Refalo v Stevedoring Industry Finance Committee

[2002] NSWDDT 20

Dust Diseases Tribunal

of New South Wales

CITATION:	Refalo v Stevedoring Industry Finance Committee [2002] NSWDDT 20
PARTIES:	Sam Refalo Stevedoring Industry Finance Committee
MATTER NUMBER(S):	64/02
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	Damages - Negligence :- Contributory Negligence
LEGISLATION CITED:	Law Reform Miscellaneous Provisions Act 1965 S 10(1)
CASES CITED:	Griffiths v Kerkemeyer; Commissioner of Railways v Ruprecht; Nance v british Colombia Electric Railway Co ltd; Sungravure Pty Ltd v Meani; A C Billings & Sons Ltd v Riden; Haar v Uneedus Scaffolding Pty Ltd; Arnold Geoffrey Simmons v The Commonwealth of Australia
DATES OF HEARING:	30/10/02, 31/10.02
EX TEMPORE JUDGMENT DATE :	10/31/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: D G Letcher QC FOR DEFENDANT Ms W Strathdee

JUDGMENT:

1. The plaintiff brings proceedings for damages against the defendant the Stevedoring Industry Finance Committee. It is pleaded that the defendant is liable to discharge the liabilities and obligations of the Australian Stevedoring Industry Authority, the body established by the Stevedoring Industry Act 1956 and thereafter various amending Acts.

2. The plaintiff, who is a man of 66 years of age, worked on the wharves around Sydney at various locations from about 1956 to 1992. He has filed an affidavit in the proceedings. He also gave evidence. In his affidavit he discloses ways in which he was exposed to the inhalation of asbestos dust and fibre while working on the wharves. The statement of claim alleges that the authority was negligent in various respects as to the way in which the work on the wharves was organised for people, including the plaintiff.

3. Defendant’s counsel, Ms Strathdee, has indicated that the issues remaining for determination by the Tribunal are the quantum of the damages to which the plaintiff may be entitled and she raises a defence of contributory negligence. That defence is said to arise by reason of the plaintiff’s smoking. It will be necessary in a little while to come to the details of his smoking and to a determination of the merit or otherwise of the defence. As there are no other matters affecting liability raised for determination I propose to proceed immediately to the assessment of damages and to come back to the question of whether or not they ought be reduced because of the alleged contributory negligence proposed by the defendant.

4. The plaintiff was born on 13 July 1936 in Malta. He went to the local public school until he was 14. Thereafter he worked on his father’s farm for three years until he was 17. He came to Australia at age 17 arriving in Sydney on 14 September 1954. He obtained a job as a labourer for three weeks. He then obtained a job in a factory at Auburn which made lino for offices and houses. He worked there for about two and a half years. In 1956 at the age of 20 it was suggested to him by a friend that he might like to go and work on the wharves. He had the necessary medical and commenced working on the waterfront in Sydney on 17 October 1956. He described in detail the way in which work was allocated to the wharfies. It is not necessary now to go into the detail of that. He describes the work involved in the unloading of cargoes, especially asbestos cargoes. Once again in view of the way in which the matter has been presented for determination it is not necessary to go into the detail of those matters.

5. He said at par 24 that he was never provided with a mask or a respirator. He did not receive a warning, he said, from any person or foreman for the stevedoring companies for which he worked about the dangers of inhaling asbestos dust and fibre. He said he received no instructions how to safely unload cargoes containing asbestos or how to minimise the dust. He said he was never provided with vacuum cleaners or water hoses nor was he ever instructed to wet areas before cleaning them. He said that he did not see any warnings about the dangers of asbestos on any of the hessian bags that he unloaded on the waterfront.

6. At par 25 the plaintiff sets out details of his smoking. He said that he started to smoke when he was 17 years old. He gave up in December 2000. His giving up of smoking occurred in the circumstance that once he had become ill he was referred to Dr Despas, specialist physician, for treatment. The doctor apparently said to him that unless he gave up smoking, he, the doctor, would not treat him. The applicant had been told that he had lung cancer. The doctor’s words were apparently sufficient to cause him to stop smoking. The plaintiff said in his affidavit that he smoked on average about 30 cigarettes per day. In the 1980s and 1990s he had stopped smoking on about four or five occasions for between four to six weeks on each occasion. He said, “I could not stop the habit. I was addicted.” He went on to say that when he stopped smoking he had the urge to smoke and became frustrated and cranky. He said that when he started to smoke he had no idea that it was bad for his health or that it was addictive. He said that he saw warnings on packets of cigarettes in the 1980s and 1990s but, he added:

... at the same time I saw advertising for tobacco products at sporting events like the Rugby League and on TV. I remember that one of the advertisements was that ` 60 per cent of doctors smoke’ and so I thought nothing was proven and everything was up in the air.

