Reilly v Malabar Electric Pty Limited
[2011] NSWDDT 9
•10 November 2011
Dust Diseases Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: Reilly v Malabar Electric Pty Limited & Ors [2011] NSWDDT 9 Hearing dates: 01/09/2011, 02/09/2011, 07/10/2011 Decision date: 10 November 2011 Before: Kearns J Decision: There will be a verdict and judgment for the first defendant.
There will be a verdict and judgment for the plaintiff against the second defendant in the sum of $42,514.20.
There will be a verdict and judgment for the plaintiff against the third defendant in the sum of $212,571.00.
Catchwords: Dust Diseases Tribunal; asbestos or interstitial pulmonary fibrosis; extent of exposure to asbestos; indicators for asbestosis or interstitial pulmonary fibrosis; divisibility of asbestosis; reduction of damages for "empty chair" exposure Legislation Cited: Dust Diseases Tribunal Regulation 2007;
Workers Compensation Act 1987; Workers Compensation (Dust Diseases) Act 1942Category: Principal judgment Parties: Frances Joy Reilly (as legal personal representative of the Estate of the Late Terry James Reilly), plaintiff
Malabar Electric Pty Limited, first defendant
NSW Land & Housing Corporation, second defendant
State of New South Wales, third defendant
John Goss Projects Pty Limited, fourth defendant (settled 11/10/2010)Representation: Mr J McIntyre SC with Mr S Tzouganatos, instructed by Turner Freeman, appeared for the plaintiff
Mr A Scotting, instructed by Moray & Agnew, appeared for the first defendant
Mr J F Burn, instructed by I V Knight, appeared for the second and third defendants
File Number(s): DDT 383/2009
Judgment
Introduction
Mr Reilly was employed as an apprentice and then electrician by Malabar Electric from 1960 to 1980. He was exposed to asbestos. His work was mainly on Housing Commission sites or State Government sites for the Department of Public Works (DPW). He contracted an interstitial fibrosis from which he died. The plaintiff, his widow, sues Malabar Electric, the Housing Commission and the State claiming damages in respect of the injury suffered by him.
The issues
The issues in the case against each defendant are the same, but for one. That one is diagnosis. That is in issue in the case against Malabar Electric, but not against the other defendants. That comes about because, before Malabar Electric was joined to these proceedings, the proceedings as then constituted were subject to the Tribunal's claims resolution process. As a result, mediation was undertaken.
The matter did not resolve at mediation and the mediator issued a certificate as to the issues in accordance with clause 37 of the Dust Diseases Tribunal Regulation 2007. This had the effect of confining the contested issues in the case to those specified in the certificate. Diagnosis was not identified as an issue.
The matter accordingly proceeded on the basis that, as to the Housing Commission and the State, diagnosis was not in issue and, in submissions, Mr Burn who appeared for both of those defendants accepted that Mr Reilly had contracted asbestosis.
Malabar Electric disputed the diagnosis of asbestosis and conducted the case accordingly. Malabar Electric also raises other issues, being the nature and extent of exposure and whether Mr Reilly's exposure was capable of causing asbestosis. I do not treat those as separate issues because they are subsumed under the issue of diagnosis.
The issues then are: as against Malabar Electric, diagnosis; and as against all defendants, the quantum of damages.
Asbestosis or not?
Asbestosis is a dose-related condition. This means that a person must be exposed to a significant quantity of asbestos before he can be considered to have contracted asbestosis.
In some cases, it will not be necessary to attempt any quantification of the burden of asbestos to which a person has been exposed. In those cases, it will be clear that a person has or has not been exposed to a sufficient burden of asbestos to cause asbestosis. An example of a sufficient burden would include a person mining raw asbestos over a working life of 30 years. An example of an insufficient burden would be a home handyman undertaking extensions on his home on weekends over a year or two. Other cases will be less clear. In those cases, it will be necessary to examine the evidence in detail to see if the person has been exposed to a sufficient burden of asbestos to cause asbestosis. I think this is one of those cases, especially as there has been a contest as to the nature and extent of Mr Reilly's exposure to asbestos.
In this case, evidence as to exposure was given by lay and documentary evidence. The lay evidence was given by the plaintiff and by Mr Larmer. I shall deal with that now. I shall then deal with the documentary evidence.
The lay evidence
The plaintiff
The plaintiff married Mr Reilly on 30 August 1963. In the mid to late 1960s, they commenced living at 2 Fenton Avenue, Maroubra. They lived there until 1977. Those premises comprised a shopfront and some residential at ground level and also residential upstairs. The shopfront was the office from which Malabar Electric conducted its business. There was a workshop at the rear of the premises. Mr Reilly did quite a bit of work in the workshop. He worked in it regularly on Saturdays and also Sundays and sometimes through the week. He worked on Zelemite switchboards in the workshop.
In 1977, Mr Reilly and the plaintiff moved to Lake Macquarie. Mr Reilly kept working for Malabar Electric. He came home to Lake Macquarie on weekends.
Mr Reilly and the plaintiff moved to Papua New Guinea (PNG) in 1980. The plaintiff went there in December 1980 and said Mr Reilly went there in about the middle of the year. Exhibit 1DX1 would suggest he went there in about September 1980. Exhibit 1DX7 does not really advance the matter. It is a letter of appointment to Mr Reilly and is dated 1 October 1980. It is apparent, however, that Mr Reilly was already in PNG when it was sent to him. It was sent to him at P O Box 255, Lae.
