King v Caltex Petroleum Pty Ltd
[2013] NSWDDT 4
•10 April 2013
Dust Diseases Tribunal
New South Wales
Medium Neutral Citation: King v Caltex Petroleum Pty Ltd [2013] NSWDDT 4 Hearing dates: 23/05/2012; 29/01/2013; 25/03/2013; 26/03/2013 Decision date: 10 April 2013 Before: Kearns J Decision: Verdict for the defendant.
Catchwords: Dust diseases; mesothelioma; no direct evidence of exposure to asbestos; whether case could be established on the basis of inferences from circumstantial evidence Cases Cited: (re Jones-Mashman) Amaca Pty Ltd v CSR Ltd No 2 [2009] NSWDDT 24;
Eaton v Carrier Air Conditioning Pty Limited (2004) 1 DDCR 716;
Booth v Amaca Pty Ltd [2010] NSWDDT 8Category: Principal judgment Parties: Bronwyn Jane King (as the Legal Personal Representative of the Estate of the Late Victor John King) (Plaintiff)
Caltex Petroleum Pty Ltd (Defendant)Representation: Mr G Little SC, with Mr T Little, Ms J Layani-Ellis and Mr R Foord, instructed by Denniston & Day, appeared for the plaintiff.
Mr D Miller SC, with Mr T Morahan, instructed by Ellison Tillyard Callanan, appeared for the defendant
File Number(s): DDT96/2012
Judgment
Background and claim
Mr King died of malignant mesothelioma on 9 July 2012. Before he died, he commenced proceedings against Caltex. He alleged that the mesothelioma was contracted as a result of Caltex negligently exposing him to asbestos in the course of his work for Caltex. He had been employed by Caltex. His work had taken him over many parts of New South Wales. He visited numerous sites owned by Caltex and also by Golden Fleece after Caltex had taken over Golden Fleece.
On the sites were buildings which were in part constructed of corrugated asbestos materials. They were in varying states of repair. The Golden Fleece sites were in a poorer state of repair than the Caltex sites.
Mr King's work was mainly clerical, administrative and managerial, rather than hands-on.
Whilst numerous sites had buildings constructed of asbestos materials, only one is of significance in this case. That is the site at Bonville. Mr King alleged that, when he visited that site, he was exposed to asbestos dust and fibre which resulted in his mesothelioma.
Evidence was taken from Mr King at his home at Coffs Harbour on 23 May 2012. Since he died, the proceedings have been continued by his widow.
Issue
The parties have helpfully agreed that if the plaintiff is entitled to a verdict, then she is entitled to a verdict in the sum of $311,500. The case is, therefore, a liability case. It is a one issue liability case. The only issue is whether Mr King was exposed to asbestos at Bonville sufficient to cause his mesothelioma.
The competing contentions
Counsel for both parties presented their case to me as a clear one. Mr Little SC, who at different times appeared with different juniors for Mr King and the plaintiff, submitted that though it was a circumstantial case, it was one that was so clear I would be satisfied that it was established even on the criminal standard of proof. Mr Miller SC, who appeared with Mr Morahan for the defendant, submitted that there are robust findings of fact, heroic findings of fact and cases where the court is invited simply to make up findings of fact and this case is in the last of those categories.
The evidence
Because Bonville is the only site where exposure is alleged, I can ignore or pay only glancing attention to much of the other evidence. To analyse properly Mr King's evidence, however, it will be necessary to set out in some detail what his evidence is.
In his statement (Exhibit PX1), Mr King said that he started with Caltex on 11 June 1969. He worked in North Sydney. In 1971, he went to Mudgee as a composite representative where he covered a large country area. In 1975, he went to Cowra. His working conditions were the same. Later in 1975, he went to Wagga Wagga. He was there until 1981. In 1981, he went to Coffs Harbour. Again, he covered a large area.
