Hutton v Broken Hill Proprietary Company Ltd

[2005] NSWDDT 67

Dust Diseases Tribunal

of New South Wales

CITATION:

Hutton v Broken Hill Proprietary Company Ltd [2005] NSWDDT 67

PARTIES:

Andrew A Hutton
Broken Hill Proprietary Company Ltd
State of New South Wales

MATTER NUMBER(S):

195 of 97

JUDGMENT OF:

Walker J at 1

:-

CASES CITED:

Ross v Meggitt Overseas Ltd 18 NSW CCR 324;
Malec v Hutton (1990) 169 CLR 638 ;
Jobling and Associated Dairies [1982] A.C. 794.;
Griffiths v Kerkemeyer (1977) 139 CLR 161 ;
Kovac v Kovac (1982) 1 NSWLR 656.

DATES OF HEARING:

8/12/05

LEGAL REPRESENTATIVES:

Plaintiff: Mr D G Letcher QC
1st Defendant: Ms W S Strathdee

2nd Defendant:Mr J L Sharpe

JUDGMENT:

JUDGMENT

JOHNS AJ

1. This is an action for damages brought by the plaintiff Andrew Arthur Hutton against the defendants. In respect of the first defendant the plaintiff brings his action against it as an employer. He alleges that in this employment he was negligently exposed to and inhaled asbestos dust and fibre. He brings his action against the second defendant, also as an employer, alleging that in that employment he was also negligently exposed to and inhaled asbestos dust and fibre.

2. In regard to the issues to be determined in this matter the first defendant indicated that the plaintiff was entitled to a verdict against it in respect of only one of the three periods the plaintiff was employed with it. In this regard the first period of employment with the first defendant, was when the plaintiff began his work as a mechanical engineering apprentice on 16 December 1946. This period concluded on 12 January 1951. The third period of employment began on 18 December 1972 and concluded in late 1978. The plaintiff’s second period of employment with the first defendant began on the 21 May 1952, that period of employment concluding in May 1956. It is in respect of this period that the defendant has agreed that the plaintiff is entitled to a verdict.

3. The plaintiff began his employment with the second defendant on 21 May 1956 and concluded in October 1957. The second defendant also indicated that the plaintiff was entitled to a verdict as a consequence of his employment with it at the State Dockyard.

Exposure

4. The defendants have submitted it is necessary in the circumstances of this case to determine the proportion of any damage that may have occurred to the plaintiff as a consequence of his exposure whilst he was employed with Stewarts and Lloyds, who have not been joined as a party to these proceedings. I will return later in this judgment to this issue.


The First Defendant

5. The plaintiff started as a mechanical engineering apprentice, (as already indicated,) on 16 December 1946, with the first defendant. He transferred at the end of his third year to a marine engineering course which he completed in the requisite period thereafter.

6. In the first two and a half years of his apprenticeship he worked in the machine shop and did not work with asbestos. There were tradesmen, machinists and fitters and apprentices in that area together with a welder. All the work was done in the machine shop at that time. He assisted tradesmen for the first 12 months of his employment in the assembly of turbines. The rest of the time he spent on lathes and other machines. He did perform repair work on bearings, on conveyor belts and maintenance on the mill itself, including “shutdown” work. He wore overalls and gloves when needed.

7. A detailed description of the nature of the work that he did in accordance with what I have described appears in his affidavit of his evidence and is exhibit PX1.

8. In a work history taken by Dr Bryant it is recorded that the plaintiff could not remember directly handling asbestos products or being in the company of other workers who were handling asbestos during the time of his apprenticeship. I think in the circumstances it can be fairly concluded that during this first period of employment that he was not exposed to any asbestos dust and fibre.

9. It is also to be noted that in the history to Dr Saltos this period is described as an atmosphere that was dusty and hot, but that to be best of the knowledge of the plaintiff at that time there was no asbestos exposure.

10. The plaintiff then commenced employment with Stewarts and Lloyds as a fitter at its premises at Mayfield in January 1951. The nature of the work that he describes is that he changed broken and chipped drawers used by workers at the socket shop, and in par 11 he says that he was not exposed to asbestos during the course of this employment, which I understand to be employment that he was doing at that particular time with Stewarts and Lloyds. However, in his evidence at 26.2 and 6.8 the plaintiff described that he used asbestos gloves on an intermittent basis, that on one occasion he effected repairs where he removed lagging.

