Rentz v Seltsam Pty Ltd
[2004] NSWDDT 15
•25 June 2004
NEW SOUTH WALES DUST DISEASES TRIBUNAL
CITATION: Rentz v Seltsam Pty Ltd [2004] NSWDDT 15
PARTIES:
Janet Rentz
Seltsam Pty Ltd
CASE NUMBER: 280 of 2003 of 2004.00
CATCH WORDS: Negligence
LEGISLATION CITED:
CORAM: Curtis J
DATES OF HEARING: 18 July 2003, 24 March 2004, 25 March 2004
DECISION DATE: 25/06/2004
LEGAL REPRESENTATIVES
FOR PLAINTIFF: Mr AJ Leslie QC instructed by Turner Freeman
FOR PLAINTIFF: Mr JJ Fernon SC instructed by Windeyer Dibbs
JUDGMENT:
Niel Joseph Nielsen died on 19 August 2003 after contracting mesothelioma. Janet Rentz, his dependant widow and executrix, sues Seltsam Pty Ltd for damages.
Mr Nielsen’s exposure to Asbestos
In about November 1973 Mr Nielsen and his then wife purchased a property at 224 Morrison Rd Putney as joint tenants. There was upon that property a garage constructed in 1951and clad then with asbestos cement sheets manufactured by the defendant. These sheets contained crocidolite, amosite and chrysotile fibres.
During the winter of 1974 Mr Nielsen carried out some repairs to a garage in the backyard of the property replacing two or three damaged sheets of fibro around the window on the west side of the garage. Mr Nielsen used old sheets stored in the rafters of the garage for the repairs. Those sheets appeared to have been left over from when the garage was originally built.
In carrying out the repairs Mr Nielsen said he went through in the order of 10 sheets. I think it improbable that so many sheets were left over from construction. From the photographs in evidence 10 sheets would have been sufficient to reclad the whole of the garage. I accept that five full size sheets may have been used. The sheets were old and brittle. They were cut by Mr Nielsen with a hand saw, rasped and fastened with hammer and nails.
Mr Nielsen in instructions to his solicitors communicated to Professor Henderson by letter of 24 June 2003 denied any previous asbestos exposure. In his oral evidence on 18 July 2003 he denied “recollection of being exposed to asbestos” and asserted that “there was no time in my life when I said there was asbestos”.
The absence of other exposure is critical to the plaintiff’s case.
In 2002 Mr Nielsen made application to the Dust Diseases Board for payments in respect of his disease. On 2 August 2002, he attended upon Mr Ross Gardner, an advisory officer of the New South Wales Dust Diseases Board, for the purpose of giving to him a record of his industrial history and exposure to asbestos. He remained with Mr Gardner for between one and two hours. In later cross examination he said this:
Q You went there with the intention of making an application to the Dust Diseases Board. Correct.
A Yes, as best I understood it, what they were doing.
Q That was in respect of what you saw as exposure to asbestos during your working life in New South Wales. Is that right.
A Can I-if you like I can start with what he told me.
Q You understood that you were making an application to the Dust Diseases Board and what you were effectively saying was, I have been exposed to asbestos dust whilst I have been living and working in New South Wales over a period of time. Correct.
A Well, no, just over my life, I don’t know.
Q Well, over your life but certain in New South Wales in respect of your application to the Dust Diseases Board.
A Yes he was asking my work history.
Q You understood at the time did you not, that any assessment of dust exposure that he was making must involve an assessment of any previous exposures you had in your working life before you came to New South Wales.
A I did but I didn’t know it made any difference. I knew he would ask me about it all but I didn’t know it would make any difference whether it was inside New South Wales or outside New South Wales.
Mr Gardner thereafter prepared a six page report on Mr Nielsen’s industrial history. On 3 October 2002 Mr Nielsen signed each page of that report and a supplementary declaration as to his belief “that this industrial history fairly represents the industrial history of my exposure to dust as given myself to advisory officer Gardner.”
