Supreme Court of WA|2003-12-19|Before: Mr J, Ms J, Barker J

Hendrika Misiani (As Executor of the Will of Alfredo Antonio Misiani (Dec)) v Welshpool Engineering Pty Ltd 008 669 421 (In Liq) & Anor [2003] WASC 263 (19 December 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HENDRIKA MISIANI (As Executor of the Will of ALFREDO ANTONIO MISIANI (DEC)) -v- WELSHPOOL ENGINEERING PTY LTD 008 669 421 (IN LIQ) & ANOR

BETWEEN : HENDRIKA MISIANI (As Executor of the Will of ALFREDO ANTONIO MISIANI (DEC))

AMACA PTY LTD 000 035 512 (Formerly JAMES HARDIE & COY PTY LTD)

Survival action under Law Reform (Miscellaneous Provisions) Act 1941 (WA) by plaintiff widow on behalf of estate of deceased - Claim for damages by plaintiff as "relative" under Fatal Accidents Act 1959 (WA) - Whether each defendant wrongfully exposed deceased to asbestos in workplace - Whether injury from disease of mesothelioma foreseeable by first defendant in period between 1963 and mid1968 - Whether duty of care to deceased breached by each defendant - Whether each defendant "caused or materially contributed to" the deceased's mesothelioma - Assessment of damages in survival action - Assessment of damages in Fatal Accidents Act claim

Contribution proceedings between defendants under Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) - Question of contributions as between defendants

In action between plaintiff and defendants: judgment for the plaintiff against each defendant

In contribution proceedings: order that second defendant should recover contribution from first defendant in respect of plaintiff's damages in the proportion 97:3

First Defendant : Mr M H Zilko SC & Mr M A McAuliffe

Second Defendant : Mr G M Watson SC & Ms J M Kubacz

Australian Iron & Steel Ltd v Connell [1959] HCA 54; (1959) 102 CLR 522

Bale v Seltsam Pty Ltd, unreported; Qld CA; 8 March 1996

Bale v Seltsam Pty Ltd, unreported; SCt of Qld; 14 December 1995

Bevan v Amaca Pty Ltd, unreported; NSWDDT; 24 October 2001

Brennan v James Hardie & Coy Pty Ltd, unreported; NSWDDT; 2 March 2001

Chandler v Water Corporation [2001] WASC 166

E M Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434

Edwards v James Hardie, unreported; NSWDDT; 30 November 2000

Imperial Chemical Industries of Australia & New Zealand v Murphy (1973) 47 ALJR 122

Lock v Lock [2001] WASCA 20

Margerson v J W Roberts Ltd, unreported; UKCA; 2 April 1996

McGhee v National Coal Board [1972] UKHL 7; [1973] 1 WLR 1

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Murfett v Wallaby Grip Ltd (2000) 20 NSWCCR 638

Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423

New Zealand Insurance Co of New Zealand v Espagne [1961] HCA 15; (1961) 105 CLR 569

Nicholson v Atlas Steel Foundry & Engineering Co Ltd [1957] 1 WLR 613

Panizza v Amaca Pty Ltd, unreported; NSWDDT; 4 July 2001

Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Seltsam Pty Ltd v Minahan (1996) 13 NSWCCR 410

Smith v Sydney Water Corporation Ltd, unreported; NSWDDT 20 December 2000

St George Club Ltd v Hines (1961) 35 ALJR 106

Sturch v Willmott [1997] 2 Qd R 310

Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424

Wallaby Grip Ltd v Peirce [2000] NSWCA 299

Wright v Dunlop Rubber Ltd (1972) 13 KIR 255

1 On 9 July 2002, at St John of God Hospital, Subiaco, Western Australia, Alfredo Antonio Misiani (the deceased) died. His death was as a result of the asbestos-related disease known as mesothelioma. He was 54 years of age, having been born on 18 March 1948.

2 Prior to his death, the deceased commenced an action for damages in negligence against each of the first defendant and the second defendant. He alleged that each of the defendants had negligently exposed him to inhalation of asbestos in his work. Following the death of the deceased, Hendrika Misiani (the plaintiff), his widow and executor of his estate, maintained the action against each of the defendants.

(1) damages and interest thereon under the Law Reform (Miscellaneous Provisions) Act 1941 (WA) on behalf of the estate of the deceased (the Law Reform Act claim); and

(2) damages and interest thereon under the Fatal Accidents Act 1959 (WA) on her own account (the Fatal Accidents Act claim).

4 Each of the defendants denies that it is liable to pay damages in negligence and further disputes, in any event, the quantum of damages claimed by the plaintiff.