In January of 1980, the plaintiff and Mr Reilly took their usual vacation at Lake Tabourie. After this holiday, Mr Reilly took some long service leave for a couple of months. Before he took that, it is likely he continued to work for Malabar Electric for a short time. The first half of the year was a busy time for him preparing to go to PNG. That time included his doing some work on the home. This was preparatory to his going to PNG. The effect of all this evidence is that Mr Reilly was employed by Malabar Electric up to 1980 and it is likely that he did work for Malabar Electric for a short time in the early part of 1980.
The plaintiff said that in PNG, Mr Reilly was doing the same sort of work he had done with Malabar Electric beforehand. There was no evidence from the plaintiff as to whether this included any exposure to asbestos.
The lay evidence
Mr Larmer
Mr Larmer commenced work with Malabar Electric as an unlicensed electrician in 1960 or 1961. He became acquainted with Mr Reilly almost immediately. Mr Larmer worked on and off for Malabar Electric until the mid to late 1980s. Mr Larmer worked for Malabar Electric in Sydney and outside of Sydney. Most of the work was done on sites for the DPW. This included work on hospitals and schools. It was new work and repair work. He worked frequently with Mr Reilly in his first three to four years with Malabar Electric.
Mr Larmer described the amount of work that Malabar Electric had as "just incredible" (T22.47). That is a description of the amount of work Malabar Electric had as being extensive work. It was not constant, however, as in cross-examination, he gave evidence of being laid-off occasionally when work faded. He had a drinking problem that made him liable to be laid-off and it seems that some lay-offs were associated with that as well as a drop-off in work.
When Mr Larmer, or both Mr Larmer and Mr Reilly, were on sites, there were also other trades there.
Mr Larmer worked with fibro from time to time. It had to be cut. It was cut with an angle grinder or a hacksaw blade. This was done by Mr Larmer and Mr Reilly. When the angle grinder was used, a lot of dust was generated. "You'd look like Snowy the Frostman. You'd have dust all over you ..." (T23.23). Mr Reilly also looked like that. Working with fibro in this way was common from 1960 to 1980. There was fibro also in the eaves, walls, toilet sections and locker sections.
Fibro cut-outs would go on the floor and had to be cleaned up. This was done with a broom or a fibro off-cut and swept into a cardboard box. This was a dusty process. Mr Reilly did this work in cleaning up.
Mr Larmer saw sprayed vermiculite being applied to ceilings. This happened on the DPW sites he was on. He saw laggers mixing ingredients. This included tipping a bag containing asbestos into a big mixing bucket. Dust was emitted. Mr Larmer and Mr Reilly were close to this process at times. The dust given off settled on both of them. The contents were mixed with water. They were then sprayed onto the ceiling. Liquid compound fell onto to Mr Reilly and Mr Larmer. It dried. It would be dusted off and that gave off dust.
After spraying, Mr Reilly and Mr Larmer had to cut through the sprayed material. This was to allow electrical wiring through. This was done with a power saw from below. Dust would go over the body and face of the operator. This was a common occurrence. It was done in the finishing stages before light fittings were put up.
Mr Larmer gave evidence of a conversation with Mr Reilly about the spray material. He asked Mr Reilly why they used asbestos in the mix and Mr Reilly told him it was for fire retardant purposes. In cross-examination, he said this conversation occurred at Bonnyrigg High School. He placed that at between 1960 and 1966. Mr Larmer was shown a document to try to move him from that evidence, but he stuck to it (T33.13). This conversation was not included in an affidavit he swore on 30 September 2010. I do not draw anything from that. The circumstances in which the information for the affidavit was obtained are not known. He was giving some detail about exposure to asbestos. The fact of the conversation may not have occurred to him. He also had a conversation with Mr Reilly about asbestos in Zelemite. Mr Reilly again told him that asbestos was put in it for fire-proofing.
Mr Larmer saw lagging put on pipes at Callan Park Hospital. Half pipe sections were placed around pipes. A bandage was run around that and it was then finished with a solution. At Callan Park, Mr Larmer was there only for the fitting-out stages. He was there only for about two weeks (T27.42).
Mr Larmer saw that work on other hospitals as well. He could be working next to the laggers doing that work. When the pipe sections were put in place, droppings could come off when the laggers were trowelling. This was wet. It dried on the floor, except on the rare occasions that it was cleaned up immediately. Sometimes, at hospitals, Mr Larmer would come into contact with these pipes after they had been lagged. White powder from the lagging would come off on his arms.
Mr Larmer also worked with backing boards for electrical circuitry construction. These were known as Zelemite panels. Mr Larmer worked with Zelemite boards from time to time. This involved drilling with an electric power drill. Mr Reilly also did this work. Dust was given off. It got on the body and clothing of Mr Larmer and also fell on the floor. Sometimes, not often, this drilling was done above shoulder height. The dust would come down on the operator.
From 1977, Mr Larmer went to work in the country. He did not work with Mr Reilly then. Before he went to work in the country, Mr Larmer worked on a job at Bonnyrigg High School. It went for about 12 months. It was an extension to the existing school. Fibro was used. It was cut as earlier described. Insulation was sprayed and Mr Larmer would be in the area where this was happening. The sprayed material had to be cut through as earlier described. Mr Reilly made up the Zelemite boards for that job.
Prince of Wales Hospital was an extension job. Mr Larmer saw the spraying process there. He also worked on the Zelemite boards there.
From 1960 to 1985, Mr Larmer estimates that about 75% to 80% of the work was done on Public Works jobs (T37.23).
In cross-examination, Mr Larmer said he saw Mr Reilly on a Housing Commission site. It was for about two weeks. Mr Reilly was making up Zelemite boards.
