Misiani v Welshpool Engineering Pty Ltd - [2003] WASC 263

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HENDRIKA MISIANI (As Executor of the Will of ALFREDO ANTONIO MISIANI (DEC)) -v- WELSHPOOL ENGINEERING PTY LTD 008 669 421 (IN LIQ) & ANOR [2003] WASC 263

CORAM: BARKER J

HEARD: 4-7, 10-14 MARCH 2003

DELIVERED : 19 DECEMBER 2003

FILE NO/S: CIV 1214 of 2002

BETWEEN: HENDRIKA MISIANI (As Executor of the Will of ALFREDO ANTONIO MISIANI (DEC))
Plaintiff
AND
WELSHPOOL ENGINEERING PTY LTD 008 669 421 (IN LIQ)
First Defendant
AMACA PTY LTD 000 035 512 (Formerly JAMES HARDIE & COY PTY LTD)
Second Defendant

Catchwords:

Survival action under Law Reform (Miscellaneous Provisions) Act 1941 (WA) by plaintiff widow on behalf of estate of deceased - Claim for damages by plaintiff as "relative" under Fatal Accidents Act 1959 (WA) - Whether each defendant wrongfully exposed deceased to asbestos in workplace - Whether injury from disease of mesothelioma foreseeable by first defendant in period between 1963 and mid1968 - Whether duty of care to deceased breached by each defendant - Whether each defendant "caused or materially contributed to" the deceased's mesothelioma - Assessment of damages in survival action - Assessment of damages in Fatal Accidents Act claim

Contribution proceedings between defendants under Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) - Question of contributions as between defendants

Legislation:

Fatal Accidents Act 1959 (WA), s 4, s 5(2)(b), s 6(1)(a), s 6(2)

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s 7(1)(c)
Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4(1), s 4(2)(c)

Supreme Court Act1935 (WA), s 32

Result:

In action between plaintiff and defendants: judgment for the plaintiff against each defendant
In contribution proceedings: order that second defendant should recover contribution from first defendant in respect of plaintiff's damages in the proportion 97:3

Category: A

Representation:

Counsel:

Plaintiff:     Mr J R C Gordon & Ms L Dropulich
First Defendant             :     Mr M H Zilko SC & Mr M A McAuliffe
Second Defendant         :     Mr G M Watson SC & Ms J M Kubacz

Solicitors:

Plaintiff:     Slater & Gordon
First Defendant             :     McAuliffe Williams & Partners
Second Defendant         :     Minter Ellison

Case(s) referred to in judgment(s):

Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Biddulph v Lenegan, unreported; FCt SCt of WA; Library No 990076; 19 February 1999
Blyth v Birmingham Waterworks Co (1856) 11 Exch 781
Bonham‑Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Carroll v Purcell (1961) 107 CLR 73
Chappel v Hart (1998) 195 CLR 232
CSR Ltd v Wren (1997) 44 NSWLR 463
CSR Ltd v Young (1998) 16 NSWCCR 56
De Sales v Ingrilli [2000] WASCA 374; (2000) 23 WAR 417
De Sales v Ingrilli [2002] HCA 52; (2002) 77 ALJR 99
Dwan v Farquhar [1988] 1 Qd R 234
Easther v Amaca Pty Ltd [2001] WASC 328
Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 898
Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Harris v Empress Motors Ltd [1983] 3 All ER 561
Heaven v Pender (1883) 11 QBD 503
ICI Australia Operations Pty Ltd v Walsh (1997) 15 NSWCCR 279
James Hardie & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Kember v Thackrah [2000] WASCA 198
King v Phillips [1953] 1 QB 429
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Lee Transport Co Ltd v Watson (1940) 64 CLR 1
Lochgelly Iron & Coal Co Ltd v McMullan [1934] AC 1
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McGilvray v Amaca Pty Ltd [2001] WASC 345
Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd, unreported; FCt SCt of WA; Library No 970604; 13 November 1997
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Naxakis v Western General Hospital (1999) 197 CLR 269
New South Wales v Lepore (2003) ALJR 558; [2003] HCA 4
Nguyen v Nguyen (1990) 169 CLR 245
Nicholson v Nicholson (1994) 35 NSWLR 308
Paul v Rendell (1981) 55 ALJR 371
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Public Trustee v Zoanetti (1945) 70 CLR 266
Simon Engineering (Australia) Pty Ltd v Brieger, unreported; NSWCA; 6 September 1990
Smith v Mackrill [1978] Qd R 403
Snell v Farrell [1990] 2 SCR 311
Sprecapane v Barber, unreported; FCt SCt of WA; Library No 5441; 12 July 1984
Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179
Todorovic v Waller (1981) 150 CLR 402
Van Gervan v Fenton (1992) 175 CLR 327
Wallaby Grip (BAE) Pty Ltd (In Liq) v Macleay Area Health Service (1998) 17 NSWCCR 355
Watson v Burley (1962) 108 CLR 635
Watt v Bretag (1982) 56 ALJR 760
West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72
Wilsher v Essex Area Health Authority [1988] AC 1074
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Australian Iron & Steel Ltd v Connell (1959) 102 CLR 522
Bale v Seltsam Pty Ltd [1997] 2 Leg Reg SL4
Bale v Seltsam Pty Ltd, unreported; Qld CA; 8 March 1996
Bale v Seltsam Pty Ltd, unreported; SCt of Qld; 14 December 1995
Bevan v Amaca Pty Ltd, unreported; NSWDDT; 24 October 2001
Brennan vJames Hardie & Coy Pty Ltd, unreported; NSWDDT; 2 March 2001
Chandler v Water Corporation [2001] WASC 166
Donoghue v Stevenson [1932] AC 562
E M Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434
Edwards v James Hardie, unreported; NSWDDT; 30 November 2000
Henville v Walker (2001) 206 CLR 459; [2001] HCA 52
Imperial Chemical Industries of Australia & New Zealand v Murphy (1973) 47 ALJR 122
Lock v Lock [2001] WASCA 20
Margerson v J W Roberts Ltd, unreported; UKCA; 2 April 1996
McGhee v National Coal Board [1973] 1 WLR 1
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Murfett v Wallaby Grip Ltd (2000) 20 NSWCCR 638
Nagle v Rottnest Island Authority (1993) 177 CLR 423
New Zealand Insurance Co of New Zealand v Espagne (1961) 105 CLR 569
Nicholson v Atlas Steel Foundry & Engineering Co Ltd [1957] 1 WLR 613
Page v Smith [1996] AC 155
Panizza v Amaca Pty Ltd, unreported; NSWDDT; 4 July 2001
Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948
Richards v State of Victoria [1969] VR 136
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Seltsam Pty Ltd v Minahan (1996) 13 NSWCCR 410
Smith v Sydney Water Corporation Ltd, unreported; NSWDDT 20 December 2000
St George Club Ltd v Hines (1961) 35 ALJR 106
Sturch v Willmott [1997] 2 Qd R 310
Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Sydney County Council v Furner (1991) 7 NSWCCR 210
Wallaby Grip Ltd v Peirce [2000] NSWCA 299
Wright v Dunlop Rubber Ltd (1972) 13 KIR 255

BARKER J:

Introduction

On 9 July 2002, at St John of God Hospital, Subiaco, Western Australia, Alfredo Antonio Misiani (the deceased) died. His death was as a result of the asbestos‑related disease known as mesothelioma. He was 54 years of age, having been born on 18 March 1948.
Prior to his death, the deceased commenced an action for damages in negligence against each of the first defendant and the second defendant. He alleged that each of the defendants had negligently exposed him to inhalation of asbestos in his work. Following the death of the deceased, Hendrika Misiani (the plaintiff), his widow and executor of his estate, maintained the action against each of the defendants.
In these proceedings, the plaintiff claims:
(1)damages and interest thereon under the Law Reform (Miscellaneous Provisions) Act 1941 (WA) on behalf of the estate of the deceased (the Law Reform Act claim); and
(2)damages and interest thereon under the Fatal Accidents Act 1959 (WA) on her own account (the Fatal Accidents Act claim).
Each of the defendants denies that it is liable to pay damages in negligence and further disputes, in any event, the quantum of damages claimed by the plaintiff.
Each defendant has filed a notice of indemnity or contribution against the other, claiming that if any liability is found against it in respect of the plaintiff's claim, it is entitled to an indemnity or a contribution from the other pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) in respect of such liability, on the ground that the other, by its negligence, wholly caused or contributed to the damage suffered by the plaintiff.
Despite the position taken in the pleadings by the second defendant in which it formally denied negligence, as well as material facts, including that the deceased died as a result of mesothelioma, the position it took on the opening of the trial was different. The second defendant, by its written opening submissions, and also by Senior Counsel in his oral opening, acknowledged that the deceased died as a consequence of contracting mesothelioma, a disease associated with the inhalation of asbestos fibres and dust.
The second defendant contended from the outset that the real issue in the action is the allocation of legal liability, that is, whether the first defendant or the second defendant or both should be held liable. The second defendant seeks a finding that it is not liable to pay damages to the plaintiff and as a correlative the first defendant should be found liable for damages to the plaintiff. Senior Counsel for the second defendant submits that the facts, and medical and scientific evidence, all point overwhelmingly to the conclusion that the cause of the mesothelioma suffered by the deceased was attributable to his asbestos exposure while employed by the first defendant.
By contrast with the position taken by the second defendant, the first defendant, apart from acknowledging soon after the opening of the trial that the deceased had died from mesothelioma, put in issue virtually every material fact going to the question of liability as well as quantum. The first defendant denied it owed any relevant duty of care to the deceased, let alone had breached it.

The deceased's relationship with first defendant and second defendant

In 1963, the deceased commenced working for Tomlinson Steel Ltd (Tomlinson Steel), the name by which the first defendant was formerly known at material times until 30 July 1985. He completed three months probation as a junior worker before commencing and completing a five‑year apprenticeship as a boilermaker/welder. On completion of his apprenticeship, the deceased stayed on with Tomlinson Steel as a qualified boilermaker/welder for a few months. This suggests the deceased was employed by Tomlinson Steel for about five and a half years - at least until about mid‑1968.
As I will explain in more detail later in these reasons, there is little reason to doubt that, during this five and a half year period between about 1963 and mid‑1968, the deceased was exposed to raw asbestos fibres and asbestos dust in his workplace at Tomlinson Steel.
From about 1978 until about 1996, the deceased operated in partnership a business known as Steelstruct Engineering (Steelstruct). At material times in a four to five‑year period from 1978, the deceased carried out a considerable amount of work on behalf of Steelstruct at the factory premises of the second defendant, then known as James Hardie & Coy Pty Ltd (James Hardie), at Welshpool and Rivervale, Western Australia.
The deceased was exposed to asbestos dust at the premises of the second defendant.
Questions arise, and are considered further below, concerning the nature and extent of the deceased's exposure to asbestos in each workplace.

