to the lung and to the abdomen. He was placed on chemotherapy and completed three courses of that treatment lasting until February 2001 under the supervision of Dr Martin Buck who saw him first on 15 September 2000. That was the full course of chemotherapy treatment but by 6 July 2001 he had developed brain metastases which eventually led to seizures and loss of control.
As earlier noted, Mr Cotton died on 6 January 2002 then aged 45 years. Professor Musk and the other specialist physicians and oncologists regarded him as being very young to develop lung cancer and, indeed, as being at the lower limit of the reported ranges for the incidence of that disease which, while common with chronic smokers, usually did not present until their fifties or sixties. Mr Cotton's death certificate (Exhibits 32 and 222(5)) shows that the attributed cause of death was carcinoma of the lung (squamous cell) (21 months), smoking, asbestos exposure (20 years), (contributory causes) cellulitis, hepatitis C and nominates the certifying medical practitioner as Dr P Terren, from whom, however, no evidence was adduced at the trial.
After the initial diagnosis, Mr Cotton was referred to Professor A W Musk, head of the Department of Respiratory Medicine at SCGH. In a report of 16 June 2000 (Exhibit 56), Professor Musk described the presentation as follows:
"He told me that a routine chest X‑ray taken because of his work at Millennium Chemicals in Bunbury on the 28th April was abnormal, showing a mass in the right upper lobe. He was referred by Dr Minchin to the Sir Charles Gairdner Hospital for investigation. CT of his chest on 12 May 2000 confirmed a mass with extensive mediastinal lymphadenopathy in addition to extensive abdominal lymphadenopathy. Fine needle aspiration of the right upper lobe mass on the 16th May 2000 under CT guidance revealed non small cell carcinoma with features of squamous cell carcinoma. A bone scan on the 11th May showed no evidence of metastases. He has commenced on chemotherapy with Gemcitabine and Cisplatinum for Stage 4 non small cell bronchiogenic carcinoma on 22nd May 2000.
In the past he has been found to be suffering from hepatic cirrhosis due to hepatitis C on liver biopsy in November 1999. This was attributed to a blood transfusion given to his mother before he was born. He has also suffered from arthritis in his right wrist since a fracture of his scaphoid at the age of 17. He had a lipoma removed from his thigh in January 2000.
He said that he smoked about 15 cigarettes a day from the age of 16 to 43 years, stopping two months ago when he became unwell.
His mother died at the age of 68 from cirrhosis and hepato‑cellular carcinoma. His father died at the age of 51 from bowel cancer. He has a sister and a brother in their early fifties who are well. He has daughters aged 15, 13, 11 and 4 who are all well ... He says he can still keep up with others of his own age when walking and still plays basketball with his children. His weight has been steady. He usually has a cough productive of about a quarter of a cup of white sputum. There has been no haemoptysis. He had some pains across the front of his chest prior to commencing on chemotherapy here recently but these have improved.
On examination he appeared heavily built. His pulse was 80 per minute and regular and blood pressure 120/70 mm Hg. His heart sounded normal. There was no lymphadenopathy or clubbing. His chest sounded clear.
His FEV1/FVC today was 3.9/5.3 litres (predicted 4.1/5.0).
... His prognosis for survival is about three to six months."
Later in October 2000 the solicitors for each of the second defendant and the third defendant arranged for Mr Cotton to be examined on their behalf by Dr Peter Kendall FRACP, FCC P a consultant physician and specialist in respiratory medicine. Dr Kendall reported to the solicitors for those defendants separately on 13 October (Exhibits 67 and 69). While the two reports are not identical they nevertheless reveal Dr Kendall's conclusions. Mr Cotton was seen by Dr Kendall on 13 October 2000 and at the time Dr Kendall had a copy of the report of Professor Musk of 16 June 2000 already mentioned (Exhibit 56). Dr Kendall obtained a history of a fairly normal childhood and of Mr Cotton smoking from the age of 17, continuing until recent times with an average of about 12 cigarettes a day over those years which, Dr Kendall calculated as 12 ‑ 14 pack years. Dr Kendall noted that a similar calculation based on a slightly higher incidence of smoking described to Dr Musk would produce a calculation of 20 pack years of smoking. Cotton had reported a smoker's cough for about five years and Dr Kendall noted that his father also smoked, although Mr Cotton denied any significant side stream smoke from his father when he was a boy.