7. At par 28 the plaintiff sets out details of the way he was before he became ill. He said that he used to go dancing with his wife. He loved walking, gardening, looking after his lawns, hunting, swimming at the beach. He said that basically he enjoyed his life. He said:

After I was diagnosed with lung cancer in December 2000 my life changed totally.

8. The plaintiff went on to say that he has not had the energy to do anything, he has chest pain, breathlessness, trouble sleeping and he is always tired.

9. The onset of symptoms occurred for him in about November 2000 when he was holidaying on the Central Coast. The evidence is to the effect that he has a house up there. He noticed he was losing his voice and had a nasty cough, his chest felt tight. He said in his affidavit that he knew he had a problem. He went to a doctor in Wyong who suggested that he go to see his own doctor in Sydney. Then he went to see Dr Beaini in Merrylands. A chest x-ray was taken and the doctor told him he should go to a specialist. On 31 November 2000 in the morning he was seen by De Castro, who sent him on the same day to Dr Despas. Dr Despas is a respiratory physician. The plaintiff said when Dr Despas saw the CT scan he told him that he had asbestos disease and lung cancer. Hardly surprisingly he said he was devastated and became emotional. The doctor told him that surgery may be possible. He went home and told his wife and the rest of the family. He said “everyone started crying. It was a terrible day.”

10. On 20 December 2000 at Westmead Private Hospital the plaintiff underwent a right thoracotomy and biopsy at the hands of Dr Costa. He remained in hospital until Christmas Day. He said that he was in a lot of pain and took a lot of morphine. He could not sleep. On the day of the operation Dr Costa told him that he could not get to the cancer at operation and that there was nothing further that could be done surgically. The plaintiff said that he was told to tell his family and get his affairs in order. He records at par 31 that he was shocked.. He said:

I could not believe it. For a few days I did not tell my family to protect them from hurt. I did not have a very good Christmas.

11. He told his family the news two days after Christmas, he said they were devastated. Following the attempt at surgery the plaintiff underwent radiotherapy at Liverpool Hospital. I gather from the evidence that it was easier for him to get in there rather than wait for an appointment at Westmead The radiotherapy commenced on 22 February 2001 and lasted until 22 March 2001, a period of 29 days. The plaintiff’s description of the radiotherapy was that it was terrible. He said:

I experienced the worst nausea imaginable, I lost my appetite completely and I found it terribly difficult to sleep.

12. The plaintiff said that he lost 10 kilograms

... during this terrible time. I vomited every day.

13. There was then a period when the plaintiff had recovered from the radiotherapy in which relatively speaking his health was reasonably good. Then in May 2002, that is a little over a year after the radiotherapy had been completed he started chemotherapy treatment at the hands of Dr Hui at Westmead. At the time he swore his affidavit he said that he had had four courses of chemotherapy by then and that he would have two more. He said that the chemotherapy treatment gives him very bad nausea, sweating, his hands shake so much that he cannot hold a cup and his overall comment about it was “it is terrible.”

14. At par 34 and following the plaintiff sets out his present state. It is a convenient means of setting out in the judgment the things about which he complains, so I will record some of the detail from that part of the affidavit. The plaintiff said:
Since my diagnosis I have not been able to look after myself as I once did. I know that my condition is going to get worse. I suffer from constant pain and my life has become a burden on my family. I know they will look after me when I become even worse, as they already have. My wife helps me by cleaning my clothes, including my pyjamas towels and bed sheets because of my night sweats. My wife also cooks special meals for me, to try and entice me to eat because I do not have an appetite. She also does things like attend to all of the grocery shopping, paying our bills and making sure that I take my medication. She now takes care of all the housework. My wife also helps me with showering, dressing and even taking me to the toilet, which is very embarrassing. I get constipated because of the medication and I have to take laxatives.
The affidavit continues at par 35. The plaintiff said this:
I feel constantly exhausted. I am no longer able to do the things I used to do for my family such as mowing the lawns, gardening, handyman work around the house and washing the car.
At par 36 he said this:
I suffer from nightsweats every night and I have to change my pyjamas up to two or three times a night due to the amount that I sweat. I no longer sleep in the same bed as my wife because I do not want to wake and worry her.
At par 37 he said:
I suffer from sharp pains behind my right shoulder-blade and a constant sharp pain in my neck. It scares me.