The duty of care

Negligence is a separate tort. In Lochgelly Iron & Coal Co Ltd v McMullan [1934] AC 1 at 25, Lord Wright in the House of Lords stated:
"In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing."
It is accepted that an employer owes a worker a duty of care. At material times, both the first defendant and the second defendant owed the deceased a duty of care in relation to the work he carried out at the respective workplaces of the defendants.
In Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, at 25, Dixon CJ and Kitto J in a joint judgment recognised the duty in these terms:
"In the present case the defendant is on any footing answerable for a failure in due care on the part of the leading hand or of the foreman who left the plaintiff under his orders. The duty, to whomever it falls to discharge it, is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of each case." [footnotes omitted]
This duty is often referred to as a non‑delegable duty. The origins and nature of a non‑delegable duty were recently discussed in New South Wales v Lepore (2003) ALJR 558; [2003] HCA 4. Each member of the Court in Lepore recognised that a non‑delegable duty is owed by a master to a servant in relation to a safe system of work.
In a joint judgment, Gummow and Hayne JJ, at [254], confirmed the concept of a non‑delegable duty in the terms described in the joint reasons of five members of the Court in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550:
"It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor";
and stated that they would add "a qualified and ostensibly competent employee".
Their Honours there also noted that in the joint judgment in Burnie Port Authority, the Court went on to say, at CLR 550:
"In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and 'more stringent' kind, namely a 'duty to ensure that reasonable care is taken'. [footnote omitted] Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken."
Their Honours also emphasised, at [257], that a duty to ensure that reasonable care is taken is a strict liability and added:
"There is a breach of the duty if reasonable care is not taken, regardless of whether the party that owes the duty has itself acted carefully. Not only is the liability strict, it can be seen to be a species of vicarious responsibility. Employers … all of whom owe a non‑delegable duty, will be held liable for the negligence of others who are engaged to perform the task of care for a third party - no matter whether the person engaged to provide the care is a servant or an independent contractor."
In the present case, Tomlinson Steel plainly owed the deceased a non‑delegable duty to provide a safe system of work and to protect him from foreseeable risk of injury. The fact that much of the work involving the use of asbestos was carried out by Ceiloyd Pty Ltd, an independent contractor engaged by the first defendant, is neither here nor there.
So far as James Hardie is concerned, while it was not the employer of the deceased at material times, it nonetheless was in a proximate relationship with him, as a member of Steelstruct, because it engaged his firm by contract to carry out works on the premises of James Hardie. James Hardie plainly owed to the deceased a duty to take reasonable care to avoid exposing him, in the course of satisfying his contractual obligations to James Hardie (whether on James Hardie's premises or elsewhere), to unnecessary risk of injury.
In this case, the second defendant accepts that, at all material times, it owed the deceased a duty of care in these terms; and, in particular, not to expose him to asbestos fibres or dust in circumstances in which he may contract the disease of mesothelioma.
The first defendant, however, while accepting it owed the deceased a general duty of care in the workplace denies that it owed him a more particular duty not to expose him to asbestos in circumstances in which he might contract an asbestos‑related disease, essentially because it says such a particularised risk was not foreseeable.

The question of foreseeability and Tomlinson Steel

In this case, the first defendant, but not the second defendant, pleads in substance that no reasonable employer in the position of Tomlinson Steel at material times could have foreseen the risk of injury to the deceased from exposure to asbestos of which the plaintiff now complains.
In Blyth v Birmingham Waterworks Co (1856) 11 Exch 781, at 784, Alderson B stated:
"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."
It is generally accepted that the legal standard is not that of the particular defendant, but that of a person using "ordinary care and skill" (Heaven v Pender (1883) 11 QBD 503, at 507, per Brett MR), or a "hypothetical" person (King v Phillips [1953] 1 QB 429 at 441, per Denning LJ). In Glasgow Corporation v Muir [1943] AC 448, at 457; (1943) 2 All ER 44, at 48, Lord Macmillan said:
"The standard of foresight of the reasonable man … eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question."
However, it is sensible to observe that the definition of the reasonable person is not complete unless the words "in the circumstances" are embodied: see Glasgow Corporation v Muir (supra) at 457. Thus, it may be accepted that the test is not wholly objective and the boundary between the external facts and the qualities of the actor is ill‑defined: see Balkin and Davis, Law of Torts, 2nd ed Butterworths 1996 at pp 266 ‑ 267.
When the question of expert knowledge arises as to the foresight of the reasonable person, the test is usually accepted to be whether the defendant took adequate reasonable precautions in the light of the state of medical, scientific or technical knowledge prevailing at the time of the accident: Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58; Dwan v Farquhar [1988] 1 Qd R 234.
In CSR Ltd v Wren (1997) 44 NSWLR 463, the New South Wales Court of Appeal considered whether the risk of mesothelioma was foreseeable in light of prevailing knowledge. Beazley JA and Stein JA, in a joint judgment, had regard to prevailing knowledge of dangers of asbestos in the material period from early to mid‑1950 until early to mid‑1951 when the plaintiff was exposed to asbestos in his workplace by his employer, Asbestos Products Pty Ltd. The trial Judge held that, as a matter of fact, prior to the plaintiff's employment, there was sufficient material in CSR's library which was also available to its subsidiary Asbestos Products Pty Ltd to make each of them aware that asbestos dust was dangerous and that it was a carcinogen. Counsel for the employer challenged this finding on the basis that it was not clear on the evidence when CSR obtained the publications relevant to the issue, and that there was no evidence that CSR had, in fact, had access to various reports which referred to the dangers. It was submitted that the law of negligence did not import a concept of constructive foreseeable knowledge. Their Honours disagreed and stated, at 477, as follows:
"If there was information readily available to participants in the industry that exposure to asbestos carried with it a risk of injury, the mere failure of that participant to have been aware of it does not mean that the risk was not foreseeable. In our opinion, the available literature was such that the risk of injury from exposure to asbestos was foreseeable at the time of Mr Wren's employment."