In all this work, Mr King often visited sites where there were buildings constructed of product he believed to be asbestos. The Golden Fleece sites he visited were in a more dilapidated condition than the Caltex sites. In describing his work, he referred to these buildings and his presence where they were, but he did not in any way suggest in his statement any exposure to liberated asbestos. Nor did he suggest that his duties involved anything in relation to those buildings other than his mere presence.
Bonville was different. It is important, I think, that at this point I set out the relevant parts of his statement.
64. I recall the sheeting which made up some of the walls and roofs of some of the depots to be made of asbestos sheeting. I recall all the roofs had corrugated sheeting some of which I am fairly sure were made of asbestos. I am sure about this in relation to the Bonville depot which was on a rail siding and was vandalised. This building contained asbestos. Toby Barley was the distributor at the time. Murray Bailey a distributor may know precisely the details of the vandalising of the Bonville depot. I recall there was concern expressed at the time that the vandals may have inadvertently exposed themselves to asbestos.
Explanation of working conditions and asbestos exposure at Caltex
The country fuel depots in NSW were built during the 20th century as the core of fuel distribution. The first ones were built on rail sidings on the outskirts of larger country towns where rail tankers were discharged into storage tanks. The storage tanks were connected by pipeline to a staging area where trucks with bulk carrying capacity were loaded for delivery to customers. The staging area was also used for cleaning and filling 200 litre drums which were also stored and loaded from the staging area.
The staging area was a very large rectangular platform made of railway sleeper decking above a bunded polution [sic] containment area.
The outside of the stage area was used for loading and unloading vehicles while the central areas were part enclosed roofed areas used for sheltered work stations, storage of fuel and oil packaged products and office space.
Sometimes separate buildings were built for specific purposes but most had this basic configuration.
The bunded areas were exposed soil base surrounded by low brick wall. The stage was railway sleeper timber with drainage slits between which were supported by brick footings.
The buildings were built of fireproof materials of different types. Many of the earlier ones were made of thick asbestos sheeting some of which was corrugated. Some were made of metal, but in these cases were coated with a grey fireproof paint which had a slight sparkle to it.
Gradually the depots began to spread out from the rail sidings according to the facilities they provided - bulk storage facilities, bulk delivery capable, drum and package etc. At its height there could be as many as 12 depots in the Mudgee area alone.
Repairs and maintenance was carried out by Caltex's engineering department with only some work done by me at their request. These repairs and maintenance jobs were carried out by the Engineering Department fitter (usually Mr. Bob Higgins) while the depots normal operations continued.
Depots were very dirty work environments being exposed to the elements and involved in a harsh industrial product distribution.
I do not know how I came to the knowledge of the composition of my environment except that after a quarter of a century working in it you would think I would naturally know some things. I was always in a marketing and administration position and knew I was in a dirty, greasy and dusty environment. I did not need any specific incidents to occur to instruct me they were ongoing.
I also did not need to know of any specific incident where I touched material that I needed to make enquiries about. Whether it was asbestos or not, common sense made me avoid contact with the dirt, dust and grease which was common to the environment.
In 25 years there would be plenty of times where there were buildings in disrepair. remember [sic] in my case that would be hundreds. But it would be so common that no notice would be taken other than to notify engineering.
In the takeover of Golden Fleece, the state of their general repair and maintenance was blatantly obvious throughout their operation and possibly non-existent while negotiating the sale to Caltex.
Although the Golden Fleece depot was closed at Bonville, the Caltex distributors continued to use it for bulk storage. I was called in when the vandalism occurred and spent considerable time on site evaluating damage, retrieving valuables and securing danger areas. There is no doubt that the walls and roof of this building was asbestos as the smashing of these panels constituted the main damage.
