Parker v BHP Billiton Ltd
[2011] SADC 104
•18 July 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PARKER v BHP BILLITON LIMITED
[2011] SADC 104
Judgment of His Honour Judge Lovell
18 July 2011
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE
The plaintiff was employed by the defendant in the shipyard in Whyalla. In 1971/72 he was exposed to asbestos dust from products being used in ship construction. In 2004 he was diagnosed with a dust disease. Defendant's knowledge of the risks of asbestos dust. Extent of information on "risk" in the public domain. Whether risk of injury was reasonably foreseeable. Whether defendant breached standard of care. Discussion of "Shirt" calculus. Discussion s 8 of the Dust Diseases Act.
Held: Risk of dust disease reasonably foreseeable. Defendant breached duty of care.
Expert evidence. General principles. Evidence of plaintiff's expert admissible.
Limitation of Actions Act 1936 (SA) s 36(1a), s 48; Dust Diseases Act 2005 (SA) s 9(2); Acts Interpretation Act 1915 (SA) s 34; District Court Civil Rules 2006 (SA) r 103, referred to.
Cosmetic Equipment Company Pty Ltd v Forrest [2008] SASC 144; Wyong SC v Shirt (1980) 146 CLR 40; Cole v South Tweed Heads Rugby League Football Club and another (2004) 217 CLR 469; Neindorf v Junkovic (2005) 80 ALJR 341; Neindorf v Junkovic (2006) 222 ALR 631; Mt Isa Mines v Pusey (1970) 125 CLR 383; Amaca Pty Ltd v Hannell (2007) 34 WAR 109; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486, per Hayne J at 501; Vairy v Wyong Shire Council (2005) 223 CLR 422, per Hayne J at 462; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486, per Gleeson CJ and Kirby J at 491; Thompson v Woolworths (Qld) Pty Ltd (2005) 79 ALJR 904; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Roman Catholic Church Trustees for the Diocese of Canberra v Hadba (2005) 221 CLR 161; R v Bonython (1984) 38 SASR 45; English Exporters Pty Ltd v Eldonwall [1973] 1 Ch 415; PQ v Australian Red Cross Society [1992] 1 VR 19 at 36; R v Abadom [1983] 1 WLR 126; Milirrpum v Nabalco Pty Ltd [1971] 17 FLR 141 at 161; BI (Contracting) Pty Ltd v University of Adelaide [2008] NSWCA 210; Trevorrow v SA (2007) 98 SASR 136; F v R (1984) 33 SASR 189 at 194; Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449 at 494; Julia Farr Services v Hayes [2003] NSWCA 37; Cockatoo Dockyard v Browne (2001) 21 NSWCCR 544; Gray v Motor Accident Commission (1998) 196 CLR 1; Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Abel v Amaca Pty Ltd [2010] SADC 98; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; James v Hill [2004] NSWCA 301, discussed.
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
The plaintiff suffered from mild asbestosis and benign pleural asbestos disease. He also suffers from chronic obstructive airway disease (non-compensable). Damages for pain and suffering and loss of amenity, past gratuitous care, future care, medical expenses. Medical condition "divisible". Contribution to disease from previous employment.
DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES
Plaintiff sought exemplary damages pursuant to s 9(2) of the Dust Diseases Act 2005. Interpretation of s 9(2). Common law test not applicable,
Held: Plaintiff proved requirement of s 9(2). Assessment of exemplary damages.
PARKER v BHP BILLITON LIMITED
[2011] SADC 104Background
Extension of TimeParticulars
Observations of the plaintiff’s witnesses
The defendant
Use of Asbestos at the ShipyardsCrocidolite
Liability
Evidence of the plaintiff William James Parker
Working conditions - Other evidence
Ian Charles Ewbank
Harry Stewart
Malcolm Frederick Dennis
John Edmund Rayner
John Dennis MarksSummary
The Affidavits of the deceased workersWilliam John Cadoo
Newton Brooks
George Campbell
Ivan Zunic
Roger Charles Doman
William George Hedger
Gary Raymond Beckman
Gerd Richter
Geoffrey Ferguson Pope
Derrick Williams
Walter Wade
Robin Stirling
Rodney KingSummary of the Affidavit evidence
Tendered evidence from trial of Mr King
Summary of tendered evidence from Mr King’s trial
Findings of fact
The Law
Breach of Duty of CareReasonable Foreseeability
Scientific/Medical Evidence
The Wilson report
Dr BecklakeExpert evidence generally
The Evidence of Dr Becklake
Librarian evidence
Other Expert evidence
Gordon James StewartDiscussion
Alan John RogersDiscussion
NH&MRC Documents
Discussion of NH&MRC standards
Discussion on s 8(4) of the Dust Disease Act 2005Findings on Reasonable Foreseeability
Breach of Duty
Breach of Contract
Statutory Duty
Does the plaintiff suffer from an asbestos related disease?
Medical evidenceCommon ground
Medical witnessCausation
Damages
General Damages
Loss of expectation of life
Past Care
Future Care
Medical and Other ExpensesPast
Future
Other contributing medical conditions
Divisibility
Exemplary DamagesCommon Law
Submissions
Does the Court retain a discretion?
Knowledge of defendant
Dust Diseases RegulationsAssessment of Exemplary Damages
Conclusion
Background
The defendant owned and operated a shipbuilding business at Whyalla. Mr Parker worked for the defendant in the Whyalla Shipyards. At the time Mr Parker worked for the defendant it was common practice in the ship building industry to use asbestos related products at various stages of ship construction.
Mr Parker claims that due to his work he has contracted an asbestos related illness. He alleges that the defendant owed him a duty of care and breached that duty of care.
The defendant admits that Mr Parker worked in the Whyalla Shipyards. The defendant denies that he has an asbestos related illness; further even if Mr Parker has such an illness it denies it was due to its negligence.
The plaintiff also sued in contract and for breach of statutory duty. The main focus of the trial was on the question of negligence.
During the trial I also heard evidence in relation to another claimant, Mr Cadoo. The parties by interlocutory proceedings obtained an order that the matters run concurrently. Many, but not all, of the issues were identical. Mr Cadoo, like the plaintiff, had worked for the defendant in the shipyards at Whyalla. Mr Cadoo died in April 2003.
As they are separate actions I will deliver separate judgments. However it was agreed that evidence called in Mr Cadoo’s matter was generally (with some specific exceptions such as Mr Cadoo’s medical condition) admissible in this matter. Due to Mr Parker and Mr Cadoo working at different times not all of the evidence in this matter is admissible in Mr Cadoo’s claim; Mr Parker worked for the defendant for a time after Mr Cadoo had finished.
There will be references to Mr Cadoo’s case in this judgment. Some of the exhibits referred to in this case carry an exhibit number from Mr Cadoo’s case.
Extension of Time
It was agreed at trial that if the plaintiff required an extension of time such an order was not opposed.[1] While I did not hear full argument on the point it is likely that the plaintiff came within s 36(1a) of the Limitation of Actions Act 1936 (SA). However as the order was not opposed I make an order pursuant to s 48 of the Limitation of Actions Act 1936 (SA) extending the time as far as necessary for the bringing of this action.
[1] T 262.
Particulars
The defendant tendered a request it had made of the plaintiff’s solicitors for further particulars of its Statement of Claim. Also tendered were the particulars given.[2] It was submitted that the plaintiff could not rely on evidence that was given at the trial which fell outside of the particulars given.
[2] Exhibit D18.
The issue of evidence being led outside of the particulars was initially raised by the defendant early in the trial. I overruled the initial objection but without referring to 6R 103 of the District Court Civil Rules 2006. I invited the defendant to point to or raise any question of prejudice should it arise.[3] Other than a general objection the defendant did not do so.
[3] T 285.
I did not however give permission pursuant to 6R 103. Had I considered the rule I would have, using the criteria set out in 6R 103(3), given the permission.
It was clear that the default, if there was one, was not deliberate.
Further the evidence that was allegedly outside of the particulars was given reasonably early in the trial. The trial had to be adjourned on a number of occasions. There was ample time for the defendant to deal with the additional evidence if it so desired.
Having regard to 6R 103 I give permission, as far as necessary, for the plaintiff to lead the evidence it did that arguably fell outside of his particulars. The plaintiff is entitled to rely on that evidence. In my view given the way the case was conducted there was no procedural unfairness.[4]
[4] Comestic Equipment Company Pty Ltd v Forrest [2008] SASC 144.
Observations of the plaintiff’s witnesses
Mr Parker gave evidence. I accept his evidence. He was a patently honest witness who did his best to assist the court.
An important witness for the plaintiff was Mr Ewbank. I found him to be a most impressive witness and I have no hesitation in accepting his evidence.
A number of other witnesses were called on behalf of the plaintiff. In general I accept their evidence. All were honest and did their best to assist the court. Given that they were giving evidence of events that occurred over 40 years ago their evidence was of a general nature only.
Affidavits of a number of witnesses were tendered. It was accepted that all of these witnesses were deceased. I have taken into account that their affidavits were prepared for the purpose of their claims relating to asbestos related illnesses. I accept that their evidence was not tested by cross-examination. However their evidence showed a consistency with the other affidavits and the other evidence called by the plaintiff that was compelling.
The defendant
It was not disputed that the defendant owned and operated the Whyalla Shipyards. The Shipyards were established in 1940 and operated until 1974 building 57 ships. By international standards it was a small operation but it was one of the biggest shipyards in Australia.[5]
[5] Exhibit P17.
A number of annual reports of the defendant were tendered.[6] Other than shipbuilding the defendant was involved in steel production, coal mining, iron ore and the mining of other metals. In 1974 the Whyalla Shipyards employed 1800 workers.
[6] Exhibit P19.
Use of Asbestos at the Shipyards
During the course of the trial it became uncontentious that the defendant used various asbestos products during it’s shipbuilding activities. The defendant at all times denied the use of crocidolite (blue) asbestos at the shipyards.
The plaintiff tendered material showing the use of asbestos by the defendant and the type of products containing asbestos that were used.[7] In addition the plaintiff’s witnesses generally referred to the use of asbestos. Mr Ewbank gave evidence, which I accept, about that. I do not intend to canvass those matters in detail.
[7] Exhibits P3, P4 and P18.
I find that in line with the evidence limpet asbestos was sprayed on the ships, that asbestos was used in the lagging of pipes and that marinite and K-Lite were also used. Asbestos powder was mixed with water as part of the lagging process. The documents clearly show, not surprisingly, that the defendant was well aware that it used such products.
Crocidolite
It was submitted by the plaintiff that I could infer that crocidolite may have been used at the Whyalla Shipyard.
The evidence from Dr Wilson’s report (discussed later) suggests to the contrary. His report records that:
Samples of the asbestos-containing materials used for lagging of boilers and pipes, and of bulkheads and deckheads were collected to confirm the types of asbestos fibre used.
No crocidolite was found. The samples obtained were from a wide range of areas. The plaintiff relied on the fact that some “blue” asbestos” was later found in the defendants power station coupled with the fact that the same contractors worked at the power station and the shipyard to suggest an inference should be drawn that “blue asbestos” was used at the shipyard. Given the direct evidence from the “Wilson Report” I am not prepared to draw that inference.
