Torok v Allianz Australia Insurance Ltd - [2023] NSWDDT 2

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Torok v Allianz Australia Insurance Ltd [2023] NSWDDT 2
Hearing dates: 23, 24, 27 March 2023, 17, 18, 19 May 2023
Date of orders: 23 May 2023
Decision date: 23 May 2023
Before: Russell SC DCJ
Decision:
(1)   Grant leave to the plaintiff nunc pro tunc pursuant to the Civil Liability (Claims Against Third Party Insurers) Act 2017 for the plaintiff to bring these proceedings.
(2)   Judgment for the plaintiff against the defendant for $457,500.
(3)   Order each party to pay his or its own costs of the Hearing on 27 March 2023.
(4)   Subject to Order (3) above, order the defendant to pay the plaintiff’s costs.

Catchwords:
DUST DISEASES — damages — general damages — interest on past general damages — damages for loss of expectation of life
DUST DISEASES — evidence — historical evidence — Industrial Histories of former workers at Cockatoo Island — evidence of deceased or unavailable workers from earlier cases — admissions by defendant in prior interrogatories
DUST DISEASES — prescribed dust diseases — mesothelioma — whether plaintiff had more than de minimis exposure to asbestos — where plaintiff could give no direct evidence of exposure — plaintiff employed as casual painter and docker by Cockatoo Dockyard Pty Ltd — general labourer — duration of work — nature of work — extensive use of asbestos at Cockatoo Island — exposure of painters and dockers to asbestos — no proper precautions — asbestos remains in the environment — pleural plaques — other exposure to asbestos

Legislation Cited:
Civil Liability (Claims Against Third Party Insurers) Act 2017 (NSW)
Evidence Act1995 (NSW), ss 63, 140

Cases Cited:
Briginshaw v Briginshaw (1938) HCA 34; (1938) 60 CLR 336

Category: Principal judgment
Parties: Attila Torok (Plaintiff)
Allianz Australia Insurance Ltd (Defendant)
Representation:
Counsel:
F McLeod KC (Plaintiff)
D Toomey SC (Defendant)

Solicitors:
Segelov Taylor (Plaintiff)
Rankin Ellison (Defendant)

File Number(s): DDT 2022/212443

Judgment

Introduction

The plaintiff Mr Attila Torok suffers from the disease of mesothelioma. By a Further Amended Statement of Claim filed on 28 February 2023 he has sued Allianz Australia Insurance Ltd (Allianz) as the insurer responsible for the liabilities of Cockatoo Dockyard Pty Ltd (Cockatoo Dockyard). This was a large industrial and naval dockyard located on Cockatoo Island in Sydney Harbour. Since Cockatoo Dockyard is in liquidation, the plaintiff will be granted leave, nunc pro tunc, to sue Allianz.
By a Defence filed on 3 March 2023 Allianz admits that it is the appropriate insurer for Cockatoo Dockyard. It also admits that Mr Torok was employed as a casual painter and docker by Cockatoo Dockyard on the following dates:

14 March 1980 to 23 July 1980.

28 July 1980 to 29 July 1980.

8 December 1980.

By the Defence Allianz admits that Mr Torok has contracted mesothelioma.
The Tribunal sat at the plaintiff’s home in Maroubra on 23 March 2023 to take his evidence. Thereafter the matter proceeded in court.

Issues Identified by Allianz

Senior Counsel for Allianz identified the following issues for determination:

The dates when Mr Torok worked at Cockatoo Dockyard (Tcpt 15/25).

Whether Mr Torok had more than de minimis exposure to asbestos during his employment at Cockatoo Dockyard (Tcpt 15/25).

While there is no dispute that there was asbestos used at Cockatoo Island, where it was and whether the plaintiff had any contact with or exposure to asbestos remains in issue (Tcpt 115/50 – 116/2)

Evidence of the Plaintiff

The plaintiff was hard of hearing and had a combative manner. English is not his first language. He was short of breath and unwell when he gave his evidence. Nevertheless, I formed the impression that he was doing his best to tell the truth in answering questions during his oral evidence.
The plaintiff adopted the statements made in the Form 1 Statement of Particulars filed on 23 August 2022. He identified that he had signed that document and declared it to be true. The Statement of Particulars was marked as Exhibit PX 1.

Mr Torok’s Illness

Paragraph 2.5 of the Statement of Particulars set out the plaintiff’s history of the course of his illness. He said:

“Before my diagnosis I was a fit and healthy.
In January 2018 I noticed I was having difficulty breathing and felt like I could not take a deep breath.
In about 2018 I noticed that my hand and ankle on my right side were feeling numb. I was referred to Dr Ilana Ginges, a rheumatologist. On 16 August 2018 I underwent a CT scan of my chest, abdomen and pelvis. The CT scan revealed old plaques on my lung.
In or around July or August 2021 I started feeling unwell and noticed feeling shortness of breath and weight loss. I had a coughing fit when eating at a restaurant, which happened a couple more times after the first incident. I was also feeling unsteady on my feet and used furniture in the house to help stabilise me when walking. I also needed a four wheel walker to get around.
One episode of coughing woke me up in the middle of the night and I thought I was going to choke. On 19 August 2021 I went to my general practitioner, Dr Sharon Levy who sent me to get an x-ray and CT scan.
On 20 August 2021 I had a CT scan of my chest, the technician told me that I needed to go to the hospital straight away as the scan revealed that I had cancer.
That day I went to the Prince of Wales Hospital and was admitted straight away. I had a drain inserted into my right side and 4.5 litres of fluid was drained from my lung. While in hospital I underwent further investigations including CT scans, x-rays and a PET scan. I was informed that I had mesothelioma and that there was no cure and that treatment would unlikely have any meaningful benefit. I was advised that a talc pleurodesis may not be effective in preventing the fluid from building up in my lung due the progression of my mesothelioma. I did not want to undergo the pain of a procedure that may not be effective at stopping the build-up of fluid.
In hospital I continued to experience pain, a cough, fatigue as I was unable to sleep and night sweats. When I breathed in it felt like my right lung was not able to expand fully. I was discharged on 8 September 2021.
I had a CT scan and I was advised that I needed to go to hospital. On 1 October 2021, I was re-admitted to Prince of Wales Hospital. A drain was reinserted and around 1 litres of fluid was drained from my lung. I was unable to lie down flat and needed pillows to prop me up as lying down made it hard for me to breath and triggered a dry cough. I was given painkillers as I experienced twinges of pain. I do not like taking painkillers as they make me constipated. Fluid continued to be drained from my lung while in hospital. I was discharged on 6 October 2021.
On 12 November 2021 I attended an appointment with Dr Levy as I had developed an infection on my leg and my breathing was rapid even though I as not exerting myself. My breathing continued to become more laboured and I felt short of breath when lying down.
On 17 January 2022 I was admitted to Sacred Heart Hospice as my symptoms had returned and the infection on my leg had gotten worse. I was diagnosed with odema and cellulitis. I was very distressed at the time as I had recently had to put my cat down. I experienced pain which felt like an electric shock. To manage the pain I was provided with pain patches that helped a little. I was put on a high energy high protein diet to help me put on weight.
During my stay in hospital I was a close contact for Covid and had to go into isolation until 14 February 2022. I was unable to leave my room and this was very hard. I was discharged on 22 February 2022. During my time in hospital I underwent further CT scans on my chest and abdomen. I continue to experience pain in my left leg.
I always feel tired and dizzy. I have to take it easy and spend most of my time at home.
I was told I had only months to live. This was a shock as the diagnosis came out of the blue. I am in a lot of pain. Even with painkillers the pain is still very strong and causes me a lot of discomfort.
I have a hard time swallowing; I need liquid to help food go down. I drink milk and sometimes this is not enough. My vison has been impacted and I have a hard time hearing.
I have started experiencing incontinence. I go to the toilet and have to go again shortly after. One night I had to get up seven times during the night. I have also had episodes of faecal incontinence. I now have to wear nappies.
Since my discharge from hospital in September 2021 I have required care. As I live on my own with no family I am reliant on government carers who started caring from me September 2021. The carers do the shopping, organise my appointments and travel to a from appointments.
I am unsure how much longer I have left to live.”

The plaintiff gave oral evidence that he felt very tired and had pain in both legs. He had been worse on the day before he gave his evidence. For pain relief the plaintiff was taking six or seven Panadol Rapid tablets. Mr Torok had not seen a general practitioner for two months, but had an appointment to see his doctor on the next Monday (Tcpt 5/1-15). The transcript reads “daughter” instead of “doctor” (Tcpt 5/8) but Mr Torok was definitely speaking of seeing his doctor.
Mr Torok explained that he had had problems in both legs from his knees down. After he left hospital both legs were swollen and his left leg became infected. He described having “little holes” in the left ankle. The plaintiff rolled up his trouser leg and observations were made of large areas of discolouration at his left ankle and left calf. The leg looked like it was still infected (Tcpt 5/15-35).
Mr Torok gave evidence that he was short of breath even when he talks. If he drinks out of a bottle this leads to shortness of breath. Sometimes when he is swallowing he feels as though his throat blocks and he is going to choke. On two occasions he ended up coughing for half an hour after experiencing this feeling (Tcpt 5/37-44).
At the request of the plaintiff the hearing was adjourned from March until May 2023. The condition of Mr Torok was brought up to date by the affidavit of Mr Taylor dated 17 May 2023 (PX 14). His evidence was:

Mr Torok was admitted to Prince of Wales Hospital on about 30 March and remained there until 17 April 2023.

The plaintiff upon release from hospital went to the Little Sisters of the Poor Nursing Home in Randwick where he remains and where he will remain until his death.

The plaintiff says that his breathlessness has increased and that he spends most of his time in bed.

The position was further updated by senior counsel for the plaintiff, who visited the plaintiff in the nursing home on 17 May 2023 to obtain instructions. Senior counsel informed the court (Tcpt 138/24) that Mr Torok was on oxygen, was bedridden and required assistance to sit up. I informed senior counsel for the defendant that I would take those matters into account without requiring formal proof.

