1 THE COURT: This is the second series of appeals to this Court from the assessment of the damages payable to the late Denis Hollins ("the worker") for personal injuries suffered by him as a result of his exposure to silica dust during his employment. The first judgment of Johns J delivered on 16 December 1992 in favour of the worker against all three defendants for $502,272 was reversed by this Court on 22 December 1993 on grounds relating to both liability and damages. The judgments in favour of the worker were restored, except on the issue of damages, by the High Court on 3 April 1996. See Harris v Commercial Minerals Ltd (1996) 186 CLR 1. The formal orders of the High Court, so far as relevant were (par 3(a)) that "in lieu of the said orders of the New South Wales Court of Appeal order that (a) the appeals to that Court against the assessment of damages by the Dust Diseases Tribunal of New South Wales be allowed" and (par 3(c)) that "the matter be remitted to the Dust Diseases Tribunal of New South Wales to assess the damages to be awarded against the second and third defendants before that Tribunal on the basis of the findings of and the evidence before Judge Johns".
2 The proceedings were brought by the worker in the Tribunal against three of his employers which had exposed him to dust in the course of his employment. He was employed by the first defendant from 25 October 1953 until 31 March 1955 and from 8 July 1957 to 12 July 1962 for a total of some 6 years and 5 months. He was employed by the second defendant (Auqal Pty Ltd, the second appellant) from 1 July 1969 to 31 March 1973 for 3 years and 9 months, and by the third defendant, Commercial Minerals Ltd (the first appellant), from 31 March 1973 to 15 August 1986 for 13 years and 5 months. In his original judgment Johns J found all defendants liable to the worker and entered judgments for the damages assessed "against each of the defendants". The issues relating to damages litigated in the first appeals to this Court were the validity of these judgments for the same amount against consecutive tortfeasors, and whether "future compensation benefits under" the Workers Compensation (Dust Diseases) Act 1942 should be deducted when assessing the worker's future economic loss.
3 The High Court held that this Court had been correct in holding "that the present value of the future benefits payable under the Dust Diseases Act was deductible from the worker's damages" (ibid 16, 18). The worker had died pending the appeal to the High Court and his administratrix did not challenge this Court's decision that a single judgment should not have been entered against the three defendants (ibid 18-19).
4 On the new trial Johns J held that the deceased had suffered from silicosis, and progressive massive fibrosis (PMF) which developed from the underlying silicosis. He found that "The process that takes place is a coalescence of the rounded deposits into a single mass and once contracted it inevitably will progress, although the rate of progression varies with the individual". He further found that "the PMF is distinct from the silicosis and is the consequence … of all exposure until 1982". Accordingly he found that the separate torts of each defendant combined to produce a second injury and concluded:
"The PMF condition is therefore the direct product of a group of acts not simultaneous, all converging to bring about one occurrence of damage and in those circumstances it can be fairly said to be indivisible. The PMF therefore was caused by all the defendants. I conclude therefore that in respect to the PMF the condition is one and indivisible and the defendants therefore are … severally liable for it".
5 The Judge reassessed the worker's damages at $405,400. He apportioned 40 percent of this to the silicosis and 60 percent to the PMF, and held that the second and third employers were liable as several concurrent tortfeasors for $243,240 damages for the PMF. He apportioned the damages of $162,160 awarded for the silicosis between the three employers as consecutive tortfeasors in the proportions 20 percent, 45 percent and 35 percent, and awarded damages of $72,972 against the second employer and $56,756 against the third employer on this basis.
6 The third employer appealed within time challenging the finding that the PMF was a separate, single injury caused by the wrongful acts of all three employers, the apportionment of the damages for silicosis, and the allowance of $41,921 for future medical expenses which it said should have been disallowed as they were payable as compensation benefits under the Dust Diseases Act.
7 The second employer did not appeal in time, because its workers' compensation insurer believed that its liability under the common law extension in its policy was limited to $50,000. It later discovered that its limit of liability was apparently $200,000. It then sought and was granted leave to appeal out of time. It also challenged the finding that PMF was a separate condition which gave rise to entitlements to a single award against all three employers, the apportionment in respect of the damages for silicosis, the allowance for future medical expenses, and the deduction of future weekly compensation benefits under the Dust Diseases Act for only 7.5 years instead of 12 years. It was recognised that the second employer's late application for leave to appeal out of time could be relevant on costs.
8 Mr Hoeben SC, who appeared for the second employer, contended that $47,024 should be deducted from the Judge's assessment for future medical expenses ($41,921) and future hospice care ($5,103), and a further $39,628 should be deducted for future weekly compensation benefits for the difference between 7.5 years and 12 years.
