Piddlesden v Telstra Corporation Limited

[2005] NSWDDT 39

Dust Diseases Tribunal

of New South Wales

CITATION:	Piddlesden v Telstra Corporation Limited [2005] NSWDDT 39
PARTIES:	Alan Piddlesden (plaintiff) Telstra Corporation Limited (defendant)
MATTER NUMBER(S):	63 of 2005
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	Miscellaneous Matters :-
DATES OF HEARING:	16 June and 27 July 2005
EX TEMPORE JUDGMENT DATE:	07/27/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D G Letcher QC instructed by Maurice Blackburn Cashman FOR DEFENDANT Mr T Rowles instructed by Sparke Helmore

JUDGMENT:

4

Dust Diseases Tribunal of New South Wales

Matter No DDT63 of 2005

Alan Piddlesden

v

Telstra Corporation Limited

27 July 2005

JUDGMENT

DUCK J

1. I am informed by the parties that the evidence as to liability has been completed and that it would assist them in their further management of the case if a judgment on the question of liability were given at this stage. While it is not usual I am content to proceed in that fashion.

2. The plaintiff brings these proceedings seeking damages in respect of a condition of lung cancer from which he now suffers. He pleads that in his employment by the defendant, Telstra Corporation Limited and its predecessors he was exposed to the inhalation of asbestos dust and fibre which has resulted in him developing lung cancer. The details of his exposure are set out firstly in an affidavit which he swore on 16 June 2005. In addition to the affidavit his evidence was taken at Campbelltown Hospital.

3. His relevant employment commenced in 1968 or thereabouts with what was then the Postmaster General's department. He worked for 12 months as a linesman's assistant. Then he trained as a cable joiner and line serviceman. He said at par 12 that he started working at the Green Valley telephone exchange depot. When the PMG department became Telecom the area was known as Metropolitan Number 5. He had four years at Green Valley from 1968 to 1972. From there he moved to the Prestons depot and in approximately 1979 he went to Campbelltown. In late 1979 or early 1980 he went to Bathurst, Orange and stayed there until about 1983. Upon his return to Sydney he was stationed at the Revesby depot which was part of the Bankstown division. He retired from that depot.

4. The nature of his exposure to asbestos is described in detail in his affidavit. Firstly, many of the houses in the areas where he was working were fibro houses. Holes had to be made in fibro sheeting to effect connections and alterations. He said the work at Green Valley involved 80 per cent maintenance on old work and 20 per cent installing new work. The maintenance work involved replacing cable jointings which had broken down. He then had to gain access to the pits in which the cables and joints were located. The pits had the cables coming into them through holes which were made in the ends of them or at the bottom of them. The pits were made of asbestos cement. The evidence suggests that the lids were made of cement. However the pits themselves were made of asbestos cement.

5. He said he worked in the pits almost every day. Almost always the work required that the pits be cleaned out. The cleaning out was required because bits of the walls and dust from the lid and from work done on them had fallen into the pits. He said he replaced the pits two or three times a week. His comment at par 15 was usually a vehicle had crushed them. He would have to pick out any broken bits of the pit and put them in a bag. New pits were dusty to the touch. He would carry a new pit from the truck on which it had been supplied and put it in the hole where it had to go. Sometimes it was necessary to knock out the whole bottom of a pit so that it might accommodate pre-existing cable. Sometimes cables had to be fitted inside the pit by banging holes in the side wall to fit brackets with saddle clips. The work remained essentially the same in nature in the various locations at which he worked.

6. He was cross-examined to suggest that as a cable jointer he had a higher classification and higher pay and that in such a lofty calling he was not required to do much of the work done by more lowly employees of the department but as many times as the proposition was put to him in cross-examination so many times did he reject it. The broad thrust of his answers was that most of the time he went out to these jobs alone and he did whatever had to be done which included all the duties. It was only if a job was of sufficient size or a pit was too big for one man that more than one person would go to the jobs.