In the present case, the plaintiff submits that Tomlinson Steel had direct knowledge of the hazards of asbestos exposure prior to and during the course of the deceased's employment. She also submits that, whether or not Tomlinsons had the direct knowledge contended for, in the light of medical, scientific and technical knowledge and information prevailing and available to industry participants at the material time of the deceased's employment with Tomlinson Steel, Tomlinsons did not take adequate and reasonable precautions to ensure the deceased was not exposed to asbestos in his workplace.
It should be observed at this point that, so far as the requirement of foreseeability is concerned, it is not necessary that a reasonable employer foresee the precise injury which an employee later suffers if the injury is within a class of injuries that is foreseeable. In Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390, Barwick CJ dealt with a submission that it was not foreseeable that, as a result of an electrical failure, a worker might suffer schizophrenia. The employer relied on the evidence of medical practitioners which said that the particular injury of the respondent was a rare consequence or reaction to follow emotional excitement or stress and that an experienced psychiatrist had seen only one other case like of that of the worker in his 18 years as practice as a specialist. Barwick CJ noted that the practitioner insisted that, though unusual, a reaction such as that of the worker to such an experience as he had had, was not "unexpected". The Chief Justice, at 390, added:
"But the rarity of such an injury in the circumstances does not in my opinion deny the foreseeability of an injury of the class of which it forms one. That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established. (See eg Chapman v Hearse (1961) 106 CLR 112 at p 115.)"
This same notion of foreseeability was confirmed in Wyong Shire Council v Shirt (1980) 146 CLR 40. Mason J, at 47, stated:
"A risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far‑fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable."
In this case, as explained further below, the evidence shows that the first defendant did have knowledge and advice that the exposure of persons employed by it to asbestos could result in injury.
Further, the evidence shows that the first defendant did not take adequate and reasonable precautions to ensure the safety of the deceased in his workplace, in light of the medical, scientific and technical knowledge and information prevailing and available to it at material times.
The obligation of an employer to protect employees from the hazards of inhalation of dust on industrial premises has long been recognised: Bonnington Castings Ltd v Wardlaw [1956] AC 613. The risk of asbestos‑related disease from occupational asbestos exposure has been known about since at least 1898. An extensive body of literature was adduced in evidence in this action and referred to in the expert evidences of Dr James Leigh, a medical practitioner and director of the Centre for Occupational and Environmental Health of the University of Sydney, Michael Kottek, occupational and environmental health consultant, Gordon James Stewart, industrial chemist and industrial hygiene consultant of some 50 years' standing (as well as an industrial ventilation engineer of about 30 years' experience), Anne Cameron Batt, retired librarian holding a Master of Applied Science (Library and Information Studies) with some 30 years' experience - all qualified by the plaintiff, and Dr James Columba McNulty AO, Fellow of Curtin University of Technology, Western Australia, and, amongst other things, former physician Occupational Health, Public Health Department, Western Australia and Commissioner of Public Health, Western Australia, and Janet Melville Sowden, occupational hygienist with some 30 years' experience, each of whom was qualified by the first defendant.
In summary, in 1922 the Commonwealth Health Department published information concerning the risk. By the 1950s, management and factory journals carried information to industry of the risks. In 1957, an article in the Medical Journal of Australia by an occupational physician in Victoria adverted to the risk to workers involved in mixing raw asbestos in form lagging material and of spraying. By 1960, it was known that asbestos could cause asbestosis, lung cancer and mesothelioma. By the time the deceased commenced work with Tomlinson Steel, crocidolite (blue asbestos) was known to be a particular risk of mesothelioma. Dr McNulty published on that precise hazard in 1962. In 1964, an international conference in New York was presented with the latest research into such risks. In that year, the British Medical Journal also published an editorial identifying the risks and summing up the knowledge available to that point. In 1965, a case where a woman contracted mesothelioma from washing her husband's work clothes was published in the medical literature. In my view, while this literature was not to be found in the library or boardroom of Tomlinson Steel at material times, it was available to participants in its industry, not least through the State Health Department and factories inspectorate.
The direct knowledge of Tomlinson Steel:In about early 1968, the deceased was close to completing his five‑year apprenticeship with Tomlinson Steel. When he did so, the deceased continued to work for Tomlinson Steel for about another three months. This suggests he was with Tomlinson Steel from about early 1963 to at least mid‑1968.
By letter dated 30 April 1968, that is, within the deceased's period of employment, Dr McNulty, of the Department of Public Health of the government of Western Australia, wrote to Tomlinson Steel concerning "Asbestos Spraying of Boilers". He informed the company that:
"The spraying of boiler heads with blue asbestos at your premises raises much fine dust which blows into a large workshop where other men are working.
There is considerable ground contamination, which blows about freely and slowly breaks up providing a long term source of air‑borne fibre. This would be highly undesirable and a health hazard to the sprayer, and other employees, if any kind of asbestos was used - but the problem is very much more serious with blue asbestos.
The use of blue asbestos at all should be minimised, or avoided completely. If it is to be used, spraying should be done only into an exhausted booth, over‑spray trapped, subsequently removed and satisfactorily disposed of. Good housekeeping is essential and waste and spilt fibre must be cleaned up and similarly disposed of.
The sprayer should be protected by an air‑supplied hood and care taken to avoid carrying fibre in his hair and clothing during the working day, and from work place to home, etc., as is now the case."
The Production Manager of Tomlinson Steel replied to the Commissioner of Public Health by letter dated 8 May 1968 and acknowledged the advice and stated that "steps are being taken to provide the necessary protection for operators".
A subsequent report of an Inspector to the Chief Inspector of Factories of the government of Western Australia dated 9 July 1968 noted as follows:
"Although the spraying now takes place in a booth, no attempt is made to trap the over‑spray, and a positive pressure air helmet is not being used. At the time of the inspection a worker was scraping a mixture of paint and presumably asbestos fibre from the walls of the booth and was wearing no protective equipment whatever.
It appears to be that Tomlinsons are endeavouring to pass responsibility to the sub‑contractors - Ceiloyd Pty Ltd, but whatever the reason, Dr McNulty's recommendations are not being properly carried out, as the over‑spray is allowed to discharge into the air and a positive pressure air helmet is not provided.
You will note from the hereunder copy of a letter sent from Tomlinsons to Ceiloyds, that no mention is made of trapping overspray that goes up the ducting and into the atmosphere, and in point (3) of the letter, mention is made of a 'respirator', and not a positive pressure air helmet."
A further report of the Inspector to the Chief Inspector dated 22 November 1968 following a recent visit to Tomlinson's present premises stated:
"I have to advise that a recent visit indicated that the filters have been installed and appear to be working satisfactorily.
However I am not fully satisfied with the housekeeping standards and this was discussed together with the disposal of the filters."
In a further report by the Inspector to the Chief Inspector dated 21 April 1969, the Chief Inspector was advised:
"Further to your instruction hereunder these premises were revisited on 2nd April 1969. No blue asbestos spraying was taking place at the visit, but about 120 boiler heads are sprayed annually, ranging in size from 3 ft up to 8 ft with the majority being in the smaller sizes.
The booth which was originally designed as a spray paint booth is built of corrugated iron and metal decking running horizontally and it is quite a severe dust trap. I requested a complete clean up of all asbestos o/spray, and that it then to be maintained in a clean condition [sic].
However, I have some reservations about the effectiveness of the filters and how often they are changed.
It is proposed to make fairly frequent inspections to keep the matter under control in view of the verbal advice given by yourself in respect to recent information received from England."
In my view, the communications by Dr McNulty on behalf of the Health Department with the first defendant, not only confirms the dangerous usage of blue asbestos in its plant area, but put it on notice that the exposure of its employees to asbestos, particularly blue asbestos, put them at risk of injury. That the first defendant knew that there were risks associated with the use of asbestos at its premises may also be inferred from the letter of Tomlinson Steel and the reports of the Inspector which I have set out.
Some three years earlier, in 1965, Tomlinson Steel also operated its business in other Australian States, including Melbourne, Victoria. By proclamation published in the Government Gazette (Victoria) of Wednesday, July 11, 1956 (exhibit 3 item 131), "Asbestos lagging or spraying and Asbestos works or factories in which Asbestos is used, manipulated, crushed or pulverised" were declared "dangerous trades" within the meaning of the Health Act 1928 (Vic), whether ordinarily carried on in fixed premises or at varying places, unless preventive measures were adopted.
Tomlinson Steel, at material times between 1963 and 1973, was located in Holmes Road, East Brunswick, Melbourne, and later in larger premises which included a workshop in Lygon Street, East Brunswick. At material times, Mr Don Anderson, who had been employed by Tomlinson Steel in Western Australia, was the manager of Tomlinson Steel's business in Victoria.
Mr Frank Plummer was employed as a boiler serviceman for Tomlinson Steel between 1963 and 1973 in Victoria. His recollection was that Tomlinson Steel operated in Victoria after about 1960. He said the company serviced and repaired boilers, including Cleaver Brooks boilers, which had been manufactured in Perth by Tomlinson Steel.
In the course of servicing and repairing such boilers, Mr Plummer remembered using a "grey‑blue" asbestos fibre which was supplied in large hessian bags. He explained that, when he needed this asbestos to seal up the boilers he was repairing, he would open the bag and tip the asbestos into a big plastic bucket and mix it with water until it became like the consistency of workable dough. He said he would be covered in asbestos powder when he carried out this job.
He also said that he used "LDR board", an asbestos hardboard. He said that he would cut this board to the shape of the boiler with a circular saw. The process of sawing the board in this way would produce a very fine "talcum type" powder. He said this was so bad, he would try and work outside in the wind with the wind blowing the powder away from him.
Mr Plummer said the cleaning of old asbestos from boilers was also a very dusty business. Even if the material had been hosed down with water initially, the asbestos would still float in the air.
Mr Plummer recalls that, in the 1960s, Tomlinson Steel also had branches in Queensland and New South Wales.
In 1945, the Harmful Gases, Vapours, Fumes, Mists, Smokes and Dusts Regulations 1945 were proclaimed under the Victorian Health Act in order to combat the problem of toxic matter, including dusts interacting with workers' lungs to produce general or localised injury. The maximum allowable concentrations of dust in workplace air were controlled under these regulations, including the concentrations of dust derived from silica and asbestos. The regulation required the application of ventilation to reduce exposures to below those limits required by the regulations and allowed the use of respirators for personal protection in certain circumstances. The limit of permitted exposure to asbestos dust was set at 5,000,000 particles per cubic foot (5mppcf).
Once the 1956 proclamation was gazetted so that the "dangerous trades" provisions of the Victorian Health Act applied, asbestos‑related activities were required to be licensed.
At about the time of the proclamation, probably to publicise these new or impending regulations, an article authored by Dr Thomas of the Victorian Department of Health appeared in the widely‑published Melbourne newspaper, "The Age". In that article, Dr Thomas drew attention to the seriously disabling outcomes that could flow from asbestos exposure and stated:
"The survey found a disturbingly high incidence of asbestosis among workers regularly handling asbestos. A third of the asbestos workers tested showed signs of development of the disease."
Gordon James Stewart, an industrial chemist and industrial hygiene consultant, qualified by the plaintiff, gave evidence concerning the application of the 1945 Victorian Health regulations to the asbestos‑related activities described by Mr Plummer in his evidence. Early in his career, Mr Stewart was engaged by the Victorian Department of Health as a scientific officer in its industrial hygiene division. He worked in this capacity between 1953 and 1966, with an interlude of about 18 months in the early 1960s. He displayed considerable familiarity with industrial hygiene regulation practice.
Mr Stewart, when asked whether the work described by Mr Plummer as having taken place at the factory premises in Lygon Street, East Brunswick, would have been the subject of regulation by the 1945 regulations, answered:
"Absolutely, yes. Any process that put dust into the air of a scheduled substance, and in this case given this is asbestos dust, came under the regulations. That's for sure."
When asked specifically whether it was work that fell under the auspices of the Dangerous Trades Regulations of 1956, Mr Stewart answered:
"In my opinion, given the process as defined here, and by reference to the 1945 regulations this process could reasonably be seen as likely to become dangerous to the health of persons employed, it would certainly come under the dangerous trades and would require a declaration."
In my opinion, although the evidence led by the first defendant on this issue is minimal, Tomlinson Steel plainly operated in a number of Australian States at material times during the 1960s. The annual report of Tomlinson Steel for the year 1963 describes Tomlinson Steel as of "Perth, Western Australia". In the Report of Directors, the directors reported in respect of "trading" that "keenly competitive conditions were experienced in the Company's markets throughout Australia." The directors went on to report that:
"Our previously established Branch offices in Victoria and New South Wales devoted entirely to Sales and Service of our own Products being responsible for the Company's increase in marketing in those areas.
With the introduction of new Products and new machine tools greater progress is expected to be attained in the coming year as the report on the various spheres of activity will reveal."
The report of the directors in respect of "Cleaver Brooks Boilers" noted that:
"The Victorian Branch achieved more than satisfactory results and whilst the New South Wales branch was short of its target, with our increased range of products and experience gained, it is expected that the market availability in that State will prove ample reward for the efforts expended by our N.S.W. Branch."
This annual report identified its number of employees as 349. The last page of the report proudly pictured a "typical installation showing 300 H.P. Cleaver Brooks Boilers".
By 1968, the annual report of Tomlinson Steel was a little differently structured from that of 1963, but continued to report that turnover for the year comprising boiler manufacturing and general engineering was held at a satisfactory level. The report particularly noted that: "It is pleasing to report that the Tomlinson built range of C.B. Boilers continued to retain a major share of the available markets." The report showed that the company provided Cleaver Brooks boiler sales and service outlets in all States of Australia, as well as the Northern Territory. Tomlinson Steel, as a company, had premises in East Brunswick, Victoria, as well as in Marrickville, New South Wales and Launceston, Tasmania.
In respect of material facts, the annual reports corroborate the evidence of Mr Plummer that he serviced Tomlinson Steel's boilers in Victoria.
I consider it probable that, by reason of the activities of Tomlinson Steel in Victoria at material times between 1963 and 1969, Tomlinson Steel's premises were licensed under the Health Act and regulations and the company was aware that, in the State of Victoria, fixed premises, at which asbestos dust was produced and where asbestos lagging and spraying was carried out, were considered in that State to be "dangerous trades". Whatever may have been the formal state of regulatory control in Western Australia at those material times, Tomlinson Steel was aware that lagging and spraying asbestos was, to put the matter colloquially, a dangerous work practice that required precautionary work practices, because it exposed its workers to the risk of injury.
When the knowledge of Tomlinson Steel concerning the dangerous nature of asbestos derived from what Dr McNulty was bluntly telling it in April 1968 in Western Australia is combined with the awareness that Tomlinson Steel already had by then as a result of the conduct of its Victorian service operations, there can be very little doubt that Tomlinson Steel had direct knowledge of the dangers posed by uncontrolled exposure of it workers to asbestos.
Even without the benefit of its experience in trading in Victoria, Tomlinson Steel knew about the risks asbestos presented to its workers on the basis of what Dr McNulty had told it, before the deceased ceased working for Tomlinson Steel.
The constructive knowledge of Tomlinson Steel: In any event, the evidence of the first defendant having constructive knowledge of the risks posed to its workers by exposure to asbestos, to which I have briefly referred, is overwhelming.