The report records “Possible Dust Exposure” in these terms
Mr Nielsen started work as a part time cleaner when still at high school, in 1957 and continued in this occupation until 1960.
When he left school Mr Nielsen was employed on a casual basis by the International Smelting and Refining Co who operated a lead smelter in Tovele, Utah, where he lived. Mr Nielsen worked for this company over a ten year period until 1969, during holidays University and Missionary Training, vacation breaks. Mr Nielsen estimates that he spent the equivalent of three years work time at the smelter.
In 1960 Mr Nielsen completed 6 months compulsory military service and on his discharge, trained as a missionary with the Church of Jesus Christ of Latter Day Saints. During the next five years Mr Nielsen trained and worked as a missionary spending some time in Denmark as a religious missionary.
At the end of his missionary work Mr Nielsen worked for about 12 months as a storeman for a large pharmaceutical company until commencing his tertiary studies.
In 1965 Mr Nielsen enrolled at the University of Utah as a full time economics student. During this same period Mr Nielsen worked as a Hotel Night Clerk and in the holidays also worked at the smelting and refining company.
In 1969 Mr Nielsen obtained his degree and went to work for the Utah State Department of Transport as a Transport Economist, where he was involved in gathering information and investigating the logistics of road construction and maintenance. This work was principally office based with site visits averaging about 10% of the time.
Smelter Work
Mr Nielsen started work at the smelter as a labourer but showing enthusiasm and ability was moved around to nearly all areas of the smelter during the time that he worked there. His initial duties involved working on the smelter floor where the ore was processed to obtain pure metal.
There were a number of furnaces and retorts used to heat the ore and then pour off the molten metal. All of the equipment was insulated against the intense heat and where refractory brickwork was used the joints between the bricks was sealed with asbestos paste made from asbestos powder and talc or other suitable filler.
Many of the smaller retorts were unable to be insulated with brickwork and these were covered with asbestos paste which was applied like render to achieve the required thickness.
Mr Nielsen recalls that in the course of his duties he had on a number of occasions poured the powder used to formulate the paste into a container and then mixed it with water before applying it to the relevant area being repaired.
Mr Nielsen recalled that over the period that he had worked at the smelter because of his casual periods of employment he became familiar with nearly all of the operations carried out at the plant. This wide variety of expertise brought him into contact with many different jobs and he was frequently called on to perform maintenance tasks, such as lagging and insulation repairs. During the period that Mr Nielsen worked at the smelter he also worked as a hotel clerk, a storeman and also completed his university course as an economist.
On completing his university course in 1969 Mr Nielsen worked for the Utah State Transport Department for twelve months as a transport Planner before coming to Australia.
Transport Planner
In 1970 Mr Nielsen came to Australia and went to work for the NSW Transport Department.
After four years working directly for the Commission Mr Nielsen then carried out work for the Transport Commission through several consulting firms and also branched into other work which included projects for overseas clients of the companies where he was employed.
The areas where Mr Nielsen was employed include sites in New South Wales as well as overseas, they included, Laos, Thailand, Papua New Guinea, The Philippines, Mongolia, Indonesia.
One of the sites that Mr Nielsen worked on for some time was the construction of the Friendship Bridge between Thailand and Laos, in South East Asia. He also spent time in Indonesia on roadworks, which included the construction of bridges culverts and buildings.
Many of the projects were carried out over a long period of time, Mr Nielsen would be involved in the initial site evaluation and feasibility study, then the proposed plan of the operation. The jobs would then be commenced and construction of the first stage carried out.
At various times during the construction of the first stage of the project, Mr Nielsen would be required to visit the site to evaluate progress and carry out further evaluation of the economic feasibility of further stages of the project. These feasibility studies required Mr Nielsen to work on many sites where the building or the surrounding building were being demolished were under construction or extensive renovation.
