Ness v State Rail Authority of New South Wales and Central Coast Area Health Service

[2005] NSWDDT 32

Dust Diseases Tribunal

of New South Wales

CITATION:	Ness v State Rail Authority of New South Wales and Central Coast Area Health Service [2005] NSWDDT 32
PARTIES:	William James Ness State Rail Authority of New South Wales Central Coast Area Health Service
MATTER NUMBER(S):	DDT28/96
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	Damages :- Lung cancer Non smoker Causation Damages Chance of a recurrence of the cancer
LEGISLATION CITED:	S5 Law Reform Miscellaneous Provisions Act 1946
DATES OF HEARING:	29, 30 November and 1 December 2004 15, 16, 17 March 2005
EX TEMPORE JUDGMENT DATE:	03/17/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D Letcher QC with Mr A McSpedden instructed by Turner Freeman FOR FIRST DEFENDANT Mr J Gracie instructed by Moroney Betts FOR SECOND DEFENDANT Mr B Ferrari instructed by Thompson Cooper

JUDGMENT:

JUDGMENT

1. I commence to give reasons in the case of William James Ness against State Rail Authority of New South Wales and Central Coast Area Health Service. I give the reasons ex tempore with all the deficiencies that that may produce because although there has been a lot of complex evidence given in the case the central matters for determination I think have become reasonably clear.

2. The plaintiff was born on 31 December 1931. He worked for the first defendant, the State Rail Authority from January 1949 to about January 1955 (see PX9 par 2). He joined the State Rail Authority as an apprentice fitter. He became a qualified tradesman fitter and after 1955 went off working in various jobs not related to these proceedings. His case against the State Rail Authority is that in the course of his employment with them he was exposed to the inhalation of asbestos dust and fibre which was negligent on their part and which produced in him certain effects including ultimately lung cancer.

3. The plaintiff worked for the second defendant, the Central Coast Area Health Service as a fitter from 7 July 1980 until he retired in 1997. His case against the second defendant is that between July 1980 and December 1987 he was again exposed, negligently, to the inhalation of asbestos dust and fibre in his work as a fitter at the Gosford Hospital and the hospitals which were near it and which its staff serviced.

4. It is the plaintiff's case that the lung cancer from which he undoubtedly suffered resulted from the exposure to asbestos in both employments and was the cumulative indivisible result of that exposure. As Professor Henderson put it at p 92 of the transcript lines 8 to 14:

I regard his cancer as an indivisible singular outcome of his total cumulative asbestos exposure sustained over many years and in this respect the railway workshop exposure and the Mona Vale Hospital (sic) exposures would each have contributed causally towards the induction of his lung cancer.

5. It is important to state at the outset that the plaintiff has been effectively a non smoker all his life. There is a minor qualification required to that statement which is that when he was a young man, or in his teens, because some about him were buying cigarettes he bought a packet whereupon his older brother told him in no uncertain terms what he would do to him if he continued to smoke. Whether his brother's eloquence carried the day I do not know but it certainly had the desired effect and apart from that packet of cigarettes the plaintiff has never been a smoker. He has been treated by the experts in the case, knowing that, as a non smoker.

6. It is perhaps convenient to tell the story by reference to the development of medical symptoms and then to go back to look at questions of what caused them. The plaintiff said that the symptoms of breathlessness and fatigue and a feeling that he could not get enough air into his lungs commenced at about 1995 (see par 15 PX9). He was seen by Dr Michael Burns, thoracic specialist, in 1998. The doctor reviewed x-rays, indeed he reviewed a succession of x-rays commencing from 1988 onwards. He said of them the following:

Those of 1993 and 1994 showed bilateral pleural plaques. There was some entrapped lung and rounded atelectasis at the left lung base and pleural thickening on the left side. There was transpulmonary bands and patchy basal fibrosis consistent with pulmonary asbestosis. In the 1994 films there was a new lesion in the left upper zone laterally. This was again another area of lung entrapment. The 1995 films were much the same. Those in 1997 showed that the left upper zone radiological lesion had diminished a lot in size. There was now pleural thickening at the right base in addition to the left and radiological evidence of asbestosis was more pronounced.
His comments included the following:

Mr Ness has clinical and radiological evidence of pulmonary asbestosis as well as asbestos related pleural disease. On the balance of probabilities these asbestos effects were caused by exposure when he was working with the New South Wales Government Railways and at Gosford Hospital. He has quite marked fibrosis, both pleurally and in the lungs and despite the lack of effect so far on his own lung function on the balance of probabilities I feel that his disease will progress, albeit slowly.

