Nielsen v State Rail Authority of New South Wales

[2005] NSWDDT 52

Dust Diseases Tribunal

of New South Wales

CITATION:	Nielsen v State Rail Authority of New South Wales & Ors [2005] NSWDDT 52
PARTIES:	Kenneth Leslie Nielsen State Rail Authority of New South Wales Power Technologies Pty Limited (formerly International Combustion Australia Limited) Delta Electricity
MATTER NUMBER(S):	316 of 2004
JUDGMENT OF:	Curtis J at 1
:-
DATES OF HEARING:	6 October 2005
DATE OF JUDGMENT:	10/12/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr G F Little, SC instructed by Turner Freeman FOR FIRST DEFENDANT: Mr A Parker instructed by Moroney Betts. FOR SECOND DEFENDANT: Mr T Rowles instructed by Carroll & O'Dea. FOR THIRD DEFENDANT: Mr S Kettle instructed by Goldfrick Farrell Mullan.

JUDGMENT:

Introduction

1. Mr Kenneth Leslie Nielsen, who is now 65, suffers from breathlessness caused by asbestosis and asbestos-related plural thickening contracted as a result of exposure to asbestos dust and fibre in the course of his occupation as a boilermaker. He was relevantly employed by the State Rail Authority of New South Wales between 1956 and 1961 at the Cardiff and Broadmeadow railway workshops, and by Power Technologies Pty Limited between 1961 and 1968 on construction of the Vales Point and Munmorah power stations, and between 1978 and 1980 on the Wallerawang power station.

2. He sues the State Rail Authority, Power Technologies, and Delta Electricity for damages in negligence. Each defendant owed to him a duty of care. His injuries were foreseeable and preventable by reasonably practicable measures. No defendant submits that Mr Nielsen is not entitled to a verdict.

3. The issues for determination are first, the quantum of damages and secondly, the division of liability for these damages between the State Rail Authority on the one hand and the jointly liable Power Technologies and Delta Electricity on the other hand. Each defendant accepts that in this particular matter the entirety of the damages is divisible between the sequential tortfeasors.

The plaintiff's exposure to asbestos

4. Mr Nielsen commenced employment with the State Rail Authority New South Wales on 8 February 1956 as an apprentice boilermaker at the Cardiff workshops. With the exception of a period of approximately 8 months, when he was at the Broadmeadow workshop, he remained at the Cardiff workshops until his resignation on 23 May 1961. There was little exposure at Broadmeadow where Mr Nielsen worked with asbestos on only six or eight occasions.

5. At Cardiff Mr Nielsen occasionally worked in close proximity to labourers removing asbestos insulation from the boilers of locomotives. He also removed asbestos himself on occasions in order to gain access to parts of locomotives which required running repairs. With the exception of a period of six months he was exposed to asbestos on average twice each week. In that particular period he was moderately exposed to asbestos every day of the working week in a particular shed where boilers were stripped of asbestos.

6. At the Vales Point and Munmorah power stations, between 1961 and 1968 Mr Nielsen worked installing boiler tubes. He worked in close proximity to laggers applying asbestos insulation to tubes. The tubes were installed in order from the topmost to the lowermost and the laggers worked above the boilermakers in sequence following the construction downwards. Mr Nielsen described this exposure thus:

When the laggers were working above me I was covered in asbestos dust. At the end of my shift I was white with dust. The dust was so thick that it was visible in the air around me. It was like a snowstorm at times. The asbestos dust would get everywhere, in my hair, all over my clothes and on my skin.

And further:

My exposure to asbestos was particularly heavy at the power stations. The dust at the power stations was so thick that a lot of the time I would walk around spitting the dust out which I could feel in my mouth because it was so thick when the laggers were lagging.

7. Mr Nielsen left his employment at the Wallerawang Power Station before the laggers commenced lagging the boilers, however he did work there for a short time in the presence of laggers insulating pipe work. Delta Electricity has admitted that asbestos was used in insulating the steam pipes at Wallerawang. While Delta's admissions that asbestos was used in the insulation of steam pipes at Wallerawang do not bind Power Technologies, that defendant does not call evidence on the issue and I draw the inference that asbestos was used in the presence of Mr Nielsen from his description of the material used by the laggers at Wallerawang as similar to that which he encountered at Vales Point and Munmorah.

8. I find that Mr Nielsen was exposed to the inhalation of asbestos dust and fibre at each of the Vales Point, Munmorah, and Wallerawang power stations.

9. Mr Nielsen has estimated that 90 per cent of his overall asbestos exposure occurred whilst he was working for Power Technologies at the Vales Point and Munmorah power stations. He states that his exposure at the State Rail Authority was intermittent and not as heavy as his exposure at the power stations.