In 1922, the Commonwealth Department of Health recognised and published the fact that exposure to asbestos dust was known to be a hazard for persons working with asbestos and that such exposures could result in severe injury.
In 1930, Merewether and Price provided a seminal study of the hazard of asbestos exposure in the workplace. The evidence shows that this report was in the possession of the factories inspector and Public Health Department of Western Australia by 1935. The Merewether and Price report on the effects of asbestos dust on the lungs and dust suppression in the asbestos industry is recognised as a seminal document. Dr Leigh in evidence described it as "definitive". Mr Kottek described it as "very important". Dr Leigh explained that the report was widely referred to in the medical literature. Mr Kottek explained that it was reviewed in at least nine other medical and industrial journals. Copies were sent from England to Australian Government officials at the time.
Merewether and Price recommended dust suppression in these terms:
"The principal methods for the control of dust are:
(a)application of exhaust draught at dust‑producing points;
(b)substitution of enclosed mechanical methods for hand conveyance and for dusty handwork generally;
(c)effective enclosure of dust producing machines and plant;
(d)substitution of wet methods for dry."
In 1950, in Victoria these recommended methods of dust suppression were well‑known to the Victorian Department of Health, as explained by Mr Stewart in his evidence.
By 1945, the Victorian Harmful Gases Vapours Fumes Mists Smokes and Dusts Regulations 1945 had been promulgated and dictated exposure to dust containing asbestos was to be limited to 5,000,000 particles per cubic foot, which was a level known by that time to have the appearance of clean air. The Regulations reflected the perceived need to control intermittent exposures.
In 1950, Dr Merewether attended the international conference of experts of pneumoconiosis held in Sydney and reported in the Medical Journal of Australia in 1950. This conference was well attended by medical persons engaged in dust disease treatment and prevention.
By the 1950 pneumoconiosis conference in Sydney, in addition to asbestosis and lung cancer, cancer of the pleura (mesothelioma) was regarded as a hazard of asbestos exposure.
At the pneumoconiosis conference, Gordon Smith from the New South Wales Department of Industrial Hygiene presented evidence as to the carcinogenic qualities of occupational asbestos exposure and the means of preventing or minimising exposure.
In 1954, the publication of Davie's monograph "Dust is Dangerous" reflected the belief that dust was generally bad for the lungs.
By 1955, lung cancer had been proven beyond doubt to be a risk of occupational asbestos exposure.
By January 1956, information as to the occupational hazards of asbestos had entered the public domain in Australia with an article in The Age newspaper in Melbourne, Victoria, entitled "Dust Becoming Bigger Hazard in Industry: More Workers Affected".
This was confirmed by the clear and direct references to the dangers of asbestos appearing in Australia‑wide industrial, factory and trade journals such as "Manufacturing and Management" and "Australian Factory". The article, "Dust Hazard in Industry" in the 10 July 1956 issue of Manufacturing and Management commences with the words:
"Inhalation of large quantities of dust has long been recognised as a danger to health."
It goes on to state that:
"People prone to the disease are those handling asbestos in its raw state or processing it to make lagging materials."
This journal was aimed at a readership of engineers within manufacturing or industrial concerns.
By 1956, the use of asbestos had been proclaimed as a dangerous trade in Victoria, pursuant to the Health Act.
In the Australian Medical Journal in 1957, Dr D L Thomas of the Victorian Department of Health (Industrial Hygiene Division) published an article entitled "Pneumoconiosis in Victorian Industry". Those activities linked with asbestosis in Dr Thomas' survey included mixing asbestos with other materials to form lagging and spraying asbestos on walls and ceilings as an insulator.
In 1960, the report of Wagner identified a large number of cases of mesothelioma that were associated with exposure to asbestos. In particular, the report demonstrated that mesothelioma could arise in people who had been exposed to a level of asbestos that would not have been sufficient to cause asbestosis.
In 1960, the British Medical Journal published an article "Complications of Asbestosis" in which it was said that "carcinoma of the lung is a serious and well recognised complication in asbestosis … this rather rare tumour may draw attention to the fact that a patient has worked in asbestos dust".
In 1962, in Western Australia, Dr McNulty reported the case of a mill worker at the Wittenoom mine who died from exposure to asbestos. He there stated: "Experience in Western Australia certainly confirms that blue asbestos is a very harmful and lethal fibre". His knowledge is plainly reflected in his letter in 1968 to the first defendant warning of the risks of blue asbestos use.
As of about 1962, the literature and science concerning the dangers asbestos posed in the workplace were known to other members of the Health Department of Western Australia in which Dr McNulty was then a junior member. They included Dr King, Dr McNulty's superior at the Occupational Health Division, Dr Davidson, the Commissioner for Health and Dr Henzell, the predecessor to Dr Davidson. Dr McNulty explained in his evidence that a wide range of people, including employers, employees and unions, would contact the Occupational Health Division with queries about hazards in the workplace. Plainly, at this time, the Department of Health was known to be a repository of knowledge concerning hazards in the workplace.
In 1964, an editorial entitled "Asbestos and Malignancy" was published in the British Medical Journal. As Dr Leigh said in evidence, and I accept, by editorialising on the topic in the way it did, the journal's editors intended to put the issue "up front" and to have a wide dissemination.
In 1965, an article published by Newhouse and others in the British Medical Journal drew attention to the risk of mesothelioma from environmental levels of exposure.
Tomlinson Steel may also be taken to have had constructive notice of the Victorian Health Act and regulations which issue is discussed above in relation to the direct knowledge of Tomlinson Steel.
I am satisfied that, in all probability, if an industry participant such as Tomlinson Steel had at material times between early 1963 and mid‑1968 (the period when the deceased was engaged in Tomlinson Steel's workplace) made further inquiries of the Western Australian Health Department or the factories inspectorate as to whether there were particular risks associated with asbestos dust in the workplace, it would have emphatically been advised "Yes" and apprised of or referred to a considerable volume of medical, scientific and technical literature pertaining to the topic of the nature recounted above.
While Tomlinson Steel appears not to have maintained an industrial hygiene library, the evidence provided to the Court by Ms Batt, which I accept, shows that there was a considerable body of such information available in encyclopaedias and dictionaries. The British Medical Journal was generally available in Australia in the 1950s and held in Western Australian libraries. It was also available from library holdings in other Australian States. Libraries in Western Australia that held relevant literature at the time included the Public Health Department, the State Library and the University of Western Australia library. Nothing in the testimony of Mrs Sowden detracts in any significant way from this view.
In short, information available from the medical officers at the Health Department and in scientific and medical literature at material times when the deceased was employed by the first defendant, if it had been sought by or on behalf of Tomlinson Steel, would have shown that:
(1)Asbestos dust is dangerous to health and may cause asbestosis, lung cancer or mesothelioma;
(2)the health risks associated with asbestos are serious and may be fatal;
(3)there is a dose‑response relationship between asbestos and likelihood of injury;
(4)steps should be taken to minimise exposure, including suppression of dust, vacuuming, enclosing machinery, extraction, wetting down, use of respirators, informing employees of the danger;
(5)workers should be warned of the dangers associated with exposure to asbestos.
I have little hesitation in finding that, from the perspective of Tomlinson Steel, the risk of injury to its workers from an asbestos‑related disease from exposure to asbestos in the workplace was foreseeable at material times between 1963 and mid‑1968 when the deceased was employed by Tomlinson Steel.
It follows, in my view, that at material times the first defendant owed the deceased a duty of care not to expose the deceased to the asbestos fibres or dust in the workplace.
As noted above, the second defendant does not put foreseeability in issue in relation to the second period of exposure in 1978 and following.

Whether first defendant breached its duty to the deceased

Prior to his death, the deceased made a statement, which went into evidence in the trial, concerning the nature and length of his employment by Tomlinson Steel between 1963 and 1968. The substance of the statement of the deceased was corroborated by the evidence given at trial by Peter John Foster, who commenced his apprenticeship as a boilermaker/welder with Tomlinson Steel in 1963, at the same time as the deceased.
Mr Foster recalls that, at that time, Tomlinson Steel maintained a fabrication shop at Welshpool with approximately 100 employees. He said the workshop was one large building with roller doors at both ends which were usually open all day. He recalls the workshop was about 200 metres by 60 metres in size with fibro walls and roof. Wind blew into the open doors and blew loose material around the workshop.
Mr Foster recalls that he and the other apprentices were rotated around the workshop from section to section in the course of their apprenticeship. However, although there were different sections, all apprentices were housed in the same workshop building.
The workshop had a lagging section in which laggers applied asbestos to boilers for the purposes of insulation. Tomlinson Steel engaged approximately four laggers at that time. The system of rotation of apprentices meant that all apprentices spent as much as six months in the lagging section. The deceased and Mr Foster both worked in the lagging section, though not at the same time. They assisted the laggers in applying asbestos to boilers.
The deceased recalled that, in the first few years of his apprenticeship, he was sent to work to assist the people who mixed the asbestos which was used to line the fireboxes of the boilers. The boilers were known as Cleaver Brooks boilers, manufactured by Tomlinson Steel in Western Australia under licence. The deceased said that the fireboxes were lined with blue asbestos which came in bags and was emptied into a bucket and mixed by hand to line the fire boxes. The deceased recalled that Tomlinson Steel used to have four or five boiler heads being completed at any one time. The deceased recalled that the asbestos came in small brown bags; he remembered emptying asbestos into a bucket, adding water and mixing it by hand. Once mixed, it was applied to the boiler heads in a paste form.
The deceased recollected that the lagging work was "dusty and dirty" and generated "a lot of dust". He also recalled that the dust tended to circulate through the whole of the workshop.
Mr Foster's recollection is similar in substance to that of the deceased. He recalls that asbestos fibre was packaged in big plastic bags and was grey/white in colour. He also recalls that the asbestos fibre bags were opened and emptied by an apprentice into a 44‑gallon drum in the lagging section and that this caused the fibre to "blow up" all around the person pouring it in and that it would also get caught by the wind and be blown around the factory workshop. He recalls that the asbestos fibre was mixed by hand with water into a slurry consistency. It was then manually applied around the boiler door. When the door was closed, the asbestos formed a seal.
Mr Foster recalls that, when he did this work, he was covered over in asbestos. He describes the effect as being "like snow all over you". He said it "went all over the floor, everywhere and was never cleaned up".
Mr Foster also said that after applying the lagging to the boiler heads, the apprentice would have to do other work under and around the boiler for which he had to lie on the ground. The ground was covered in asbestos fibre and when the apprentice finished that work, the fibre would be through the apprentice's clothes and hair.
Although Mr Foster had no personal knowledge of the deceased's experiences in the lagging section at Tomlinson Steel, he did see other apprentices engaged in the same tasks that he had performed.
Mr Foster said the asbestos with which the apprentices worked was in a fibre form and not cement powder. He understood the fibre was asbestos.
I have no doubt, on the basis of the statements of the deceased adduced in evidence in these proceedings, corroborated in substance by the evidence of Mr Foster, that during the period the deceased worked for Tomlinson Steel between 1963 and 1968, he was exposed to the risk of inhalation of asbestos and that, in all probability, he inhaled asbestos at some time during that period of employment.
This conclusion is, to my mind, strongly supported by other evidence adduced on behalf of the plaintiff at trial. For example, Jack Samuel Pryce gave evidence concerning his employment as an asbestos sprayer for a company called Ceiloyd Pty Ltd (Ceiloyd) between 1956 and 1966. Ceiloyd was contracted by Tomlinson Steel to perform this work. One of his regular jobs was to go to Tomlinson Steel's premises in Welshpool to spray asbestos on to the boilers.
Mr Pryce recalls that, when he first commenced employment with Ceiloyd, he carried out the asbestos spraying work at Tomlinson Steel's foundry in East Perth. However, the work shifted to the company's Welshpool premises because there was insufficient room at that foundry. Up until 1966, when he finished with Ceiloyd, he recalls going to the Tomlinson Steel premises in Welshpool regularly - about once a month - to carry out asbestos spraying work.
Mr Pryce was adamant that the asbestos used for spraying was blue asbestos. He is definite about this because he says that is what the job required. Ceiloyd apparently supplied the bags of blue asbestos, although Mr Pryce did not know from where it originated, and they were stored at Tomlinson Steel's premises. He was never involved in ordering the asbestos.
Mr Pryce recollects that the blue asbestos was supplied in hessian bags which were themselves dusty and the contents of which were quite lumpy. He describes the spraying equipment as consisting of a hopper into which asbestos was manually emptied. Inside the hopper, a belt picked up the asbestos and teased it. The teased asbestos dropped to the bottom of the hopper where a blower blew it out through a hose. As the teased fine asbestos was blown out of the end of the hose, high pressure water also sprayed out and the asbestos and water were thus sprayed onto the surface being sprayed.
Mr Pryce said this process created a lot of dust. He explained that not all of the asbestos was caught by the water jets and some always drifted off as dust.
Mr Pryce recalls that most of the time he went out to Tomlinson Steel's premises he went on his own without an offsider.
Mr Pryce recalls that at some point Tomlinson Steel workers complained to the company about the asbestos dust and he recalls being moved to the south end of the workshop. However, this did not solve the dust problem in his opinion because the workshop was like a wind tunnel and the dust from the asbestos spraying became an even bigger problem. However, he left Ceiloyd soon after these complaints and does not know what, if anything, occurred in response to the complaints.
Ron Hall was also called to give evidence on behalf of the plaintiff. He worked as an asbestos sprayer for Ceiloyd between 1959 and 1970 and attended at the Tomlinson Steel premises at Welshpool regularly as part of his job.
Mr Hall explained that he worked in the middle of the workshop and that there was no special room or enclosure where the spraying took place. In his view, all of the workers in the Tomlinson Steel workshop "copped the dust when we did our spraying".
He also held the view that the asbestos used at the Tomlinson Steel premises was blue asbestos, such asbestos being necessary for heat insulation.
Milan Chaloupka, who was employed by Tomlinson Steel at material times and eventually held the position of Production Controller at the Welshpool premises, was called to give evidence on behalf of the first defendant.
Mr Chaloupka confirmed that spraying work was done by contractors for the company. He agreed that lagging work was done by apprentices and agreed that Mr Foster's evidence concerning apprentices assisting with the lagging process was correct. Mr Chaloupka also confirmed that blue asbestos was used at the premises.
Mr Chaloupka recalls that the workshop at the Welshpool premises had three bays. He said there were no divisions or partitions between the bays because overhead cranes needed to pass from one side of the structure to the other, although he recalls that in earlier years asbestos spraying was carried out in an area along the north‑west wall of the boiler workshop and he thought this area has been partitioned off from the rest of the workshop by corrugated iron sheeting. However, when pressed in cross‑examination, he was prepared to concede that, if there was evidence from others that lagging took place in a central bay of the workshop, this could be true. While he was not confident in his recollections generally, Mr Chaloupka did recall that the spraying with blue asbestos "raised a dust".
Dr James McNulty, who at material times was a young medical officer with the Department of Health for the State of Western Australia, had occasion to visit the premises of Tomlinson Steel at Welshpool in April 1968 to ascertain whether there were any occupational health hazards. He noted Ceiloyd's activities, that involved spraying blue asbestos in the workshop, which "raised fine dust which blew into the workshop". He also noted ground contamination which provided "a long‑term source of airborne fibre".
In a letter dated 30 April 1968 from Dr McNulty to Works Manager, Tomlinson Steel, Planet Street, Carlisle (the same premises as those generally described as being at Welshpool), Dr McNulty addressed the matter of "Asbestos Spraying of Boilers". He noted that the spraying of boiler heads with blue asbestos at the premises "raises much fine dust which blows into a large workshop where other men are working". He also noted considerable "ground contamination" which blows about freely and slowly breaks up providing a long‑term source of airborne fibre". Dr McNulty specifically warned the company that:
"The use of blue asbestos at all should be minimised, or avoided completely. If it is to be used, spraying should be done only into an exhausted booth, over‑spray trapped, subsequently removed and satisfactorily disposed of. Good housekeeping is essential and waste and spilt fibre must be cleaned up and similarly disposed of.
The sprayer should be protected by an air‑supplied hood and care taken to avoid carrying fibre in his hair and clothing during the working day, and from workplace to home, etc., as is now the case."
Copies of Dr McNulty's letter were sent to the manager of Ceiloyd, 152 Havelock Street, West Perth and to Mr T H Burgess, Chief Inspector of Shops and Factories at the Department of Labour, Western Australia.

