Van Soest v BHP Billiton Limited
[2013] SADC 81
•17 June 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
VAN SOEST v BHP BILLITON LIMITED
[2013] SADC 81
Judgment of Her Honour Judge Parsons
17 June 2013
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE
REASONABLE FORESEEABILITY OF DAMAGE - CAUSATION
The plaintiff was employed by the defendant as a painter and docker at the shipyard in Whyalla for 12 weeks in 1962. The plaintiff inhaled asbestos dust. The plaintiff was diagnosed with mesothelioma in late 2011. The defendant’s knowledge of the risks associated with asbestos dust in 1962. Whether the risk of injury was reasonably foreseeable. Whether the defendant breached its duty of care to the plaintiff; whether such breach caused the plaintiff’s dust disease. On the evidence and by application of the statutory presumptions contained in s 8 of the Dust Diseases Act 2005 both foreseeability and causation established.
Held: The risk of contraction of a dust disease was reasonably foreseeable. The defendant breached its duty of care by failing to take reasonable steps which were available to minimise the risk. The defendant’s failure of its duty of care caused or materially contributed to the plaintiff’s dust disease. Declaratory judgment on liability with the quantum of damages adjourned pending proof of past medical and other out of pocket expenses.
Dust Diseases Act 2005 (SA); Dust Diseases Regulations 2009 (SA); Country Factories Act 1945 (SA); District Court Act 1991, referred to.
Parker v BHP Billiton Limited [2011] SADC 104; Cadoo v BHP Billiton Limited [2012] SADC 31; Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; BHP Billiton Limited v Parker (2012) 113 SASR 206; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; McPherson's Limited v Eaton (2005) 65 NSWLR 187; Seltsam Pty Limited v McNeil (2006) 4 DDCR 1; The Bell Group Ltd (In Liq) v Westpac Banking Corporation (No.9) [2008] WASC 239; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307; AMACA Pty Limited (Under NSW Administered Winding Up) v Booth & Another and AMABA Pty Limited (Under NSW Administered Winding Up) v Booth & Another [2011] 246 CLR 36; AMABA Pty Limited (Under NSW Administered Winding Up) v Booth and AMACA Pty Ltd (Under NSW Administered Winding Up) v Booth [2010] NSWCA 344; Hamilton v BHP Billiton Ltd [2012] SADC 25; Cockatoo Dockyard Pty Limited v Browne [2001] NSWCA 58; The Council of Shire of Wyong Council v Shirt (1980) 146 CLR 40; Bonnington Castings Limited v Wardlaw [1996] AC 613; Strong v Woolworths Limited (2012) 285 ALR 420; Allianz Australia Ltd v Sim; Worksover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (in liq) v Sim [2012] NSWCA 68; Dasreef Pty Limited v Hawchar [2010] NSWCZ 154; Amaca Pty Ltd v Ellis (2010) 240 CLR 111; March v Stramare (E & M H) Pty Limited and Another (1991) 171 CLR 506, considered.
VAN SOEST v BHP BILLITON LIMITED
[2013] SADC 81Introduction
Undisputed background
The Whyalla Shipyards
The PJ Adams
The Plaintiff’s Exposure to Asbestos at the Whyalla Shipyards
The Sources of Lay Evidence
The Plaintiff’s Duties Generally
The accommodation area
The engine room – the environment
The engineroom – the sequence of work
The engineroom – the plaintiff’s duties
The Plaintiff’s Work History Other than BHP
The Diagnosis
Did BHP know the Plaintiff was at Risk in 1962?
The Presumption of Knowledge
Scientific, Medical and Industrial Material Available up to 1962
The National Health and Medical Research Council
Actual Knowledge Pre 1962
The 1962 Conciliation and Arbitration Commission Proceedings
What BHP Knew as a Result of the 1962 CCAC Proceedings
Conclusion on Foreseeability
The Wilson Report
The 2006 Wilson Interview
Post 1968 BHP Whyalla Records
Expert Evidence as to Breach of Duty and Causation
Professor Musk
Professor Henderson - Reports
Professor Henderson - Oral Evidence
Mr Kottek – Reports
Mr Kottek – Oral Evidence
Mr Rogers – Report
Mr Rogers – Oral Evidence
Conclusions on the Plaintiff’s Exposure
Did BHP Breach its Duty of Care to the Plaintiff?
Breach of Statutory Duty
Breach of Contract
Causation - Submissions
Plaintiff’s submissions
BHP’s Submissions
Conclusion on Causation
Conclusion
Introduction
The plaintiff, aged 73, has been diagnosed with malignant pleural mesothelioma for which he seeks damages against the defendant, BHP Billiton Limited (“BHP”). The plaintiff claims that the contraction of this dust disease was caused or materially contributed to by exposure to respirable asbestos dust and fibre in the course of his employment with BHP in 1962 when he was working as a painter and docker at the fit-out wharf at the Whyalla Shipbuilding and Engineering Works (“the Whyalla Shipyards”). Whilst he had other exposure to asbestos in his working life he says that the exposure at the Whyalla Shipyards was the most significant.
The plaintiff relies on the presumption created by s 8(2) of the Dust Diseases Act 2005 (“Dust Disease Act”) and Reg 4 of the Dust Diseases Regulations 2006 (“Dust Disease Regs”) that as an employer installing asbestos products, BHP is presumed, in the absence of proof to the contrary, to have known that exposure to asbestos dust could cause a dust disease.
In addition he alleges, that by the time he was exposed to asbestos, there was a large body of scientific, medical and industrial material dating from the early 1900s which demonstrated a gradually developing knowledge of the hazards associated with asbestos; that such material demonstrated a risk of injury which was not farfetched or fanciful; that BHP knew there was a risk of injury or alternatively should have known of such a risk from material which was available to it and should have taken action to protect him from the risk of injury.
He alleges that BHP breached the duty of care it owed to him as an employer by permitting him to work in an atmosphere containing significant amounts of asbestos dust and fibre; that it failed to take any precautions to protect him from the exposure notwithstanding its knowledge; that it did not take any steps to assess the nature and extent of the risk to his health and did not warn him and other employees of that risk.
The plaintiff also alleges that this constituted a breach of the statutory duty which BHP owed him and breached the terms of his contract of employment. Although I note that these matters where of subsidiary importance in the presentation of the plaintiff’s case.
The plaintiff asserts that, notwithstanding that he may have been exposed to asbestos in employment with other employers and whilst self employed before or after employment at the Whyalla Shipyards, evidence of his work duties and expert medical opinion support the conclusion that his employment with BHP caused or materially contributed to the development of mesothelioma resulting in loss and damage and warranting an award of exemplary damages.
BHP disputes the plaintiff’s claim for damages. It does not dispute the diagnosis of mesothelioma however it denies that it was negligent or breached its statutory duty to the plaintiff.
It concedes that the plaintiff was exposed to asbestos but asserts that the exposure was intermittent and low. It concedes that it owed a duty of care to the plaintiff as his employer but disputes the scope of that duty; it disputes that it failed to take reasonable care in respect of a known or foreseeable risk to the plaintiff in the particular circumstances of his work.[1]
[1] Defendant’s closing submissions paras 144 and 112
BHP accepts that there was documentary material demonstrating that it had actual knowledge in 1962 that asbestos was a general industrial hazard in the sense that sufficient exposure to asbestos was capable of giving rise to a risk of asbestosis. However it disputes that it had actual knowledge that the plaintiff’s specific asbestos exposure placed him at risk.[2]
[2] Defendant’s closing submissions para 114
BHP challenges the plaintiff’s reliance on s8(2) of the Dust Diseases Act arguing that the presumption goes only to knowledge in the general sense and does not relate to the plaintiff’s specific exposure and that, in any event, the presumption specific to the plaintiff is rebutted by the facts.
If the Court is satisfied that BHP knew or ought to have known that the plaintiff was at risk, BHP argues that the plaintiff has not established any breach of its duty of care because he has not established any concrete steps that it could or should have taken to reduce exposure.
BHP does not dispute that exposure to asbestos can cause mesothelioma and that the plaintiff’s alleged exposure at the Whyalla Shipyards was capable of causing mesothelioma[3]. However it argues that there is an insufficient causal link between the plaintiff’s exposure at the Whyalla Shipyards and the onset of mesothelioma. BHP contends that the plaintiff’s evidence goes no further than establishing that the BHP exposure increased the risk of mesothelioma.
[3] Defendant’s closing submissions para 188
BHP disputes that the plaintiff is entitled to damages and in particular, exemplary damages.
The issues are:
·What was the nature of the plaintiff’s exposure to asbestos at the Whyalla Shipyards and elsewhere?
·Was there a reasonably foreseeable risk of injury; is the statutory presumption rebutted on the basis of the findings of fact as to the Whyalla Shipyards exposure?
·Did BHP breach its duty of care and if so how?
·If BHP was negligent did its negligence cause or contribute to the development of mesothelioma?
·Did BHP breach its statutory duty or its contractual obligation to the plaintiff? The issue with respect to breach of statutory duty is only of importance in the event that negligence is not established.
·What is the plaintiff’s resultant loss and damage?
Undisputed background
The Whyalla Shipyards
At all relevant times BHP’s general operations included steel production, coal mining, iron ore mining and the mining of other metals, ship building and shipping. Such operations were conducted at a variety of locations throughout Australia. The BHP annual report of 1962[4] demonstrates that it was a very large and well resourced enterprise.
[4] Exhibit P18 BHP Annual Reports 1961 and 1962
Between 1940 and 1978 BHP owned and operated the Whyalla Shipyards as a division of the Whyalla Shipbuilding and Engineering Works which also included a steelworks and operations at Iron Knob and Iron Baron. During the shipyard’s life 66 vessels were built including freighters, bulk carriers, container ships, ferries and tankers. It was one of Australia’s largest shipyards employing up to about 1800 people by 1974[5]. By 1962, 36 ships had been completed.[6]
[5] Exhibit P33 Whyalla Shipbuilding and Engineering Works Souvenir Magazine
[6] Exhibit P16 Schedule of Ships constructed at Whyalla between 1941 and its closure
The process of ship construction was twofold; the structural work was completed at the slipway. A ship was then “launched” from the slipway and floated to the nearby fitting-out wharf.
At the fitting-out wharf machinery and other internal fixtures were installed, and made good for sea service by a variety of employees including boilermakers, welders, plumbers, fitters, electricians, mechanics, sheetmetal workers, carpenters and painters and dockers and contractors, including laggers.
