Bennett v Workers Compensation Nominal Insurer

1. I will direct that the parties confer on the issue of future domestic assistance and advise my Associate, if a further hearing date is required, limited to the resolution of that issue.
2. If agreement can be reached on the outstanding issues, I will direct that the parties bring in Short Minutes of Order to give effect to my findings.

1. The plaintiff read four affidavits affirmed by him on 5 August 2022, 20 January 2023, 28 July 2023 and 21 January 2025.
2. The plaintiff gave evidence in a direct and straightforward manner, presenting with a reserved and "matter of fact" disposition. He made concessions against his interests in cross-examination and he appeared to be doing his best to give truthful answers. I formed the impression that the plaintiff was a hard worker and that his career as a Tunneller had been a great source of satisfaction and pride for him. He appeared to me to be a person who was getting on with his life despite his condition and that Dr Lotz's description of him as "stoic" was apt. I accept the plaintiff's evidence except in so far as it is contrary to the medical evidence and where it related to his knowledge of the dangers of exposure to dust, for reasons I will come to.

1. Glen Day was a former General Superintendent on tunnelling projects on which the plaintiff had worked and had experience of employing about 1,500 to 2,000 workers for past projects. Mr Day described the plaintiff as motivated, easy to deal with and as having an excellent knowledge of the tunnelling industry. Mr Day's evidence was that he would have no hesitation in employing the plaintiff as a Tunneller on projects that he led, such as the Snowy Hydro 2.0 Project, and estimated that he could earn between $340,000 and $375,000 in such a role. No issue was taken with Mr Day's credit and I accept his evidence.

1. John Gardner had worked in the tunnelling industry since 1974 and he was most recently employed as a General Superintendent by CPB on the North East Rail Link Project in Melbourne. In that role, Mr Gardner was responsible for the hiring and firing of Tunnellers. Mr Gardner described the plaintiff as "a top bloke and works bloody hard" and stated that the plaintiff had a "vast experience and background in tunnelling". Mr Gardner stated that he would have no hesitation in employing the plaintiff as a Tunneller on a project he was in charge of if he were to apply, because experienced Tunnellers are a valuable asset. Mr Gardner estimated that the plaintiff could earn between $320,000 and $350,000 as a foreman and in some projects there would be an additional allowance of 15% for night shift and working a seven-day roster. Mr Gardner gave evidence that the plaintiff could earn $350,000 as a Superintendent on a tunnelling project and that he has the appropriate knowledge and experience to secure such a role. No issue was taken with Mr Gardner's credit and I accept his evidence.

Dr Robert Edwards, Thoracic and Sleep Physician

1. Dr Robert Edwards is a Thoracic and Sleep Physician practising from the Wesley Medical Centre in Auchenflower. He was qualified by the plaintiff as a medical expert and provided four medico-legal reports dated 26 October 2022, 19 June 2023, 6 August 2024 and 3 July 2025.
2. Dr Edwards presented as an excellent expert witness. He made appropriate concessions and was careful to justify his opinions on the basis of the radiology, the lung function tests (LFT) as well as his knowledge and experience. I found Dr Edwards' thesis to be persuasive and able to withstand scrutiny in cross-examination. I am satisfied that I should accept Dr Edwards' evidence.

Professor Daniel Chambers, Thoracic and Transplant Physician

1. Professor Daniel Chambers is a Thoracic and Transplant Physician practising at the Wallace Street Specialist Centre in Chermside. He is the plaintiff's treating specialist and has seen him regularly in the period of 3 March 2021 to 10 September 2025. Prof Chambers prepared three reports for the proceedings dated 3 July 2023, 24 July 2023 and 22 September 2025. A bundle of correspondence between Prof Chambers and the plaintiff's general practitioners was also tendered.
2. Prof Chambers presented as a consummate expert witness. He made appropriate concessions and sought to justify his opinions by reference to the available data, his knowledge and experience and by reference to peer reviewed studies. Prof Chambers was unmoved on his opinions in cross-examination and answered questions with care and demonstrably based on his expertise. Of all of the medical experts called, Prof Chambers had the most recent and relevant experience of treating patients with PMF that have progressed to respiratory failure and patients with other conditions that have progressed to requiring a lung transplant. I found his evidence to be very persuasive and I accept it.

1. Dr Trevor Lotz is a Consultant Psychiatrist practising from The Evandale Practice at Bundall. He was qualified by the plaintiff as a medical expert and provided two medico-legal reports dated 27 March 2023 and 17 September 2025.
2. Dr Lotz presented as a careful and considered expert witness. He impressed me as having insight into the plaintiff's personality traits through his assessments of him and by reference to the clinical notes of the plaintiff's treating Psychologist, Dr Loranie Leas. I am satisfied that Dr Lotz identified significant psychological symptoms that justify his diagnosis and are supported by the contemporaneous observations of Dr Leas. Dr Lotz provided cogent reasons for his disagreement with the defendants' expert Psychiatrist, Dr Sidorov, and I am satisfied that for reasons that I will come to, that I prefer his evidence to that of Dr Sidorov.

1. The following paragraphs represent my findings of fact in the matter unless stated otherwise or superseded by findings that appear later in these reasons.

1. The plaintiff was born on 23 February 1972 and is currently 53 years of age. He was born and raised in New Zealand, completing his schooling at age 18. He began an apprenticeship as a carpenter for about 12 months before working as a plant operator at a sawmill where he operated a forklift for about two and a half years.
2. In about mid 1993 the plaintiff moved to Sydney to take up a position for the second defendant as a Tunneller. He obtained this position through a friend, and when it became available, he left New Zealand immediately.
3. The plaintiff owns a house in Sydney that his mother lives in. He is presently living with his sister and her family in Upper Coomera and working in Brisbane on the Cross River Rail Project for CPB.
4. The plaintiff wants to remain in Brisbane to be close to his 12-year-old daughter, who started high school in 2025. This is partly based on his concern that if his condition deteriorates that he may have limited time left to spend with her. The plaintiff currently shares custody of his daughter with his former partner.
5. The plaintiff holds a number of high-risk work licences (HRWL) including those necessary to operate a forklift, excavator and 60 tonne crane and he is a qualified rigger and dogman.

1. The plaintiff's affidavits set out in considerable detail his work history and the circumstances of his exposure to RCS during the exposure period. At the time when he affirmed his affidavits, the detail of his work history was relevant to the issues in dispute that have subsequently been resolved. It is unnecessary to set out that evidence in detail but some of it continues to be relevant to the issues to be determined and the following summary will suffice. The plaintiff was largely unchallenged on this evidence on cross-examination.
2. I will deal with the plaintiff's current role separately.
3. The plaintiff was employed by the defendants for different periods throughout the exposure period. The pattern of the plaintiff's employment was that he would move from tunnelling project to tunnelling project, according to where work was available. The tunnelling industry is small and most of his roles were secured by referral from people that he knew in the tunnelling industry and involved at various times working in different states and overseas. From about January 2015 the plaintiff has been employed by CPB. He has chosen to remain employed by CPB because he was told that he would not be required to undergo pre-employment medicals.
4. The plaintiff's tunnelling work was shift work and involved long hours, including 12 hour shifts for six days per week. The work was hard and physical. The plaintiff usually worked in close proximity to activities that generated large amounts of dust. The plaintiff's clothes were covered in dust within a few hours of the start of each shift and breathing in the dust was unavoidable. The plaintiff regularly spat up and coughed up dust and blew it out of his nose. For most of the exposure period, the plaintiff was only provided with a paper dust mask that became clogged with dust and sweat in hot conditions underground and provided very little protection from breathing in the dust generated by the tunnelling activities. The standard of ventilation in the tunnels varied according to the rock being bored through, the machinery used and the size of the tunnel, with larger span tunnels being harder to ventilate effectively. For most of the exposure period, the standard of ventilation that the plaintiff encountered was poor. Dust hung in the air for long periods of time, especially at night when the air was still and caused limited visibility inside the tunnels. The work performed by the plaintiff in New South Wales involved dry cutting through Sydney sandstone, which had a high RCS content.
5. Tunnels were bored using tunnel boring machines (TBMs) and road header machines (RHMs).
6. TBMs had a rotating cutting wheel that was pushed into the rock face of the tunnel. TBMs had water sprays fixed behind the cutting head that were meant to suppress the dust. On occasions the water sprays were turned off because the TBM operated more efficiently without the mud created by the water. Most of the TBMs operated by the plaintiff in the exposure period had an open cabin that put the operator in the "thick" of the dust generated by them.
7. The crushed rock called "muck" travelled through the TBM and onto a conveyor belt to be removed from the tunnel. The conveyor belt travelled from the TBM to the tunnel entrance. The conveyor belt was also a source of dust because the muck was not secured on it and dust flew off it as it was transported through the tunnel often over very long distances.
8. The area directly behind a TBM was known as the "snake pit". Materials were transported to and from the TBM using locomotives. The use of locomotives required the laying of track which involved opening a large number of bags of cement in the tunnel that generated clouds of dust that hung in the air.
9. RHMs are an excavator fitted with a cutting head mounted on its boom and fitted with caterpillar tracks. An RHM was operated from a seat on the machine via a control panel. RHMs operated more slowly than TBMs but were more versatile. Most of the RHMs operated by the plaintiff had an open cabin. The first RHM operated by the plaintiff with an enclosed cabin was on the Lane Cove Tunnel Project (June 2004 to March 2006). The cabin on this RHM was not pressurised and dust came in through holes in the cabin and was present on the seat and the controls at the beginning of each shift. On the WestConnex M4 Project (May 2016 to September 2017), the RHM cabins were enclosed and air conditioned, but the air conditioning often malfunctioned and blew out hot, musty air. On this Project as many as nine RHMs operated in close proximity to each other generating large amounts of dust.
10. Excavation was occasionally undertaken using a rock hammer attached to the boom of an excavator. The use of rock hammers generated large amounts of dust.
11. Rock was also removed by the drill and blast method. This involved drilling holes into the rock face using a water-fed pneumatic drill and filling the holes with explosives that were detonated after the tunnel had been evacuated. When the plaintiff returned to the rock face after the explosives had been detonated, the dust could be overwhelming if the workers returned too quickly. The plaintiff was always keen to return to work as quickly as possible to receive cash bonuses for completing the work on time.
12. The muck created by the drill and blast method was removed using an excavator known as a "slingshot mucker". A sling shot mucker was operated by an operator standing on the side of it. The bucket was used to pick up the muck from the rock face which was then flung by the machine away from the rock face in the tunnel. The slingshot mucker had no safety cabin and the use of them was phased out in Australia because they were very dangerous.
13. The walls and ceilings of tunnels were secured and stabilised by rock bolting and the spraying of shotcrete. Rock bolting involved the use of a pneumatic drill to drill into the rock to insert large bolts in the ceiling and walls. Rock bolting was usually carried out in close proximity to an operating TBM and involved being exposed to large amounts of dust. Shotcreting involved the spraying of concrete onto overhead and vertical surfaces of the tunnel, which usually occurred at the completion of excavation.
14. Ventilation of tunnels was provided through a mixture of fans and duct systems. There were three predominant systems in use in the exposure period. The first system provided fresh air from the outside to work areas in the tunnel. The second system removed contaminated air from the tunnel. The third system was a combination of the first and second system. The plaintiff's evidence was that the ventilation systems did not work well in practice. On some projects, the ventilation systems did not work well because of inadequate or ineffective machinery and a lack of work-around options, including the North West Rail Link (January 2015 to May 2016) and the WestConnex M4 Project (May 2016 to September 2017). On other projects, the ventilation systems were removed after excavation was completed and did not remove the dust generated by the finishing activities. On the WestConnex M4 Project, the sheer size of the tunnel cavern made the ventilation ineffective, with the plaintiff deposing that dust always hung in the air and reduced visibility in the tunnel to about 10m.
15. For most of the exposure period the plaintiff was provided with a paper face mask, which for the reasons given, provided little, if any, protection. The wearing of the paper masks was not enforced. At some time on the Northside Storage Tunnel Project (December 1998 to October 2000), the third defendant introduced full face air fed helmets to be used on open cabin RHMs by the operators of those machines. The plaintiff was not shown how to use the full face helmet and he found it did not fit properly and that it was uncomfortable. On the M5 East Project (October 2000 to May 2001), the plaintiff was provided with a dust mask with a filter on it, fed by an airline from the surface. The plaintiff used that mask when operating machinery and took it off to communicate. He wore a paper mask at other times. The wearing of the filter mask was not enforced. Notwithstanding the provision of higher protection face masks from 1998, in later projects, such as the Hoxton Park Microtunnelling Project, the Lane Cove Tunnel Project, and the City East Cable Tunnel Project, the plaintiff was only provided with a paper dust mask. From 2012 onwards, the plaintiff was advised by the Dust Diseases Board to wear a P2 mask while working, and he has done so. On the North West Rail Link Project (January 2015 to May 2016) the wearing of a mask was mandatory when operating a TBM. On the M5 Motorway Tunnel Project, the wearing of masks was compulsory and fit testing of masks was available, but not compulsory.
16. For most of the exposure period, no adequate facilities were provided to the plaintiff to avoid further exposure to the dust from his clothes and person following the completion of his shift.
17. During the exposure period, the plaintiff was not provided with adequate information, instruction or training on the dangers posed by RCS or the ways of eliminating or reducing the risk of exposure to RCS. The plaintiff gave evidence that he was working on the Lane Cove Tunnel in about 2004 when work was stopped and the workers were told to develop a Safe Work Method Statement (SWMS), which was his first experience of that type of document. He gave evidence that it contained basic instructions like "ventilation on, scrubber on". On the Victorian Desalination Project (May 2010 to February 2012), in his role as a Shift Boss, the plaintiff was required to prepare SWMSs for the Superintendents, but that Project was not particularly dusty. The plaintiff deposed that he was never told by any of his employers about the dangers of RCS, it was never discussed amongst his workmates and that he would not have worked as a Tunneller if he had known of the danger.
18. In cross-examination the plaintiff gave evidence that he was first told to wear a mask when undertaking shotcreting in 1993 and that he always did so, although he was not told why it was necessary. He agreed that his knowledge of the dangers increased over time. He always wore a mask when tunnelling and the standard of information available got better when inductions and SWMSs were introduced.
19. The plaintiff was first employed as a Leading Hand in about January 1998. The plaintiff was employed as a Shift Boss in about December 1998, supervising a seven-man crew to complete a 500m section of tunnel. The plaintiff was employed as a Shift Supervisor between about January 2002 to May 2004 on various projects. He was employed as a Leading Hand between about May 2004 and March 2006 on the Lane Cove Tunnel Project. The plaintiff was employed as a Foreman on the fit out aspect of the Eastlink Tunnel Project in about mid-2007. The plaintiff was employed as a Tunnel Foreman on the WestConnex M4 Project and the M5 East Tunnel Project (September 2017 to December 2019). In all of these supervisory roles, the plaintiff continued to perform the hands on work of a Tunneller.
20. The plaintiff was first sent for a pre-employment medical in about June 2004 for the Lane Cove Tunnel Project. The plaintiff was not advised as to the outcome of that medical but was offered the job. Pre-employment medicals then became standard until the plaintiff took up permanent employment with CPB.

The plaintiff's current role on the Cross River Rail Project in Brisbane

1. On 5 January 2020 the plaintiff commenced work as a Senior Supervisor on the CRR Project, employed by CPB.
2. The CRR Project is a 10.2km railway line running from Dutton Park to Bowen Hills, which includes a 5.9km twin tunnel under the Brisbane River and Brisbane CBD. Part of the project includes the construction of new underground railway stations. The plaintiff's involvement in the CRR Project is expected to end in December 2025.
3. The plaintiff's role commenced on the preparatory works for the excavation of the tunnel including building the spoil sheds that are used to store and manage the muck and to reduce the noise of construction, installing gantry cranes and drainage works and building concrete driveways.
4. In February 2020 the plaintiff supervised the excavation of the shafts that was undertaken using excavators and hammers. The excavation was dusty work, and the plaintiff was exposed to the dust created. At this time the plaintiff was provided with a disposable paper P2 respirator.
5. There was some corroboration for the plaintiff's evidence that the commencement of the tunnelling process on the CRR Project was dusty work in the report of Kate Cole, Occupational Hygienist, dated 5 February 2025 (the Cole Report). At CB 472, Ms Cole included a photograph of a RHM being used to commence tunnelling on the CRR Project that was posted to the CRR Facebook page, which showed the generation of a visible dust cloud. Ms Cole stated that very high concentrations of RCS are generated where RHMs without water suppression are used to commence tunnelling, as is depicted in the photograph, because ventilation systems are not installed until after the tunnel is formed.
6. From the beginning of the CRR Project, there has been a dedicated ventilation engineer on site and regular dust and ventilation monitoring, including by an Industrial Hygienist. The crew areas underground are cleaned twice daily and there is a dedicated laundry for workers to wash their dirty work clothes.
7. Between about May and August 2020 the plaintiff supervised the operation of the RHMs to excavate the Roma Street Tunnel. He worked on rotation with other supervisors and was underground for about half of each shift and in the office planning logistics for the remainder of his shift. When he was underground there was dust constantly visible in the air and the plaintiff was exposed to this dust.
8. In about July 2020 the plaintiff was provided with a reusable half-face P2 respirator. He had to remove this mask from time to time to communicate but otherwise kept it on. This mask was fit-tested. From about this time, it was compulsory to wear a fit-tested mask while working underground on the CRR Project.
9. In about August 2020 the plaintiff consulted Dr Kanesh Seevnarain, an Occupational Physician, practising from a practice known as "4CRisk" in Brisbane at the direction of CPB. He was told by Dr Seevnarain that his condition had progressed and that he now had PMF and that he was not to go underground until further notice. Between about late August and October 2020, the plaintiff did not go underground or into the spoil sheds.
10. In or about early October 2020 the plaintiff was informed by Mark Jacobs of CPB that he was required to work in accordance with a health management plan that required the plaintiff to:

(a) wear a PAPR when working underground;

(b) limit his work underground to no more than two hours per shift;

(c) log his working time underground and to submit the log at the end of each week; and

(d) undergo lung function tests every six months and a CT scan every 12 months.

