Stephen Smith v Sydney Water Corporation Ltd - [2000] NSWDDT 13

CITATION: Stephen Smith v Sydney Water Corporation Ltd [2000] NSWDDT 13

PARTIES: Stephen Smith
v
Sydney Water Corporation Ltd

TITLE OF COURT: Dust Diseases Tribunal of New South Wales

JURISDICTION: Original

MATTER NO: NSWDDT 100 of 2000

DELIVERED ON: 20 December 2000

DELIVERED AT: Sydney

HEARING DATES: 15 September 2000, 11, 12, 13 December 2000

JUDGMENT OF: Curtis J

NUMBER OF PARAGRAPHS: 55

CATCHWORDS: Dust Diseases - Negligence - Duty of Care - Principal and Employees of Sub Contractors

REPRESENTATION
PLAINTIFF
Mr R J Stanley QC instructed by Turner Freeman.
DEFENDANT
Mr M F Holmes QC instructed by Phillips Fox.

Dust Diseases Tribunal of New South Wales

Matter No DDT 100 of 2000

Stephen Smith

Sydney Water Corporation Limited

20 December 2000

JUDGMENT
CURTIS J

BACKGROUND

The plaintiff Stephen Smith has mesothelioma. Sydney Water Corporation Ltd has inherited the obligations of the Metropolitan Water Sewerage and Drainage Board (the Board).
Between 1969 and 1972 the plaintiff was employed by Stewart Upton Pty Limited to work as a labourer on the development of the new suburb of Westleigh near Hornsby New South Wales.
The development site comprised several hundred acres and was owned by Associated Securities Pty Limited (ASL). This company had, pursuant to s 34A of the Metropolitan Water Sewerage and Drainage Act 1924, entered into an agreement with the Board by which ASL undertook to construct water sewerage and drainage lines upon the development to the Board's specifications. Such agreement was necessary because by virtue of s 37 of the Act the Board was otherwise the sole authority for the conduct of water supply and sewerage services and construction of storm water channels.
Stewart Upton Pty Limited, the plaintiff's employer, was engaged by ASL as a contractor to excavate trenches and lay within them the water and sewerage pipes to the Board's plans and specifications. It was on this work the plaintiff was engaged. He was 18 years old when he commenced upon the site in 1969.
Because of the need to maintain a constant slope in the pipeline the lower end of each pipe as it was laid, was in turn aligned within very small tolerances to a sight line along the specified fall. Although both the contract and good practice called for the entirety of each pipe to be bedded in sand, the men, because of the uneven and unpredictable compaction of sand, found it easier to rest the lower or distal end of each pipe upon several pieces of asbestos cement sheeting so that it may be raised or lowered in uniform steps by the addition or removal of one or more such pieces. The asbestos sheeting used for this process was obtained from demolition of old fibro houses on the development site. Fibro sheets were taken from those houses to the pipeline trenches and there broken into smaller useful pieces by use of a hammer. It was the dust thrown off by the breaking of the asbestos sheets within the trenches which caused the plaintiff's mesothelioma.
Because it appears the employer, Stewart Upton Pty Limited has no substance, the plaintiff sues the Board in negligence.

