(Re: Singh) Stevedoring Finance Committee v Patrick Operations Pty Limited

[2004] NSWDDT 22

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re: Singh) Stevedoring Finance Committee v Patrick Operations Pty Limited & Anor [2004] NSWDDT 22
PARTIES:	Stevedoring Industry Finance Committee Patrick Operations Pty Limited Anshun Pty Limited
MATTER NUMBER(S):	102 of 2003/1
JUDGMENT OF:	Walker J at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	13/07/2004
DATE OF JUDGMENT:	08/20/2004
LEGAL REPRESENTATIVES:	CROSS CLAIMANT: Mr Scotting instructed by Blake Dawson Waldron CROSS DEFENDANT: Mr Jobson instructed by McCulloch and Buggy

JUDGMENT:

BACKGROUND.

(1) In the primary proceedings Jack Singh sued the Stevedoring Industry Finance Committee (a body established by the Australian Stevedoring Industry Authority pursuant to the provisions of the Stevedoring Industry Act) on the 23rd of October 2000 for damages for contracting asbestosis and asbestos related pleural disease caused by the Committees negligence and breach of duty of care associated with his repeated exposure in his work to the inhalation of asbestos dust and fibres.

(2) On the 23rd of October 2003 consent judgement was entered in favour of the plaintiff against the cross claimant in the sum of $190,000 damages plus $30,000 costs.

(3) On 24th of December 2003, by leave of the court, the Committee issued a cross-claim against the cross defendants pursuant to S 5 (1) (a) of the Law Reform (Miscellaneous Provisions) Act 1946 alleging both cross defendants owed a duty of care to the plaintiff; that the plaintiff's injuries were foreseeable and that in consequence of the cross defendants breach of duty the plaintiff suffered his damage.

The cross defendants, in submissions, raise only three issues namely:

(a). The settlement was unreasonable because had the matter proceeded to judgement the plaintiff would only have received a verdict of about $100,000.

(b) the amount of any apportionment under S 5 (1) (a) of the Law Reform (Miscellaneous Provisions) Act 1945.

(c). The plaintiff and the cross-claimant having failed to make application to the Dust Diseases Board for medical expenses should not be allowed to include those expenses foregone in the verdict.

A. Was the verdict reasonable?

In Bitumen & Oil Refineries (Australia) Pty Ltd v Commissioner For Government Transport (1954-19 55) 92 CLR 200 at 213 the High Court said

“ the court is required to find what is just and equitable as an amount of contribution having regard to the extent of the responsibility for the damage of the tortfeasor against whom the claim is made. There does not seem to be any valid reason why that tortfeasor may not say to the tortfeasor making the claim, if he has improvidently agreed to pay too large an amount or by unreasonable or negligent conduct in litigation has incurred or submitted to an excessive verdict, that the excess is due to his fault and not to that of the tortfeasor resisting the claim. It would be a matter for the court to consider under the heading of "just and equitable"

Mr Jobson, for both cross defendants, submits that the verdict was not just and equitable because:

1. The cross-claimant in submitting to the verdict apparently failed to take into account medical evidence before the court from Dr Allen which apportioned one third of the disability to obesity.

2. Further, the cross-claimant apparently failed to take into account Dr McEvoys evidence that the plaintiff suffered from a chronic bronchitis, upper lobe emphysema and pulmonary tuberculosis.

3. Given the usual range of damages awarded in the Tribunal the general damages suggested by the cross claimant as reasonable of $150,000 is excessive. A more appropriate figure would be $90,000.

4. The allowance by the cross- claimant of $50,000 for past and future Griffiths v Kirkemeyer damages was an error because despite the fact that the claim was made and part 33 particulars provided there is no evidence before the court which would justify such an award.

5. The Plaintiffs particulars of claim allege an entitlement to $5000 past medical expenses and $56,000 future medical expenses. Relying on the decision of the Court of Appeal in Commercial Minerals Ltd v Harris (1999) 18 NSWCCR 11 the cross defendant asserts that the plaintiff could have successfully made a claim for such expenses to the Dust Diseases Board but did not and the cross defendant should not have to bear the burden of expenses that could have been met by the Dust Diseases Board. There is no analysis of the plaintiffs claim to ascertain whether or not all the expenses might have been met by the Board pursuant to its policies.

