Stavar v Caltex Refineries (NSW) Pty Ltd

[2008] NSWDDT 22

Dust Diseases Tribunal

of New South Wales

CITATION:	Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22
PARTIES:	Beverley Dawn Stavar (Plaintiff) Caltex Refineries (NSW) Pty Ltd (First Defendant) Amaca Pty Ltd (Second Defendant) Wallaby Grip Ltd (Third Defendant) Wallaby Grip (BAE) Pty Ltd (Fourth Defendant) Wallaby Grip (NSW) Pty Ltd (Fifth Defendant)
MATTER NUMBER(S):	7349 of 2007
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- mesothelioma - plaintiff exposed to asbestos from husband's work clothes - suppliers admit liability - husband worked at remaining defendant's refinery - three relevant periods - first on construction of refinery - then employed by subcontractor to contractor to defendant - second on maintence work - then employed by contractor to defendant - third as maintainence worker - then employed by defendant - whether injury to plaintiff foreseeable - whether duty of care owed by defendant during relevant periods - whether Asbestos Rule (Qld) created duty of care to plaintiff - whether exposure in each period causatitive of mesothelioma - Dust Diseases Tribunal Act Ss 25(3), 25 B - whether substantive or proceedural
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulation 2007 Service and Execution of Process Act 1992 Jurisdiction of Courts (Cross-Vesting) Act 1987 Factories and Shops Act 1960 (Qld) Asbestos Rule 1971 (Qld)
CASES CITED:	Caltex Refineries (Qld) Pty Ltd v Stavar & Ors [2008] NSWSC 223 Bale v Seltsam Pty Ltd [1995] QSC 306; [1996] QCA 288 (23 August 1996) Overseas Tank Ship (U.K.) Ltd v Morts Dock Engineering Co Ltd (The Wagon Mound) 1961 AC 388 BHP Billiton Ltd v Schultz (2004) 221 CLR 400 CSR Ltd v Young (1998) 16 NSWCCR 56 Gala & Ors v Preston (1991) 172 CLR 243 Wyong Shire Council v Shirt (1980) 146 CLR 40 Seltsam Pty Ltd v McNeil (2006) 4 DDCR 1 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 Stevens v Brodribb Saw Milling Company Pty Ltd (1986) 160 CLR 16 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Sydney Water Corporation v Abramovic & Anor [2007] NSWCA 248 Felk Industries Pty Ltd v Mallet & Anor [2005] NSWCA 111 ACQ v Cook [2008] NSWCA 161 (16 July 2008) James Hardie & Coy Pty Ltd v Barry (2000) 21 NSWCCR 150
TEXTS CITED:	LITERATURE CITED: J C Wagner et al, "Diffuse Pleural Mesothelioma and Asbestos exposure in the North Western Cape Province" (1960) British Journal of Industrial Medicine 17, 260 C A Sleggs et al, "Diffuse Pleural Mesotheliomas in South Africia" (1961) South Africian Medical Journal 14 January 1961, 28 M L Newhouse and H Thompson, "Mesothelioma of Pleura and Peritoneum following Exposure to Asbestos in the London Area" (1965) British Journal of Industrial Medicine 14 January 1965, 22, 261 "Working Group on Asbestos and Cancer" (1965) Archives of Enviromental Health, Vol 11, 221 P C Elmes et al, "Diffuse Mesothelioma of the Pleura and Asbestos" (1965) British Medical Journal 1, 350 I J Selikoff, "Relation Between Exposure to Asbestos and Mesothelioma" (1965) New England Journal of Medicine Vol 272, No 11, 560 "Leading Articles" (1967) British Medical Journal, 8 July 1967, 62 R H Mortimer and C B Campbell, "Asbestos Exposure and Pleural Mesotheliomas" (1968) Medical Journal of Australia 20 October 1968, 720 J C Wagner et al, "Epidemiology of Asbestos Cancers" (1971) British Medical Bulletin Vol 27, 71 J C Wagner, "Guest Editorial" (1971) Journal of the National Cancer Institute May 1971, V M Greenberg and T A Lloyd-Davis, (1974) "Mesothelioma Register 1967-1968" British Journal of Industrial Medicine Vol 31, 91 M R Becklake, "Asbestos-Related Diseases of the Lung and Other Organs: Their Epidemiology and Implications for Clinical Practice" (1976) American Review of Respiratory Diseases, Vol 114, 187
DATES OF HEARING:	24-25 June 2008, 1-3 July 2008, 9-11 July 2008, 15-18 July 2008, 28-29 July 2008
DATE OF JUDGMENT:	29 July 2008
EX TEMPORE JUDGMENT DATE:	29 July 2008
LEGAL REPRESENTATIVES:	J A McIntyre, SC with S Tzouganatos instructed by Turner Freeman appeared for th Plaintiff G J Parker instructed by Hwl Ebsworths appeared for the First Defendant J C Sheller instructed by DLA Phillips Fox appeared for the Second Defendant D J Russell, SC instructed by Middletons appeared for the Third, Fourth and Fifth Defendants

JUDGMENT:

JUDGMENT

O’MEALLY P

Introduction

1. Beverley Dawn Stavar claims damages from Caltex Refineries (NSW) Pty Ltd (Caltex), Amaca Pty Ltd, Wallaby Grip Ltd, Wallaby Grip (BAE) Pty Ltd and Wallaby Grip (NSW) Pty Ltd. She suffers from malignant mesothelioma, which she contracted as a result of coming into contact with asbestos dust and fibres on her husband’s working clothes and deposited in homes in which they lived and in the motor car in which from time to time they travelled.

2. The second, third, fourth and fifth defendants have admitted liability to pay damages to Mrs Stavar. The first defendant, Caltex, disputes it is liable to the plaintiff, substantially on the basis that there was no relationship of proximity between them, and, as a consequence, it owed her no duty of care. It also says that if it did owe her a duty of care, the asbestos to which she was exposed was so slight that at the times of exposure, it did not constitute a foreseeable risk of injury.

3. The plaintiff’s husband was, at all relevant times, employed to work at the Ampol Refinery at Lytton in the State of Queensland. The negligent acts and omissions alleged were all committed or suffered in Queensland. No party, however, made application for a stay of proceedings under s 20 of the Service and Execution of Process Act 1992 on the ground that a Queensland court was the appropriate forum to determine the matters in issue. An unsuccessful application was, however, made to the Supreme Court of New South Wales under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 that these proceedings be cross-vested to the Supreme Court of Queensland. (See Caltex Refineries (Qld) Pty Limited v Stavar & Ors [2008] NSWSC 223).

4. There are three relevant periods during which the plaintiff, while her husband was working at the Ampol Refinery, was exposed to asbestos. The first was for a period of about 18 months, commencing in 1964 when he was employed by an entity identified only as Associated Insulations as a lagger and sheetmetal worker in the construction of the refinery. The second relevant period is between 1965 and 14 January 1974 when Mr Stavar was employed by an entity identified as McDonald Constructions as one of a number of maintenance workers at the refinery. The third period is from 14 January 1974 to 1 March 1991, when he was employed by the first defendant, afterwards referred to either as Caltex or Ampol.

5. The first defendant is the owner and occupier of the refinery. At some stage, for reasons unnecessary to consider, there was a change of name and the first defendant became Caltex Refineries (NSW) Pty Ltd. The pleadings do not in all respects accurately reflect the corporate identity of the first defendant. They have not been amended but for the matters I am required to consider that is of no account and I have been asked to ignore them.

6. Evidence in the case has occupied less time than addresses. Counsel have informed me that the case is important because, so far as their researches disclose, only one other Australian case in which damages have been claimed by a wife, who came into contact with asbestos dust and fibres from her husband’s work clothes, has been litigated to finality. Many such cases have been brought in the Tribunal, but all have settled before verdict. The case fully litigated was Bale v Seltsam Pty Ltd [1995] QSC 306 (14 December 1995), in which a verdict for the defendant was confirmed on appeal (see Bale v Seltsam Pty Ltd [1996] QCA 288 (23 August 1996)). I intend no discourtesy to the thorough and helpful submissions of counsel, but I intend to deal with their submissions only insofar as it is necessary to explain the conclusions to which I have come. In the event, however, that I fail to deal with some issue or some aspect of the evidence which either believes material, those matters should be brought to my attention at the conclusion of these reasons so that they may then be dealt with.

The plaintiff

7. The plaintiff was born on 5 December 1938 and hence is now 69 years old. She married her husband, Frank Stavar, on 1 August 1959. The evidence is that neither Mr Stavar nor the plaintiff was exposed to asbestos other than that brought home on his work clothes from the Ampol Refinery. I think it not to be in dispute that the plaintiff’s mesothelioma was caused by asbestos dust and fibre which she inhaled from her husband’s work clothes and from asbestos deposits in the car in which Mr Stavar travelled to and from work. The question is whether the first defendant is liable for the consequences of that exposure.

The first defendant

8. The first defendant is and was at all material times a large, multinational corporation. At all relevant times it had a paid up capital of millions of dollars and reserves of millions of dollars. It employed thousands of people. The refinery at Lytton occupies a large area of land and was a mammoth construction. One of its annual reports discloses that 85 Australian subcontractors worked on its construction under the supervision of the Bechtel Pacific Corporation Ltd (Bechtel). It is relevant to note that the refinery contained 82 miles of piping, 28,420 feet of copper tubing, 15,735 feet of tubing for instruments, 2,000 tons of steel for vessels and 600 tons of structure steel. There were 89 columns and vessels, 69 heat exchanges, 197 pumps, seven substations and 9,479 valves. On many of these instalations, asbestos lagging and rope were applied.

