Oliver v ACN 007 870 484 P/L 7 ORS (No 3) - [2017] SADC 52

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
OLIVER v ACN 007 870 484 P/L 7 ORS (No 3)
[2017] SADC 52
Judgment of His Honour Judge Gilchrist
19 May 2017
TORTS - NEGLIGENCE
ASBESTOS - DUTY OF CARE
CONTRIBUTION BETWEEN JOIN TORTFEASORS
The plaintiff is a man aged 78 who is suffering from mesothelioma which he alleged that he contracted as a result of the negligence of his employer Myer. He offered to settle his claim for $420,000 plus costs some weeks before trial. Myer did not negotiate with the plaintiff at that time but did so some time after the trial had commenced and settled for $485,000 plus costs. Myer seeks contribution from BI, an entity that had sprayed asbestos at the Myer building in Adelaide in 1963. The plaintiff was present when the asbestos was sprayed. He was exposed to that asbestos in the years that followed when he worked in the ceiling space at the store. The plaintiff was exposed to other asbestos at work with Myer that BI was not responsible for.
Whether the claim for contribution should be based on the settlement sum or the plaintiff’s earlier and lower offer. Held: that Myer was under a duty to mitigate its loss and not to incur an avoidable loss and that in the circumstances of this case it failed to do so such that the claim for contribution should be reckoned by reference to the amount that Myer could have and should have settled for.
Further held that if that is incorrect the settlement sum was within a reasonable range.
Apportionment is based on a comparison of the respective culpability and of the relative importance of the tortious acts in causing the plaintiff’s damage.
Held: that Myer is exclusively responsible for some of the exposure; the majority of the exposure was joint, and in respect of the joint exposure, BI bears much greater culpability than Myer, such that BI for liable for 70% and Myer is liable for 30%.
Judgment for Myer in sum of $294,000, plus 70% of the costs that would have been payable by it to the plaintiff had Myer accepted his offer.
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 ss 6(5) and (6); Dust Diseases Act 2005 s 9(3), referred to.
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; Saccardo Constructions Pty Ltd v Gammon (No2) (1994) 63 SASR 333; Sharman v Evans (1977) 138 CLR 563; Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38; (1998) 192 CLR 603; Jantzen v Myer Emporium and Anor (Unreported Dust Diseases Tribunal NSW delivered 8 December 2004); BI (Contracting) Pty Limited v University of Adelaide [2008] NSWCA 210; Hamilton v BHP Billiton Ltd [2012] SADC 25; BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72; Banco de Portugal v Waterloo [1931] AC 452; Harlow and Jones v Panex (International) [1967] Lloyds Rep 509; Bacon v Cooper (Metals) Ltd [1982] 1 All ER 397; BHP Billiton Ltd v Hamilton and Another [2013] SASCFC 75; Geyer v RESI Corporation [ [2013] SADC 122; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327; Chulcough v Holley (1968) 41 ALJR 336; Sullivan v Gordon (1999) 47 NSWLR 319; CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1; Pfieffer v Amaca Ltd and Others [2016] SADC 101 , considered.

OLIVER v ACN 007 870 484 P/L 7 ORS (No 3)
[2017] SADC 52

This is an action for contribution following the settlement of the plaintiff’s claim for damages for personal injury.
The plaintiff, Mr Kenneth Oliver, has mesothelioma. He sustained that disease as a result of his exposure to asbestos in the course of his employment with ACN 007 870 484 Pty Ltd and the Myer Emporium Ltd (collectively referred to as Myer). Myer initially did not admit employment or exposure. It accepted that if both were proved it caused Mr Oliver’s mesothelioma, and that it did so in breach of the duty of care that it owed Mr Oliver as his employer such that it would be liable in tort for his loss and damage associated with that disease.
Myer issued third party proceedings against BI (Contracting) Pty Ltd (BI). It contended that BI was responsible for much of the asbestos that Mr Oliver was exposed to during his employment with it in circumstances where it was liable in tort for the loss and damage that Mr Oliver suffered. Over an objection by BI, BI was joined in the primary action as between Mr Oliver and Myer and BI participated in that hearing. Through the within action Myer seeks to recover from BI a significant proportion of the amount payable as a result of the consent judgment.
On 4 November 2016 Mr Oliver filed an offer in this Court wherein he agreed to accept the sum of $420,000 plus costs and disbursements to resolve his action against Myer.
By letter dated 10 November 2010 Myer invited BI to admit in writing by 14 November 2016 that it was reasonable to put an offer to Mr Oliver to resolve to settle his claim for $350,000 all inclusive, and further that it would be reasonable to accept Mr Oliver’s filed offer. BI declined to accept that invitation.
Myer made no offer to Mr Oliver at that time and by the time the trial had commenced before me on 29 November 2017, Mr Oliver’s offer had lapsed.
After several days of evidence Myer made a concession to Mr Oliver’s solicitors that he had established the fact of employment with it. Just under a week later, on 14 December 2016, I recorded a consent judgment as between Mr Oliver and Myer in favour of Mr Oliver in the amount of $485,000 inclusive of interest and statutory repayments, plus party/party costs to be agreed or taxed, certified fit for senior counsel.
In the primary action as between Mr Oliver and Myer I heard oral evidence in support of Mr Oliver’s claim from Mr Oliver, his three children, Ms Annette Baker, Ms Pamela Oliver and Mr John Oliver, his alleged former employee at Myer, Mr Brian Crocker, the chest physician Dr Mark Holmes, and the occupational therapist, Ms Mareeta Dolling. Myer relied upon the evidence of the chest physician Dr Ral Antic and the occupational therapist, Mr Ben Adcock.
