Hayes v Julia Farr Services Inc

[2002] NSWDDT 27

Dust Diseases Tribunal

of New South Wales

CITATION:	Hayes v Julia Farr Services Inc [2002] NSWDDT 27
PARTIES:	Ethel Barbara Hayes Julia Farr Services Inc (Formerly known as Julia Farr Centre Inc) (Formerly known as The Home for Incurables Incorporated)
MATTER NUMBER(S):	329 of 2002
JUDGMENT OF:	Maguire J at 1
CATCHWORDS:	:- Employer and Employee - Asbestos Exposure - Mesothelioma - Foreseeability Dust Diseases Tribunal Act 1989 - S 25(3) s25(B) - Constitutional validity.
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 (NSW) s 25(3), s25B
CASES CITED:	McDonohue v Stevedoring Industry Finance Committee (2000) NSWCCR 385 ; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
DATES OF HEARING:	16-20/12/2002
EX TEMPORE JUDGMENT DATE :	12/20/2002
LEGAL REPRESENTATIVES:	Mr M J Joseph SC instructed by Alex Stuart and Associates appeared for the Plaintiff Mr G Little SC with Mr D S Miller instructed by Church and Grace appeared for the Defendant

JUDGMENT:

1. The trial of this action commenced before me in Adelaide on Monday last. It continued there for a very long Tuesday, resumed there early on Wednesday and moved to Sydney for a late finish that day. The evidence concluded yesterday. Counsel addressed today Friday, 20 December 2002, the last day of term. I deem it appropriate to give judgment now at 5 pm for the simple reason that the plaintiff may well be dead before the new term opens in 2003.

2. It is the plaintiff’s case that she suffers from mesothelioma contracted as a result of the inhalation by her of asbestos dust and fibre. She asserts that she was exposed to such inhalation during the course of her employment by the defendant in South Australia between 10 May 1971 and 31 May 1974. She pleads her case in negligence and breach of statutory duty.

The Constitutional Issue

3. This point was taken in written submissions delivered to my Chambers after 11 am today, the fifth day of the trial. The point could and should have been taken long ago. Reference was made to what was said to be a constitutional point within the first hour of the trial last Monday in Adelaide. I understood that Mr Miller said at the end of the discussion was no such point would be taken if the plaintiff did not introduce evidence pursuant to s 25(3) nor s 25B of the Dust Diseases Tribunal Act. The plaintiff has not. A rereading this afternoon of Monday’s transcript suggests that there might be some ambiguity in what Mr Miller then said. I will not pause to discuss that; the point is now taken. It amounts to the fourth attempt to bring this trial undone. It must be determined, no matter the hurry involved. In the limited time available I have read the judgment of his Honour Judge Johns in McDonohue v Stevedoring Industry Finance Committee [2000] NSWCCR 385. It seems to me that his Honour’s reasoning on the point before him in that case applies with equal force to the point taken here. The trial will proceed.

History

4. The defendant is a hospital which was established in the colony of South Australia as long ago as 1878. During the interlocutory stages and for the first day and a half of the trial it was sought to be misrepresented as a “home” a suburban charity run by ”good people” to care for “incurables” which word remained as part of the defendant’s name for more than a century. In fact it is a hospital whose management, appropriately, has a very distinct medical flavour. A Dr Wilde was President of its Board from 1884 to 1894. At the end of its first century in 1978 its board included two medicos and it boasted a string of distinguished medical officers, some or all of whom were associated with Royal Adelaide Hospital. Several of them were eminent physicians.

5. The plaintiff was born in Dublin on 12 July 1948. That makes her now 54 years of age. She arrived in Adelaide as a 20 year old on 16 February 1969. On 10 May 1971 she was employed by the defendant. She describes the hospital and her work in her affidavit:

In the three years that I was employed with the Home for Incurables I was based on the ground floor in the B wing of the west block. The B wing consisted of two large wards with eight beds in each ward, three rooms for two people each in them and two single rooms. Most of my time was spent based in the B wing on the ground floor, however, I estimate that on a few occasions each month I undertake work in other areas of west block, including the A wing of the ground floor and on levels 1, 2 and 3, which were set identically to that of the ground floor. As a nurse’s attendant I undertook work with the patients such as washing them, dressing them, feeding them and getting them off to the craft rooms and the hall where activities often took place. In the west block there was also a basement area. In the basement area there was the nurse’s quarters, a hairdresser, the physio and also a boiler and plant room.

In respect to the boiler and plant room I recall looking at it on one or two occasions and remember seeing a large boiler located in the actual boiler room. In respect of the nurses’ quarters I estimate that on half days that I undertook work in the west block I had lunch in the nurse’s quarters. When working at the Home for Incurables I undertook a number of shifts, one shift went from 7 am to 3 pm, another shift went from 7 am to 4 pm and another shift was broken into two, namely, from 7 am to 12.45 pm and then from 3 pm to 7 pm. In this large shift, as it involved working until 7 pm at night on a couple of occasions each month I slept in the afternoon in the nurse’s quarters, as did several other nurses.

Throughout the three year period that I was employed by the Home for Incurables I recall regularly seeing maintenance personnel and maintenance work being undertaken throughout the west block. I recall maintenance work being carried out in the ceiling spaces of not only the ground floor where I worked but also in the basement where the nurse’s quarters and hairdressers were. Further, on the occasions that I worked on levels 1, 2 and 3 I saw maintenance work being carried out in the ceiling spaces. The ceiling was made up of removable ceiling tiles. I estimate that on average over the three year period whilst I was employed by the Home for Incurables I saw maintenance personnel undertaking work in the ceiling spaces of the west block two or three times each week. On some occasions I did not see any such work being undertaken over a period of a couple of weeks, on other occasions such work was undertaken on a daily basis over the course of a week. I also remember seeing work being undertaken on the fire doors on several occasions which involved the removal of ceiling tiles over the course of a week or so.