Exposure of the plaintiff’s husband

9. As noted, Mr Stavar was employed for a period of some 18 months by Associated Insulators which were subcontractors to Bechtel for the installation of insulation on pipes and valves.

10. Mr Stavar provided an affidavit and gave oral evidence. As well, the first defendant tendered part of the statutory declaration made by Mr Stavar as part of the Claims Resolution Process established by the Dust Diseases Tribunal Regulation 2007. In each of these, Mr Stavar’s exposure to asbestos is discussed. Throughout the greater part of his work at the refinery, Mr Stavar was employed as a lagger and sheetmetal worker. During the first two periods and for much of the third, 50 per cent of his time was spent in lagging work and 50 per cent in sheetmetal work. Nevertheless, he gave evidence that he was exposed to asbestos daily.

11. PX3 is the affidavit of Mr Stavar. From par 17 he describes his exposure. He spoke of his lagging work with McDonald Constructions and subsequently in his employment by Associated Insulations. He said in par 20 that he used and applied asbestos materials to parts of the refinery on a daily basis between eight and ten hours each day, and that each day he was covered in asbestos dust and fibre. When he returned home he would remove his work clothes, more often in the laundries of the three houses in which they lived during the relevant periods. He would embrace his wife. She would, once a week, sometimes more, shake out and wash the soiled clothing. This was done close to her face, that is her breathing zone, and as a consequence she inhaled asbestos dust and fibre. Mr Stavar, as noted, became an employee of Ampol on 14 January 1974. In his affidavit he said that he remained an employee until he was made redundant in 1989. Memory deteriorates with time. The records produced indicate that his employment concluded not in 1989 but in 1991.

12. When he began employment by Ampol he was again engaged as a maintenance lagger and sheetmetal worker. He carried out the same types of work as before.

13. During his employment by McDonald Constructions he was given instructions by Ampol personnel; by a maintenance insulation foreman, one Jack Barr, or by a superintendent, Ian Wilson. They would direct him to parts of the refinery where heat insulation was to be repaired or removed and replaced. It was necessary, for safety reasons, to obtain a written authority to permit his presence and work at particular places and times. He was, therefore, told what to do, but not how to do it; neither would it be necessary for a maintenance worker to be told how to carry out his work. The task of removing and replacing asbestos lagging was not of such a nature that it required instructions on the means of carrying it out. It is not surprising that Ampol personnel gave instructions. It was they who knew where and what work was to be carried out and thus would identify its location.

14. Sometimes during this period his work was inspected. McDonald Constructions did not, however, provide a foreman or supervisor, and inspections, when carried out, were carried out by employees of Ampol.

15. Commencing at par 25 of his affidavit Mr Stavar recited that he was the only maintenance lagger and sheetmetal worker at Ampol after it employed him, and by reason of that fact, he was the only lagger responsible for the maintenance of insulation throughout the whole refinery. He said he was working full-time in an endeavour to keep up with the volume of repair and replacement of lagging. In due course, however, laggers from one of the Bells companies, now part of the Wallaby Grip group, were engaged to assist in the maintenance work. Mr Stavar asserted in par 27 of his affidavit, that his work with and exposure to asbestos occurred probably on a daily basis until the mid 1980s. From the mid 1980s, however, until he retired, he continued to work in environments contaminated with asbestos, but only on a couple of days a week.

16. It is the case that in 1983 Mr Stavar received a promotion. Thereafter, his contact with asbestos was not as intense as it had been before, but he did carry out the same type of work. Here it is relevant to note that there are some differences between part of the statutory declaration, CRX1, to which I have referred, and his affidavit and oral evidence. In the declaration, par 21 of which is the exhibit, he gave an account of exposure and of contamination of his clothing, which varies from the account given in his affidavit and oral evidence. In the result, I do not consider the difference to be of vital significance. Memory of events occurring 30 years ago is not ordinarily or necessarily accurate unless some particular dramatic event occurs contemporaneously to keep them in one’s memory. The plaintiff’s husband was exposed to asbestos throughout each period, though the quantity diminished after he became a leading hand or acting foreman, depending upon the category referred to in exhibit PX38, which contains an engrossed copy of a photocopy of his employment record.

The plaintiff’s exposure

17. The plaintiff also swore an affidavit and, as would be expected, gave oral evidence. Commencing at par 13 of her affidavit, PX2, the plaintiff described her exposure to dust brought home, not only on her husband’s work clothing, but also upon shirts and a flannel singlet which he wore under it in winter. She described (in par 14) her husband’s work clothing as covered in dust each day he worked at the refinery. She washed his work clothes separately from the rest of the laundry load for the reason that those clothes were always dusty and it was her wish not to mix those clothes with the rest. She separated his clothes before washing into different coloured piles and there was always a separate pile for the work clothes. Not only did she shake out his clothing but the pockets were emptied because they also contained dust. She had a Pope washing machine with a central agitator and to prevent the clothes from becoming tangled in the machine she shook them out to ensure they were not “bundled up” and spread them then into the washing machine.

18. Mr Stavar’s practice, when he came home from work, was to approach his wife and kiss and hug her. It was not always that he removed his work clothing in the laundry of the home; sometimes he would sit in the house and have a drink of water, a beer or a cup of tea before entering the bathroom or laundry to remove his overalls, or other work clothes if he were not wearing overalls. In the houses in which they lived the laundries were small.

19. When Mr Stavar was first employed by Associated Insulations he and the plaintiff lived at Ingleston Street, Wynnum West. Soon afterwards, they moved to Crown Street, Wynnum where they lived for a period of nine years. In each place, the laundries were small, about eight feet by eight feet and seven feet in height. In one residence, the laundry was partly enclosed beneath the house. Sometimes Mr Stavar’s work clothing was left downstairs in the laundry and sometimes it was left upstairs. When it was left upstairs, the plaintiff would gather the clothing in her arms and carry it downstairs to the laundry. Each time she shook out her husband’s work clothes and emptied the pockets she saw dust floating in the air.

20. In 1976 they moved to a house in Dianthus Street, Wakerley, where they remained for a period of about ten years. This house had a laundry whose dimensions were approximately two metres by two metres. Dust was liberated from work clothes and pockets in this home in the same way as before.

21. It is convenient to note at this stage that neither Mr Stavar nor the plaintiff was ever warned about the dangers of exposure to asbestos. The evidence of Mr Stavar is that had he been warned, he would not have willingly or knowingly exposed himself to asbestos, and certainly not taken contaminated clothing home to be washed by his wife. The plaintiff said she would not have cleaned his clothes had she been told that doing so could be dangerous to her health.

22. It is always important when such assertions are made after the event to examine them with a degree of scrutiny. It was even suggested that I should regard these assertions with something approaching scepticism. Counsel for the first defendant accepts that both the plaintiff and her husband were honest witnesses, but says that I should be careful about accepting those assertions, and I agree. Being careful, I accept that neither, if aware of the dangers of asbestos, would willingly have submitted to exposure. If one knew, as one does, that placing one’s hand on a circular saw could amputate a finger, one would not be expected to do it. I think there is a parallel there with exposure to asbestos. It is not usual that people willingly expose themselves to danger and I accept that neither Mr Stavar nor the plaintiff would knowingly have exposed themselves to the risks of contracting an asbestos disease.

23. It is appropriate also to note that the asbestos material to which the plaintiff and her husband were exposed contained both amosite and chrysotile. Amosite is an amphibole and chrysotile is a serpentine. Chrysotile is less potent in causing asbestos disease than amosite, but it is the case that the exposure of Mr Stavar to asbestos from lagging must have been significant, he having said that during the course of his work at the refinery he had applied kilometres of asbestos rope.

24. At a later stage in his employment by Ampol, Mr Stavar was provided with overalls and upon promotion was supplied with a uniform. Sometimes his overalls were left for laundering at the refinery, but his wife continued to launder his uniform and sometimes his overalls.

Levels of exposure

25. The first defendant called but one witness, Mr Alan John Rogers, an industrial hygienist. Mr Rogers, like Mr Stewart, the industrial hygienist called by the plaintiff, frequently gives evidence in cases before the Tribunal. One of the purposes of calling Mr Rogers was to give an estimate of the level of exposure to the plaintiff during the three periods with which we are here concerned.

26. Beginning at p 8 of his report (CRX2), he set out his assumptions and then made estimates of cumulative asbestos exposure. In the result, he came to the conclusion that the total exposure, that is the cumulative exposure to the plaintiff between 1965 and 1985, was 0.185 fibre ml years. This is of significance because the first defendant asserts that it is not liable for the consequences of exposure in the first two periods, and in the third period exposure was so low that it did not make a material contribution to the mesothelioma from which the plaintiff suffers and did not constitute a foreseeable risk of injury. Moreover, it is said that exposure during the third period accorded with contemporary industry standards and therefore the first defendant should suffer no liability.

27. I think it important to note, as I have been reminded by senior counsel for the plaintiff, that the unchallenged evidence of Mr Stavar is that he was exposed to asbestos dust and fibre on a substantial basis every day he worked at the refinery until he was promoted; that is from 1964 to 1983, and on a reduced basis thereafter. Mr Rogers’ estimate has been made on the basis of exposure to 1985. The assumptions made by Mr Rogers before he estimated the plaintiff’s exposure were that on each day her husband returned from work they embraced for a period of about a minute, the weekly sorting of clothes for washing lasted for about five minutes and the car seat was swept clean every fortnight and took five minutes. So far as the occurrence of these particular events were concerned, concessions were made by the plaintiff that those times were approximately correct, but they were, however, not the limit of her exposure.