15. Thereafter in his affidavit the plaintiff spoke of his life changing. He said that he used to attend clubs at Blacktown and Merrylands with his wife but he has not done so since late 2000. He owns a house at the Entrance North and before he got sick he enjoyed going there with his friends and family. He is no longer able to do that and it upsets him greatly. At the end of par 39 he added:

I am no longer able to spend quality time with my children, and this also upsets me.

16. The plaintiff said at par 40 that he has difficulty walking up and down stairs and hills, which difficulty he did not have before he got sick. He said he is no longer able to walk more than 10 metres on flat ground without becoming breathless.

At par 41 the plaintiff said this:
I know I am going to die as a result of my condition and this terrifies me.

17. The plaintiff at par 42 sets out details of the things that his wife did for him at various periods from December 2000 onwards. At par 44 the plaintiff said that he has talked to his wife about his position and that they have decided that she will look after him at home. The paragraph ends with these sentences:

I do not want to go into a hospital. I want to be at home until the end.

18. The last paragraph of his affidavit is numbered 45. It is a short paragraph:

When I think about my condition I get really down. My personality has changed. I get cranky and frustrated and I get angry with my wife and the girls. I cannot help it. I lie awake at night and think about my future. I cannot get any peace of mind. I am angry that I was never warned about the dangers of asbestos.

19. I have read at length from the plaintiff’s affidavit because it is a convenient means of getting that factual material recorded in the judgment. It ought to be said that he gave evidence and was cross-examined at court but none of the things about which he was asked in any way reduced the bleakness of the picture that the evidence in his affidavit painted.

20. He said in court that he has a scar from the operative procedure which was attempted about a foot long, eight inches to a foot. He said on the night before he gave evidence he had two hours sleep. If he bends over he feels dizzy and he has to sit down for a few minutes. He spoke of the things he could do around the home before he was sick.

21. His cross-examination was substantially directed to matters raised by the defence of contributory negligence and later to matters raised between the defendant as cross-claimant and some cross-defendants. It is convenient to note that the defendant as cross-claimant has resolved whatever differences it had with the cross-defendants and liberty has been granted to the parties to file terms to reflect that agreement.

22. There is in evidence medical material. It is not necessary, I think, for present purposes to go to it in any great detail. Court cases grow as they progress. It was clear that initially experts were engaged to express views about the nature of his illness and then matters of causation. Events have overtaken them substantially.

23. The diagnosis proffered by Dr Christopher Clarke in his report of 11 March 2002, part of exhibit PX2, was expressed in these terms.

On the information I have your client has adenocarcinoma of the right lung; pleural thickening; calcified pleural plaques and as crepitations were heard pre-operatively, he may have also had pulmonary fibrosis. In this clinical context this could be asbestosis.

24. As I say, in view of the attitude of the parties to the court case I do not think it is necessary go at length to the medical opinions. There is no contradictory opinion about the nature of his illness. It is accepted generally that his cancer has been caused by exposure to asbestos and exposure to tobacco.

25. Turning then to the question of the measurement of his damages, the matter has proceeded in the following way: the plaintiff through his counsel, Mr Letcher QC, has submitted a schedule identifying heads of damages and making submissions about the appropriate figure or range of figures to be allocated to each of the headings. That has greatly assisted the defendant and the Tribunal and it is a convenient method now of addressing the various heads of damage to be assessed.

26. As regards general damages the following features seem to me to be relevant. The fact of his age, he has cancer of the lung which is surely going to cause his death in a little while, perhaps 12 months. I will come back to when in more detail in a moment. He has had the thoracotomy procedure, he has had radiation therapy and chemotherapy with the side effects that they have produced. He has had the pain about which I have recorded his comments. He has had the restriction on his ordinary activities, about which I have spoken. He faces in the not too distant future death from cancer. The plaintiff’s submission is that a reasonable range for general damages is between $175,000 and $200,000. The defendant thinks it should not be as high as that. It seems to me that in light of the available evidence the proper figure for general damages is one of $170,000. Interest on past general damages 2 per cent on $90,000 over the two years that he has had symptoms amounts to $3,600.