9 After the Court granted leave to appeal out of time to the second employer, Mr Toomey QC for the third employer sought and was granted leave to amend its notice of appeal to include a new ground 10 covering the Judge's refusal to allow a deduction for future weekly compensation benefits for 12 years instead of 7.5 years. It was again recognised that this late amendment could be relevant on costs.
The findings relating to PMF
10 Mr Toomey submitted that it was not open to the trial Judge, consistently with his original reasons for judgment, to find that PMF was a separate condition, and not simply part of the worker's silicosis. The finding that PMF was a separate condition, made in the second judgment of the trial Judge, was said to be contrary to the High Court's direction that the worker's damages be assessed "on the basis of the findings and evidence before" the Judge. There is no substance in this submission. In his original reasons the Judge found that the plaintiff suffered from silicosis "complicated by progressive massive fibrosis" which had developed due to "relatively high levels of silica dust exposure". This was in substance a finding that the worker was suffering from PMF as a separate condition and the medical evidence supports this finding. His Honour had no occasion, in his first judgment, to emphasise the distinction between the two conditions because it was not thought legally necessary to do so, but nevertheless the finding was clearly made.
Dust Diseases Act
11 The award of $47,024 for future medical expenses and hospice care was not separately or clearly challenged in the first appeals to this Court either in the notices of appeal or during the hearing. The point was not mentioned in this Court's reasons for judgment, but the orders for new trials made by this Court would have permitted the third employer to raise that question on the new trial. The specific point is not referred to in the reasons or orders of the High Court either, although the right to payment for medical expenses is clearly a benefit receivable under the Act. See the Workers Compensation (Dust Diseases) Act s 8 (2)(d) and see also James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729, 737, 741.
12 The question could never have arisen if the original notices of appeal to this Court had complied with SCR Pt 51 r 11(1)(c) which requires a notice of appeal to state "specifically" the grounds of appeal, and r 11(1)(d) which requires it to state the judgment sought in place of the judgment below. Neither of the original notices of appeal took the point about future medical expenses "specifically". Mr Toomey informed the Court that the point as to such expenses was taken at the first trial by Mr Little, who appeared for the third employer, and it may be significant that the damages then awarded did not include any amount for past medical expenses. However the other counsel, particularly Mr Jackson QC and his junior who appeared for the worker's estate but had not appeared at the first trial, were not able to confirm Mr Little's recollection and the Court cannot act on Mr Toomey's statement. This of course is not intended to reflect in any way on Mr Little's integrity.
13 In these circumstances the question turns on the effect of the orders of the High Court. The judgments in favour of the worker at the original trial were set aside on the question of damages, and the proceedings remitted to the Dust Diseases Tribunal "to assess the damages to be awarded against the second and third defendants … on the basis of the findings of and the evidence before Judge Johns". The judgments entered after the original trial were therefore set aside and could not prevent the employers relitigating the question of future medical expenses. See Roe v R A Naylor Ltd (1918) 87 LJKB 958 CA, 963; Butler v Butler (1894) P 25 CA, 29.
14 The order of the High Court that the damages be assessed on the basis of the findings and the evidence at the first trial prevented the evidence being automatically reopened, preserved the trial Judge's findings of primary fact, and any issue estoppels as to facts fundamental to the assessment. See Blair v Curran (1939) 62 CLR 464, 532. The orders did not otherwise bind the parties or the Judge on the new assessment. In particular they did not bind the parties or the Judge on questions of law.
15 The appellants' point relating to future medical expenses arose on the face of the Judge's original reasons for judgment and did not require any amendment to the pleadings, or any additional evidence. The Judge's summary of his first assessment showed that his award included (255) "future medical expenses $41,921.00".
16 His reasons for judgment also showed that his award of $21,658 for Future Domestic Assistance and Hospice care included $5,103 for the latter (254). There was no dispute before us that the latter amount was a medical or hospital expense payable under the Act.
17 The propriety of including these sums in the reassessment of the worker's damages raised a question of law. The general question as to future benefits under the Act was covered by the decision of the High Court but there was no decision on particular benefits other than the pension payments. In our judgment the points as to these items, which raised a pure question of law, were open to the appellants on the reassessment, and are open to them in these appeals. We would uphold the appeals as to these items and reduce the damages accordingly.
