Shaw v BHP Billiton Ltd

[2015] SADC 3

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

SHAW v BHP BILLITON LTD

[2015] SADC 3

Judgment of His Honour Judge Soulio

21 January 2015

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE

Mr King, who died on 18 July 2007, was employed by the defendant at its Whyalla Shipyards from 1967 to 1972. He was exposed to asbestos used in ship building. He was diagnosed with pleural plaques in 1996, asbestosis in 2002 and lung cancer in 2007 – the plaintiff, Ms Shaw, as joint executor and trustee of Mr King, brings an action in negligence, breach of contract and breach of statutory duty pursuant to the Survival of Causes of Action Act 1940.

Held - defendant liable.

Survival of Causes of Action Act 1940 (SA) ss 2, 4; Dust Disease Regulations 2006 schedule 1; Industrial Code 1920 ss 303 and 304, regs 35, 39; Industrial Code 1967 ss 180, 181, reg 26; Dust Diseases Act 2005 ss 3, 8, 9, referred to.
Jones v Dunkel (1959) 101 CLR 298; Gately v The Queen (2007) 232 CLR 208; Van Soest v BHP Billiton Ltd [2013] SADC 81; Parker v BHP Billiton Ltd [2011] SADC 104 ; Hamilton v BHP Billiton Ltd [2012] SADC 25; BHP Billiton Ltd v Parker (2012) 113 SASR 206; McPherson’s Ltd v Eaton (2005) 65 NSWLR 187; Seltsam Pty Ltd v McNeill (2006) 4 DDCR 1; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Roads and Traffic Authority of New South Wales v Dederer & Anor (2007) 234 CLR 330; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Vairy v Wyong Shire Council (2005) 223 CLR 422; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; Rosenberg v Percival (2001) 205 CLR 434; Wyong Shire Council v Shirt (1980) 146 CLR 40; Mt Isa Mines v Pusey (1970) 125 CLR 383; Amaca Pty Ltd v Hannell (2007) 34 WAR 109; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; Burnie Port Authority v Bernie Jones Pty Ltd (1994) 179 CLR 520; Thompson v Woolworths (Qld) Pty Ltd (2005) 79 ALJR 904; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Roman Catholic Church Trustees for the Diocese of Canberra & Goulburn v Hadba (2005) 221 CLR 161; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307; Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449; F v R (1984) 33 SASR 189; Stevedoring Industry Finance Committee v Henderson (2000) 2 VR 396; SS Pharmaceuticals Pty Ltd v Qantas Airways Ltd [1991] 1 Lloyd’s Rep 288; Cockatoo Dockyard Pty Ltd v Browne [2001] NSWCA 58; Seltsam Pty Ltd v McGuinness [2000] 49 NSWLR 262; Amaca Pty Ltd v Ellis (2010) 240 CLR 111; Bank of NSW v The Commonwealth (1948) 76 CLR 1; Evans v Queanbeyan City Council and Amaca [2010] NSWDDT 7; Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; Van Gervan v Fenton (1992) 175 CLR 327; BHP Billiton Ltd v Hamilton (2013) 117 SASR 329; BHP Billiton Ltd v Van Soest [2014] SASCFC 135; BHP Billiton Ltd v Hamilton & Anor (2013) 117 SASR 329; Kondis v State Transport Authority (1984) 154 CLR 672; Barrow v CSR Ltd; Heys v CSR Ltd [1988] SCWA 4 August 1988, considered.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES

The plaintiff suffered asbestosis, pleural effusions, and lung cancer – causation.

Held – lung cancer not caused by asbestos exposure. Damages awarded for losses due to asbestos-related conditions of asbestosis and pleural effusion.

DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES

Exemplary damages awarded pursuant to s 9(2) Dust Diseases Act.

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Gray v Motor Accident Commission (1998) 196 CLR 1; BHP Billiton Ltd v Parker (2012) 113 SASR 206; Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Waugh v Kippen (1986) 160 CLR 156; South Australian Housing Trust v Development Assessment Commission & Anor (1996) 63 SASR 35, considered.

SHAW v BHP BILLITON LTD
[2015] SADC 3

Introduction

The Action

Particulars

Was Mr King Exposed to Asbestos?

Rodney King

Exposure to Asbestos prior to BHP

Exposure to Asbestos at BHP

Norman Hills

Peter Boss

James Dickson

Ian Ewbank

Affidavit Evidence of Witnesses

Ivan Zunic

Robin Stirling

BHP Calls no Evidence

Findings as to Exposure

Did the Plaintiff Suffer From a Dust Disease?

Foreseeability and Breach

Legislative Presumptions

The Law

What Was the State of BHP’s Knowledge?

Knowledge in the Public Domain

The BHP Library

The 1962 CCAC Proceedings

The 1968 CCAC Proceedings

The Turner Memorandum

The Wilson Report

Post 1968 BHP Whyalla Records

NHMRC Standards

Fresh Evidence

The 2006 Wilson Interview

Fresh Evidence in Relation to Foreseeability

Fresh Evidence re Breach of Duty

Expert Evidence

Gordon Stewart

Alan Rogers

Discussion

Findings on Reasonable Foreseeability

Did BHP Breach its Duty of Care to the Plaintiff?

Breach of Statutory Duty

Breach of Contract

Damages

The Expert Evidence

Dr Bryant

Professor Ruffin

Professor Alpers

Dr Hines

Professor Scicchitano

Professor Henderson

Ms Morgan

Was Mr King’s Lung Cancer Asbestos-Related?

Findings as to Asbestosis

Basis of Award

Evidence of Lynne Annette Shaw

Evidence of Sara-Jayne King

Exemplary Damages

Heads of Damages

General Damages

Past Care

Medical Expenses

Out of Pocket Expenses

Divisibility

Interest

Exemplary Damages

Introduction

1. Rodney King died on 18 July 2007 as a result of contracting lung cancer. He was born in England in 1936. He worked as an apprentice with British Rail between 1952 and 1962 and as a fitter with the Central Electricity Generating Board in Hampshire between 1962 and 1967. He was exposed to asbestos particularly during the latter period of employment.

2. Mr King migrated to Australia in May 1967 and worked for the defendant, BHP Billiton Ltd (‘BHP’) from 5 June 1967 until September 1972 in the Whyalla Shipbuilding and Engineering Works (the ‘Whyalla Shipyards’).

3. Mr King worked as a fitter in the Engine Fitters Department. At the time of Mr King’s employment with the defendant, products containing asbestos were commonly used at various stages of ship construction, and he was again exposed to asbestos. He was a moderate to heavy smoker, having commenced smoking at the age of 15, and giving up for a period in 2004 before recommencing. At the time he died he had been diagnosed as suffering from asbestosis, asbestos-related pleural disease and lung cancer. The lung cancer was not of a type specifically associated with asbestos exposure.

4. The evidence shows that the Whyalla Shipyards were part of the BHP organisation. A regular Industrial Bulletin was issued by Victorian head office containing reference to industrial disputes at the Shipyards (including the 1968 dispute about asbestos). A single Company Medical Officer was employed, for at least some of the period. The Shipyard committee met at the Melbourne office to discuss the operations at the Shipyards. The Whyalla Shipyards received documents from the defendant’s interstate offices.

5. The Whyalla Shipyards were established in 1940 and operated until 1974, building 57 ships, and was one of the biggest shipyards in Australia. In 1974 the Shipyards employed 1800 workers.[1] Other than shipbuilding the defendant was involved in steel production, coal mining, iron ore and the mining of other metals.

   [1]    Exhibit P3 p 13.

6. The process of ship construction involved two major stages. First, the structural work of a ship would be completed at the slipway. A ship was then launched from the slipway and floated out to a fitting-out wharf, where machinery and other internal fixtures were installed by tradesmen including boilermakers, welders, plumbers, fitters, sheetmetal workers, painters and dockers and contractors, including laggers. Once fitting-out was complete, a ship would go for sea trials before being handed over. The time taken to complete any given ship would vary depending on the size and type of vessel.

7. Bell’s Asbestos and Engineering (Australia) Limited (‘Bell’s’) was contracted by the defendant to insulate pipes, machinery and other surfaces using a variety of products. It was not in issue throughout the trial that the defendant used different asbestos products, containing amosite, in the process of construction at the Whyalla Shipyards. The plaintiff’s case was that most of the exposure occurred whilst the plaintiff worked in the engine room at the fitting-out wharf although some work was done in the engine room on the slipway.[2]

   [2]    T 6.

   The Action

8. Mr King originally initiated proceedings in the Dust Diseases Tribunal of New South Wales, against his employer BHP, and against Wallaby Grip (BAE) Pty Ltd and Wallaby Grip (NSW) Pty Ltd, said to be, respectively, the supplier and installer of asbestos products in ship building activities at BHP’s Whyalla Shipyards. The action was ultimately transferred to this Court on 21 March 2005. Prior to the commencement of trial the action against the second and third defendants was settled. A consent judgment was recorded against the plaintiff, in favour of the second and third defendants, but on the basis that they pay the plaintiff the sum of $55,000.00 towards costs.

9. Following Mr King’s death, his daughter, Ms Shaw, the joint executor and trustee of Mr King’s estate, was substituted as plaintiff. The action against BHP is brought for the benefit of the estate pursuant to s 2 of the Survival Causes of Action Act 1940 (SA), claiming damages, including an award of exemplary damages pursuant to s 9 of the Dust Diseases Act 2005 (SA) (‘DDA’). For ease of reference, during the course of these reasons I shall refer to Mr King as the plaintiff.

10. The claim is brought on the basis that in the course of Mr King’s employment with BHP, he was exposed to and inhaled asbestos dust and fibre, and as a result contracted asbestosis, asbestos-related pleural effusion, and lung cancer. Whilst a greater period of exposure to asbestos occurred in the United Kingdom, it is claimed that his subsequent exposure to asbestos at the Whyalla Shipyards was significant, and materially contributed to the plaintiff contracting asbestos-related illnesses.

11. It is alleged that BHP was negligent, in breach of statutory duty, and in breach of its contract of employment with Mr King, an implied term of which was that BHP would exercise reasonable care for Mr King’s safety. The allegations of negligence, and of breach of statutory duty, are relied on as particulars of the breach of contract.

12. BHP did not dispute that it employed the plaintiff at the Whyalla Shipyards and conceded that it owed a duty of care to the plaintiff. However, BHP denied that the plaintiff was exposed to and inhaled asbestos dust and fibre from insulation materials. It admitted that the plaintiff contracted pleural plaques, bilateral pleural thickening and lung cancer but denied that his alleged exposure to asbestos at Whyalla caused or materially contributed to any injury. BHP denied that the plaintiff contracted a dust disease either within the meaning of the DDA or at all. BHP disputed that it failed to take reasonable care in respect of a known or foreseeable risk to the plaintiff in the particular circumstances of his work. The defendant denied that it was negligent or in breach of duty to the plaintiff. BHP denied that it had caused any loss or damage to Mr King.

    Particulars

13. The particulars of negligence, in addition to general allegations that BHP failed to provide a safe place of work, safe plant equipment and supervision, or a safe system of work knowing of the dangers involving the ingestion or inhalation of asbestos dust and fibre, more specifically allege that: the defendant failed to warn the plaintiff of the dangers to which he was exposed; failed to take effective measures to protect him from the effects of asbestos dust and fibre; failed to provide masks or other respiratory protective equipment; failed to provide protective clothing; failed to provide exhaust equipment or adequate ventilation; failed to restrict the liberation of asbestos dust and fibre; required or permitted him to be exposed to the inhalation and ingestion of asbestos dust and fibre; and failed to have him medically examined.

14. The plaintiff also alleged that the defendant was negligent in failing to make inquiries of appropriate authorities as to the risks of working with asbestos products; and in specifying the use of asbestos products for insulation in the ship building process. Further, the plaintiff purported to rely upon the doctrine of res ipsa loquitur.