The maintenance work that I recall seeing carried out in the ceiling spaces was throughout the west block but mainly in the corridor areas and also around the nurse’s station which was like the reception area for the particular wing. I also such work being carried out in the basement in the nurse’s quarters. I recall regularly seeing dust and fibre coming down from the ceiling spaces where the maintenance personnel were working, this dust and fibre was clearly visible in shafts of sunlight coming through the windows and also when in the light of the hallway lights. Some of the dust and fibre got on me and I inhaled this dust and fibre, on some occasions I noticed dust and fibre had settled on the floor below where the maintenance personnel were working. The fibre was grey/white colour and came in different lengths. My uniform was a green check uniform and I observed dust and fibre on my uniform after walking near maintenance personnel undertaking work in the ceiling spaces. I recall getting a tickle in my throat and coughing on occasions when walking or working near where maintenance personnel were undertaking work in the ceiling spaces as a result of the dust and fibre that I inhaled.

At no time whilst I was in the employ of the Home for Incurables was I ever warned about the dangers of asbestos and that I was at risk of developing an asbestos related condition as a consequence of inhaling it. Had I been warned about the dangers of asbestos I would have ceased employment with the Home for Incurables and sought alternate employment. At no time whilst I was in the employ of the Home for Incurables did I ever wear or was I provided with a mask. Had I been told to wear a mask and informed about the serious dangers of asbestos I would have done so. At no time whilst I was in the employ of the Home for Incurables did I ever observe maintenance personnel segregate the areas where they were working or use vacuum cleaners in the ceiling spaces prior to or during undertaking work in them.

6. This evidence was expanded upon at p 75 of the transcript and following:

Question On average how long would you see them in the ceiling space.

Answer I would see them in the ceiling space on average two to three times a week.

Question Yes, but for how long on each occasion.

Answer For how long? About half an hour to an hour.

Further:

Question How close to the ladder would you get, would you be next to it, a metre away.

Answer Well, at times I’d be next to it or I’d walk past it.

Question Would you stop at any stage.

Answer I’d often stop and speak to the maintenance men.

Question When you stopped and spoke to them how long would you stay there for.

Answer Anything up to 5 minutes.

Question Did you have your own work station from time to time.

Answer Yes, we had a nurses’ station.

Question Would you see maintenance men in the ceiling space near to your workstation.

Answer Yes, the fire doors were next to the nurses’ station and I often see them in the ceiling space above it.

Question Would you be working at your work station whilst they were in the ceiling space.

Answer Yes, I could be writing in a book there.

Further:

Question So how long would you be stationary in your own work station or when they were in the ceiling space.

Answer Could be 5 to 10 minutes.

Question Whilst there would you see any dust or fibre on your work station or coming from the ceiling space.

Answer Yes, I’d see dust, a white grey dust and fibre come down in the light of the window and often landed on my uniform.

Question When it landed on your uniform what would you do.

Answer I’d have to brush it off.

His Honour:

Question What colour was your uniform.

Answer Green check.

Further:
Answer I regularly seen dust and fibre coming down when they were removing the ceiling tiles, I’d often see a whoosh of dust come down.

Question What about when they were inside the ceiling space, did that continue.

Answer Yes, often while they were working above the ceiling some dust would fall down.

Further:

Question Did you see any whooshing of dust whilst they were working in the space and after they removed the tiles whilst they were working, I think you said you did.

Answer I could see some dust coming down but the whoosh really came when they lifted up the tiles and the dust came down like it was on top of the tiles.

Question How often did you see that, every time they removed the tiles or what.

Answer Mostly, yes.

Further:
Answer The doctor come once a week.
His Honour:
Question From where.

Answer I think he came from the Adelaide hospital, I’m not really sure.

Mr Joseph:
Question That was the regular doctor, were there other doctors who came from time to time other than that doctor.

Answer I think some people had their own regular doctors but they mostly dealt with the one doctor that came.

His Honour:
Question Do you remember who that one doctor was.

Answer I can’t remember his name, I can picture his face but I can’t remember his name ... he was an older doctor.

7. She was cross-examined about previous places of employment and places of residence in an attempt to uncover exposure to asbestos elsewhere. Nothing turns on this. She was further cross-examined:

Question Is it your evidence that you would see maintenance workers in the ceiling spaces two to three times a week but you might see them more commonly than that moving from place to place or just going about their business.

Answer Yes.

Question Now when you see them in the ceiling space sometimes you would see them close up, sometimes you would see them at a distance.

Answer Yes.

Question Sometimes you would see them while you were moving from patient to patient or area to area.

Answer Yes.

Question In fact it would probably be fair to say, would it not, that the majority of times when you see them in the ceiling space you would be moving from one patient to another or from an area to an area.

Answer Yes.

Question So for the majority of those times you might pass their area for a matter of moments from area to area.

Answer It would be more than moments.

Question You would be going from patient to patient or moving patients to different areas regularly.

Answer M’mm.

Question In doing that in the majority of times that you saw them, the time that you were near them would be the times it would take you either to move past where they were working or to help the patient move past where they were working.

Answer I’d often stop and talk to them, I just watched, curiosity what they were doing.

Question Given the time of day did you say hullo.

Answer M’mm.

Question Or have a chat. But it was pretty much a busy job, the one that you were involved in, was it not.

Answer Actually it was in effect more busy now than it was then.

8. The plaintiff married her husband in 1973. The husband gave evidence at the trial in relation to damages. On 31 May 1974 she left the employ of the defendant. Thereafter she has held other jobs, most recently since 10 May 1999 at Annasta Nursing Home.

9. In January last year she started to suffer chest pain:

In January 2001 I noticed that I had pains in my chest. I attended the Adelaide Hospital and underwent an ECG, this did not reveal anything.

10. In late August she saw Dr Julie Bradley, a cardiologist, whose report is in evidence. She thought the pain was musculoskeletal in origin. In November there was had a chest x-ray, which revealed nothing. On 1 March this year she was examined by Dr Fitch, a gastroenterologist, who found nothing of any significance. In May she was feeling most unwell:

In May 2002 I felt most unwell, I had suffered weight loss of about one stone over a period of about a couple of weeks and was suffering nightsweats. I also had pain in the left-hand side of my chest and was very tired. I was also becoming short of breath.

