Comcare v Howard Smith & Patrick Travel P/L

Findings of Fact 1I make the following findings of fact: iThe late Mr Lindsay was employed by the defendant at all material times. iiThe defendant was a registered employer of waterside workers at Port Kembla. iiiThe late Mr Lindsay was not a registered waterside worker. ivThe late Mr Lindsay worked alongside waterside workers, sometimes in the holds of ships, sometimes on steam winches and at times was responsible for washing the clothes of Waterside workers. vFrequently when he worked in the holds of ships, he encountered loose asbestos particles and breathed in those particles. viThe steam pipes on the steam winches were covered with asbestos rope which was frequently in a bad condition, flaking and giving off particles of asbestos into the air. viiThe late Mr Lindsay breathed in these particles while he was working on the winches. viiiThe clothing of the Waterside workers was frequently covered in asbestos particles which created clouds of dust that were breathed in by the late Mr Lindsay. ixThe defendant was aware that Mr Lindsay was carrying out the work described above alongside the Waterside workers, and because he was working so closely with them was exposed to the breathing in of asbestos particles.

Background of the Proceedings 2David Lindsay was born in the United Kingdom on 8 August 1939. 3The defendant was incorporated on 31 December 1936. 4The Australian Stevedoring Industry Board was incorporated on 18 July 1949. The plaintiff in these proceedings assumed liability for the responsibilities of the board. 5Mr Lindsay arrived in Australia in 1961 and worked at Port Kembla between 1964 and 1982. His claim was that the defendant employed him during those years and that the successor to the Board was responsible for stevedoring operations at Port Kembla and because of this owed him a duty of care to protect him from exposure to asbestos. He claimed that it failed in its duty of care and because of that he contracted mesothelioma. 6On 17 November 2008 Mr Lindsay commenced proceedings against the plaintiff (Comcare) arising from his having been diagnosed with mesothelioma in October 2008. It was his claim that the Board, because of its duty of care to him, was responsible in law for damages for his contracting mesothelioma. The present plaintiff, the defendant in those proceedings, settled the claim on 9 April 2009 and now seeks to recover as a joint tortfeasor against the defendant in these proceedings (Howard Smith and Patrick Travel). 7The defendant claims that the plaintiff was never liable to Mr Lindsay, was not a tortfeasor and cannot maintain a claim against it. 8The case concerns events of long ago, as most of these cases do and it required that I give consideration to various old documents, the affidavit of Mr Lindsay, affidavit evidence of various other persons in other proceedings and the evidence in this case of Mr Bevis. As well as that, I considered a number of other statements and documents. In this judgment, I refer to those statements and documents. 9Mr Lindsay, in his case against the present plaintiff, provided evidence through an affidavit to which was attached particulars of his claim. He was not totally certain of the identity of his employer whom he spoke of variously as "Port Kembla Stevedoring" and Patrick Stevedoring. 10He produced a letter dated 4 August 1982 on the letterhead of Patrick Stevedoring co-which referred, inter alia, to "funds from PKS". It with a submission of counsel for the plaintiff that these initials were of Port Kembla Stevedoring and Agency Co Pty Ltd. This company later became the current defendant. 11The plaintiff called Graham William Bevis in support of his case. Mr Bevis confirmed that the plaintiff worked with him as a gearman on the wharves at Port Kembla and that both of them were employed by Port Kembla Stevedoring and Agency Co Pty Ltd. He produced to the hearing what was described as a foreman's book (see Ex P2). This was used in the course of his work and it clearly shows that the employer was the Port Kembla Stevedoring and Agency Co Pty Ltd, as Mr Bevis claimed. This company was a stevedoring company and was a company in a chain of Patrick's Stevedoring Companies. Additionally, he gave evidence of issued clothing he wore with the "PKS" initials on it and of the name being on the door of the building in which he worked and on trucks that he used in his employment with the defendant. 12I am satisfied that the plaintiff was at all times material to this action employed by that company and hence, the defendant as the successor in title to that company was liable to him as an employer for any breach of its duty of care to him as an employee. 