In cross-examination, it was put that new schools were made of concrete or brick and render and were not lined with fibro sheets. Mr Larmer maintained that these schools or some of them would have fibro eaves, storerooms, lunchrooms and toilets. When the fit-out work for the schools was done, they were punching holes in linings for storerooms, staff rooms and bathrooms. Mr Larmer named some schools where he worked including Bonnyrigg High School, Bankstown Tech, Granville Tech, Parramatta High School and Maroubra Girls' High School. At Bonnyrigg High School, it was put that when putting power points and switches and fans in, they were not punching fibro sheeting. Mr Larmer said they were in the toilets, staff rooms and storerooms.
Mr Reilly did supervisory work as well as hands-on duties. When he was doing supervisory work, he still did extensive hands-on work.
Mr Larmer denied that electric drills were not used because they came in later in time.
Mr Larmer does not recall laggers spraying asbestos at Callan Park.
Mr Scotting, who appeared for Malabar Electric, submitted that I should not accept Mr Larmer's evidence as to exposure. This was because of the time lag between the events and the giving of his evidence, inconsistency between his evidence and Mr Reilly's evidence and also because Mr Larmer had a history of significant alcohol abuse that had affected the reliability of his recall.
I do not think there is true inconsistency of any significance between the evidence of Mr Larmer and Mr Reilly. In parts, Mr Larmer's evidence has been more expansive than Mr Reilly's, but there could be any number of explanations for that. One is that Mr Larmer has been questioned with the degree of detail required for the purpose of giving evidence, whereas Mr Reilly has not. I do not see apparent inconsistency with Mr Reilly's evidence as a basis for not accepting Mr Larmer's evidence.
Mr Larmer acknowledged that his recall of recent events was not good, but maintained that he had a good recall of distant events. Mr Larmer did abuse alcohol. It was so bad that over a period of 20 years, he lost about five years from work. It was also so bad that in the end his employer could not rely on him. If he did turn up for work and worked, he was paid in cash. From 9 September 1984, Mr Larmer went off alcohol. He has not touched it since.
Generally, I accept Mr Larmer's evidence. He was perfectly frank when cross-examined about his abuse of alcohol. I accept his evidence when he says that it is his memory for recent events that has been compromised, but he considers that his distant memory is quite good. I accept the evidence about the nature and extent of exposure to asbestos. I thought he was being honest and frank in giving that evidence. It is plausible. Whilst Mr Larmer was cross-examined in a general sense about the evidence he gave, no alternative scenarios as to lesser exposure were put to him in any detail. To the extent that some scenarios were put, for example, schools did not have fibro or only small amounts of fibro, electric drills came in at a later point of time or Mr Reilly was doing more supervisory work than hands-on work, no evidence was called to support them.
The documentary evidence
Exhibit PX1 is an affidavit of Mr Larmer of 30 September 2010 sworn in these proceedings. I do not rely on this document. It is, in effect, a summary form of the evidence given by him. I prefer to base my views on his oral evidence.
Exhibit PX2 is a statement of Mr Reilly dated 12 August 2004. I do not consider this adds anything useful to the other evidence in the case.
Exhibit PX3 is a statement of Mr Reilly of 14 October 2009. In that document, Mr Reilly says that in the later years of his employment with Malabar Electric, he worked as a contract manager, but still worked on sites. He first worked on Housing Commission high-rise units. In about 1962, he was sent to Callan Park Hospital. He worked on Housing Commission contracts for a total of about three to four years during his early years with Malabar Electric. During the Housing Commission contracts, he worked mostly on fibro homes in different suburbs. He followed the carpenters and cut and drilled holes into the fibro walls and ceilings to install power and light. Asbestos dust was all through these houses. At Callan Park, there was a lot of asbestos dust when the plumbers were doing the lagging and Mr Reilly was covered in dust. This was for about six months of his 12 months there. Also asbestos was thrown around by these laggers. He estimates that every Saturday and some Sundays, he milled and cut Zelemite boards and Lebah millboard backings. In PNG, he worked for TDE Pty Limited from 1980 to 1986. The workshop was of fibro construction and there may have been some exposure to asbestos from the walls being kicked. From 1986 to 1988, he was employed by Phillips Electrical in Lae. He believes there was then no exposure to asbestos. He returned to Sydney in 1988. He was then employed by Harrison Electrical. He was exposed to asbestos in that employ. In 1987, he was employed by John Goss. He was exposed to asbestos in that employ. He first noticed shortness of breath and cough in 2002.
Exhibit 1DX3 is a document of the Dust Diseases Board which records Mr Reilly's history of exposure to asbestos. In that document, it is recorded that he worked for about three years on Housing Commission work. There he followed the carpenters, cutting and drilling holes into the fibro walls and ceilings to install power and light. The premises were not swept until the painters started. The asbestos dust lying about the houses was disturbed. He had frequent, but short exposures to asbestos when drilling, chopping or cutting through asbestos cement material to install wiring or electrical fittings. He was present frequently when ceilings were sprayed with vermiculite. He did not know if it contained asbestos. He had to drill through these ceilings to install lights and cables and generally did that from below. He estimated that he spent at least 16 hours per week when he was directly handling asbestos materials or experiencing bystander exposure. His history of work and exposure in PNG and later in Sydney is more or less consistent with Exhibit PX3.