28. Mr Rogers made his estimates on the basis of material that had been published by one Dupre in 1984. At p 8 of his report Mr Rogers said:

For the purpose of this report I shall use the test data of six fibres/ml for shaking out contaminated clothing (Dupre 1984) as representative of embracing, and the shaking, and washing task involving heavily contaminated overalls being undertaken by Mrs Stavar. For the periods when Mr Stavar changed out of his overalls at work and wore home his trousers and shirt, I will assume that the exposure when embracing and cleaning the car was 1 fibre/ml or less. These values may be an overestimate as they are in the order of task exposures recorded for persons wearing large quantities of asbestos textile protective clothing.

29. For Dupre’s study, data were gathered by fixing a device known as a midget impinger to a broom handle and sweeping the floor of a room nine feet square in which asbestos contaminated clothing had been shaken out. It seems that the sweeping occurred at the beginning and at the end of a two weeks period. The assumptions made by Mr Rogers do not exhaustively consider the manner and means of the plaintiff’s exposure to asbestos, nor do they exhaustively consider its intensity. The evidence discloses that the sedimentation rate for amosite is slower than for other fibres and it lingers in the air invisibly. It is well known that asbestos fibres may be present though unseen in the atmosphere, but that observation is not necessary to act upon here. The plaintiff’s exposure to asbestos occurred when she embraced her husband, when she transferred contaminated clothing from an upstairs bathroom to a downstairs laundry, when she shook out contaminated clothing and emptied its pockets before washing, when she hung out and removed clothing from the clothes line, when she brought it into the house, when she folded it, when she entered an upstairs bathroom or downstairs laundry, and perhaps elsewhere in the house, as a consequence of her husband’s walking through the house in his work clothes, and in cleaning the family car, a task sometimes done by one or other and sometimes both.

30. The estimates made by Mr Rogers have been subject to criticism by three witnesses called by the plaintiff.

31. The first is Dr Leigh. Dr Leigh is a multi-qualified medical practitioner; an occupational physician, a thoracic physician, an epidemiologist and a lawyer. He has had extensive experience in cases involving exposure to asbestos and apart from his practice, he frequently gives evidence in cases before the Tribunal and overseas as well. In his first report, which is part of PX7, Dr Leigh had suggested obtaining the services of an independent expert hygienist for the purpose of making a quantative estimate of exposure. As often happens in cases where experts give evidence in a number of cases, the word processor is brought in, and the suggestion that a quantitative estimate be obtained was qualified by Dr Leigh in his second report. In evidence, he indicated that the suggestion had been taken from an earlier report, presumably one prepared for other litigation. In his second report he said that an estimate of the asbestos exposure would not be required if the plaintiff’s history were accepted.

32. Professor Douglas Henderson holds a chair at Flinders University in South Australia. He is a pathologist of national and international repute, and he also frequently gives evidence in cases before the Tribunal. So far as Mr Rogers’ assessments of exposure were concerned, Professor Henderson said that the exposure calculated by him was inconsistent with studies identifying fibre burdens in people who had been subject to domestic exposures to asbestos. This evidence appears at p 93 of the transcript. Professor Henderson questioned the fibre concentration of six fibres per ml adopted by Mr Rogers, pointing out that the maximum concentration identified by the report of the Ontario Royal Commission, with which all the experts were familiar, was 200 fibres per ml, and suggested that the concentration of six fibres per ml referred to in that report related not to shaking out asbestos contaminated clothing, but rather to the sweeping of sedimented asbestos dust. It was his view that the fibre concentration was more likely to be in the range of 30 to 50 fibres per ml from shaking out contaminated clothes. He was also of the view that it was not appropriate to limit the time interval of exposure to laundry work by reason of the fact that asbestos particles remain airborne for some time after they have been liberated.

33. Mr Gordon Stewart is the industrial hygienist qualified and called by the plaintiff. In the course of cross-examination, he agreed that he was required from time to time to calculate fibre burdens. He conceded that he had made no attempt to quantify the plaintiff’s exposure to asbestos during any period, but said if it were to be attempted, he would have to use fairly wide parameters. When informed of Mr Rogers’ assessments of the plaintiff’s cumulative exposure and asked to comment, he answered that the results were “Way outside anything that’s reasonable to three decimal places, it is one part in a thousand”. It was his view that the real result would be between a hundred times and one hundredth of the figure claimed by Mr Rogers.

34. The assessment of Mr Rogers was outside the degree of precision that Mr Rogers claimed, and in this respect Mr Stewart’s evidence was consistent with that of Professor Henderson, who had also said that it was impossible to estimate retrospectively cumulative asbestos exposure to a precision of three decimal places. It is also consistent with the evidence of Dr Leigh. With all respect to Mr Rogers, I consider his opinion in this respect to be tendentious and I prefer the evidence of the three witnesses called by the plaintiff, whose experience and knowledge, particularly of Dr Leigh and Professor Henderson, entitle them to comment as they have. Their opinions are reasoned and consistent with much of the material to which I shall later refer.

35. The issue next to be considered is whether, during the whole of the period, that is from 1964 to 1991, exposure to small quantities of asbestos constituted a foreseeable risk of injury to people in the class of which the plaintiff was a member. In commencing this exercise, I remind myself that foreseeability should be determined by the standards operating between 1964 and 1991, and not by those of today. As Viscount Simonds said when delivering the advice of the Privy Council in Overseas Tank Ship (U.K.) Ltd v Morts Dock Engineering Co Ltd (The Wagon Mound) 1961 AC 388 at 424:

… After the event even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility.
That is a principle I must keep in mind. Hindsight must be eschewed.

36. Copies of a number of papers and articles published in learned journals were tendered pursuant to s 25(3) of the Dust Diseases Tribunal Act 1989 (the Act). They were also tendered on another basis, that is to show what was available at various times to those moved to make inquiry. Their admission was objected to on both bases by Mr Parker of counsel for the first defendant.

of the Act is in these terms:

(3) Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceeding before the Tribunal whether or not the proceedings are between the same parties.

38. It has been noted that the circumstances with which we are concerned occurred wholly within the State of Queensland. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400 Callinan J, speaking of various provisions of the Act, said at [253]:

Sections 23, 25, 25A and 25B do more than relax the rules of evidence. They alter, or at least would allow the Tribunal to depart from the audi alteram partem rule. Their effect is to enable the Tribunal to use against the party evidence and findings which it had no opportunity of testing or controverting. However they may be expressed, provisions capable of producing that outcome, of denying natural justice, do not have the appearance of being merely procedural.

39. If s 25(3) were procedural, the literature to which I am about to refer would have been admitted, but because authority suggests that s 25(3) is substantive, it ought not be admitted pursuant to s 25(3). It can, however, be used to support a submission that this material was available to those who were minded to inquire and it was admitted on that basis.

40. The evidence of Mr Rogers, as well as that of Dr Leigh, is that the material placed before me is not exhaustive, and other relevant papers and articles in learned journals were available at relevant times. I shall, however, consider only those which are in evidence, notwithstanding the fact that as a result of having heard other cases I am aware of other material.

41. The first paper is PX18. Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province by J C Wagner et al was published in the British Journal of Industrial Medicine 1960, 17, 260. It was this paper which first confirmed the connection between asbestos exposure and mesothelioma. At p 260 the following appears:

Mesothelioma of the pleura is regarded as an uncommon tumour. In the last four years we have seen 33 histologically proven cases; 28 of these had some association with the Cape asbestos field and four cases had been exposed to asbestos in industry.
…First, asbestos was found in the lungs of the first case (Case 1), and secondly, 10 of the cases came from a hospital to which suspected cases of tuberculosis were referred from a large asbestos mining area. This hypothesis could not be supported at once from the original histories obtained from the patients, for they included house-wives, domestic servants, cattle herders, farmers, a water bailiff, an insurance agent, and an accountant, none of whom were working on the asbestos mines at the time. …

42. The authors noted that this paper was a preliminary publication and the problem was being intensively investigated.

43. PX19 is a copy of a paper in the South African Medical Journal of 14 January 1961. It is entitled Diffuse Pleural Mesotheliomas in South Africa and was written by C A Sleggs et al. The relevant parts of that paper are at pp 30, 31 and 34. At 30:

…In some cases the patients had left the North West Cape and, in others, the exposure had been of such a transitory nature that it was rapidly forgotten.
At 31:
…It is interesting to note that in 1 family both the father and a daughter died of histologically proved mesotheliomas. In 2 other cases a sibling had radiological evidence of asbestosis.
Under the subheading “SUMMARY” on p 34 the following appears:
The clinical and radiological findings of 34 patients suffering from diffuse pleural mesotheliomas are described. Thirty-three of these patients gave a history of exposure to crocidolite asbestos mined in the North West Cape. …

The findings of this and our other paper are sufficiently striking to justify further epidemiological and laboratory investigations. These investigations will attempt to determine the causative and correlative factors, including a possible relationship with asbestos or other elements. …

44. PX6 is a copy of a paper published in the British Journal of Industrial Medicine 1965, 22, at 261. The title of that paper is Mesothelioma of Pleura and Peritoneum Following Exposure to Asbestos in the London Area. The authors are Newhouse and Thompson. The abstract recites a study of 83 patients from the London Hospital with a diagnosis of mesothelioma. It continues:

In 76 of the series full occupational and residential histories were obtained. Forty (52.6 %) gave a history of occupational or domestic (living in the same house as an asbestos worker) exposure to asbestos compared with nine (11.8 %) out of 76 patients from the same hospital suffering from other diseases. …
At p 264 there was a discussion on domestic exposures. It is as follows:
Domestic exposure.- The group of nine, seven women and two men, whose relatives worked with asbestos, are of particular interest. The most usual history was that of the wife who washed her husband’s dungarees or work clothes. In one instance a relative said that the husband, a docker, came home ‘white with asbestos’ every evening for three or four years and his wife brushed him down. The two men in this group, when boys of 8 or 9 years old, had sisters who were working at an asbestos factory. One of these girls worked as a spinner from 1925 to 1936. In 1946 she died of asbestosis. The press report of the inquest states: ‘She used to return home from work with dust on her clothes’. Her brother had apparently no other exposure to asbestos; he started work as a shop assistant, then became a sawyer of iron girders until 1948 when he worked as a loader of groceries in docks for five years (but never on dusty cargoes) and then returned to sawing iron from girders. He died in 1956 of a pleural mesothelioma.
At p 266:
There seems little doubt that the risk of mesothelioma may arise from both occupational and domestic exposures to asbestos.
At p 268 there is an appendix under the heading of “Exposure to Relatives” in which nine cases of mesothelioma from domestic exposure are recited.

45. PX20 is a report of recommendations of the working group convened under the auspices of the Geographical Pathology Committee of the International Union Against Cancer. It was published in the Archives of Environmental Health vol 11, 1965. One of the delegates attending was Dr J McNulty from Australia, who has himself had an interest in asbestos diseases; but that is of but passing interest. At p 223 - p 224 the following appears:

Present evidence indicates that the associated carcinomas of the lung are not limited to exposure to any one type of asbestos fiber. However, further investigations are urgently needed to establish whether the degree of risk is importantly related to the type of fiber inhaled.
In the case of mesotheliomas, evidence from several countries suggests that exposure to crocidolite may be of particular importance, but it cannot be concluded that only this type of fiber is concerned with these tumours, and further investigation of this problem is needed.
…
These findings, when considered in relation to the great increase in the use of asbestos for many purposes in all countries, suggests that a more serious and widespread hazard from exposure to asbestos dust may exist than is widely appreciated.

46. PX13 is a copy of Diffuse Mesothelioma of the Pleura and Asbestos published in the British Medical Journal of 6 February 1965. The authors are P C Elmes et al. At p 352 the following appears:

A study of the occupational histories suggests that an interval between first exposure to asbestos and the discovery of the tumour is often long and may exceeds 40 years, and the exposure may be light and in some instances very transient. A similar observation was made by Wagner et al. (1960).

47. PX11 is a copy of Relation Between Exposure to Asbestos and Mesothelioma published in the New England Journal of Medicine of 18 March 1965, vol 272 number 11. Its authors are Irving J Selikoff et al. Selikoff is known to be pre-eminent in the field of asbestos related diseases. At p 563 - 564 the following appears:

…Ten deaths from mesothelioma among 307 consecutive deaths is an extraordinarily high rate and permits the conclusion that this disease is an important complication of asbestos exposure. This conclusion, moreover, refers to such exposure in the United States, under working conditions of the recent past, with relatively light and intermittent exposure. It indicates, too, that mesothelioma may not necessarily be entirely a problem of only one kind of asbestos (crocidolite) and that it is surely not limited to South Africa.
At p 565:
…In another case we found asbestos fibers in the lung of a man who died of pleural mesothelioma and who had worked in a dry cleaning plant as a “spotter.” This observation calls to mind the finding of asbestos bodies and fibers in the sputum of people employed in the dry cleaning works in South Africa in an area 100 miles away from the nearest mine, as well as cases of berylliosis caused by handling contaminated work clothes. These examples of indirect occupational exposure and community exposure raise the important question whether mesothelioma will be found to be a community problem in addition to that existing with industrial exposure to asbestos.

48. PX14 is a Leading Article published in the British Medical Journal of 8 July 1967. At p 63 the following appears:

Since J. C. Wagner and his colleagues first described the occurrence of pleural mesotheliomata in the crocidolite mining districts of South Africa many cases have come to light elsewhere. In Britain most cases have been discovered in London and at the larger ports where much asbestos is handled in the shipbuilding industry.
Two aspects of the asbestos-mesothelioma association are very disturbing. In some cases extremely short exposures have been reported. There is also growing evidence that the residents in asbestos mining or manufacturing districts and those at risk by the brushing and washing of contaminated work clothes can develop mesenchymal tumours or the bizarre pleural fibrosis and calcifications which seem to be associated with exposure to asbestos.

49. PX15 is a paper by Mortimer and Campbell, Asbestos Exposure and Pleural Mesotheliomas, published in the Medical Journal of Australia 26 October 1968. Mortimer and Campbell were from the Department of Pathology at the Royal Brisbane Hospital and the Department of Medicine at the University of Queensland. The article began with the assertion:

The association of pleural mesothelioma with asbestos exposure is now widely recognized (Wagner et alii 1960; McCaughey et alii 1962). To our knowledge, however, only one mesothelioma in an asbestos worker has been reported in the Australian literature (McNulty, 1962).
At p 722, having referred to a number of cases, the authors said:

Three features of these cases warrant special comment. In neither case was the exposure to asbestos dust very severe. Neither patient had significant asbestosis; that is, “fibrosis of the lungs due to the inhalation of asbestos dust”(Elder, 1967). …These facts support the suggestions of Jacob and Anspach (1965) that the incidence of pleural neoplasms may be increased in people with relatively little asbestos exposure and insignificant respiratory insufficiency. They considered that people with heavy asbestos exposure develop severe pulmonary fibrosis and cor pulmonale, and do not live long enough to develop neoplasms.
Development of mesotheliomas after minor asbestos exposure has recently caused widespread concern… The incidence of this neoplasm is already rising, and prevention of further cases is a public health problem of some magnitude (Elmes, 1966).

50. PX12 is Epidemiology of Asbestos Cancers published in the British Medical Bulletin vol 27, 1971. Its authors are J C Wagner et al. At this time, the authors were members of the Medical Research Council Pneumoconiosis Unit at the Llandough Hospital Penarth in Glenmorgan. At p 75 the following appears:

…There is much clearer evidence of a difference in risk of mesothelioma varying with the type of asbestos than there is in the case of the bronchial tumours. Exposure to anthophyllite very rarely, if ever, causes mesotheliomata. Exposure to chrysotile alone is also probably a rare cause. In a majority of cases, exposure has been to crocidolite and or amosite with or without chrysotile. …Present opinion rates the risk from crocidolite higher than that from amosite.
At p 76:
iv. Threshold-limit values. The evidence from epidemiological studies will gradually put the threshold-limit values on a sound basis. A start has been made by the British Occupational Hygiene Society (1968), but the evidence will need periodical review. At present this standard only applies to chrysotile. There is a need to plan the supervision of asbestos-exposed individuals and the measurement of their environment in such a way that our successors will not find themselves without the essential information that has been a characteristic of recent epidemiological studies of asbestos cancers.

51. PX21 is a Guest Editorial by J C Wagner published in the Journal of the National Cancer Institute in May 1971. At p VIII the following appears:

…Mesotheliomas appear to occur after slight exposures, particularly to crocidolite; the use of this type fiber should therefore be abandoned if not essential. The position of amosite is not yet clear, so that a high standard of dust control is required when it is used.

52. PX16 comes from the British Journal of Industrial Medicine vol 31, 1974. It is Mesothelioma Register 1967-1968, a paper by Greenberg et al. At p 93 the following appears under the heading “Domestic exposure”.

Domestic exposure was considered as positive when a history that members of a subject’s family had come home visibly contaminated by asbestos was obtained.
At p 103 reference was made to the 1971 paper of Wagner et al and the authors observed:
In this study the briefest occupational exposure to asbestos associated with a mesothelial tumour was three weeks, but if asbestos was a cause of mesothelioma it cannot be assumed that lesser exposures are safe.

53. One of the most significant and authoritative historical reviews of asbestos related diseases appeared in the American Review of Respiratory Diseases vol 114 1976 in a paper by Margaret Becklake and others. It is Asbestos-Related Diseases of the Lung and Other Organs: Their Epidemiology and Implications for Clinical Practice. Until the insertion of s 25(3) to the Act, this paper was regularly put into evidence. It is significant for the diagrammatic representation, not only of the growth of the asbestos industry, but for the recognition of the associated biological effects of asbestos exposure and for the times of recognition. The diagram appears at p 189. The author, who enjoys considerable standing in the field of thoracic medicine associated with asbestos disease, puts the time at which associations between asbestos exposure and mesothelioma was established, that is established to the point of scientific certainty, as the early 1960s. Interestingly, in his oral evidence, Professor Henderson thought that the date should be pushed backwards.