I omit a sentence not presently relevant. The doctor then said:

He has a risk of contracting mesothelioma because of his asbestos exposure although at this stage the exact level of that risk cannot be quantified. He has a risk of contracting a carcinoma of the lung and being a non smoker that risk is some five times that of the non exposed person.

Unhappily that risk was realised.

7. There was a report from Dr Cala which bears date 2 September 2003. The report sets out details of a series of consultations with the plaintiff commencing in January 2001. The entry relating to 10 June 2003 speaks of a progress chest x-ray which disclosed that a lesion previously seen abutting the pleural surface in the posteromedial aspect of the left lung was larger compared to an x-ray taken on 22 January 2001. The doctor thought that this could represent either rounded atelectasis from asbestos plaque or potentially neoplasm and a CT scan would be arranged. On 10 July 2003 a fine needle biopsy was undertaken, examination of the product of the biopsy disclosed tissue consistent with an adenocarcinoma.

8. He was referred for operation to Dr Matthew Bayfield. The operation took place on 23 July 2003.

9. It is to be noted that Dr Cala wrote at p 4 of his report:

Mr Ness is a lifelong non smoker and in view of his described occupational history and presence of pleural plaques the main documented contributing factor to the development of his adenocarcinoma is his exposure to asbestos fibre during either of his two previous periods of employment where asbestos exposure was documented.

There are other comments in the letter to which I do not need to go.

10. When describing the location of the tumour Dr Burn, Pathologist, noted:

The tumour extends very close to the pleural surface of the specimen where the pleura is thickened by fibrosis and patchy chronic inflammatory changes.

11. Further in the report the following appears:

The area of pleural thickening seen macroscopically shows thick paucicellular fibrous pleural plaque.

12. The plaintiff said of himself that following the operation he suffered from extreme pain in his chest for the next four weeks. He said he still suffers from a continuous dull pain in his chest around the drainage site and the back of his shoulder. I am referring to his affidavit sworn 29 October 2004, PX10 at par 34.

13. There is little dispute in the case about the fact that the tumour developed. It is submitted by the defendants, particularly the first defendant, that the exposure to which the plaintiff was exposed in his employment may have been sufficient to produce pleural plaques, pleural fibrosis but was insufficient to cause lung cancer. It may be observed firstly that the submission runs counter to that evidence which I have already recounted. It also runs counter to the opinion of Dr Christopher Clarke, whose reports constitute PX1 in the proceedings. The first of the reports bears date 21 January 2004. At p 3 the doctor set out a summary of a large series of chest x-rays. He said inter alia:

A chest CT scan dated 28 August 1993 showed pleural thickening on the left side which was not obvious on chest x-rays and confirmed the plaques on the right. From then on the pleural thickening on the left became more impressive [and so on].
The development of the condition was described in detail.

14. As regards causation the doctor wrote this at p 4:

I believe the two types of pleural disease your client has are definitely related to previous exposure to respirable asbestos. I believe the adenocarcinoma is a result of the intense pleural reaction on the left provoked by this previous exposure to respirable asbestos.

I do not propose to get into a debate concerning the intensity of the exposure that your client was subjected to. There is no doubt that he was exposed to asbestos as the pleural changes confirm that beyond any doubt and the demonstration of asbestos bodies in the lung tissue on the left also supports that.

I am postulating that the lung cancer arose as a result of the fibrosis produced by the pleural thickening on the left and that the carcinoma arose out of that fibrosis caused by the inhalation of respirable asbestos.

