Hamilton v BHP Billiton Ltd - [2012] SADC 25

District Court of South Australia
(Civil)
HAMILTON v BHP BILLITON LTD
[2012] SADC 25
Judgment of His Honour Judge McCusker
29 February 2012
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
ASBESTOS - DUTY OF CARE - REASONABLE FORESEABILITY OF DAMAGE - PREVENTABILITY
The plaintiff's husband was employed by the defendant from May 1964 to April 1965 as an electrician on the fitting-out wharf at Whyalla installing cables in the engine room. He had previously worked as an electrician in shipbuilding in Scotland at various times between December 1961 to April 1964. During both periods of employ he inhaled significant levels of asbestos dust. The risk asbestos dust was a likely cause of asbestosis and cancer was known by the early 1960s. The defendant took no measures to reduce the levels of dust. He suffered mesothelioma. Expert evidence was accepted that all significant inhalations of the dust had a "cumulative effect" on the occurrence of the mesothelioma as well as the mild asbestosis. The essential proof of causation and of foreseeability were made, both on the evidence and on the statutory presumptions in s8 of the Dust Diseases Act 2005.
Held: The risk was reasonably foreseeable. Reasonable steps were available to avert or minimise the risk. The defendant's failure of its duty of care caused or materially contributed to the death of the deceased.
Amaca Pty Ltd v Booth [2010] NSWCA 344; Sim v Allianz Australia Ltd [2010] NSWDDT 19; Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; Vairy v Wyong Shire Council (2005) CLR 422; Wyong Shire Council v Shirt (1980) 146 CLR 40; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 240; Paris v Stepney Borough Council [1951] AC 367; McPherson's Ltd v Eaton (2005) 65 NSWLR 187; CSR Ltd v Amaca Pty Ltd (2009) NSWCA 338; Bale v Seltsam Pty Ltd [1996] QCA 288; Seltsam Pty Ltd v McNeill [2006] NSWCA 158; Abel v Amaca Pty Ltd [2010] SADC 98; SA Housing Trust v SGIC (1989) 51 SASR 1; Roman v North Sydney Council (2007) 69 NSWLR 272; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; Metropolitan Gas Company v Melbourne Corporation (1924) 35 CLR 186; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Cockatoo Dockyard v Browne [2001] NSWCA 58; Amaca Pty Ltd v Ellis (2010) 240 CLR 111; Rhesa Shipping Ltd v Edmunds [1985] 1 WLR 948; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307; EM Baldwin & Son Pty Ltd v Plane [1998] NSWCA 23; Bonnington Casting Ltd v Wardlaw [1956] AC 613; Insurance Commissioner v Joyce (1948) 77 CLR 39; British Railway Board v Herrington [1972] AC 877; Jones v Dunkel (1995) 101 CLR 298; BI (Contracting) Pty Ltd v University of Adelaide [2008] 6 DDCR 382; Byrnes v Repatriation Commission (1991) 103 ALR 422; Amaca Pty Ltd v Booth [2011] HCA 53; WorkCover Corporation v Perre (1999) 76 SASR 95; Crawford Earthmovers v Fitzsimmons (1972) 4 SASR 116; Evans v Benson (1986) 46 SASR317; Pearce v WD Peacock & Co Ltd (1917) 23 CLR 199; Bowling v General Motors-HoldenPty Ltd (1975) 8 ALR 197; GMH v Bowling (1976) 12 ALR 605; General Cleaning Contractors Ltd v Christmas [1953] AC 180; Neill v NSW Freshfood and Ice Pty Limited (1963) 108 CLR 362; Baker v Quantum Clothing (2011) 4 AllER 223; Thomson v Johnson & Johnson (1991) 2 VR 49; Hayman v Forbes (1978) 13 SASR 225; Holland v Jones (1917) 23 CLR 149; Stevedoring Finance Committee v Henderson (2000) 2 VR 396; Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; New South Wales v Fahy (2007) 236 ALR 406; Road and Transport Authority (NSW) v Dederer (2007) 238 ALR 761; Crimmins v Stevedoring Committee (1999) 200 CLR 1; McLean v Tedman (1984) 155 CLR 306; Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743; Oaten v Diemould Tooling Services Pty Ltd [2007] SAIRC 44; Kuhl v Zurich Finance Services Australia Ltd (2011) 243 CLR 361; Roche Mining Pty Ltd v Jeffs [2011] NSWCZ 184, considered.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
The plaintiff's husband died of mesothelioma due to asbestosis in August 2007 at age 67. Damages for pain, suffering and loss of years of life. Griffiths v Kerkemyer and Sullivan v Gordon damages. Interest.
Ewins v BHP Billiton Ltd (2005) 91 SASR 303; Dighton v The Nominal Defendant (No 2) [2012] SADC 1; Griffiths v Kerkemeyer (1977) 139 CLR 161; Terry v Leventeris (2011) 109 SASR 358; CSR Ltd v Eddy (2005) 226 CLR 1; Sullivan v Gordon (1999) 47 NSWLR 319, considered.

HAMILTON v BHP BILLITON LTD
[2012] SADC 25
Introduction
The Direct Evidence
Raymond Charles Hamilton, the Deceased
Ian Charles Ewbank
Peter Graham Boss
David Alan Shraple
Dennis Steenson
The Medical Evidence
Professor Brian Smith
Professor John Alpers
Associate Professor Raffaele Scicchitano
The Objection to Professor Henderson’s Expert Evidence
The Objections by the Defendant
Ruling at Trial on Supplementary Reports
Guidance from Authority
The Identified Fields in which Professor Henderson is Qualified
Ruling on the Admissibility of Professor Henderson’s Opinion
Professor Henderson’s Evidence
Professor Henderson’s Report of 19 September 2007, Exhibit A1
Professor Henderson’s Report of 4 January 2010, Exhibit A2
Appendix A, Professor Henderson’s Scientific/Medical Evidence for Causation of Malignant Mesothelioma by Asbestos, January 2011
Professor Henderson’s Examination.
The Evidence of the Occupational Hygienists
Mr Michael Kottek
Mr Kottek’s Report of 14 May 2010, Exhibit A3
Mr Kottek’s Report of 4 February 2011, Exhibit A4
Mr Kottek’s Examination
Mr Alan Rogers
Mr Rogers’ Report of 30 May 2008, Exhibit A27
Mr Rogers’ Report of 19 November 2010, Exhibit A28
Mr Rogers’ Report of 24 January 2011, Exhibit A29
Mr Rogers’ Examination
The Evidence of Knowledge of the Dangers of Asbestos at the Relevant Time
(a) Documentary Evidence Produced by BHP, Exhibit R68
Document 1
Documents 2 to 8
Documents 10 and 11
Documents 13 to 22
Documents 23 to 32

Scientific Publications of the Risk of Asbestos, Exhibit R69
(1)    The Merewether Memoranda on Asbestosis
(2)    The Dreessen Report
(3)    US Navy – Maritime Commission: Minimum Requirements for Safety and Industrial Health in Contract Shipyards (1943)
(4)    The Lawrence Paper: Fume Control in Shipyards
(5)    The Fleischer Report
(6)    Third International Conference of Experts on Pneumoconiosis, Sydney 1950.
(7)    Dr McLaughlin Article (1953)
(8)    Sir Richard Doll’s Report
(9)    Dr Hugh Jones Case Study “Complication of Asbestosis” (1960)
(10)    The Johannesburg Pneumoconiosis Conference 1959
(11)    The Wagner Paper
(12)    The Smither/McCaughey Correspondence
(13)    Leathart and Sanderson
(14)    Selikoff on Asbestos Exposure and Neoplasia

The Evidence of the Knowledge of the Dangers of Asbestos After the Relevant Time.
(1)     The New York Conference on the Biological Effects of Asbestos, October 1964.
(a)    GK Sluis-Cremer
(b)    Schall
(c)    Knox, Doll and Hill
(d)    Newhouse and Thompson
(e)    Gilson Entitled “Problems and Perspectives: The Changing Hazards of Exposure to Asbestos”
(f)     The Report and Recommendations of the International Union on Asbestos and Cancer (1964).

(2)     Balzer and Cooper
(3)     Harries’ Paper
(4)     The Lyon Conference 1972
The Australian Position
The Defendant’s Submissions on Direct Evidence
The Defendant’s Submissions on Foreseeable Risk
The Defendant’s Submissions as to the Literature at the Relevant Stage
The Defendant’s Submissions on Breach of Duty
The Defendant’s Submissions on Causation
Legal Principles
The Defendant’s Submissions on Statutory Presumption in Section 8(1) Dust Diseases Act
The Plaintiff’s Submissions on Direct Evidence
The Plaintiff’s Submissions on the Literature at the Relevant Stage
The Plaintiff’s Submissions on Foreseeable Risk
The Plaintiff’s Submission on Causation
The Plaintiff’s Submissions on Asbestosis
Findings on Direct Evidence
Findings on Medical Evidence
Findings on Professor Henderson’s Evidence
Findings on the Evidence of the Occupational Hygienists
Findings on the Diagnosis of Mild Asbestosis
Findings on the Defendant’s Documentary Evidence
Findings on Causation
Findings on the Knowledge of the Defendant
Findings on the Duty of Care
Findings on the Content of the Duty
Findings on Preventability
Findings on Negligent Causation of Injuries
Assessment of Damages
HAMILTON V. BHP BILLITON LTD
Introduction

On 14 August 2007 Mr Hamilton died of mesothelioma aged 67. The mesothelioma was caused by the inhalation of asbestos dust.[1] This inhalation occurred during his employment as an electrician working in ship construction. That employment was in Glasgow, Scotland from 19 December 1961 until April 1964 and in Whyalla, South Australia from May 1964 until April 1965.[2] The plaintiff, as relic of the deceased, and in her own right, brings her suit in negligence, breach of statutory duty and breach of contract though the latter was not mentioned at trial.[3] Damages under various heads are sought. It is the damage caused by the negligence and on breach of statutory duty which is relied on to constitute the cause of action.
[1] This was conceded (tr 5, 18, 493).
[2] Exhibit A6 paras [1] – [5], Exhibit A7 pp 27, 28, Defendant’s submission paras [43] – [45].
[3] Amended Statement of Claim para [13].
By its pleadings the defendant denies that the deceased was exposed to asbestos in his employment with it.[4] The defendant pleads that in any event the levels of asbestos the deceased was exposed to were within the limits set by the National Health and Medical Research Council’s “Schedule of Recommended Maximum Concentrations of Atmospheric Contaminants for Occupational Exposures 1961”.[5]
[4] Amended Statement of Claim para [11], Defence para [2.5]. As noted this position was relinquished at trial. Some contention remained initially as to particular products containing asbestos but apparently not eventually (tr 25).
[5] Defence para [2.21].
The defendant denies negligence and breach of statutory duty and in so far as for the statutory duty is concerned, pleads that the Broken Hill Proprietary Limited Steelworks Indenture Act 1959 displaced any statutory duty owed by it to the deceased.[6] This Act was not mentioned beyond the pleadings. The particulars of negligence are denied.[7] The latter were the subject of submissions by Mr Parker SC, counsel for the defendant.[8] I will return to these in greater detail later. The defendant in any event denies any negligence or breach of duty on its part, notwithstanding its denial, caused any loss or damage.[9] Moreover it raises a plea of contributory negligence in the event of any such damage.[10] A claim for an extension of time under s 48 of the Limitations of Actions Act 1936 was made by the plaintiff.[11] The statute was not pleaded by the defendant and indeed the time point was never taken.
[6] Amended Statement of Claim para [13], Defence para [2.7].
[7] Amended Statement of Claim para [14], Defence para [2.8].
[8] Defendant’s submissions document paras [130] – [140].
[9] Amended Statement of Claim para [15], Defence paras [2.9], [2.18].
[10] Defence para [2.23].
[11] Amended Statement of Claim paras [19]-[22].
The conduct of the trial by the respective sides, as indicated, did not always conform to the pleadings. As might be expected in a trial of this scale a practical treatment of the pleadings is called for.[12] It was at hearing that the real issues between the parties crystallised. In this regard Mr Parker SC described three key disputes. First the proposition that all exposure to asbestos is causative.[13] Second the defendant’s knowledge of the risks of asbestos in 1964.[14] Third whether the deceased’s level of exposure in Whyalla, when compared with his Scottish exposure, was enough to be causative, irrespective of the answer to the other two questions. The defendant’s case in this regard was that the Whyalla exposure was at best, relatively light, transient and intermittent.[15]
The Direct Evidence
[12] Suvaal v Cessnock City Council (2003) 77 ALJR 1449 at para [23] per Gleeson CJ and Hayden J; Betfair v Racing NSW (2010) 273 ALR 664.