By letter dated 8 May 1968, the Production Manager of Tomlinson Steel responded to Dr McNulty's letter by writing to the Commissioner of Public Health, noting the comments with regard to the asbestos spraying of boiler components and advising that the points dealt with in the letter had been discussed with Ceiloyd "and steps are being taken to provide the necessary protection for operators".
The documentary record made by Dr McNulty of a blue asbestos dust exposure problem at the Welshpool premises of Tomlinson Steel not only tends to corroborate the evidence of Mr Pryce and Mr Hall, but also tends to support the statement of the deceased and the evidence of Mr Foster.
The evidence discloses that at no time was the deceased ever warned about the risk of exposure in the workplace to asbestos fibres or dust or advised to take any precautions to avoid its inhalation.
In the event, I have no hesitation in finding that the deceased was exposed to asbestos in his employment with Tomlinson Steel, and that the asbestos was in the form of fibre and dust and was of the type commonly known as "blue asbestos".
I find therefore that, in so exposing the deceased to asbestos, Tomlinson Steel breached the duty of care it owed to the deceased as his employer.

Whether the second defendant breached its duty of care to the deceased

The deceased's second exposure to asbestos occurred between 1978 and the mid‑1980s, in particular, while he was working in his business, Steelstruct, at the premises of James Hardie at Welshpool and Rivervale.
As noted earlier, between 1978 and 1996, the deceased conducted the business of Steelstruct Engineering in Maddington, Western Australia, in partnership with Mr Schmidt. During this period, Steelstruct was engaged by James Hardie to carry out fabrication work.
The deceased has estimated that, in a four or five‑year period between 1978 and 1982, about 40 to 50 per cent of the work done by Steelstruct was for James Hardie, mostly at its Welshpool premises, but also at its Rivervale premises. The deceased carried out much of this work himself. The deceased recalled that, at material times when James Hardie was phasing out the use of asbestos, Steelstruct modified the tanks previously used for asbestos.
The deceased recalled that the premises at Welshpool were "dusty" and equipment he was required to work on was also "dusty". However, after 1982 the James Hardie work tapered off and by 1996 constituted only about five to 10 per cent of Steelstruct's work.
The deceased recalled one occasion when one of the engineers at James Hardie pointed out to him what asbestos looked like. He says, however, that neither the engineer nor anyone else at James Hardie told him anything about the dangers of asbestos.
The deceased also recalled that some repair work done by Steelstruct for James Hardie entailed some pieces of plant being worked on at the Steelstruct factory premises in Maddington and there was dust on such plant.
Brian Schmidt, at material times, was the deceased's brother‑in‑law and partner in the business of Steelstruct. He joined the business about 12 or so months after the deceased commenced the business. He confirms that one of the clients of the business was James Hardie and that, on most occasions, the deceased would go to the James Hardie factory to quote on a job and, if the job was won, to carry out the work onsite at James Hardie's premises, usually in Welshpool.
Mr Schmidt recalls that the James Hardie plant at Welshpool was "always a dirty sort of plant" and that it was a "fairly dusty environment and if you went there in good clothes you wouldn't be wearing them the next day". He describes the dust as:
" … grey dust, a factory sort of dust … you could walk through it and still breathe, I mean you could see through it. It wasn't excessively heavy but it was just a reasonably dirty, dusty environment that you were working in, in some areas."
It is clear enough from Mr Schmidt's evidence that the dust of which he spoke was sufficiently visible for him to be conscious of it. In fact, he advised his workers to use small face masks when working at James Hardie in a dusty area. He also recalls one employee who refused to work at James Hardie on installations because of the dusty conditions. This was, it appears, some time after Easter 1980.
The plaintiff, who at material times worked in the office of Steelstruct, also estimates that the deceased did a large portion of Steelstruct's work for James Hardie and that it was a large proportion of the overall work in the early days of Steelstruct.
Alan Tomlinson (not connected in any way with the first defendant), who was employed by James Hardie in two separate periods, was called as a witness by the plaintiff. He explained he worked for Hardies in about 1976 and then later in 1982. His earlier job was as a stacker operator and included pouring raw asbestos into a machine which would fluff the asbestos up before putting it onto a hopper. He said there was often dust and fibre all over the plant production lines. He said asbestos cement mixture was discharged into holding tanks. These tanks were replaced when asbestos cement was phased out.
Mr Tomlinson agreed that asbestos was removed from the flat product of James Hardie by 1982 and from the Super Six sheeting in 1985.
Dr McNulty also had occasion to inspect James Hardies' plants at material times. He stated that the situation at the original factory premises of James Hardie in Rivervale was "dreadful", but the company then built what was, at the time, considered almost a model factory; though it did not always remain so. He stated that there were also problems from time to time at the James Hardie plant at Welshpool.
The second defendant accepts as probable that the deceased was exposed to dust containing some asbestos while undertaking his tasks on behalf of Steelstruct at the Welshpool premises. However, the second defendant submits that it is probable that not all of the dust was asbestos. In the relevant period, the second defendant says it only manufactured asbestos‑cement products in which asbestos made up 15 per cent of the mix.
Furthermore, the second defendant submits that, while the deceased was at the premises of James Hardie, by reason of the application of dust extraction and dust suppression techniques the atmospheric concentration of asbestos to which the deceased was exposed was miniscule.
The 1978 Health Regulations provided that a person should not be exposed to asbestos dust exceeding two fibres per millilitre (1978 was the year the deceased first worked at James Hardie's premises). Mr Kottek, an occupational hygienist called by the plaintiff, was asked to examine monitoring data recorded by James Hardie for material times in 1980 and following, that is, commencing two years after the deceased commenced contract work at James Hardie and expressed the view that the regulations were not breached by reason of the data revealed. However, Mr Kottek said he could not be satisfied that the personal sampling undertaken by James Hardie would necessarily be relevant to a person undertaking the contract work that the deceased undertook. When cross‑examined by Senior Counsel for the second defendant and asked "Why not? Would you expect Mr Misiani to be collecting a greater concentration of asbestos out in the car park rather than a man who was standing, using his hands, operating a machine trimming Hardieflex sheets?" Mr Kottek answered:
"If he's just standing in the carpark, possibly you may be right, but in terms of assessing Mr Misiani's exposure, someone working on the trimming line - I hope by 1978 that the trimming line was adequately controlled and that there was some sort of ventilation or whatever, whereas if Mr Misiani is working on plant where the exhaust - is dismantling plant where the exhaust ventilation is not in operation, the wet asbestos cement mix may have dried out and become more dusty, so it's not at all clear to me that his exposure need necessarily be lower than the personal exposures of the employees on site."
I consider it is fair to observe that while the James Hardie data for the period from 1980 suggests considerable attention was paid to occupational health and safety issues for its on‑site employees, there is no particular evidence to suggest that any special precautions were taken to guard the deceased, as a contractor, from inhalation of asbestos dust whilst he carried out work onsite. The fact remains that in all probability the deceased was exposed to dust containing asbestos, albeit chrysotile or amosite, and not crocidolite and did inhale such dust in the course of performing his contractual duties at James Hardie.
Notwithstanding that, on the evidence before the Court, the nature and extent of the deceased's exposure to asbestos in the James Hardie period was different - and less intense in every aspect - from that in the Tomlinson Steel period of exposure, I find that the deceased was exposed in his contract work for Steelstruct at James Hardies' premises at Welshpool to small amounts of asbestos, mainly chrysotile asbestos, as well as to smaller amounts of amosite asbestos, in the form of dust. I am satisfied that, by exposing the deceased to such asbestos dust, especially in the period 1978‑1982, the second defendant breached the duty of care it owed the deceased not to expose him to the asbestos in his contract work at James Hardie.