I also had placed before me much documentary evidence.
In connection with the third party hearing Myer applied to tender a number of documents that comprised of evidence given in prior actions involving BI and documents discovered by BI. For reasons previously published by me, I ruled that much of that evidence admissible under the Dust Diseases Act 2005. In this hearing, and over an objection as to relevance, BI called Mr Kevin Hardy, registered nurse, and Ms Catherine King, an expert in the costs associated with aged nursing care.
Although the primary action settled such that I did not have to make any findings in connection with it, much of the evidence adduced at that hearing is relevant to the issues arising in connection with the third party action as to liability. Given that BI does not accept the reasonableness of the settlement as between Myer and Mr Oliver, it is also potentially relevant to that issue.
Based on the evidence presented in the previous and present hearings I make the following findings.
Mr Oliver is 78 years old. He left school at the age of 14 and was involved in aircraft production in the 1940s. After the Second World War he commenced his apprenticeship as a plumber and in 1958 he commenced working in that capacity for Myer. He was initially engaged by Myer to install air conditioning in its Rundle Street store. Over time Mr Oliver came to do plumbing work at other premises operated by Myer, including its bakery in Gouger Street, and several other retails stores.
Mr Oliver was involved in the construction of the air conditioning at the Myer store. The air conditioning comprised of pipework through which chilled water and hot water and steam would flow. These pipes were fitted in the space between the floor and ceiling suspended below. The pipework carrying hot water and steam was supplied by three boilers that were situated at the premises. Some of these pipes were insulated by rope and lagging that Mr Oliver identified as being made of asbestos. When these pipes required repair it was necessary to remove the insulation. Mr Oliver did this with his hands and sometimes with the assistance of a razor blade. The removal of the insulation generated dust. Mr Oliver identified through a photograph[1] the type of rope that he removed. The photograph was of a brochure described as “Bells Asbestos Rope lagging”. He worked on the boilers involving the rope about once a year. Mr Oliver undertook work on the pipes for a day or so at several locations every year.
[1] Exhibit P4.
Mr Oliver also attended a bakery operated by Myer on a weekly basis that generally involved him working on an oil-fired burner. This involved re-tubing the burner and the job could take a day to complete. In undertaking this work Mr Oliver had to remove asbestos lagging that produced dust.
In about 1963 Myer undertook renovations to increase the height and size of its city store. Myer engaged an external contractor to perform the renovations. Mr Oliver was effectively seconded to that contractor to undertake plumbing work. The store was timber framed. As such the renovations required the use of steel columns and beams from the basement up to the tenth floor. The steel columns and beams were sprayed with a fire retardant material that was sprayed with a spray nozzle onto the steel by men wearing a uniform with the words Bradford Insulation on it. Mr Oliver was present when it was sprayed. Sometimes he was only a matter of two or three feet away from the spraying. He noted that the material was initially in powder form and was placed into a hopper to which water was mixed and then the wet mixture would be sprayed onto the steel. The wet material was asbestos.
In the years that followed Mr Oliver frequently worked in the space between the floor and suspended ceiling to undertake the installation and maintenance of plumbing work. On occasions it was necessary for him to remove the asbestos from the steel. He did this by either pulling it away with his hands or using a screwdriver or chisel to do so. This process produced a lot of dust. He undertook this work on almost a daily basis. He worked with other plumbers when he did this work, one of whom was Mr Sydney Bentley. Sometimes when he was working in the ceiling space he brushed up against the asbestos that was on the steel beams and this produced dust. He was never told by Myer about any potential dangers associated with the inhalation of asbestos dust, the disturbance of the asbestos insulation of the beams or of any potential health dangers associated with the use and removal of asbestos rope.
In about 1966 Mr Bentley left Myer and went to work for the Engineering and Water Supply Department (E&WS). He encouraged Mr Oliver to join him at the E&WS and Mr Oliver worked there for about eleven months. Mr Oliver then accepted an offer to return to Myer to resume plumbing, maintenance and repair work. He later was appointed maintenance manager for all of Myer’s stores in South Australia and had around 150 employees working under his direction. In that capacity he would supervise others working in the boiler house. In the course of that work, he was exposed to some dust when those he was supervising removed asbestos rope.
In 1969 Mr Oliver was stationed at Myer’s Tea Tree Plaza store. In 1970 he left Myer and returned in 1975 as its maintenance manager. He left Myer for the last time in 1977.
Mr Crocker started working at Myer in 1955 as a carpenter and worked there continuously for 40 years. He knew Mr Oliver as a fellow employee of Myer. He saw him perform maintenance work on plumbing, piping, hot water systems and air conditioning systems. He spoke of the renovations at Myer’s city store in the early 1960s and of the use of steel frames in connection it. His evidence reveals that the steel beams were sprayed with fire-rated material by operators using a hose. He said that it was a bluish grey substance that when dried turned to greyish white. He described building partition walls and fixing plates being attached to the steel beams. This required pulling the fire-rated material off the beams.
When he became a supervisor at Myer he had up the 20 carpenters under his supervision. He said that the carpenters had their own workshop situated in Victoria Square and that the plumbers had a workshop on the roof of the building in Rundle Street.