15. The plaintiff’s case in opening was put on the basis that:[3]

    The case that the plaintiff puts is that a reasonable response by the defendant employer would have been a dust count and then examination of the results and monitoring of the results to ensure that the dust is kept to an appropriate level. But if the defendant chooses not to adopt dust counting, there is an even greater obligation on the defendant employer to introduce the dust minimisation measure and all of the things I have taken your Honour to recommend as being appropriate.

    The plaintiff’s case will be that, based upon the description of the visible dust by witnesses who we will be calling, there was clearly a risk of quantities of the dust being in the confined spaces of the engine room, that the presence of that risk should have resulted in a response of measurement. If they choose not to measure it, there was all the more case for them to take dust suppressant measures. That is the basis that the argument is put. We will be saying in due course from our experts that other studies in dockyards have shown levels of measured asbestos fibre in the area, which clearly on any view are very dangerous. We say there is a potential for that to have been the case here. We don’t know because no measurements were ever done, and our case will be, it is really impossible to retrospectively, with any kind of precision, work out what the exposure was.

    …

    The principal position we take is, if you have a cloud of visible dust of asbestos that must create an alarm bell that there is a risk. The response should be twofold, to conduct dust sampling to identify the fibre and the size of the fibres and the concentration of fibres. And secondly, if wanted from that survey, to introduce dust suppression measures but if the employer chooses not to embark upon the dust measurement process, there is all the more reason to introduce the simple dust suppression measures.

    [3]    T 51-52.

16. The allegations of breach of statutory duty include allegations that the defendant failed, contrary to ss 303 and 304 of the Industrial Code 1920, and regulation 49 and subsequently regulation 35, to keep the workplace clean and ventilated, and to prevent dust and impurities injurious to the health of the plaintiff; and breached ss 180 and 181 of the Industrial Code 1967 and regulation 26 thereunder in the same way.

17. The plaintiff also alleged BHP breached s 29B of the Industrial Safety, Health and Welfare Act 1972, and the regulations thereunder,[4] in that it failed to take all reasonable precautions to ensure the health and safety of the plaintiff; failed to do all things necessary to ensure compliance with the regulations; failed to rectify defects which might cause danger to life or health; and more specifically, failed to comply with regulation 39 with regard to ‘asbestos work’ in failing to provide, maintain and use equipment which produced an exhaust draft to prevent an accumulation of asbestos dust above the standard of exposure for such dust; failed to provide protective clothing; failed to provide approved respiratory protection equipment, failed to keep the workplace clear and free of asbestos dust, failed to prevent the dispersal of dust, failed to thoroughly clean the floor of the processing area; failed to clean work surfaces, and failed to provide ventilation. Given the operative date of that Act I need not consider that aspect.

    [4]    This Act came into operation on 7 March 1974.

18. As I have said, the particulars of the breach of contract alleged are the breaches of negligence and breaches of statutory duty pleaded against the defendant.

19. No claim for an extension of time was sought. The defendant did not assert that the action was statute-barred.

20. The plaintiff’s claim for exemplary damages pursuant to s 9(2) DDA was pleaded on the basis that: the plaintiff was exposed to asbestos while employed by the defendant; that BHP knew that the plaintiff or a class of people to which he belonged were at risk of exposure to asbestos; that BHP’s foreman and supervisor directed the plaintiff to work with such materials or in the vicinity of such materials; and that BHP had actual knowledge that exposure to asbestos could result in a dust disease, namely asbestosis and cancer of the lungs or pleura.

21. Mr Parker SC, counsel for the defendant, during the course of the plaintiff’s opening, raised an issue in relation to particularisation of the plaintiff’s claim. Counsel submitted that in opening, counsel for the plaintiff had raised matters relating to the sources of asbestos to which the plaintiff was said to have been exposed, which were not particularised on the pleadings, including references to asbestos blankets, asbestos ropes, overspray, reworking of insulated areas, and cleanup of areas. Counsel for the defendant said that particulars had been sought of the case that was to be put as to sources of exposure, and the response received did not include such matters. Counsel for the defendant complained that the plaintiff had written shortly prior to trial seeking to raise the additional allegations, and submitted that a formal amendment was required, as the pleadings only referred to exposure as a result of the plaintiff working near, or in, the same work area or work space as laggers.

22. Counsel for the defendant also complained that the plaintiff proposed to put, as part of his case, that following an inspection of the work by a Dr Wilson, as a result of industrial proceedings, BHP had failed to follow up on Dr Wilson’s instructions to Bell’s, and failed to ensure that Bell’s complied with their obligations to implement Dr Wilson’s recommendations. That was put by counsel for the plaintiff, as relevant to exemplary damages, and is of course also potentially relevant to the case in negligence.

23. During the course of argument, counsel for the defendant foreshadowed a submission in respect of correspondence enclosing specific scientific publications, and the issue of what publications were generally available, or specifically within the knowledge of the defendant, that the scientific material was “virtually of no relevance at all”[5] because at the relevant time the National Health and Medical Research Council (‘NHMRC’) had “entered the field and had laid down an exposure standard”.[6] Counsel for the defendant said that the defendant’s submission would be “that in such circumstances there can be no obligation on an employer to, as it were, second-guess the NHMRC by conducting its own literature search”[7] and that if “the NHMRC, in making its own decision about what the standards should be, had not adequately responded to scientific material then in place”[8], such material could not be used against an employer in an attempt to demonstrate foreseeability of risk.

    [5]    T 43.

    [6]    T 43.

    [7]    T 44.

    [8]    T 44.

24. I reject the contention of counsel for the defendant, in that regard. Upon a finding that the defendant negligently exposed the plaintiff to asbestos, and that that asbestos exposure caused or contributed to the development of an asbestos-related disease, it seems to me that there is no warrant to endeavour to divide the damages into damages attributable to negligent and non-negligent exposure respectively, where the asserted dividing line is a standard recommended by the NHMRC.

1. Ultimately I have come to the view that the defendant was not embarrassed by either an amendment to the statement of claim by the addition of particulars concerning cleaning, or the failure to conduct air sampling, and that the defendant was squarely on notice in relation to such issues by virtue of the expert reports and the fact that such issues were raised in claims for damages being made against the defendant in respect of alleged exposure to asbestos at the Whyalla Shipyards, over broadly similar, or preceding periods of employment, to those under consideration here.

2. By its defence, the defendant originally alleged that, by virtue of the operation of the Broken Hill Pty Ltd Steelworks Indenture Act 1959, it did not owe a statutory duty to either Mr King or Ms Shaw. Quite properly that allegation was not pressed at trial.

3. By its amended defence BHP admitted its incorporation, and that it employed the plaintiff between the stated dates, as a fitter, at its Whyalla Shipyards. BHP denied allegations relating to the provision by the then second defendant, of material containing asbestos; denied the employment by the then third defendant of laggers to work at BHP’s premises, being work which generated asbestos dust and fibre; and denied that the plaintiff was required to work on board ships while employees of the then third defendant were conducting insulation stripping and replacement lagging on boilers. BHP denied that the plaintiff was exposed to asbestos dust and fibre as pleaded while employed at its premises; denied that the plaintiff contracted a dust disease; denied that it was negligent; denied each particular of negligence; and denied that it owed a statutory duty to the plaintiff. BHP denied the particulars of injury and disabilities, although admitted that the plaintiff had contracted bilateral pleural thickening, pleural plaques and lung cancer. BHP denied that the plaintiff’s loss was to the extent alleged and denied that it was caused or materially contributed to by BHP’s negligence. BHP asserted in the alternative that if the plaintiff was suffering from an asbestos-related disease, which it denied, the disease did not constitute damage.

   Was Mr King Exposed to Asbestos?

4. Documents tendered by the plaintiff identified the products containing asbestos that were used by the defendant.[9] Witnesses called by the plaintiff gave evidence of the use of asbestos at the Whyalla Shipyards.

   [9]    Exhibit P7.

5. I accept the evidence that Mr King’s potential exposure to asbestos was from multiple sources, including the use of asbestos in the lagging of pipes and the cutting of pipe sections. Asbestos composition, a loose powder form of asbestos was also used and the mixing of that substance produced substantial quantities of dust. Asbestos mattresses were filled and fixed into position in the engine room and asbestos rope was also used to insulate smaller pipes. Mr King was also exposed to the consequences of limpet asbestos spraying and the reworking of areas previously insulated. The cleaning up of areas where asbestos insulators had been working was also a significant source of exposure.

   Rodney King

6. Mr King was born in England on 7 June 1936. He left school at the age of 16 to commence an apprenticeship with British Rail, working in the marine department on cross channel ferries. He completed his apprenticeship in 1957 and became a ship’s engineer, spending some time at sea. In 1962 he left British Rail and began working at the Central Electricity Generating Board (‘CEGB’) as a fitter at the Marchwood Power Station in Hampshire.

7. As I have said, Mr King died on 18 July 2007.[10] No evidence was taken from him in relation to these proceedings before his death. Counsel for the plaintiff tendered a statement by Mr King dated 28 January 2005,[11] prepared for the purpose of a common law claim for damages resulting from his exposure to asbestos in the United Kingdom.

   Exposure to Asbestos prior to BHP

   [10]   Exhibit P14.

   [11]   Exhibit P43.

8. He said that he had some contact with asbestos during the time at British Rail, where he had worked alongside sail makers who applied asbestos cloth lagging with a filling of asbestos fibre to pipework, one or two days per month. He also removed that lagging. That was not particularly dusty work. He cut asbestos sheets with tin snips, to make gaskets. He said that his exposure was of a relatively limited duration.

9. While working at CEGB between 1962 and 1967 he had the heaviest exposure to asbestos dust, including exposure while laggers worked inside the power station stripping asbestos lagging from pipework and machines, or mixing new asbestos lagging and applying it. Mixing dry asbestos fibre with water was a very dusty job. Working on the overhaul of turbines twice each year involved working alongside laggers who stripped the insulation and removed asbestos blocks and dried slurry. That created visible dust in the air. He described that as extremely dusty work. He said he worked seven days per week including 12 hour days when working on overhauls for six weeks each year.

10. Mr King also said that in about 1966, about a year before he left CEGB, the company had commenced using seated stainless steel pads of rockwool as insulation, rather than asbestos insulation, in what appeared to Mr King to be a transition from the use of asbestos.

11. Mr King said whilst employed at CEGB he came into contact with asbestos “all day every day” and said his exposure to asbestos there was the heaviest exposure he had during his working life. Mr King had commenced a claim for compensation in the Manchester County Court on 9 March 2005 in respect of alleged exposure to asbestos dust and fibre whilst employed by the CEGB. On 6 January 2006 he accepted the sum of UK £20,000 in settlement of that claim.

    Exposure to Asbestos at BHP

12. Whilst still living in the United Kingdom, Mr King was offered employment with the defendant at its Whyalla Shipyards. He arrived at Fremantle in Australia on 23 May 1967 and commenced work at the Whyalla Shipyards on 5 June 1967. He worked as a fitter in the Engine Fitter’s Department. He ceased employment with BHP on 7 September 1972.[12]

    [12]   Mr King said he left to take up a better paid job.

13. In his statement of 28 January 2005 Mr King had described his exposure to asbestos at the Whyalla Shipyards in the following terms:[13]

    Between 1967 and 1972 I worked for BHP Whyalla shipyards as a fitter working in the engine rooms of ships under construction in the shipyard. I was fitting the turbines during this period. I had some exposure to asbestos at BHP. Getting towards the end of when the vessel was completed laggers came on board to lag the turbines and steam pipes. I estimate that I worked on about eight to ten ships in this period spending about six months on each ship. During the last two months on each ship the laggers came in to lag the turbines and steam pipes with asbestos. The laggers were employed by Bells Asbestos. I estimate that this amounted to about twelve to sixteen months in all when I worked alongside laggers. This is twelve to sixteen months total over the five year period adding up the time spent into one block.

    The turbines were lagged with asbestos blocks and so were the steam pipes. I was there when asbestos blocks were cut to size. It was a dusty job and I was not provided with a mask.