Work at Cockatoo Dockyard

In PX 1 Mr Torok gave the following evidence about his work at Cockatoo Dockyard:

“In about late 1980 I got a job at Cockatoo Island as a painter and docker. The work at Cockatoo Dockyard was arranged by gangs of workers. Each morning we travelled to the Island by ferry from a wharf in Balmain. When we arrived at the Island we walked to a lunch room that was on a second storey of a building.
Once in the lunchroom, the foremen picked whichever of the labourers they wanted to be in their gang for that day. While sometimes you would continue in the same gang as the previous day, that was not always the case. The foremen could pick whoever they wanted.
Once the gangs had been arranged, we were instructed as to what work to perform.
While I was at Cockatoo Island, I performed two different jobs. The first was to scrape paint and other materials off surfaces, and the second was to paint surfaces.
While at Cockatoo Island I was sent to scrape materials off numerous different surfaces, on ships, submarines, and large tanks that were on shore. The work was always in confined areas, and incredibly dusty. I (and others working along side me) used hand scrapers and electric sanders to remove paint and any other material that had been applied, in preparation for repainting or resurfacing. We were provided a paper mask on occasions, however they generally became clogged and unusable. Even when they were worn they were useless. When doing this work I inhaled dust throughout the day.
As I did this work others close by did other work. Sometimes this was scraping as well, and sometimes it was painting or applying other materials.
Some of the other workers were painters and dockers that I knew; others were not painters and dockers.
Similarly, I painted a wide variety of surfaces in tanks, on ships and on one submarine. Again, we were provided very limited protection and again other workers worked in close proximity to us.
I recall the submarine particularly as this was the only time I have ever been inside a submarine. I spent several weeks first stripping paint and materials from the submarine, and then later, spent time painting the torpedo tube. The work on the submarine was in a very confined space.
While I was at Cockatoo Docks I was never warned of the dangers of asbestos. I was provided a mask only occasionally, and the masks provided were quite useless. I often put rags around my neck, shoes and sometimes even used rags as a mask because of the dust.
The work was always dirty and dusty and every day I was there I breathed in the dust generated by the work I did, and generated by the work done by others in my vicinity.
I worked at Cockatoo Island for at least six months.”

In oral evidence-in-chief Mr Torok said that he worked for Cockatoo Dockyard under the name “Attila Kovacs”. He was asked about fellow workers and he remembered the names John Fahey, Danny Tennyson and “Tony Kennedy”. This last person was in fact his brother Tony Torok, who worked under a different name for Cockatoo Dockyard (Tcpt 3/44-4/8; 10/39).
In oral evidence-in-chief Mr Torok said that after he had been picked by a leading hand to work on a day, he was taken to the tool room where he was issued with the tools necessary for his work that day. Sometimes he was given a broom. He had to do sweeping up of dust. He recalled sweeping dust after electric sandblasting had been done in a tank. On occasions he was issued with a hand scraper. He recalled scraping a part of a submarine which might have been a door. This also generated dust (Tcpt 4/11-29).
In evidence-in-chief Mr Torok said that he wore overalls to work at Cockatoo Dockyard. He obtained rags from the tool room to cover his neck, face and hair because of the dust. However, the dust still got in. He did his own laundry and washed the overalls. At the end of each day he was very dusty (Tcpt 4/30-46).

Work for George Heptinstall

Mr Torok gave evidence concerning a second period of possible exposure to asbestos when he worked as a labourer for Mr George Heptinstall. In PX 1 Mr Torok said the following concerning that period:

“Later in the 1980’s I worked for a business known as GT Heptinstall. It was run by George Heptinstall who I came to know as he and I both drank at the Ashfield Pub. I was living in my van which I parked near a large water tank in Ashbury, near George's house. George Heptinstall had a bobcat, and a large truck.
The work I did for GT Heptinstall was casual. In total I estimate I did about three months work for him over three of four years between about 1985 and about 1987. He offered me work on occasions when he needed assistance. In each case the work involved spending time at a building sites doing demolition work and removing the rubbish. The work was always dirty and dusty.
I do not recall there being any other co-workers - rather it was with him directing the work as I did it. When we went to a site for demolition we removed all of the loose items and put them in a truck. After that, the roof and ceilings were broken down, and then the walls.
As there were only ever two of us we seldom did jobs on brick or more sturdy construction. Rather typically we demolished sheets, garages, outside toilets etc. We broke the old buildings with the bob cat and sledgehammer and took the rubbish to the tip. Most jobs we took several trips of broken materials to the tip.
Most of the jobs I did with George were in the inner west of Sydney,
although on occasions we worked further away working on homes, small factories and shops. One site I recall was a motorcycle shop on a comer of Parramatta Road in Ashfield. The job was memorable as, while standing on a roof I fell through it onto the ground below. I was not injured but
remember being shocked and George looking surprised when it occurred.”

In cross-examination concerning this period Mr Torok said that the work for Mr Heptinstall involved demolition and rubbish removal. He agreed that it was dusty work. He was asked whether he worked with “fibro” or “flat sheets” or whether he demolished any houses made with these products. Mr Torok was not familiar with those names. He said that he only demolished one house, which was a brick house (Tcpt 7/8-36).
It was put to Mr Torok in cross-examination that in his application to the Dust Diseases Authority for workers compensation, he nominated the Heptinstall work as work which exposed him to asbestos (Tcpt 7/22).
In cross-examination Mr Torok agreed that he had been introduced to work at Cockatoo Dockyard by Danny Tennyson. He said that he did not have a memory of working with Mr Tennyson at Cockatoo Dockyard (Tcpt 9/29-34).

Evidence of Mr Tennyson

Mr Tennyson first met Mr Torok through a family connection. Mr Tennyson’s wife’s sister was married to Mr Tony Torok, the brother of the plaintiff. For a while the plaintiff lived in a truck in the driveway at Mr Tennyson’s house.
Mr Tennyson worked as a painter and docker at Cockatoo Island, Garden Island, the Maritime Services Board, Goat Island and Howard Smith. He did that work over a period of 10 years. He worked with Tony Torok at Cockatoo Island. Tony Torok was a general hand. He also worked with the plaintiff at Cockatoo Island.
When Mr Torok was living in the van in the driveway, Mr Tennyson would take him to the union rooms at 9.45am for a roll call. Members of the Painters and Dockers Union were given a choice of jobs available that day. If none of the members wanted a job, then it was offered to people such as Mr Torok, who were engaged as “kindred labour”. Most of the kindred labour went to Cockatoo Island to work. In the 1980s, besides painters and dockers, there were iron workers, riggers, engineers, and mechanics working at Cockatoo Island. Mr Tennyson said that there were freight ships at the no. 1 dock and there was always a submarine at the no. 2 dock undergoing a refit.
At Cockatoo Island Mr Tennyson did work involving scraping the sides of ships, painting ships, and sanding ships. He also did clean up work in the boiler rooms or in the engine rooms of the ships. To do the scraping work he used a long-handed scraper which was about a foot wide with a six-foot handle. The scraping was done on the side of the ship, inside the torpedo tubes in a submarine, or anywhere that had to be scraped and repainted. If there was rust then a rattle gun was used to strip the rust back to bare metal so that it could be painted. The clean up in the boiler room or the engine room involved picking up whatever rubbish had been left there by other trades such as iron workers or fitters. Mr Tennyson picked up rags and lagging. He saw pipes where there was lagging hanging off.
Mr Tennyson also carried out the job of cleaning up the dust and rubbish in the torpedo tubes. Whatever mess there was would be cleaned up by the painters and dockers. He used a pair of gloves and a few rags, a broom and a little shovel. He also did sand blasting inside submarines. He wore a helmet and had plastic sheets across his eyes to protect him against the material flying off as a result of the sand blasting. It was paint which was being blasted off the walls. His job was then to put antifouling paint on the cleaned metal.

Mr Tennyson said that he worked under his own name but “I worked under many other names”. He nominated some surnames that he used to work at Cockatoo Island. He said that he went to Cockatoo Island about 30 times in a 10-year period. Sometimes he was just there for the day and sometimes for up to a week.
Mr Tennyson said that he had a distinct memory of taking Mr Torok to the union so that he could get a job as a kindred labourer. He worked at the same time as Mr Torok at Cockatoo Island on one occasion that he could remember, for a period of two or three weeks. He only worked with Mr Torok two or three times at Cockatoo Island. Mr Tennyson said that he had a memory of working on a merchant ship with Mr Torok on Cockatoo Island. This was in the no. 1 dock. The two men were doing cleaning up, sweeping the floors, and filling 25 litre drums with dust and rubbish (Tcpt 24/17-21). He said that they could have worked on a submarine but he did not have any recollection of working with Mr Torok on a submarine.
Mr Tennyson said that from day to day he would not know what sort of work he was expected to do. He simply turned up and did whatever he was directed to do. This could be anywhere on a ship. His memory of working on a merchant ship with Mr Torok was a memory of working in the engine room doing the cleaning up. This involved sweeping the floors and doing painting.
Mr Tennyson was asked why he particularly remembered working with Mr Torok. His answer was (Tcpt 24/22-30):

“Q. Do you remember working alongside him. A Yes, cause we laugh, you know. Cause I remember when we was working down there cause, yes, he had a good work ethic, Attila, and I didn't, and I remember he was working really hard, and I was just having a bit of a bludge, and I remember saying to him I sort of, like, laughed and said, "You'll get it one day", you know, cause he was working really hard. Like, a lot of the Aussies didn't really work down there. It was mostly the migrant that used to work hard, and we used to just sit back. And I remember, yes, I used to laugh at him, how hard he used to work.
Q. You laughed at how hard he was working. Do you remember what he was doing. A It would've been picking up rubbish down in one of the - down in the bilges or -”

When asked for more detail, Mr Tennyson said that he recalled Mr Torok cleaning, sweeping the floor, and using a rattle gun on one occasion. He remembered walking up to a skip with a 25-litre drum of rubbish that had been collected, when he was with Mr Torok. When the two men were sweeping the floor, the room was always dusty. When the tins of rubbish were emptied dust blew back in their faces. Mr Tennyson recalled pipes in the engine room and lagging on the pipes. Some of the lagging was in terrible condition. He said that the lagging was around hot pipes. Mr Tennyson said that he recalled complaining to the union delegate that the lagging was simply hanging off the pipes. There were bits of lagging that fell on the floor of the engine room. He recalled the iron workers who were performing work on the pipes wearing a mask, but the painters and dockers just got on with their job and did not wear a mask.
Mr Tennyson had a distinct memory of Mr Torok wrapping his face in rags. Mr Tennyson used to laugh at him. Mr Torok was the “odd one out” who used rags to try and get the dust off his face.
Mr Tennyson recalled parts of ships in the dry dock having rooms sealed off with plastic. He would just open up the plastic and go inside to perform his work. When he opened the plastic dust came out. These plastic doorways were opened 20-30 times within half an hour because people were going in and out. To deal with the dust he put his hand over his mouth, but he did not wear a mask.
In cross-examination Mr Tennyson said that he worked in submarines but these were diesel electric and there was no boiler in a submarine. Mr Tennyson had no memory of Mr Torok moving from being kindred labour to becoming a member of the union.
Mr Tennyson was asked why he worked under numerous names at Cockatoo Island and Garden Island. He said “because I used to get barred from places” (Tcpt 33/1). He said that sometimes this was for drinking on the job and sometimes for telling the foreman to get stuffed. He would be dismissed from the job but then would come back some months later working under a different name.
It was put to Mr Tennyson that he only worked with Mr Torok on two days. Mr Tennyson did not accept this, saying that he probably worked more times but he could only remember two distinct occasions. Mr Tennyson said that he used to go over to Cockatoo Island to visit people all the time and he used to see Mr Torok working and he would stop and chat with him. Mr Tennyson confirmed that he did not have a memory of working on a submarine with Mr Torok.
Mr Tennyson agreed that the principal role of a painter and docker was to strip back the paint, and take the surface back to a state where it could be repainted. He said that there were other jobs too including cleaning up. Mr Tennyson said that he had worked on a submarine but he could not recall its name.
It was suggested in cross-examination that Mr Tennyson did not have a specific recollection of working with Mr Torok. He disputed this, saying that he recalled taking Mr Torok to the union to get him a job and he recalled going to Cockatoo Island with him when Mr Torok first started there. He recalled working at the no. 1 dock on a ship with Mr Torok. He also had a clear recollection of working with Mr Torok, because Mr Torok was a hard worker whereas Mr Tennyson was a shirker. He recalled one time sleeping on the job while Mr Torok was working, and he found Mr Torok’s attitude amusing. He had a distinct memory of Mr Torok wearing rags on his head to deal with the dust.
An affidavit sworn by Mr Tennyson was shown to him. In that affidavit Mr Tennyson had asserted that he worked with Mr Torok on several submarines. Mr Tennyson said that he did not have a distinct memory of this, but that he assumed that it was so because there were always submarines at Cockatoo Island and that he did work with Mr Torok (Tcpt 40/4-21).
Mr Tennyson confirmed in cross-examination that it was part of his job to clean up the mess in engine rooms left by other tradesmen. He had to pick up the rubbish and sweep the engine room. Sometimes when there was repair work going on with the pipes, he was in the room picking things up.
Mr Tennyson was asked again about working under different names at Cockatoo Island. He said that he got “barred from places, and the only way I could go back there was to go under another name, which I did” (Tcpt 43/41). He agreed that once he got barred under his true name, he could not have gone back to work under that true name. He was shown employment cards in the name “Dan Tennyson” (Exhibit DX 1). After being taken through these employment cards, he said that he could not be sure if he was barred or not. Mr Tennyson then offered a different reason for working under different names at Cockatoo Island, which was “tax reasons”. He agreed that he used a different name to avoid paying tax (Tcpt 46/5). He then said the following:

“Q. But the reason you gave earlier for using different names is because you had been barred from working on the island. A Okay, okay. You caught me out. All right, because I didn't yes, there was lots of reasons why I didn't use my right name. As I say, it would've been tax reasons.”

I formed the view that Mr Tennyson was not telling the truth about the reason he initially gave for working under different names at Cockatoo Island. However, he finally did confess to working under different names to avoid paying tax.
I must therefore be cautious in assessing the credibility of his evidence. Mr Tennyson was a very “hail fellow well met” type of person, but I formed the view that he was doing his best to recall his time on Cockatoo Island when he worked alongside Mr Torok. He did not overstate the amount of time when he and Mr Torok worked together. His distinct recollection of working with Mr Torok came not just from the particular jobs they were doing, but from the fact that he found the work ethic of Mr Torok amusing, as Mr Tennyson saw himself as a person who did his best to avoid any work, while still being paid. He drank on the job and was insolent to foremen. Mr Tennyson was quite frank about these matters, even proud.
I accept the evidence of Mr Tennyson that he does remember working with Mr Torok, because of their indirect family connection and also because of their diametrically opposed attitudes to working hard. I also accept the evidence of Mr Tennyson that he has a distinct memory of Mr Torok wrapping rags around his face to keep the dust out. This would have been an amusing sight, and it would have been a unique sight, given that none of the painters and dockers even wore a mask. These anecdotes about Mr Torok have the ring of truth about them.
I accept the evidence of Mr Tennyson when he says that he worked on a few occasions at Cockatoo Island with Mr Torok. I also accept the evidence of Mr Tennyson when he speaks of the dusty nature of some of the work upon which he and Mr Torok were engaged at Cockatoo Island. In particular I accept his evidence that he and Mr Torok worked together in the engine room of a merchant ship, doing painting, sweeping and cleaning up.
Senior counsel for the defendant was critical of the quality of the evidence of Mr Tennyson, because when he was asked for details about some of his work he often resorted to using expression such as “could have” or “would have” or “probably”. I do not find such evidence surprising and I do not think that such generalisations affect those parts of his evidence where he was adamant that he had a specific recollection. Mr Tennyson was not carrying out a unique and distinct task each day, was not taking notes and did not have a transcript of the day’s proceedings. He was engaged in quotidian industrial tasks such as sweeping, picking up, scraping and painting. Small wonder that he cannot recall the fine detail of his work when asked about it 43 years later.

Evidence of Mr Johnston

Mr Patrick Johnston was born in 1942 and started work in 1958 as a shipwright apprentice. He first worked at Cockatoo Island as a shipwright in about 1964. He was offered a job supervising the painters and dockers at Cockatoo Island. He did this for a couple of years and then he became a trade union official with the Australian Manufacturing Workers Union and the Shipwright’s Union. He worked at Cockatoo Island for 18 months before he became a union delegate, and he was still a delegate when he left to join the union as an official.
When asked about dates, Mr Johnston was quite unsure, saying that he could not remember too much.
Mr Johnston said that there were two types of shipwrights. The first was a loftsman who took the blueprints of the plans of the ships and made templates for every part used in the construction of a ship. The loftsman worked primarily from drawings.
The shipwrights who worked aboard a ship under construction did the physical work of welding parts of the vessel together. Mr Johnston said that the painters and dockers were responsible for cleaning and putting protective coatings on vessels. They were also involved in the application of insulation lagging. Mr Johnston said that to his understanding, the lagging was asbestos material. Mr Johnston said that the asbestos lagging was to deal with heat and fibreglass lagging was to deal with noise. Mr Johnston said that the painters and dockers did the insulation of any piping during the construction of the vessels. They also did this work during the repair and refit of vessels including submarines.
On a full refit of a submarine everything was stripped out. Intermediate refits would concentrate on different parts of the submarine. On a major refit, the submarine was left as just a shell and then repaired, renewed and put back together.
Mr Johnston said that Cockatoo Island was the major docking facility in Sydney, and that it dealt with merchant vessels, navy vessels and few small government vessels. The dock was rarely empty. There was a vessel of some sort in the dock for seven or eight months each year. Foreign flagged ships were also worked upon at Cockatoo Island.
The lagging on the hot pipes, which Mr Johnston believed was asbestos, was material that he became familiar with in the engine rooms and boiler rooms of ships. During the time he worked at Cockatoo Island, insulation on ships was “asbestos-related insulation”. When he worked at Sydney Ferries, there was similar material used in the lagging of the engines of the ferries. The steam pipes were lagged.
Dust came off this lagging and collected on his overalls. Whenever lagging was removed from a pipe it started to crumble because it was worn. This created dust. If he crawled through a series of pipes then he would come out covered in white powder. This lagging which created white dust was all through ships at Cockatoo Island.
Mr Johnston said that the material which he believed was asbestos came in rolls. It had a coating around it. He said that in the 1980s a lot of this type of material came to Cockatoo Island and he saw it stored there.
Mr Johnston said that workers would sometimes complain about being required to remove material which he believed was asbestos. He said that the attitude of the management and the senior foreman was that the workers were just whingeing about nothing.
Mr Johnston said that as publicity emerged concerning the dangers of asbestos, there were more arguments on the job about being required to work with it. When the workers asked for some protection, and it was not provided, there was industrial action taken until the dispute was sorted out. Mr Johnston described the work health and safety system in those days as “a fairly complicated archaic approach” (Tcpt 76/21).
Mr Johnston said that he did work on the Oberon class submarines as a shipwright but that he never handled asbestos. He said that the people handling asbestos in his time were the painters and dockers. There was a higher penalty rate paid for working with asbestos material. He recalled plastic drop sheets closing off sections of ships. The people working inside that section wore a respirator and protective clothing. Those clothes were taken off and put in bags and then taken away. After that the compartment was cleaned. The use of respirators became mandatory when working with asbestos.
Mr Johnston said that he saw workers dealing with material which he understood to be asbestos. There was plastic sheeting used to cover the entrances to these areas of the ships, in order to isolate the contamination to other workers. The work being done was lagging and the insulation of pipes. Mr Johnston also saw de-lagging and cleaning up going on. The painters and dockers were doing the de-lagging and cleaning up. He saw those workers sweeping dust up with brushes and small trays. They also used a shovel and sometimes used vacuum cleaners. Mr Johnston often saw workers with white dust on their overalls in the early 1980s. He had dust on his overalls as well. When this happened he simply brushed the dust off with his hands.
Mr Johnston said that he recalled workers taking bags of insulation out of submarines which were being overhauled. These were bags of rubbish. Later on there was bags specifically for asbestos. Mr Johnston said that there was lagging on submarine pipes in the engine room area, and that this lagging was asbestos, to his knowledge.
Mr Johnston was asked about a lining which was situated inside the torpedo tubes of the submarines. He said that these tubes had runners on the sides and on the bottom and that the material was fibrous-like, but not fibrous-like asbestos.
In cross-examination Mr Johnston was shown some documents relating to his employment at Cockatoo Dockyard. He agreed that the record showed that he started work there as a permanent employee on 5 February 1975 and that he was discharged on 24 November 1976. That was the last date on which he worked at Cockatoo Island.
The record showed that the first date when Mr Johnston worked in any capacity at Cockatoo Island was 3 December 1962. His employment card was tendered (Exhibit DX 3).
Mr Johnston agreed that he worked on a casual basis for periods shown on the employment card up until 14 May 1975. Sometime in this period he became a union delegate. Mr Johnston went and worked at Cockatoo Island when a request was made for labour for a particular job. He might be there a week, two weeks or a month depending on what the job was. Between 1969 and 1975 he worked at other waterfront sites including Garden Island. He was a shipwright in those years. He did not work as a loftsman. He worked off the blueprints created by the loftsman, so he was aboard the vessels engaged in their construction.
When asked about laggers at Cockatoo Island, Mr Johnston recalled contract laggers who worked for a company named Middlemess. He said that there were employed laggers and there were contract laggers.
Mr Johnston accepted that he only worked for about 18 months as a permanent on Cockatoo Island and that he left to take up his position as a union official. Mr Johnston said that he suffered “with a bit of memory loss problem at the moment” (Tcpt 92/38).
Mr Johnston confirmed that the engines in the Oberon class submarines were diesel electric. He said that some pipes were insulated but he did not know whether the insulation was asbestos. A lot of the insulated pipes were covered with metal sheeting to hold the insulation on but he never saw the asbestos. He agreed that his recollection was reasonably vague. This metal cladding around insulation was also present on ships besides submarines. The cladding was on pipes where engine room personnel were working in close proximity to the pipes, so that they did not get burnt.
Mr Johnston was asked whether the material removed in bags from submarines could have just been scrapings from the inside of the vessel, making it ready for painting. He disagreed with this, saying that if asbestos insulation was removed people were dressed appropriately wearing special overalls and masks. The plastic bags were sealed. He did not look in the bags but he assumed that it was asbestos insulation being carried off the submarine. Mr Johnston agreed that he did not know whether there was asbestos insulation on submarines (Tcpt 95/16).
Mr Johnston said that he did become aware of polyurethane lagging in vessels. He did not have a recollection of such lagging being phased in, in preference to asbestos insulation. The kind of lagging that he saw was either fibre wool type cladding for heating and cooling, or asbestos cladding. He did recall asbestos cloth which was wound round the pipes like a snake, and which was fully asbestos. In many instances that was not covered.
Mr Johnston was asked to consider whether, if a painter and docker worked for only about four months, it was possible that they did not do any work involving the insulation of the vessels. The question and answer was as follows (Tcpt 99/27-42):

“Q In the case of a painter and docker who worked there for a period of about four months, it's quite possible that they did not do any work close to any of the insulation on these vessels. A It depends where they were. At Cockatoo had a squad, had squads and there were particular people worked in say the insulation or asbestos area. Other people worked as painters and then there was the pro painters had assistants and there was pro painter painters and dockers who actually worked with the painters. They also worked over the side, scraping the holes and water blasting it, things like that, so there was a combination of jobs they did and a person who is not necessarily a lagger could be working with two other people who are cleaners in the same area, so they worked pretty much together but doing different jobs, and the squad, there was a particular squad of employees, painters and dockers who were in the de lagging/lagging asbestos area. So they were the ones who were supposed to know the rules and obey the rules and do everything properly. And the plastic bag was a fairly new initiative when I was there, but the de lag material would have to be stored in those bags, so if I was a lagger I've taken it down, they would have to go in the bags, we'd have to clean up the mess, put that in the bag and then seal the bag and mark the bag, and they would go out specifically by themselves to go assure to be destroyed and got rid of, I still don't know how they done it, but think they buried a lot of it.”