18 The second question as to the effect of the Act concerns the amount of $39,628 being the present value of future pension payments under the Act for 4.5 years after the worker attained 65. At the new trial the appellants unsuccessfully contended for a deduction for the present value of pension payments for 12 years based on the worker's then expectation of life. The trial Judge followed the decision of O'Meally J in Katidis v Meggitt (Overseas) Ltd (No 2) (1995) 11 NSWCCR 147 on this question and allowed only 7.5 years for the period until the worker's normal retirement at 65. This decision has since been overruled in James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729. Consistently with this decision the appellants were entitled to a further deduction for the $39,628.
19 This Court reserved its decision on 4 November 1998, but thereafter the Parliament amended the Dust Diseases Tribunal Act 1989 to insert a new s 12D(2) which provided:
"In determining damages for non-economic loss in any such proceedings, no deduction is to be made for any amount of compensation already paid or payable, or payable in the future, under the Workers Compensation (Dust Diseases) Act 1942".
20 Section 12D(3) provides:
"In this section:
Damages for non-economic loss means damages or compensation for the loss following:
(a) pain and suffering,
(b) loss of amenities of life,
(c) loss of expectation of life,
(d) disfigurement,
(e) the need for services of a domestic nature or services relating to nursing and attendance which have been or are to be provided to a person by another person, and for which the first person has not paid and is not liable to pay any fee or charge".
21 Sub section (1) provides that the section applies to proceedings in the Tribunal, and on appeal from the Tribunal, for damages in relation to dust-related conditions. The Act was proclaimed to commence on 1 December 1998. Section 10 of the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998, which inserted s 12D in the Tribunal Act, provides:
"(1) Section 12D, which was inserted by the amending Act, applies in relation to causes of action arising before or after the commencement of that section, and extends to proceedings pending at that commencement,
(2) However, section 12D does not apply in relation to a cause of action to the extent that proceedings on the cause of action have been determined before the commencement of that section".
22 In view of the express provision in s 12D(1) extending to appellate proceedings, the section must be applied in the determination of these appeals. The Judge's revised assessment of $405,400 was based on his original assessment of $502,272 which he reduced by $18,600 to adjust for an error in calculating interest on past economic loss, and $78,272 for future pension payments under the Act. Section 12D did not overrule the general principle established in Harris v Commercial Minerals (1996) 186 CLR 1 that future pension entitlements should be deducted from "awards of damages in respect of injuries giving rise to those benefits" so as to be "deductible from any common law damages" (ibid 18) but only that part of Newton's case that held that future benefits could be deducted from general damages as defined.
23 The Judge's original award included $120,743 for loss of future earnings calculated over a period of 7.5 years from the date of judgment. The deduction of $78,272 made by the Judge, and a further deduction of $39,628 for the next 4.5 years, total $117,900 which is less than the amount included for future economic loss. However consistently with Harris v Commercial Minerals, and the unreversed part of the decision in Newton, there is no reason why these entitlements should not have been deducted from the total award for economic loss including past economic loss. In our judgment therefore the appeals also succeed in respect of this further sum of $39,628.
Apportionment
24 The appellants did not otherwise challenge the apportionment of the damages between the PMF at 60 percent and the silicosis at 40 percent but both challenged the apportionment of responsibility for the silicosis part of the award. The first employer who was responsible for 27 percent of the exposure on a purely time basis was held responsible for 20 percent of the damage. The second employer responsible for 16 percent of the exposure on a time basis was held responsible for 45 percent of the damage, and the third employer with 57 percent of the exposure on a time basis was held responsible for 35 percent. If the period during which the worker was exposed to excessive dust was the only relevant factor, these apportionments could not be supported but other factors are also relevant.
25 One matter relied upon by the appellants related to the date when the worker's PMF was first detected or diagnosed. The trial Judge found that this occurred in 1982 relying on Dr Field's report to the Dust Diseases Board of 24 December (223). He said:
"There is some reference in Dr Field's report of serial X-rays between 1971 and 1982 which to the doctor reveals steady progression of the PMF. Dr Field did not give oral evidence in this case. I have already referred to his report … regarding the diagnosis and its cause. No other X-rays other than the two referred to in Dr Field's report have been observed by any other medical practitioner. There is no explanation as to whether or not Dr Field is referring to two X-rays or more than two X-rays in his report. As Dr Gianoutsos indicated … Dr Field may have been saying that the plaintiff had nodular disease at the outset and that the nodular disease progressed in terms of the areas of nodulates coalescing together. Although it is open to submit that the PMF was present at the time of the diagnosis in 1971, I conclude that on the basis of the preponderance of medical evidence that the PMF was first observed and diagnosed in 1982 as a consequence of the X-rays of 28 October 1982. Dr Field was not called to elaborate or to confirm the existence of more than two X-rays. It is clear to me as I have indicated that when he refers to serial films he refers merely to the films of 11 June 1971 and 28 October 1982".