5 Each defendant has filed a notice of indemnity or contribution against the other, claiming that if any liability is found against it in respect of the plaintiff's claim, it is entitled to an indemnity or a contribution from the other pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) in respect of such liability, on the ground that the other, by its negligence, wholly caused or contributed to the damage suffered by the plaintiff.

6 Despite the position taken in the pleadings by the second defendant in which it formally denied negligence, as well as material facts, including that the deceased died as a result of mesothelioma, the position it took on the opening of the trial was different. The second defendant, by its written opening submissions, and also by Senior Counsel in his oral opening, acknowledged that the deceased died as a consequence of contracting mesothelioma, a disease associated with the inhalation of asbestos fibres and dust.

7 The second defendant contended from the outset that the real issue in the action is the allocation of legal liability, that is, whether the first defendant or the second defendant or both should be held liable. The second defendant seeks a finding that it is not liable to pay damages to the plaintiff and as a correlative the first defendant should be found liable for damages to the plaintiff. Senior Counsel for the second defendant submits that the facts, and medical and scientific evidence, all point overwhelmingly to the conclusion that the cause of the mesothelioma suffered by the deceased was attributable to his asbestos exposure while employed by the first defendant.

8 By contrast with the position taken by the second defendant, the first defendant, apart from acknowledging soon after the opening of the trial that the deceased had died from mesothelioma, put in issue virtually every material fact going to the question of liability as well as quantum. The first defendant denied it owed any relevant duty of care to the deceased, let alone had breached it.

The deceased's relationship with first defendant and second defendant

9 In 1963, the deceased commenced working for Tomlinson Steel Ltd (Tomlinson Steel), the name by which the first defendant was formerly known at material times until 30 July 1985. He completed three months probation as a junior worker before commencing and completing a five-year apprenticeship as a boilermaker/welder. On completion of his apprenticeship, the deceased stayed on with Tomlinson Steel as a qualified boilermaker/welder for a few months. This suggests the deceased was employed by Tomlinson Steel for about five and a half years - at least until about mid-1968.

10 As I will explain in more detail later in these reasons, there is little reason to doubt that, during this five and a half year period between about 1963 and mid-1968, the deceased was exposed to raw asbestos fibres and asbestos dust in his workplace at Tomlinson Steel.

11 From about 1978 until about 1996, the deceased operated in partnership a business known as Steelstruct Engineering (Steelstruct). At material times in a four to five-year period from 1978, the deceased carried out a considerable amount of work on behalf of Steelstruct at the factory premises of the second defendant, then known as James Hardie & Coy Pty Ltd (James Hardie), at Welshpool and Rivervale, Western Australia.

12 The deceased was exposed to asbestos dust at the premises of the second defendant.

13 Questions arise, and are considered further below, concerning the nature and extent of the deceased's exposure to asbestos in each workplace.

14 Negligence is a separate tort. In Lochgelly Iron & Coal Co Ltd v McMullan [1933] UKHL 4; [1934] AC 1 at 25, Lord Wright in the House of Lords stated:

"In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing."

15 It is accepted that an employer owes a worker a duty of care. At material times, both the first defendant and the second defendant owed the deceased a duty of care in relation to the work he carried out at the respective workplaces of the defendants.

16 In Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, at 25, Dixon CJ and Kitto J in a joint judgment recognised the duty in these terms:

"In the present case the defendant is on any footing answerable for a failure in due care on the part of the leading hand or of the foreman who left the plaintiff under his orders. The duty, to whomever it falls to discharge it, is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of each case." [footnotes omitted]

17 This duty is often referred to as a non-delegable duty. The origins and nature of a non-delegable duty were recently discussed in New South Wales v Lepore (2003) ALJR 558; [2003] HCA 4. Each member of the Court in Lepore recognised that a non-delegable duty is owed by a master to a servant in relation to a safe system of work.

18 In a joint judgment, Gummow and Hayne JJ, at [254], confirmed the concept of a non-delegable duty in the terms described in the joint reasons of five members of the Court in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 at 550:

"It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor";

and stated that they would add "a qualified and ostensibly competent employee".

19 Their Honours there also noted that in the joint judgment in Burnie Port Authority, the Court went on to say, at CLR 550:

"In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and 'more stringent' kind, namely a 'duty to ensure that reasonable care is taken'. [footnote omitted] Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken."

20 Their Honours also emphasised, at [257], that a duty to ensure that reasonable care is taken is a strict liability and added:

"There is a breach of the duty if reasonable care is not taken, regardless of whether the party that owes the duty has itself acted carefully. Not only is the liability strict, it can be seen to be a species of vicarious responsibility. Employers ... all of whom owe a non-delegable duty, will be held liable for the negligence of others who are engaged to perform the task of care for a third party - no matter whether the person engaged to provide the care is a servant or an independent contractor."

