Andrew Georgiou as Executor of the Estate of the Late Christakis Georgiou v Magnus Goldring Pty Ltd

Issue 1 - Exposure to asbestos

1. This issue requires the resolution of the following factual issues: 1. Did the block contain asbestos? 2. Who supplied the block? 3. Did the gloves contain asbestos? 4. Did Mr Georgiou use the gloves? 5. What was the period of Mr Gerogiou's employment with the defendant in the second period? 6. If there was asbestos at the defendant's premises, what was the extent of the Mr Georgiou's exposure to asbestos dust from his work?

Did the block contain asbestos?

1. Mr Georgiou did not know what the block was made of. He deposed in the second affidavit that the block did not burn and that it deteriorated over time lasting for about one year. He also deposed that the block gave off dust when it was struck or filed, or when the flame of a blowtorch was applied to it. In cross-examination he described the dust as a powder. He would wipe if off the block with a wet tissue.
2. Mr Kyriacou gave evidence that the employees of the defendant referred to the block as "amiantos"; the greek word for asbestos. It was used to ensure that the bench did not get burnt. He gave evidence that Stephen Goldring referred to the blocks as "asbestos". Mr Kyriacou said that the blocks were cut with a handsaw from a larger sheet and affixed to the bench by drilling holes in the corner of the block and fixing it with nails. The block was about 1 cm in thickness. He described the block as hairy and that he needed to use the flame of a blow torch to make it harder, when installing a new block. Smoke would come off the block when the blowtorch was applied. Mr Kyriacou gave evidence that the blocks would be replaced every 3 or 4 years. Mr Kyriacou gave evidence that Mr Georgiou used the same block that he did. Mr Kyriacou worked for the defendant for 11 years on wages as an employee and for a further 8 or 9 years as a contractor. When Mr Kyriacou ceased working defendant at the Chippendale factory that he took the block that he had been working with home with him. He continued to manufacture some jewellery for the defendant as a contractor from his home. He gave the block that he had taken from the defendant's premises to the plaintiff's solicitors when they asked for it.
3. The block supplied by Mr Kyriacou was analysed by Alex Wells of Airsafe OHC Pty Limited. It was found to contain chrysotile and amosite asbestos.
4. Stephen Goldring gave evidence that the block [1] was about 25 mm thick, fireproof and covered with wire mesh. The block was used to prevent holes being burnt into the bench. He gave evidence that he was unaware if the blocks contained asbestos. Mr Goldring gave evidence that the blocks were not fixed in place because they were as heavy as a piece of timber. He described the blocks as white and fire resistant. They were referred to in the factory as "cement boards", "asbestos" or "soldering blocks". He believed that they were ceramic and could not be sure if they were asbestos. A piece of wire mesh, similar to fly screen, was placed on top of the block. Mr Goldring agreed in cross-examination that there was a larger piece of the block material from which the jewellers would cut off the blocks, although he never saw them do it. He believed that the larger piece of the material stayed about the same size. He had never seen the blocks fracture but did notice surface cracks on them. In the area where large melts of gold were done there was a large block measuring 3 feet by 3 feet that was fixed to the table. Mr Golding gave evidence that the material of the blocks was changed after he became aware of the dangers of asbestos in or about 1990. The blocks were then ceramic and looked like tiles. He has not made enquiries to determine if the blocks used before that contained asbestos. He did not know where the material came from when he commenced employment in 1971 or 1972.
5. I am satisfied that the blocks used by Mr Georgiou during the course of his employment contained asbestos for the following reasons.
6. The block used by Mr Kyriacou during the course of his work with the defendant contained asbestos. The evidence supported the inference that the same blocks were used for the entirety of Mr Kyriacou's employment and/or engagement as a contractor. Mr Goldring agreed that the material used for the blocks did not change between about 1971 and about 1990. Mr Georgiou gave evidence of using a similar block in his first period of employment between 1954 and 1963. He was the only witness who could give evidence about that period. The block was similar in description and in its attributes.
7. The employees in the factory referred to the blocks as asbestos, either in English or in Greek. It is more likely than not that at least one of them did so because they had actual knowledge of that the blocks contained asbestos.
8. I accept Mr Kyriacou's evidence that he used the same type of block that Mr Georgiou did.
9. I infer from the evidence that the blocks were cut with a handsaw by the jewellers, from a larger piece of the material, that the material was unlikely to be ceramic.
10. I infer from the evidence of Mr Goldring that the ceramic blocks used from 1990 onwards were introduced as an alternative to asbestos.
11. I have some reservations about Mr Goldring's evidence on this issue for the following reasons. He was a very junior employee during Mr Georgiou's second period of employment. He was not a qualified jeweller, or even training to become one. He was not responsible for ordering the materials used at the factory. He had on a few occasions melted gold in a crucible in the dedicated melting area. He performed only a "negligible" amount hot work using the blocks. When his father died suddenly in 1974, the defendant employed a manager, Mr Pike. It was not until after 1977 and probably not until after Mr Georgiou's second period of employment finished that he became more involved in the management of the defendant. At that time, on his own evidence, he did not have much experience of the work done by the jewellers, even though he had the opportunity to observe them working. From my observations of Mr Goldring in the witness box and the content of his evidence I gained the impression that his evidence was largely reconstructed.