13However, the substantial issue in the hearing was not whether the late Mr Lindsay was employed by the defendant, but whether the plaintiff was a tortfeasor at all. If the plaintiff was not a tortfeasor, then it cannot recover against the defendant, even if it is proved that the defendant was a tortfeasor. Is The Defendant a Tortfeasor? 14The evidence of Mr Lindsay, in my opinion, established that whilst he was working for the defendant, he was exposed to asbestos while he was carrying out work for the defendant as a gearman. He drove a truck to the wharf at Port Kembla with gear that was for the use of wharf labourers in their tasks of loading and unloading ships. This gear was often left in the holds of the ships or on the wharves. 15The gearmen, such as Mr Lindsay and Mr Bevis, were required by their employment to go down into the holds of the ship and to retrieve the gear. While in the holds Mr Lindsay claimed that he was exposed to asbestos from a number of sources- some lying loose in the holds, some in the form of lagging on steam pipes, some in the form of loose bags of asbestos that he had to move. 16Steam driven winches were also used for the unloading of ships and on many occasions, Mr Lindsay operated the steam winches. The steam pipes on the winches were lagged with asbestos rope and slurry and often the lagging was in a bad condition and gave off dust that was inhaled by him. 17The defendant's counsel assailed Mr Lindsay's expertise to identify asbestos. I reject the objections made to Mr Lindsay's evidence about asbestos. 18Quite apart from his evidence, he was supported in his identification of the asbestos by evidence of witnesses, now deceased, who had worked with asbestos unloading in other ports such as Sydney and had then worked in the holds of ships in Port Kembla. Statements of Mr Munro, Mr Wales and Mr Foley, who were all wharf labourers with significant Sydney asbestos unloading experience and who all worked at Port Kembla, were the relevant witnesses and I admitted their statements into evidence. Each of them was able to identify asbestos through long experience of working with it in the holds of ships in the port of Sydney and each was able to confirm that loose asbestos was in the holds of ships in Port Kembla, although it was only rarely that a cargo of asbestos was unloaded in Port Kembla. The loose asbestos in the holds of the ships at Port Kembla was what was left of cargoes of asbestos that had been unloaded in Sydney. 19I accept that Mr Lindsay was exposed to asbestos while he worked for the defendant at Port Kembla. 20The plaintiff relied also on a notice given under s. 25B of the Dust Diseases Tribunal Act1989. That notice was in the following terms: "Take notice that pursuant to s 25B of the Dust Diseases Tribunal Act 1989, the plaintiff intends to rely on the prior determination of the following issues of a general nature: 1. Finding of a general nature: all asbestos exposure within an acceptable latency period makes a material contribution to the disease of mesothelioma. Source- Re Jones-Mashman (Amaca v CSR [No 2]) [2009] NSWDDT 24 at [7] per O'Meally P. 2. Finding of a general nature: It was reasonably foreseeable from at least the mid-1960's that exposure to a small amount of asbestos was capable of causing injury. Source- Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 (29 July 2008) at [75] per O'Meally P" 21These issues of a general nature were clearly raised in these proceedings and I make determinations in accordance with each of them. It is thus clear that at the time the plaintiff worked for the defendant, an employer of waterside labour registered with the Board, it was aware that all asbestos exposure, including asbestos lying in holds of ships and the lagging on steam pipes on winches and in ships at Port Kembla was capable of causing injury to any person coming in contact with it, including Mr Lindsay and other gearmen employed by it to work on the waterfront at Port Kembla. 22It was also reasonably foreseeable that from the time Mr Lindsay commenced to work with the defendant until the mid 70s, his exposure to even small amounts of asbestos was capable of causing injury to him. 23The defendant did not issue any protective clothing to Mr Lindsay apart from overalls, gave him no masks to protect him from dust inhalation, and gave him no instructions about avoiding exposure to asbestos. 