26 We cannot agree with the Judge's conclusions on this question. The letter was tendered by Mr Little for the third employer from the file of the Dust Diseases Board on 16 December 1992 (original appeal books volume 1/220) "in respect of the limitation question only" (222) because the history was relevant to the plaintiff's knowledge (221). No one required Dr Field to be called to give oral evidence, and no one sought to tender additional documents from the Dust Diseases Board file. Mr Little had earlier (3 December 1992) cross-examined Dr Gianoutsos about some of the statements in the letter (110-12) but the doctor was never shown the letter itself, and there was no re-examination.
27 In these circumstances Dr Gianoutsos's speculations about the meaning of the letter are not entitled to any weight, and this Court must interpret it for itself, being, in this respect, in as good a position as the trial Judge. Dr Field conducted exercise and lung function tests on the worker on 21 December 1982. He referred to these and continued:
"Serial films from 11.6.1971 to 28.10.1982 reveal steady progression of the massive fibrosis with a reduction in lung volume and, to a large extent, disappearance of the background nodulation … On the information available to me I conclude that his pulmonary lesion is due to progressive massive fibrosis caused by exposure to silica during the course of his employment".
28 In our judgment this cannot be read as a reference to x-ray films taken only on 11 June 1971 and 28 October 1982. Dr Field speaks of "serial films" which indicates, on the dictionary meanings of "serial", more than two, and these are "from" 11/6/71 "to" 28/10/82 and not simply "of" those dates. The films are said to reveal "steady progression" of the PMF which can only mean that other films taken within that period had also been seen which revealed both the progression and the steadiness of its development.
29 The letter, in our opinion, is totally inconsistent with the view that the worker's PMF had only commenced a short time before December 1982. However it does not establish that he was suffering from PMF in June 1971. It is entirely possible that the PMF was not visible in the earliest x-rays, and only appeared later in the series, and then steadily progressed to October 1982. There is no evidence as to the dates of the other x-rays in the series, or as to the Board's practice in monitoring the condition of dust affected workers.
30 This interpretation of the letter is supported by the evidence that the worker's condition was being monitored by the Dust Diseases Board. His condition was diagnosed in 1971 when he first consulted the Board, and was assessed as having a 10 percent disability. In 1978 he was assessed as having a 40 percent disability, and in 1982, 50 percent.
31 No one took the point that the report of Dr Field was not in evidence on the issue of damages and all parties appeared to have treated it as available for that purpose. There is no record of it having been re-tendered on the issue of damages, but it is possible that this did occur and was not formally recorded. Whatever the strict position may have been all parties, including the Judge, acquiesced in the new trial being conducted on the basis that this letter was available to the defendants.
32 However this conclusion does not invalidate the Judge's apportionment. The Court cannot make a finding as to when the PMF was first apparent in the worker's x-rays, although it must have been well before 1982. His employment with the second employer ceased on 31 March 1973, but on 1 July 1972 he ceased working full time in the factory and began to work as a truck driver. He was employed as a truck driver by the third employer from 1 April 1973 to 15 August 1986. His work as a truck driver reduced, but did not eliminate, his exposure to dust. The loading and unloading of his truck generated dust and loading occurred in a loading dock which was exposed to dust from the factory. He also worked in the factory on Saturdays for three years, and at other times when his truck was being serviced, or for other reasons.
33 The Judge found that the worker was exposed to very high levels of silica dust while employed full time in the factory by the first and second employers, and to significant levels of dust while employed by the second and third employers as a truck driver. These findings were not challenged.
34 The plaintiff was diagnosed as having a 50 percent disability in 1982. In 1985 he had a 60 percent disability and then in 1986 first 70 percent and shortly afterwards 100 percent. He retired from the workforce in August. In his second decision the Judge found that the prognosis for silicosis is idiosyncratic and unpredictable. However if there is continued exposure to silica this would "materially contribute to the disease and its progression", and the rate of progression will be increased. Continuous exposure in someone who already has an established disease worsens the problem as the lungs take on an extra burden of silica. Both the amount and the period of further exposure are significant.
35 Once PMF is contracted it will inevitably progress, although the rate of progression will vary with the individual. Dr Joseph, called by the third employer, confirmed the significance of the worker's exposure from 1972 to 1981, saying that all exposure had been significant, and that the total dose of dust was important and materially contributed to the PMF. The dust therefore has a cumulative effect on the lungs. According to Dr Gianoutsos the worker's continued exposure to silica accentuated and aggravated his problems. The fact that the PMF developed some time before 1982 does not affect these findings because it cannot be found to have developed before the worker commenced with the third employer on 1 April 1973.