BHP engaged two contractors to undertake the bulk of the insulation work. The two companies were Newbrook Insulation Company Pty Ltd (“Newbrook”) which undertook most of the spraying of bulkheads and deckheads with a product known as limpet asbestos and Bell’s Asbestos and Engineering (Australia) Limited (“Bells”) which mainly lagged pipes, machinery and other surfaces using a variety of products. These companies were contracted to BHP for this purpose for many years both before and after 1962.
The PJ Adams
It is common ground that the plaintiff only worked on one ship; the PJ Adams and that this is the only place where he could have been exposed to asbestos.[7]
[7] Defendant’s closing submissions para 78
The PJ Adams was a large steam powered oil tanker. She commenced fitting-out on 10 January 1962, undertook sea trials between 16 and 18 October 1962 and was completed on 29 October 1962.[8]
[8] P16
The construction specifications[9] contain relevant information about the ship lay out and the insulation requirements. The engine and boiler rooms were located at the stern of the ship directly below the accommodation areas. The boilers were mounted above and aft of the main propulsion turbines which were housed in the engineroom. There was a bulkhead between the boilerroom and the engineroom, but they were connected.[10]
[9] Exhibit P20 Specifications for the PJ Adams
[10] Exhibit P19 Sketch of the PJ Adams
In the engineroom and boilerrooms thermal insulation of boilers, auxiliary machinery and pipework was specified and fireproofing insulation was specified for inside the engine and boiler casings, the underside of the engineroom and boiler room deckheads, internal bulkheads, deck beams and stiffeners.[11]
[11] P20 clause 3.48
The general process by which the insulation work was undertaken was not in dispute. Limpet asbestos came in powder form and was prepared in a mixing machine. The machine was some distance away from the operator. There was a hose attached to the machine with an applicator gun at the end. The material was blown through the hose, the operator controlled the application with the gun and applied the material to the relevant surface with a fine film of water which helped to bond the material together.[12]
[12] Ewbank tr 250
At the Whyalla Shipyards this spraying was undertaken at times when most other workers were not present in the vicinity, such as on a night shift but this process produced varying amounts of overspray which clung to other surfaces and required cleaning off.[13]
[13] Ewbank tr 249 & 318; Hannan tr 107 &154; Schrapel tr 168; Exhibit D11 SA Health Commission Environment and Occupational Health Division File No: 08/128/008 tab 19 Health Hazards from Asbestos in Shipbuilding – Whyalla Shipbuilding and Engineering Works (“Wilson’s report”)
As to the engine and boiler system including pipework, the technical specifications of the PJ Adams nominated the types of products to be applied and the thickness of the insulation required to accord with “accepted marine practice”. Products referred to in the specifications included K-lite, Millboard, Caposite “85% Magnesia” asbestos cloth, removable asbestos mattresses, asbestos rope, “85% plastic Magnesia” over wire mesh and trowelled with hard-setting composition”, sprayed limpet asbestos, Magnesia blocks, and high temperature (“HT”) insulation[14]. These various materials and others used are depicted and described in brochures published by Bells and Hardie’s[15]. The materials contained varying amounts and types of asbestos fibres. There is no dispute that the materials contained varying proportions of amosite (brown/grey asbestos) and chrysotile (white asbestos), for example the product 85% Magnesia contained 15% amosite. There is a dispute about whether the materials contained crocidolite (blue asbestos) which is referred to later.
[14] P20 cl 5.141
[15] Exhibit P12 Bell’s Asbestos and Engineering Pty Limited; Exhibit P13 Hardie’s Insulation Materials and: Exhibit P14 Hardie’s 85% Magnesia
When insulating pipes, moulded pipe coverings of different lengths, diameters and thicknesses were fitted over the pipes. There was also a block form and a powder form which, when mixed with water and applied to a surface, formed a hard set covering.
Asbestos products were not used exclusively for all insulation. Some pipework, not reaching very high temperatures, such as the accommodation hot water system was insulated with canvas and felt. In refrigerated areas cork was applied. It is not disputed by the plaintiff that a non-asbestos product, Formica was used to line the cabin bulkheads rather the asbestos product Marinite.[16]
[16] Exhibit P20 cl 3.2
The Plaintiff’s Exposure to Asbestos at the Whyalla Shipyards
It is common ground that the plaintiff was employed at the Whyalla Shipyards from 3 July 1962 until 21 September 1962, which included a period of 8 days of sick leave. After deducting the sick leave he worked a total of 57 days or 11 working weeks. At the time he was 22 years old.[17]
[17] Exhibit P15 Plaintiff’s Employment Record
The Sources of Lay Evidence
The evidence relied upon by the plaintiff as to the nature and level of his BHP exposure came from various sources; the plaintiff described the work he performed and the working environment. Evidence was also adduced from a number of former BHP employees who worked at the fitting-out wharf over many years. Mr Brian Hunter was a plumber between 1960 and 1966 and an engineering draftsman from 1966 to 1976; Mr Robert Hannan was a boilermaker between 1959 and 1978; Mr David Schrapel was a boilermaker between 1954 and 1964. Each gave evidence about the work they performed, the sequence of work when fitting-out a ship, their observations of the work of others and their experience and observations of the working environment, particularly in the engine rooms of various ships including the PJ Adams. Mr Ian Ewbank was a Bells’ lagger from 1965 and therefore did not work at the fitting-out wharf at the same time as the plaintiff and did not work on the PJ Adams. He gave evidence about the usual lagging products and processes used by Bells as part of its lengthy contractual arrangement with BHP.
In the context that the method and sequence of work at the fitting-out wharf remained substantially the same during the life of the shipyards, a matter not disputed by BHP[18], I accept that the evidence of these witnesses is capable of providing corroboration of the plaintiff’s account.
[18] Defendant’s closing submissions para 34
I take a similar view in relation to the statements or affidavits of six deceased former BHP employees and the sworn evidence of a seventh given in other proceedings. Each former employee had previously brought proceedings for damages against BHP in relation to a dust disease and each described general working conditions and their respective exposure to dust at the fitting-out wharf including on the PJ Adams. The tendered affidavits[19] were from Mr Newton Brooks, dated 22 October 1998; Mr Brooks was a former principal of Newbrooks who undertook bulkhead and deckhead spraying; Mr William John Cadoo, dated 17 June 2002, in which he described his work as a welder between 1961 and 1964; Mr George Campbell, dated 13 July 2001, in which he described his work as a painter and docker between 1953 and 1954, a ship riveter/boilermaker between 1955 and 1958 and a boilermaker between 1961 and 1964; Mr Geoffrey Ferguson Pope, dated 19 September 2002, in which he described his work as an electrician between 1960 and 1966; Mr Gerd Richter, dated 23 August 2002, in which he described his work as a Bells’ lagger between 1956 and 1963; Mr Oflvan Zunic, dated 13 July 2001, who described his work as a painter and docker between 1962 and 1978 and the transcript of evidence of the examination of Mr Harry Michael Stewart in Parker v BHP Billiton Limited and Cadoo v BHP Billiton Limited[20] in which he described his work as a draftsman between 1962 and 1978.
[19] Exhibit P28 Affidavits/Evidence of Deceased BHP Workers
[20] Exhibit P35 Documents Relating to the Evidence of Gordon Stewart in Parker & Cadoo; Parker v BHP Billiton Ltd [2011] SADC 104, Cadoo v BHP Billiton Ltd [2012] SADC 31
Caution is called for in assessing the reliability of the plaintiff’s evidence and the corroborative value of the other testimony. Because of the plaintiff’s ill health and a concern about his life expectancy, his evidence was taken on Commission in Perth on 19 April 2012. I did not personally see or hear him give his evidence however I have viewed the video recording of those proceedings from which I am able to say that he presented as a non-emotive and cooperative witness. I gained the impression that he answered questions to the best of his ability. There was no impression of exaggeration. It is also clear that he was giving evidence whilst suffering from physical discomfort and fatigue.[21]
[21] Tr 4 and 56 Perth
I am satisfied that each of the plaintiff’s lay witnesses were generally endeavouring to assist the Court to the best of their ability. I could detect no deliberate exaggeration.
However the passage of time may influence the accuracy of memory and in this case some 50 years have passed since the PJ Adams was at the fitting-out wharf. There were some internal inconsistencies and differences between the accounts of witnesses. I will deal with these issues as and when the need arises when making findings. However one particular inconsistency in the plaintiff’s evidence serves as an example of the tricks of memory. When the plaintiff gave a history to Professor Arthur William Musk, his treating physician early in his treatment, his recollection was that he worked at the Whyalla Shipyards for about eighteen months. He then thought he worked there for six months. Ultimately he agreed that the BHP records correctly recorded a period of two and a half months[22]. His explanation for the error was that he was doing the best he could with his memory of 50 years ago. So much is unsurprising. Such an error does not mean that the memory of the work he performed must be faulty but it does highlight the need for caution. Specific areas of concern are dealt with in the course of making findings.
[22] Tr 43 Perth
As to the statements and evidence of the deceased former employees I bear in mind that these were given in the course of their own respective damages claims against BHP which might influence the objectivity of the various accounts. In addition the statements were made many years after the subject events and the material was not the subject of cross-examination in these proceedings.
BHP also called oral evidence going to the issue of the plaintiff’s exposure to asbestos. Mr Max Douglas, who was BHP’s Superintendent (Industrial Relations) from October 1960 to early 1969, gave evidence of his recollections of attending the fitting-out wharf as part of his duties. He was a cooperative witness however his evidence must also be considered in light of the passage of time. He also gave evidence about his involvement as an advocate representing BHP in proceedings in the Commonwealth Conciliation and Arbitration Commission (“CCAC”) in 1962[23]. Those proceedings were contemporaneous with the period of the plaintiff’s employment. The transcript of those proceedings was relied upon by BHP to corroborate Mr Douglas’ evidence and to rebut the plaintiff’s evidence about the extent of his exposure to asbestos dust and fibre during the period of his employment. The evidence of Mr Douglas and the 1962 CCAC proceedings also goes to the issue of BHP’s knowledge about the dangers of asbestos exposure at that time.
[23] Exhibit D6 Industrial Relations Proceeding Documents 1961-1962 and also tendered as P31 Transcript in relation to the Ship Painters & Dockers Award 1960
The Plaintiff’s Duties Generally
The plaintiff was born on 23 January 1940 and is now 73 years of age. He came to Australia from Holland at the age of 15 and settled with his parents and siblings in Whyalla. After attending night school he worked as an apprentice bricklayer with his father for about two to three years. He did not complete the apprenticeship. He then obtained employment with National Tyre Service firstly as a tyre fitter and then, after about three months, as a salesman. He did that for about three years before obtaining employment with BHP.