Who supplied the block?

1. In cross-examination, Mr Gerogiou gave evidence that the jewellers' tools and materials were supplied by specialist suppliers. When asked about the blocks he responded, "the block we buy too".
2. Mr Kyriacou gave evidence that the blocks were supplied by the factory. They were cut from a larger piece of the material stored at the factory.
3. Mr Goldring gave evidence that the jewellers were employed on wages during the 1970s. They supplied their own tools and equipment which they took with them when they ceased employment. Mr Goldring gave evidence that in the area where the melting was done that the table was covered with a large piece of the material that the blocks were made of. He also accepted that there was a larger sheet of the material from which the blocks were made stored at the factory near where the melting was done. Mr Goldring did not know where the blocks or the large sheet of the material came from.
4. On this issue, I prefer the evidence of Mr Kyriacou and reject the evidence of Mr Gerorgiou. At times Mr Georgiou was at cross-purposes with the cross-examiner and seemed to be confused. His evidence on this issue appeared to me to be one of those occasions. Mr Kyriacou provided the most information about the origin of the blocks and how they were made. That information appeared to be a genuine recollection of his experience of the work at the defendant's factories. His evidence is corroborated to some extent by the evidence of Mr Goldring.

Did the gloves contain asbestos?

1. In his first affidavit, Mr Georgiou deposed that he did not use gloves when he was melting gold. In his second affidavit, Mr Georgiou deposed that he wore the gloves when melting gold in a furnace. The process involved holding a crucible containing the solid gold with long handled tongs in the furnace. The gloves were worn whilst holding the tongs. The number of times he did this in the course of a week would vary with the pieces he was making. Sometimes he did it once per week and other times it was more frequent. Mr Georgiou described the gloves as elbow length and they required replacement after about one year. They had a grey covering and would give off a fine dust.
2. Mr Kryiacou gave evidence that melting gold was done in a separate area of the factory using an oxy torch. During this process he wore elbow length gloves supplied by the defendant. Mr Kyriacou described the gloves as being thick, white, a little bit hard and inflexible. Sometimes dust could be seen coming off the gloves and going into the air "when you hurt them". The gloves would be worn during the time it took to melted gold which was usually between 5 to 10 minutes.
3. Mr Goldring gave evidence that there were elbow length gloves kept in the separate area of the factory where the jewellers melted gold. Mr Goldring did not know what the gloves were made from and never bought any. He described them as being a greyish colour and feeling like smooth cloth. He did not use the gloves himself and did not see the jewellers using the gloves. He did not observe any dust come off the gloves when he handled them.
4. The plaintiff tendered a bundle of documents from the Dust Diseases Board (DDB) [2] . The DDB documents relating to Louise Schilizzi contained a reference to the use of asbestos gloves. There was no description of the gloves or their attributes in that material. That evidence does not prove anything more than that asbestos gloves were used to protect a person's hands from hot processes. None of the other material in PX 9 was relevant to this issue.
5. I am satisfied on the evidence that the gloves were heatproof, grey, inflexible and gave off a fine dust. That would fit with a description of the attributes of asbestos gloves known to me from my experience in this jurisdiction, but there is no evidence about the attributes of asbestos gloves in evidence. I cannot be satisfied on the balance of probabilities that the gloves contained asbestos.

Did Mr Georgiou use the gloves?

1. Mr Georgiou's evidence contained in the first and second affidavits is contradictory on this issue. He was not cross-examined on this issue.
2. Mr Kyriacou did not give evidence that he saw Mr Georgiou use the gloves. Mr Goldring's evidence is that he did not see any of the jewellers use the gloves. Mr Goldring's evidence leaves open the inference that the jewellers did use the gloves, particularly when they were doing large melts.
3. I am satisfied on the balance of probabilities that Mr Georgiou used the gloves, but not regularly, probably when he was involved in melting large amounts of gold, which I would estimate was 4 times per month for 10-15 minutes at a time.

What was the period of Mr Georgiou's employment in the second period?