Analysis and findings in respect of the lay evidence
The evidence as to the amount of electrical work Malabar Electric did for different bodies is not precise and cannot be. It is also somewhat confusing. In his oral evidence, Mr Larmer thought that about 80% of the work was in relation to State government jobs and 20% private, including Commonwealth government, jobs. That cannot be representative of the spread of work which Mr Reilly did. It takes no account of the three years he worked on Housing Commission sites. Mr Larmer cannot have been including Housing Commission sites in his split as he hardly did any work on such sites.
All I can do on the totality of the evidence is take a broad brush and, in doing so, I find:
(1) for three years of the 20 years (15% of the time), Mr Reilly worked for Malabar Electric on Housing Commission sites;
(2) for 10% of the time, he worked for private contractors;
(3) for 75% of the time, he worked on DPW sites.
I find also:
(1) Mr Reilly was exposed to asbestos dust and fibre in the course of his employment by Malabar Electric over a period of about 20 years; and
(2) over that period, the intensity of his exposure varied from nil through slight and moderate to heavy;
Other findings require some explanation.
Housing Commission exposure
As to the intensity of exposure on Housing Commission sites, I need to rely on the documentary evidence. Mr Larmer's experience working on Housing Commission sites was so short that his evidence in relation to this is not very useful. He did say, and I accept, that in respect of that exposure Mr Reilly was making up Zelemite boards.
I accept the evidence in Mr Reilly's statement, Exhibit PX3, and the history recorded by the Dust Diseases Board, Exhibit 1DX3. I am mindful that there has been no opportunity for cross-examination, but the history of exposure is plausible.
With the Housing Commission, Mr Reilly worked on freestanding houses and high-rise units. There was asbestos dust and fibre throughout the freestanding houses. This came from tradesmen having used fibro products. It was not cleaned up until the painters started. This resulted in dust throughout the houses being disturbed. Mr Reilly also had to cut and drill holes in the fibro. He was exposed asbestos dust and fibre also on weekends when he worked on Zelemite boards.
Department of Public Works
Exposure in respect of DPW sites was at times more intense than exposure in respect of Housing Commission sites. In respect of this work, Mr Larmer worked with Mr Reilly over a period of about three years. I accept his evidence as to exposure. I accept also that it is fairly representative of exposure on DPW sites over the whole of the period the plaintiff worked on such sites. In accepting these matters, I am fortified by much of that evidence being consistent with the material in Exhibits PX3 and 1DX3.
At times, Mr Larmer's evidence was in relation to his exposure to asbestos dust and fibre. I think it is available to infer, and I do infer, that Mr Reilly was subjected to similar exposure. Mr Reilly cut fibro using an angle grinder or a hacksaw. When the angle grinder was used, so much dust was generated that "You'd look like Snowy the Frostman. You'd have dust all over you". Associate Professor McKenzie explained that would indicate an exposure over 100 fibres per millilitre for the duration of the process and for some time after. This must have been of some frequency as it needed to be done when cutting out fibro to install power points and switches. This was in lunchrooms, toilet sections, locker rooms or storerooms. Mr Larmer said this process was very common.
Mr Reilly was also exposed to asbestos dust and fibre in the cleaning up process described earlier (para 19).
Mr Reilly was also exposed when asbestos was sprayed. Vermiculite was used in the spraying process. There was an issue as to whether vermiculite contained asbestos. One thing the plaintiff relied on was the conversation between Mr Reilly and Mr Larmer (para 22). I do not accept this conversation as evidence that the vermiculite contained asbestos. I do not consider that the conversation occurred in the terms given by Mr Larmer. In Exhibit 1DX3, it is recorded that Mr Reilly did not know if vermiculite contained asbestos. I accept that. This makes it unlikely that the conversation occurred as described by Mr Larmer. I do not, however, see that as a basis on which I should reject other parts of his evidence. A conversation may well have occurred and it may have covered the subject matter of fireproofing. I think Mr Larmer is simply mistaken when he now thinks the conversation covered asbestos.
There is other evidence of asbestos being used in the spraying process. Mr Larmer said that he saw "asbestos" marked on bags that were used in the mixing process for the spraying. I accept that evidence. Accordingly, I accept that asbestos was used in the spraying process. This is consistent with Professor McKenzie's knowledge of the industry. The spraying process has been described earlier (para 20) and I accept that evidence. This exposure would have been intense exposure.
There was also exposure to sprayed material after it had been sprayed when Mr Reilly had to cut into the material. This has been described in para 21 and I accept that. This would have resulted in moderate to intense exposure. Mainly it would have been intense.
Lagging of pipes was another form of exposure. This has been described in paras 23 and 24. I would describe this exposure as light to moderate.
Mr Reilly was also exposed when working with Zelemite boards. This has been described in para 25. I would describe this exposure as mainly light to moderate, but sometimes intense.
The plaintiff sues in respect of exposure up to 24 December 1979. Mr Reilly continued to work for Malabar Electric in 1980. I find it is likely he went to PNG in September 1980. In 1980, he took an amount of long service leave and prepared to go to PNG. I find it is likely that he worked for Malabar Electric up to about June 1980. Mr McIntyre SC who, with Mr Tzouganatos, appeared for the plaintiff submitted the evidence did not disclose that he was exposed to asbestos in that period. The evidence given by Mr Larmer was taken as typical and descriptive of Mr Reilly's exposure over the period of his employment. There was no evidence of any change of circumstances after December 1979. Asbestos may have been used less at that time, but there is no reason why, for example, exposure in the last half of 1979 would be relevantly causative of his condition and exposure in the first half of 1980 would not be. This is supported by Mr Larmer whose evidence, referred to in para 18, was that exposure to asbestos was common from 1960 to 1980. I find that Mr Reilly continued to be exposed to asbestos dust and fibre for approximately six months after 24 December 1979.
