Fishburn v Electricity Commission of New South Wales

[1999] NSWCA 401

CITATION:	Fishburn v Electricity Commission of New South Wales & Anor [1999] NSWCA 401
FILE NUMBER(S):	CA 40991/98
HEARING DATE(S):	28 September 1999
JUDGMENT DATE:	28 October 1999
PARTIES :	Charles Allen Fishburn v Electricity Commission of New South Wales and James Hardie & Coy Pty Ltd
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 24; Handley JA at 25

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S) :	DDT 151/93
LOWER COURT JUDICIAL OFFICER:	Maguire J

COUNSEL:	Appellant - B.M.J. Toomey QC / D.T. Kennedy Respondent - M.F. Holmes QC / T.G.R. Parker
SOLICITORS:	Appellant - Turner Freeman, Parramatta Respondent 1 - Goldrick Farrell Mullan Respondent 2 - Allen Allen & Hemsley
CATCHWORDS:	Dust Diseases Tribunal Act; Right of appeal
ACTS CITED:	Dust Diseases Tribunal Act 1989 Courts Legislation Amendment Act 1998
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40991/98
DDT 151/93

PRIESTLEY JA
MEAGHER JA
HANDLEY JA

Thursday, 28 October 1999

FISHBURN v ELECTRICITY COMMISSION

OF NEW SOUTH WALES & ANOR

DUST DISEASES TRIBUNAL ACT - RIGHT OF APPEAL

Between the date of judgment against the appellant and the hearing of the appeal, the right of appeal was retrospectively changed from a general right of appeal to one relevantly limited to questions of law. The appellant contended the trial judge had erred in law in two respects, (i) that he had failed to deal with a material aspect of the appellant’s case, and (ii) that there had been a denial of natural justice in the way the judge had made a finding of fact against the appellant.

Held: Neither complaint was made out.

ORDERS
Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40991/98
DDT 151/93

PRIESTLEY JA
MEAGHER JA
HANDLEY JA

Thursday, 28 October 1999

FISHBURN v ELECTRICITY COMMISSION

OF NEW SOUTH WALES & ANOR

1    PRIESTLEY JA: This is an appeal against a judgment delivered by his Honour Judge Maguire in the Dust Diseases Tribunal on 13 November 1998. The judgment was “for each defendant against the plaintiff”. The plaintiff, (whom I will call the appellant) filed a notice of appeal on 9 December 1998. 2 When judgment was delivered against the appellant on 13 November 1998 s 32 of the Dust Diseases Tribunal Act provided that a party dissatisfied with the decision of the Tribunal “may appeal against the decision to the Court of Appeal”. By the Courts Legislation Amendment Act 1998, assented to on 29 June 1998, changes were made to the Dust Diseases Tribunal Act which were to commence on a day or days to be appointed by proclamation (s 2). Counsel in the appeal informed the court that a proclamation was made appointing 4 December 1998 as the day of commencement of amendments relevant to the appeal. One of these repealed the s 32 which was in force on 13 November 1998 and replaced it with a new s 32 which gave a lesser appeal right to a party dissatisfied with the decision of the Tribunal, namely the right to “appeal to the Supreme Court” if “dissatisfied with the decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence”. Schedule 3 of the Dust Diseases Tribunal Act, which dealt with savings and transitional provisions, had a clause 4 added to it saying:

“ Section 32 as in force before the commencement of Schedule 11 to the Courts Legislation Amendment 1998 does not apply to decisions of the Tribunal made before that commencement. ”

3 This appears to mean that the appellant’s appeal to this court is limited to one against a decision of the Tribunal in point of law, there being no raising in the appeal of any question as to the admission or rejection of evidence. This view of the retrospective effect of the new s 32 was accepted by counsel for the appellant. 4 The appellant’s statement of claim named two defendants, the Electricity Commission of New South Wales and James Hardie & Coy Pty Ltd. The Electricity Commission was the appellant’s employer for forty-four years. His claim against the Electricity Commission was that while working for it he had been exposed to and inhaled asbestos dust and fibre causing him injury. 5 The appellant’s claim against James Hardie was that while he was employed by the Electricity Commission, James Hardie supplied the Electricity Commission with asbestos products from which came the asbestos dust and fibre to which he was exposed and which he inhaled. He alleged that James Hardie had caused him the same damage as that caused by the Electricity Commission. 6 The appellant gave particulars of the claimed injuries. These were (a) asbestosis; (b) asbestos related pleural disease; (c) pleural plaques; (d) anxiety and depression; (e) shock. 7 At the trial considerable medical evidence was given about the effect that the exposure of the appellant to asbestos dust and fibre had had on his lungs. Summarising that evidence in lay terms, it was that there had been ascertainable effects upon the plaintiff’s lungs caused by asbestos dust and fibre; about this there was no dispute. There was dispute however about the extent of the effect upon the lungs, whether the effect, such as it was, was a cause of or contributed to the appellant’s breathlessness, and whether the effect was of sufficient significance to have caused him any compensable damage. 8 Upon the medical evidence before the trial judge, it became clear that asbestosis, asbestosis related pleural disease and pleural plaques were distinct, but not mutually exclusive, medical conditions. The appellant’s case was that on the medical evidence put before the court on his behalf the trial judge should conclude that his exposure to asbestos dust and fibre in the employment of the Electricity Commission had resulted in his suffering from one or more of the three conditions particularised. 9 The medical evidence given in the case included evidence of lung function tests done at different times by different specialist doctors. The evidence of two of these doctors was to the effect that the appellant when requested in the course of the tests to blow his hardest into a machine did so with what one specialist called “inadequate effort” and the other “sub-optimal effort”. The result was that the tests did not accurately reflect the appellant’s condition. The trial judge accepted the evidence given by these specialists and found their evidence “very strongly suggestive of the proposition that this plaintiff was endeavouring to fudge the readings in order to produce evidence in support of his case”. 10    After a review of the evidence, in which particular attention was necessarily paid to the medical evidence, and after his remark about the appellant’s endeavour “to fudge the readings” the trial judge summarised his conclusions in two paragraphs. Some of what he said was accepted by counsel for the appellant in argument in this court and some of it was the subject of challenge. In setting out the material parts of these two paragraphs I will interpolate my own comments, indicating what was accepted and what challenged by the appellant’s counsel. 11    The trial judge began the two paragraphs by saying:

“ To succeed in this action the plaintiff amongst other tasks before him must persuade me that he is suffering from pleural plaques, asbestosis and breathlessness. That is the task he has taken upon himself. ”

This was criticised by counsel for the appellant. It was said the judge had left out one of the separate heads of injury which the plaintiff asserted should be found upon the evidence, namely “ asbestos related pleural disease ”. I will need to explain this in a little greater detail subsequently.

“ As to pleural plaques, the preponderance of the evidence suggests that even where they exist, and there is no doubt that they do exist in this case, pleural plaques are not by themselves causative of any disability .”

Counsel for the appellant accepted this as correct.

“ I am quite prepared to find that the plaintiff has present in his lungs pleural plaques in significant measure resultant from the exposure of him to the inhalation of asbestos dust and fibre in the course of his employment with the first defendant and involving products supplied by the second defendant. ”

Counsel for the appellant accepted this sentence as correctly summarising the evidence it dealt with. The findings in the sentence took the appellant a long way towards proof of his case, but not all the way because the effect of the pleural plaques had yet to be dealt with.

“ However, I am not persuaded that those pleural plaques do anything more than corroborate the fact that he was, over many years, exposed to such inhalation. ”

Counsel for the appellant did not accept this statement, but it was not one against which he could appeal, since it involved no question of law.

“ As to asbestosis the weight of the evidence is entirely against the proposition that this man is suffering from asbestosis. ” [The judge acknowledged the submission for the appellant that he had had a prolonged and relatively heavy exposure to asbestos but continued that that was] “ always idiosyncratic. The fact that a man has a large dose of dust whilst it may increase the chance that he acquires asbestosis is not probative of the proposition that he does indeed have it. ”

Counsel for the appellant would have wished to argue against these conclusions of the trial judge, but again recognised that he was precluded from doing so because of the limited nature of the appeal.

“ When one looks at the whole of the medical evidence I am not persuaded that there is any asbestosis as defined by the evidence, nor am I persuaded that there is any breathlessness. Every one of us gets breathless from time to time or at least should endeavour so to do ... but I am not persuaded that this plaintiff has demonstrated any undue breathlessness beyond that which would be expected in a perfectly normal healthy man of his age. ”

The first sentence of this passage repeated the finding of no asbestosis which the appellant was unable to challenge but went on to make another finding (no undue breathlessness) which became important in the appeal in a way which will appear a little later.

12    On the basis of the reasoning in the reproduced passages, the trial judge concluded that there should be judgment for both the Electricity Commission and James Hardie against the appellant. 13    The appellant argued that there were two areas of the case in which the trial judge had erred in point of law. One was that he had failed to deal with the case which counsel for the appellant said the evidence supported of asbestos related pleural disease. The other was that there had been either a breach of the rule in Brown v Dunne and/or a denial of natural justice in the judge’s “fudging” finding. This was said to be because it had never been suggested in the course of the trial by either the Electricity Commission or James Hardie that the appellant had deliberately exerted inadequate or sub optimal effort in the two lung function tests in respect of which the specialists had made their comments. 14    In support of the first point counsel for the appellant submitted that it was understood by all parties at the trial that what the appellant was seeking to prove under the heading “Asbestos related pleural disease” was a condition known as diffuse pleural thickening. In the appeal, counsel for the Electricity Commission and James Hardie accepted this assertion, but with an important qualification. They agreed that there had been much discussion in the medical evidence of diffuse pleural thickening and that this had been directed to the heading of “Asbestos related pleural disease”. They said however that the description “diffuse pleural thickening” had been used as synonymous with “pleural thickening sufficient to cause disability”. This contention is borne out by a number of passages in the transcript. Also, a particularly clear instance appears in the written submissions put before the trial judge on behalf of the appellant, dated 12 November 1998. Paragraph 5.1 of those submissions was as follows:

“ It is the plaintiff’s case that as the result of very heavy exposure to which he was subjected he has contracted asbestosis, pleural thickening sufficient to cause disability and substantial pleural plaquing. He has asbestos related pleural disease .”