1. Mr Georgiou gave evidence that the second period of his employment was from 1972 to 1976, approximately 4 years. Mr Georgiou was not challenged in cross-examination about the date of his employment for the second period or asked at which factory premises he worked in the second period. No Browne v Dunn point is available to the plaintiff on these issues because of the undertaking given. Mr Georgiou deposed that he returned to work for the defendant immediately after ceasing to operate the corner store. He gave evidence that he worked as a jeweller for Diamond Traders for 2 years, between 1976 and 1978. He gave evidence that he purchased the property in June 1978.
2. Mr Kyriacou gave evidence that he came to Australia in 1971 and met Mr Georgiou. He commenced work for the defendant shortly after. He recalled Mr Georgiou being re-employed after that and that Mr Georgiou stayed for about 4 years.
3. Mr Goldring gave evidence that he had a recollection of Mr Georgiou working for the defendant. Mr Goldring did not believe that Mr Georgiou was there for long after he started work. It was Mr Goldring's belief that Mr Georgiou did not work at the Chippendale factory, ie by implication after a date in 1974 when the defendant moved to the Chippendale factory.
4. I am satisfied that Mr Georgiou worked for the defendant in the second period between 1972 and 1976 for the following reasons.
5. I accept Mr Georgiou's evidence, which is corroborated by Mr Kyriacou's evidence that he worked for the defendant for 4 years in the second period. It is likely that Mr Georgiou was re-employed by the defendant shortly after Mr Kyriacou was employed because Mr Kyriacou did not speak English and he required Mr Georgiou to assist him with communication.
6. I accept that that Mr Georgiou's recollection of the date when he ceased to operate the corner store was reliable. I accept his evidence that he was employed by Diamond Traders for about 2 years between 1976 and 1978, before moving to the Australian Capital Territory. I accept his evidence that he purchased the property in June 1978.
7. I reject Mr Goldring's evidence on this issue because it is based wholly on his memory of what happened 40 years earlier and without reference to other events occurring in his life at the time that were connected to Mr Georgiou's employment it is likely to be unreliable.

What was the extent of Mr Georgiou's exposure to asbestos in the course of his employment with the defendant?

1. In the second affidavit, Mr Georgiou deposed that the work done by him for the defendant between1954 and 1963 and between 1972 and 1976 was similar. During the first period, the defendant had around 18 employees, there was no evidence as to how many of them were jewellers. He deposed that he would file gold and silver on the block and sometimes strike the block. He observed dust to come off the block which he would wipe away with tissue. When he used a blowtorch on the block it would give off dust. He spent most of his working day working on the block with his face about 18 inches away from it. He may have worked on the block doing soldering or other hot work for as much as 4 hours per day on occasions, but less on others. Mr Georgiou would clean his bench before starting a new job or process or otherwise when required. He did not see dust in the atmosphere. He said that if the block was hit hard enough it would break and it would need to be replaced. He agreed that at the defendant's factory that the floors were vacuumed.
2. For the reasons given, I am not satisfied on the balance of probabilities that Mr Georgiou was exposed to asbestos when he used the gloves.
3. Mr Kyriacou gave evidence that he commenced work at the Surry Hills factory. for about 2 years before the defendant moved its operation to the Chippendale factory. At Surry Hills factory, there were 8 jewellers who all did the same sort of work. There were 2 long benches that were placed opposite each other. Four jewellers worked at one bench and the other 4 worked directly opposite to them. Mr Georgiou worked directly opposite Mr Kyriacou. Each jeweller had their own block and worked from 8.00am to 4.30pm, 5 days per week. There was a partition about 4-6 inches high between the benches but Mr Kyriacou was able to see what the jewellers sitting opposite to him were doing.
4. The blocks were fixed to the bench by drilling holes in the corner of it and forcing pins through the holes with a hammer. Dust was given off the block during this process. The blocks were cut with a saw from a larger piece of the material and dust was given off during the sawing process. The blocks were made harder after they were installed by applying a flame from a blowtorch. Smoke came off the block during this process. The blocks required replacement every 3 or 4 years.
5. Mr Kyriacou gave evidence that his face would be no more than 60 cm from the block if he was using a small blowtorch at the bench. There were a number of processes that resulted in dust being liberated from the block. Sometimes borax would fall onto the block during soldering. The borax was removed by filing the block. Mr Kyriacou observed other jewellers filing their blocks. Mr Kyriacou sometimes drilled into the block, for example when he made post earrings. On occasions Mr Kyriacou worked with a grinder at the bench that would come into contact with the block. Mr Kyriacou cleaned the block by brushing the dust off it. The dust was collected because it contained gold dust. The dust was sent for refining to recover the gold from it.