1. At that time the plaintiff was provided with 3M Versaflo full face helmet with a filtered air supply (Versaflo helmet). The Versaflo helmet is powered by a rechargeable battery with a 12-hour capacity and has a microphone installed in it for communication. The plaintiff described the Versaflo helmet as effective in preventing him inhaling dust, deposing that there was no dust residue on his face and that he could not smell or taste the dust when using it.
2. The plaintiff gave evidence in re-examination that there were times when he removed the Versaflo helmet underground including to drink water, communicate on occasions when the microphone did not work and anytime he needed access to his face such as to blow his nose or scratch his face.
3. From about October 2020 the plaintiff has only worked underground for about two hours of each shift. The reminder of his time has been spent above ground working in the spoil sheds and in the office planning logistics.
4. The excavation of the tunnels finished in 2022. After that the tunnel was lined with concrete and the CRR Project moved to the fit out phase. The plaintiff described the pumping of concrete as dusty work due to the movement of concrete trucks, which came and left every seven minutes. After this work he had dust on his clothes and on his person. The plaintiff also described the stripping of formwork as dusty work and he was exposed to that dust.
5. He wore the Versaflo helmet during these tasks which was effective in preventing him from breathing in the dust. He was exposed to the dust on his clothes and person when he took the Versaflo helmet off to walk back to the main office about 500m away from the site to change his clothes and wash them in the laundry at the main office.
6. The plaintiff's current work involves the construction of the Eastern Egress Building (EEB), which is an emergency escape structure and tunnel to the surface to be used by pedestrians in the event of a fire in the underground train station. His current work involves conducting inspections and organising logistics. The plaintiff wears the Versaflo helmet when he is out of the office on site.
7. In his current role, he has foremen and supervisors reporting to him, but there are presently no supervisors employed. In the construction of the EEB the plaintiff was responsible for supervising 16 workers.
8. In cross-examination the plaintiff gave evidence that he presently works in the office for most of his 12 hour shift, only being out of the office for between two to four hours each day. He wears the Versaflo helmet when he is out of the office and that he finds it very effective in reducing the inhalation of dust. He spends time in the office liaising with engineers and using a computer. He gives directions to construction workers, orders materials, makes sure that the necessary equipment to do the work and the necessary labour is available. He keeps notes using the OneNote application on his computer. The plaintiff agreed that he could use his work skills in other endeavours, including general construction work.
9. The plaintiff did not agree that he was qualified to supervise the construction of a $5 million building, because the EEB was a specialist type of construction and this project is the first time that he has ever done that kind of work. The plaintiff did not agree that he could work as a Project Administrator.
10. The plaintiff has had as many as 25 workers under his supervision when he worked as a Tunnel Supervisor.

1. The plaintiff is a lifetime non-smoker.
2. In or about 8 October 2007, while working on the Eastlink Project in Victoria the plaintiff became ill and presented to the Emergency Department at Knox Private Hospital experiencing right sided pleuritic pain and a runny nose and was referred to Dr Danny Chen, a Respiratory Physician in Box Hill.
3. Dr Chen referred the plaintiff for a chest x-ray and CT scan. The latter showed widespread nodules with adenopathy (enlarged lymph nodes) and apical scarring. Dr Chen recorded that he believed that the plaintiff was most likely suffering from sarcoidosis but wanted to exclude tuberculosis, with a differential diagnosis of inorganic dust lung disease, which I infer was a reference to pneumoconioses from the inhalation of inorganic dust particles such as asbestos, coal and silica.
4. On 16 October 2007, when Dr Chen reviewed the plaintiff the chest pain had resolved. Lung function tests (LFT) recorded an FEV1 of 2.71 rising to 2.92 after the administration of a bronchodilator and an FVC of 2.99 rising to 3.24. His DLCO was recorded as 66% of predicted. Dr Chen referred the plaintiff for a TBBx (fibreoptic bronchoscopy) with BAL (bronchoalveolar lavage) in hospital on 31 October 2007.
5. On 20 November 2007, Dr Chen reported the bronchoscopy as normal and showing no sign of malignancy and that the tuberculosis culture would take eight weeks to exclude that condition, although he thought that tuberculosis was unlikely. Dr Chen believed that the CT scans likely showed inorganic dust exposure or post-varicella (chickenpox) changes. He suggested a follow-up CT scan in three months when the plaintiff returned to New South Wales.
6. The plaintiff deposed that he understood that the results of the biopsy were "negative" and that he believed that he had suffered a chest infection, from which he had recovered. I pause to note that there was no evidence that the plaintiff knew in about October 2007 that the appearances on the CT scan were from exposure to RCS as a result of his work as a Tunneller. This is consistent with the content of Dr Chen's records that indicated that he had a number of differential diagnoses under consideration.
7. In about mid-2012 the plaintiff was assessed by the Dust Diseases Board in New South Wales (DDB). The plaintiff was screened and underwent a CT scan on the mobile lung bus. He was diagnosed with simple silicosis and registered with the DDB. He was assessed as having a 0% disability. The plaintiff was told to wear a P2 mask while working and from this time was subject to review every two years by the DDB. Since that time, the plaintiff's medical expenses for anything relating to his lung condition have been paid for by the DDB.
8. The plaintiff deposed that when he was diagnosed with silicosis in 2012 that he did not understand that his condition was serious. He understood that he could keep working as long as he wore a P2 respirator, which he did. He had financial commitments and could not afford to stop work.
9. The plaintiff was reviewed by the DDB in 2014, 2015, 2016 and 2018. On each occasion he was told that he had simple silicosis and that his condition had not changed. He was told that it was fine for him to continue work as a Tunneller.
10. On 7 July 2012 the plaintiff commenced treatment with Dr Leas, Psychologist, on referral from his General Practitioner on a Mental Health Care Plan (MHCP). The plaintiff gave a history that he was experiencing anxiety as a result of the breakdown of his relationship and feelings of uncertainty. The plaintiff engaged in four psychological sessions that assisted him to make major decisions to move to Brisbane, commit to his relationship and start a family with his partner.
11. In 2013 when the plaintiff was working on the City East Cable Tunnel in Surry Hills he applied for a tunnelling job on the Legacy Way Tunnel Project in Brisbane. After he underwent a pre-employment medical, the prospective employer withdrew the job offer. The plaintiff deposed that he did not understand this decision because the DDB had told him that he could continue his work as a Tunneller. He was advised by someone from the DDB to lodge a claim against the prospective employer for discrimination. He applied for the job and he wanted to base himself in Brisbane following the birth of his daughter and the purchase of a house with his partner. After being rejected for the Legacy Way Tunnel Project, the plaintiff deposed that he was forced to look for work interstate to support his family.
12. On 31 March 2016 the plaintiff was referred back to Dr Leas for further psychological treatment on a MHCP. The plaintiff gave a history of distressing memories from his daughter's birth that resulted in the hospitalisation of his partner with a bacterial infection and difficulties in his relationship arising from his difficulties with emotional expression. Dr Leas opined that he was suffering from an Adjustment Disorder with Anxiety and conducted six sessions of cognitive behavioural therapy and Eye-Movement Desensitisation Reprocessing (EMDR) and requested a referral from his General Practitioner for a further four sessions.
13. On 13 August 2016 Dr Leas reported to the plaintiff's General Practitioner that he had completed the further four sessions and was being discharged from Dr Leas' care, with the plaintiff receiving benefit from coping strategies and treatment sessions.
14. In about August or September 2020 the plaintiff attended an employment medical examination with Dr Seevnarain, at the direction of CPB. I pause to note that no records of Dr Seevnarain were tendered in evidence and he was not called to give evidence. The plaintiff has continued to see Dr Seevnarain at regular intervals at the direction of CPB.
15. Dr Seevnarain told the plaintiff that his condition had progressed to advanced silicosis and that he now had PMF. An employee of CPB, who worked as a rehabilitation advisor, was present to support the plaintiff after he was given the diagnosis. The plaintiff deposed that he became emotional and was shocked by the diagnosis.
16. The plaintiff did not understand that his condition was serious or that it was important to avoid all dust exposure until he was given the diagnosis of PMF by Dr Seevnarain.
17. Dr Seevnarain referred the plaintiff to see Dr Farzad Bashirzadeh, Thoracic Physician, for a specialist opinion. Dr Bashirzadeh sent a letter dated 21 September 2020 to Dr Seevnarain, and I infer that he saw the plaintiff on that day. Dr Bashirzadeh received a history from the plaintiff that he had been working in the tunnelling industry for 28 years and diagnosed with simple silicosis about nine years prior. When he was last reviewed by the DDB in 2018 he was told he could work underground using personal protective equipment (PPE) and he had stable radiology and LFT. Dr Bashirzadeh ordered LFT which showed his position to be stable, but Dr Bashirzadeh thought his asthma was not optimally controlled and changed his medications. Dr Bashirzadeh reviewed his CT scan which showed bilateral diffuse pulmonary nodules in the upper, mid and lower zones but predominantly in the upper zones, together with early PMF. Dr Bashirzadeh opined that the plaintiff should avoid any exposure to dust by finding an alternate position for him at work or at least using a respirator rather than a paper mask. Dr Bashirzadeh noted that he was due to be assessed by an independent industrial hygienist for assessment.
18. The plaintiff deposed that Dr Bashirzadeh told the plaintiff that he had advanced silicosis and PMF and that he found this news devastating to hear again.
19. In or about October 2020, CPB put the plaintiff on restricted duties which initially involved a direction not to work underground on the CRR Project. About eight weeks later, the plaintiff was told that he was cleared to work between two to four hours underground per shift provided that he wore the Versaflo helmet.
20. On 19 January 2021 the plaintiff was reviewed by Dr Bashirzadeh who reported to Dr Seevnarain. Since his last report he had obtained copies of the plaintiff's 2012 CT scans. Dr Bashirzadeh reported that there was no PMF in the 2012 CT scan but it was present in both apices in the September 2020 CT scan. He thought that the LFT remained stable. He advised the plaintiff to strictly avoid exposure to dust above the recommended exposure limits and noted that he was already seeing an Industrial Hygienist and using a respirator.
21. On 3 March 2021 the plaintiff consulted Professor Daniel Chambers, a Thoracic and Transplant Physician, on referral from his General Practitioner. Prof Chambers confirmed the diagnosis of silicosis and early PMF. The plaintiff gave a history of minimal respiratory symptoms with minor breathlessness and cough in the morning. Prof Chambers reviewed CT scans from 2012 and 2020 finding that there had been some subtle changes with slightly more confluence of the upper zone nodules. He opined that the plaintiff's FVC and DCLO were stable, but he demonstrated variable FEV1 results consistent with the plaintiff's longstanding asthma. Prof Chambers advised the plaintiff to consider his continuing employment with CPB because there was no known safe level of exposure for RCS in secondary prevention and it was likely that he was still having some exposure to RCS. Prof Chambers reported that he was cautiously optimistic about the plaintiff's prognosis and arranged to see him again in 12 months.
22. On 6 May 2021 the plaintiff was referred back to Dr Leas on a MHCP. The plaintiff gave a history of low mood precipitated by a diagnosis of silicosis, with Dr Leas noting "much loss and grief" arising from the diagnosis. He continued to experience stress from his relationship with his former partner relating to access to his daughter. Dr Leas sought a further referral for 10 sessions under a MHCP.
23. On 25 January 2022 the plaintiff was reviewed by Dr Bashirzadeh who reported to Dr Seevnarain. Dr Bashirzadeh received a history that the plaintiff was working 50% of his time above ground and 50% of his time underground. Dr Bashirzadeh thought that his LFT were stable. Dr Bashirzadeh reported that a CT scan was reported by very experienced radiologists as showing progression of his PMF, but that he would ask for it to be reviewed by his interstitial lung disease multi-disciplinary team (ILD MDT) for a second opinion. Dr Bashirzadeh advised the plaintiff that if his disease was progressing that he should consider changing his employment or stop his exposure to dust.
24. On 7 February 2022 Dr Bashirzadeh reported to Dr Seevnarain that after seeking the input of the ILD MDT he had informed the plaintiff in a telephone call that the latest CT scan showed significant progression from the 2012 CT scan and further progression from last year's CT scan. Dr Bashirzadeh advised the plaintiff "to ensure that there is no exposure [to dust] in the work environment".
25. On 29 March 2022 the plaintiff was reviewed by Prof Chambers. The plaintiff reported an increase in breathlessness over the past six to 12 months. On review of the latest CT scan Prof Chambers noted that some of the nodules may have been slightly larger, but the areas of confluent fibrosis were unchanged and there had been no marked deterioration. Prof Chambers reported that the plaintiff's lung function was unchanged. Prof Chambers reported that he was concerned about progression, which was inevitable at some point. Prof Chambers reiterated that the plaintiff should not be working in an environment where he could be exposed to RCS. Prof Chambers arranged a review in six months' time.
26. In or about May 2022, the plaintiff was reviewed by Dr Seevnarain. The plaintiff deposed that he was told by Dr Seevnarain that:

(a) CPB would not be reviewing its health management plans and it was unlikely that sick workers would be offered work on any new project; and

(b) he would not be signing off on anymore health management plans for the plaintiff.[2]

1. The plaintiff deposed that he was absolutely devastated by this news and could not sleep that night. The plaintiff deposed that he was disappointed by the way in which he was told that his tunnelling career was over.
2. On 5 October 2022 the plaintiff was reviewed by Prof Chambers. The plaintiff reported that his symptoms had been stable. Prof Chambers considered the CT scan and LFT to be stable. Prof Chambers wrote "[u]nfortunately he continues to work on the Cross River Rail but only spends two hours a day maximum underground and uses a positive pressure respirator at all times as part of his workplace health and safety plan". Prof Chambers arranged a review in 12 months.
3. On 21 April 2023 the plaintiff was reviewed by Dr Bashirzadeh who reported to Dr Seevnarain. Dr Bashirzadeh opined that recent LFT were stable. He noted that there was "normal progression" of his disease in a CT scan of August 2022 compared to the CT scan of January 2022.
4. On 3 July 2023 Prof Chambers wrote a medico-legal report addressed to the plaintiff's solicitor. Relevantly, it contained the following passage:

The nature of the work in the tunnelling industry means that it is likely that a worker will be exposed to respirable crystalline silica. Notably, and relevantly, the current workplace exposure standard of...0.05mg/m3...has been devised in a primary prevention setting. It is not known what the safe exposure limit is in a secondary prevention (that is in someone who has already contracted a disease) setting. Given these considerations, it is my recommendation that Mr Bennett not have any further exposure to respirable crystalline silica. Although advice on the suitability of any future role, given these restrictions, would depend on the role description and would require the advice of an occupational physician and/ or hygienist on the suitability of a role, it is unlikely that a role in the tunnelling industry for which Mr Bennett would be qualified would entail no exposure risk.

1. On 25 July 2023 the plaintiff was reviewed by Dr Seevnarain, who told the plaintiff that there had been a natural progression of his PMF. Dr Seevnarain told the plaintiff that it was a good idea for the plaintiff to continue to wear the Versaflo helmet, notwithstanding that the Roma Street Station had been declared a "mask-free" zone by CPB.
2. On 27 October 2023 the plaintiff was reviewed by Prof Chambers. The plaintiff reported difficulty with breathlessness on significant exertion involved with activities like walking up flights of stairs, running and swimming. He reported being unable to swim 25 metres recently. His LFT was stable, but there were small falls in FEV1 and DLCO. Prof Chambers arranged a review in 12 months.
3. On 1 December 2023 the plaintiff was reviewed by Dr Bashirzadeh who reported to Dr Seevnarain. Dr Bashirzadeh opined that the LFT were stable and that the CT scan did not show any progression of the disease from August 2022.
4. On 1 November 2024 the plaintiff was reviewed by Prof Chambers. The plaintiff reported that he had suffered from an intercurrent illness about one month before but he was feeling back to normal. Prof Chambers reported no changes to his PMF from the 2023 CT scan. Prof Chambers reported that there had been a slow decline over the past three years with FVC dropping approximately 70mls per year and a fall on diffusing capacity.
5. On 10 September 2025 the plaintiff was reviewed by Prof Chambers. He continued to report mild breathlessness on exertion, with no cough or other symptoms. Prof Chambers reported his LFT and radiology were stable. Prof Chambers arranged a review in 12 months.