THE PLAINTIFF'S CONTENTIONS

The plaintiff asserts that his injury could have been averted had the Board warned him of the dangers of asbestos, directed his immediate supervisors to cease using asbestos, or in the face of their refusal, directed that they be removed from the site. It is the plaintiff's assertion that the Board had a duty to so act, which duty arose from the following facts and circumstances:
(a)The dangers to which the plaintiff was exposed were foreseeable and common knowledge amongst the hierarchy of the Board. (PX6)
(b)The Board had contractual rights to supervise and control the work of Stewart Upton Pty Limited (PX7 General Conditions of Contract cl 15).
(c)The Board had the contractual right to order Stewart Upton Pty Limited to discontinue the process by which asbestos was used to level the pipes. (PX7 cl 23.2)
(d)The Board had the contractual right to prohibit the use of asbestos on the site. (PX7 cl 23.2)
(e)The Board had the contractual right to direct that particular safety measures be effected. (PX7 specifications cl 2.8)
(f)The Board had the contractual right to require the instant removal of any incompetent or inattentive foreman or employee of Stewart Upton from the works. (PX7 cl 23)
(g)The Board employed an overseer on the site to supervise the works and safety of the workers. (Transcript p 50)
(h)The Board employed a safety officer who visited the site daily (transcript p 57). This officer was specifically charged with the role of looking for safety hazards such as asbestos. (PX6 par 12)
(i)The Board received a benefit from the undertaking of the work.
(j) The supervisor employed by the Board had actual knowledge of the plaintiff’s use of asbestos.
(k)The practice of contractors using pieces of asbestos sheet to pack pipes was known by the Board to occur if supervision was not vigilant. (PX6 par 10)
(l)The safety officers employed by the Board knew or ought to have known of this practice on the site.
(m)The plaintiff at the time was aged 18, of limited education and ignorant of the dangers of asbestos.

FINDINGS OF FACT

Because of the elapse of time the contracts concluded between the Board and ASL and ASL and Stewart Upton are lost. However, upon the uncontradicted evidence of Mr Jitts, an engineer formerly employed by the Board, I find that the "General Conditions of Contract", upon which the Board generally entered into agreements such as that with ASL, were incorporated in the particular contracts for the works at Westleigh. As I understand it this finding is not contested. These General Conditions include the terms for which the plaintiff contends. While there is no evidence of the contract between ASL and Stewart Upton it is inconceivable that that contract did not include the same General Conditions and Specifications for the work as were included in the contract between the Board and ASL. In any event the contractual rights reserved by the Board from ASL could not be defeated by ASL carrying out the work by an agent or third party. I find the Board had the contractual rights asserted by the plaintiff.
It is not in dispute that the Board employed a supervisor and safety inspectors on the Westleigh site.
Did the Board receive a benefit? S 34A of the Metropolitan Water Sewerage and Drainage Act 1924 which enabled the work upon which the plaintiff was engaged to be carried out by the contractors was inserted by the Local Government and Metropolitan Water Sewerage and Drainage (Amendment) Act 1963. In his second reading speech to the Bill the minister said:
Honourable members will be aware of the rapid expansion that has taken place in the Sydney metropolitan and near South Coast areas in recent years and of the pressure which housing and industrial development had placed on the community’s land resources...
Early in 1961 after consultation with the planning authorities the Metropolitan Water Sewerage and Drainage Board itself adopted a policy of requiring subdividers and developers of land - whether the land was newly released or otherwise - to meet the costs of providing water or sewerage services where these were required before considerable development had taken place...
The need for this policy arose from the fact that the Board was faced with extremely heavy pressure for services in newly developed areas which could only be relieved at the expense of its normal program of work. The Board is already experiencing considerable difficulty in keeping pace with the present rate of development so far as sewerage is concerned despite the fact that it is laying water and sewerage mains at a greater rate than any similar authority in any other city in the world and the diversion of capital funds to the newly developed areas would have meant further delays in providing services to older areas, many of which are highly developed and have been waiting for sewerage for a number of years.
Although a number [of developers] were prepared to subscribe the share of the cost attributable to their own subdivision and in addition to make an advance on a refundable basis towards the balance of the cost they were loath to do so in the absence of specific legislation requiring all parties to meet their proportion of the cost.
The absence of legislation requiring all subdividers to contribute in due course means also that if the Board undertook to repay these special advances from its own resources its future loan allocations would become increasingly committed for this purpose at the expense of its normal program of work. The Bill has been prepared to overcome these difficulties and is designed to make the provision of the Board's services financially possible.
...the proposed legislation will give the Board, subject to the approval of the State Planning Authority, the powers necessary to enable water or sewerage to be provided at the time subdivision takes place where it is considered these services can reasonably be made available. Moreover, it will permit these services to be provided without affecting the Board's normal construction program serving old established and already well developed areas. (Exhibit SW5)
It may be seen that the benefits to the Board, created by the insertion of s 34A of the Act and the consequent agreements made between the Board and ASL at Westleigh, were the freeing of capital sums that would otherwise be required for completion of works in the subdivision of Westleigh and the reduction of the demands on the Board’s resources required for the service of established water and sewerage lines.
I appreciate that the Board in the consideration of the merits of this case is no more than a surrogate for the community at large, however, it may be seen that the community benefited from the delegation of the works upon which the plaintiff was engaged. I find as a fact that the Board received a benefit from the undertaking of the work upon which the plaintiff was engaged.
The plaintiff and his brother, who also worked on the site, gave evidence that the supervisor was present when asbestos was used as has been described. This evidence is not traversed. I find that the supervisor had actual knowledge of the asbestos dust to which the plaintiff was exposed.
Mr Jitts gave evidence that the practice in which asbestos was used by some contractors was not uncommon "where they could get away with it". An observant safety officer could not have been unaware of the presence of asbestos sheets removed from the demolition sites and placed proximate to the trenches. He should reasonably have known of the dangers to which the plaintiff was exposed.
The plaintiff gave evidence that he knew that in using the asbestos, he was “doing something that you should not do” (Transcript p 13). I must consider this evidence in the light of the presence by the Board's inspector on the site and at the place where this work was being done. The plaintiff may have believed the practice was something that should not be done because of something told to him by his more experienced workmates but he was in no position to refuse to take his part in the work, and it is apparent from the evidence that the activity was condoned by the supervisors employed by the Board.