27. It is convenient to say something about a submission which was advanced which has application in respect of this item. The defendant placed reliance on the fact that after the radiotherapy, which ended in late March 2001, once the plaintiff had recovered from that there was a period until May of the following year when he was relatively good. I think as far as it goes that submission is valid but as was pointed out in a submission in reply it did not relieve the plaintiff of the stresses associated with the illness that he knew he had and which he knew would kill him. Further that the period of remission or partial remission from painful symptoms served, on one view of it at least, to lengthen the period over which he was suffering. The relevance of those observations in respect of the claim for interest is that it seems to me in all of the circumstances reasonable to allow interest for the two year period mentioned.

28. There is a claim for the loss of expectation of life. That is conventionally compensated by a modest sum. It is intended to compensate a plaintiff for the loss of prospective happiness. The plaintiff is now 66. It is contended that a reasonable measurement of the remaining life expectancy for him is until May 2003. I believe that to be a reasonable submission underpinned as it is by three opinions from doctors. Dr Clarke, on 11 March 2002, said that the plaintiff’s chances of surviving longer than two years from the time of diagnosis are less than 10 per cent. Dr Despas on 21 February 2002 expected him to survive at least another year maybe longer. Professor Breslin on 2 May 2002 wrote that it was likely that he would die some time in the next 18 months. Various calculations have been made in submission on the footing that the plaintiff may be expected to die at about the end of May 2003. In light of the opinions which I have just referred to that submission about date of death seems to me to be a reasonable and appropriate one.

29. Returning then to the question of expectation of life, in the circumstances disclosed by the evidence in this case it seems to me that a proper figure is one of $15,000.

30. The next item of claim is past out of pocket expenses. The first item relates to a notice of charge served by the Health Insurance Commission claiming $10,790.05. There is no dispute about that. Secondly, the fees paid by the plaintiff to obtain admission to Westmead Private Hospital were $6,655, and there is no dispute about that either. The subtotal obtained by adding together those two amounts is $17,445.05. There needs to be a minor deduction from that figure because the plaintiff had four attendances on his GP at $17.85 before he became ill with the cancer. It is inferred that those four attendances had nothing to do with the illness, the subject of these proceedings. $71.40 should come off the total. The final figure for past out of pocket expenses therefore will be $17,373.65.

31. Interest on that part of the past out of pocket expenses paid by the plaintiff, that is $6,655 at 11 per cent over one year amounts to $732.05.

32. As regards future out of pocket expenses the plaintiff obtained a quote for the painting of his house, which he would have done had he not fallen ill. The labour component of that quote is $800. There was a claim for the purchase or hire of medical equipment in the future. It is dealt with at p 24 in the report of Heather Tchan, occupational therapist. Most of the items mentioned are the subject of a proposal to rent them rather than buy them. I think I am correct in saying that item of claim has not provoked criticism from the defendant. In any event it seems to me that it is reasonable and should be allowed.

33. The next item is the cost of future medical treatment. It derives from the report of Professor Breslin of 2 May 2002. It deals with analgesic medication, the need for x-rays, the need for visits to doctors, home oxygen and matters of that type. The amount claimed is $2,120. That amount seems to be reasonable. It has not attracted criticism from the defendant. It might properly be allowed.

34. The next item of claim is that of past care. It has been measured or rather the commercial value of the care provided by his family to the plaintiff has been measured in the report of Heather Tchan, occupational therapist, part of PX2. The principal response of the defendant has been that in respect of some periods leading up to the present time there has been allowed too much time for care by the author of that report. In other words it is too generous to the plaintiff and not all of it should be allowed. It is convenient to go through it period by period. The first period is from 1 November 2000 to 24 December 2000, which period embraces the onset of illness and the surgical procedure. The report requires agile fingers to read, one needs to go to p 4, firstly, where there is a summary of what is allowed, and then to later parts of the report where the various entries in the summary are discussed. For the period under consideration the author allows three point eight hours attendant care per week plus three hours of personal care plus two hours domestic care, cleaning up et cetera around the house plus three hours per week of maintenance outside the house. It seems, with respect, that that first period is on its face reasonable and might be allowed. The figure for that period is $2,338.56.