I am saying that because we have the benefit of a large series of x-rays and scans, the changes of the left base progressed relentlessly and then the tumour arose in the area of fibrosis and that was confirmed histologically.

One has to also take into account the fact that this man can be regarded as a non smoker and in my experience of 28 years in consultant practice as a respiratory physician I can only recall two other cases of carcinoma of the lung in males where there is no history of cigarette smoking. We are dealing with a very well known cause of carcinoma of the lung and in this case there is evidence of other asbestos related lung damage and therefore on the balance of probabilities I believe asbestos did make a material contribution to the development of his lung cancer.

Dr Clarke added that he noted that the surgeon had given the plaintiff a 50 per cent chance of being cured of his cancer by the treatment that he had had as to which he said:

... and I cannot better that.

15. That expression of view seems to me to be extremely powerful and fortified by what seems to me to be common sense.

16. The first defendant in particular has gone to great pains in the presentation of its case in court to attempt to analyse and reduce to numbers the exposure of the plaintiff to asbestos dust at the State Rail Authority. In light of the changes spoken of by the doctors affecting the plaintiff's lung I have wondered as the case has been conducted why that was of utility. However, it has been done. The plaintiff's evidence about his exposure, which is contained in his affidavits PX9 and PX10 and in his own evidence particularly from p 33 through to p 37 of the transcript, has been picked over with a fine forensic toothcomb. Experts have been engaged about measuring what can be gleaned from this analysis of the evidence. It is convenient I think to remind myself that the evidence was given about a period commencing 50 years ago or thereabouts and it was given without the aid of documents.

17. Submissions have been made about the evidence inviting the Court to find that it is sufficiently unreliable not to be acted on. Further, if that be accepted then the experts’ evidence about their opinions as to the level of exposure ought to be accepted. Further Counsel calls in aid a fibre body assay carried out in respect of a piece of tissue removed at operation from that part of the lung, that is the left lower lobe, in which the tumour was located. The assay turned up no fibre bodies at all. The combination of those things is put forward as a reason for saying that the plaintiff's exposure was not sufficient to cause the lung cancer from which he suffered. I have already indicated that the medical witnesses to which I have referred do not see things that way. There are other experts, and I will come back to them, but for the moment it is sufficient to observe that.

18. Secondly, as regards the fibre assay the person who conducted the assay in Western Australia was Mr Filion, who gave evidence in the proceedings via video link up. He was cross-examined with some vigour. At p 179 of the transcript lines 45 to 49 Mr Filion said of his own test results in the context of questions which suggested that a number of matters that ought to apply to such tests had not applied in this case. The question was put to him:

Question - The four bullet point is sample widely from apex to base of one lobe and that was not available either, was it.

Answer - No, it wasn't. To help the case along I would surmise - I would suggest that evidence presented on this single analysis is dubious at best and it is only an indication. We are never happy with receiving a single block no matter how well presented in terms of lung structure it may be. A single block invalidates these two points [I interpolate two of the points which he had said should apply to such analyses] or goes counter to those two points and on a statistical basis it doesn't stand very strongly I agree.

19. I think the probability is that something went wrong with that test. I do not know what went wrong and it is not necessary to chase it down, but when the author of the report about it speaks of the test in those terms it does him no injustice, I think, to say that the report ought not be acted on.

20. I mentioned other experts. It is convenient I think to refer to Dr Breslin, whose reports are 1DX9 in the proceedings. In the first report of 6 January 2004 at p 7 at a paragraph bearing the number 8 the doctor wrote:

I believe his lung cancer is in part due to his asbestos exposure. He has never smoked. His asbestos exposure, I believe, would have exceeded a total of 50 fibre ml years and therefore his risk of lung cancer would have been at least double by his asbestos exposure.