1. The plaintiff gave evidence that he experiences shortness of breath on climbing flights of stairs and that he has given up running in the park with his daughter. He experiences shortness of breath on walking after about two kilometres at which time he needs to stop for a short break before continuing. His activities with his daughter such as cycling and riding a scooter are limited by his condition.
2. The plaintiff described himself at work as having "slowed down". He continues to complete his duties but at a slower pace. He struggles with his disability and speaks to his psychologist about that. He estimated that five years ago he was walking on average 22 kilometres per day based on a fitness app on his phone. He now walks about seven or eight kilometres per day. The plaintiff previously considered himself to be fit and motivated at work and described himself as undertaking his duties with speed and agility. He has continued with his exercise regime but he can only do about half the amount of push-ups he used to be able to do.
3. The plaintiff finds the effort involved in undertaking lung function tests to be quite significant. He tries his hardest to follow the instructions for those tests with the result that he feels like he is going to faint or pass out with the effort required.
4. He continues to undertake some gardening work for his mother when he is in Sydney, and he finds that mowing the lawn and trimming the hedges for her to be exhausting and it takes a lot longer than it used to.
5. The plaintiff considers his symptoms of breathlessness to be getting worse. He finds it strenuous to change the bed clothes. He has recently moved in with his sister and her husband in Upper Coomera, to save money and in case he needs assistance with his activities of daily living in the future.
6. In the past five years the plaintiff has noticed that he comes down with respiratory viruses more often than he did in the past and they tend to have a more adverse impact on him. In May 2025 he contracted COVID followed by a viral infection and was off work for about two weeks. The plaintiff finds that he tends to suffer major infections at least twice each winter and not so often in summer.
7. The plaintiff continues to see Dr Leas regularly and more often when he finds life difficult, such as in the lead up to the hearing.
8. The plaintiff has not told his daughter about his condition because he thinks she is too young to understand and he is worried about how she might react.

1. The plaintiff has decided, on the basis of medical advice to avoid dust exposure, that he will not seek future roles in tunnelling projects or civil construction projects. He is concerned that the risk of his disease worsening is too high. He intends to change roles as soon as he is financially able to do so.
2. The plaintiff continues to have financial commitments including his daughter's private school fees and child support for her.
3. The plaintiff gave evidence that in the event that his work with CPB finished, that he would look for work as a driver or at Bunnings to avoid dust, even though the remuneration would be much lower than what he receives now.
4. The plaintiff has recently been asked to submit a resume to CPB and to fill in a redeployment survey. The plaintiff understands that there are a number of redeployments under consideration at various locations including Papua New Guinea, Western Australia, Victoria and New South Wales, regional Queensland, the Gold Coast and Brisbane. The plaintiff gave evidence that if he continued to be healthy that he would continue to travel for work if the remuneration was worthwhile.
5. The plaintiff gave evidence that he did not consider any of the redeployments with CPB other than Brisbane to be suitable to his condition or his desire to be close to his daughter.
6. The plaintiff deposed that he is frustrated by the loss of his tunnelling career and the potential earnings he is missing out on, with Tunnellers on the North East Link Project in Victoria making $325,000 per annum in July 2023.
7. The plaintiff gave evidence that he enjoyed his work as a Tunneller and took pride in it. Over the years he had enjoyed the camaraderie of his workmates in the relatively small tunnelling industry.
8. The plaintiff feels uncertain and stressed about his future and he experiences regular anxiety attacks. He sees his psychologist every two to three weeks. He finds it difficult to accept what his life has become and he feels "devastated and broken". He finds that the psychological therapy helps his emotional state and makes it easier to cope with what he is confronting.
9. The plaintiff has discussed the possibility of a lung transplant with Professor Chambers, and as presently advised, would have that treatment if and when it became necessary.
10. The plaintiff described his future as "limited". He finds the concept of a bilateral lung transplant to be scary and daunting but would go ahead with it if it gave him some longevity. At times his emotions get on top of him when he thinks about telling his daughter about his condition.
11. The plaintiff agreed in cross-examination that he could work underground as a Tunneller if he was wearing the Versaflo helmet. I pause to note that this concession by the plaintiff is contrary to the medical evidence and I do not accept it, for the reasons I will come to. He accepted that he could apply for jobs that he had the HRWLs to perform, such as a crane driver or a forklift driver, and it was likely that they would be remunerated more favourably than an Uber driver or a bus driver.
12. The plaintiff accepted in cross-examination that he expected there to be a lot of construction work in Brisbane associated with the 2032 Olympics being held in Brisbane and that may provide the plaintiff with employment opportunities if he could avoid being exposed to concrete dust.
13. The plaintiff did not accept that he could be a safety officer in the tunnelling industry because safety officers were required to go underground to conduct inspections while work was being performed, he would require additional training and he did not want to be a safety officer.

1. Prof Chambers opined that the plaintiff's condition has showed signs of decline on the radiology and on the LFT since he began treating him in 2021 and that he expects the plaintiff's condition to continue to progress to the extent that he will reach respiratory failure in his late 60s or early 70s and require a bilateral lung transplant, which will give him a further life expectancy of seven to eight years.
2. Prof Chambers opined that the plaintiff would become increasingly unfit to work as his respiratory condition declines and that he was permanently unfit to work in any occupation where there was a risk that he might be exposed to RCS, even if he was using the Versaflo helmet.

1. Dr Edwards opined that the plaintiff's condition had progressed from 2012 to 2020 and further from 2021 to 2023 and that he estimated that the plaintiff had a life expectancy of 15 years from when he first saw him in 2023. Meaning that at about age 66, the plaintiff would reach respiratory failure and die or require a bilateral lung transplant, which would give him a further seven to eight years of life expectancy.
2. Dr Edwards opined that the plaintiff's physical capacity to work would decrease in line with the decline in his respiratory function. He anticipated that the plaintiff would be unable to work for at least five years before reaching respiratory failure and that he would have a decrease in his capacity for work in the five years before that as he became increasingly short of breath on exertion.
3. Dr Edwards opined that the plaintiff was unfit to work as a Tunneller because of the risk of further exposure to RCS which could cause his condition to rapidly progress, and that his opinion did not change even if he wore the Versaflo helmet. Further, Dr Edwards opined that the plaintiff was not fit to work on a general construction site where he could be exposed to concrete dust from formwork, drilling or cutting concrete.

1. Dr Lotz opined that the plaintiff suffered an Adjustment Disorder with mixed anxiety and mood, following his diagnosis with PMF in about September 2020, that was likely to endure and progress in line with the decline in his physical condition and that he would require ongoing psychological support for the indefinite future. The plaintiff's "stoic" presentation was a coping mechanism that was unlikely to withstand the plaintiff's loss of career and his expected physical decline and this would lead to a series of existential crises.

Associate Professor David McKenzie, Respiratory Physician

1. Associate Professor David McKenzie is a Respiratory and Sleep Physician who practises from the Rest and Sleep Centre at the Prince of Wales Private Hospital. He was qualified by the first to fifth defendants as a medical expert and produced six medico-legal reports dated 9 December 2022, 3 January 2023, 15 September 2023, 30 May 2025, 2 September 2025 and 19 September 2025. A/Prof McKenzie consulted with the plaintiff by audio-visual means and has not physically examined him.
2. A/Prof McKenzie is well-known to the Tribunal and a highly respected expert in occupational lung disorders. He made appropriate concessions but remained fervent in defence of his opinions. Taking all of the evidence into account, I have come to a different view of the assumptions made by A/Prof McKenzie based on the circumstances of the plaintiff's exposure to RCS, the LFT results, the radiology and the literature for reasons that I will come to. The result is that I do not accept A/Prof McKenzie's opinion that the plaintiff's condition is unlikely to deteriorate or will continue to deteriorate slowly, such that his life expectancy will not be impacted.

Dr Alexey Sidorov, Consultant Forensic Psychiatrist

1. Dr Alexey Sidorov is a Consultant Forensic Psychiatrist practising in Sydney. He was qualified by the first to fifth defendants as a medical expert and produced three medico-legal reports dated 8 August 2023, 22 November 2023 and 24 June 2025.
2. Dr Sidorov presented as a considered and careful expert witness. He made appropriate concessions, including that there was very little difference between his opinion and that of Dr Lotz. Dr Sidorov agreed that the plaintiff had suffered from an Adjustment Disorder at times and that he was psychologically vulnerable to that condition or a more serious condition such as Major Depressive Disorder based on the stressors that he was experiencing in his life. He accepted that in the future this may include a worsening of his respiratory condition. The only significant difference between the psychiatrists was whether or not the plaintiff's condition was in remission, to the extent that a formal diagnosis at present was warranted. Ultimately, I have preferred Dr Lotz's opinion on this issue.

1. Dr Graham Hall is an Occupational Physician who was qualified by the defendants to provide an Earning Capacity Assessment dated 20 April 2023 (Assessment) that was jointly authored by James Hill, a Vocational Consultant and Rehabilitation Counsellor. Dr Hall interviewed the plaintiff once by AVL for the purpose of preparing the Assessment, he assessed him undertaking various movements but could not conduct a physical assessment. Dr Hall was responsible for preparing Part A of the Assessment and spoke to Mr Hill about the occupations identified by him, confirming that Dr Hall thought that they were suitable occupations by reference to the plaintiff's medical condition.
2. Dr Hall made appropriate concessions including that he did not have much experience of treating patients with silicosis or PMF. Dr Hall agreed with Dr Edwards, Prof Chambers and A/Prof McKenzie that the plaintiff was not fit to work in occupations where there was a risk of exposure to RCS and that included if he was using the Versaflo helmet.

James Hill, Vocational Consultant and Rehabilitation Counsellor

1. James Hill is a Vocational Consultant and Rehabilitation Counsellor who was qualified by the defendants to provide an Earning Capacity Assessment dated 20 April 2023 (Assessment) that was jointly authored by Dr Hall. Mr Hill was responsible for completing Part B of the Assessment. This involved interviewing the plaintiff by AVL about his work history, identifying suitable occupations, researching job advertisements for those occupations and making enquiries with persons advertising jobs to assess the plaintiff's suitability for those roles. The defendants did not press the aspects of the last task that involved Mr Hill recording hearsay conversations with the persons advertising jobs.
2. Mr Hill intentionally limited his selection of suitable roles to three, in accordance with his usual practice, and on the basis that the plaintiff would not require further education or training to secure those roles.

1. Lauren Stranks is an Occupational Therapist working in occupational rehabilitation. Ms Stranks prepared a report dated 26 June 2025 on behalf of Procare Injury Management, who were retained by the defendants to provide an expert opinion on the plaintiff's vocational capacity. Ms Stranks prepared her report on the basis of documents provided to her and did not consult with the plaintiff. Ms Stranks' assessment was performed with a similar method to that of Mr Hill, and the defendants did not press the hearsay material in her report.
2. Ms Stranks was only provided with the reports of A/Prof McKenzie and conceded that it would have been good to have reports from his treating practitioners and doctors who had physically examined the plaintiff. Ms Stranks only had access to the Assessment which included Dr Hall's opinion based on his AVL consultation with the plaintiff.

1. A/Prof McKenzie opined that the plaintiff's prognosis was good because there has been no change in his pulmonary function on LFT and only very subtle radiological changes over the 15 years from 2007 to 2022.
2. A/Prof McKenzie stated that the plaintiff's heaviest exposure to RCS occurred at the start of his tunnelling career and that this was consistent with presentation on CT scans of simple silicosis in 2007 and the expected latency period for the condition of 10-15 years. He opined that from the late 1990s and further from 2007, the plaintiff's exposure to RCS decreased as a result of improving conditions and the plaintiff's use of a mask and that this was likely the cause of the stability of his condition from 2007 onwards.
3. A/Prof McKenzie opined that there may be some further very slow and mild progression of the plaintiff's condition in the next 10-20 years, but by reference to the past progression of the plaintiff's disease, he did not expect the plaintiff to be severely disabled in the future or that his life expectancy would be reduced.
4. In his report dated 30 May 2025, A/Prof McKenzie reviewed a series of x-rays and CT scans of the plaintiff from 9 October 2007 to 16 October 2004. A/Prof McKenzie identified fibrosis, consistent with the early stages of PMF in the CT scans of 9 October 2007, 12 July 2012 and 27 August 2014, well before it was diagnosed by Dr Seevnarain and Dr Bashirzadeh in September 2020, and this formed the cornerstone of A/Prof McKenzie's opinion evidence that the plaintiff's condition had not significantly progressed since 2007. A/Prof McKenzie did not examine the CT scan of 7 September 2020, because he could not get access to the main images.
5. A/Prof McKenzie agreed with Prof Chambers and Dr Edwards that the plaintiff was not fit to work as a Tunneller even if he was using the Versaflo helmet because of the risk of exposure to RCS.

1. Dr Sidorov opined that the plaintiff had suffered from an Adjustment Disorder at times in his life when faced with various stressors, including his diagnosis in 2020 of a serious lung disease, but at the times when he was seen by Dr Sidorov his symptoms did not meet the diagnostic criteria for that condition. The previous history of Adjustment Disorders was in part due to the plaintiff's perfectionistic and obsessional personality style, and it was likely that any progression of his lung disease would result in a relapse of his Adjustment Disorder which may evolve into a more serious condition such as a Major Depressive Disorder.

The Assessment conducted by Dr Hall and Mr Hill

1. Mr Hill opined that the plaintiff was capable of securing employment as a:

(a) Site Supervisor in the building industry, earning $1,826 nett per week;

(b) Facilities Administrator, which involves managing a building, earning $1,155 nett per week;

(c) Project Administrator, which involves planning and organisation of projects, earning $1,542 nett per week.

1. Dr Hall opined that the plaintiff was fit to undertake these roles on the basis that he did not anticipate that they involved a risk of exposure to RCS.

1. Ms Stranks opined that the plaintiff was capable of securing employment as a:

(a) Senior Supervisor in the building and construction, mining or infrastructure industry, earning $2,606 nett per week;

(b) Project Administrator earning $1,559 nett per week;

(c) Procurement Administrator earning $1,990 nett per week.

Issue 1 Whether and to what extent will the plaintiff's condition deteriorate?

1. Issue 1 involves the determination of the conflict between the evidence of Prof Chambers and Dr Edwards for the plaintiff and A/Prof McKenzie for the defendants.
2. It was common ground that the course of the plaintiff's condition is unpredictable.
3. Prof Chambers and Dr Edwards gave consistent evidence that PMF is a progressive condition and based on what they have observed in the plaintiff and by reference to the literature that his condition will progress. The hypothetical course of the plaintiff's condition plotted by Prof Chambers and Dr Edwards involves a progression to respiratory failure in the next 13 to 20 years, at which time he will require a bilateral lung transplant. They also gave evidence that the plaintiff's past history of his disease was no guarantee of its future progression and it may progress rapidly, especially if he suffers from a serious respiratory condition such as pneumonia in the intervening period.
4. A/Prof McKenzie on the other hand gave evidence that he did not expect the plaintiff's condition to progress to the extent that it would result in respiratory failure at any point in time.
5. The resolution of Issue 1 is necessary to find a proper basis in which the assessment of damages can occur. The principles relating to the assessment of damages are relevant to the resolution of Issue 1.
6. The plaintiff bears the onus of proving the likely consequences of his condition and the resulting loss.