Liability
Evidence of the plaintiff William James Parker
The plaintiff was born on 20 October 1925 in England. In 1941 he commenced apprenticeship as a shipwright with the Vickers Armstrong Shipyard and completed that apprenticeship in June 1946.
As a shipwright he was involved in building a ship from “the bottom to the top”. The process adopted in England was the same as what he eventually did in Whyalla. They would start by building the keel and then fashion the hull. From then they would build the sections and put in the frames, bilges and bilge plates. A ship would be built to deck height and then work would be undertaken inside the ship. The only difference when he began to work at Whyalla compared to England was that parts of the ship came in sections rather than having individual plating. Each section could be built elsewhere and brought to the berth.[8] The hull of the ship would be launched and then taken to a berth for the fitting-out. This would include placing an engine in the ship.
[8] T 180.
Whilst working at Vickers Armstrong he had no real knowledge of asbestos that was being used in some parts of the shipyard. He did remember using asbestos blankets.[9]
[9] T 183.
The plaintiff left Vickers Armstrong in 1949 and worked for P&O Steam Navigation as a steward. In 1964 he returned to Vickers Armstrong and worked on submarines.
Mr Parker came to Australia in September 1964 with his family. He did so for employment opportunities. Having answered an advertisement in the United Kingdom he obtained a job with the BHP Whyalla Shipyards. He disembarked in Melbourne and travelled to Adelaide and then to Whyalla.
From September 1964 until September 1966 he worked for BHP at the Whyalla Shipyard.
His duties at Whyalla were similar to the time he spent working at Vickers Armstrong in the United Kingdom. He worked mainly on the construction side when the ship was on the slipway. Occasionally he went to the “fit-out” wharf in Whyalla.[10]
[10] T 186.
On two occasions between 1964 and 1966 he could remember attending the fit-out wharf laying a wooden deck. Other work was going on at the fit-out wharf at that stage.
Whilst working at the fit-out wharf he would be at the direction of a foreman. His time there could vary between two weeks to three months depending on the type of job that was required. He was unable to remember any specific job going back to 1966.
He thought all the other trades would have been working there and he thought that the ships when he went to the fit-out wharf were almost “at completion” and “ready for sea trials”.[11] Sometimes he would work above deck and sometimes below deck. Between 1964 and 1996 he was unable to recall what the atmosphere was like when he worked below deck. At that time the decks were completely sealed but there were apertures in the decks for particular work to be carried out. The ships he worked on were mainly steam ships.
[11] T 199.
Mr Parker had returned to the United Kingdom between 1966 until 1970 as his mother and mother-in-law were both in ill health. He went back to work in England as a planning officer at a shipyard. This was again at Vickers Armstrong and at this time his work was clerical in nature. He returned to Whyalla sometime in 1970 and resumed work with the defendant.
After his return he injured his elbow at work. While lifting a heavy unit a fellow worker let go of a rope and he took the “full weight of it”[12] and injured his elbow. He underwent treatment including injections, a manipulation under anaesthetic and eventually an operation. Mr Parker was on light duties before and after the operation. Mr Parker initially thought he was on light duties for a period of about 12 months[13]. He conceded in cross-examination it may not have been that long.[14]
[12] T 237.
[13] T 202.
[14] T 236.
It is not entirely clear how long Mr Parker was on light duties. It appears from his employment records[15] that he was off work and on workers compensation in late January 1972 to early February 1972. From records of the defendant[16] and a diagram used during submissions that by February 1972 the ship Mobil Australis had been completed and that the ship Clutha Capricorn was under construction. She went to the fit-out wharf in April 1972.
[15] Exhibit P16.
[16] Exhibit D8.
While the records show when the plaintiff was off work they do not assist as to when he was on light duties or for the length of the light duties. He may well have been on light duties both before and after his operation. I accept his evidence and I find that the period of light duties was close to a 12 month period. The evidence does not allow me to be any more precise.
At that stage in 1971 and 1972 he was carrying out different duties altogether due to his being on light duties. Whilst on light duties he worked at the “fitting-out” wharf.
The other trades appeared to be working the same as they had when he had been at Whyalla previously. The plaintiff thought the work practices had not changed.
Whilst on light duties he had various tasks. He described at that time he did what was termed “marking out” for other trades although it was mainly the shipwright trade that he did that for. Some of this marking out took place in the engine room itself and indeed was done all over the ship.
He did not wait for the painters and dockers to clean the surfaces where he was marking out. He would get a broom and sweep the dust into another corner and then cleaners would come along and take it away. He did the cleaning so he could run a “chalk line”[17], and this applied below deck as well as up on the deck. Materials being swept up included pieces of off-cuts of metal, bits of weld and asbestos. When the cleaners were sweeping there was always lots of dust.[18] The cleaners were going around the ship all the time whilst he was present and that created dust.
[17] T 204.
[18] T 203 and T 247.
Mr Parker said that he was aware the engine room was insulated with insulation material and that he watched it being done[19]. He said that was common place. Mr Parker said that this type of work was performed on a regular basis[20] although he was only able to recall one particular occasion. On that occasion, although he could not recall the name of the ship,[21] he was working on the area surrounding the opening where the deck had been lifted out and that he was working on the top staging of that opening, connecting and fitting and making brackets that go round the opening. He was assisting a welder on scaffolding close to the opening. The period he could specifically remember was for about a week or two and during that time he could actually see the men cutting asbestos to fit round various pipes, see them making slurry in a bucket and then they put their hands in and slopped it on the pipes and spread it all over. As mentioned, although he could only remember a specific episode, such activity occurred on a regular basis. Some of the men working there were only 10 feet from him.[22] He agreed it was not a continuous process.[23] He said the atmosphere at that time consisted of a fine mist of dust in the air and little white floating pieces going up in the air. Mr Parker said that he recalled one man using a hand saw to cut pieces and described “white stuff flying off him while he was cutting it”[24]. He said that, quite frequently, when he was at the ship in the fitting-out wharf he would see that sort of atmosphere.[25] The material he described as being applied in the pipe section was asbestos and it was provided by Newalls Insulation.[26] He confirmed seeing Newalls name on various pipe sections although he did concede there may have been another firm as well. He also knew some of the people that worked for Newalls Insulation.[27]
[19] T 201.
[20] T 235.
[21] T 239.
[22] T 244.
[23] T 245.
[24] T 244.
[25] T 202.
[26] T 233.
[27] T 234.
Mr Parker disagreed with the suggestion[28] that the cutting of the sections to go round pipes was done on the wharf and then brought on to the ship. He said they were cut on board the ship to fit the various contours shapes and lengths.
[28] T 246.
He observed this type of insulation process at times other than when he was on light duties although he was not able to be precise.[29]
[29] T 238.
Although he said he saw laggers cutting and fitting insulation to pipes he did not ever see any spraying of asbestos. He did not recall seeing any insulation on bulkheads or engine surrounds.
During the period that he was describing in 1971 and 1972 he was never provided with a mask. He was not warned about the dangers of asbestos. Mr Parker said that no extractor ventilation operated. There was power to the ship but that was purely for the benefit of workers to power their tools, not ventilation.[30] There was no hosing down or dampening of dust or residue before the floors were cleaned up.[31]
[30] T 249.
[31] T 206.
There was no change between 1971 and 1972 in a way that the insulation fitters went about doing their work. He was never warned that contact with asbestos or inhalation of asbestos was dangerous. Had he been told to wear a mask he would have complied but he never saw anybody there wearing a mask. BHP never supplied any clothes.
When he finished work at the end of the day more often than not his clothes were covered with “white stuff” like dust. His clothes would be laundered every second or third day and that was done by his wife.
Sometime in 1972 he went back to his normal work which took him to the slipway. For the next six or seven years he did the slipways and also in the launch department. He also did some fitting-out wharf work. He left the shipyard just prior to its close and he thought he had finished in about December 1977. He noticed no change in the work practices between 1972 and 1977.
From about March 1978 he worked as a leading hand despatch officer for Parsons Engineering Company in Whyalla. This job had no connection with asbestos.
Under cross-examination Mr Parker agreed that it is only in recent times that he has come to believe that exposure to asbestos may have been dangerous for dockyard workers. He thought he received that information through the media.
He agreed that he had discussed the question of the knowledge of BHP with a discussion group and he also agreed that he had a belief that they (BHP) knew but was not sure whether it was true.
At Transcript 216 he was asked:
QAre you trying to put that out of your mind in giving your evidence in this case, that belief that you had.
ANo, I don’t think so.
His concession about what he had heard about BHP in my view did not affect the way in which he gave his evidence. Mr Parker clearly was an honest witness. There was no sign of exaggeration in his evidence.
Mr Parker was cross-examined about a draft letter that was sent by his solicitors in the UK to BAE Systems Marine (Holdings) Ltd. It was in effect a draft letter of claim dealing with his “asbestos claim” in England. Mr Parker said that he had not seen the draft letter before.[32] It was later tendered.[33]
[32] T 226.
[33] Exhibit D2.
It was submitted that the letter contained an inconsistent statement.
The letter sets out in some detail the working history of Mr Parker. When discussing his work at Vickers Armstrong the letter states;
He had occasion from time to time to walk through the boiler room or engine room. On three or four occasions he was exposed to asbestos slurry, lagging and pre-formed asbestos pipe sections when they were being installed.
The plaintiff agreed that he might have walked through the boiler room or engine room but denied being exposed to asbestos slurry, lagging and pre-formed asbestos pipe sections when being installed. He told me he could not explain how that got into the letter.[34] He maintained that he was not exposed in that way at the Vickers yard.[35]
[34] T 225.
[35] T 225 and T 227.
The defendant submitted that it had established a prior inconsistent statement. As the document was eventually tendered I agree.
However the document needs to be looked at in its entirety. On page 2 of the document where the employment history of the plaintiff is set out the following entries appear (amongst others):
September 1964 until September 1966: Shipwright for BHP at Whyalla Shipyard as a shipwright. Some asbestos exposure.
September 1970 until December 1977: BHP Whyalla Shipyard, Australia as a shipwright. Some asbestos exposure.
That is generally consistent with his evidence.
Under the heading “Details of my client’s exposure to asbestos” his solicitor sets out his exposure to asbestos whilst working at Vickers Armstrong not Whyalla. Indeed there is no mention at all of any details of his exposure to asbestos at Whyalla. This was a letter concerned with his exposure at Vickers Armstrong.
What is inconsistent is his statement now, that he did not have the exposure at Vickers Armstrong as suggested in the letter. I accept that it was a letter written on his instructions and therefore by inference he must have given those instructions. The letter does not contain any inconsistency regarding his exposure to asbestos at Whyalla.
Mr Parker QC, when cross-examining the plaintiff, was careful to make the point that he was not suggesting that the plaintiff was lying. Simply that, given the length of time since he worked at both places of employment the plaintiff was confused and that his exposure to the matters mentioned in the letter had occurred at Vickers Armstrong and not at BHP. The plaintiff denied that suggestion.
I have carefully considered the submission of the defendant about the effect of the inconsistency. I accept there is an inconsistency. In my view, taking the inconsistency at its highest, it does not make me doubt the evidence given by the plaintiff as to his exposure at Whyalla nor does it affect my assessment of his evidence generally.
