Sheehan v Cockatoo Dockyard Pty Ltd

[2001] NSWDDT 16

Dust Diseases Tribunal

of New South Wales

CITATION:	Sheehan v Cockatoo Dockyard Pty Ltd & Others [2001] NSWDDT 16
PARTIES:	Ruby Sheehan on behalf of the estate of the late Dermott Sheehan City of Canada Bay Council (fourth defendant) Commonwealth of Australia (sixth defendant)
MATTER NUMBER(S):	24 of 2001
JUDGMENT OF:	O'Meally J at 1
CATCHWORDS:	Damages :- Exposure
LEGISLATION CITED:
CASES CITED:	Bonnington Castings Ltd v Wardlaw 1956 AC 613 at 621.
DATES OF HEARING:	31 July 2001 1 August 2001 2 August 2001
EX TEMPORE JUDGMENT DATE :	08/02/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr G F Little SC with Mrs E J Techera instructed by Shaw McDonald appeared for the Plaintiff FOR DEFENDANT Mr D J Russell instructed by Moray & Agnew appeared for the fourth defendant Mr J F Burn instructed by Australian Government Solicitor appeared for the sixth defendant

JUDGMENT:

1. This is an action for damages by Ruby Sheehan on behalf of the estate of her late husband Dermott Sheehan. On 12 January last the late Mr Sheehan issued a statement of claim out of the Tribunal against Concord Council. Thereafter a number of amended statements of claim were filed, the last in July this year. That statement of claim named seven defendants. However, in the course of the proceedings the plaintiff came to an accommodation with a number of them and now verdicts are sought against two only, the successor to Concord Council, that is to say the City of Canada Bay Council and the Commonwealth of Australia.

2. The evidence of the late Mr Sheehan was taken at Concord Hospital on 30 May 2001. At that time Mr Sheehan was distinctly unwell and suffering a number of the effects of malignant mesothelioma. Morphine had been administered to him and though he was lucid it was apparent that he was confused as to some matters and it became necessary during the course of his evidence to take an adjournment to enable him to deal with his discomfort and distress.

3. Mr Sheehan died from the effects of mesothelioma on 24 June 2001. Thereafter his widow was substituted as the plaintiff to bring these proceedings on behalf of his estate.

Exposure

4. I think it fair to say that in respect of a number of the defendants the plaintiff was unable to prove exposure to asbestos in the course of employment either by them or at places controlled by them. However, it has been established that he was exposed to asbestos dust and fibre while working at the army barracks at Singleton and whilst employed by Concord Council. It has been conceded by counsel for the City of Canada Bay Council, the successor to Concord Council, that Mr Sheehan was exposed to asbestos in the employ of Concord Council sufficient to make a material contribution to his malignant mesothelioma and that it is liable in damages to Mr Sheehan’s estate.

5. Counsel for the Commonwealth of Australia, in which the barracks at Singleton are vested, disputes that Mr Sheehan was exposed to sufficient asbestos as would make a material contribution to his mesothelioma. It becomes necessary, therefore, to consider the evidence in relation to exposure whilst Mr Sheehan was working upon the construction of the barracks at Singleton.

6. Mr Sheehan swore an affidavit on 18 April 2001. This is in evidence as PX1. Para 22 of that affidavit is in these terms:

When I was working at the Singleton Army Base I built the barracks from fibro cement. The sides and the eaves were constructed of fibro and were built using the same methods as the Housing Commission homes in the Dundas Valley. I used my own fibro cutters, handsaws, hammers and other tools which I used in the same way I had whilst with the Housing Commission. As before, dust was generated when I sawed or cut the fibro, also when nails were hammered into it. This dust was in the air and was visible.