    Norman Hills

    [13]   Exhibit P43 at [42]-[43].

14. Mr Hills was born in England in 1928. He migrated to Australia in 1968 with his wife. He worked at the Whyalla Shipyards as a plumber from December 1968 until February 1978.[14] He commenced about 18 months after Mr King had started work there. A number of ships were constructed at the Shipyards during that period. He worked on all of them.[15] He had a poor recollection of the names and types of ships he had worked on. He worked mostly in the engine room of ships, doing pipe work and welding.[16]

    [14]   T 121.

    [15]   T 123.

    [16]   T 123.

15. The construction of a ship would commence on the slipway. The ship would then be launched and completed at the fitting-out wharf. The work that Mr Hills performed was done while the ship was at the fitting-out wharf.[17] He was very rarely at the slipway.[18] When a ship arrived at the fitting-out wharf it had sides, a deck above and an aperture at the top through which items of plant and equipment could be craned into the engine room. The ships were of various sizes and had correspondingly sized engine rooms. There was also an access port through the side of the ship and an alleyway down from the top of the ship to the wharf. He said that engines were installed at the fitting-out wharf and no substantial machinery was installed while the ships were on the slipway.

    [17]   T 123.

    [18]   T 160.

16. The fitters were generally the first trade to commence work on a ship, followed by the plumbers then the laggers. Fitters were responsible for installing plant and equipment. Plumbers would fabricate and install pipes to the equipment and the laggers would apply lagging to the pipes.[19] Mr Hills said that about 90 per cent of the pipes in the engine room were lagged.[20] The laggers would come into the engine room on the same week as the other trades. The laggers were not wearing any particular uniforms and their clothing did not bear a logo.[21]

    [19]   T 145-6.

    [20]   T 156.

    [21]   T 125.

17. Laggers would work in the engine room of a ship at the fitting-out wharf during the fortnight leading up to the conclusion of the lagging, up until it was time for the entire workforce to leave for the ship to be commissioned.

18. Mr Hills observed laggers apply lagging, shaped in semi-circular blocks, to pipes. The preformed blocks came in boxes and were approximately one yard in length. The laggers would join two semi-circle blocks together around a pipe and wire them together. The preformed blocks would be cut with a saw where they were too long or where there was a bend in the pipe being lagged.[22] He identified the preformed block used as the same as those displayed in a contemporaneous Bell’s brochure.[23] The laggers worked alongside and above the other trades on a series of platforms erected in the engine room. Mr Hills observed a lot of dust when the blocks were sawn, and powder, which he described as asbestos flakes, would settle on the floor.[24] He did not agree that laggers cut their pipe sections over a box or other receptacle which was taken away at the end of a shift or when it was full.[25]

    [22]   T 126.

    [23]   Exhibit P7.

    [24]   T 127.

    [25]   T 166.

19. The laggers would also mix an asbestos slurry, referred to as composition or “compo”. It was used to bond the pre-fabricated blocks and to insulate sections of the pipe where the pre-fabricated blocks wouldn’t fit, such as corners and flanges. Large paper bags of dried asbestos would be brought into the engine room and mixed with water to create compo. The dried asbestos would be poured from the bags into large drums, causing dust that rose up 10 feet into the air. The small particles of dust would take a very long time to settle.[26] Mr Hills could not say whether compo was also mixed on the shore, although he could not recall seeing wet compo being brought onto the ship.[27]

    [26]   T 130.

    [27]   T 167.

20. Mr Hills worked in close proximity to the laggers while in the engine rooms, at times within one or two yards. Mr Hills said that there could have been about 20 people working in an engine room at any one time, which included BHP employees and laggers.[28]

    [28]   T 130.

21. Dust was also dispersed into the atmosphere by the sweeping of the dust that had settled on the floor.[29] Mr Hills said there were a maximum of two people doing the cleaning work. The cleaning was done by Shipyard offsiders, not the laggers. They used long-handled brooms which stirred the dust back up into the atmosphere at varying heights, from six to ten feet. At times he would be three feet away from the person sweeping.

    [29]   T 132.

22. Mr Hills observed asbestos blankets and asbestos rope being used by the laggers. He could not recall what the blankets were used for but the rope was used instead of lagging to insulate smaller sections of pipe. The rope gave off fine particles of dust. Dust would also become suspended in the air when people walked through and disturbed the dust that had settled on the floor.[30]

    [30]   T 137.

23. Mr Hills said the dust given off from the cutting of the preformed half-pipe sections, from the bags of composition being emptied into drums and from the sweeping of the floor, was white.[31] The intensity of dust in the atmosphere fluctuated depending on the nature of the work being performed by the laggers. The dust was more intense closer to where the laggers were working.[32] There was no mechanical ventilation in the engine room, although the ships’ ventilation systems could have been in operation after the fitting-out process. He never saw portable ventilation systems or vacuum cleaners in the engine room. Mr Hills said that dust could be seen in the atmosphere with the artificial light in the engine room. There was never a time when there was no dust in the engine room. He said that at the end of the day his overalls were dirty with white dust. The dust would stick to his face.[33]

    [31]   T 133.

    [32]   T 134.

    [33]   T 135.

24. Mr Hills saw the plaintiff in the engine room; the plaintiff was nearly always in the engine room when he saw him. He recalled speaking with the plaintiff on a regular basis. He could not recall if the plaintiff worked anywhere else on the ships, but he only ever saw him in the engine room.[34] He accepted that fitters did work in parts of the ship other than the engine room.

    [34]   T 123.

25. Mr Hills said that he was never given any direction as to whether he should work in proximity of the laggers. He was never told not to work in the engine room when the laggers were performing lagging work. He was never informed of the health risks associated with asbestos dust and fibre. He was never supplied with a respirator or mask and there was never any discussion about such equipment. He did not observe anyone else in the engine room wearing a mask.[35]

    [35]   T 134-6.

26. Mr Hills was employed to work five days per week, although more often than not worked seven days a week. He said that on a seven day week he would work eight hours on Monday, Wednesday, Friday, Saturday and Sunday, and 12 hours on Tuesday and Thursday. He spent around two hours per day in the plumbers shop which was located on shore. He had one month of holiday leave per year. He believed that the plaintiff worked similar hours.[36]

    [36]   T 136.

27. There was only ever one ship at the fitting-out wharf but there could have been one or two ships on the slipway at any given time.[37] To his knowledge there was no period during his employment at which there was no ship being fitted out at the wharf.

    [37]   T 143.

28. Mr Hills agreed that he made a claim against the defendant alleging that he contracted an asbestos-related disease at the Whyalla Shipyards.[38] When asked why he did not mention asbestos rope or blankets in his claim against the defendant, he replied that he had never been asked about those materials before.

    Peter Boss

    [38]   T 141.

29. Mr Boss also worked as a plumber at the Whyalla Shipyards. He was born on 5 December 1942. He commenced as an apprentice in 1958 and completed the apprenticeship in 1963. He ceased employment at the Shipyards in 1979.[39] He worked on all ships constructed during that period.[40] There was usually one ship on the slipway and another on the fitting-out wharf. He agreed that there were times when there was no ship being fitted out at the wharf, but said that it didn’t occur very often.[41] He was unsure whether any heavy machinery was installed at the slipway before the ship was launched.[42]

    [39]   T 186.

    [40]   T 187.

    [41]   T 197.

    [42]   T 198.

30. Mr Boss worked predominantly on the fitting-out wharf and in the workshop.[43] There was a fitting-out workshop and plumbing workshop located on shore. He worked in the engine room and in the accommodation area of a ship. He also worked on the slipways.[44] Of the time he spent working on a ship, approximately 30 per cent was in the engine room.[45] He accepted that more than half of his time was spent away from the ship.[46] He worked in the same gang of plumbers as Mr Hills and they did the same sort of work.[47] There were times when they worked on the same job in the same place together, but other times one would be in the workshop and the other on the ship.[48] Mr Hills also worked in the accommodation area, but not regularly.[49]

    [43]   T 188.

    [44]   T 197.

    [45]   T 188.

    [46]   T 197.

    [47]   T 196.

    [48]   T 195.

    [49]   T 196.

31. He described the layout of an engine room in the same general terms as Mr Hills, with access to one side and an aperture at the top.[50] Laggers were present in the engine room, although he could not say how often.[51] Sometimes the laggers worked different hours to the other trades and were not present for the whole period during which the ship was at the fitting-out wharf. He couldn’t recall whether or not the laggers worked at the slipway.[52] The laggers would also work in the plumbers workshop.[53] They wore overalls with the insignia “Bells” or “Bell’s Asbestos” on them.[54] There were three or four laggers working on different levels in the engine room at any one time. Some were standing on scaffolding or the decking as it was constructed.[55]

    [50]   T 188-9.

    [51]   T 190.

    [52]   T 202.

    [53]   T 201.

    [54]   T 189.

    [55]   T 190.

32. The laggers had sections of preformed lagging that they used to cut and put around pipes. The sections would be cut wherever there was a bend in the pipe. He observed the sections of lagging being removed from boxes by the laggers. The sections used were the same as those displayed in the Bell’s brochure.[56] The sections were cut using a wood saw. The cutting would cause dust to be dispersed into the air.[57] Laggers also sprayed insulation but that was done at night.[58] Asbestos blankets were used as a heat shield to protect workers who were heating pipes or doing grinding work.[59] Blankets sewn up with material inside them were also wrapped around pipes.[60] Occasionally asbestos sections which had been fitted to pipes had to be removed if the pipes had to be changed for any reason. This did not create a large amount of dust.[61]

    [56]   T 190 and Exhibit P7.

    [57]   T 191.

    [58]   T 181.

    [59]   T 192.

    [60]   T 192.

    [61]   T 192.

33. Laggers created a slurry by mixing asbestos fibres and water. The slurry was used to hold the sections of lagging together. The laggers would bring in 20 kilogram bags of the asbestos fibre which would be emptied into a bucket. This would cause fibres to be circulated into the air.[62] He said that this was only occasionally done on the ship.[63]

    [62]   T 193.

    [63]   T 204.

34. Sweepers performed cleaning work in the engine room. There were two sweepers at any one time that would sweep the floor using brooms. The sweeping would cause dust to rise into the air. The cleaners would sweep the floor in close proximity to Mr Boss.[64]

    [64]   T 193.

35. There was artificial light in the engine room and light coming in through the aperture. Dust could be seen in the engine room, “there would be dust in the air”, “just generally you’d see it.” There was no other process performed in the engine room other than lagging which produced dust.[65]

    [65]   T 194.

36. Mr Boss never told by the defendant about the dangers associated with asbestos work. He was observed by his immediate supervisor from time to time working in the engine room. He was never given a mask and was never told not to work whilst the laggers were working.[66] He could not recall ever seeing an industrial vacuum cleaner being used in the Shipyards.[67] Portable ventilation systems such as fans and duct work were used, mainly to remove welding fumes. If welders were present in the engine room then portable ventilation systems would be present.[68]

    [66]   T 194.

    [67]   T 209.

    [68]   T 207.

1. If metal cladding was put around pipe sections it was done by BHP sheetmetal workers, not by the laggers. He could not recall seeing the sheetmetal workers wearing masks.[69]

   [69]   T 207.

2. He saw Mr King in the engine room and in the workshop on shore.[70] He also saw him in other parts of the ship apart from the engine room.[71]

   James Dickson

   [70]   T 188.

   [71]   T 201.

3. Mr Dickson was born in the United Kingdom in 1945 and migrated to Australia in 1968. He returned to the United Kingdom for a year in 1971 then returned to Whyalla, commencing in the Shipyards in early 1972. He worked at the Shipyards until its closure in 1978. He was a fitter, working on the slipway initially.[72] The engines were installed on the slipway but smaller pieces of machinery were installed when the ship was at the fitting-out wharf.[73]

   [72]   T 357.

   [73]   T 370.