6. Both the Surry Hills and the Chippendale factory had windows that could be opened for ventilation. The jewellers would use small fans to keep themselves cool in summer.
7. The polishing area had mechanical extraction to remove the dust created in the polishing process. Mr Kyriacou gave evidence that he would polish for 2 to 3 hours in a day depending on the piece being produced.
8. The jewellers would clean their work areas daily. The floor was swept by another employee on a daily basis, whilst he and the other jewellers were present. Mr Kyriacou agreed that it was important to keep the benches clean and that he had to clean each day before he left. It was an important part of the cleaning process to capture the dust because it contained gold and silver. Mr Kyriacou did remember if vacuum cleaners were used at the factories.
9. Mr Goldring gave evidence that when he started work for the defendant he primarily worked in the factory. He observed the jewellers to melt small amounts of gold and complete soldering work at the bench. He gave evidence that the block was covered with wire mesh that looked like fly screen. He did not see the jewellers spend a lot of time soldering.
10. Mr Goldring gave evidence that the Surry Hills factory was new and it had a sealed concrete floor that was vacuumed every couple of days.
11. Mr Goldring gave evidence that the Chippendale factory had only five or six places for jewellers. He said that the floor was vacuumed that the Chippendale factory.
12. To Mr Goldring's observation the jewellers kept their areas clean by using a rag were a small brush to sweep the dust from the benches into a tray below, which would capture the dust. He described the Surry Hills factory as new and said that "it was kept pretty pristine". Mr Goldring vacuumed around and under the desks where the jewellers worked. The jewellers were very good at keeping their work areas clean because if they didn't it would slow them down and cost them money.
13. Mr Goldring gave evidence that if solder fell onto the wire mesh that the jewellers picked it up and removed it and then replaced the wire mesh back onto the block. He accepted that the dust would go through the wire mesh on to the block. He observed the jewellers place crucibles onto the block for around five minutes to allow the molten metal to cool.
14. I am satisfied on the balance of probabilities that Mr Georgiou was exposed to the liberation of asbestos dust from the blocks used by the jewellers on the benches when he worked for the defendant on a daily basis. The dust was liberated: 1. when the blocks were cut and fixed in place. The dust liberated by cutting the blocks with a handsaw was the most substantial exposure experienced at the factory and I find that it occurred for about 15 minutes for each occasion. The dust liberated by hammering in the pins would have been much less and I find it occurred for 5 minutes on each occasion. The dust liberated by the cutting of the material was likely to have been breathed in by everyone working in the factory. The dust liberated by hammering in the pins was likely to have been breathed in only by persons who were in close proximity to the activity. These occurrences were rare. Mr Kyriacou gave evidence that the blocks lasted 3 or 4 years, Mr Georgiou said 1 year. There were 8 jewellers at the Surry Hills factory and 5 or 6 at the Chippendale factory. On average, I am satisfied that this process occurred on 4 occasions during Mr Georgiou's second period of employment; 2. when the block was struck with a hammer or another tool including a grinder. The dust liberated from striking the block with a tool other than a grinder was about the same as when the block was nailed into place. I find that this occurred for 5 minutes per day for each jeweller. The dust liberated in this instance was likely to have been breathed in only by persons who were close to the activity. When the block was struck by a grinder the dust given off would have been substantial. I find that the occasions when this happened were rare, once per year for each jeweller. The dust liberated was likely have been substantial and to have been breathed in by everyone working at the factory; 3. when the jewellers cleaned their benches. This was done on a daily basis. The primary purpose of the cleaning was to recover the gold and silver dust created by the jeweller's work, but it was also done to maintain the quality of the jeweller's work. It is likely that the cleaning was performed carefully to ensure maximum retention of the dust. I find that the jewellers were exposed to dust from cleaning their benches for 15 minutes per day and that the dust liberated in this process was comparatively light and likely to have been breathed in by persons in close proximity to the cleaning work. I prefer the evidence of Mr Georgiou and Mr Goldring that the floors of the factories were vacuumed. I am not satisfied that any dust was created by sweeping the factory floors.
15. I consider the cutting of the blocks with a handsaw and striking the block with a grinder as causing moderate exposure to asbestos dust. The other exposures caused light exposure to asbestos dust. There was no evidence that any of the processes caused the dust given off to be observable in the air or present on the jewellers' clothes.
16. Professor Breslin gave evidence that "background community exposure" was the term used to describe the amount of asbestos that people was exposed to in their everyday lives. It does not include occupational exposure. Overall, Mr Georgiou's exposure was light but above background community exposure.