Mr Johnston agreed that there was a special squad of painters and dockers who did the insulation and lagging work. He said that there were four or five different groups on the island who were painters and dockers, but they were “pretty versatile”.
In re-examination Mr Johnston was asked whether he knew a man named Paul Bastian. He said that he did, as Mr Bastian was his apprentice. Mr Johnston had spoken to Mr Bastian the morning on which he gave evidence. At one stage Mr Johnston was the charge hand for Mr Bastian. Mr Bastian would have been an apprentice at that time.
I accept Mr Johnston as a witness of truth. However, he did say many times in his evidence that because of his age he was now suffering from some memory loss. He was most uncertain about the years in which he worked at Cockatoo Island. However, I accept that he had a good memory of the general work in which he was involved on Cockatoo Island, and the complaints made from time to time, in an industrial sense, concerning working with asbestos. It was however very difficult to place those complaints in time.

Evidence of Mr Gardner

Mr Ross Gardner swore an affidavit on 12 April 2023 (PX 7) and gave oral evidence.

Employment at Cockatoo Island

Mr Gardner was born in August 1943 and is currently 79 years of age. I formed a very favourable view of his evidence. He is one of those people who is cognitively much younger than his chronological age. He was clear and direct in his answers. He did not overstate matters and he made appropriate concessions. I find that he had an accurate detailed memory of his time at Cockatoo Island.
Mr Gardner commenced employment at Cockatoo Island in January 1960 as an apprentice fitter and turner. He completed that apprenticeship in late 1964. He remained a fitter and turner until October 1966 when he suffered a broken ankle in an industrial accident. Because he could not perform strenuous activity he was sent to the Mechanical Drawing office. After about three months he moved to the Supply Department where he remained until early 1992 when the dockyard closed and his job became redundant. He returned shortly afterwards as a contractor to assist with the closure of the dockyard, until 3 January 1993 when the lease was signed off and responsibility for the dockyard was handed back to the Commonwealth.
When he was on the tools between 1960 and 1966 he spent about two years working on the refit of British T-Class submarines. On a dozen occasions he went to assist tradesmen working on ships berthed at wharves in the harbour. For the remainder of the time he worked in the Machine Shops.
Mr Gardner recalled two specific instances when he was exposed to asbestos material. The first was in the Machine Shop when he used a lathe to manufacture Ferrobestos parts for pumps. He said that Ferrobestos was a resinous material impregnated with asbestos, commonly used in bearings or for underwater fittings. The dust from Ferrobestos was very light and fine and appeared to float in the air more than dust created by cutting insulation material. The second specific exposure he could recall was during two submarine refits when he spent time grinding the Ferrobestos wear guide strips that lined the eight torpedo tubes in the T-Class submarine. The Ferrobestos strips were sacrificial wear guides. During a refit the torpedo tubes were cleaned and scraped back to a clean state and new wear guides were fitted. Mr Gardner described the dust from this process as “intense”.
When Mr Gardner moved to the Supply Department, he often attended ships which were undergoing a refit or a repair to have discussions concerning the materials that would be needed. He visited the Cockatoo Dockyard Receiving Store and the Naval Store to check on the delivery of materials and equipment. He went there nearly every day.
Mr Gardner said in PX 7, par 13:

“From when I started until the late 1970s, asbestos materials were routinely specified and ordered by the Supply Department. The materials we ordered included:
(a)    Asbestos insulation materials:
(b)   Asbestos putty and jointing materials.
(c)   Asbestos blankets;
(d)   Asbestos rope and tapes;
(e)   Ferrobestos;
(f)   Asbestos gaskets and Klingerite, a trade name for sheet and pre-formed gaskets made from Compressed Asbestos Fibre.
(g)   Asbestos packing;
(h)   Millboard; and
(i)   Protective asbestos clothing such as gloves, etc.”

From 1978 onwards Mr Gardner was involved with the design and construction of the HMAS Success, which was a naval support vessel. This vessel was constructed, as far as possible, with asbestos-free material. That was a change from earlier ship construction at Cockatoo Island.
Mr Gardner said that even after 1978 asbestos was still present at Cockatoo Island. There was still asbestos material kept in the store. The Navy continued to use asbestos material and order it for its store. Contractors often supplied and used their own asbestos material. Contract laggers were used into the 1980s at Cockatoo Island, and they often brought asbestos insulation to carry out their work. Work done for outside bodies, such as the Electricity Commission and sugar mills, involved using asbestos material supplied by the customer.
In par 19 of his affidavit Mr Gardner said the following:

“19.   There were two other significant ways in which workers at Cockatoo Island continued to be exposed to asbestos into the mid to late 1980s.
(a)   The first is as a result of doing repair and refit work on vessels that had asbestos materials in situ. Up until sometime after about 1984, no prior assessment was made of the presence (and extent of) asbestos materials in place on ships that came to Cockatoo Island for repair and refit work. Most of the work at Cockatoo Dockyard (at least 75%) was on navy vessels, but there was also a great deal of repair and maintenance work done on merchant ships and often very little information was known as to the extent of the presence of asbestos materials on these ships. Further, some of the navy vessels that we worked on (for example the HMAS Jervis Bay and HMAS Vampire) had asbestos insulation in them. In the early 1980s, the merchant ships we worked on were all at least 5 years old and most much older. They had all been built at a time when asbestos materials were routinely and extensively used on ships. The repair work done on many of those ships included work in engine rooms, generator and pump spaces all of which contained insulation that was normally asbestos based. Asbestos insulation was also often found elsewhere on the ships in ventilation, air conditioning, refrigeration and accommodation areas for example. From the late 1970’s and particularly after 1984, when asbestos was identified on a ship it would, if possible, be removed and replaced. This would be carried out by Painters and Dockers and particularly after 1984, after normal working hours.
(b)   From my work as a fitter, and from my observation while working in the Supply Department, the repair work routinely performed required the tradesman and others to remove all the old insulation materials, to allow access to the pipes, valves or equipment needing inspection for repair. The insulation fell onto the deck or into the bilge area under the engine or boiler room floor plates. Painters and Dockers swept and cleaned this up. From my observation seeing this work being done, it was very dusty.
(c)   Asbestos had been widely used around Cockatoo Island. Many of the workshops, which were very old, had exposed asbestos insulation in them. In some areas and workshops old redundant infrastructure, such as steam pipes were still in situ and were covered with asbestos insulation. I recall that this was sometimes in the form of asbestos rope wound around the pipe.”

Mr Gardner said that while from 1978 onwards there was a growing awareness of the dangers of asbestos, changes in behaviour on Cockatoo Island were limited until 1984, when new occupational health and safety legislation was passed. After 1984 protective measures became more rigidly enforced.
These changes included laggers working outside of ordinary work hours, and plastic sheeting being erected around lagging work that was being done. Mr Gardner said that other workers continued to work in the vicinity of the sheeting, on the other side of the plastic.
Mr Gardner spoke about the painters and dockers being employed on Cockatoo Island. There were a small number of union members employed on a permanent basis, but most painters and dockers were employed on a casual basis. They were employed only for the duration of a particular project. Once the work ended, their employment would end. Mr Gardner said the following concerning work done by the painters and dockers:

“28.   Painters and Dockers did several different tasks. In terms of their work on board ships and submarines their main job was to assist tradesman by picking up and cleaning up after them. As other workers stripped insulation, wiring, piping, or whatever needed to come out for work to be done, they generally threw it to the deck. Painters and Dockers then came and picked up larger pieces and swept up the dust and debris.
29.   As part of my role in the Supply Department I attended ships on a regular basis, and observed painters and dockers picking up and sweeping up on board the ships from insulation and other materials that were laying around. The working environment was always dirty and dusty and generally included old insulation that was lying around.
30.   On occasions I saw workers wearing rags over their mouths in dusty situations prior to masks being more available and then mandated. Indeed, as an apprentice I wore rags over my mouth because of the dust on several occasions.”