[13] Tr 5.
[14] Tr 6
[15] Tr 5, 7.
Raymond Charles Hamilton, the Deceased
Mr Hamilton was born on 14 May 1940 in Glasgow, Scotland.[16] He commenced his working life at the Fairfield Shipbuilding and Engineering Co in Clydebank on 5 September 1955 as an office boy. On 14 May 1956 he commenced his apprenticeship as an electrician and completed it on 19 December 1961. The apprenticeship was located in various workshops. Sometimes he was doing maintenance work and other times doing repairs. He also worked intermittently on ships.[17] After he completed his apprenticeship he stayed with Fairfield, working solely on ships. One of those ships was HMS Blake, a Royal Navy cruiser.[18] When working on these ships he sometimes worked in proximity to laggers who were covering the pipes in the engine rooms with asbestos. Lagging occurs only at the fitting‑out stage. That is at the last stage of ship construction. That is after the vessel has been launched. However no more than half his time at Fairfield was spent on ships anyway. Indeed his first year was spent singularly in the workshop.[19] By this I understand he meant that he worked generally on ships from December 1961 to December 1962 in addition to a few short periods during his apprenticeship as he progressed in his training through the employer’s workshops.
[16] Exhibit A6 para [1].
[17] Exhibit A6 para [5].
[18] Exhibit A7 p 31.
[19] Exhibit A7 p 40.
On 19 December 1962 he was made redundant by Fairfield. On 6 February 1963 he commenced employment with Yarrows Shipyards again in Glasgow. He stayed there until mid 1963, some four months in all. Yarrows was fitting HMS Tiger, a Royal Navy cruiser. On this ship he only worked in the accommodation area.[20] He did not work alongside asbestos laggers nor did he recall exposure to asbestos at that time.[21] From mid 1963 till May 1964 he worked at Scotts Shipyards at Greenock. At Scotts the work involved the latter stages of a fitting out. He was exposed to asbestos in that work.[22] In Scotland no protective equipment was provided.[23]
[20] Exhibit A7 p 40.
[21] Exhibit A6 para [6].
[22] Exhibit A7 pp 33, 34.
[23] Exhibit A7 pp 20, 46.
In Whyalla his ship work mainly involved installing cables. That was in contrast to his work in Scotland where he had more varied and responsible work.[24] He worked at Whyalla for about ten months.[25] He was more aware of his exposure to asbestos in Whyalla because the weather was hot and the asbestos stuck to him whereas in Scotland it blew off.[26] In Whyalla the workplace was very dusty.[27] I have assumed that Glasgow is a cold, windy clime.
[24] Exhibit A7 pp 39, 51.
[25] Exhibit A7 p 39.
[26] Exhibit A7 p 49.
[27] Exhibit A7 p 15.
The deceased commenced working on a ship immediately on his arrival in Whyalla.[28] He could not recall its name but it was a bulk carrier. His work varied, but the vast majority took place on the ship while it was at the fitting out wharf stage, and overwhelmingly in the engine room.[29] He estimated his time in the engine room at 80% of his time in Whyalla.[30] Indeed he spent more time in the engine room at Whyalla than he had done on previous ships.
[28] Exhibit A6 para [11].
[29] Exhibit A6 para [11], Exhibit A7 p 6.
[30] Exhibit A7, pp 8, 51.
In the engine room of the ship there were trays hung from the underside of the deck. These were of various sizes from six inches to a couple of feet in depth depending on the cables that needed to run along the tray. The deceased would lay those electric cables in the trays. He might return to the same tray on numerous occasions depending on how many cables had to utilise that particular course.
In the engine room there was “a maze of pipe work”.[31] The pipes had to be lagged with asbestos lagging. That piping ran adjacent to the cable trays. The laggers performed their work at the same time as the electricians and the other trades. The place was a hive of activity. The deceased at times worked so close to the laggers that they were within arms reach of each other.
[31] Exhibit A6 para [12].
The laggers used precast sections of rigid insulation taken from boxes. They would cut these sections to size. When an elbow or bend in the pipe occurred, this involved a lot of cutting with a hand saw to make segments that would fit around the pipe. This sawing was done in the engine room and on occasions right alongside the deceased.[32] It happened quite frequently.[33] The work was then completed with a wet paste otherwise known as a slurry which was applied by hand. The slurry would be made up in the engine room by mixing bags of asbestos with water. Though the deceased could not recall seeing it done, from the other witnesses that is what happened.[34] There was also the use of asbestos rope of a white or gray colour. This would be wound around the pipes, then cut with a knife and covered with the wet slurry.[35]
[32] Exhibit A6 para [13], Exhibit A7 p 43.
[33] Exhibit A7 p 7.
[34] Exhibit A6 para [13].
[35] Exhibit A6 para [14], Exhibit A7 p 7.
The work area of the engine room was like an atrium, several stories high and it housed the engine.[36] There were workers above and below at various different stages of work and that included the laggers. How long the laggers took to complete their work he could not say.[37] The laggers’ activities would distribute the asbestos dust to the workers adjacent or below them. The deceased related being covered by this dust when working in the engine room.[38] This was confirmed by his wife, the plaintiff, who cleaned his overalls.[39] If you touched this insulation material in any of its forms it would come off on to you. No masks were offered, none worn and no warnings of any type given regarding the asbestos were given.[40]
[36] Exhibit A6 para [14].
[37] Exhibit A7 p 55.
[38] Exhibit A6 para [14], Exhibit A7 pp 8, 9, 49.
[39] Tr p 66.
[40] Exhibit A6 para [17], tr p 194, The defendant concedes the deceased was neither offered or refused to wear a mask.
The deceased was unsure whether he worked on two ships at Whyalla or only one.[41] The ship or ships he worked on were diesel powered. Whether a steam powered vessel would have required greater lagging, he was unable to say, but seemed to accept it as likely.[42] However the deceased insisted that during his shipbuilding career, taking into account his work both in Scotland and Australia, he worked on less than 10 ships in total.[43] Moreover as later acknowledged, the general work systems and engineering in Scotland and Whyalla would have mirrored each other.[44] If not then much of the comparable data used by the witnesses would be irrelevant.
[41] Exhibit A7 pp 6, 22, 24. Exhibit A16 shows that at Whyalla the “Musgrave Range” was launched 9 June 1964 and completed 6 November 1964 while the “Gerringong” was launched 19 January 1965 and completed 18 June 1965.
[42] Exhibit A7 p 26.
[43] Exhibit A7 pp 47, 51, 52.
[44] Tr p 1059. Some ships had more lagging, some less, tr p 397.
Ian Charles Ewbank
Mr Ewbank commenced employment as a lagger on ships in Whyalla at the beginning of May 1965.[45] That is after the deceased had left and returned to Adelaide. He worked for the insulation contractor “Bells”, of which his father was the supervisor. Mr Ewbank senior was answerable to a fitting out engineer.[46] Mr Ewbank continued working on the ships at Whyalla till 1969 when he interrupted his service with three to four months working in Melbourne. He returned to the Whyalla ships and save for a year in New Zealand during 1971-1972 he remained performing insulation work at the shipyards until they closed in 1980.[47]
[45] Tr pp 164, 200.
[46] Tr p 189.
[47] Tr p 165.

Mr Ewbank gave details of the relevant work activities in fitting out the ships after they were launched from the slipway. He used as his example the vessel “Gerringong”.[48] In that vessel the dimensions of the engine room were 60 to 70 foot wide, 150 foot in length and 80 feet in height.[49] There was a hatchway of ten foot square above, which enabled gear to be lowered into the engine room during construction.[50] There was also access to it through the side of the hull, an opening of some ten feet square. Two gangways were located on the wharf, one through the side and the other onto the main deck. The engine room was illuminated by 32 volt globes which were arranged, “like your party lights … spread out throughout the engine room”.[51] Natural light also made its way into the engine room through the hatchway and presumably the side. The result was, “not overly bright but good enough to see”.[52]
[48] Tr p 166.
[49] Tr p 167, say 20 x 45 x 25 metres, c.f. tr p 670.
[50] Tr p 222. Others estimated the opening as about 6 x 11 metres (tr pp 326, 341) but it must have depended on the ship.
[51] Tr p 168.
[52] Tr pp 168, 223.
By the time the vessel was docked at the fitting out wharf, the larger items were already installed in the engine room. Mr Ewbank described these as the boiler, emergency exhaust, diesel exhaust and the generators.[53] The next step was to connect all these items up. The electricians would run and connect cables, boilermakers welded the brackets and the pipefitters would install all the exhaust and generator piping up the sides of the bulkheads into the funnel.[54] All the trades worked at the same time, a hive of activity.[55] Apart from the engine room, things like the accommodation were attended to.[56] Mr Ewbank estimated the “Gerringong” took more than four months at the fit-out wharf before it began its sea trials. The ventilation on the ship was turned on towards the end of the fitting-out, just before the sea trials but not earlier.[57] That blew outside air into the engine room and improved the condition of the work.[58] The laggers’ work began after sufficient pipe work existed for them to start to insulate.[59] Lagging could continue right up to when the ship was engaged in sea trials and even whilst the painters were finishing, the last trade engaged in the fitting out process.[60] The work in the engine room was done at varying levels. Around the perimeter were walkways with access to cabins where stores were located supporting the needs of the engine room.[61] The interior of the engine room had scaffolding throughout to enable access to all parts.[62] The work was done with workers above and below each other while engaged in performing their work.[63] The insulators at Bells worked in teams of seven to eight men, seven days a week, eight hours per day with additional four hours overtime Tuesdays and Thursdays.[64] The insulation had to be affixed to the main engine exhausts, the boilers, the diesel exhaust, the generator exhaust, hot water pipes, drain pipes, boiler lines and some parts of the accommodation section.[65]
[53] Tr p 168.
[54] Tr p 169.
[55] Tr pp 204, 205.
[56] Tr p 166.
[57] Tr pp 188, 207.
[58] Tr p 188.
[59] Tr p 202.
[60] Tr p 203.
[61] Tr p 169.
[62] Tr pp 169, 187.
[63] Tr p 191.
[64] Tr p 169.
[65] Tr p 170.
Mr Ewbank described the products used to insulate with the assistance of the Bells Products Information Booklet.[66] He stated:[67]
… K-Light box which is, you know, asbestos box. Pipe sections, two different types. On a small pipe they come in two halves, on a bigger pipe they’d be a segmented form where you could have anything up to six or eight pieces to go around the circumference of the pipe. Asbestos rope on all the oil lines and hot water pipes up in the accommodation. A lot of the drains that were done for personal protection only were just two layers of C9 asbestos cloth sewn around them to stop anybody actually – if they grabbed them physically burning the hand. Once the lagging was on the lagging was covered mainly with asbestos cloth or canvas which was sewn on by hand. …
Then after that if it got any bigger and that then we’d use a segmented bond on the big pipes. Eight engine exhausts – that is usually – it could be anything up to five or six foot diameter and that was done with the block sections mainly. They were cut, mitred to fit around them – we’d band them on. Any big vessels, like a – say the boiler itself, a round vessel or a silencer then we’d mitre the edge of the blocks and we’d gradually build them around and band them on. After we had banded them on we’d use a compo mixture which is like a – you know, well, a plaster mixture made up of insulation and any gaps we’d fill the gaps in with that. We’d mix it, spread it up and trowel it off and fill the gaps in with that type, yes. … [all that work] was … done in the engine room. … We used to cut the thing in place.
[66] Exhibit A17.
[67] Tr pp 170, 173.
The K-Lite product came onto the wharf in large cardboard boxes, three foot high by two foot square.[68] When possible the boxes would be carried into the engine room.[69] When opened and the segments extracted, the area would become very dusty and the workers’ overall covered with dust. It would be finished with the slurry, trowelled to smooth it top and bottom. The slurry was power-type insulation, “like a talcum powder, really fine” which would be added to water by hand. This too was done on the ship though also at times on the wharf.[70] When mixed on the ship a bag of the powder was tipped into a 20 litre drum and then water added. The bags were slightly bigger than cement bags. When dumped into the drum, clouds of dust would be emitted from the area. Some of this product would drop onto the floor or the scaffolding and go hard. Later when crushed under foot or chiselled it returned to powder.[71] All these insulation materials were constituted by asbestos of varying types including amosite.