21 In the present case, Tomlinson Steel plainly owed the deceased a non-delegable duty to provide a safe system of work and to protect him from foreseeable risk of injury. The fact that much of the work involving the use of asbestos was carried out by Ceiloyd Pty Ltd, an independent contractor engaged by the first defendant, is neither here nor there.

22 So far as James Hardie is concerned, while it was not the employer of the deceased at material times, it nonetheless was in a proximate relationship with him, as a member of Steelstruct, because it engaged his firm by contract to carry out works on the premises of James Hardie. James Hardie plainly owed to the deceased a duty to take reasonable care to avoid exposing him, in the course of satisfying his contractual obligations to James Hardie (whether on James Hardie's premises or elsewhere), to unnecessary risk of injury.

23 In this case, the second defendant accepts that, at all material times, it owed the deceased a duty of care in these terms; and, in particular, not to expose him to asbestos fibres or dust in circumstances in which he may contract the disease of mesothelioma.

24 The first defendant, however, while accepting it owed the deceased a general duty of care in the workplace denies that it owed him a more particular duty not to expose him to asbestos in circumstances in which he might contract an asbestos-related disease, essentially because it says such a particularised risk was not foreseeable.

The question of foreseeability and Tomlinson Steel

25 In this case, the first defendant, but not the second defendant, pleads in substance that no reasonable employer in the position of Tomlinson Steel at material times could have foreseen the risk of injury to the deceased from exposure to asbestos of which the plaintiff now complains.

26 In Blyth v Birmingham Waterworks Co [1856] EngR 223; (1856) 11 Exch 781, at 784, Alderson B stated:

"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

It is generally accepted that the legal standard is not that of the particular defendant, but that of a person using "ordinary care and skill" (Heaven v Pender (1883) 11 QBD 503, at 507, per Brett MR), or a "hypothetical" person (King v Phillips [1953] 1 QB 429 at 441, per Denning LJ). In Glasgow Corporation v Muir [1943] UKHL 2; [1943] AC 448, at 457; [1943] UKHL 2; (1943) 2 All ER 44, at 48, Lord Macmillan said:

"The standard of foresight of the reasonable man ... eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question."

However, it is sensible to observe that the definition of the reasonable person is not complete unless the words "in the circumstances" are embodied: see Glasgow Corporation v Muir (supra) at 457. Thus, it may be accepted that the test is not wholly objective and the boundary between the external facts and the qualities of the actor is ill-defined: see Balkin and Davis, Law of Torts, 2nd ed Butterworths 1996 at pp 266 - 267.

27 When the question of expert knowledge arises as to the foresight of the reasonable person, the test is usually accepted to be whether the defendant took adequate reasonable precautions in the light of the state of medical, scientific or technical knowledge prevailing at the time of the accident: Footner v Broken Hill Associated Smelters Pty Ltd (1983) 33 SASR 58; Dwan v Farquhar [1988] 1 Qd R 234.

28 In CSR Ltd v Wren (1997) 44 NSWLR 463, the New South Wales Court of Appeal considered whether the risk of mesothelioma was foreseeable in light of prevailing knowledge. Beazley JA and Stein JA, in a joint judgment, had regard to prevailing knowledge of dangers of asbestos in the material period from early to mid-1950 until early to mid-1951 when the plaintiff was exposed to asbestos in his workplace by his employer, Asbestos Products Pty Ltd. The trial Judge held that, as a matter of fact, prior to the plaintiff's employment, there was sufficient material in CSR's library which was also available to its subsidiary Asbestos Products Pty Ltd to make each of them aware that asbestos dust was dangerous and that it was a carcinogen. Counsel for the employer challenged this finding on the basis that it was not clear on the evidence when CSR obtained the publications relevant to the issue, and that there was no evidence that CSR had, in fact, had access to various reports which referred to the dangers. It was submitted that the law of negligence did not import a concept of constructive foreseeable knowledge. Their Honours disagreed and stated, at 477, as follows:

"If there was information readily available to participants in the industry that exposure to asbestos carried with it a risk of injury, the mere failure of that participant to have been aware of it does not mean that the risk was not foreseeable. In our opinion, the available literature was such that the risk of injury from exposure to asbestos was foreseeable at the time of Mr Wren's employment."

29 In the present case, the plaintiff submits that Tomlinson Steel had direct knowledge of the hazards of asbestos exposure prior to and during the course of the deceased's employment. She also submits that, whether or not Tomlinsons had the direct knowledge contended for, in the light of medical, scientific and technical knowledge and information prevailing and available to industry participants at the material time of the deceased's employment with Tomlinson Steel, Tomlinsons did not take adequate and reasonable precautions to ensure the deceased was not exposed to asbestos in his workplace.