11. The history of Dr Bryant also details a description of the work at Stewarts and Lloyds where he worked in the continuous weld mill as a leading hand. It should be noted in respect of his evidence at T6 point 2 and 6.8 it refers to a second period of employment with Stewart and Lloyds where he worked in the continuous weld mill, as I have described, as a leading hand. It is in this particular work that he recalled using asbestos gloves on an intermittent basis and on the one occasion removing lagging from around the pipes or at least one occasion from removing lagging around the pipes in order to effect repairs.

12. Given that basic principle dictates that the plaintiff is to be compensated in regard to damage that he has suffered, and which has been caused by the defendants' wrongful acts, and in the course of the trial the defendants introduce evidence to establish the existence of other employment which may have made a material contribution to the damage that the plaintiff has suffered, then it is a matter (or it is a factor) that has to be taken into account, when determining the extent of any damage that he has suffered for which the defendants are liable. (See Ross v Meggitt Overseas Ltd 18 NSW CCR 324)

13. The plaintiff, after ceasing his first period of employment with Stewarts and Lloyds commenced his employment with a number of other employers, all of whom are described in his affidavit (PX1) in pars 12 and 13.

14. The plaintiff returned to the employ of the first defendant on 21 May 1952 as a sixth engineer on a ship known as the IRON DUKE. He remained on the IRON DUKE until transferred to the IRON KING on which he worked as the fifth engineer on 25 July. He thereafter describes various other vessels of the first defendant's upon which he worked as an engineer.

15. It is to be noted that all of these ships were coal, hand fired, steam ships with boilers, one on the port side and one on the starboard side. Steam drove the engines, winches, auxiliary pumps and anchor. All these ships had asbestos lagging on the steam pipes, boilers, engines and winches. The plaintiff describes highly significant asbestos use on boiler room pipes as well as the boilers themselves, and these pipes were used extensively throughout the engineering areas of the ships.

16. A clear corroborative description of the nature of the environment was given in oral evidence by Mr Kevin Michael Murray, who worked with the second defendant while the plaintiff was employed on the ships.

17. He described the nature of the BHP ships which evidence was consistent with the description given by the plaintiff. It is fair to say that within these vessels the plaintiff was exposed to high levels of asbestos dust and fibre.

18. The working of the machinery and its consequent vibrations, when added to a heated environment and the consequent dryness of the asbestos material, resulted in an environment which rendered the asbestos susceptible to breaking up when it was being handled or when machinery was being operated.

19. While at sea the plaintiff was required to inspect winches to ensure they were in working order. The plaintiff’s description of his work was that old asbestos lagging left dust on his hands dust. His description of the work involved in replacing damaged asbestos rope or cloth on steam pipes, boilers and “blown down” pipes, on each of the ships in my view confirms the high level of asbestos dust exposure in his employment with the first defendant during this period.

20. High levels of asbestos dust exposure is consistent with the nature of asbestosis which is the disease from which he clearly suffers.

21. The nature of this work environment in my view has made a materially significant contribution to the onset of his asbestos disease. A similar description of this kind of work was given by Mr Murray which again confirmed the plaintiff's evidence.

22. The plaintiff also described some survey work that he did whilst in his employment with the first defendant which he described as dirty and dusty. He described that this operation took place a couple of times each year and related to a part of a boiler on one of the vessels that was to be worked on to a Lloyds' inspector's approval.

23. A detail description of the nature of this work was given by Mr Murray in his evidence. The plaintiff's evidence was in this regard also corroborated by the evidence of Mr Murray, who said that in this process asbestos lagging was disturbed from pipes in the engine room and the boiler room, which made the dust circulate in the air of the rooms.

24. This particular work simply added to the overall conclusion that I drew, that the plaintiff worked during this period of his employment in an environment to which he was exposed to high levels of asbestos dust.

The Second Defendant
25. The plaintiff then commenced employment with the State Dockyard, the second defendant, on 21 May 1956.