35. The second period is from 25 December 2000 to 30 April 2001. In respect of that period it seems to me that the proposal for domestic care is too great. For example, you do not wash your windows and screens every week and clean the fridge out every week. Furthermore, it does not take two hours a week to clean the bathroom I would have thought, with a further two hours per week devoted especially to the bathroom. I think that three hours might properly come off that section in respect of that period. So that what is to be allowed is 17 weeks not at $756.77 but rather 17 weeks at $686.12; that will produce a figure for the period of $11,664.04.

36. The period from 1 May 2001 to 31 December 2001 embraces that period when the plaintiff had some relief or some remission from his symptoms. In respect of that period in light of the other services that were being provided it seems to me that the seven hours per week claimed for personal services should be deleted. So that instead of $509.50 per week for the period the amount to be allowed will be $324 and the total for the period will be $11,016.

37. From 1 January 2002 to 31 May 2002, that is in that period when the plaintiff was still reasonable and before the chemotherapy had started, it seems to me that the three point five hours of personal care should come out, particularly in light of the other services being provided. There will be there will be a period of 20 weeks for which the relevant needs would cost not $354.75 but rather $262, which throws up a figure of $5,240.

38. For the period from 1 June 2002 to 30 September 2002 the first thing to be said is that Ms Tchan takes the period to 31 August. The plaintiff’s scheduled submission goes to 30 September 2002. It seemed to me that the domestic charges were excessive by three hours, so that two hours a day would be sufficient and $72 per week should come off that period. That will mean that there will be 20 weeks at $736.20 which will throw up $14,724.

39. From 1 October this year to 30 October, that is to bring the matter up to the end of this current month I note that in the schedule submitted by the plaintiff in argument that the cost of high support had been deleted in any event, that is the cost for high support proposed in Ms Tchan’s report had been deleted. It seems therefore reasonable to allow four weeks at $1216.50 an amount of $4,866. The total then for past care pursuant to the principles of Griffiths v Kerkemeyer (1976-1977) 139 CLR 161 comes to $47,510.04. Interest thereon at 11 per cent for one year $5,226.

40. As regards future care the plaintiff’s schedule submitted in argument claims for the period from 31 October to 30 April an amount of $24,330. It is to be noted that the cost of high support proposed by Mrs Tchan has been deleted from the schedule submitted. That amount might be reasonably included. The amount claimed for the last month might also properly be included. The total for the future then is $31,898.

41. Subject to dealing with the question of contributory negligence that will mean that the plaintiff would be entitled to a verdict in the sum of $300,025.34. I interrupt the judgment to say that I have not forgotten about the leave sought to issue cross-claims and before entering verdict and judgment I will attend to that matter.

42. We come then to the defence raised by the defendant, which is to the effect that the plaintiff has been guilty of contributory negligence because he smoked and continued to smoke after warnings appeared on cigarette packets and after being told on one occasion to which the evidence refers by his general practitioner that it would be wise for him to stop smoking. It is convenient, I think, to attempt to identify the principles pursuant to which this matter falls to be determined. I am grateful to counsel for the effort that has been put in to dealing with this issue. The starting point, it is submitted for considering the matter is the Law Reform Miscellaneous Provisions Act 1965. S 10(1) thereof provides:

When any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, their claim in respect of that damage shall not be defeated by reason of fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

43. There is a proviso dealing with contracts which has no present application. There are further provisos dealt with in subparagraphs (b) (c) (d) and (e) in the section which have no present application. Fault is defined in s 9 in these terms:

`Fault ’ means negligence, or other act or omission which gives rise to a liability in tort or would, apart from this part, give rise to the defence of contributory negligence but does not mean or include a breach of statutory duty.

44. In The Law of Torts by John G Fleming, 9th edition, there is a discussion about conduct constituting contributory negligence at ps 318 to 319 going to 320. At the top of 320 after a discussion about things such as the agony of the moment decisions and the harshness of the rule which originally prevailed, namely, that contributory negligence could defeat an action altogether, the author wrote:

... but where the Courts have power to apportion the need for it has largely disappeared. The question is simply whether in all the circumstances the plaintiff has acted reasonably.

45. In the 2nd edition of the Liability of Employers by Glass McHugh and Douglas at p 219 the following appears:

The defendant will not be entitled to have the defence of contributory negligence submitted to the jury unless there is evidence which establishes four separate issues of fact -

(a) The plaintiff’s conduct involved a foreseeable risk of injury to himself.