30 It should be observed at this point that, so far as the requirement of foreseeability is concerned, it is not necessary that a reasonable employer foresee the precise injury which an employee later suffers if the injury is within a class of injuries that is foreseeable. In Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 390, Barwick CJ dealt with a submission that it was not foreseeable that, as a result of an electrical failure, a worker might suffer schizophrenia. The employer relied on the evidence of medical practitioners which said that the particular injury of the respondent was a rare consequence or reaction to follow emotional excitement or stress and that an experienced psychiatrist had seen only one other case like of that of the worker in his 18 years as practice as a specialist. Barwick CJ noted that the practitioner insisted that, though unusual, a reaction such as that of the worker to such an experience as he had had, was not "unexpected". The Chief Justice, at 390, added:

"But the rarity of such an injury in the circumstances does not in my opinion deny the foreseeability of an injury of the class of which it forms one. That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established. (See eg Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at p 115.)"

31 This same notion of foreseeability was confirmed in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. Mason J, at 47, stated:

"A risk of injury which is quite unlikely to occur ... may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable."

32 In this case, as explained further below, the evidence shows that the first defendant did have knowledge and advice that the exposure of persons employed by it to asbestos could result in injury.

33 Further, the evidence shows that the first defendant did not take adequate and reasonable precautions to ensure the safety of the deceased in his workplace, in light of the medical, scientific and technical knowledge and information prevailing and available to it at material times.

34 The obligation of an employer to protect employees from the hazards of inhalation of dust on industrial premises has long been recognised: Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613. The risk of asbestos-related disease from occupational asbestos exposure has been known about since at least 1898. An extensive body of literature was adduced in evidence in this action and referred to in the expert evidences of Dr James Leigh, a medical practitioner and director of the Centre for Occupational and Environmental Health of the University of Sydney, Michael Kottek, occupational and environmental health consultant, Gordon James Stewart, industrial chemist and industrial hygiene consultant of some 50 years' standing (as well as an industrial ventilation engineer of about 30 years' experience), Anne Cameron Batt, retired librarian holding a Master of Applied Science (Library and Information Studies) with some 30 years' experience - all qualified by the plaintiff, and Dr James Columba McNulty AO, Fellow of Curtin University of Technology, Western Australia, and, amongst other things, former physician Occupational Health, Public Health Department, Western Australia and Commissioner of Public Health, Western Australia, and Janet Melville Sowden, occupational hygienist with some 30 years' experience, each of whom was qualified by the first defendant.

35 In summary, in 1922 the Commonwealth Health Department published information concerning the risk. By the 1950s, management and factory journals carried information to industry of the risks. In 1957, an article in the Medical Journal of Australia by an occupational physician in Victoria adverted to the risk to workers involved in mixing raw asbestos in form lagging material and of spraying. By 1960, it was known that asbestos could cause asbestosis, lung cancer and mesothelioma. By the time the deceased commenced work with Tomlinson Steel, crocidolite (blue asbestos) was known to be a particular risk of mesothelioma. Dr McNulty published on that precise hazard in 1962. In 1964, an international conference in New York was presented with the latest research into such risks. In that year, the British Medical Journal also published an editorial identifying the risks and summing up the knowledge available to that point. In 1965, a case where a woman contracted mesothelioma from washing her husband's work clothes was published in the medical literature. In my view, while this literature was not to be found in the library or boardroom of Tomlinson Steel at material times, it was available to participants in its industry, not least through the State Health Department and factories inspectorate.

36 The direct knowledge of Tomlinson Steel: In about early 1968, the deceased was close to completing his five-year apprenticeship with Tomlinson Steel. When he did so, the deceased continued to work for Tomlinson Steel for about another three months. This suggests he was with Tomlinson Steel from about early 1963 to at least mid-1968.

37 By letter dated 30 April 1968, that is, within the deceased's period of employment, Dr McNulty, of the Department of Public Health of the government of Western Australia, wrote to Tomlinson Steel concerning "Asbestos Spraying of Boilers". He informed the company that:

"The spraying of boiler heads with blue asbestos at your premises raises much fine dust which blows into a large workshop where other men are working.

There is considerable ground contamination, which blows about freely and slowly breaks up providing a long term source of air-borne fibre. This would be highly undesirable and a health hazard to the sprayer, and other employees, if any kind of asbestos was used - but the problem is very much more serious with blue asbestos.

The use of blue asbestos at all should be minimised, or avoided completely. If it is to be used, spraying should be done only into an exhausted booth, over-spray trapped, subsequently removed and satisfactorily disposed of. Good housekeeping is essential and waste and spilt fibre must be cleaned up and similarly disposed of.