54. At p 192 of that paper Dr Becklake said:

…Exposure to asbestos fiber is not confined to the place of work: the search for exposure in the background of patients with mesothelioma has brought to light several forms of indirect nonoccupational exposure. The occurrence of mesothelioma in the family members of asbestos workers led to the recognition of indirect domestic exposure: the source here is presumed to be the dust brought home in workers overalls.
At p 220 she said:
…At the second level the occurrence of an asbestos-related illness is approached as a failure of control measures, and one seeks to identify the point of failure so that appropriate action can be taken to protect the health of the new generation of workers (the children and younger colleagues of today’s victims), who may be currently entering the industry.
Nowhere is this more evident than with the finding of a patient with malignant mesothelioma whose only possible contact with asbestos is indirect, through neighbourhood and/or domestic exposure. Given a history of neighbourhood exposure, should one advise the family to move for the sake of its other members? Probably not, because the long time lag of this tumor makes it most likely that they have already received any exposure relevant to the future development of mesothelioma. Should new families moving into the district be advised against this, unless there has been appropriate action for environmental control over the previous years? An unanswerable question. Given a history of domestic exposure, the clinician should at least be able to assure the new familles that work practice codes now insist that dusty work clothes are not taken home to be cleaned.

55. All of those papers were available in Australia during the periods with which we are concerned here and became available soon after publication. They demonstrate a growing awareness of the dangers of exposure to asbestos with the effluxion of time, and in particular, a knowledge of the fact that exposure to small doses of asbestos was capable of causing mesothelioma.

56. Mr Stewart, on behalf of the plaintiff, identified a number of papers to most of which I have referred. Also attached to his report was a paper by Dr McNulty, to whom reference has earlier been made. That was a paper published in the Medical Journal of Australia on 15 December 1962. Under the heading “Discussion” this appears:

There appears to be a relationship between exposure to blue asbestos and the development of the pleural mesothelioma in this case. Pleural mesotheliomas are very rare tumours and details are known of only three cases in Western Australia. Asbestosis has, regrettably, become less rare, but there are less than 40 known cases in the State. The relatively short period of exposure to blue asbestos dust confirms the impression received from Wagner et alii (1960, 1961) that these tumours may arise after transitory exposure to crocidolite in susceptible persons.

57. The significance of that observation was that transitory exposure could cause mesothelioma. Here it should be observed that in answer to interrogatories (PX34), the first defendant indicated that it did maintain a library, but there is no evidence that it subscribed to any relevant medical journal. One might think that an enterprise as large as the first defendant, with its resources and whose activities were, or ought to have been, known to carry risks, would gather relevant literature and observe relevant recommendations and act on relevant knowledge.

58. Mr Stewart had, among other occupations, been an employee of the Victoria Department of Health where he was concerned with matters of the type now under discussion. He was also employed at the mine at Mt Isa and became familiar with material available to those conducting industrial operations in the State of Queensland during the periods with which we are here concerned. While at Mt Isa, he also consulted, from time to time, at least one Departmental Medical Officer on the use and dangers of asbestos. Because he had been retained to give evidence in other cases, he obtained copies of correspondence and internal memos from officers of the Division of Industrial Medicine in the Queensland Department of Health and also the Department of Labour and Industry.

59. The effect of Mr Stewart’s evidence is that the officers of those Departments were available and willing to give advice to enterprises where asbestos was used and who were moved to inquire of them concerning the use of asbestos. They would give advice on the dangers of its use and the means which should be adopted to limit exposure and avoid injury.

60. The first relevant document is a copy of a memorandum from Dr Ian Rathus, the Director of Industrial Medicine to the Director General of Health and Medical Services. It contains comments consequent upon a letter he had received from one G M Dawson, State Secretary of the Building Workers Union of 28 March 1968. Relevantly, it said this:

This letter has some paragraphs which are somewhat colourful. I am attaching a photostat of the article referred to in Mr. Dawson’s letter. This article is substantially the opinion held of Mesothelioma, and there is no debate with Mr. Dawson on the nature and lethal capacity of the tumour, nor its association with asbestos either in the industrial worker or inadvertently through environmental exposure in one way and another.
He suggested that the Director General reply to that letter referring, amongst other things, to the fact that:
Authorities in Queensland and Australia have not failed to keep pace with modern developments and understanding of this dread disease. We are as well informed as any other country.

61. The plaintiff submits that this memorandum reveals that Dr Rathus was aware that facts in respect of mesothelioma had generally been disseminated in the medical literature and that there was no doubt of its association with asbestos either in an industrial worker or inadvertently through environmental exposure in one way or another.

62. On 19 April 1968 Dr Rathus wrote to the State Secretary of the Building Workers Industrial Union. In that letter, amongst other things, he said:

I would also like to state that I am very familiar with the literature on the problem of asbestosis per se and the established relationship of mesothelioma to asbestos exposure.
This Division as a function of the Department of Health, will continue to offer its specialist services to all levels of industry and investigations will continue to be carried out at the request of the Unions, employer organisations, government departments, and at my own instigation where I have some reason to think this may be informative and useful.

63. Again, this demonstrates that Dr Rathus was willing and available to give information to those who sought it.

64. On 21 June 1968 Dr Rathus wrote a memorandum to the Director General of Health and Medical Services. He was commenting upon the letter of Mr Dawson of 17 June 1968. Relevantly, he observed:

There is no complacency associated with the above mentioned disease on the part of this Department and certainly no ignorance.
The disease was identified as Asbestosis Mesothelioma.

65. On 3 February 1969 Dr Rathus wrote to Dr D D Letham, the physician in charge, Occupational Health Department of Public Health in Perth. Seemingly, he was answering questions raised in a letter to him. I am asked to infer that the document, also provided by Mr Stewart, entitled Asbestos in Industry is a document that came into existence after the publication of Wagner’s papers, PX18 and PX19. Its contents and other documents lead to the inference that it did. Relevantly, it contains this:

Unfortunately certain asbestos industries are not as amenable to enclosed processes and one of these is the insulating industry in which asbestos is used. This industry is spread out amongst a number of smaller firms and it is possible that a concept of the disease I have mentioned is not as detailed as that possessed by the larger asbestos industries.

It is for this reason that the above summary is presented to you. The obvious conclusions to be drawn are that inhalation of asbestos fibre must be made as small as possible for all those exposed and attention has been directed towards protection of asbestos workers at all phases from the mining of the ore, through to the milling and processing to the ultimate use of asbestos fibre by the various industries.

… It is used in the engineering industry for similar purposes so that its wide-spread uses may involve many workmen inadvertently.

Over the years, certain minimum dust concentrations have been considered reasonable in the asbestos industry. The value accepted has been 5 million particles per cu. ft. or its equivalent, 200 particles per cu. centimetre. However today this limit is considered as being far too high because of the known occurrence of cases of asbestosis and mesothelioma in well-controlled situations attaining figures below this on the average.

66. It then went on to recommend, amongst other things, total work enclosure, personal respiratory protection, changes in work habits and substitution of materials. It emphasised that personal respiratory equipment was essential and an efficient mask must be used. Significantly, it also said:

It should also be realised that men not directly connected with the work may be involved with asbestos exposure, such as labourers and cleaners who follow up the job and sweep up the spent fibre. These men must also wear masks and if possible the waste asbestos should be wetted before sweeping. …
Only absolute attention to all these factors on every job can ensure a minimising of the occurrence of asbestosis or these unusual tumours in men whose livelihood is derived from working with this material.
…
This Division will be happy to investigate any special problems at any time and to advise the industry generally on the mitigation of this quite notorious occupational health problem.

67. On 13 May 1969 Dr Rathus wrote to the Manager of Barker and Co Pty Ltd. Seemingly, this followed an investigation of asbestos use by that company. The letter is mostly irrelevant, but one part reveals information residing with Dr Rathus which was available to those moved to inquire of the Department. Relevantly, the letter contained this:

… In addition long term exposure to even low concentrations has been shown to be associated with the rare and uniformly fatal disease of the lining of the lungs known as mesothelioma.

68. The Chief Safety Engineer of the Department of Labour and Industry and Tourism on 5 December 1969 was one A J Hilless. He then directed a memorandum to the Chairman of the Health Welfare and Safety Board. In that memorandum he recommended inclusion in the (Queensland) Asbestos Rule, to which reference later will be made, a requirement that protective clothing be worn and put on and taken off in accommodation to be provided. On 23 July 1968, one D Swain, Acting Chief Industrial Inspector, forwarded a memorandum to the Under Secretary of the Department. In the second paragraph he said:

It is clear that the hazards associated with the use of asbestos are well known to the medical field and Dr. Rathus has furnished under B/c Minute of 6th June, 1968, a commentary on the problems associated therewith and the precautions to be taken. …

69. At p 2 of his report of 20 May 2008 Mr Stewart said that, in his opinion, in the period from 1964 to 1985, it was foreseeable to Caltex that the plaintiff was at risk of contracting mesothelioma as a result of contact with, and shaking out, her husband’s work clothing. He based this opinion on his experience as an industrial hygiene engineer, as well as the documents to which he referred. At p 5 of his report he indicated the measures which could have been taken to obviate or minimise the risk of exposure to Mrs Stavar. The opinions of Dr Leigh and Professor Henderson also are that it was reasonably foreseeable that there was a risk of injury to persons in the class of whom the plaintiff was one at all relevant times. In my view, those opinions are justified by the evidence.

70. In Bale v Seltsam Pty Ltd [1996] QCA 288 (23 August 1996), a case similar to this, the plaintiff failed, the majority of the Queensland Court of Appeal being of the view that she had not established her injury was foreseeable. Her husband had been exposed to asbestos at work between 1 June 1962 and 30 August 1965.