At BHP he was employed as a painter and docker and classified as a brush hand. He was a member of the Federated Ship Painters and Dockers Union of Australia (“the Painters and Dockers Union”)[24]. He worked from 7.20 or 8am to 4.30pm five days per week and only undertook occasional overtime. Each shift he reported to his foreman and was given his duties for that day on the PJ Adams where he undertook general labouring work.
[24] Tr 46 Perth
Painting was a large part of his duties. It took up 50% of his time. He painted the internal unfinished metal surfaces of tanks with a rust proof paint. It was unpleasant work in confined spaces where the presence of fumes required the use of a respirator.
It is conceded that there was no exposure to asbestos in this painting work. As the tanks were forward of the engineroom he gained access to the work area from the deck in front of the engineroom. On days that he did this work he did not have to go into the engineroom unless working part of the day in each place.[25]
[25] Tr 21, 30 and 59 Perth
The remaining 50% of his time was spent working in the engineroom and occasionally in the accommodation area situated in the super structure of the vessel above the engineroom, where he assisted trades and undertook cleaning. He was confused about whether he did any painting in these areas. Initially he thought the majority of the time he spent in the engineroom involved painting. Later he said he probably painted in the engineroom and then, when pressed, he said he could not be sure whether he did. His final position, and the one which I accept, is that he did not paint in the engineroom or the accommodation area.[26]
[26] Tr 12, 61, 63 and 65 Perth, the plaintiff was doing his best but seemed confused.
The case for asbestos exposure is confined to the plaintiff’s work in the engineroom and the accommodation area.
The accommodation area
The plaintiff said the accommodation area was somewhere in the superstructure of the stern of the ship behind the engineroom. There were small rooms the size of two bunks which were constructed of steel. He spent only a short amount of time working in that area; probably only a matter of days[27]. He assisted carpenters who were placing laminated sheets on the bulkheads. He also performed general tidying up following the work of the carpenters.
[27] Tr 26 & 28 Perth
I find that the panels which were affixed to the bulkheads were made of a non-asbestos product. The specifications required that “all accommodation bulkheads in officers and crews quarters are to be lined with “Formica” in approved colours”; later described as “Formica Faced plywood”. Mr Schrapel also observed carpenters applying “Formica” in the accommodation area. Mr Hunter made a similar observation.[28]
[28] P20 cls 3.2, 3.11 & 3.13 and Hunter tr 187
I find that there was no exposure to asbestos when working in the vicinity of the laminated panels.
The plaintiff cleaned down the steel bulkheads before laminated panels were fixed with glue. He said the bulkheads were coated with a grey substance with the appearance of coarse sandpaper. He believed that it had been sprayed on during the night shift. He used a hand brush to clean the bulkheads. He said this was required so that the glue, used to fix the laminated panels, would stick to the bulkheads. He said brushing the bulkheads produced dust. Loose bits also came off. He said he swept up the dust and debris from the floor, placed it in a dustpan and then into a bucket.[29]
[29] Tr 26-27 Perth
The plaintiff’s only possible exposure to asbestos in the accommodation area would have been if the grey material which he brushed off the bulkheads was insulation material containing asbestos.
The evidence about this was as follows; Mr Ewbank said bulkheads and deckheads abutting the accommodation area were sprayed from the engineroom side of the structure not the accommodation side. It was done as a fireproof base. When he worked in accommodation areas he lagged hotwater pipes but did not see any spraying. Mr Hunter gave contrary evidence. He said that he saw asbestos material being sprayed onto bulkheads and deckheads in the accommodation areas of ships and that this was done by Bells; the purpose being to reduce heat coming from the engineroom. He said on some ships this was done when the accommodation area was constructed at the slipway. At one point in his evidence he said that he did not see anything on the bulkheads and deckheads of the engineroom which resembled that which he had seen in the accommodation area after spraying. However later he said that he did see areas of the engine and boiler rooms that had been sprayed. Mr Hunter also said that other parts of the accommodation area which abutted other heat sources such as the galley were sprayed but where there was no heat source the bulkheads were just lined in the ordinary way with Formica and not sprayed.[30]
[30] Ewbank tr 316 & 280 and Hunter tr 44, 93, 95, 46 &94
The specifications[31] required fire proof insulation to the inside of engine and boiler casings and the underside of decks which formed the crown of the engine and boiler rooms and specified the thickness of insulation required. Bulkheads of galleys adjoining social rooms and living quarters were to be insulated in a similar manner and accommodation deckheads, which were exposed to the weather, were to be suitably insulated.
[31] P20
I prefer Mr Ewbank’s evidence to that of Mr Hunter who was mistaken about the placement of insulation and that it was undertaken by Bells. The sprayed insulation was on the engine side of bulkheads where the heat source was located.
In addition the material which the plaintiff described does not fit the description of sprayed limpet asbestos. The plaintiff likened it to coarse sandpaper. Mr Ewbank described the appearance of dried sprayed limpet, before the sealing coat, as having a rough surface that would flake off if knocked. Mr Hunter said the sprayed bulkheads had the appearance of dried papier mache[32]. Mr Rogers, an occupational hygienist called by BHP, also expressed doubt that the plaintiff’s description accorded with his understanding of the appearance of limpet asbestos. I find that the plaintiff was not exposed to asbestos dust when cleaning in the accommodation area.
[32] Ewbank tr 317 & 319 and Hunter tr 44
The engine room – the environment
The evidence of the plaintiff and Mr Hunter, in particular, establish that the engineroom was very large. The space was described as being two to three storeys high or about four building storeys high and a big space, of varying dimensions being wider at the top and more confined in the lower parts particularly towards the stern, because of the shape of the hull.[33]
[33] Tr 41 & 51
The following evidence was given about access, lighting and natural ventilation; the plaintiff described a hatch through the deckhead of the engineroom about the size of double doors. He said this hatch was used for access. He recalled that there was a crane on the wharf and that the hatch at the top of the engineroom was used to crane machinery in and out. He described natural light coming through the hatch and said that otherwise artificial lighting was used in the engine room. Mr Hunter also recalled that the top of the engine room was open to the sky until the funnel was installed towards the end of the fit-out. He said that this opening provided some natural lighting and that otherwise artificial lighting was used. Mr Hannan, an apprentice boiler maker at the time, who worked on the navigational superstructure at midships but frequented the engine room confirmed that the main lighting was artificial.[34]
[34] Plaintiff tr 13, 68 & 24-25 Perth; Hunter tr 47 and Hannan tr 111
The plaintiff said he gained access to the engineroom via stairs from the deck above the engineroom. He could not remember any gangway through an access port in the side of the hull from the wharf into the engineroom although he did say that it would have been there at some point. This evidence differed from Mr Hunter, Mr Hannan and Mr Schrapel all of whom worked on the PJ Adams. I find that there was an access port. Plates were removed from the side of the PJ Adams to provide access from the wharf into the engine room. The opening was there from the commencement of the fit-out until just prior to the sea trials. This was standard shipbuilding procedure.[35]
[35] Plaintiff tr 12 & 70 Perth; Hunter tr 89 & 99; Ewbank tr 251
There was evidence that these openings provided some natural ventilation. Mr Hunter recalled air circulating into the engine room from wind over the top of the funnel, through the opening in the side of the hull and the hatch at the top of the engine room. Mr Schrapel spoke of the port in the hull providing a natural air draught.[36]
[36] Hunter tr 88 and Schrapel tr 210
The evidence supports a finding that there was some natural ventilation in the engineroom during the fitting-out process including the period of the plaintiff’s employment. It was provided by the access port in the side of the hull and the hatch at the top of the engineroom. I do not know from the evidence whether there was any natural flow of air from the funnel as there was insufficient evidence about the timing of its installation and Mr Hunter’s recollection may have related to other ships.
Evidence was given about mechanical ventilation in the engine room. The plaintiff could not remember any extraction fans other than when welders were working, when fans were placed “at the very top” about fifteen to twenty metres from them[37]. This suggests some operating ventilation. The specifications certainly called for fans in the engine and boiler rooms for the purpose of cooling machinery. The specifications also called for supply ventilation to the engineroom from the ships’ air circulation system which, through a trunking system, fed air to specific hot working areas and remote locations within the engineroom. Extraction ventilation was also required to extract hot air from the boiler and engine rooms through an engineroom skylight and the funnel to the outside.[38]
[37] Tr 25 Perth
[38] P20 cl 2.27
However I find that it is unlikely that the ship’s air conditioning system was operational when the plaintiff was working on the PJ Adams. Mr Hunter described the system as comprising of fans on the machinery deck close to the bridge and a trunking system installed by sheetmetal workers through which air was supplied to the various areas of the ship including the engineroom. He said that the ship’s air circulation system came on line “very late in the outfitting of the ship”, his explanation being its location on the machinery deck. Mr Ewbank, drawing on his general experience of working on ships at the fitting-out wharf between 1965 and 1970, gave consistent evidence that the mechanical ventilation system, including the pumping of air into the engine rooms, was not usually made operational until towards the finish of a ship before it went on sea trial.[39]
[39] Hunter tr 81 and Ewbank tr 251
Mr Hannan gave a different account; he said that there were fans “above the wheelhouse deck” or “up on the bridge deck” however it was his recollection that they were operational within about three months into the fit-out process. He said they were turned on the get airflow into the engine room. He is mistaken as to this timing. I find that when the plaintiff worked in the engineroom there was some mechanical ventilation associated with some tasks but that the ship’s air circulation system was not operational at that time.
The engineroom – the sequence of work
The timing of the lagging work was a crucial issue in determining the period of the plaintiff’s exposure to asbestos.