The affidavit of Mr Bentley establishes that he was a plumber who worked at Myer between 1961 and 1970 in its city store. He worked there during the period when the premises were upgraded and was present when asbestos was sprayed onto steel structural beams that formed part of the building. He was exposed to dust and fibre whilst working in the ceiling cavities. He was not warned of any dangers of working with asbestos. He was diagnosed with mesothelioma in 2002.
Mr Snelling’s evidence establishes that he commenced working for BI in 1959 as its contracts manager. Amongst other things he supervised the spraying of asbestos as fireproofing material. He knew the then manager of BI, Mr John Kurnow. He left BI in 1962 and became the manager of BI Spraying Pty Ltd. He said that the spray initially comprised of a mix of white and blue asbestos but because of the cost it eventually comprised of only blue asbestos. He said that when the asbestos was applied with a spray about 25% ended up on the ground. He described it as: “downfall like rain”[2]
[2] Myer tender book at 172.
Mr Jantzen’s evidence establishes that he worked as an apprentice carpenter and joiner at Myer from 1960 to 1965 and that he was part of a team of twenty carpenters and three apprentices. One of his jobs was to erect and dismantle temporary walls. He was present when asbestos insulation was being sprayed on to steel structural beams that formed part of the Myer building. He stated that some of the spray went into the air and that he cleaned the floor by sweeping up the asbestos dust and fibre. He described the spray as bluey green. He stated that he had not been provided with a mask nor was he given any warnings about the spray being of any risk to his health. He had mesothelioma.
Business records establish that in 1963 BI supplied 5,175 square yards of sprayed asbestos to Myer.[3]
[3] Exhibit P17.
In August 2015 Mr Oliver attended his local general practitioner complaining of shortness of breath. An x-ray was taken and it revealed fluid around his left lung. Prior to all of this Mr Oliver was in very good health. He had been living with his wife who suffers from dementia. He was her carer.
Following the results of the x-ray, Mr Oliver was admitted to the Victor Harbor Hospital to have the fluid removed. His wife had children from a prior union and it would seem that there are some issues between them and Mr Oliver concerning their mother. As a result, a few months after he left hospital, they placed Mrs Oliver into an aged care facility and there have been issues regarding his access to her. Indeed, he needed to obtain a court order to see her, and when he did, sadly she did not recognise him. As it was, it had been Mr Oliver’s intention to continue caring for his wife at home.
Mr Oliver has little recollection of his initial time in hospital. He recalled experiencing chest pain and fatigue and of being barely able to move. He spent time with his daughter, Annette, at her home on Coobowie, on the Yorke Peninsula. He later returned to his home at Victor Harbor where his granddaughter and her partner stayed with him.
In December 2015 he was again admitted to hospital to have his lungs drained. He was discharged after two days and said that he could breathe a lot a better. His lungs were drained again in February 2016 and at about that time, this being the third time his lungs were drained, he began to be concerned as to what was causing his health issues. He was aware that others, such as Mr Bentley, had succumbed to mesothelioma and he suspected that he might be suffering from the same disease.
He was eventually referred to a respiratory physician, Dr Andrew Scoop, and then to a cardiothoracic surgeon, Dr Justin Chan. On 1 April 2016, Mr Oliver underwent a thoracoscopy and talc pleurodesis, being a procedure undertaken to prevent further accumulation of fluid in the pleural cavity. At that point he was told that he had mesothelioma. He found the aftermath of these procedures excruciating and experienced severe pain down his side. He became very depressed. Sometime later Dr Chan removed a stitch that was used in connection with the incision used for the thoracoscopy. That brought Mr Oliver immediate relief from the pain in his side. However, he remained depressed, fatigued and short of breath.
Mr Oliver then went to stay with his son John, in Alice Springs, where he remains. His heath has improved a good deal in his time there. His depression has lifted and his mobility has improved. The pain relief medication that he is taking is effective. For now he has no cough. His appetite has lessened and he has lost weight. He has diminished strength.
He plans to move back to his home in Victor Harbor for the last phase of his life and expects to be cared for by his children and granddaughter.
Ms Baker, Ms Oliver and Mr John Oliver confirmed the limitations that Mr Oliver spoke about. They confirmed what he understood was their intention to look after him as his condition deteriorated. They described the assistance that they have provided to their father such a preparing his main meals, providing cleaning services and driving him places. For now Mr Oliver is able to wash his own clothes and wash and toilet himself.
Ms Dolling gave estimates of the cost that would have been involved in connection with the paid provision of the services that Mr Oliver’s family had provided him, such as cleaning, laundry, shopping, travel, meal preparation and passive day care for the period from August 2015 to mid-May 2016. She calculated the costs of to be of the order of $2,830 to $3,899 per week. On these figures the amount over the period would be of the order of $110,000 to $150,000. She estimated the costs of external providers providing cleaning, shopping, travel and meal preparation for the period from mid-May 2016 to September 2016 to be of the order of $474 to $824 per week. On these figures the amount over the period would be of the order of $9,000 to $16,000.
Professor Holmes examined Mr Oliver on 8 August 2016. He estimated that his life expectancy was to April 2017. He gave some evidence about some potential costs associated with Mr Oliver’s care and treatment over the remainder of his life.
