Wood vs Merck Sharpe - [2005] NSWDDT 61

Dust Diseases Tribunal

of New South Wales

CITATION:
Wood vs Merck Sharpe [2005] NSWDDT 61

PARTIES:
Merck Sharpe & Dohme

MATTER NUMBER(S):
49\99

JUDGMENT OF:
Walker J at 1

:-

LEGISLATION CITED:
Factories, Shops and Industries Act 1962 s. 41 (2)

CASES CITED:
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.;
Purkess v Crittenden (1965) 114 CLR 164;
Seltsam Pty Ltd v McGuiniess (2000) 49 NSWLR 262.

DATES OF HEARING: 29.3.05,30.3.05,31.3.05,1.4.05,4.4.05,5.4.05,6.4.05,
7.4.05,20.4.05, 21.5.05

EX TEMPORE JUDGMENT DATE:
04/21/2005

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr D.G. Letcher, QC
FOR DEFENDANT: Mr G.M. Watson SC with Mr M.H. Best

JUDGMENT:

JUDGMENT

McINTYRE AJ

1. Fredrick William Wood claims that he contracted occupational asthma in the course of his employment with the defendant at the defendant's premises in Granville, Sydney, between 1993 and 1995. The plaintiff alleges that his asthma was caused by inhaling a substance known as methyldopa which was an ingredient in a pharmaceutical product known as Aldomet, then being produced by the defendant. The plaintiff alleges that a constituent of Aldomet, methyldopa, has been known for many years to have the capacity to induce asthma. The plaintiff relies upon a publication in the British Medical Journal in 1979, exhibit DX16, which he claims ought to have alerted the defendant to the fact that methyldopa could cause asthma in susceptible individuals.
2. The defendant is the Australian subsidiary of Merck and Co Incorporated, a company incorporated in the United States of America. That company conducts pharmaceutical manufacturing operations itself and through subsidiaries throughout the world including New Jersey, Pennsylvania and Georgia in the United States of America, Puerto Rico, South Africa and Australia. It has manufactured and processed methyldopa since about 1967 employing some 1,500 employees at those various locations.

3. The American parent company established within its operations a scientific and technical authority covering areas of toxicology, occupational health, environmental risk assessment and regulatory compliance. Merck and Co Incorporated established an internal industrial toxicology advisory committee which set exposure control limits for chemicals such as methyldopa to be adopted throughout factories operated by it and its subsidiaries. The US parent company received as a matter of routine air sampling tests performed in its various factories worldwide, monitoring levels of compliance with the exposure control limits laid down by it. Merck and Co Incorporated was aware of the article published in the British Medical Journal, exhibit DX16. The defendant, its Australian subsidiary, concedes that it ought to have known of its existence. The defendant, however, disputes that there is or was at any time any association between methyldopa and asthma and denies the plaintiff's claim that it was in breach of its duty to the plaintiff as the plaintiff's employer to provide him with a safe place and system of work by exposing him to the substance without providing any warning or otherwise taking adequate steps to remove or reduce the risk of injury.

4. The evidence of the plaintiff was given by way of affidavit and orally. In his affidavit the plaintiff said that he first worked for the defendant at its Granville factory in August 1992. The plaintiff described the Granville plant as being large, employing hundreds of people. The plant contained a manufacturing department incorporating areas where dispensing, granulating, compressing and film coating of pharmaceutical products occurred. The plaintiff said that he was employed as a production operator until he was promoted to the position of team leader in April 1993. From that point in time the plaintiff still performed some "hands on" work although the amount of this hands on work thereafter was somewhat less, particularly when he worked the morning shift.

5. After a pre-employment medical examination, which included lung function tests, the plaintiff commenced work with the defendant. He described the particular part of the defendant's premises where Aldomet was manufactured, known as the Aldomet module. The plaintiff described Aldomet as the major product manufactured in that module although he conceded that other items were manufactured in that module from time to time. When he was required to work in the Aldomet module quantities of raw materials were brought into part of that area, known as the dispensing area, by forklift, the material then being transferred into five silos or hoppers located within the module. These silos are shown in photographs tendered being exhibits DX2 and PX14. Whilst the transfer of this product was initially performed by stores personnel the plaintiff said that he later assumed this task with the concurrence of the defendant.

6. Mr Pusic, the plaintiff's then supervisor, who was called by the defendant, confirmed in his evidence that the plaintiff was a hands on worker even whilst he was a team leader.

7. Whilst working in the module the plaintiff and other employees of the defendant were required to wear hairnets, gloves and paper masks. A sample paper mask was tendered in evidence and marked PX3. The plaintiff's work in the Aldomet module required him to fill the silos with material delivered from the stores area and to then operate controls in the adjacent control room. Machinery in the module then automatically mixed the product. During this mixing process, if any silo became empty, it was the plaintiff's responsibility to return to the room containing the silos to pour more ingredients into the silos. The silos were so constructed that when the doors giving access into them were opened, an extractor fan was activated causing negative pressure in the silo, attracting any dust in the silo generally up and away from the operator. The plaintiff maintained that at times he was required to work with his head and shoulders inside the open silo. The plaintiff said he was required to do this when emptying a drum into the silo or when using a rake to break up chunks of product which had not fallen through a grate located in the bottom of the silo. This grate is shown in a photograph tendered, exhibit DX20.

8. It was suggested to the plaintiff in cross-examination that he was not physically able to place his head and shoulders into the silo opening. This assertion was initially supported by evidence from Mr Pusic, to whom I have already made reference. Mr Pusic, however, did seem to concede in cross-examination that it was physically possible for a person to have adopted the position described by the plaintiff although he regarded this as being unlikely. It would seem to me from the photograph PX14 that the plaintiff, who is clearly of smaller stature than Mr Pusic, could, if the need arose, have worked with head and or shoulders wholly or partly inside the opening into the silos.

9. The plaintiff's normal work routine required him to open metal drums containing methyldopa. He was required to untie the tag on a bag in the drum and to upend the contents of the bag into the silo. The plaintiff described the silo as going through the floor of the room to a distance about 20 or 30 feet below him. The plaintiff described the access door to the silo as being approximately 3 feet wide. This is consistent with what is shown in the photograph, exhibit PX14. The plaintiff said that his work filling the silos resulted in the liberation of quantities of methyldopa dust.

10. Dust monitoring was conducted by the defendant, although not at times when the plaintiff was working in the dispensary area. The records of this monitoring are set out in exhibit PX18 and suggest that exposure generally in the area where the monitoring was conducted was light. Any exposure would have been further lessened by the use of a paper face mask. It would seem to me that as far as exposure in the dispensary generally was concerned, with the plaintiff wearing a paper mask, albeit one that would not have provided 100 per cent protection, the plaintiff may not have been exposed to significant quantities of methyldopa dust. He would, however, have been exposed to some dust, as the face mask worn by him did not provide one hundred per cent protection. In this respect I would refer to par 5 of exhibit DX14.

11. The dust monitoring test results conducted by the defendant are, as I have said, set out in exhibit DX18. Only 11 samples were taken during the use of methyldopa between 1988 and 1993. The records produced by the defendant do not establish the precise location where the tests were taken, although it would seem that most of the tests were a result of monitors being attached to the clothing of individual employees. It is not known whether the persons who wore the monitors performed work involving the placement of their head or shoulders inside the opening of the silos. The dust monitoring test results are set out in a report prepared by a Ms Sinclair, an occupational health and safety expert qualified for the purpose of this case and called by the defendant. The dust monitoring results appear in table 5 in appendix 2 of her report, exhibit DX14. This table shows that only three samples were taken in the dispensary area where the plaintiff worked and of those samples of course none were taken whilst the plaintiff was performing that particular work. In the circumstances the air sampling results do not by themselves cause me to doubt that the plaintiff's exposure to dust in the dispensing room was in general terms as described by the plaintiff.

12. The plaintiff whilst working in the dispensary area did, as I have said, work with a paper mask. This would have substantially reduced the risk of inhalation of methyldopa dust. Upon the evidence called I am unable to quantify this exposure by reference to any precise measurement such as by milligrams per cubic metre, as was attempted by Ms Sinclair and summarised in exhibit DX14. For reasons which will appear later in this judgment, I do not think that my inability to make such a quantification is of any particular importance.

13. In addition to the dispensing area the plaintiff was required to work in the control room. This room was adjacent to the dispensing area. Nothing in the evidence suggests to me that any significant exposure occurred in this room. The controls operated by the plaintiff in the control room caused the product in the silos to be mechanically mixed in a mixer located in a room adjacent to the dispensary, shown in the plan marked B annexed to the plaintiff's affidavit, exhibit PX2, and described by him as being an open area. This area is also shown in a photograph tendered by the defendant, exhibit DX3. After passing through the mixer where a quantity of alcohol was added the mix was conveyed by pipeline into a dryer in that room. From time to time the dryer clogged up and the plaintiff was required to climb a stepladder to the level of a porthole in the dryer. The plaintiff was required to open the porthole and clear the blockage using a stainless steel rake. When the plaintiff performed this work he wore his paper mask. Dust level assessments conducted by the defendant were not conducted inside the dryer. Again, any exposure that the plaintiff would have experienced whilst performing this work would have been substantially, but not completely, reduced by the paper mask worn by him.

14. The plaintiff was also required to disconnect pipes to clear blockages which were unable to be cleared through the porthole giving access to the dryer. Pipes were again described as dusty when handled. The plaintiff said this exercise was performed once per day. The plaintiff wore his mask when performing this work.

15. The plaintiff was also required to perform work inside the dryer to replace dust collector socks. These were located in the top of the dryer. The socks would occasionally burst causing a siren to be activated in the module. When the siren was heard all machinery was isolated and electrical connections switched off. The plaintiff was then required to open the dryer to obtain access to the damaged sock, the plaintiff then replacing the damaged sock. Whilst performing this work the plaintiff was required to lean inside the dryer. The plaintiff described that work as being quite messy. As I have observed, dust sampling performed by the defendant was not performed inside the dryer and clearly the potential for exposure to methyldopa dust was greater when the plaintiff was performing this activity than when he was performing general work in the dispensary or the open area, shown in the photograph exhibit DX3. Again this increased exposure would have been reduced by the paper mask worn by him.