Dust Diseases Board

In 2001 Mr Gardner was approached to work at the Dust Diseases Board as an Industrial History officer. After learning how to take the histories, Mr Gardner was engaged in interviewing applicants for dust diseases workers compensation. This involved the preparation of Industrial Histories were then sent to Dust Diseases Board doctors to decide whether compensation was to be granted. Mr Gardner dealt with a lot of mesothelioma sufferers in that role. His interviews generally took 1-2 hours. He sat with the applicant worker and took down details of each employer and the job done with each employer including whether or not asbestos was used. He took steps to corroborate statements made by applicants and also reviewed other records kept by the Dust Diseases Board. The draft Industrial History was then sent to the applicant for consideration and signature. Any corrections requested by the applicant were made.
As part of that employment Mr Gardner interviewed a substantial number of workers who had been at Cockatoo Island. Many had mesothelioma or asbestosis.
In oral evidence Mr Gardner said that he became a public officer of Cockatoo Dockyard in 1978 and he remained in that position until 2001. In that role he had to sign for the receipt of goods and services which included subcontract labour. When surplus labour was requested, Mr Gardner had to sign off to pay for the surplus labour. He attended a muster of the surplus labour and checked off the names and the people who came in. While Mr Gardner did not maintain the employment cards, he explained that the letters “SL” on the employment cards referred to “surplus labour”.
Mr Gardner said that surplus labour was brought in to carry out any work that was beyond the capacity of the normal permanent staff. A request was made to the painters and dockers union to supply a certain number of men for a particular job. Mr Gardner said that “the surplus labour were usually brought in to do the dirty work … they would basically be cleaning up”. (I note that the employment card for Mr Torok (PX 6) lists him as SL i.e. surplus labour).
In cross-examination Mr Gardner confirmed that the painters and dockers were employed on a casual basis for a particular project. A submarine refit could take as long as 100 weeks, but some of the jobs were quite short and would only last a week.
Mr Gardner accepted the proposition that there were numerous tasks performed by painters and dockers which did not involve work near asbestos containing products or near people who were disturbing those products. He gave the example of work on the outside of a ship.
Mr Gardner was asked about whether there was asbestos lagging in the O-Class submarines. He agreed that each submarine mostly had no insulation material. There was asbestos insulation on the exhaust of the diesel engine. There were also asbestos gaskets used in the pipework, for both water and fuel.
Mr Gardner said that about 75% of the ships which came to Cockatoo Island were naval vessels. The older vessels all had asbestos in them. Anything that was built before the mid-1970s would have had asbestos in it. Mr Gardner remembered HMAS Jervis Bay as one of the ships with asbestos in it, which came in for work in the early 1980s.
Mr Gardner said that the inside of a submarine undergoing a refit was painted in white paint to improve the lighting inside the vessel. The removal of old white paint generated white dust.
Mr Gardner agreed that from 1978 onwards there were changes to work practices at Cockatoo Island, which included the timing of any lagging work.
In re-examination Mr Gardner said that lagging which was undertaken outside of work hours, was done by painters and dockers. Further, the clean up after any overnight or outside normal hours lagging work was done by painters and dockers.
Mr Gardner said that even after there was an awareness of the dangers of asbestos, asbestos gaskets were still used in the submarines because “nothing else did the job”. The old gaskets and other materials were dropped on the deck where they were cleaned up by the painters and dockers.

Folders of Industrial Histories

Accompanying the affidavit of Mr Gardner were two lever arch folders (PX 8 and PX 9) containing 66 Industrial Histories taken by the Dust Diseases Board. The 66 histories relate to workers who suffered from an asbestos-related disease, where there was exposure to asbestos while working at Cockatoo Dockyard.
The two volumes of histories run to 549 pages. A 19-page summary of the histories was provided by the plaintiff (MFI 4). There were no submissions about any particular part of the Industrial Histories made by either side.
Suffice it to say that the 66 Industrial Histories which come from a variety of trades, including painters and dockers, amply demonstrate that there were many jobs on Cockatoo Island which exposed workers to asbestos.
Many of the painters and dockers whose Industrial History was tendered were workers doing lagging or de-lagging work. This was not the work done by Mr Torok during his time on Cockatoo Island. However, some of the Industrial Histories were taken from painters and dockers who worked as general labourers. For example, Industrial History 35 for Mr Camilleri (1954-1967) says that he spent the majority of his time cleaning up after tradesmen, which often included cleaning work carried out in engine rooms. Pipe lagging material was often among the material he swept and shovelled up.
Industrial History 47 for Mr Denaro (1962-1966 and 1981-1990) referred to cleaning up after tradesmen on board ships that were undergoing refit, repair or maintenance.
Industrial History 53 for Mr Carr (1981-1984) spoke of being in attendance in engine rooms, boiler rooms, bilges, tanks, paint lockers and other areas in confined spaces when asbestos lagging was removed and/or replaced on ships including steam pipes and valves.
It is not necessary to multiply examples. In the absence of any particular submission concerning the two volumes of 549 pages, I will operate on the basis that the summary in MFI 4 is correct. Every one of the 66 workers who gave an industrial history spoke of regular and heavy exposure to asbestos dust at Cockatoo Island.
Some were working directly with asbestos products, but many were simply close by when other trades were working with asbestos products. For example, Industrial History 2 for Mr Cedillo (1966-1991), said that as a boilermaker welder he had bystander exposure from 1966 to 1985 on board ships at Cockatoo Dockyard.
Industrial History 6 for Mr Fraser (1976-1991) said that he was a production planner engineer. This required him to visit vessels under refit on a regular basis. He was on board when lagging was removed. Even when lagging work was done outside working hours, when he arrived the removal of the lagging would not be completed, and lagging would still remain in work areas.

Evidence of Mr Panuccio

Mr John Panuccio swore an affidavit on 12 April 2023 (PX 11). He also gave oral evidence. Mr Panuccio is 68 years of age. He became a painter and docker in 1972. He worked on a variety of sites around the Sydney waterfront. Between about 1972 and 1974 he was a casual painter and docker based at Cockatoo Island. From 1974 until the dockyard closed he was a permanent painter and docker on Cockatoo Island.
Mr Panuccio said that the painters and dockers were divided into five groups at Cockatoo Island. One of those was the general labourers, which was the largest group. There was no ticket or qualification required to be a general labourer. Their work involved scraping paint, insulation and other materials off surfaces, applying undercoats and antifouling paints, working in support of other trades such as electricians, boilermakers, laggers and plumbers and picking up after those other trades. This involved cleaning up, wiping down and sweeping.
For most of his time as a painter and docker Mr Panuccio worked as a general labourer. From 1976 he was involved with the union.
Mr Panuccio gave evidence setting out how workers who attended the painters and dockers union office in Mort Street in Balmain were selected to go to Cockatoo Island. This evidence was the same as that given by Mr Tennyson.
Mr Panuccio recalled “two Hungarian brothers who worked as casual painters and dockers labourers in the early 1980s”. They were the only Hungarians he could recall who were painters and dockers.
Mr Panuccio gave the following evidence concerning the use and presence of asbestos at Cockatoo Island and on ships:

“21.   My specific knowledge as to the use of extent of the use and presence of asbestos at Cockatoo Island and on ships arises from the following:
(a)   As a general labourer I worked on board ships and submarines and I heard tradesman and others removing and installing insulation. The material they were referring to was white, or grey. It was sometimes shaped like half pipes, sometimes like plaster, and sometimes it was a rope or cloth. They referred to this material as “asbestos”. I observed how it looked when it was being applied, and how it broke up and the dust went everywhere as it was removed. It was installed in engine rooms and elsewhere on hot water, steam, exhaust and other pipes, and onto other surfaces for heat and fire protection. I observed that this dust floated up onto beams and ledges, as well as down onto the floor, and of course onto the clothes, hair and bodies of the workers in the area.
(b)   As a union representative I spent my days in areas where painters and dockers were working. I observed the work commonly done in ships as asbestos materials were removed, and where the painters and dockers cleaned up after tradesman. I observed that the work was always dirty and dusty, and that even into the 1980’s painters and dockers seldom wore masks.
(c)   As a union representative I was generally the first person called on whenever there was an issue. As I describe below, from the late 1970’s/early 1980’s exposure to asbestos became a significant issue of concern for the Union. I tried to warn workers about it, and advised them to contact me when they had concerns. As a result I often went to areas where concerns around the use of asbestos had been raised, particularly where materials were being removed in the way I describe elsewhere. Sometimes, management sought to reassure the workers that it was not asbestos materials. More commonly, they would agree that it was asbestos but - in the 1970’s suggest it was nothing to worry about - in the early 1980’s provide a paper mask and not much more, and then after the mid 1980’s, take genuine precautions.

(d) As a member of the Shop Stewards Association, I was involved in numerous discussions, including with management about our concerns about the extent of workers' exposure to asbestos at Cockatoo Island.
(e) As a member of the Occupational Health and Safety Committee, I was regularly involved in discussions with management about the extent of asbestos at Cockatoo Island and exposure Dockyard workers to asbestos. These discussions included hearing from Dockyard employees who were responsible for identifying and minimising the risks of asbestos. These discussions concerned particularly the problem of all the asbestos lagging in workshops around Cockatoo Island, and the ongoing problem of lagging on ships that came in for repair (such as that identified in the Sun Heald story annexed hereto).”

Mr Panuccio gave the following evidence concerning the exposure of painters and dockers at Cockatoo Island to asbestos:

“22.   The areas were painters and dockers at Cockatoo Island were exposed to asbestos included:
(a)   From the laggers from all the work they were doing.
(b)   Working on ships and submarines around or near tradesman, or following on from tradesman who were stripping asbestos insulation, asbestos cabling, asbestos gaskets and other materials containing asbestos. Sometimes the asbestos material needed to be scraped off. The materials containing asbestos were often covering pipes and needed to be removed before repair or renewal work could be done. During overhauls, all of these kind of materials were stripped out. Some of this stripping and removal was done by painters and dockers, and sometimes by other labour. All of the cleaning up was done by painters and dockers. Larger bits were picked up. The surfaces were swept with a broom into piles of dust and debris, and then picked up with a dust pan and broom. The dust collected on all surfaces, often above head height or in crevices. It was the job of painters and dockers to clean it all up and a consistent part of our work.
(c)   Working in and around tradesman as they installed new materials containing asbestos. Offcuts, and waste was thrown to the floor and it was the job of painters and dockers to clean it.
(d)   From the asbestos that was all around Cockatoo Island. Much of the work around Cockatoo Island was done in various workshops. They were all old, and had pipes running through them. The pipes often had old asbestos insulation (I know it was asbestos because on numerous occasions during the 1980’s we stopped work in workshops when bits of old lagging fell down and needed to be repaired).”

Mr Panuccio said that in the mid-1970s the attitude of Cockatoo Island Management to asbestos changed. More active measures were taken. Plastic sheeting was used to isolate areas where asbestos materials were being removed. However, he said “it was still sometimes pretty useless as the dust would escape from behind the plastic”. Mr Panuccio said that even in the 1980s the painters and dockers were still regularly exposed to asbestos.
In his oral evidence Mr Panuccio identified the ship in an August 1989 newspaper photograph as HMAS Jervis Bay. He was also able to identify many of the workers standing on the dock in front of the ship.
In cross-examination Mr Panuccio agreed that the majority of the painters and dockers working at Cockatoo Island were casual labourers. These casual labourers were brought in to perform specific jobs when they were needed. Much of the preparation work done by painters and dockers was simply the removal of paint from inside or outside the vessel. This was done with scrapers, wire brushes and brooms. There were many parts of vessels where there were no asbestos materials where painters and dockers were working. On some occasions there were areas in larger vessels where there was no insulation material. It was quite possible that a casual labourer might end up working in a part of the vessel for the entire time they were there, with no exposure to asbestos insulation.

Evidence of deceased or unavailable workers

The plaintiff tendered a large volume of evidentiary material from previous dust cases heard in the Tribunal, and from one District Court case. I must take into account that the witnesses who gave evidence in those previous cases could not be cross-examined by the defendant in these proceedings. Nevertheless they were cross-examined in the earlier proceedings.