Issue 2 - Breach of duty

1. The defendant conceded that it owed Mr Georgiou a duty to take reasonable care to avoid exposing him to harm in the course of his employment.
2. In Wyong Shire Council v Shirt (1980) 146 CLR 40 Mason J stated: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man is response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting
3. In Shirt Mason J stated: The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.
4. Mason J cited with approval the comments of Glass JA in the Court of Appeal to the effect that the test was 'undemanding' and that the risk may be described as 'only a remote possibility'.
5. This is no longer a correct statement of the law.
6. In Tame v New South Wales (2002) 211 CLR 317 McHugh J approved the text of Professor Fleming in the 1957 edition of The Law of Torts, as follows: What are the considerations upon which the law supposes the reasonable man will guide his conduct? Negligence consists in conduct involving an unreasonable risk of harm. Almost any activity is fraught with some degree of danger to others but, if the existence of a remote possibility of harm were sufficient to attract the quality of negligence, most human action would be inhibited. Inevitably therefore, a person is only required to guard against those risks which society recognises as sufficiently great to demand precaution. The risk must be unreasonable, before he can be expected to subordinate his own interests to the interests of the other. [97]
7. McHugh J continued: Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability… [98] I think that the time has come when this Court should retrace its steps so that the aw of negligence accords with what people really do, or can be expected to do, in real life situations. Negligence law will fall… into public disrepute if it produces results that ordinary members of the public regard as unreasonable [101] Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant's position would think the risk sufficiently great to require preventive action. This is a matter of judgement after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge. [102] When it is necessary to determine foreseeability in the duty context, the development of the law of negligence as a socially useful instrument now requires the rejection of the attenuated test of foreseeability propounded in The Wagon Mound (No 2) and adopted by this Court in Shirt. [104]
8. In Seltsam v McNeill [2006] NSWCA 158 Bryson JA said at [36]: In my opinion questions of reasonable foreseeability and existence of a duty of care are not correctly decided by applying, as if they express a syllogism, Mason J's references to a risk which is remote, and a risk which is not far-fetched or fanciful. The question of foreseeability must be looked at in the broad. The test of foreseeability is undemanding but there is no basis for treating it as fictional or nominal, or for equating foreseeability with the limits of the imagination, it must be approached as a test which exists in reality and operates within the limits of the reasonable.
9. In 1965 Newhouse and Thompson published a paper in the British Journal of Occupational Medicine. [3] The paper reported evidence of individuals contracting mesothelioma as a result of indirect contact, such as living with an asbestos worker, without any other occupational exposure. The Newhouse and Thompson article was the first suggestion in medical or scientific literature that mesothelioma may have been caused by small exposures to asbestos.
10. The plaintiff did not contend that the defendant knew or ought to have known about the risk of contracting mesothelioma from small exposures to asbestos in Mr Georgiou's first period of employment between 1954 and 1963.
11. The plaintiff contended that the defendant ought to have known about the risk of contracting mesothelioma from small exposures to asbestos in Mr Georgiou's second period of employment between 1972 and 1976.
12. The risk of injury from exposure to large quantities of dust was well known in industry. By about 1930 it was widely known that exposure to large quantities of asbestos dust could cause asbestosis. By about 1930 it was widely known that exposure to large quantities of asbestos dust could cause asbestosis. But in the present case the amounts of dust generated by the jeweller's everyday work with the block were small. The jewellers did not get dust in their clothing and there were no clouds of dust in the air. There may have been some dust liberated when the blocks were cut to size, but this was very infrequently done.
13. The defendant was a relatively small family owned company. It did not employ a safety officer. In the course of Mr Georgiou's second period of employment, Magnus George Goldring had employed his son to work in the factory. He also attended to tasks in the factory himself, including cleaning. Stephen Goldring gave evidence that he had not discussed the dangers of asbestos with his father or his grandfather. He was unaware of the dangers of asbestos until it was reported in the press that Sir David Martin had contracted mesothelioma from exposure to asbestos. Sir David died in 1990.
14. The evidence of Mr Kyriacou and Mr Goldring was that he blocks were referred to in the factory as asbestos. On that evidence alone I am satisfied that the defendant knew or ought to have known that it was using asbestos in its factory. However, I cannot place that evidence in time. I do not know when the blocks were referred to as asbestos and it may have been at a time after the completion of Mr Georgiou's second period of employment. Mr Georgiou did not have a recollection of the blocks being referred to as asbestos. On the evidence only Mr Georgiou and Mr Kyriacou spoke Greek. Mr Georgiou did not give evidence that the blocks were referred to as asbestos; either in English or in Greek.
15. By 1971, it was known within the medical and scientific community that even brief exposure to crocidolite asbestos could cause mesothelioma. The position with amosite was not known, but dust control was recommended for use of all forms of asbestos, including chrysotile. [4]
16. The risk of contracting mesothelioma from small exposures to asbestos was not well known outside of the scientific and medical community. The studies were specialised and the access to the scientific and medical articles that are commonly referred to was difficult and they were only available through specialist libraries.
17. The plaintiff relied on a number of newspaper articles and a book entitled "Expendable Americans" published in the United States in 1974. I have referred to the newspaper article closest in time to the second period of employment. The other articles do not specifically refer to the risk of mesothelioma from small exposures.
18. On 27 May 1970 the Age contained an article entitled "Asbestos can kill, scientist tells congress". The report summarised the presentation of Dr Irving Selikoff to the International Cancer Congress held in Melbourne on 26 May 1970.The article linked asbestos with risks to health from indirect exposure, but did not mention mesothelioma. It linked the death of asbestos insulation workers to asbestos, with a higher incidence in workers who also smoked. The article concluded that, "[W]here an asbestos product was shown liable to disseminate fibres in the air it should either be modified or abandoned".
19. The plaintiff relied on extracts of a book entitled "Expendable Americans" published in 1974. In that book the author, a journalist, represented historical reproduction of the work of a number of American scientists and medical practitioners concerning their research and knowledge of the dangers of asbestos. The content of Expendable Americans was said to be material available in popular literature as opposed to scientific, medical or industrial literature.
20. It must be noted that the ability to access print media and literature in the early 1970s was not the same as it is today. It is unlikely that a person living in Sydney at that time would have had easy access to the daily newspapers printed and published in Melbourne. Similarly, it is unlikely that the ordinary person in Sydney would have had easy access to a book published in New York for at least some considerable time after it was published. I am not satisfied that the defendant should have been on notice of the risk from the print media or the publication Expendable Americans.
21. Taking into account all of those matters I am not satisfied that in the period 1972 to 1976 that the defendant would have been on notice that the use of asbestos in its factory posed a risk to its employees. It was reasonable for the defendant to consider the exposure in that period as innocuous.
22. If I am wrong on this conclusion and the defendant was required to investigate or research the risk, I am not satisfied that the defendant would have been told that there was a risk to its employees for the following reasons.
23. There is no evidence as to what the defendant would have been told had an inquiry been made. It is not enough to refer to the scientific literature in the section 25(3) material in this case because it contains conflicting statements. There was no clear Australian position throughout that period. An analysis by the Court of the scientific material would involve considerable speculation.
24. If the question was asked, it probably needed to be asked of a public health body. The National Health and Medical Research Council (NH&MRC) was the preeminent body in the 1960's and 1970's.
25. In 1978 the NH&MRC published a code for the handling of asbestos by small users (the Code). It referred to asbestos millboard and asbestos cement products. The blocks were probably made from one of these products. The Code included the statements that work on asbestos cement products could be safely carried out with hand saws and hand tools. Asbestos millboard was considered to be more generally dusty, but work with hand tools could generally be carried out safely.
26. Whilst it is capable of reading the Code more narrowly by reference to different parts of it, it was advisory in nature. When read as a whole it conveyed the view that the use of small amounts of asbestos with hand tools was safe in the context of asbestos cement or at least generally safe in the case of asbestos millboard. The Code was expressed to have been produced for small users, which appropriately described the defendant.
27. Mr Georgiou's exposure occurred before the publication of the Code. If the defendant had made the inquiry of the NH&MRC in the period of Mr Georgiou's second period of employment I am not satisfied that the NH&MRC would have advised it to cease using asbestos or to have otherwise changed its processes.
28. For these reasons I am not satisfied on the balance of probabilities that the defendant breached the duty of care that it owed to Mr Georgiou.