71. The dissenting view of Fitzgerald P in Bale was preferred by the majority of the New South Wales Court of Appeal in CSR Ltd & Anor v Young (1998) 16 NSWCCR 56. At [114]. Giles A-JA said:

In Bale v Seltsam Pty Ltd the plaintiff had been exposed to asbestos from June 1962. The majority, McPherson JA and Helman J, considered that, on the evidence, at the relevant time the state of scientific knowledge was such that physical injury to a class of persons of which she was one was not reasonably foreseeable. Their Honours appear to have concentrated on mesothelioma rather than personal injury in general, and to have required that on the state of scientific knowledge there was positive foresight of harm rather than foresight that, given the uncertain state of knowledge there might be harm. Fitzgerald P considered that, “the known toxicity” of asbestos dust and “the known uncertainty” as to the effects of exposure to asbestos dust, together with knowledge that injury or illness might not emerge for many years, gave rise to a risk which “could not be dismissed as ‘remote’, ‘slight’, ‘far-fetched,’ or ‘fanciful’ ”. The decision in that case obviously depended on the evidence before the court but I respectfully prefer the approach adopted by Fitzgerald P.

72. The judgment in that case reveals that much of the material before the trial judge ([1995] QSC 306) (14 December 1995) and considered by the Queensland Court of Appeal ([1996] QCA 288 (23 August 1996)) is evidence in this case.

73. The plaintiff also relies upon two newspaper articles attached to the report of Mr Stewart, one from the Brisbane Telegraph (4 March 1969) and another from the Financial Review (28 November 1973). True it is those articles referred to the dangers of asbestos and its potential to cause mesothelioma. Of themselves, I doubt that they would be sufficient to cause the first defendant to foresee there was a risk of injury to people in the class of which the plaintiff was a member, but they indicate that there was such an awareness in the medical scientific community. The first defendant could have become aware had it made inquiries.

74. There is another factor also which is relevant on the issue of foreseeability. The evidence is that from the mid 1980s, the refinery engaged contractors from the Bells companies or from one of the Bells companies to assist in lagging, which involved not only the placing of new asbestos material, but the removal of old. The evidence is that the Bells employees, certainly from the mid 1980s, wore full protective clothing and were supplied with respirators. The plaintiff’s husband was not, and, of course, for some years before he was made redundant, he was still removing lagging without effective protection. The fact that Bells employees were wearing protective clothing ought to have made Caltex aware that there was a foreseeable risk of injury against which means were available to obviate or minimise it.

75. I find that it was reasonably foreseeable from at least the mid 1960s that exposure to small amounts of asbestos was capable of causing injury to people in the class of which Mrs Stavar was a member.

76. I have made but brief reference to the Asbestos Rule which was made pursuant to the Queensland Factories and Shops Act 1960. I shall refer to particular clauses of this Rule in due course, but it took effect from 11 July 1971, and by reason of certain provisions, it was, in my view, made apparent to those bound by it, that people in the class of which the plaintiff was a member were at risk of injury by exposure to small quantities of asbestos.

Duty of care

77. The question now to be considered is whether the first defendant owed a duty of care to the plaintiff. The plaintiff accepts that she must establish that a duty was owed to the plaintiff herself; she may not take advantage of the fact that the first defendant owed a duty of care to her husband.

78. In Gala and Ors v Preston (1991) 172 CLR 243 at 253 the majority of the High Court (Mason CJ, Deane, Gaudron and McHugh JJ) said:

The requirement of proximity constitutes the general determinant of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury.

79. If I may say so, a helpful test for determining whether a duty of care is established is provided in the judgment of Mason J in Wyong Council v Shirt (1980) 146 CLR 40. Though the introductory words are directed to breach, those following relate to the existence of a duty. His Honour said at 47:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.

80. In Seltsam Pty Ltd v McNeil (2006) 4 DDCR 1 Bryson JA observed at [36] that while the test of foreseeability was undemanding, it was not real or reasonable or just, to adopt one broad class of end users to whom the risk of exposure to asbestos was foreseeable.

81. Reference should here be made to the first defendant’s submission that the plaintiff was a member of an indeterminate class. That is a submission which I do not accept. It was foreseeable that employees of the refinery, those who worked there, and, as the literature earlier referred to shows, certainly from the mid 1960s, those who were members of the household of a person who worked at the refinery, were at risk of injury from exposure to even small amounts of asbestos.

82. The plaintiff submits that in the present case, the evidence establishes that it was foreseeable to Caltex that the plaintiff individually and as a member of a class was at risk of contracting mesothelioma as a result of contact with the asbestos contaminated person and clothing of her husband.

83. There are, however, other authorities to be considered in respect of the first two periods of Mr Stavar’s work at the refinery.

84. In Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161, 167 Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said:

[12]…First, there is the distinction between employees (for whose conduct the employer will generally be vicariously liable) and independent contractors (for whose conduct the person engaging the contractor will generally not be vicariously liable).

[13] …questions of vicarious liability fall to be considered in a context where one person has engaged another (for whose conduct the first is said to be vicariously liable) to do something that is of advantage to, and for the purposes of, that first person. Yet it is clear that the bare fact that the second person’s actions were intended to benefit the first or were undertaken to advance some purpose of the first person does not suffice to demonstrate that the first is vicariously liable for the conduct of the second.

[33] Whatever may be the logical and doctrinal imperfections and difficulties in the origins of the law relating to vicarious liability, the two central conceptions of distinguishing between independent contractors and employees and attaching determinative significance to course of employment are now too deeply rooted to be pulled out. And without discarding at least the first and perhaps even the second, the appellant’s claim against the respondent must fail. The mechanic was an independent contractor. He did what he did for the benefit of the respondent and in attempted discharge of its contractual obligations. But he did what he did not as an employee of the respondent but as a principal pursuing his own business or as an employee of his own company pursuing its business.

85. Against those general propositions, Mr McIntyre of senior counsel for the plaintiff places much reliance on another decision of the High Court of Australia. In Stevens v Brodribb Saw Milling Company Pty Ltd (1986) 160 CLR 16. At 31 Mason J said:

… Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb’s ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.

86. He also relies upon the observations of Brennan CJ in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 329-331.

87. The facts of Stevens and Northern Sandblasting and the circumstances on which liability were fixed, are somewhat different from those in this case. The observations of Mason J in Stevens and Brennan CJ in Northern Sandblasting are more relevant to the question whether Caltex owed a duty of care to Mr Stavar before he became its employee, rather than whether it owed a duty of care to the plaintiff.

88. A closer parallel exists in the case of Sydney Water Corporation v Abramovic & Anor [2007] NSWCA 248 (14 December 2007). That was a case on appeal from a decision of this Court. Basten JA said:

[87] The position of the principal is different with respect to an independent contractor, because the nature of the relationship is likely to mean that the principal has less control over the system of work and how it is performed. In some cases the independent contractor will be the worker, in others the worker will be the sole employee of his or her own contracting company. Broadly speaking the cases suggest that powers to direct and control will be critical in determining the existence of and scope of a duty.

[92] If that duty [that is the duty to control work of its contractors] is not to arise in all cases involving independent contractors additional elements, as in Crimmins, must be established. These appear to be that:

(a) the principal had knowledge of the risks which was not shared by the employer, or
(b) the principal created the risk through directions given to the employer, or
(c) the principal knew or at least ought to have known that the employer was not, or was not capable of, instituting a safe system of work.

89. None of these three elements has been established in the present case. If they were established, they may have been relevant in considering whether a duty was imposed on Caltex to protect Mr Stavar in the earlier periods, but the position of the plaintiff is different.

90. Basten JA continued:

[96] Where an activity required by a principal could result in a release of toxic or hazardous material which might affect people in the vicinity of the activity, the principal will have a duty to take reasonable care to protect people from the risk, which might require one of the following steps:

(iii) instituting controls to inhibit the release of hazardous material.
Thus the initial question will be whether the duty is only satisfied by not carrying out the activity at all. …
[97] If the activity is to be carried out, it is clear that the principal will owe a duty to institute a safe system of work if it is the employer of the workers carrying out the activity. Where an independent contractor is interposed between the principal and the worker, that duty will rest upon the independent contractor as the employer of the worker. …

[98] However, the principal may also owe a duty to a worker who is an employee of an independent contractor. The legal question is to identify the criteria which must be satisfied to give rise to such a duty of care. The cases suggest that satisfaction of one of the following criteria may give rise to such a duty:

(a) the principal directs the manner of performance of the work;
(b) the work requires the co-ordination of the activities of different contractors;
(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;
(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;
(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.

91. In the construction period, 1964-1965, the principal was Bechtel, not Caltex. Caltex did not assume occupation of the refinery until July 1965 (PX34 Q4). So far as it is aware, Caltex had no contractual association with Associated Insulations, which, it believed, contracted to Bechtel (PX34 Q7). It does not advance the plaintiff’s case that Caltex personnel carried out inspections during the construction phase, nor, if they did, that they saw asbestos insulation being applied. Though the construction contract is not in evidence. I am asked to infer that Caltex had the power to require Bechtel and, through it, its contractors, to adopt safe work practices, presumably to avoid exposure to the employees of Bechtel’s contractors, but I see no basis upon which such an inference might be drawn.

92. The evidence demonstrates that when he was employed by McDonald Constructions between 1964 and 1974, Caltex did not direct the manner of the performance of Mr Stavar’s work. He was told where maintenance work was required. He was not directed how to do that work. While employed by McDonald Constructions, Mr Stavar’s work did not require the co-ordination of different contractors. It has not been shown that in this period Caltex had, or ought to have had, knowledge which McDonald Constructions did not have and could not reasonably be expected to have had. Even though McDonald Constructions should have had knowledge of dangers of asbestos exposure and could reasonably have been expected to take steps to alleviate the risk of asbestos disease to its employees, it is not established that to the knowledge of Caltex it failed to do so.