[68] Tr p 175.
[69] Tr p 226.
[70] Tr pp 177, 208. If on the wharf a 44 gallon drum was used.
[71] Tr p 177.
The pipe insulation sections would be cut by the insulators inside the engine room as necessary using a common hand saw. The hand saw type was indicated in photographs.[72] The lagging was finished with an asbestos cloth or canvas sewn around by hand.[73] That finishing was also done in the engine room.[74] Cutting segments to go around elbows and bends required numerous sections to be cut. All hand sawing produced dust.[75] The dust was difficult to control.[76] Cardboard boxes would be placed on the floor to collect the dust. Cleaners were employed to sweep and remove the debris in the area.[77] However they created dust themselves with the sweeping. No wetting down was done to suppress the dust levels.[78]
[72] Exhibit A19.
[73] Tr p 179, Exhibit A20.
[74] Tr p 180.
[75] Tr pp 181, 214 Exhibit A21.
[76] Tr pp 215, 216, 217, 218.
[77] Tr P 182.
[78] Tr pp 186, 187, 210.
The defendant objected to evidence of asbestos mattresses used in construction on the basis that reference to mattresses exceeded the particulars given. I allowed the evidence de bene esse.[79] I rule the evidence admissible as it is well within the central assertions of the particulars. Flanges and like parts were insulated with asbestos blankets or mattresses made from asbestos cloth filled with loose amosite fibre. The mattresses were made up in the workshops away from the ship.[80] These mattresses were brought on board and put in place towards the end of the ship’s fitting. In the case of the “Gerringong” anything up to 300 to 400 mattresses were needed of various sizes and thickness.[81] They are depicted in photographs tendered.[82] Asbestos rope was also used including where two pipes ran close together. In other circumstances, where application of segments proved difficult, the laggers would apply rope. It came in a roll and once physically wrapped around the piping, was finished with either asbestos cloth or canvas sewn around it.
[79] Tr pp 172, 258, 268. These matters should also be considered given the reality of the respective counsel’s awareness of other litigation.
[80] Tr p 182.
[81] Tr p 183.
[82] Exhibit A22.
Mr Ewbank could not remember if asbestos was sprayed around the bulkheads and sides of the “Gerringong’s” super structure.[83] If applied he understood it would have been on nightshift anyway. He was aware it was done on other ships in Whyalla and recalled seeing the asbestos floating down, caught in the early sunlight coming through the portholes.[84] It would become stuck on the scaffolding and planking and during the day would dislodge, floating down through the engine room.[85]
[83] Tr p 185.
[84] Tr 225.
[85] Tr pp 185, 224.
As the laggers worked in their various activities they were in proximity to the other trades particularly in the engine room.[86] Mr Ewbank described it as, “all working on top of each other”. At times they were within touching distance of each other.[87] The generality of work practices over the period from May 1965 to about March 1969 remained relatively constant.[88] This essentially related to the products used. The only change recalled was the use of asbestos fibreglass cloth, glued on instead of sewn on. There was contention as to how long the laggers were engaged on the “Gerringong”. Given certain assumptions Mr Ewbank conceded it may have been only six weeks but his impression was it was longer than that.[89]
[86] Tr p 190.
[87] Tr p 191.
[88] Tr pp 192, 202.
[89] Tr p 206.
Peter Graham Boss
Mr Boss commenced an apprenticeship as a ship’s plumber and pipe manufacturer in Whyalla in 1958.[90] He qualified in 1963. He worked on the fitting out wharf. His function was to make templates of piping and these were taken to the workshop where the pipes were manufactured. The pipes themselves were then installed by the fitters.[91] He did this work until the shipyard closed in 1978. He spent about a third of his time in the engine room in the fitting out wharf.[92] When so engaged other trades worked in there with him.[93] That included the laggers insulating the pipes. The segments of insulation were shaped to need by the laggers using a wood saw. This caused fibres to be liberated into the air about the engine room.[94]
[90] Tr p 322,
[91] Tr p 322.
[92] Tr p 323.
[93] Tr p 324.
[94] Tr pp 325, 331.
Mr Boss described the stairs and scaffolding within the engine room and the various trades including the laggers working at the same time, some above, some below and in close proximity to each other.[95] The laggers wore overalls with “Best of Bells” or “Bell’s Lagging” signage.[96] The asbestos segments came in boxes and the segments removed inside the engine room on the job, though sometimes this might occur on the wharf and the segments brought by hand into the ship if one was dealing with the smaller ships.[97] Also the slurry was mixed in buckets both inside the engine room as well as on the wharf.[98] These processes would create a dusty atmosphere. When the laggers were working the fibres could be seen in the light coming into the engine room.[99] There were sweepers on the ship but they also caused dust.[100] Bulkheads were sprayed with asbestos at night time.
[95] Tr p 327.
[96] Tr p 327.
[97] Tr pp 328, 331.
[98] Tr pp 328, 331.
[99] Tr pp 328, 333.
[100] Tr p 333.
The laggers were on the ship a bit over half of the total fit out period. How much lagging was done was dependent on the specific needs of the particular vessel. Diesel vessels had less piping than steam vessels and consequently less lagging.[101] The “Musgrave Range” would be such a vessel. Because piping needed to be installed first, laggers would tend to commence their work later than the plumbers did.[102]
[101] Tr p 329.
[102] Tr p 330.
David Alan Shraple
Mr Shraple commenced an apprenticeship as a boilermaker in July 1954 with the defendant in Whyalla.[103] He obtained his ticket in July 1959. The last six months of his apprenticeship was on the fitting out wharf and upon completion he stayed working there until early 1964.[104] Then after two years at Perry Engineering in Whyalla he rejoined the defendant at the Steel Mill and was their Foreman Boilerman for the following 26 years.[105]
[103] Tr p 337.
[104] Tr pp 338, 351, 356.
[105] Tr p 338.
During his approximate five years at the fitting out wharf his duties involved the construction of platforms, stairways, seats and in particular what was called, “the main engine seats”. These constituted the bed into which the diesel engine was cradled. It was three feet high constituted of hundreds of compartments levelled and scribed to the deck. This involved complex measuring, cutting and welding.[106] This was done in the engine room.[107] The engine room was some 80 feet in height and filled with walkways, ladders and scaffolding. The other trades working in there included electricians, plumbers, fitters, boilermakers and the laggers. The fitting out stage would take some five months.[108] Upon the pumps being installed pipe work would start immediately and the laggers would then start the task of insulating that pipe work.[109]
[106] Tr p 339.
[107] Tr p 342.
[108] Tr p 343.
[109] Tr p 344.
The asbestos segments were cut as needed using a hand saw which liberated fibre. Also the insulating material would come off just by brushing it.[110] The mixing of the slurry occurred on the job too and the laggers would tip bags of the asbestos cement into a bucket, add water and apply it as a finish to the installation.[111] The laggers worked in proximity to the other trades.[112] Mr Shraple described fixing studs to the underside of the deck at the top of the engine room, about every nine inches.[113] These acted as anchors to asbestos sprayed on the underdeck, protecting the accommodation section from the engine room. That sprayed asbestos would flake when dry and create dust throughout the engine room.[114] While cleaners operated in the area this did not suppress the dust, rather the reverse. Indeed Mr Shraple described it as follows:[115]
A cleanup goes on all the time but then, when the laggers are there, the dust was shocking in the engine room and it wasn’t only from cleanup, it was sawing, the - spraying on the underside of the deck. That went on well before the pipes were being lagged. The spraying on the under deck, that went on soon as the studs were on and that didn’t wait for anything else.
[110] Tr p 345.
[111] Tr p 345.
[112] Tr pp 345, 347.
[113] Tr p 346.
[114] Tr p 346.
[115] Tr p 360.
Mr Shraple described the atmospheric conditions as hot and sticky in summertime and subject to drafts in the cooler weather.[116] As for lighting, it depended on large electric globes mounted around the room.[117] There was no ventilation until the end of the fitting out.[118] There were no exhaust fans.[119] No masks were worn.
[116] Tr p 347.
[117] Tr p 346.
[118] Tr p 358.
[119] Tr p 350.
Dennis Steenson
Mr Steenson commenced an apprenticeship as a boilermaker with the defendant in June 1964.[120] He obtained his ticket on 18 April 1969. The “Mittagong” and the “Musgrave Range” were the first vessels he recalled working on in about August 1964.[121] The task was to assemble all parts of the boilers including the connecting tubes, drums and casings. The work included installing the floors, gratings, ladders and platforms all the way up the sides of the engine room to the funnel. Indeed some of the asbestos insulating was installed by the boilermakers.[122] That would include cutting the segments with handsaws and knives. This could be done both in the engine room itself and on the wharf. As for the laggers, they did the cutting mainly in the engine room.[123]
[120] Exhibit A31.
[121] Tr pp 373, 374, 383, 400.
[122] Tr pp 375, 390.
[123] Tr p 389.
The laggers worked all over the engine room at tasks both above and below as well as on the same level as the other trades.[124] They started their work once pipes were installed.[125] The laggers installed asbestos both in segments and blocks as well as rope taken from big rolls.[126] That work would be finished with a slurry and then covered with cloth. The slurry was made up mainly in the engine room.[127] It was very messy work, the laggers were, “always in our way” and they were careless as to where the asbestos dust went.[128] A lot of the slurry would drip down onto the floor and had to be scraped off. Bulkheads were sprayed with asbestos on the night shift and held by studs that anchored it.[129] The dust improved and settled somewhat when the laggers had completed their work. The dust the laggers caused was different from other dust. It was like white flecks.[130] The cleaners worked only in accommodation and Mr Steenson said cleaning up in the engine room was done by both the laggers and the tradesmen. Conditions in the engine room in summer were, “horrendous, over 40 degrees and no cooling system whatsoever”.[131] Fitting out took between three and five months to complete.[132]
The Medical Evidence
[124] Tr pp 376, 386.
[125] Tr p 385.
[126] Tr p 377.
[127] Tr p 389.
[128] Tr pp 377, 385, 386.
[129] Tr pp 378, 381, 387.
[130] Tr pp 387, 393, 394, 395.
[131] Tr p 379.
[132] Tr p 384.
Professor Brian Smith
Professor Smith was the deceased’s respiratory physician and provided a report dated 7 May 2007 which he confirmed as his unchanged view.[133] Evidence was taken on the voir dire regarding his expertise. He is a Fellow of the Royal Australian College of Physicians specialising in respiratory medicine. He holds a PhD in Epidemiology, Respiratory Diseases obtained from the University of Newcastle in New South Wales and a diploma in Clinical Epidemiology in Bio Statistics from the same university.[134]
[133] Exhibit A30, tr p 290.
[134] Tr p 291.
A challenge was made by the defendant to the admission of Professor Smith’s remarks in paragraph 6 of his report and the assertion that an electrician working in the Whyalla Shipyards for BHP for ten months would typically be expected to be associated with clinically significant frequent exposure to asbestos particularly given the nature of shipyards’ work for electricians in the 1960s. Professor Smith made those statements based on the product of his learning in respiratory medicine and patients who were electricians in shipyards and heavy industry.[135] He had in fact never worked himself in shipyards. While able to give a numerical value to the notion of, “clinically significant” by consulting the relevant occupational exposure matrices to generate a figure, he had not done so.[136] That said Professor Smith had extensive experience with patients suffering mesothelioma over twenty years.[137]
[135] Tr p 292.
[136] Tr p 298.
[137] Tr p 300.
Clearly Professor Smith is an expert in the field of respiratory diseases and I do not understand that to be challenged. It is only his remark about the clinical significance of the typical exposure of electricians to asbestos at Whyalla that is objected to. It is objected to because the opinion was not wholly or substantially based on specialised knowledge, the product of his training, study or experience. If all that Professor Smith was saying was that as a result of his studies he holds the view that all significant exposures to asbestos were causative then that was an opinion within his expertise and admissible. However his opinion as expressed was not in those terms. Rather it was a conclusion about electricians in the Whyalla shipyard and what exposure would have occurred. That statement involved several premises which would need exposition for the proper consideration of the opinion by the defendant. That was not done.[138] I rule the statement as to electricians in the Whyalla shipyards to be inadmissible.
[138] See Dasreef Pty Ltd v Hawchar [2011] HCA 21 at paras [24], [35], [42], [64], [91], [98].