All of the building works created a very dusty dirty working environment aggravated by the building materials being used, such as asbestos cement products which were used for wall panels gutters and down and drain piping.
Mr Nielsen recalled that when working for the NSW Dept of Transport in North Sydney he worked in an office in a building surrounded by old commercial and residential buildings that were being demolished. He recalled that many of these buildings had corrugated fibro roofs and additions made of fibro. This material was being pulled down in close proximity to where he worked and as there were no safety precautions taken at the time, the material was disposed of in an indiscriminate manner, usually by being thrown into the back of a truck or onto the ground in a heap for disposal later. This produced a lot of dust that covered the site and surrounding area with dust and debris.
Heavy Machinery Use
When large projects, both in Australia or overseas were in progress the following types of equipment had been in use, this also created a very dusty work environment which contaminated the work site and the surrounding area with large volumes of dust and subjected anyone in the area to the possibility of dust inhalation. Hand Tools, ie Shovels Picks mattocks etc, Trench Diggers, Bulldozers, Front End loaders, Graders and Scrapers, Jack Picks. The use of all of this equipment as previously stated, produced large volumes of dust and debris when excavating sites for development.
Mr Nielsen stated that he had in the normal course of his duties been required to work in buildings that were undergoing renovation. Working in these buildings being renovated was the result of contractual agreements between the company he was working for and the customer who, as a condition of the job required the company to refurbish the building they occupied when carrying out the work and to return it in good condition, renovated to the customers requirements on completion of the contract.
Most of these projects involved the use of standard building products which included asbestos cement sheet in all of its various forms. This asbestos cement material was used in the construction of temporary and permanent structures on the construction sites and also as partitioning and lining within the structure.
Insulation Spray
Mr Nielsen recalled that on some of the sites where he worked it had been necessary to apply fire retardant insulation asbestos to structural members. The asbestos was sprayed onto the structure wet but the material was delivered in powder form, usually in Hessian bags. The mixing process released large amounts of dust into the atmosphere which contaminated the immediate area with dust and fibres.
A further source of contamination was the loose debris caused by overspray which fell onto the surrounding surfaces and was then broken up and dispersed into the atmosphere by the movement of workers in the area.
Site Offices
Mr Nielsen recalled that he had spent a lot of time in site offices where tradespeople and contractors were in attendance. The dust and debris on the workers clothes contaminated the office, as well as the dust from the work being carried out on the site area.
The site office, often a temporary structure and also often constructed from asbestos cement sheet was usually situated in close proximity to if not on the work area. This proximity to the work which by its nature created dust and debris, exposed the office environment and anyone working in the area to the possibility of dust inhalation. Working in this environment, sometimes for months at a time exposed Mr Nielsen to an intense degree of dust and dirt contamination. On many occasions this dust and dirt contained asbestos.
Summary
Mr Nielsen worked in a situation where he would spend part of the time in an office environment and part of the time working and inspecting work progress on site.
He estimates that he spent about half of his working life involved in on-site work where he was exposed to dusty dirty conditions caused by demolition, building and excavation. The remainder of the time in an office environment where the exposure to dust was minimal.
Many of the sites he worked on were in countries where safety standards were virtually non existent and work practices were questionable.
Mr Nielsen is of the opinion that some of these questionable work practices possibly exposed him to dangerous materials and also to levels of exposure that would not have been experienced in Australia.
In cross examination Mr Nielsen sought to distance himself from this history asserting that it was inaccurate. He was asked this question:
Q You are not suggesting that he invented this are you.
A Well, invented because I hate to say such a word but all that I understood was that that was- that’s how he was interpreting what I was saying, but it isn’t what I said, but he said this is the way they want it- this is the way the Board wants it, so I said, well, okay, but that wasn’t exactly what I said and I told him at the time that that wasn’t exactly what I’d said. He seems to have taken it a step further, he used terms that I wasn’t familiar with.