(b) That there was available to him a reasonably practicable alternative course of conduct which obviated the risk of injury.

I suppose in the present circumstances that means that the plaintiff could refrain from smoking.
(c) That the plaintiff’s conduct materially contributed to his injury.

(d) That his conduct showed a want of reasonable care for his own safety.

46. In Commissioner of Railways v Ruprecht 1978 to 1979 142 CLR 563 at 570 Mason J, who was dissenting, but as to whose statement of principle no exception is taken, wrote the following:

Contributory negligence differs from negligence. There is no duty of care owed to another person ( Nance v British Colombia Electric Railway Co Ltd (1951) AC 601 at 611); Contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk. Nonetheless it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable and prudent man he would expose himself to the risk of injury. [See Sungravure Pty Ltd v Meani (1964) 110 CLR at p 37].

47. Thereafter at p 571 and p 572 the learned judge continues the discussion about contributory negligence. The case was concerned with a man who was struck by a train in shunting operations and it does not assist particularly for present purposes to make detailed reference to the other matters discussed.

48. Related to those observations one may consider what was said by Lord Reid in A C Billings & Sons Ltd v Riden. The report I have is at (1957) 3 All England 1. His Lordship said: [at p8 of the internet version]:

But in considering what a reasonable person would realise or would do in a particular situation we must have regard to human nature as we know it and if one thinks that in a particular situation the great majority of people would have behaved in one way, it would not be right to say that a reasonable man would or should have behaved in a different way. A reasonable man does not mean a paragon of circumspection.

49. The topic is also dealt with, that is the general principles relating to contributory negligence, in the 4th edition of Professor Luntz’ book Assessment of Damages for Personal Injury and Death commencing at p 133. It is not necessary for present purposes to quote material from that book.

50. What then are the circumstances in which the plaintiff found himself? It is to be remembered that he came to Australia at age 17 in 1956. That is about when he started to smoke. He continued to smoke until Dr Despas bluntly told him that unless he stopped he the doctor would not treat him. He acknowledges that he saw the warnings on cigarette packets, at least from the mid eighties onwards. He said that he tried to give up smoking four or five times but could not. He was able to go cold turkey in the light of Dr Despas threat. The defendant submits that in the light of those matters he has taken the risk of smoking knowing that it might make him sick, that the risk has come home, he has become sick, the smoking has played a part in it and hence he is guilty of contributory negligence. I think there is a little more to it than that.

51. Prior to the publication of warnings on packets of cigarettes and the general publication more recently of their undesirability generally the community was different. From as late as 1968 onwards the best rugby league player in the Sydney competition was honoured by the Rothmans medal. Commencing in 1982, never mind 1956, the rugby league premiership had as its prize the Winfield Cup. The pre season football competition in the mid sixties and the mid seventies was the Craven A cup. Prior to that Rothmans sponsored jerseys for a couple of the clubs in the Sydney competition. Benson and Hedges sponsored cricket matches, including test cricket. One might ask what does test cricket have to do with a man from Malta Malta has, of course, been host to many marauding nations over hundreds of years. It depended on whose star or crescent was in the ascendant at any relevant time. One of the marauders has been England. A by product of this fact is that they play cricket in Malta. In any event Benson and Hedges sponsored the cricket. At the end of the second war soldier’s rations included a few cigarettes. There was the glamour of the Marlboro man, the Peter Stuyvesant women. The allure of Black Sobrani cigarettes was well known to people who were young when I was, and also Gitane cigarettes. They were items of great glamour.

52. When people took a break from arduous work in a variety of fields they were said to be going to have a smoko. I infer that it was a common place thing for men to have a smoke at work.