21. I add in passing, I am not sure that the evidence permits the conclusion that the exposure has been shown to be of that order. The doctor wrote another report on 9 February 2004 in light of the fibre assay report about which I have recently spoken. As a consequence of the new information the doctor thought that the exposure was very much less than 50 fibre ml years and almost certainly less than 25 fibre ml years. As a consequence on the balance of probabilities he believed that the asbestos exposure made no contribution to his lung cancer and that he does not fulfil the Helsinki criteria for attribution. It seems to me that the fibre assay, knowing what we know about it now, provides a poor basis for such a marked change of mind.

22. Further, in respect of the Helsinki criteria it is to be observed, at p 98 Professor Henderson said of the plaintiff's exposure:

Even setting aside the lower figure for attribution I believe he still fulfils the criteria for causal attribution of lung cancer to asbestos. He does have profuse pleural fibrosis and he fulfils the Helsinki criteria on an occupational history.
Further, at p 75 of the transcript Professor Henderson said:

The presence of bilateral pleural plaques carries a 90 per cent probability of above background occupational exposure to asbestos. The presence of diffuse pleural fibrosis or diffuse pleural thickening with rounded atelectasis is also an indication of asbestos exposure in the absence of any other identifiable cause.

23. Another expert to whom reference should be made, is Dr Julian Lee whose reports were tendered by the second defendant; they became 2DX.1. The first of them bears date 7 June 2000, that is before the cancer became evident. The doctor’s opinion was that there was radiological evidence of asbestos related pleural disease. The changes were insufficient, he thought, to warrant a diagnosis of asbestosis. See a page which bears the title p 3 but is in fact p 2. The doctor then turned his mind to attribution, that is to say which of the employments might have caused the exposure. There is a further report bearing date 11 February 2004. As regards causation in the last page of the report the doctor writes:

Whether the plaintiff's lung cancer is attributable to occupational exposure to asbestos as claimed by Professor Henderson remains conjectural in view of the fact that some 10 to 15 per cent of primary non small cell cancers arise in the absence of a history of either cigarette smoking or occupational exposure to asbestos.

24. One might interrupt to say that the necessary corollary of that proposition is that 85 to 90 per cent of them do arise with some identified cause such as asbestos.

25. The Doctor wrote:

The finding of a normal asbestos fibre count offers no support for the plaintiff's claim.

So much may be accepted, but it seems to me, that the effect of the fibre count might reasonably be set aside having regard to the author's evidence about it. Those matters are repeated, that is about causation, in a short letter of 25 February 2004. Once again I think the reports get into the area of conflict between medical scientific proof on the one hand and probability, which is what the Court is concerned with, on the other.

26. There are reports from Dr David McKenzie tendered by the first defendant, which became 1DX.10. The first of them bears date 6 March 1997. He described relatively minor lung changes which it is not necessary to detail now. There is a longer report of the same date. The doctor wrote at p 4 of a relatively small profusion of asbestos related pleural plaques. In addition he wrote:

He has a couple of areas of atelectasis on the left side and a rounded opacity posterior to the aorta which is slightly suspicious in appearance and is the subject of current concern among his attending physicians.

27. Dr McKenzie wrote that Mr Ness has had definite occupational exposure to asbestos during at least two periods of his working life. He considered that the exposure was sufficient to cause ARPD but not sufficient to cause pulmonary asbestosis. He did not think that the plaintiff was of significantly increased risk of developing lung cancer. There is a later report of 27 April 2000. I do not think it takes forward any of the issues to be determined in the court case.

28. In light of all of the available evidence and bearing in mind that I have yet to say something about the nature of the plaintiff's exposure to asbestos, which I will attend to in a moment, it seems to me to be more probable than not that his exposure to asbestos in the workplace has produced the conditions of the lung which I described at length including the carcinoma of the left lower lobe which was surgically resected by Dr Bayfield. I say so because the preponderant bulk of opinion is to that effect and I have given the detail of that already.

29. As regards the plaintiff's exposure and the nature of it, he has, as I have mentioned, set it out in his affidavits and in the evidence he gave in court. I do not think it is necessary to go to the detail of it except to say that there were times in his employment with the State Rail Authority when the exposure was high.