As at August 2016 he allowed $1,000 for the costs associated with seeing his general practitioner based on monthly visits for six months and fortnightly visits for two months. He allowed $400 for visits to a respiratory physician or oncologist based on two or three visits. He allowed $2,600 for visits to a palliative care centre and consultations with a pain management specialist based on an initial six visits and later weekly visits in the last few months of life. He allowed $3,000 for medication including the cost of Fentanyl patches and potent anti-emetics that are not available on the PBS. He allowed $2,000 for oxygen. He allowed $2,000 for chest x-rays (two or three) and CT scans (one or two). He allowed $30,000 for the possible need for chemotherapy and $3,000 for the possible need for radiation. He allowed $28,000 to cover the cost of hospitalisation, possible surgery and palliative care based on four weeks. He allowed $28,000 to cover the cost of hospice care based on four weeks. He allowed $5,000 based on aids required in his home as he deteriorates such as an over way table, bed pan, commode, hand held showed, lifting chair and hospital bed. He allowed between $20,000 and $30,000 to cover the cost of extensive home nursing.

Dr Antic saw Mr Oliver on 9 November 2016. He confirmed the diagnosis of malignant mesothelioma. He noted that Mr Oliver had made a decision not to use any active treatment such as chemotherapy. He noted that Mr Oliver had improved relative to his earlier situation and that at least for now, pain was not much of an issue. He said that he expected that that was likely to remain the case. He thought that Mr Oliver had benefited from the supportive family care that he had received. He said that the need for this passive care will increase over time. He estimated that the terminal phase would occur between February and April 2017. In terms of future treatment he allowed one x-ray at $48, $250 for blood tests, $980 based on ten visits to a general practitioner, $250 based on two visits to a Palliative Care Specialist, $1,000 for ten Palliative care nurse visits, initially two hours increasing to fourteen hours of home nursing based on $60 per hour, and $450 for oxygen.
Ms Dolling estimated the costs of external providers providing household management at Mr Oliver’s Victor Harbour home, to be of the order of $585 to $939 per week. She assumed that that would commence in about November 2016. She assumed that by December the level of assistance required would increase and she raised her estimates to between $771 to $1,125 per week until the end of March 2017 by which time she assumed that Mr Oliver will have entered the terminal stage and would effectively require full time care.
She assumed a need for care for the period between December 2017 and January 2017 and calculated the overall cost of assistance and care over that period, if provided by an external provider to be of the order of $4,693 to $5,787 per week. On these figures the amount over the period would be of the order of $37,500 to $45,000.
She assumed an increased need for care for the period between February and March 2017 and reckoned the overall cost of assistance and care over that period, if provided by an external provider to be of the order of $6,466 to $9,726 per week. On these figures the amount over the period would be of the order of $50,000 to $75,000.
She estimated to cost and a further increase during the terminal phase to be of the order of $6,500 to $10,000 per week. She also gave estimates of the costs of potential equipment needs such as a wheelchair, hospital bed, commode chair and the like.
Mr Adcock gave evidence that was broadly consistent with the evidence of Ms Dolling.
Mr Harding is a palliative care specialist nurse based at the community health service at Victor Harbor. He also works out of Mount Barker. Mr Oliver has been referred to him, although they have not yet met. He said that as the need of a person with a terminal illness increased, a person such as him would provide an increasing level of care, which can include admission to hospital, which in this case would be the Victor Harbor Hospital. He said that this service was provided at no expense by the Government.
Ms King is a registered nurse and amongst other things she is an accredited Aged Care Quality Assessor. She said that on the information provided to her, she said that if he had sought it, Mr Oliver would have been assessed as eligible for aged care in August 2015 and that had he done so the cost to the estimated time of death would have been of the order of $125,000; that if he entered an Aged Care Facility in May the cost to the estimated time of death would have been of the order of $67,000 and if he did so in December 2016 the cost would have been of the order of $43,000.
The claim for contribution
In determining the extent of contribution I must apply ss 6(5) and (6) of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001. The contribution is to be an amount that is fair and equitable having regard to the extent of each tortfeasors responsibility for the harm.
In connection with similar provisions the High Court in Podrebersek v Australian Iron and Steel Pty Limited held that the proper approach:
...involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.[4] (Footnotes omitted)
[4] [1985] HCA 34; 59 ALJR 492 at 494.
In the context of an action for contribution where the primary action has settled without the consent of the third party, within the rubric of “fair and equitable”, consideration must be given to the reasonableness of the settlement. If the amount of the consent judgment far exceeds the value of the claim, the settlement will not provide a fair basis for recovery and the potential recovery must be limited to an amount that is fair.[5]
[5] See, Saccardo Constructions Pty Ltd v Gammon (No2) (1994) 63 SASR 333 at 338 per King CJ.
The third party contends that this is such a case. It submits that Myer could have and should have accepted Mr Oliver’s filed offer and that had it done so no question of the reasonableness of the settlement would have arisen.
It submits that the settlement of $485,000 plus costs and disbursements was excessive. In particular, it contends that the amount apparently allowed for by Myer on account of Mr Oliver’s future care was excessive on one of two bases.
First, it failed to recognise that many of the services that Mr Oliver has and might require that his family have and will be providing, are services that are available through the public health system at no cost.
Second, it failed to recognise that Mr Oliver’s preference to spend his final days at home with family support did not provide the proper basis for the assessment of his entitlement to damages. It said that the test is not “what is ideal” but rather:
The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost-involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits.[6]
[6] Sharman v Evans (1977) 138 CLR 563 at 573 per Gibbs and Stephens JJ.
Myer contended that its capacity to settle the claim at an earlier point in time for a lesser amount is irrelevant. It focussed on passages from the judgments of King CJ in Saccardo Constructions Pty Ltd v Gammon (No 2)[7] and Hayne J in Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd[8] where their Honours talked about the reasonableness of the settlement being judged by what was known at the time the settlement was reached.