24The submission made a number of times by counsel for the defendant that Port Kembla was not " an asbestos port" was not correct. Certainly asbestos was not normally unloaded there, but clearly there was plenty of asbestos in the holds of ships and in the lagging on steam pipes on winches on the docks. The defendant, by requiring its workers to go onto the docks and into the holds of ships, exposed them to asbestos. Its failure to do anything to protect its workers from exposure to asbestos was negligent. 25I find that the defendant, if sued by Mr Lindsay, would have been liable as a tortfeasor (See Law Reform (Miscellaneous Provisions) Act 1946 s 5) Was Comcare liable to Mr Lindsay as a tortfeasor? 26Counsel for the defendant submitted that Comcare was not a tortfeasor and hence could not maintain the action against his client. It was his submission that because Port Kembla was not "an asbestos port" the Board, the Australian Stevedoring Industry Authority and its successors, including Comcare, had no duty of care to Mr Lindsay and were not in any way liable for any injury suffered by him. 27In Crimmins v the Stevedoring Industry Finance Committee (1999) 200 CLR 1, the High Court of Australia had to consider the extent to which the Committee which was the successor to the Authority owed a duty of care to waterside workers who were registered with the Committee. The plaintiff in the case was a registered Waterside worker working as a wharf labourer in the Port of Melbourne who was diagnosed as suffering from malignant mesothelioma. He had worked as a wharf labourer between 1961 and 1965. Melbourne, like Sydney, was a port where wharf labourers unloaded and handled bags of asbestos fibre. 28The Authority did not employ Waterside workers but it had disciplinary powers over them and was responsible for assigning them to work at particular wharves. 29The Court decided that the Authority owed to the workers a common law duty to take reasonable care to protect them from reasonably foreseeable risks of injury arising from employment by registered stevedores. It is not necessary that I should traverse the reasons of the various judges. It is sufficient to say that McHugh J (paragraphs 48-147) sets out the facts, the questions to be asked where a plaintiff alleges that a statutory Authority has imposed on it a common law duty of care and has breached that duty by failing to exercise a statutory power (see paragraphs 93-94), and analysis of the statutory regime and the duty of care (paragraph 133). 30The principal differences in fact between that case and the present case is that the plaintiff Mr Lindsay worked at Port Kembla at the relevant time and he was not a registered Waterside worker. However, he worked for a registered stevedoring company and worked with Waterside workers who were exposed to asbestos during the course of their working day. This meant that he also was exposed to asbestos. 31The Authority had port inspectors (see the statement of Mr Reginald James Pieper Ex 22) and was represented on committees concerned with waterfront safety (see Mr Pieper's statement and the statement of Dennis George Dalziel (Ex P11). 32The Authority had control of stevedoring operations in Port Kembla just as it had in other ports. When waterside workers wanted a transfer to a different port, they applied to the Authority and the system of work was the same as in Sydney in that the worker went into the "SEAL bin" and was allocated work with the various stevedoring companies (see the statement of Mr Munro in relation to his transfer to Port Kembla Ex P8 para 27; see also the statement of Mr Foley Ex P7 para 20). 33In the Port of Sydney, ASIA had inspectors who had authority over the workers (see the statement of Mr Wales Ex P9 para 17). At Port Kembla, there were also port inspectors employed by ASIA or SIFC and they had the same roles as the inspectors in Sydney (see Ex P9 para 35) Furthermore, these inspectors inspected the work on the vessels, but gave no warnings to any of the workers (see P9 para 35.) 34After it found that SIFC had a duty of care to waterside workers, the High Court remitted Crimmins case to the Victorian Court of Appeal to determine if there was in fact a breach of duty. That court held there was a breach of duty to the plaintiff (see Stevedoring Industry Finance Committee v Henderson (representing the Estate of Crimmins) [2000] VSCA 216). 