16. The plaintiff's evidence in relation to repair work inside the room, depicted in the photograph exhibit DX3, was corroborated by Mr Edward Turner, who had been employed as a fitter at the defendant's premises when the plaintiff was employed there. Mr Turner gave evidence that he often worked on the dryer. Mr Turner said that when the dryer was stripped down there was always dust in the air. He confirmed that the plaintiff was required to change dust collection socks in the dryer on a fairly regular basis. Mr Turner recalled assisting the plaintiff performing this task. Mr Turner recalled that he wore a paper mask when this work was being performed, although he did concede that quantities of dust did get past the mask. Mr Turner recalled that generally, masks were worn when this work was being performed.

17. As I have indicated the plaintiff wore a paper mask during all these activities. He gave evidence, however, that he was required to perform additional work when he did not wear a mask. The first extra task which the plaintiff performed whilst not wearing a mask is referred to in par 33 of his affidavit, exhibit PX2. The plaintiff described a drum outside the factory connected to a general dust extraction system, the drum having the capacity to hold approximately 20 kilograms of dust. This drum was connected to pipework which led to the silo area in the dispensary room. Presumably this pipework led to the dust extractors which caused the silos to operate at negative pressure when the doors giving access to the silos were opened. The plaintiff said of this activity:

The drum had a top on that I took off and there was a plastic bag inside that I pulled out. It was a messy job and powder went all over the place as I did this. I then put on a new bag, put the top back on and connected it up again.(PX 2 par 33)

18. The plaintiff said that the bag when taken out was very dusty. The plaintiff described the bag as being perforated, having "little rips in it." The plaintiff said that dust came from the bag and that the dust was very fine, going, as he said, everywhere. The plaintiff said that whilst he performed this work outside, the area where he performed the work was fairly enclosed so that there was not much wind around to blow the dust around the place. Indeed, the plaintiff said that the job was so dirty that other operators did not like to perform it. The plaintiff said that he was required to empty this bag quite often, as much as twice every shift. He said it took him approximately 15 minutes to do this, after which he was required to sweep spilled dust up with a brush, place it in a container and hose the area down. The plaintiff then carried the full dust bag back into the factory, the plaintiff describing the bag as being dusty to handle.

19. Although it was suggested to the plaintiff that masks were worn when emptying bags from the external dust collector, evidence called by the defendant did not establish that any system of wearing masks had been laid down for this activity. When asked questions about the dust collector outside the building, Mr Pusic's recollection was that it was not changed every shift. He was not sure, however, what bag was being referred to as the dust collector, there being a number of such units located outside the module. When cross-examined he conceded that a dust collector was located in the open space referred to in annexure A to the plaintiff's affidavit, and that the dust collector required the regular emptying of dust. Although Mr Pusic did not regard that job as dirty he agreed that it was a job which by its nature created some spillages. Mr Pusic gave no evidence of any direction having been given to employees such as the plaintiff to wear a mask when engaged in this particular activity.

20. The plaintiff also gave evidence that at the end of each batch run all pipes and machinery were stripped down and cleaned. Every available hand in the department was used for this purpose. During this process the plaintiff said that no masks were used. He was not challenged, as I recall the evidence, in this respect. The plaintiff described the machinery being stripped down as being dusty on handling. The plaintiff recalled his head being covered in dust, the dust getting through his hairnet into his hair. After the pipes were cleaned they were tested by a microbiologist for contamination before the machinery was used for the manufacture of another product.

21. Generally, the plaintiff conceded that he always wore a mask during the production process. For tasks performed outside production such as the changing of the dust collection bag and the stripping down and repair of machinery, the plaintiff asserted that he did not wear a mask and that he was not told to wear a mask during those activities by the defendant. Specifically the plaintiff said in par 57 of his affidavit, PX2:
I never wore a mask when I went outside to change extraction bags. I was not told that I had to wear a mask when outside, the emphasis on masks was during production. We were never told we had to wear masks during the cleaning work.

22. Experts were qualified by both the plaintiff and the defendant to comment upon the extent and significance of the plaintiff's exposure to methyldopa dust. Mr Gordon Stewart, an industrial chemist retained by the solicitors for the plaintiff, prepared an initial report dated 3 November 2004, answering a number of specific questions posed to him by the solicitors for the plaintiff. Objection was taken to much of that report as a consequence of which I ruled significant parts of it to be inadmissible. The solicitors for the plaintiff also retained the services of a Ms Julie Armour, an occupational health and safety consultant, who prepared a report dated 30 November 2004. In response to these reports the defendant commissioned a report from Ms Georgia Sinclair, to whom I have already made reference, also an occupational health consultant. Ms Sinclair produced a report dated November 2000. After reading the report of Ms Armour Ms Sinclair produced a further report dated February 2005. After reading the reports of Mr Stewart, Ms Sinclair produced an additional report dated February 2005. These reports were served upon the solicitors for the plaintiff, prompting a further report from Mr Stewart dated 18 March 2005 dealing with air sampling reports identified by Ms Sinclair. Upon receiving Ms Sinclair's report Ms Armour was prompted to provide a further report dated 7 March 2005. These reports were in turn sent to Ms Sinclair, who in turn produced two further reports dealing with Mr Gordon Stewart's comments on the air sampling reports and Mr Gordon Stewart's comments on Ms Sinclair's own comments contained in her further report dated February 2005. Mercifully, neither Ms Stewart or Ms Armour were asked to provide any further comments on anything.

23. Large tracts of the reports of the witnesses Stewart, Sinclair and Armour were objected to and not admitted, principally on the basis that they either did not contain expressions of expert opinion or upon the basis that they infringed the principles set out in Makita (Australia) Pty Ltd v Sprowles 2001 52 NSWLR 705. For the reasons which I now propose to outline none of the reports of the occupational health and safety experts have been of any great assistance to me in resolving the fundamental issues in the proceedings.

24. Mr Stewart was of the view that an appropriate warning should have been given by the defendant to the plaintiff. The nature of the warning which he believes should have been given is set out on p 8 and p 9 of his report dated 3 September 2004. Briefly, Mr Stewart was of the view that the plaintiff should have been appraised of the risk of contracting occupational asthma as a consequence of exposure to methyldopa, given directions as to how to effectively avoid inhalation of dust, and, most importantly, to report to his supervisor and the medical centre any unusual sensations or illnesses including respiratory disorders which could be related to his work. Mr Stewart was also of the view that the paper masks supplied to the plaintiff would have been likely to have reduced exposure to dust by about 70 to 80 per cent, depending upon the face fit. Mr Stewart also identified a respirator which he said was available to industry which would have provided the plaintiff with almost 100 per cent protection from the risk of inhaling fine dust.

25. Ms Armour commented upon the lack of any training of the plaintiff specifically in relation to use of respirators, and expressed the view that the air sampling conducted in the plaintiff's workplace at times when the plaintiff was not present at the factory was not adequate. She also commented that a material safety data sheet should have been provided. Ms Armour's views, however, do not really assist me in determining whether the plaintiff was in fact exposed to any significant quantities of methyldopa dust or in determining whether the defendant's response to any risk associated with exposure to that dust was, in the circumstances, reasonable.

26. The first report of Ms Sinclair, exhibit DX14, contains some 47 pages; the second report runs to some 16 pages; the third report also contains 16 pages; her fourth report contains four pages; her fifth report run to some 14 pages. Meaning no disrespect to Ms Sinclair or her comments on the questions posed to her by the solicitors for the defendant, the conclusions reached by her do not greatly assist me in the resolution of the fundamental issues in the case. Ms Sinclair drew attention to the fact that the report of the occurrence of occupational asthma published in the British Medical Journal, exhibit DX16, was the only reported association published. She analysed in some detail the dust monitoring samples conducted by the defendant in its factory at South Granville, commenting that the measured exposure to dust did not exceed the internal control limit set down by the defendant, or to be more precise the defendant's American parent, of 5 milligrams per cubic metre on a time weighted average basis. Whilst Ms Sinclair's comments in relation to the areas which had been the subject of air monitoring are no doubt valuable in assessing the significance of dust found in the atmosphere at the time those monitoring tests were conducted, those tests and Ms Sinclair's comments upon those tests do not have any relevance to the work performed by the plaintiff in areas outside the production process when he did not wear a respirator.

27. As I have indicated above the plaintiff was required to perform work in disassembling, stripping and cleaning work between batches and was required to change the dust collection bag located outside the manufacturing area on a regular basis at times when he did not wear a respirator or face mask. As the exposure to methyldopa dust on these occasions appears to me to be more significant than any exposure whilst engaged in the manufacturing process in the Aldomet module, the conclusions reached by Ms Sinclair in relation to the significance of the plaintiff's exposure do not have relevance to those aspects of the plaintiff's employment which probably resulted in the most significant exposure to methyldopa dust. In the circumstances I find that the plaintiff was exposed to methyldopa dust, most significantly when working in stripping, and replacing the dust collection bag, when he was not wearing a respirator or face mask.

28. The plaintiff appeared generally to be a witness who attempted to tell the truth. Whilst some aspects of his evidence, particularly in relation to his smoking history, do not warrant uncritical acceptance, viewing his evidence as a whole, including the extent to which his evidence was corroborated by the witness Turner, it seems to me that the plaintiff was exposed at times to significant quantities of methyldopa dust, not so much whilst involved in the actual manufacturing process but whilst stripping or cleaning equipment and whilst emptying dust collection bags outside the premises. The exposure was, I find, significant, and would have borne no relationship to the density of distribution of methyldopa dust identified by the defendant's air sampling studies to which Ms Sinclair referred.

29. The defendant maintains that methyldopa is non toxic and that it does not cause any adverse health effects through inhalation. The defendant bases its position upon the experience of its American parent Merck and Co Incorporated, that company having used methyldopa in the production of Aldomet at many overseas locations since the 1960s with no reported occurrence of any adverse health effect coming to light throughout that period. The plaintiff, however, argues that the defendant ought to have been on notice of the potential for methyldopa dust to cause occupational asthma as a result of the publication in the British Medical Journal in 1979, DX16. The defendant concedes that its North American parent was aware of this paper but maintains that, despite the contents of that report, there was and is no demonstrated association in fact between methyldopa dust and occupational asthma and that it would have been unreasonable to require it to introduce specific measures in relation to methyldopa dust on the basis of one isolated published report, particularly when viewed against the substantial and apparently trouble free history of use of methyldopa over a substantial period of time.