11. On 13 May she saw for the first time Dr Yeo, in the thoracic department of the Royal Adelaide Hospital. She gave him a history of asbestos exposure at the defendant’s hospital. She was not cross-examined about that history. In April or May she gave up her job at Annasta Nursing Home. On 24 May she had a biopsy and in June a course of chemotherapy was commenced on advice. It did no good, and I accept the plaintiff’s evidence that this was a most distressing experience. On 26 June 2002 Dr Yeo reported. By now he had made the diagnosis of mesothelioma, which diagnosis is not in issue before me. In August the husband stopped work to nurse the plaintiff at home.

12. The plaintiff’s account of events at the defendant’s hospital when she was working there is largely corroborated. Mr Dawson gave evidence. He adopted his prior written statement.

I was employed by the Home for Incurables which then became known as the Julia Farr Centre between about October 1973 and about 1994. During this period of employment I was classified as an electrician, however, I also undertook some other work, for example, plumbing work. On commencing my employment at the Home for Incurables the west block, which became known as the Fischer Block, was in operation. Further, the Cheltham Block, South Block, had just opened in the last few months, there was also the Rotary Building in operation. Prior to commencing employment at the Home for Incurables I had served my apprenticeship at Osbourne Power Station and then spent approximately five or six years employed by the Adelaide Steamship Company. At both Osbourne Power Station and at Adelaide Steamship Company I had encountered asbestos insulation on many occasions. Shortly after I had commenced employment for the Home for Incurables it became necessary for me to undertake work in the ceiling spaces of the floors of the West Block. The West Block had a ground floor and then levels 1, 2 and 3. Located in the ceiling spaces on all floors of the West Block there were reinforced steel joists that had been insulated with asbestos insulation, this insulation was of a brown/grey colour. Further, in the plant room of the West Block there was no false ceiling and the reinforced steel joists that had been lagged with asbestos insulation were exposed. Also in the basement area was the nurse’s training school, a store and from memory a hairdressing shop. These areas had a false ceiling, however, within the false ceiling there was also reinforced steel joists lagged with asbestos insulation. The ceiling spacing was approximately two or three feet in height. In addition to the reinforced steel joists contained in the ceiling spaces there were water mains, valves, pipes, air condition ducting, wiring and telephone cables. At the time I commenced working at the Home for Incurables there was a maintenance team comprising of about three or four painters, about two carpenters, two electricians and two fitters. I recall approximately 12 months after I had commenced working as the electrical work was so great it was necessary for another electrician, Eric Stevenson, to be put on. After Eric was employed he was based at the West Block. I also recall that a Mr Doug Assar, who is deceased, was also based at the West Block and undertook much of the maintenance work there. In respect of the work that I undertook in the West Block I estimate that on average whilst working for the Home for Incurables I undertook maintenance work in the ceiling space approximately once a week. In addition to the maintenance work that I undertook it was necessary for other maintenance workers, and in particular fitters, to also undertake work in the ceiling spaces. There were also external workers such as Telecom linesmen who undertook work in such an area. To get into the ceiling space it was necessary to firstly, push the ceiling tile out of the suspended frame and then slide the ceiling tile across another tile to create an opening. When doing this I always recall that there was some dust that was given off and this dust came down onto me. I also recall on numerous occasions seeing small pieces of insulation material that had come from the lagged reinforced steel joists lying on the top side of the ceiling tiles. Accordingly on some occasions when I removed the ceiling tiles this lagging fell down below onto the ground. Maintenance work was carried out during normal working hours in the presence of staff members and patients, when required patients beds were shifted to accommodate maintenance workers gaining access to the ceiling space.

13. He gave sworn evidence:

Question Were you ever given any instruction in the period 1973 to 1974 about cleaning up after you finished work in ceiling spaces.

Answer No.

Question Had you been given those instructions would you have carried them out.

Answer I would of.

Question Were you ever provided with any vacuum cleaner.

Answer No.

14. He was cross-examined about the frequency of his attendances. There was further cross-examination of Mr Dawson:

Question To the extent then also that you saw the asbestos in the ceiling areas that you have just given evidence about, that too was generally in what you observed to be good condition.

Answer No, that wouldn’t be correct as far as the staying on the beams because there was a certain amount that had obviously previously been sprayed and not had stayed on the beam and had actually come down on the cable trays that ran through the ceiling area and space so it wasn’t all stuck fast, if you like.

15. Mr Stevenson also gave evidence. He adopted his prior written statement:

I commenced employment with the Home for Incurables on 24 February 1974, this home then became known as the Julia Farr Centre, where I am still employed today. I commenced employment as an electrician and for the first three years I was based only in the one building, namely, West Block. In this time I worked with Doug Assar, who is deceased, who was a fitter. The two of us undertook the day to day maintenance of the West Block, and when we required additional help we were - either obtained such help from the maintenance team on the site or alternatively external help. West Block comprised of a basement, a ground floor and levels 1, 2 and 3. On each level the reinforced steel joists had been insulated with a blue/grey asbestos lagging. In all areas other than the plant room of the basement there was a suspended ceiling approximately two or three feet below where the reinforced steel joists were located. In the three year period between about 1974 and about 1977 I estimate that on average it was necessary for either myself or Doug Assar to undertake work in the ceiling space at least once a day on one of the levels in West Block. To get into the ceiling space it was necessary to push a ceiling tile upwards and then slide it onto one of the other tiles that remained in place. Whenever I did this I saw dust and fibre come down on me and into the ward or corridor areas where I was working. I remember regularly seeing dust and fibre floating in the sunlight down from the ceiling space where I or another maintenance worker had been undertaking work. Often I bumped the asbestos insulation that was located on the steel joists, this resulted in dust and fibre falling onto me and down onto the floor. Further, I often noticed pieces of insulation on the top side of the ceiling tiles. When the ceiling tiles were disturbed this insulation material would fall down onto the floor below. At no stage were we ever warned of the dangers of asbestos.