Dr Kendall recorded as being important, the history of hepatitis C and cirrhosis of the liver and referred to a liver biopsy having been done recently by Dr Martin Reeve in Bunbury before going on to observe:
"There seems little doubt that he has had asbestos exposure whilst working for the South Australian Engineering and Water Supply over a period of two years. There is also little doubt that he has had some exposure to asbestos while working for Millennium Chemicals in the Bunbury region.
He has been a little short of breath for about a month and was feeling quite tired and lethargic at the point when he had a 10 year medical at work including a chest X‑ray. This is when the lung cancer was diagnosed earlier this year. He tells me he has been having chemotherapy since May and the second-hand report from his Oncologist describes a 50% reduction in the size of the cancer in his chest and in his abdomen.
On physical examination he was pale and sallow, chest and heart examinations were normal. He has an enlarged liver, particularly the left lobe of the liver and he has signs of cirrhosis, including many spider naevi."
The contents of the two reports of Dr Kendall (Exhibits 67 and 69) then diverge slightly but, paraphrasing the two, the following points and opinions emerge:
•There is no doubt that Cotton has lung cancer and that it may be related to asbestos.
•His is a well‑advanced cancer, being inoperable and therefore not easily curable. It was, however, at that time responding to chemotherapy to some extent.
•At the time he was totally and permanently disabled by his condition.
•Although Dr Kendall had not seen the X‑rays, Mr Cotton does not appear to have asbestosis or asbestos‑related pleural plaques. In Dr Kendall's opinion it was possible to say that lung cancer is caused by exposure to asbestos in the absence of asbestosis or asbestos‑related pleural plaques.
The solicitors for each of the second defendants asked, in slightly different ways, for Dr Kendall's opinion about the cause of Mr Cotton's cancer. The two explanations which were given, because of the difference phraseology in the questions, are to be found respectively in Exhibits 67 and 69 as follows:
Exhibit 67:
"In relation to the cause of Mr Cotton's lung cancer, the literature repeatedly supports the notion of a straight line dose response curve between cigarette exposure and lung cancer and so there is no doubt that his smoking has contributed to his lung cancer. By the same token of course with a relatively low consumption of cigarettes, it is relatively speaking much less likely that he would have developed a lung cancer from smoking. In clinical experience it is unusual to see lung cancer with an exposure of less than 20 pack years. Again from the literature, the risk of developing lung cancer in smokers is much higher than the risk of developing lung cancer in people who are exposed to asbestos. Furthermore, when one is exposed to both noxious stimuli the risk of developing lung cancer is multiplied not added."
And, in Exhibit 69 to the question posed by the solicitors for the second defendant, Dr Kendall wrote:
"In relation to question seven I do not think this is a simple problem and I cannot say whether or not his lung cancer is due to smoking or inhalation of asbestos products or some other cause. Rather I think it is a combination of all three. He has a significant risk of developing lung cancer from cigarette smoking but his total intake of cigarettes is rather small and clinical experience shows that it is unusual to develop a lung cancer with less than 20 pack years of cigarette exposure. We certainly see people with lung cancer from very small amounts of asbestos exposure. My further postulation is that his immune system is probably not normal because of chronic Hepatitis C and possibly because he has worked in conditions of low level background of ionising radiation. I stress that these last points are speculative."
The allusion to ionising radiation is explained in Exhibit 67 where Dr Kendall observed that the work site at Millennium Chemicals was associated with a low level of ionising radiation and that this may have acted as a catalyst in the development of the lung cancer. Finally, in addressing a question about the period of latency before the emergence of detectible signs of the disease, Dr Kendall wrote that experience demonstrated that a longer latency period is usual, commonly of the order of 20 years, but because of the possible factors of immuno suppression due to hepatitis or the hypothosised ionising radiation, this may not be the case for this patient. Again, with reference to the time incidence of exposure to asbestos, Dr Kendall observed that it was more probable that the exposure 20 to 30 years before was more important than the exposure more recently but that he was not sure that that could be proved.