Professor Smith saw the deceased on 3 August 2005 when he obtained a history which accorded with that before the Court. On examination he recorded that the patient’s chest was clear and there was a mild restriction of pulmonary function. High resolution CT scan showed sub pleural arcaoles consistent with mild asbestosis, particularly in the lower zones and pleural thickenings due to plaques, some calcified, indicating asbestos exposure.[139] The deceased was referred to the respiratory clinic as being “at risk”. His review on 4 August 2006 indicated no change. On 6 February 2007 he reported increased breathlessness and the examination indicated he was suffering from mesothelioma. On 13 March 2007 a thoroscopy, pleural biopsies and talc pleuroclesis confirmed mesothelioma.
[139] Exhibit A30, p 4.

Professor Smith confirmed the diagnosis of mild asbestosis based on the CT scans. That was because the sub pleural arcaoles had a typical pattern of fibrosis often seen in asbestosis. Further the pulmonary function test in June 2007 showed mild restrictive patterns and a capacity reduced by 20 per cent. That and the history of exposure to asbestos formed the basis for his opinion.
Professor Smith described the asbestosis as follows:[140]
Asbestosis is a scarring – diffuse fine scarring, initially a fine scarring, of the lungs. It's usually associated with high-ish – high levels of asbestos exposure over many years. It can be seen with intense exposure in very short periods of time such as in miners. The scarring of the lungs leads to restriction, poor gas transfer and extreme breathlessness in advanced cases.
[140] Tr p 302.
The plaques were a strong indicator of asbestos exposure.[141] Indeed the presence of his plaques indicated he had been breathing in asbestos fibres to a clinically significant degree. The plaques were widespread, they were bilateral, they were calcified and in Professor Smith’s opinion that was extremely unusual for anything other than asbestos fibre inhalation.
[141] Tr p 320.
Professor Smith rejected the proposition that characteristic asbestosis was demonstrated by plain x-ray as distinct from CT scan.[142] Indeed CT technology had altered the approach to diagnosis of the disease. While the test results and clinical findings taken in isolation could not rule out the fibrous condition he suffered from being secondary to other causes, the history in this case was decisive.[143]
[142] Tr p 304.
[143] Tr p 306.
Matters general to the relationship between mesothelioma and asbestos were explored by the defendant. Professor Smith agreed the proposition that mesothelioma was caused by asbestos depended on the epidemiological studies. But that knowledge and the time lag of 30 to 40 years peak indicated the cause.[144] The link between asbestos and mesothelioma was, “tight”. He regarded four months working in proximity to asbestos clinically significant, though if it was merely six weeks he would need more information of the intensity of the exposure to draw such a conclusion.[145] Clinical significance was a measure of cumulative exposure, rather than of a peak exposure. Epidemiology showed there was a relationship between cumulative exposure to asbestos and the incidence of mesothelioma, particularly with certain fibre types.[146] To appreciate the cumulative exposure would involve considering details of his work with asbestos in terms of time, proximity, fibre type, processes being used, ventilation and the like.[147] Lastly Professor Smith was sceptical of Mr Rogers’ process of retrospectively calculating an actual number by using published algorithms to assess clinically significant exposures because of the vagaries of the workers’ day to day activities and the like.[148]
[144] Tr p 308.
[145] Tr p 310.
[146] Tr p 313.
[147] Tr p 314.
[148] Tr p 318.
Professor John Alpers
The plaintiff tendered the report dated 24 May 2007 of the late Professor Alpers.[149] The defendant objected to the opinion expressed at paragraph 5 on page 3 because there was no underpinning explanation allowing the defendant to test the proposition.[150] I allowed the matter to be admitted de bene esse. I now rule paragraph 5 inadmissible.
[149] Exhibit A32.
[150] Tr p 405.
The defendant also objected to the balance of the report except to those matters directly obtained by Professor Alpers from the deceased. As to the history he obtained, that accords sufficiently with the facts established before the Court. He conducted a clinical examination and noted his findings. While he was unable to review various x-rays and reports he obtained sufficient information from the report of Professor Smith. As such he concluded the deceased had calcified pleural plaques, pleural thickening and radiological evidence of asbestosis in addition to widespread nodular pleural tumour associated with his mesothelioma. He therefore concluded a diagnosis of mesothelioma and of benign asbestos pleural disease. I conclude that evidence is admissible. The details as to future medical treatment while now updated are also in fact admissible.
Associate Professor Raffaele Scicchitano
Mr Possingham, of counsel for the plaintiff, sought to tender the report dated 13 June 2007 of the late Associate Professor Scicchitano, principally to confirm his opinion that the scan showed evidence of bilateral calcified pleural plaques and asbestosis, but as well, the full report. Apart from obtaining a history and conducting an examination Associate Professor Scicchitano had copies of the Statement of Claim, the reports of Professor Smith and the CT scan of the chest performed on 8 June 2007. The history he obtained from the deceased conformed with that before the Court in all relevant respects. Much of the report was directed to appropriate treatment and its likely cost. The report ended by expressing the view that the CT scan of June 2007 shows evidence of bilateral calcified pleural plaques and asbestosis though was not supportive of right-sided pleural effusion. The report is admitted.[151]
[151] Exhibit A33.
The Objection to Professor Henderson’s Expert Evidence
The Objections by the Defendant
The essence of this was the marking of the limits of Professor Henderson’s expertise. The defendant objected to Professor Henderson giving opinion evidence in respect to matters of knowledge and foreseeability, matters of epidemiology regarding asbestos and matters that fell within the aegis of occupational hygiene. The argument was that he had no appropriate expertise in these areas.[152] This was developed in later submissions.[153] Firstly that Professor Henderson could not provide the conclusion that was for the Court to draw, inter alia because that involved the application of a legal standard. It was conceded on this score that the issue often raised a fine distinction between probative and conclusive. It was also agreed by counsel that the Court could not decide the issue of admissibility until receiving and considering the evidence.[154]
[152] Tr p 20.
[153] Tr pp 113, 275.
[154] Tr p 114.
The defendant referred to the report of Professor Henderson dealing with his expertise.[155] It was contended that his expertise was only as a pathologist, which qualified him only to recognise diseases.[156] It was submitted that three steps are involved for expertise to be recognised by the law. Firstly to identify the field of specialised knowledge in the sense of a topic the Court cannot fully appreciate without help. Secondly whether the person in question has the requisite degree of specialised knowledge.[157] Thirdly to determine whether the witness’ opinion is in fact based on that expertise.[158]
[155] Exhibit A1 p 28.
[156] Tr p 115.
[157] Tr pp 116, 275.
[158] Tr p 117. The basis rule was not advanced (tr p 118).
The defendant next referred to the supplementary report[159] where Professor Henderson addressed the report of Mr Alan Rogers, Industrial Hygienist and Mr Rogers’ opinion as to the deceased’s likely quantitative exposure to asbestos in the Scottish and the Whyalla shipyards respectively. It was the defendant’s argument that this was clearly outside his expertise.[160] As to knowledge and foreseeability, Mr Parker again challenged Professor Henderson’s expertise. He submitted first that what people knew or did not know was an issue of fact. Questions of attribution of knowledge in a corporate context as well as questions of what people ought to have known concerned the application of a legal test or standard. That was beyond matters Professor Henderson could comment on.[161]
[159] Exhibit A2 p 6.
[160] Tr pp 119, 131, 276.
[161] Tr pp 121, 1096.
The second matter of contest was the assertion that the deceased had mild asbestosis and therefore a total cumulative asbestos exposure greater than 350 years. That it was submitted concerned epidemiology and in particular the epidemiology of asbestos. The defendant alleged Professor Henderson has no expertise in epidemiology. Only Mr Rogers was so qualified.[162] Secondly such an argument was in effect an ambush of the defendant.[163] However it is clear the defendant has had notice of the mild asbestosis diagnosis for some considerable time and was aware of its significance.[164]
[162] Tr pp 123, 278. The conclusion as to exposure that could be drawn from the diagnosis of asbestosis was a fact relied on in the plaintiff’s case (tr p 263).
[163] Tr pp 123 - 124.
[164] Exhibit A33 – (Scicchitano – June 2007).
The third matter related to the National Health and Medical Research Council standard of an upper limit of 5 million parts per cubic foot, current in the relevant period. The defendant submitted what was safe in Australia for the defendant’s purposes was determined by an expert committee of that Council. Whether levels at Whyalla were safe or unsafe depended on the standard set.
Moreover the defendant contended whether the standard set by the Council was appropriate to rely on for the purposes of the duty is a question for the Court not Professor Henderson.[165] That in turn depended on the defendant’s knowledge or imputed knowledge (i.e. whether a culpable ignorance). That involved no more than identifying a publication, demonstrating its circulation and allowing a reasonable lapse of time for absorption into widespread knowledge. That was not a matter for opinion.[166] Alternatively perceived risks of asbestosis in 1965 were at best the domain of epidemiologists, tracking the state of knowledge of their discipline at various times.[167] Appendix B, Professor Henderson’s monogram “The Development of Scientific Knowledge Concerning Asbestos-related Diseases,” January 2011 was for similar reasons objected to.[168]
[165] Tr p 125.
[166] Tr p 127.
[167] The defendant did not challenge Professor Henderson’s ability to answer questions four and five at pp 13 and 14 of Exhibit A2 (tr pp 130, 131). Specific passages however would be objected to (tr p 261).
[168] Tr p 132, Exhibit A2.
The defence also objected to Professor Henderson’s evidence concerning the reports of Mr Michael Kotek and Mr Alan Rogers concerning the visibility of airborne dust on the basis that it was beyond expertise. That included the question of asbestos dust levels and their variation over time.[169] This contention I understand was admitted by Mr Possingham who conceded that it was inadmissible. Also he conceded the same in so far as Professor Henderson conducted a review of the reports of Kotek and Rogers or indicated a preference in respect to them.[170] However as I understand it these were the only concessions made by the plaintiff to the submissions of the defendant.
Ruling at Trial on Supplementary Reports
[169] Tr p 130.
[170] Tr p 139. The plaintiff disassociated herself from Professor Henderson’s use of “balance of probabilities” in Exhibit A1 (tr p 261).
The reports Exhibit A2 (Professor Henderson) and Exhibit A4 (Michael Kotek) were admitted at request de bene esse.[171] I do not intend to do other than let the reasons given ex tempore to speak for themselves. But having made reference to the relevant authority,[172] I noted at that time that the discrete field of specialist knowledge of Professor Henderson was asserted to be causation of mesothelioma. That included certain matters necessarily related thereto. I agreed with counsel that the contentious areas in Professor Henderson’s evidence were in the given circumstances best resolved after he was called. At the time I felt a final ruling should not be made prematurely. Therefore in regard to Professor Henderson’s evidence I indicated I would rule on admissibility before judgment.[173] At the same time I rejected the defendant’s contentions based on mere lateness of the two reports.
[171] See reasons tr p 282.
[172] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at para [85].
[173] Tr p 285.
Guidance from Authority
I will deal shortly with Mr Parker SC’s contention that Professor Henderson’s reports attempted to displace the Court’s role. In Ramsay v Watson[174] the Court stated the principle to be observed as follows:
… That some medical witnesses should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves ‘Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?’ (The emphasis is mine.)
[174] (1961) 108 CLR 642 at 645.
Obviously the test of causation is a legal test. Moreover it is not a deduction according to scientific certainties.[175]
[175] March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 509, Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at paras [79], [80], [93].
The relevant statement from Makita about the qualifying conditions for admissibility is in the following terms:[176]
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded.
[176] Makita at para [85].
The Makita tests were considered by the Victorian Court of Appeal in R v Farquharson.[177] That Court confirmed there must be a field of specialised knowledge or an organised branch of knowledge in which the witness is an expert.[178] An organised branch of knowledge is normally one in which those trained or experienced, shared generally accepted principles and techniques, partaking in the nature of science so as to require a course of study in order to obtain the knowledge. Medicine is one of those fields. Secondly there needed to be an identified aspect of that field of specialised knowledge the witness by reason of specific training, study or experience had become expert in.[179] The Court of Appeal said:
... The nature and extent of studies required, however, depend on the science in question. It is important to keep in mind that it is not only the general nature, but also the precise character of the question upon which expert evidence is sought to be given which is determinative of whether the putative expert’s qualifications are sufficient. Satisfaction of the second test is thus a question of fact and degree. (The emphasis is mine.)
[177] [2009] VSCA 307.
[178] Ibid para [78].
[179] Ibid para [79].