The sprayer should be protected by an air-supplied hood and care taken to avoid carrying fibre in his hair and clothing during the working day, and from work place to home, etc., as is now the case."

38 The Production Manager of Tomlinson Steel replied to the Commissioner of Public Health by letter dated 8 May 1968 and acknowledged the advice and stated that "steps are being taken to provide the necessary protection for operators".

39 A subsequent report of an Inspector to the Chief Inspector of Factories of the government of Western Australia dated 9 July 1968 noted as follows:

"Although the spraying now takes place in a booth, no attempt is made to trap the over-spray, and a positive pressure air helmet is not being used. At the time of the inspection a worker was scraping a mixture of paint and presumably asbestos fibre from the walls of the booth and was wearing no protective equipment whatever.

It appears to be that Tomlinsons are endeavouring to pass responsibility to the sub-contractors - Ceiloyd Pty Ltd, but whatever the reason, Dr McNulty's recommendations are not being properly carried out, as the over-spray is allowed to discharge into the air and a positive pressure air helmet is not provided.

You will note from the hereunder copy of a letter sent from Tomlinsons to Ceiloyds, that no mention is made of trapping overspray that goes up the ducting and into the atmosphere, and in point (3) of the letter, mention is made of a 'respirator', and not a positive pressure air helmet."

40 A further report of the Inspector to the Chief Inspector dated 22 November 1968 following a recent visit to Tomlinson's present premises stated:

"I have to advise that a recent visit indicated that the filters have been installed and appear to be working satisfactorily.

However I am not fully satisfied with the housekeeping standards and this was discussed together with the disposal of the filters."

41 In a further report by the Inspector to the Chief Inspector dated 21 April 1969, the Chief Inspector was advised:

"Further to your instruction hereunder these premises were revisited on 2nd April 1969. No blue asbestos spraying was taking place at the visit, but about 120 boiler heads are sprayed annually, ranging in size from 3 ft up to 8 ft with the majority being in the smaller sizes.

The booth which was originally designed as a spray paint booth is built of corrugated iron and metal decking running horizontally and it is quite a severe dust trap. I requested a complete clean up of all asbestos o/spray, and that it then to be maintained in a clean condition [sic].

However, I have some reservations about the effectiveness of the filters and how often they are changed.

It is proposed to make fairly frequent inspections to keep the matter under control in view of the verbal advice given by yourself in respect to recent information received from England."

42 In my view, the communications by Dr McNulty on behalf of the Health Department with the first defendant, not only confirms the dangerous usage of blue asbestos in its plant area, but put it on notice that the exposure of its employees to asbestos, particularly blue asbestos, put them at risk of injury. That the first defendant knew that there were risks associated with the use of asbestos at its premises may also be inferred from the letter of Tomlinson Steel and the reports of the Inspector which I have set out.

43 Some three years earlier, in 1965, Tomlinson Steel also operated its business in other Australian States, including Melbourne, Victoria. By proclamation published in the Government Gazette (Victoria) of Wednesday, July 11, 1956 (exhibit 3 item 131), "Asbestos lagging or spraying and Asbestos works or factories in which Asbestos is used, manipulated, crushed or pulverised" were declared "dangerous trades" within the meaning of the Health Act 1928 (Vic), whether ordinarily carried on in fixed premises or at varying places, unless preventive measures were adopted.

44 Tomlinson Steel, at material times between 1963 and 1973, was located in Holmes Road, East Brunswick, Melbourne, and later in larger premises which included a workshop in Lygon Street, East Brunswick. At material times, Mr Don Anderson, who had been employed by Tomlinson Steel in Western Australia, was the manager of Tomlinson Steel's business in Victoria.

45 Mr Frank Plummer was employed as a boiler serviceman for Tomlinson Steel between 1963 and 1973 in Victoria. His recollection was that Tomlinson Steel operated in Victoria after about 1960. He said the company serviced and repaired boilers, including Cleaver Brooks boilers, which had been manufactured in Perth by Tomlinson Steel.

46 In the course of servicing and repairing such boilers, Mr Plummer remembered using a "grey-blue" asbestos fibre which was supplied in large hessian bags. He explained that, when he needed this asbestos to seal up the boilers he was repairing, he would open the bag and tip the asbestos into a big plastic bucket and mix it with water until it became like the consistency of workable dough. He said he would be covered in asbestos powder when he carried out this job.

47 He also said that he used "LDR board", an asbestos hardboard. He said that he would cut this board to the shape of the boiler with a circular saw. The process of sawing the board in this way would produce a very fine "talcum type" powder. He said this was so bad, he would try and work outside in the wind with the wind blowing the powder away from him.