Issue 3 - Causation

1. Professor Breslin was qualified by the plaintiff to provide an expert opinion. He wrote 3 reports dated 20 September 2014 (the first report), 30 September 2014 (the second report) and 15 March 2016 (the third report).
2. Professor Breslin opined in the third report that all exposures above background community exposure are causative of mesothelioma in that they make a material contribution to the disease. The defendant did not challenge that evidence or contend that I should not accept that proposition. This has been the position accepted in previous cases in the Tribunal for some time.
3. Professor Breslin opined in the first report that Mr Geogiou's exposure in the roof space at the property was to amosite asbestos and was definitely above background community exposure and made a material contribution to his mesothelioma. Professor Breslin opined that this exposure was much heavier than the possible occupational exposure during his work for the defendant. Professor Breslin was not challenged on these opinions.
4. Professor Breslin was challenged on the reasons why he changed the opinion contained in his first report that Mr Georgiou had some possible light occupational exposure to asbestos during his work as a jeweller to the opinion expressed in the third report that Mr Georgiou was exposed to asbestos during his employment with the defendant and that the exposure was above background community risk and had made a material contribution to his mesothelioma.
5. Professor Breslin explained in cross-examination that the opinion in his first report was based on the possibility that the block and the gloves contained asbestos. Professor Breslin felt that he did not have any material on which he could base his opinion apart from the Mr Georgiou's belief. He was not prepared to express an opinion that there had in fact been asbestos exposure in Mr Georgiou's work for the defendant above the level that it was possible.
6. When he was asked to prepare the third report, Professor Breslin was provided with the second affidavit of the plaintiff and a transcript of his evidence taken on 23 November 2015. He was also asked to assume that the block and the gloves contained asbestos fibres.
7. Professor Breslin's change of opinion was completely explained by the evidence he gave in cross-examination and I have no hesitation in accepting his evidence.
8. Professor Breslin opined that Mr Georgiou's exposure was above background community exposure. That opinion is consistent with my findings as to Mr Georgiou's exposure based on all of the evidence.
9. I am satisfied on the balance of probabilities that Mr Georgiou's exposure to asbestos during the first and second periods of employment with the defendant was causative of his mesothelioma.