Evidence of Mr Kuether

Pursuant to s 63 of the Evidence Act 1995 (NSW) the plaintiff tendered a Form 1 Statement of Particulars of Mr Kuether (PX 2) from proceedings which he brought in 2017 in the Dust Diseases Tribunal. Mr Kuether worked at Cockatoo Dockyard between November 1962 and July 1991. He was a shipwright, a loftsman, a chargehand, a chargehand liner off and ultimately a foreman shipwright. As a foreman shipwright he was responsible for overseeing repair work by shipwrights and apprentices and liaising with other trades. He said that he was exposed to asbestos right up until he left Cockatoo Island. Just before Cockatoo Dockyard shut down, Mr Kuether was told to register with the Dust Diseases Board and he was given a mask. He was never given any warnings about the dangers of exposure to asbestos.
Mr Kuether set out the ships upon which he worked. He said that he worked upon the Oberon class submarines from the late 1960s until 1991. This was doing refit work. He had contact with asbestos lagging on steam pipes while repair and maintenance work was being carried out. His lining out work was carried on near to asbestos lagging being removed from pipes. He said it was removed in a haphazard way by hand and thrown into bags and onto the floor. The lagging crumbled as it was removed and dust went into the air and onto the floor.

Evidence of Mr Giuffre

Pursuant to s 63 of the Evidence Act the plaintiff tendered the affidavit of Mr Frank Giuffre dated 8 March 2023 (PX 3) which was filed in his own proceedings. He worked as a painter and docker on Cockatoo Island. Mr Giuffre said that his employee card was not accurate, as he worked on Cockatoo Island for more occasions than was recorded on the card. None of his short periods of employment (a week or two) are recorded on the employee card.
Mr Giuffre worked on both submarines and ships. He said that inside the submarine there were cables and insulated pipes. Painters and dockers worked in close proximity to other trades including laggers. Inside the submarine he scraped, painted and did the work of picking up and sweeping waste materials dropped by tradesmen, including laggers, as they removed and installed things during the refit process. He said this work was very dusty. The inside of the submarine was always dusty from the work being done by him and by others. The cleaning up work was done by painters and dockers at Cockatoo Island during the time he was there. The work done below deck on ships was similar to the work done on the inside of the submarines. Again, he picked up rubbish created during the strip out process or repair. When he worked close to others who were doing their job, it was always dusty.

Evidence of Mr Morton

Pursuant to s 63 of the Evidence Act the plaintiff tendered a transcript of the evidence of Mr Morton in the District Court matter of Restuccia (PX 4). Mr Morton worked for Cockatoo Dockyard between January 1952 and 1991. For the first five years he was an apprentice fitter and turner. He became an indentured tradesman in 1957, an Assisted Production Manager in 1975 and a Production Manager in 1978. Between 1957 and 1968 he worked in the drawing room. After leaving the employment at Cockatoo Dockyard he was made custodian of the employment cards, which were held in storage in Dee Why, to handle matters relating to workers compensation.
Mr Morton was also aware of the ship docking records which were kept from 1912 to 1992 in handwritten books. He said that the docking records did not always pick up refit work done in other facilities at Cockatoo Island, apart from the docks. Mr Morton said that the slave dock was used for Oberon submarines. Many vessels had work done on them when they were not in a dock or a slipway. Mr Morton said that the docking records did not reflect periods where vessels were worked on when alongside a wharf.
Mr Morton said that during a ship refit lagging contractors were given the engine and boiler rooms for about a week in which time they removed any insulation. Painters and dockers continually cleaned up right through the refit. They were allocated to engine and boiler rooms, which involved cleaning up asbestos which had been stripped from the pipes. He saw this regularly. He saw the painters and dockers use small brooms with dust pans to sweep up the dust from the asbestos lagging.
Mr Morton said that the first main refit of HMAS Otway occurred in 1972. He was aware of asbestos lagging on the internal section of the exhaust pipes. There were two exhaust pipes, each 6 to 8 inches in diameter and 12 to 15 feet in length.
Mr Morton said that asbestos insulation material could be found in Commonwealth vessels constructed or refitted at the dockyard until at least 1987. He knew this because he had seen specifications for naval vessels in the course of preparing estimates for construction work. Mr Morton said that pipework lagging was the main source of asbestos dust and airborne particles on Navy vessels.
Mr Morton said that the main refit of HMAS Oberon took about two years, in which time the Oberon was in dock for roughly a year. This was not reflected in the docking records, because it was put into the slave dock, which was not recorded. During the period when a vessel such as the HMAS Oberon was alongside the wharf, where it was still being worked upon, it was not recorded in the docking book.

Evidence of Mr Zupicic

Pursuant to s 63 of the Evidence Act the plaintiff tendered the transcript of the evidence of Mr Berto Zupicic in the matter of Portelli (PX 15). Mr Zupicic started work at Cockatoo Island in 1963 as a fitter. Part of his job involved undoing bolts and removing asbestos gaskets from flanges. He said that it was not until 1983 or 1984 that the dockyard supplied a mask and disposable overalls to workers. The fitters used to be covered in white dust after doing their work. They had to drink water and spit it out to remove the asbestos fibres from their mouth and throat.
Mr Zupicic became a leading hand in 1968 and a foreman in 1983. He worked at Cockatoo Island until 1991. He worked on the T-Class submarines and the O-Class submarines. Both he and Mr Portelli worked in the torpedo tubes of the submarines changing the pads inside those tubes from Ferrobestos to nylon. This created dust in the tube, which blew around because of the draft coming through the tube. That dust was Ferrobestos dust.
In re-examination Mr Zupicic was asked about asbestos cloths and mats which covered the flanges and the valves. When they were handled dust was given off. The mats cracked and fell to the floor where they were cleaned up by “a bloke with a broom”. The men who worked with the broom were painters and dockers. When they broomed up the asbestos dust, it created further dust in the air. This happened just about every day. If something was stripped it was dropped on the floor while the work was being done. The painter and docker attended with a broom and a bucket to clean it up.

Evidence of Mr Adams

Pursuant to s 63 of the Evidence Act the plaintiff tendered the affidavit of Mr Adams dated 28 April 1999 filed in his own case in the Tribunal (PX 16). The transcript of his evidence was also tendered (PX 17).
Mr Adams worked between 1949 and 1972 on both T-Class submarines and O-Class submarines. On the O-Class submarines he removed asbestos strips from torpedo tubes which led to dust being generated in a confined space. The same happened with the removal of lagging. Mr Adams recalled that his last exposure at Cockatoo Dockyard was in 1981 when he worked on HMAS Otway grinding the asbestos guiderails in the torpedo tubes. This was about eight weeks of work to do eight tubes. There was no safety equipment and no mask.
In his oral evidence Mr Adams said that he worked in total from 1946 to 1981 at Cockatoo Dockyard. He was a fitter and turner. He gave oral evidence concerning removal of asbestos lagging from the exhaust on O-Class submarines and re-lagging. He said that the asbestos dust on submarines was cleaned up by painters and dockers.

Evidence of Mr Mahony

Pursuant to s 63 of the Evidence Act the plaintiff tendered the transcript of evidence given by Mr Mahony in the matter of Portelli (PX 18). Mr Mahony worked at Cockatoo Island between 1940 and 1986 as a fitter and turner, a charge hand, a foreman, and ultimately a project superintendent. He was in charge of submarine refits. He too described cleaning out the Ferrobestos strips in the torpedo tubes which created dust. He also described working with insulation lagging which created dust. Work with lagging often took place within a confined space leading to significant amounts of dust.

Evidence of Mr Galleghan

Pursuant to s 63 of the Evidence Act the plaintiff tendered the evidence of Mr Robert Galleghan in the matter of Restuccia (PX 19). Mr Galleghan worked at Cockatoo Island between 1956 and 1964 and then between 1966 and 1973. He was an officer of the Painter and Dockers Union between 1974 and 1993, during which time he regularly attended Cockatoo Island.
Mr Galleghan said that when laggers had worked with insulation, the painters and dockers used to clean up insulation which had been dropped on the deck, and carry it from the ship and into bins. He had done that work himself. Mr Galleghan said that from about 1977 onwards the dockyards starting issuing paper masks. After some years the equipment changed to air fed respirators. These came into use in the late 1970s or early 1980s. They were used by the laggers and also by the painters and dockers, who did cleaning up after the laggers.
Mr Galleghan said that on numerous occasions the Navy claimed that its ships were asbestos-free. He said that this assertion was “found to be incorrect” until as late as 1992 when he retired. He said that when supposedly asbestos-free insulation was tested, it had been found to contain a percentage of asbestos. Mr Galleghan said that “the Navy never stopped misleading us”.
Mr Galleghan strenuously disputed that his employment card accurately reflected the periods when he worked at Cockatoo Island.

Admissions by the Defendant in Prior Interrogatories

The plaintiff tendered interrogatories answered by Cockatoo Dockyard Pty Ltd in proceedings brought by David John Lake against that company (PX 12). Mr Lake worked as a fitter at Cockatoo Island between 1963 and 1987. He worked on refits of Oberon class submarines, other Royal Australian Navy Vessels and on non-military dockings. Thermal insulation was removed and renewed by specialist contractors and cleaning up was carried out by painters and dockers (interrogatory 6B(c)).
Asbestos insulation was removed from steam valves and pipes, main and auxiliary turbines, heat exchangers, pumps, diesel engine exhaust and hot oil and water pipes, boiler uptakes and fans, evaporators and pump room plant (interrogatory 8B(d)). Most of the insulation was removed from engine rooms, boiler rooms, auxiliary machinery compartments and pump rooms (interrogatory 8B(e)).
Some but not all fitters were permitted to work in the vicinity of painters and dockers who were cleaning up workplaces and structures such as scaffolding contaminated with debris from asbestos insulation (interrogatory 15B(e)).
Asbestos gaskets were used until 1990 when Cockatoo Dockyard ceased business (interrogatory 20B(h)).
During regular cleaning of components and machinery services during refits, it was possible to see fine dust particles in the light rays indicating the presence of the dust (interrogatory 40B(a)).

Evidence of Mr Taylor Solicitor

The plaintiff tendered the affidavit of Mr David Taylor, solicitor, dated 17 May 2023 (PX 14). Mr Taylor made searches of records kept at Cockatoo Island for the dates set out on the employment card relating to Mr Torok (PX 6). Those dates were:

14 March 1980 – 23 July 1980.

28 July 1980 – 29 July 1980.

8 December 1980.

Mr Taylor searched records kept by the defendant, and also records kept in the National Archives. For the dates on the employment card, he created a list of the vessels said to have been docked at Cockatoo Island. The list as set out in par 9 of his affidavit was as follows:

“Based on the dates from the employment card, and then Cockatoo Dockyard docking records, the plaintiff was present at Cockatoo Dockyard when the following vessels were docked.

Name

Docked

Undocked

BP Sydney

10.3.1980

28.03.1980

HMAS Otway

29.4.1980

15.5.1980

HMAS Ovens

12.5.1980

9.10.1981

Punt 455

13.3.1980

10.4.1980

HMAS Onslow

10.4.1980

28.5.1980

Punt 907

26.5.1980

10.6.1980

HMAS Otama

28.5.1980

23.6.1980

Shell 6

11.6.1980

17.6.1980

HMAS Jervis Bay

20.6.1980

29.9.1980

HMAS Orion

30.6.1980

25.7.1980

HMAS Oxley

10.11.1980

13.12.1980

Punt 1168

01.12.1980

16.12.1980

Punt 1168

28.11.1980

10.12.1980

Mr Taylor, by comparing the records produced by the defendant with those in the National Archives, found that two of the submarines said in the National Archives document to have been present at Cockatoo Island were not listed on the defendant’s records.
Mr Taylor also gave evidence of the further progress of the plaintiff medically, which has been referred to above.