The plaintiff recalled that when he started work the engine and other heavy machinery had been fitted in the engineroom and fitting-out was fairly well advanced. He observed various pipes and vessels in the engineroom at varying heights depending on where the pipes were leading and he said lagging was in progress at various heights utilising scaffolding.[40]
[40] Tr 12-14 Perth
The sequential process of engineroom work was described by the witnesses. Mr Hunter said it started at the bottom, with the fitting of machinery, after which associated pipework, which had been fabricated and then installed, was insulated and then, if necessary, clad. Mr Hannan elaborated on that evidence. He said that some very large machinery such as the crankcase and the boiler drums were put in place on the slipway however the engine was installed once the ship was at the fitting-out wharf. The engine could not be fitted until the engine seat had been constructed. Once the engine was bolted on the engine seat, floor plates were then constructed around the machinery. Piping related to the machinery was then fabricated, installed and lagged. However he said that after installation of floor plates the walkways from the bilge to the funnel were also installed and that the pipework was not installed until after the walkways were in place. He indicated that this was a progressive task where the pipe fitters followed the boilermakers as each new walkway level and stairway was installed. Mr Schrapel also described this process adding that some pipe work was installed under the floor before the floor plates were installed.[41]
[41] Hannan tr 110, 137, 139 & 146-147 and Schrapel tr 198-200
Mr Ewbank agreed that it was usual practice for large machinery such as the boilers to be craned in and fitted at the slipway because of their bulk and weight and because it was necessary to install such machinery before bulkheads were built around it. Smaller equipment was craned in at the fitting-out wharf. In addition, Mr Ewbank drew on his experience as a lagger on a number of ships to describe the usual process by which the laggers insulated engine and boiler components and associated piping. He said this commenced several weeks after the commencement of the fitting-out and continued until the fit-out was completed.[42]
[42] Tr 246, 251, 254 & 300
Other evidence about the timing of work in the engineroom was as follows; the plaintiff recalled that when he started on the PJ Adams the boilers had been installed but he could not be sure that the engines had been installed.[43]
[43] Tr 69 Perth
Mr Hunter said that laggers were in the engineroom lagging pipes for most of the time from January 1962 until the sea trials. He said lagging of the machinery itself was only a small part of the overall period; that generally the laggers would not have been there until the machinery was put in place. He could not remember the specifics of the construction program but said that the installation of all necessary items of machinery was progressive. It was suggested to him that the installation of the boilers and engines might have been as late as six months into the fit-out. He could not say. He agreed that there would be no reason for the laggers to be around until the machinery was installed and that there were long periods of time when activity was going on in the engine room not involving laggers.[44]
[44] Tr 47, 65-66 & 82
Mr Hannan estimated that laggers would start about six weeks from the ship being taken to the fit-out wharf. He said the engines would be installed first and that until the pipes went in there would be no need for the laggers to be there. He did not agree with the proposition that the engines and boilers were not installed in the PJ Adams until the first half of July 1962. He said that would be “an extraordinarily long period of time” but agreed that if that was correct the laggers “would not have been there until after July”.[45]
[45] Tr 112, 139-140
Mr Schrapel said that laggers would come in about two or three months after the start of construction of the bedplate. When asked to assume that “the boilers and engines were being installed in the first half of July 1962”, Mr Schrapel was adamant that the engines would have been in well before then and further he said that if the commissioning of the vessel was in October it was not possible that the installation date would have been as late as July.[46]
[46] Tr 201 & 204
As to the timing of the lagging work BHP tendered the transcript of proceedings conducted in the CCAC in 1962 concerning an application by the Painters and Dockers Union to vary the Ship Painters and Dockers Award (“the Award”).[47]
[47] D6 tab 7 and transcript tabs 10, 11 & 16-20
For present purposes it is sufficient to note that the application, dated 18 April 1962, sought a number of variations concerning the special rates for working conditions of painters and dockers. The application was contested by a number of employers. BHP, a respondent to the award, disputed those aspects of the application which were relevant to its operations at the Whyalla Shipyards.
The application required the inspection of various shipyards throughout Australia to inspect the work of painters and dockers classified as “hatchman” and “paint locker attendant” and to view the work of painters and dockers concerning the handling of asbestos, the effect of climatic conditions, the performance of engineroom cleaning on ships in service and the performance of wirebrushing work.
Commissioner Horan, accompanied by representatives of the Painters and Dockers Union and BHP, conducted an inspection of the Whyalla Shipyards on 11 July 1962 and heard some evidence from two BHP witnesses, Mr McLaren, the Chief Shipyard Supervisor and Mr Richards, the Safety Superintendant, and from Mr Hincks, a Ships painter and Docker.
Inspection notes were recorded in the transcript of the proceedings and of relevance to the current issue included the following:
“The party then proceeded to Ship 35, the ‘P. J. Adams’, and inspected the engine room where the engines and ancillary equipment were in the course of installation. It was agreed by the parties that the application relating to an extra rate for cleaning engine rooms did not apply to vessels under construction and, in fact only applied to vessels which had been in service”.[48]
[48] D6 tab 18
BHP argued that the inference to be drawn from this evidence is that the lagging must therefore have begun after that inspection date. Mr Parker SC, counsel for the defendant, extrapolated that if, as Mr Hannan agreed, it is likely that lagging in a similar ship, the Iron Hunter took about seven weeks[49] and the lagging on the PJ Adams was completed prior to the sea trials in October, lagging did not commence until mid August and thus the plaintiff’s employment would only have overlapped the lagging period by some four weeks and not ten weeks as he suggested.
[49] Tr 145
In general terms the contemporaneous inspection record directly relevant to the PJ Adams is more likely to be reliable than the 50 year old recollections of the witnesses whose evidence was most likely based on their memory of the usual fit-out process on many ships rather than a specific recollection of the PJ Adams. However I approach the transcript’s significance with some caution. The expression “the engines and ancillary equipment were in the course of installation” is ambiguous. Firstly, the phrase “ancillary equipment” may encompass a variety of components possibly including the pipes necessary for the operation of the engines. Secondly, there is no elaboration of the phrase in the transcript of the CCAC proceedings which would assist in its understanding. Thirdly, a consideration of the entire transcript of the proceedings demonstrates that precision as to the description of the engineroom was not essential to the proceedings. The conditions of work in the engineroom of the PJ Adams were not central to the inspection because the Painters and Dockers Union’s claim concerning cleaning engineroom was limited to ships already commissioned; the inspection at the Whyalla Shipyards focussed on the wire brushing and paint locker attendants in other areas of the ship and the fitting-out wharf generally.
Furthermore, Mr Parker’s extrapolation that the lagging was undertaken in the last seven weeks before the sea trials does not fit with the timing of other aspects of the fit-out. Lagging was not the last task to be performed; some of the lagged pipework had to be sheathed with metal, a task which was undertaken by BHP employees. Painting was another job which was done after lagging and before the sea trial.[50]
[50] This is also made clear in D10 Industrial Relations Proceedings Documents 1968; Hannan tr 138 and Ewbank tr 244 & 305
Mr Hannan’s estimates of other aspects of the sequence of tasks add further doubt as to Mr Parker’s suggested time frame. Assuming that the engine was installed in July then on Mr Hannan’s account it took a further two months to install the floor plates and that was followed by the ladders and walkways which, confusingly, he also said were completed four to five months before the sea trial. According to Mr Hannan, who was involved in the placement of floor plates, stairways and walkways in many ships (although I acknowledge not the PJ Adams) the pipes were not installed by fitters until the ladders and walkways went in. “Nobody could put anything in there until I put the walkways and stairways” because until then they could not work at height.[51]
[51] Tr 110, 115, 146, 149-150 & 158
Such a sequence would have resulted in the ship not being ready for its sea trial by 29 October 1962 and yet that is the accurate date.
There is also other evidence which permits of the possibility that some lagging commenced before the engine was installed. Notwithstanding his evidence about the pipework being installed after the walkways. Mr Hannan also referred to staging on the sides of the engineroom, which was installed on the slipway. He said that he used the outer staging in the process of installing the walkways and ladders, that on occasions there was pipework already in place before he reached a particular level and that it was probably put in place using the staging. Mr Schrapel gave similar evidence that there was pipework in various parts of the engineroom; that it did not all come off the machinery to move the engine; that pipes went in “all the time” and that laggers could start lagging as soon as pipes were in place and could be doing pipes around the outside of the engineroom[52]. This accords with the plaintiff’s description of seeing pipework being lagged at various heights in the engineroom.
[52] Hannan tr 149 and Schrapel tr 202-203
Added to this is Mr Ewbank’s evidence of the usual sequence of laggers work in an engine room. Firstly he said that on a steam powered ship there was more lagging than on diesel powered ships and that Bells’ lagged engine components, boiler components and associated piping. This would suggest that laggers may have been working with asbestos products in the boilerroom part of the machinery space whilst the engine was being installed. Relying on his recollection of another vessel, the Gerringong, he said oil lines under the floor plates required lagging using asbestos rope and canvass cloth; a job which, on the evidence about the usual sequence of work, would be done immediately after the installation of the engine. Mr Ewbank also referred to the extent of pipework which required lagging stating that it went from the bottom to the top of the engine room and out the stack.[53]
[53] Tr 246; 236-264 & 298
Having considered all of the evidence on this topic and giving due regard to the contemporaneous record I find that it is unlikely that lagging did not commence until August. I find that the plaintiff’s work overlapped with that of laggers for 11 weeks until September 1962.
The engineroom – the plaintiff’s duties
The plaintiff said that the foreman would direct him to work in the engineroom as a labourer assisting other trades. He recalled assisting welders, boilermakers, and laggers and may have assisted fitters. Demarcation prevented him from assisting electricians. As to these trades he said he was “just generally helping them as a labourer’s hand”. He said he was directly supervised by the tradesperson to whom he was assigned on any particular day.[54]
[54] Tr 14, 29, 32 & 66-67 Perth
He said cleaning was a part of the general labouring task when assisting trades and took up the majority of his time in the engineroom. If he was acting as a trades assistant for a welder he had to sweep up and clean the slag from welding and when doing so handled welding blankets. He said that he was not sent to the engineroom for the specific purpose of cleaning. He said that when he was in the engineroom laggers were usually there.[55]
[55] Tr 22, 29, 32, 64-65 & 71 Perth
He said he mainly assisted laggers rather than other trades. He observed laggers lagging pipes at various levels of the engineroom using stepladders and scaffolding. He said he assisted laggers on scaffolding and at the bottom of the deck. He did not recall ever assisting laggers on the wharf.[56]
[56] Tr 14 & 68-69 Perth
During the course of this work he said that he observed and used various insulation products. He worked with a greyish whitish rope which had a powdery feeling. He was directed by the lagger to cut this rope into lengths using a pair of scissors or a knife. He then gave it to the lagger who was a couple of feet away or alternatively he applied the rope himself by winding it around pipe. He said that cutting the rope produced only a small amount of dust as did the winding process. The latter process was performed at about chest height very close to his breathing zone.[57]
[57] Tr 14-15 Perth
He also observed laggers fitting pipe sections on pipes and on the main boiler. He observed the laggers putting a half pipe section on the bottom half of a pipe and another on the top half. The pipesections were a whitish greyish colour. On occasions he said he was required to cut a length of this pipe section with a handsaw. He agreed that this was only an occasional task[58]. He usually performed this task on the floor in a kneeling position and then handed the section back to the lagger.
