The Public Trustee of South Australia (as Legal Personal Representative of the Estate of the late John Alfred Richardson) v Clifton Financial Services Pty Limited (No. 3)

[2004] NSWDDT 40

Dust Diseases Tribunal

of New South Wales

CITATION:	The Public Trustee of South Australia (as Legal Personal Representative of the Estate of the late John Alfred Richardson) v Clifton Financial Services Pty Limited & Ors (No. 3) [2004] NSWDDT 40
PARTIES:	The Public Trustee of South Australia Clifton Financial Services Pty Ltd B I Contracting Pty Limited CSR Limited
MATTER NUMBER(S):	400 of 2002; 221 of 2003
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	13/12/02 30-31/08/04 01/09/04
DATE OF JUDGMENT:	09/02/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D G Letcher, AC instructed by Turner Feeman FOR FIRST DEFENDANT: Mr G P F Rundle instructed by Hicksons FOR SECOND DEFENDANT: Mr M T Vesper instructed by Makinson D'APice.

JUDGMENT:

1. The Tribunal has before it two sets of proceedings, although originally there was only one. Originally the plaintiff was the late Alfred John Richardson. He is a man who was born on 1 May 1931. He sued the defendants alleging negligence from which as a result he contracted mesothelioma. He died on 16 December 2002. The Tribunal had taken his evidence on 12 December 2002.

2. Following his death the action he had commenced was reconstituted. The plaintiff is now the Public Trustee of South Australia in both actions. There is one action in which the proceedings are continued for the benefit of the estate of the deceased pursuant to the Survival of Causes of Action Act 1940 South Australia (400 of 2002). The second action is brought by the executor of the deceased for the benefit of the widow, Doreen Elizabeth Payne pursuant to the Wrongs Act 1936 South Australia (221 of 2003). The latter action would be understood by those in New South Wales as being similar to a Compensation to Relatives Act claim.

3. The deceased was born in England. He was apprenticed as a painter and worked as a painter. He did national service with the Royal Air Force between 1951 and 1953. He married Doreen on 16 March 1957. In 1973 they decided to come to Australia. They brought with them their four children. They came to Adelaide to live. The deceased then undertook some casual painting jobs and then for a time he worked at the General Motors factory at Elizabeth in the paint shop. Then in 1974 saw an advertisement placed by John Martin and Co Ltd, now known as Clifton Financial Services Pty Ltd, the first defendant. John Martin conducted general stores in South Australia, in particular they had a store at Elizabeth in the northern suburbs, and they were advertising for a temporary maintenance painter at the Elizabeth store. The deceased applied for the job and eventually got it.

4. For about 12 months in 1974 his principal activity at work was to remove and clean ceiling panels which formed a false ceiling beneath the cement slab which constituted the first floor of the building. There had been a major renovation of the store at about that time, and as I say the deceased's part in the activities was to take down, clean and repaint if necessary and reinstall the ceiling tiles. His case is that in the course of doing that work dusty material which had accumulated in the ceiling space came out all over him constantly and repeatedly. It was commonplace for him to go home with dust in his hair and dust on himself. The nature of the dust is the cause of the problem. The evidence discloses that the owners of the store had had the steel formwork in the building sprayed with an asbestos type spray so that it would provide a fire retardant.

5. The spraying was done by the second defendant now known as BI Contracting Pty Ltd, formerly Bradford Insulation (Contracting) Pty Ltd (“Bradford”). The third defendant is sued because it was so intimately involved with the affairs of the second defendant that it owed a duty to those who might reasonably be exposed to the asbestos to prevent them from suffering harm from it. The first defendant is sued as employer against whom it is alleged that it failed to take reasonable steps to prevent its employees, including the plaintiff, from suffering injury as a result of exposure to the asbestos dust. That I think fairly describes the way in which the actions arise.

6. The fact of the deceased's exposure to asbestos and to the inhalation of asbestos dust and fibre comes firstly from his own evidence including his affidavit, PX1. The relevant paragraphs are 16 to 23. The nature of the exposure I have described. There was other evidence adduced in the case, firstly from Mr White, the former maintenance supervisor at the store and also from Mr Martin. It was apparent that in the ceiling space between the false ceiling and the cement slab supported by metal formwork to which fire retardant had been sprayed a lot of services were installed: there was electric wiring, there was piping for water, waste water and the like. Whenever a change was made in the store, for example, basins were installed for hairdressing purposes, it required tradesmen to get into the ceiling space to run the necessary piping and/or wiring. It is the case advanced for the plaintiff that the activities for the tradesmen, which were readily to be foreseen, had the necessary effect of disturbing the insulation material which had been sprayed on by the second defendant.