THE LAW

Do these facts give rise to a duty on the part of the Board to warn the plaintiff or cause his employer to modify the practices? The conditions to which the plaintiff was exposed gave rise to a foreseeable risk of harm. Mr Jitts gave evidence that "the dangers of asbestos dust were common knowledge amongst the hierarchy of the Water Board in the period 1969 to 1972." The safety officers he said, "looked for such things as asbestos." The defendant has not submitted that the plaintiff’s injury was not foreseeable.
The next question is whether the relationship between the Board and the plaintiff upon the proven facts possesses those characteristics sufficient to establish a duty of care.
I have been referred to no case in which such a combination of facts has been held to create such a duty, however Mr Stanley for the plaintiff submits that those recognised categories of duty in which a person has been held to owe a duty of controlling others to prevent harm may be extended to accommodate the facts of this case. Such special relationships have been found to exist in the circumstances of parent/child, (Smith v Leurs (1945) 70 CLR 256), teacher/pupil, (Carmarthenshire County Council v Lewis [1955] AC 249), and custodial officers/juvenile delinquents, (Dorset Yacht Club Limited v Home Office [1970] AC 1004).
In Pyrenees Shire Council v Day (1997-1998) 151 ALR 147 McHugh J said at 175:
In the absence of a contract, fiduciary relationship or statutory obligation the common law makes a person liable in damages for the failure to act only when some special relationship exists between the person harmed and the person who fails to act. By a person's failure to act, I mean that person's failure to act divorced from positive conduct by that person that causes damage such as the failure to brake while driving a car. A special relationship may arise from the ownership, occupation or control of land or chattels, from the receipt of a benefit or from an undertaking, assumption of responsibility or invitation which might induce the person harmed to act or refrain from acting.
In Smith v Leurs Dixon J said:
One man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the grounds that the act of a third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature.
The general rule stated by Dixon J is no more exceptional nor remarkable than that rule that in general a man need not go to the assistance of a stranger who faces foreseeable and immediate harm. As Lord Reid said in Dorset Yacht Club v Home Office at 1027:
When a person has done nothing to put himself in any relationship with another person in distress or with his property, mere accidental propinquity does not require him to go to that person's assistance. There may be a moral duty to do so but it is not practicable to make it a legal duty.
Lord Reid in that case expressly rejected the argument that no person can be liable for a wrong done by another who is of full age and capacity and who is not the servant or acting on behalf of that person. His Lordship there fixed the defendant with liability by the application of the ordinary principles governing actions in negligence which he derived from the speech of Lord Atkin in Donoghue v Stevenson [1931] AC 562.
Although Dixon J in Smith v Leurs found it exceptional to find in the law a duty to control the actions of another to prevent harm to strangers, the exceptional nature of the duty does not appear to be founded upon any policy to be found in the cases that the ordinary rules governing liability in negligence do not apply. Rather it is precisely because those rules do apply that the necessary relationship is demonstrated but infrequently in the courts.
The law is, as I understand it, that the circumstance in which a man has some ability to control the actions of another, coupled with the foreseeability of harm to the other if that power is not exercised, does not of itself create a duty to act; something more is required, and that something is to be found in the normative rules by which a duty of care is imposed. Whether the foreseeable danger to which others are exposed is occasioned to them by such a thing as a sign, (Wyong Shire Council v Shirt (1980) 146 CLR 40), a flagpole, (Commonwealth v Introvoigne (1981-1982) 150 CLR 258), by a child, (Carmarthenshire County Council v Lewis (supra)) a delinquent, (Dorset Yacht Club (supra)) or a drunk, (Chordas v Bryant (1989) 91 ALR 149), the question at issue is whether the surrounding facts and circumstances create a duty on the part of another to so act as to obviate the danger.
In Dorset Yacht Club Lord Reid found the additional elements in terms of proximity. Since the decision of the High Court in Hill v Van Earp (1995-1997) 188 CLR 159, proximity is no longer the conceptual determinant by which courts acknowledge or deny the existence of a duty of care.
Because the High Court has not yet agreed on a unified approach to the question of duty, it is necessary to examine the facts from two perspectives. First, the rigorously incremental approach proposed by McHugh J and articulated in Crimmins v SIFC (1999) 167 ALR 1 at 19, and secondly, the spectrum or Caparo approach proposed by Kirby J in Pyrenees Shire Council v Day (1997-1998) 151 ALR 147 at 217.