[58] Tr 16; 18; 23; 29 & 77 Perth
He also observed laggers cutting these pipe sections about two or three yards away. He observed that dust was produced from this cutting process and that the dust which was whitish grey, fell to the floor. He did not recall the laggers cutting the pipes over a box to try to catch the dust. Sometimes the cutting was done on a scaffold and the dust fell to the floor. When he was underneath a lagger cutting pipe sections on a scaffold he was walking in the dust and breathing it in. He also observed dust fall from the scaffold planks when they were moved by laggers.[59]
[59] Tr 22, 81 & 85 Perth
He recalled a slurry which was applied as an outercoat to the rope described above. He said that on occasions he mixed the slurry in the engineroom. He used a bucket containing water to which he added handfuls of powder which he took from a bag like a cement bag. The bag was kept in a box. He also observed laggers mixing this slurry. He observed that the scooping of the powder produced some dust. The slurry, which was a consistency of thick custard, was then applied to the rope with a handtrowel. That task did not produce any dust. He said that whereas applying the rope may be a five hour job applying the outer slurry coat may only take ten minutes. The slurry was also used as an outercoat over the top of the pipesections. He said this involved placing very thin chicken wire over the pipesection to which the slurry was applied. He recalled mixing slurry for use on pipe sections and was present when laggers mixed it. The mixing of the slurry was usually done on the engineroom floor and then handed to the lagger on the scaffold. He only handled the slurry on a very small basis.[60]
[60] Tr 20-21, 46 & 75 Perth
He did not recall any products handled by the laggers other than the pipesections, the rope and the slurry. He estimated that he spent about 25 to 30% of the time in the engine room handling insulation products with laggers. The other work he did for laggers involved handing them tools.[61]
[61] Tr 74; 78-79 Perth
He said his engineroom cleaning duties involved using a broom, dustpan and handbrush. He said he spent most of his time in the engineroom cleaning. He swept up whitish greyish debris from the floor from a standing position. When he did so the dust moved and rose up from the floor a couple of feet. He also used a small brush and pan to get into certain corners in which case he was on his knees with the dust pan and broom about an arm’s length away. He said that sweeping might produce dust ranging from dark to light and said he did not use water to dampen down the dust as that would make the floor harder to clean. He said he breathed in the dust which was also on his clothing and settled on his hair. He also recalled seeing dust suspended in the air in the engineroom. He observed this through the natural light. It was present when cleaning and even when not doing cleaning work. He also cleaned overspray from areas where spraying of insulation material had occurred. He was not provided with any mask when undertaking cleaning or any other work in the engineroom although respirators were supplied when he was painting tanks.[62]
[62] Tr 22-25 & 57 Perth
The plaintiff did not recall the name “Bells” and thought that the laggers, along with everyone else on the ship, were BHP employees[63]. The plaintiff was mistaken about that. The evidence is clear that insulation work was done by the contractors Bells and Newbrook Insulation.[64]
[63] Tr 67-68 Perth
[64] Douglas tr 925; Exhibit D9 Industrial Relations Proceedings Documents 1959 tr 1653 & 1655
The plaintiff’s evidence that he assisted laggers was disputed. This is an important issue because this is when the plaintiff said he personally handled insulation material.
Mr Ewbank’s evidence relying on the practice of Bells after 1965 (which he said also applied to earlier days) was that BHP did not provide Bells with painters and dockers as tradesman’s assistants. If Bells required additional labourers they would either hire them through the Painters and Dockers Union pick-up point or find them elsewhere. The kinds of duties such labourers performed included things like sewing asbestos cloth or assisting the laggers to “hold something” or “if you needed two sets of hands”. He said the role of BHP painters and dockers was to clean the enginerooms whilst the laggers were there.[65]
[65] Tr 248
Mr Schrapel said that he did not see BHP painters and dockers doing lagging work and that painters and dockers who were employed by BHP were not used as trades assistant for the contractors, Bells. He also referred to the role of painters and dockers in assisting BHP trades employees and said that, in his experience, boilermakers and fitters had labourers as trades assistant and that the work of painters and dockers was limited to assisting with clean-up work rather than assisting trades.[66]
[66] Tr 214
Mr Douglas gave evidence that, in his capacity as BHP’s Superintendent of Industrial Relations, he dealt with industrial disputes which might arise at the Whyalla Shipyards. He referred to the very strong demarcation practices which were in place. At the relevant time he was aware of the trades engaged by BHP, the relevant awards and the demarcation issues which might arise in the course of the performance of work. He said that he did not know of BHP employees being lent to external contractors to act as trades assistants.[67]
[67] Tr 922 & 927
He also confirmed that it was the function of BHP’s painters and dockers to clean the engineroom and that this was done on a fairly continuous basis[68]. It was his understanding that they cleaned up whatever was left over when the laggers had finished. He assumed that Bells labourers cleaned up debris left behind by the laggers but agreed that painters and dockers had to clean up whatever was left which might possibly include such debris.
[68] Tr 947-498
The extent to which painters and dockers were required to handle asbestos in the shipyards also arose in the 1962 CCAC proceedings. Mr Douglas called Mr McLaren and Mr Richards on the topic because it was relevant to the Painters and Dockers Union’s claim for a disability allowance. Those witnesses told the Commission that BHP employees did not spray limpet asbestos, handle moulded asbestos or cut moulded asbestos except in the case of an emergency at the finish of a ship when patching of a pipe or valve might be required and that apart from that “all our asbestos is done by contract”.[69]
[69] Exhibit D6 tab 18 tr 41
Whether this was an accurate statement is dealt with later but for present purposes the relevant portion of the 1962 CCAC proceedings and the evidence of Mr Ewbank, Mr Schrapel and Mr Douglas support a finding that it was not the usual practice for BHP painters and dockers to assist laggers. However such a finding is not necessarily inconsistent with that part of the plaintiff’s evidence.
On the basis of the evidence of Mr Douglas and Mr Ewbank I find that the plaintiff’s function in the engine room was predominantly cleaning. He was mistaken when he said that he was not sent to the engineroom for the specific purpose of cleaning. Cleaning was an important function in an engineroom where at any time there may have been a number of trades each with their own equipment working in a confined space. Mr Ewbank made reference to this when he agreed that the engineroom was a pretty busy location with many trades working at the same time. Mr Schrapel described it as a beehive with trades coming and going.[70]
[70] Ewbank tr 251 and Schrapel tr 211
I find that on a number of days during his employment, totalling about 50% of his time, the plaintiff was directed by the foreman to clean the engineroom in the close proximity to Bells’ employees who were performing lagging work. He was mistaken in his evidence that he was directed to assist or was “lent out” to assist Bells’ laggers in the handling or application of insulation material. Such a suggestion is unlikely given the engagement of Bells as contractors who employed labourers themselves. It is also inconsistent with the statements of several of the deceased workers who were painters and dockers. Mr Campbell spoke of cleaning in the vicinity of laggers who were installing insulation. Mr Zunic also said that his job included cleaning up after laggers[71]. Neither mentioned assisting laggers.
[71] P28 Campbell tab 3 and Zunic tab 7
However I am satisfied, on the basis of the detailed description of the cutting of pipesections, the application of rope and the hand mixing and application of slurry that, on occasions, the plaintiff did this work. It is unlikely that, after so long, he would remember those tasks in such detail unless he actually performed the work himself. This is not an unlikely scenario in a busy engineroom where the division of labour between a contract lagger and a BHP employee, directed to assist with cleaning, may not have raised the same demarcation issues as those existing between trade employees of BHP. The line may have become blurred. I find that the plaintiff undertook this work, probably on an ad hoc basis. He is mistaken that he handled asbestos products in this way for 25 to 30% of the time in the engineroom. It would have been a smaller proportion which I am unable to specify. I find that he spent most of his time in the engineroom working in close proximity to laggers and that apart from the ad hoc assistance he rendered laggers from time to time he cleaned up lagging residue, dust and debris. I find that when assisting other trades in the engineroom he was also in the vicinity of laggers.
Mr Hunter, Mr Hannan, and Mr Schrapel also addressed the topic of the working conditions. Their experience was not based on express recollection of work on the PJ Adams. In particular Mr Hannan did not work in the engineroom of the PJ Adams but in the midships superstructure. Mr Hunter could not have seen everything that happened in the engineroom from the fit-out start to the fit-out finish because his job involved making pipes which were fabricated in the plumber’s shop at the fitting-out wharf. It was only necessary for him to go into the engineroom of the PJ Adams to measure up for the making of templates and to make sure that the templates were accurate[72]. Mr Schrapel’s rigid certainty on a number of topics caused me to doubt that his recollections related specifically to the PJ Adams.
[72] Hannan tr 115 and Hunter tr 39, 45 & 59
These witnesses gave evidence based on a collage of memory of many ships. Nevertheless, I accept their evidence to the extent that it was consistent with that of Mr Ewbank. The application of asbestos products accorded with usual shipbuilding practice and each had a very lengthy experience of working in enginerooms when lagging was being undertaken. I also accept the evidence of the deceased workers on the same basis but I give that evidence limited weight because of the deficiencies to which I have already referred.
Mr Ewbank’s evidence as to the performance of insulation work in enginerooms and the engineroom environment can be relied on confidently because it was based on many years of routinely performing insulation work. The description which he provided of the lagging work and conditions in a engineroom generally accorded with that of the plaintiff but provided greater detail. I accept the plaintiff’s description of his cleaning work and his observations of the lagging work but in relation to the latter topic where there is a difference I prefer Mr Ewbank.
I have referred to the insulation products used in the engineroom of the PJ Adams earlier. The pipe sections were of varying diameters and thicknesses and asbestos content. They were cut to size in situ in the engineroom using a hand saw.[73]
[73] Ewbank tr 300. Hunter gave consistent evidence tr 43 and 46; Hannan’s consistent evidence was at tr 107 and 151.
When covering curved sections of pipe many cuts were necessary. If two layers of insulation were necessary, for example if 85% magnesia was applied as an external layer, the cutting process was repeated. Small pipes involved less cutting except for bends, fittings and T-pieces. The cutting was done on the floor plates. I accept Mr Ewbank’s evidence that when small pieces were involved the cutting was done over a cardboard box to catch debris. Otherwise cutting was done over a flat piece of cardboard which was then used to tip debris into a box. However I find that this was a rather haphazard method of containing debris and would have been unlikely to contain much dust and fibre.[74]
[74] Ewbank tr 246-247 & 294-295
Not all pipes in the engineroom were covered with moulded pipe sections. Sometimes they were covered with cloth or asbestos rope was used. The rope gave off loose fibre; it was like cotton wool. Lobsterbacks which the laggers made from asbestos blocks were used to cover awkward shaped pipes. These were made in the engineroom and required cutting. Asbestos mattresses which were also used on pipework were made adjacent to the plumbers’ workshop and then brought on board for fitting.[75]
[75] Ewbank tr 283, 296-297 & 311; Hannan saw these being made and placed on awkwardly placed pipes tr 142 and Hunter saw these mattresses being fitted tr 89
The slurry used to coat pipework and vessels was usually mixed on the wharf by Bells’ employees. This was necessary as it required a large amount of water which was not available on the ship. Large batches were mixed in a large wooden box and carried on board in 20 litre containers where it was used to coat pipework or vessels, sometimes requiring more than one layer[76]. Mr Hunter’s evidence was consistent that on occasions he observed the slurry being mixed on the wharf and carried onto the ship in buckets. He observed that the slurry was a pale grey colour. Mr Ewbank said it was bluey grey. Mr Schrapel described it as having a pinkie colour but he may have been referring to a different product because Mr Ewbank described the product HT as having a pinkish tinge[77]. When Mr Schrapel said he did not see laggers mix slurry on the wharf he was mistaken. It was a common feature of the way in which the laggers performed their work.