Whether each defendant caused or materially contributed to the mesothelioma

The question then arises whether the evidence supports a finding that each defendant caused or materially contributed to the disease of mesothelioma contracted by the deceased. This question arises in the context of my findings that each defendant wrongfully exposed the deceased to asbestos fibre or dust in his workplace and that, in all probability, he inhaled asbestos in such forms while on the premises of each defendant during the relevant periods of exposure.
The second defendant submits that the evidence does not enable the plaintiff to prove that the second defendant caused, or materially contributed to, the deceased's injury and says that the evidence all points to the first defendant being the probable cause of the injury.
On the expert evidence before me - in particular, that of Professor Arthur William Musk of the Department of Respiratory Medicine, Sir Charles Gairdner Hospital, Nedlands, Western Australia, Dr Leigh and Mr Kottek, called on behalf of the plaintiff, and Mr Alan Rogers, occupational hygiene consultant and senior lecturer in occupational health at the University of Sydney, qualified by the second defendant - I find that, generally speaking, the disease of mesothelioma remains poorly understood, but there are three major issues relating to the connection between mesothelioma and the inhalation of asbestos which are well‑settled:
(1)First, the risk of contracting mesothelioma is related to the dose of the asbestos inhaled (the "dose issue"). An asbestos fibre must be "tiny" before it can be inhaled and retained in the fine airways of the lung. These tiny fibres are called "respirable fibres". A dose is calculated by estimating the concentration of respirable fibres in an atmosphere. This is usually expressed in terms of the number of fibres in a millilitre of air. Calculations are then made based upon the time that an individual was exposed to the asbestos‑containing atmosphere and expressed as a dose measured in "fibre/ml/years".
(2)Secondly, the risk of contracting mesothelioma is directly related to the type of asbestos fibre which was inhaled by the individual ("fibre type issue"). There are three types of commercially‑used asbestos: crocidolite (blue), amosite (brown) and chrysotile (white). Repeated studies have demonstrated that each fibre type has a different propensity to induce mesothelioma. A recent paper expresses the specific risk of mesothelioma according to fibre type in the ratio of 500 for crocidolite; 100 for amosite; and 1 for chrysotile. It follows that even a small dose of crocidolite can be much more dangerous than a comparatively heavy dose of chrysotile.
(3)Thirdly, the risk of contracting mesothelioma is greatly increased by the expiry of time since the exposure ("lag time issue"). It is well‑known that mesothelioma has a long latency period. In fact, asbestos inhaled within 10 to 15 years of the contraction of mesothelioma is regarded as causally irrelevant to the contraction of the disease. Moreover, if there are two periods of exposure to asbestos and a mesothelioma is subsequently contracted, the earlier exposure is regarded as much more causally potent in the contraction of the disease.
When I say there is general acceptance concerning these statements, they were propositions advanced in substance by experts on all sides. Professor Musk, an internationally recognised expert in this field called by the plaintiff, was, however, more inclined to state that the specific risk of mesothelioma according to fibre type should be expressed in the ratio of 100:10:1; that is, 100 for crocidolite; 10 for amosite; and 1 for chrysotile.
Having regard then to the evidence concerning the deceased's exposure to crocidolite (or blue asbestos) in the period 1963 to at least mid‑1968 while working for Tomlinson Steel at its Welshpool premises, the following findings or observations relevant to these three issues should be made:
(1)As to the dose issue, the dose to which the deceased was exposed while handling pure asbestos fibres in the course of the lagging process was extremely heavy. The evidence to which I have referred strongly supports the conclusion that little was done to control the release of asbestos into the atmosphere, either at the point at which the deceased as an apprentice was required to mix asbestos into a slurry by hand or elsewhere within the workshop where dust was apt to go, in the manner complained of by Dr McNulty in his letter. While it appears that steps were taken by Ceiloyd to protect their workers, the direct evidence of the deceased and Mr Foster, which I have no hesitation in accepting, indicates that little, if anything, was done seriously to minimise the risk of exposure of Tomlinson Steel's workers, in the lagging area or elsewhere in the workshop.
(2)As to the fibre type issue, the evidence strongly points to the conclusion that the fibres were pure crocidolite, that is, blue asbestos, which is by far the most dangerous of the asbestos fibres. While some attempt was made by the first defendant to suggest that what was mixed by the deceased to make the slurry was not asbestos, or not crocidolite asbestos, the evidence is all one way and strongly suggests it was blue asbestos. As I have noted, Mr Pryce, who was responsible for spraying it on the boilers at material times, stated it was blue asbestos and his evidence was not challenged. Mr Hall said the only asbestos he used was blue asbestos and his evidence was not challenged. Dr McNulty's letter to Tomlinson Steel in 1968 also stated that the asbestos was crocidolite. Further, a statutory declaration made by Mr E E Tomlinson, the former managing director of Tomlinson Steel, that was admitted into evidence under the Evidence Act1906 having regard to Mr Tomlinson's medical condition, asserts that the asbestos purchased by the company was blue asbestos. As I suggest, there can be no real dispute about the matter. The chemist's certificate put in evidence by the plaintiff through Ms Dropulich confirmed the asbestos was crocidolite and rather puts the matter beyond doubt.
(3)As to the lag time, an issue that I will return to later in these reasons, the exposure of the deceased to blue asbestos at the Welshpool premises of Tomlinson Steel was the first exposure on the evidence to which he was exposed.
Having regard to the evidence concerning the deceased's exposure to asbestos at the James Hardie plant at Welshpool, the following findings or observations may be made:
(1)As to the dose issue, during the second exposure, the potential dose of asbestos which the deceased could inhale was small when compared to that which he would have inhaled while employed by the first defendant.
(2)As to the fibre issue, the evidence strongly suggests that the only fibres to which the deceased could have been exposed during the second exposure period were chrysotile and amosite fibres, not crocidolite fibres.
(3)As to the lag time issue, it goes without saying that because the second exposure period was the later of the two exposures, it is less likely than the exposure in the earlier period to be the cause of the mesothelioma contracted by the deceased.
As I have stated above, there is unanimity amongst the medical experts that the deceased died as a result of contracting the disease of mesothelioma. The question is whether the deceased's exposure to asbestos at each of the premises of Tomlinson Steel and James Hardie, or one or other of them, materially caused or contributed to the contraction of the disease. This question was addressed by the expert witnesses.
Professor Musk stated that "the earlier and heavier exposures [at Tomlinsons] would have contributed more to the risk of his developing mesothelioma than later and lighter exposures". Professor Musk, in a report prepared earlier for the purposes of the action, understood that the deceased's average rate of exposure over the five years of his employment with Tomlinson Steel was once a week. The evidence later suggested the exposure was once a month. He was then asked whether such a change would affect his opinion as to the causal contribution of that employment to the deceased's mesothelioma. Professor Musk answered:
"No, not really. My assessment is that the exposure - the earlier exposure was to crocidolite and was still heavier than the subsequent exposure - the later exposure [at James Hardie], which was to amosite and chrysotile."
Professor Musk emphasised that the earlier and heavier exposure would have contributed more to the risk of the deceased developing mesothelioma than later and lighter exposure. In light of the evidence that the earlier exposure involved exposure to blue asbestos or crocidolite, he stated:
"So my opinion is the same as it was but more forceful because blue asbestos is the most potent form of asbestos for causing mesothelioma."
As to the deceased's later exposure while working for Steelstruct at James Hardie's premises, Professor Musk noted that the exposure at James Hardie was to amosite and chrysotile and said:
"But they are much less potent causes of mesothelioma than crocidolite is. The order of magnitude is about one for chrysotile, 10 for amosite, and about 100 for crocidolite."
He added:
"If the Hardie's exposure had been the only exposure, then I would be comfortable saying that that's the probable cause of the mesothelioma, but in terms of what the most likely cause is, I think that Tomlinson's is much more likely to have been the cause. The other issue is that Tomlinson's exposure occurred much earlier than the Hardie's exposure and the risk of getting mesothelioma increases exponentially with the time since first exposure. There's virtually no causes occur within the first 10 or 15 years, but after that the risk escalates, the risk for the individual, and it escalates not as a square of the time since first exposure, it's more than a cube of the time since first exposure. So it really goes up at a rapid rate with advancing time after the first 10 to 15 years. Since Tomlinson's was the first exposure, that's the other reason that I think that it's much more likely to have caused the mesothelioma than James Hardie's."
As to whether or not he could exclude either the earlier or later exposure as a causal element in the contraction of mesothelioma by the deceased, Professor Musk stated that:
"Every episode of exposure would have contributed something to his risk. It contributed something to the fibre burn that he would have accumulated in his lungs. The earlier period of exposure seems to me to have been considerably greater than the subsequent period when he was just visiting the factory and wasn't actually doing much in the way of work there. It was intermittent short visits rather than working there the whole time, so the amount of exposure was much greater in the first period of exposure than in the second period."

