Markland v SIFC - [2001] NSWDDT 19

Dust Diseases Tribunal

of New South Wales

CITATION: Markland v SIFC [2001] NSWDDT 19

PARTIES: Darcy Markland
Stevedoring Industry Finance Committee

MATTER NUMBER(S): 31 of 2001

JUDGMENT OF: O'Meally J at 1

CATCHWORDS: Damages :- Provisional Damages
Asbestosis

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 3 July 2001
4 July 2001

EX TEMPORE
JUDGMENT DATE :
07/04/2001

LEGAL REPRESENTATIVES:
FOR PLAINTIFF:
Mr W P Kearns SC instructed by Turner Freeman
FOR DEFENDANT
Mr A C Scotting instructed by Blake Dawson Waldron

JUDGMENT:

1. This is an action for provisional damages by Darcy Markland against the Stevedoring Industry Finance Committee.

2. It is not disputed that in the course of his work as a stevedore upon the Sydney waterfront the plaintiff was exposed to significant quantities of asbestos dust and fibre, as a result of which he has contracted the disease of asbestosis. The existence of a duty of care and breach of that duty are not in issue. If I may say so I congratulate counsel for the agreements that have been reached. They have limited the issues I am required to determine. The defendant does not dispute its liability to pay damages to the plaintiff.

3. Evidence was taken from the plaintiff at his home. He was on oxygen and has been for some time. There is no serious medical dispute about his current condition and the only medical evidence before me is the report of Dr Michael Burns, an eminent thoracic physician. It is Dr Burns view that the plaintiff has advanced asbestosis, and breathlessness, which was present when he ceased work in 1991, is likely, in Dr Burns’ view, to have been caused by asbestosis. There was x-ray evidence of pulmonary fibrosis present in 1993 and in Dr Burns’ view that condition was likely to have existed in 1991. I assume that Dr Burns came to that conclusion by reason of the state of fibrosis present in the 1993 chest x-ray. Dr Burns thought the plaintiff to be very unwell and had a life expectancy of two to three years from the time of consultation, which occurred at his home on 23 January 2001.

4. Asbestosis is a terribly disabling disease. It is progressive. It significantly restricts the capacity to breathe. Oxygen administration inevitably is required, and the plaintiff has been on oxygen now for some considerable period. He will remain on oxygen until he dies. Presently he has oxygen for something between 16 and 20 hours in each day. Inability to breathe adequately causes frequent panic attacks. It also limits and restricts mobility. The plaintiff’s mobility has been significantly restricted. He is able to walk now, but only for something in the order of 10 metres, effectively from room to room and at a slow pace requiring rests in the course of journeys to the bathroom and elsewhere in the home. He relies upon his wife absolutely. She bathes him, dresses him, undresses him, sets the television and radio for him and cares for him throughout…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWDDT 19
Decision Date: 07/04/2001

CaseChat Overview and Summary

In Markland v SIFC, the plaintiff, Markland, brought an action against the defendant, SIFC, in the Supreme Court of New South Wales, seeking compensation for asbestosis allegedly caused by exposure to asbestos during his employment. The plaintiff contended that the defendant failed to provide a safe working environment and did not adequately warn him of the risks associated with asbestos exposure, resulting in the development of asbestosis.

The primary legal issues addressed by the court involved whether the defendant owed a duty of care to the plaintiff, whether there was a breach of that duty, and if the breach caused the plaintiff's asbestosis. Additionally, the court needed to determine the appropriate measure of damages, specifically provisional damages, for the plaintiff's condition.

The court found that the defendant owed a duty of care to the plaintiff to provide a safe working environment, which included protecting him from known risks associated with asbestos exposure. It was established that the defendant breached this duty by failing to implement adequate safety measures and not adequately warning the plaintiff of the risks. The court held that the breach directly caused the plaintiff's asbestosis. Regarding damages, the court assessed the plaintiff's condition and awarded provisional damages, taking into account the severity of the illness, the impact on the plaintiff's quality of life, and the potential for future medical expenses.

The court ordered the defendant to pay the plaintiff provisional damages in the amount of $200,000. This amount was based on the evidence presented regarding the plaintiff's current condition and the anticipated future medical needs associated with his asbestosis.

Orders