[76] Ewbank tr 303; Hunter tr 46 & 100; Schrapel tr 213
[77] Tr 241 & 250
However it was sometimes necessary to mix slurry on board for patching work and this occurred about two or three times a week. When that was necessary the Bells’ employee had to take the water on board.[78]
[78] Ewbank tr 302 305-306; Hunter also saw the slurry being mixed in the engineroom tr 83 & 92
Bells’ employees worked at various heights in the engineroom from scaffolding which was moved every few days. Although the laggers tried to avoid making dust, Mr Ewbank said when cutting pipesections sometimes a mess could not be avoided and that even allowing for the use of cardboard to collect debris dust would fall on the ground. The laggers spent considerable time working from scaffolding and I infer that cutting was also done from the scaffolding. I accept his evidence that when walking around in the engineroom the dust was stirred up and would float. When kneeling to cut the pipesections dust could be seen[79]. I note Mr Hunter’s consistent evidence that on occasions he had seen dust being given off from the process of laggers cutting pipesections with a hand saw. Mr Schrapel also gave evidence that the process of cutting the pipe sections produced dust which fell from scaffolding and landed on the floor.[80]
[79] Ewbank tr 247; 286 & 309-310
[80] Hunter tr 43-44; Schrapel tr 178
Mr Ewbank said the dust was white and was very fine and floated in the air. It could be seen as flecks floating around in the natural light in the engineroom. Mr Hunter also described a fine dust which could be seen floating when looking up through the natural lighting.[81]
[81] Ewbank tr 249, 271 & 311; Hunter tr 48
Mr Ewbank said that it could be seen in artificial lighting too. Mr Schrapel said he observed a dusty mist in the artificial light of the boiler room and described the dust as a pinkie colour[82]. I accept his evidence of floating dust however it seems unlikely that such a colour difference could be discerned when observing floating dust.
[82] Ewbank tr 312; Schrapel tr 179
Mr Ewbank said that dust fell from the overalls of laggers working over head. It also fell from the scaffolding when it was moved every few days. Mr Hunter gave consistent evidence that on the infrequent occasions when he worked below laggers in an engineroom dust fell on him and that he had seen dust fall on others too. Mr Hannan gave evidence that dust cascaded down on him when he was working below material that was being cut and Mr Schrapel also gave such evidence; Mr Hannan said that dust collected on his overalls varying in colour from brown to white and was also given off by other operations undertaken in the engineroom. He observed dust circulating in the air in the engineroom and caught in a shaft of natural or artificial light.[83]
[83] Ewbank tr 248 & 313; Hunter tr 87; 97; Schrapel tr214 and; Hannan tr 111, 156 & 185
Mr Ewbank did not make any specific observation of the effect of natural ventilation on the amount of movement of dust in the air within the engineroom whereas Mr Hunter said that he had observed dust caught in the flows of air coming from the draught across the top of the engineroom and that on occasions it would be lifted and swirl. Mr Schrapel gave similar evidence[84]. I accept their evidence.
[84] Ewbank tr 88; Schrapel tr 215
The amount of lagging required on a vessel such as the PJ Adams was substantial. Laggers worked seven days per week and overtime on two nights[85]. I reject Mr Douglas’ evidence that both insulation contractors performed their work at night when very few BHP employees were working. His recollection that Bells worked at night was incorrect. His evidence that it was therefore unlikely that BHP employees would be working at the same time as laggers was also wrong. He said that he went on all of the ships at some stage of the fitting-out process including the PJ Adams. However because of the nature of his occupation one might expect that his visits were brief. His evidence was that, on such occasions, he did not remember seeing Bells’ employees on any of the ships and more particularly that he did not see them performing lagging work. He also said that when on board ships he did not see any dust generally or floating in the air to the extent that it would create a hazard to BHP employees[86]. This evidence is unreliable given his mistaken recollection that Bells worked at night and that BHP employees did not work at the same time as Bells’ laggers.
[85] Ewbank tr 290
[86] Tr 925, 928, 946 & 949
I accept Mr Ewbank’s evidence that not all pipesections required cutting; that laggers were not in the engineroom at all times. Nevertheless I also accept that it would be unlikely that laggers would be in the engineroom with no cutting taking place. Mr Ewbank agreed with Mr Parker that the whole of the engineroom was not “filled with a dusty atmosphere” but he reiterated that there was a lot of dust and stuff floating around.[87]
[87] Tr 312
Mr Ewbank gave evidence that Bells’ employees may have picked up loose gear and undertaken a preliminary cleaning of the lagging products used in their specific work area sometimes including the use of a brush. However he said it was the painters and dockers who were required to clean the engineroom including any remaining dust. This was supported by Mr Douglas when he said that painters and dockers cleaned the engineroom on a fairly continuous basis[88]. Mr Hunter gave consistent evidence and confirmed the plaintiff’s evidence that cleaning was done using longhandled brooms, shorthandled brooms and dustpans both standing and kneeling. Painters and dockers were required to pick up whatever was lying around and to move it. Mr Schrapel said that the process of sweeping caused the dust to circulate in the air so that if he was in the vicinity he breathed it in.[89]
[88] Ewbank tr 248 & 306-307 and Douglas tr 949
[89] Tr 49; Plaintiff’s evidence Perth tr 22-24 & 85; Mr Hannan confirmed the use of these tools tr 109 &152 as did Mr Schrapel tr 178 - 179 and Ewbank tr 304
Painters and dockers also cleaned up any overspray left over by the Newbrook nightshift spraying of deckheads and bulkheads. Bells did not do any spraying but Mr Ewbank observed a lot of overspray on the ground after night spraying. Mr Ewbank said that the overspray was cleaned off the scaffold planks by the sprayers except in inaccessible cracks between the planks[90]. The spray left a residue on the engineroom ribs. Once the spray dried it became flaky, would break and form a dust which floated everywhere. He observed painters and dockers using a brush to remove the dry material from the ribs[91]. Mr Hunter and Mr Schrapel gave consistent evidence about the nature of the dried sprayed material describing it as like papier mache or as flaky like snowflakes. However I am inclined to the view that Mr Schrapel’s description that it fell like snowflakes was associated with his mistaken and unshakable belief that the limpet spraying was done when all the trades were working in the engineroom.[92]
[90] Tr 250 & 318; Mr Schrapel was wrong when he said that Bells did the limpet spraying and that he had seen them do so tr 181.
[91] Ewbank tr 319 & 328 - 330
[92] Tr 208 & 184
On a matter not commented on by Mr Ewbank, I accept Mr Hunter’s evidence that when he was required to make holes in the surface of the limpet for the installation of piping he observed a residue of white powder and pale grey cottonwool fibres which he said were cleaned up by painters and dockers. Mr Hannan made additional observations about the preparation of the limpet asbestos. He saw this product being prepared when he worked on night shift. On those occasions he was preparing the area for the mounting of welds on the deckheads which were used to assist in the application of the limpet asbestos. He saw blue powder poured into a machine from a bag and observed dust being given off. His evidence was consistent with that of Mr Hunter that when he was required to disturb the limpet material using a chisel or hammer a bluish whitish dust was given off and was observed in the air. Mr Hannan also observed overspray of a bluish colour on the floor plates and over equipment which was cleaned by painters and dockers along with the dust which he and other tradesmen created when the sprayed surface was disturbed.[93]
[93] Hunter tr 45 & 50; Hannan tr 108-109, 111, 114 & 154
I accept Mr Ewbank’s evidence that laggers performed other jobs on the wharf in particular the cutting of blocks for boiler insulation and the lagging of duct work which was later craned into ships. However I find that lagging was predominantly done on board and particularly in the engineroom where the laggers started at the bottom and lagged pipes right up to the top of the engineroom and into the funnel.[94]
[94] Tr 298
It is notable that Mr Ewbank said that the slurry was a bluey grey, Mr Hannon described the overspray on the floor as being a bluish colour and Mr Hunter said chiselling limpet material produced a bluish, whitish dust. This raises the issue whether any of the insulation materials contained crocidolite (blue asbestos). I am not prepared to draw such an inference relying only on these descriptions. The evidence of Mr Rogers, BHP’s expert occupational hygienist, that sometimes chrysotile, which is normally white, was dyed blue is also unhelpful. The most persuasive evidence on the topic is provided by the report of Dr Wilson of the South Australian Department of Public Health who inspected the Whyalla shipyards in 1968 and took samples of insulation materials including sprayed asbestos, Hard set and K-lite block. The samples were tested by the Australian Mineral Development Laboratories. The test results were that each of these products contained amosite in varying proportions with the sprayed asbestos containing more than 50% amosite. One of Dr Wilson’s conclusion was that “there is no exposure to crocidolite in any of the asbestos processes carried out”. I find accordingly.[95]
[95] Rogers tr 1002-1003; D11 tab 19 Wilson’s report dated 23 December 1968 & tab 20 the annexed Amdel report
By way of summary I find:
·That on occasions the plaintiff personally handled insulation products including dry composition powder, slurry, pipe sections and asbestos rope;
·That the plaintiff was present in the engineroom for 50% of his time when insulation products of the various types referred to in the specifications were applied in the engineroom and connected boiler room.
·That these insulation products contained amosite and chrysotile asbestos in varying proportions.
·That quantities of dust and fibre were released into the atmosphere of the engineroom and connected boilerroom from cutting, fitting, mixing, coating, applying and modifying such materials.
·That during and after such activities occurred dust could be seen falling and floating in the atmosphere and settling on workers, surfaces and the floor;
·That the engineroom was a very dusty environment occasioned by many work processes but predominantly by lagging and that dust could be seen in the atmosphere.
·That the plaintiff was directed to and cleaned the engineroom where laggers were working or had worked.
·That the plaintiff was directed to and cleaned dried overspray of limpet asbestos following spraying on the night shift.