Mr King gave evidence at his home at Coffs Harbour on 23 May 2012. He was then in a very poor state of health. At one stage, a break was needed before Mr King could continue with his evidence. He described that the roof at the site at Bonville had large holes in it. He affirmed that damage had been caused by vandals. The following questions and answers were part of his evidence:
Q. Did you have to spend some time at those premises after they had been vandalised. A---We were asked on frequent occasions could we find this - was this - the damage, was there things that I could do to make it more tractable for the trucks to get in and out, all those sorts of things.
Q. Were you also asked to retrieve materials that belonged to the company that were there. A---A lot of the old oil machinery consisted of old mechanical machineries that would require dismantling. I was not necessarily there to dismantle it. That would be the engineering department's job. I would be asked to go and check that a thing was there or not there so that the engineering department could take the required action.
Q. Did this go on over weeks, or months, or days. A---It was never viable for the engineering department to just jump in a car and drive up from Sydney, so me being on hand, I would be the person to be called on.
Q. How often would this occur. A---Irregularly. I cannot say anything more.
Q. What was the state of the premises and where you were working on these occasions. A---Just terrible. I think in conversation I told you before about a case of where I was carrying around a photo as some sort of a joke of me towing around a petrol tanker - you know, a 40-gallon tank, dragging it around through hub-high mud.
[T10.06-10.21]
Mr Bastian gave evidence and a statement was tendered from him (Exhibit PX5). He worked for Caltex for many years in different capacities and at various locations. He worked with Mr King. He recalled "the incident" when the Bonville depot was vandalised. The vandals broke through a fence and smashed a couple of panels of corrugated asbestos sheeting. There were objections taken by the defendant to the use by various witnesses of the word "asbestos" as evidence of the fact that the material was asbestos. Later evidence confirmed that it was. Mr Bastian asked Mr King to arrange temporary repairs to the fence and to the building. Seven to ten days later, he attended the site and noticed temporary repairs had been done by replacing the broken panels with corrugated iron sheeting.
In oral evidence, Mr Bastian fixed the time of this event as about 1990 / 1991. He also stated that he noticed that the fence had been repaired. As to the building, two damaged panels had been repaired and there were broken pieces of asbestos on the ground where the temporary repairs were done. There was nothing to distinguish whether these broken pieces of asbestos were the direct product of the vandalism or otherwise. The shed was reasonably secure from the temporary repairs and the fence had been wired up. Permanent repairs were to be done later.
Mrs James provided a statement (Exhibit PX6). She was 84 years of age when her statement was prepared. She was married to Kernick James. She said Kernick James worked for Caltex for 46 years. In fact, he worked for W H Bailey & Sons Pty Limited. That company had stock at the Bonville depot.
Mr James died on 7 April 2004. He had retired in 1998. In her statement, Mrs James stated that shortly before her husband's retirement, vandals kept breaking into the depot. At times, she and her husband waited at night near the site for the vandals. They were eventually caught. This was about three weeks after her first learning of the vandalism. Her statement includes the following:
14. They had been breaking all the asbestos panels to get into the building.
15. There were holes punched in everywhere.
16. There was also an asbestos roof which I think was damaged but I can't be sure.
17. The place was a hell of a mess. There was broken asbestos sheeting everywhere, both inside on the floor and outside on the grass.
Mrs James said that Mr King cleaned up after the mess and was a long time doing this.
The plaintiff provided a statement (Exhibit PX10). In that statement, she said at [7]:
I recall Victor telling me about the Bonville depot being vandalised and he was out there undertaking repairs to the damage. I don't specifically recall Victor coming home with white powder on his clothing, he would often come home very dirty as he was so hands on at work.
Murray Bailey gave evidence. He was employed by and was a director of W H Bailey & Sons Pty Limited from 1962. His company was the Caltex distributor in the Coffs Harbour area for a long time. This ceased in about the mid to late 1990s. His company operated two bulk depots, one being the one at Bonville. The company did not employ permanent staff at the depot, but it sent staff out there as the occasion arose. Caltex owned those premises. Mr King was the Caltex representative looking after the industrial accounts. Caltex had no other staff there. The Bailey company employed Kernick James. He was the manager of the Bailey operation and was totally responsible for the operation of the Bonville depot. In the late 1980s, the site was broken into on several occasions. Mr James tried to catch the culprits and eventually did so, or enabled the police to catch them. Mr Bailey could not recall going out and inspecting the premises after they had been vandalised. The problem went on over several occasions. Mr James was Caltex's man in Coffs Harbour. It was Caltex's obligation to keep the Bonville premises safe and secure.