7. Further, as appears from the evidence from prior proceedings of Mr Snelling who was the Contracts Manager for the second defendant ( see PX 21), the spraying was a fairly inexact business, so that 25 per cent of the material sprayed did not find its target, according to his estimate. As to whether or not the material sprayed by the second defendant was in fact material containing blue asbestos there appears in the end to be little doubt. PX5 in the proceedings is a list summarising the spray jobs undertaken by the second defendant during the period 1960 through to 1965 including the job at the John Martin store at Elizabeth (see sheet 3 of the exhibit) job number 7070. The area sprayed was 3,714 square yards. An asterisk next to that entry and a number of others leads to the explanation at the foot of the page in these terms, "Fire proofing, structural steel work." That spraying was done in 1964, according to the document.

8. The evidence from Mr Snelling was evidence given originally in proceedings in the Tribunal 262 of 2002 and 263 of 2002 between Gloria Dawn May Williams and BI Contracting Pty Ltd and CSR Ltd. The evidence was given on 11 March 2004. Mr Snelling said that he commenced working as contracts manager for Bradford in 1959. He had to supervise, he said, p 18, amongst other things the spraying of sprayed asbestos as a fireproofing material. The materials to be sprayed were picked up from premises in Pym Street, Croydon Park. The evidence discloses that those premises were the premises of Ingham Plaster Company Ltd and Fred Ingham & Co Ltd, about which I will say something shortly. Those premises were the place to which bags of blue asbestos were taken. At the Pym Street premises the blue asbestos was mixed with cement and bagged. It was then picked up by an employee of Bradford and taken either to their premises or to a job site.

9. Machines were used in the spraying which had been acquired from America from Johns Manville (see p 20). Initially Bradford used white asbestos obtained from America from that company and mixed it with blue asbestos obtained from Australia to obtain the spray mix which they used. As Mr Snelling went on to say, the white asbestos became too expensive so they decided not to use it but proceeded with their spraying using blue asbestos, crocidolite, which they obtained from Wittenoom. It was part of Mr Snelling's duties (see p 21) to work out the spray composition with his boss, Mr Kurnow. They used to decide how much white asbestos and how much blue asbestos to put in the mix. They then decided, see line 7, to leave the white asbestos out and just use the blue asbestos, "so that never came," he said, meaning the white asbestos, "after that period during the time I was employed there." Mr Snelling also made clear that he understood that asbestos was dangerous and that their workmen should wear masks, although as a practical matter the masks were fairly useless. (See p 22.) His boss told him that it was up to him to make sure that the men continually wore them, but Mr Snelling said he knew and I knew that that was impossible. (See p 22 line 29).

10. There has been from time to time a review of materials undertaken by the Court of Appeal in New South Wales about the foreseeability of the risk of harm from asbestos products. Such a review was undertaken in the reported case of CSR v Wren (1997-1998) 44 NSWLR 463. In addition to those matters the effect of Mr Snelling's evidence is that Bradford had actual knowledge of the dangers of asbestos products.

11. There is the further question of the knowledge of CSR and its relationship to the second defendant, to which I need to return. Mr Snelling's employment continued until some time during 1962. The list of spraying jobs, to which I have already referred, prepared by Bradford, suggests that things continued in the same way until 1964. Further, PX12 consists of copies of invoices of deliveries of blue asbestos from Australian Blue Asbestos Pty Ltd to Ingham Plaster Company Ltd at Pym Street, Dudley Park. The exhibit consists of a bundle of delivery invoices covering the period 23 April 1963 – 11 August 1964. The amount commonly delivered on each invoice was one hundred bags of Australian raw blue asbestos. Some of the material is referred to as grade 3; other invoices, for example that of 5 September 1963, contain a reference to material of grade 3F; subsequent invoices contain the same reference. All of them appear to deal with deliveries of a hundred bags of the material at a time. All of the invoices bear the stamp "CSR Asbestos".

12. As regards the second defendant then it will be seen that it knew that the material it was spraying was injurious to health; it knew that its own workmen should have been protected; it knew that the material was not capable of being sprayed accurately, that 25 per cent of it or thereabouts went anywhere. There is further evidence that the material which was sprayed accurately had to be worked with a float, that is a piece of timber so that it sat correctly in situ. It knew that the area in which the material was being applied was the area through which the services for the building had to run, that is the electric wiring, the piping, the waste water piping and so on. It was readily apparent that tradesmen would need from time to time to move about in that ceiling space in the area where the asbestos material had been sprayed.