(7)

Mr Scotting, for the cross claimant, submits that it can be seen from the medical evidence that the plaintiff had quite severe impairment of his lung function. He points to Dr Simpson's evidence that lung function was reduced by 50% of normal and there was the possibility of developing mesothelioma. Mr Scotting acknowledged that there was some evidence of other conditions affecting the lung function that were not asbestos related such as emphysema and obesity. There were also other conditions such as sleep apnoea and microbacterium avium intracellular, to which the evidence suggests the plaintiff has become vulnerable because of the asbestosis which Mr Scotting asserts would offset any reductions.

The Medical Evidence.

(8)Dr Simpson, a thoracic physician, initially saw the plaintiff to treat the microbacterium problem. He saw the plaintiff on seven occasions between 22nd August 2002 and 26 Sep 2002. He diagnosed tuberculosis and moderately advanced pulmonary asbestosis. He found some sub – pleural bullae in the right upper lobe but no evidence of diffuse emphysema. He diagnosed daily severe impairment of lung function to less than 50% of predicted normal and a reduction of life expectancy by 10 years. He said nothing about obesity being a material contributing factor to loss of lung function.

(9)Dr Allen, a thoracic and sleep disorder physician provided a report on 17 Mar 2003 after conducting respiratory function tests. He diagnosed that Mr Singh was suffering from five conditions namely:

· ARPD.

· Asbestosis.

· Mild apical emphysema.

· Past TB.

· Obesity.

(10) He said that for a 63-year-old man Mr Singh had severe restrictive ventilatory defect. He thought the obesity was contributing to one third of that defect. He said the plaintiff was at high risk of developing a serious pneumonia and an atypical mycobacterium infection as well as bronchogenic carcinoma and mesothelioma. He was also at risk of developing sleep apnoea which will be compounded by the underlying restrictive ventilatory defect.

(11) Dr McEvoy, a consultant respiratory physician, reported on 2 Jul 2003, 12 Aug 2003. He diagnosed:

· Extensive bilateral pulmonary fibrosis due to asbestosis.

· COPD/chronic bronchitis with upper lobe emphysema.

· Treated Pulmonary tuberculosis.

(12) He expected the plaintiff’s life expectancy to be reduced between seven and 10 years. He estimated that the asbestosis was causing 70 -- 80% of the current progressive deterioration. The remaining 20% was due to the emphysema.

The Alleged Confounders

(13) Mr Jobson submits that the following confounders which had no causal relationship to the alleged tort were making a relevant contribution to the plaintiff’s lung function loss and should have been taken into consideration in the settlement.

· Obesity ( Dr Allen says this made a 30 per cent contribution to the reduction in lung function.)

· Emphysema (there is no assessment of the contribution, if any, made by this mild condition to the reduction in lung function)

· T.B (the evidence is that this condition was treated and resolved)

(14) The only relevant confounder is the obesity.

(15) The common law imposes an evidentiary onus of proof upon the defendant to adduce evidence to disentangle with a reasonable degree of precision any alleged confounder ( see Purkess v Crittenden 114 CLR 164 and Shorey v P.T Pty Ltd (2003) ATR 81.701 at [46].

(16) An obesity confounder is always controversial in reduced lung function cases because:

1. breathlessness prevents exercise and lack of exercise leads to obesity.

2. it is open for plaintiffs to argue that the need for care is generated by the super imposition of the asbestos related lung impairment upon an otherwise non symptomatic condition.

(17) When Dr Allen examined the plaintiff on 4 March 2003 he weighed 92 kg and was on a diet trying to lose weight. Dr Allen did not state in his report what was the appropriate weight for the plaintiff. At page 4 of his report he said “ I believe that his obesity is contributing to his restrictive ventilatory defect as this is a very common cause of reduction of lung function even in normal subjects. However it is always difficult to ascertain the contribution of obesity in any one individual. On the other hand judging by the severity of his asbestos related diseases I believe his obesity is contributing to no more than a third of the total reduction in lung function”.

(18) Dr McEvoy reports of 2 July 2003 and 12 August 2003 were tendered. Dr McEvoy saw the plaintiff on the 30 June 2003 after he had been on Dr Allens diet for about 3 months and had put on 3 kgs. His opinion in July was that the only “substantial” medical diagnoses were:

· Pulmonary asbestosis

· COPD

· Treated pulmonary tuberculosis

(19) In August he added obesity and smoking as further diagnoses. However he said that the asbestos related condition were causing “70 % to 80% of his current progressive deterioration, the remainder being due to cigarette smoking” Obesity did not rate a mention as a material contributing factor.

(20) Mr Jobson does not raise the smoking issue possibly because of the well known synergistic relationship between asbestos and tobacco smoke.