The defendants say that if one adjusts these income figures for the 2001 taxation year to take account of income earned from assets which assets are inherited by the plaintiff, the position may be represented as follows. The deceased's gross income would be $75,000 and the plaintiff's (rounded off) $51,000. The net income of the deceased (rounded off) would be $44,000 and the plaintiff's $37,000. I accept that, in real terms, this is an appropriate adjustment that might be made by reference to the 2001 tax return to reflect the income from inherited assets. The evidence discloses that the plaintiff has inherited a number of income‑earning assets upon which her husband or she and her husband previously enjoyed income.
However, I do not consider that the evidence sustains the defendants' contention that these adjustments demonstrate that the plaintiff suffered no pecuniary loss following the death of her husband.
If one consults the tax return for the 2001 year, and uses the rounded off net incomes stated, then of a total of $81,000 earned by the deceased and the plaintiff together, the deceased's proportion was approximately 0.77 and the plaintiff's proportion approximately 0.23. However, after redistribution in the manner suggested by the defendants, the deceased's net income (rounded off) was approximately $44,000 and the plaintiff's $37,000. The deceased's proportion of the total of $81,000 in this redistributed context is approximately 0.56 and the plaintiff's approximately 0.46. What is revealed by this analysis is that less than half of the combined income of the deceased and the plaintiff continues to be available to the plaintiff following the death of her husband. Additionally, the analysis shows that the plaintiff will cease to have the benefit of the deceased's earning capacity as a fabrication engineer in the years following.
It is not reasonable on these figures to conclude that the plaintiff had a "full" dependency on the deceased's income at and following his death, because a proportion of his income earned on assets flowed to her upon her inheriting those assets and she already enjoyed an income of her own. However, it is clear that she will suffer pecuniary loss following the death of her husband by reason of the lost earnings as a fabrication engineer.
While no precise calculation of her dependency on those lost earnings is possible by reference to the plaintiff's and the deceased's spending patterns, or the like, the evidence before me suggests it is reasonable to assume that the plaintiff had a dependency in the order of 50 per cent on the deceased's continued earnings as a fabrication engineer. If those earnings (assuming them to be the adjusted and rounded net income of $44,000 in the 2001 tax year) are relied upon and are applied as to 50 per cent thereof (or $22,000) in favour of the plaintiff, then her income would constitute approximately $59,000, being the $37,000 adjusted income, together with that additional sum. This total is less than the $81,000 that the plaintiff and the deceased together earned and enjoyed as of 30 June 2001. But it seems to me to constitute a reasonable measure of the plaintiff's actual dependency on the deceased's earnings and, as a result, a good indicator of the pecuniary loss that the plaintiff will, in fact, suffer following the death of the deceased.
It remains then to consider on what basis pecuniary loss for these lost earnings should be calculated. I referred above to the questions that require determination if the broad approach suggested by the plaintiff were to be accepted. The first is as to the probability of the deceased continuing to work as a fabrication engineer until the retirement age of 65 years and the second is the likely remuneration rate.
The plaintiff submits that, but for his mesothelioma and death caused by that disease, the deceased would, as at the date of his death, have been likely to be working for Camco Engineering and on a better salary package than in 2001, if not in a profit‑sharing arrangement or on a partnership basis. The plaintiff relies on the evidence of Mr Cameron referred to above in the Law Reform Act claim, that the deceased could have taken a position as a fabrication manager, on a package similar to that provided by Camco, anywhere in Western Australia. He said Camco was privileged to have engaged the deceased.
The plaintiff also points to the evidence of Mr Schmidt, the deceased's partner in Steelstruct, who maintained that the deceased's likely salary range was $80,000 to $100,000. Mr Schmidt confirmed that the deceased was a "highly skilled fabrication practitioner".
The evidence discloses that the deceased was very well thought of as a fabrication engineer and, particularly as a partner in the Steelstruct business, had demonstrated his skills and business acumen. The evidence of Mr Cameron confirms that he was a highly sought after employee by reason of his known performance in that business. Mr Cameron described him as a "very capable, competent person".
The evidence before the Court shows that the deceased was on a salary package of about $80,000 per annum when he finished working with Camco in 2001. He had received a small business award in 1996 for his work with Steelstruct. His cattle stud operations at Wooroloo plainly were no impediment to his employment with Camco Engineering after he ceased working for Steelstruct in 1998. While the evidence suggests the deceased may well have considered a long‑term working relationship with Camco, but for the contraction of mesothelioma, the nature of any relationship that might have eventuated, beyond the employment arrangement he had earlier enjoyed, is far from clear.
The plaintiff submits the deceased was likely, given his good health, energy, drive and experience, to have continued to work for Camco on a profit‑sharing or partnership arrangement, or in some alternative endeavour, including running his own business, if a partnership or profit‑sharing arrangement with Camco did not eventuate, until at least the age of 65.
The plaintiff gave evidence that contradicts any suggestion that the deceased would simply have retired to run his cattle stud. She said that her husband:
" … loved the industry. He thrived on that competition, he thrived on doing a good job and being a success, and, yes, the money was part of it. He loved getting the money".
For these reasons, the plaintiff says the deceased would have continued as the chief breadwinner providing financial support for her, as well as services and that she would have been reliant on the deceased for financial support and services. She did little work and her venture into business on her own account with Piaf Boutique lost money.
The plaintiff says the evidence shows that the deceased was devoted to his family and his history shows that he built assets and wealth for the benefit of his family, which, of course, includes the plaintiff.
I accept that, generally speaking, had the deceased survived, he would have continued to work successfully in his line of work as a fabrication engineer and to generate income for the benefit of himself and his wife.
While I am satisfied the deceased would have continued to work and generate income, I am not satisfied that the evidence supports a submission that the deceased would have become a partner or the equivalent in Camco Engineering. If anything, the evidence suggests to the contrary and that the deceased was happy to balance his lifestyle interest in the establishment of a new cattle stud at Bullsbrook with his income‑earning needs through a firm such as Camco Engineering.
The plaintiff submits that it is reasonable to accept the deceased would have earned $100,000 gross per annum after adding positive contingencies and deducting negative contingencies and to use this as a sum upon which to project loss to the date on which the deceased would, but for his mesothelioma and death, have attained the age of 65 years. Tax and Medicare on $100,000 per annum is $35,880, so that the net income per annum would be $64,120, or about $1,233 per week.
I also accept that, given the nature of his skills as a fabrication engineer, the deceased had related skills in property maintenance, repairs, gardening and management which would be useful in the establishment of a cattle stud on the Bullsbrook property.
The plaintiff further submits that, over the period until age 65, it was the intention of the deceased to operate a commercial beef cattle stud at the Bullsbrook property. He had previously had experience with cattle in the Santez Charolais stud farm at Wooroloo between 1991 and July 2000 and the Bullsbrook property was of about the same area - 100 acres. The plaintiff says that, having regard to the assumptions regarding the deceased's long‑term employment with Camco, or similar such work, and her evidence that, when they retired they would have the farm to operate together, the most probable scenario is that the beef cattle stud would become profitable at some time in the forthcoming 10 years; that is, by the approximate putative date of retirement from Camco, when the deceased would have substantially more time to devote to the commercial beef cattle business. However, because that time is some few years distant and the profits achievable are uncertain, the plaintiff submits a nominal income of $20,000 gross per annum be apportioned to the deceased's income‑earning capacity from the age of 65 until age 75. The plaintiff notes the tax liability on $20,000 gross at current rates would be $2,380 and Medicare liability per annum about $2,680. Consequently, the net loss would have been $17,320 per annum, or $333 per week.
The plaintiff says her estimate of $20,000 gross per annum takes into account a significant risk of adverse contingencies, including ill health or death of the deceased (which she says is unlikely, given his healthy lifestyle and good health at material times), the failure of the business (which she again says is unlikely, given other sources of income) and fluctuation in beef prices.
In my view, the plaintiff's assessment of the likely income earning of the deceased is very much on the high side. Having regard to the considerable likelihood that the deceased would wish to continue to balance his work as a fabrication engineer against his lifestyle choice in establishing a cattle stud (for the second time) on the Bullsbrook property, I consider that it is most probable in all the circumstances that the base $80,000 per annum gross salary package he last enjoyed prior to contracting mesothelioma would only have increased relatively modestly over the course of the next 11 years or so in the workforce, assuming that he worked until the age of 65. In those circumstances, I think it is more sensible to assume some incremental increase in salary package over that period such that his average income from working as a fabrication engineer would have been in the sum of $85,000 per annum gross over the whole of this working period.
As to the evidence supporting the submission that following the deceased's retirement at the age of 65, he would have earned a nominal income of $20,000 gross per annum from the age of 65 from the operation of the Bullsbrook cattle stud, I consider it highly speculative. The evidence in relation to the Santez Charolais stud farm he helped operate at Wooroloo between 1991 and July 2000 is such that the deceased is not shown to have earned any profit or nominal income in his earlier attempts at operating a cattle stud. It may perhaps be inferred that the operation of the cattle stud had more to do with capital investment objectives as well as lifestyle objectives. The same may also be inferred in respect of the purchase of the Bullsbrook property. No detailed or expert evidence was adduced by the plaintiff concerning the operation of the cattle stud on the Bullsbrook property and it is difficult to assume that anything more than a notional income might possibly have been earned from the cattle stud in the 10 years following 19 March 2013, when the deceased may be taken to have retired from his engineering work.
Indeed, the only relevant evidence suggests the new livestock business would struggle to make a profit. This is based upon the experiences of the previous livestock business, Santez Charolais, which produced substantial losses. The plaintiff confirmed that this was so. The land on which the earlier business was operated was, of course, a valuable asset sold prior to the purchase of the Bullsbrook property.
I am inclined to accept the defendants' submission that there is no reason to believe the stud business would have been particularly profitable, if at all. The evidence suggests it is an enterprise that falls within a "hobby farm" category and constitutes a "lifestyle" asset, although no doubt the deceased would have had hopes for its financial viability in the future, especially following his retirement. However, as noted, no expert's report was tendered even to suggest that the business was viable.
In all the circumstances, I am not satisfied on the balance of probabilities that the plaintiff has established she will suffer pecuniary loss by reference to the cattle stud at Bullsbrook.
As to the earnings from these "lost years", the plaintiff says they should be discounted at the rate of 6 per cent in accordance with the "standard rate".
The defendants acknowledge that in Western Australia there has been a standard practice of selecting a discount factor of between two per cent and six per cent: see, for example, Kember v Thackrah [2000] WASCA 198. By contrast, in New South Wales, a standard deduction for contingencies of 15 per cent appears to apply: see, for example, Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485.
In these circumstances, the defendants submit two things: first, that a standard discount of between two per cent and six per cent is too low, generally; secondly, that a standard discount of between two per cent and six per cent in a Fatal Accidents Act claim is much too low. In this regard, the defendants refer to the recent observations on the discount issue made by some members of the High Court in De Sales, which they say support their contention, for example:
(a)The remarks of Gleeson CJ and in the joint judgment of Gaudron, Gummow and Hayne JJ which acknowledge the standard discount: see [42] and [83] ‑ [84];
(b)McHugh J's observation at [114] said:
"And with the greatest respect to those who think that a 5% total deduction is appropriate, I think that such a percentage is unreasonably low. It means that, despite all the assumptions and uncertainties in assessing the loss of the chance of dependency over a 34 year period, the figure placed on the value of the chance by the trial judge has a 95% confidence level of being correct." See also at [115].
(c)Kirby J's discussion generally at [163] ‑ [165] and his Honour's observation of the standard discount of five per cent, that, "It seems rather low".
(d)Callinan J, at [197], and his Honour's observation in respect of the standard discount of five per cent: "I would myself have been inclined to think a discount of 5% too little."
The defendants submit that the "standard" discount should not apply in this case or generally to Fatal Accidents Act claims, and instead a discount of 20 per cent should be applied for general contingencies.
On the question of discount rates for future economic loss following personal injury, the Full Court of this Court has recently considered the question in the context of an appeal against the primary Judge's decision to discount the plaintiff's award for future economic loss by 75 per cent for contingencies and the vicissitudes of life: see Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298. Malcolm CJ (with whom Parker and Murray JJ agreed) regarded a number of relevant authorities and upheld the ground of appeal that the discount made by the primary Judge was too great. The Chief Justice, at [193] and [194], then stated:
"In my opinion, there was no justification at all for the application of a 75 per cent discount to the estimated future earnings, but for the appellant's injuries in the accident. Except in special circumstances, a discount of more than 15 per cent is unreasonable: Struthers v Harris [1983] WAR 123, 124 ‑ 125; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 330 [sic] per Barwick CJ. As previously noted, the standard rate in Western Australia has been in the order of 2 per cent to 6 per cent: Foster v Goyanich (supra); Black v Motor Vehicle Insurance Trust (supra); and Bowen v Tutt (1990) Aust Torts Rep 81‑043 at 68,083 per Malcolm CJ.
In my opinion, the appropriate level of discount for contingencies to apply to the end figure calculated for future earnings would be not more than 10 per cent."
The Full Court thereby seems to have accepted that the "standard" rate previously applied in the order of two to six per cent should be increased to not more than 10 per cent, when one is dealing with future earnings. In any event, in the context of that case, the Court applied a 10 per cent discount rate.
It seems to me that the same approach should be taken in assessing the appropriate discount rate to be applied in this case in respect of the deceased's earnings in the "lost years". A 10 per cent discount rate would appear to be appropriate in this case. There is nothing about this case that suggests that a discount rate greater than 10 per cent should be adopted. It may be said on the evidence with a degree of confidence that, given the relatively short working life that the deceased had in front of him - 11 years or so - the need to provide for any greater contingency than a 10 per cent deduction is not called for. Save for contracting mesothelioma, he was on all accounts a fit and active man who enjoyed his work. Whilst not, in my view, likely to recommit to his industry as a partner in a business or the like, he was likely to remain working in that business and, given his faculty and skill, quite unlikely to be out of employment if he wished to remain in employment. Nonetheless, given the vicissitudes of life and bearing in mind the fact that the deceased had not resumed working as a fabrication engineer immediately following the death of his mother, prior to being diagnosed with mesothelioma, there is reason to think that the deceased may not have worked until age 65. As the financial evidence shows, between them the plaintiff and the deceased already held valuable assets and drew significant income from them at the time the deceased contracted mesothelioma. In all of these circumstances, a higher discount rate in the order of 10 per cent is appropriate in this case.
Having regard to these findings, I must now calculate the pecuniary loss of the plaintiff for the "lost years" of the deceased. In doing so, it seems authority obliges me to adopt a two‑stage process, or at least suggests that it is usual to determine the award in a two‑stage process where the Court should first determine losses up to the date of trial (or judgment) and, secondly, by assessing the prospective detriment likely to be suffered: De Sales v Ingrilli [2000] WASCA 374; (2000) 23 WAR 417: Appeal allowed in part, but not so as to affect this ruling, in De Sales v Ingrilli (supra). In the Full Court, Miller J (with whom Parker J agreed) stated, at [75]:
"Consistent with this statement of principle, it is now appropriate in fatal accident claims in Western Australia, at least when the trial judge is able to do so, to split the award into two parts, the first part reflecting loss of dependency before trial and the second, loss of dependency after trial. Interest is of course only to be awarded on pre‑trial loss."
The reason for this approach seems to be that, at the time of the trial, the Court is able to take into account matters that may have occurred since the death, including increases in the earnings from which the deceased would have provided the benefits for the dependants as well as to account for any other changes in circumstances that have actually occurred that bear upon the award: Luntz (4th ed) [1.6.6]. In this case, probably little, if anything, changed between the date of death and the date of judgment as to emphasise the need to adopt the two‑stage approach, but, nonetheless, I do.

In these circumstances, damages should be awarded in respect of the "lost years" from the date of death (10 July 2002) to the date of retirement at age 65 (18 March 2013) on the following basis:
(1)the deceased would have earned an average rate of $85,000 gross per annum in that period;
(2)such sum should be discounted at the rate of 10 per cent;
(3)the plaintiff is entitled to a 50 per cent dependency in respect thereof.
Further, the following calculations should be taken into account. The figure of $85,000 gross per annum should be reduced by the assumed taxation liability, including Medicare levy calculated on present rates, being a reduction of $27,814.50, and producing a net income of $57,185.55 per annum or $1,099.77 net per week. Applying a 50 per cent dependency rate, the assessable net loss of the plaintiff is, therefore, $549.86 per week.
Adopting the two‑stage process suggested, the following assessment of damages under this head should be made:
(1)Past loss from date of death to date of judgment, a period of 75 weeks, at $549.86 per week constitutes a past loss of $41,239.50. Applying interest on past losses, assuming interest at 6 per cent per annum in accordance with the Supreme Court Rules, over a period of 1.5 years at 6 per cent interest per annum, the past loss constitutes $45,025.29. Applying the 10 per cent discount to this sum, the past loss is assessed at $40,522.76.
(2)In relation to the future loss from the date of judgment until the date of retirement, where the relevant multiplier for 10 years is 395.5, the future loss at $549.86 per week constitutes a loss of $217,469.63. Applying a 10 per cent discount to this of $21,746.96, the future loss is assessed at $195,722.67.
(3)The total loss, then, in respect of pecuniary loss of the plaintiff on account of dependency on the deceased for the "lost years" is a total of $236,245.43.