I accept the evidence of the plaintiff as to his working conditions at the time of his light duties. The defendant did not seriously dispute he had some exposure to asbestos at the relevant time: it disputed the extent of the exposure.
The plaintiff did not give evidence about work he did at the “joiners shop”. It may be that he worked there but it was not mentioned by him. Later evidence given at the trial could give rise to an inference that had he worked there his exposure to asbestos may have been greater than assumed. The issue of the joiners shop exposure arose late in the trial.
Given my later findings, particularly in relation to the expert evidence, it is not necessary for me to decide that issue.
Working conditions - Other evidence
Ian Charles Ewbank
Mr Ewbank was born in 1949 and currently lives in Whyalla. His father had employment with Bell’s Asbestos and was ultimately the Whyalla supervisor for Bell’s Asbestos when he retired in the mid 1970s. In about 1965 Ian Ewbank started work for Bell’s Asbestos and was classified as a lagger. His father was his supervisor. Bell’s Asbestos was a company that contracted its services out to various other companies such as BHP to do lagging work.[36]
[36] T 291.
At the time he started in 1965 there were about eight or nine people in Bell’s workforce. He worked with Bell’s Asbestos, Bell’s Thermalag and then Bestobell as the name changed over time. He agreed that as the jobs came in teams of people would be sent off to do the lagging jobs and they would come back and then be sent out to do another job. He worked however mainly in Adelaide and Whyalla. In Adelaide he worked on the Torrens Island power station, at the SAMCOR meatworks and did some work at the Lyell McEwin Hospital. All jobs involved installing asbestos pipe sections. He worked on several tug boats down at Port Adelaide.
Mr Ewbank did not spend all of the year at Whyalla. He would go there for a period of weeks or perhaps months then come back.[37] In 1967 he actually moved up to Whyalla with his father. He did some work around the pellet plant in Whyalla, the steelworks and a boiler house in Whyalla and also a power house in Whyalla. He also did some work at Port Lincoln and Port Pirie.
[37] T 292.
Mr Ewbank left in about 1970 and went to Melbourne for four months working for Coates Insulation and he performed similar work. He returned to Whyalla at the end of 1970 having had that short time in Melbourne and also in Moomba. He worked for Bell’s until 1980. In 1980 he set up Ewbank Insulation Pty Ltd a company which installs new insulation; he still runs the business.
The Bell’s office in Adelaide had a big storage area where they used to keep valves and gaskets. They used to store the lagging there, make mats and fire blankets and do any small jobs that came in. There was also a shed at the headquarters in Whyalla. He agreed that his job was not just lagging.[38] He said his job included installing pipe sections, making mats, any metal cladding that had to be done and they did that in the sheds and also on the boats. They would also make prefabricated items at the Whyalla premises.
[38] T 293.
Mr Ewbank said that he worked at the Whyalla Shipyard from 1965 to 1970 doing insulating pipe work in the engine rooms.[39] Most of it was “pipe sectioned”, which was wired on, and the pipes were covered with asbestos cloth or canvas sewn on with asbestos twine. There were also asbestos mats all around the flanges and “a lot” of those were made on site[40]. He identified Exhibit P3 which was an extract from a brochure showing the type of material used in the pipe sections. It was 85 per cent magnesia pipe sections.
[39] T 269.
[40] T 269.
Mr Ewbank said that they carried the pipe sections on to the ship. If there were a small number they could be carried on loose; if there was a large number they would be delivered into the engine room on a pallet by crane.
The pipe sections were cut longitudinally into halves with the intention of putting the two halves together and binding them with something. They were bound either with wire or covered with asbestos cloth sewn on and later it was glued on.
Other pipes in different parts of the ships were also covered with a similar insulation. For example, he said that most hot water pipes were covered with asbestos rope. Mr Ewbank said that there was more lagging done on a steam ship than a diesel powered ship and he thought there were about 50/50 of those types of ships although he wasn’t really sure.[41] The standard length of the pipe section was about three feet.
[41] T 271.
When fitting these sections they would take a handful on board, put them on the deck, measure them, cut it out and then put it on the pipe. Then he would cut the next piece and just work along the pipe. The bends in the pipe required cutting of the sections. They would be cut by putting the two sections together on a flat surface and then cutting out the sections going around the pipe so that they would fit. They were just called “segmented”.[42]
[42] T 272.
The cutting for the segmented bits was done wherever they were working on the boat.[43] He said it had to be done there “because the pipes were all different sizes and you couldn’t pre-cut them as you just did not know what pipes you were going to be working on”.[44]
[43] T 272.
[44] T 273.
Apart from lagging the pipes in the engine room and other hot pipes in the accommodation block they would do “lagging” in other areas of the engine room and ship. This was done using “compo” and was done by hand.[45]
[45] T 272.
“Compo” was a powder to which water was added to make a mud type substance so you could cover the object with insulation, trowel it on and give it a smooth finish. This was mixed on the fitting-out wharf in a 44 gallon drum. It was mixed on the wharf where possible.[46] The bag would be opened, the contents tipped in, water added and then mixed by hand. It was carried on in 20 litre drums and if they ran short more would be mixed up on board the ship.[47] This could be done when up on a scaffold (this was sometimes referred to as a “slurry”).
[46] T 300.
[47] T 301.
Sometimes more than one layer of the substance would be put on. It was called “L5” and that was a hard set compo. It was flaky and if rubbed with a knife pieces would come off. If, when putting it on the object some fell to the ground, it would dry out and if walked over it would go back to dust. If it was trodden on “it would go like talcum powder really fine”.[48] He said that once it dried out “it was like talcum powder. As you put it on it was wet, there was no guarantee it was going to stick to the job and then it would end up on the floor.”[49]
[48] T 274.
[49] T 301.
Mr Ewbank was asked:
QWhen it dried, or when you were carrying on drying activities other than applying the compo wet, would there be any dust created by this work.
AThere’s plenty of dust.[50]
[50] T 274.
He thought it was about five per cent asbestos in the mix. He wasn’t sure what type of asbestos was used in the 85 per cent magnesia insulation sections.
Mr Ewbank told me about the work he did as a lagger.[51] He said that they would go to Whyalla from Adelaide where they lived. They would go up as a group of about seven or nine and work seven days a week for a period of three and a half to four months until the boat was finished and they would come back to Adelaide until the next job was ready and go back up again. He said that the laggers would go on to a ship, do seven days in a row for two or three months, and then finish. If they were lucky they got one weekend off to come back to Adelaide.[52] They would get on the boat once it was at the fitting-out wharf and do all the pipe work and anything else in the accommodation section. Once the boat was taken on sea trials they went back to Adelaide. He said they were virtually there all the time from the start of the fitting-out wharf to the finish. He worked eight hours a day and that was seven days a week. Tuesday and Thursday he used to work 12 hours a day. Other trades worked around them.[53]
[51] T 274.
[52] T 275.
[53] T 275.
BHP had supervisors called “fitting-out engineers” and they would inspect the work.
He never wore a mask at any time whilst doing the work. None of the BHP engineers told him to wear a mask. He had been told by people who worked at Bell’s that asbestos “could kill you, you could get asbestosis from it”.[54] He said he didn’t worry about it because he was “young and healthy in them days”.[55] When he first started in 1965 he had been told that working with asbestos could be a death sentence. He was told that people had died through asbestos and therefore it could kill him. He was aware that if you had too much exposure it could kill you. However, he really took no precautions because he thought he wouldn’t be doing it all his life anyway and that he was young and he just didn’t look at it that way. His understanding was it could kill you if you worked in it all your life. He thought that if he worked in it for less than that, that he wouldn’t get “it as bad”.[56] As far as he was concerned he wasn’t taking unnecessary risks as they tried to keep the dust down as much as they could. He said it was a dusty job and it created dust. He agreed that they tried to minimise the dust but they couldn’t always do it.[57] They could in certain places but “in other places they couldn’t”.
[54] T 276.
[55] T 276.
[56] T 298.
[57] T 299.
Mr Ewbank thought that the biggest ship he worked was the Iron Hunter or the Darling River. He said that at some stage he was living at Whyalla but they still worked long hours because people were still coming up from Adelaide. On some of the bigger boats they did some of the work on the slipway. As they were putting pipes in the engine room they were lagging the pipes. He thought that was probably the early 1970s.
He also dealt with the question of blocks that were cut to go around turbines, steam drums on boilers, uptakes and the main engine exhaust.[58] The block was called a K-Lite and they use to “mitre them,” cut them on a hand bandsaw and they would be placed for example around the main engine exhaust. As he came to a bend he would run the saw around and cut to the weld on the bend.[59] Some of them were covered with slurry and cloth and others in cladding.
[58] T 277.
[59] T 278.
In relation to the off-cuts and droppings from the slurry he would just pick them up or brush it off and throw the material back in one of the empty boxes to get taken off. The people who did the cleaning never hosed down the material before they cleaned it up.
In relation to the clean-up they would have a bit of a clean-up before they knocked off at night. They would have a quick sweep up and put the material in a box and when the box was full it would be taken off. He denied using a vacuum cleaner. Mr Ewbank said that vacuum cleaners were used “in the powerhouse sometimes” to actually remove asbestos but that was in 1978. He was involved in removing asbestos from the powerhouse. He agreed that there may have been a vacuum cleaner for some cleaning up but that was in the late 70s. He thought there was no-one special within the Bell’s organization who would dispose of the waste it was just done by the laggers.
Mr Ewbank also described how he worked with asbestos mattresses.
AWhen you come to a flange, and they had to get to the flange, to tighten the bolts or a valve and remove the valve, they used to make these mattress type things out of asbestos cloth that could be easily removed. What they were, you’d sew them up like a pillowcase, turn them inside out, then you get the amosite fibre, which they were filled with, you’d push that in – say it was a pillowcase. You’d poke it in as it was going in, because you had to get different thicknesses on different valves. You give it a shake like that so it settles down (DEMONSTRATES). All the dust was coming out while you were doing that. Once you had quite a bit in, it was fluffed up and loose, you’d put it down and start belting it with your hand and it would all spew out the end, you’d see it floating everywhere, until you got it to the thickness you wanted, then you sew it all up, then you go and fit it onto the flange.
QWhereabouts would you do that task.
ASome of it was done back in Adelaide here at Bell’s store, the bulk of them were made in Whyalla. On some of the boats they were made in the engine room.
QThe raw asbestos, the raw amosite you talk about that you filled them with, would that come out of bags or sacks.
ADelivered in hessian bags.
QOn the occasions you made this up on site, would you have those bags with you in the engine room.
AYes. They were all loaded in with the cloth and everything and stacked in these cabins that they gave us to work in.
QHow common was this exercise, that you were filling these and using them.
AYou’d probably have two blokes working on them the whole length you were doing the boat, because it was quite a few on a boat.
QIt might be four or five months of people filling asbestos mattresses on the boat.
AYes.
QThis would be done while the other trades were working around.
AOther trades were in the area, yes.[60]
[60] T 279.
They were made up on two benches. There were two sewing machines. Once filled, they were placed around in the bulkheads for storage.[61]
[61] T 302.