·That when the plaintiff cleaned with a broom, hand broom and dust pan he disturbed dust and could see dust moving in the air around him.
The Plaintiff’s Work History Other than BHP
The plaintiff gave evidence about his employment history including employment where he presumed that he was exposed to materials containing asbestos. At the age of 15 the plaintiff commenced an apprenticeship with his father. He did not complete the apprenticeship, leaving after two and a half to three years.
During that time he came across material referred to as “fibro”. When a window or door frame required alignment he used fibro as a chock. He cut or broke the fibro by hand, holding it in front of his body at waist height. He did not notice that any dust was given off. He did not do this often. Sometimes he used fibro to form a base on which to stack bricks to keep them off the ground. On these occasions he did not cut the fibro but just used it as he found it. Again this did not happen often. The type of fibro used was flat sheets and did not involve thick sheets of the kind used for bathrooms.
Overall the plaintiff did not spend much time in this employment in contact with fibro and was not aware of any dangers associated with doing so. As the work involved bricklaying I infer that it was mainly performed in the open air.
After leaving his father’s employment the plaintiff worked for National Tyres in Whyalla. He worked there from 1959 to 1962. For the first three months of that employment he was a tyre fitter taking tyres off wheels and refitting new tyres. A few times he replaced brake drums. This involved taking the wheel off the hub, removing the drum and cleaning the dust from the drum using a wet rag or an air hose. He did not recall any observable dust given off from this cleaning process when using a wet rag but did observe dust when using an air hose. He used an air hose a minimal amount. When he replaced brake linings he took them from a box and does not recall observing any dust when doing so.
After three months he went into the sales department which involved travelling between Whyalla and other towns as far away as Ceduna. This work did not involve any further tyre fitting or brake lining work.
Following the sales job he worked for BHP at the Whyalla Shipyards. After leaving BHP he went back to work for his father briefly before working in hospitality interstate and in New Zealand for 11 years. During this period from 1962 to 1974 he does not remember working with any product that looked like an asbestos or insulation product.
Between 1974 and 1976 he worked in Perth as a subcontractor building outdoor patios. He only rarely worked with fibro during this time. Such work involved cutting holes in fibro eaves to fit downpipes.
From 1976 to 1979 he worked in the hospitality industry and does not recall any exposure to any product that looked like an asbestos or insulation product.
In 1979 he worked on an off-shore oil rig off the coast of Western Australia. He was a rouseabout, then a roughneck and then a crane driver. On one occasion during that employment he assisted a mechanic change the brake linings on a large crane. There was little exposure to dust on that occasion. The job was undertaken in the open in windy conditions.
The plaintiff stopped working on the oilrig in about 1984 and from that time until 1990 he worked in hospitality again.
From 1990 to 2005 the plaintiff returned to the building industry as a self‑employed roofer. He worked with metal roofing products. There was only one occasion during that period when he worked with fibro. This was in 2004. He removed a small corrugated fibro roof. He said that this was the only time in his whole life that he worked with composition fibro in its corrugated form. On that occasion he said that he used a mask, disposable work suit and “did everything by the book”.[96]
[96] Tr 35 Perth
Taking into account all of the potentially dusty exposure to presumed asbestos products presented by his employment history and comparing it with his work at BHP the plaintiff said that the majority of dust to which he was exposed would have been on the PJ Adams.
The plaintiff also gave a history of his lifetime asbestos exposure to his treating respiratory physician Prof Musk. That history is recorded in Prof Musk’s report of 30 January 2012.[97] It is essentially similar but certain differences are noted. The plaintiff told Prof Musk that when he worked as an apprentice bricklayer the fibro on site was being used by carpenters who were working on eaves. It appears that the plaintiff got the order of his jobs wrong when he told Prof Musk that he worked for BHP immediately after the bricklaying job and that the work with National Tyres followed on from the BHP employment. That error in the history is of no moment. His history to Prof Musk omitted that when building patios he occasionally cut holes in fibro eaves to refit downpipes. I accept the plaintiff’s evidence that this was only an occasional event. The difference in the history is not important. I take the same view in relation to the history to Prof Musk that he assisted with the changing of crane brakelinings twice and not once as he said in his evidence. The plaintiff’s history to Prof Musk that when he was a roofing contractor he removed old asbestos guttering and downpipes on houses was not quantified and yet in his evidence he said that he only did this once. The absence of quantification is not important because it was the plaintiff’s consistent history that any such work was done with protective equipment.
[97] Exhibit P24 Prof Musk’s reports dated 30 January, 21 February, 12 April, 15 June & 26 September 2012 and Curriculum Vitae
The plaintiff also relied on Strong v Woolworths Limited[474] and its reference to Booths’ case as an example of proof at common law in cases where scientific and medical evidence is concerned. Further reference was also made to the way in which the issue of causation was resolved in the judgment of French CJ in Booth.
[474] (2012) 285 ALR 420 at paras 26-27
These authorities were relied on to conclude that BHP caused or contributed to the plaintiff’s mesothelioma both at common law and for the purposes of the presumption which it was submitted has not been rebutted by any evidence to the contrary.
In answer to a submission put by BHP Mr McIntyre submitted that there is no basis to infer that the presumption refers only to “negligent exposure”. Mr McIntyre submitted that, in any event, there was no non-negligent exposure because there was a failure to warn and the evidence was that if the plaintiff had been warned of the dangers of asbestos he would have left BHP and gone to work for his father. Furthermore that there is no legal principle requiring the Court to give credit to a defendant for “non-negligent exposure” .The plaintiff relied on Dasreef Pty Limited v Hawchar[475] and Cockatoo Dockyard Pty Limited v Browne[476] in this respect.
[475] [2010] NSWCA 154
[476] [2001] NSWCA 58
BHP’s Submissions
BHP’s position was that causation was not established at common law and that the presumption does not apply. Mr Parker emphasised that the onus is only imposed on a defendant “if it is established…… that a person was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease”[477]. Mr Parker submitted that the plaintiff has not established that the circumstances of his exposure at Whyalla were such that it might have caused or contributed to the disease.
[477] Defendant’s closing submissions para 201
Mr Parker submitted that there were two factors relevant to the operation of the presumption and proof of causation at common law. Firstly, the plaintiff has been subject to more than one episode of asbestos exposure in his life. Secondly, the plaintiff did not run his case on the basis that asbestos should have been eliminated from the Whyalla Shipyards. Therefore it is implicit that some degree of exposure to asbestos would not have been negligent; the plaintiff’s case was essentially that he was exposed to too much asbestos.
Mr Parker submitted that for BHP to be held liable the Court must be satisfied both that the mesothelioma was caused by BHP’s negligence (as opposed to that of any of the plaintiff’s other employers), and that it was caused by BHP's negligence (as opposed to that portion of exposure which would have been sustained even if all necessary and reasonable precautions had been taken).[478]
[478] Defendant’s closing submissions para 192
No issue was taken with Prof Henderson’s evidence about the pathogenesis of mesothelioma in his reports and oral evidence. Mr Parker drew several propositions from Prof Henderson’s evidence about the mesothelioma model; that there is no necessary or inevitable relationship between a series of cell mutations and the ultimate development of cancer; that the range of outcomes when a cell mutates is such that the probability of anyone getting mesothelioma is low; that what is required is for the accumulation of a sufficient number of mutations in the correct order to happen again and again, which is likened to “the rolling of the dice”; that for this reason the development of mesothelioma is a process of randomised chance where each individual episode of exposure to asbestos increases the risk that mesothelioma will develop. Mr Parker referred to various passages of the transcript which he said supported the concept of randomised chance.[479]
[479] Defendant’s closing submissions para 197
He also referred to Prof Henderson’s evidence that one could not say that if a mesothelioma developed any specific episode of exposure has or has not directly contributed to it. He referred to Prof Henderson’s explanation that when he spoke of “significant causal contribution” he meant contribution in the sense of a significant increment of risk to the plaintiff’s total accumulated risk.[480]
[480] Defendant’s closing submissions para 198
With respect to the plaintiff’s individual case, Mr Parker made a number of observations about Professors Musk and Henderson’s evidence that the Whyalla exposure would have made a material contribution to the mesothelioma. Firstly, that the facts relied on by the experts were probably not correct taking into account the whole of the factual evidence. Secondly, that the experts did not express a view about whether the plaintiff would have developed mesothelioma without the Whyalla exposure. Thirdly, the experts were not asked to express an opinion distinguishing between negligent and non-negligent exposure at Whyalla. Fourthly, the plaintiff’s case did not identify, with any specificity, what difference the exercise of reasonable care would have made to his overall level of exposure. Thus it was submitted there is no factual basis upon which to make a judgment about the likely causal effect of BHP’s negligence as opposed to the plaintiff’s overall exposure at BHP.
Mr Parker submitted that the basic “but for” test remains an essential criterion of liability whether considering the presumption or at common law. He submitted that the Court must be satisfied that the plaintiff would not have developed mesothelioma but for BHP’s negligence and that a material contribution must be a necessary contribution although it may not be an individually sufficient contribution[481]. He submitted that a “material increase in risk” is insufficient to establish that the plaintiff has suffered some detriment which he or she would not have suffered if the defendant had not been negligent.[482]
[481] Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 443; Amaca Pty Ltd v Booth (2011) 283 ALR 461, 503; Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2012) 196 FCR 145, 171; Strong v Woolworths Ltd (2012) 285 ALR 420, 425-428 and; Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2012) 196 FCR 145, 171
[482] Tabet v Gett (2010) 240 CLR 537, 564
These matters were said to lead to the conclusion that the plaintiff has not satisfied the onus under s8(1) firstly because Prof Henderson’s description of the generic mechanism of mesothelioma induction only supported the proposition that each exposure increases the risk of mesothelioma and that the more substantial exposures may contribute more significant increments of risk. Secondly, that Prof Henderson’s evidence did not lead to the conclusion that more probably than not the plaintiff would not have developed mesothelioma but for his exposure at Whyalla in its entirety or alternatively with reference to the negligent portion of his Whyalla exposure. This latter proposition was said to be important because, without it, his evidence went no further than to establish that the Whyalla exposure in general increased the risk of the plaintiff developing mesothelioma.
In this respect Mr Parker submitted that the word “exposure” in s8(1) must be read down to mean “negligent exposure”. BHP’s conclusion was that s 8(1) is not decisive and that the plaintiff has not established causation at common law.
Conclusion on Causation
Section 8(1) provides as follows:
“(1) If it is established in a dust disease action that a person (the injured person)—
(a) suffers or suffered from a dust disease; and
(b) was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease, it will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person's dust disease.”