16. He gave sworn evidence:

Question What would you notice about the stuff that was lying on the ceiling tiles.

Answer It was loose, fibrous and easily disturbed.

Question How long would you spend up in the - did it vary.

Answer You might spend a few minutes, you might spend half an hour, it would vary depending when you got to that particular spot quickly or not.

Question Were you ever warned about the dangers of this asbestos dust and fibre.

Answer No.

Question Were you ever instructed to keep persons away from beneath the area where you were working.

Answer No.

Question Were you ever provided with any vacuum cleaners to clean up.

Answer No.

Question Did you clean up in respect of the material that fell onto the ground.

Answer No, we would sweep up and pick up and put it in the bin but that would be all we would do. You would like to think that one would clean up to the endth degree but we didn’t.

Question You said you had material on your clothing.

Answer Just brush off.

Question Where would you brush it off.

Answer In the area where you were.

Question Have you seen a lady in a wheelchair outside.

Answer Yes.

Question Do you recognise that lady.

Answer Yes, I do. There’s a vague recollection of the lady itself, nothing like the lady I remember, but I recollect the lady, not the same lady, there’s a resemblance.

Question There is a resemblance of her and have you been approached by the defendant to speak to them or an investigator at some state, did an investigator come to your home to talk to you.

Answer Investigator come to my homes, yes.

Question You spoke to that investigator.

Answer Yes.

Question Were you even given any equipment to put around the base of your ladder whatever to keep people away from that area.

Answer No.

17. He was cross-examined:

Question What I want to suggest to you, Mr Stevenson, is what was on the reinforced beams, if anything, was not blue in colour.

Answer I’m not sure what asbestos it was, it looked blue/grey, it may not have been blue but I can’t be sure of that.

Question It might have been grey.

Answer Yes, it was still asbestos.

18. He was also asked about the activities of cleaners. I simply observe for my own part that the further disturbance of displaced asbestos with a broom can compound the problem.

19. Professor Douglas Henderson gave evidence. He is a distinguished pathologist with a long term interest in asbestos. He was asked to assume a history that accords with the plaintiff’s sworn account. He was provided with relevant medical reports. He expressed the opinion that the plaintiff has mesothelioma. The defendant accepts that diagnosis. He went on:

The summary exposure history indicates that Mrs Hayes worked at the Home for Incurables (now the Julia Farr Centre) for a period of approximately three years (1971-1974) as a nurse attendant. It appears that she was based in the Fischer Building and during the time of her employment at the Home for Incurables she observed maintenance personnel carrying out maintenance/custodial work in ceiling spaces on average about two to three times per week. It seems that on `many of these occasions’ Mrs Hayes saw `dust and fibre emanating from the ceiling’ which fell down onto her. It is my perception that such custodial/maintenance work which released visible dust into the air would have produced elevated concentrations of airborne respirable asbestos fibres in Mrs Hayes’ breathing zone. Although such work was episodic it appears to have taken place with reasonable frequency and would have produced intermittent peak airborne concentrations of asbestos fibres. It is also worth emphasising that asbestos exposure as a consequence of release of fibres into an enclosed building or a domestic residence from intermittent maintenance work would have produced exposure to and inhalation of asbestos fibres beyond the time when the work was actually carried out. This is because asbestos contamination of the interior of a building/household as a consequence of such work tends to be persistent even after the asbestos has settled onto surfaces within the building, it tends to be resuspended in the air by normal daily activities, including dusting and cleaning operations as described by Hillerdal in his 1999 review of mesotheliomas related to non occupational and low dose asbestos exposures. From the exposure history supplied I would estimate Mrs Hayes cumulative exposure over the three year period of her employment at the Home for Incurables having been in the range of very light to light. Nonetheless it is my perception that her exposure would have been in excess of any `background’ exposure expected for a control or reference urban population without identifiable occupation or domestic or environmental exposure to asbestos.
Further:
In relation to this specific case I would also emphasis the following. My own files contain other cases with exposure history similar to that of Mrs Hayes, for example, I have seen two cases of mesothelioma among former shop assistants who worked in the former and now renovated David Jones building in Adelaide, and one of these patients described the removal of asbestos containing dust from the tops of shoe boxes where the dust had settled overnight. My own files include two cases of mesothelioma in former employees at the National Australia Bank in Adelaide related to exposures comparable to that described for Mrs Hayes (the Hearne case and the Mussolino case). I have also seen another case of mesothelioma related to asbestos exposure in a relatively young woman who worked in another state (the Halleur case). I have also encountered non occupational mesotheliomas as a consequence of light exposure sustained during renovation or repair work ( `handyman’ - type exposure) among individuals who lived in asbestos cement houses and who carried out occasional repair and renovation work with no other exposures.
Further:
My opinion is also based upon the well known fact that each increment in asbestos exposure produces a corresponding increment in the risk of mesothelioma. Mrs Hayes’ bystander exposure at the Home for Incurables was clearly exposure incremental upon and additional to any inhaled asbestos in the general environment at large and as such it would have produced a corresponding increment in her now realised risk of mesothelioma over and above any risk related to general background exposure to asbestos. In this respect I would also point out that the odds ratio for mesothelioma identified in the case control studies from Europe, discussed above, delineate odds ratios in addition to the background risk of mesothelioma.
In Court:
I graduated in medicine at the end of 1965. My degree was conferred in early 1966. I then carried out my intern and senior residency years and began in pathology in 1968 and from about that time I became familiar with the literature on asbestos related diseases in relation to mesothelioma.
Further:
Question Was any of that knowledge peculiar to your specialty or was there knowledge in your possession which was available to the general medical profession.

Answer The knowledge was available to general medical professions, I was aware of articles that had been published in mainstream medical journals.