48 Mr Plummer said the cleaning of old asbestos from boilers was also a very dusty business. Even if the material had been hosed down with water initially, the asbestos would still float in the air.

49 Mr Plummer recalls that, in the 1960s, Tomlinson Steel also had branches in Queensland and New South Wales.

50 In 1945, the Harmful Gases, Vapours, Fumes, Mists, Smokes and Dusts Regulations 1945 were proclaimed under the Victorian Health Act in order to combat the problem of toxic matter, including dusts interacting with workers' lungs to produce general or localised injury. The maximum allowable concentrations of dust in workplace air were controlled under these regulations, including the concentrations of dust derived from silica and asbestos. The regulation required the application of ventilation to reduce exposures to below those limits required by the regulations and allowed the use of respirators for personal protection in certain circumstances. The limit of permitted exposure to asbestos dust was set at 5,000,000 particles per cubic foot (5mppcf).

51 Once the 1956 proclamation was gazetted so that the "dangerous trades" provisions of the Victorian Health Act applied, asbestos-related activities were required to be licensed.

52 At about the time of the proclamation, probably to publicise these new or impending regulations, an article authored by Dr Thomas of the Victorian Department of Health appeared in the widely-published Melbourne newspaper, "The Age". In that article, Dr Thomas drew attention to the seriously disabling outcomes that could flow from asbestos exposure and stated:

"The survey found a disturbingly high incidence of asbestosis among workers regularly handling asbestos. A third of the asbestos workers tested showed signs of development of the disease."

53 Gordon James Stewart, an industrial chemist and industrial hygiene consultant, qualified by the plaintiff, gave evidence concerning the application of the 1945 Victorian Health regulations to the asbestos-related activities described by Mr Plummer in his evidence. Early in his career, Mr Stewart was engaged by the Victorian Department of Health as a scientific officer in its industrial hygiene division. He worked in this capacity between 1953 and 1966, with an interlude of about 18 months in the early 1960s. He displayed considerable familiarity with industrial hygiene regulation practice.

54 Mr Stewart, when asked whether the work described by Mr Plummer as having taken place at the factory premises in Lygon Street, East Brunswick, would have been the subject of regulation by the 1945 regulations, answered:

"Absolutely, yes. Any process that put dust into the air of a scheduled substance, and in this case given this is asbestos dust, came under the regulations. That's for sure."

When asked specifically whether it was work that fell under the auspices of the Dangerous Trades Regulations of 1956, Mr Stewart answered:

"In my opinion, given the process as defined here, and by reference to the 1945 regulations this process could reasonably be seen as likely to become dangerous to the health of persons employed, it would certainly come under the dangerous trades and would require a declaration."

55 In my opinion, although the evidence led by the first defendant on this issue is minimal, Tomlinson Steel plainly operated in a number of Australian States at material times during the 1960s. The annual report of Tomlinson Steel for the year 1963 describes Tomlinson Steel as of "Perth, Western Australia". In the Report of Directors, the directors reported in respect of "trading" that "keenly competitive conditions were experienced in the Company's markets throughout Australia." The directors went on to report that:

"Our previously established Branch offices in Victoria and New South Wales devoted entirely to Sales and Service of our own Products being responsible for the Company's increase in marketing in those areas.

With the introduction of new Products and new machine tools greater progress is expected to be attained in the coming year as the report on the various spheres of activity will reveal."

The report of the directors in respect of "Cleaver Brooks Boilers" noted that:

"The Victorian Branch achieved more than satisfactory results and whilst the New South Wales branch was short of its target, with our increased range of products and experience gained, it is expected that the market availability in that State will prove ample reward for the efforts expended by our N.S.W. Branch."

56 This annual report identified its number of employees as 349. The last page of the report proudly pictured a "typical installation showing 300 H.P. Cleaver Brooks Boilers".

57 By 1968, the annual report of Tomlinson Steel was a little differently structured from that of 1963, but continued to report that turnover for the year comprising boiler manufacturing and general engineering was held at a satisfactory level. The report particularly noted that: "It is pleasing to report that the Tomlinson built range of C.B. Boilers continued to retain a major share of the available markets." The report showed that the company provided Cleaver Brooks boiler sales and service outlets in all States of Australia, as well as the Northern Territory. Tomlinson Steel, as a company, had premises in East Brunswick, Victoria, as well as in Marrickville, New South Wales and Launceston, Tasmania.

58 In respect of material facts, the annual reports corroborate the evidence of Mr Plummer that he serviced Tomlinson Steel's boilers in Victoria.