10. State Rail Authority tenders the opinion of Dr David McEvoy, a consultant respiratory physician who examined Mr Nielsen on 9 November 2004 and prepared a report dated 24 November 2004. Dr McEvoy took a detailed history from Mr Nielsen consistent with his evidence before me and concluded that on a time weighted basis his exposure to asbestos fibre dust was 25 per cent due to his employment with the State Rail Authority and 75 per cent due to his employment with Power Technologies at the power stations. I accept that Dr McEvoy by virtue of his work as a respiratory physician has a certain expertise in the matter and am persuaded to adopt 20 per cent to 80 per cent as the division appropriate to the percentage causal contribution of State Rail Authority on one hand, and Power Technologies and Delta Electricity on the other, to Mr Nielsen's disabilities.

Damages

11. In about 1992 Mr Nielsen was admitted to hospital with pulmonary symptoms and about 2 litres of fluid was drained from his lungs. He completely recovered from this episode and I am unable to conclude that it was related to asbestos exposure.

12. In about 2002 he noted the onset of some breathlessness, however by mid 2004 he was becoming extremely breathless when walking quickly and also when walking up hills. Lung function tests performed on 9 August 2004 showed mild to moderate airflow obstruction with a mild restrictive defect and a moderate reduction of diffusion capacity. Dr Roger Allen estimates Mr Nielsen suffers a respiratory impairment of approximately 40 per cent, although one quarter of this impairment he attributes to obesity. The causes of this impairment, are, in Dr Allen's opinion, moderate asbestosis and moderate to severe plural thickening caused by asbestos.

13. Dr McEvoy upon the same diagnosis believes the current respiratory disability to be 10 to 25 per cent. I prefer the opinion of Dr Allen because it more closely conforms to my conclusions based upon the evidence of Mr Nielsen as to his disabilities.

14. Mr Nielsen is presently able to walk for 100 metres at a slow pace. He cannot run. He feels breathless when he goes to bed at night and has difficulty breathing when lying flat. He has occasional chest pain. In the opinion of Dr McEvoy, Mr Nielsen has a reduced life expectancy of approximately 10 further years rather than 17 years predicted by the life tables. Dr McEvoy says that "during this time he may well develop significant deterioration in his respiratory condition with progression in asbestosis and plural disease resulting in loss of lung function, increasing exertional dyspnoea and incapacity”. Dr Allen also believes that Mr Nielsen's symptoms will progress and shorten his life. I regard the probability of progressively worsening symptoms leading to death as significant in the assessment of damages.

15. It is relevant that Mr Nielsen is not otherwise a well man. He suffers from serious and disabling back pathology, obesity, polyarticular gout, renal impairment, hypertension and diabetes. Nevertheless from he who has little more is taken away.

General damages

16. I assess general damages in the sum of $90,000.

I allow interest on $20,000 for three years at two per cent: $1200.

Loss of expectation of life

17. Because of the possibility that Mr Nielsen's life will be otherwise shortened by intercurrent medical conditions not caused by asbestos I allow the sum of $5,000.

Care and domestic services

18. It is quite apparent from his evidence that Mr Nielsen was, before the onset of his breathlessness, unable to perform most of the physical tasks involved in the maintenance of his house, garden and motor vehicle. It is probable however that as his condition worsens he will progressively require the provision of such services as the provision of meals, laundry, bed making, transport and the like as his condition deteriorates.

19. Ms Leslie Stephenson, an occupational therapist, has prepared a report in evidence in which she concludes that the future cost of care and services may exceed $90,000. I accept the submission of Mr Little SC that a reasonable figure taking into account the uncertainty in such calculations is $45,000.

Medical expenses

20. Mr Nielsen has made application to the Dust Diseases Board for the payment of benefits and the parties have agreed that he may have liberty to apply in respect of past and future medical expenses if this application is declined.

21. The plaintiff is entitled to damages in the total sum of $141,200.

22. Verdict and judgment for the plaintiff against State Rail Authority in the sum of $28,240.00.

23. Verdict and judgment for the plaintiff against Power Technologies Pty Ltd and Delta Electricity in the sum of $112,960.00.

24. Order pursuant to s11A that the plaintiff have leave to claim further damages should he develop mesothelioma, lung cancer or asbestos induced carcinoma.

25. The defendants are to pay the plaintiff’s costs in the same proportion as the division of damages.

Mr GF Little SC instructed by Turner Freeman appeared for the plaintiff

Mr A Parker instructed by Moroney Betts appeared for the first defendant

Mr TM Rowles instructed by Carroll and O’Dea appeared for the second defendant

Mr SM Kettle instructed by Goldrick Farrell Mullan appeared for the third defendant