4. He said that once the ship was taken to the fitting-out wharf, he would do a lot of pipe fitting inside the engine room. About 75 per cent of his work was carried out in the engine room. He recalled seeing the plaintiff working in the engine room, on the main engines and steering gear.[74] The mechanical fitters had a machine shop on the wharf but worked mainly on board the ships.[75]

   [74]   T 359.

   [75]   T 371.

5. In the engine room he saw lagging work being carried out. There were laggers working at times throughout the engine room on different levels. Some of the work was in the higher sections in the engine room. Scaffolding was used and at times he would work beneath the laggers. Laggers wore overalls with a “Bells” logo on them.[76] He saw laggers cutting the half-pipe sections either with a knife or a hacksaw blade and said that dust was given off when the cutting took place. He said “a lot” of dust was created. He identified the half-pipe sections as those displayed in the Bell’s Asbestos and Engineering Brochure.[77] There were no other processes undertaken in the engine room which created similar dust.[78] Asbestos blankets were also used to cover the main bearing blocks for the shaft as well as covering the shaft itself.

   [76]   T 359.

   [77]   T 360 and Exhibit P7.

   [78]   T 363.

6. He was unable to say whether laggers worked all of the time. He said that that was not to say they were not there and that, “I seen a lot of laggers in there, a lot of the time.”[79] He denied the proposition that when laggers were cutting the asbestos to put around the pipes that they put something underneath to catch the dust and off-cuts.[80]

   [79]   T 367.

   [80]   T 375.

7. There was no ventilation in the engine room. He was never told by anyone not to work in the vicinity of laggers and sometimes he would get within metres of them.[81] No one ever told him to wear a mask. No one told him of the dangers associated with working with asbestos.[82] He first became aware of the dangers of exposure to asbestos after he had left the Shipyards.[83]

   Ian Ewbank

   [81]   T 360-2.

   [82]   T 363.

   [83]   T 364.

8. Mr Ewbank was born in the United Kingdom in 1949. He migrated to Australia with his family in 1955. In about 1965 he started work for Bell’s as a lagger. At that time his father was the foreman supervisor in the company.[84]

   [84]   T 246.

9. Mr Ewbank’s first job for Bell’s was at Whyalla. Over the first years of his employment he spent about seven months of the year at the Whyalla Shipyards, and worked in Adelaide for the remainder. Bell’s headquarters were located in Adelaide. Premises were also rented in Whyalla. There would be a gang of about seven or eight laggers that would come up from Adelaide to work on a ship. When a ship was finished, they came back to Adelaide and would do other contract work installing insulation. He performed work at Osmond Power Station, CSR Sugar Refinery and Hallett Brick Co.[85]

   [85]   T 281.

10. In 1967 he moved to Whyalla where the amount of work he did at the Shipyards increased. During 1969 he spent four months in Melbourne and between 1971 and 1972 he spent 12 months in New Zealand working for Bell’s. Otherwise, he worked at the Whyalla Shipyards until its closure in 1978.[86]

    [86]   T 284-5.

11. In relation to the construction of ships, he said that as soon as a ship was launched and work started at the fitting-out wharf, the keel would be laid for the next ship at the slipway.[87] He agreed that laggers would be working on the ships around three times per year, for three to four months on each ship. There could have been breaks between ships for up to three months depending on the time taken to launch a ship from the slipway.[88] He said that laggers worked on the ship right up until sea trials.[89]

    [87]   T 247.

    [88]   T 284.

    [89]   T 318.

12. Ships built at the Whyalla Shipyards were of various sizes and employed different systems of propulsion. Towards the closure of the Shipyards, more of the ships were diesel powered motor vessels, as compared to steam vessels. The amount of lagging required on a steamship was about the same as for a motor vessel.[90]

    [90]   T 287.

13. Lagging work was performed on the slipway and at the fitting-out wharf. When Mr Ewbank worked at the Shipyards prior to 1967, the lagging work would be performed when the ship was at the fitting-out wharf. After he moved to Whyalla in 1967, the laggers were permitted to commence work while the ship was on the slipway.[91] It was generally with the larger ships that lagging work commenced on the slipway.[92] Lagging work was the same irrespective of whether a ship was on the slipway or at the fitting-out wharf.[93] It included insulating all the pipe work, boilers and turbines.[94] He said that 70 per cent of the lagging work was done in the engine room of a ship, with the remainder performed in the accommodation area and on other lines on the deck that had to be lagged.[95]

    [91]   T 313.

    [92]   T 315.

    [93]   T 250.

    [94]   T 248.

    [95]   T 252.

14. Lagging work would commence on the slipway at the stage where the keel of the ship was down, the sides were up, and there were no bulkheads but part of the deck was down ready for the accommodation to go in. An aperture would be left in the deckhead through which heavy items could be craned, and an opening was cut in the side of the bulkhead to enable access into the engine room.[96] The main motor, any large turbines and other heavy equipment was installed at the slipway and the ship constructed around them.[97] When lagging work was done in the engine room while the ship was on the slipway other workers were present including boilermakers, welders and fitters.[98]

    [96]   T 248-9.

    [97]   T 250.

    [98]   T 250.

15. There would be two or three laggers who commenced working on the slipway. The number of laggers increased and the work would continue once a ship was launched until it left the wharf for sea trials.[99] The laggers worked two shifts per day, with overnight work completed on certain tasks. Mr Ewbank worked the day shift, eight hours per day, seven days a week. On Tuesdays and Thursdays he used to work 12 hours a day. He said that BHP employees doing the fitting-out work used to work roughly the same hours, except perhaps for Sundays.[100] There were “not really” any occasions when the gang of laggers were on shift that lagging work would not be performed on the ship.[101]

    [99]   T 252.

    [100] T 286.

    [101] T 252.

16. The laggers used preformed pipe sections which, according to the packaging box, were manufactured by James Hardie. When the sections were removed from the box dust would float into the air.[102] He identified two sections of Exhibit P7 showing the two types of pipe sections used. The first was a product named “K-Lite Pipe Insulation” and the second was a product named “Hardie’s 85% magnesia”.[103] The standard length of the pipe section was about three feet. The laggers carried the pipe sections onto the ship. Small amounts were carried on by hand and large numbers would be delivered into the engine room on a pallet by crane.[104]

    [102] T 272.

    [103] T 254.

    [104] T 272.

17. The sections were used to insulate steampipes, exhaust lines from diesel generators, exhaust lines from the main motor, hot water pipes in the accommodation area, oil lines and drain lines.[105] The pipe sections were cut longitudinally into halves with the intention of putting the two halves together and binding them.

    [105] T 255.

18. Where there was a bend in the pipe being insulated, laggers would need to cut the preformed sections of pipe. They would mitre a section of the pipe using a handsaw. Cutting pipe sections gave off dust which would float around in the air and slowly settle to the ground. The task of cutting pipe sections was performed quite frequently.[106] When Mr Ewbank was asked whether cutting sections of pipe gave off dust he replied:[107]

    Yeah and all the dust, when you cut it, because, you know, it’s like cutting a piece of urethane, once you run the saw through, you know, you get all the dust down, come out of it.

    [106] T 255.

    [107] T 255.

19. The off-cuts of pipe sections were put into the box from which the preformed section came. The box would normally remain in the engine room overnight, depending on how full it was. Sometimes BHP cleaners would remove the box.[108] He agreed that where possible, the pipe sections would be cut over a box or a piece of cardboard.[109]

    [108] T 255.

    [109] T 305 and T 343.

20. Mr Ewbank said that the laggers had a hand broom and a dustpan which they would use to do a basic sweep up of the area they were working in. The dustpan would be emptied into the box containing the off-cuts. The sweeping up and emptying of the dustpan would cause dust to be dispersed into the atmosphere.[110]

    [110] T 256.

21. Composition was also used by the laggers to plaster over the preformed sections and mould around bends and odd shaped items being insulated. It was trowelled on like plaster. It came in bags and was mixed with water in a drum to produce a slurry. The bags were marked “L3” or “L5”. He believed that the L5 contained five per cent asbestos. The composition was mixed both on and off the ship, depending on the size of the job. It would be mixed aboard the ship a couple of times per week.[111] Preparing the slurry would cause dust to be dispersed into the air. It would float quite high, “it was a very fine powder, like talcum powder.”[112] Depending on the type of work being done, the composition may have been used up to several times a day or at other times only a couple of times per week. When the composition was applied to a site, excess would spill onto the deck. When people walked on the dried composition it turned to powder, giving off dust into the air.[113]

    [111] T 257.

    [112] T 257.

    [113] T 259.

22. The boilers on a ship would be insulated using K-Lite blocks. The blocks would have to be mitred to fit the surface of the boilers. A bandsaw located on shore was used to do most of the sawing. Occasionally, the blocks would have to be mitred in situ in the engine room using a hand saw. This would produce dust which floated in the atmosphere.[114]

    [114] T 260.

23. Asbestos cloth was used to cover the pipe sections once they were fitted. Metal sheeting was also used to cover the pipe sections, but in the bulk of the engine room cloth was used.[115] The cloth would be sewn on using an asbestos twine.[116] Later the cloth was attached using a glue or resin. Initially BHP sheetmetal workers would do the cladding. Towards the end of the 1960s Bell’s workers began to install the metal cladding over the asbestos lagging.[117]

    [115] T 261.

    [116] T 262.

    [117] T 298.

24. Asbestos rope was also used to insulate pipes. Mr Ewbank described the use of asbestos rope in the engine room:[118]

    If we had a pipe that had a seam trace or some sort of tracing alongside the pipe to keep it warm, we couldn't use the preform pipe sections because they wouldn't fit around it and therefore we used to use the rope and wrap - bandaging the rope, and the rope was used in the engine room on mainly oil lines that had any trace alongside them.

    [118] T 260.

25. Small sections of rope would need to be joined together when insulating a pipe. The joining of sections of rope would cause asbestos fibres to be released into the atmosphere.[119]

    [119] T 261.

26. Asbestos mattresses were used in the engine rooms. Mr Ewbank described the use and production of mattresses. He said:[120]

    It's a removable form of insulation that they used to put around the flanges and around the bows and it was just like you're making a pillowcase. We used to do our two types of cloth, the asbestos C9 cloth, asbestos C41 cloth, which had a copper through it, which you'd use on the hotter pipes. We used to cut them to the size we wanted after we'd measured the flange or the bow. We'd sew them up on the sewing machine, we'd then turn them inside-out like you do with a pillowcase to get all your edges inside, you don't see them, then we'd fill them with amosite fibre which is, you know, the material we'd put in, and you'd - if you had to have it 75-mil thick you'd open the bag up, you'd scrape it off the bench, drop it all in, you'd shake the bag to make sure it's all packed down tight, then you'd leave it on the bench, the end would be open and then you'd physically belt it, keep belting it so you got it down to the thickness you wanted, nice and firm, and as you're belting that all the other stuff's, all your excess stuff comes out the end. Then once you got it to the thickness you wanted you'd tuck your ends in, sew it up by hand or on the machine.

    [120] T 262-3.

27. The mattresses would be produced in the workshop and also on board the ships while on the slipway. The laggers would work in a tool cabin adjacent to the engine room. Asbestos fibres were ejected from the mattresses during production. The fibres would float around the tool cabin and travel into the engine room.[121] He agreed that mattresses would only be made in the tool cabin of the larger ships.[122] The majority of the mattresses were installed in the last three weeks of a ship’s construction, prior to sea trials.[123]

    [121] T 265.

    [122] T 325.

    [123] T 345.

28. When the laggers were required to work at heights, they would do so on a grid of scaffolding. BHP employees and laggers would be working beneath the scaffolding. Dust produced from lagging work would become trapped between the planks of scaffolding. When the scaffolding was moved from time to time the dust would dislodge and float down to the deck below.[124]

    [124] T 267.