NEGLIGENCE

30. To establish negligence the plaintiff must prove that the defendant failed to exercise reasonable care to protect him from a foreseeable risk of injury. As the plaintiff's employer the defendant was required to exercise reasonable care to provide him with a safe place and system of work. To establish liability the plaintiff must establish:

(b) That the risk of such injury was reasonably foreseeable by the defendant.

(c) That, given the nature of that risk, the defendant unreasonably failed to take precautions available to it to remove or minimise that risk.

(d) That the plaintiff suffered actionable damage as a result of that failure or breach of duty.

31. Senior Counsel for the plaintiff, Mr Letcher of Queen's Counsel, submitted that an association between methyldopa dust and asthma had been demonstrated in the British Medical Journal article in 1979. He submitted that exposure to methyldopa dust created a foreseeable risk of contraction of occupational asthma on the part of employees of the defendant such as the plaintiff. He submitted that the defendant, as the plaintiff's employer, had failed to take reasonable steps to protect the plaintiff from this risk of injury. Mr Letcher submitted that a reasonable response to the risk identified in the British Medical Journal article would have been to notify its medical staff to be alert for any symptoms of a respiratory nature in any employees who attended the medical centre, and to lay down a protocol to be followed in the event of any such symptoms being reported. Mr Letcher further submitted that proper notification should have been given to the plaintiff of the possibility that exposure to methyldopa could cause asthma and that the plaintiff should have been directed to report to the medical centre in the event that he experienced any respiratory symptoms, to enable those symptoms to be evaluated by trained medical staff.

32. The plaintiff gave evidence that if he had been aware that Aldomet was potentially dangerous to his health he would not have agreed to work with it in the conditions which he did. His evidence was not challenged in this respect. Mr Letcher submitted that had the plaintiff been given an appropriate warning when he commenced work with the defendant he would not have remained in that employment once his respiratory symptoms emerged. Given that the plaintiff apparently raised the possible connection between his work exposure and respiratory symptoms with his general practitioner in October 1992, this being confirmed by the records of Dr Kumar which have been tendered as an exhibit in these proceedings, it would seem to me that Mr Letcher's submission in this respect has merit. Mr Letcher submitted, based on the medical records of Dr Kumar, that the plaintiff was not sensitised to methyldopa until mid 1993. Again Dr Kumar's records are consistent with this proposition, to which I will return later.

33. Taking into account all the evidence it seems to me that had a warning been given to the plaintiff at the commencement of his employment to the effect that methyldopa dust was a potential asthmogen the plaintiff would probably not have continued in the employ of the defendant after his symptoms arose, and certainly would not have continued to allow himself to be exposed to methyldopa dust thereafter up until the time he was sensitised by that dust and diagnosed with asthma in about mid 1993.

34. Mr Letcher submitted that the defendant ought to have been particularly concerned about the potential adverse health effects of exposure to methyldopa dust in that it was the only company which exposed workers to the product, its USA parent controlling all patent rights to the product. Whilst the risk of contracting occupational asthma as a result of exposure to methyldopa dust might be described as rare, Mr Letcher submitted that by its very nature occupational asthma is not necessarily contracted by all persons exposed to a particular asthmogen. Mr Letcher submitted that the defendant had a particular obligation to at least alert its workforce to the potential for methyldopa dust to cause asthma. Mr Letcher did not suggest that the defendant or its US parent ought to have commissioned any particular studies to follow up the association reported in the British Medical Journal. Mr Letcher submitted that an appropriate step which could have been taken, proportionate to the risk, would have been to give the plaintiff an appropriate warning and to give appropriate instructions to members of its staff employed at the defendant's medical centre. Mr Letcher submits that the defendant's failure to warn the plaintiff and the defendant's failure to give appropriate instructions to medical staff at its medical centre at South Granville to be on the alert for asthma like symptoms amounted to a breach by the defendant of the duty of care owed by it to the plaintiff.

35. Mr Watson of Senior Counsel submitted that the defendant was not in breach of the duty which he conceded the defendant owed to the plaintiff as the plaintiff's employer. Mr Watson firstly submitted that there was no association between methyldopa dust and occupational asthma and that accordingly there was no foreseeable risk against which the defendant ought to have taken some precautions. Alternatively Mr Watson submitted that if an association between methyldopa dust and asthma had been demonstrated by the British Medical Journal article, the risk was so minute that the defendant acted quite reasonably in not giving any warning to the plaintiff of that minute risk and in not giving any directions to its medical staff to alert them to that risk.

36. I have concluded, for reasons which appear later in this judgment, that a connection between methyldopa dust and occupational asthma, although rare, has been demonstrated. What must be determined is whether the defendant's response to the risk generated by that connection was sufficient to discharge the duty of care it owed to the plaintiff. Having considered the submissions on behalf of the defendant and the plaintiff I am of the view that the defendant was in breach of the duty owed by it to the plaintiff to provide a safe place and system of work. The defendant undertook the cost and expense of arranging a pre-employment medical examination of the plaintiff, including lung function tests. Having determined to employ the plaintiff it would have taken very little to have given the plaintiff an appropriate warning of the existence of the albeit rare risk of methyldopa dust causing occupational asthma. Such a direction would have involved minimal expense. Further, it would seem to me that, having provided its employees with access to its own medical centre, no significant expense would have been involved in issuing instructions to medical centre staff to be on the alert for any factory workers who attended the medical centre with symptoms which could suggest the early onset of occupational asthma in time to take steps to ensure that no further exposure to methyldopa dust occurred. For these reasons I find that the defendant was in breach of the duty owed to the plaintiff as the plaintiff's employer.

BREACH OF STATUTORY DUTY

41(1) In this section fume means fume, mist, gas, vapour or other impurity.

41(2) Where in connection with any process carried on in a factory there is generated or given off any fume of such a character and to such an extent the inhalation thereof would be likely to be injurious or offensive to persons employed in the factory or any substantial quantity of dust of any kind, effective measures shall be taken to prevent the accumulation in any work room, of such fume or dust and to protect such persons against the inhalation thereof.

38. Mr Watson of Senior Counsel submits that s 41(2) imposes a subjective test and introduces the notion that the employer should have foreseen that injury was likely to result, and relies upon Silvestro v Verbon (1973) 2 NSWLR at p 513. Mr Watson also relies upon the decision of the Tribunal in Wallaby Grip (BAE) Pty Ltd v Betta Industries ( 2002) 23 NSWCCR 1 at pars 22 to 25. In Silvestro, Bowen JA said (at p 523):

It [that is s 41] introduces the notion that the employer should have foreseen that injury was likely to result and therefore should have taken effective measures to protect the persons employed in the factory.

Later in his judgment his Honour said:

As to the first of these factors it appears to me that while the fact that particular fumes are not injurious to persons generally may be material on foreseeability, it does not dispose of the matter. The section refers to 'person employed in the factory.' If all the persons in a particular factory were particularly susceptible or idiosyncratic, I do not think an employer could claim that because particular fumes would not be injurious to persons generally, though injurious to his employees or some of them he had no duty under the section once he was aware of their injurious effect. His duty, it seems to me, relates to persons 'employed in his factory' and, if they answer this description, he must take them as he finds them

It would still be a question on my interpretation of s 41 whether it was likely to be injurious to those employees or any of them. If the employer was unaware of the peculiarities of his employees he might well be unaware or unable to foresee it might be injurious to them.

39. There is no reason to believe that the defendant was aware that the plaintiff in particular was or was likely to become susceptible to sensitisation to methyldopa dust. In my view the plaintiff has not proved that exposure to methyldopa dust was "likely to be injurious" within the meaning of those words in s 41(2). Whilst it was, as I have found, in breach of its common law duty to provide an adequate warning to the plaintiff, and whilst it was in breach of its common law duty to give appropriate directions to medical staff employed by it in its medical centre, it was not in my view in breach of the duty imposed by s 41 of the Act to take effective measures to prevent the accumulation of dust in work rooms in the factory.

CONTRIBUTORY NEGLIGENCE

GENERAL CAUSATION:

41. The connection or lack of any connection between exposure to methyldopa dust and the contraction of occupational asthma has been the subject of much debate in these proceedings. Experts called to give evidence have expressed differing views. Doctors Burns and Warburton, called on behalf of the plaintiff, support such an association. Professor Newman-Taylor, one of the authors of the British Medical Journal article, supports the existence of an association in general terms, despite the fact that, having regard to modern publishing criteria, he concedes that he would not now submit the 1979 paper for publication. Doctor Harries, a consultant physician in practice in the United Kingdom and a co-author of the British Medical Journal paper, seems to accept that there may be a connection between methyldopa dust and occupational asthma, but does not accept that the plaintiff was or is suffering from this condition, although he did not examine the plaintiff. Likewise, Professor Breslin, a consultant thoracic physician retained by the defendant, whilst accepting the possibility that methyldopa can, in a rare case, cause occupational asthma, does not accept that the plaintiff is suffering from this condition. Professor Dunsmuir, a biostatistician from the University of New South Wales, did not feel that an association between methyldopa dust or asthma could be established to his satisfaction on the basis of the British Medical Journal article by itself. Professor Pickering, a thoracic physician who examined the plaintiff in the United Kingdom, appears to have adopted similar views to those of Professor Breslin. The only expert witness who expressed an unqualified rejection of the proposition that methyldopa dust can cause occupational asthma was Dr Sargent, the Senior Director of Toxicology from Merck & Co Incorporated, the defendant's parent company in the United States of America.

Seltsam Pty Ltd v McGuiness

43. With all due respect to the submissions from Mr Watson, I do not agree that this is a case where epidemiology or biostatistics plays any significant part. The authors of the British Medical Journal article reported a diagnosis of occupational asthma that they had made in respect of a particular patient on the basis of an examination of the patient, the relevant occupational history, and, importantly, on the basis of that patient's response to challenge tests. The authors did not refer to any epidemiological or biostatistical studies in reaching their conclusion in the particular case under study. As I read the British Medical Journal article the authors did not put their paper forward as a study in epidemiology or biostatistics. They merely observe and report an association in a particular case, basing their conclusions upon the specific matters referred to and set out in the article.

44. No expert in the plaintiff's case purports to find a connection between the plaintiff's alleged occupational asthma and methyldopa exposure by reference to epidemiology or biostatistics. Further, with the exception of Professor Dunsmuir, the defendant's experts appear to accept that an association may occur in a rare case but offer what they believe to be compelling reasons for rejecting the association in this particular case. As far as Professor Dunsmuir's views are concerned nobody, as I understand the evidence, is asserting that the case report in the British Medical Journal article establishes by itself an association between methyldopa dust and asthma to the extent that methyldopa is to be regarded as an asthmogen. Accordingly, with all due respect to the submission from Mr Watson of Senior Counsel, I do not believe that reference to the principles laid down in Seltsam Pty Ltd v McGuiness is necessary or required in this case.