93. In the 18 month period between 1964 and 1965 and between 1965 and January 1974 none of the criteria referred to in [92] of the judgment of Basten JA in Abramovic was satisfied.

94. It is also relevant to note the reason of the Court of Appeal in Felk Industries Pty Ltd v Mallet & Anor [2005] NSWCA 111. Hunt A-JA said:

[18]…Where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesman of that class are accustomed to meeting and safeguarding themselves against defects of that kind.

[19] It is not suggested that the fact that the plaintiff was an employee of an independent contractor denies the application of that proposition to him as well. …

95. It is my view that during the first two periods of Mr Stavar’s work at the refinery, there was no relationship of proximity between the first defendant and the plaintiff. Notwithstanding that, as recent decisions of the High Court of Australia show, the notion of proximity is no longer a safe guide for determining whether a duty of care exists. One must look to the nature of the relationship between Caltex and the plaintiff. Applying the principles cited in the cases referred to at [100] in ACQ v Cook [2008] NSWCA 161 (16 July 2008) and the other cases referred to above, to the facts of this case, I am of the view that no duty was owed to the plaintiff in either of the two periods under consideration.

Duty in the employment period

96. I turn now to consider the position during the course of Mr Stavar’s employment by the first defendant from 14 January 1974 to 1 March 1991.

97. It should be observed that contrary to the opinion of Mr Rogers, I am of the view that the plaintiff’s daily exposure to asbestos continued as it was in the two preceding periods until 1983, but from 1983, though exposure continued, it was on a lesser basis.

98. I have referred to the Asbestos Rule which took effect from 11 July 1971. The first defendant says that the plaintiff may not call the Asbestos Rule in aid. The Asbestos Rule imposed obligations upon occupiers of factories to deal with asbestos processes and asbestos contaminated clothing in particular ways. Plainly, this Rule was intended to prevent or minimise exposure to asbestos from asbestos contaminated work clothes used in factories. It was mandatory in its terms. It required approved respiratory equipment and protective clothing to be provided for the use of each person engaged in work in which, or employed in any part of the refinery where, asbestos dust was liable to escape.

99. The Asbestos Rule applied to the refinery at Lytton.

100. Cl 3(b) concerns the application of the Asbestos Rule. It is in these terms:

(b) This Rule shall apply to every process involving asbestos or any particle comprised wholly or partly of asbestos and to any work involving the use or handling of asbestos, any article comprised wholly or partly of asbestos or any article that has contained or has been contaminated with asbestos, except in a process or work in connection with which asbestos dust cannot be given off.

101. Significantly, the Asbestos Rule required the cleaning of protective clothing. Cl 18 provided:

18. Cleaning of protective clothing. - (1) The occupier shall cause all protective clothing provided in pursuance of this Rule to be cleaned when necessary and maintained in good order and condition.

Provided that this requirement shall not apply in the case of protective clothing which before despatch from the factory for cleaning is properly packed in suitable containers which prevent the escape of asbestos dust therefrom and the containers in which it is packed are clearly marked with the words “Asbestos contaminated clothing”.

102. It is argued for the first defendant that cl 18 and the Asbestos Rule in general, applied only in respect of people who were employed to work within a factory. I do not agree. The fact that asbestos contaminated clothing was to be cleaned within the factory, or, if removed for cleaning, to be packed in containers labelled “Asbestos contaminated clothing”, clearly indicates that it was intended for the protection of people outside the factory who might otherwise come in contact with asbestos dust on that clothing.

Cl 4(2) is in these terms:

(2) Reference in this Rule to asbestos dust shall be taken to be references to dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of persons and shall include any particles given off by means of any spraying process.

103. The defendant says, and the plaintiff agrees, that the provisions of cl 4(2) are to be considered subjectively.

104. It is submitted for the first defendant that the levels of exposure during the course of the plaintiff’s employment by Caltex were of such a nature that they were not, at the time, contrary to industry practice and therefore did not constitute a foreseeable risk of injury. It is said that the dust consisting of or containing asbestos which attached itself to Mr Stavar’s clothes and person was not then regarded as “liable to cause danger to the health of” Mr Stavar or the plaintiff.

105. PX3 is a draft of “Model Asbestos Regulations”. They were never promulgated nationally, as seems once to have been the intention, but some of the paragraphs are identical to clauses in the Asbestos Rule. PX37 is a guide which “should be read in conjunction with the NH and MCR [National Health and Medical Research Council] documents” which included the “Model Asbestos Regulations”. Par 11 of the guide recited:

The risk of asbestosis occuring (sic) in a worker is considered minimal if the long term average chrysotile or amosite fibre concentration of the atmosphere does not significantly exceed the number of fibres per millilitre of air specified in the NH & MRC occupational health recommendation “Threshold Limit Values (1981)”.
The first defendant says that this paragraph indicated it was acceptable that the published limits might be exceeded, but not significantly so. Par 12 is:
The quantitative relationship between the atmospheric concentration of asbestos dust and risk cancer is not known. It is therefore not possible to specify a hygienic standard for asbestos at which this risk is removed; although it is generally agreed that the minimum exposure needed to cause mesothelioma is considerably less than that to cause other asbestos induced cancers.
The plaintiff responds that par 12 indicated that, contrary to the first defendant’s submission, a base standard could not be set.

106. Other paragraphs suggested that management should consult those experienced in the safe use of asbestos (such as Occupational Health Authorities), that where possible asbestos should be replaced, that protective equipment and special locker accommodation (to ensure street clothes were not contaminated) be provided, and so on.

107. The first defendant says it complied with the recommended guides. I do not accept it complied with all. There is no evidence to suggest it consulted Occupational Health Authorities, nor was a mask provided to Mr Stavar effective to prevent the inhalation of dust. I readily accept that the first defendant was unaware of the draft “Model Asbestos Regulations” and of the NH and MRC guide, but had it made enquiry of the relevant government departments, as it could and should have done, it would have received advice which conformed with the guide. It would have been reminded of its obligations under the Asbestos Rule and informed that its terms were mandatory. The “Model Asbestos Regulations” and the guide confirmed what were and had been safe practices.

108. The plaintiff tendered part of the transcript of evidence given by Professor Gandevia, now dead, in a case involving a plaintiff named McCusker (PX 31). At p 611 of the transcript in that case, Professor Gandevia was asked this:

Q - By 1965 Newhouse had published her paper about exposure of people not only washing clothes but living nearby factories.
A - That’s correct.

Q - They were also small exposures, were they not.
A - Relative to the exposures needed to cause asbestos they were, but they were not small in an absolute sense.

Q - If we look at the exposure of a woman washing work clothes that would amount to a few minutes a day, might it not .
A It also extended over a long period of time and it could reach levels of 100 fibres per ml.

109. That evidence supports the conclusion that exposures from washing clothes sufficient to cause mesothelioma were small by comparison with exposures capable of causing asbestosis, that is they were small by comparison, not small of themselves. I do not accept Mr Rogers’ suggestion that exposure to the quantity to which the plaintiff was subject was small and not then regarded as “liable to cause danger to the health of persons”. Studies showed that some, whose only exposure was from washing clothes, had contracted asbestosis. Washing work clothes did not always produce a small exposure, but in any event, from at least the mid 1960s it was well known to Queensland Government Departments responsible for industrial health and to the medical scientific community at large that exposure to lesser quantities of dust, and in particular to dust from contact with the clothes of those who worked with asbestos, was capable of causing mesothelioma. It should have been known to Caltex.

110. Whether the plaintiff needs to rely upon the statutory count alleging breach of the Asbestos Rule, or whether to establish negligence it is sufficient for the plaintiff to rely on the failure of the first defendant to observe its provisions, does not matter. The Asbestos Rule applied during the course of the plaintiff’s husband’s employment. He was employed by the first defendant for a period of seventeen years and for nine of those years he was subject to intense asbestos exposure and carried dust home. If I am wrong in the conclusion that there was no duty before Mr Stavar was employed, it is my view that the Asbestos Rule established a duty to the plaintiff by the first defendant upon Mr Stavar’s becoming employed. Moreover, I think it significant that in Bale, Helman J said at p 23 of 26 of the decision published by

Had Mrs Bale been successful in establishing that physical injury to a class of persons of which she was one might reasonably have been foreseen as a possible consequence of the respondent’s acts or omissions, there could be little doubt that the requirement of proximity as it has been explained in a number of decisions of the High Court would have been satisfied.

111. I have remarked that the duty, in my view, was not owed to an indeterminate class. The duty upon the first defendant was not to safeguard those in Mr Stavar’s company on public transport or in hotels or who came into casual contact with him. The duty was, however, owed not only to employees and others who worked at the refinery, but also to members of their households. The fact that the Asbestos Rule required special precautions to be taken to protect those laundering or coming into contact with the material, does not render the class indeterminate; on the contrary, it identified the class. The duty imposed on Caltex was to protect employees and those members of their households who were at risk of contracting asbestos diseases from coming into contact with asbestos contaminated work clothes or asbestos transported from the workplace to households. Caltex failed to comply with this duty. It breached its duty to the plaintiff by failing to provide protective work clothing to Mr Stavar and by failing to ensure compliance with those parts of the Asbestos Rule concerning laundering on site and by failing to warn.