The facts in Farquharson are instructive. The issue was an opinion given by Dr Naughton as to cough syncope, a rare neurological condition but within the ordinary knowledge of physicians, or at least something which it may be supposed was within the ordinary knowledge of a specialist thoracic physician. It was something about which doctors were taught or read or were expected to know even if most of them never got to deal with a patient suffering from it. The Court said:[180]
It follows, we think, that it was not essential for Dr Naughton to have specialised in the study of cough syncope as such in order to express an opinion concerning its occurrence and aetiology. … So to say is not to minimise the significance of Dr Naughton’s confessed lack of study of the subject. Given his admission on the voir dire that his reading on cough syncope was confined to ‘The Textbook of Respiratory Medicine’ and the one journal article of which he could not remember the name, it was open to the jury to conclude that his opinion as to the likelihood of an attack of cough syncope may have been no better informed than that of a well read general practitioner. But that limitation goes to the weight of Dr Naughton’s evidence, not its admissibility.[181]
[180] Ibid paras [80], [81].
[181] The decision in R v Farquharson also deals with what it describes as the third to the seventh tests in Makita. These must always be satisfied but were not the basis of the defendant’s submissions here (see paras [83], [85] and [86]. A dissection into five conditions as distinct from seven is made by Debelle J in R v Bjordal (2005) 93 SASR 237 at para [27] but in effect the difference is immaterial here.
Further assistance can be gained from the Court in R v Bonython.[182] In that case King CJ said:
Before admitting the opinion of the witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.
[182] (1984) 38 SASR 45 at 46, 47.
In Milirrpum v Nabalco Pty Ltd[183] the Court considered whether, and to what degree, expert evidence was admissible in respect to matters of native title in Arnhem Land. On the question of admissibility, Blackburn J made the following remarks:[184]
The Solicitor-General did not dispute Professor Stanner’s general qualifications as an anthropologist, but contended that because of his limited experience with the Aboriginals of the subject land he was not qualified to give expert evidence in this case. In such a matter, it seems to me, there can be no precise rules. The court is expected to rule on the qualifications of an expert witness, relying partly on what the expert himself explains, and partly on what is assumed, though seldom expressed, namely that there exists a general framework of discourse in which it is possible for the court, the expert and all men according to their degrees of education, to understand each other. Ex hypothesi this does not extend to the interior scope of the subject which the expert professes. But it is assumed that the judge can sufficiently grasp the nature of the expert’s field of knowledge, relate it to his own general knowledge, and thus decide whether the expert has sufficient experience of a particular matter to make his evidence admissible. The process involves an exercise of personal judgment on the part of the judge, for which authority provides little help. I accept with respect what Menzies J said in Clark v Ryan at 503, that it ‘is very much a question of fact’ but it seems to me a question of fact of a peculiar kind, not unlike the question whether a judge may take judicial notice of some matter. (The emphasis is mine.)
[183] (1971) 17 FLR 141
[184] At p 160.

I also refer to BI (Contracting) Pty Ltd v University of Adelaide.[185] The defendant expressly referred to it.[186] In that case one of the issues was the state of medical knowledge of the dangers of inhaling asbestos dust and fibres, that was available to “informed industry participants” in 1961. The conclusion reached on this matter by the Court is found in paras [20] and [23] of the decision:
[20]The issue here is not proof of the general facts of history, but the state of medical knowledge of the dangers of the inhalation of asbestos dust and fibre that was available to informed industry participants (which BIC conceded it was) in 1961. An inference may be drawn from the state of knowledge in this respect as to the foreseeability of the risk of injury to a person exposed to asbestos dust and fibre, a consideration that is relevant to the inquiry at the level of duty and breach.
…
[23]… The expert’s study and training equips them to undertake a literature review and to assist the Court to understand the significance of what is contained in it. The expert is available to be cross-examined. In Mr Parker’s submission, an expert who was not in practice in the field at the date of the publication of an article is not qualified to express an opinion about the authority of the article or the standing of the journal at the date of publication. I do not accept that is so. An opinion that a journal was authoritative in 1961 does not involve conjecture about what people believed about it in 1961, but is likely to be an inference drawn from the quality of the articles appearing in the journal over a period and the references to it in other publication within the field of specialty. In determining whether publication of an article in a journal is likely to have informed the knowledge of informed industry participants in 1961, the Court may be assisted by expert opinion concerning the authority of the publication.
[185] [2008] NSWCA 210.
[186] See Submissions Appendix D “Expert Evidence”.
The Court also ruled that in determining whether an article was likely to have informed the minds of, “informed industry participants in 1961”, it might be assisted by expert opinion concerning the credentials of the publication and that witnesses could give evidence of the state of knowledge within their specialty based upon a review of the past literature.[187] In so concluding Her Honour drew on both the decision of Gray J in Trevorrow v South Australia (No 5)[188] and the text by Sir Richard Eggleston,[189] describing the “librarian function”.[190]
[187] At para [26].
[188] (2007) 98 SASR 136.
[189] “Evidence: Proof and Probability”, Richard Eggleston, 2^nd Ed, London 1983 pp 153.
[190] The relevant part is found in the 1978 edition at p 131.
Lastly I would for its utility refer to the summary found in the work of Mr Wells QC as he then was.[191] I do so because of the authority of the author. He stated:
7.8(b)In order to qualify personally as an expert in a recognised subject, the court will ordinarily have regard to-
(i)The qualifications – degrees, diplomas, licences, fellowships, associateships or certificates – previously obtained by the witness.
(ii)The extent to which he has made a special study of his subject and the diligence with which he keeps up to date with modern development: (does he, for example, read the recognised text books and authoritative journals as they appear?).
(iii)The practical experience gained in exercising his knowledge in his special field, and the degree of authority and responsibility exercised and carried while doing so.
(iv)The number of times he has been permitted to ‘give expert evidence’ (that is, offer his opinions as an expert) in previous trials.
[191] “An Introduction to the Law of Evidence” WAN Wells, 3^rd Edition, 1974, Government Printer South Australia.
These remarks confirm the earlier comments that there exists some scope in the court’s decision to qualify an expert witness.
The Identified Fields in which Professor Henderson is Qualified
Professor Henderson’s field of specialised knowledge is medicine.[192] The identified aspect of medicine in which the witness demonstrated an expertise was stated as “pleuro pulmonary pathology, especially multi-disciplinary aspects of asbestos related disorders - pleural plaques, diffuse pleural fibrosis, benign asbestos pleuritis with effusion, asbestosis, lung cancer, malignant mesothelioma” and studies related thereto.[193] Also the causation of asbestos related diseases and related matters. Professor Henderson describes pathology as inter alia the science that deals with the causes and effects of disease.[194] His research in the asbestos related area is now primarily directed to molecular genetics of mutations induced by asbestos fibres in culture cell lines and in transgenic mice, the potential muted genicity of man-made mineral fibres and the immuno-histological chemical investigation of malignant mesothelioma.[195]
[192] MBBS University of Adelaide 1966; Fellowship of the Royal College of Pathologists of Australia, Special Anatomical Pathology 1973; a member of the Royal College of Pathologists (UK) 1990 granted on the basis of published works; Chief Examiner, Anatomical Pathology, The Royal College of Pathologists of Australia 1993; Professor of Pathology, Flinders University (personal Chair) 1994; Fellowship of the Royal College of Pathologists (UK) 1997; Honorary Fellowship of the Hong Kong College of Pathologists 2001 among many other career achievements: Exhibit A2 Curriculum Vitae pp 3-7, 9, 15-17.
[193] Exhibit A1 p 19.
[194] Tr p 423.
[195] Exhibit A2 p 19.
However the matters in the identified field for which Professor Henderson has demonstrated expertise are extensive. He is broadly speaking a scientist engaged in research into the topic of asbestos diseases. His comprehensive statement regarding expertise was tendered in Court, too comprehensive to be detailed in these reasons. I incorporate that information by reference.[196]
[196] Exhibit A1 pp 19-21; Exhibit A2 Curriculum Vitae pp 2-54.
Evidence as to Professor Henderson’s expertise was also elicited from the witness box.[197] In particular he dealt with his experience with epidemiological materials though he himself did not hold epidemiological qualifications.[198] It is plain he has a comprehensive understanding and command of epidemiology, particularly as it touches on asbestos related diseases.[199] For instance as one of the four scientific advisers to the World Trade Organisation concerning an international dispute over the importation of Canadian chrysotile asbestos into France he was involved in surveying extensive epidemiological data debated by the contesting parties.[200] He has satisfied me he has the capacity to critically evaluate and give expert testimony regarding epidemiological materials relating to any study involving asbestos and asbestos related diseases.[201]
[197] Tr p 421 onwards.
[198] Exhibit A1 p 29, tr p 488.
[199] Tr pp 422, 425, Exhibit A2 p 35.
[200] Tr pp 423, 424.
[201] Tr p 426.
As to the literature relating to the topic of mesothelioma and other asbestos related diseases, he has read and researched the literature widely.[202] He has until recently been part of the Australia Mesothelioma Surveillance Program. He has been a member of the International Mesothelioma Panel examining the diagnostic criteria for malignant mesothelioma, for which he wrote the chapter on epidemiology.[203] It is a marked indicator for the question at issue to record the many publications detailed by Professor Henderson.[204] These include books such as “Ultrastructural Appearances of Tumours: A Diagnostic Atlas”,[205] “Malignant Mesothelioma”[206] and “Pathology of Malignant Mesothelioma: An Update Prepared by the International Mesothelioma Panel”.[207] Also chapters in books, monographs, papers in peer reviewed journals, commentaries, journal letters, peer reviewed asbestos conference presentations.[208] These are all related to multiple facets of the “identified field” namely asbestos and its disease including the pathogenesis of mesothelioma. Mr Parker SC did not cross-examine on such matters.[209] Finally reference was made to the remarks contained in the judgment of Basten JA in Amaca Pty Ltd v Booth[210] regarding Professor Henderson and among other things that he was an internationally recognised expert of pleural tumours and mesothelioma.[211]
[202] Tr p 424.
[203] Tr p 424.
[204] Exhibit A2 pp 35-54.
[205] Henderson and Papadimitriou, Edinburgh, 1982.
[206] Henderson, Shilkin, Langlois, Whitaker, New York, 1992.
[207] Galateau-Salle, Henderson et al London, 2006.
[208] Over 300 such publications.
[209] Tr p 425.
[210] [2010] NSWCA 344 at para [6].
[211] Tr p 9. See also Sim v Allianz Australia Ltd [2010] NSWDDT 19 at paras [168], [169].
Ruling on the Admissibility of Professor Henderson’s Opinion
As indicated Professor Henderson’s reports and generally his evidence, were received de bene esse.[212] The issue taken by the defendant was the limits that should be placed on Professor Henderson’s expert testimony. Professor Henderson’s comments regarding visibility of airborne dust and his comments regarding his preference for the report of Mr Kotek over Mr Rogers were conceded as I have noted.
[212] Tr pp 13, 14, 20, 21, 37, 38, 113, 275.
I reject entirely the contention by Mr Parker that Professor Henderson’s expertise was limited to that of “a pathologist” and merely concerned the recognition of diseases by examination of tissues or specimens. Given Professor Henderson’s achievements and his demonstrable body of work and study, such a contention borders on the demeaning. I am satisfied Professor Henderson is qualified to give expert evidence in respect to the relationship between asbestos and disease, including the pathogenesis of mesothelioma, lung cancers and asbestosis. In so testifying he will not presume my role to decide the ultimate issue. He is however qualified to express his opinion in regard to facts relevant to the causation issue.[213] I so rule. I also rule that he is qualified to give evidence regarding the admitted epidemiological studies and their analysis and evaluation. Moreover he is qualified to give evidence as to the literature published regarding asbestos and disease over time. In this he is qualified not only to indicate the import of any particular publication but also its authority. That said I regard myself as able to judge the reliability and availability of such publications as the Lancet or the Medical Journal of Australia or the New England Journal of Medicine. However matters regarding the availability of the publications is not generally included in my ruling. Professor Henderson is, as conceded, not in a position to give evidence preferring one occupational hygienist over another or indeed the expertise that falls exclusively within the expertise of the field of occupational hygiene.[214] Some parts of his expertise may be shared with that expertise however. And there will be occasions when, given the extraordinary extent of his research and experience, indicated by his many publications, he may provide the Court the value of an understanding it would otherwise be denied. If such is the case it will be evident in these reasons.
[213] See submissions tr pp 1136 – 1141.
[214] Tr p 520.