26. He worked at weekends and a lot of overtime. Part of the time he worked in a crew of fitters called "The Flying Squad." The work of the “Flying Squad” was also detailed by Mr Murray. It consisted of the best fitters who performed small but urgent repair jobs on ships in port. Most of their time was spent working in ships under repair at dock, but the plaintiff also worked on the bigger jobs. The evidence of the plaintiff’s assistant, Mr Malcolm Drew, was tendered in this case. Mr Drew who has passed away, had given evidence on a prior occasion. The ships, as described, were poorly ventilated with no dust extraction. This work had to be done quickly, and was performed in confined spaces. It required effecting repairs to valves, changing faulty gaskets and replacing damaged steam and water pipes. All of the material with which they worked contained asbestos. It seems to me that the nature of the work that the plaintiff did with the second defendant was not dissimilar to that which he engaged in with the first defendant. It seems to me that the work as described, was also a work environment which contained high levels of asbestos dust and fibre.

27. The plaintiff described the nature of this environment when he indicated that the repairs to the valves and steam pipes at times involved the removal of lagging. Metal scrapers were the implements used in this process and the plaintiff described that the dust created covered him. He also worked in an environment where other workers removed the pipes and the work that they did also created the dust.

28. He often performed work in the dockyard patching up damaged lagging with asbestos rope where the lagging had been damaged to expose chicken wire around asbestos composition. The lagging was dusty to touch.

29. In the engine and the boiler rooms on the ships at the dockyard he was exposed to significant asbestos dust and fibre. The rooms were not ventilated, the dust was circulated through the ship by a draft. The plaintiff was partially covered with asbestos dust from this work. At times pranksters threw old lagging material at other workers without knowing the danger related to the handling of this material.

30. I have formed the conclusion, as I have probably already indicated, that the nature of the work with the “Dockyard,” ( the 2 ^nd defendant) in particular the levels of exposure, seem to me to be much the same as that with the first defendant. The difference, between the two employments however is the period of time that he worked with each of them.

31. The plaintiff, after completing his work with the Dockyard, returned to employment with Stewarts and Lloyds where he was a production leading hand and maintenance fitter in the “Continuous Weld Pipe Mill” to which I have already referred. It was during this period of time that he had some exposure to asbestos, although he did not work directly with asbestos in this work nor was he was aware of any asbestos insulation material in the mill. He certainly did not have to remove any insulation material in the performance of any of his duties.

32. After three and a half years he was transferred to another subsidiary where he worked as a technical sales representative. The asbestos exposure in this employment has previously been described.

33. The question arises as to whether or not in the circumstances this particular exposure was material in the relevant sense. I have no evidence in regard to the consistency with which the asbestos gloves were used. The plaintiff described it as intermittent. He was not cross-examined by the first defendant in relation to it. The second defendant merely confirmed the history as it was detailed to Professor Bryant.

34. Given the description of the work that the plaintiff gives in par 38 I have come to the conclusion that in the absence of other evidence that indicates the significance of this level of exposure, my view is that it was not material and therefore is not a factor to be considered in the determination of the plaintiff's entitlement to damages.

The First Defendant

35. After he left Stewart and Lloyds, he obtained other employments and the plaintiff then returned to employment with the first defendant on 18 December 1972. He worked initially in the continuous casting plant which had to be completely overhauled. It was dirty and dusty work, it took a couple of months to perform before the plant was back in production. He worked as a millwright performing maintenance work until that particular mill was closed down 18 months later. His duties in that particular mill do not describe a work environment to which he was exposed to asbestos.

36. After the continuous casting plant he worked as a repair fitter performing general plant maintenance in the BOS Steel Making Department. This was an area that made steel ingots. He did not have to remove insulation material himself although there was a lot of insulation material in that steel making department. There was always some dust in these areas, it was also dirty and dusty work. The repair work included the demolition of the brickwork insulation material inside the furnace and its replacement. There were certainly clouds of dust. This type of work was done many times during the year. The hot water pipes sprayed water on heated furnaces but the plaintiff did not describe, during this particular period of employment any exposure to asbestos.

37. The plaintiff on 13 September 1975, injured his back. He had a myelogram at the Royal Newcastle Hospital. He continued at the steel works on light duties until late 1978 when he couldn’t continue his employment. He worked in a small wire caged protection area during this latter period which had an old dull white piece of asbestos matting. The plaintiff described its size and the manner in which it caused dust to his immediate environment.