59 I consider it probable that, by reason of the activities of Tomlinson Steel in Victoria at material times between 1963 and 1969, Tomlinson Steel's premises were licensed under the Health Act and regulations and the company was aware that, in the State of Victoria, fixed premises, at which asbestos dust was produced and where asbestos lagging and spraying was carried out, were considered in that State to be "dangerous trades". Whatever may have been the formal state of regulatory control in Western Australia at those material times, Tomlinson Steel was aware that lagging and spraying asbestos was, to put the matter colloquially, a dangerous work practice that required precautionary work practices, because it exposed its workers to the risk of injury.

60 When the knowledge of Tomlinson Steel concerning the dangerous nature of asbestos derived from what Dr McNulty was bluntly telling it in April 1968 in Western Australia is combined with the awareness that Tomlinson Steel already had by then as a result of the conduct of its Victorian service operations, there can be very little doubt that Tomlinson Steel had direct knowledge of the dangers posed by uncontrolled exposure of it workers to asbestos.

61 Even without the benefit of its experience in trading in Victoria, Tomlinson Steel knew about the risks asbestos presented to its workers on the basis of what Dr McNulty had told it, before the deceased ceased working for Tomlinson Steel.

62 The constructive knowledge of Tomlinson Steel: In any event, the evidence of the first defendant having constructive knowledge of the risks posed to its workers by exposure to asbestos, to which I have briefly referred, is overwhelming.

63 In 1922, the Commonwealth Department of Health recognised and published the fact that exposure to asbestos dust was known to be a hazard for persons working with asbestos and that such exposures could result in severe injury.

64 In 1930, Merewether and Price provided a seminal study of the hazard of asbestos exposure in the workplace. The evidence shows that this report was in the possession of the factories inspector and Public Health Department of Western Australia by 1935. The Merewether and Price report on the effects of asbestos dust on the lungs and dust suppression in the asbestos industry is recognised as a seminal document. Dr Leigh in evidence described it as "definitive". Mr Kottek described it as "very important". Dr Leigh explained that the report was widely referred to in the medical literature. Mr Kottek explained that it was reviewed in at least nine other medical and industrial journals. Copies were sent from England to Australian Government officials at the time.

65 Merewether and Price recommended dust suppression in these terms:

"The principal methods for the control of dust are:

(a) application of exhaust draught at dust-producing points;

(b) substitution of enclosed mechanical methods for hand conveyance and for dusty handwork generally;

(c) effective enclosure of dust producing machines and plant;

(d) substitution of wet methods for dry."

66 In 1950, in Victoria these recommended methods of dust suppression were well-known to the Victorian Department of Health, as explained by Mr Stewart in his evidence.

67 By 1945, the Victorian Harmful Gases Vapours Fumes Mists Smokes and Dusts Regulations 1945 had been promulgated and dictated exposure to dust containing asbestos was to be limited to 5,000,000 particles per cubic foot, which was a level known by that time to have the appearance of clean air. The Regulations reflected the perceived need to control intermittent exposures.

68 In 1950, Dr Merewether attended the international conference of experts of pneumoconiosis held in Sydney and reported in the Medical Journal of Australia in 1950. This conference was well attended by medical persons engaged in dust disease treatment and prevention.

69 By the 1950 pneumoconiosis conference in Sydney, in addition to asbestosis and lung cancer, cancer of the pleura (mesothelioma) was regarded as a hazard of asbestos exposure.

70 At the pneumoconiosis conference, Gordon Smith from the New South Wales Department of Industrial Hygiene presented evidence as to the carcinogenic qualities of occupational asbestos exposure and the means of preventing or minimising exposure.

71 In 1954, the publication of Davie's monograph "Dust is Dangerous" reflected the belief that dust was generally bad for the lungs.

72 By 1955, lung cancer had been proven beyond doubt to be a risk of occupational asbestos exposure.

73 By January 1956, information as to the occupational hazards of asbestos had entered the public domain in Australia with an article in The Age newspaper in Melbourne, Victoria, entitled "Dust Becoming Bigger Hazard in Industry: More Workers Affected".

74 This was confirmed by the clear and direct references to the dangers of asbestos appearing in Australia-wide industrial, factory and trade journals such as "Manufacturing and Management" and "Australian Factory". The article, "Dust Hazard in Industry" in the 10 July 1956 issue of Manufacturing and Management commences with the words:

"Inhalation of large quantities of dust has long been recognised as a danger to health."

"People prone to the disease are those handling asbestos in its raw state or processing it to make lagging materials."

This journal was aimed at a readership of engineers within manufacturing or industrial concerns.

75 By 1956, the use of asbestos had been proclaimed as a dangerous trade in Victoria, pursuant to the Health Act.

76 In the Australian Medical Journal in 1957, Dr D L Thomas of the Victorian Department of Health (Industrial Hygiene Division) published an article entitled "Pneumoconiosis in Victorian Industry". Those activities linked with asbestosis in Dr Thomas' survey included mixing asbestos with other materials to form lagging and spraying asbestos on walls and ceilings as an insulator.