Expert Evidence of Associate Professor Klebe

The plaintiff tendered an expert medical report (PX 13) from Associate Professor Sonja Klebe a pathologist with a special interest in asbestos-related diseases including mesothelioma. Associate Professor Klebe was asked to assume that Mr Torok had exposure in accordance with the history set out in his Statement of Particulars (PX 1).
Associate Professor Klebe explained the “no-threshold dose-response” relationship leading to the development of mesothelioma. She said:

“As cumulative asbestos exposure increases so does the probability and frequency of occurrence of mesothelioma as a consequence. It follows that each pattern/episode of asbestos exposure within an acceptable latency interval contributes causally towards the development of mesothelioma. In this context, the expression ‘no-threshold’ means that no threshold level of exposure has been delineated, below which there is no risk or causal effect for mesothelioma induction.”

Associate Professor Klebe was asked to assume exposure at Cockatoo Island in 1980. Mr Torok was diagnosed with mesothelioma in 2021, resulting in an acceptable latency interval of 41 years.
Associate Professor Klebe was asked to comment upon the finding of pleural plaques upon a CT scan of the lungs of Mr Torok. She said:

“Accordingly, plaques represent a useful benign tissue marker of long-past asbestos exposure, but their presence or absence does not allow quantification or further characterisation of the cumulative exposure or exposures.
…
When a plaque is present, it is a useful marker for exposure to asbestos, but the absence of plaques does not exclude exposure to asbestos. In Mr Torok, this is a somewhat moot point, since plaques are present, in keeping with exposure to asbestos.”

Associate Professor Klebe was asked to comment upon the significance of Mr Torok’s employment as a painter and docker in the shipyard. On the assumption she was asked to make, she said that “the overall exposure described by Mr Torok was well above background exposure”. She also said that the removal or stripping of asbestos-containing insulation materials was known to have produced high airborne asbestos fibre concentrations. Dry sweeping of asbestos-containing dust can produce substantially elevated airborne fibre concentrations. Fibres which become airborne can remain airborne for some hours, resulting in inhalation of the fibres well beyond the time when the work that generated them was actually carried out.

Standard of Proof

Section 140 of the Evidence Act 1995 (NSW) provides as follows:

“140   Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a)  the nature of the cause of action or defence, and
(b)  the nature of the subject-matter of the proceeding, and
(c)  the gravity of the matters alleged.”

Section 140(2)(c), set out above, says that it is appropriate for the court to take into account “the gravity of the matters alleged”. In Briginshaw v Briginshaw (1938) HCA 34; (1938) 60 CLR 336, Justice Dixon said:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”

As senior counsel for the defendant emphasized many times during the Hearing, the onus lies upon Mr Torok to establish that he was exposed to asbestos dust and fibre during his employment at Cockatoo Dockyard, sufficient to cause his disease of mesothelioma. The allegation must be proved on the balance of probabilities.

Findings of Fact

Senior counsel for the plaintiff structured her oral and written submissions (MFI 5) by identifying the evidence in relation to a number of discrete topics. Senior counsel for the defendant also structured his oral submissions in the same fashion. I am grateful to both senior counsel for bringing order to consideration of the oral evidence of several witnesses, and several hundred pages of documents. I set out my findings of fact below, using the headings adopted by both senior counsel.

Duration of Work at Cockatoo Island

Mr Torok estimated that he worked at Cockatoo Island for more than six months. The employment cards of Mr Torok, show that he worked there for 19 weeks and three days, a total of 98 working days. This duration of employment is admitted by the defendant.
Some of the evidence casts doubt upon the accuracy of the employment cards of other employees. Hundreds of workers turned up each day by ferry to work at Cockatoo Island. The evidence shows that many used false names, including the plaintiff himself. It would be remarkable if the employment cards were always accurate. Nevertheless, there is no evidence in the present case to enable me to find that Mr Torok worked at Cockatoo Island for any more than the periods set out in the employment cards.
My findings of fact are:

Mr Torok was employed as a casual painter and docker by Cockatoo Dockyard on the following dates: 14 March 1990 to 23 July 1980; 28 July 1980 to 29 July 1980; and 8 December 1980.

Mr Torok was supplied as “kindred labour” by the painters and dockers union and was engaged by Cockatoo Dockyard as “surplus labour” which was casual labour engaged from time to time when the demand arose.

Nature of Work Done by Mr Torok

In his Form 1 (PX 1) Mr Torok said that he did two jobs at Cockatoo Island. The first was scraping metal surfaces to prepare them for painting, and the second was painting. Senior counsel for the defendant emphasised that these were the two jobs he did at Cockatoo Island. However, with respect, that ignores the oral evidence of Mr Torok that sometimes he was given a broom and was required to sweep up dust and other material. The submission also fails to take into account that much of the work done by Mr Torok was done in confined spaces, inside the hull of a ship or, in particular, inside the hull of a submarine undergoing a refit. It also fails to take account of the evidence of Mr Torok, which was unchallenged, that to deal with the extremely dusty environment he obtained rags from the tool room to cover his neck, face and hair because of the dust.
My findings of fact on this topic are:

Mr Torok was a casual painter and docker who did labouring work on Cockatoo Island.

His main tasks were scraping surfaces to prepare them for painting, and painting those surfaces.

He also was engaged in sweeping up dust and other material using a broom.

He worked in confined spaces, including inside the hull of vessels and inside the hull of a submarine.

Mr Torok was not always working in confined spaces, as some of his work was done on the outside of vessels.

Mr Torok was not provided with any advice concerning dust or any protection against dust.

Mr Torok improvised his own solution to the dust, which was to obtain rags to cover his neck, face and hair.

Mr Torok spent several weeks inside the hull of a submarine undergoing a refit, which involved stripping paint and materials from the submarine, and later painting the torpedo tubes.

This work was done in a very confined space and a particularly dusty environment.

The torpedo tubes had contained Ferrobestos guides, which other workers had removed and ground away prior to Mr Torok working on the torpedo tubes.

Ferrobestos was an asbestos-containing material, and its fibres appeared to float in the air longer than most asbestos fibres.

After the other workers had ground out the Ferrobestos guides in the torpedo tubes, there was no decontamination of the area, and any dust and other material from the grinding operation was removed by brooms and dust pains.

As a matter of common sense, this method would not have removed all of the asbestos fibres from the torpedo tube area.

Working inside the torpedo tubes involved crawling inside them and staying there for long periods to do the work.

Air flowed through the torpedo tubes from other parts of the submarine.

The submarine did contain asbestos insulation, primarily associated with the exhaust of the diesel engines, but also in asbestos gaskets between flanges in pipework.

When a submarine was refitted, this was a lengthy process of up to two years, and everything was taken out from the inside of the submarine. This included the asbestos lagging associated with the exhaust pipes and the asbestos gaskets between the flanges of the pipework.

Given the crude nature of the dust clean-up, asbestos fibres would still have been present within the submarine while Mr Torok was doing his painting work inside the torpedo tubes.

Even if there were no fibres within the torpedo tubes, there would have been fibres on the deck of the submarine near the torpedo tubes, and the simple act of walking along that deck would have disturbed the fibres and sent them into the air and thus into the breathing space of Mr Torok – see the evidence of Associate Professor Klebe.

Mr Torok worked with Mr Tennyson in the engine room of a merchant ship. This was probably the “BP Sydney”, which according to the docking records was at Cockatoo Island for work to be done upon it, when Mr Torok first went to work there.

Such merchant vessels often had asbestos lagging associated with boilers, steam pipes and turbines, and the engine room was a confined space which was very dusty, some of the dust being asbestos fibres from the lagging.

In the confined space of the engine room, the sweeping and cleaning up done by Mr Torok and Mr Tennyson would have generated dust, including asbestos fibres which would have floated in the air and been in the breathing space of both workers.

While there was no evidence about the duration of the work in the engine room, it would not have been a momentary or transient job. Mr Torok would have spend a significant time in the engine room, in that confined and dusty environment, even if he was only there for one day.

Extensive Use of Asbestos at Cockatoo Island

Senior counsel for the defendant very properly conceded that there was asbestos used at Cockatoo Island. It is not an overstatement to say, as put by senior counsel for the plaintiff, that the use of asbestos at Cockatoo Island was “extensive”. All of the evidence tendered in the case from former workers at Cockatoo Island showed that it was used there for decades, and used in a variety of situations, creating a dusty environment wherever it was used.
Further, there are 66 Industrial Histories in evidence, which demonstrate that those 66 workers have either died or been severely disabled because of exposure to asbestos at Cockatoo Island.
My findings of fact on this topic are:

In 1980 there was extensive use of asbestos at Cockatoo Island.

In 1980 the places where Mr Torok was exposed to asbestos dust included the engine room of a merchant ship and inside the hull of a submarine undergoing a refit.

It was not just workers handling asbestos directly who were exposed to dust. Many trades worked together on a refit and the dust generated by direct work with asbestos would have liberated asbestos dust and fibres which remained in the air of the confined space within the hull of vessels undergoing a refit.

There were no precautions taken such as masks, respirators, exhaust systems, decontamination, or vacuuming designed to remove the dust. Workers were simply expected to put up with the asbestos dust, and they did.

Exposure of Painters and Dockers to Asbestos

There was no dispute that many of the painters and dockers at Cockatoo Island were exposed extensively to asbestos dust. The Industrial Histories alone attest to this. So does the evidence of witnesses from past cases, which has been summarised above.
Some of the asbestos lagging and de-lagging work was done directly by painters and dockers. Mr Torok was not involved in such work. He was employed only as a general labourer.
My findings of fact are:

Painters and dockers at Cockatoo Island were exposed indirectly to asbestos by working near trades who were handling asbestos insulation materials.

Painters and dockers at Cockatoo Island were indirectly exposed to asbestos by working within confined spaces such as inside the hull of a vessel where there was little or no ventilation, and asbestos was being handled by other trades.

Painters and dockers, including Mr Torok, were exposed to asbestos dust at Cockatoo Island by sweeping up dust and other material, and carting that material off a vessel to be dumped into bins.

Painters and dockers who did sweeping at Cockatoo Island were exposed to asbestos dust by the method of sweeping required by the defendant, which was to use brooms and dust pans, thus stirring up dust and putting asbestos fibres into the air and breathing space of painters and dockers.

No Proper Precautions

There was no dispute that if Mr Torok was exposed to asbestos at Cockatoo Island, other than a trivial exposure, that the defendant is liable in damages. There is no evidence of any proper precautions being taken, and indeed the evidence is to the contrary.
My findings of fact are:

No warnings were given to painters and dockers at Cockatoo Island concerning the dangers of asbestos dust.