[7] (1994) 63 SASR 333 at 336.
[8] [1998] HCA 38; (1998) 192 CLR 603 at 652.
Next it contended that viewed objectively, the settlement sum agreed upon with Mr Oliver was, at the time of its making, reasonable.
As to the apportionment, Myer submitted that BI should be found to be responsible for 90% of the settlement and 90% of Mr Oliver’s costs and that it should be found to be responsible for 10% of the settlement and 10% of Mr Oliver’s costs.
It submitted that I should find that the asbestos BI supplied was blue asbestos containing crocidolite, and that its causal potency was much greater than that of the asbestos that it was responsible for, being the asbestos rope and lagging on the hot water pipes. It said that BI was a specialist company in the business of spraying asbestos; at the relevant time it had actual knowledge of the dangers of asbestos; it did not give any warning of the danger to Myer or to Myer’s employees; that it knew that much of the sprayed asbestos would miss its mark; and that it knew that over time the sprayed asbestos would become friable and that tradespeople would be working in the ceiling space where the asbestos had been sprayed.
It said that in contrast to this Myer had no actual knowledge of the dangers of asbestos; it was only peripherally concerned in the building industry; and unlike BI, it was not in the business of spraying asbestos.
It asked me to adopt a description made by Walker J in Jantzen v Myer Emporium and Anor[9] where he described BI in connection with the assessment of the apportionment between Myer and BI as “callous and indifferent to the rights of others and that it simply ignored questions of safety when promoting its commercial interests.”
[9] Unreported Dust Diseases Tribunal NSW delivered 8 December 2004.
It asked me to adopt the same approach taken by Walker J who in that case apportioned liability 90/10 in favour of Myer.
BI contended that there was no evidence of the composition of the asbestos that was exclusively Myer’s responsibility and that I cannot assume that it was necessarily less potent than the asbestos that BI sprayed.
It submitted that under the Dust Diseases Act Myer was deemed to have knowledge of the risks of asbestos and that I should approach the issue of comparative culpability accordingly.
It contended that on the facts before me I ought to find that Myer was a very large, well-resourced entity, that was not only engaged in retail but was also involved in a large refurbishment of its city stores and that it had a large well- resourced maintenance team and that this ought not be regarded as peripheral to its business.
Amongst others it referred me to the decision of the New South Wales Court of Appeal BI (Contracting) Pty Limited v University of Adelaide.[10] In that case the trial judge held that the plaintiff’s employer, the University of Adelaide, was liable for 65% of the plaintiff’s loss and BI, being the relevant supplier of the asbestos that was at the crux of the plaintiff’s case, was liable for 35%. Those findings were not disturbed on appeal. In that case the relevant exposure to asbestos occurred in 1961. The trial judge noted that at that time BI had full available knowledge of the dangers of asbestos and that it conducted the spraying of the asbestos. He noted the University did not conduct the spraying and did not have actual knowledge. On that issue the trial judge then added:
Why it did not mystifies me. What was it teaching its medical, engineering and architectural students in 1961? I would have thought a University with a medical school in 1961 would have been teaching its students about mesothelioma and about the Wagner paper. The University’s failing on this point is so far from acceptable standards in my view that it should not benefit from its ignorance.
[10] [2008] NSWCA 210.
I understood BI to contend that I should view Myer in the same way as the trial judge in BI (Contracting) Pty Limited v University of Adelaide viewed the University, such that a similar apportionment should apply here. It referred me to the judgment of the Dust Diseases Tribunal of New South Wales in Jantzen v Myer Emporium[11] where it was found that Myer was a huge employer that “had the resources to research concerns and take precautions to protect workers.”
[11] (Unnreported delivered 8 December 2004).
It pointed to findings made in other cases about the state of knowledge in the early 1960s about the dangers of asbestos.[12] It then added that if I was persuaded that Myer’s lack of knowledge of the dangers of asbestos was not as inexplicable as the University’s, the appropriate apportionment in connection with the joint exposure might be 50/50.
Analysis
[12] For example in Hamilton v BHP Billiton Ltd [2012] SADC 25 Judge McCusker found that by no later than 1963 there were many published papers and articles about the asbestos such that without great difficulty a reasonably resourced entity would have been able to ascertain by research that asbestos was a dangerous substance.
Quantum
Whilst I accept that as a general proposition in a case such as this the focus of the inquiry in connection with the reasonableness of the settlement is the position as it was at the time of the settlement, it is important to note that in both of the cases that Myer referred me to on this issue, the judgments were addressing the issue as to whether it was reasonable to assess the settlement having regard to material that became known after settlement. This is made clear by the following extracts from those judgments.
In Saccardo Perry J in explaining the differences between his approach and that of the majority, said as follows:
…with great respect to the opinions expressed by the majority of the court, I have reached a different conclusion from that held by them. In particular, I am unable to accept the view that in such a case the only issue for the court to determine is the reasonableness of the settlement, having regard to the circumstances as they existed at the time the settlement was entered into.
In circumstances where further evidence has come to light which, if accepted, would result in a lower assessment of the plaintiff's damages, such an approach would result in the third party being ordered to pay a contribution in excess of the amount which it ought fairly be ordered to pay.
It would be wrong in principle to saddle the third party with a liability to pay a disproportionate amount towards a settlement or judgment recorded in such circumstances. Such a result would not be “just and equitable”, having regard to the true “damage” suffered by the plaintiff.[13]
[13] Above cited at 340.