Question Such as.

Answer The British Medical Journal, there was a report of mesothelioma, the first report outside South Africa published in the Medical Journal of Australia in 1962. There were reports of domestic exposures and mesothelioma as a consequence of living in the general neighbourhood of an asbestos factory. They appeared in 1965.

His Honour:
Question Where.

Answer That was in the United Kingdom, your Honour.

Question In what journal.

Answer That was the Newhouse and Thompson paper, that was published in one of the major British journals, it may have been the British Medical Journal, I’m not sure on that, but it was subsequently republished in the Annals of the New York Academy of Sciences.

Further.
Answer In the journal of the American Medical Association, usually referred to as JAMA, there was an article by Selikoff and others concerning mesothelioma and asbestos related neoplasia in 1964.

Question Was that a journal that found its way to Adelaide in the early sixties.

Answer Yes, I can remember reading that journal at that time.

Further:
Question Now you have annexed to your third report - I do not know that you have that - a monograph in pathology from the International Academy of Pathologists published by David Smith. Do you have that book there.

Answer Yes, I do.

Question That was published in 1968.

Answer That’s correct.

Question Firstly, when did you obtain that book.

Answer I bought it from Ramsays Medical Book Store in Adelaide, then I believe on North Terrace, and I bought it in the latter half of 1968.

Question In particular chapter - that is a book on the lung published in 1968.

Answer That’s correct.

Question You have that in front of you now.

Answer Yes, I do.

Question Now just turning into that chapter 19 dealing with mesothelioma.

Answer That is correct, it’s a chapter by Jacob Churg and Irving Selikoff, Selikoff being one of the leading American researches on asbestos related diseases, and it was entitled a Geographical Pathology of Mesothelioma.

Question In your opinion does it summarise the generally accepted state of knowledge of mesothelioma as at that time.

Answer Yes, and I found it particularly an illuminating chapter at that time.

Further:
Question In 1972 if you were to have been told that the asbestos was a fibre containing - was only in the air, was only amosite and chrysotile, would that have led you to form an opinion as to whether that type of fibre was of the type that would cause mesothelioma as medical knowledge had it at that time.

Answer Well, yes, I believe so, the relationship was originally described in South Africa and the fibre type implicated was crocidolite, that is blue asbestos, and it was the initial impression that mesothelioma was a tumour related to that specific type of asbestos fibre, but certainly the Churg and Selikoff papers on asbestos and mesothelioma in the United States looked more broadly and they argued that in fact there had only been a very small of crocidolite used in the United States, I think the maximum up until that time in 1964 was 20,000 tons in comparison to hundreds of thousands of tons of the other forms of asbestos, so that there study was designed whether other asbestos fibre types were implicated in mesothelioma induction.

Question And as at 1972 what opinion had you formed.

Answer Well, by 1972 the opinion was that asbestos generally was dangerous to health.

20. Mr Joseph read to the professor an extract from the 1968 report on hygiene standards done for the British Occupational Hygiene Society.

The primary danger of inhaling asbestos dust is asbestosis. It is generally recognised that there is also significant risk of lung cancer associated with asbestosis, a risk of mesothelioma of the pleura and peritoneum exists in connection with the inhalation of crocidolite dust in particular. There can be little doubt that these risks will be least in the lowest concentration but the quantitative relationship between asbestos and cancer risk is not known, nor is it known exactly why these two are related or even whether all kinds of asbestos present a risk. Consequently it is not possible at this time to specify an air concentration which is known to be free of risk in this respect.

21. The professor’s response:

Answer I wasn’t aware of that specific opinion at that time but that opinion is within the broad mainstream medical thinking at that time and as I have mentioned we were all very disturbed about the capacity of apparently low dose and very transient asbestos exposures to produce mesothelioma and we did not know how many people would be at risk in the general community.

Question Did they know whether there was a minimum dose of asbestos fibre which was safe in 1972.

Answer No, as far as I’m aware, and it was my recollection of the discussions that no threshold of safe exposure had been delineated for mesothelioma induction and that was one of the disturbing aspects of the relationship.

Further:
Question Doctor, is it your opinion that all exposure whether from brief or not brief is biologically significant in the development of mesothelioma.

Answer Yes.

Question Why do you say that.

Answer For the reasons I’ve just been saying, once the fibres are deposited the amphibole fibres tend to persist and they will build up over time of repeated inhalations and we know that the risk of mesothelioma is related to the inhaled dose of asbestos deposits in lung tissue.

Question Apart from the risk, doctor, does it materially contribute to the disease itself, that is the cumulative exposure.

Answer Yes, we know that the risk of mesothelioma among other factors is related to the cumulative inhaled dose of asbestos and that each increment in exposure produces a correspondent increment in risk.

22. Further, Mr Joseph was asking the professor about the state of affairs in 1972. The professor had this to say:

Answer Had I been aware of that circumstance at the time I would like to think that given my knowledge that mesotheliomas had been described in association with apparently very low dose, I think the literature stated minimal asbestos exposures which would be quite transient, I had the attitude that early on that all exposures to asbestos should be minimised so far as is possible not to avoid the risk of asbestosis, not to avoid even the risk of lung cancer but specifically to avoid the risk of mesothelioma.

23. I have been referred by counsel for the defendant to only one portion of the cross-examination of the professor, this is in par 30 of their submissions.

However, when Professor Henderson was cross-examined he was unable to identify a single publication or report in existence prior to 31 May 1974 that identified or documented that there existed a risk to persons inhaling asbestos dust and fibre in circumstances such as the plaintiffs, that is inhaling on an intermittent basis light to very light doses of amosite and chrysotile asbestos fibre falling into a work area as a result of maintenance works being undertaken in a ceiling space dislodging such particles of asbestos insulation that was in situ in that ceiling space.

24. I find that submission misleading. The professor gave abundant evidence about danger, about dose and about concerns in the medical and scientific communities at that time.