13. A submission was made on behalf of the second defendant that once they had sprayed the material in 1964 it could not have been expected to foresee that the sprayed material would become friable and cause dust to accumulate. As Mr Letcher, QC pointed out in reply, that submission does not have great force in light of the material appearing on the spray list, about which I spoke earlier, that is PX5, where a number of the jobs, for example, job number 7204, 7215, 7223 were repairs to damaged sprayed asbestos which Bradford was then undertaking. Furthermore it is apparent that the material did in fact become friable, there are photos of it in evidence in a damaged state. One would have expected as a matter of commonsense that the company which applied the material and had to go back and fix it from time to time would be well aware of the fact that it was likely to come away from the areas on which it had been sprayed.

14. Against the first defendant then, that is the store owner who employed the plaintiff, it may be fairly said that it required him to work, in particular in the first twelve months of his employment in 1974 in a ceiling space in which it knew asbestos had been sprayed around through which many of the services of the store had to pass so that tradesmen had to access the area. It was foreseeable, indeed readily foreseeable that in those circumstances Mr Richardson would be exposed to the inhalation of asbestos dust. Particularly is this so when the evidence suggests whenever any renovation or activity was undertaken in the store so much dust fell out from the ceiling that they had to cover the displays in the store with sheeting so that the goods for sale did not become spoiled. In those circumstances the first defendant required the deceased man to go and work in that ceiling area without taking any steps at all to prevent him from suffering harm from the inhalation of asbestos dust and fibre. I find that in the circumstances the employers conduct shows a want of reasonable care for his wellbeing and constitutes negligence.

15. Insofar as the second defendant is concerned, it knew that it was spraying blue asbestos on the area; it knew it was dangerous material so that its own workmen should be protected, although that obligation was honoured more in the breach than the observance. It knew that the material was likely to need repair, it knew that the area in which the spraying had been undertaken was an area through which the store’s services or many of them had to pass so that tradesmen would need access to it and yet having sprayed the material it did nothing to warn either the store or the maintenance supervisor that the inhalation of asbestos dust was dangerous, something it well knew. The duty it owed to warn it seems to me was owed to those people who might reasonably be in contemplation of being at risk from the substance which they had supplied and applied. Whoever else is in that class it must surely include employees of the store whose duties required them to get into the ceiling space to carry out their work. The failure to warn and/or the failure to take some step to seal off the fire retardant material so that it could not be breathed in showed a want of reasonable care towards those persons who the second defendant should have had in contemplation as being at risk of injury from inhaling asbestos dust and fibre. That included the plaintiff. I conclude that the second defendant was negligent and that the plaintiff's mesothelioma resulted from the negligence.

16. We come then to the third defendant, CSR Ltd. The case made against it is as I have outlined, that it was so involved in the distribution and marketing of the blue asbestos in the business conducted by the Ingham companies, which received the blue asbestos and mixed it for supply to Bradford, in the undertaking of Bradford itself, and that it had actual knowledge of the dangers of the product which they were thus disseminating that it should have taken reasonable steps to prevent people from being injured by the application of the product, such people necessarily including employees of the place where the material was applied who had to work in close proximity to the dust which came from it. There has been tendered in this case a considerable bundle of material, I propose to go through it, although having regard to previous litigation involving the same two parties I wonder why I have to. Nonetheless that is what I must do.

17. The first two documents to which I wish to refer consist of PX16 and PX17 in these proceedings. PX16 consists of an agreement entered into on 23 June 1943. It is an agreement by which Australian Blue Asbestos Ltd, a company mining the blue asbestos at Wittenoom, appointed the third defendant as its managing agent and sole distributor with full and absolute authority to do all things necessary for the proper management and control of the business and undertaking of the principal, that is Australian Blue Asbestos Ltd. Certain express powers were then additionally conferred. That agreement was duly signed and sealed pursuant to an authority of the Board of CSR Ltd conferred on 23 June 1943. (See PX17).

18. The next document to which I wish to make reference is PX4, a bundle of minutes of the Board of CSR Ltd which have been extracted, as I understand it, from documents disclosed by way of discovery. The minutes of the Board Meeting of 20 August 1958 include the following, under the heading "Building Materials."

Mr K O Brown's memorandum of 11 August 1958 dealing with the proposal to acquire controlling interests in the Ingham Plaster Company Ltd and Fred Ingham and Company Ltd in South Australia was reviewed by the Board, and it was decided to acquire a controlling interest in these two companies as recommended.