Mr Ewbank agreed that if work was a little quiet they would make mats up back in Adelaide and then send them up to Whyalla. His father used to measure a lot of them, draw them out and they would send the drawings to Adelaide.[62] The size of the mats varied and it depended on the diameter of the flange, the thickness of the insulation on the pipe and whether or not there was a plain flange or it was a valve. He denied having the mats manufactured according to a code on a master sheet.[63]
[62] T 722.
[63] T 723.
Mr Ewbank told me that he saw marinite sheets being used as an insulation material but he didn’t use it.
He said he was very familiar with marinite and he had seen it stored in Bell’s Warehouse down at Port Adelaide. A “Bell’s” brochure relating to marinite was tendered.[64]
[64] Exhibit P4, T 288.
Mr Ewbank said that he observed other contractors spraying asbestos when he was doing insulation work in the shipyard.[65] On the two days that they used to work back they would see the other companies spraying bulkheads. There were two days that they had to work until eight o’clock. He said the bulkheads were all sprayed and “scaffolding was set up for them to be able to reach up to it and work off the scaffolds so it was not all done at ground level”. When he came to work in the mornings he observed the cleanliness or otherwise of the planks. He could see overspray on the scaffolding and the planks and it would have been “a bit of a clean-up, but never get rid of the whole lot”. It was jammed down between the planks. When the scaffolders moved the planks and relocated them they would turn them on the edge to move them and anything on them dropped down low and float on the air. That created dust and you could actually see the fibres floating in the air.[66]
[65] T 289.
[66] T 289.
Mr Ewbank was questioned about the completion of the ship Iron Hunter that was launched on 29 June 1968 and completed on 24 October 1968.[67] Mr Ewbank thought he would have worked on it for a period of four months. He thought he was working a minimum of seven days a week, eight hours a day with the occasional week off. It was suggested to him that the lagging work on the Iron Hunter took eight men seven weeks to do, the men working an average of 48 hours a week per man.[68] He thought that was not possible “for seven or eight blokes to insulate a boat in that period of time”. It was suggested to him that records showed that it took 2,800 man hours to install the insulation and then there was a further 200 hours to install and fit the metal covers. Again Mr Ewbank stated he thought it was impossible in relation to a boat that size that they could have done it “in that period of time.”[69]
[67] T 295.
[68] T 297.
[69] T 297.
The information behind that proposition came from a memo to the Chief Inspector from the Resident Inspector (Whyalla) from the Department of Public Health and dated 6 December 1968. It was material used as part of the “Wilson Report”. I discuss my findings about the “Wilson Report” later in these reasons.
The memo is not a document of the defendant. It appears to be a recording of information provided, most likely from the defendant, to the Resident Inspector who then passed that information on in the memo.
It was not suggested that the memo was a business record of the defendant. No source is given for the information nor are any other documents provided with the specific information. The defendant has not tendered any material nor called any evidence to support the untested assertions in the document.
I prefer the evidence of Mr Ewbank on this point. He was a worker of substantial experience. He worked at the shipyards doing the lagging work for many years. As the plaintiff submitted the document does not prove that the seven weeks mentioned were consecutive. As Mr Ewbank himself said he had the “occasional week off”.
His credibility and evidence was not weakened by the information contained in the document. Mr Ewbank’s evidence was generally supported by a later witness Mr Dennis.
Mr Ewbank agreed that they had to clean-up as they went along and at the end of the day they would do “a bit of tidy up”.[70] He conceded that they would try to ensure “there was no dust but there was no guarantee you could”.
[70] T 300.
It was suggested to Mr Ewbank that, in relation to the process of putting metal sheaths over lagging that would require some scraping to remove irregularities. He denied that the lagging would be “wetted” before the scraping was undertaken and he described the process required for scraping. He said they never “wetted” any insulation down because if they got caught wetting it down, especially putting it on a hot steam pipe, they would have got in trouble. “They wouldn’t let you wet it down”.[71]
[71] T 728.
Mr Ewbank never used a respirator in the early days. When he was doing asbestos removal work they used to use a full face mask. When he was working at Bell’s, including the application of insulation, he occasionally used a dust mask in the latter days and that included putting in fibreglass. Prior to becoming involved in the asbestos removal side of the business he never used any dust mask. Bell’s occasionally made him undertake regular chest x-rays. He thought that was in the late 70s and it was Bell’s who organised it.
Harry Stewart
Mr Stewart was born in the United Kingdom in 1937 and worked with a firm called Harland and Wolff in Belfast; he also worked in Scotland and Liverpool.
He spent four years training as a draftsman and in 1962 under the sponsorship of BHP he came to Australia. He worked in Whyalla from about 1962 until it closed in 1978. He estimated that there were “a couple of thousand men” working at the shipyard. It was a small shipyard compared to Belfast.
Mr Stewart was a “fitting-out” draftsman and his job required him to go on to the ships from time to time.
Mr Stewart said that a ship was constructed on the slipway and then sent over to the “fitting-out wharf”. There the accommodation had to be “fitted-out” as did the engine room. He said that it was just like building a house from scratch.
When he arrived at the yard he was given several introductory tours around the fitting-out shops to acquaint himself with the yard in general. He would visit the ships for a particular purpose such as to address a particular drafting or design issue.
He stated that all the cabins and the engine room casings were “laminexed”. The laminex was covering a layer of fireproof insulation and behind the laminex sheets in the engine room casing there was more insulation, which was sprayed as a precaution against fire.
Between 1962 and 1978 he observed the spraying of limpet asbestos on occasions although he was unable to put a timeframe on it.
Towards the end of his time with the shipyard, which was about 1975, he was transferred to the quality-control department of the shipyard as there were no more orders being placed and drafting staff became superfluous. He examined insulation by doing spot checks on the thickness for example of it. He would sometimes measure areas that had been insulated for costing purposes and generally kept an eye on the production.
Mr Stewart said that pre-form insulation was used around steam pipes. He did observe the insulation being fitted. Sometimes where there was a bend in the pipes the sections had to be cut into triangular sections to go around a bend in the pipe. Similarly around valves, block insulation had to be cut to suit the irregular shape of the valve. Sometimes they were wired in place or they may have been taped.
He stated that he would not be able to say that any of the particular practices that he described in relation to insulation work took place between 1971 and 1972 as distinct from some other time.
In relation to the accommodation areas he remembered marinite as the board that was used for partitioning. Timber was used for the furniture. Formica and chipboard panels were used. He said that about 95 per cent of the accommodation would have had marinite panels and were formica lined. He saw occasions when persons on board ships were working with the marinite.
During a fit-out there could be many trades in the area at one time and it could become quite congested at times.
Painters and dockers would come round and sweep fairly regularly particularly the alleyways as there was so much surplus material lying around.[72] The general atmosphere during an accommodation fit-out in the early stages was messy with trades burning and welding and quite often there would be a haze or a fog as the fit-out started. As it progressed it became cleaner.
[72] T 85.
Mr Stewart said that towards the end of his career in the shipyard people had become a little more conscious of the problems of asbestos. For example in the joinery section there was a dust extractor from the saw. There may have been a move to find an alternative for marinite. He was never officially warned about asbestos but other tradesmen told him to “be careful, try not to breathe it in.”
The limpet spraying was done by contractors. All insulation work was put out as a package deal to the contractors. He agreed that there was a time when the spraying was done at night. This was because other trades were not there. However on several occasions he had seen them spraying during the day.[73]
[73] T 93.
A ship was officially named when the hull had been constructed and it went down the slip into the water. When it came to the fitting-out wharf it had its name. The number of ships a year at the fit-out wharf was approximately two.
Mr Stewart agreed that there were strikes over demarcation which was a feature of work at Whyalla.[74] The painters and dockers had a particular job including sweeping; the other trades would not do that work. However, Mr Stewart did say there was a general trend towards trying to create a good housekeeping policy where tradesmen were encouraged to clean up after themselves. However the cleaning out of the whole accommodation was left to the painters and dockers.
[74] T 87.
However he said marinite was used for most of the time that he was at the shipyard. He visited the joinery shop area on an as needs basis. He would visit the ships for a particular purpose to address a particular drafting or design issue.
Malcolm Frederick Dennis
He currently lives in Whyalla South and is 69 years of age. In 1956 he commenced an apprenticeship with BHP as a sheet metal worker. The apprenticeship took five years and he then worked at the shipyards in various parts but mainly at the fit-out wharf. As a sheet metal worker this involved him in the assembly and construction of air-conditioning systems and exhaust systems.[75] They were prefabricated off the ship in a workshop and brought to the ship and installed. There was air-conditioning in the accommodation areas and air-conditioning in the engine rooms.
[75] T 353.
The work would involve occasionally putting metal studs into bulkheads around the engine room. These would be sprayed with insulation on the bulkhead. The asbestos people would spray the wire mesh around them. He would work next to boiler makers, welders, electricians and painters. He remembered Bell’s doing the lagging around the pipes. He agreed that he didn’t pay much attention to what the other trades were doing.
He went to sea on sea trials to make sure the air-conditioning worked.
His work would actually bring him into contact with insulation materials.[76] At times when they were doing cable tray work, laggers would be lagging pipes right next to them.
[76] T 355.
In the period he was there from 1956 to 1963 he was aware of dust inside the ship when laggers were working. Mr Dennis said you could see the little fibres in the air.[77] He described a white cloth that they were using to lag the pipes with and he said that was the worst thing. He said the laggers were there all the time. He said it was a job that took months.[78] They would work from the time the fit-out started until when he finished. He was unable to say now whether they worked continuously.[79]
[77] T 356.
[78] T 368.
[79] T 370.
The laggers didn’t go with them on the sea trials; they finished just before the sea trials. Mr Dennis was on board doing his work when spraying was undertaken and this was every now and again. Other trades would be working in the vicinity as well. A list of ships worked on by Mr Dennis was tendered.[80]
[80] Exhibit P5, T 358.
He remembered working on the PJ Adams which was the last ship he worked on before he left BHP. The conditions were generally the same with laggers and insulation workers as he described earlier.[81] He went on to say that there were no changes in the work practices over the time that he was working there. A photograph of the Whyalla Shipyard in 1960 was tendered through Mr Dennis.[82]
[81] T 360.
[82] Exhibit P8.
He was never advised to take any precautions at any time about avoiding the inhalation of dust. He was never given any mask or aware of dust being hosed down before it was cleaned up.
When he was welding close to timber, big sheets of asbestos matting would be put over the pipes or whatever was near. If he was working on staging, he would have to put it on the staging to stop anything going through. Staging was scaffolding. The mats were all over the ship and when you wanted one you just went and got it. He said they gave off dust.[83]
[83] T 362.
He disagreed that it was difficult to remember exactly what practices he used at BHP because he said that he loved working at BHP.[84]
[84] T 364.
John Edmund Rayner
He was an apprentice electrician from 14 January 1959 until 14 January 1964 working for BHP at Whyalla. He worked in the loft shop which was part of the shipyard basically on the slipway. He also worked in the “plate and bar” shop which was prior to the launching of the ship and he worked on the slipways themselves. He put electrical cable in on the slipways: it was a temporary cable for lighting and power services throughout the hull of the ship.
He was vague as to how many ships he might have worked on, on the wharf.[85]
[85] T 543.