7. It is appropriate to refer also to that part of Mr Sheehan's affidavit which relates to the work he was doing on Housing Commission houses. In par 10 of Mr Sheehan's affidavit he, speaking of Housing Commission homes, said:

...the vast majority of these homes were built from or constructed from fibro sheeting. In the course of my duties, I worked at least 8 hours per day starting in the morning. The tools which I used were my own for use on fibro sheeting including fibro cutters, handsaws and hammers and nails to fix the sheeting. The main areas I worked upon were the outside vertical cladding and the underside of the eaves. These areas were cladding fibro sheeting which were fixed. In the course of performing this work, using the fibro cutters, handsaws and hammers, the boards would give off white dust which would be in the workplace. I remember breathing in the white dust and I remember it being on my clothes. The dust was visible in the atmosphere, this was especially on a windy day.

8. In oral evidence on 30 May 2001 Mr Sheehan spoke of working on the eaves of Housing Commission homes and of the use of power tools. In respect of the barracks at Singleton he was asked the following questions and gave the following answers. These appear at T7 between lines 7 and 19.

Question What about the Singleton Army Barracks.
Answer Singleton.
Question What sort of tools were you using at Singleton.
Answer The same thing.
Question Some power tools, some hand tools.
Answer Okay, that's right.
Question What materials were you working with at Singleton.
Answer Same type of thing, timber frame ... eaves, that type of thing.
HIS HONOUR: Question I did not hear what you said.
Answer Pipe.
Question You were working with timber and -
Answer And fibro.
Question Thank you. At Singleton at the army barracks.
Answer That's right.
MR LITTLE: Question Did they have fibro eaves also, the barracks.
Answer They did, exactly right.

9. It is conceded by counsel for the Commonwealth of Australia that there was some exposure to asbestos, but insufficient to make a material contribution to Mr Sheehan's mesothelioma. It is said that the evidence establishes only a possibility of a material exposure and in this connection reliance was placed upon a report tendered for the Commonwealth by Dr Anthony Johnson of 10 April 2001. In this report Dr Johnson records a history, given to him by Mr Sheehan, that the walls of the barracks at Singleton were of metal. It is put by counsel for the Commonwealth that this, if accepted, would significantly limit the quantity of exposure to asbestos dust whilst working on the property of the Commonwealth of Australia.

10. With all respect to this argument I am unable to accept it. It is a phenomenon well recognised by those with experience of hearing doctors' evidence and reading their reports that what a patient tells a doctor and what a doctor records are not always coincidental. Frequently doctors make errors in the transcription of history. Mr Sheehan's own evidence was that the walls of the barracks were made of asbestos cement sheeting as were the eaves. I do not accept that the walls of the barracks at Singleton were made of metal. I do accept that walls were asbestos cement sheeting. I do accept that Mr Sheehan cut and fixed both walls and eaves. I accept that in cutting walls and eaves to size Mr Sheehan used both power saws and handsaws and that in this process dust was liberated and inhaled by him.

11. His period of employment at Singleton was in the order of eight months. Of course, it is the case that not the whole of each day was devoted to cutting and fixing asbestos cement sheeting, but I am nevertheless satisfied by his evidence concerning the incidence of cutting and fixing fibro sheeting that he was exposed to fibres liberated from the material with which he was working sufficient to make a material contribution to his mesothelioma.

12. It is generally accepted by the medical profession (and increasingly so by the legal profession) that in cases of mesothelioma caused by asbestos all asbestos exposure is causative of the disease.

13. In argument it was put by counsel for the Commonwealth that a significant exposure must be established before it could be held liable for the plaintiff's mesothelioma. In his speech in Bonnington Castings Ltd v Wardlaw 1956 AC 613 Lord Reid said at 621:

I am in agreement with much of Lord President's opinion in this case, but I cannot agree that the question is: which was the most probable source of the respondent's disease, the dust from the pneumatic hammers or dust from the swing grinders. It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is material contribution must be a question of degree. The contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within the exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.