29. Limpet asbestos was sprayed in the engine room by laggers during the night shift. The dried limpet asbestos would be combined with water in a spraying machine and squirted on to particular parts of the engine room. Mr Ewbank observed overspray of the limpet the following morning, on the deck and between the planks of scaffolding.[125] If the spraying of the limpet asbestos finished at 7:00am, Mr Ewbank would still be able to see particles of spray at 7:30am when he arrived at work.[126] When asked why this had not been mentioned previously, Mr Ewbank said that he had never been asked.[127] He described his observations of the spraying in the following way:[128]

    QWhen you saw it taking place the material that was coming out of a nozzle was wet wasn’t it.

    AIt was wet until it dried out. The gear they put on the machine which was probably 15 foot away from where they were spraying when they tipped it in the machine was dry and they used to split the bag, shake the bag into the machine. They had a belt drive with spikes on that broke it up and shot it out through the hose which mixed with water and then come out spraying wet.

    QCome out wet and it would hit the surface that it was sprayed on wet wouldn’t it.

    AYes.

    QAnd it would stick.

    AIt wouldn’t all stick. You’d have overspray and the overspray would sit, the minor parts of it and when they finished whatever they’re doing well the overspray they’d sweep it and parts of it float to the ground.

    [125] T 267.

    [126] T 349.

    [127] T 350.

    [128] T 351.

30. As to lighting in the engine room, he said that there was both artificial light which was powered from the shore and natural light that would shine in through the aperture. He was asked about his observations of the atmosphere in the engine room while he was working. He replied:[129]

    AYou could always see dust floating around when you looked up to - you know, like if you were down the bottom and you looked up, you could see the dust floating.

    QWhat colour was the dust.

    AIf we were making the dust, cutting lagging it would be a white, whitish colour. The dust from the mats, the amosite fibre was mainly grey in colour.

    [129] T 268.

31. He said that there were no other processes that occurred in the engine room which gave off the same sort of dust as that created from lagging work. Grinding work would produce metal sparks and smoke. Burning and welding work would produce fumes. The material given off from welding and grinding was minimal compared with that given off by lagging work.[130]

    [130] T 269.

32. BHP employed full-time cleaners who would clean around the engine room on a daily basis. There could have been up to ten cleaners working in the engine room at any time.[131] Amongst other duties, the cleaners would sweep the floor and the side of the bulkheads using ordinary brooms. This work projected dust into the atmosphere which would slowly float down.[132] He did not observe vacuum cleaners ever being used at the Shipyards.[133] The reasons for cleaning was put to him in cross-examination:[134]

    QOne of the reasons you were doing that was as part of your general practice of trying to minimise the amount of dust that your work created, correct.

    AWell, I’d put it that it was part of our job to clean up. I wouldn’t say it was to minimise the dust, but it was to clean up and if in cleaning up that minimised the amount of dust, then I suppose you are correct.

    [131] T 270.

    [132] T 271.

    [133] T 272.

    [134] T 311.

33. Bell’s employees were provided with overalls. Initially they bore the logo of “Bestobell”, which was changed to “Bell’s Thermalag” when the name of the company changed. Mr Ewbank said that when the overalls were struck, a big cloud of white dust would be expelled.[135]

    [135] T 270.

34. Mr Ewbank was never warned about the dangers of working with asbestos by anyone at the Shipyards. He never saw anyone performing work in the engine rooms wearing respirators or masks. He was never asked to only perform lagging work when no other trades were present.[136] He said that BHP supervisors and engineers were present during a ship’s construction on a daily basis. He recalled the names of three supervisors; John Hines, Mr Smith and Adam Maxwell. There were two or three others but he could not recall their names. They were in the engine room inspecting work while a ship was on the slipway and at the fitting-out wharf.[137]

    [136] T 270.

    [137] T 251.

35. When he first commenced working for Bell’s Mr Ewbank had been told by other people who had emigrated from the United Kingdom, that working with asbestos was dust harmful. He thought asbestosis was a disease that you contracted from working with asbestos. He didn’t realise until the late 1970’s that breathing in asbestos was harmful.[138] He said that he didn’t take any special precautions when working with asbestos-containing products at the Whyalla Shipyards. He was cross-examined about evidence he had given in an earlier trial. The following line of questioning ensued:[139]

    [138] T 247; T 275.

    [139] T 302.

    QOne of the things you said to me in cross-examination on that occasion was this, wasn't it, that 'So far as we were concerned -'that is Bell's,'- we weren't taking unnecessary risks. We were trying to keep the dust down as much as we could'.

    AWell, I know we didn't take it -

    QDid you say that.

    AI don't recall saying we were trying to keep the dust down.

    QDid you say what I've just quoted to you.

    AI'm just saying I can't remember saying we tried to keep the dust down. We worked normal and like I said we pulled it out, we cut it. Now, how can we keep dust down? Dust floats. We can't stop it floating.

    QAre you able to say yes or no, whether you in fact said what I just put to you in cross-examination.

    AI don't remember. I don't recall saying that, no, because I don't see how we can keep the dust down, the way we were working.

    QI asked you, 'So as you understood it, it -' that is asbestos, '- could kill you but only if you worked in it for life'. Your answer was 'Virtually yes'. I asked you 'Was that your understanding' and you said 'That was the understanding at the time, yeah'. Did you give that evidence.

    AI probably did give the evidence, yes. I remember saying that, as far as I knew. You know, like, it could kill you if you worked in the period for a long time.

    …

    QI then asked you, 'Believing that asbestos could be dangerous you at least were concerned not to take unnecessary risks with it, correct'. Your answer was 'So far as we were concerned we weren't taking unnecessary risks, we were trying to keep the dust down as much as we could'.

    AThat's what I'm saying. We don't go throwing it around. We still pulled the sections out normal, we cut them normal. Now, you've got dust from it. The dust happened and that - well, why not? You know, keeping it to a minimum, I mean, we didn't actually break it up and throw it up in the air and let it spread all over the place.

    QI then asked you 'You were trying to keep the dust down' and the answer was 'We were, yes'.

    AYes, well, that's what I'm saying.

    QDid you say that.

    AYes, that was -

    QWas it the truth.

    AWhat I meant, we didn't go throwing it all over the place. We didn't break it up and throw it around.

    QDid you say it.

    AI said yes, we did keep it to a minimum because we poured it out, we cut it and you got dust coming out of the box but what I'm getting at is you wouldn't put it on a grate 'Oh, let that go blowing in' and jump all over it and let it float all over it. We wouldn't do things like that.

1. Mr Ewbank’s recollection of rules and regulations for dealing with asbestos was that they only applied to asbestos removal. He first became aware of them when he was engaged by Bell’s to remove asbestos in about 1978, at the Whyalla powerhouse.[140] Asbestos-containing products used for lagging were phased out and replaced with asbestos-free alternatives from the mid-1970s. He said that the asbestos-free alternatives were available from as early as the 1960s.[141] He believed that the last three ships built at the Whyalla Shipyards before its closure were all asbestos free.[142]

   [140] T 290.

   [141] T 280.

   [142] T 273.

2. Mr Ewbank became a member of the Amalgamated Metal Workers Union in 1969. He recalled there being a number of strikes organised by the unions over the years that he worked at the Shipyards but could not remember the reason for the strikes or when they occurred.[143]

   Affidavit Evidence of Witnesses

   [143] T 298.

3. A number of affidavits were received into evidence, in addition to that of the plaintiff. All of the deponents were deceased. I have taken into account that their affidavits were prepared for the purpose of their claims relating to asbestos related illnesses. I acknowledge that their evidence, and the evidence of the plaintiff, was not tested by cross-examination. The evidence contained in the affidavits was, however, consistent both with the other affidavits, and the other evidence called by the plaintiff.

   Ivan Zunic[144]

   [144] Exhibit P9.

4. Mr Zunic was born in Croatia in 1924. He arrived from Italy on 19 September 1960. He commenced work at the Whyalla Shipyards after working for about one year on his brother’s farm.

5. He was employed as a painter and docker, working on the construction of new ships. He was employed as a general hand doing cleaning up, preparation of areas for painting, painting and brush work. He performed most of the work at the fitting-out wharf. One of the jobs he performed on many occasions was cleaning up after the laggers. He worked around laggers who put insulation on the pipes in the engine rooms and other hot areas in the ships.

6. The insulation came in pipe sections, in plaster form and as rope. The asbestos rope was grey-white in colour and about one inch in diameter. It was wrapped around pipes in the hot areas. The pipe sections were off-white in colour and fitted over the hot pipes. The laggers got them out of the cardboard boxes and cut them with a saw. He saw plaster being applied near the funnels by the laggers. They would put on a layer and then a wire net around it and then finish it with a cloth like a bag. He also saw a spray from a thick pipe being put on the same sort of areas. There were also thick blankets or quilts put around chimneys and pipes. Metal sheet was then wrapped around the pipes or put over the asbestos insulation.

7. Whenever Mr Zunic worked inside the ships dust would settle on his skin and clothes. It was his job to clean the dust off the shelves in the engine room. As he brushed the shelves, asbestos dust went into the air. He was required to brush the dust and rubble into a 20 litre steel bucket. It was dusty work. There was always white dust in the air inside the ships from when he started work until the day he left. Whenever he worked in the engine rooms there was always white dust in the air.

8. Laggers worked on the ship towards the end of construction just as Mr Zunic did, so he was working behind them or around them. The laggers put lagging on the pipes in his presence and they also worked with the pipe sections, rope and plaster and carried out the spraying.

9. Sometimes when Mr Zunic was sweeping he would wear a cotton gauze mask. The work was so dusty the mask would not last a day before it became clogged with dust. He considered the cotton mask useless because of the heat and the dust. He was never given any other mask; except for when he was spraying he was given a rubber mask.

10. He worked on the ships until 1979. He was never given any warning about the dangers of asbestos.

    Robin Stirling[145]

    [145] Exhibit P10.

11. Mr Stirling was born in Sydney in 1940. He began an apprenticeship with BHP in 1956 as a plumber. He spent the first two years on the maintenance gang, working on hot water systems located in various BHP buildings. He spent the last three years of his apprenticeship working in the Whyalla Shipyards. Plumbers had their own workshop on the fitting-out wharf. He made pipes and performed welding in the workshop. He used asbestos blankets and gloves to protect himself from the heat when welding.

12. He spent approximately 50 per cent of his time at the fitting-out wharf working on board ships fitting pipes. He worked extensively in the engine room and boiler rooms on the ships. Most of the time he worked alongside or near to laggers who were installing asbestos insulation on the pipes and boilers. The laggers used pre-form asbestos pipe sections to lag the pipes, as well as rope which was wrapped around the pipes. The lagging work was very dusty. The laggers cut the pre-form pipe sections to length on board the ships. When they did this dust went in the air around where he was working and he inhaled the dust. Lagging which had been removed from pipes was left on the floor and he trod on it as he worked.

13. Asbestos was also sprayed on the bulkheads in the accommodation areas. Spraying asbestos was an extremely dusty process.

    BHP Calls no Evidence

14. The plaintiff made submissions in relation to the defendant’s failure to call any witnesses, or failure to explain the absence of witnesses including its inspectors, medical officers, scientific officers, industrial officers, or indeed any person named in the discovered documents. In particular no witness was called as to the working conditions at the Whyalla Shipyards, nor called to dispute the specific description of exposure to asbestos dust and fibre, nor to rebut evidence as to the absence of precautions to protect employees during the course of the plaintiff’s employment. No witness was called to show that the defendant took measurements as to the levels of atmospheric asbestos dust, nor to show that the defendant provided warnings to employees about the dangers of inhaling asbestos dust, or lack of available asbestos-free materials. There was no witness to establish that the defendant did not have actual knowledge of the dangers of exposure to asbestos dust and fibre.

15. The plaintiff submitted that in such circumstances, given such matters were peculiarly within the knowledge of the defendant, the plaintiff was entitled, in the absence of any explanation as to the absence of such evidence, to an inference that such evidence would not have assisted the defendant;[146] and that in drawing such an inference the Court was entitled to be bold.[147]

    [146] Jones v Dunkel (1959) 101 CLR 298 p 308, per Kitto J.