No steps were taken to guard against painters and dockers being exposed to asbestos dust at Cockatoo Island.

Complaints about having to work with asbestos and the dusty conditions were basically ignored and the painters and dockers were fobbed off whenever they raised these complaints.

Asbestos Remains in the Environment

I accept the evidence of Associate Professor Klebe, which was unchallenged. My findings of fact are as follows:

The removal and stripping of asbestos containing insulation materials was known to have produced high airborne asbestos fibre concentrations.

Dry sweeping of asbestos-containing dust can produce substantially elevated airborne fibre concentrations.

Asbestos fibres which become airborne can remain airborne for some hours, resulting in inhalation of the fibres well beyond the time when the work that generated them was actually carried out.

Pleural Plaques

The radiological evidence shows that Mr Torok has pleural plaques visible upon a CT scan of the lungs.
My findings of fact are as follows:

Mr Torok has pleural plaques visible upon a CT scan of his lungs.

Pleural plaques are a useful benign tissue marker of long past asbestos exposure.

The presence of plaques does not allow quantification or further characterisation of the cumulative exposure to asbestos.

Other Exposure To Asbestos

In his Form 1 Statement of Particulars, which Mr Torok verified on his oath in oral evidence, Mr Torok said that about 20% of his past exposure to asbestos, in particular asbestos building products, occurred when he was employed by Mr Heptinstall doing demolition work (PX 1, answers 4.7 and 4.8 in relation to Mr Heptinstall).
Senior counsel for the plaintiff submitted that there was no evidence of any exposure other than exposure at Cockatoo Island. I reject this submission. While Mr Torok gave no direct evidence of exposure during the demolition work, it was he who volunteered that such work had exposed him to asbestos.
My findings of fact are as follows:

Mr Torok had asbestos exposure during his employment later in the 1980s with Mr Heptinstall, while doing demolition work.

The amount of exposure during this demolition work was significantly less than the exposure of Mr Torok to asbestos while working at Cockatoo Island.

All exposure which is non-trivial makes a material contribution towards the development of mesothelioma.

There is no threshold level of exposure that has been delineated, below which there is no causal effect for mesothelioma induction (per Associate Professor Klebe).

The exposure to asbestos during the work with Mr Heptinstall made a contribution towards the induction of mesothelioma in Mr Torok, which was a lesser contribution to causation of the disease than exposure at Cockatoo Island.

Conclusion on Liability

I am satisfied on the balance of probabilities that the plaintiff was exposed to asbestos in the course of his employment at Cockatoo Island and that such exposure caused his mesothelioma.
I am fortified in reaching that conclusion, by the overwhelming evidence which shows the extensive use of asbestos at Cockatoo Island, the dusty conditions that painters and dockers worked in, the confined spaces they worked in and the lack of any precautions taken by Cockatoo Dockyard for the safety of their workers. Mr Torok worked at Cockatoo Island for a period of just over 19 weeks, and the nature of induction of mesothelioma is that sufficient exposure on any one day could have caused his disease.
To my mind it is glaringly improbable that a painter and docker who carried out labouring work for 98 working days at Cockatoo Island in 1980 would not have had causative exposure to asbestos dust.

Quantum of Damages

The plaintiff claims general damages, interest on past general damages and damages for loss of expectation of life. The plaintiff made no claim for economic loss. The plaintiff made no claim for medical expenses or domestic or nursing assistance, as these expenses have been and will be paid by the Dust Diseases Authority.
The plaintiff tendered a bundle of medical material together with a Medical Chronology (PX 5). The defendant tendered no medical material, although the defendant had obtained reports from specialists including a radiologist and a pathologist.
In January 2018 the plaintiff reported that he had difficulty breathing during a consultation with this general practitioner. He was sent for a CT scan of the chest on 16 August 2008 which indicated plaques on his lung.
The plaintiff’s shortness of breath continued to increase. By August 2021 his weight had decreased, he was suffering from coughing fits and he was unsteady on his feet. A CT scan performed on 20 August 2021 revealed tumours in the chest.
On 20 August 2021 the plaintiff attended Prince of Wales Hospital. A drain was inserted and 4.5 litres of fluid was drained from his right side. He was diagnosed with mesothelioma and given a prognosis of three months. The plaintiff was discharged from Prince of Wales Hospital on 8 September 2021. He then commenced to receive weekly domestic assistance. The plaintiff suffered from two falls in September 2021, one while he was cleaning the fridge and another while he was carrying the garbage outside. By then he was receiving assistance from a friend with shopping, cleaning and laundry. His pain was becoming worse when he was mobilising.
On 1 October 2021 the plaintiff was re-admitted to Prince of Wales Hospital when one litre of fluid was drained from his right side. If he lay down, this triggered a dry cough. He had twinges of pain. The plaintiff was discharged from Prince of Wales Hospital on 6 October 2021.
The plaintiff continued to consult his general practitioner and was receiving home nursing. On 17 January 2022 the plaintiff was admitted to St Vincent’s Hospital Sacred Heart Hospice with oedema and cellulitis in the legs. He was discharged from that hospice on 21 February 2022.
Mr Torok first experienced shortness of breath in January 2018 and has suffered quite severe symptoms and restrictions since August 2021. He has recently deteriorated to the point where he is now in palliative care. Mr Torok has suffered for a longer period than many plaintiffs who come before the Tribunal. Senior counsel for the plaintiff submitted that the appropriate figure for general damages was more than $400,000, and could be more than $450,000. Senior counsel for the defendant submitted that the appropriate figure for general damages was $375,000.
Taking into account the long period of suffering of Mr Torok, his two hospital admissions and one hospice admission, and his continuing and worsening symptoms, I find that the appropriate figure for general damages is $420,000.
I award interest upon $300,000 of past general damages at 2% per annum for five years. The calculation is: $300,000 x 2% x 5 = $30,000.
The plaintiff has just turned 83 years of age. On the Medium Life Tables he has a life expectancy of 7.5 years. While he was a smoker with a 55 pack-year history, there was no medical evidence to justify an award for anything other than 7.5 years. I award $7,500 for loss of expectation of life.
The total award of damages is:

General damages

$420,000

Interest on past general damages

$30,000

Loss of expectation of life

$7,500

TOTAL

$457,500

Costs

It is appropriate to make an order for costs to follow the event, subject to one matter.
The third day of the Hearing was Monday, 27 March 2023. Senior counsel for the plaintiff, after tendering some documents which proved to be uncontroversial, sought an adjournment to make further enquiries to obtain documentary material concerning HMAS Jervis Bay, a list of the submarines berthed at Cockatoo Island in 1980 and material from the Department of Defence and Veterans Affairs. The plaintiff sought one month to obtain that material. In order to accommodate the convenience of both senior counsel, the matter was then adjourned to resume on 17 May 2023.

The defendant has made it plain a long time ago that its case was that the plaintiff could not establish any causative exposure to asbestos as a result of his employment on Cockatoo Island. The material obtained for the plaintiff as a result of the adjournment was tendered at the resumed Hearing and went to establish the plaintiff’s circumstantial case that, while the plaintiff himself could not give direct evidence of exposure to asbestos, the Tribunal should find that he was so exposed.
Because the defendant telegraphed its attitude to proof of exposure at a very early stage, in my view the plaintiff should have had all of the necessary material ready to be tendered at the Hearing in March 2023. The need for an adjournment was to accommodate the wish of those who represented the plaintiff to obtained further evidence on the real issue in the case. In my view the costs of 27 March 2023 were wasted, and the costs order in favour of the plaintiff should not include those costs.

Orders

For the reasons set out above the orders of the Tribunal are:

Grant leave to the plaintiff nunc pro tunc pursuant to the Civil Liability (Claims Against Third Party Insurers) Act 2017 for the plaintiff to bring these proceedings.

Judgment for the plaintiff against the defendant for $457,500.

Order each party to pay his or its own costs of the Hearing on 27 March 2023.

Subject to Order (3) above, order the defendant to pay the plaintiff’s costs.

**********

Decision last updated: 23 May 2023

Medium Neutral Citation:	Torok v Allianz Australia Insurance Ltd [2023] NSWDDT 2
Hearing dates:	23, 24, 27 March 2023, 17, 18, 19 May 2023
Date of orders:	23 May 2023
Decision date:	23 May 2023
Before:	Russell SC DCJ
Decision:	(1) Grant leave to the plaintiff nunc pro tunc pursuant to the Civil Liability (Claims Against Third Party Insurers) Act 2017 for the plaintiff to bring these proceedings. (2) Judgment for the plaintiff against the defendant for $457,500. (3) Order each party to pay his or its own costs of the Hearing on 27 March 2023. (4) Subject to Order (3) above, order the defendant to pay the plaintiff’s costs.
Catchwords:	DUST DISEASES — damages — general damages — interest on past general damages — damages for loss of expectation of life DUST DISEASES — evidence — historical evidence — Industrial Histories of former workers at Cockatoo Island — evidence of deceased or unavailable workers from earlier cases — admissions by defendant in prior interrogatories DUST DISEASES — prescribed dust diseases — mesothelioma — whether plaintiff had more than de minimis exposure to asbestos — where plaintiff could give no direct evidence of exposure — plaintiff employed as casual painter and docker by Cockatoo Dockyard Pty Ltd — general labourer — duration of work — nature of work — extensive use of asbestos at Cockatoo Island — exposure of painters and dockers to asbestos — no proper precautions — asbestos remains in the environment — pleural plaques — other exposure to asbestos
Legislation Cited:	Civil Liability (Claims Against Third Party Insurers) Act 2017 (NSW) Evidence Act1995 (NSW), ss 63, 140
Cases Cited:	Briginshaw v Briginshaw (1938) HCA 34; (1938) 60 CLR 336
Category:	Principal judgment
Parties:	Attila Torok (Plaintiff) Allianz Australia Insurance Ltd (Defendant)
Representation:	Counsel: F McLeod KC (Plaintiff) D Toomey SC (Defendant) Solicitors: Segelov Taylor (Plaintiff) Rankin Ellison (Defendant)
File Number(s):	DDT 2022/212443

Name	Docked	Undocked
BP Sydney	10.3.1980	28.03.1980
HMAS Otway	29.4.1980	15.5.1980
HMAS Ovens	12.5.1980	9.10.1981
Punt 455	13.3.1980	10.4.1980
HMAS Onslow	10.4.1980	28.5.1980
Punt 907	26.5.1980	10.6.1980
HMAS Otama	28.5.1980	23.6.1980
Shell 6	11.6.1980	17.6.1980
HMAS Jervis Bay	20.6.1980	29.9.1980
HMAS Orion	30.6.1980	25.7.1980
HMAS Oxley	10.11.1980	13.12.1980
Punt 1168	01.12.1980	16.12.1980
Punt 1168	28.11.1980	10.12.1980

General damages	$420,000
Interest on past general damages	$30,000
Loss of expectation of life	$7,500
TOTAL	$457,500