30. To the extent that submissions were made criticising the plaintiff's credit I reject them. He seemed to me to be a man telling as best he could what happened to him in the workplace. The things that he was saying were inherently reasonable and his manner of saying them was straightforward and did not seem to me to involve exaggeration. He was a plain man speaking plainly. I accept his evidence and I do so with a fair margin of comfort.

31. To the extent that two occupational hygienists were called and gave conflicting opinions about the level of exposure it seems to me, firstly, that each of them was attempting a very difficult task, that is to look back to the period of the plaintiff's employment at the State Rail Authority to use the words from legal documents to provide information about exposure and then to produce measurements of that exposure. The difficulty was acknowledged by Mr Pickford when he gave his evidence. If one or other of them is to be preferred for some reason I would prefer Dr Francis' evidence to Mr Pickford's. Firstly, she took the available evidence and used her experience to provide estimates of exposure. He on the other hand simply took her figures, inserted some different suppositions into them and drew different conclusions. That did not seem to me to be a compelling method of producing a professional opinion. Secondly, Mr Pickford produced figures in two ranges, the lower range produced estimates of exposure which were so low that if one took five fibre ml years as representing the minimum exposure above background exposure in the community this plaintiff worked for six years or so in the State Rail sheds and was exposed to less asbestos than a man in the street. That seems to me to be improbable.

32. I thought the method adopted was unsatisfactory and some of the conclusions were untenable in Mr Pickford's opinion. If it matters I think Dr Francis' opinion is to be preferred. However, I go back to where this judgment started to the facts set out so robustly by Dr Clarke, that we have here a non smoker exposed to a known carcinogen. The proof of the exposure is not to be found in scientific opinions but in his own body. The changes are there. The conclusions to be drawn have already been stated. I found the venture into the field of occupational hygiene to be unproductive of useful material in this case.

33. I accept Professor Henderson when he says that he regards the plaintiff's lung cancer as an indivisible singular outcome of his total cumulative exposure sustained over many years and in this respect the railway workshop exposure and the Mona Vale Hosptial expsoure which each have contributed causally towards the induction of his lung cancer. Transcript p 92.

34. The consequence I think that the plaintiff is entitled to a verdict against the defendants.

35. As regards damages the approach of the parties has been helpful. The plaintiff through his counsel has submitted a schedule which has aided submissions to take place with economy. The first matter I wish to address is the question of general damages. If one accepts, as I do, that the cancer is one of the results of the exposure to asbestos learned counsel for the first defendant thought that a proper figure for general damages in that circumstance was about $130,000. Learned counsel for the plaintiff put a slightly higher range on the figures than that. The plaintiff has had breathlessness for 10 years. He has had the painful surgery associated with his cancer. He has had his activities restricted. He lives under the shadow of doubt as to how effective his treatment has been. It seems to me that an appropriate figure for general damages in the case is $145,000.

36. Interest at 2 per cent on that part of general damages relating to the past over 10 years, namely $80,000 the figure I think will be $16,000.

37. As regards the loss of expectation of life everyone in the case has accepted the assessment of the treating surgeon Dr Bayfield that the plaintiff has a 50 per cent chance of survival. Further, Dr Clarke observed that getting past two years after surgery is critical in lung cancer cases. The plaintiff has not quite yet made two years since surgery but is now at about 20 months. The life tables suggest the plaintiff has about 11 years of life left to him, apart from recurrence of cancer. The submission was made that in the prevailing circumstances if one allowed $5,000 for loss of expectation of life that would be reasonsable. I think it is. It is a difficult matter to be any more refined about. For example, if cancer does recur, we cannot know when it will occur and any number of calculations might be undertaken reflecting various chances. I bear that matter in mind and I think that the figure submitted for the chance of losing life in the circumstances is a reasonable figure and I allow $5,000 on that account.

38. A notice has been received both from the Health Insurance Commission and MediBank Private about medical accounts which have accrued to date, they total $20,850.25. The mathematics do not cause the parties any trouble but orders have been agreed which will be intended to take account of the fact that it may be possible to obtain some refund from the Dust Diseases Board, although the position in that regard is unclear at this stage. In terms of the calculation of damages the amounts to be included and certain orders made by consent in respect of those matters.