THE McHUGH APPROACH

In Crimmins (supra), McHugh J said:
The question of duty must therefore be determined by reference to what has been decided in similar cases. Basic to that determination, as always, is the question: was the harm which the plaintiff suffered a reasonably foreseeable result of the defendant's acts or omissions? A negative answer will automatically result in a finding of no duty. But a positive answer then invites further inquiry and a close examination of any analogous cases where the court upheld that a duty does or does not exist. In determining whether the instant case is analogous to existing precedent the reasons why the material facts in the present cases did or did not found a duty will ordinarily be controlling.
The policy of developing novel cases incrementally by reference to analogous cases acknowledges that there is no general test for determining whether a duty of care exists. But that does not mean that duties in novel cases are determined by simply looking for factual similarities in decided cases or that neither principle or policy has any part to play in the development of a law in the area. On the contrary, the precedent cases have to be examined to reveal their basis in principle and policy. Only then, if appropriate, can they be applied to the instant case. A judge cannot know whether fact A in the instant case is analogous to fact B in a precedent case unless he or she knows whether fact B was material in that case and, if so, why it was material. Only then can the judge determine whether the facts of the current case are sufficiently analogous to those in an apparently analogous precedent to treat the precedent as indicating whether a duty of care did or did not exist in the current case. By this means, reasons of principle and policy in the precedent cases are adapted and used to determine new cases. Very often, the existence of additional facts in the current case will require the judge to explain or justify why they are or are not material. In this way, the reasons in each new case help to develop a body of coherent principles which can be used to determine whether a duty of care does or does not exist in novel cases and which also provide a measure of certainty and predictability as to the existence of duties of care.
In Carmarthenshire County Council v Lewis (supra) the defendant was held liable for permitting an unsupervised four year old boy to escape from a nursery school through an unlocked gate onto a public road causing a fatal traffic accident. The defendant had powers and duties of control beyond those of a mere bystander. Each of the majority speeches by Lord Goddard, Lord Reid and Lord Keith of Avenholm relied upon the fact that the defendant owed a concurrent duty to the child. Lord Keith of Avenholm said:
The appellants in my opinion have failed to give any explanation that would excuse them from a prima facie inference of carelessness that arises from the child having escaped onto the road. Whether the inference is one of lack of proper supervision, or lack of safeguards against the very small children escaping through doors and gateways onto the street does not, in my opinion, matter. I would say that there was a presumption of negligence here that the appellants have failed to discharge.
Does there then arise any question of duty owing in respect of the child's escape to the respondent's husband? [killed in the accident] I think there does. The duty owed to the child is to see that it does not become involved in a traffic accident by which it is injured. In my opinion it should be in the contemplation of any reasonable person that just such an accident may well arise in the case of a very small child that is allowed to escape onto a busy thoroughfare in a town.