Mr Reilly then worked in PNG for TDE Pty Limited from 1980 to 1986. This has been referred to in para 40. The work he did there was different to the type of work he did for Malabar Electric, Exhibit PX3, para 3. I think it is possible that he had some rare, intermittent light exposure to asbestos there.
Mr Reilly had exposure to asbestos after 1986, but it may be ignored. I accept Professor McKenzie's evidence that any exposure after 1985 may be ignored in the causation of the plaintiff's condition.
In respect of the 20 years with Malabar Electric, Mr Reilly estimated that, on average, he had at least 16 hours per week when he was exposed to asbestos dust and fibre, either by directly handling it or in bystander exposure. It was submitted that I should not accept this, especially as Malabar Electric did not have an opportunity to cross-examine on it. I am mindful of this, but it seems to me, in light of the evidence of exposure, this is a reasonable estimate and I accept it. There was also an analysis in the submissions attempting to calculate the number of times Mr Reilly would have undertaken particular tasks so as to show limited exposure to asbestos dust and fibre. In my view, that analysis does not accord with the evidence which I accept.
The medical and other evidence
I have already noted that asbestosis is a dose-related condition and commented that the evidence needs to be examined to see if Mr Reilly was exposed to a sufficient quantity of asbestos to contract asbestosis. To determine that, it is now necessary to look at the medical and the other evidence in the case.
The medical evidence
Associate Professor Clarke had a brief history of Mr Reilly's exposure. That is not to be critical of him. It is not the function of a doctor to spend the hours necessary to obtain a detailed history. Brief as it was, the history generally conformed with the facts that have been established.
The contest here is not between asbestosis and nothing. It is between asbestosis and some other form of interstitial pulmonary fibrosis (IPF) that, in practically all respects, mimics asbestosis.
The effect of Professor Clarke's evidence was that exposure to a fibre burden of 25 fibre millilitre years (f/mL years) was necessary and sufficient to found a diagnosis of asbestosis. He did not specifically say that Mr Reilly had been subjected to that, but inferentially, he must have accepted that.
The question then is whether Mr Reilly was subjected to a burden of 25 f/mL years over his employment with Malabar Electric. In my view, he was.
Professor Clarke thought Mr Reilly was subjected to a fibre burden sufficient to cause asbestosis. It must follow that he thought he was subjected to a burden of 25 f/mL years. As I understand the attack on Professor Clarke, it was not that the conclusion of a sufficient burden of asbestos could not be drawn on his assumptions, it was that his assumptions overstated the burden to which Mr Reilly was exposed. The findings I have made as to exposure support Professor Clarke's view that Mr Reilly had a sufficient fibre burden to cause asbestosis.
On the findings I have made as to the asbestos burden to which Mr Reilly was exposed, Professor McKenzie also takes the view that he would have been exposed to a burden of 25 f/mL years.
If I had to determine whether Mr Reilly had a burden of 25 f/mL years by reference to his exposure and to the components of 25 f/mL years, I would come to the same view. It is not possible to determine this by mathematical calculation. This is because although the evidence discloses information as to various circumstances in which Mr Reilly was exposed to asbestos dust and fibre, it does not provide information as to the number of times he was exposed in the various ways, the length of time he was exposed in the various ways or the various exposure levels he was subjected to. A broad brush approach needs to be undertaken.
The parties agreed I could take note of the fact that one f/mL year consists of exposure to one fibre per millilitre for eight hours per day for five days per week for 48 weeks. Those components are variable. One f/mL year may consist of exposure to a higher concentration of asbestos for a shorter period of time or exposure to a lower concentration of asbestos for a longer period of time.
Mr Reilly worked for 20 years, not 25. He was exposed to asbestos dust and fibre for about 16 hours per week, not 40. For Mr Reilly to have been exposed to a burden of 25 f/mL years, he would therefore need to have been exposed to a concentration of asbestos dust and fibre greater than one fibre per millilitre.
There are four pieces of evidence that demonstrate that he was exposed in excess of one fibre per millilitre. The first is that Professor McKenzie said that when using the angle grinder, and for a time thereafter, Mr Reilly would have been exposed to concentrations in excess of 100 fibres per millilitre. The second piece of evidence is that speaking of this exposure alone, Professor McKenzie thought it would get Mr Reilly up to an exposure of 25 f/mL years (T71.33). Looking at the questions and answers immediately before this, it is apparent that what Professor McKenzie had in mind was significant instantaneous exposure for a finite period happening commonly, perhaps daily, inside a building. The third piece of evidence is that Professor McKenzie considered that other exposure, such as the spraying process and working with Zelemite boards, would have significantly added to the fibre burden. The fourth piece of evidence is that when Mr Reilly said he was exposed for at least 16 hours per week, he was plainly talking about asbestos dust and fibre he could see. It is recognised that if asbestos dust and fibre is visible, there is a concentration in excess of 5,000,000 particles per cubic foot, though not necessarily exclusively asbestos. When converted to the metric measurement, that is in excess of one fibre per millilitre. At all times, therefore, on the occasions on which Mr Reilly was exposed to visible dust and fibre, he was likely exposed to a level in excess of one fibre per millilitre.
By reason of the matters mentioned in the previous paragraph, the time over which Mr Reilly would need to be exposed to satisfy a test for 25 f/mL years would be significantly lessened below 25 years. The diminishing factors of exposure for 16 hours per week and not 40 and working for 20 years and not 25 are far outweighed by the augmenting factor of the increased concentration of his exposure.