38. It seems to me that that is the only exposure to asbestos dust that he was exposed to during this latest period of employment with the first defendant.

39. In 1978 when he couldn’t continue his employment with the first defendant, he underwent a spinal operation as a patient in the Sydney Adventist Hospital from which he was discharged on 28 June 1979.

40. After 14 months he returned to light duties in the BOS workshops but he could not continue working and he left on workers compensation in September 1980. He formally retired from the first defendant on 18 April 1982 and has not worked again in any employment. He says his back condition did not stop him from working around the home and the garden and from engaging in general activities.

41. It seems to me, given the nature of this exposure, the materially significant exposures of the asbestos dust to the plaintiff, occurred whilst he was employed with the first defendant during the second period of his employment, and with his employment with the State Dockyard, the second defendant. It is in those circumstances that I conclude that the plaintiff is entitled to a verdict against the first and the second defendants.

General Damages

42. There is no dispute that the plaintiff suffers from asbestosis. The medical imaging of Dr Jones clearly illustrates typical changes which clearly indicate that the plaintiff suffers from asbestosis.

43. Dr Saltos, who first saw the plaintiff on 5 May 1997, could not at that time make the diagnosis of a well established asbestosis although there were obvious early signs.

44. Dr Longbottom concluded in April 1997 that the plaintiff suffered from pleural asbestosis which was the possible cause of the x-ray changes in the pleura although at that time the plaintiff's main problem seemed to relate to mild chronic asthma and smoking related lung damage.

45. The plaintiff was seen by Dr Saltos on 10 December 2002, on 13 April 2005 and 3 June 2005. In late 2002 the plaintiff's breathing had deteriorated and a high resolution CT scan showed progression of the underlying asbestosis.

46. He was also seen at that time by neurosurgeons, neurologists and cardiologists.

47. The telltale signs of early clubbing had developed by the time of the second consultation with Dr Saltos. Significant inspiratory crackles were heard on examination, although his spirometry and oxygen saturation were still quite adequate. By the time he was seen by Dr Saltos on 13 April 2005 his condition had deteriorated very significantly and he had become much more breathless. He had desaturated considerably with little exercise and a CAT scan showed marked progression in the underlying pulmonary fibrosis, namely, asbestosis.

48. He was subsequently seen by Professor Fletcher, who felt that the symptoms were predominantly respiratory rather than a cardiac deficiency which is of significance in this case. He was also seen at the oxygen clinic and had commenced on domiciliary oxygen.

49. His physical examination showed acute signs and it was the doctor's view at that time that the plaintiff suffered with extensive asbestosis due to previous asbestos exposure as a result of which he has developed respiratory failure. His prognosis is very poor and his expected survival is limited.

50. Professor Bryant in his evidence took a detailed history, to which I have already referred. He examined the plaintiff who he found was cyanosed at rest with an oxygen saturation markedly reduced. Clubbing was confirmed on examination and the CT scan also confirmed emphysema with pleural plaques and diffuse pleural thickening.

51. He examined the sequence of imaging together with lung function test results. The history of asbestos exposure, was confirmed by the finding of bilateral pleural plaques and a gradual progression of interstitial pulmonary fibrosis. Professor Bryant found the plaintiff severely impaired with a poor prognosis.

52. In February 2005 his life expectancy was significantly limited. Because of the severity of the hypoxia Professor Bryant was of the view that the plaintiff was to be referred to his general practitioner so that arrangements could be made for continuous oxygen treatment to alleviate his low oxygen level.

53. Professor Bryant concluded that 75 per cent of the plaintiff's impairment was due to asbestosis. Any impairment due to emphysema was unlikely to be more than 10 to 15 per cent. He said that because of the asbestos exposure and the presence of asbestosis the plaintiff was at increased risk of developing either a bronchogenic carcinoma or a mesothelioma at some future time, although he did not think that these potential diagnoses were likely to be relevant in a case as severe as the plaintiff's as he was unlikely to survive sufficiently long for the development of either of these malignant processes to be clinically relevant.