25. The defendants’ case is essentially to put foreseeability in issue. The evidence comes in three strands, one, Mrs Janet Sowden, an occupational hygienist of Melbourne, reported to the defendant and gave sworn evidence. Two, Mr Pickford, another hygienist, reported to the defendant and gave sworn evidence. Three, documents generated in 1983 and 1984 at a time long after the plaintiff’s exposure and at a time when the defendant was contemplating re-opening the building in question, it having been disused or largely so since 1977.

1. Ms Sowden

26. This witness purported to express opinions on a whole range of issues, some of which were, in my view, outside her field of expertise. She dealt with “the beliefs of most occupational health authorities in Australia and the United Kingdom.” Plainly she is not qualified to set herself up at that lofty level. In her first report of 8 October 2002 she concluded:

I believe that Ms Hayes’ asbestos exposure while she was working at the Julia Farr Centre between 1971 and 1974 would have been extremely small.

27. The nonsensical basis for this conclusion is glaringly apparent when one reads her next report made about six weeks later. On 30 November 2002 she tells the solicitors for the defendant:

I could not estimate Ms Hayes asbestos exposure from the alleged maintenance activities without knowing a lot more about them, indeed I am not sure whether there is evidence that such work was really done in her presence or whether the allegations are more in the nature of a circular argument (she has mesothelioma therefore there must have been sufficient asbestos to cause it in the air she inhaled in the Fischer Building therefore there must have been disturbance in her presence, therefore this caused her condition et cetera). It would be helpful to have answers to the following questions:

28. I find it extraordinary that somebody whose state of mind was such at the end of November that she wanted information about the facts of the case so that she could form an opinion had already six weeks before expressed a very confident opinion quite adverse to the plaintiff’s case and contrary to the facts as I now know them to be. By the time the witness entered the witness-box on Tuesday the plaintiff and two eye witnesses had concluded their evidence. In chief no attempt was made to invite the witness to make any assumptions based upon their sworn evidence.

29. On Wednesday morning when the witness was still under cross-examination I drew counsel’s attention to the problem that he had created for himself. No application was made to re-open. In re-examination he sought to deal with the problem as of right. I stopped him and declined to grant leave as I thought the proper time to re-open was at the time I had raised the matter with him. That course would have been more fair to the plaintiff than to allow this to be done after the whole cross-examination had been completed.

30. The fact is that this witness has never turned her mind to the circumstances of this case. Beyond that I regard her as an unsatisfactory witness. She had taken a stand adverse to the plaintiff’s case without knowing anything about the facts. Her response to almost every question put to her in cross-examination was to change the subject in order to seek to reinforce her stand. I have read with care the written submissions made by counsel for the defendant.

31. They do not really deal with the criticisms that I have made above. It is my view that Ms Sowden has nothing to say that throws any light on the issues before me.

2. Mr Pickford

32. His report was admitted over objection and with some hesitation on my part. He also gave oral evidence and was cross-examined. He has never seen the building in question. He had access to the report of certain measurements done by Amdel for the Health Commission at the subject building in 1983. I am able to infer, and I do, that the building had been virtually empty since 1977. I also infer that the level of maintenance (in damage to asbestos coating) was much less during than that interval than it had been during the period when the plaintiff was employed there.

33. The defendant has made the following admission as part of the answer to interrogatory 8.

The West Block was the subject of refurbishment work in or around 1978. The first defendant is not aware if any asbestos or asbestos were installed in the building as part of those 1978 works. However, the first defendant also does not know if or what any asbestos or asbestos products were moved, removed or damaged as part of those 1978 works. Accordingly the first defendant does not know if the said 1992 and 1995 reports describe the locations of or state of asbestos and asbestos products in the West Block that it is presumed when the building between 10 May 1971 and 31 May 1974.

34. This makes it clear that no reliance can be placed on the Amdel report either by the witness, by Mr Pickford, or by me. There is another major flaw in Mr Pickford’s evidence. He has had considerable experience in measuring atmospheric conditions in a variety of buildings in Sydney. It emerged in the course of his evidence that all of these tests were done under circumstances where care was being taken to minimise the amount of asbestos disturbed and released into the atmosphere. That is a state of affairs that is totally divorced from the realities of what happened in this plaintiff’s workplace. It means that his evidence is fatally flawed. Nothing in the defendant’s submission serves to cure that state of affairs. His experience of those measurements in Sydney can have no probative value in the instant case.

35. I was presented after 11 am today with 30 or 40 pages of written submissions from the counsel for the defendant, and I have to say they have been prepared with some care. I have read them in their entirety. I propose to deal only with certain of the submissions.

36. I refer to par 43:

None of these documents identify that in the period prior to the end of the plaintiff’s employment with the first defendant on 31 May 1974 there was published any material that ought reasonably have alerted an employer or occupier in the position of the first defendant that there existed a risk for a person such as the plaintiff undertaking nursing work in a building containing sprayed limpet asbestos to structural steel beams above the ceiling tiles and which might, by reason of maintenance works, result in the intermittent release of asbestos dust and fibre.

37. I reject that submission. I need only refer to the August 1984 letter tendered by the defendant itself, urged upon me and embraced by Mr Pickford.

38. I refer to paragraph 60:

This is a test directed primarily to the question of foreseeability which must be approached with caution given that `the consequences of exposure to asbestos ... are now so well known that there is a risk that the decision in cases ... will be determined by ... hindsight ... and not by reasonable foresight ... at the time of exposure.

39. It is then made clear that that is a quotation from the decision of the Court of Appeal in Bendix.

40. No suggestion was made to Professor Henderson that he was engaging in hindsight when he spoke of the concerns he had about the dangers of asbestos in the mid sixties.

41. I refer to par 66:

Neither Professor Henderson or Mr Gordon Stewart proffered any evidence of the likely exposure levels or dose that the plaintiff might have been subjected in the period 1971-1974.

42. Professor Henderson certainly did. He makes it clear that her exposure was sufficient to cause her to contract the disease. That is her case.