1. A court can be satisfied of an issue on the balance of probabilities based on circumstantial evidence: Seltsam Pty Ltd v McGuiness at (2000) 49 NSWLR 262 at [90]. This requires considering the weight that can be given to the united force of all of the circumstances put together: Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279.
2. Facts can be inferred on the basis of the primary facts if it is reasonable to draw the inference: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358.
3. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. Some facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability: Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 142 at 169-170.
4. The facilitation principle applies where the tort is of such a nature as to preclude the ascertainment of the amount of damages with certainty and operates to put the risk of uncertainty on the wrongdoer rather than the injured party: Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 at [131]. The facilitation principle has also been described as one which permits inferences to be drawn in favour of a plaintiff where the wrongdoing of the other party "made quantification difficult", with the greater the difficulty in proof that results from the defendant's wrongdoing the stronger the inference the court will be prepared to draw against the wrongdoer: Cessnock City Council at [132].
5. The classic illustration of the facilitation principle is in Armoury v Delamirie [1774] EngR 2; (1774) 1 Cowp 63 at 65. "In that case, the defendant wrongfully deprived the plaintiff of the plaintiff's possessory title to a jewel which had been set in a socket in a ring. Since the defendant refused to produce the jewel, it was impossible for the plaintiff to prove the value of the jewel. Evidence was given of the value of the best jewels that would fit in the socket. Pratt CJ directed the jury that in the absence of the production of the jewel the jury should "presume the strongest" against the defendant and award the plaintiff the market value of the best jewels."[3]
6. The plaintiff is entitled to compensation which, so far as money can do, puts him in the position that he would have been if the defendants' tort had not been committed: Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 at 63. The compensatory principle aims, so far as money can do, to rectify wrongful acts and repair their consequences: Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192 at [139]- [141], citing Admiralty Commissioners v SS Susquehanna [1926] AC 655 at 661, O'Brien v McKean [1968] HCA 58; (1968) 118 CLR 540 at 557, and Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 at 386.
7. Damages for personal injury are assessed at the date of judgment because it is preferable to make the assessment at the latest time possible to allow circumstances that may have been prophecies to become facts: Johnson at 387.
8. In most personal injury cases it is not possible to award perfect compensation for physical suffering: Lee Transport Co Ltd v Watson [1940] HCA 27; (1940) 64 CLR 1 at 13-14 (Dixon J). The amount awarded is required to be fair to both parties, but that does not require that the award be less than full or adequate_: Pamment v Pawelski_ [1949] HCA 43; (1949) 79 CLR 406 at 410-411.
9. Damages are compensatory in character and must be recovered in a lump sum on a once and for all basis. The plaintiff is free to do whatever they wish with the damages recovered: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412 (Gibbs CJ and Wilson J).
10. Once a loss is proved the court is required to do its best to put a value on that loss, even if the evidence is less than satisfactory: Ashford v Ashford (1970) 44 ALJR 195.
11. Proof of damage and assessment of damages requires a consideration of the consequences from the date of injury to the date of trial and events into the future. In Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-643 Deane, Gaudron and McHugh JJ stated:

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which have allegedly occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99% - or very low - 0.1%. But unless the chance is so low as to be regarded as speculative - say less than 1% - or so high as to be practically certain - say over 99% - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain the prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded.

1. The breach of duty committed by each of the defendants was an egregious one.
2. Exposure to large quantities of RCS has been known to cause silicosis and other pulmonary diseases from at least 1920 in Australia, when the Workmen's Compensation (Silicosis) Act 1920 (NSW) was enacted.
3. In the exposure period:

(a) there was a plethora of publicly available guidance material relating to the dangers posed by exposure to RCS and the control measures that could be implemented to minimise the exposure to RCS;

(b) the plaintiff's employers had available to them substitution, engineering and isolation control measures available to reduce the amount of RCS generated by their activities and access to superior PPE, such as PAPRs, that could have reduced the inhalation of RCS by the plaintiff;

(c) the plaintiff's employers had a common law duty to take reasonable steps to protect the plaintiff from foreseeable risks by providing a safe work environment and a safe system of work;

(d) the plaintiff's employers had statutory duties imposed on them to ensure the health and safety of their workers, such as the plaintiff, that required them to take reasonable steps to limit exposure to RCS;

(e) the plaintiff's employers had statutory and regulatory obligations to comply with which, if followed, would have reduced the exposure of their workers to RCS.

1. The plaintiff gave unchallenged evidence that throughout the exposure period he was exposed to large amounts of dust in the confined space of tunnels, with poor or inadequate ventilation, using unsuitable plant, where he had been provided with inadequate respiratory protection, training and supervision.
2. During the exposure period, each of the second to seventh defendants were large civil contracting companies, conducting businesses of constructing large infrastructure projects and tunnelling in Australia. They often engaged in the projects through joint ventures, between them.
3. I accept Ms Cole's evidence that in the exposure period, each defendant exposed the plaintiff to levels of RCS in excess of the Working Exposure Standards (WES), in breach of their statutory duties and contrary to the publicly available guidance material.
4. The defendants knew or ought to have known that the consequences of inhaling RCS by individuals are idiosyncratic and that some individuals are genetically predisposed to conditions like silicosis and aggressive scarring conditions like PMF.
5. The defendants knew or ought to have known that diseases like silicosis and PMF have a long latency period and may progress at different rates following diagnosis, including a:

(a) a rapid progression to death;

(b) a gradual decline;

(c) a step-wise decline;

(d) a combination of (b) and (c); or

(e) no progression.

1. The uncertain position that the plaintiff now finds himself in, as to whether and to what extent his condition will deteriorate, has been caused by the serious wrongdoing of the defendants that has resulted in a disease with an unpredictable course.

1. There was considerable agreement between the thoracic physicians and only isolated areas of disagreement to be resolved.

The nature of the condition and its likely course

1. Prof Chambers gave evidence that PMF is a progressive condition, although the rate of progression varies. He accepted that the plaintiff's rate of progression has been slower than other patients that he had treated, but based on his experience and the literature, Prof Chambers opined that the plaintiff's condition would progress to respiratory failure in his late 60s or early 70s and that he would require a lung transplant to survive at that point in time. Prof Chambers gave evidence that PMF is a self-perpetuating aggressive scarring condition, similar to other lung diseases that are rapidly progressive. Prof Chambers opined that the fact that the plaintiff's condition had progressed to PMF was a significant prognostic factor that it would continue to progress.
2. Dr Edwards opined that the plaintiff's condition had progressed from simple silicosis in 2012 to PMF in 2020, and further in the period between 2021 and 2023. Dr Edwards opined that the plaintiff's condition was progressive and that it would limit his life expectancy to 15 years from 2023. When at about age 66 he would suffer respiratory failure and die or require a bilateral lung transplant. Dr Edwards gave evidence that it was unlikely that the plaintiff's condition would remain stable because his disease has already progressed and this was consistent with the long-term studies on the progression of silicosis. Dr Edwards opined that it was very unlikely that the plaintiff's condition would suddenly stabilise and not progress further.
3. Dr Edwards described his understanding of silicosis and PMF at a cellular level to be a series of cascading inflammatory processes. Cellular damage to macrophages caused by silica particles, leads to inflammation and the release of oxygen radicals resulting in the formation of nodules in the lung as a form of scarring. As the inflammation continues, fibrosis (PMF) occurs dragging the nodules together causing larger areas of scarring. Dr Edwards described the plaintiff's development of PMF as an evolution of the disease, that is likely to continue and that there was evidence of it doing so since the 2020 CT scan.
4. Dr Edwards gave evidence that it was likely that the plaintiff would become increasingly disabled as he progressed towards respiratory failure and that he would require oxygen and have "great difficulty moving about". If he was a candidate for lung transplant, Dr Edwards expected that it would occur before he reached respiratory failure. He anticipated that the plaintiff would be unable to work for at least five years before reaching respiratory failure, because he would be too short of breath to do anything useful and that the plaintiff's capacity for work would decrease in the five years before that as he became progressively short of breath on exertion.
5. Prof Chambers gave evidence that the literature provides that PMF is a very progressive condition in most patients, but there are some patients who progress rapidly and some who do not progress at all. In his report dated 24 July 2023, Prof Chambers set out the results of three studies relating to the progression of silicosis for workers with natural stone exposure. The Yang study[4] demonstrated that a majority of workers with silicosis in various industries progressed from one stage to the next, with 984 workers with stage 3 disease having a median survival rate of 6.8 years. The Lee study[5] of Singaporean quarry workers showed 37% of the cohort demonstrated disease progression over a mean period of 7.4 years, with 52% of workers with stage 3 disease progressing and 100% of workers with the most severe disease progressing. The Ogawa study[6] of Japanese whetstone workers demonstrated that the majority of workers with silicosis progressed over a 15 year period, with 69% of workers with stage 2 disease progressing and 69% of workers with stage 3 disease progressing.
6. Prof Chambers gave evidence that the literature suggests that progression is inevitable and the plaintiff's relatively slow progression to date should not provide reassurance that his future progression will follow the same trajectory.
7. Dr Edwards did not accept that if the plaintiff's condition continued at the same rate that it was unlikely that he would reach respiratory failure, because the rate of progression since 2020 has been more significant, that this was demonstrated on the radiology and by the decline in DLCO and this was in keeping with the usual progressive nature of silicosis and PMF.
8. Dr Edwards did not accept, as a matter of logic, that because the plaintiff was no longer exposed to RCS that his rate of progression could decrease. In response, his evidence was that the rate of progression was more closely related to the extent of the disease, as was demonstrated in the literature, particularly the Yang study. He did not agree that further exposure to RCS was required for progression, stating that progression could occur post exposure, but would be more rapid if there was further exposure. Dr Edwards did not accept that the cessation of exposure would halt progression in most cases and stated that it was very unlikely that the cessation of exposure of the plaintiff would lead to a stabilisation of his condition because it has demonstrably progressed.
9. Prof Chambers described the progression of PMF as different in each individual and unpredictable. The typical presentation was a progressive one, but it could also progress in a step-wise manner as it has done in the plaintiff. Further step-wise changes may be precipitated by an intercurrent illness such as COVID, influenza and respiratory syncytial virus (RSV). Prof Chambers gave an example that during COVID, patients with mild or moderate pulmonary fibrosis who developed COVID pneumonitis, went into respiratory failure quite quickly.
10. Prof Chambers gave evidence that in the future the manner in which the plaintiff's condition progresses may change. It may continue to progress in a step-wise manner, progress rapidly or gradually. Prof Chambers gave evidence that it is important to monitor patients with PMF closely so as not to miss the transplant window.
11. A/Prof McKenzie gave evidence that PMF gradually progressed in most cases or not at all, but that sometimes patients who develop rheumatoid arthritis can have a more accelerated progression. He did not accept that patients with PMF could have a step-wise progression, unless they developed pneumonia that could lead to additional scarring. A/Prof McKenzie accepted that a person could get pneumonia as a consequence of COVID or influenza. A/Prof McKenzie did not agree with Prof Chambers' opinion that PMF is a fibrotic obliteration of normal lung tissue that becomes self-perpetuating.
12. A/Prof McKenzie opined that the rate of progression of the plaintiff's condition will depend on how much RCS he has inhaled and how long ago that was. He opined that because the plaintiff's silicosis appeared on a CT scan in 2007 that the most responsible exposure for that occurred in the 10 to 20 years before hand. Taking into account that the plaintiff commenced work as a Tunneller in 1993, his latency period was about 14 years. After 2012, when the plaintiff was diagnosed with silicosis, A/Prof McKenzie received a history from the plaintiff that he was "religious" about wearing a mask from that point onwards and that would have significantly ameliorated his exposure. A/Prof McKenzie gave evidence that whilst he saw significant radiological progression between 2012 and 2020, he could not see much progression between 2020 and 2024, so he concluded that the rate of progression was slowing and therefore unlikely to progress further.
13. A/Prof McKenzie sought to distinguish the cohort in the Yang study on the paucity of information as length of exposure, mask wearing and smoking history. In cross-examination, he could not recall the Lee study. He agreed that consistent with the Lee study findings that the plaintiff's condition had progressed, but the rate of progression appeared to be slowing. A/Prof McKenzie agreed in cross-examination that as a whole, the literature supported the proposition that the likelihood of progression was higher for patients with advanced disease, such as PMF.
14. A/Prof McKenzie did not refer to any reference material or study, other than to say "there was an abundance of literature", to support his opinion that the plaintiff's condition would progress in line with his most recent experience of exposure. A/Prof McKenzie relied on the 1994 edition of Parkes, Occupational Lung Disorders for the proposition that because silicosis is easily detectable by chest x-ray, that the majority of workers diagnosed with silicosis who avoid dust exposure will not become severely disabled and will have a normal life span.
15. A/Prof McKenzie's opinion was highly leveraged on the assumption that the plaintiff's exposure to RCS decreased significantly from 2007 onwards. Taking into account all of the evidence, I am not satisfied that it is reasonable to draw the inferences necessary to make good A/Prof McKenzie's assumption for the following reasons.
16. First, I accept the plaintiff's evidence that he was exposed to large quantities of RCS up to and including about August 2020, after which he was provided with the Versaflo helmet. Before that he was predominantly provided with paper masks which I accept became quickly ineffective through the accumulation of sweat and dust in hot underground conditions.
17. Second, the plaintiff's experience was antithetical to the example given by Parkes. The plaintiff was not diagnosed with silicosis for at least 5 years after it was present on radiology in 2007. Accordingly, the plaintiff was not removed from exposure at that time. Further, he continued to be exposed for about 8 years after he was diagnosed with silicosis in 2012.
18. Third, A/Prof McKenzie's evidence did not properly consider the circumstances of the plaintiff's exposure to RCS when he already had PMF. The cornerstone of A/Prof McKenzie's evidence was that on his review of the radiology that the plaintiff had PMF from as early as 2007. I pause to note that there may be an element of confirmation bias in A/Prof McKenzie's review of the radiology, because no other medical practitioner came to that diagnosis before 2020. However, if I accept those findings by A/Prof McKenzie, which are supported by Prof Chambers, then any exposure that the plaintiff had after 2007 was very problematic and likely to significantly exacerbate his condition. It was common ground that the purpose of screening exposed workers for silicosis was to remove them from occupations where they may be further exposed and thereby suffer an exacerbation or acceleration of their condition.
19. Finally, A/Prof McKenzie's opinion is not supported by an independent assessment of the tendered scientific literature.
20. The Yang study concluded that while silicosis from natural stone industries is chronic in nature, it progresses quickly. In 2020, the plaintiff's CT scan was reported as demonstrating category 2 profusion, placing him in stage 2 of the Yang study, with an average survival rate of 15.8 years, which is consistent with the opinions of Prof Chambers and Dr Edwards. Whilst some deterioration in the radiology was reported after 2020 and the definition of the nodules increased, the profusion category was not included consistently in the later reports.
21. The Lee study found that 37.5% of subjects with category 2 profusion progressed and 52% of subjects with complicated silicosis, or PMF, showed radiological progression. The Lee study found that progression was less likely in subjects exposed longer ago, but the finding was of borderline statistical significance. The progression findings were consistent with other similar studies, for example:

(a) slate pencil workers - 82.5% of workers with PMF progressed and 60% or workers with category 3 profusion, 26% with category 2 profusion, and 29.5% with category 1 profusion progressed.

(b) sandblasters - 72% of workers with PMF progressed and 52% of workers with silicosis progressed.

(c) Granite workers (Hong Kong) - 55% of workers with PMF progressed and 45% of workers with silicosis progressed.

(a) there was uniformly clear evidence that the initial radiological severity of silicosis is a strong determining factor of future progression of the disease; and

(b) there is strong supporting evidence that pulmonary nodular fibrosis in silicosis is progressive over time.

1. The Ogawa study concluded that over a 40-year follow-up period that more than 50% of subjects with silicosis progressed, including the death of 14.5% of the cohort from silicotic conditions. The progression rate was as high as 60% for subjects in category 3 and 4 of the study, of which the plaintiff would be classified as in category 4 because he has PMF.

1. Prof Chambers gave evidence that of the LFT conducted, that FVC (forced vital capacity - the total volume of air exhaled) and DLCO (diffusing capacity of the lung for carbon monoxide - a measure of gas exchange in the lung) are the most significant tests for assessing the prognosis of silicosis and PMF to measure a person's rate of decline, survival time, when they can be listed for lung transplantation and their suitability for lung transplantation.
2. Prof Chambers gave evidence that in the period that he has been treating the plaintiff that his FVC has remained stable, but there has been a step-down reduction on his DLCO results of about 16%, with it falling from 25.49 to 21.76 in that time, when the trend of the results over time was considered. Prof Chambers opined that this is a sign of the plaintiff's disease progressing, and that the timing of this step-down reduction coincided with changes in the plaintiff's radiology.
3. Dr Edwards gave evidence that the plaintiff's DLCO had dropped by about 5 units in the last five years and that if that rate of progression continued over the next 10 years that he would have a really severe impairment and that he would be quite impaired and/or in respiratory failure.
4. A/Prof McKenzie did not agree that there had been a decline in DLCO over the last five years but accepted that if a trend could be demonstrated that it would indicate a progression of the plaintiff's condition. A/Prof McKenzie gave evidence that test results for DLCO are highly variable because of the nature of the test which depends on the extent of the patient's compliance with the test instructions and the results might vary as much as plus or minus 10%. In those circumstances only a reduction of 20% is clinically significant.
5. On my review of the series of all of DLCO results in evidence, I am satisfied that in the period of 2020 to 2025 that there has been a significant reduction of about 20% in the plaintiff's diffusing capacity, which is demonstrated in the following table, noting that the plaintiff first started suffering symptoms of breathlessness on exertion in about 2021:

(a) the figures provided for the predicted values could vary from laboratory to laboratory and therefore are not necessarily a reliable guide. A/Prof McKenzie gave evidence that the predicted value for DLCO would decrease by about 0.25 units per annum; and

(b) the normal range for predicted DLCO figures is between 75% and 140%, with the plaintiff's results trending downwards but continuing to be at the lower end of the normal range.