39. We come then to the question of damages for the provision of care. There is a period from 1 August 2003 to 30 August 2003 immediately following surgery. A claim has been submitted in respect of this period which totals $8,415. The parties accept that that approach is reasonable in this case and there is no dispute about that figure. That should be included.

40. There is then a period from 1 September 2003 to 30 November 2003. The amounts claimed were refined in the making of submissions so that what is now claimed for the provision of care is one and a half hours per day (see transcript p 26) at an agreed rate of $27.50 per hour. That will throw up a figure of $3,712.50. The figure is for personal support of the plaintiff and it seems to me is reasonable. A submission was made that because no services were in fact provided for him and he was left to muddle along on his own as best he could that no allowance should be made in respect of that period. It seems to me that the correct appraoch is that there was a need in the plaintiff in respect of that period which was not met and the need might properly be measured by the amount submitted, that is $3,712.50 and therefore that should be included.

41. There is then the question of domestic assistance or care at the same rate from 1 December 2003 to date. The allowance claimed is for an hour and a half a day, the rate is not the subject of dispute, $27.50 an hour. The same submission is made in respect of that claim, that is that it ought not be allowed because in fact no expense was incurred. I think for the same reason, however, that the amount calculated in accordance with those figures ought to be allowed and the amount thrown up is the sum of $7,002, $1,680 and $2,520. The total to be allowed in respect of past care therefore is $23,329.50.

42. As regards future care the picture is complicated by the 50 per cent chance that the plaintiff's cancer will recur. The plaintiff has approached the matter on the basis that two calculations should be done. Firstly, the need for care should be calculated on the footing that the cancer will not recur and as there is a 50 per cent chance that that will be the correct position 50 per cent of the amount thus calculated should be allowed. The second calculation is to assume that cancer will recur. The need for care in that circumstance should be calculated and half of the amount included. The approach seems to me to be reasonable as far as it goes. What we are unable to tell is, for example, if cancer does recur when will it recur. If it recurred in the near future that would have an effect on the calculations; if it occurred after say five years that would produce a different effect on the calculations. Acknowledging the difficulty I can think of no other way to approach the matter mathematically than the way the plaintiff has approached it in submissions. There will be give and take either way depending on, whether, if at all, cancer recurred.

43. Broadly speaking and subject to another matter to which I shall come in a moment, I accept the plaintiff's approach to the calculation of damages for future care. Another matter which causes concern is there are two amounts claimed for the provision of care in the last six months of the plaintiff's life in the event that the cancer returns. Fifty per cent of the calculated figure is claimed in accordance with the approach that I have described. Learned counsel for the second defendant submits that if the plaintiff was in such a condition, that is he was suffering from a recurrence of cancer and in need of the care for which compensation is sought, on the probabilities he would no longer stay at home but would go to some place where such care could be provided to him. If that were done the Dust Diseases Board would pick up the bill for it and hence there ought not be included in the damages any amount in respect of those periods. By way of submission the response made to that approach was to say that this was never put to the plaintiff, and that is true. Further, the plaintiff testified at p 26 of the transcript that he wanted to stay at home and get in outside help if he needed it. He was not challenged about his intention. I think those matters are true and further the amounts claimed in respect of those periods are very modest. For months one to five in the last six months of his life a total amount of $8,995 is claimed. It is the product of calculations of a number of hours per week producing a cost of $1,872.50 per week for 21 weeks. The lump sum thus thrown up has been deferred by application of the tables and then 50 per cent of the amount thus arrived at has been claimed.

44. The deferral calculation is filled with difficulty too because one can only guess at the period for which deferral ought to be undertaken. In fact a deferral was done on the basis of a deferral for three years. In respect of the last month of the plaintiff's life a total sum of $4,054 is claimed. That too is modest as these things go. Acknowledging the difficulties associated with the calculations the Court can only do what is possible. The submissions advanced seem to me to be reasonable and I accept them. The amounts of $8,995 and $4,054 should be included in the damages.