Following the diagnosis of the lung and abdominal cancer at SCGH in May 2000, Dr K B Shilkin of the hospital and university pathology services reported on Mr Cotton's case to Dr F Heyworth, the chairman of the Pneumoconiosis Medical Panel. His report (of 16 June 2000, Exhibit 81) followed an examination of nine cytology slides taken from bronchial washings and fine needle aspiration biopsy on 11 and 16 May. Dr Shilkin reported that the bronchial washings were unhelpful. Tumour material was present in the lung aspiration sample and was identifiable in both the smears and the cellblock sections. In the smears there were many small groups and individual tumour cells. He noticed these to have hyperchromatic and pleomorphic nuclei and variable amounts of harsh eosinophilic cytoplasm. He observed that these lie in a background of considerable necrosis. In the cell block sections there were small sheets of cells and groups of just a few cells as well as individual cells lying in a necrotic background. Although the cells were poorly differentiated there were features of squamous origin, including the appearance of the cytoplasm and some intercellular bridges in some areas. Dr Shilkin's conclusion was:
"There is no lung tissue in the biopsy. There is no evidence to suggest malignant mesothelioma in this material. The appearances here are of a poorly differentiated carcinoma of the lung in keeping with poorly differentiated squamous cell carcinoma.
In summary, in my opinion, the tumour here is poorly differentiated squamous cell carcinoma of the lung."
With regard to discounting the claim of the plaintiff, Ms Ellis, because of the prospects that her loss of dependency may be replaced, in whole or in part, by a subsequent financially beneficial remarriage, the situation is that, by the date of trial Ms Ellis had developed a relationship of a kind with another man whom she had been seeing by then for about 10 months. This man had held a variety of positions on mines elsewhere in the State and a series of employments. Ms Ellis was uncertain about whether or not this relationship was likely to lead on to something more but was emphatic that this man did not provide for her financially in any way and had not done so. As she said, at t/s 196, he was not looking after her or the children or supporting them in any way. It is to be expected that Ms Ellis would seek company and even, perhaps, consider the possibility of a remarriage some time in the future, but there does not seem to be any real probability yet that she will marry this gentleman or anyone else in the near future or that significant financial benefits for her would result if she were to do so. There is, of course, a chance of this happening and I consider that an allowance for the prospects of this occurring should be included in the general discount for vicissitudes of life which must be made. However, this aspect of the reduction for contingencies or vicissitudes can apply only to claim for loss of dependency by Ms Ellis herself and not to any of the claims by the four children.
The plaintiff has put the claims for loss of dependency for each of the four daughters on the basis that, had Mr Cotton not died when he did, each of his daughters would have been financially dependent upon their father until about the age of 20. The defendants respond by saying that this is an overstatement of the probable periods of dependency and that it is more probable than not, and that subsequent events have suggested, that the daughters would have left home and become independent by the ages of 18 or 19. These subsequent events may not be entirely reflective of what would have happened had Mr Cotton still been alive. The loss of his income no doubt severely diminished the resources of the household and so provided a significant incentive, if not a necessity, for the older girls to seek employment and financial independence for themselves sooner rather than later. Another consideration is that, even when a child obtains employment and leaves home for the first time it is seldom the case that he or she is, from then on, immediately and wholly financially independent. There is, usually, a transitional period of several years when the parents, if they can, assist their young adult child financially in a variety of ways, either by supplementation of income, by gifts or by contributions towards major items of expenditure. Consequently, I consider it is entirely justifiable to take the period of dependency to last beyond the date when the daughter or daughters first leave home and to continue for at least a year afterwards. In this case I consider it is appropriate to assume that the practical effect of this can be accommodated by concluding that the deceased would have continued to provide fully for each of his daughters until she reached the age of 19 years. That arbitrary point allows for the probability that further financial provision would have been made for any daughter even if she had left home at the age of 18 years.