1. On this basis, I am satisfied that the DLCO results demonstrate a progression of the plaintiff's disease, particularly in the period between 2021 and 2023 which now appears to have stabilised and that the reduction cannot be explained by his increase in age in that period.
2. A/Prof Mc Kenzie thought that there may have been a decline in FEV1 over the years and accepted that it was possible that the plaintiff's silicosis may have contributed to that, but the position was complicated by his pre-existing asthma. However, it is another piece of evidence that can be weighed in favour of the progression of the plaintiff's disease.

1. Prof Chambers accepted that the changes in the plaintiff's radiology were subtle in the last five years, but they were commensurate with the changes in diffusing capacity which was more sensitive to change than appearances on the CT scan. Prof Chambers gave evidence that he highly valued the opinion of the experienced thoracic radiologist, the late Dr Katherine Newbigin, who reported on the CT scans that he had seen.
2. Dr Edwards did not accept that the plaintiff's radiology depicted that his disease was stable in the period of 2007 to 2022, stating that in his view the radiology had progressed significantly between 2007 and 2020, when PMF was first observed, and then it has progressed significantly further since then.
3. Dr Bashirzadeh, with the input of the ILD MDT, opined that the January 2022 CT scan showed significant progression from the 2012 CT scan and further progression from the 2021 CT scan. He also opined that there was progression on the August 2022 CT scan.
4. A/Prof McKenzie opined that there had been radiological progression from 2012 to 2024 but there had not been much radiological progression from 2020 to 2024.

1. The plaintiff's condition has progressed significantly on the radiology taken between 2007 and 2020. The diagnosis of PMF was first made in 2020, although it can now be accepted that there was fibrosis apparent before that.
2. The plaintiff's condition did not manifest in physical symptoms until about 2021, when he first started to suffer shortness of breath on exertion.
3. I am satisfied on the evidence that there has been further radiological progression since 2020.
4. There was a contemporaneous coincidence of an increase in the plaintiff's symptoms, a decline in his DLCO and progression on his radiology especially in 2022. I am satisfied that this convergence of findings represents a progression in the plaintiff's condition.
5. There was a high degree of consistency between the opinions of Prof Chambers and Dr Edwards, the only real difference being when the plaintiff would reach respiratory failure and require a lung transplant. Dr Edwards opined that would be when the plaintiff reached age 66 and Prof Chambers opined that it would be in the plaintiff's late 60s or early 70s.
6. Prof Chambers and Dr Edwards both gave evidence that the plaintiff's condition could deteriorate rapidly, especially if he developed pneumonia. A/Prof McKenzie agreed this could occur. The chances of the plaintiff contracting a bacterial or viral infection leading to pneumonia within the next five to 20 years are not insignificant for two reasons. First, there is a risk that anyone in the population could contract pneumonia from a bacterial or viral infection and public health records are kept to record the incidence of pneumonia. And second, the plaintiff has noticed that he is contracting more serious respiratory infections at the rate of about two each winter.
7. I accept the evidence of Prof Chambers and Dr Edwards that the past history of the plaintiff's condition is not a reliable indicator of its future progression.
8. Consistent with the opinions expressed in evidence by Prof Chambers and Dr Edwards, Dr Seevnarain told the plaintiff that his condition was serious, that it would progress and that his life expectancy would be adversely impacted. This advice was the precipitating factor for the plaintiff's Adjustment Disorder.
9. Dr Seevnarain's input was based at least partly on the opinion of Dr Bashirzadeh, which I infer from his reports to Dr Seevnarain was that the plaintiff's condition was likely to progress.
10. I am satisfied on the balance of probabilities that the plaintiff's condition will progress to respiratory failure and that he will require a lung transplant to survive shortly before that point. The precise timing of when that will occur is not capable of scientific proof. I prefer the evidence of Prof Chambers on this point, which is that it will occur in his late 60s or early 70s and it is reasonable to adopt the midpoint, that it will occur at age 70.
11. For the reasons given, I reject the opinion of A/Prof McKenzie that the plaintiff's condition will not progress to respiratory failure.

1. I have considered applying a Malec v Hutton discount to the plaintiff's damages to take into account that the hypotheses of Prof Chambers and Dr Edwards will not come to fruition. If I did so, the appropriate discount to be applied is 25%, which would apply to all heads of damage. If the plaintiff's condition did deteriorate as predicted, the imposition of that discount would result in the plaintiff being seriously undercompensated. Such an approach would not ensure that the compensation awarded is full and adequate and thereby constitute reasonable compensation.
2. The plaintiff's condition could deteriorate faster than predicted, especially if he contracts pneumonia in the intervening period. In that scenario, the plaintiff could be slightly overcompensated in general damages but significantly undercompensated in loss of earning capacity.
3. If the defendant's contentions are correct and the plaintiff's condition does not deteriorate as predicted, there is a risk that the plaintiff will be overcompensated. For the reasons given, I am satisfied that this risk should be borne by the defendants.
4. Considering all of the scenarios, it is reasonable to compensate the plaintiff on the basis of Prof Chambers' opinion and I will assess his damages on that basis.

Issue 2 Is the plaintiff precluded from an award of damages relating to his psychological condition, because it is an injury within the meaning of s 4 Workers Compensation Act 1987 (the 1987 Act) and he has not complied with the procedural requirements of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)?

1. For the reasons that follow, the question posed in Issue 2(a) should be answered "No".
2. Section 11 Dust Diseases Tribunal Act 1989 (the DDT Act) provides that the Tribunal has exclusive jurisdiction to hear and determine "proceedings for damages in respect of a "dust-related condition".
3. A "dust-related condition" is defined in s 3 of the DDT Act to mean a disease specified in Schedule 1 of the DDT Act, which includes silicosis, or a pathological condition of the lungs that is attributable to dust. As stated in the opening paragraph of this judgment, there is new evidence available to the effect that PMF is an aggravation of silicosis caused by RCS and involving the same physiological processes as silicosis and may not be a different condition: Bennett v Workers Compensation Nominal Insurer and Ors [2023] NSWDDT 8 at [12]. To the extent that it is necessary to differentiate PMF from silicosis, I am satisfied on the basis of the evidence in this case, that PMF is a dust-related condition that comes within the extended definition.
4. A claim for damages for an injury that is a dust disease is excluded from the operation of the 1987 Act, the 1998 Act and the Civil Liability Act 2002 (the CL Act) and is to be assessed in accordance with the common law, with some minor modifications.
5. Section 4 of the 1987 Act and s 4 of the 1998 Act provide that an injury does not include a "dust disease" as defined by s 3 of the 1942 Act or "the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined". Section 3 of the 1942 Act defines a "dust disease" to be a disease included in Schedule 1 of the 1942 Act, which includes silicosis, or any pathological condition of the lungs that is caused by a dust that may cause a listed disease. I am satisfied on the evidence in this case that RCS causes silicosis and PMF and that PMF is a dust disease within the extended definition.
6. Section 3B of the CL Act provides that the CL Act does not apply to an action for damages brought under s 11 of the DDT Act, except that ss 15A and 15B apply to damages for the loss of a claimant's capacity to provide gratuitous domestic services to the claimant's dependents.
7. The present case is not a claim for "work injury damages" as defined in s 250 of the 1998 Act because a dust disease is excluded from the definition of injury provided for by s 4 of the 1998 Act. Sections 4 and 250 of the 1998 Act form part of the 1987 Act by force of s 2A(2) and s 3(1AA) of the 1987 Act: Workers Compensation Nominal Insurer v Sako [2025] NSWCA 12; (2025) 116 NSWLR 422 at [49]- [55].
8. It follows that the procedural requirement provisions of Part 6 of the 1998 Act, which apply to proceedings for work injury damages, do not apply to the plaintiff's claim for damages under s 11 of the DDT Act, and the pleaded defence of each of the defendants must fail.
9. At common law, the plaintiff is entitled to an award of general damages that includes a component for mental distress caused by the injury, even if it does not amount to a recognised psychiatric condition: Wickham v Treloar (1960) 77 WN (NSW) 350.
10. It is beyond question that at common law, the defendants are also liable to pay damages for mental harm that is a consequence of the plaintiff's bodily injury caused by RCS: Malec v J C Hutton Pty Ltd (1990) 169 CLR 643, Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 and Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549.
11. In this case, the plaintiff contends that the consequential mental harm that he has suffered is a recognisable psychiatric condition, being an Adjustment Disorder with mixed anxiety and depressed mood which is likely to persist and get worse as his respiratory function declines. The plaintiff also claims the cost of treatment for his condition with his psychologist.
12. No submission was made by the defendants that the damage contended for by the plaintiff was too remote, and subject to proving the existence of the Adjustment Disorder and that his treatment for it is reasonably necessary, the plaintiff is entitled to damages in these proceedings to compensate him for that psychological injury, which is a consequence of the plaintiff's bodily injury.

Issue 3 Is the plaintiff entitled to an award of damages for future out-of-pocket expenses for "medical and related treatment" and "hospital treatment", if he is entitled to compensation under the Workers Compensation (Dust Diseases) Act 1942 (the 1942 Act)?

1. For the reasons that follow, the question posed in Issue 2(b) should be answered "No".

1. The resolution of Issue 3 involves an exercise of statutory construction.
2. The plaintiff has made an application to the DDA for an award under the 1942 Act, which has been accepted. The DDB's letter dated 11 September 2023 advised the plaintiff that he is entitled to be compensated for reasonably necessary expenses relating to medical and related treatment and hospital treatment that relate to his dust disease.
3. It is common ground that if the plaintiff requires a lung transplant that the "medical and related treatment" and "hospital treatment" as defined by s 59 of the 1987 Act relating to it, would be reasonably necessary within the meaning of s 8(2)(d) of the 1942 Act.
4. Section 8(2)(d) of the 1942 Act provides that the benefits payable for medical and related treatment and hospital treatment under the 1942 Act are provided for by Division 3 of Part 3 of the 1987 Act.
5. The plaintiff's position is that there is a statutory cap of $50,000 for:

(a) medical or related treatment (as defined in s 59 of the 1987 Act) provided for by s 61(3)(a) of the 1987 Act; and

(b) hospital treatment (as defined in s 59 of the 1987 Act) provided for by s 62(5)(a) of the 1987 Act.

1. Prof Chambers gave evidence, which I accept, that the costs of a bilateral lung transplant would range between $635,000 and $1,325,000, and that the statutory caps for each category of treatment would be exceeded by a considerable margin.
2. The plaintiff's position is that the 1942 Act does not operate to ensure that the plaintiff would be paid the cost of his medical and related treatment and hospital treatment that exceed the statutory cap of $50,000, and that the Tribunal should award damages for future out-of-pocket expenses reduced by the combined statutory cap of $100,000 to compensate the plaintiff in these proceedings.
3. The defendants' position is that the Tribunal should proceed on the basis that, if and when, the costs of any hospital treatment and medical and related treatment are incurred, that the DDA will pay any reasonably necessary costs incurred in accordance with the scheme of the 1942 Act.

1. Statutory construction begins with a consideration of the language used. Its meaning may require consideration in context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47].
2. Determination of the purpose of a statute or of a particular provision may be based not only on an express statement of purpose in the statute itself but also by inference from its text and structure and where appropriate, by reference to extrinsic materials. However, this process does not involve a search for what the legislature had in mind: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] and Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 87 ALJR 131 at [23]- [26].
3. The question of whether a court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills gaps disclosed in legislation or makes an insertion which is too big or too much at variance with the language used by the legislature. Lord Diplock's three conditions in Wentworth Securities Ltd v Jones [1980] AC 74 should be considered before reading a provision as if it contained additional words and the additional words must be consistent with the wording of the provision: Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531 at [38]- [39].
4. Section 33 Interpretation Act 1987 provides that the interpretation of a provision that would promote the purpose or object underlying the Act shall be preferred to a construction that would not do so.
5. Extrinsic materials can be used as an aid to construction, but they are not a substitute for the language considered in context and cannot displace the meaning of the text: Re Bolton; Ex Parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] and section 34 Interpretation Act 1987.

(2) The prescribed rates of compensation payable under an award of the Authority made pursuant to subsection (1), not being an award to which subsection (2B) applies, shall, subject to this section, be -

...

(d) where medical or related treatment or hospital treatment or occupational rehabilitation service or ambulance service becomes reasonably necessary as a result of the dust disease - the benefits prescribed by Division 3 of Part 3 of the [1987] Act.

All compensation payments authorised to be made under this Act shall be made from the Fund established by section 6.

1. Section 8(3) of the 1942 Act relevantly provides:

Except as otherwise provided under this Act, the following provisions of the [1987] Act (with such modifications as may be necessary or as may be prescribed by the regulations) apply to awards referred to in subsection (2) or (2B) -

(a) ...,

(b) ...,

(c) Division 3 of Part 3,

(d) ...,

(e) any other provision prescribed by the regulations.[7]

1. There are no relevant regulations in force.
2. The "Authority" is defined in the 1942 Act to be a reference to the Workers Compensation (Dust Diseases) Authority (DDA), a New South Wales Government Agency, the functions of which are to determine claims for compensation under the 1942 Act and any other statutory function conferred on it: s 5 of the 1942 Act. One of the functions of the DDA provided for in the 1942 Act is to administer the Fund established by the 1942 Act and to report various matters to the State Insurance Regulatory Authority (SIRA) and Insurance and Care NSW (ICNSW).
3. Section 8I of the 1942 Act provides:

(1) If a person affected by a decision of the Authority or the Medical Assessment Panel in relation to a claim for compensation under this Act is dissatisfied with the decision, the person may appeal against the decision to the District Court in accordance with rules of Court. The District Court has jurisdiction to hear and determine any such appeal.

(1A) An appeal under subsection (1) must be made within 6 months after notice of the decision appealed against has been given to the appellant.

(2), (2A) (Repealed)

(3) The Authority -

(a) is a necessary party to an appeal under this section, and

(b) shall give effect to the decision on such an appeal.

1. Division 3 of Part 3 of the 1987 Act contains ss 59-64A, not all of which are relevant to this issue.
2. Section 59 of the 1987 Act relevantly provides:

In this Division -

ambulance service includes any conveyance of an injured worker to or from a medical practitioner or hospital.

hospital treatment means treatment (including treatment by way of rehabilitation) at any hospital or at any rehabilitation centre conducted by a hospital and includes -

(a) the maintenance of the worker as a patient at the hospital or rehabilitation centre,

(b) the provision or supply by the hospital, at the hospital or rehabilitation centre, of nursing attendance, medicines, medical or surgical supplies, or other curative apparatus, and

(c) any other ancillary service,

but does not include ambulance service.

medical or related treatment includes -

(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,

(b) therapeutic treatment given by direction of a medical practitioner,

(c) (Repealed)

(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,

(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,

(f) care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,

(f1) domestic assistance services,

(g) the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and

(h) treatment or other thing prescribed by the regulations as medical or related treatment,

but does not include ambulance service, hospital treatment or workplace rehabilitation service.

1. Section 60 of the 1987 Act relevantly provides:

(1) If, as a result of an injury received by a worker, it is reasonably necessary that -

(a) any medical or related treatment (other than domestic assistance) be given, or

(b) any hospital treatment be given, or

(c) any ambulance service be provided, or

(d) any workplace rehabilitation service be provided,

the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).

...

(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.

...

(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.[8]

A worker is not liable to pay, and a person is not entitled to recover from a worker, any amount in respect of medical or related treatment, hospital treatment at a hospital or a workplace rehabilitation service, given or provided to the worker as a result of an injury, to the extent that the amount exceeds any applicable maximum, as follows -

(a) in the case of a medical or related treatment for which a sum is fixed under section 61 (2), the applicable maximum is that fixed sum,

(b) in the case of hospital treatment at a hospital, the applicable maximum is the amount calculated as fixed under section 62 (1) as the cost to the hospital of the treatment,

(c) in the case of a workplace rehabilitation service for which a sum is fixed under section 63A (2), the applicable maximum is that fixed sum.

1. Section 61 of the 1987 Act relevantly provides:

(1) The amount for which an employer is liable in respect of the medical or related treatment of a worker is such amount as is reasonably appropriate to the treatment given, having regard to the reasonable necessity for the treatment.

(2) ...

(2A) ...

(3) The maximum amount for which an employer is liable for medical or related treatment given to a worker in respect of the same injury (whether the treatment is given at different stages of the injury or not) is -

(a) $50,000, or

(b) where some greater amount has been fixed by the Authority by order published in the Gazette - that greater amount.

(4) Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (3).

(4A) If proceedings relating to the worker's claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of medical or related treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.

...

1. Section 62 of the 1987 Act relevantly provides:

(1) The amount for which an employer is liable in respect of hospital treatment of a worker at a hospital is the cost to the hospital of the hospital treatment.

(1A) ...

(2)-(4) (Repealed)

(5) The maximum amount for which an employer is liable for hospital treatment given to a worker in respect of the same injury (whether the treatment is afforded at different stages of the injury or not) is -

(a) $50,000, or

(b) where some greater amount has been fixed by the Authority by order published in the Gazette - that greater amount.

(6) Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (5).

(6A) If proceedings relating to the worker's claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of hospital treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.

...