(21) The defendant on the basis of equivocal medical evidence firstly as to whether obesity was making a relevant contribution to the loss of lung function and secondly as to the extent of that contribution would have been hard pressed to discharge its evidentiary onus of proof to disentangle with reasonable precision the obesity confounder. Further it would have had to overcome the inevitable arguments from the plaintiff that his obesity was caused by his inability to exercise because of his asbestos related restrictive lung condition and it was the superimposition of the asbestos upon the asymptomatic obesity that actually caused the need for care. Furthermore even a reduction of 30% in the estimated loss of lung function would have still left the plaintiff with a very substantial loss of lung function of 35 per cent of normal. Damages are assessed by taking into consideration the particular disabilities pain and suffering loss of enjoyment of life and need for care of the plaintiff. They are not mathematically shackled to the percentage loss of lung function. To my mind a prudent defendant would not be factoring, in all these circumstances, much of a deduction in the general damages or Griffith v Kirkmeyer damages for the obesity confounder.

Resolving the General Damages Issue.

(22) The plaintiff has an extremely severe bilateral asbestosis reducing his lung function by over 50%. The medical experts are agreed that it was the asbestosis contributing the lion’s share of that condition. The unrelated problem of obesity may also have been playing a role. Even if some deduction is made for that confounder the plaintiff still has a very substantial loss of lung function caused by asbestosis. While each case must be decided on its own merits this expert Tribunal is aware that such a restrictive loss of lung function results in severe breathlessness and consequent physical disability and can sound in general damages exceeding $150,000. In this case the medical evidence indicates that the asbestos has also rendered the plaintiff extremely vulnerable to a range of other potentially fatal life shortening chest complaints such as pneumonia, mesothelioma and a mycobacterium adding to the likelihood of a substantial verdict for general damages on the basis of the decision in Malec v Hutton 1990 169CLR 638.

(23)

Accordingly I cannot agree with Mr Jobson's submission that general damages would have been no more than $90,000 if this matter proceeded to hearing and take the view that the sum of $150,000 mentioned by Mr Scotting is within the bounds of reason given the state of the evidence and is just and equitable in all the circumstances of the case.

Loss of Expectation of Life.

(24) It is not in dispute that the plaintiff's loss of expectation of life is 10 years and that reasonable damages would be $10,000.

Griffiths v Kirkemeyer.

(25) The plaintiff claims damages for his past and future care needs pursuant to the principles in Griffith’s v Kirkemeyer. The S 33 Rule8A particulars indicate his disabilities were:

· Breathlessness since mid-1980s becoming severe in preceding 12 months.

· Breathlessness when walking up hills and inclines.

· Chest tightness since early 1990s.

· Fatigue and lethargy since mid-1980s

· Sputum produced regularly since 1980s.

· Winter chest infections requiring antibiotics several times a year.

· Wheezing chest since 1990s.

· Only able to walk 150 metres on flat without becoming breathless. Any form of physical exertion makes him breathless.

· Cannot do things around the home including gardening, playing and walking.

· Since January 2000 the plaintiff required care and assistance from family and friends. That included taking him to doctors appointments, assistance with cooking and general supervision. He estimated personal care needs at four hours per week at $26 13 per hour.

· He also obtained domestic care and assistance to do his gardening and lawns and to go shopping and clean the house. He estimated these tasks required five hours per week at $26 and per hour.

(26) In his affidavit of 20 Jan 2004 paragraphs [29] to [39] the plaintiff attests to the claims in his S33 Rule8A particulars. However paragraph [34] suggests that it was in 2001 not 2000 that his symptoms significantly worsened.

Past and Future Care

(27) The personal care needs of the plaintiff are assessed by Dr McEvoy and ranging from:

· $1000 per year in the early stage

· $5200 per year in the moderate stage

· $8400 per year in the severe stage

· a lump sum of $ 11,256 to cover the terminal stage.

(28) With a life expectancy of only 5 years and a poor prognosis, I take the view that Mr Scottings estimate of $84,000 to cover past and future care is too generous. I would think that the appropriate assessment would $45,000 over the 5 years discounted by 15 per cent to $38,250.

(29) The damages already assessed are approaching $200,000.That sum already exceeds the settlement figure by $10,000 without taking interest or the medical expenses into account which could in themselves add a further $40,000 to the damages.

(30) Mr Scotting points out that if the cross defendant wants to discount the economic loss for the obesity confounder then the Dust Diseases Board pursuant to s 8 (5) (b) of the 1942 Act has a power to apportion the medical expenses which could substantially reduce the impact of the confounder. His primary submission however is that the total damages are already so far in excess of $ 190,000 that this court can be comfortable in finding that the total damages were within the range of what is just and equitable on the evidence before the court and that it is unnecessary for the court to trouble itself with the difficult issue of how much of the medical expenses might have been met by the Dust Diseases Board if the plaintiff had bothered to made a claim for them. I agree.