54. By May 2005 Professor Bryant concluded that the plaintiff was severely disabled. Commenting in another report he said that the mild changes of emphysema present on the CT scan, when considered with the lung function test results, which showed evidence of restriction without any over inflation, he argued against the presence of significant emphysema. It was more probable, he said, that the plaintiff's pulmonary fibrosis or asbestosis had arisen as a consequence of his asbestos exposure and that he was significantly disabled. On December 15 2005 Professor Bryant said that it was probable that an individual with 10 to 15 per cent impairment as a consequence of obstructive disease or emphysema would be capable of prolonged physical work of moderate to heavy intensity and that this disability would not require the plaintiff to have any need for assistance with activities in daily living.

55. It seems, however, that the plaintiff's condition has continued to significantly deteriorate. Dr Keyworth, his general practitioner, reported on 19 October 2005 after examining the plaintiff that his life expectancy at the time was best measured in months. Dr Keyworth indicated probably no more than six months.

56. The plaintiff he said was alert and oriented and capable of understanding questions and providing appropriate answers. The level of his cerebral function he said would only last for another two or three months due to the rapid deterioration in his physical condition.

57. When I saw the plaintiff to take his evidence it was clear that he had acute symptoms and suffered from respiratory distress. Although he did have difficulty giving his evidence I did not conclude that he did not respond appropriately to answering questions. I did, however, think that he was having great difficulty in expressing his answers but it was not such that I would conclude his evidence was not probative.

58. Evidence has also been submitted in regard to a number of other medical conditions. In relation to the plaintiff's back, I have already referred to it. He has had also surgical treatment to his cervical spine and he has had a coronary by-pass in relation to heart disease. He does suffer, as I have indicated, from some emphysema, which would appear to be as a result of smoking in the past, and some asthma.

59. The question arose as to whether such matters ought to and if so to what extent they should be taken into account when determining a sum to be awarded to the plaintiff for general damages.

60. Basic principle dictates that the plaintiff is to be compensated in regard to the damage that he has suffered which has been caused by the defendant's wrongful acts. If the defendants introduce evidence to establish the existence of either pre-existing or other supervening medical condition it is upon the defendants to establish their probable effects upon a plaintiff's disabilities and incapacities (See Malec v Hutton (1990) 169 CLR 638 and Jobling and Associated Dairies [1982] A.C. 794.) Evidence must be adduced to disentangle the plaintiff's disabilities with some measure of precision particularly in regard to what the conditions are, their future effects and what their future development and progress is likely to be. The evidence in this case is lacking in relation to the future effects and what the future development or progress of these other diseases might be. Certainly it seems that his cardiac condition does not seem to be playing any part in any disability that he presently suffers. As I have indicated he was sent by Dr Saltos to Professor Fletcher, the consequence of which was that Professor Fletcher did not consider that the plaintiff's respiratory problems were the result of any cardiac condition.

61. In regard to his low back condition, upon which he has had operative treatment, and after which he concluded his employment with the first defendant there is no evidence as to how his lower back is or was or had been affecting his every day activities since. The fact that the plaintiff was engaged in caring for a vegetable garden and a general garden in his home is of some significance. It seems that his back did not prevent him from engaging in these activities, nor would it appear did his cervical spine. Other causes must of course be allowed to the extent that seems reasonable in the particular case.

62. I do, however, in determining the level of his entitlement to general damages, only take into account and have regard to damage that has been caused by the defendant's wrongful acts. In this case his asbestosis.

63. The plaintiff's life expectancy is severely limited. It would seem, Dr Keyworth concludes, probably about six months. The occupational therapists have based their conclusions in accordance with the determination of Dr Keyworth. It seems to me, given the evidence and the rapidly increasing disability of the plaintiff that Dr Keyworth's estimate of life expectancy is probably accurate and therefore in accordance with my conclusion.

64. In regard to general details the plaintiff was born in Mayfield on 4 November 1928. He married his wife on 6 June 1953 and has three children, all of whom are presently living. He has eight grandchildren and eight great grandchildren. He is obviously a man who has a large and gratifying family and there is no doubt that any thought of his demise in respect of his relationships with them would cause him distress. He has had a long and successful marriage, which seems to me to be confirmed by the fact that his wife continues to nurse him, and proposes to do so until the end.

65. He was obviously an active and sensible man who took some pride in his work. He now lives in the shadow of greater suffering which is limited in time by the inevitable progression and consequence of his advanced asbestosis. This will be the situation for the remaining period in his life and his age and will not lessen the consequence of the progression or the effects of the disease.