In Unity Insurance the observation of Hayne J about the reasonableness of the settlement being judged by reference to the material the parties had available to them at the time the compromise when read in the context of what followed, namely:
It is not to be judged according to whether material which was obtained later shows that the opposite party could or could not have prosecuted or defended the claim successfully but according to the assessment which could properly be made at the time of settlement of the chances of success or failure.[14]
[14] Above cited at para 130 at 653.
Indicates that he was not commenting on the significance of events that occurred prior to the settlement.
As such I do not regard either case as standing for the proposition that matters that occurred prior to the settlement can never be relevant to the question of the reasonableness of the settlement.
As a matter of principle I can see no justification for not applying concepts such as the duty to mitigation loss[15] or avoidable loss, in an action for contribution or indemnity against a third party. An extreme example illustrates the point. Assume that in a case such as this the plaintiff offered to settle his case for $50,000 plus costs, when on any objective view liability was not seriously in issue and the assessment of damages would be expected to easily exceed $400,000. Assume that the defendant, in the mistaken belief that the plaintiff would not take the case to trial, refused to negotiate and assumed that the plaintiff would bid against himself and put forward an even lower offer. As it was, it misjudged his reaction to its failure to negotiate and the plaintiff decided to have his day in court. Assume that during the course of that trial, like here, the case settled for $485,000 plus costs. Assume that the defendant thereafter sought contribution to the judgment from a third party. I cannot accept that in these circumstances the defendant’s conduct in not engaging with the plaintiff could not be taken into account in determining what is a fair and equitable contribution from the third party. I think the defendant might be regarded as having failed to mitigate its loss or to have incurred an avoidable loss by not engaging earlier in settlement discussions with a plaintiff who, on these assumed facts, plainly wanted to settle the case on terms that were objectively very attractive.
[15] See, for example BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72 at para 63 and the passage in the judgment of Gummow J in Unity Insurance where he said: “In a case such as Edwards, as between the insurer and the insured, the latter was obliged to mitigate its damages and to pursue a reasonable opportunity of compromise of the third party claims in respect of which the insurer had refused indemnity.” [1998] HCA 38 at para 63 (1998) 192 CLR 603 at 625.
That is not to say that whenever there was a prior opportunity to settle for less than the sum ultimately agreed upon, the third party will only be required to contribute to the lesser amount. The duty to mitigate is not an absolute one. Nor is the concept of avoidable loss. Albeit in the context of a contract case, the following passage from the judgment of Lord Macmillan in Banco de Portugal v Waterloo illustrates the point. His Lordship said:
Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.[16]
[16] Banco de Portugal [1931] AC 452 at 506.
In this case, in light of Myer’s invitation to BI to admit that that offer of $420,000 plus costs was reasonable, Myer can scarcely be heard to say now that the proposed settlement was not commercially expedient. Whilst it was under no duty to nurse the interests of the third party[17] it was under a duty to act reasonably.[18] On the face of it, Myer’s failure to engage in settlement discussions with Mr Oliver prior to trial, given the inevitable significant increase in costs that resulted from the decision to proceed, appears to have been ill advised. Whilst the cases make it clear that an aggrieved party seeking recovery from another does not have a demanding burden to discharge to meet a claim of a failure to mitigate or avoid unnecessary loss, in this case Myer has not provided any evidence as to why it did not negotiate with Mr Oliver earlier than it did. All that was put was a submission by its counsel that the issue of employment was still a live issue at trial and that this was a factor in putting Mr Oliver to proof. Of course, it was for Mr Oliver to prove that he was employed by Myer. But the allegations regarding his employment as contained in his statement of claim were quite particular and in the absence of any information that cast doubt over those allegations, and none was ever produced, objectively it might be though surprising that those allegations might be wrong. As it was, the evidence of Mr Oliver’s employment by Myer was overwhelming. In the absence of direct evidence I do not accept that putting Mr Oliver to proof on this issue was a reasonable reason to take this case to trial. I find that Myer’s decision not to accept Mr Oliver’s earlier offer was not a reasonable one.
[17] Harlow and Jones v Panex (International) [1967] Lloyds Rep 509 at 530 per Roskill J.
[18] Bacon v Cooper (Metals) Ltd [1982] 1 All ER 397 at 401.
That being so, the quantum of Myer’s action for contribution should be adjusted to reflect Myer’s failure to mitigate its loss.
In case I am wrong in reaching this conclusion, I will go on to consider whether the settlement subsequently reached was reasonable.
By the time this matter had settled it would have been apparent to all that Mr Oliver was a very impressive witness who was plainly honest and reliable. It had been established that he suffers from a debilitating and fatal disease; that he has endured shortness of breath and fatigue; that he has experienced severe pain following medical procedures; that he requires analgesics to relieve his pain; that he has lost his independence; that he has experienced anxiety and depression; and that in the not too distant future his condition will deteriorate and he will become increasingly disabled and reliant upon others.

It is now three years since the Full Court of the Supreme Court in BHP Billiton Ltd v Hamilton and Another[19] increased an award of damages for terminal mesothelioma to $190,000. I appreciate that the Full Court was not setting a tariff for future cases. Indeed it was at pains to point out that the award was idiosyncratic. Blue J spoke in terms of “Taking into account Mr Hamilton’s individual circumstances”[20] Stanley J said “I consider such an award to be proportionate to the injury suffered by the deceased.”[21] But importantly, the Full Court stated that the prevailing pattern of assessments for general damages in mesothelioma cases was too low and needed readjustment.