The first and second defendants also submit that the plaintiff herself, probably would have continued to have worked and to earn income had Mr Cotton not become disabled and then died. The submission is that she would probably have continued to work part‑time and that even now it is probable that she will continue to do so for quite some time. The point of these submissions is that, having her own income suggests that Ms Ellis would have received a smaller proportion of her husband's income and that, consequently, her dependence upon him would be less than if she were not herself employed. With all respect, I consider this submission to be tendentious because, in the modern era of two‑income families with dependant children, the second income usually allows the family a higher standard of living which is financed out of a pool of the combined incomes, so that the financial benefits of each individual dependent member of the family (accommodation, food, access to light, water, heat, food and other essentials, as well to the benefits of educational, vocational or recreational expenditure) are met out of the pool and bear the same proportion to the components of the pool (the two incomes) as do all other items of family expenditure. The effect is, that if one of the incomes going into the pool is removed, then the proportion which is contributed to the various benefits going to each dependent member of the family is lost, no matter what different rearrangements and apportionments of the remaining single income may be forced upon the family when adjusting to that change. For this reason I consider that the percentages of dependency contained in Table 9.1 of Luntz (4th ed at 501), can and should be adopted and applied in this case.
With respect to the claim for loss of valuable services provided to the other members of the family by the deceased, I accept the plaintiff's submission that a reasonable figure for the valuation of the services is $20 per hour. It is also clear that the probabilities are that Mr Cotton would have provided a variety of valuable services for the benefit of his family, had he lived, in transporting them to various venues, in carrying out work around the house and in many other conventional ways. Naturally, the proportion of the services spent on the children could be expected to diminish as they became older and increasingly independent and adjustment for that must be made.
The first and second defendants submit that it is only the net benefit of the loss of these services which must be taken into account and that, on the other side of the ledger, is the saving in the value of the services which the dependants would otherwise probably have rendered to Mr Cotton. No attempt was made to identify or value these services but it must be acknowledged that Ms Ellis has probably been relieved to some small extent in the outlay of her time and resources which she would otherwise willingly have devoted to Mr Cotton. It seems to me, however, that the potential or actual savings are too small to warrant or justify estimation and that this probability is best accommodated by including it in the allowance for vicissitudes applying only to the plaintiff's own claim for loss of dependency.
It is now possible to embark on the calculations.
4. Dependants' claims from the date of death until judgment
This period from 6 January 2002 until December 2006 (4 years and 11 months) can be subdivided into the following:
(1)From 6 January 2002 until August 2004 which approximates the time when Amy and Kristie left home. Until the end of this period the plaintiff and all four daughters would probably have remained dependent on the deceased but for his early death.
(2)From early September 2004 until December 2006. During this period the plaintiff and Mandy and Madeline were living at home and, but for his death, would probably have been dependent upon the deceased.
For the first of these periods I consider that the aggregate family dependency as a proportion of the income of the deceased should be taken as 81 per cent (see Luntz, Table 9.1) and that for the second of those periods that it should be taken at 76 per cent. The calculations therefore become:
(a)First period - 134 weeks x $593.16 net per week x 81 per cent = $64,382 - reduced by 3 per cent for adverse contingencies = $62,450;
During this period the apportionment of the aggregate loss of dependency should be on the basis of 25 per cent for the plaintiff and 14 per cent for each of the four children, so that the respective losses of dependency become:
Ms Ellis 25/81 $19,275
Amy 14/81 $10,794
Kristie 14/81 $10,794
Mandy 14/81 $10,794
Madeline 14/81 $10,794
For the second of those periods, namely 2 years and 14 weeks (118 weeks) the calculation is:
$593.16 net per week x 76 per cent x 118 = $53,195 - reduced by 3 per cent for adverse contingencies = (approximately), $51,600.
The apportionment of this component and the past loss of dependency as between the three dependants remaining at home will be:
Ms Ellis 34.4/76 $23,356
Mandy 20.8/76 $14,122
Madeline 20.8/76 $14,122
For the estimation of the future loss of dependency from the date of this judgment forward, it is appropriate to select the following periods:
(a)A period from 8 December 2006 until 10 October 2007 when Mandy will attain the age of 19 years and would probably have ceased to be dependent upon her father. Until then the plaintiff and her two younger daughters would have continued to be dependent upon the deceased. The calculations, therefore, are:
(say) 44 weeks at $593.16 net per week x 76 per cent x 0.95 (to discount by 5 per cent for contingencies and vicissitudes) = $428.26 per week.