19. The minutes of Wednesday 17 September 1958 include the following:

The composition of the Board of the Ingham Plaster Company Ltd as proposed in Mr K O Brown's memorandum of 17 September 1958 was agreed to.

20. As appears from PX18 Mr K O Brown was the Managing Director of Australian Blue Asbestos Ltd as at June 1954 and also a senior executive officer of the Colonial Sugar Refinery Company Ltd as well as the Managing Director of Asbestos Products Ltd. At the Board meeting of Wednesday, 2 September 1959 the following minute was recorded:

The financial results of the Ingham Plaster Company Ltd and Fred Ingham and Company Ltd of Adelaide, as set out in Mr M G King's memorandum of 13 July 1959, were reported to the Board.

21. The Board meeting minutes from Wednesday, 4 November 1959 include the following:

Mr K O Brown's memorandum of 3 November 1959 dealing with the Ingham Plaster Company Ltd was considered and it was agreed that we should offer to purchase Mr G Ingham's A class shares for five shillings per share.

22. At the Board meeting of Wednesday, 16 December 1959, that is the Board of CSR Ltd, the following document was by resolution signed and sealed namely an agreement between the company and Ingham Plaster Company covering the sale and purchase of gypsum from Kangaroo Island gypsum deposits. Further on Wednesday 6 January 1960 the stock units in Ingham Plaster Company Ltd were transferred to the company (a) from Mr Gordon Henry Ingham and (b) from Goreen Ltd. On 3 February 1960 the minutes of CSR include the following:

The Board were informed of the improved profit position of the Ingham Plaster Company Ltd as set out in Mr M G King's memorandum of 21 January 1960.

23. On 17 February 1960 the following minute appears:

The Board agreed that Mr L Stidston, General Manager of the Ingham Plaster Company Ltd, should be appointed to the Board of that company in place of Mr Gordon H Ingham.

24. That is, by that time CSR was appointing the Board members of Ingham Plaster Company Ltd. On 30 November 1960 the Board of CSR considered a proposal to acquire the shareholdings of outside shareholders of Ingham Plaster Company Ltd. Further resolutions affecting the acquisition of shares in the Ingham Pastoral Company were recorded in the minutes of Wednesday, 15 February 1961. A further similar resolution is recorded in the minutes of Wednesday, 29 March 1961. A further similar resolution appeared in the minutes of the meeting of Wednesday, 19 April 1961. In the minutes of Wednesday, 17 May 1961 under the heading "Building Materials" the following appears:

The General Manager reported that a final transfer of shares of Ingham Plaster Company Ltd for 400 shares of that company had been received in acceptance of offer (a) contained in the company's offer of 2 December 1960.

25. By 7 June 1961 the Board was able to record that Ingham Plaster Company Ltd had been converted to Ingham Plaster Company Pty Ltd. Articles of Association of the company were changed. The Board of CSR confirmed the appointment of the following as directors of Ingham Plaster Company Pty Ltd, namely, Messrs K O Brown, M G King, L Stidston, A McIntosh and A C Higgs. I conclude by the end of 1961 CSR effectively controlled the Ingham companies.

26. The next matter to which I wish to refer relates to the relationship between CSR Ltd and Bradford. PX18 consists of a summary of documents relating to CSR Ltd, the third defendant. The document was prepared, as I understand it, as a summary of materials otherwise available. Their source is identified in the summary. In the present proceedings counsel for CSR Ltd agreed that the summary might properly be tendered rather than requiring the bulky original documents to be produced. At p 32 of the summary there is reference to the CSR newsletter published in 1959 and bearing the number 56. The entry is in these terms:

The company [that is CSR Ltd] has arranged to acquire the interest of the Bradford family in the Bradford insulation companies throughout Australia. The purchase price will be satisfied by the issue to the Bradford family of about 10,000 fully paid shares in the CSR Company. The Bradford companies were established about 25 years ago. There are eight companies in all which operate throughout all the mainland states. . . . the Bradford family through their family holding company BI Holdings Pty Ltd have share interests of various proportions in all the BI companies. Therefore the CSR Company acquired the whole of the family share interest in those companies. BI Holdings has minority shareholding interests in Bradford Insulation Queensland Pty Ltd, Bradford Insulation WA Ltd and Bradford Insulation SA Ltd and these companies therefore will now be associated with CSR while the New South Wales and Victorian BI companies will be controlled by CSR.
The next paragraph is in these terms:

New company to be formed in SA - Bradford Insulation SA Ltd is a public company in which BI Holdings Pty Ltd has only a small shareholding interest. However, arrangements have been made for the CSR Company to obtain a 25 per cent share of the South Australian company and in return the South Australian company will give an interest of about 11 per cent in BI Holdings. Following these arrangements a new company will be formed and we will offer to purchase all the shares of Bradford Insulation SA Ltd.