I am satisfied that Mr Reilly was exposed to a burden in excess of 25 f/mL years.
Even accepting an exposure sufficient to cause asbestosis, Professor McKenzie was of the view that the illness was an IPF that was not asbestosis. This was based mainly on the course of the illness. Professor Clarke said the course of asbestosis can be so variable that that is not a consideration.
Professor Clarke says a significant percentage of the population suffers from IPF. He also says that individuals exposed to asbestos are susceptible to the same non-asbestos induced IPF as the general population. This must mean that Mr Reilly was as susceptible to a non-asbestos induced IPF as any other member of the general population despite his exposure to asbestos.
Mr Reilly had an IPF. The contest here is whether it was a non-asbestos induced IPF or asbestosis. If Mr Reilly was as susceptible to a non-asbestos IPF as any member of the general population, the question arises as to how one determines which condition it was.
Professor Clarke attempts to make this determination, but in a way that, in my view, does not satisfactorily resolve the issue. He gave the following evidence.
That the man has a history of respiratory symptoms, he had so indicated that he had a respiratory problem. He had physical signs consistent with a fibrotic lung process. He had radiological findings consistent with an interstitial fibrotic process. He had lung function testing abnormalities consistent with an interstitial lung process, and he had a history of exposure to an agent that is known to cause a fibrotic lung process that is indistinguishable from the other form of fibrotic lung process that no known cause at this time, or a treatment, is known or available. Now it is those five features that I have outlined are required to make a diagnosis of asbestosis. (T57.32-57.39)
There is no issue about the first four of those criteria. They exist in this case. They are all non-specific for asbestosis. They are all common to non-asbestos induced IPF and asbestosis. Their existence does nothing to help solve the issue.
I have found that Mr Reilly was exposed to 25 f/mL years and so the fifth criterion is satisfied. This means, says Professor Clarke, that Mr Reilly had asbestosis.
As I understood Professor Clarke, anybody who satisfies these five criteria has asbestosis. This is confirmed by his evidence at T62.08 where he said, "The diagnosis of asbestosis is based on the history of exposure". I do not think the matter can be that simple.
I put to one side the possibility that Mr Reilly had, or that anybody could have, both asbestosis and a non-asbestos induced IPF at the same time. It has not been suggested. What we are looking for then is a diagnosis for one illness. If it automatically follows that on fulfilment of the five criteria, the diagnosis must be asbestosis, then it follows that someone who fulfils the five criteria cannot have non-asbestos induced IPF. I do not see how that can sit with Professor Clarke's evidence that a person exposed to asbestos is just as susceptible to non-asbestos induced IPF as a member of the general population.
The condition from which Mr Reilly suffered has asbestosis as a possible cause. There are also other known possible causes. They are:
(1) rheumatoid arthritis;
(2) drugs;
(3) aspiration of gastric contents;
(4) wood dust; and
(5) radiation exposure.
The evidence does not suggest any of these matters caused Mr Reilly's condition. I think they can be excluded.
Apart from the known causes of IPF, it may also be contracted from cause or causes unknown. Professor Clarke said a significant percentage of the population suffers from IPF. To what extent it arises from unknown causes or from any of its known causes is not disclosed by the evidence.
It seems to me that if the five criteria are satisfied, a person may have either asbestosis or non-asbestos induced IPF. If no more were known, the plaintiff in that situation would be at risk of not discharging the onus of proof. In my view, it would not be sufficient to discharge the onus for a plaintiff, who has satisfied the four non-specific criteria, to be able to say simply, "I have 25 f/mL years, therefore I have asbestosis". That would allow every person with an IPF, whether or not asbestos induced, to succeed.
There must be more for a plaintiff to succeed. Because of the difficulty in discerning the correct diagnosis, it may not take much to discharge the onus of proof. The indicators favouring asbestosis might be minor, but there should be something.
One matter that might help discharge the onus of proof is the extent of exposure. In the Cookson Wittenoom study, referred to by Professor McKenzie, there was a median cumulative exposure of 91 f/mL years. That is approaching four times the requisite 25 f/mL years. Exposure of that magnitude is not established here.
Another matter that might help discharge the onus of proof is the incidence of asbestosis in the community compared to the incidence of IPF from other causes. That incidence might even vary according to the extent of exposure.
The problem is when one looks at possible indicators in this case, mostly they do not favour asbestosis over non-asbestos induced IPF.
Professor McKenzie reasons that the progression of the disease was so quick in this case, that it is most unlikely that it was asbestosis, though he does acknowledge the possibility. Professor McKenzie supports his view not simply with his experience, but also with his reference to the Cookson Wittenoom study. Professor Clarke was not asked to address that study and its application by Professor McKenzie to this case remains unanswered in any specific way. Professor Clarke did say that he was aware of studies as to the progress of asbestosis and that the results were that the progress could be variable. There was, however, no reference by him to any specific studies so that the only reference to any study I have before me is the Cookson study.
I accept Professor Clarke's view that there is no standard progression for asbestosis. The progress of the disease in this case, however, fits more conformably with non-asbestos IPF rather than asbestosis. The median survival rate for non-asbestos IPF is three to five years from diagnosis. That fits this case.
Finger-clubbing is another small indicator. Mr Reilly had that. Professor McKenzie said it was relatively uncommon in asbestosis and much more common in idiopathic pulmonary fibrosis. Professor Clarke, when asked if finger clubbing was an indicator of asbestosis or simply IPF, said IPF, though I took that to be IPF however caused.