66. His future as a result is obviously bleak and is to him no less devastating despite his age. But for the advanced or severe asbestosis the plaintiff would not be facing a future such as now confronts him.

67. Submissions have been made in regard to the assessment of general damages but an overall award in general damages including a loss of expectation of life in this case in my view should amount to $110,000.

Past Care

68. The plaintiff also makes a claim for past care. In relation to past care and future care I have before me the reports of Heather Tchan and Associates, occupational therapists and a report of Ian Walker, who is also an accredited occupational therapist. Each of the therapists has taken the same periods of time which are in accordance with my findings, particularly in regard to loss of expectation of life. In regard to past care the Tchan report at page 6 concludes approximately $33,000, the Walker report approximately $26,000, at p 2. I conclude that the starting point of October 2002 is appropriate, particularly in light of the evidence of Dr Saltos.

69. I think it is abundantly clear that this is the period of time when the plaintiff's respiratory condition as a consequence of his asbestosis really took hold and he became disabled.

70. There has been an increasing progression of his disease since that time and he now finds himself in his extremely disabled condition.

71. It is the need, as has often been said, to provide personal care or domestic care for the plaintiff that is compensable, more particularly affirmed recently in the High Court.

72. What is to be assessed is the reasonable cost of classifying the plaintiff's needs, not the value of the services in fact provided because the provider may be providing more than the plaintiff reasonably needs. Also in the ordinary course or currency of family life the operation and support commonly received amongst members of the family is not to be wholly ignored, as is indicated in Griffiths v Kerkemeyer (1977) 139 CLR 161 and Kovac v Kovac (1982) 1 NSWLR 656.

73. Given that the exercise is not a precise mathematical calculation but rather what is appropriate in the circumstances founded upon the evidence, it would seem to me that an appropriate figure for past care is the sum of $28,000.

Future Care
74. In regard to the future the Tchan report concludes $32,000, at p 6 the Walker report $20,000 at p 2. It would seem to me that an appropriate figure founded upon what I have referred to above of $26,000 would be appropriate.

75. The Dust Diseases Board has not yet made a determination upon the plaintiff's application to it for the payment of services for future care. I have no evidence before me as to when the Dust Diseases Board is likely to make such a decision and it is not improbable that the plaintiff will be deceased before a decision is made. It is my understanding from the parties that if this should happen then the Board will not provide any of the services paid. It is difficult in those circumstances to provide some resolution to this problem so that the plaintiff will not be doubly compensated, as is required by legal principle.

76. The plaintiff therefore is to be awarded damages in the following terms:

General damages, including loss of expectation of life $110,000.00

Interest on general damages at 2 per cent for three years $3,300.00

Past care $28,000.00

Future care $26,000.00

Interest on past care as agreed between the parties $1,260.00

77. Prior to entering the verdict I note that a notice has been received from the Commission about medical accounts which have accrued. To date they total the sum of $1,856.70.

78. The question remains whether it may be possible to obtain some refund from the Dust Diseases Board, although the position in that regard is unclear.

79. In terms of the calculation of damages the amount is to be included in the orders made, on the understanding that the parties clarify the above mentioned situation. I will grant leave pursuant to the provisions of the legislation to the parties in this regard if the Board does not agree to pay them.

80. I also note that the sum payable in respect of future care is to be deferred until a determination by the Dust Diseases Board in respect of the future services they may provide.

81. I grant liberty to the parties to apply pursuant to the legislation upon such determination if necessary.

82. The defendants have agreed that the apportionment in respect of the verdict and judgment is to be 75 per cent in respect of the first defendant and 25 per cent in respect of the second.

83. There will be verdict and judgment for the plaintiff in the sum of $168,560.

84. I order the defendants to pay the plaintiff's costs.

Mr D G Letcher QC instructed by Turner Freeman appeared for the Plaintiff
Ms W S Strathdee instructed by Sparke Helmore appeared for the 1st Defendant
Mr J L Sharpe instructed by About Tout appeared for the 2nd Defendant

I certify that this and the previous 17 pages are the

Reasons for Judgment of His Honour Acting Judge Johns

Associate

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