27. The newsletter number 57 published in December 1959 at p 38 contained a reference to the appointment of directors to some of the Bradford Insulation companies, the entry commences as follows:

As a result of the recent acquisition of the Bradford Insulation companies and Masonite Holdings Ltd and the consequent substantial expansion in the BMD activities two new senior appointments have been made in the BMD mineral fibres section ...

28. It seems to me that the result of that evidence is that CSR Ltd, the third defendant, was intimately involved in the business undertaking of the second defendant. The evidence adduced may not permit the conclusion that it had a controlling share interest in the South Australian company, but it does permit the conclusion that it was actively involved in its undertaking. We have then the circumstance in which the third defendant was in charge of the marketing of the blue asbestos pursuant to the 1943 agreement with Australian Blue Asbestos, it controlled the Ingham companies, it was actively engaged in the business of the second defendant, the spraying company, and it knew of the dangers of asbestos. As regards that last matter in previously reported cases, as I mentioned, the Court of Appeal has considered knowledge generally available and in particular the knowledge available to CSR Ltd through its library, which was at relevant times one of the biggest in Australia about this topic. (See CSR v Wren supra).

29. I do not propose to go back over that material. In addition to it in the present proceedings there is evidence of an article published in the British Medical Journal in 1960 (see PX23) which was brought to the attention of Australian Blue Asbestos Ltd and in particular to the attention of Mr Brown, a copy of the journal article has been attached. The article bears date April 30 1960, it includes at p 1351 of the journal the following:

Carcinoma of the lung is a serious and well recognised complication in asbestosis. Its frequency in asbestosis is difficult to determine for it is now a common condition in the general population. Moreover, exposure to asbestos may have occurred many years before the cancer develops, nevertheless the paper by Doll makes it fairly clear that a patient with asbestosis has a risk about ten times that of the general population of getting carcinoma of the lung. Another hazard is mesothelioma of the pleura. This rather rare tumour may draw attention to the fact that a patient has worked in asbestos dust. Finally, in women who work with asbestos there is a high incidence of cancer of the ovary.
Later on the same page the following appears:

Asbestosis was first described in this country by M Murray in 1907. After that in 1930 Merewether and Price reported the dangers of asbestos dust in the lungs and made recommendations for dust suppression. Thereafter there was a great improvement. In the factory where our patient worked the utmost precautions are now taken to prevent asbestosis occurring. It is a disappearing disease. Nevertheless asbestos dust is most toxic and the amount needed to cause asbestosis is not known so constant vigilance and new preventive methods are needed if this disease is to be abolished.

That material was sent, among others, to Mr Brown with the description of it being quite an interesting article and reveals several facts not known to us before.

30. I find that in the circumstances in which CSR controlled the distribution of the product from Australian Blue Asbestos Ltd, had control by the relevant time of the Ingham companies and was actively involved in the business of the second defendant and in the circumstance where it had actual knowledge of the dangers of asbestos that it owed a duty of care to take reasonable steps to prevent harm arising from the distribution of its products which distribution entailed a foreseeable risk of injury. The duty was at least to warn of the dangers associated with the breathing in of asbestos dust. In fact it did nothing. The deceased was clearly a member of a class who ought to have been in mind if anyone had turned their minds to the risk of using the asbestos products as they were intended to be used, that is he, the deceased, was a man whose work took him into the ceiling space area in which the blue asbestos had been sprayed as a fire retardant. It was readily foreseeable that workmen would have to move in such a space from time to time and the deceased was one of them. At the very least CSR should have warned those such as the plaintiff and the first defendant of the risks associated with inhaling asbestos dust and fibre. In fact it did nothing. That failure constitutes negligence and is sufficient to permit the present proceedings to succeed against the third defendant as well.

31. It has been pleaded that in addition it was negligent to keep marketing the material. I express no finding about that allegation, I think examining such a question may involve considering more material than has been made available in the present case. But to keep distributing the product knowing of its dangers without giving any warning to anybody about them it seems to me amounted to negligence.

32. I conclude therefore that the plaintiff is entitled to succeed against all three defendants. I should add for completeness that on the question of knowledge of the danger on the part of the third defendant a copy of the paper published by Margaret Becklake, which has been often referred to in cases such as this, has been tendered in the present proceedings. As it has been the subject of detailed consideration in other reported cases I do not think there is any need to go to it in detail, but I wish to note that it has been in fact tendered in this case and forms part of the evidence.