43. I refer to par 70:

The plaintiff has not adduced evidence as to what is alleged to have been the safe `system of work’ that ought to have been implemented.

44. That may well be the case. If it is the defect is cured by the Department of Labour letter and Mr Pickford.

45. I refer to par 86:

The epidemiological evidence of Professor Henderson in the present case can be expressed in terms only of `increased risk.’ Its application to the causation issue in the specific case of this plaintiff never rises above the level of possibility. Moreover, the evidence of Professor Henderson in this respect was proffered on the assumption that the plaintiff had only been exposed to asbestos in one location, namely, the first defendant’s premises. The plaintiff’s own evidence and that of her husband was that she was also likely exposed to her domestic environment from washing her husband’s work clothes.

46. I make two observations about this; firstly, this is an attempt to rewrite what Professor Henderson actually said. Secondly, his evidence refers to the cumulative effects of inhalation of asbestos from time to time, whether background or otherwise. No more need be said about the submissions on liability.

3. The 1983-1984 Documents

47. These relate to a time when the defendant was contemplating the re-opening of the building in question. By now it was aware that it had an asbestos problem. I pause to note that the evidence does not disclose the time at which it became so aware or the means by which it became so aware. It could hardly be otherwise as nobody from the defendant’s camp has given evidence. It is now seeking the advice of the Health Commission which in turn sought advice elsewhere. I admitted the evidence over objection on the basis of Mr Little’s argument that it showed the kind of advice the defendant would have received if it had made such inquiries in 1971. On 2 August 1984 the Director of the South Australian Department of Labour wrote to the Chairman of the Health Commission regarding the building in question. One of the Commission’s officers sent this letter on to the defendant with a covering letter on 6 August. The letter from the department read in part as follows:

At this stage the sprayed asbestos is in good condition and if work in the ceiling spaces is well managed removal of the asbestos will not be necessary for many years. If at any time major construction work that would significantly disturb the asbestos is carried out further consideration should be given for the removal of asbestos from the area concerned. I recommend that the occasional and localised examples of detached asbestos debris be vacuumed from ceiling tiles before any given ward is open for use and that the building be reinspected within three years.

48. It seems to me that if that advice had been sought, obtained and acted upon in 1971 we would not be here now.

49. Mr Pickford gave evidence yesterday and I have just this moment been presented with the transcript of the evidence given on that occasion. At the end of cross-examination I asked the witness some questions myself quoting from the Department of Labour letter, which I have just quoted above.

Question Vacuuming out the ceiling space would or would not have been desirable in 1971 in your view.

Answer It would really depend upon an inspection as to whether there was debris there or not.

Question Assuming that I find that there was debris there, and there is plenty of evidence to enable me to.

Answer Back in the seventies you are talking about?

Question Yes.

Answer Yes, okay.

Question Would it have been a good idea to vacuum it out.

Answer Yes, it’s a very good letter.

50. The evidence persuades me that before the plaintiff’s exposure ended and in large part before it commenced there was in circulation an abundance of printed learning which should have alerted the defendant to the danger to an employee such as the plaintiff from dust released into the atmosphere by workmen working in the ceiling space.

51. I accept the evidence of the plaintiff, of Mr Dawson and Mr Stevenson. Those responsible for running this place must have seen workmen at work in the ceiling space disturbing dust in the way that these three witnesses describe. If they did not see it they ought to have done so. They were aware or ought to have been aware of the danger posed to the employees in the situation of the plaintiff. There is no doubt that the defendant was aware of the presence of asbestos because the use of it was specified at the time the building was constructed for the defendant. The asbestos dust described by the plaintiff and her two witnesses could have been safely removed from time to time with a vacuum cleaner, and this removal would certainly have reduced the risk of injury.

52. I find that between May 1971 and May 1974 the defendant ought to have known that it was exposing the plaintiff to the risk of injury by reason of its failure to warn her or otherwise to protect her from that risk. If it did not know that is no justification. The defendant had a duty to the plaintiff. A reasonably prudent employer in the position of this defendant would have taken the relatively simple steps needed to reduce the risk of injury to the plaintiff. Its breach of duty amounted to negligence. It was also in breach of a statutory duty imposed by the Health Act of South Australia.

Damages

Life Expectancy

53. In a number of respects the measure of the plaintiff’s damages depends upon how long she will remain alive. On 13 September 2002 she was seen by Dr Hugh Greville, a respiratory physician of Adelaide.

She has had six courses of chemotherapy and apparently this was ceased because there was no apparent response to the treatment. The left sided chest pain persists and is constant. It is at present controlled with Panadol and Panadeine Forte. The nightsweats persist and will often waken her at night. There has been a 12 kilogram weight loss in the last 12 months and associated poor appetite. Her energy levels are very low and she finds it difficult to do a great deal around the house. She often needs help from her husband with showering and dressing. Currently she is unable to do any housework and her husband has had to stop work in August 2002 to look after her. The dyspnoea continues. She smoked 10 cigarettes a day for eight to nine years but stopped over 20 years ago. There was no history of hypertension, diabetes or cardiac disease, her only medications are the analgesics.

On examination Mrs Hayes was very quiet and was clearly in low spirits. No nodes were palpable in the neck. There was evidence of a left pleural thickening/pleural fluid in the left chest. There were no chest wall masses. The cardiac examine was normal with a pulse rate of 90 and regular. There was no hepatosplenomegaly and no peripheral clubbing or oedema. The diagnosis of malignant mesothelioma of the pleura epithelium type has been made and confirmed by Professor Douglas W Henderson. The prognosis from malignant is uniformly poor with a median survival of nine months from the time of diagnosis. Only 15 per cent survive for more than two years after diagnosis (Dust Diseases Board of New South Wales data October 2000). However, the epithelioid type of tumour has a slightly better prognosis with 30 per cent surviving to two years. It is likely that Mrs Hayes will have increased requirements for analgesia to control her chest pain. Her dyspnoea will become more distressing and she will be able to do less around the house and will be less able to look after herself. Weight loss is a usual accompaniment of the final stages of malignant mesothelioma.