Because this is a prospective loss it must be discounted by the appropriate compound discount multiplier to arrive at a net present value, but the discount for the South Australian claims will be on 3 per cent tables and for the Western Australian claims will be on the 6 per cent tables. But in both tables for such a short period the discount is only about 2 per cent.
Therefore for all claims $428.26 x 44 x 0.98 = $18,477.
The apportionment of this component between those three dependants will be:
Ms Ellis 34.4/76 $8363
Mandy 20.8/76 $5057
Madeline 20.8/76 $5057
The next period in the future will be from 10 October 2007, when Mandy turns 19, to 21 January 2015 when Madeline attains that age. During this period the plaintiff and her youngest daughter would, on the conclusions adopted, have been dependent upon the deceased and the calculation will be:
7 years and 15 weeks x $593.16 net per week x 72 per cent x 0.85 (15 per cent discount for all contingencies and vicissitudes) = $363.01 per week.
This weekly accruing loss of $363.01 is assumed to continue over the period of 7 years and 15 weeks. The commencement of this is postponed until October 2007 (10 months from now), so the net present value of that income stream must be discounted by the appropriate compound discount multiplier both for the duration of the period and for the period of postponement by the applicable 3 per cent and 6 per cent compound discount multipliers. The calculation will therefore be:
(a)The South Australian claims - $363.01 per week (for 379 weeks) x (say) 342 x (approximately) 0.98 per cent = $121,666
(b)For the Western Australian component of the claim the calculation will be - $363.01 per week x 310 (approximately) x 0.95 (approximately) = $106,906
Again, by application of the Luntz Table 9.1, the apportionment of this loss of dependency between the two dependants, Ms Ellis and Madeline will be in the proportions 43.8 as to 28.1.
South Western
Australia Australia
Ms Ellis 43.8/72 $74,013 $65,034
Madeline 28.1/72 $47,484 $41,724
The remaining period for future loss of dependency is the period from January 2015 (when Madeline attains the age of 19 years) to October 2021 when the deceased would have attained the age of 65 years and, at the latest, retired from the workforce. The calculations are:
-For a period of 6.75 years at $593.16 net per week x 65.6 per cent = $389.11 net per week
However, it is during this period that Mr Cotton would have been most susceptible to illness or misfortune which might have forced a premature retirement and also during which allowance needs to be made for the chance of a replacement of the loss of dependency by a financially beneficial remarriage. For this reason I consider that the discount for contingencies should be elevated to 20 per cent which will reduce the weekly loss by a factor of 0.80 per cent to $311.29 per week.
The duration of this loss over the 6.75 years and the deferment of the commencement of the period by 8 years and 2½ months will have to be adjusted by using the differing compound discount multipliers for the 3 per cent and the 6 per cent tables. So the position becomes:
(a)For the South Australian claims - $311.29 per week for (6.75 years) x 319 (approx) x 0.7879 (approx) = $78,240
The whole of this loss will be apportionable to Ms Ellis.
(b)For the Western Australian claims on the 6 per cent figures the calculation will be $311.29 x 291 (approx) x 0.6291 = $56,987
which, again, is apportionable entirely to Ms Ellis.
5. Loss of superannuation benefits
The plaintiff puts this claim on the basis that there should be an allowance for loss of superannuation benefits in the past (that is, up to the date of death) - a claim which I have already rejected for reasons previously given, and that there should, in addition, be a component in the claim for the value of superannuation benefits accrued up to the postulated date of retirement at age 65 in October 2021 and that these should be quantified by the method adopted in Jongen v CSR Ltd (1992) A Torts Rep 81‑192. However, there are substantial reasons why I consider that I should decline to accept those submissions.