Upon the facts of the present case the Board was possessed of an extraordinary degree of control over the plaintiff's employer and the conduct of his works pursuant to the general conditions of contract. If the Board chose to exercise that control, which it did, it owed a contractual duty, at least to ASL, not to do so carelessly. In considering the discharge of this duty I believe that the court may, as was said in another context, take account of the power of the Board to "prescribe, warn, command and enforce obedience to [its] commands” (McLean v Tedman (1984)155 CLR 306 at 313).
In 1969 the dangers arising from the inhalation of very small quantities of asbestos fibre were not as well known as in later years. Many members of the public, and probably most 18 year old labourers of limited education were unaware of the risks. The Board was aware of these risks and exercised its contractual right to supervise the work .It owed a duty to ASL to supervise without carelessness. This duty of care may by small increment be extended to apply concurrently to the men themselves.
In Dorset Yacht Club v Home Office (supra) seven Borstal boys eluded the careless supervision of the defendant's officers and sought to make their escape from an island upon a yacht owned by the plaintiff. The yacht was damaged and the defendant was held liable in negligence. In the judgment of Lord Reid the defendant was liable because the particular damage was the "very kind of thing" likely to happen if care was not taken and the trainees sought to escape. The duty recognised in Dorset Yacht Club may similarly be extended to the facts of this case. The Board had reserved and exercised a responsibility for safety on the site. The Board knew that if the contractors were not properly supervised the use of asbestos was "the very kind of thing" liable to occur.
In my judgment the Board was liable to the plaintiff for failure to control the actions of Stewart Upton Pty Ltd because the Board had actual knowledge of the grave risks to health faced by the plaintiff; he was employed upon an undertaking carried out in the Board’s interest; he was ignorant of the danger; the Board had reserved to itself and exercised a right of control over his work; the Board concurrently owed a duty to the principal contractor not to exercise this control carelessly, and the plaintiff’s injury was the very kind of thing liable to occur if the control was exercised carelessly.