In summary I rule the evidence of Professor Henderson:
(a)     as to the significance of visible airborne dust in the workplace;
(b)as to whether in light of the NHMRC adoption of a MAC, the level set was a safe level to be relied on by a large corporation given the state of knowledge at the relevant period;
(c)     as to matters of law;
(d)    as to preferring the opinions of Mr Kottek as against Mr Rogers;
is inadmissible.
The evidence of Professor Henderson:
(a)regarding all aspects of the causation of mesothelioma and other asbestos related diseases;
(b)detailing the literature that exists relating to asbestos and its diseases and the reliability of such literature (the library function);
(c)drawing material from and evaluating the reliability of epidemiological studies and materials relating to asbestos and asbestos related diseases;
(d)assuming a diagnosis of mild asbestosis, whether that was consistent with any particular accumulative total in fibre/ml years;
(e)generally regarding scientific methodology and scientific reliability and validity of tests and exercises concerning asbestos;
(f)commenting on matters that are within Professor Henderson’s expertise though also within the scope of the expertise of industrial hygienists;
is admissible.
Professor Henderson’s Evidence
Professor Henderson’s Report of 19 September 2007, Exhibit A1
Given that no issue arose regarding the diagnosis of mesothelioma or that it was secondary to asbestos inhalation,[215] in his first report the matters Professor Henderson was asked to comment on were whether the deceased’s work at Whyalla made a material contribution to his mesothelioma. Professor Henderson gave his evidence on the basis that his opinions entailed mainstream scientific opinion.[216] He listed the materials before him all of which had been received into evidence such as the opinions of Professor Smith and Professor Alpers. He also had Mr Hamilton’s affidavit.[217] He personally examined 29 glass microscopic slides of the deceased’s pathology.[218] He described the primary disease as left pleural tumour of malignant mesothelioma biphasic in type.[219]
[215] Tr p 493.
[216] Exhibit A1 p 2.
[217] Exhibit A6.
[218] Exhibit A1 p 4.
[219] Exhibit A1 p 5, tr p 496.
His report then listed the history assumed. I am satisfied that history adequately accords with that accepted as accurate by this Court. Professor Henderson did make certain assumptions including the correctness of the diagnosis of Professor Smith though the diagnosis of mild asbestosis was beyond the requested opinion.[220] He assumed the asbestos the deceased was exposed to included commercial amphibole asbestos (crocidolite and/or amosite), that the fibre types in both Scotland and Whyalla did not vary significantly and that the deceased worked in the engine room in the fit-out wharf for not more than 80per cent of the ten month period he was there.
[220] Some evidence was given regarding asbestos and the production of plaques, tr p 497.
As to causation he emphasised the following as relevant. While all forms of asbestos could cause mesothelioma it was the commercial amphibole crocidolite and amosite that were more potent on a fibre for fibre basis than the chrysotile (white asbestos). The ratios were uncertain. Studies on the topic gave figures ranging from 500:100:1 to as low 26:14:1. No minimum threshold level of exposure had been determined and most authorities assumed no level was safe due to the “Peto” model and its modifications. There was a cumulative exposure relationship to the disease (intensity, frequency and duration) multiplied by time in years raised to the fourth power.[221] Time elapse following commencement of exposure was a major determinant of risk and early exposures were more significant for risk than later ones, all other factors remaining constant.[222] However and importantly the “Peto” model and its modifications demonstrated that where there are multiple asbestos exposures, each contributes in a cumulative way, and hence to the causation of mesothelioma within a latency interval.
[221] Exhibit A1 p 11.
[222] This generality had qualifications indicated by available studies: see Exhibit A36 “Malignant Mesothelioma and Occupational Exposure to Asbestos: A Clinico Pathological Correlation of 1445 Cases” Roggli and Others 2002 indicative of the complexity of the disease.
It must be clearly understood that it is this last proposition, that each exposure contributing to the mesothelioma within a latency period which was disputed by the defendant. However the defendant’s position was not to reject the proposition that the disease was related to concentration and duration of exposure as well as fibre type, nor did the defendant contend anything like the one fibre hypothesis.[223] The defendant submitted that when Professor Henderson spoke of “cause” he meant “risk”.[224] As counsel for the defendant agreed, it is universally agreed that concentration and duration are factors and that different fibre types are very influential.[225] That argument however did not mean all exposures contributed. Certainly once the cancer was triggered, further exposure was irrelevant.
[223] Importantly the earlier English cases assumed while an added risk developing of mesothelioma did occur with the greater the quantity of dust and fibre inhaled, the condition could also be caused by a single fibre and none of these possibilities were more probable than the other: Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; (2003) 1 AC 32 at para [7]. The single fibre contention was later discarded: see Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10 per Lord Phillips at paras [40], [102].
[224] Tr pp 1121, 1122, 1124, 1125, 1128.
[225] Tr pp 1128, 1129, c.f. 450 where Professor Henderson’s statement appears.
It was Professor Henderson’s evidence that the “Peto” model, apart from concluding each exposure contributed to the mesothelioma within an appropriate latency interval indicated other features. It indicated that early exposures to asbestos were more significant for mesothelioma induction than later exposures other factors being equal.[226] Other data showed that despite the extent of progress in understanding the disease and its causes there did remain enigmas.[227] Some of this indicated environmental as opposed to occupational exposures particularly in the urban setting. However the statistical data from the United Kingdom published by the Health and Safety Executive[228] reported occupations with the highest risk of mesothelioma were generally associated with three broad areas of asbestos use, namely shipbuilding; railway carriage and locomotive building; and insulation or maintenance of lagging in building and industrial plants, thus supporting the load hypothesis.
[226] Exhibit A1 p 11.
[227] Exhibit A1 p 12.
[228] “HSE Mesothelioma Occupations Statistics: Male and Female Deaths Aged 16-74 in Great Britain, 1980-2000 (excluding 1981)”, London 2003.
Support for the hypothesis was in fact provided in the explanation of background exposure.[229] That is the general environmental exposure particularly in the urban setting. The proposition was that asbestos containing materials are ubiquitous and derive from building materials, car brakes and the like. All adults, regardless of any history of occupational or non-occupational exposure had asbestos fibre in their lung tissue. The number of fibres involved in this group was considerable.[230] Yet the background mesothelioma rate was probably substantially less than one case per million per year. Thus it was significant that in all studies of the incidence of mesothelioma, the control group representing a comparable group of individuals had background or greater levels of asbestos in their lungs. The significance of fibre load in contracting mesothelioma was therefore self-evident.
[229] Exhibit A1 p 14.
[230] “Background Median total asbestos fibre concentration for control/reference population estimated at 360,000 fibres per gram of dry lung tissue” Exhibit A1 p 15, tr p 453. Some 30-50 grams of dry lung tissue is found in healthy persons, tr 456. Professor Henderson confirmed in evidence background cases of mesothelioma are extremely rare, tr p 429.
Professor Henderson then addressed the latency interval between commencement of asbestos exposure and subsequent diagnosis of mesothelioma.[231] The mean latency interval was 37 years in the Australian Mesothelioma Surveillance Program and 42 years by the Workers Compensation (Dust Diseases) Board NSW. Similar other figures had been published. Professor Henderson regarded research as setting a minimum latency interval of ten years following the first asbestos exposure.[232] In this case, the deceased’s interval was taken as 47 years and compared with the published medians.[233] Genetic factors were relevant though the presence of asbestos was always a pre-requisite. The victims’ individual variables were also indicated.
[231] Exhibit A1 p 16.
[232] Exhibit A1 p 17.
[233] 47 years assumes exposure first in 1960 as his diagnosis was 2007. The lapse for Whyalla was on this basis 43 years, 6 years longer than the mean latency of the AMSP but almost exactly the mean published by the WC(DD)B (NSW).

(And quoting Vairy):[909]
The enquiry into breach although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk and one of the possible answers to that enquiry must be ‘nothing’.
[909] Vairy v Wyong Shire Council (2005) 223 CLR 422.
Lastly in Road and Transport Authority (NSW) v Dederer[910] Gummow J stated:
In simple and complicated cases alike, one thing is fundamental: while duties of care may vary in content or scope, they are all discharged by the exercise of reasonable care. … The exercise of reasonable care is always sufficient to exculpate a defendant in an action for negligence. In Blyth v Birmingham Waterworks Alderson B laid down the nature of the action as long ago as 1856 [references omitted]:
‘Negligence is the omission to do something which a reasonable man, guided upon the considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’
…
It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.
…
… Whether reasonable care was exercised in the particular case is a question of fact going to the breach of any duty owed, not to the existence of that duty. In each case, the question of whether reasonable care was exercised is to be judged prospectively, and not by retrospectively asking whether the defendant’s actions could have prevented the plaintiff’s injuries.
[910] (2007) 238 ALR 761 paras [49], [59], [65].
The starting point however for an examination of the content of the duty of an employer to an employee is succinctly stated by Hayne J in Crimmins v Stevedoring Committee.[911] The case involved a waterside worker employed at Port Melbourne between April 1961 and November 1965.[912] The evidence permitted a finding that during that period the employers knew or ought to have known that dust generally and asbestos dust in particular was likely to harm those who came into contact with it.[913] Even though it was argued the defendant did not know of the risk of mesothelioma it knew that exposure to asbestos could be injurious to health. The High Court remitted to the Victorian Court of Appeal who confirmed the judgment of the trial judge in favour of the plaintiff for damages arising from negligence.[914]
[911] (1999) 200 CLR 1.
[912] Para [53].
[913] Paras [45], [58].
[914] Stevedoring Industry Finance Committee v Henderson (2000) 2 VR 396.
The relevant quote from Crimmins was as follows:[915]
The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute; it is the duty ‘of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury’: Hamilton v Nuroof (WA) Pty Ltd.[916] See also Vozza v Tooth & Co Ltd;[917] Bankstown Foundry Pty Ltd v Braistina.[918]
Both the power to direct and the power to control are important. As was said by Mason J in Kondis v State Transport Authority:[919]
‘The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken.’
[915] Paras [276], [277].
[916] (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J.
[917] (1964) 112 CLR 316 at 319 per Windeyer J.
[918] (1986) 160 CLR 301 at 307-308 per Mason, Wilson and Dawson JJ, 313 per Brennan and Deane JJ.
[919] (1984) 154 CLR 672 at 687-688.
The dominant position of the employer importantly informs the duty of care in an employer/employee relationship. It extends to an obligation to allow for a worker’s inadvertent and careless behaviour and the worker’s failure to take reasonable care for his or her own safety.[920] It involves continually reviewing the situation as better information comes to hand.[921] The idiosyncrasies of each worker must be taken into account.[922] If risk cannot be eliminated reasonable care should be taken to lessen it.[923]
Findings on the Content of the Duty
[920] McLean v Tedman (1984) 155 CLR 306 at 313.
[921] Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 at 760 per Lord Denning.
[922] Paris v Stepney Borough Council [1951] AC 367.
[923] General Cleaning Contractors Ltd v Christmas [1953] AC 180.
The substantial points of issue raised by the defendant were the content of the admitted duty of care in the circumstances, and further what ought to have been done that it failed to do which resulted in injury. The Trial Book sets out the plaintiff’s pleadings on this. She firstly alleges a failure to warn.[924] She secondly pleads failure to provide adequate protective equipment or other appropriate respiratory protection to prevent the inhalation of asbestos dust and fibres by the deceased.[925] She thirdly pleads a failure to control the release of asbestos fibres occurring in or about the premises.[926] She fourthly pleads a failure to provide ventilation to extract asbestos fibres from the atmosphere.[927] She fifthly pleads the defendant failed to enquire as to the dangers asbestos posed to its employees or obtain advice as to the risks or act on that advice.[928] She sixthly pleads that the defendant failed to institute safe systems of work to reduce the dangers of asbestos.[929]
[924] Statement of Claim para [14.2].
[925] Statement of Claim paras [14.3], [14.4].
[926] Statement of Claim paras [14.5], ]14.6].
[927] Statement of Claim para [14.7].
[928] Statement of Claim paras [14.8], [14.9].
[929] Statement of Claim paras [14.11], [14.12], [14.3].
There is a plea in respect to s 304(1)(c) of the Industrial Code 1920. That was the legislation applicable at the relevant time.[930] It alleges breach of statutory duty. However the defendant relies on s 277(1) which confers the application of the Code to the metropolitan area. I uphold the defendant’s submission that the provisions of the Code in this respect did not apply to the operation at Whyalla.
[930] Oaten v Diemould Tooling Services Pty Ltd [2007] SAIRC 44 at para [99].