Any receipt of superannuation by the deceased had he survived until he was of an age, or of a condition, when he would have become entitled to the capital sum in the superannuation fund would have occurred on his retirement from work, at or past the age of 60 years, unless he had retired early because of disabling illness or disability. In other words, he would probably have become entitled to one single capital payment at the time of his retirement from the workforce. The money to which he would then have become entitled would be more than the aggregate of the employer's compulsory contributions which, by then, would have been accumulating in a tax sheltered fund growing, and compounding, over the lifetime of the contributions. The result, in an adequately managed superannuation fund, would almost inevitably be that the superannuation entitlement on retirement will be much greater than the sum of the contributions - that is the whole point of the special treatment of superannuation funds. Consequently, while the methodology in Jongen's case (supra) may, in the absence of evidence as to the real value of the entitlement to the particular fund, be adequate to estimate the value of the losses of contributions to a fund over a relatively short period, the adoption of that methodology over a longer term, and certainly to estimate the maturity value of a superannuation entitlement, will produce a significant undervalue of that entitlement. Furthermore, Jongen's case was a claim by the employee whose employment had been terminated by reason of the disease for which the defendant was responsible and where there was no evidence of the value of the entitlement to the superannuation fund on maturity beyond the history of contributions made.
In a case such as the present, where the loss complained of can only be for the loss in value of the entitlement to the superannuation payment at maturity, the adoption of the Jongen methodology of estimating the loss of superannuation benefit is even more inappropriate when, because of the previous death of the employee, a superannuation pay‑out has already been made. Even where this payment is excluded from credit in any computation of damages, it would be artificial in the extreme to allow a claim for loss of future superannuation entitlements by the methodology of aggregation of contributions while ignoring the fact of this payment. If there were to be any proper assessment it would need to compare the amount of the superannuation pay‑out entitlement which the deceased would have received on maturity, with the pay‑out which was actually made to his dependants after his death - after making adjustment for the net present value of the former in that comparison. There is no evidence in this case what that entitlement would have been upon maturity, and therefore no basis to conclude that its net present value would have been greater than the amount actually paid to the deceased's dependants. It follows that no loss of superannuation benefits has been proved. Furthermore, the estimation of the future value of that entitlement by the Jongen method, calculated by the plaintiff at $23,116.45, is far less than the amount of the superannuation payment actually received of $165,000 (t/s 193 ‑ 194), so that even on the approach taken by the plaintiff no loss can be shown.
6. Dependants' claims for loss of services rendered by the deceased
The issues between the parties on this aspect of the plaintiff's claim are: that any loss of the value of services provided by the deceased to Mrs Ellis and the family is largely, if not entirely, offset by the savings and services which Mrs Ellis herself provided and would have provided for the deceased had he lived (an issue previously touched upon); that there has been no adequate quantification of the extent of the services which the deceased provided or could have been expected to have provide had he lived; and that if there were to be, on balance, a net loss of the value of the services that would not have arisen unless and until the deceased had retired from work because, so the third defendant submits, Mrs Ellis had ceased working before the date of death and would have performed all or most of the household services herself, so obviating any need for Mr Cotton to have performed such a role.
Despite these submissions, I am satisfied that the probabilities strongly suggest that, had he lived, Mr Cotton would have continued to provide a variety of voluntary services to the plaintiff and to the children by helping in the house, carrying out domestic repairs and services, transporting children and providing or encouraging recreational and vocational activities. Indeed, the agreement by each of the defendants that the estate claim should include an amount, which was also agreed by all the parties, for the loss of gratuitous services provided by the deceased until the date of death, is an acknowledgement that, at least over the period from diagnosis to death, Mr Cotton would probably have provided valuable and quantifiable services for the benefit of his family and this acknowledgement is no more than a recognition of the obvious. Why it should be supposed that, had he survived, a similar pattern would not have continued over the years then to come was never explained. It is difficult to quantify these with any great precision and it should be recognised that, as time wore on, and the need for services by the children diminished, the provision of those services and, correspondingly, their value, would also fall, and, progressively, the contingencies which rendered their continuity and, hence, their value measurable would increase.