Here three separate conditions are asserted, the first and third corresponding to headings (a) and (c) in the particulars of injuries earlier set out, in almost identical words. The second of the three separate conditions, in the context of the written submissions and the other passages in the transcript I have referred to, is clearly, in my opinion, a further particularisation of paragraph (b) of the particulars of injuries.

15    The same three conditions were referred to again by counsel for the appellant in his oral submissions to the trial judge on the day following the handing up of the written submissions, that is 13 November 1998. At this stage, as in the second sentence of par 5.1 of the written submissions, counsel for the appellant was seeking to succeed on any one of the three conditions or on a more generalised basis, that is that the appellant was suffering from an impairment as a result of his exposure to asbestos dust and fibre. He continued:

“ Now, it may well be that it is decided by reference to whether he has got asbestosis, whether he has got diffuse pleural thickening, whether he has got pleural plaques, whether he has got a combination of each and every one of those or whether on the totality of the medical evidence, if you throw all those things together, he does have an impairment due to the exposure. I do not think, with respect, your Honour, and I do not put it, that we need necessarily to establish either asbestosis or pleural thickening. There is material before your Honour we say which would suggest on the balance of probabilities that his disability is caused by his exposure. ”

16    A little later he enlarged on what I have called the generalised approach:

“ What I am saying was that in looking at this case, in looking at this case in the totality of the evidence, and in coming to your Honour’s decision as to causation that is the approach that we ask your Honour to adopt. A common sense approach to the totality evidence in this case in order to decide on the balance of probabilities whether this man does have an impairment which is caused by his asbestos exposure and to concentrate on that issue, perhaps rather than on the more technical issues of well, am I satisfied about this little bit here, am I satisfied about that little bit there, am I satisfied the lung function tests on the balance of probabilities indicate impairment. Am I sort of satisfied there is enough pleural thickening there. ”

17    From the materials that I have referred to it appears to me to be right to say that the issue raised for the appellant in regard to pleural thickening was whether there was enough pleural thickening to cause disability to the appellant. As the disability relied on was the appellant’s breathlessness, this meant that so far as pleural thickening was concerned, it was for the appellant to show on the balance of probabilities that he was suffering from pleural thickening and that that pleural thickening caused or contributed to a state of breathlessness over and above what would have been normal. 18    As earlier stated, the submission for the appellant in the appeal was that the trial judge did not deal in his reasons with the case raised under par (b) of the alleged particulars of injuries. So far as I can see counsel for the appellant was correct in his submission that nowhere in his reasons does the trial judge refer to diffuse pleural thickening or pleural thickening sufficient to cause disability, nor deal with the question whether the appellant had been shown to be suffering from pleural thickening at all. However, the trial judge did deal with the question whether as a result of the asbestos dust and fibre to which the appellant had been exposed he had suffered any breathlessness above the normal. In the passages from his reasons set out above there are quite clear findings on this issue. The trial judge found as a fact, and there was medical evidence upon which it was open to him so to find, that the second of the two matters the appellant had to establish if he were to succeed on the condition particularised in par (b) of the particulars of injuries had not been made out. 19    Unless in some way the appellant could relate this factual finding to an error in point of law, it was unappellable and would defeat the appellant’s submission that as a matter of law the trial judge had erred by failing to deal with the case based on par (b). 20    Counsel for the appellant attempted to relate that finding to an error in point of law, or lay a ground work for this court setting it aside as consequential upon an error of law, by his submissions in support of the second point earlier mentioned, which for shortness sake I will call the unfairness point. The prospect of succeeding on the second point in my opinion disappeared upon an examination of various passages in the transcript of what took place before the trial judge. From those passages it seems quite plain that the legal representatives of the appellant had in their hands before the trial began at least one medical report suggesting that the appellant had not tried his hardest at a lung function test, that questions were put to the appellant in cross-examination which made it clear that it would later be submitted that he had not tried his hardest and that questions were put to medical witnesses along the same lines. The trial judge had also indicated in the course of argument that he might take into account what had been said by the specialists on the point. When it had been suggested to the appellant that he had not tried his hardest in one of the tests, he replied that he had. 21    I cannot see in this any unfairness amounting to an error in point of law, nor that it in any way helps the appellant in regard to the first point. 22    It follows that, in my opinion, the appellant has failed to show error of law by the trial judge in either of the areas relied on in the appeal within the limits of the statutory provision controlling the appeal. 23    In my opinion the appeal should be dismissed with costs. 24    MEAGHER JA: I agree with Priestley JA. 25    HANDLEY JA: I agree with Priestley JA.

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