There appear to be four general groupings to the plaintiff’s contention of content of the duty. These are a failure to provide a safe place to work, a failure to warn, a failure to conduct proper investigations regarding the materials being used (i.e. asbestos) and a failure to provide proper clothing and equipment for the work to be safely carried out. I find that each of these obligations fell within the scope of the relevant duty of care in the given circumstances. They constitute the content of the duty owed in the circumstances that the defendant knew or ought to have known asbestos was a hazardous material. It was a case in which the content of the duty was informed by and was commensurate with the gravity of the consequences.[931] I find a reasonable person in the defendant’s position would have foreseen a serious risk of injury to the class of person which included the deceased and set about consideration of what could be done in reasonable response to that risk.[932]
[931] Paris v Stepney Burrough Council (above cited) at 385.
[932] Kuhl v Zurich Finance Services Australia Ltd (2011) 243 CLR 361 at paras [19], [21], [22].
The principle to be applied at this juncture remains the “Shirt calculus”.[933] Mason J, as he then was, in Wyong Shire Council v Shirt stated: [934]
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
[933] See RTA (NSW) v Dederer at para [18] per Gummow J.
[934] (1980) 146 CLR 40 at 47.
I find as follows. The defendant knew or ought to have known that the asbestos it was using was hazardous. If it had made due enquiry about its possible dangers, it would have discovered on the literature asbestos presented a serious risk of lung disease including asbestosis, lung cancer or mesothelioma. It would have appreciated that responses to asbestos dust inhalation were variable and different workers had different susceptibilities. It would have realised asbestosis, lung cancer and mesothelioma appeared load related. The danger occurred when the asbestos in dust form was inhaled. The literature indicated that while the dosage and duration needed to cause harm was unknown it may have been satisfied by high dosage of short duration. Therefore the only reasonable approach and the one generally recommended by the experts was to reduce the inhalation of dust so far as was reasonably possible. Moreover it was part of the content that the workers who were likely to be exposed to the risk should be informed of the danger. With respect to the latter I regard any other expectation would be to suggest the men be treated as helots.
In particular I find that a reasonable employer with the knowledge that the defendant had or should have had would have realised that any MACs in regulations or stated in Dreessen were questionable at best. To conclude observance of a 5mppcf limit as sufficient response, given the information available, particularly Fleischer, but also McLaughlin, would have been obtuse, on the basis of the available information.
Findings on Preventability
It is ironic that had the defendant at the relevant time put a fraction of the investigative effort as had been expended in defending this claim into a sensible and warranted examination of the dangers of asbestos and what ought to be done to reduce dust levels, there would be little chance that they would not have realised the dangers and acted. A reasonable employer could have taken action to suppress the dust. Instead nothing was done in this regard.
The defendant should have made appropriate enquiry and investigation. Had it been made at the appropriate time and reasonably assessed, on the basis of the evidence before me and which was available to the defendant, it would have found high levels of asbestos laden dust in the engine room. That would have informed it that action had to be taken.
I find that steps could and should have been taken and indeed were taken shortly after the relevant time as is evidenced by the fact that the dustiness in the workplace was dramatically changed between 1965 and 1968. This is demonstrated by Dr Wilson’s finding. In contrast to the shocking state of dustiness described by the witnesses in the engine room in 1964, the dust created by any of the processes in 1968 was found to be so slight that it was impracticable to carry out any meaningful form of air sampling. It is clearly a basis upon which I can make a finding that actions could reasonably have been taken in 1964.
I find on a basis of the available literature detailed by me including the American studies and the studies by Harries, that there were many actions that could have been taken so that the deceased would not inhale the levels of asbestos he did while he was engaged in his workplace. But more significantly there were measures at Whyalla that were shown to work. Ventilation ought to have been operative during the fit-out. When operated, clearly it had a significant effect.[935] The spraying of asbestos on the bulk heads and other surfaces was done at night to avoid exposing the other workers. The laggers could have done their work also in the absence of the tradesmen. Indeed this was accepted as being so.[936] When the laggers were not there the evidence was there was hardly any dust. The cutting and mixing could have all been carried out on the wharf. The defendant acknowledges this implicitly with its contention that indeed this occurred, a contention I have rejected. It certainly ought to have occurred. Respirators and clothes could have been provided and the men made to wear them. This was subsequently done. It could have been done in 1964 without apparent difficulty. The cleaners could have used vacuum cleaners. Ultimately they did.[937] That could have been so in 1964. Wetting down could have been instituted. As indeed it was in the end. Had all these steps been taken at or before 1964, as I find a reasonable employer would have taken, the levels of asbestos dust inhaled by the deceased would have been a small fraction of what indeed he inhaled. Each of these actions that ought to have been taken and were not taken amounted to breaches that led to damage.[938]
[935] Tr pp 188, 207.
[936] Exhibit R68 Letter 14 dated 21 January 1969, Douglas to Manager Industrial Relations.
[937] Exhibit R68 Letter 15 RG Hawke to Bells Thermolag dated 23 January 1969.
[938] See paras [177], [185], [186], [236].
I refer to the obligation to warn. I find had the deceased been warned it would likely have been the last straw and he would have left Whyalla probably within weeks. He ultimately cut short his contract with the defendant. That is because upon his arrival in Whyalla he was significantly disenchanted with what he found there. It was far different from his and his wife’s expectations. The landscape was harsh, a far cry from what he would have appreciated in Scotland. There was no social life and facilities were distant. He disliked the job he was given and regarded it as demeaning compared with his employ in Scotland.[939] With the added knowledge of the danger the asbestos posed of cancer and the fact that little was being done to reduce the asbestos dust in the workplace, he would unlikely have tolerated the situation. He would have in all likelihood translocated to Adelaide.
[939] Exhibit A6 paras [9], [18].
Findings on Negligent Causation of Injuries
The failures to reduce the levels of asbestos dust in the workplace were causative of the mesothelioma and the mild asbestosis on the evidence of Professor Henderson. His evidence was that all significant inhalations of asbestos were making a significant contribution to the ultimate mesothelioma. The failures of the defendant caused a significant load of inhalation of the asbestos dust. I find the cause established on that basis. The failure to provide suitable clothes and respirators was to the same effect. The failure to warn lead to the deceased staying in Whyalla for the ten months of significant exposure.
In Roche Mining Pty Ltd v Jeffs[940] McColl JA, with whom the other Members of the Court agreed, dealt with a case decided within the legislative framework of the Civil Liability Act 2002 (NSW). However parts of her decision gives guidance to the case here. Her Honour stated:[941]
… To satisfy the element of causation [the plaintiff] had to identify the action which, on the available evidence, the primary judge could conclude ought to have been taken. That action, if failure to take it was to be considered negligent, had to be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of the risk and the extent of injury should the risk mature into actuality. It was necessary to establish that the primary judge could conclude as a matter of direct evidence or legitimate inference that, more probably than not, the [remedial action] would have prevented or minimised the injuries the respondent sustained: Kuhl (at [45]) per French CJ and Gummow J; at [104] per Heydon, Crennan and Bell JJ (all citing State of Victoria v Bryar).[942]
[The defendant’s] written submissions on causation contended that the respondent had to establish that the [remedial action] would have obviated the risk of injury and that it was not sufficient that it be established that that system would have reduced the risk. It is apparent from Kuhl (and numerous other authorities, as to which see Varga v Galea[943]) that that submission must be rejected. It is sufficient that the suggested precaution would have minimised the injury. …
[940] [2011] NSWCA 184.
[941] Paras [80], [81].
[942] (1970) 44 ALJR 174 at 175 per Barwick CJ, McTiernan, Owen and Walsh JJ concurring.
[943] [2011] NSWCA 76 at [25].
The principle is stated in Kuhl v Zurich Financial Services:[944]
To satisfy the element of causation … it would be necessary to identify the action which, on the available evidence, the trial judge could conclude ought to have been taken; that action, if failure to take it is to be accounted negligent, must be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of that risk and the extent of injury should the risk mature into actuality; and it would be necessary that the trial judge could conclude as a matter of evidence and inference that, more probably than not, the taking of the action … would have prevented or minimised the injuries the plaintiff sustained: Victoria v Bryar (1970) 44 ALJR 174 at 175.
[944] (2011) 243 CLR 361 per French CJ and Gummow J at para [45].
I find the mesothelioma and the mild asbestosis was caused or materially contributed to by the various specified breaches of the defendant’s duty to the deceased.
The plaintiff has sought that I make findings in accordance with s 8(4). I do not regard that as appropriate in this case. It seems to me that provision should be used sparingly as it amounts to a denial of the right to argue a matter that a party may genuinely want to agitate and with good reason. Moreover it should operate only after the opposing side has been heard as to the particular finding it is sought to have the Court admit into evidence. It seems to me primarily there to prevent the unmerited recontesting of issues which have been thoroughly examined previously and are no longer reasonably debatable. No such issue can be said to have been involved in this case.
Assessment of Damages
The plaintiff gave evidence. She was born on 28 March 1942, married the deceased on 20 October 1962 and with him had a family of four children.[945] The family arrived in Australia on 26 May 1964. The family moved to Adelaide in about April or May 1965.[946] In 1965 the deceased sustained face injuries in a car accident but he appeared to have made a full recovery.[947] He obtained employment eventually with the Electrical Control Services as an electrician but rose to manage the company and retired in August 2000.[948]
[945] Tr p 60.
[946] Tr p 66.
[947] Tr p 67.
[948] Tr p 67.
The plaintiff herself suffered knee problems resulting surgery to the left knee in 1977 and a second operation to the same site some years later. In 1988 she suffered a back disability and sometime later underwent surgery from a Dr Cindy Molloy. At about the same time the left leg pain returned. She underwent further surgery to the low back from Dr Molloy in February 2001.[949] Since then she has been unable to function fully and the condition fluctuates being vulnerable to aggravation from simple everyday tasks.[950] She can no longer lift, engage in much walking or any other activity straining the low back. She has also developed a right knee disability and is awaiting surgery. She uses a walker on occasions and must regularly take analgesics.[951]
[949] Tr p 68.
[950] Tr p 68.
[951] Tr p 69.

The deceased was diagnosed with bowel cancer in 1992 and this resulted in the small bowel being removed. He had a good recovery from the treatment and indeed returned to his work until his retirement. Apparently at about the same time the deceased presented with diabetes and high blood pressure.[952] In March 2005 the cancer of the bowel represented and he had the large bowel removed. This second operation involved a longer recuperation period but he was able to return to domestic work.[953] He did all the heavy domestic work. He would hang out the washing, attend to all gardening requirements and all maintenance on the house. As he was a tradesman he would do these tasks himself. The plaintiff has no driving licence and she depended on the deceased for this whether for household duties, medical appointments or indeed recreation. The deceased was apparently entirely reliable in all theses respects.
[952] Tr p 84.
[953] Tr p 72.
In October 2006 the deceased began to suffer breathlessness. The Christmas period for that year was bad. His general activity and regimes were brought to a halt. In February 2007 he was diagnosed with mesothelioma. That was distressing.[954] He ceased his former domestic activities and duties. His grandson did the lawns and his children rallied to support mother and father.[955]
[954] Tr p 73.
[955] Tr p 75.
It appears he was of a somewhat stoic nature and faced his fate with courage. That is not to say he had other than terrible circumstances to be brave about. Over the ensuing months his state declined. He moved from Panadol for the pain to Endone and then Morphine. Domiciliary Care attended three to four times a week. Help was engaged during his last six weeks of life at home.[956] Oxygen was necessitated during the last five days and he attended the hospice for a short period before dying at home. The plaintiff visited the deceased in the hospice being driven there by her neighbour or by her daughter.[957]
[956] Tr p 77.
[957] Tr p 78.
Today the plaintiff is attended by Domiciliary Care once per fortnight and with home assistance provided by the Salisbury Council attends once a year to clear gutters and provide some help with property maintenance. Linda Hamilton, the plaintiff’s daughter, assists with the housekeeping.[958] A gardener is paid $40 each six to eight weeks to help with the garden.[959] The garden is low maintenance. Since the deceased’s final illness, major home maintenance has had to be paid for. Transport is provided by the plaintiff’s next door neighbour and her son Douglas. Fortunately the shopping centre is nearby.[960] Otherwise the plaintiff uses a taxi. The defendant did not contest the plaintiff’s description of her physical disabilities.[961]
[958] Tr p 79.
[959] Tr p 79.
[960] Tr p 80.
[961] Tr p 81.