The Bonville shed has been moved. That was in about 1990 or 1991. It was taken and reconstructed on land owned by Rex Sheather. That land was ultimately bought by Barry Patch and owned by him until recently. The shed has been inspected and samples taken and examined. Clearly, it had walls of corrugated asbestos and the asbestos included amosite and chrysotile.
Analysis of the evidence
For the plaintiff to succeed in establishing that Mr King was exposed to asbestos that caused his mesothelioma, it ought to be shown that he had the opportunity to be exposed to asbestos dust and fibre and that he was. I am satisfied as to the former, but not the latter.
There was ample opportunity for Mr King to be exposed. The expert reports demonstrate that the shed at Bonville was constructed of corrugated asbestos sheeting. The asbestos included amosite, a particularly renowned dangerous form of asbestos. The shed was vandalised on several occasions over several weeks, possibly months. I accept Mr Bailey's evidence about that. It is consistent with the evidence of a stakeout for the vandals conducted by Mr and Mrs James. It is consistent with Mrs James's evidence.
I reject Mr Miller's submission that Mrs James's evidence relates to a time after the shed was moved. Mr Miller submitted that as Mrs James said the events she was speaking of occurred shortly before her husband's retirement in 1998, she must be speaking of events after those on which the plaintiff relies. Indeed, he submits she was speaking of events after the shed had been removed in 1992. I think Mrs James is simply wrong in fixing the date near her husband's retirement. That is not the only piece of evidence from which the date can be fixed. Mrs James was clearly talking about vandalism of the building on the depot and she was clearly referring to that building when at the end of her statement she said, "I recall at some stage it being closed and pulled down". It does not make sense that after its being closed and pulled down, she and her husband were staking out in relation to that building. It is that building she was talking about.
I reject any suggestion that there was only one incident of vandalism. To the extent that the evidence might be said to support this, it comes from the evidence of Mr Bastian where he refers to "the incident". It does not make sense that there was only one incident. If there was, it must have been a most fortuitous occasion that had Mr and Mrs James staking out the premises at the one and only time that the vandals broke in and the police were able to arrest them. When Mr Bastian refers to "the incident", that can bear reference only to one occasion that he recalls.
I am not satisfied on the evidence, however, that Mr King was exposed to asbestos to cause his mesothelioma. In examining that, I take as the starting point that the overwhelming probability is that Mr King's mesothelioma was caused by exposure to asbestos. Mesothelioma is known to be caused by asbestos in the vast majority of cases. Probably also in the vast majority of cases where there is no known cause it is caused by exposure to asbestos. The explanation for this lies in the inability of the victim to recall exposure because of the significant lapse of time between exposure and onset of illness or a lack of skill or experience on the part of the history taker in seeking to elicit the history.
The next step I take is that set out in the plaintiff's s 25B notice that "all asbestos exposure within an acceptable latency period makes a material contribution to the cause of mesothelioma". The defendant's attack on that notice was that the case of Jones-Mashman, (re Jones-Mashman) Amaca Pty Ltd v CSR Ltd No 2 [2009] NSWDDT 24, which supported the determination, was overruled on appeal. The judgment and orders of Judge O'Meally were set aside on appeal. Therefore, it was submitted, there was no determination by Judge O'Meally. I take a different view. The appeal was determined on a different point. The determination as a matter of fact remains sound and provides a basis for a s 25B notice.