It seems to me, therefore, that I should start on the basis that during the period when any of the children remained at home Mr Cotton would have provided, on average, about five hours of services per week to various members of the family and that, taking into account weekends, he would have continued to provide services at about that level diminishing, at the greatest, to three hours per week until his mid sixties. During this time the discount for adverse contingencies should steadily increase and by the time he reached the age of 65 years, if he ever did, it seems to me that the need to discount for adverse contingencies or vicissitudes would, effectively, wipe out the value of any probability of them continuing beyond that point. I accept the plaintiff's submission that it is reasonable to value these services at $20 per hour and, accordingly, the calculations become:
(a)From 6 January 2002 until end of August 2004 (when Amy and Kristie left home):
2 years 7 months = (say) 136 weeks x 5 hours per week x $20 per hour x 0.97 (3 per cent discount for contingencies) = $13,192
At apportioning that between the members of the family on the basis set out in the Luntz Table 9.1, the ratios and amounts will be:
Name Ratio Amount
Ms Ellis 25/81 $4072
Amy 14/81 $2280
Kristie 14/81 $2280
Mandy 14/81 $2280
Madeline 14/81 $2280
(b)The second period will be from 1 August 2004 until 10 October 2007 (when it is assumed that Mandy will become independent) and the calculation will be:
3 years 2 months = 166 weeks x 5 hours x $20 x 0.94 (6 per cent discount for contingencies) = $15,604
That will be apportionable between members of the family then at home benefiting from the services as follows:
Ms Ellis 34.4/76 $7063
Mandy 20.8/76 $4271
Madeline 20.8/76 $4271
(c)The next period will be from 10 October 2007 until 21 January 2015 when it is assumed that Madeline will become effectively independent. This is a period of 7 years and 15 weeks, so the calculation will be:
Over 7 years 15 weeks (379 weeks) - 5 hours per week x $20 per hour x 0.80 (20 per cent discount for contingencies) = $80 per week
As this is the calculation of a future stream of value it needs to be discounted by the appropriate discount multipliers to a net present value. Again, the discount tables will be 3 per cent for the South Australian claim and 6 per cent for the Western Australian claim. The value of the South Australian claim will be:
$80 x 342 (approx) x 0.980 (approx) = $26,813
and the Western Australian value will be:
$80 x 310 (approx) x 0.958 (approx) = $23,758
That will be apportionable between the members of the family then remaining at home in the following proportions and amounts:
Name Proportions SA WA
component component
Ms Ellis 43.8/72 $16,311 $14,453
Madeline 28.1/72 $10,465 $9,272
(d)The final period will be from January 2015 until 6 October 2021 which is the date when Mr Cotton, had he lived that long, would attain the age of 65 years. This is a period of 6 years and 9 months and covers a time when there are considerable uncertainties as to whether Mr Cotton would have indeed survived, would be healthy or would still be working and, correspondingly, there seems to be to be a need for a very high discount for contingencies which I have put at 30 per cent. The calculation therefore becomes:
For 6 years 9 months - 351 weeks x 5 hours per week x $20 per hour x 0.7 (30 per cent discount) = $70 per week.
Again, that figure needs to be discounted to net present value by the different compound discount multipliers applying for Western Australia and in South Australia. Accordingly, the position is:
South Australia:
$70 x 318 (approx) x 0.7854 (approx) = $17,483
Western Australia:
$70 x 291 x 0.6215 (approx) = $12,660
All of that will be apportionable to Ms Ellis.