The plaintiff’s daughter Linda gave evidence confirming, in so far as she was able to, her parents’ levels of capacity at various times and in particular her mother’s manifest disability around the home since her illnesses.[962] She confirmed her father had made a good recovery following his second bowel operation.[963] This was also confirmed by Dr RJ Potter, the deceased’s family doctor.[964]
[962] Tr p 98.
[963] Tr p 99.
[964] Tr pp 246, 247.
When her father was diagnosed with mesothelioma her involvement in support of her parents increased significantly. She had been close to her father. He revealed to her his deep despair.[965] In the months prior to his death she assisted on average six hours per week, reducing that somewhat upon the arrival of Domiciliary Care for the last two months her father’s life. However she resumed her assistance, to her mother, for more than three days per week after his death when Domiciliary Care no longer attended.[966] She now visits her mother once or twice a week. Domiciliary Care was re-established some eight to ten months after the death. Linda these days spends one to two hours per week helping around the house doing the things that Domiciliary Care does not attend to. I note objection was taken in respect to the claim for her son Tyler and I understand the plaintiff withdrew that claim.[967]
[965] Tr p 100.
[966] Tr p 101.
[967] Tr p 1047.
Dr Potter was at all times the deceased’s treating doctor. Two reports of his were tendered by consent.[968] He related the various drugs that had been given to the deceased both prior to and after the diagnosis of mesothelioma. By May 2007 the deceased was taking a set of strong narcotics both to ease his pain and to enable him to sleep. He stayed on these medications till his death.[969] He chose to die at home. Dr Potter testified that without the asbestos related diseases his other conditions did not have a diminished life expectancy risk factor.[970] The deceased was a candidate for heart disease but Dr Potter adjudged his life expectancy only marginally reduced but for the mesothelioma. He confirmed Mrs Hamilton’s disabilities, both to her back and to her legs. She required domestic assistance in his view. He had considered the memorandum by Anne Morgan.[971] He agreed with it.[972]
[968] Exhibits A23, A24.
[969] Tr p 242.
[970] Tr p 247.
[971] Exhibit A12.
[972] Tr p 250.
Ms Anne Morgan, an occupational therapist, gave evidence and tendered a report assessing the costs and agency fees that would relate to the deceased’s illness. She had conducted a brief examination of the deceased before he died. She also completed a report on Mrs Hamilton[973] dated 31 May 2010 and updated the costings as at August of that year.[974] The function and the extent of the services provided by Domiciliary Care were explained as was the support that in Ms Morgan’s opinion the plaintiff would need on an ongoing basis.[975] That involved an evaluation of safe lifestyle having regard to the pre-injury lifestyle but not on a survival basis. Ms Morgan regarded her assessment as minimal though beyond mere nursing care.[976] I accept her evidence. I find it was based upon assumptions that were correct save that the deceased’s family did more on a voluntary basis than Ms Morgan had accounted for.[977] The assessment assumed no family assistance and given that hypothetical, all the plaintiff’s assistance came from the deceased. I find each of these four witnesses, Mrs Hamilton, Linda Hamilton, Dr Potter and Ms Morgan to be reliable witnesses. I accept their evidence.
[973] Exhibit A14.
[974] Exhibit A15.
[975] Tr p 155.
[976] Tr p 157.
[977] Tr pp 159, 160.
Turning firstly to pain, suffering and the loss of amenities both counsel made submissions on the decision of Ewins v BHP Billiton Ltd.[978] Of course this involves an assessment of a subjective experience and some people will no doubt face their demise and their pain with greater difficulty than others. As I have said, it appears from the evidence that Mr Hamilton acted with particular fortitude. But that should not be misinterpreted to down play the cruelty of what he experienced in the last months of his life. Counsel for the plaintiff submitted the comparison with Ewins required adjustment upwards, as that decision was now six years old.[979] Otherwise the circumstances were comparable. The defendant’s counsel submitted the facts were distinguishable. Mr Hamilton did not experience the unpleasant effects of the two cycles of chemotherapy Mr Ewins endured. Also Mr Ewins lived more than two years from diagnosis. But even though these damages are compensatory, no amount can be other than a broad estimate. I regard $115,000.00 an appropriate sum under this head. I award an amount of interest in addition in the sum of $33,000.00 using a 6 per cent figure.[980]
[978] (2005) 91 SASR 303, Defendant’s Submissions Part 4.
[979] Tr p 1230.
[980] Dighton v The Nominal Defendant (No 2) [2012] SADC 1 at [14] per Judge Tilmouth.
As to loss of expectation of life the plaintiff has contended a loss of some 17 years for a 67 year old man.[981] The submission is that that should be compensated at $1000 per year lost[982] and adjusted for some shortening of life expectancy from other factors than the mesothelioma, set at 15 years. I regard $15,000.00 an appropriate sum under this head. I award interest in addition in the sum of $150.00.
[981] Exhibit A74.
[982] Ewins at para [59].
The special damages in the form of medical expenses were tendered. These were not the subject of contest as I understood it.[983] They amounted to $210.95.[984] Another set of expenses described as “Schedule of Expenses” and incorporated specific garden maintenance, plumbing, electrical, domestic assistance and taxi fares were tendered.[985] These totalled $2,952.70. I regard these two sums as appropriate to award. I award interest in addition in the sum of $900.00.
[983] Defendant’s Submissions Part 4, tr pp 1229, 1159.
[984] Exhibit A10.
[985] Exhibit A11.
A claim for funeral expenses was tendered. I have examined it and it is eminently reasonable. I understood no objection was made to this claim. It is in the sum of $7,233.60. I award interest in the sum $2,060.00.[986]
[986] Exhibit A62.
Counsel has tendered a Schedule particularising the attendances at the hospitals with the deceased and associated costs.
(a)     Lyell McEwin Hospital – 1 February 2007 to 5 February 2007
         Five trips by two by 20 minutes one way by 26.57 per hour.[987]
(b)    Queen Elizabeth Hospital – 13 March 2007 to 16 March 2007
         Four trips by two by 45 minutes one way by 26.57.
(c)     Modbury Hospice – 7 August 2007 to 10 August 2007
[987] Taken from Exhibit A12.
         Three trips by two by 10 minutes one way by 26.57
In respect to these trips the plaintiff has also claimed attending at the hospital (1 hour by four at Queen Elizabeth Hospital and 1 hour by three at Modbury Hospice). The total comes to $593.40. In addition I award $169.00 interest.
Damages are claimed in respect to gratuitous services.[988] The provisions in s 58 of the Civil Liability Act 1936 provide as follows:
(1)     Damages are not to be awarded—
(a)     to allow for the recompense of gratuitous services except services of a parent, spouse, domestic partner or child of the injured person; or
(b)     to allow for the reimbursement of expenses, other than reasonable out-of pocket expenses, voluntarily incurred, or to be voluntarily incurred, by a person rendering gratuitous services to the injured person.
(2)Damages awarded to allow for the recompense of gratuitous services of a parent, spouse, domestic partner or child are not to exceed an amount equivalent to 4 times State average weekly earnings.
(3)However, the court may make an award in excess of the limit prescribed by subsection (2) if satisfied that—
(a)     the gratuitous services are reasonably required by the injured person; and
(b)     it would be necessary, if the services were not provided gratuitously by a parent, spouse, domestic partner or child of the injured person to engage another person to provide the services for remuneration, but, in that event, the damages awarded are not to reflect a rate of remuneration for the person providing the services in excess of State average weekly earnings.
[988] Griffiths v Kerkemeyer (1977) 139 CLR 161.
In Terry v Leventeris[989] this provision was examined by the Court. Gray J, with whom the other agreed, referred to CSR Ltd v Eddy[990] and the observation of the majority that Griffiths v Kerkemeyer damages are awarded to plaintiffs to compensate them for the cost (actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, not to compensate them for the cost of services which because of their incapacity they cannot render to others. His Honour said:[991]
… The question to be answered was whether the gratuitous services provided were reasonably required and further, whether, if those services were not provided gratuitously by the husband, it would be necessary to engage another person to provide those services for remuneration. In most circumstances one would surmise that if the services were reasonably required it would be necessary to engage a person to perform those services for remuneration.
[989] (2011) 109 SASR 358.
[990] (2005) 226 CLR 1.
[991] At para [37].
During final addresses the plaintiff’s counsel withdrew an earlier Schedule of Gratuitous Services document.[992] A further one was tendered.[993] As framed the claim dealt with two matters. Firstly gratuitous domestic assistance, the performing of household chores around the house to maintain those things that the deceased would have formerly done. These were proposed in the following way:
12 March 07 – 1 May 07 (7 weeks by 6 hours by 26.89 per hour) = $1,129.39.
1 May 07 – 8 July 07 (10 weeks by 9 hours by 26.89 per hour) =$2,420.10
Total = $3,549.48
[992] Tr p 1238.
[993] Exhibit A76, tr p 1265.
More than Linda Hamilton’s efforts to replace her father’s incapacity justified these figures. Other assistance included the children together painting the house.[994] Linda’s six hours per week gratuitous assistance reduced when Domiciliary Care attended some two months before death.[995] Domiciliary Care did not return to assist until some eight to ten months after death and during that gap in those services Linda gave gratuitous service three days per week. She still visits her mother once or twice a week doing a couple of hours assisting with the things that Domiciliary Care do not attend to.[996]
[994] Tr p 74.
[995] Tr p 101.
[996] Tr p 103.
The assessment of gratuitous services is complicated. The deceased himself did mopping floors, vacuuming and doing the bathroom which involved some two to three hours per week.[997] He did home maintenance which was estimated at half an hour per week average.[998] I assume his driving and other services for his disabled wife. But the complication is that it was evident to me during the trial that this was a very close family with exceptional loyalty to each other. I mean only that one must separate out those matters which are a mere reflection of the love, affection and care and those that are necessitated by the Griffiths v Kerkeymeyer heading. These however are more likely to have operated after the death of the deceased. I will return to the assessment divided under this and the s 9(3) Dust Diseases Act claim.
[997] Exhibit A7 p 11.
[998] Exhibit A7 p 13.
A claim was also made for gratuitous domestic assistance between 9 July 2007 and 13 August 2007. The period after the dying process occurred. The details were as follows:
(a) Gratuitous domestic assistance 5 weeks by 9 hours at $26.89 - $1,210.06.
(b)The gratuitous care provided to the deceased excluding the period in Modbury Hospice:
Passive overnight care
Week days – 23 days by 8 hours at 17.11 per hour - $3,148.24
Weekends – 10 days by 8 hours by 19.15 per hour - $1,532.00
Passive day care
Week days – 23 days by 6 hours at 22.24 per hour - $3,069.12
Weekends – 10 days by 6 hours at 26.10 per hour - $1,566.00
Attendant day care
Week days – 23 days by 2 hours at 26.57 per hour - $1,222.22
Weekends – 10 days by 2 hours at 31.91 per hour - $638.22
Total - $12,385.83
I do not believe these are contentious amounts. I add an amount of $4,500.00.
Section 9(3) of the Dust Diseases Act provides that:
Despite any other Act or law the Court must when determining damages in a dust disease action compensate as a separate head of damage any loss or impairment of the injured person’s capacity to perform domestic services for another person.
The Sullivan v Gordon[999] head of damages. I have set out the basic facts in this regard. They concern the fact that the plaintiff was incapable of doing much by way of domestic duties and relied on the deceased.[1000] Prior to his illness the deceased was providing the plaintiff some five hours per week in equivalent services. But it is inevitable the deceased’s ability would have declined in time assuming he had not contracted mesothelioma. Those contingencies have to be accounted for. Counsel agreed a broad brush had to be taken to each of these matters.[1001] I do so paying careful attention of the submissions of the defendant.[1002] I therefore set out the following amounts.
Summary of Damages:
(1)    Loss of expectation of life - $15,000.00
(2)    Pain and suffering and amenities - $115,000.00
(3)    Special Damages - $10,990.65
(4)    Gratuitous Care from 12 March 2007 to 8 July 2007 - $3,549.48
(5)    Gratuitous Care from 9 July 2007 to 13 August 2007 - $12,385.83
(6)    Sullivan v Gordon - $35,000.00
(7)    Interest - $40,779.00
[999] (1999) 47 NSWLR 319.
[1000] Tr p 89.
[1001] Tr p 1240.
[1002] Defendant’s Submissions particularly para [220] – [222].
Total - $232,704.96.
There will be judgment for the plaintiff against the defendant in the sum of $232,704.96