45. I accept that Dr Sargent was of the view that there was no association between methyldopa dust and asthma, but for reasons which appear later in this judgment, I do not believe that his evidence in this respect was compelling. The weight of the medical evidence to which I have referred and to which I will refer later in this judgment when dealing with the issue of specific causation in my view supports the proposition that exposure to methyldopa dust can cause asthma, and I so find. Exposure, however, will only result in asthma in a rare case. What must be determined is whether the plaintiff has proved that he has in fact contracted occupational asthma as a result of his exposure to respirable methyldopa dust in the employ of the defendant.

47. The experts who accept that the plaintiff has contracted occupational asthma as a result of exposure to methyldopa dust place significance on the history given by the plaintiff of the onset of symptoms within a matter of weeks of the commencement of his employment and of his exposure to methyldopa dust. The experts who reject the proposition that the plaintiff has contracted occupational asthma as a result of his exposure to methyldopa dust do so on several bases, including but not limited to the following:

(a)The plaintiff's symptoms can be totally explained by lung disease contracted by him as a result of his smoking habit over a long period of time.

(b)The symptoms did not emerge at a time which was thought to be appropriate to associate asthma to his work.

(c)If the asthma was occupationally induced the symptoms ought to have subsided when the plaintiff ceased work with the defendant in early 1995.

It is accordingly necessary to examine in some detail the plaintiff's smoking history and the evidence from the plaintiff of the onset of his symptoms.

48. In his affidavit, PX2 par 80, the plaintiff said that he commenced smoking at the age of 25. He said that by his early thirties he was smoking about 20 a day, reducing to about ten a day in his forties. The plaintiff said he had given up smoking completely on a number of occasions for extended periods, at one time stopping smoking for about two years, stopping on another occasion for about three years. The plaintiff said he had been smoking about four cigarettes per day during the last four years. This evidence was challenged in cross-examination. It was put to the plaintiff that records obtained from his general practitioner in 1989, Dr Kumar, indicated that the plaintiff had told Dr Kumar that he was then smoking about 15 to 20 cigarettes per day. It was suggested to the plaintiff that he had indicated at the defendant's medical centre on 19 January 1994 that he was then smoking 20 cigarettes per day. It was suggested to him that records from the Westmead Hospital show that he had told personnel at that hospital in November 1994 that he was then smoking 20 cigarettes per day. It was further suggested to him that he had told his treating thoracic physician in Australia, Dr Gardiner, in 1995, that he had been smoking 20 cigarettes per day for the last 36 years. The plaintiff, however, denied the assertions put to him by counsel for the defendant, in particular that he had started smoking at about age 20, smoking about 20 cigarettes per day thereafter.

49. The records upon which counsel for the defendant relied suggesting to the plaintiff that his evidence concerning his smoking history was incorrect, and that he had smoked more than that which he conceded, support the defendant's case in this respect. Dr Burns, a thoracic expert qualified for the plaintiff in the proceedings, readily conceded the general proposition that smokers tend to underestimate their smoking histories. It would seem to me that the plaintiff, intentionally or unintentionally, was not giving a correct account of his smoking history in evidence. It would seem probable to me that the plaintiff has smoked closer to 20 cigarettes a day from at least his mid twenties until at least 1995, giving a total smoking history in excess of 30 pack years. The plaintiff, being aware of the health risks associated with smoking, continues to smoke several cigarettes per day despite having been given forceful advice on several occasions that this smoking habit was having a deleterious affect on his respiratory condition. The plaintiff's decision to continue smoking despite advice given to him to the contrary is surprising given his concession that he did not feel that he was addicted to cigarette smoking. The transcript reference for that concession is p 63 line 23.

50. The overwhelming majority of the medical evidence indicates that the plaintiff suffers, in addition to asthma, emphysema, that is, destruction of lung tissue as a result of smoking cigarettes. Further, the plaintiff suffers from additional lung damage as a result of his smoking habit, that is airways narrowing. In the view of Professor Pickering, the plaintiff's smoking induced disability is virtually if not entirely the sole cause of his ongoing symptoms. Dr Warburton, the plaintiff's treating thoracic specialist in the United Kingdom, believes that the plaintiff's smoking habit has caused 40 per cent of his ongoing disabilities. This assessment, however, would seem to me to be somewhat generous in favour of the plaintiff in that the history of smoking recorded by Dr Warburton is significantly less than the histories of smoking given by the plaintiff to other doctors and summarised earlier in this judgment.

51. As I have indicated, the medical evidence shows that the plaintiff's condition of smoking related emphysema involves destruction of lung tissue and airways narrowing. This damage is permanent and causes persisting and non variable respiratory disability. This damage is separate damage to that caused by asthma. Whilst asthma also causes airways narrowing, that narrowing, on the evidence, is caused by periodic hyper responsiveness in the airways and is different from and separate to the underlying smoking induced damage. Experts who examined the plaintiff on behalf of the defendant have formed the view that, based solely on the probable history of smoking, being in the order of some 30 pack years, smoking induced lung disease could by itself explain the totality of the plaintiff's respiratory disability. What must be determined is whether the plaintiff has proved that a part of his respiratory disability has been caused by occupational asthma resulting from methyldopa exposure to the extent that actionable damage has been occasioned.

52. The plaintiff in his affidavit said that he first noticed problems about four or five weeks after commencing work with the defendant in August 1992. He stated that it had been his wife who had drawn his attention to the fact that he was coughing when he came home from work. The plaintiff stated that he then started to notice that he was becoming very tight in the chest, this being especially noticeable after he had returned home and had relaxed. The plaintiff found that his tightness would ease overnight and that by the next day he would be fit for work. The plaintiff then found that after performing a full day's work he was again tight in the chest. The plaintiff said that he consulted his general practitioner, Dr Kumar, telling him of his concern. The plaintiff said that his doctor had diagnosed a chest infection prescribing antibiotics, not mentioning anything about asthma at that stage. The plaintiff said he was given a bit over a week off work at that time. The plaintiff said that he felt better within two or three days of ceasing work. The plaintiff then returned to work feeling well. The plaintiff said it was not until a further period of three months had elapsed that another batch of Aldomet came up. The plaintiff said that until this time he had continued to feel very well.

53. The plaintiff said that to the best of his recollection he recommenced working on batching Aldomet in early 1993. The plaintiff recalled that within three or four days of starting with the product again he resumed coughing. The plaintiff said that his wife also noticed that the coughing had resumed. The plaintiff said that very soon thereafter he noticed that the tightness in his chest and shortness of breath had returned. The plaintiff said that this time he did not delay in seeing his doctor, his doctor performing lung function tests, telling the plaintiff shortly thereafter that he had contracted asthma. The plaintiff said that his doctor prescribed a Ventolin spray and another puffer, whose name he could not recall. The plaintiff said that he was also prescribed antibiotics.

54. Importantly, the plaintiff said that at that stage he told his doctor that he felt that he may have been reacting to powders that he worked with. According to the plaintiff, his doctor did not comment on this. By this time the plaintiff said he was associating his condition with methyldopa exposure because he had noticed that his health problems seemed to coincide with working with that product.

55. Medical records have been produced from Dr Kumar's practice. Those records show that the plaintiff presented on 28 September 1992 complaining of symptoms leading that doctor to diagnose an upper respiratory tract infection, the doctor prescribing antibiotics. This entry is consistent with the plaintiff's evidence in par 62 of his affidavit. The records produced by the defendant do not include, however, any certificate of absence from work for the brief period when the plaintiff said he ceased work at that time on the advice of his general practitioner, Dr Kumar.

56. The next entry in Dr Kumar's records relates to a consultation on 17 October 1992. The plaintiff gave no evidence of this particular consultation nor was he cross-examined about it. The entry in Dr Kumar's records notes that the plaintiff had been in receipt of antibiotics, finishing about two weeks previously. The notes contain the entry:

? related to fine powder from work.

The notes record that the plaintiff felt that his chest still felt tight.

57. The next record in Dr Kumar's notes relates to a consultation on 29 June 1993. The notes of that consultation suggest that Dr Kumar performed some respiratory testing, diagnosinig the plaintiff as suffering from right-sided bronchitis. Although no specific entry was made in the records, it would seem probable from the nature of medications prescribed and treatment provided by Dr Kumar and other medical records that have been tendered in the case, that Dr Kumar at that stage diagnosed the plaintiff as suffering from asthma. Dr Kumar gave the plaitiff a certificate of unfitness from work from 29 June until 31 June 1993. The plaintiff reattended Dr Kumar's practice on 2 July 1993, the plaintif then being certified as being unfit for work from 29 June until 2 July 1993. A copy of this certificate has been produced from the defendant's records, this certificate being completed by Dr Lok, presumably from the same practice as Dr Kumar, certifying the plaintiff as being unfit for work as a result of an upper respiratory tract infection.

58. The attendances of the plaintiff at Dr Kumar's practice on 29 June 1993 and 2 July 1993 seem to be generally consistent with the evidence that after returning to work with Aldomet the plaintiff suffered a recurrence of his symptoms. A difficulty lies in the fact that in his evidence he deposed to restarting work with Aldomet in early 1993, whilst the records of Dr Kumar suggest that the consultation, after the reoccurrence of his symptoms, took place in June 1993. It must be remembered, however, that the plaintiff in his affidavit expressed his evidence to be "to the best of my recollection" and that his affidavit was sworn on 23 March 2005, some 12 years after the relevant consultation. There is no indication from the evidence whether or not the plaintiff's attention had been drawn to the entries in Dr Kumar's notes at the time he swore his affidavit. Another inconsistency lies in the fact that in par 65 of his affidavit the plaintiff stated that "at this stage", that is when he consulted his general practitiioner in 1993 after the recurrence of symptoms, he recalled telling the doctor that he may have been reacting to powders he was working with. This may well be and probably is a reference to the consultation on 17 October 1992, giving rise to the entry relating to the possibility of the plaintiff's symptoms being related to fine powder at work.