THE KIRBY APPROACH

In Pyrenees Shire Council v Day (supra) Kirby J said at 216:
I would therefore adopt as the approach to be taken in Australia the three stage test expressed by the House of Lords in Caparo. To decide whether a legal duty of care exists the decision maker must ask three questions:
1.Was it reasonably foreseeable to the alleged wrongdoer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage or a person in the same position?
2.Does there exist between the alleged wrongdoer and such person a relationship characterised by the law as one of `proximity' or `neighbourhood.'
3.If so, is it fair, just and reasonable that the law should impose a duty of given scope upon the alleged wrongdoer for the benefit of such a person?
Kirby J went on to say that the question whether the relationship may be characterised as one of "proximity" or "neighbourhood" was to be answered after a review of a spectrum of "proximity factors" which have been held in the past to give rise to a duty of care and which may be present in the instant case.
Counsel for the plaintiff addresses this formulation of duty in his written submissions as follows:
A duty of care to take reasonable steps to prevent injury from asbestos exposure to the plaintiff is owed by the Board because the risk of such injury in the circumstances was foreseeable and there was sufficient relationship of proximity between the plaintiff and the Board. The following elements are satisfied in this case:
(i)There was nothing in the legislation that negatived the existence of such a duty of care - indeed the existence of such a duty would be totally consistent with the performance by the Water Board of its statutory functions.
(ii)The duty of care can be seen to arise specifically in relation to a known class of plaintiff, that is workers on drainage works rather than to the world at large.
(iii)The Board is in a position of control and has the specific power to protect the plaintiff from relevant injury.
(iv)The Board recognised it had a function and power to perform and ensure safe working conditions for drainage workers and it did exercise that power. The instructions to its overseers and the attendance of the safety officers showed the Board in fact assumed responsibility. Moreover it was a responsibility that was particularly directed towards preventing the risk to drainage workers of exposure to asbestos.
(v)The plaintiff was in a position of special vulnerability or dependence. He was 18 years of age and could not reasonably have been expected to safeguard himself from the dangers of asbestos.
(vi)The Water Board knew of the risk of injury to the plaintiff as a result of exposure to asbestos.
(vii)There was at least an implied reliance by the plaintiff upon the Water Board not to expose him knowingly to risks of dreadful injury. The very presence of Board representatives during the course of his employment, together with visits by inspectors and the public stature of the Water Board would at the least reinforce his confidence in the safety of the work he was performing.
(viii)No considerations of `practicality and fairness' nor any other policy reason exists to deny a duty of care
. . . .
Adopting the approach of Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 (23 November 2000) the appropriate question is:
`Did the defendant owe the plaintiff a duty of care whilst he was performing drainage works to prevent exposure to asbestos which it knew was harmful and was being used in the course of the works.'
It is submitted that the answer to this question must be in the affirmative in light of the relationship (whether expressed in terms of proximity or not) between the plaintiff and the Water Board as evidenced by the factors of control, reliance, assumption of responsibility, vulnerability and the degree of physical, circumstantial and causal closeness. With respect to the risks to health from being exposed to asbestos in the course of drainage works, the plaintiff was the `neighbour' of the Water Board.
In addition to those factors identified by plaintiff's counsel, reference may also be made to the following circumstances which have been recognised in the cases as relevant to the imposition (or denial) of a duty of care.
(a)The duty sought to be imposed is co-extensive with an independent duty. (Hill v Van Earp (supra), Bryan v Maloney (1994-1995)182 CLR 609 )
(b)There is a proportionality between the advantage enjoyed by the Board in the delegation of the works and the possible liability to which it was exposed. (Per McHugh J in Hill v Van Earp (supra), Esanda Finance Corporation Ltd v Peat Marwick (1995-1997)188 CLR 241)
(c)The Board had access to special expertise and knowledge relating to the dangers.(Per Gummow J in Pyrenees (supra); Mason, Deane and Gaudron JJ in Bryan v Maloney (supra))
(d)The Board’s actual estimation of the peril to which the plaintiff was exposed. (Per Kirby J in Pyrenees). The Board knew that the plaintiff faced grave danger of contracting a disease with fatal consequence.
(e)The defendant’s ability to obviate the danger was in no way compromised by a lack of resources. (Per Kirby J in Pyrenees). The Board employed both a supervisor and a safety officer. No further call was made upon the resources of the Board, rather the circumstances merely demanded that those resources be employed without carelessness.
I see no reason why it is not fair, just and reasonable to impose a duty upon the Board of that scope for which the plaintiff contends.
The defendant relies upon the decisions of Hetherington v Mirvac Pty Ltd & Ors (1999) ATR 81- 514 at 65,991 and Modbury Triangle Shopping Centre Pty Ltd v Anzil (supra).
In Hetherington at 66007 Wood J said this:
It has long been a general rule that a principal is not liable for the negligent conduct of his independent contractor, or for the independent act of a third party.( Smith v Leurs, (supra), Dorset Yacht Club v Home Office (supra), Perl Exporting Limited v Camden LBC (1984) 1 QB 342: Colonial Mutual Life Assurance Society Ltd v Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 and Kondis v State Transport Authority (1984) ATR 80-311.)
To that general rule there are two apparent exceptions: the first when the principal directly authorises the doing of the act which amounts to the tort; the second when the principal engages the independent contractor to perform a duty resting on him and the independent contractor fails to perform it.
I do not read his Honour as there saying that the two exceptions to which he refers are the only exceptions which may be admitted to the general rule. The exceptions stated by Dixon J in Smith v Leurs and McHugh J in Pyrenees are in wider terms. In any event Hetherington is distinguishable on its facts from the present case.
The decision of the High Court in Modbury is no more than an example of that observation of Isaacs ACJ in Metropolitan Gas Company v Melbourne Corporation (1924) 35 CLR 186 at 194, that no conclusion can be reached of negligence until first the mind conceives affirmatively what should be done. There is no such thing as a duty of care in the abstract; the question is always whether there was in the circumstances a duty to do or refrain from a particular action. It was accepted in Modbury that the defendant owed the duties of an occupier to the plaintiff. The question there at issue was the scope of those duties.
I find that the Board is in breach of a duty to the plaintiff to warn him of the dangers of asbestos, to direct his immediate supervisors to cease using asbestos, or, in the face of their refusal, to direct that those supervisors be removed from the site.