(a) the "Authority" is a reference to SIRA: s 3 of the 1987 Act, and

(b) the "Commission" is a reference to the Personal Injury Commission: s 4 of the 1998 Act which forms part of the 1987 Act by operation of s 2A(2) of the 1987 Act.

1. Exhibit 15 was a list of payments of compensation made by the DDA to claimants that exceeded $50,000 for either medical and related treatment or hospital treatment. I note that none of the recorded payments to any claimant reach the level that are necessary to fund a bilateral lung transplant. Whilst this evidence tends to prove that a direction can be given, it is not evidence of how it is made.
2. The statutory caps imposed by ss 61(3)(a) and 62(5)(a) of the 1987 Act are not absolute. They are each subject to variation by a direction that may be given by SIRA on application by the worker or by the Commission if there are current proceedings before it relating to the provision of medical and related treatment or hospital treatment.
3. The plaintiff has made an application for benefits under the 1942 Act which has been accepted. The DDA has accepted that it is liable to pay any reasonably necessary medical and related treatment expenses and hospital treatment expenses. However, its liability to make payments only arises as the costs are incurred and if they are properly verified: s 60(3) of the 1987 Act.
4. Section 8(3) of the 1942 Act that incorporates the provisions of Division 3 of Part 3 of the 1987 Act, does so "with such modifications as may be necessary" to awards referred to in s 8(2)(d) of the 1942 Act.
5. Section 8(3) of the 1942 Act adopts the statutory caps in ss 61(3)(a) and 62(5)(a) of the 1987 Act, subject to a direction to increase the liability for those expenses. In order for these sections to operate in the 1942 Act consistently with how they operate in the 1987 Act, the power to make a direction must be exercisable by a relevant entity.
6. Sections 61 and 62 of the 1987 Act are incorporated into the 1942 Act, with the power to make a direction vested in the "Authority". In the 1942 Act, the "Authority" is defined to be a reference to the DDA and it should be understood by reference to the definition: Gibbs v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635.
7. If I am wrong and the reference to the Authority remains a reference to SIRA, then the power in s 8(3) of the 1942 Act should be exercised to modify it to be a reference to the DDA.
8. Either of the interpretations in [265]-[266] are consistent with the other functions of the DDA provided for in the 1942 Act namely, to determine claims for compensation under the 1942 Act and to manage the Fund established by the 1942 Act.
9. It would be inconsistent with the 1942 Act to interpret the reference to the Authority in the incorporated provisions as a reference to SIRA. SIRA has limited functions under the 1942 Act that do not include determining claims for compensation under the 1942 Act, a function which belongs exclusively to the DDA. Further, it does not have the same prudential responsibilities under the 1942 Act as it has under the 1987 Act, because some of those functions are exercised by the DDA, under SIRA's supervision.
10. The Commission has no jurisdiction in relation to claims for or relating to a dust disease, because dust diseases are excluded from the definition of injury, in the 1987 Act and the 1998 Act which give the Commission its powers. The involvement of the Commission in a claim for compensation under the 1942 Act would be inconsistent with the operation of the 1987 Act.
11. It is not necessary to modify the reference to the Commission in ss 61(3)(b) and 62(5)(b) of the 1987 Act to another entity, because the 1942 Act already provides an automatic right of appeal to the District Court to any person dissatisfied with the DDA's decision in relation to a claim for compensation: s 8I of the 1942 Act.
12. It follows that if, and when, the plaintiff comes to have a lung transplant that he can seek compensation from the DDA for the medical and related treatment expenses and hospital treatment expenses incurred in relation to it, from the DDA.
13. The discretionary power to make a direction conferred by the 1942 Act must be exercised reasonably and in accordance with the scheme of the Act: Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 36 (Brennan CJ).
14. The plaintiff's claim for the future cost of a bilateral lung transplant for orthodox treatment and one that has unilateral medical support, if his condition deteriorates to respiratory failure, as expected. I consider his prospects of the DDA paying his reasonably necessary medical and related treatment expenses and hospital treatment expenses as very high, if not certain. I am satisfied that it is reasonable for the plaintiff to mitigate his loss by pursuing the payment of the compensation for medical and related treatment expenses and hospital treatment expenses, to which he is entitled under the 1942 Act from the DDA: CSR Ltd v D'Arcy (1996) 40 NSWLR 721.
15. Finally, I am satisfied that this result is reasonable in the context of this case where the course of the plaintiff's condition is unpredictable. Whilst it is appropriate to draw adverse inferences against the wrongdoers for heads of damage to be determined on a once and for all basis in application of the facilitation principle, it would be unreasonable to do so where the plaintiff has alternate and independent right to compensation available to him for this head of damage. I am satisfied that the defendants have established that it is reasonable for the plaintiff to mitigate his loss by pursuing his future out-of-pocket expenses from the DDA under the 1942 Act: Stewart v Metro North Hospital and Health Service [2025] HCA 34 at [25] and Watts v Rake [1960] HCA 58; (1960 108 CLR 158 at 159.

1. In the event that I am wrong on my construction of the 1942 Act, I will assess the future out-of-pocket expenses relating to the bilateral lung transplant.
2. Prof Chambers provided an estimate of the transplant costs, including assessment costs, surgical costs, post-operative care costs and long-term post-transplant costs. Prof Chambers was not challenged on this evidence, but I reserved the defendants' position because they were in the process of obtaining their own estimate. No application was made by the defendants to revisit this issue, and I will proceed on the basis that Prof Chambers provided a fair estimate of the costs.
3. The range of transplant related costs provided by Prof Chambers is $635,000 to $1,325,000.
4. The plaintiff submitted that I should take the midpoint of the range and defer it for the period until the transplant is likely to be required, which I have decided is 16 years, when the plaintiff reaches the age of 70. I am satisfied that this is a reasonable method to adopt.
5. The amount arrived at using this method is $980,000 x 0.623 = $610,540. From that sum the combined amount of the statutory caps should be deducted, leaving an amount of $510,540 for this head of damages, which has not been reduced for the empty chair exposure.

Issue 4 What is the plaintiff's residual earning capacity?

1. For the reasons that follow, I am satisfied that:

(1) The plaintiff is not fit for any position in the tunnelling industry or in the mining industry.

(2) But for his injury, the plaintiff would have continued work as a Supervisor in the tunnelling industry and would have been appointed as a Superintendent and later as a General Superintendent.

(3) But for his condition which prevents him from working as a Tunneller, the plaintiff would have earned $350,000 gross per annum or $4,292 nett per week until age 67.

(4) It is unlikely that the plaintiff's employment with CPB will continue after the CRR Project concludes in December 2025 and he will have to look for alternative employment.

(5) The plaintiff could obtain an office-based position as a Project Administrator related to civil construction in the Brisbane area. Taking into account his limited experience in undertaking this kind of work, the plaintiff would likely only receive an entry level salary that would increase commensurate with his experience, and it is appropriate to use the median level of salary for this role of $106,000 gross per annum or $1,562 nett per week.

(6) The plaintiff admitted against his own interest, that he had the requisite qualifications to work as a Forklift Driver or a Crane Operator. I am satisfied that the plaintiff could obtain employment as a Crane Operator, which would be the more highly remunerated position and earn a similar wage.

(7) The progression of the plaintiff's disease will result in a reduction of his earning capacity by 50% from age 60-65 and by 100% from age 65-67.

1. Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that they have a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When an individual in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation, in the geographical area in which it is reasonable for the individual to seek work: Nominal Defendant v Livaja [2011] NSWCA 121 at [65], followed in Mead v Kearney [2012] NSWCA 215 at [18] and Dal v Chol [2018] NSWCA 219 at [9].
2. The defendants bear the evidentiary onus of adducing evidence of what kind of work the plaintiff is capable of performing and what jobs are open to a person with such capacity and what remuneration is likely to be paid: Dal at [9] and Kallouf v Middis [2008] NSWCA 61 at [53].

1. The three thoracic physicians called in the case and Dr Hall agreed that the plaintiff was not fit for work as a Tunneller or as a miner because he must avoid any further exposure to RCS. I accept the evidence of the thoracic physicians that this remains the case, even if the plaintiff wears the Versaflo helmet, because:

(a) it would not eliminate the risk of exposure to RCS;

(b) the consequences of further exposure of the plaintiff to RCS are serious in that he may suffer a rapid acceleration of his disease; and

(c) there is no known safe level of exposure to RCS for a person who has already contracted PMF.

1. In July 2020 WorkCover Queensland recommended that workers with silicosis be removed from further exposure to RCS.[9]
2. In December 2021, WorkSafe Queensland recommended that workers with silicosis be exposed to no more than 0.025mg/m3 for RCS and that workers with PMF be no longer exposed to dusts.[10]
3. Ms Cole opined that the plaintiff should not have been allowed by CPB to work underground, or in environments where there was a risk of exposure to RCS on the CRR Project after the recommendations in [284]-[285] above were published.[11]
4. The defendants presented their case on the basis of an unproved factual assertion that the Versaflo helmet was almost 100% effective in preventing the inhalation of RCS. The evidence does not support the factual assertion for the following reasons.
5. The defendants did not identify the model of Versaflo helmet used by the plaintiff on the CRR Project. The plaintiff gave evidence that the helmets depicted in Exhibit 4 were similar to the helmet that he used. But as demonstrated by Exhibits 4 and 13, there are a variety of models capable of more than one fitting method and using a variety of filters that result in different protection factors. I cannot discern from the description in the report of Ms Cole at CB 438, as to which of the PAPR is used by the plaintiff, but I infer from that evidence that the Versaflo helmet has a minimum protection factor of either 50 or 100.
6. Protection factor is defined in Australian Standard AS/NZS 1715: 2009 Selection, use and maintenance of respiratory protective equipment (AS 1715) at [4.2.2.2] as the ratio of an ambient airborne concentration of a contaminant to the concentration of the contaminant inhaled inside the respirator. The required minimum protection factor for any given situation is the factor necessary to reduce the exposure of the wearer of a respirator to below the exposure standard or to minimise potential exposure. The required minimum protection factor is the ratio of the ambient airborne concentration of a contaminant to the acceptable exposure level or standard. In the present case the required minimum protection factor cannot be calculated because:

(a) there is no evidence of the relevant concentrations of RCS when the plaintiff was working and using the Versaflo helmet; and

(b) Worksafe Queensland has advised that the level of exposure to RCS for the plaintiff should be zero, which makes the calculation impossible.

1. As Ms Cole explains at CB 474, the use of respiratory protection by the plaintiff on the CRR Project would not have eliminated exposure to RCS, but merely reduced exposure when the Versaflo helmet was fitted and worn correctly at all times during exposure. I also note that Ms Cole concluded that the plaintiff "would have almost certainly" been exposed to RCS during the CRR Project and that the Workplace Exposure Standard (WES) was exceeded on the CRR Project, particularly considering that he had been diagnosed with silicosis and PMF.[12]
2. Further, the defendants' contention on this point demonstrates a misunderstanding of the use of PPE such as the Versaflo helmet. The WHS Regulations provide that the PPE is the lowest form of control measure that only minimises risk and it should only be used when substitution of the hazard, isolation controls, engineering controls and administrative controls used in combination cannot eliminate the risk: cl 36 of the WHS Regulations (NSW). Put simply, the law is that a PCBU cannot rely on the use of PPE as a primary control measure to eliminate a risk of exposure to RCS. This is also reflected in the guidance material published by the WHS Regulators referred to by Ms Cole at CB 438 and following.
3. Even if the defendants were correct as to the effectiveness of the Versaflo helmet, the plaintiff could still be incidentally exposed to RCS and this would be contrary to the relevant guidance material referred to in [284]-[285] above.
4. On the basis of the medical evidence, the plaintiff would be placed at risk of death or serious illness if he were further exposed by an employer to RCS in any amount.
5. For the reasons set out below, one way of eliminating the risk posed to the plaintiff by the inhalation of RCS, is to prevent him from working underground or in any environment in which he could potentially be exposed to RCS, which is an isolation control. In those circumstances, it would be reasonable for any prospective employer to refuse to employ the plaintiff in a role in which he may be potentially exposed to RCS, in any amount.
6. I am satisfied that it would be very unlikely that the plaintiff would be able to pass a pre-employment medical and to be certified fit for an appropriate position in the tunnelling industry, because prospective employers are unlikely to take on the compliance risks involved with employing the plaintiff.

The plaintiff's future prospects in the tunnelling industry but for his injury

1. The plaintiff has worked for many years as a Supervisor of tunnel workers under various descriptions including Leading Hand, Shift Boss and Foreman. The plaintiff has not worked as a Superintendent which, based on his knowledge, experience and dedication to his career would have been a logical and probable progression for him. I am satisfied that but for his condition he would have been employed as a Superintendent in the tunnelling industry. The plaintiff is no longer fit to work as a Superintendent in the tunnelling industry because supervisors are expected to work underground for a significant proportion of each shift. I accept Mr Gardner's evidence that this would have amounted to about 40% of each shift.
2. It follows and I am satisfied that the plaintiff cannot work as a General Superintendent in the tunnelling industry because he does not have, and will not be able to attain, the requisite experience of working as a Superintendent that would otherwise qualify him for that position. But for the plaintiff's injury, I am satisfied that he would ultimately have been appointed a General Superintendent in the tunnelling industry.
3. Based on the evidence of Mr Day and Mr Gardner, the plaintiff could have expected to earn between $320,000 gross per annum and $380,000 gross per annum. I have chosen the median figure of $350,000 gross per annum to compensate the plaintiff on the basis that whilst his earnings may have started lower, they would have increased over time commensurate with his promotion up the ranks.
4. The result is that the plaintiff would, but for his injury, have earned $4,292 nett per week until age 67.

1. The plaintiff is presently employed as a Senior Supervisor on the CRR Project and earns a base salary of $213,004 gross per annum plus other allowances that amounts to earnings of $14,319 nett per month or $3,304 nett per week.
2. The CRR Project is due to finish in December 2025. The plaintiff has complied with CPB's requests relating to his redeployment. The plaintiff wants to stay in Brisbane to be close to his daughter because he is concerned that his condition may limit his time with her. Had he been fit, the plaintiff would have continued to travel for work if the remuneration was attractive enough, but he now feels that his condition limits his ability to do so. The plaintiff has recently moved in with his sister and her family to make life easier for himself.
3. I am satisfied that it is reasonable for the plaintiff to want to work in Brisbane to be close to his daughter and to live with his sister and that his desire to do so is a consequence of his injury. This will limit his ability to be redeployed by CPB.
4. I am also satisfied that the plaintiff's employment on the CRR Project has been through the provision of alternative duties for the plaintiff by CPB, by reference to his injury. The plaintiff's condition has progressed significantly since the beginning of the CRR Project in January 2020 and since his diagnosis with PMF in September 2020. There must come a time when CPB will need to evaluate whether it can afford to keep employing the plaintiff, and it is likely that time will come with the publication of this judgment.
5. The defendants' case is that I should infer that the plaintiff will continue to be employed by CPB at his current earnings, as he has been in the past, in a suitable role which may be in another State or country. The defendants contend that I should infer that prospective employers of the plaintiff will obey the law aimed at precluding discrimination on the grounds of disability: citing s 49D Anti-Discrimination Act 1977 and ss 5 and 6 Disability Discrimination Act 1992 (Cth), but no supporting authorities.
6. All evidence should be weighed according to the proof that it was in the power of one side to have produced and in the power of the other to have contradicted it: Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65 (Lord Mansfield). On this aspect, CPB was uniquely placed to lead evidence of the plaintiff's continuing employment prospects with it following the completion of the CRR Project. CPB, did not lead any evidence about the plaintiff's employment with it post December 2025 and there was no explanation as to why it did not do so. I am satisfied that this amounts to an unexplained failure of CPB to lead this evidence and I infer that the evidence would not have assisted CPB: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
7. Further, I am satisfied that a _Jones v Dunke_l inference should be drawn against each of the defendants for the following reasons. First, there is no explanation proffered by the first to sixth defendants for the failure to lead this evidence. Second, the future earning capacity of the plaintiff was an issue in which all of the defendants had a common interest. Third, the sixth and seventh defendants were separately represented until the third day of the hearing. Prior to that time, it was open to the first to fifth defendants to use the Tribunal's coercive procedures to seek the production of documents from CPB to identify relevant documents or witnesses and to require relevant witnesses from CPB to attend and give evidence. Fourth, prior to the third day of the hearing the sixth defendant and CPB had common representation and from the third day of the hearing onwards all of the defendants had common representation. From which I infer there was no conflict of duty between, initially the sixth defendant and CPB, and later between all of the defendants and that CPB would have co-operated with any reasonable request by the other defendants to provide relevant documents or to call relevant witnesses.
8. The defendants did not provide any authority to support its anti-discrimination argument. It is unclear to me whether or not the plaintiff's condition would come within the definition of "disability" under s 4 of either of the Discrimination Acts. Assuming that it did, there is a general exception to liability under the Discrimination Acts if, relevantly, the decision not to employ the plaintiff by reason of his condition was necessary for the prospective employer to comply with any other Act or Regulation: s 54 Anti-Discrimination Act 1977 and s 47 Disability Discrimination Act 1992.
9. Section 19 Work Health and Safety Act 2011 (the WHS Act) provides that a person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of a worker at work in the person's business or undertaking. Section 7 of the WHS Act defines a worker to include an employee or a contractor. The WHS Act is model legislation enacted in all States, except Victoria, and the Territories.[13] Section 21 Occupational Health and Safety Act 2004 (Vic) (the OHS Act) imposes a very similar statutory duty to s 19 of the WHS Act.
10. The requirement to "ensure" means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the WHS Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [13].
11. It is an offence for a PCBU to breach its s 19 duty: ss 31-33 of the WHS Act. A breach of a health and safety duty is also an element of the offence of industrial manslaughter, in the model legislation jurisdictions that have provided for that offence: see for example s 34C of the NSW and Queensland WHS Acts. The offences provided for by the WHS Act are punishable by the imposition of maximum fines between $699,810 to $20 million for a body corporate, and maximum gaol terms between five years to 25 years for individuals.
12. The employment of the plaintiff in any role in which he may be exposed to RCS, presents a risk of death or serious illness, through the acceleration or aggravation of his silicosis and PMF. In Queensland, WorkSafe recommends that workers with PMF have no exposure to dust, which would include the incidental exposure to RCS that cannot be avoided when using the Versaflo helmet. I agree with Ms Cole's conclusion at CB 476 that the plaintiff's employment on the CRR Project after September 2020 was probably in breach of CPB's s 19 duty.
13. The only way of eliminating the risk of exposing the plaintiff to RCS on the CRR Project or any future project to not let him go underground at all or to work in an environment in which he could potentially be exposed to RCS in any amount, which is an isolation control.
14. From September 2020, CPB has provided rehabilitation services in the form of an injury management plan and what it considers to be suitable duties. I infer it has done so by reference to its statutory obligations provided for by ss 220 and 228 Workers Compensation and Rehabilitation Act 2003 (Qld). However, it cannot be assumed that CPB will continue to do so, because it will no longer be obliged to provide rehabilitation services and suitable duties when the plaintiff receives a payment of damages for his injury: s 220(5).
15. For all of these reasons, I am satisfied that it is unlikely that the plaintiff's employment with CPB will continue after the completion of the CRR Project in December 2025 and the plaintiff will be required to seek alternative employment.