59. The records from Dr Kumar's practice confirm that the plaintiff thereafter consulted that practice in relation to his respiratory symptoms in November 1993, December 1993, August 1994 and February 1995. The entries in Dr Kumar's records would seem to me to be generally consistent with the plaintiff's evidence, subject to the qualifications that I have referred to.

60. There exist a number of inconsistencies in relevant medical histories given by the plaintiff at various times which have given rise to an attack on the plaintiff's credibility by the defendant. These alleged inconsistencies have their origin in the records of doctors who have treated him or who have examined him for the purposes of these proceedings. The most important inconsistency would appear to be between the plaintiff's evidence in his affidavit and orally and records produced under subpoena by Dr Gardiner, the plaintiff's treating thoracic specialist in 1995, and a letter sent by Dr Gardiner to the plaintiff's general practitioner at that time.

61. The plaintiff suffered a severe onset of symptoms in January 1995. At that time the plaintiff had been off work for about one week. The plaintiff gave evidence that for a couple of weeks before his holidays started he had been feeling poorly and that he had been practically dragging himself to work. The plaintiff said he had been feeling "really short of breath" but that he had attempted to keep going until his holidays. The plaintiff gave evidence that at that time he was coughing and feeling short of breath. After returning from a trip to Queensland during his holidays the plaintiff apparently collapsed in the street outside his front gate. The plaintiff was taken by ambulance to the Westmead Hospital where he came under the care of Dr Gardiner. Dr Gardiner subsequently wrote to Dr Kumar in relation to the plaintiff's treatment in a letter dated 11 February 1995, now comprising exhibit DX8, the letter having been written after the plaintiff was discharged from Westmead Hospital. Dr Gardiner recorded the following history:

Four weeks after starting at Merck Sharp & Dohme in 1992 he noticed that he would become breathless particularly after handling Aldomet. Later he noticed that some pills which contained alcohol in the mixing process would make him breathless. Other workers have complained of Sinemet and Cogentin causing similar symptoms but he has not noticed any problems with those medications. He usually wears gloves, masks with a dual cartridge filter when handling drugs and with some new anti-metabolites he wears a full air hood and hose. Despite those precautions he admits that the whole of the place is covered with a fine dust and at the end of every week it is inevitable that he is inhaling a small amount of every pharmaceutical.

From the time he first noticed symptoms two years ago he has been breathless on first waking and the symptoms have improved during the day. He has not noticed any difference between Mondays and Fridays or between weekends and week days, When he had his recent admission to hospital he had been on holidays for a week. His asthma attack happened very suddenly and did not respond to the Bricanyl which he has been carrying with him. In retrospect he has noticed his asthma has been worsening over the last 12 months.

62. After examining the plaintiff Dr Gardiner expressed the view that the plaintiff's asthma "may be occupationally related." Dr Gardiner asked the plaintiff to keep regular measurements using a peak flow meter, being a device which enabled the plaintiff to measure forceful expiration of air from his lungs when at work or at home. Importantly, Dr Gardiner said in his report:

Very often with occupational asthma if the worker is removed from the sensitising agents the symptoms subside permanently but if the exposure is long continued then asthma can remain after the removal from exposure.

This is consistent with evidence from Professor Breslin, to which I will refer in due course.

63. The plaintiff has given histories of his occupational exposure to methyldopa dust and the onset of his symptoms to other doctors who have treated him and who have examined him for the purposes of these proceedings. No two histories are absolutely identical. This in a general sense would not seem to be unexpected when the plaintiff has been required to cast his mind back over a period of up to 16 years, possibly without the benefit at the time of those consultations of the treatment records then held by Dr Kumar. The difference between the plaintiff's evidence in his affidavit and in the witness box and the history recorded by Dr Gardiner in 1995 and recorded in exhibit DX8 is, however, another matter.

64. Although records relating to Dr Gardiner's treatment have been tendered he was not called as a witness. Given his importance in the case I infer that his evidence, had he been called, would not have advanced the plaintiff's case. The defendant, however, goes further, submitting that I should not accept the plaintiff's evidence in relation to the onset of his symptoms and his claimed association with increased symptoms when working with Aldomet or methyldopa as a result of these many inconsistencies, particularly what appears to be a clear inconsistency between his evidence concerning the onset of his symptoms and the notes and letter from Dr Gardiner to which I have referred.

65. Some medical experts who have given evidence in this case place great significance on the records of Dr Gardiner. One medical expert who appears to have placed particular significance on the records of Dr Gardiner and the history recorded by that doctor is Professor Pickering, to whom reference has already been made. Professor Pickering is a highly qualified thoracic specialist who examined the plaintiff in November 1999 and June 2004 on behalf of the defendant in the United Kingdom. In his second report dated 17 June 2004 Professor Pickering set out the relevant inconsistencies in history or histories given by the plaintiff, and in particular the clinical history taken in February 1995 by Dr Gardiner. When giving evidence via a telephone link in these proceedings, the Professor being at that time in Spain, Professor Pickering said of that important inconsistency - in this respect I refer to the transcript p 425 line 2:

That's correct but it is completely inconsistent with the history that he gave at the time that he was working in 1995 to Dr Gardiner and Dr Gardiner is rather crucial in this. He is the only person who took a full occupational history with this individual at the time when he was working.

Shortly after that evidence was given the telephone connection with Spain was lost. When the telephone connection was re-established, further questioning of Professor Pickering was concerned with the records of Dr Kumar, which apparently had not been available to Professor Pickering at the time of his last report. The significance of Dr Gardiner's history was not taken any further in the course of that re-established telephone link.

66. It was suggested generally to the plaintiff in cross-examination that he had reconstructed the history of his symptoms and their association with methyldopa dust at work purely for the purposes of these proceedings. The plaintiff has denied this assertion. The defendant submits that I should reject the evidence of the plaintiff in relation to the history of the onset of his symptoms and his asthma, the defendant submitting that the plaintiff has been shown to be an unreliable witness whose evidence in this respect should not be accepted. Whilst other aspects of the plaintiff's evidence have been attacked, including other discrepancies between his evidence and medical histories, these other discrepancies do not appear to me to be of the same significance insofar as the plaintiff's credit is concerned as does the apparent inconsistency between the plaintiff's evidence and the records of Dr Gardiner.

67. Another inconsistency which is said to detract from the plaintiff's credibility relates to the contents of the medical centre records maintained by the defendant. The plaintiff said that to the best of his recollection he started work back on Aldomet or recommenced work with Aldomet in early 1993, consulting his doctor when his respiratory symptoms returned. In his affidavit he said that he later went to see the company doctor at that medical centre, Dr Garvan, telling Dr Garvan that he thought that his asthma may have been a reaction to methyldopa dust to which he was exposed in his workplace. In his affidavit the plaintiff deposed that Dr Garvan had responded to this expressed concern by saying:

“To my knowledge none of the products we manufacture cause asthma” or words to that effect.

The plaintiff said he took what Dr Garvan said at face value, being still quite new at the job, not wanting to rock the boat. He said he took his medication and just returned to work coping with his symptoms as best he could.

68. The records from the defendant's medical centre have been tendered and are exhibit DX7 in these proceedings. Exhibit DX7 shows that the first recorded consultation occurred on 15 December 1993. The records record that the plaintiff told Dr Garvan that he had suffered asthma since April 1993. The notes contain the entry:

No problems on job. Works in manufacturing. No dust problems. Wears mask.

69. The plaintiff was cross-examined about his attendances at the medical centre. It was suggested to him that he had told the staff at the medical centre that he had no problems with his job concerning his asthma, and the plaintiff agreed that he would have said that. The plaintiff acknowledged that this was a half truth, the plaintiff explaining that he did not wish to cause a fuss as he was afraid of losing his job. He denied that he had said at the medical centre he was working in manufacturing but was experiencing no dust problems. The plaintiff remained adamant that in 1993 he had mentioned his work conditions and his asthma to Dr Garvan. It was suggested to him that it was only months later that he had begun to say that his asthma was associated with work. The plaintiff answered, (transcript p 50 line 29):

Answer - No, it was after my first attack after five weeks. I think it may be three or four months later, that's when I associated it with the dust at work and that is what I told Dr Gardiner how I felt. Dr Garvan.

It would seem to me clear that the plaintiff was intending to refer to Dr Garvan and that the reference to Dr Gardiner in his answer was a mistake. It was then suggested to the plaintiff that his evidence in this respect was wrong. The plaintiff denied this assertion.

70. The defendant tendered a report from Dr Garvan dated 9 September 1999. The report is on the letterhead of the defendant, suggesting that the doctor was then still employed by the defendant. In that report, written some three years after the entries in the medical centre records were made in relation to the plaintiff, Dr Garvan set out the history of the plaintiff's attendance’s at the medical centre. The doctor's report is consistent with all the entries in exhibit DX7 and may well have been dictated directly from those notes. The notes made by Dr Garvan at the medical centre recorded in DX7 and the contents of his written report admitted as exhibit DX17 are not in a general sense consistent with the evidence of the plaintiff. The plaintiff, however, in evidence specifically asserted that he had asked Dr Garvan whether his asthma was a reaction to methyldopa, the plaintiff asserting that Dr Garvan had replied that, to his knowledge, no products in the manufacturing process could cause asthma.

71. The report of Dr Garvan is dated September 1999. I do not know if he remains in the employ of the defendant. It would seem, however, from statements by counsel when the report was tendered, that he has been spoken to or was spoken to about giving evidence in the proceedings. Despite the fact that the notes and the report from Dr Garvan did not specifically address the allegation made by the plaintiff, that is that he had raised the potential connection between methyldopa dust and asthma with Dr Garvan, being told that to Dr Garvan's knowledge none of the products used in the manufacturing process could cause asthma, the defendant chose to tender the report rather than calling the doctor to give evidence in relation to this specific assertion made by the plaintiff in evidence.

72. The plaintiff's evidence that he raised the possibility of methyldopa dust at work being a cause for his asthma is consistent with that question being raised by him on 17 October 1992 when he consulted Dr Kumar in relation to his respiratory symptoms. As I have indicated earlier in this judgment Dr Kumar's records confirm that the question of an association between work dust and asthma had then been raised by the plaintiff. The plaintiff's evidence, however, is to some extent inconsistent with the notes from the medical centre and Dr Garvan's letter dated 9 September 1999.