53. It was into that community that the plaintiff came as a boy of 17. It was in those circumstances that he started to smoke. By the time the warnings began to be published in the 1980s he had been a smoker for about 25 years. That smoking is addictive has been proved in the present proceedings by the tender of exhibits PX3 and PX4. Dealing with Exhibit PX4 for a moment: it is a report of Associate Professor Chapman PhD prepared on 28 June 2000. It was prepared in respect of another man whose name was McDonough, but the relevant facts bear a striking similarity to the facts in this case. It is noted that Mr McDonough smoked 15 to 30 cigarettes a day from 1970 onwards. This plaintiff smoked 30 cigarettes a day from 1956. Mr McDonough claimed to be addicted to cigarette smoking and that he tried to give up smoking on five or six occasions. The same may be said of this plaintiff who tried on four or five occasions. Mr McDonough could not help his craving for cigarettes and resumed smoking on each occasion. That fact has an echo in the present proceedings. Mr McDonough remembered certain cigarette company representatives denying any health risks. There is no parallel to that piece of evidence in the present case. Mr McDonough thought that the question of whether there were health risks in smoking was all up in the air. The evidence is not as black and white in this case although the attitude of the plaintiff conveyed a similar message.

54. At the foot of p 2 of the exhibit the author writes:

There is a huge body of international peer reviewed scientific literature examining the question of whether nicotine is addictive. Perhaps the most authoritative single source that reviews in this literature remains the 1988 report of Unites States Surgeon General entitled ` The Health Consequences of Smoking: Nicotine Addiction .’
On p 9 of that report (appendix 8) it is stated:
1. Cigarettes and other form of tobacco are addicting.

2. Nicotine is the drug in tobacco that causes addiction.

3. The pharmalogic and behavioural processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine.

55. Associate Professor Chapman then goes on to speak about Mr McDonough in the following terms:

Mr McDonough has tried to quit smoking on a number of occasions and has been unsuccessful. This is an extremely common pattern among smokers. Many smokers wish to quit, attempt to do so but fail, often repeatedly. This is known as relapse in addiction studies and a great deal of research effort is expended in the attempt to try and understand why so many smokers who wish to stop find it extremely difficult to succeed. Perhaps the most salient reason for these repeated failures is because many smokers are addicted to nicotine and consequently experience severe craving for tobacco that often overrides an cognitive determination that they should stop smoking.

56. The paper then includes a great deal of material including material suggesting that tobacco companies have attempted to mislead consumers about the effects of their product and to confuse them about the risks associated with using the product.

57. PX3 is a letter from McDonald J Christie, PhD, Associate Professor and head of department in the Department of Pharmacology at the University of Sydney. He confirms that his view is that Mr Donough, the subject of the previous material, was addicted to nicotine and cigarettes. The author adds:

I make this interpretation with the definition of the American Psychiatric Association in mind.
The paragraph then proceeds in this way:
Mr McDonough clearly smoked a large number of cigarettes daily for many years. While this alone might not be indicative of addiction it is one of the features. Whether this was at the level of 20 cigarettes or 40 cigarettes a day is not particularly relevant, although the latter would indicate a higher level of dependence on the substance.

58. The next paragraph is about trying to give up. The author writes:

The persistent desire or unsuccessful efforts to cut down or control substance use is one of the criteria for substance dependence or addiction.

59. The author concluded that Mr McDonough displayed the core features of nicotine addiction. It seems to me to be reasonable to say that the present plaintiff did too.

60. The last paragraph of the letter contains this material:

For more than a decade addiction scientists have recognised that compulsive drug use or addiction develops as a result of adaptations that occur in the brain due to repeated insults with a small group of drug types. Drugs such as heroin, cocaine and nicotine directly promote a similar class of chemical adaptations in the brain that lead to compulsive use of these drugs. These adaptations drive compulsive drug seeking in the absence of the drug and there is a growing understanding of the mechanisms of this process in the brain. All of these developments in the neuro science of addiction reinforce the view that nicotine is addictive.

61. We return then to the core question, whether the plaintiff has in the circumstances affecting him behaved unreasonably with regard to his own health. I should say that there are other arguments which have been raised in submission which I propose to attend to but this, it seems to me, is the first one that should be dealt with.

62. It seems to me that the plaintiff came into this community at 17 years of age in 1956, a community in which tobacco use was not only tolerated but pushed. To say in that circumstance that when he started to smoke he was behaving unreasonably seems to me to be drawing too long a bow altogether. It may be acknowledged that by the 1980s he was being put on notice of the dangers by the printed signs on tobacco packets. By then he had been smoking for 25 years or more and as I find he was chemically addicted to the tobacco or rather to the nicotine. How in that circumstance it can be said that he has knowingly subjected himself to the risk of injury by continuing to smoke, he having tried a number of times to give it up, is something that I cannot see. For those reasons it seems to me that the defence is not made out.