    [147] SS Pharmaceuticals Pty Ltd v Qantas Airways Ltd [1991] 1 Lloyd’s Rep 288.

16. Given my findings it is unnecessary for me to draw such inferences.

    Findings as to Exposure

17. Counsel for the defendant, Mr Parker SC, submitted that, having regard to the frailties of testimonial evidence from witnesses, it is generally best to start with facts which are common ground or are established by contemporaneous records, and matters which can be inferred from such facts, resorting to testimonial evidence only to the extent necessary to fill in the gaps.

18. The defendant criticised the oral evidence on four main grounds. The first related to the time that had lapsed since the events occurred. The relevant events are some 40 years in the past and since that time, the health risks of exposure to asbestos have been the subject of widespread sensationalised reporting, highly critical of the conduct of asbestos manufacturers and users.

19. Second, many of the witnesses had brought claims against the defendant. It was submitted that in such circumstances, the natural tendency would be to exaggerate the amount of asbestos encountered.

20. Third, many of the witnesses had worked on numerous ships and at a number of Shipyards or dockyards over the decades making it almost impossible for them to accurately distinguish between observations made on different ships over the years.

21. Fourth, during the relevant period the witnesses generally had no appreciation that asbestos might be dangerous and, in the main, did not work with asbestos-based products and therefore had no reason to remember what they were exposed to.

22. I accept that all of the matters raised by counsel for the defendant are relevant considerations. Nevertheless, I accept that the lay witnesses were truthful, credible and reliable. Considering the evidence of the witnesses in its entirety, there was a consistency which was compelling.

23. The defendant sought to rely upon a volume of material[148] which generally speaking, did not deal with facts directly relevant to this case, nor did the documentary evidence directly contradict the evidence of Mr King’s exposure to asbestos, other than a report by a Dr Wilson who conducted an inspection at the Whyalla Shipyards. For reasons to which I refer later, I am not satisfied that Dr Wilson observed the work performed by the Bell’s laggers described by the plaintiff’s witnesses.

    [148] Exhibit D23.

24. I have had regard to the defendant’s criticisms as to the frailties of the direct evidence. Given my findings in respect of the credibility and reliability of that evidence and the scope of the documentary evidence, I am not disposed to follow the approach advocated by the defendant namely to rely principally on the documentary evidence, but rather have considered the evidence as whole.

25. The evidence relied upon by the plaintiff as to the nature and level of the plaintiff’s exposure to asbestos at the Whyalla Shipyards came from various sources. The statement of Mr King is relatively brief in relation to his work at the Shipyards. None of the plaintiff’s lay witnesses performed the same duties of Mr King, save for Mr Dickson who was also a fitter, although it appears that, as a pipe fitter, he performed more of his work in the workshop located on the wharf. Nonetheless, all the witnesses gave similar accounts of their observations of the role and duties of engine fitters and of the work performed by the laggers. Due to the fact that they were giving evidence of events that occurred over 40 years ago their evidence was of a general nature only. The work conducted by the laggers at the Whyalla Shipyards was described in generally similar terms by each witness. Despite some inconsistencies in the evidence, which is perhaps inevitable given the passage of time, I find that the witnesses were consistent in describing a very dusty working environment.

26. Mr Charles Ewbank was an important witness, and the only Bell’s employee contracted to perform lagging work who gave evidence. I found him to be an impressive witness and I have no hesitation in accepting his evidence. His evidence was supported by the accounts given by the other lay witnesses.

27. Counsel for the defendant submitted that I should treat the evidence of Mr Hills and Mr Ewbank with some reserve.[149] Submissions were made based on the reliability of their evidence, outlining various inconsistencies.[150] I acknowledge the submission made by the defendant that the passage of time may have some bearing on the ability of each witness to recollect details but I nevertheless accept that they were honest and reliable witnesses.

    [149] T 1226.

    [150] Defendant’s Submissions Appendix B2.

28. I find that the lagging work was performed in the manner described. It was a dusty process both during performance of the work and the subsequent clean up. The asbestos slurry was mixed either on the wharf or where the laggers were working and no attempt was made to ‘wet’ the asbestos at any stage. Masks were not provided to the workers and they were not warned of the dangers of working with asbestos. There was no ventilation in the hull of the ship during most of the period in which the lagging took place and the cleaning up of the ship was undertaken using a broom rather than an industrial vacuum cleaner. I find that the cleaning up contributed to the dusty environment. The methods used remained the same over the years.

29. I accept the plaintiff’s affidavit evidence that he was present when asbestos blocks were cut to size and that he was not provided with a mask. I accept that the form in which the statement was taken from the plaintiff may raise issues. The statement was prepared by solicitors experienced in asbestos litigation. As was observed in Gately v The Queen:[151]

    A witness’s proof of evidence can be a document carefully prepared by a lawyer who is under the influence of high hopes of what the witness may say as distinct from what the witness is initially prepared to say, who has one eye to the avoidance of future difficulties, and who relies heavily on the employment of leading questions. Thus a witness’s proof can sometimes be something which is not really the witness’s own statement.

    [151] Gately v The Queen (2007) 232 CLR 208 p 242 at [121].

30. Making allowance for the matters to which I have previously referred in relation to the affidavit evidence, I find that the evidence is supportive of Mr King’s case.

31. As I have said, the plaintiff was employed by the defendant at the Whyalla Shipyards from June 1967 to September 1972. He worked as a fitter, predominantly in the engine rooms of ships. There were ships under construction for about 50 of the 63 months during which the plaintiff was employed by the defendant,[152] and during that time there was one, and on occasions, two ships at the fitting-out wharf.

    [152] Exhibit D52.

32. Bell’s was contracted by the defendant to install insulation materials containing asbestos. Lagging work was performed on all ships constructed during the period of the plaintiff’s employment with the defendant. The work was performed on ships while ships were at the slipway, and at the fitting-out wharf. Lagging work only commenced on larger ships at the slipway, about three to four weeks before such ship were “launched” to the fitting-out wharf, and performed for almost the entire time the ships were at the fitting-out wharf.

33. I accept the evidence of Mr Ian Ewbank that the lagging of pipes and other areas occurred for the most part while a ship was at the fitting-out wharf and that around 70 percent of the lagging work performed by Bell’s was in the engine room of ships.

34. Lagging work commenced on the slipway and about three or four laggers would be present. As the fit-out work progressed, the number of laggers working on a vessel would increase. That in turn would result in an increase in the amount of lagging work performed and in the potential for asbestos dust and fibre to be released into the atmosphere in the engine room.

35. Lagging work performed in the engine room produced asbestos dust and fibres which were dispersed into the atmosphere. Asbestos pipe sections were cut in the engine room of the ships creating dust. Where possible, laggers would cut pipe sections over boxes or pieces of cardboard. K-Lite blocks were occasionally sawn by hand inside the engine room which produced dust. The asbestos composition was sometimes mixed on the wharf but also mixed on board the ships. This was a dusty process. Dust was also produced where lagging had to be removed when modification or repair work was required and from the application of asbestos rope, although these were not especially dusty processes.

36. The spraying of limpet asbestos in the engine room occurred at night in the absence of other trades. This process left a residue from overspray which would become trapped between scaffolding planks. The dried residue would become dislodged and fall to the ground below when the scaffolding was moved.

37. Cleaners were employed by the defendant to clean the engine room, using brooms. Laggers would also clean up debris and sweep the area in which they were working using a broom and dustpan. The sweeping caused asbestos dust and fibre to become airborne. No industrial vacuum cleaners were used.

38. The engine room was generally a dusty environment. The dust appeared more intense near where the laggers were working. There were no other processes performed in the engine room that produced the same levels or type of dust as that produced from lagging work.

39. The dust and fibres produced from these processes were visible in the artificial light and in the natural light that came in through the aperture in the engine room. The dust would become suspended in the air and eventually settle and accumulate on the deck, the ribs of the vessel and elsewhere throughout the engine rooms.

40. There was no mechanical ventilation operating in the engine room, except for portable ventilation systems used while welding operations were occurring. The ventilation in the engine room was limited to that which naturally came through the aperture and the access port in the side of the ship. I find that no respirators were used by those working in the engine room, including the plaintiff.

41. I find that any person working in the engine room when lagging operations were taking place would be exposed to the dust and fibres such operations produced. I find that Mr King was exposed to all of these potential sources of asbestos while working at the fit-out wharf. As well as the ‘background’ exposure to which he was exposed for some 53 months, there would have been additional peak exposures experienced by Mr King while working in close proximity to the laggers.

    Did the Plaintiff Suffer From a Dust Disease?

42. Section 3 DDA relevantly defines “dust disease” in the following terms:

    3—Interpretation

    In this Act, unless the contrary intention appears—

    dust disease means one or more of the following:

    (a)     asbestosis;

    (b)     asbestos induced carcinoma;

    (c)     asbestos related pleural disease;

    (d)     mesothelioma;

    (e)     any other disease or pathological condition resulting from exposure to asbestos dust;

    dust disease action means a civil action in which the plaintiff—

    (a)     claims damages for or in relation to a dust disease or the death of a person as a result of a dust disease; and

    (b)     asserts that the dust disease was wholly or partly attributable to a breach of duty owed to the person who suffered the disease by another person;

    injured person means a person who is suffering from, or who has suffered from, a dust disease.

43. By 1996, a high resolution CT scan of the plaintiff’s chest revealed the development of pleural thickening and pleural plaques. At that stage no definite interstitial lung disease was apparent. By April 2002, the plaintiff’s treating physician, Dr Bryant, concluded that the plaintiff had developed asbestosis. That diagnosis was based upon a CT scan performed on 25 March 2002, together with results of lung function tests.

44. As a result of the plaintiff’s asbestos-related pleural disease, he developed a right pleural effusion. Upon admission to hospital in April 2003 the plaintiff underwent a decortication and talc pleurodesis.

45. A bronchoscopy was arranged in February 2007 by Dr Bryant, which showed non-small cell carcinoma of the lung.

46. The plaintiff’s medical records were then examined by Professor Ruffin, a respiratory physician, who agreed with the diagnosis reached by Dr Bryant.

47. Relevant radiology was then forwarded to Dr Brett Hines, the Director of Radiology at Mater Imaging, North Sydney who agreed with the diagnosis of asbestosis.

48. Associate Professor Scicchitano, a respiratory physician, at the request of the defendant, examined the plaintiff in 2004 and 2007. In his report following the 2007 examination he too agreed with the diagnosis of asbestosis.[153]

    [153] Exhibit P36 (Associate Professor Scicchitano had died prior to trial).

49. It was submitted on behalf of the plaintiff, and I ultimately agree, that the plaintiff suffered asbestos-related pleural plaques, pleural disease and asbestosis.

50. The question as to whether exposure to asbestos materially contributed to the lung cancer, which subsequently led to the death of the plaintiff, is discussed later in these reasons.

    Foreseeability and Breach

    Legislative Presumptions

1. A couple of times a week Ms Shaw would assist the plaintiff with domestic tasks in and around his home at Christies Beach. If her sister was not available to take the plaintiff to his medical appointments, she would also assist with this task.[891] Ms Shaw agreed that her sister did more to assist her father than she did.[892]

   [891] T 74.

   [892] T 75.

2. Just prior to the plaintiff’s admission to hospital in 2003 she noticed he would become breathless if he had to walk any distance. This continued after his discharge from hospital.[893] From about 2006 onwards his breathlessness increased and he would become breathless just walking from the lounge into the kitchen.[894] Ms Shaw said her brother-in-law had fitted a handrail at her father’s house due to his difficulty with getting up the steps.[895] He also had difficulty with getting out of the car.[896]

   [893] T 75.

   [894] T 76.

   [895] T 73.

   [896] T 77.