Basal crackles is another small indicator. They would be expected with asbestosis. Mr Reilly did not have them on examination on 29 June 2006 - Exhibit PX7.
Professor McKenzie thought that the radiology was against asbestosis, but I do not think he is correct on this. He said that the radiological features were not those of usual interstitial pneumonitis - Exhibit 1DX2. He concluded they were not typical of asbestosis. Usual interstitial pneumonitis and asbestosis are similar in appearance (T60.33). What Professor McKenzie was really saying was that the radiology did not have the appearance of asbestosis. I prefer the contrary evidence. I think the appearances are consistent with asbestosis, but that is as far as it goes. They are also consistent with non-asbestos induced IPF. In this regard, I accept the following evidence given by Professor Clarke.
Q. Doctor, speaking generally, is there anything in radiology that can give a guide or a clue as to whether a diagnosis in a given case might be asbestosis or might be some other form of interstitial fibrosis. A The presence of pleural disease, including pleural plaques, is just confirmation that the person's been exposed to asbestos. They're not required, or the fact that they're not there, doesn't mean the person does not have asbestosis. The the manner in which asbestosis is distinguished from usual interstitial pneumonia, which is what we're basically talking about, and not the other condition that was referred to just at the end is the history of exposure. So we try and get the history of exposure as good as we can get it. And then if the person exceeds the threshold level and everything else is consistent with usual interstitial pneumonia then, on the balance of probabilities, one makes a diagnosis of asbestosis.
Q. You may not be able to answer this. But if you have a set of films up and you had no other information, would anybody looking at them be able to say, Well, that's asbestosis; or it's not asbestosis. A The answer to that would be in my opinion, would be, no. (T61.05-61.17)
There are other matters said to support the diagnosis of asbestosis. They are:
(a) the opinion of Dr Jarvie. His opinion is to the effect that the plaintiff's condition was consistent with asbestosis. This does not advance resolution of the issue;
(b) the opinion of Dr Slaughter. Again, I accept his opinion that the condition was consistent with asbestosis. He says that if there was heavy exposure, then the condition would probably be asbestosis. This does not take this matter any further than the opinion expressed by Professor Clarke;
(c) the acceptance by the Dust Diseases Board of the diagnosis as asbestosis. This is not a sound basis for finding asbestosis where in this case two opposing views have been put forward and tested;
(d) the death certificate. The same comment may be made here as in respect of the previous item;
(e) the diagnosis of the hospital where Mr Reilly was treated. The same comment again may be made with the additional comment that diagnosis was not critical for the hospital as the course of treatment would have been the same if the diagnosis was non-asbestos induced IPF;
(f) fact that the Housing Commission and the State accept the diagnosis as asbestosis. It would be unusual to rely on that where Malabar Electric has raised the issue and contested it. It would undermine Malabar Electric's right to have the matter properly considered. Further, the Housing Commission and the State may have their own reasons including, perhaps, the possession of compelling evidence, for admitting the diagnosis;
In the plaintiff's case against Malabar Electric, I am not satisfied that it has been established that Mr Reilly had asbestosis.
The cases against the Housing Commission and the State
Asbestosis is a divisible condition. In the context of this case, this means that each defendant is liable only to the extent of the damage caused by that defendant's tort. It is necessary to determine the extent to which the Housing Commission and the State caused injury and damage to Mr Reilly. There may be many possible factors that could come into the determinations. This case, however, was conducted on the basis that one factor only had to be considered. That factor was the period of time over which Mr Reilly did work for each defendant in comparison to his total period of exposure to asbestos which caused his condition.
Mr Reilly's exposure finished in early 1980. The plaintiff sues in respect of exposure up to 24 December 1979. I accept Mr Scotting's submission that for about six months in 1980, Mr Reilly, when working for Malabar Electric was exposed to asbestos dust and fibre and this contributed to his condition. As the plaintiff has not sued in respect of this period, it is appropriate that a deduction be made from the damages that are to be assessed. I accept Mr Scotting's submission that 2.5% is the appropriate reduction in respect of that period.
I do not think any exposure thereafter is causative of his condition. The period in PNG from 1980 to 1986 involved exposure so trivial, it may be ignored. I accept Professor McKenzie's opinion that exposure after that was not causative.
I have found that 10% of the work that Mr Reilly did for Malabar Electric was for private contractors. This is exposure for which neither the Housing Commission nor the State could be liable. It is appropriate to reduce damages to take account of that fact. I think an appropriate reduction from the assessed damages to take account of the matters in this paragraph and para 97 is12.5%. The reduced amount is to be borne by the Housing Commission and the State.
I have found that Mr Reilly was exposed for 15% of his work with Malabar Electric in the course of work for the Housing Commission and for 75% of his work with Malabar Electric in the course of work for the DPW. This means that their relative apportionments are 1:5. Accordingly, the Housing Commission should bear 1/6 of the reduced damages and the State should bear 5/6 of such damages.
Mr Burn submitted I should assess a lower percentage of liability against the Housing Commission and the State in recognition of the higher duty of care owed by Malabar Electric to Mr Reilly. That submission has no place in the determination of damages payable by the defendants to the plaintiff. Nor is it appropriate where Malabar Electric has been found not to be liable to the plaintiff.