The results of these calculations for the dependants' claim can be tabulated as follows:
South Australia
Component Ms Ellis Amy Kristie Mandy Madeline
of damages
Loss of financial
support tojudgment:
Period 1 $19,275 $10,794 $10,794 $10,794 $10,794
Period 2 $23,356 - - $14,122 $14,122
Future loss of
financial support:
Period 1 $8,363 - - $5,057 $5,057
Period 2 $74,013 - - - $47,484
Period 3 $78,240 - - - -
Loss of
superannuationafter death: Nil Nil Nil Nil Nil
Loss of
services:
Period 1 $4,072 $2,280 $2,280 $2,280 $2,280
Period 2 $7,063 - - $4,271 $4,271
Period 3 $16,311 - - - $10,465
Period 4 $17,483 - - - -
TOTAL $248,176 $13,074 $13,074 $36,524 $94,473
Similarly, in relation to the assessment of these claims as they apply under Western Australian law to the third defendant, the position will be:
Western Australia:
Component Ms Ellis Amy Kristie Mandy Madeline
of damages
Loss of financial
support tojudgment:
Period 1 $19,275 $10,794 $10,794 $10,794 $10,794
Period 2 $23,356 - - $14,122 $14,122
Future loss of
financial support:
Period 1 $8,363 - - $5,057 $5,057
Period 2 65,034 - - - $41,724
Period 3 $56,987 - - - -
Loss of
superannuationafter death: Nil Nil Nil Nil Nil
Loss of
services:
Period 1 $4,072 $2,280 $2,280 $2,280 $2,280
Period 2 $7,063 - - $4,271 $4,271
Period 3 $14,453 - - - $9,272
Period 4 $12,660 - - - -
TOTAL $211,263 $13,074 $13,074 $36,524 $87,520
The aggregate value of the damages in the dependants' action against the first defendant is therefore $405,321 and which is not reducible for contributory negligence.
The aggregate value of the dependants' claim of damages against the second defendant is for the same amount but this is reducible by 10 per cent for the contributory negligence for reasons previously given. Consequently, the aggregate value of the claim against the second defendant becomes $364,789.
The aggregate value of the dependants' claim against the third defendant, assessed on the different multipliers applicable under the law of Western Australia is $361,455. This is not reducible for contributory negligence either.
Of these three quantifications of the claim the respective component of the loss of dependency for Ms Ellis personally, are:
Against the first defendant - $248,176
Against the second defendant - $223,358
Against the third defendant - $211,263
In the case of Ms Ellis, her claim for loss of dependency under the Lord Campbell's Act claims credit must be given for the net benefit which she derives from the estate claim in her role as sole beneficiary. That has already been quantified at $165,000 and it will, therefore, reduce her share to an apportionment of the Lord Campbell's Act claim, leaving all five dependants entitled in the following proportions:
First Second Third
Defendant Defendant Defendant
Ms Ellis $83,176 $58,358 $46,263
Amy $13,074 $11,767 $13,074
Kristie $13,074 $11,767 $13,074
Mandy $36,524 $32,872 $36,524
Madeline $94,473 $85,025 $87,520
TOTAL $240,321 $199,789 $196,455
I record that, since this trial was completed, Mandy has attained the age of 18 years and, is therefore an adult. Madeline, will not attain the age of 18 years until 21 January 2014 and, consequently, the damages payable to her should be held by a suitable trustee, perhaps the Public Trustee of Western Australia, to be invested on her behalf until she attains the age of 18 with power to invest outside the common fund and make any advancement of capital or income to her as the Trustee may consider appropriate.
Forms of orders or judgment
For these reasons I consider that, in the estate claim, the plaintiff Teresa Ellis, as executor of the estate of Paul Steven Cotton (deceased), is entitled to judgments in that capacity:
Judgment against the first defendant for $361,573.09
Judgment against the second defendant for $331,952.16
Judgment against the third defendant for $196,573.09
In the dependants' action where the plaintiff sues as representative of herself and the four children of the deceased, I consider that there should be judgment for the plaintiff, as follows:
-against the first defendant for $240,321
-against the second defendant for $199,789
-against the third defendant for $196,455
The respective judgments in the dependants' action against the several defendants will be held by the plaintiff, Ms Ellis, on behalf of herself and the four children in the amounts set out in [813] above. As the judgment against the first defendant is for the greatest amount, it is perhaps desirable that I should specify the apportionment of that judgment between the four dependants and I do so as follows:
Ms Ellis - $83,176
Amy - $13,074
Kristie - $13,074
Mandy - $36,524
Madeline - $94,473
$240,321
I will hear counsel as to the precise orders which should be made to give effect to these conclusions.
Key Legal Topics
Areas of Law
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Tort Law
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Personal Injury Law
Legal Concepts
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Causation
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Contributory Negligence
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Voluntary Assumption of Risk
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Onus of Proof
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Compensatory Damages
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