[19] [2013] SASFC 75.
[20] BHP Billiton Ltd v Hamilton [2013] SASCFC 75 at para 147.
[21] BHP Billiton Ltd v Hamilton [2013] SASCFC 75 at para 330.
In this case, there were no issues of the type that led this Court in Geyer v RESI Corporation[22] to reduce the award to take into account that fact that the plaintiff there was suffering from a number of other medical conditions that were independently compromising his quality of life and which had the potential to lead to his death before he succumbed to mesothelioma. On the contrary, all the indications are that but for his contraction of mesothelioma, Mr Oliver could have looked forward to several more years of good health and a good quality of life that he has now had taken away from him.
[22] [2013] SADC 122.
Taking all of these factors into account it would have been reasonable for Myer to have anticipated a generous award of general damages for pain and suffering. I have not been informed of the actual advice that Myer received, nor do I purport to actually assess what damages Mr Oliver would have received under this head of loss, but objectively Myer might have been expected to have allowed up to an amount of the order of $200,000 for this head of loss and to have approached its settlement discussions with Mr Oliver accordingly.
Mr Oliver is currently 88 years. It is likely that he will succumb to mesothelioma within a matter of months. Ordinarily, by reference to life tables, he could be expected to live another four or so years. Given his otherwise excellent health he probably would have lived longer. In all the circumstances I think it would have it would have been reasonable for Myer to have anticipated an award of general damages up to $5,000 for loss of life expectancy.
There was a notice of charge to Medicare and the private health fund BUPA that was collectively in the amount of $35,359.60. Given the extensive travel undertaken by Mr Oliver’s family to take him for treatment it was likely that he would have established a claim for travelling expenses of the order of up to $4,000.
By the time of the settlement there was clear and compelling evidence that Mr Oliver had been provided with considerable gratuitous assistance by his family and that he would continue to receive care from his daughters, son and granddaughter, that otherwise would require the provision of paid services. For this he was entitled to be compensated. It is settled law that at common law a plaintiff is entitled to recover as part of his or her claim for damages for personal injury the reasonable costs that he or she would have incurred, measured by reference to market rates, for services that he or she needed that were provided gratuitously by others.[23] Contrary to the submission advanced by BI, given Mr Oliver’s personal circumstances and the obvious improvement in his mental state following the help from his son, I do not consider that Myer could be criticised for not exploring the issue of Mr Oliver’s alleged failure to mitigate his loss and not factoring that in its approach to settlement. Again, without knowing what advice Myer received, objectively it might have been expected to have allowed up to $150,000 for past gratuitous services and to have approached its settlement discussions with Mr Oliver accordingly.
[23] See, for example Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327;
Ms Dolling’s estimate of the cost of nursing aids and equipment at home and the like was speculative and made assumptions that may not eventuate. Much of what Professor Holmes said on this issue was also speculative. It would have been reasonable for Myer to consider their evidence on this topic with some caution
In my view BI’s submission that Mr Oliver will fail to mitigate his loss if he chooses to continue to spend as much time as he can at home and that if he discharged his duty to mitigate he would move into a nursing home and that it would have been reasonable for Myer to approach this issue from that premise has little to commend it. A plaintiff is not required to choose the most inexpensive mode of treatment or support. Moreover, in assessing what is reasonable it is appropriate to take into account all of the circumstances, “including the particular plaintiff’s way of life, prospects in life, family circumstances and so forth.”[24]
[24] Chulcough v Holley (1968) 41 ALJR 336 at 338 per Windeyer J.
Here Mr Oliver had every expectation to remain independent. He clearly enjoys a close relationship with his children. It was reasonable for Myer to approach the assessment of future care from the premise that his wish to spend as much time at home with his family was reasonable and not so disproportionately expensive as to render it unreasonable. Again, without knowing what advice Myer received, objectively it might have been expected to have allowed up to $100,000 for future care needs and to have approached its settlement discussions with Mr Oliver accordingly.
It can be seen that even without making an allowance for interest or the potential for Sullivan & Gordon damages in connection with Mr Oliver’s claim in connection with his anticipated ongoing care of his wife,[25] Myer was entitled to assume that the ultimate award of this Court in connection with Mr Oliver’s claim could have exceeded $485,000 plus costs. Viewed objectively, given that by the time of the settlement the only issue as between Myer and Mr Oliver was the assessment of his damages, the figure of $485,000 plus costs was as at the date of the settlement within the range of a reasonable settlement.
[25] In Sullivan v Gordon (1999) 47 NSWLR 319 the New South Wales Court of Appeal held that if a plaintiff in a personal injury case is deprived by injury of the capacity to provide services to other persons, and the plaintiff’s desire to provide those services constitutes a need, then the commercial costs of replacing those services are recoverable as a separate head of damage. The ruling was subsequently overturned by the High Court in CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1. Pursuant to s 9(3) of the Dust Disease Act “Despite any other Act or law, the Court must, when determining damages in a dust disease action, compensate, as a separate head of damage, any loss or impairment of the injured person's capacity to perform domestic services for another person.” It then goes on to provide that “The effect of this subsection is intended to restore the effect of Sullivan v Gordon (1999) 47 NSWLR 319. It would follow that Mr Oliver could potentially been awarded damages as compensation for his inability, after the onset of mesothelioma, to continue to provide domestic assistance to his wife.