General Damages

1. Mr Georgiou had lived independently as a widower for 19 years prior to his death. After his retirement in 2002 he travelled overseas on 7 occasions to visit relatives and to perform with his choir. He had undertaken courses in English, mathematics and computing. He maintained a productive vegetable garden and fruit trees and led a full social life.
2. He was diagnosed with bowel cancer in 2009 that required his bowel and liver to be re-sected. He underwent chemotherapy that left him with some neuropathy in his fingers and toes. On 14 September 2014 Mr Georgiou's treating gastrointestinal surgeon could find no signs of recurrence of the bowel cancer 5 years after surgery.
3. He began to suffer symptoms of mesothelioma in 2013 at age 82. He was short of breath and sought medical assistance. A chest x-ray conducted on 18 February 2013 showed a small pleural effusion at the base of his right lung. A follow-up chest x-ray conducted on 27 May 2013 was unchanged. On 30 May 2013 the pleural effusion was drained under ultrasound guidance. Approximately 1 litre of cloudy yellow fluid was drained from his right lung. A chest x-ray conducted on 30 May 2013 after the fluid was drained showed pleural thickening with no significant fluid present.
4. A chest x-ray conducted on 12 September 2013 showed a further pleural effusion at the base of the right lung.
5. Mr Georgiou suffered substantial shortness of breath when he was travelling in India in late 2013. When he returned home he went to his general practitioner (GP). A further chest x-ray conducted on 14 January 2014 depicted an increase in the size of the effusion.
6. The GP referred Mr Georgiou was referred to a cardiologist, Dr Farshid and a cardiothoracic surgeon, Dr Tharion. Dr Farshid performed an angioplasty and stent insertion to treat coronary artery disease in the first week in March 2014.
7. A chest x-ray conducted on 11 March 2014 identified a large right sided pleural effusion with pleural thickening and lymph node involvement that was suspicious for malignancy.
8. On 25 March 2014 Dr Tharion performed surgery, being a video assisted thoracotomy and a talc pleurodesis. Two litres of thick mucinous fluid was drained from the pleural cavity. A catheter was inserted to provide for further drainage.
9. Mr Georgiou was definitively diagnosed with mesothelioma on early April 2014 at age 83.
10. In April 2014 Mr Georgiou was assessed by an oncologist Dr Leong. Mr Gerogiou was assessed as unsuitable for chemotherapy at that time. At about this time, Mr Georgiou started to receive domestic assistance from his daughters.
11. On 23 May 2014 Mr Georgiou advised Dr Tharion that his shortness of breath was gone and he was happy with the outcome of the surgery.
12. Between 6 October 2014 and about 20 November 2014 Mr Georgiou travelled to the United Kingdom and stayed with family. On 21 November 2014 he saw Dr Tharion. He reported that his shortness of breath was much better, his exercise tolerance was good, there had been no drainage from the catheter and that he had experienced no significant pain. On 16 December 2014 Mr Georgiou saw Dr Leong. He reported shortness of breath walking up an incline and that he could still sing in the choir. The catheter was removed on 27 January 2015.
13. Mr Georgiou was reviewed by Dr Leong on 19 March 2015 and 18 June 2015 with no significant change. On the latter date he described suffering minimal chest wall pain.
14. Mr Georgiou's condition deteriorated and he required more assistance than he had been receiving from his daughters, Melissa and Nicole. Melissa gave evidence that this started on or about 2 June 2015. This evidence was inconsistent with the contemporaneous record of Dr Leong and I prefer that evidence. I find that Mr Georgiou did not require increased assistance until 2 July 2015, i.e. 2 weeks after seeing Dr Leong on 18 June 2015.
15. On 15 September 2015 Mr Georgiou was reviewed by Dr Leong. He reported deteriorating significantly in the last few months. A CT scan of the chest showed marked progression of the mesothelioma, involving the pleura encroaching the lung. He was commenced on chemotherapy. He was reviewed by Dr Leong on 23 September 2015 and 29 September 2015. He was commenced on high flow oxygen on the latter date.
16. Mr Georgiou suffered distressed respiration that was complicated by the diagnosis of a tumour on his windpipe. His breathing was interfered with by significant amounts of fluid. He received care and reassurance from his children. He was emotionally distressed and anxious. He suffered from panic attacks.
17. On 14 October 2015 Mr Georgiou was admitted to Canberra Hospital. He was discharged from the hospital on 2 November 2015 and admitted to Clare Holland House an inpatient palliative care facility.
18. Mr Georgiou lived with the knowledge that his condition was terminal for about 20 months. His condition had a debilitating effect on his former lifestyle and he experienced lethargy and fatigue that were foreign concepts to him.
19. The appropriate award for general damages is $315,000.

Interest on general damages

1. I would allow interest at 2% for the period between the development of symptoms and his death, a period of 613 days. The appropriate award is $10,580.
2. I would allow interest at 4% for the period between Mr Gerogiou's death and the date of judgment, a period of 378 days. The appropriate award is $13,048.
3. The total amount of interest on damages is $23,628.

Past out-of-pocket expenses

1. Mr Georgiou's claim for compensation was accepted by the DDA.
2. Mr Georgiou incurred a liability to repay Medicare the sum of $15,293.05. His private health insurer, Bupa, paid claims in the sum of $40,346.65. Mr Georgiou paid the "gap" for expenses incurred that were not fully met by Bupa in the sum of $5,922.15. The total amount of those out-of-pocket expenses is $61,561.85.
3. As at the last day of the hearing, the DDA had not paid those out-of-pocket expenses, which it usually would.
4. I would allow the amount of $61,561.65 for out-of-pocket expenses. Had I found in favour of the plaintiff I would have stayed that portion of the judgment for a defined period to allow the plaintiff to have discussions with the DDA to make payment to him.

Loss of expectation of life

1. But for his mesothelioma, Mr Georgiou would have lived a further 6.47 years on the Australian life tables. I would allow the conventional sum contended for on behalf of the plaintiff of $6,470.