CAUSATION

In the plaintiff's case Professor Henderson, Dr Burns and Dr Leigh have opined that the plaintiff's mesothelioma was caused or materially contributed to by his work with Stewart Upton Pty Limited at Westleigh under the Board's supervision. Professor Henderson was cross-examined by Mr Holmes for the defendant, and did not resile from his opinion. The defendant has qualified Professor Breslin to give an opinion and he is not called. I find that the defendant's breach of duty caused the plaintiff's mesothelioma.

GENERAL DAMAGES

The plaintiff was born on 1 December 1951, he is now 49 years of age. In other circumstances he had a life expectancy of 31.7 years.
He has suffered from congenital polycystic renal disease since 1955 and has been troubled on several occasions with pain over his kidneys due to haemorrhage into the cysts. At some time in the future he would have progressed to dialysis and a kidney transplant. It is the opinion of Dr Maureen Lonergan, his treating renal physician, that notwithstanding this prospect, the plaintiff had a life expectancy close to normal. The plaintiff's brother, who suffers from the same familial disease, gave evidence. He was for some years on dialysis and has now received a kidney transplant. He has remained fit throughout these procedures holding down a full-time job as a doorman and cellarman at an RSL club. Damages should not be reduced because of the plaintiff's renal disease.
In March 1999 while at a routine visit to the renal unit of Wollongong Hospital the plaintiff was referred to Dr Hart, a thoracic specialist, because of left chest problems. He had developed a persistent cough. On 20 October 1999 Dr Wolfenden carried out an open lung biopsy at Prince of Wales Hospital Randwick. This revealed the plaintiff's disease. The plaintiff was devastated when he was told by Dr Lonergan that he had mesothelioma and that the condition was terminal.
In February 2000 the plaintiff began to notice shortness of breath on exertion. However, he was otherwise relatively well until early September 2000 when he had an acute onset of sharp epigastric and chest pain followed rapidly by the onset of paraplegia. An MRI conducted on 12 September 2000 revealed T4 compression with epidural disease extending from T2 to T6. It was not possible to decompress this lesion because of the extent of the disease and the fact that it was mesothelioma causing the compression. Further, mesothelioma is a resistant tumour which does not respond to radiotherapy or chemotherapy and the prognosis is hopeless.
The plaintiff was initially treated in Wollongong Hospital for three weeks and then transferred to the rehabilitation unit of the Port Kembla Hospital.
The aim was for expert rehabilitation assessment and intervention to make him as independent as possible in a wheelchair, to educate his wife and family in the management of someone with paraplegia and to assist with assessment of his home situation and to provide advice on modification which may be necessary to give him some independence at home for whatever little time he had left before the mesothelioma killed him. (Dr Lonergan)
His stay at Port Kembla was a disaster. Whether for want of staff or facilities the plaintiff did not get proper care. On one occasion his catheter was not properly connected and he woke saturated in his own urine. He was moved without explanation from a single room to a four bed ward, the other patients being elderly patients, some with dementia and some with missing limbs - and this at a time when he was still adjusting to his plight. After five days the plaintiff's wife was able to arrange a transfer to the Lawrence Hargrave Hospital at Thirroul where the plaintiff remained until 17 November 2000. In all, he was hospitalised for 10 weeks.