He said that at the time a ship was launched from the slipway and taken to the fitting-out wharf it was enclosed; it had its decking. There was access to various decks below by the ship’s hull and by vertical ladders and scaffolding. Mr Rayner worked on the accommodation areas, engine room, boiler room and access passages which ran the length of the ship from the bow to the accommodation areas. He came into contact with asbestos and he saw that there was insulation work going on in the ship. He saw pipe fitters putting precast sections of insulation on steam pipes and wrapping those sections with the sheet metal covers.
In relation to fire proofing, he could see in the boiler room and parts of the engine room it had been sprayed on to the outer hull on the inside of the ship. He wasn’t sure who did it but thought it may have been Bell’s.
Generally the electrical cables were pre-cut and someone would mount a cable tray and would then proceed to clip the cables into this cable tray. Mr Rayner was unable to say whether it generated any dust. He worked in the same area as the insulation contractors. He said it was crowded and that many tradespeople were working in the same area.
He saw boilermakers working on the ships and they were using oxyacetylene equipment and using fire blankets for protection.
He was unsure as to whether there was ventilation used below deck.
John Dennis Marks
In 1963 he commenced work as an apprentice boilermaker/welder with BHP. This was about February. He completed his apprenticeship and finished in Whyalla in 1971. Initially he worked on the PJ Adams which was an oil tanker: however there would have been steam used on some vessels.
Steam pipes would be lagged on those ships. Things such as winches would be steam driven and also hot water into the galley.
Mr Marks said that they would wear protective materials such as gloves and a leather apron. The gloves were big silver woven gloves and they also used coarse woven whitish blankets. They were even referred to as asbestos blankets and they were “fire retarding”. He said he didn’t use the blankets all day everyday it was only on particular jobs.[86]
[86] T 599.
He worked on about four or five ships but only two at the fitting-out wharf as most of what he did was on the slipways. He never saw spraying of insulation taking place when he was on board.
Mr Marks said that insulation was often fitted around steam pipes and this was a common occurrence when he was there. He described men working mixing a vat of material and after fitting some of the prefabricated sections they would get a slurry which would be used to fill in all the gaps and then they would get trowelled on.[87] He saw the prefabricated pieces going around the pipe sections being cut by hand. They were hacked until they fitted around a particular bend. They would then be fixed with wire and then the paste would be made. He would be right alongside on occasions. He said the paste was made by a bag being lifted up on to the shoulder and then material tipped in. It did create dust in particular when the packet was opened. He remembers it being done by Bell’s Asbestos. He disagreed with the suggestion that the slurry material was generally prepared by the laggers on the wharf, although he said it may have happened. He remembered a specific instance where it was prepared alongside him.[88]
[87] T 588.
[88] T 596.
He thought the solution was mixed regularly when he worked there for three months inside the ship as opposed to away from the ship.[89]
[89] T 597.
He could see where insulation spraying had taken place although he did not see it sprayed.[90]
[90] T 589.
Mr Marks said he had worked on the super-structure where insulation spraying had taken place and he worked mainly above deck. He would have to grind large patches of insulation off with a grinder. He would do this with a five-inch grinder and a grinding disk and that was a dusty exercise.[91] Other trades worked nearby. He denied that it took place in the open air and said that the grinding took place “inside the confines of the super-structure. We’re talking inside the cabin areas.”[92]
[91] T 590.
[92] T 599.
On occasions when he was welding he had some protection namely leather gloves. Once again depending on what area he was in, he may have to wear longer gloves, particularly if he was in a corner. If he was welding near the bottom of the ship ventilation was supplied to keep the welding fumes away.
Initially Mr Marks denied having made a claim for compensation against BHP. However, on further cross-examination it appeared that he had instructed Turner Freeman in relation to a possible claim as “pleural plaques” had been noticed on an x-ray. It appears the claim may have advanced more than he had anticipated. I do not think that Mr Marks was trying to mislead me about that matter.
Summary
I accept the evidence of these witnesses. I accept the plaintiff’s evidence that he was not warned of the dangers of asbestos. I find that the lagging work was conducted as described. It was work that created a lot of dust both when performing the work and when the area was cleaned up. No attempt was made to “wet’ the asbestos at any stage. The “compo” (slurry) was mixed either on the wharf or where the laggers were working. No masks were provided nor was there any mechanical ventilation inside the hull of the ship at least for most of the time the lagging was being undertaken. The only cleaning up was by use of a broom and not by industrial vacuum cleaner.
The method of operation did not change over the years.
As to the system of “cleaning up” the evidence is not clear. There was a system in place that sweeping was done by someone from the painters and dockers but it appears that some workmen were to clean up as well.
I find the “cleaning up” contributed to the dusty environment.
The Affidavits of the deceased workers
William John Cadoo[93]
[93] Exhibit PC5.
Mr Cadoo was born in 1923 in Northern Ireland. He became a boilermaker working on ships at a firm called Harland & Wolff Limited in Northern Ireland. He spent a significant amount of time installing the boilers into ships. Asbestos lagging was applied to pipes and other steam vessels on the ships.
With his wife Mr Cadoo migrated to Australia in 1960. He worked at the Whyalla Shipyards from 1961 to 1964. Mr Cadoo could recall working on the PJ Adams, the Seaway King and the Seaway Queen amongst other ships.
Mr Cadoo said he was not exposed to much asbestos while working at Whyalla as almost all of his work was done on board the ships before they were launched. He did work on the PJ Adams after it was launched and he was exposed to asbestos dust and fibre.
While he did not see asbestos being sprayed, he could recall asbestos blocks, pipe sections and rope being cut and fitted to size. Dust was released at that time.
Small pieces of insulation would fall to the ground and remain there until cleaned up. When kicked or touched the asbestos released dust.
He would occasionally use asbestos gloves when welding.
Mr Cadoo was not warned at Whyalla (or at any of his work places) about the dangers of working with asbestos. He was not required to wear a mask or took any other precaution to avoid the inhalation of asbestos dust and fibre.
Newton Brooks
Mr Brooks had substantial experience as a lagger, initially working for Bradford Insulation. He used insulation products which were non-asbestos being rock wool and fibreglass and this accounted for 80 per cent of his work at Bradfords. About 20 per cent of his work involved the use of asbestos products including 85 per cent magnesia sections and composition manufactured by James Hardie and also Bell’s Asbestos products such as compositions and asbestos rope. He remembered particularly Bell’s Asbestos products on ships. Bell’s Asbestos made asbestos rope and some of the asbestos millboard.
In about 1956 or 1957 Mr Brooks obtained a licence and began to do lagging work on ships under construction or repair at the BHP premises at Whyalla. In 1960 he incorporated the company Newton Brook Insulation Company Pty Limited and between 1960 and 1967 he performed hands on lagging work and supervised employees undertaking lagging work around Adelaide. This included asbestos limpet spraying work and other insulation work to ships either under construction or repair at the BHP premises at Whyalla.
As a result of chest problems in 1966/1967, Mr Brooks sought medical treatment. This was the first time that he was aware that inhaling asbestos dust and fibre could cause lung injury.
Mr Brooks did a large amount of spraying of asbestos limpet on BHP ships that were under construction at the Whyalla Shipyards. BHP was his main customer over this period. He also carried out a large amount of work with asbestos products such as the use of 85 per cent magnesia pipe sections and compositions, K-Lite blocks and pipe sections, and other various Bell’s Asbestos products including asbestos rope, compositions and asbestos millboard. He did some of the spraying work himself and also supervised it.
Some of the ships he worked on at Whyalla included the Lake Illawarra, the Lake Torrens, the Lake Eyre, the Lake Macquarie, the PJ Adams, the Iron Spencer, the Iron Whyalla, the Iron Yampi, the Iron Knight, the Iron Flinders, the Iron Newcastle, the Iron Barron and the Iron Kembla. The spraying work that he did to the ships under construction was spraying asbestos limpet to the underside of decks and to the bulkheads. This was done in extremely confined areas and he could recall clouds of asbestos being visible in the air when this was done. He also did lagging work with various Bell’s and James Hardie asbestos products to steam lines, boilers, valves and other areas. He described it as “extremely dusty work”. The asbestos compositions were mixed with water in confined areas which created a great amount of dust, the pipe sections and blocks were cut and shaped and this was extremely dusty.[94]
[94] Exhibit P9, paragraph 38 of Newton Brooks’ affidavit.
He stated that the spraying of asbestos was very dusty work in confined areas and this included the mixing of asbestos compositions and cutting and shaping pipe sections and it was also extremely dusty. Clouds of dust were created when working with asbestos compositions and asbestos block and pipe sections. He was never advised by anyone at BHP that inhaling asbestos dust was dangerous and there were no precautions taken on board to prevent persons from inhaling asbestos dust.
This affidavit evidence supports the evidence given by Mr Ewbank and the plaintiff which I have accepted.
George Campbell
He immigrated to Australia arriving in January 1953. Mr Campbell was a painter and docker. He commenced working with BHP a short time after he arrived as his father, at that stage, was already working for BHP at Whyalla. Most of the work he did as a painter was inside the ships at the fitting-out wharf while other trades such as electricians, plumbers, welders and laggers did their work.
Whilst working on the ships he worked in the vicinity of laggers who were installing insulation. They were contractors and they had “Bell’s” written on their overalls. They did a lot of work in the installing of insulation materials on pipe work. This involved them using blocks and moulded sections of asbestos in the shape of half pipes and this work was in the engine room. They used slurry lagging for odd shapes and this was made by mixing a white powder from bags like cement bags with water in a bucket. It was always dusty when the laggers were around.
They trowelled the slurry into gaps in the sections and “lobsters backs” on bends.[95]
[95] Exhibit P9, paragraph 10 of George Campbell’s affidavit.
Mr Campbell worked close to where the laggers mixed, cut and installed the asbestos lagging on pipework. He stated that although there was some portable extractor fans brought into the ships they were not effective; he could still see dust in the air when the fans were operating.
He carried out sweeping work which meant he cleaned up and swept the white dust the laggers had left behind. Clouds of dust would form in the air when he swept and he would pick up the material and put it in a bucket.
Whilst carrying out his work of steel fabrication there were long periods of time whilst working on the ships that he worked in the presence of laggers who were installing asbestos insulation on the pipework and bulkheads. He was present while laggers cut the asbestos blocks and pipe sections and mixed asbestos slurry. Dust was released into the air around and he could see the dust and breathed it. This could go on for weeks to months at a time. This work concluded in late 1958 or 1959.
Mr Campbell left Whyalla and moved to Adelaide but returned in 1961 and again commenced working for BHP at the Whyalla Shipyards. He carried out the same work as before although he spent more time working in the open. He was making pieces for assembly into the ships. He still regularly went on board ships at the fitting-out wharf and whilst on ships worked close to the laggers who were installing asbestos lagging on the steam pipes and bulkheads. In 1964 he left BHP and returned to Adelaide.
He stated he was never given a warning as to the dangers of working with and around asbestos by BHP. He said there was no supervision as to how to reduce the amount of dust in the air and cleaning was done by way of sweeping. There was no wetting down of the dust or use of vacuum cleaners. Although he was given a small gauze mask to protect him from dust while using steel brushes to remove rust he was never issued with a mask to protect him from asbestos dust and fibres.
This affidavit evidence supports the evidence given by the plaintiff and his lay witnesses.