In any event, the same determination was made by Judge O'Meally, with some patent exasperation with Counsel, in Eaton v Carrier Air Conditioning Pty Limited (2004) 1 DDCR 716, [8].
One of Mr Miller's points was that his Honour did not include a "de minimis" exception in his determination in Jones-Mashman and in Eaton as Curtis J did in Booth v Amaca Pty Ltd [2010] NSWDDT 8, [62]. It barely needs to be included. If exposure is de minimis, it will not be material.
I proceed to examine whether the evidence supports that Mr King was exposed to asbestos such that his mesothelioma was caused by that exposure. This part of the plaintiff's case is entirely circumstantial.
The first thing to note is that Mr King did not give any evidence that he was exposed. This is most unusual, especially in circumstances where it was within his capacity to say that he was or to provide evidence from which it could be inferred that he was. He provided no direct evidence of exposure.
The comment in the previous paragraph is to be seen in the context of Mr King's statement and his evidence. In his statement, in paragraphs 1 to 46, he set out a considerable amount of general background. At paragraph 47, he mentioned the commencement of his employment with Caltex. Then from paragraphs 48 to 63, he talked generally about his work with Caltex, how he worked at different areas of New South Wales and how he visited numerous towns. He referred to various depots being built with asbestos sheeting. Then at paragraph 63, he said, "I was constantly travelling to and working within the premises made out of asbestos". Then the statement continued in paragraph 64 as I have recorded in paragraph 11.
Various parts of the statement were objected to and some parts excised or rulings made limiting the effect of the evidence. I have recorded paragraph 64 above, however, in its original form. Having spoken fairly generally in his statement up to this point, in the first paragraph of paragraph 64, Mr King referred specifically to Bonville and referred also to the concern that the vandals may have exposed themselves to asbestos. With attention focussed on those subject matters, there was no development of the subject matter as to whether and how Mr King might have been exposed.
Then followed the heading, "Explanation of working conditions and asbestos exposure at Caltex". This is plainly self explanatory and what follows is what was meant to be his evidence of his asbestos exposure. The narrative is then really quite general until one gets to the last paragraph of paragraph 64. In that paragraph again, Mr King focussed on Bonville and to some extent mentioned what he did there: "I was called in when the vandalism occurred and spent considerable time on site evaluating damage, retrieving valuables and securing danger areas".
At no point did he say what he did. At no point did he mention handling asbestos. He did not mention cleaning up. He did not mention what evaluating damage or retrieving valuables or securing danger areas involved in terms of physical work, or in terms of handling asbestos product, or that he was close to any.
I think this is the first case I have seen, both in my practice at the Bar and since being a member of this Tribunal, where a plaintiff suffering from an asbestos disease, from exposure in an industrial context, has not given evidence about his or her actual duties when working with asbestos or about his or her duties when working near asbestos or how close to asbestos he or she was working or about the atmospheric conditions. For that matter, it is, I think, also the first case I have seen where a plaintiff suffering from an asbestos disease who, as an adult was exposed to asbestos, whether in an industrial setting or otherwise, has not given evidence about what activities he or she was undertaking when the exposure allegedly occurred or how near to asbestos dust and fibre he or she then was or about the atmospheric conditions when undertaking the activities.
The next observation to be made about this is that Mr King's statement was not a statement prepared by him without any assistance. It was done with professional assistance. He was assisted by his solicitors and by junior counsel at the time who was involved in the case.
In his opening submission in reply, Mr Little stated,
Well it's all very well to deal with these cases in a cocoon, your Honour, without looking at the real facts of life in this case. It is the fact that the plaintiff's solicitors sought production of documents relevant to this claim from Caltex and, with one exception, nothing could be found on [sic] supplied. Similarly we were told that there was no asbestos register available at the time and there were no records whatever of break-ins at the Bonville premises, so there was no material available to us from the defendant to support or indeed contradict our case. In those circumstances the solicitors for the plaintiff, not being one of the usual firms who had a vast array of data from other cases, took steps to endeavour to find out whether there were any news reports that could be discovered relating to these break-ins and thefts and the charging of people.