7. The plaintiff's evidence was inherently credible. Nothing arose during the hearing which would cause a court to wonder about accepting what he said. The things that he had to say were essentially simple in nature and they were said in a common sense and practical way. I have little trouble accepting his evidence. He had some sickness in 2002 which initially was thought to be flu and pneumonia and he went to Camden hospital. He was admitted overnight and discharged on Christmas Eve 2002. There was then a period until 2004 in respect of which it is reasonable to suspect at least that a full diagnosis of his problems had not been made. At any event in 2004 the sickness from which he suffers developed and has caused him to go to medical experts for assessment and for treatment.

8. I am not concerned for the moment to deal with matters going to damages. The significance of these remarks is to say that in the course of treating the plaintiff or assessing him various opinions have been expressed about the link between the work that he did for the defendant and his present sickness. Dr Christopher Clarke whose report constitutes PX2 which report bears date 15 March 2005, diagnosed the plaintiff in a short paragraph commencing at the foot of page 3 as follows:

I am of the opinion that your client has a squamous cell carcinoma of the left lung and radiologically I believe this abnormality was present in January 2003. He also has evidence of bilateral calcified pleural plaques and he has clinical and radiological evidence of pulmonary fibrosis. It appears it was this fibrosis that made your client inoperable because of its effect on lung function and it would not have allowed the surgeon to do a left pneumonectomy. On the basis of the history and the other evidence of asbestos exposure I believe on the balance of probabilities that the pulmonary fibrosis is in fact asbestosis.

9. On the issue of causation Dr Clarke said this:

I believe the calcified pleural plaques, the pulmonary fibrosis which I have stated to be asbestosis and the carcinoma of the lung are due on the balance of probabilities to exposure to respirable asbestos during the 16 year employment with Telecom as a cable joiner.

The fact that he was exposed to asbestos is beyond doubt because the calcified pleural plaques confirm this. The calcifications indicates that the exposure took place more than 20 years ago and this fits in with his history.

10. Dr Clarke's opinion is supported by the opinion of Dr Breslin who examined the plaintiff for the defendant. Dr Breslin's reports were tendered by the plaintiff and have become PX3. At page 6 of the report of 4 April 2005 at par 8 Dr Breslin wrote that he believed the plaintiff's lung cancer was due to a combination of cigarette smoking, as to which there is no dispute that he was a smoker, asbestos exposure and silica exposure. The doctor wrote:

He has asbestosis with evidence of crepitations on clinical examination, interstitial lung changes at the bases highly consistent with asbestosis and the presence of pleural plaques confirming asbestos exposure.

11. Dr Breslin later modified his view about how much smoking there had been and how much exposure to asbestos but he agreed when giving evidence today that the crepitations which he observed were radiologically consistent with asbestosis. That condition itself has been recognised since 1955 as greatly increasing the risk of lung cancer. It has a multiplicative effect with smoking, he said.

12. There is a report from the treating surgeon, Dr French who, on 7 December 2004, undertook an exploratory left thoracotomy on the plaintiff. He could not proceed with major surgery because of his condition. He confirmed that the plaintiff has parenchymal fibrosis in his lung tissue which was probably asbestos induced, see the penultimate paragraph on page 1 of the report of 30 March 2005. The report of Dr Brett Hines is of an examination of a CT of the plaintiff's chest. The report bears date 28 February 2005 and is PX6 in the proceedings. His view was that:

The appearances of the x-ray suggest that the plaintiff was suffering from asbestos related pleural disease, marked by his asbestosis with fibrosis, architectural distortion and honeycombing consistent with advanced disease and a cavitating mass in the left mid zone laterally which was consistent with a cavitating carcinoma.

13. Having regard to this bulk of material I am satisfied that the lung cancer from which the plaintiff undoubtedly suffers results from his exposure to asbestos in the course of his employment with the defendant, I use the term "results from" in the sense that that exposure has made a material contribution to the development of the cancer.

14. Foreseeability of risk of injury has not been argued. There is in evidence the article by Margaret Becklake dealing with questions of foreseeability of the risk of injury arising from asbestos exposure and dealing with the knowledge of the various illnesses that one might get from it. It is fair to say that in this case the evidence is one-way traffic. The plaintiff is entitled to a verdict.

Mr D G Letcher QC, instructed by Maurice Blackburn Cashman appeared for the plaintiff

Mr T Rowles, instructed by Sparke Helmore appeared for the defendant