36 The exposure to dust during his employment with the first employer ceased in 1969 and by itself may not have been sufficient to cause silicosis, let alone PMF. Silicosis was diagnosed in June 1971 but at that stage the worker's disability was only 10 percent. His continuing exposure during employment with the second employer, building on his earlier exposure, was sufficient to cause silicosis and the worker experienced his first symptoms in 1972 (AB 52). The Judge's award for past economic loss dated from 1 July that year. The causative potency of the worker's heavy exposure with the second employer was significant as it had a cumulative effect on his earlier exposure, triggered the onset of his silicosis, and also had a catalytic or compounding effect. The causative potency of his exposure with the third employer was much less because the degree of exposure was much less, although that lesser exposure continued for a long time and also had a catalytic or compounding effect on the result of his earlier exposures.
37 Mr Hoeben submitted that the culpability of all the employers was the same but we cannot agree. Safety standards in this industry should have been rising with growing awareness of the hazards of exposure to excessive dust. His employment with the first employer from October 1953 to March 1955, and from July 1957 to July 1962, was relatively early and his employment with the others was significantly later. The worker was diagnosed with silicosis on 11 June 1971, which ought to have alerted the second employer to the need to take additional precautions in general, and to take additional precautions for the safety of this worker in particular. Compare Paris v Stepney Borough Council [1951] AC 367. Nothing was done until July 1972 but even then significant exposure continued. Nothing was done by the third employer to improve dust conditions during the long period from April 1973 to August 1986.
38 The Judge had to weigh all these factors to arrive at an apportionment, and given the different culpabilities and causative potencies of the conduct of the three employers we have not been persuaded that his apportionment was beyond the range of a sound exercise of his discretion. See The Macgregor [1943] AC 197, 201. We would therefore dismiss the appeals on this issue.
39 In our opinion the appeals should be allowed in part, the assessment of $405,400 should be set aside, and an assessment of $318,748 substituted to reflect the deductions of $41,921; $5,103, and $39,628 previously referred to. The judgments against the second and third employers should be set aside and several judgments entered for $191,248.80 against each of them as concurrent tortfeasors, a several judgment for $57,374.55 entered against the second employer, and a several judgment for $44,624.65 against the third employer in each case as consecutive tortfeasors.
40 The appellants have succeeded in reducing the judgments against them by substantial amounts. However the second employer obtained leave to appeal out of time at the hearing, and the third employer then obtained leave to add the ground of appeal relating to the period for which future pension payments should be deducted.
41 The Judge did not direct the entry of judgment in favour of the worker as from the date of his original judgment as he was bound to do, having regard to the death of the worker and the orders made by the High Court. See Wing Lee v Lew [1925] AC 819. The formal judgment was not taken out and included in the appeal book. The form of the Judge's direction for the entry of judgment probably deprived the worker's estate of interest on the judgment from 22 December 1992, when the first judgment was entered, to 27 September 1996 and may have had other consequences. The Court drew this matter to the attention of the parties, and agreement was reached on the appropriate form of judgment which secured the estate's entitlement to interest from 22 December 1992, rendering unnecessary a cross-appeal out of time by the administratrix.
42 The bulk of the hearing time was taken up with the appellants' challenges to the finding that the PMF was a separate condition, and the apportionment for the silicosis on which they were unsuccessful. Each employer was a disputing respondent to the others' appeal on the apportionment issue. Taking all these factors into account, we would order that each appellant pay one third of the costs of the administratrix, and that there be no other orders as to costs.
43 The orders we would propose are therefore:
(1) Appeals allowed;
(2) Set aside the assessment in the Dust Diseases Tribunal of
the damages payable to the worker of $405,400 and
substitute an assessment of $318,748;
(3) Set aside the judgments entered against the first and
second appellants in the Dust Diseases Tribunal except
as to costs and substitute in favour of the worker:
(a) several judgments for $191,248.80 against
both appellants as concurrent tortfeasors,
(b) a several judgment for $57,374.55 against
the second appellant (the second employer),
as a consecutive tortfeasor,
(c) a several judgment for $44,624.65 against the
first appellant (the third employer) as a
consecutive tortfeasor,
with effect from 22 December 1992.
(4) The first and second appellants are each to pay one third of the
costs of the first respondent, the administratrix of the estate of
the deceased worker of the appeals;
(5) Otherwise no order as to costs.