Loss of superannuation dependency

The plaintiff says superannuation would have been payable to the deceased had he worked to age 65, and that assuming a base salary of $75,000, the superannuation payable would be $6,750 (at nine per cent contribution by employer). The plaintiff contends no discount for administration or other costs should be allowed on the basis that these would be offset by interest and earnings over time. On $6,750 per annum, and applying a dependency of two‑thirds in favour of the plaintiff, the dependency constitutes a sum of $4,500 per annum.
The plaintiff therefore says a total sum of $37,341 should be allowed, calculated as follows:
(a)From 10 July 2002 to 18 March 2003 (36 weeks) at $4,500 - $3,115.
(b)From 19 March 2003 to 18 March 2013 (the year the deceased would have attained 65) applying six per cent multiplier for 10 years (395.5) at $4,500 per annum - $34,226.
This sum, the plaintiff says, should be discounted for early receipt (six per cent multiplier of present value of $1 per week deferred for 11 years to age 65 - multiplier of 0.572) which produces a sum of, $21,359.
The plaintiff says that, either the deceased's likely contributions to a superannuation fund or the likely amount of the proceeds that would have been received for the benefit of the claimant, should be treated as the benefit the claimant may have received, although the actual receipt of the proceeds cannot be taken into account: Luntz (4th ed) par [9.5.7] and Fatal Accidents Act, s 5(2)(b).
The defendants say there was no mention of superannuation in the particulars provided before trial and that there is no evidence that the Camco package included or allowed for superannuation. Mrs Lindsay, the accountant called by the second defendant, gave evidence that superannuation would not necessarily be payable on such an employment arrangement. As a result, the defendants say there is an insufficiency of evidence to support the superannuation claim.
In dealing with the Law Reform Act claim, I noted a similar submission on behalf of the defendants, which I rejected. As a result, I am prepared to allow the sum claimed by the plaintiff, but on the basis of a 50 per cent dependency in favour of the plaintiff.
On this basis, and adopting the two‑stage approach identified above, the dependency would be in the sum of $3,375 per annum or $64.90 per week and the following sum should be allowed:
(1)From 10 July 2002 to 19 December 2003 (date of judgment), a period of 75 weeks at $64.90 per week - $4,867.50;
(2)from 19 December 2003 to 18 March 2013 (the year the deceased would have retired at age 65), applying 6 per cent multiplier for 10 years (395.5) at $64.90 per week - $25,667.95;
(3)the loss is $30,535.45. Discounted for early receipt (6 per cent multiplier of present value of $1 per week deferred for 10 years (to age 65 - where the multiplier is 0.558), the total superannuation dependency claim should be allowed in the sum of $17,038.78.

Loss of services

The plaintiff says she also lost the services of the deceased. She estimates the value of the loss to the plaintiff of the deceased's services at not less than $10,400 per annum or $200 per week (which she says is based on a conservative estimate of 10 hours per week at a rate of $20 per hour). Thus, the plaintiff claims $124,297 in total, calculated as follows:
(1)From 10 July 2002 to 18 March 2003 (36 weeks) at $200 per week - $7,200.
(2)Assuming that, but for the mesothelioma, the deceased could have continued to provide such services for a further 20 years, at a six per cent multiplier for 20 years (616.3) at $200 per week, a further sum of $123,260 less, say, five per cent for negative contingencies - $117,097.
The defendants say the estimation that the plaintiff provided services at the rate of 10 hours per week is arbitrary and unsupported by evidence. The defendants say the claim is unsupported by submissions showing the kind of services for which the claim is made and there is no balancing for the services provided by the plaintiff which are no longer necessary.
Generally in respect of insufficiency of evidence, the defendants say it is not enough for the plaintiff simply to assert that this is what she has lost and ask the Court to award damages in that amount. Rather, the plaintiff must prove the loss: Bonham‑Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177 at 178 per Lord Goddard CJ, cited with approval in Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd, unreported; FCt SCt of WA; Library No 970604; 13 November 1997 and West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72 (18 May 1999). However, it should be noted that in both Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd and West Boat Builders Pty Ltd v Cull Holdings - neither of which included the assessment of damages in relation to a personal injury claim - what was at issue was the reasonableness of charges claimed in invoices. In Michael Kellway International Pty Ltd, the Court found there was no evidence as to any verification of invoices, or as to the reasonableness of the charges. Cull Holdings was considered a "more extreme" case than that because the respondent did not even "write down the particulars", but merely relied on invoices which contained inadequate detail as to how the amounts claimed were arrived at. There was no evidence as to the verification of hours worked, the rate for the work, the materials used and the cost of materials: see Ipp J at [20].
The question in this case is whether the evidence establishes loss upon which the Court can assess damages - if there is, even though the task may be difficult, the Court should do the best it can: Luntz (4th ed) [1.9.23] and authorities there referred to.
I accept that in this case the evidence shows the deceased would have provided services "around the home" and so the claim may include the value of such services. The deceased was a practical man with skills particularly useful at the home of the plaintiff and the deceased at Bullsbrook, which also comprised the developing cattle stud.
Services rendered by the deceased around the house may be included in the assessment of the benefit the claimant might have received: Watson v Burley (1962) 108 CLR 635; Luntz (4th ed) at [9.3.8]. The services may be valued on the same basis as voluntary services are valued in personal injury cases - at the commercial rate: see Van Gervan v Fenton (supra); and Biddulph v Lenegan, unreported; FCt SCt of WA; Library No 990076; 19 February 1999; Luntz (4th ed) at [9.3.8].
It follows from what I have stated that I consider the plaintiff's loss of services claim to be excessive. While I would allow the hourly rate claimed of $20 as well as the discount and negative contingency rate suggested, having regard to the considerable likelihood of the continued provision of the deceased's services around the home, I consider the claimed "conservative estimate" of 10 hours per week to be too great, having regard to the plaintiff's pleaded case that the deceased would have remained committed to working as a fabrication engineer. I would reduce the claim made globally by one‑third and allow loss of services in the sum of $82,864.66 rounded up to $82,900.

Capital losses on sale of Bullsbrook property

The plaintiff also claims a loss she says she will suffer by reason of the unexpected, but necessary, sale of the Bullsbrook property and should be awarded damages for this loss.
The cost of purchasing the property was $542,626.30. The cost of additions, maintenance and improvements totalled some $93,300.95. The property is unlikely, she says, to sell at more than $600,000. On this basis, the plaintiff expects she will incur a loss of not less than $35,000 on any sale of the property and claims this loss.
The second defendants say that such a claim is not recognised by the Law Reform Act or the Fatal Accidents Act. For the purposes of the Law Reform Act, it is not a claim which would be compensable to Mr Misiani at the time he died and it is probably specifically excluded by s 4(2)(c) in any event.
For the purposes of the Fatal Accidents Act, the second defendant says it can neither be part of the dependency claim nor the services claim.
In any event, the second defendant submits the claim is conceptually wrong and that the fallacy is revealed by a simple consideration of the numbers.
The second defendant says that, even if all the calculations put forward by the plaintiff are accepted, there is no loss because the plaintiff omits reference to the fact that she contributed half the purchase price, but will receive the whole of the sale price. In other words, the plaintiff will receive the share of her deceased husband upon sale of the property and will not suffer any loss.
I have considerable difficulty in accepting that the potential capital loss claimed is within the notion of "injury" contemplated by the Fatal Accidents Act. It does not seem to me to constitute a pecuniary loss contemplated by the authorities and does not fall within either the dependency loss or loss of service category as traditionally understood. It may constitute a consequential loss that the plaintiff will suffer, but I cannot see how a potential capital loss of this kind is claimable under the Act. In any event, the claimed loss is speculative and I do not allow it.
To the extent that the plaintiff still presses a capital loss claim in respect of a caravan purchased by the deceased and the plaintiff before the onset of the deceased's symptoms, for similar reasons, I would reject the claim.

Accelerated benefits

It is accepted by the parties that account must be taken of the value of the acceleration of the plaintiff's receipt of the assets that have come to her on the distribution of the estate of the deceased. As Luntz states, (4th ed) [9.5.27], the benefit to a claimant for which credit must be given is seldom simply the value of the assets that were received on the distribution of the estate, since usually the claimant would have received similar assets on the later death of the deceased. That is certainly true in this case. The benefit is, therefore, to be measured by the value of the acceleration of the claimant's receipt of the assets, with possibly some allowance for the certainty of the receipt as opposed to its prior contingency. As Luntz there observes, in many such cases, the benefit from immediate receipt is likely to be far outweighed by the fact that if the deceased had lived longer, a much larger estate would probably have been accumulated and passed on to the beneficiaries.
The plaintiff contends that, having regard to the last 20 years of the deceased's life and the assets accumulated almost solely by him (at least, accumulated by his personal endeavours) and during a period when his family was young with all the financial demands that this entailed, and further having regard to the evidence that the deceased remained active in work and property matters, there is a basis for concluding that had the deceased not died prematurely, he would have continued to increase his assets and that such a likely increase offsets any benefit of accelerated receipt.
I think the most that can be said is that on the facts, the deceased would have continued working for much of the time at least until the age of 65 and would have endeavoured to work on the cattle stud and attempt to increase the capital value of that asset if he had not died prematurely. Nonetheless, the fact is that the assets have come to the plaintiff and there is a benefit in their accelerated receipt.
The plaintiff says that in these circumstances, where there is evidence that some of the deceased's share of assets and property (apart from excluded assets like the family home, pension and superannuation assets) are now owned by the plaintiff and productive of some, albeit limited, income, an amount of no more than $100,000 should be deducted on account of the benefit from accelerated receipt of benefits.
The defendants contend that a deduction of $100,000 on account of accelerated receipt is arbitrary and too low. The defendants point to the fact that $60,000 was received by the plaintiff on account of the sale of the bottle shop property in which she and the deceased maintained an interest and which was sold following the date of death of the deceased; and that other assets, including real estate, shares and cash were received for which allowance must be made. In this regard, the defendants point to a failure on the part of the plaintiff to bring forward precise evidence to show exactly what the benefits have been upon the distribution of the estate.
While it might be concluded, although rather imprecisely given the state of the evidence, that the value of the assets that the plaintiff has received following the premature death of the deceased will not be insubstantial, evidenced by the sale of the interest that the plaintiff and the deceased had in the liquor store and the accelerated benefit of that asset in the form of a cash receipt of $60,000, I am of the view as the plaintiff contends that had the deceased remained alive, such assets would have remained intact and the deceased would have, in all probability, not only improved the assets held by him or him and the plaintiff jointly as well as accumulated additional assets given his commitment to work as a fabrication engineer.
In all of those circumstances and doing the best I can on the evidence before me, I consider a deduction should be made in the sum of $100,000 on account of the benefit the plaintiff receives from immediate receipt of the assets.
Funeral and memorial expenses: The plaintiff claims a sum of $19,060.89, together with interest thereon under this head of injury. The defendants agree this is a proper allowance for funeral and testamentary expenses.
Probate expenses: The plaintiff claims under this head, the sum of $965. It seems to me that these expenses arguably form part of the funeral expenses and should be allowed: Smith v Mackrill [1978] Qd R 403.
Interest: I would allow interest on the funeral and probate awards.
In respect of funeral and memorial expenses, the sum in question is $19,060.89. Interest thereon should be calculated from the date when the detriments were felt: Luntz (4th ed) [11.3.4]. Interest at the rate of 6 per cent should be allowed (as permitted by s 32 of the Supreme Court Act1935 (WA)). Interest, therefore, should be calculated from the date of death (10 July 2002) to the date of judgment (19 December 2003), a period of 1.5 years, at 6 per cent per annum, constituting the sum of $1,715.50.
In respect of the probate claim, the expenses are $965. Interest thereon calculated on the same basis as funeral and memorial expenses means that interest at 6 per cent should be paid on the sum of $965 for a period of 1.5 years, producing a total of $86.85.

Summary of damages awarded in respect of the Fatal Accidents Act claim

Having regard to the foregoing, I would, therefore, award damages in respect of the Fatal Accidents Act claim of the plaintiff as follows:

The dependency claim	$236,245.43
Loss of superannuation claim	17,038.78
Loss of services claim	82,900.00
Funeral and memorial expenses	19,060.89
Interest on funeral and memorial expenses	1,715.50
Probate expenses	965.00
Interest on probate expenses	86.85
Sub‑total	358,012.45
Less deduction on account of accelerated receipt of benefits	100,000.00
Total	$258,012.45

Conclusion and orders

For these reasons, and as set out above, I consider that each of the defendants is liable to pay damages to the plaintiff in respect of the Law Reform Act claim and the Fatal Accidents Act claim.
In the Law Reform Act claim, the defendants are liable to pay the plaintiff damages assessed in the total sum of $269,986.71.
In the Fatal Accidents Act claim, the defendants are liable to pay damages to the plaintiff in the sum of $258,012.45.
In the contribution proceedings between the defendants, the second defendant is entitled to a contribution from the first defendant in respect of the total damages payable to the plaintiff in the proportion 97:3.
I will hear from counsel as to the formal orders which should be made.