Assessment of damages
General damages
Mr Reilly noticed shortness of breath in 2002. He saw Dr Levenston. He was reviewed by the Dust Diseases Board in 2003 and 2005. He underwent radiology in 2005. He came under Dr Jarvie in 2006. He underwent further radiology. He was continuing to have shortness of breath. He had a cough. He was reviewed by Dr Jarvie again in 2007 with further radiology being undertaken. He continued to have shortness of breath. He had further medical examinations and radiology in 2009. He suffered weight loss. From early 2009 to October 2009, he lost 25 kilograms. His wife had to prepare special meals for him. As diagnosis could not be determined, he had a number of different tests. In 2008, he was having disturbed sleep. The plaintiff noticed rattling in his chest in his sleep. From early 2009, his shortness of breath was such that he had to stop and rest when walking in the street. He would stop and sit on a sandstone wall for a few minutes to catch his breath. This was a daily occurrence.
He had an acute turn of events in September 2009. He was at his mother-in-law's place. He felt sick. He was freezing cold. He had violent shakes. He was significantly short of breath. He was admitted to Prince of Wales Hospital on 24 September 2009 until discharged on 9 October 2009. In the hospital, he was given antibiotics and he was on oxygen. When he was discharged, he was housebound. His sleep was considerably disturbed. He required the use of three pillows. Eventually, this built up to being propped up on seven pillows. He needed sleeping tablets. He would still have to get up during the night. He was often put in a wheelchair and settled in another part of the house.
At home, he needed assistance with bathing, shaving and dressing. His breathing was erratic. He had oxygen. He had a walking aid to assist him with walking and then progressed to a wheelchair.
In early 2009, he was coughing mucous to such extent that he required 12 handkerchiefs per day.
By reason of his deteriorated condition, he was unable to undertake a long-planned travelling caravan holiday. His great wish was to go gold-panning. He was unable to do so.
He was readmitted to hospital on 18 October 2009 until discharged on 28 October 2009. He had worsening shortness of breath. He was on oxygen in the hospital. When discharged home, he needed assistance with transfers. Sleep was disturbed every night. He became depressed and distressed and those conditions deteriorated as time went on. His condition deteriorated to such an extent that he required hospitalisation again on 25 January 2010. He was in such a bad condition that he decided he needed to go to hospital.
He died of his condition on 27 January 2010.
I think a reasonable assessment for general damages in these circumstances is $200,000.
Interest on general damages
The main burden of Mr Reilly's injury and damage occurred from early 2009 with some symptoms from 2002. I think it is appropriate to take a point some time between these dates from which to allow interest on past general damages. I select 27 January 2005. I allow interest at 2% per annum on $100,000 for five years - $10,000.
I allow 7.5% on $200,000 from 28 January 2010 for 1.75 years - $26,250.
The total allowance for interest on past general damages is $36,250.
Loss of expectation of life
I allow $20,000.
Griffiths v Kerkemeyer
Mr Scotting made extensive submissions on the plaintiff's claim for care. The Housing Commission and the State did not support Mr Scotting's submissions. They simply submitted that a more appropriate figure would be $25,000 rather than the amount claimed by the plaintiff. In view of the stance taken by the Housing Commission and the State, I need not dwell on the issues raised by Malabar Electric. I shall attempt to deal with them briefly.
It was submitted that before 24 September 2009 and certainly before June 2009, a need for assistance arising from illness had not been established, especially as Mr Reilly continued to work and perform some daily domestic tasks. In fact, he was doing little domestic work from early 2009 and he was then starting to lose weight. I think there is a small discount to be made in respect of that period.
It was submitted that there was no evidence to clarify why there was a delay during 2009 in making application to the Dust Diseases Board for benefits. This is a mitigation point. It was Mr Reilly's task to mitigate. It is the defendant's task to prove that he did not. The absence of evidence means that the defendants have not discharged their onus. Further, the submission is hardly available to the defendants as the plaintiff was not cross-examined on this. In any event, on the evidence, there was no unreasonable delay.
It was submitted that Mr Reilly had entitlements to benefits under ss60 and 60AA of the Workers Compensation Act 1987 and under s8 of the Workers Compensation (Dust Diseases) Act 1942 and that he did not make application. This again, is a mitigation point and nothing further need be said about that. Again, this submission is hardly available to the defendants when they did not cross-examine the plaintiff. Further, on the evidence, the sections do not apply.
The plaintiff's claim, in my view, is reasonable. There is a view that it might be favourable to the defendants as, on one view of it, the plaintiff might have legitimately claimed for 24 hour care for a period. I think, however, that there should be some discount for the period before Mr Reilly was first hospitalised when, at times, he retained an ability to undertake tasks in that period for which the plaintiff claims. I think it is reasonable to allow $30,000.
Interest on Griffiths v Kerkemeyer
I allow 7.5% on $30,000 from 28 January 2010 for 1.75 years, being $3,937.50.
HIC
I allow $1,338.45.
Summary of figures
General damages
$200,000
Interest
$36,250
Loss of expectation of life
$20,000
Griffiths v Kerkemeyer
$30,000
Interest
$3,937.50
HIC
$1,338.45
Total $291,525.95
From this, 12.5% should be deducted, namely $36,440.74, leaving a balance of $255,085.21.
The Housing Commission will be liable for 1/6 of $255,085.21, namely $42,514.20.
The State will be liable for 5/6 of $255,085.21, namely $212,571.00.
Orders
There will be a verdict and judgment for the first defendant.
There will be a verdict and judgment for the plaintiff against the second defendant in the sum of $42,514.20.
There will be a verdict and judgment for the plaintiff against the third defendant in the sum of $212,571.00.
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Amendments
20 June 2012 - added paragraph number
Amended paragraphs: 121
Decision last updated: 20 June 2012
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