14. The evidence discloses it was usual, when Mr Sheehan was cutting or fixing asbestos cement sheeting, that dust was visible in the atmosphere. It may be accepted that when dust is visible in the atmosphere its concentration exceeds 5 million parts per cubic foot. Whilst the single fibre theory might properly be discarded as a determinative cause of mesothelioma, it remains the case that there is no known safe dose of asbestos. All exposure to asbestos should therefore be avoided. That Mr Sheehan worked when dust was visible in the atmosphere and used power tools, which would of necessity mean that his face and external breathing organs were close to liberated asbestos, satisfies me that his exposure to asbestos while working at the barracks at Singleton was exposure which was causative of his mesothelioma. Such exposure was not de minimis. It made a material contribution to his mesothelioma.

15. It has been accepted by counsel that mesothelioma is an injury which is one and indivisible. Accordingly, each defendant is jointly and severally liable for the consequences of Mr Sheehan's mesothelioma.

Damages

16. I turn now to assessment of damages. I congratulate the parties upon their agreement that out of pocket expenses should be allowed in the sum of $10,748.05 and that the past costs of care and interest should be allowed at $30,000. That leaves the assessment of a sum appropriate for general damages and a sum appropriate for loss of expectation of life.

17. At the time of his death Mr Sheehan was 73 years old. According to the Australian Life Tables a 73 year old Australian male has a life expectancy of 11.47 years. Binding authority requires, in the assessment of a sum appropriate for the loss of expectation of life, an award to be conventional and modest. Complying with that authority it is my view that a sum of $10,000 is appropriate to award for loss of expectation of life.

18. So far as general damages are concerned the following matters are relevant. The plaintiff began to suffer the symptoms of mesothelioma in October or November of last year. He was given the diagnosis of malignant mesothelioma on 21 November 2001. He succumbed to that disease on 24 June this year. He thus endured suffering for a period of something in the order of seven or eight months.

19. He had retired from employment in July 1994, and notwithstanding the fact that he had had a number of significant surgical procedures and health problems, that is to say a knee replacement and a myocardial infarction, he remained active and generally healthy. He enjoyed the society and company of his wife and family.

20. Not only did he suffer the terrible pain that always accompanies mesothelioma, but the disease limited his activity and his capacity to enjoy his life and his family. He underwent a talc pleurodesis, well recognised to be a painful procedure. His sleep was constantly interrupted by night sweats of an extraordinary character which required, not only a change of his own nightwear, but of the linen on his bed two or three time a night as well. Mesothelioma is a terribly painful disease affecting the pleura. Because of its numerous nerve fibres the pleura is an extremely sensitive pain receptor. Morphine is the drug in common use in Australia for pain relief in cases of mesothelioma. It is not always effective. It has unpleasant side effects. In one sense Mr Sheehan was more fortunate than some other sufferers of mesothelioma because he endured its pain and discomfort for a shorter period than is usual. In making that observation, of course, I do not mean to convey the impression that he did not suffer, I have no doubt that he did suffer and that he suffered terribly, but the duration of his pain and discomfort was not as great as some others have endured. Accordingly, I think a sum appropriate to compensate for the pain and suffering he did endure is $145,000.

Judgment

21. The plaintiff therefore is entitled to judgment made up as follows:

General damages $145,000.00
Interest on general damages $2,175.00
Loss of expectation of life $10,000.00
Agreed out of pocket expenses $10,748.05
Cost of care including interest $30,000.00
Total $197,923.05

22. There will be verdict jointly and severally against the fourth and sixth defendants and judgment in the sum of $197,923.05.

23. The defendants will pay the plaintiff's costs as agreed or assessed.

24. The applications to enter verdicts in favour of the first, second and fifth defendants will be listed for directions on 8 October 2001.

Mr G F Little SC with Mrs E J Techera instructed by Shaw McDonald appeared for the Plaintiff.

Mr D J Russell instructed by Moray & Agnew appeared for the fourth defendant.

Mr J F Burn instructed by Australian Government Solicitor appeared for the sixth defendant.