112. The plaintiff therefore is entitled to a verdict against the first defendant.

113. It should earlier have been observed that the defendant was aware of the existence of the plaintiff by reason of a form that Mr Stavar had completed and lodged with the first defendant in which his wife was identified.

114. I think I have dealt with the fact that no warnings were given and my acceptance of the course which would have been followed by the plaintiff and her husband had any been given. The fact is that it was open to the first defendant to provide respirators and protective clothing and equipment of the type worn by Bells employees to Mr Stavar and it failed to do so.

All exposure causative of mesothelioma

115. It has frequently been held in the Tribunal that all asbestos exposure during an acceptable latency period makes a material contribution to mesothelioma. That has been the subject of determination by judges of the Tribunal under s 25B of the Act. In James Hardie & Coy Pty Ltd v Barry (2000) 21 NSWCCR 150, Spigelman CJ at 157 [16] expressed the view that s 25B is substantive in nature. The same view was expressed at [123] by Priestly JA. Mason P, on the other hand, thought at [78] it was procedural. In Schultz (supra), Callinan J, in the passage already quoted, expressed the view that s 25B was substantive. It might be said that these views are obiter, but they appear in considered appellate judgments. Unless and until a contrary view is expressed, I feel constrained to hold that s 25B is substantive in nature and the plaintiff may not rely upon findings in earlier proceedings that mesothelioma is an indivisible injury to which all asbestos exposure makes a material contribution.

116. Nevertheless, the evidence that that is the case is overwhelming. Both Dr Leigh and Professor Henderson have expressed that view. Mr Parker tendered part of a transcript given in the case of Walsh by Dr Schneeweiss. There was cross-examination of the doctor on which of a number of exposures was causative of Mr Walsh’s mesothelioma. In effect, what Dr Schneeweiss said was that he could not say one way or another. I do not know of Dr Schneeweiss and, so far as I am aware, he has never given evidence before me. His qualifications are not recited in that part of the transcript which is in evidence as CRX3. I do not know whether he is an expert in the field of thoracic medicine. By reason of their eminence and experience in the field, I prefer the evidence of Professor Henderson and Dr Leigh, and I express again the view long ago formed that all exposure to asbestos in an acceptable latency period makes a material contribution to the disease. That is a view now beyond controversy.

117. It is relevant to note that the first defendant qualified Dr Roger Allen, a thoracic physician, but failed to call him.

Damages

118. I come now to the question of damages.

119. Mesothelioma is a devastating and terribly painful disease. Fortunately, of recent times, a new form of chemotherapy, Alimta, has become available to sufferers of mesothelioma. One of its effects seems to be an improvement in the quality of life for a short while. In some cases, it has extended life beyond the usual prognosis. Nevertheless, all sufferers of mesothelioma reach a stage where pain is uncontrolled and seemingly uncontrollable. The usual treatment to alleviate pain caused by mesothelioma in Australia is morphine. In the United Kingdom it is not uncommon to use heroin. Morphine plateaus the pain rather than remove it. MS Contin is available when pain reaches a crescendo, but it does not remove the pain. Counsel these days, at least those experienced in the jurisdiction, do not usually address in detail on the consequences of mesothelioma, no doubt because they are well known. More often than not, a range of general damages is put by counsel and that is what has occurred in this case.

120. On the issue of pain, part of the transcript of Dr Gianoutsos, a highly regarded thoracic physician who frequently gives evidence in cases in the Tribunal, given in the case of McCusker, has been placed before me. Dr Gianoutsos was asked what would be the future of Mr McCusker. He said at p 337:

As time goes by, in spite of the pain relief that he’s getting at the present time, the pain will increase in severity, this being a very characteristic feature of mesothelioma.

121. And he went on to deal with some areas that perhaps are not relevant to Mrs Stavar, but others are. Dr Gianoutsos said:

The mesothelioma is obviously affecting the whole of the pleural surface of his lung and if one looks at that in terms of total area, it is probably a very significant area of pain, if you can just imagine an expansion of that, by comparison with a small area of pain, which most of us suffer if it’s localised on our abdomen or leg. It gives an index of the severity of the discomfort that he is experiencing now and it will be even worse as time goes on, increasing use of morphine and as that lung comes more and more restricted and constricted by the mesothelioma process, he’s going to become increasingly breathless. Breathless may be helped somewhat by the morphine, because that’s one of its secondary actions, independent of its analgesical painkilling action. Then, of course, comes the side effects of the morphine, which will almost certainly be, in the first instance, constipation, which can be troublesome and painful in its own right and then will come excessive sedation from the morphine and some definite effect on his respiratory centre, such as his breathing capacity will be limited and the taking of morphine in high dosage may well be associated with the shortening of his life, independent of the mesothelioma process itself.
At p 338 he said:
The parietal pleura, that is the pleura that is lining the chest wall, does not contain pain fibres, but there are pain fibres in the visceral pleura, which is the pleura this man has involvement with his mesothelioma. As a consequence, there is constant unremitting irritation of those nerve fibres by the developing evolving mesothelioma and as a consequence, it’s pain that is felt day and night unless some relief is afforded.
He was asked at p 339:
Q - Towards the end of the process, what is the position of the patient.
A - It’s one of the pain and breathlessness that I have mentioned. It’s one of debilitation, of gross weight loss, energy levels that will not allow people to get out of bed, they become bedridden often in the last month of their life because of pain, because of weakness and coupled with that there is the psychological impact of the disease as well in terms of the anger that it engenders because very often it’s usually men who often suffered little or no other illness in their life, …

122. Before symptoms of mesothelioma presented the plaintiff walked for ten or fifteen minutes every morning. However, in late 2006, the first symptoms of mesothelioma presented as breathlessness when walking up hills and a dull pain on the left side of her chest. The pain was intermittent but often occurred when she was at rest. Her breathlessness continued to increase and it was difficult to keep pace with her husband on their walks. For that reason she ceased walking around the neighbourhood. She felt extremely weak. It was not until October 2007 that investigations were ordered and, in due course, resulted in a diagnosis of mesothelioma. This followed a fine needle biopsy at Greenslopes Hospital. The biopsy was very painful. The plaintiff described the process in which a large needle was inserted through her back and into her lung. When the diagnosis was given to her, she was shocked and devastated. Not only was it a shock to her but it was a shock also to her husband, who himself has an asbestos related disease and was being cared for by his wife.

123. I have referred to the Alimta chemotherapy. The plaintiff had six courses which caused her to feel extremely ill and produced severe side effects. She thought that treatment was both physically and mentally draining. The plaintiff now is constantly tired and fatigued. Her social life has been adversely affected. Before she began to suffer more severe symptoms, she pursued an active life with a number of hobbies and interests. One in particular was quilting, and she was involved in social and charitable work with her church at Manly. She enjoyed looking after elderly people and participating in activities with them. All these are now beyond her.

124. The plaintiff has two daughters. She is distressed that she will not see her younger daughter marry nor the children of her elder daughter grow. This is a source of great distress. She has been married for 48 years; she will not be alive to celebrate her golden wedding anniversary. She is distressed that she will be unable to honour the promise made to her husband to look after him and attend to him because of his asbestos disease. Further matters relating to general damages are recited in her affidavit. They were not the subject of any significant cross-examination. The plaintiff will reach a stage where all she can expect is continuing uncontrolled pain. The tumour will eventually surround her lung and strangle it. The process will involve exquisite pain.

125. In my view, a sum appropriate to award for general damages is $200,000. Of this, $50,000 should be allocated to the past.

126. The plaintiff, according to the most recent Australian Life Tables, would have had a life expectancy of something between 19 and 20 years. She is likely to die in approximately one year. The practice of the Tribunal has been to allow $1000 per lost year, and, on that basis, I think it appropriate to allow a sum of $18,000 for loss of expectation of life.

127. It has been agreed that special damages, which include past and future service and care, and interest where appropriate, should be awarded in the sum of $120,000.

128. Thus the plaintiff is entitled to an award made up as follows:

General damages $200,000.00

Interest on past general damages $1,000.00

Loss of expectation of life $18,000.00

Agreed special damages $120,000.00

Making a total of $339,000.00

129. There will be a verdict for the plaintiff against each defendant and judgment in the sum of $339,000.

HIS HONOUR

Is there anything I did not deal with?

MR PARKER

The only matter that may be of concern is that your Honour held that the first defendant could have provided respirators and protective equipment as worn by the Bell’s employees and that may suffice to deal with the issue of breach, but breach is expressly articulated in the submission on the basis that there is no breach by the first defendant. Your Honour may wish to make clear that your Honour is holding that those matters represent a breach of the duty of care.

HIS HONOUR

I thought that was implicit, if not explicit, in what I said.

MR PARKER

It seems clear to me that that is what your Honour intended, but your Honour did not articulate the actual word.

MR McINTYRE

I make the same observations in relation to your Honour’s referring to the warnings that that was also in the context of breach.

HIS HONOUR

I thought I had delt with that also.

130. The only other order that I will make at this stage is that the defendants will pay the plaintiff’s costs as agreed or assessed.

131. I grant a stay in favour of the first defendant in relation to damages and costs until further order.

J A McIntyre, SC with S Tzouganatos instructed by Turner Freeman appeared for the Plaintiff

G J Parker instructed by Hwl Ebsworth appeared for the First Defendant

J C Sheller instructed by DLA Phillips Fox appeared for the Second Defendant

D J Russell, SC instructed by Middletons appeared for the Third, Fourth and Fifth Defendants