3. In February 2007, Ms Shaw became aware that her father had been diagnosed with lung cancer. At the time of his diagnosis he had been in hospital for a short time.[897] Between the Mr King’s discharge from the Flinders Medical Centre in 2003 and his diagnosis of lung cancer in 2007, Ms Shaw noticed changes in his physical condition.[898] Around 2003, she noticed that he was losing weight and wasn’t eating much.

   [897] T 75.

   [898] T 75.

4. Prior to the debilitating lung condition the plaintiff would do things around the house including painting the house and gardening.[899] When he fell ill he had to pay a contractor to do the gardening.[900] Ms Shaw helped her father with jobs around the house for about two hours each week because she saw they needed doing. The plaintiff attempted chores around the house but would not be able to do much.[901]

   [899] T 78.

   [900] T 79.

   [901] T 77-78 and T 80.

5. Following the diagnosis of lung cancer the plaintiff moved in with his other daughter, Ms King. Ms Shaw visited him there but did not need to help around the house as such help was provided by her sister and her partner.[902] After a month of living with Ms King, the plaintiff was admitted to hospital for some weeks prior to passing away.[903] The plaintiff visited her father daily during his last three weeks in hospital.[904]

   Evidence of Sara-Jayne King

   [902] T 80.

   [903] T 80.

   [904] T 80.

6. Ms King was the other daughter of the plaintiff and the sister of Ms Shaw. She was born on 25 April 1962 in Southampton in the United Kingdom.[905]

   [905] T 85.

7. Ms King said that before the plaintiff fell ill and when her mother was still alive, Ms King visited her parents at their house about once a week.[906] When her mother passed away, her father took over the cooking and cleaning of the house.[907] At that stage Ms King began visited her father every day, including on weekends. Her partner also visited the plaintiff on weekends.[908] Daily visits continued from 1998, when the plaintiff suffered a back injury until 2003.[909] Ms King agreed that there was really no significant change in the pattern of visiting her father from 1998 through to 2007.[910]

   [906] T 101.

   [907] T 101.

   [908] T 102.

   [909] T 105.

   [910] T 108.

8. Ms King recalled the plaintiff being admitted to the Flinders Medical Centre in 2003, and remembered a drain was inserted into his lung during a surgical procedure. She visited him during the month that he was in hospital and would see the drain protruding from his chest.[911] When her father returned to his house at Christies Beach Ms King would take the 15-20 minute drive to visit him. She saw him most days after work and on weekends.[912]

   [911] T 86.

   [912] T 86.

9. Ms King also began to help her father around the house. She was asked the following questions:[913]

   QDid you do that because you thought that was the sort of thing a daughter should do for her father.

   AYes, I thought they were things that needed doing.

   QAs you saw it, you thought he was capable of doing it, at least to some level, but you wanted to do them properly.

   AIn some cases, yes.

   QIt wasn’t through any lack of physical capacity at that stage that you were doing these things, was it; that is, physical capacity on your father’s part.

   ANo, he was becoming out of breath in some instances but it wasn’t as bad as it became.

   [913] T 102-103.

10. Ms King agreed that prior to 2003 her father would perform his own maintenance work around the house and garden. After 2003, Ms King’s partner helped the plaintiff with maintaining his house.[914] A gardener was then paid to maintain the lawns.[915] Ms King’s father was always able to wash himself and dress himself. She could only recall two instances when her partner had to assist her father from the toilet back into his wheelchair.[916]

    [914] T 95.

    [915] T 95.

    [916] T 97.

11. Ms King’s assistance increased upon her father’s discharge from hospital in 2003.[917] She said:[918]

    [917] T 86-87.

    [918] T 88.

    QWhy did you do more.

    AHe had slowed down a bit. He was having trouble with the heavier work.

    QWhat work did you find he was having trouble with.

    AVacuum cleaning, making beds and hanging out the washing.

    QHad he done any of those things before.

    AYes.

    QWhat was the difference you saw after his discharge from hospital in early 2003.

    AHe was just a lot slow – more slow and he was limited in the amount of work he could do, or stay on his feet I should say.

12. Ms King noticed that if her father had to walk a distance on level ground he would have to sit down to get his breath. He had trouble with the steps in the lounge room so her partner fitted in the handrail so he could pull himself up.[919] Ms King agreed that the plaintiff would have to take rest breaks prior to 2003 if they were walking around the shops together and this appeared to be due to breathlessness.[920] She also agreed that he father was overweight from 1998-2003.[921]

    [919] T 88.

    [920] T 106.

    [921] T 106.

13. The plaintiff paid a cleaner to attend at his house once each week.[922] Ms King agreed that when the cleaner was at the house, she would probably not have assisted her father for three or four hours each week.[923] Ms King shopped for him. The plaintiff began getting Meals on Wheels delivered when he returned home following the 2003 hospital admission.[924] He only had one meal delivered at lunch time, and payment for those meals was debited directly from his account.[925]

    [922] T 91.

    [923] T 91.

    [924] T 89-90.

    [925] T 90.

14. Ms King noticed that the plaintiff was not breathing very well prior to his diagnosis in 2007, but after his hospital admission in 2003. That difficulty became worse.[926] When asked to describe his breathing at the time he was living with her, Ms King said that he always had to be in an upright position to breathe properly. She could not recall him complaining of any pain but remembered that he had a cough for a long time.[927]

    [926] T 94.

    [927] T 96-97.

15. In early 2007 her father was diagnosed with lung cancer, Ms King ceased her employment because her father needed more help. Ms King recalled the plaintiff falling over, following the diagnosis of lung cancer.[928] Following the fall the plaintiff moved in with Ms King.[929] He remained living with her for about a month before he was finally admitted to the hospital.[930]

    [928] T 89.

    [929] T 97.

    [930] T 98.

16. From the time he was discharged in 2003 to the time that he moved in with her, Ms King spent three or four hours a week assisting her father, doing the shopping, vacuuming, washing and anything else she thought would assist.[931]

    [931] T 90.

17. Following his diagnosis in 2007, the plaintiff had increased difficulty with his mobility so Ms King bought him a wheelchair. He became wheelchair bound for the final month of his life.[932] At that time the plaintiff also began to complain of suffering from dizzy spells and stopped driving.[933] Ms King would do most of the driving for her father.[934] When asked to describe the plaintiff’s appearance and demeanour at his stage she said:[935]

    AHe was starting to – his muscles appeared to be wasting and his mobility was just non-existent. He was always in the wheelchair.

    QWhat about the size of his ankles or limbs, did they change.

    AHis ankles actually did blow up considerably.

    [932] T 92.

    [933] T 96.

    [934] T 96.

    [935] T 97.

18. Ms King drove her father to and from his medical appointments, including those with Dr Bryant and Dr Vlahos. Ms King maintained a calendar of dates when her father needed to attend for radiotherapy and blood tests.[936] A calendar outlining some of these appointments was tendered by the plaintiff.[937]

    [936] T 92.

    [937] Exhibit P5.

19. On the day that he was admitted to hospital for the final time, Ms King described getting up and finding that her father couldn’t move at all. He had lost control of his bowel movements and was having trouble breathing. He told Ms King to call an ambulance. From there he was taken to the Flinders Medical Centre where Ms King visited him over the next few weeks until he passed away.[938]

    [938] T 100.

    Exemplary Damages

20. In addition to compensatory damages the plaintiff claims exemplary damages pursuant to s 9(2) DDA. That section relevantly provides:

    The Court should make an award of exemplary damages in each case against a defendant if it is satisfied that the defendant—

    (a)     knew that the injured person was at risk of exposure to asbestos dust, or carried on a prescribed industrial or commercial process that resulted in the injured person's exposure to asbestos dust; and

    (b)     knew, at the time of the injured person's exposure to asbestos dust, that exposure to asbestos dust could result in a dust disease.

21. Dust disease is relevantly defined as asbestosis, and cancer of the lungs or pleura. Counsel of the plaintiff asserted that the defendant knew Mr King was at risk of exposure to asbestos dust, and knew that exposure to asbestos dust could result in a dust disease.

22. In order to be entitled to an award of exemplary damages the plaintiff must show that the defendant had actual knowledge at the time of Mr King’s exposure to asbestos that exposure could result in a dust disease. Counsel for the plaintiff asserted that Mr King was exposed to asbestos whilst employed by the defendant as a result of working in the vicinity of others installing asbestos installation. It was further asserted that the defendant knew the plaintiff was at risk of exposure to asbestos, and as I have said, asserted that the defendant had actual knowledge that exposure to asbestos could result in a dust disease.

23. As was observed in BHP Billiton Ltd v Parker,[939] at common law exemplary damages may be awarded for a tort involving a reprehensible disregard of the plaintiff’s interests, often expressed in the phrase “a contumelious disregard of the plaintiff’s rights”.[940] Their purpose is to punish and deter the wrongdoer, The Court cited Uren v John Fairfax & Sons Pty Ltd, where Owen J said:[941]

    [A] jury may award damages over and above those required to compensate the plaintiff for the injury suffered by him if it forms the opinion, on evidence justifying that conclusion, that the defendant’s conduct in committing the wrong was so reprehensible as to require not only that he should compensate the plaintiff for what he has suffered but should be punished for what he has done in order to discourage him and others from acting in such a fashion.

    [939] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [205].

    [940] Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 p 77, per Knox CJ; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 pp 129, & 138, per Taylor J; Gray v Motor Accident Commission (1998) 196 CLR 1 at [14].

    [941] Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at [158].

24. In Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd:[942] Brennan J described the rationale behind such awards in the following terms:

    As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories.

    [942] Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 p 471.

25. As the Court in BHP Billiton v Parker observed:[943]

    The nature and purpose of exemplary damages mean that in negligence cases, the circumstances in which an award will be appropriate or likely to be exceptional. This was recognised in the judgment of the majority in Gray v Motor Accident Commission:[944]

    Exemplary damages are awarded rarely. They recognise and punish fault, but not every finding of fault warrants their award. Something more must be found.[945]

    Later the majority said:

    First, exemplary damages could not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant. Ordinarily, then, questions of exemplary damages will not arise in most negligence cases be they motor accident or other kinds of case. But there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. Cases of an employer’s failure to provide a safe system of work for employees in which it is demonstrated that the employer, well knowing of an extreme danger thus created, persisted in employing the unsafe system might, perhaps, be of the latter kind.[946]

    [943] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [207].

    [944] Gray v Motor Accident Commission (1998) 196 CLR 1.

    [945] Gray v Motor Accident Commission (1998) 196 CLR 1 at [12].

    [946] Gray v Motor Accident Commission (1998) 196 CLR 1 at [22].

26. It is apparent that s 9(2) DDA is intended to effect a change to the common law approach.[947] Section 9(2) thereby provides that a court should make an award of exemplary damages if satisfied of two matters: that the defendant either knew that the injured person was at risk of exposure to asbestos dust or carried on a prescribed industrial or commercial process that resulted in the plaintiff’s exposure to asbestos dust and that the defendant knew, at the time of the injured person’s exposure, that exposure to asbestos dust could result in a dust disease. Section 9(2) does not refer to a criterion such as reprehensible conduct or conscious and contumelious disregard for a plaintiff’s rights. It substitutes different criteria, and indicates that if the defendant is in the defined category and had the requisite knowledge, an award of exemplary damages should be made.[948]

    [947] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [208].

    [948] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [211].

27. That sub-s (2) maintains the use of the expression “exemplary damages”, suggests that s 9(2) is not intended to alter the common law purpose of an award of exemplary damages, but contemplates that exemplary damages should still be awarded for the punitive and other purposes contemplated by the common law.[949]

    [949] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [212].

28. Section 9(2) should of course be construed so as to be consistent with the language and purpose of the DDA and by reference to the DDA as a whole.[950] Section 9(2) is one of three subsections in s 9, which have the apparent purpose of facilitating an injured person’s recovery of damages, or of expanding the damages which may be recovered.

    [950] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [216].