73. I do not know whether Dr Garvan has any independent recollection of the plaintiff and his attendances at the medical centre or whether his letter on 9 September 1999 was dictated solely on the basis of the medical notes from the medical centre. In the absence of oral evidence from Dr Garvan I do not propose to reject the evidence of the plaintiff that he had raised the possible association of his work and asthma or that Dr Garvan had told him that the products he worked with were not known to cause asthma. The extent to which I will accept the evidence of the plaintiff, however, will be referred to later in this judgment.

74. Generally speaking the plaintiff did not appear to be an untruthful witness. There is no doubt that his evidence in important respects is inconsistent with medical records and histories given by him to doctors, to which I have referred. As I have already found, the plaintiff's evidence in relation to his smoking history, is at best, less than reliable. It does appear to me, however, that the plaintiff's evidence in general terms is corroborated by the records of Dr Kumar, making appropriate allowances for the fact that his evidence is now being given some 12 years after his first exposure. This, however, does not explain the inconsistencies between his evidence and the notes made by Dr Gardiner at the time the plaintiff consulted him in February 1995. I will return to this aspect of the case and the extent to which I accept the evidence of the plaintiff in relation to his recollection of the onset of his symptoms after I review the medical and other expert evidence relevant to the issue of specific causation, which I will do tomorrow.

(Proceeding adjourned at 4.00 p.m. to 21 April 2005 at 10.00am)

75. In giving judgment yesterday I found that one of the breaches of duty by the defendant was its failure to properly instruct staff at its medical centre. I made that finding having inferred from exhibit DX7 (the letter from Dr Garvan dated 9 September 1999 where he states that Aldomet is not known as a cause of asthma) that the defendant had not told that doctor of the reported connection between methyldopa and asthma and that accordingly inappropriate instructions had been given to the medical centre. I now turn to an examination of the medical evidence in the case.

76. Dr Burns, a thoracic physician, first saw the plaintiff at the request of his solicitors at Liverpool in the United Kingdom on 28 September 1998. The plaintiff told Dr Burns that within three weeks of commencing work with methyldopa he began to feel out of breath. This is consistent with the plaintiff's affidavit and generally consistent with the records of Dr Kumar who was consulted by the plaintiff at about that time, Dr Kumar diagnosing an upper respiratory tract infection. The plaintiff told Dr Burns that his general practitioner later diagnosed asthma. For reasons given earlier in this judgment it would seem to me that that diagnosis was made in about mid 1993. The plaintiff told Dr Burns that he continued to be exposed to methyldopa powder at work using the asthma medication prescribed by his general practitioner. The plaintiff told Dr Burns that he had suffered a severe attack of asthma in January 1995 resulting in admission to the Westmead Hospital, coming under the care of Dr Ian Gardiner.

77. Dr Burns examined the plaintiff, finding the plaintiff to be severely breathless and limited in what he could do. Dr Burns recorded that the plaintiff had conscientiously kept a peak flow rate chart for his general practitioner in the United Kingdom. The plaintiff told Dr Burns that he had not seen a specialist since leaving Australia. Dr Burns examined the plaintiff but did not have available to him the means to perform respiratory function tests.

78. In his report dated 23 September 1998 Dr Burns noted the reported association between methyldopa dust and occupational asthma contained in the British Medical Journal article, exhibit DX16. Dr Burns diagnosed the plaintiff as suffering from asthma, although he felt that the asthma was not straightforward. Dr Burns felt that the plaintiff was suffering from continuing respiratory infection. Dr Burns was concerned that the plaintiff was not being treated by a chest specialist and recommended to the plaintiff when he saw him that he should arrange for a referral to a specialist for assessment and treatment. Dr Burns felt that the plaintiff's asthma had been caused by his exposure to methyldopa dust at work. As the plaintiff's exposure to methyldopa dust had ceased, Dr Burns felt that the plaintiff's condition was chronic, resulting from methyldopa sensitivity at the workplace.

79. In evidence in chief Dr Burns recalled that he had worked at the Brompton Hospital, the hospital which gave rise to the report set out in the British Medical Journal. Dr Burns gave weight to the Medical Journal article on the basis of his knowledge of and experience at that hospital. Dr Burns felt that the methyldopa dust did not need to be absorbed into the bloodstream to have any adverse affect, the mechanism giving rise to the development of the allergy occurring as a result of dust settling on the moist lining of the bronchial system and the subsequent development of antibodies at that location.

80. In cross-examination Dr Burns conceded that one would not normally anticipate finding reduction in diffusion, that is reduction in the capacity of the lung to transfer oxygen from air in the lung to the bloodstream, in cases of asthma, although he felt that this was the case with the plaintiff. Dr Burns did concede, however, that he was more concerned with the plaintiff's complaints and the sputum the plaintiff was apparently producing at that time on a regular basis. Dr Burns was not then concerned with any smoking effect he said because he was not able to conduct any lung function tests, not having the appropriate equipment with him. Dr Burns felt that the plaintiff's lung diffusion deficit was caused by air trapping in the lung consequent upon his asthma. Dr Burns was of the view that respiratory function studies dated 14 February 2002 showed mild impairment and agreed that the plaintiff's disability flowed from his reduced ability to diffuse rather than from any airflow reduction. Dr Burns repeated the view he had expressed in his report that 50 per cent of people with occupational asthma continue with symptoms after removal from the workplace and felt that the fact that the plaintiff's symptoms did not improve after leaving the defendant did not cause him to change his opinion in relation to the connection he felt existed between the plaintiff's work and his asthma.

81. In summary, Dr Burns accepted that there was an association between the plaintiff's work and the onset of his asthma. He relied upon the report in the British Medical Journal, exhibit DX16. Dr Burns described this report as being from an unimpeachable source. Dr Burns placed significance upon what he understood to be a very heavy exposure of the plaintiff to methyldopa dust in his workplace. Dr Burns also placed significance on what he regarded as a similarity in the plaintiff's exposure compared to the exposure history of the patient referred to in the British Medical Journal article. Having heard submissions from counsel and in particular the evidence of Dr Burns I would accept that the British Medical Journal article comes from what is generally regarded as an unimpeachable source. The significance of the article in establishing a connection between the plaintiff's work and his asthma, however, is another matter. Although Dr Burns appears to have placed significance upon what he believed to be a similar exposure history of the plaintiff and that of the patient in the British Medical Journal article, as counsel for the defendant has correctly pointed out, there would appear in fact to be a number of significant dissimilarities between the two histories.

82. Dr Burns did not make any real reference to smoking or its potential effects on the plaintiff's respiratory condition in his initial report. In evidence he said that if smoking induced emphysema was present it would normally be accompanied by a severe reduction in the plaintiff's FEV1 measurement, which he did not feel was present in this case. Although Dr Burns felt that the plaintiff's diffusion deficit was caused by air trapping consequent upon the plaintiff's asthma, he conceded that this view was only supported by one other reported case that he knew of, and that that case was not one directly known to him. Dr Burns also felt that it was significant that the plaintiff had not suffered any asthmatic tendencies prior to commencing with the defendant.

83. For reasons which appear later in this judgment it is clear that the plaintiff is suffering from severe symptoms caused by his smoking related disease, that is emphysema and airways narrowing. To the extent that Dr Burns discounted smoking as a significnat component in the plaintiff's condition I do not find with respect Dr Burns' views to be persuasive.

84. As a result of the recommendations made by Dr Burns, the plaintiff was referred to Dr Warburton, a consultant physician in Liverpool in the United Kingdom. On 1 March 1999 Dr Warburton provided a report to the plaintiff's solicitors of his treatment of the plaintiff. On first consultation the plaintiff apparently told Dr Warburton that he had undergone very heavy exposure to methyldopa dust whilst working with the defendant and whilst wearing an inefficient paper mask. The plaintiff told Dr Warburton that his problems had begun two or three weeks after starting with the defendant. The plaintiff told Dr Warburton that he left the employ of the defendant in 1995 as a result of his worsening respiratory symptoms. In relation to the onset of his symptoms the plaintiff described breathlessness and cough present "all the time" including nocturnal symptoms. Importantly, the plaintiff then told Dr Warburton that from the outset he did not find his symptoms any better at weekends or on holidays. The plaintiff described his symptoms, however, as gradually worsening in the first six months of his employment, the symptoms continuing until December 1994 when, whilst in Queensland, he experienced a particularly bad attack of asthma resulting in being admitted to an intensive therapy unit where he was placed on a ventilator machine. This appears to be a reference to the plaintiff's admission to Westmead Hospital in Sydney. The plaintiff told Dr Warburton that this attack followed several months of worsening symptoms at work, the attack occurring ten days after he left the workplace for his holidays. The plaintiff then described his decision to cease work and to leave Australia as being caused by the level of symptoms which he was suffering.

85. Dr Warburton assessed the plaintiff's peak flow meter readings. Dr Warburton noted that the peak flow rates recorded by the plaintiff revealed a level of about 300 litres in the morning rising to a figure in excess of 400 or 450 litres in the afternoon. Dr Warburton felt that this variation was consistent with asthma. Dr Warburton also noted that lung function testing records showed reversibility of airflow limitation after the use of bronchodilator therapy, consistent with asthma. Dr Warburton diagnosed the plaintiff as suffering from asthma. Acknowledging that methyldopa was a "known respiratory sensitiser" Dr Warburton felt that that plaintiff's respiratory illness was caused by exposure to methyldopa at work. Dr Warburton placed importance upon the coincidence of onset of respiratory symptoms with work. Dr Warburton also noted the significant reduction in gas transfer, commenting that this was not usually a feature of asthma. Unlike Dr Burns, Dr Warburton felt that in view of the plaintiff's smoking history the most likely cause of the reduction in gas transfer was a degree of pulmonary emphysema caused by smoking. Dr Warburton described the plaintiff's asthma as moderate. Of his chest disability, which Dr Warburton then assessed as being 30 per cent, 20 per cent was felt to be due to occupational asthma with 10 per cent being due to pulmonary emphysema.

86. In relation to the plaintiff's work capacity Dr Warburton said:

In the current economic climate within England and the presence of asthma I feel that it is unlikely that Mr Wood would be likely to find a job. I would estimate that as a result of him developing occupational asthma Mr Wood will lose 13 years of earning capacity.

87. Dr Warburton noted that the plaintiff's symptoms had continued to deteriorate since exposure ceased. Dr Warburton felt that this was not uncommon in occupational asthma. Dr Warburton felt that there would continue to be a gradual decline in the plaintiff's condition from both the point of view of his occupational asthma and his smoking related emphysema, particularly if the plaintiff continued to smoke. Dr Warburton did not feel that the disability from occupational asthma would decline to the extent that he would require nursing care at any later stage. A difference consequence would follow, Dr Warburton felt, if the plaintiff continued to smoke.