33. Some submissions were made in the interest of the third defendant to the effect that a risk of like kind which came home against the plaintiff may not have been foreseeable in 1964. I reject that submission, partly because of what the Court of Appeal had to say in CSR v Wren (supra) and like cases and partly because of the specific evidence in this case that a warning about the dangers was communicated to Mr Brown of the third defendant. It was submitted that while it may be accepted that heavy exposure was known to cause sickness it was not known in 1964 that lighter exposure might produce sickness in the same way. I reject that submission for the same reasons. It has been stated repeatedly that there is no known safe dose for asbestos.

34. A question mark was raised by way of submission about whether the second defendant should have foreseen that tradesmen were likely to get into the space between the cement slab and the false ceiling in the John Martin store. I think having heard the evidence of those engaged in maintenance in the store that such an eventuality was almost certain, that is to say not only foreseeable but readily foreseeable because that is where the services for the building were located. A submission was made seeking to excuse the second defendant on the ground that it was really the duty of the employer to protect its worker and that somehow exculpates the second defendant. I do not accept that submission. If the second defendant had conveyed warnings to those likely to be affected by the material it was spraying about, including to the first defendant, the plaintiff's illness may well have been prevented. Submissions were made as to whether there was a sufficient relationship of proximity between the second and third defendants and the deceased. Because of the area in which the spray was applied, because of the fact that tradesmen and other workers had to get into that ceiling space to carry out their duties and because the class of persons so affected is limited and readily enough identifiable I find that there was a sufficient relationship of proximity between the second and third defendants and the deceased.

35. There was a submission made that there was no evidence that the blue asbestos sprayed on the Martins building was the third defendant's blue asbestos. I do not accept the submission. I have pointed to the relevant evidence, not least that of Mr Snelling and the invoices for the ongoing supply of blue asbestos which supply was controlled by CSR pursuant to its agreement with Australian Blue Asbestos.

36. As to the giving of warnings it was submitted, and I accept this submission, the warnings could have been given to those who were on the spray list prepared by the second defendant, the warnings could have been included in the consignment notes for the delivery of the raw asbestos, warning could have been given, as I have already said, to the first defendant and those charged with its management and yet no warnings at all were given.

37. I note that breaches of statutory duty were pleaded against the first defendant and breaches of contract. No submissions were made about them. In the circumstances it is not necessary to consider them further.

38. I move then to the consideration of the question of damages. I deal with the estate claim firstly. I have been assisted by the submissions of learned counsel for the plaintiff and the first defendant. As regards the damages submissions of the first defendant, they are supported by counsel for the second and third defendants. The first question is, what is the proper allowance for general damages? The plaintiff commenced to suffer in about April/May 2002 and was dead by 16 December 2002. The defendants submit that mercifully the period over which he had to suffer was not as long as must be endured by some other people, and as far as it goes that is true enough. The plaintiff went through the usual attempts at treatment, biopsies, thoracoscopies. As was pointed out in submissions he had to travel from his home to the various hospitals at which treatment was administered to him. Pain management was attempted without marked success. The piece of the evidence which sticks in my mind about this aspect of the case is that given by his widow when she said that towards the end of his life he was thrashing around in his bed complaining that he was unable to stand the pain any more.

39. There are competing submissions about the proper allowance for general damages. The defendants submit that $165,000 is a proper sum. The plaintiff's counsel submits that $180,000 is the proper sum. I think the degree of suffering was awful. On this issue I accept the submission of counsel for the plaintiff. I find general damages in the sum of $180,000.

40. There is an entitlement to interest on general damages. The correct approach in the prevailing circumstances could not be agreed upon, although I think the parties agree that it was reasonable to allow interest on half that sum at 2 per cent up to the date of death from the time the deceased's suffering commenced. That amount I think might be properly allowed at $1137.35 as was submitted. As regards the period from the date of death to the date of trial some confusion arose because the plaintiff's suffering had come to an end and his entitlement to general damages had crystallised as at the date of his death. The correct interest rate to be applied was the matter of competing submissions. In the end it seems to me that what should be done is that I should apply what was said in MBP(SA) Pty Ltd v Gogic (1990/1991) 171 CLR 657 and allow interest on the sum of the general damages at 4 per cent from the date of death to the date of trial. I calculate that to be $12,283.52. The total allowance for interest then will be $13,420.87.