Ivan Zunic
He arrived from Italy on 19 September 1960 at the age of 36. Mr Zunic worked at Renmark for about a year and then went to Whyalla with his brother Angelo.
At Whyalla he worked on the construction of new ships in the shipyard and was employed as a painter and docker. He was employed as a general hand doing cleaning-up, preparation of areas for painting, some painting and some brush work. One of his jobs was to clean up after the laggers. He worked around laggers who put insulation on the pipes in the engine rooms and other hot areas in the ships.
Some of the insulation came in pipe sections and some of it was plaster and some of it rope. On many occasions he would clean up after the laggers.
The asbestos rope was about one inch in diameter and wrapped around pipes in the hot areas. The pipe sections were off-white colour and fitted over the hot pipes. The laggers got them out of the cardboard boxes and cut them with a saw. He saw plaster being put on near the funnels by the laggers. They would put on a layer and then a wire net around it and then finish it with a greyish cloth like a bag. He also saw a spray from a thick pipe being put on the same sort of areas.
He had to clean up the pieces and the dust and the mess left after this work. There was dust in the engine room and cabins after this work. He remembered in the cabins a sheeting about 1.5 to 2 cm thick was put up and cut with saws and it gave off a light coloured dust. He did not know who the laggers worked for.
Whenever he worked inside the ships he was always filthy and covered in dust.
Laggers worked on the ship towards the end of construction just like he did so he was working behind them or around them. The laggers put lagging on the pipes in his presence and they also worked with the pipe sections, rope and plaster and the spraying. He worked on the ships until 1979. He was never given any warning about the dangers of asbestos. Mr Zunic did wear a cotton gauze mask at one stage when he was sweeping up but the work was so dusty the mask would not last a day before it became clogged with dust. He considered the cotton mask useless because of the heat and the dust. He was never given any other mask.
He said that there was always white dust in the air inside the ships from when he started work until the day he left. Whenever he worked in the engine rooms there was always white dust in the air. The dust got onto his skin and also his clothes.
This affidavit evidence supports the dusty nature of the job of sweeping up after the laggers. His affidavit evidence supports the plaintiff’s evidence and that of the other lay witnesses.
Roger Charles Doman
He commenced working for Bell’s Thermalag in January 1970 until December 1973. He then stopped and then did work again from August 1974.
As a lagger Mr Doman carried out both conventional lagging work and spraying work. He generally worked around the Port Adelaide area and in particular at Adelaide Ship Construction. He gave evidence of the types of materials used by Bell’s and the amount of asbestos they contained.
Asbestos mats were used a lot at Adelaide Ship Construction. They were installed on valves and flanges and wherever there was a need for a flexible connection. These asbestos mats were made by Bell’s at their Alberton premises. The mats were made by using asbestos cloth which was cut into lengths. Three edges of the cloth were sewn together on a sewing machine and the cloth was then turned inside out by hand. The cloth was filled with pure amosite fibres which were stuffed into the cloth and then the last edge sewn up using asbestos twine. He actually made some of these asbestos mats. He was aware that Bell’s had a permanent large crew based in Whyalla and that as well as installing the lagging Bell’s made, supplied and installed asbestos mats for use on the ships at Whyalla.
William George Hedger
Mr Hedger was born in England and came to Australia arriving in Adelaide in 1958. He commenced working in the shipyard at Whyalla in April 1958 and he was employed as a boilermaker/welder.
Mr Hedger worked on the construction of two ships whilst working at the Whyalla Shipyards. They were the Lake Macquarie and the Iron Flinders.
While working on the Lake Macquarie when it was at the fitting-out wharf, he was exposed to asbestos dust and fibre nearly everyday that he worked. When the Lake Macquarie had been built he then worked on the Iron Flinders. For the first few months the Iron Flinders was on the slipway and he carried out welding work on the decks. She was then moved to the fitting-out wharf and he thought that was in early 1959. He worked on the Iron Flinders until just before she was completed and he said he was exposed to asbestos dust and fibre nearly everyday. Whilst working on both ships he carried out pipe fabrication and installation as well as welding work.
His work involved jobs all around the ships including in the engine and boiler rooms as well as on the bulkheads. Soon after he installed the pipes they were lagged. As a result he worked next to or in close proximity to the laggers as they installed the asbestos lagging on the pipe work. The asbestos lagging was in the form of prefabricated asbestos pipe sections and blocks, asbestos slurry and asbestos rope. The prefabricated asbestos pipe sections came in half sections and were placed one on top and one below the pipe. They were secured with tape. To go around the corner the laggers cut the asbestos pipe sections into small pieces and placed them next to each other. They would fill the gaps and smooth them over the lagging using asbestos slurry which they made by mixing powder with water in a tub. On smaller pipes the laggers would wrap asbestos rope around the pipes. Asbestos cloth was placed on top of the asbestos lagging and tied into place.
The laggers would cut the prefabricated asbestos pipe sections, blocks and rope with a hacksaw. When they did this the dust and fibres from the lagging would be released into the air. Dust and fibres were also released into the air when the laggers poured the asbestos fibres into tubs to make the slurry. There was always dust and fibre from the lagging in the air around where the laggers were working.
Many pipes were fixed near to the top of the wall or ceiling. When pipes were near the ceiling the laggers used scaffolding which consisted of wooden planks to get to the pipes. As they worked dust fell down from the asbestos pipe sections and the slurry to where he was working below. Dust and fibres and pieces of lagging settled onto the wooden planks of the scaffolds and on to the floor. Nearly all the time he worked on board the Lake Macquarie and the Iron Flinders he worked around laggers. As a result he worked in an atmosphere he said that was contaminated with asbestos dust and fibres.
Mr Hedger estimated he worked on the Lake Macquarie for about six months and the Iron Flinders for about nine months. He thought he was exposed to asbestos dust and fibre virtually every day. It is unlikely that this estimate is correct.
He said he was never provided with a mask while working for BHP nor was he given any supervision or direction in relation to working around asbestos or in relation to dust. He was never told by anyone at BHP that asbestos dust and fibre could be dangerous to his health.
In about September 1959 he obtained employment as a boilermaker with Adelaide Ship Construction at the Port Adelaide dockyards.
He commented on the work done at the Adelaide Ship Construction job which used prefabricated asbestos from Bell’s Asbestos.
The affidavit evidence of Mr Hedger generally supports and confirms the evidence given by the plaintiff, Mr Ewbank and the other lay witnesses called.
Gary Raymond Beckman
He commenced work as an apprenticed plumber with BHP on 13 February 1961. For the first two and a half years he worked in the maintenance section for the whole of BHP.
The second half of his five year apprenticeship was spent working on board vessels at the BHP Shipyard. Mr Beckman said that BHP constructed two to three ships per year and it took about nine months to build each ship. There were usually two ships on the slipway under construction at any time. After the ships were launched they were taken from the slipway to the fitting-out wharf and there were generally one or sometimes two ships being fitted-out at any one time. He worked on every ship constructed or refitted at the shipyard during his employment.
He spent approximately half of his time working on ships under construction on the slipway and half working on the ships at the fitting-out wharf.
During this period of time, he worked alongside many other tradespeople including plumbers, fitters, electricians and painters during the fitting-out of the ships. He entered the ships through an opening cut into the side or through a serious of purpose built stairways and carried out general plumbing work everywhere in the ship from the pipe work in confined spaces under the holds to the pipe work in the accommodation areas, engine rooms and on decks.
Mr Beckman worked in the engine room of ships installing pipes whilst the ships were on the fitting-out wharf. When he did this he was exposed to large amounts of asbestos dust and fibre as a result of working next to and in close vicinity to laggers who were installing insulation materials containing asbestos on the pipe work. This was done by Bell’s Asbestos.
The asbestos lagging came in the form of prefabricated asbestos pipe sections. The asbestos pipe sections were placed, one on top and one under the pipe, and the pipe and then wired into place. Laggers would cut the asbestos pipe sections to size using a handsaw. Dust and fibre was released into the air when the asbestos prefabricated pipe sections were cut. The laggers cut the prefabricated pipe sections into small pieces in order to fit them around the bends in the pipes. They would also use an asbestos slurry that was made by mixing asbestos powder with water and then applied to the pipes by hand. Dust and fibre was released into the atmosphere around where he was working when the laggers cut, handled and mixed the lagging.
Laggers often worked on scaffolds above where he was working. The dust and fibre would fall down and the laggers cleaned up the scaffolds simply by turning the wooden planks over. When they did this the pieces of lagging dust and fibre would fall down into the air.
Dust from the lagging and pieces of lagging settled on the floor, railings of the walkways and on the pipe work. As people walked on the walkways and trod on the pieces of lagging dust fell through on to those working below. The dust on the floor was swept up throughout the day by labourers who when they swept clouds of dust formed in the air.
As well as conventional lagging the ships were sprayed with asbestos. This was done by Newbrook Insulations. For example, it was done on the funnel which begins in the engine room and asbestos would be sprayed directly onto the funnel.
The asbestos spraying was generally carried out at night. His working day generally finished at 4.15 pm although he did a lot of overtime.
He was absent from BHP from 21 April 1966 to 20 June 1968 when he did his national service. After his release from the Army he returned to work for BHP at the Whyalla Shipyards and remained there until May 1977. Throughout this period he said that he was exposed to asbestos dust and fibre whilst working in the engine room on board ships on the fitting out wharf in the vicinity of laggers who were installing insulation materials containing asbestos on pipe work.
Whilst he thought that BHP was generally a safety conscious company no-one informed him of the dangers of working with asbestos. He was not provided with a mask.
The affidavit evidence is consistent with and supportive of the evidence given by the plaintiff, Mr Ewbank and the other lay witnesses.
Gerd Richter
He migrated to Australia in 1952 and began working at the South Australian Railways. In 1955 Mr Richter left the South Australian Railways and moved to Port Pirie where he found a job working for Bell’s Asbestos as a lagger at the BHAS Smelter.
In 1956 he moved to Adelaide and worked for Bell’s Asbestos at their factory at Port Road, Alberton.
In late 1956 Bell’s asked him to go to Whyalla to work at the BHP shipyard. They had a large shed within the shipyard compound. Materials stored in the shed included bags of asbestos composition, cartons of 85 per cent Magnesia prefabricated pipe sections, segments and blocks, rolls of asbestos mats. He carried out lagging work at the fitting out wharf on boilers and pipes on ships.
I reject the defendant’s submissions that his compensable disability will remain relatively static. Clearly his disabilities are going to get worse over time and that part of his disability that is compensable will also deteriorate.
It is not possible to be precise. The level of care required will escalate over time with the majority of “higher” level care being for the latter stages of life and for a shorter period. The latter part of that care will be provided in accommodation other than his home.
Obviously as his health deteriorates his need for additional care will increase. Assessments of future care are usually imprecise. Ms Morgan was not able to estimate when changes to his need for assistance were likely to occur. I am not able to determine an appropriate “deferred multiplier” to use. This applies also to the suggestion that he will need hospital admissions. I have not been given the “costs” relating to hospital admissions, other than Dr Ruffin’s report, nor a time frame as to when they are likely to occur. Strictly speaking any award for such admissions should be dealt with under future medical expenses with an appropriate deferred multiplier. However I will deal with his future needs under this head of damage.