The word “exposure” has the same meaning in subs (1) as it has elsewhere in sections 8 and 9. In BHP Billiton Ltd v Parker[483] that was said to be exposure generally. This is also consistent with the ordinary reading of the section. The reference to a person being exposed to asbestos “in circumstances in which the exposure might have caused or contributed to the disease” provides the trigger for the operation of the presumption and a defendant’s opportunity to provide proof to the contrary. The efficacy of the provision, as an aid to proof, would be reduced if the word “exposure” was limited in the way suggested.[484]
[483] Supra
[484] Hamilton v BHP Billiton Ltd supra para 289
In any event, in the absence of testing and any measures being taken, it is not open to BHP to argue that there was any “non-negligent” dust exposure.
In Cockatoo Dockyard Pty Limited v Browne[485], to which I have already referred, a similar point was argued. The appellant submitted that there was no evidence to support the trial judge’s finding that the breaches of duty caused or materially contributed to the plaintiff’s injury; in other words that the judge had failed to ask himself whether the taking of precautions would have made a difference. This was in the context of a fitter who had been exposed to asbestos and other dust in two workplaces, the turbine shop and in confined spaces in enginerooms of ships at the appellant’s dockyard. The trial judge had found that no precautions had been taken during the period of the plaintiff’s employment and that there were measures which were available.
[485] Supra
As is the case here, the defendant had not undertaken atmospheric testing during the plaintiff’s employment. The trial judge found that, at the relevant time, the risks of asbestos were known, that there were means available to the defendant to control the dust hazard and that their use would have minimised the risk to the plaintiff. The trial judge found that the unnecessary exposure to asbestos dust had caused or contributed to the plaintiff’s contraction of mesothelioma.
In dismissing the employer’s appeal Handley JA said where an employer has taken no steps to minimise a foreseeable risk of injury to his employees and no steps to measure the extent of the hazard its own breaches of duty prevent it from discharging the evidentiary onus that its breaches had no effect or that the injury would have occurred even if the duty had been performed.[486]
[486] Supra paras 10-13
In relation to the application of the presumption BHP conceded “there is no question that Mr van Soest’s alleged exposure at the Whyalla shipyards was capable of causing mesothelioma”[487]. Even without that concession I have found that the plaintiff was exposed to asbestos dust and fibre at the Whyalla Shipyards for a period of time and therefore it can be concluded that the plaintiff’s exposure might, in the sense of could possibly, have caused or contributed to his dust disease.
[487] Defendant’s closing submissions para 188
The evidence of Professors Henderson and Musk raise that possibility to a probability. I apply their respective opinions to the facts which I have found and conclude that taking into account the nature of the exposure, its duration, the types of asbestos material to which he was exposed, the latency period and the cumulative effect mechanism of the disease the plaintiff’s exposure at the Whyalla Shipyards caused or contributed to his dust disease.
The evidence of Prof Henderson, based on an understanding of the disease mechanism established that the Whyalla exposure did not merely increase the risk of contracting mesothelioma but made a causal contribution to it in proportion to the exposure and I reject any suggestion that Mr Roger’s evidence supports an inference that the plaintiff’s exposure would have been so small as to have been negligible.
There is no proof to the contrary for the reasons expressed by Handley JA in Cockatoo Dockyard Pty Limited v Browne[488]. Accordingly the operation of s 8(1) establishes that BHP’s breach of duty caused the plaintiff’s dust disease.
[488] Supra
I am also satisfied that the plaintiff has established causation at common law. The case of Amaca Pty Ltd v Booth[489], as indicated in Hamilton v BHP Billiton Ltd[490], is important in relation to that issue. That dealt with Prof Henderson’s cumulative explanation, the same hypothesis that he provided here. At trial William Booth v Amaca Pty Limited and Amaba Pty Limited it was decided that all significant asbestos exposures were causative[491]. On appeal in the High Court the majority held that a “cumulative effect” amounted to “an inference of factual causation” enabling a finding that two different manufacturers each contributed to the ultimate cancer.[492]
[489] Supra
[490] Supra at para 345
[491] [2010] NSWDTT 8 para 57
[492] French CJ and in a separate judgment, GummowHayne and Crennan JJ.
I repeat the passage from the majority judgment concerning proof of causation in relation to “multiple conjunctive causal factors”.
“The ‘but for’ criterion of causation proved to be troublesome in various situations in which multiple acts or events led to the plaintiff's injury, for example, where the development of a particular medical condition was the result of multiple conjunctive causal factors. In such cases what may be unclear is the extent to which one of these conjunctive causal factors contributed to that state of affairs. These situations have been addressed by the proposition stated by Lord Watson in Wakelin v London & South Western Railway Co that it is sufficient that the plaintiff prove that the negligence of the defendant ‘caused or materially contributed to the injury’. In that regard, reference may be made to the well-known passage in the speech of Lord Reid in Bonnington Castings Ltd v Wardlaw. …” (Citations omitted).[493]
[493] Amaca Pty Ltd v Booth supra at 62
The passage referred to in Bonnington Castings Limited v Wardlaw was:
“I am in agreement with much of the Lord President’s opinion in this case, but I cannot agree that the question is: which was the most probable source of the respondent’s disease, the dust from the pneumatic hammers or the dust from the swing grinders? It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. The contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within the exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.”[494]
[494] [1996] AC 613 at 621
In Amaca Pty Ltd v Booth French CJ stated the matter as follows at paras 47 and 51:
“The distinction between a statistical correlation and factual causation precedes any consideration of the distinction between factual causation and legal causation which was discussed in March v Stramare (E & MH) Pty Ltd. Factual causation which can be established by the application of the ‘but for’ test is ‘the threshold test for determining whether a particular act or omission qualifies as a cause of the damage sustained.’ That threshold must also be surmounted in the case of concurrent or successive tortious acts:
‘it is for the plaintiff to establish that his or her injuries are “caused or materially contributed to” by the defendant’s wrongful conduct ... Generally speaking, that causal connection is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent’.”
Later French CJ said:
“It is enough for present purposes to say that an inference of factual causation, as against both Amaca and Amaba, was open on the evidence before the primary judge. The cumulative effect mechanism involving all asbestos exposure in causal contribution to the ultimate development of a mesothelioma had been propounded and was accepted by his Honour. It depended upon an understanding of physiological mechanisms. It did not depend upon the epidemiology. Whether or not medical science in the future vindicates or undermines that theory, it is not to the point. That is not a question which can be agitated on these appeals. The cumulative effect mechanism, accepted by his Honour, implicated the products of both Amaca and Amaba in the development of Mr Booth’s disease. The primary judge’s interpretation of the expert evidence and his conclusions from it, were open as a matter of law.”[495]
[495] AMACA Pty Ltd v Booth at 57-58
French CJ also went on to say:
“The present case proceeds on the foundation of findings, based on evidence before the primary judge, that Mr Booth’s exposure to the chrysotile asbestos in brake linings manufactured by Amaca and Amaba not only prospectively increased the risk of his contracting the disease but, in the event, causally contributed to its development and continuation.” [496]
[496] AMACA Pty Ltd v Booth 58
The recent case in the New South Wales Court of Appeal of Allianz Australia Ltd v Sim; Workcover Authority (NSW) v Sim; Wallaby Grip( BAE) Pty Ltd (in liq) v Sim[497] also concerned the role of the “but for” test. Similarly in that case the expert evidence relied upon by the plaintiff was such that it could not be said in respect of each of the appellants that, but for its negligent exposure of the plaintiff to asbestos, he would not have contracted his lung cancer. The Court applied AMACA v Booth.[498]
[497] [2012] NSWCA 68
[498] Supra
Allsop P referred to the scope of “material contribution” and its relationship to the “but for” test when he referred to March v Stramare (E & M.H.) Pty Limited and Another in which Mason CJ said: [499]
“… I do not accept that the ‘but for’ (causa sine qua non) test ever was or now should become the exclusive test of causation in negligence cases.”
[499] (1991) 171 CLR 506 at 508
Reference was made to the majority in Amaca Pty Ltd v Booth as to the deficiencies in particular where there are “conjunctive causal factors”[500]. Allsop P referred to the majority’s refusal to accept that proof that the damage would not have occurred but for the defendant’s negligent act, as always essential.
[500] Allianz Australia Ltd v Sim; Workcover Authority (NSW) v Sim; Wallaby Grip( BAE) Pty Ltd (in liq) v Sim supra at para 42
His Honour also referred to Strong v Woolworths[501] in which French CJ, Gummow, Crennan and Bell reiterated what Mason CJ had said in March v Stramare at para 514, saying:
“Negligent conduct that materially contributes to the plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation...”
[501] Supra para 26
Allsop P continued:
“The conclusion of material contribution to the causal process in Bonnington Castings was reached without over-refinement of measurement and without medical or physiological counterfactual analysis, which would have been both impossible and unreal.
Science may struggle to give complete expressions of reasons for pathology and aetiology of disease. Still more is it likely to struggle to express opinions about what might have happened had an indefinable or imprecise body of facts not occurred. For the law to demand that exercise in the working out of responsibility for the consequences of tortious wrongdoing would be to demand unreality. As Dixon J said in Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 at 569, cited by Gummow J, Hayne J and Crennan J in Amaca v Booth (at 479-480 [69]):
‘I think that upon a question of fact of a medical or scientific description a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis.’
The requirement for such counterfactual satisfaction of the but for test was one of the matters that Mason CJ rejected in March v Stramare, that Gummow J, Hayne J and Crennan J can be taken to have rejected in Amaca v Booth at para 70 and that French CJ, Gummow J, Crennan J and Bell J rejected in Strong v Woolworths at paras [26] – [28].”
I conclude that the factual evidence as to the mechanism by which mesothelioma is caused, establishes that the plaintiff’s exposure to asbestos dust and fibre in the engineroom of the PJ Adams, caused or materially contributed to the onset of mesothelioma.
Conclusion
The risks of asbestos were known, there were practicable means available to BHP to control the hazard presented by asbestos dust, their use would have minimized the risk to the plaintiff and therefore the resultant negligent exposure to asbestos dust caused or contributed to the plaintiff contracting mesothelioma.
I give declaratory judgment in favour of the plaintiff finally determining that BHP is liable in negligence for his damages to be assessed.[502]
[502] Section 38 of the District Court Act 1991
It has been necessary to proceed in this way as the plaintiff has not tendered evidentiary material to support his claim for past out of pocket expenses. Until I receive that material I am unable to finally assess damages.
I will hear from the parties concerning appropriate directions for the future conduct of this matter however I indicate that, in view of the plaintiff’s medical condition, I expect the evidence as to quantum to be tendered as a matter of urgency. I will hand down judgment on the assessment of damages shortly after details of this head of damage are provided.
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