63. The submission was made that the fact that he stopped cold turkey as a result of Dr Despas ultimatum suggests that his continuing to smoke was a risk he willingly took. The correct answer I believe to that submission is that his position at the time he consulted the doctor and after he had received his advice was that he knew he was facing death. To be told that plus I will not treat you unless you stop seems to me to be an exceptional circumstance and removes the sting from the submission advanced on the defendant’s behalf.

64. It was submitted further that the real risk facing the plaintiff was one that he did not understand, and probably still does not, hence did not foresee it at all, that is the risk that tobacco combined with asbestos exposure would have a synergistic effect and increase the risk of becoming ill dramatically. It may be accepted that there is a synergistic effect when the two substances meet in the same person. It seems to me that the consideration of that matter is a relevant one when considering whether the plaintiff’s conduct has been unreasonable, but I think it is one of the factors to be considered, and an important one. I am not satisfied as presently advised that it is determinative of the issue.

65. There is a further matter to be considered and that is a submission which found favour with O’Bryan J of the Victorian Supreme Court in a case of Haar v Uneedus Scaffolding Pty Ltd number 4918 of 1989 in which judgment was given on 30 March 1999. Stated shortly the submission was to the effect that the cause of action brought by the plaintiff related to alleged negligence in the workplace. The smoking of cigarettes away from the workplace was a matter which was too remote from what was being considered in the principal action to permit it to be left to a jury on the grounds that it could prove contributory negligence.

66. The case raises for consideration in the present case a submission to which I have not adverted, which also bears upon whether the plaintiff’s conduct showed a want of care for his own safety, and that is that what he is said to have been doing which amounted to contributory negligence, namely, smoking, was undertaken, so far as we know, away from the workplace. It was nothing to do with work, and yet this conduct is said to amount to contributory negligence. I think once again that is a factor that must be put in the balance when determining whether or not the plaintiff’s conduct has been unreasonable so far as his own health is concerned.

67. Returning to the Victorian case learned counsel appearing for the plaintiff convinced O’Bryan J that to consider smoking in the context of a cause of action relying on negligence in the workplace was a consideration which was too remote. The judge’s observation was expressed this way:

In my opinion in the circumstances of the present case it was not open to the jury to conclude that the plaintiff was guilty of a want of reasonable care for his own safety simply because he smoked approximately one packet of cigarettes per day. His conduct in that regard is the conduct of a high proportion of the adult community.

68. That judgment was quoted to Coldrey J in the Supreme Court of Victoria in a case Arnold Geoffrey Simmons v The Commonwealth of Australia 9953 of 1991 in which judgment was given on 8 October 1991. That learned judge did not accept the approach O’Bryan J accepted in Haar and the judge came to this conclusion:

Accordingly I am unable to see that any principle of remoteness precluded the jury from considering the issue of contributory negligence in this case.

69. Coldrey J respectfully refused to accept the conclusions expressed by O’Bryan J relating to smoking. He said:

With respect I am unable to accept that conclusion. The ultimate determinant of whether a specific type of conduct involves a want of reasonable care for one’s own safety cannot depend upon the participation in similar conduct of a certain proportion of the community.
I think, however, it may legitimately be looked at in determining what is reasonable or unreasonable conduct. I do not presume to select which of the decisions, at least partially conflicting from the Victorian Supreme Court ought be followed.

70. I conclude therefore at the time the plaintiff commenced his smoking, bearing in mind what was going on in society at the time, bearing in mind particularly the absence then of warnings or cautionary noises at all and the presence in their stead of a flood of material designed to induce people to smoke that when the plaintiff started his smoking he was not acting unreasonably as regards his own health. Further, by the time warnings started to be published and public awareness changed he was by then a smoker of many years and chemically addicted to nicotine. In that circumstance I do not see how it can be said that he willingly took risks disregarding his own health. It seems therefore that in all of the circumstances proper to hold that the defence has not been made out.

71. I grant leave to the defendant to issue further cross-claims in accordance with the minute of order signed by me and placed with the papers.

72. In consequence of the findings I have made I enter verdict and judgment for the plaintiff in the sum of $300,025.34.

73. I order the defendant to pay the plaintiff’s costs.

74. Costs to be on an indemnity basis from 25 September 2002.

Mr D G Letcher, QC instructed by Turner Freeman appeared for the plaintiff

Ms W Strathdee instructed by Blake Dawson Waldon appeared for the defendant