(31) Having taken all the evidence into consideration I have reached the conclusion that the verdict of $190,000 submitted to by the cross claimant was just and equitable.

The Apportionment Issue.

(32) The cross claimant in addressing the application of s 5 (1) (a) of the Law Reform (Miscellaneous Provisions) Act 1945 relies on the approach to the law taken by my learned colleague Judge Curtis in Gibson v SIFC & ORS Unreported 2 June 1998 DDT 89 of 1996. The court of Appeal in SIFC v Gibson (2000) 20 NSWCCR 417 considered at [108] to [114] Judge Curtis approach to apportionment asserting at [113] that it was correct.

Section 5 (2) of the Law Reform Miscellaneous Provisions Act 1946 provides:

“ In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that persons responsibility for the damage”.

(34)

The phrase “responsibility for the damage” requires the court to compare the parties relative culpability in causing the damage.

In Macquarie Pathology Service Limited v Sullivan ( unreported Court of Appeal 78 March 1995 Clarke JA said:

“The making of an apportionment ( involves) a comparison of culpability and of the acts of the parties causing damage. To put it another way, the court is concerned with considering relative blameworthiness and the relevant causal potency of the negligence of each party”.

(36)

Judge Curtis pointed out in Gibsons Case that Justice Clarke was using the word “blameworthiness” to refer to the extent of departure from a reasonable standard of care.

(37) Judge Curtis took the following approach to the relative blameworthiness of Patricks and the SIFC.

· The responsible officers of both defendants were in a position to observe the conditions in which the stevedores unloading asbestos products worked and both effectively ignored their complaints.

· Both defendants compelled the stevedores against their will to work in conditions of obvious hazard.

· The significant difference in blameworthiness was that Patrick’s profited from its activities and refused to countenance any deviation in those profits by expenditure on adequate respirators for the men.

· In terms of causal potency the negligence of the SIFC in Gibson’s Case was found to encompass one quarter of the total exposure in which Patrick’s was not involved but that did not balance the greater culpability of Patrick’s.

Judge Curtis on the facts of Gibson’s Case apportioned liability 75 per cent to the employer Patrick’s and 25 per cent to the SIFC.

Mr Scotting puts the cross claimants case on apportionment as follows:

1. The cross claim relies upon the provisions of s 25B in applying Judge Curtis findings on relative culpability in Gibson to the circumstances of Mr Singh’s claim against the SIFC and Patrick’s.

2. In regard to the issue of causal potency the cross claimant relies upon the following evidence from Mr Singh’s affidavit:

· Mr Singh began work in the Port of Sydney as a “floater” [14] Floaters got the dustiest jobs. He did that work for 6 months. He then worked on a gang at the Towns Bond Centre servicing overseas vessels.

· He unloaded 6 to 8 asbestos cargoes per year taking up to 3 days a week. Working in the hold was an extremely dusty job. The hessian asbestos bags leaked and were ripped by hooks causing asbestos to pour out. The holds were confined spaces.

· He worked at the Port of Sydney between 21 April 1964 and May 1967.

· He then worked at Hobart and Wyalla where he was not exposed to asbestos

· Between 1969 and January 1997 he worked at the Port of Melbourne involving only asbestos cargoes was for Patrick’s ( see [25] of affidavit)

(40) From this evidence Mr Scotting suggests that the court should attribute 100 per cent liability to Patricks for the work at Melbourne over those 8 years. So far as the plaintiff’s 3 years work at the Port of Sydney is concerned Mr Singhs evidence is that 70 per cent of that time he worked for Patrick’s. (41) Mr Scotting then approaches the potency mathematics as follows:

1. The settlement was for $ 220,000

2. In respect of the period of work at Sydney 3 elevenths of that settlement sum is $ 60,000. Patricks should be liable for 70% of that sum or $42,000. The SIFC should pay the remaining $ 18,000.