Under this head of damages I award the sum of $40,000 being for the period of time that he requires assistance prior to accommodation being sought away from his home.
I find that Mr Parker will be substantially disabled in about the last 12 months of his life. I have rejected the model suggested by the plaintiff for the care to be provided at home. The claim for that period of time is around $170,000 (a deferred multiplier having been used). I have not been provided with the cost of shared care either in an aged care facility or in a nursing home. It is likely that he will require some hospital admissions particularly in the latter stages of his life.
Shared care would be cheaper than care provided in his home. Hospital expenses may be more than “home care”. I allow $90,000 (before apportionment) under this head of damage.
The total under this head of damage is therefore $130,000.
Medical and Other Expenses
Past
The plaintiff claims a Medicare repayment in accordance with the Notice of Charge of $609.85. I allow that in full. This amount is not subject to apportionment.
The plaintiff also claims gardening invoices[355] in the sum of $2040 being at a rate of $20 per month since January 2001. That was based on an assessment as at the date of trial rather than the date of judgment. The plaintiff’s own evidence was that he required assistance mowing the lawns prior to the onset of his breathlessness. Part of that may have been due to his time being devoted to caring for his then ill wife. Since his wife has died I accept that he has had the lawn mowing services but of course not all of that can be attributed to the diseases related to his asbestos exposure. I allow the $2040 but that will be subject to apportionment.
[355] Exhibit P20.
The domiciliary claim is part of the claim for past care other than the three invoices produced. I allow $15.00 which is subject to apportionment. The evidence does not allow me to make a finding that such payments continued.
Future
In terms of future medical expenses (excluding future accommodation expenses), I note the opinion of Professor Ruffin.[356] A number of the items specified by Professor Ruffin of course may well have been necessary in any event and the plaintiff is only entitled to that proportion that his compensable disability relates to. I note that he has been somewhat resistant to attending medical specialist appointments in any event. I allow $15,000 under this head of damage.
[356] Exhibit P1A, page 4.
$ General Damages 110,000.00 Interest on Past General Damages
(at 4 per cent)12,000.00 Loss of Expectation of Life 4,000.00 Past Medical Expenses
(not subject to apportionment)609.85 Past Out of Pocket Expenses 2,055.00 Past Gratuitous Services 30,000.00 Interest on Past Gratuitous Services
(at 4 per cent as claimed)8,000.00 Future Gratuitous Services
(including hospital etc)130,000.00 Future Medical Expenses 15,000.00 Total before apportionment
(not including the sum of $609.85)$311,055.00 Other contributing medical conditions
As discussed the plaintiff has a number of other disabling medical conditions. I do not intend to go through the evidence as I have already made findings about his medical condition. Clearly his emphysema is the “major” contributor to his breathlessness. His conditions, while having some impact on his overall functioning are not as important as his emphysema and asbestos related conditions.
However Professor Ruffin considered that his asbestos related conditions left him with a 20 per cent disability and that this may increase over time.[357]
[357] Exhibit P1A, paragraphs 6 and 7.
It is not possible to be precise with an issue such as this. Taking all matters into account I find that the compensable disabilities account for 1/3 of his current problems.
Total after apportionment $103,685 to which must be added the sum of $609.85. Thus the total amount of compensatory damages before allowance for “divisibility” is $104,294.85.
Divisibility
The plaintiff was exposed to asbestos while working in England. The plaintiff thought that he was exposed to asbestos more at Whyalla than in England. The information contained within Exhibit D2 would suggest that there may have been more exposure in England than he remembered.
The defendant submitted that on a “time worked” basis a 50 per cent reduction was appropriate. While time worked is not the only factor, in all of the circumstances I am of the view that such an apportionment is the appropriate one. In the circumstances I deduct 50 per cent from his damages for the contribution of his exposure in England to his asbestos conditions.
Total of compensatory damages $52,124.93.
Exemplary Damages
The plaintiff also claims exemplary damages pursuant to s 9(2) of the Dust Diseases Act.
Common Law
At common law exemplary damages could be awarded in cases framed in negligence. A defendant would have to have been shown to have acted “consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff.[358]
[358] Gray v Motor Accident Commission (1998) 196 CLR 1 [22].
Although exemplary damages may be awarded in negligence cases, those awards are likely to be “unusual and rare”.[359] In Gray v Motor Accident Commission, Gleeson CJ, McHugh, Gummow and Hayne JJ observed:
[E]xemplary damages could not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant. Ordinarily, then, questions of exemplary damages will not arise in most negligence cases be they motor accident or other kinds of case. But there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. Cases of an employer’s failure to provide a safe system of work for employees in which it is demonstrated that the employer, well knowing of an extreme danger thus created, persisted in employing the unsafe system might, perhaps, be of that latter kind.
[359] Trevorrow v SA (2007) 98 SASR 136 [1213].
Whilst exemplary damages recognise and punish fault, not every fault warrants such an award.[360] A common expression for behaviour warranting exemplary damages is “where the defendant acts in contumelious disregard of the plaintiff’s rights.[361]
[360] Gray v Motor Accident Commission (1998) 196 CLR 1.
[361] Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118, Trevorrow v SA (2007) 98 SASR 136.
In considering whether to award exemplary damages at common law, the principal focus of the inquiry is on the wrongdoer not upon the party who was wronged. Exemplary damages, if awarded, are in addition to compensatory damages and will be a windfall in the hands of the party wronged although they are awarded to punish the wrongdoer and deter others from like conduct.[362]
[362] Gray v Motor Accident Commission (1998) 196 CLR 1 [15].
Prior to making an award of exemplary damages a court should review all evidence relating to aggravation or mitigation of the defendant’s conduct. The defendant’s motivation for the tortious act is relevant.[363]
[363] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448.
Submissions
The plaintiff submitted that the statutory regime set out in the Dust Diseases Act prescribes a far less onerous test than exists at common law for a plaintiff to obtain exemplary damages.
Section 9(2) states:
The Court should make an award of exemplary damages in each case against a defendant if it is satisfied that the defendant—
(a) knew that the injured person was at risk of exposure to asbestos dust, or carried on a prescribed industrial or commercial process that resulted in the injured person’s exposure to asbestos dust; and
(b) knew, at the time of the injured person’s exposure to asbestos dust, that exposure to asbestos dust could result in a dust disease.
Where a statute of relevant operation has been enacted it is the duty of the Court to start its analysis of the legal liability of parties affected, not with the pre-existing common law, but with the statutory prescription. Legislation of a parliament has an authority that displaces the common law to the extent of the statutory provisions.[364]
[364] Neindorf v Junkovic (2006) 222 ALR 631.
The interpretation section of the Act provides no assistance in relation to the terms used in s 9(2).
Section 9(2) prescribes that a plaintiff has to satisfy the Court of the two matters set out in paragraphs (a) and (b).
Paragraph (a) of s 9(2) provides alternatives as to the first requirement. I will, at the moment, only deal with the first alternative.
The plaintiff in this matter, to establish an entitlement to exemplary damages, must prove:
(a)that BHP knew that the plaintiff was at risk of exposure to asbestos dust, and
(b)BHP knew, at the time of the plaintiff’s exposure to asbestos dust, that exposure to asbestos dust could result in a dust disease.
The hurdles to be overcome by the plaintiff appear to be undemanding.
Paragraph (a) deals solely with the knowledge of the defendant that the plaintiff was at risk of exposure to asbestos dust. The sub-section does not require the defendant to know that the plaintiff was exposed to asbestos dust: simply that he was at risk of exposure. Further the plaintiff does not have to show that the defendant knew the plaintiff was put at risk by the exposure; he simply has to show that he was at risk of exposure. Section (9)(2)(a) refers only to the risk of exposure not that the exposure brought with it a risk of disease.
Sub-section (b) deals with the time at which the defendant must know that exposure to asbestos dust could result in a dust disease; namely the time of the plaintiff’s exposure to asbestos dust.
As with paragraph (a) there is no requirement to show that the defendant had knowledge of a particular exposure over a particular time period: nor is there any requirement on the plaintiff to show that the defendant knew of exposure that would lead to a particular dust disease. All the defendant must “know’ is that at that particular point in time, exposure to asbestos dust could result in a dust disease. There is no requirement for the plaintiff to prove what disease; he simply has to show the defendant knew that exposure could result in a dust disease (as defined).
As mentioned at common law, for a plaintiff to obtain exemplary damages against a defendant he must show the defendant engaged in conscious wrongdoing in contumelious disregard of another’s rights. No such test can be seen in this statutory regime.
Mr Little QC for the plaintiff submitted that the words of s 9(2) are clear and unambiguous. I agree.
In my view the entitlement to exemplary damages is to be derived from the words of the statute. It prescribes a far less onerous test for such an entitlement than that which exists at common law. The plain and unambiguous words of the section show Parliament’s intent.
The fact that the expression “exemplary damages” has a well-known meaning at common law does not, in my view, create an “ambiguity” within the section. I have read the judgment of Barrett DCJ in Abel v Amaca Pty Ltd[365] relating to the interpretation of this section. With respect to his Honour I am unable to agree with his interpretation of this section. I am unable to see a reason for importing the more demanding “common law test” into this section.
[365] [2010] SADC 98.
I accept that in many cases the test is so “undemanding” that defendants, particularly large employers who used asbestos products during the course of their business, will have little or no defence to such a claim. In my opinion however, the intention of Parliament to lower the threshold for a plaintiff to obtain an award of exemplary damages is clear from the words of the section.
Does the Court retain a discretion?
If the plaintiff is able to prove the matters set-out in s 9(2) the Court should award exemplary damages.
Section 34 of the Acts Interpretation Act 1915 (SA) provides:
34.Where, in any Act, passed after the 1st day of January 1873, the word ‘may’ is used in conferring a power, it implies that the power may be exercised or not, at discretion; and where, in any such Act the word ‘shall’ is used in conferring a power, it implies that the power must be exercised.
The word “should” has been interpreted to leave a discretionary power with the Court. “Should” has been interpreted as a weaker variant of “shall”. The word “shall” is prima facie a word of mandatory import.
It appears however, that there is no clear cut approach to categorising words as either obligatory or discretionary and the courts, on occasions, have ascertained the intended effect of the legislation when determining their meaning.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole.[366]
[366] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
Looking at s 9, the draftsman has used in sub-s (1) the word “may”. In the context of the Act that is clearly directory. In sub-s (3) the draftsman has used the word “must”. In its context that is a mandatory direction. In sub-s (2) the draftsman could have used the word “must” or “shall” but has chosen the arguably weaker word, “should”.
In my view the use of the word “should” in s 9(2) leaves the Court a residual discretion. However, there would need to be some compelling reason, once the criteria of s 9(2) are met for a court not to award exemplary damages. A court “ought to” award exemplary damages once the criteria are met.
Knowledge of defendant
The plaintiff tendered a large amount of material in relation to the question of the “knowledge” of the defendant, at various times, of the “dangers of asbestos”. Whilst the question of the “knowledge” of the defendant for the purposes of s 9(2) could be disposed of reasonably quickly, the material put forward by the plaintiff is also relevant to the question of the assessment of exemplary damages.