106. As I have already observed, the plaintiff did not appear generally to be an untruthful witness, although his evidence in relation to smoking was clearly unreliable. His evidence as to conditions generally in the workplace, however, although substantially challenged in cross-examination in some important respects, has in the ultimate turned out to be correct. After careful consideration of all submissions made by counsel I have concluded that the plaintiff's evidence concerning the onset of his symptoms and their apparent association with methyldopa dust was truthful.

107. There is no doubt that the symptoms first occurred when he was working with Aldomet. No challenge was or could be made to his evidence in that respect. His evidence was generally consistent with the records of Dr Kumar, which confirmed that the plaintiff raised concerns about dust at work in October 1992 at a time when he was complaining of respiratory symptoms. The medical records from the defendant on their face however are inconsistent with some of the plaintiff's evidence. For example, on 15 December 1093 an entry apparently made by Dr Garvan, the defendant's doctor, records:

The plaintiff then said he had no problems with his job, that he was working in manufacturing and that he had no dust problems, at the time the plaintiff wearing a mask.

108. The first entry in the notes is dated 15 December 1993 and was apparently made by Dr Garvan. Other entries in the notes were clearly not made by him and I infer probably made by nursing staff at the medical centre. Although the first entry is dated 15 December 1993 it is clear that the plaintiff underwent some lung function testing on 7 December 1993 and no entry was made in the progress notes from the defendant of any attendance at the medical centre at that time. It would seem to me therefore apparent that the progress notes do not contain records of every attendance of the plaintiff at the medical centre.

109. The plaintiff said in his affidavit that he raised his concerns about exposure to dust at work with Dr Garvan. He said in par 66 of his affidavit that he thought his asthma was a reaction to methyldopa. According to the plaintiff Dr Garvan said something to the effect:

“To my knowledge none of the products we manufacture can cause asthma.”

This evidence is in general terms inconsistent with the notes made by Dr Garvan in the medical records dated 15 December 1993. The evidence is also generally inconsistent with the report from Dr Garvan dated 9 Setpember 1999, which has been admitted and marked exhibit DX17.

110. Dr Garvan was not called as a witness. I do not know whether his report was solely dictated from the notes which now comprise exhibit DX7 or whether he had at the time of dictation of the report or whether he now has any independent recollection of the plaintiff. I do not regard the notes in DX7 or the report of Dr Garvan in the circumstances as being sufficient to cause me to reject the evidence of the plaintiff which he gave in par 66 of his affidavit and to which I have just referred, particularly in the absence of any specific evidence from Dr Garvan in relation to the particular allegation that the plaintiff made in that paragraph of his affidavit.

111. The Westmead Hospital documents contained in exhibit DX12 include the records of Dr Gardiner who assumed conduct of the treatment after the plaintiff’s admission to that hospital. In exhibit DX8 there is the letter from Dr Gardiner dated 7 February 1995 addressed to the plaintiff's general practitioner, Dr Kumar. In the second paragraph of that letter Dr Gardiner says this:

Four weeks after starting at Merck Sharp & Dohme in 1992 he noticed that he would become breathless particularly after handling Aldomet.

I pause to observe there that this entry would seem to suggest an increase in symptoms noticed by the plaintiff when handling or after handling Aldomet. In the next paragraph, however, the following words appear at the commencment:

From the time he first noticed symptoms two years ago he has been breathless on first waking and the symptoms have improved through the day.

The plaintiff when cross-examined about this said that in his conversations with Dr Gardiner he was telling him about the way he felt when he was examined by him in February 1995 when he said that he was breathless on first waking, the symptoms improving during the day.

112. Dr Gardiner's notes are also included in exhibit DX8. Those notes, it seems to me, are not necessarily inconsistent with the evidence of the plaintiff. Importantly, the notes of Dr Gardiner when describing no difference experienced by the plaintiff from Monday to Friday or on weekends do not seem to be preceded by any words which would limit that description to being a description of symptoms at the time the plaintiff first noted symptoms. I also bear in mind that the Westmead Hospital records which are exhibit DX12 contain an important entry in relation to the admission on 12 January 1995, which ultimately gave rise to Dr Gardiner assuming the conduct of the plaintiff's care. The entry on that date, presumably made by some of the nursing staff at the hospital, reads:

Seems to be related occasionally to chemicals at work. ?Aldomet

113. I am by no means certain that the plaintiff when first seen by Dr Gardiner told him that which Dr Gardiner records in his report dated 7 February 1995, that is that the plaintiff said that from the first time he noticed symptoms he had noticed that he was breathless on first waking and that the symptoms improved during the day. It could easily be, it seems to me, that that was, as the plaintiff maintains, a description of his symptomatology at the time Dr Gardiner saw him. I do not regard the letter from Dr Gardiner by itself as sufficient to cause me to reject the evidence of the plaintiff as to the nature of the onset of his symptoms, particularly when viewed in the light of Dr Gardiner's handwritten notes and the notes of admission to the Westmead Hospital to which I have referred.

114. Histories given to other doctors over the years have been consistent and inconsistent with the plaintiff's evidence in relation to the onset of his symptoms. This is not uncommonly found in cases before the Tribunal. Whilst medical practitioners often pride themselves in taking full and thorough industrial histories, the detail into which they go is seldom equivalent to the detailed analysis and consideration of a plaintiff's evidence at trial.

115. Having heard the submissions from counsel and having considered the matters to which I have referred, I accept the evidence of the plaintiff in par 62 to 65 and 68 and 69 of his affidavit. I find that after the first few weeks of exposure to methyldopa the plaintiff noticed tightness in his chest with shortness of breath at the end of the day's work. I find that those symptoms were not present in the ensuing three months after he first noticed those symptoms when the plaintiff was not working with Aldomet. I find that the symptoms of chest tightness and shortness of breath did return and worsened when the plaintiff resumed work with Aldomet after that break of three months. I find that when the plaintiff returned home each night, having worked with Aldomet during the day, his symptoms improved and that he felt better over weekends. I find that this pattern of symptoms continued until about 18 months had elapsed when he started to feel symptoms of chest tightness and shortness of breath all the time.

116. Given the absence of any asthmatic symptoms before exposure to methyldopa, the emergence of symptoms within a matter of weeks of commencing work, in particular at times when he was not wearing a respirator or face mask and given that the symptoms initially grew better when not exposed to methyldopa, the emergence of asthma is in my view more than a coincidence. The asthma in my view was contracted by exposure to methyldopa dust at work and I so find. I accept in this respect the evidence of Drs Warburton and Burns. I do not regard the fact that the symptoms continued after exposure ceased as sufficient to render this conclusion untenable as it appears common ground that the asthmatic condition can become chronic after lengthy exposure, which the plaintiff certainly had over a period in excess of two years. Further, whilst the latency period could be said to be somewhat short, that clearly being the view of Professor Breslin, the pattern of symptoms which emerged in association with the plaintiff's work to me is the most persuasive factor in reaching the conclusion that I have reached. I accordingly find that the defendant's breach of duty caused damage and find for the plaintiff on the issue of liability.

DAMAGES

118. The plaintiff's occupational asthma has caused him to suffer respiratory symptoms from 1993. They clearly worsened during his employment. They led him to experience great difficulty in performing work throughout 1994 and resulted in the plaintiff collapsing in Sydney after returning from holidays in Queensland in early 1995 requiring emergency admission to the Westmead Hospital and intensive care for a period. After discharge from hospital his symptoms remained at a disabling level requiring treatment from Dr Gardiner. These acute symptoms were clearly symptoms of asthma and were the cause of the plaintiff ceasing work with the defendant and his return to the United Kingdom.

119. The plaintiff's asthmatic symptoms are chronic and continue. The condition of asthma by its nature causes variable disability. The plaintiff has given evidence of that variable disability in par 82 of his affidavit. When having described “the typical day” referred to in the occupational report of Ms Convey, to which I will refer in due course, the plaintiff said in relation to what his wife did for him:

I eat at the table except if I have a really bad day.

120. The plaintiff has also given evidence of being breathless on waking, requiring use of his ventilator. The peak flow studies confirm that the use of this ventilator does result later in the morning in a significantly increased rate of air flow.

121. The plaintiff suffers from his asthma in association with the unrelated condition of smoking induced lung disease. I have no doubt that the plaintiff's perception of his asthmatic condition and the symptoms which he experiences as a consequence of that condition are rendered all the more acute by the concurrent symptoms of his smoking induced disease.

122. The defendant argues that the smoking induced lung disease would have operated to render the plaintiff unfit for work, that is for his usual work with the defendant in any event, even if he had not contracted occupational asthma. The defendant argues that the plaintiff's smoking has caused emphysema and airways narrowing and that the extent of that disability is amply demonstrated by lung function tests performed by Dr Warburton in February 1999, when those tests revealed a significant gas transfer deficit such as to render the plaintiff unfit for work which required significant physical effort. In the words of Professor Pickering, and I refer to the transcript p 420 at line 15:

This diffusion deficit would , [at the time Professor Pickering last saw the plaintiff ] be sufficient to prevent the plaintiff from performing any active job at all.

This assessment is consistent with the plaintiff's own estimation of his work capacity. I pause here to add that Professor Pickering's views as to work capacity were of course based upon his reading of lung function tests and in particular the gas transfer tests, rather than his last examination of the plaintiff.

123. The onus of establishing that the plaintiff would have developed disabling smoking related illness without having the contracted asthma induced by methyldopa dust of course rests with the defendant. In this respect I refer to the decision of the High Court of Australia in Purkess v Crittenden (1965) 114 CLR 164. I find that the defendant has discharged this onus of proof. I find that the smoking related disability was of long standing and was certainly manifest in the sense of producing symptoms by February 1999 when Dr Warburton performed lung function tests revealing the significant gas transfer deficit to which he made reference in his evidence. The plaintiff has in fact complained of suffering permanent shortness of breath as opposed to temporary or variable symptoms of shortness of breath when he wrote to Dr Gardiner from the United Kingdom in February 1997. That letter is contained within exhibit DX8. By the date of that letter, when the plaintiff complained of permanent shortness of breath, it would appear to me that the plaintiff had developed incapacitating smoking related lung disease and that, at least from that date, the plaintiff would have been unfit for the physical aspects of his work with the defendant, that work requiring significant physical effort in lifting and emptying of drums and in emptying dust bags weighing up to 20 kilograms. The evidence satisfies me that the plaintiff would have developed this incapacity for that work quite separate from the development of his occupational asthma. As I have indicated, by the date of his letter to Dr Gardiner in February 1997, the permanent shortness of breath which he said he suffered at that time was, on the evidence, a consequence of the fixed continuing gas transfer deficit caused by the smoking related illness and not caused by the variable symptoms which have flowed and will continue to flow from his occupationally induced asthma.