3. Patricks are responsible on Mr Singhs evidence for 100 per cent of the 8 years in Melbourne or 160,000

4. The apportionment on the basis of causal potency should therefore be Patricks $202,000 and SIFC $18,000 or 92%: 8%.

(42) Mr Jobson queries whether the Court should accept Mr Singhs evidence that 100 per cent of his work on asbestos ships in the Port of Melbourne was for Patricks. He refers to the plaintiffs reply to the cross defendants request for further and better particulars dated 20 January 2004 notably reply 2(d) which relevantly states “ In the Port of Melbourne the Plaintiff unloaded and stacked asbestos for Sharp Stevedoring and Patrick Stevedoring.” Mr Jobson suggests the Court should infer that the plaintiff gave correct instructions to his solicitors when they were preparing the particulars and the affidavit sworn 8 months later must be wrong.

(43)

Mr Scottings response was to the effect that the plaintiff was recalling events 35 years previously and his sworn evidence deposed after months more thought and research would be the more considered view. Unfortunately the plaintiff died and was not available for cross examination

(44) One might pointlessly speculate at the reasons for a difference between the particulars and the affidavit. I prefer to give the most weight to the sworn evidence. On the balance of probabilities I find that the plaintiff only worked for Patricks on asbestos cargoes in the Port of Melbourne.

(45) Mr Jobson also raises the issue of the introduction of palletisation in the Ports of Sydney and Melbourne. He draws the evidence from Gibsons Case that palletisation was introduced about 1974 when the plaintiff was working in Melbourne. There is no evidence in this case to suggest palletisation was introduced at that time in the Port of Melbourne or that it rendered Mr Singhs work less dusty but one can imagine that there might well be less spillage of asbestos from hooks if pallets are used. The conclusion that Mr Jobson seeks to draw from palletisation is that for 3 years in Melbourne the potency of the exposure was lessened.

(46) Mr Scotting puts the counter argument that Mr Singh in 1977 was still being exposed to high concentrations of asbestos dust and fibre and the knowledge of the toxicity of asbestos was by that time well recognised and the fact that Patricks were still exposing their workers to asbestos dust without protective equipment substantially increases their culpability and at the very least balances out any reduction in exposure that might have resulted from palletisation. I agree.

(47) Finally the court is conscious of the decision of President OMeally in Brear v Commonwealth & ORS (1999) 18 NSWCCR 637 at 646 where the court gave weight to the evidence of the eminent thoracic physician Dr Julian Lee who took the view that assuming that there was a similarity of exposure during the various exposure periods then it is more likely that the earliest period of exposure was the cause of the plaintiffs chronic asbestos pleural disease.

(48) While I adopt the approach of Judge Curtis in Gibsons Case each case must be decided on its particular facts. I accept that the culpability of Patricks as greatly exceeding that of the statutory labour hire body SIFC. The question of the relevant causal potency of the negligence of each party is a more difficult assessment given the counterbalancing factors to which I have just referred.

(49) Taking all the evidence into consideration I think it is appropriate that liability be apportioned between the cross claimant and the two cross defendants in to ratio : 25:75 or $ 55,000: $165,000.

Apportionment Between Cross Defendants

(50) S 5 of the law Reform (Miscellaneous Provisions) Act requires in proceeding for contribution an apportionment between the cross claimant and both cross defendants. Mr Jobson did not assist the court on the issue of comparison of culpability between his two clients. Mr Scotting in his written submissions suggested that I simply apportion liability between the cross defendants on a temporal basis. Given my previous finding that the palletisation submission had not been adequately proved I can only agree. As I read the plaintiffs affidavit he worked 3 years for the 1st Defendant (1964 to 1967) and 8 years for the 2nd defendant ( 1969 to 1977).

(51) The 1st defendant is therefore liable to pay 3/11ths of $ 165,000 or $45,000 and the 2nd defendant if therefore liable to pay 8/11ths of 165,00 or $ 120,000.

Interest

(52) The cross claimant claims interest. The cross defendants made no submission on this issue. Mr Scotting submits that interest should be paid before judgement on both the verdict and the costs for a period of 176 days at the Schedule J rate of 9 per cent.

(53) I take the view that the cross defendants are entitled to the opportunity to be heard on this issue and I propose to defer making the order requested and grant the parties liberty to apply if they cannot agree on the appropriate interest payable.

ORDERS

(54) I make the following orders:

1. An order for judgement in favour of the cross claimant:

(a) against the 1st defendant for $ 45,000 and

(b) against the 2nd defendant for $ 120,000

2. The cross defendants pay the cross claimants costs in the following proportions:

(a) 1st defendant to pay 3/11ths of the costs.

(b) 2nd defendant to pay 8/11ths of the costs.

Mr Scotting of counsel instructed by Blake Dawson Waldron Lawyers appeared for the cross claimant.

Mr Jobson of counsel instructed by McCulloch and Buggy Solicitors appeared for the cross defendants.