41. The next head of damages is damages for the loss of expectation of life. Damages under this head are conventionally awarded in a modest sum. According to the life tables the plaintiff had about twelve and a half years of life to which he might have looked forward had he not become sick. That of course was filled with the usual risks. It seems to me that an appropriate allowance for loss of expectation of life in the circumstances is one of $12,500.

42. There is a claim for out of pocket expenses. There is an amount owing to the Health Insurance Commission of $1,329.90, that should be allowed. The cost of moving a portable house so that the deceased could be nearer to his children is claimed in the sum of $300. I allow that. There is then a claim for the conveyancing fees associated with the sale of his house when it was determined it would be better if he and his wife lived in one of the children's houses so that they could be near them. It seems to me that that cost is not recoverable although some allowance might be made for the fact that the incurring of the cost was accelerated. Without attempting precision about the matter I include on that account a sum of $500. Total out of pocket expenses then amount to $2,129.90.

43. There is a claim for a need in the plaintiff which required that care be given to him by his wife pursuant to the principle in Griffiths v Kerkemeyer (1977) 139 CLR 161. She said in the giving of her evidence that his care from the period May to the end of July required her to spend 2 hours a day looking after him. Both sides accept that that is a proper starting point. During the period from August through to 14 December Mrs Young said, and it was not disputed, that she spent 12 hours a day caring for him in that part of his life. A claim based on that ought reasonably be allowed. The plaintiff in submission sought to add an amount calculated by reference to the fact that the deceased could not contribute around the house as he used to and that meant that his wife had to do more. I do not accept that that is a properly compensable claim. There was a claim for an hour a night during which his wife had to attend to him in that later period. It is described in the submission as active night care and I think that might properly be allowed.

44. To convert those observations into dollars and cents it seems to me that for the period from 1 May to 27 July 2 hours a day amounts to $313.90 per week, a figure I take from the submission put forward by the plaintiff, but I do not think it attracts serious criticism. So that in respect of that period an allowance of $3,766.80 might be made. Interest thereon at 9 per cent for 808 days I calculate to amounts to $748.42. That is the first period. For the second period from 11 August to 14 December I allow fifteen and a half weeks at $1883.40 per week, which comes to $29,192.70. Thirdly, I allow an amount for active night care $156.95 per week for fifteen and a half weeks, which amounts to $2,432.73. The total to be allowed for care in respect of the second period, that is from August through to the date of death amounts to $31,625.43. Interest at 9 per cent for 672 days on that sum amounts to $5,225.97. The total then for care is the sum of the following constituent amounts, $3766.80, $748.42, $31,625.43 and $5,225.97. Total amount $41,366.62.

45. That will mean that the plaintiff is entitled to a verdict in the estate claim in the sum of $249,417.39.

46. So far as the Wrongs Act is concerned a claim is made because the widow has been deprived of the services which she might have hoped to enjoy had her husband continued to live. Submissions have been made for the plaintiff saying that those services amounted to whatever the occupational therapist thought they should amount to 12 hours a week multiplied by the appropriate rates producing an entitlement in excess of $100,000. The defendants approach has been to say that if you look carefully at the duties he undertook you might get a few minutes here and a few minutes there but really the claim is de minimis and very little if anything should be allowed for it.

47. It seems to me that the true picture may be gleaned from the plaintiff's affidavit sworn before he died, PX1 at par 33 where he said that he spent a good 3 hours a week doing things about the place. I accept that evidence, it seems reasonable. I think the propositions contended for by the occupational therapist are more than a reasonable thing. I find that the expectation that the widow had was that services would be provided to her by the plaintiff for 3 hours per week. As to the entitlement to claim damages for the loss of such services I refer to the 4th edition of Assessment of Damages for Personal Injury and Death by Harold Luntz, par 9.2.7 at p 490. The author said inter alia:

Here it is necessary to say something about the losses for which the dependents are entitled to be credited. The High Court has accepted that the remedy is given for loss sustained and not for needs created. This, as the quotation above indicates, is usually the loss of a reasonable expectation of benefit . The expected benefit may be in the form of services as well as financial support.
The authority quoted in suport of that proposition is Nguyen v Nguyen (1990) 169 CLR 245. It is pursuant to that approach that I set about the assessment of this aspect of the damages. There is a feature about this part of the claim which does not occur in all cases, that is that the plaintiff's widow remarried early in 2004. In her affidavit sworn 27 August 2004, PX9, at par 29 Mrs Payne said this:

On 14 February 2004 I remarried and moved to 8 Green Crescent, Hillbank. However, after about two months my marriage broke up. For the two months that I lived at Hillbank my husband did most of the shopping but I went with him. We had a cleaner for domiciliary care come to clean the house once a week, as this had been my husband's practice. My husband mowed the lawn and I did a little gardening. [Par 30] When my marriage broke up in April 2004 I stayed with a friend for four weeks while I looked for a place to live. On 12 May 2004 I moved to unit 7, 23 Marialta Drive, Smithfield where I currently live on my own.