29. The inclusion of sub-s (2) suggests that it too was intended to have a beneficial effect for plaintiffs. 

30. Section 9(2) is intended to have a beneficial effect, namely, the protection of persons from exposure to asbestos by discouraging the defendant and others from engaging in like conduct. In Waugh v Kippen,[951] in addressing the tension between the approach to interpretation of provisions both penal and remedial, Gibbs CJ, Mason, Wilson and Dawson JJ said:[952]

    In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the Court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have.

    [951] Waugh v Kippen (1986) 160 CLR 156.

    [952] Waugh v Kippen (1986) 160 CLR 156 p 164. See also Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 pp 109-10, per McHugh J.

31. Section 9(2) will apply in a wide range of actions, not just in actions by injured workers against employers, and is capable of applying in cases in which a defendant has had no contact with, or knowledge of, a particular plaintiff who had an exposure to asbestos dealt with in one of the prescribed ways by the defendant. Such a defendant would have no knowledge at all about the nature, extent or duration of the exposure of the particular plaintiff. It seems improbable that the legislature intended that sub-s 2(a) should be enlarged so as to encompass such persons, but then sub-s 2(b) confined so as to exclude them. Section 9(2) does not contain any other indication that persons who have had no contact with, or knowledge of, a particular plaintiff are excluded from its ambit.[953]

    [953] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [223].

32. Section 9(2) is to be read consistently with s 8(2), which relevantly provides:

    A person who, at a particular time, carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust will be presumed, in the absence of proof to the contrary, to have known at the relevant time that exposure to asbestos dust could result in a dust disease.

33. Section 8(2) also includes the expression “that exposure to asbestos dust could result in a dust disease”. The second use of the expression “exposure to asbestos dust” in s 8(2) refers to the same kind of exposure to which the expression when first used refers, ie, any exposure at all. Persons who carry on a process which could result in the exposure of another to asbestos dust (ie, any exposure) are to be presumed, in the absence of proof to the contrary, to know that exposure (ie, exposure generally) could result in a dust disease.[954]

    [954] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [224].

34. The identical expression used in s 9(2)(b) should be given the same meaning.[955] The knowledge to which s 9(2) refers includes imputed as well as actual knowledge. The presumption of knowledge required by s 8(2) is not confined to the liability aspects of an injured person’s claim.[956]

    [955] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [225].

    [956] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [227].

35. Section 9(2) uses the word “should” rather than words such as “must” or “shall”, meaning that the Court has some residual discretion regarding the award of exemplary damages in the circumstances to which s 9(2) refers:[957]

    [957] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [228]; and see South Australian Housing Trust v Development Assessment Commission & Anor (1996) 63 SASR 35.

36. The legislature used different language in each of the subsections comprising s 9 in describing the Court’s function: “may” in sub-s (1); “should” in sub-s (2); and “must” in sub-s (3), suggesting that the word “should” is used in less than a mandatory sense but more than simply a permissive sense, and if the legislature had intended that there should be a mandatory obligation to award exemplary damages, it would have been easy to say so. That it has not done so may be taken to reflect recognition by the legislature that there may be some circumstances in which, despite satisfaction of the criteria contained in subs (2), there may be sound reason for an award of exemplary damages not to be made.[958]

    [958] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [230]-[231].

1. Where the defendant is in the category identified in sub‑para (a) and had the knowledge to which sub-para (b) refers, the Court ought, absent some sufficient countervailing consideration, make an award of exemplary damages. It is no longer necessary that a defendant’s conduct be characterised as reprehensible before an award is made (although if a defendant’s conduct is reprehensible, that would be relevant to both the exercise of the discretion and to the assessment of the amount to be awarded). Section 9(2) should be understood as substituting the statutory criteria for the common law criteria; not as adding to those criteria. There will be circumstances in which, despite the use of the word “should”, the Court may exercise the discretion not to make an award, but those circumstances will be outside the norm.[959]

   [959] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [232].

2. This has the effect that an award of exemplary damages may be made against a defendant in respect of a breach of duty occurring many years previously, who no longer has any involvement with asbestos, whose conduct does not in the eye of the common law warrant punishment, and in respect of whom notions of deterrence are of no or limited weight. That however is the legislative intention. There is no indication that s 9(2) is not to apply in such circumstances and, indeed, they are the circumstances which are likely to exist in many, if not most, dust diseases actions.[960]

   [960] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [233].

3. The matters relevant to an assessment of exemplary damages at common law include the defendant’s conduct, the need to punish the defendant, and the defendant’s size and wealth. The punitive purpose of exemplary damages means that there is no requirement for proportionality between them and the compensatory damages.[961] In general, it is to be expected that awards of exemplary damages under s 9(2) will not be large, at least in those cases in which the Court does not regard the defendant’s conduct as reprehensible.[962]

   [961] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [237].

   [962] BHP Billiton Ltd v Parker (2012) 113 SASR 206 at [238].

4. Counsel for the plaintiff referred to other awards under this head. I would have awarded a considerably larger sum than I have done under this head, having regard to my findings as to the state of knowledge as to the risks associated with exposure to asbestos dust, and my findings as to BHP’s actual knowledge at the time the plaintiff was employed, and during the course of his employment. However, I regard myself as constrained by the decision in BHP v Parker,[963] given the sum awarded, and approved of there, relating to employment in 1971 and 1972.

   [963] BHP Billiton Pty Ltd v Parker (2012) 113 SASR 206.

   Heads of Damages

   General Damages

5. The plaintiff died on 18 July 2007. For reasons I have discussed I do not find that his death was related to the exposure to asbestos due to the negligence of BHP. The period between the diagnosis of any asbestos-related condition in 1996 and his death was 11 years. The period between the diagnosis of asbestosis in 2002 and the diagnosis of lung cancer in 2007 was about five years.

6. Mr King’s health from 1996 was only reasonable. He was overweight. He was a heavy smoker. He had suffered a back injury. Nevertheless, he was living independently and engaging in activities he enjoyed around the house including gardening and pottering in his shed.

7. Following diagnosis of the asbestos-related conditions he required follow up assessments, the administration of x-rays and CT scans, and surgical intervention in order to perform the cortication and talc pleurodesis. He spent a period of at least one month in hospital prior to that procedure. The procedure is, on the evidence I accept, directly related to his asbestos-caused condition. As I have said, although I have no direct evidence I infer that he would have been very concerned about the initial diagnosis of pleural plaques, and about the progression of his condition with the diagnosis of asbestosis in 2003. His ability to enjoy life had been significantly compromised. He had lost his ability to entirely care for himself and to live independently and required assistance as time went on.

8. I accept that part of his problems related to the impact upon his respiratory capacity, of his use of tobacco. However, I note Dr Bryant’s evidence as to the rapidity of the plaintiff’s deterioration which Dr Bryant attributed to the development of asbestosis.[964]

   [964] T 427.

9. In 2004 Professor Alpers assessed the plaintiff as having a 20 per cent disability related to his asbestos conditions. He said that the plaintiff’s predominant problem was air flow obstruction related to cigarette smoking, but the asbestos conditions contributed to exercise intolerance and symptoms and account of the hospitalisation with pleural effusion. Professor Scicchitano said, as I have previously noted, that the percentage of the plaintiff’s whole person impairment attributable to his asbestos-related injuries was 60 per cent, and attributable to his smoking-related injuries was 40 per cent.

10. On the basis of the evidence to which I have referred, and as best I can, taking into account only the impact of the asbestos-related conditions as a whole from the period up until the condition of lung cancer intervened, I would assess the entitlement to general damages in the sum of $60,000.00. That is of necessity an award for past damages.

    Past Care

11. I have had regard to the evidence of Ms Shaw and Ms King as to the assistance required by the plaintiff up until the time of diagnosis of lung cancer in February 2007. I have also had regard to the opinion expressed by Ms Morgan who assessed Mr King on 18 June 2007. At the time Mr King was 71 years of age and had lived alone for the preceding 14 years. He had moved to stay at one of his daughter’s homes in May 2007 due to feeling unwell as a result of the side effects of radiotherapy.

12. The gratuitous assistance is to be compensated at commercial rates.[965] Ms Morgan calculated Mr King’s past need for assistance based on the information available, from 2003 until May 2007.[966] She proceeded on a calculation of a need for two hours per month of garden maintenance and one to two hours per month of home maintenance at an average cost per hour of $27.38; cleaning assistance of two to three hours per week and laundry assistance of one to two hours per week both at an average cost per hour of $22.78; and spring cleaning of six to ten hours per six months at $22.78 per hour.

    [965] Van Gervan v Fenton (1992) 175 CLR 327.

    [966] Exhibit P17 p 13.

13. That is, broadly speaking, consistent with the evidence of Ms Shaw that during the period between 2003 until 2007 she provided about two hours assistance per week, and of that Ms King, provided three to four hours assistance per week. Additional assistance was provided by Ms King’s husband.

14. The period between the presentation in 2003 of worsening breathlessness, and the diagnosis of lung cancer is almost precisely four years. The award under this head will of necessity be based on an estimate of the care provided, and the justification for the provision of care is derived from a combination of the medical evidence, the opinion of Ms Morgan, and the evidence of the plaintiff’s daughters.

15. That award does not incorporate any allowance for payment to Meals on Wheels which the plaintiff required from 2003.

16. Given the evidence, a precise calculation is not possible. Using a composite hourly rate of $25, and allowing six hours per week produces a total, for the four year period between 2003 and 2007 of $31,200. Some of that must be regarded as relating to non-compensable issues. I award $20,000.

    Medical Expenses

17. Medical expenses incurred prior to the diagnosis, of lung cancer total $3005.29. Some proportion of expenses relate to smoking-related conditions. I award $2,000.

    Out of Pocket Expenses

18. The sum of $4,204.50 had been paid to Meals on Wheels, and a sum of $2,426 had been paid for lawn mowing. Of the total of $6,630.50 I award $4,400.

19. The sum of $127.26 had been claimed for pharmaceutical expenses between January and June 2007, and a sum for travel expenses for radiotherapy, and for funeral expenses, which I do not award having regard to my findings in relation to the condition of lung cancer.

Past general damages	$60,000
Past gratuitous services	$20,000
Past medical expenses	$2,000
Past out of pocket expenses	$4,400
Total	$86,400

Divisibility

1. As observed at the outset of these reasons, the plaintiff’s exposure to asbestos did not occur only whilst in the employment of BHP. On the plaintiff’s own account, he suffered a heavy exposure to asbestos whilst employed in England. His work with British Rail between 1952 and 1962 involved limited exposure to asbestos. He was heavily exposed to asbestos while working with the Central Electricity Generating Board between 1962 and 1967, particularly during the latter part of that employment. I find that he suffered considerable exposure to asbestos with BHP, in accordance with the evidence I have accepted. I deduct 60 per cent from his damages, on the basis of the contribution to his asbestos‑related conditions, of exposure whilst employed in England.[967] Accordingly, the total award of compensatory damages is $34,560.

   Interest

   [967] Although the plaintiff compromised his action in the United Kingdom, it is not necessary for me to enquire as to the basis of that compromise. Nor is it necessary to deduct any part of that amount from the award here, given the approach taken to divisibility, namely a substantial deduction on account of the exposure to asbestos which I have assumed occurred in the United Kingdom.

2. The plaintiff is entitled to interest at 4 per cent on the award for past general damages and gratuitous services, and say six per cent on out of pocket expenses. I award a lump sum in lieu of interest of $8,500.

   Exemplary Damages

3. As I have said, I have had regard to the approach taken in BHP v Parker,[968] and in Van Soest v BHP.[969] I award the sum of $20,000 by way of exemplary damages.

   [968] BHP Billiton Ltd v Parker (2012) 113 SASR 206.

   [969] Van Soest v BHP Billiton Ltd [2013] SADC 81.

4. Therefore the adjusted sum of $34,560 for compensatory damages, the lump sum in lieu of interest of $8,500, and the award of $20,000 in exemplary damages result in judgment for the plaintiff in the sum of $63,060.

5. I will hear the parties as to costs and any consequential orders.