The alternate occupations contended for by the defendants

1. The plaintiff has a complete and impressive work history. He has about 30 years' experience in civil construction, particularly tunnelling projects. He has about 17 years' experience as a Foreman.
2. The plaintiff's present role as a Senior Supervisor on the CRR Project was provided to him by CPB in circumstances where they were legally obliged to provide suitable alternate duties: s 220 Workers Compensation and Rehabilitation Act 2003 (Qld). Whilst the plaintiff was appropriately qualified to supervise the tunnelling work which finished in 2022, he was not qualified by prior experience or training to supervise the fit out works of the CRR Project, including the construction of the EEB. The plaintiff has demonstrated that he has appropriate clerical and computer skills as well as knowledge of internal processes that qualify him for an office-based role in civil construction.
3. For the reasons given, the plaintiff is unlikely to be able to secure any role involving site visits or where there is a risk that he will be exposed to RCS.
4. I am not satisfied that the plaintiff's experience would qualify him to secure a role in the general building and construction industry, for the following reasons.
5. First, the plaintiff has only been working as a supervisor of the fit out of the CRR Project since about 2022, when the tunnelling was completed.
6. Second, the processes involved in the fit out work are something that he is familiar with through his experience as a Tunneller. For example, the EEB is a specialist type of construction and is not akin to an ordinary residential or commercial building. The EEB is really a tunnel that is fitted out to suit its purpose, to evacuate pedestrians in the event of an emergency. I am not satisfied that the experience that the plaintiff has gained in supervising and managing the construction of the EEB is readily transferable to the general building and construction industry.
7. Third, there is no evidence that the plaintiff has any experience with the trades associated with residential or commercial buildings, such as glazing, carpentry, plumbing, electrical, flooring, bricklaying or roofing. Although, I note that the plaintiff has supervised the construction of spoil sheds which were temporary structures on the CRR Project.
8. Fourth, whilst I accept that the plaintiff is well qualified to estimate resources and plan tunnelling projects, such as the CRR Project, I am not satisfied that his experience of doing so would qualify him to plan, organise or supervise the construction of a residential or commercial building because he does not have the knowledge of a qualified or experienced builder. He does not have the experience of negotiating prices for, or supervising, a large variety of trades that are required to complete such a project. He lacks the ability to read construction plans without assistance from the engineers he works with on the CRR Project.
9. I am not satisfied that the plaintiff is appropriately qualified to act as a Site Supervisor or a Senior Supervisor in the building and construction industry. I am not satisfied that the plaintiff would be seriously considered for those roles in a labour market where he was competing with candidates with superior building and construction experience. Further, those roles would involve site visits to enable effective supervision and quality control to occur. I am satisfied that there would be a significant risk that the plaintiff would be exposed to RCS on site visits where the stripping of formwork and drilling or cutting of concrete was occurring.
10. It follows that I do not accept the opinion of Mr Hill that the plaintiff could obtain a role as a Site Supervisor in the building and construction industry.
11. Ms Stranks provided one advertised position for a Senior Supervisor in the civil construction industry, with Core Civil based in Brisbane.[14] The role was a very high-level position supervising and co-ordinating day-to-day site operations across multiple sites and leading each site team and subcontractors. The role required site visits. Based on the plaintiff's limited experience as a Senior Supervisor on the CRR Project, I am not satisfied that he would be able to secure a role like the one offered by Core Civil because he would not be able to compete with more experienced candidates for that role. I also note that the starting salary for the role was $150,000 per annum, which is less than the median salary of $192,000 per annum relied on by Ms Stranks in her report. If the plaintiff was able to secure a role like the one offered by Core Civil, which I do not accept, his limited experience would only justify salary at the bottom of the range.
12. Finally, Ms Stranks put forward a role as a Senior Supervisor with NUENERGY based in Brisbane, Darwin and other regional sites. I am not satisfied that it would be reasonable for the plaintiff to seek this role because it would be located out of Brisbane, away from his daughter and supported accommodation, both of which are necessitated by his respiratory condition. Further, NUENERGY is a renewable energy infrastructure company and I am not satisfied that the plaintiff's experience would translate into this industry.
13. I am not satisfied that the plaintiff could obtain work as a Facilities Administrator. Mr Hill stated in his report that the role requires persons with "a property management, maintenance or construction background" and that the plaintiff's experience in construction is what would qualify him for this role. I am not satisfied that the plaintiff's experience of constructing tunnels is transferable into general building and construction experience. The plaintiff's construction experience is limited to civil construction techniques and materials. The plaintiff has no experience in working with, estimating or supervising a large variety of trades that may be required to perform maintenance work on a building or facility that could justify employing a facilities manager. The type of maintenance work required to be performed is likely to be far removed from the civil construction techniques and materials that the plaintiff is used to working with.
14. I accept that the plaintiff has been working as a Project Administrator to some extent on the CRR Project since about late 2020 following his diagnosis with PMF. I say to some extent, because he was still supervising the tunnelling work until it finished in 2022, whereafter he has been managing the fit out phase of the CRR Project. Mr Hill stated in his report that persons qualified for the role of Project Administrator generally have project management experience and administration skills. Mr Hill then described the plaintiff's 17 years of supervisory experience in underground mining and tunnelling projects as project management experience. I do not accept that this is a reasonable conclusion to draw. The role of a Project Administrator as described by Mr Hill is an office based, document heavy role that is a support role for Project Managers. The plaintiff has very limited experience of doing that kind of work and his practical experience is limited to civil construction projects, and in particular tunnelling projects. Whilst the plaintiff may be able to obtain employment in such a role if it related to civil construction projects, I am not satisfied that he would be able to secure a job in that role in the building and construction industry or other industries.
15. Ms Stranks put forward two positions as a Project Administrator in civil construction both of which were located in Brisbane. Site visits were not required in these office-based roles. From the job descriptions, I am satisfied that the plaintiff has the requisite experience, knowledge of processes and skills to undertake those roles. As at 26 June 2025, when Ms Stranks undertook her searches, there were 110 Project Administrator positions available in Brisbane relating to "Civil / Roads / Mining / Construction". From this I would exclude jobs in the construction and mining industries for the reasons already given. I do not know how many jobs this would eliminate from the search. Based on the plaintiff's limited experience in performing this kind of work, I do not accept that he could attract a salary of the level being offered in the advertisements referred to by Ms Stranks. I note that the median level salary for a Project Administrator is $106,000 per annum, which is less than the starting point for the advertised positions set out by Ms Stranks.
16. For the sake of completeness, I do not accept that the plaintiff could obtain a position as a Procurement Administrator as put forward by Ms Stranks. The evidence of what the plaintiff has been doing in his present role does not support the contention that he could find work as a Procurement Administrator which appears to me to be a far more contract administration and accounting intensive role than that presently undertaken by the plaintiff. I am not satisfied on the evidence that the plaintiff has the appropriate skillset to undertake this type of role. The job advertisement relied on by Ms Stranks is for a government instrumentality involved with environmental planning and development, which is far removed from the plaintiff's experience.

1. Taking into account all of the evidence, I am satisfied that the plaintiff could obtain office-based work as a Project Administrator in civil construction projects in the Brisbane area, initially at an entry level salary for this role and increasing as he gained more experience. In all the circumstances, it is appropriate to use the median salary level for this role of $106,000.
2. If I am wrong in this conclusion, the plaintiff admitted that he could obtain work as a Forklift Driver or a Crane Operator based on his current HRWL. I am satisfied that the plaintiff could obtain work as a Crane Operator or a Forklift Driver in a position where there was no risk of him being exposed to RCS. I would expect that his earning capacity as a Crane Operator in Brisbane would be higher than if he was employed as a Forklift Driver and that it would be roughly equivalent to what he could earn as a Project Administrator.

Issue 5 Was the plaintiff guilty of contributory negligence, and if so to what extent?

1. The making of an apportionment between a plaintiff and defendant for their respective shares in the responsibility for damage involves a comparison of both culpability and the relative importance of the acts of the parties in causing damage. The whole conduct of each negligent party in relation to the subject of the accident must be subjected to comparative examination: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 492 at 533.
2. A critical difference between the assessment of negligence and the assessment of contributory negligence is that the purpose of the latter assessment is to allow for an apportionment of responsibility for the injury by a reduction in the damages recoverable by the plaintiff to the extent that the Court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage: Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [107] (Basten JA).
3. Contributory negligence differs from negligence. There is no duty owed to another person and contributory negligence involves conduct that exposes the actor to risk of injury without necessarily exposing others to risk. The standard of care in contributory negligence, like negligence, depends on foreseeability and is that of a reasonable person. The plaintiff is guilty of contributory negligence if he or she ought reasonably have foreseen that if he or she did not act as a reasonable person, that would that expose him or herself to a risk of injury: Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563 at 570 per Mason J.

The plaintiff's knowledge about the dangers of RCS - the evidentiary basis for the defendants' contributory negligence contention

1. In cross-examination it was suggested to the plaintiff and accepted by him that his knowledge of the dangers increased over time. I interpolate that the question was intended to refer to the dangers of inhaling RCS or dust more generally, but that was not what was put.
2. For reasons that I will come to, the cross-examination of the plaintiff on this issue was very unfair, inadequate and it lacked any proper foundation in the evidence.
3. The entirety of the relevant evidence was contained at T43-44 and can be conveniently set out in full.

MR PARKER

Q. I just want to go back through your knowledge of the danger of dust, if I could. When did you first become aware that dust could be hazardous to your health. A‑‑‑Well, when I first started working underground, I was told "Whenever you spray shotcrete, you should wear a mask".

Q. From 1993 ‑ A‑‑‑I was told whenever I'm doing that one activity, wear a mask.

HIS HONOUR

Q. Did you understand why. A‑‑‑No.

MR PARKER

Q. Doubtless, your knowledge increased over time about the dangers. A‑‑‑Yes.

Q. Your knowledge progressively greater as you continued; is that right. A‑‑‑So whenever I done that activity, I always work a mask. I didn't know the risk associated with that activity because when I first started underground, there was no inductions, there was no inductions, there was no SWIM, there was no signage and there was no safety.

Q. What was the next point at which your knowledge of the hazards of being exposed to dust presented itself? If you can't recall, just tell us you can't recall. Let me put this to you. By at least 2003 you knew that it was dangerous to be exposed to dust; do you agree with that. A‑‑‑In 2003?

Q. Yes. A‑‑‑Yes.

Q. Do you agree with that. A‑‑‑Yes.

HIS HONOUR

Q. What was the basis of your understanding for that in 2003. A‑‑‑2003, I think I was working for McConnell Dowell during micro‑tunnelling at Liverpool.

Q. What did you learn about dust in that job. A‑‑‑We were excavating shafts at night and tunnelling at night. I don't recall signing any documents regarding dust.

I think you need to put the basis of why you say you knew at that point, Mr Parker. I think it's generally an unfair question whereas developed knowledge over time. If you've got a specific event, then I think you should put that.

MR PARKER

Q. You see, your knowledge of the dangers of exposure to dust developed over time; correct. A‑‑‑Yes.

Q. How you acquired that knowledge was, what, by word of mouth amongst the workforce. A‑‑‑Yes. Our supervisors.

Q. No doubt the press, television, these sorts of general pieces of information that became available to you; correct. A‑‑‑I don't recall any TV information in 2003; I do recall seeing my first SWIMs in 2004 at Lane Cove Tunnel.

Q. That's your first SafeWork matter statement. A‑‑‑Yes.

Q. That took account of exposure to dust. A‑‑‑We were tunnelling. We were told to stop tunnelling and come out and write up a SWIMs, and whoever got the best SWIMs got a voucher and an award. That was the first time I ever written a SWIM, so 11 years into my career.

HIS HONOUR

Q. But the question was, was there anything in relation to dust in that SWIMs. A‑‑‑There would have been, yes, because at the time we were doing excavation of the tunnel, so we would have wrote "Ventilation on, scrubber on".

MR PARKER

Q. Even though you knew that exposure to dust, or the inhalation of dust at least, presented a health risk, you continued working as a tunneller; correct. A‑‑‑Yes.

Q. You were prepared to take the risk to your health continuing to work as a tunneller because the salary you earned was very attractive; correct. A‑‑‑Yes.

Q. And you needed the money; correct. A‑‑‑Yes.

Q. Certainly by 2007 when you were consulting Dr Chen and he was testing you and diagnosing issues with your lungs, you knew that exposure to dust in tunnelling was a risky occupation; correct. A‑‑‑Yes.

Q. With that knowledge, you, nevertheless, continued to work in tunnelling; correct. A‑‑‑Yes.

Q. When were you first advised to leave the tunnelling profession. A‑‑‑2020.

Q. In 2012 you applied for a job at Brisbane; correct. A‑‑‑Yes.

Q. You didn't get that job because you were unable to pass the medical; correct. A‑‑‑Yes.

Q. What you were told was that the medical revealed that you had scarring on your lungs; correct. A‑‑‑Yes.

Q. You were told, were you not, that that scarring was attributable to the inhalation of dust; is that right. A‑‑‑Yes.

Q. You knew as at 2012 that continuing to work as a tunneller and being exposed to dust exposed you to a risk of further injury; correct. A‑‑‑Yes.

Q. Yet you continued to work as a tunneller for another ten or so years; correct. A‑‑‑Yes.

The defendants' submissions on contributory negligence

1. The defendants' submissions on contributory negligence were similarly rudimentary and can be conveniently set out in full.

122 The Plaintiff has been advised on multiple occasions to remove himself from work exposing him to respirable crystalline silica. He has not accepted that advice in the past, although he acknowledged in his evidence that he knew there was a risk to his health but he was prepared to take the risk. Particular "f" is established. (T 44.7-34)

123 The evidence of the Plaintiff's medical witnesses is that all exposure to RCS is materially contributory. Accordingly, there should be a discount for the Plaintiff's contributory negligence.

124 The Defendants submit 10% to 15% is appropriate. The prospect that the Plaintiff will not pursue employment, including underground employment, in the future should be rated at less than 1%.

1. Particular 15(f) of the relevant Defences referred to in [122] of the Defendants' Written Submissions (DWS) pleaded:

Exposing himself to an alleged risk of which he knew or ought to have known.

1. As I understand the defendants' submissions, this was the only particular of contributory negligence contended for, and accordingly it is unnecessary to address the other pleaded particulars.