45. By way of summary then I think what has been said may be summarised in this way;

General damages $145,000.

Interest on the past component thereof $16,000.

Loss of expectation of life $5,000.

Past medical expenses both HIC and MediBank Private $20,850.25.

Past care $23,329,50.

Future care - firstly, on the footing that cancer does not recur the amount will be the total of the following sum $67,130, $4,900 and $7,350, that is $79,380.

Secondly, if the cancer does recur the amounts are the sum of $18,851, $688, $2,064 plus $8,995 plus $4,054.

The total of those amounts for care is $114,032.

The total of the verdict then will be the sum of those various amounts $324,211.75.

I enter a verdict and judgment for the plaintiff against the defendants for $324,211.75.

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

46. The plaintiff is entitled to indemnity costs from a date shortly after 8 March 2005 when its Calderbank offer was made. The defendants were entitled to a little time to consider the position, but the resumed hearing was looming in the near future. I think what should happen is that the plaintiff should have indemnity costs from 10 March 2005 onwards because of the Calderbank offer and the fact that he achieved a result more favourable than the offer contemplated. I agree with the submission advanced by the second defendant that the course of the trial was affected and lengthened by the approach of the first defendant pursuing the matters which it pursued through the occupational hygienists and like matters. I think that the extension of the proceedings was unwarranted in that respect.

47. I propose therefore to order that the first defendant indemnify the second defendant in respect of any amount paid to the plaintiff by way of indemnity costs ie over and above party and party costs pursuant to the order previously made.

48. By consent the judgment is not to be enforceable in respect of the amount of medical expenses until the Dust Diseases Board has determined whether or not it will pay them.

49. I grant liberty to apply for reconsideration relating to medical expenses.

50. The one remaining matter in the case is a determination as between the defendants of the contribution to be made by them as tort feasors pursuant to s 5 of the Law Reform Miscellaneous Provisions Act 1946.

51. For the State Rail Authority it is submitted that whatever may be said about its culpability by the time the hospital complex at Gosford employed the plaintiff there had been knowledge in the community for 25 years or thereabouts of the dangers of asbestos and that this factor weighs heavily in the scale when moral culpability is to be determined.

52. For the second defendant it is submitted that culpability extends not only to knowledge but to the circumstances in which employees are employed and that in this respect the conditions in which the plaintiff employed were to use my term, not counsel's, "gross."

53. Further, it is pointed out that comparisons of the intensity of the exposure were undertaken by Dr Francis, whose conclusion was broadly speaking that the State Rail exposure was responsible for 79 per cent of the plaintiff's exposure and the Central Coast Health Service exposure was responsible for 21 per cent.

54. Professor Breslin in his initial opinion would have the blame allocated 20 per cent to the second defendant, 80 per cent to the first. Dr Lee thought that 10 per cent might be blamed on the second defendant and 90 per cent on the first. Each of the submissions has some force. Ultimately, of course, such an assessment is not a matter of science. Nonetheless the nature of the exposure at State Rail was considerably more oppressive than the nature of the exposure at the hospital service. Having regard to the opinions which have been expresed but giving some weight to the submission about knowledge being accumulated with the passing of time it seems to me that the contribution to be made by the respect of defendants is that the first defendant should bear 75 per cent of the verdict and that the second defendant should bear 25 per cent; that is to say of the verdict and costs.

55. The judgment for verdict and costs should be borne by the defendants in those proportions.

56. On the cross-claim brought by the second defendant against the first defendant verdict for the cross-claimant the second defendant for $243,158.

57. On the cross-claim brought by the first defendant against the second defendant verdict for cross-claimant against cross-defendant in the sum of $81,052.94.

58. Each party to cross-claims to pay own costs of the cross-claims.

Mr D Letcher, QC with Mr A McSpedden instructed by Turner Freeman appeared for the plaintiff

Mr J Gracie instructed by Moroney Betts appeared for the first defendant

Mr B Ferrari instructed by Thompson Cooper appeared for the second defendant