Past Gratuitous Care section 15A Civil Liability Act 2002

1. In general I accept the evidence of Melissa Georgiou as to the things that she and her siblings did for their father during the course of his illness. I accept that she was trying her best to give honest evidence of a period in time that must have been extremely difficult for her and the family. For the reasons already given, I prefer the contemporaneous record of Dr Leong as to the state of Mr Georgiou's disability as at 18 June 2015. As a result I find that Mr Georgiou did not require the additional assistance provided by Melissa and Nicole until 2 July 2015.
2. I would allow 7 hours per week for the period 1 April 2014 to 1 July 2015, less the period 6 November 2014 to 23 November 2014 when Mr Georgiou was in the United Kingdom (period 1).
3. The applicable rate from 1 April 2014 until 17 May 2014 was $27.96 per hour. The applicable rate from 17 May 2014 to 5 October 2014 was $28.24 per hour. The applicable rate from 24 November 2014 to 15 May 2015 was $28.87 per hour. The applicable rate from 16 May 2015 to 1 July 2015 was $29.41 per hour.
4. I would allow the sum of $11,673 for period 1.
5. I would allow 14 hours per week for the period 2 July 2015 to the date when Mr Georgiou commenced on high flow oxygen, which I find to be 29 September 2015 (period 2). The medical evidence does not specify this date. On 15 September 2015, Dr Leong did not make a note in his report that Mr Georgiou was dependent on oxygen. I find that he was provided with high flow oxygen on or about 29 September 2015 because that was the evidence of Mr Georgiou in [28] of the second affidavit. I accept this evidence because the second affidavit was sworn at a time that was relatively close to the occurrence.
6. The applicable rate for period 2 is $29.41 per hour for 13 weeks.
7. I would allow the sum of $5,352 for period 2.
8. I would allow 24 hours per day for the care that Mr Georgiou received from his family between 30 September 2015 and 13 October 2015 (period 3). At this time, Mr Georgiou was having difficulty breathing and difficulty adjusting to the nasal prongs. He would dislodge the nasal prongs, have difficulty breathing due to excess fluid production and then he would suffer from panic attacks that exacerbated his breathing difficulties. In period 3, he was being cared for in his own home. That required the family to cook, clean and care for him as well as monitor his breathing and his use of the oxygen. The applicable rate for period 3 was $29.41 per hour.
9. I would allow $9,881 for period 3.
10. I would allow 4 hours per day for the period 14 October 2015 until 8 November 2015 (period 4). In period 4, Mr Georgiou was an inpatient at Canberra Hospital and at Clare Holland House. I accept Melissa Georgiou's evidence that there was a family member with Mr Georgiou for 14 hours per day during period 4. The family members were present out of concern for Mr Georgiou and did in fact assist him whilst they were present. The basis of an award of damages pursuant to section 15 or 15A Civil Liability Act 2002 is the creation of a reasonable need for the services by the disability of the person claiming compensation. In period 4 Mr Georgiou was being cared for in a hospital. I am not satisfied that he had a reasonable need for 14 hours of care per day to be provided for by people other than the staff at the hospital. I accept that there was a reasonable need for the family to undertake his washing, the preparation of some meals to induce his appetite, to pay his bills and to assist him with communication. The family was there to comfort him and to spend time with him because they loved and cared for him and not because he needed the care to be provided. I accept that Mr Georgiou suffered significant discomfort and distress in period 4 and I have taken that into account when awarding general damages. The applicable rate for period 4 is $29.41 per hour.
11. I would allow the sum of $3,058 for period 4.
12. I would allow 8 hours per day for the period 9 November 2015 to 3 December 2015 (period 5). I would not allow the plaintiff's claim of 24 hours per day for the reasons I have expressed relating to period 4. It is reasonable to allow more hours for period 5 because I am satisfied that Mr Georgiou's condition deteriorated rapidly after 8 November 2015. The applicable rate is $29.41 per hour for period 5.
13. I would allow the sum of $5,822 for period 5.
14. I would allow the sum of $35,786 for past gratuitous care.

Interest on past gratuitous care

1. I would allow interest on past gratuitous care at the rate of 6% for the period between Mr Georgiou's death and the date of judgment a period of 378 days.
2. I would allow the sum of $2,746 for interest on past gratuitous care.

Conclusion on damages

1. The damages that I would have awarded if the plaintiff had established liability are set out in the table below. General damages $315,000.00 Interest on general damages $23,628.00 Out-of-pocket expenses $61,561.85 Loss of expectation of life $6,470.00 Past gratuitous care $35,786.00 Interest on past gratuitous care $2,746.00 Total $445,191.85

Conclusion

1. The plaintiff has not established on the balance of probabilities that the defendant breached the duty of care that it owed to the plaintiff.
2. There will be a verdict for the defendant.
3. It appears to me that the appropriate costs order is that the plaintiff pay the defendant's costs on the ordinary basis. I will make that order in chambers on 31 January 2017 unless either party notifies my Associate in writing on or before 4.00pm on 27 January of its intention to apply for a different order and the basis for doing so or that the parties consent to that or any other order. Any necessary costs argument can be listed on a date in the new term that is convenient to the parties.
4. I order that there be a verdict for the defendant.

Endnotes

1. Mr Goldring used the term "board" or "soldering boards" when giving his evidence. I have used the term "block" or "blocks" for consistency.
2. PX9.
3. "Mesothelioma of the Pleura and Peritoneum following exposure to asbestos in the London area", (1965) 22 British Journal of Industrial Medicine 261.
4. J C Wagner, "Guest editorial" Journal of the National Cancer Institute, May 1971. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2016