[T107.2-10]
All this does is explain the difficulties Mr King and the plaintiff have had in obtaining evidence of exposure. The fact that Mr King and the plaintiff had these difficulties might explain why there are gaps in the plaintiff's evidence, but they do not plug those gaps.
When Mr King gave evidence at his home, the matter was not advanced. The highest this evidence got was that Mr King attended the depot irregularly and the state of the premises was terrible. None of this evidence was directed to the condition of the premises so far as it concerned asbestos. The questions did not direct Mr King's mind to that subject matter. The terrible condition of the premises related to other matters. Mr King was obviously unwell and, because of that, he may not have been able to have given the evidence even if the questions did direct his mind to it. It would be conjecture on my part, however, to assume that if he had been asked questions directing his mind to his exposure to asbestos, he would have been able to give evidence that supported his case.
It is against that background that the circumstantial evidence that supports the plaintiff's case needs to be examined.
Mr Bastian spoke of one incident. I have already indicated that I accept there were several incidents of vandalism. In relation to Mr Bastian's evidence, however, he said that he told Mr King to arrange temporary repairs. That, however, says nothing about what Mr King did. Seven to ten days later, Mr Bastian said the temporary repairs had been carried out. As the repairs were temporary, it might be inferred that Mr King did them, but the only specificity about it was that two damaged panels had been replaced with corrugated iron. That tells us nothing about the extent to which Mr King handled asbestos or if he did at all. It could certainly not be inferred that he cleaned up the broken asbestos as broken pieces remained on the ground after the temporary repairs were carried out. Assuming that Mr King did the temporary repair work, there is no eye witness account as to the level of exposure to asbestos experienced by him. Nor was there was any attempt to introduce any expert evidence as to the levels of exposure that might be experienced in doing this work.
In the past, papers have been tendered and admitted into evidence in cases in the Tribunal where those papers include studies of concentrations of asbestos in the atmosphere related to certain industrial processes. Evidence of this nature would be available for tendering under s 25(3). No attempt was made to tender any such material. Further, even if such material did not exist there is no reason why tests could not be carried out with a view to ascertaining to what extent asbestos might be liberated in the atmosphere in undertaking the tasks performed by Mr King in this case, whatever those tasks may have been. This presumably was not done.
When I turn to Mrs James's evidence, I see that she said that Mr King cleaned up the mess and was a long time doing so. I do not accept that evidence. I have no doubt she believes it. For a start, the evidence does not sit consistently with Mr Bastian's evidence of broken asbestos lying around when he visited seven to ten days after the incident he was aware of and after temporary repairs had been carried out. Further, Mrs James did not observe Mr King doing this himself. The evidence can only be hearsay evidence based on what her husband told her. When it is analysed, her husband did not tell her this. What he told her was that he had asked Mr King to clean it up. There is no follow-up evidence that he did clean it up or that it was cleaned up.
Mrs King recalled Mr King telling her about the Bonville depot being vandalised and he undertaking repairs. This highlights the problem. It does not identify what repairs he did. Further, if this relates to repairs to the building and handling asbestos, it raises the question as to why this does not appear in his own statement and why he was not asked to give evidence about it. It would be most unsatisfactory to rely on the evidence of Mrs King when Mr King could have given the evidence directly on two occasions especially when on both of those occasions he was professionally assisted.
It seems to me that nothing Mr Bailey said advances the matter.
The only other evidence to note is that of Dr Johnson. He provided a report and gave evidence. In view of my analysis of the evidence in this case, his evidence is unable to assist the plaintiff.
For these reasons, I am not satisfied that the exposure to asbestos relied on in this case has been proven to have caused, or made a material contribution to the cause of, Mr King's mesothelioma.
Order
There will be a verdict for the defendant.
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Decision last updated: 19 July 2013
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