The plaintiff now lives at home with his wife who cares for him. He is in constant pain for which he takes morphine tablets each morning and night. At times when his pain becomes unbearable he takes additional morphine tablets. He is subject to the indignity of manual bowel excavation and a drainage catheter for his urine. He has suffered from ulcerating bedsores and recurrent urinary tract infection. He is dependent upon others in his toileting, dressing and moving from bed to wheelchair and from wheelchair to lounge chair. At times his wife is unable, unassisted, to move him from his wheelchair and he spends the day in this chair; the corresponding increase in pain is so severe that at times he has to return to his bed where he cannot even sit up.
The plaintiff's mental distress is apparent, he is often in tears. His wife says he is getting more emotional because he has more pins and needles higher in his body and is increasingly frightened by the inexorable progression of his tumour. He shakes; whether that be from fear or some organic cause is not clear. It does not much matter. The plaintiff will probably die at about the end of April 2000. The remaining months of his life will be marked by an increasing struggle to breathe, each breath at the cost of increasingly relentless and incessant pain.
Mesothelioma is a tumour which forms on the visceral pleura within the chest wall. This is the serous membrane which envelopes the lungs. The visceral pleura is an organ rich in pain fibres with an exquisite level of sensitivity. The encroaching mass comprising the tumour causes unremitting irritation of those fibres in consequence of which pain is felt day and night. The mesothelioma eventually compromises the whole of the pleural surface, which is in the order of 4 feet square. Each square inch of this surface sends pain signals to the brain. This fact gives an index of severity by which the pain may be compared to an excruciating pain of local ambit which may be felt in the abdomen or a leg. The pain is very much accentuated by respiratory movement. (See generally Dr Gianoutsos PX8). As the tumour progresses it ultimately becomes a solid mass several centimetres thick encasing the whole outer surface of the lung that can barely move, causing extreme breathlessness. The patient on respiration has the greatest difficulty shifting the mass of the tumour that is like a very stiff lining (Dr Robinson PX20). The sensation of breathlessness is compounded by the effects of morphine. The sufferer is faced with a choice between terrible pain or breath denying analgesia.
It is the experience of medical practitioners familiar with the disease that the pain cannot be well controlled by analgesic medicine. Dr Keay Foster, a specialist in the field, has said that she “finds it very distressing to actually look after them because I'm very aware how they do feel.” (PX19)
The plaintiff's mesothelioma was diagnosed in March 1999. He suffered the mental anguish of terminal diagnosis for 18 months prior to September 2000 when his physical agonies commenced. These sufferings will compound over the few short months of his remaining life. In addition to his mental torment the plaintiff will suffer more pain and suffering than many maimed or seriously injured persons suffer in a lifetime. His grief is absolute. He was married only two months before his diagnosis. He first moved, on his wheelchair, into the new home that he had earlier planned with his new wife upon the day of his discharge from Thirroul hospital. He will die there.
I award $200,000 for general damages and $20,000 for loss of expectation of life.
I allow interest in the sum of $3,000.
Loss of wages past and future have been agreed at $442,000.
Griffiths v Kerkemeyer has been agreed at $42,377.50.
There will be verdict and judgment for the plaintiff in the sum of $707,377.50.
The defendant is to pay the plaintiff's costs.

Mr R J Stanley QC instructed by Turner Freeman appeared for the plaintiff.
Mr M F Holmes QC instructed by Phillips Fox appeared for the defendant.