54. The plaintiff has been seen by two doctors engaged by the defendant. No material from either of those was adduced.

55. She told me on Tuesday:

Question When do you first recall suffering night and day sweats.

Answer About January.

Question Of which year.

Answer Of this year.

Question Does that require your husband to do anything.

Answer Yes, I have to get up at night and change my night clothes and sheets and bed clothes.

Question Has that got any worse in recent times.

Answer It has got a little bit worse, yes.

Question What about the pain, how has that been.

Answer Well, since they’ve got me onto this regular pain relief it seems to be relieving somewhat.

Question Do you still have pain.

Answer No, not as much as I had but that’s only subsided in the last couple of weeks.

Question What about before then.

Answer I had quite a lot of pain.

Question When you say `quite a lot’ was it there all the time.

Answer Yes.

Question Can you describe it. Out of 10 what level will you git it.

Answer It was about - could be 9 to 10.

Question How long would that last for.

Answer It could last up to an hour or so and then it would go and come back again.

Further:
Question What medication are you on.

Answer I’m on methadone and Ventolin. (So recorded in the transcript)

Question That is a form of morphine, is it.

Answer Yes, it affects my thinking.

His Honour:
Question When did you have your last dose of methadone.

Answer Last night.

Mr Joseph:
Question The Fentanyl (which he spelt)

Answer That’s right, yes, I think that’s how you spell it, I have that, it’s in a patch form and it’s released constantly.

Question That is a form of morphine.

Answer It’s a form of morphine.

Question You have that patch on your now.

Answer Yes.

56. Clearly this lady has deteriorated since she was seen by Dr Greville about three months ago. At Court she was seated in a wheelchair at every moment that I had her under observation, both in and out of the courtroom. I accept that this was a genuine reflection of her frailty. The hearing has been expedited because the plaintiff may die on the very short. Counsel for the plaintiff accepts that this may well happen in the second half of February. Doing the best I can I find it more probable than not that she will die in the latter half of February 2003.

57. This woman’s death will be accompanied by ever increasing torment Every breath will involve agony. Experience of scores of cases of mesothelioma tells me that her pain will escalate as she deteriorates and that she will have ever increasing difficulty in breathing. Mr Joseph urges an award as high at $180,000. Mr Little suggests $160,000.

58. Doing the best I can I award the sum of $175,000 for general damages for pain and suffering.

59. I award interest on that in the sum of $6,000.

Loss of Expectation of Life

60. This lady is only 54 years old. Her family is almost grown up.She will lose many of the best years of her life. Mr Joseph urges an award as high as $25,000. Mr Little suggests $15,000.

61. Doing the best I can I award the sum of $20,000 for loss of expectation of life.

62. Past out of Pocket Expenses are acknowledged in the sum of $432.30. I award that sum.

63. There is evidence to support an award for future out of pocket expenses in the sum of $27,887 and this is not contested. I award that sum.

64. There is evidence to support a claim for equipment in the sum of $6,409.40, and this is not contested. I award that sum.

65. The submissions on Griffith v Kerkemeyer damages are dealt with separately as to past and future by Mr Joseph for the plaintiff and collectively as one item by Mr Little for the defendant. Looking at them in the aggregate Mr Joseph’s claim amounts to just short of $76,000. Mr Little would acknowledge $60,000. I have looked at the competing arguments. I think it fair to award $70,000 for past and future.

66. There is evidence to support a claim for past economic loss in the sum of $11,400 and no submission contrary to that is offered. I award that sum. Interest on that award should be included in the sum of $396.72.

67. There is a claim for future economic loss. This lady described in evidence, which I have not quoted, her devotion to the kind of job she was doing at the nursing home, and the pleasure she took from it. She seems but for the mesothelioma to have been a fit and healthy person. I think she would have worked for another 10 years.

68. I allow interest on past Griffiths v Kerkemeyer in the sum of $1,000.

69. Counsel for the plaintiff contends that she should be allowed compensation for future economic loss at the appropriate rate, which is supported by the evidence, and allowing the usual sort of discount this claim comes to $109,763.1. Mr Little for the defendant urges upon me a figure of $80,000. I think that the claim made by the plaintiff should be allowed in full.

70. The figure that I have given is for the future beyond the date of death. It is reasonable to allow the sum of $3,648 between now and the latter half of February.

71. In respect of superannuation, there are competing arguments addressed in relation to this matter, they range from $17,500 odd put by the plaintiff and $12,500 conceded by the defendant. I think it fair to award the sum of $15,000.

Sullivan v Gordon

72. Evidence was given by the plaintiff and indeed by the husband about the amount of time and effort put in by this lady in the maintenance of the family home where she cared when she was healthy for herself, her husband, her two adult bachelor sons and the teenage daughter, who has but one year left to go at school. The claim put forward by counsel for the plaintiff involves the five hours, which is not really in dispute, at seven days a week and would have it that the plaintiff is entitled to have the commercial equivalent of that labour made up to her by way of money into the future. Clearly she is entitled to something. The claim as spelt out by counsel for the plaintiff comes to $484,155. I think that is vastly inflated. The situation is that the work the plaintiff does about the family home is done largely for her own benefit. One can assume that there will come a day when these two young men leave home and again that would increase the proportion of the benefit of the labour that the plaintiff would have been directing towards her own ends.

73. There is nothing scientific about this kind of claim. Doing the best I can I think she should have the sum of $100,000, which indeed is conceded by the defendant.

74. There will be judgment for the plaintiff in the sum of $546,936.52.

75. I order the defendant to pay the plaintiff’s costs.

76. On the application of the defendant I order a stay as to $346,936.52 of the judgment conditional upon the defendant, if so advised, filing a notice of appeal within 10 days and paying the balance of the judgment within the same period.

77. I order the defendant to pay the plaintiff’s costs.

78. Liberty to apply.

oOo