1. My overall impression of the cross-examination of the plaintiff on this issue was that it was very unfair. It was premised on a rolled-up allegation that the plaintiff knew that exposure to dust was dangerous in his work as a Tunneller based on his progressive understanding, without providing any basis for that knowledge at any particular point in time or ascertaining precisely what his knowledge was. The sting in [122] of the DWS was not squarely put to the plaintiff, rather he gave evidence that he was first advised to leave the tunnelling industry in 2020 and the defendants' argument is limited by that evidence.
2. The plaintiff accepted that from the beginning of his career as a Tunneller in 1993 that he was required to wear a mask while spraying shotcrete but did not know why that was necessary. Nothing turns on this evidence.
3. It was put to the plaintiff that he knew that it was "dangerous to be exposed to dust" by 2003, with no basis for that question. The plaintiff accepted the proposition, but on my questioning could not identify any event for his understanding at that time. I do not place any weight on the plaintiff's acceptance of the proposition.
4. There was no attempt to tease out what the plaintiff understood to be the dangers from exposure to dust to be in 2003. If it was being suggested that the plaintiff knew in 2003 that he could develop a dust disease that could result in serious illness or death, then as a matter of fairness to the plaintiff, that proposition should have been put to him, but it was not. I am left in the position that there is no precise evidence of exactly what the plaintiff knew or understood about exposure to dust in 2003 and no evidence about his understanding about exposure to RCS in particular, including that RCS was present in significant concentrations during tunnelling work. The plaintiff was not asked about what he thought in 2003 about the effectiveness of the control measures that were required to be taken by his employers. The cross-examination left a series of lacunas in the evidence about which I am not permitted to speculate.
5. The plaintiff gave evidence that in 2004 that he had his first experience of a Safe Work Method Statement (SWMS) while working on the Lane Cove Tunnel Project. When I asked about the content of those documents at the time, the plaintiff referred to the ventilation control measures implemented. He did not give any evidence about what he knew about the dangers of dust or RCS.
6. The plaintiff accepted that he knew that the inhalation of dust was a "health risk", at an unspecified time. There was no exploration of what the plaintiff understood about the term "health risk". The plaintiff accepted that he was prepared to take the health risk because the money in tunnelling was good. I do not place any weight on the plaintiff's acceptance of the imprecise notion of a "health risk".
7. The plaintiff accepted the proposition that in 2007 when he consulted Dr Chen that he knew that his exposure to dust in tunnelling could cause issues with his lungs. I pause to note that there was no proper basis for this question in Dr Chen's records. There is no evidence that Dr Chen told the plaintiff that his CT scan was consistent with dust exposure. Dr Chen's records indicate that he was considering a number of differential diagnoses. It was not put to the plaintiff that Dr Chen told him that his CT scan was consistent with exposure to RCS from his work as a Tunneller. The plaintiff deposed, and I accept, that he believed that he had a chest infection which resolved. I reject the plaintiff's acceptance of the unfounded propositions.
8. The plaintiff accepted that in 2012 when he failed the pre-employment medical for the Legacy Way Project that he was told that he had "scarring" on his lungs that was attributable to the inhalation of dust. There is no support for either of these propositions in the evidence. First, there is no document in evidence relating to the pre-employment medical. Second, there is no evidence that the prospective employer required an x-ray or CT scan as part of the pre-employment medical or had access to any radiology. I reject the plaintiff's acceptance of the unfounded propositions.
9. The defendants could have put the content of relevant safety documents for the various projects to the plaintiff in cross-examination or tendered them in evidence. They chose not to do so. I am satisfied that was an unexplained failure by the defendants to produce relevant evidence and I should infer that it would not have assisted their case: Jones v Dunkel.
10. I also accept the plaintiff's evidence that he was inadequately trained about the dangers of inhaling RCS and the control measures that were inadequately implemented his workplaces.
11. Overall, I am not satisfied that the plaintiff understood that he was being asked to give evidence about what he knew at particular points in time. When he did refer to relevant events they did not provide a proper basis of his acceptance that inhalation of dust was dangerous or a health risk. The plaintiff appeared to me to answer all of these questions on the basis of his current, accumulated knowledge.
12. I am satisfied that the plaintiff knew that he was paid more to work underground as a Tunneller because it was dangerous and dirty work. There was a high risk of a tunnel collapsing and he was required to work with heavy machinery in confined spaces. The evidence is insufficient to establish what the plaintiff knew or ought to have known about the dangers of inhalation of RCS at any time before September 2020.
13. There is very little support in the evidence for the defendants' submission that the plaintiff has been advised on multiple occasions to cease tunnelling work and ignored those warnings.
14. In 2012 the plaintiff was first diagnosed with simple silicosis in a pre-emptive screening by the DDB. He was advised that he could continue work as a Tunneller but advised to wear a P2 mask, which he did from that point of time onwards. Further, he was told by the DDB that any attempt by a prospective employer to deny him a job as a Tunneller on the basis of his condition was discriminatory. When he was reviewed every two years by the DDB, this advice did not change. I am satisfied that it was reasonable for the plaintiff to act in accordance with the advice of the DDB.
15. Whilst it is reasonable to accept that the plaintiff knew from 2012 that the inhalation of dust had caused some physiological changes in his lungs, those changes had not caused him any symptoms or disability and there is no evidence that he knew or was told that his condition could develop into a serious or life threatening one.
16. It was not until September 2020 that the plaintiff was informed by Dr Seevnarain, on behalf of CPB, that his condition had progressed, was serious and that it would likely shorten his life expectancy.
17. In September 2020 Dr Bashirzadeh told the plaintiff to avoid further dust exposure by finding an alternative position. I accept that the plaintiff knew from that time that further exposure to RCS could accelerate his condition. At that time, the plaintiff was prohibited from working underground. A few weeks later he was put on a health management plan by CPB under the supervision of Dr Seevnarain, which permitted him to continue to work underground on a limited basis, and the prohibition was lifted. Whilst CPB was under an obligation to provide suitable alternative duties for the plaintiff, it could have put him into a role where there was no risk of exposure to RCS, but it did not do so. In my view, it was reasonable for the plaintiff to believe that the conditions of the health management plan were sufficient to alleviate the risk.
18. From March 2021 the plaintiff was advised by Prof Chambers to consider his continuing employment with CPB, but he did not certify him as unfit to continue working with CPB. At that time he was working under much different conditions than he had experienced in the past and his exposure was significantly reduced. I am satisfied that it was reasonable for the plaintiff to believe that his changed work conditions would minimise the risk significantly.
19. Comparatively, the defendants knew or ought to have known that by exposing the plaintiff to large quantities of RCS that he was at risk of serious illness and death. The defendants were in a position to implement a number of high order control measures, such as machinery with enclosed cabins, effective ventilation and dust extraction, water suppression and respirators with filtered air supply like the Versaflo helmets that would have minimised risk to the plaintiff but failed to do so. It was not reasonable for the plaintiff in his position as a worker to inform himself of the availability of such control measures or to provide them for himself to use. The overwhelming cause of the plaintiff's condition was the egregious breaches of duty committed by each of the plaintiff's employers.
20. The defendants' case on this issue is that the plaintiff should have ceased work as a Tunneller at some unspecified point in time when he had some unspecified knowledge. I am not satisfied that would have been a reasonable response for the plaintiff to take. At best he had some knowledge from about September 2020, but he was also entitled to take into account that he was not certified as unfit to work for CPB and to believe that the substantial changes to his working conditions would minimise the risk.
21. Finally, if contrary to my primary conclusion, it was reasonable for the plaintiff to have ceased work with CPB, I am satisfied that it would only have been reasonable for him to do so from March 2021 after he consulted Prof Chambers. From that point in time onwards, his exposure to RCS was significantly reduced, but not eliminated. The contribution of that period of exposure would have been very low and in my view would have been de minimis.

1. Taking into account all of those matters, I am not satisfied on the balance of probabilities that the plaintiff was guilty of contributory negligence.
2. If I am wrong on this conclusion, I would assess contributory negligence as 5%.

Issue 6 What damages should the plaintiff be awarded for each claimed head of damage, apart from future domestic care?

1. General damages includes a number of heads of damage, including damages for pain and suffering, loss of amenities of life, the loss of enjoyment of life and a reduction in life expectancy due to the damage caused by the tort. Included in pain and suffering is the actual suffering and mental distress caused by the injury: Wickham v Treloar (1960) 77 WN (NSW) 350. The assessment for pain and suffering and loss of amenities of life is concerned with the subjective feelings of the plaintiff and not a comparison of like cases: Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94 and Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118. Loss of amenities of life is concerned with the "deprivation of the ability to participate in normal activities and thus enjoy life to the full": Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491 at 506 per Windeyer J. The amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused: Planet Fisheries at 125.

1. The plaintiff was very fit and healthy prior to developing silicosis and PMF. The plaintiff's exercise capacity has been reduced by half which is a significant reduction for anyone. The fact that the plaintiff is still fit by comparison to the ordinary population is beside the point, the impact on him is substantial. The plaintiff has found himself to have slowed down at work and that has impacted his enjoyment of his work. The plaintiff gets short of breath on exertion and has experienced some difficulty with household chores like gardening and changing the bed clothes. His condition has limited his ability to engage in physical activities with his daughter.
2. The plaintiff has experienced the gradual loss of his career as a Tunneller, which will finally end in December 2025. His work has been a source of great pride and satisfaction for him.
3. The plaintiff has struggled psychologically with his diagnosis and its potential impact on his mortality. This is a stressor that is likely to be permanent for the remainder of his life, irrespective of what happens. I accept Dr Lotz's opinion that he is suffering from an Adjustment Disorder with mixed anxiety and depression. I am satisfied that his regular and continuing psychological treatment with Dr Leas is assisting him to keep his psychological condition under control at present. The fact that a psychological condition is controlled through treatment, does not deny its existence: Kelly v Saadat-Talab [2008] NSWCA 213; (2008) 72 NSWLR 305 at [30] (Allsop P). I accept the evidence of both psychiatrists that his psychological condition will get worse in line with the decline in his respiratory condition and that it could develop into a more serious condition, such as a Major Depressive Disorder. I also accept the opinion of Dr Lotz that the plaintiff will require indefinite support from Dr Leas throughout the remainder of his life.
4. For the reasons given when dealing with Issue 1, I am satisfied that the plaintiff's respiratory condition will deteriorate to the extent that he will approach respiratory failure at age 70 and require a lung transplant to survive. This will involve pain and suffering associated with the decline over the next 16-17 years. I am satisfied that the plaintiff will become increasingly short of breath and disabled by his respiratory condition. He will lose capacity to work as his respiratory condition deteriorates until he loses the capacity to work entirely at age 65. The plaintiff's decline to respiratory failure will involve him becoming very ill over a number of years.
5. I accept the evidence of Prof Chambers that the plaintiff will be eligible for a lung transplant at age 70 and that this will involve pain and suffering associated with the operation itself and the extended period of medical supervision that follows that procedure.
6. Prof Chambers gave evidence that pain is a common side effect of a lung transplant that can occur for two to three weeks post-operatively because there are limitations on the kinds of pain relief that can be administered when patients come off a ventilator. Thereafter it takes a patient six to 12 months to recover from the transplant operation because of the impact it has on physical function through blood loss, the medications and lack of physical activity leading to loss of muscle mass. There are common side effects from the use of immunosuppressant medications post-transplant, including nausea, tremors, headaches, runny nose and an increased risk of infection, kidney failure and skin cancer.
7. Most patients regain quality of life about six to 12 months post-transplant and can lead normal lives for differing periods of time, with the best predictors of a favourable outcome being adherence to medical care regimes. Thereafter most patients experience a "honeymoon" period for a number of years before they decline through the chronic rejection of the allograft, which is the usual cause of death about seven or eight years post-transplant.
8. The usual course of decline involves the contraction of fungal infections requiring the use of medications that have other side effects. Patients also develop episodes of rejection which is a progressive fibrosis of the allograft, leading to breathlessness and respiratory failure. Prof Chambers described the last year of life as unpleasant, involving multiple medical interventions and functional decline, with death often precipitated by influenza or pneumonia. An advantage of a transplant is that the patient has access to the same treating practitioners throughout their course of treatment, which usually leads to earlier referral into palliative care.
9. Based on the evidence of Prof Chambers, I am satisfied that the plaintiff will suffer the pain and suffering of two unpleasant and separate declines in his respiratory condition, both related to his condition, with the latter leading to his death. He will suffer the loss of enjoyment of life associated with the necessity to attend numerous medical appointments and undergo multiple interventions over an extended period.
10. The plaintiff's life will be ended prematurely by a term of about 11 years at age 78.
11. The defendants submitted that on their case, the appropriate award of general damages was $350,000. The plaintiff submitted on its case that the appropriate award of general damages was $800,000.
12. The defendants submitted that their assessment of the plaintiff coincided with the DDA Medical Authority's assessment of a 1% disability due to silicosis in its letter of 11 May 2023. I reject that argument for the following reasons. First, the plaintiff has not been assessed in person by the DDB since 3 June 2018, being the date of the last LFT recorded in the DDB files. Second, the evidence demonstrates that the Medical Authority did not have access to the CT scans performed after 2020 or LFT done after 3 June 2018 in coming to the 2023 assessment. Third, I accept Dr Edwards' evidence that the DDB's 2023 assessment is wrong. Finally, this assessment is incongruous with the defendants' submission on the appropriate award for general damages.
13. Taking into account all of these matters, the appropriate award for general damages is $850,000.

1. Interest on damages for past general damages is calculated at the rate which represents the difference between the prevailing interest rate for a secure investment and the rate of inflation: MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657. The assessment of interest involves a notional division of general damages into past and future general damages and the application of 2% per annum for the whole of the period from injury to trial. There is always the discretion as to whether to award interest and if so, from when. The discretion must be judicially exercised.
2. In Marsland v Andjelic (No 2) (1993) 32 NSWLR 649 at 652 per Kirby P and Meagher JA (cited with approval in Roads and Traffic Authority v Cremona [2001] NSWCA 338 at 148 per Sheller JA, Priestley JA and Stein JA agreeing) it was said:

... it is difficult to see why a successful plaintiff has not got almost a vested right to an award of interest, so that circumstances have to be indeed exceptional before he or she can be deprived of any of it on a discretionary ground.

1. The plaintiff first started to suffer shortness of breath on exertion and from his psychological condition in about 2021. My findings are that he will continue to experience pain and suffering for a further 24 years. It follows that most of his pain and suffering is yet to come.
2. I will allow interest on $100,000 at the rate of 2% for 5 years. This results in an award of $10,000 for this head of damage.

1. Based on my factual findings the plaintiff will die at age 78, which represents a shortening of his life of about 11 years. The plaintiff is entitled to an award of damages for loss of expectation of life of $11,000.

1. The effect of my earlier findings is that the plaintiff:

(a) would have earned $4,292 nett per week to age 67, but for his condition;

(b) has a residual earning capacity of:

(i) $1,562 to age 60;

(ii) $781 from age 60-65; and

(iii) nil from age 65-67.

(a) $2,730 per week for 6 years (rounded down) from 23 February 2026 to 22 February 2032;

(b) $3,511 per week for 5 years from 23 February 2032 to 22 February 2037; and

(c) $4,292 per week for 2 years from 23 February 2037 to 22 February 2039 (when the plaintiff reaches the age of 67).

(a) $2,730 x 287 = $783,510;

(b) $3,511 x 243 x 0.837 (deferred for 6 years) = $714,105; and

(c) $4,292 x 101 x 0.722 (deferred for 11 years) = $312,981.

1. This comes to a total of $1,810,596, to which a discount of 15% must be applied for the vicissitudes of life, resulting in a loss of earning capacity of $1,539,006.

(1) I direct that the parties confer on the issue of future domestic assistance to determine if agreement can be reached on the damages to be awarded under that head of damage, or if further hearing dates are required for the Tribunal to determine that issue.

(2) I direct that the parties notify my Associate of the outcome of their conferral on or before 5.00pm on Friday 6 February 2026.

(3) The matter is listed for directions before me on Monday 16 February 2026.

(4) If agreement can be reached between the parties on the outstanding issues, I grant leave to the parties to provide my Associate with Short Minutes of Order to give effect to this judgment and any subsequent agreement, specifying the judgment sum to be entered against each defendant.

[1] This head of damage has not yet been the subject of evidence because it is highly dependent on the resolution of Issue 1. It was agreed between the parties that following the publication of these reasons that the parties would enter into further negotiations or seek further hearing dates on this issue.

[2] The representations of Dr Seevnarain referred to in [89] are admitted only against CPB, for the reasons given in my admissibility ruling on this evidence.

[4] Yang, Yang, Zhang and Chen, "Natural course of silicosis in dust-exposed workers" (2006) 26(2) Journal of Huazhong University of Science and Technology 257.

[5] Lee, Phoon and Ng "Radiological progression and its predictive risk factors in silicosis" (2001) 58 Occupational and Environmental Medicine 467

[6] Ogawa, Imai and Ikeda, "A 40-year follow-up of whetstone cutters on silicosis" (2002) 41 Industrial Health 69.

[13] Work Health and Safety Act 2011 (NSW), Work Health and Safety Act 2011 (Qld), Work Health and Safety Act 2012 (SA), Work Health and Safety Act 2012 (Tas), Work Health and Safety Act 2020 (WA), Work Health and Safety Act 2011 (Cth)