48. The way in which that fact is to be regarded when considering the assessment of damages is dealt with by Professor Luntz at p 540-541 of the text to which I have referred. The relevant principle is stated in these terms at p 541.

Where the remarriage has occurred by the date of the trial this process involves assessing the chances of the new marriage surviving and of the beneficiary continuing to receive support from it and at what level.

49. Well, unhappily the second marriage has not survived. I assess that Mrs Payne will not receive any benefit from it. It is not a factor that ought have a bearing on the assessment of damages pursuant to the Wrongs Act. If one allowed $20 an hour a figure of $60 per week is thrown up. If that is capitalised for 12 years at 3 per cent one reaches a figure of $31,620. A discount rate of 15 per cent is applied usually but I think in this case the discount rate should be higher because we are dealing with the years in the deceased's life, had he lived, when he was between 71 and 83 years of age. One has all the usual health risks associated with age to consider, and it makes more problematical unfettered ongoing delivery of services to his wife. I think the capital sum that I mentioned, that is $31,620 should be discounted by 25 per cent for those reasons. A figure for the foregone benefit is arrived at at $23,715. Interest at 4 and a half per cent for 626 days I calculate to amount to $1830.28 There is a claim for funeral and memorial expenses about which there is no dispute $7,670.15. There is a statutory entitlement for loss of solatium $4,200. The plaintiff will be entitled in the Wrongs Act action to a verdict for $37,415.43.

50. We come then to the question of cross-claims. There are in the proceedings three cross-claims. In the first of them the first defendant cross-claims against the second and third defendant and several insurers. In the second cross-claim the second defendant cross-claims against the first defendant seeking contribution or indemnity. In the third cross-claim CSR is the cross-claimant, that is the third defendant. It seeks contribution or indemnity from the first defendant. At the outset of the case the Court was informed that there had been a settlement of disputed matters between insurance companies and parties to the proceedings, but the nature of those settlements was not disclosed. Argument has proceeded on the footing that the Tribunal might make findings as to what proportion of the blame each of the defendants should bear. I am happy to undertake that determination now, but I think having done that I will stand the matter over to permit the parties to prepare orders to give effect to the findings that I make because I do not know, I just simply do not understand what is involved, for example, in respect of the third, fourth and fifth cross-defendants in the first cross-claim.

51. Submissions have been addressed to the Court about the relative share of the blame, if I may so describe it, which the defendants should bear. The submissions have been made on the footing that the second and third defendant, who were represented by the same counsel, can be considered on the one hand in this regard and the first defendant's responsibility assessed on the other hand. The guiding principle to be applied in such matters requires that the court consider causal potency of the conduct of the tort feasors and their moral culpability. See Macquarie Pathology Service Pty Limited v Sullivan NSWCA 28 March 1995; James Hardie & Coy Pty Limited v Roberts (1999) NSWCA 314 13 September 1999. As to causal potency nobody has said much. That is understandable because the failure has been really a failure to warn.

52. As regards moral culpability submissions have been made to the effect that the second and third defendants had actual knowledge of the risks at all relevant times, that is in 1974, which I am satisfied is when the principal exposure of the deceased occurred. Evidence from the person in charge of maintenance at the store was to the effect that he had no idea of the dangers associated with asbestos then. Submissions have been made about whether deemed knowledge, and actual knowledge should be equated. I do not know that to pursue the matter in those terms helps particularly.

53. I accept the submission that the second and third defendants knew relevantly of the risks and that the first defendant, who was their customer, did not. In the light of that fact I conclude that the second and third defendants should bear three-quarters of the responsibility for the verdicts and the first defendant should bear one quarter.

54. Being unsure of the way in which the first cross-claim in particular is constructed I propose to stand the matter over until next Tuesday to permit the parties to prepare orders to give effect to those findings about contribution. Submissions might then be made about costs in Sydney.

Mr D G Letcher, QC instructed by Turner Freeman appeared for the plaintiff

Mr G P F Rundle instructed by Hicksons appeared for the first defendant

Mr M T Vesper instructed by Makinson & d’Apice appeared for the second defendant