124. The plaintiff, however, has developed his asthmatic condition, which is now chronic and will remain with him for the rest of his life. It has been agreed by the parties that he has a residual life expectancy of some 15 years. It will cause continuing fluctuating levels of respiratory distress such as that as experienced by him each morning and such as those to which he has referred in par 82 of his affidavit that he experiences on a “really bad day”. I accept the evidence of Dr Warburton that this asthmatic condition is likely to progress.

125. Having regard to the significance of the asthmatic disease in terms of the plaintiff's lifestyle and the added difficulty which it has and will cause him given the fact that he is suffering from an unrelated but significant respiratory illness caused by his smoking I assess general damages for pain and suffering for the past and the future at $85,000.

126. Of that amount I find that $40,000 represents past pain and suffering. Interest on that amount at 2 per cent for approximately 12 years totals $9,600.

127. The plaintiff claims economic loss. The report in evidence from Messrs Furzer Crestani calculates mathematically a loss up to the present date. As I have found that the plaintiff would have become incapacitated from his work with the defendant in any event by February 1997. As the more recent gas transfer studies have demonstrated, as Professor Pickering has said, that the plaintiff is effectively unfit for all employment as a result of the gas transfer deficit, that being solely caused, as I find, by the smoking related lung disease, the plaintiff's claim for past economic loss, in my view, should be limited to the time from which he ceased work with the defendant in March 1995 as a result of his acute asthma symptoms up until February 1997, when, as I have found, the defendant has discharged the onus upon it to prove that the plaintiff would then have become incapacitated in any event from his unrelated smoking disease.

128. The total of economic loss for that period, net of income tax, established by the Furzer Crestani report, is very close to $65,000. The plaintiff says that he should at least recover all this by way of damages. The plaintiff says he was forced from his employment by the asthmatic condition and that his damages should be calculated by reference to the net wage for the whole period.

129. The defendant submits that this is not the correct way that I should approach damages for past economic loss. The defendant says that the plaintiff failed to mitigate his loss by firstly not seeking alternate work from the defendant, and secondly, by returning to the United Kingdom where it is said the labour market is more difficult than that in Australia. No evidence was called by the defendant to establish that any suitable employment was or would have been available to the plaintiff if he had asked for it. No evidence was called by the defendant or identified by the defendant of any work which was available to the plaintiff in March 1995 which the plaintiff ought to have undertaken rather than returning to work in the United Kingdom. There is no real evidence before me that the labour market in the United Kingdom is worse or would have been worse for the plaintiff than the labour market in Australia.

130. It seems to me that the appropriate way to compensate the plaintiff for past economic loss is to award him a figure of $65,000 in respect of the net wages which he would have earned had he remained in the employ of the defendant from March 1995 until February 1997, and I am not persuaded that that figure should be reduced for the reasons advanced by the defendant. In reaching this conclusion I note that the Furzer Crestani calculations and their estimation of the likely wage which the plaintiff would have received had he remained in the employ of the defendant are based upon the plaintiff's prior wage history with the defendant and already include therefore absences from work and other vicissitudes which may have lessened the plaintiff's capacity or ability to work full-time in the relevant period.

131. There is a claim for interest on past economic loss. It has been agreed that the average interest rate since 1995 is 10.2 per cent. The period of the loss for which I propose to compensate the plaintiff is two years from March 1995 until effectively March 1997. The appropriate method of calculating interest in my view would be to allow interest at 10.2 per cent on the $65,000 amount but to calculate that from a mid point in the loss, that is February 1996. That gives a period of just over nine years during which the interest calculation would be made. At the rate of 10.2 per cent interest on $65,000 is an annual figure of $6,630. Multiplying it by nine years gives a figure of $59,670. As the claim for interest is slightly in excess of nine years it would seem to me appropriate to include a component for interest on past economic loss of $60,000.

132. There is a claim for loss of superannuation benefits. Although this has been the subject of some calculation by Furzer Crestani it seems to me that the appropriate method by which I should compensate the plaintiff is to apply to the claim for past economic loss the percentage rate which the defendant would have been required to deduct from the plaintiff's wages in the relevant years pursuant to the superannuation guarantee legislation. The rate of compulsory superannuation deductions required of employers in the period of the economic loss that I have allowed commenced at 4 per cent increasing to 6 per cent. For the purpose of calculating the value of lost superannuation contributions I propose to average that to an average rate of 5 per cent and apply that to the award of damages for past economic loss. Applying a rate of 5 per cent to the $65,000 assessed by me to be damages for past economic loss produces a figure of $3,250.

133. There is a claim for interest on the lost employer funded superannuation contributions. That claim should be assessed in a similar method to that adopted by me for past economic loss. Applying a rate of 10.2 per cent to the loss of $3,250 from a mid point between March 1995 and February 1997 would mean I would apply the rate of 10.2 per cent to $3,250 for a period slightly in excess of nine years. This gives a figure mathematically of $2,983 in respect of the period to March this year. As the period is just slightly in excess of three years I would add $3,000 to represent interest on past lost employer funded superannuation contributions. Adding this interest to the lost contributions I would include in the plaintiff's damages a figure of $6,250 to represent past lost employer funded superannuation contributions and interest to the present date.

134. There is a claim for damages for domestic care and assistance. The plaintiff's need for care was assessed by an occupational expert on behalf of the plaintiff, Ms Convey, and her report was admitted and marked exhibit PX6. The need for care was assessed by Ms Celia Wills for the defendant and that assessment appears in exhibit DX13. The difficulty in referring to those reports lies in the fact that neither expert was able to or purported to differentiate between care required as a result of the smoking related illness, which I have found would have developed to an incapacitating extent by February 1987, and disability caused by the asthmatic condition, requiring some care. It would seem to me that damages in respect of care would have to be limited to care rendered necessary by the asthmatic condition in addition to care which may have been required because of the smoking related disease. When I refer to care I refer to domestic care as well as domestic assistance around the house performing heavy activities. In relation to the latter it would seem clear to me that the plaintiff would have been incapacitated from performing that sort of work around the house in any event by February 1997.

135. The evidence from the plaintiff which identifies extra symptoms due to his asthma would appear to relate to the mornings when he wakes short of breath requiring use of his Ventolin and occasions when he has, as he has referred to in par 82 of his affidavit, “a really bad day.” In relation to the morning episodes of Ventolin, there is nothing contained in the report of Ms Convey when she assessed that morning difficulty as suggesting any particular care, as the plaintiff seems to treat those symptoms each morning by use of the medication supplied to him. If the claim for care was limited to the plaintiff's symptoms due to his asthma in the morning I would find difficulty in assessing anything as being appropriate to compensate him because as I have said there is no indication on the evidence that that particular time of day requires any particular personal assistance from anybody, the plaintiff in effect assisting himself. There does appear to be a basis for a claim for personal care, however, on the occasions when the plaintiff has a “really bad day” and, as he described in his affidavit, is unable to eat at the table. It would seem that during those periods some degree of personal assistance would be necessary on the part of the plaintiff's wife or somebody else to produce his meals and to serve them to him. In addition, there would probably be a prospect of some additional personal assistance being necessary on those “really bad days.”

136. The difficulty that I have is that the frequency of those “really bad days” has not been established on the evidence, neither has the additional assistance which has been and will be necessary on those occasions, and it is difficult and indeed impossible to approach quantification of damages for care by reference to any mathematical calculation. The parties have agreed that rates for the provision of personal care from 1995 to 2005 would average $11.70 per hour in Australian dollars. The current rate in respect of personal care in the United Kingdom, again expressed as Australian dollars, is $13.94 per hour. Bearing those rates in mind but being unable to make any precise mathematical calculation of the value of past or future care it would seem to me the best way to compensate the plaintiff is to include a lump sum to cover past and future care and interest, that lump sum, however, being towards the modest end of the scale to reflect the lack of any particular evidence from the plaintiff which would enable a more precise quantification to be made. Bearing in mind that the plaintiff has had “bad days” for the last ten years, and that he will experience those “bad days” for another 15 years, and that the extent of the asthmatic disability is likely to worsen, doing the best I can from the evidence available to me I would assess an appropriate figure for past and future care at $40,000, including interest.

137. In summary I assess the plaintiff's damages as follows:

General damages for pain, suffering and loss of enjoyment of life : $ 85,000.

Interest on past pain and suffering : $ 9,600.

Past economic loss : $ 65,000.

Interest on past economic loss :$ 60,000.

Loss of employer funded superannuation benefits together with interest: $ 6,250.

Past and future domestic assistance including interest on past assistance : $ 40,000.

Giving a total of : $265,850.

138. I add to that total an amount which is repayable to the Health Insurance Commission of $586.95. There being no other out of pocket expenses claimed, the total of the plaintiff's damages I have assessed is $266,436.95.

139. I enter judgment for the plaintiff against the defendant in the sum of $266,436.95.

140. I order the defendant to pay the plaintiff's costs.

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

Mr G.M. Watson, SC with Mr M.H. Best instructed by Alan Brown & Company appeared for the Defendant.

CITATION:	Wood vs Merck Sharpe [2005] NSWDDT 61
PARTIES:	Merck Sharpe & Dohme
MATTER NUMBER(S):	49\99
JUDGMENT OF:	Walker J at 1
:-
LEGISLATION CITED:	Factories, Shops and Industries Act 1962 s. 41 (2)
CASES CITED:	Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.; Purkess v Crittenden (1965) 114 CLR 164; Seltsam Pty Ltd v McGuiniess (2000) 49 NSWLR 262.
DATES OF HEARING:	29.3.05,30.3.05,31.3.05,1.4.05,4.4.05,5.4.05,6.4.05, 7.4.05,20.4.05, 21.5.05
EX TEMPORE JUDGMENT DATE:	04/21/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D.G. Letcher, QC FOR DEFENDANT: Mr G.M. Watson SC with Mr M.H. Best