I have already dealt with, at length, the question of the state of the medical and scientific literature and I do not intend to repeat those matters. From that earlier material there is absolutely no doubt that the exposure to asbestos dust was known to be dangerous and the cause of disease from the 1930s. The medical and scientific literature was unequivocal that, at certain levels of exposure, there was a proven link between the exposure and a “dust disease”. The 1950 “International Conference on Pneumoconiosis” establishes that proposition. It is not necessary for me to resolve the question of whether this defendant “knew” of that information from that Conference.
In 1968 there was industrial unrest at the Whyalla Shipyard due to the issue of workers being “at risk” from the defendant’s use of asbestos. Dr Wilson of the South Australian Public Health Department was engaged to assist. I have already dealt with this issue when discussing the question of “reasonable foreseeability”: I do not intend to repeat my criticisms of his eventual report. However, in relation to the question of the knowledge of the defendant as to the use of asbestos in the shipyard, and the dangers of asbestos generally, it is instructive.
In a confidential memo of 8 November 1968 from the Superintendent Industrial Relations to both the General Manager, Whyalla Works and the General Manager, Shipyard it is stated:
On the 4th instant we contacted the Chairman of the Board of Reference to enquire specifically what he had in mind that the parties should discuss in the conference he proposed. He advised us that subsequent to his return to Adelaide, he had read a number of articles on the disease asbestosis and had discussed the matter with Dr. Wilson of the Department of Public Health and he was concerned that there might be some health hazard to our employees.
Subsequently we obtained certain medical and technical information on this subject. It would appear that the Chairman’s fears are completely unfounded and that he had the matter completely out of context. Accordingly we have asked for the Board to be re-convened (and this has been set down in Adelaide on the 13th instant) when we propose to submit to him that the Board should confine its interests to the specific claims before it and that he should take no action with respect to the alleged health hazard as this is a matter for which special authorities have been established under legislation of the South Australian Parliament. We have told the Chairman that we do not in any way wish to avoid an investigation into any alleged health hazard but rather we would welcome an enquiry but, in our view, such an enquiry must be conducted by qualified experts under the relevant State legislation.[367]
[367] Exhibit P10, tab (c), pages 138-139.
On 15 January 1969 the Department of Health sent a copy of the report by Dr Wilson to “The Manager, The Whyalla Shipbuilding and Engineering Works”.[368]
[368] Exhibit P10, tab (i), page 147.
Dr Wilson stated, inter alia:
The various processes involving asbestos are carried out by either contractors or employees of the Whyalla Shipbuilding and Engineering Works and the allocation of the duties is the prerogative of management. Under the Health Act, the ultimate responsibility for protection of any workman on the site from any hazards associated with the use of asbestos rests with management and no attempt is made in the following comments and recommendations to differentiate between contractors and employees of management.
The pathological conditions associated with exposure to asbestos dust are asbestosis (pulmonary fibrosis) with or without pleural thickening, and mesothelioma (a growth occurring on the aerosal lining of the lung or abdominal cavity. In addition, sufferers from asbestosis have been shown to have a higher risk of lung cancer than the normal population.
The factors which bear upon the risk of asbestosis are well recognised, and are the type of asbestos fibre, the concentration of fibres in the air, and the length of time of exposure to that concentration. The National Health and Medical Research Council has recommended a Maximum Allowable Concentration of five million particles of asbestos per cubic foot of air for an exposure time of eight hours a day, five days per week. In this situation at present under consideration, the only workmen likely to be exposed to concentrations of this order or more are the operators of the spray machines, in particular those operators required to tip the dry asbestos fibre into the hopper of the machine.
I am dealing of course only with the “knowledge” of the defendant of “asbestos” in its operations and the relationship of asbestos exposure to the onset of disease. I am not dealing, at the moment, with the question of whether a particular workman was exposed or at what rate. I have not overlooked the fact that the Wilson report in its entirety suggests there is, on his assessment, minimal exposure and risk. As mentioned they are not the criteria.
On 24 February 1969 a memo was circulated to “All concerned” from Whyalla Shipbuilding and Engineering Works setting out the recommendations of Dr Wilson and stating the “following action is to be taken to overcome any risk from asbestos dust”.[369]
[369] Exhibit P10, tab (i), page 161.
1. Spraying.
(a)All spraying should be carried out at such times when no other workmen are in the vicinity of the sprayed area.
(b)All employees engaged in spraying should be supplied with half-face piece respirators fitted with appropriate dust filters.
(c)Overalls without protruding external seams, pockets or cuffs should be worn by all personnel whilst spraying. The overalls should be cleaned of adherent spray material or dust, preferably by vacuuming, at the end of each shift, and thoroughly laundered at least once per week.
(d)At the conclusion of spraying, the area should be thoroughly cleansed of all loose spray material, preferably by use of an industrial vacuum cleaner.
2. Lagging.
(a)Any workmen when required to shape asbestos blocks by cutting or sawing, should be supplied with an appropriate respirator.
(b)Whenever lagging is carried out on the ship, all resulting debris should be cleaned up by vacuum cleaner at frequent intervals and at the completion of each job.
3. Sheathing.
(a)The surface of any irregularity which must be removed prior to sheathing should be kept wetted whilst scraping is carried out, and the resulting debris collected into a receptacle.
(b)Mechanical riveters should replace compressed air riveters.
(c)Before commencing drilling and riveting, the surrounding floor or deck area should be cleansed of any asbestos dust.
4. Any workman who is required to remove any “limpet” asbestos or any lagging for the purpose of fitting-out on bulkheads, deckheads or to weld or fix brackets or lugs, should be supplied with an appropriate respirator.
5. Sawing, sanding or drilling of panels containing asbestos (“Marinite”) during fitting-out should be carried out in a convenient cleared area so that all dust and debris may be cleaned up by vacuum cleaner at frequent and regular intervals.
6. All waste asbestos dust collected in receptacles or vacuum cleaners should be disposed of by burial or by dumping at sea.
7. It is considered to be good practice to carry out medical surveillance on all workmen exposed to asbestos dust. In this situation it is recommended that operators of spray machines should have a chest X-ray every twelve months, and that all other workers should have a chest X-ray every two years.
There was other material tendered as part of Exhibit P10 from which inferences could be drawn establishing that the defendant knew about the dangers of asbestos dust exposure at some level. Indeed, given the size of BHP and the extent of its Australia wide operations, it would be an extraordinary proposition to suggest that it did not have that limited knowledge of the danger of asbestos dust exposure at some level.
However, as mentioned the Wilson report provides the information to the defendant and it was not disputed that it received such information.
The plaintiff gave evidence of his work duties in 1971/72. He gave uncontested evidence as to the fact that asbestos was used in some form in the shipyard and that in various activities asbestos dust was created in its use. Again the defendant could hardly have contested such evidence. The evidence from the plaintiff and his witnesses, and in particular Mr Ewbank, that dust containing asbestos, at some level, was created by the shipbuilding activities and that those persons working in and around the ship whilst it was at the “fit-out wharf” were exposed to that dust.
The plaintiff has to prove that the defendant knew that he was “at risk of exposure to asbestos dust”. The plaintiff only needs to establish that he was “at risk” by such exposure.
The plaintiff gave evidence of his work duties. It was not suggested that he was working other than in accordance with directions from his supervisor. He worked, as ordered by the defendant, in and around the hull of the ship whilst it was at the “fit-out” wharf. I have accepted the plaintiff’s evidence and that of his witnesses as to the dusty state of the workplace (as opposed to the description in Dr Wilson’s report). Simply on that evidence it is clear that he defendant knew all workers there were at risk of exposure to asbestos dust even if it was a minor exposure. The plaintiff has proved s 9(2)(a) to my satisfaction.
Dust Diseases Regulations
It is strictly not necessary for me to decide the question of whether the plaintiff could rely on the Regulation that came into force on 28 February 2010. As indicated I have found the plaintiff satisfied the criteria of s 9(2) in any event. The 28 February 2010 regulation has the effect of introducing a legislative presumption that for the purpose of this case, the defendant is presumed to know that the plaintiff was at risk of exposure to asbestos dust (from 1 January 1960). The simple fact of carrying on the prescribed industrial or commercial process (as defined) at the time of exposure would be sufficient to enable the plaintiff to establish the first hurdle in s 9(2). It is not a rebuttable presumption.
I do not intend to discuss the arguments in detail.
I reject the defendant’s submissions in relation to this matter. I agree with the plaintiff’s submission that in relation to s 9(2), the 28 February 2010 Regulations apply to the current proceedings. I do not agree that the Regulations (any of them) are “ultra vires”.
In my opinion it was open for the plaintiff to rely on the regulations to satisfy the criteria in s 9(2)(a) of the Act.
Assessment of Exemplary Damages
Having found the requirements of paragraphs (a) and (b) to be satisfied, the Court should make an award of damages. On the facts of this case there is no reason why the Court should not to make such an award.
The statute is silent as to how a court should go about making such an assessment. Matters relevant to determining the quantum of exemplary damages are distinct from those relevant to determining the plaintiff’s compensation, since an award of exemplary damages is intended to punish the defendant for its conduct and to deter it from committing like conduct again.
Had this been a common law assessment I would not have found, on the evidence, that the defendant acted in conscious wrongdoing in contumelious disregard of the plaintiff’s rights. However, when assessing damages the conduct of the defendant is still relevant.
At common law factors to be taken into account, leaving aside the behaviour of the defendant included the size and wealth of a defendant and the need to punish the wrongdoer. This was not simply to deter the wrongdoer but also for the Court to mark its disapproval of the conduct.
There is no need for proportionality between assessment of compensatory damages and that of exemplary damages.[370]
[370] James v Hill [2004] NSWCA 301.
I have found that the defendant acted negligently. I do not intend to repeat my findings.
The Wilson report indicates the attitude of the defendant. Despite recommendations being made, the report having been obtained largely at their request, the defendant implemented, before 1973 at least, very few of its recommendations. If they had the view that this report indicated “minimal risk” to workers such as the plaintiff, then they had no right to hold that view. As I have already found, Dr Wilson was not shown what the working conditions were usually like in the areas he inspected. The defendant organised the inspection. It knew the conditions inspected by Dr Wilson did not demonstrate the actual conditions of work.
The failure to (largely) implement the recommendations of the Wilson report reflects poorly on the defendant. It may be that it perceived the risk as minimal without implementing those recommendations. As mentioned it should not have held such a view given the debate in the scientific and medical literature at that time.
The defendant’s conduct falls short of the common law test requiring an award of exemplary damages. However, given its conduct at the time an award of exemplary damages is warranted.
The cases cited in argument are awards at “common law”. Thus the awards are all based on the finding that the defendants acted “consciously in contumelious disregard of the plaintiff’s rights”. To that extent they are distinguishable from this case. It is an important distinction.
There are no cases that assist in the determination of such an award.
I have taken into account the conduct, as I have found it, of the defendant as well as the size of its workforce. I have also had regard to the fact that a purpose of exemplary damages is to punish the defendant for its behaviour. The need for deterrence in relation to asbestos is no longer relevant.
In all of the circumstances I award $20,000 by way of Exemplary Damages.
Conclusion
The total award of damages is therefore:
Compensatory Damages $52,124.93 Exemplary Damages $20,000.00 Total $72,124.93
I therefore award the plaintiff a total of $72,124.93 by way of damages. I will hear the parties on the question of costs.
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