35In my opinion, the facts show that ASIA and its successor SIFC had the same measure of control of operations at Port Kembla as each of these Authorities had in Sydney and Melbourne. It owed the same duties of care to the waterside workers in Port Kembla as it owed to waterside workers in Melbourne and Sydney. It could have stopped work being carried out on vessels that had asbestos in their holds and could have directed that no work be carried out until the workers were protected from exposure to asbestos on steam pipes on winches and within ships. It did not do so. 36In Gibson v Stevedoring Industry Finance Committee [2000] NSWCA 179, the New South Wales Court of Appeal again considered the question of the duty of care of SIFC to a waterside worker working in the Port of Sydney who was exposed to asbestos fibre during his work and acquired an asbestos caused disease. The Court of Appeal held, consistently with Crimmins (supra) that the Authority had a duty of care to persons in the position of Mr Gibson to provide a safe system of work by the exercise of its statutory power so as to prevent foreseeable injury to him. It breached the duty and was liable in damages. 37Counsel for the defendant submitted that the amount of exposure of Mr Lindsay to asbestos was insignificant and so small that there was no duty on the employer, let alone ASIA to take steps to protect Mr Lindsay from the exposure. I do not agree. The report of Dr James Leigh (Ex P20) makes it clear that the dangers of asbestos to health have been known since the 1920's and its association with lung cancer from at least 1955 and mesothelioma from 1960. His report makes it clear that there is no safe level of exposure to asbestos. He gives examples of asbestosis caused by exposure of less than a year and in one case of exposure only to lagging on pipes where a man got asbestosis. There is no safe level of exposure to asbestos. 38The actual knowledge of ASIA and SIFC of the hazards of asbestos is clear. Indeed it was spelt out in Gibson (supra). See para 91. 39Like Judge Curtis, the trial judge in Gibson, I find as a fact that ASIA and SIFC put waterside workers to work at Port Kembla without exercising reasonable care in the supervision of their working conditions. I also find that both Authorities were aware, because of their membership of the various Committees described in the statement of Mr Dalziel that ships in Sydney that unloaded asbestos had residues of asbestos in their holds and had asbestos lagging on their steam pipes. The Authorities furthermore were aware that those ships came to Port Kembla carrying other cargoes and that there were in the holds of those ships asbestos as well as asbestos lagging on the ships' steam pipes and on the steam pipes of the wharf winches. 40I have looked at the statement of Mr Pickford on which the defendant relies. I place no reliance on it because it is based on no proven facts and is largely speculative. 41Mr Lindsay was in such a proximate relationship to the waterside workers that the plaintiff, in my opinion owed to him a duty of care, similar to that owed to waterside workers. Its inspectors looked into the holds of ships and had actual knowledge of the presence of asbestos in the place I have previously mentioned. In breach of its duty of care to Mr Lindsay, it did nothing to require that protective clothing and masks be provided to him, did nothing to require the defendant to stop work until the asbestos was safely removed and did nothing to ensure that he was warned of the dangers of working with asbestos. Not only did it owe him a duty of care, but also it breached that duty of care. 42It is my opinion, further, that the plaintiff, by settling the claim brought against it by Mr Lindsay, was acting responsibly in acknowledging its duty of care to Mr Lindsay and its breach. Quantum of the verdict 43The plaintiff settled the case brought by Mr Lindsay by agreeing to a judgment of $350,000 inclusive of costs. In my opinion that was an entirely reasonable settlement. Most plaintiffs in the Tribunal receive by way of general damages if the case goes to judgment, something in the order of $250,000 to $290,000. The settlement in this case recognises that and in my opinion, it was a fair settlement. There was argument to the contrary, but I do not accept it. 44However, the judgment was partly paid by a later employer of Mr Lindsay in the sum of $14,875, inclusive of costs. 45Argument was also put on the extent to which the defendant, if liable, should be ordered to contribute. In my opinion, the defendant, as the employer of Mr Lindsay ought to bear the majority of the verdict, because it had a primary, non-delegable duty of care to him, which it breached. It would not be correct to suggest that the verdict should be divided on a 50/50 basis. It would be appropriate that the defendant as employer pay 75% of the verdict sum, after the deduction of the amount I have just mentioned, that is an amount of $335,125. 46I will hear the parties on costs.