Liability
I now turn to the apportionment as between Myer and BI.
I commence with a consideration of the relative causative significance of the exposures.
The evidence clearly established that while Mr Oliver was employed by Myer that he was exposed to asbestos in the course of that employment. That exposure was in three forms. One was his exposure to asbestos rope and lagging when he serviced the boilers and associated pipework. Another was his exposure to the asbestos as it was initially applied to the steel columns and beams in the ceiling space. The third was the asbestos that was in the ceiling space generally or dislodged from the steel beams that he was exposed to whilst working and supervising others in the ceiling space over many years.
The exposure that Myer was exclusively responsible for was the asbestos rope and lagging when he serviced the boilers and associated pipework. My impression is that in relative terms Mr Oliver was not exposed to large amounts of asbestos when he undertook this work.
The exposure to the asbestos that was applied to the steel columns and beams in the ceiling space was the joint responsibility of Myer and BI.
My impression is that Mr Oliver was exposed to quite a lot of asbestos dust when the steel columns and beams were being sprayed with asbestos and I so find.
I find that during Mr Oliver’s first period of employment with Myer, following the installation of asbestos by BI in 1963 he was exposed to asbestos dust on an almost a daily basis.
On balance I think it likely that the asbestos that was applied to the steel columns and beams contained blue asbestos. However, I agree with BI, that without further evidence, I cannot make any findings as to the composition of the asbestos rope and lagging that Mr Oliver was exposed to and for which it bears no responsibility. It therefore cannot assume that it was less toxic than the other asbestos that Mr Oliver was exposed to at Myer.
The extent of Mr Oliver’s exposure to the BI supplied product was much greater that his exposure that was exclusively within Myer’s domain. BI suggested that the split was of the order of 80/20. I disagree. The evidence does not permit arithmetic accuracy but on balance I find that it was a good deal more than 80%.
I now turn to a comparison of the degree of departure from the standard of care of the reasonable man. In doing so I commence by observing that I do not resile from the view that I have previously expressed that the deeming provisions about knowledge as contained in Dust Diseases Act are not relevant in determining comparative liability on a contribution claim.[26]
[26] See Pfieffer v Amaca Ltd and Others [2016] SADC 101.
In Jantzen, it was found that “Myer was a Department Store only peripherally concerned with the building industry as a consumer of its services and a retailer.” The evidence placed before me paints a different picture. I find that at all relevant times Myer was much more than a mere retailer. It ran an extensive maintenance crew comprising of plumbers, electricians and carpenters. It had real involvement in the renovations and expansion of its city store. It might not have been a front line player but it had more than a peripheral concern in the building industry. It knew that persons such as Mr Oliver would be involved in work that exposed them to asbestos. It admitted that it should have been aware that the inhalation of asbestos fibres was potentially hazardous. It should have appreciated that by allowing him to be present when the asbestos was sprayed and by continuing to direct him to work in the ceiling space and on its boilers it was placing him at risk.
Mr Oliver was not provided with a mask or any other protective equipment when he was exposed to asbestos at Myer. He had not been made aware of the need for any precautions when working in the vicinity of asbestos by Myer or by anyone else. He had no appreciation that the asbestos dust that he inhaled whilst working for Myer could be dangerous to his health.
At the very least Myer should have provided Mr Oliver with a protective mask when working in the vicinity of asbestos dust. Its failure to do so constituted a breach of its duty of care to Mr Oliver. I think it likely that had such a mask been provided Mr Oliver would have used it and had he done so, this would have diminished the potential for him to suffer injury as a result of his exposure to asbestos dust.
As was a sophisticated, well-resourced entity Myer’s ongoing lack of knowledge about the danger of asbestos became increasingly inexcusable. Its departure from the standard of care that would be expected of the reasonable person acting in its position over the period of Mr Oliver’s employment was significant and became increasingly so as the years passed. In saying this, in apportioning liability, I also take into account the fact that when Mr Oliver returned to Myer in 1967 as maintenance manager, he was much less exposed to asbestos than he had been for the earlier period of his employment.
The evidence establishes that at all relevant times BI was aware of the dangers of asbestos. I find that it was aware that a significant amount of the asbestos that it sprayed on the steel beams would miss its mark and be capable of being inhaled by those in the vicinity of the spraying. It should have appreciated that persons such as Mr Oliver would be directed to work in the ceiling space and that they might come into contact with and dislodge the asbestos that it had applied to the beams and that such persons might inhale some of that asbestos.
In my view the culpability of BI is worse than Myer. It was the source of the relevant asbestos product. It installed that product. It knew before it supplied and installed it at the Myer store that it was hazardous and that it could harm those who were exposed to it. It did not provide any warnings or information about the hazards that it presented. It took no steps after it had installed the asbestos to warn Myer of the danger that it presented. Its indifference to the health and safety of those who it knew would be using product that it supplied and which it knew was dangerous was an extreme departure from the standard of care that would be expected of the reasonable person.
When I factor that Myer is exclusively responsible for some of the exposure, that the majority of the exposure was joint, and in respect of the joint exposure, BI bears much greater culpability than Myer, I have come to the view that the appropriate apportionment as between Myer and BI is 70/30, that is BI for liable for 70% and Myer is liable for 30%.
Conclusion
Myer is entitled to recover 70% of $420,000, i.e. $294,000, plus 70% of the costs that would have been payable by it to Mr Oliver had Myer accepted his filed offer. I enter judgment accordingly.