The report is written in simple language. I cannot accept that it contains terms with which Mr Nielsen was unfamiliar.
I do accept that there may be assumptions, nuances and matters of relative emphasis recorded inconsistently with the narration of Mr Nielsen because the report was written by Mr Gardner as a summary of information volunteered by Mr Nielsen. Nevertheless I believe that by his signature Mr Nielsen affirmed the general tenor of the report confirming significant exposure to asbestos fibres in the course of his working life when he did lagging work at the smelter and when he was present during asbestos spraying on building works.
Causation
Before any credible conclusion is reached as to the potency of a cause, some quantitative estimate must be made in appropriate objective terms. Because the risk of contracting mesothelioma is correlative to exposure expressed in fibre ml years, the exposure of Mr Nielsen to the defendant’s products must be calculated and expressed in such units. This exercise has been conducted by Mr Pickford for the defendant. No evidence is led by the plaintiff in reply and Mr Pickford was not challenged in cross examination upon his calculations. He estimated the fibre dose due to work on the garage if five sheets were used to be 0.0007 fibre ml years.
The significance of this figure is revealed by a table annexed to the report of Professor Henderson of 23 June 2003. This table summarises the risks of contracting mesothelioma from cumulative exposure to asbestos fibres. At a cumulative lifetime exposure of 0.005 f/ml/yr and lower, the table states that “absolute risk is low- but quantitative uncertainties are very considerable”.
This information is then recorded:
| Crocidolite | Best estimate about 10 deaths per 100,000 exposed. Highest arguable estimate 55. Insignificant, possibly zero lowest. Best estimate falls to insignificant level at 0.0002 f/mlyr and highest arguable risk becomes insignificant at 6x10-6 f/mlyr |
| Amosite | Best estimate about 2 deaths per 100,000 exposed highest arguable lifetime risk 15 falling to <1 (ie insignificant) at 7x 10-5 f/mlyr |
| Chrysotile | Insignificant |
Not all the fibre to which Mr Nielsen was exposed in the garage was crocidolite. The relevant sheets contained 1-2 per cent amosite, 4-5 per cent crocidolite and 8-10 per cent chrysotile in a sand and cement matrix.
If Mr Nielsen had suffered no other exposure, though his chances of contracting mesothelioma from the garage work were at best estimate less than one in ten thousand, the fact that he contracted the disease may permit of a conclusion that that risk had come home.
Where however he has other exposure that conclusion may not be available. For instance, the risk summary in the table discloses that for cumulative exposures to crocidolite fibres of 1.0 fibre ml years the estimate is of 650 deaths per 100,000 exposed.
Accepting that the disease in Mr Nielsen may be attributed to the totality of his fibre burden, I nevertheless am unpersuaded that the contribution of fibres released in the course of the garage repairs was material. Without some objective measure, estimate or even reasoned guess of his fibre burden from other exposure I just don’t know.
By way of analogy, if a skier is careering toward an abyss there comes a point of no return when he cannot stop and he will plummet with or without a slight tap on his back insignificantly increasing his speed.
Professor Henderson was obviously aware of such difficulty when he expressed his opinion that the garage work was the cause of Mr Nielsen’s mesothelioma. He went on to say that “In particular, my opinion on causation is critically dependant upon Mr Nielsen not having sustained any identifiable occupational or other exposure to asbestos, apart from the three week episode of handyman type exposure sustained in about 1974/1975.”(PX 8 Report 26 June 2003)
The plaintiff bears the onus of proving that the exposure from the defendant’s products materially contributed to the total fibre burden which caused his disease. Where the exposure impugned is minimal and additional upon other exposure then, without some evidence permitting of some conclusion as to the total fibre burden, the plaintiff as a matter of law cannot succeed.
Verdict for the defendant.
Mr AJ Leslie QC instructed by Turner Freeman appeared for the plaintiff
Mr JJE Fernon SC instructed by Windeyer Dibbs appeared for the defendant
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