77 In 1960, the report of Wagner identified a large number of cases of mesothelioma that were associated with exposure to asbestos. In particular, the report demonstrated that mesothelioma could arise in people who had been exposed to a level of asbestos that would not have been sufficient to cause asbestosis.

78 In 1960, the British Medical Journal published an article "Complications of Asbestosis" in which it was said that "carcinoma of the lung is a serious and well recognised complication in asbestosis ... this rather rare tumour may draw attention to the fact that a patient has worked in asbestos dust".

79 In 1962, in Western Australia, Dr McNulty reported the case of a mill worker at the Wittenoom mine who died from exposure to asbestos. He there stated: "Experience in Western Australia certainly confirms that blue asbestos is a very harmful and lethal fibre". His knowledge is plainly reflected in his letter in 1968 to the first defendant warning of the risks of blue asbestos use.

80 As of about 1962, the literature and science concerning the dangers asbestos posed in the workplace were known to other members of the Health Department of Western Australia in which Dr McNulty was then a junior member. They included Dr King, Dr McNulty's superior at the Occupational Health Division, Dr Davidson, the Commissioner for Health and Dr Henzell, the predecessor to Dr Davidson. Dr McNulty explained in his evidence that a wide range of people, including employers, employees and unions, would contact the Occupational Health Division with queries about hazards in the workplace. Plainly, at this time, the Department of Health was known to be a repository of knowledge concerning hazards in the workplace.

81 In 1964, an editorial entitled "Asbestos and Malignancy" was published in the British Medical Journal. As Dr Leigh said in evidence, and I accept, by editorialising on the topic in the way it did, the journal's editors intended to put the issue "up front" and to have a wide dissemination.

82 In 1965, an article published by Newhouse and others in the British Medical Journal drew attention to the risk of mesothelioma from environmental levels of exposure.

83 Tomlinson Steel may also be taken to have had constructive notice of the Victorian Health Act and regulations which issue is discussed above in relation to the direct knowledge of Tomlinson Steel.

84 I am satisfied that, in all probability, if an industry participant such as Tomlinson Steel had at material times between early 1963 and mid-1968 (the period when the deceased was engaged in Tomlinson Steel's workplace) made further inquiries of the Western Australian Health Department or the factories inspectorate as to whether there were particular risks associated with asbestos dust in the workplace, it would have emphatically been advised "Yes" and apprised of or referred to a considerable volume of medical, scientific and technical literature pertaining to the topic of the nature recounted above.

85 While Tomlinson Steel appears not to have maintained an industrial hygiene library, the evidence provided to the Court by Ms Batt, which I accept, shows that there was a considerable body of such information available in encyclopaedias and dictionaries. The British Medical Journal was generally available in Australia in the 1950s and held in Western Australian libraries. It was also available from library holdings in other Australian States. Libraries in Western Australia that held relevant literature at the time included the Public Health Department, the State Library and the University of Western Australia library. Nothing in the testimony of Mrs Sowden detracts in any significant way from this view.

86 In short, information available from the medical officers at the Health Department and in scientific and medical literature at material times when the deceased was employed by the first defendant, if it had been sought by or on behalf of Tomlinson Steel, would have shown that:

(1) Asbestos dust is dangerous to health and may cause asbestosis, lung cancer or mesothelioma;

(2) the health risks associated with asbestos are serious and may be fatal;

(3) there is a dose-response relationship between asbestos and likelihood of injury;

(4) steps should be taken to minimise exposure, including suppression of dust, vacuuming, enclosing machinery, extraction, wetting down, use of respirators, informing employees of the danger;

(5) workers should be warned of the dangers associated with exposure to asbestos.

87 I have little hesitation in finding that, from the perspective of Tomlinson Steel, the risk of injury to its workers from an asbestos-related disease from exposure to asbestos in the workplace was foreseeable at material times between 1963 and mid-1968 when the deceased was employed by Tomlinson Steel.

88 It follows, in my view, that at material times the first defendant owed the deceased a duty of care not to expose the deceased to the asbestos fibres or dust in the workplace.

89 As noted above, the second defendant does not put foreseeability in issue in relation to the second period of exposure in 1978 and following.

Whether first defendant breached its duty to the deceased

90 Prior to his death, the deceased made a statement, which went into evidence in the trial, concerning the nature and length of his employment by Tomlinson Steel between 1963 and 1968. The substance of the statement of the deceased was corroborated by the evidence given at trial by Peter John Foster, who commenced his apprenticeship as a boilermaker/welder with Tomlinson Steel in 1963, at the same time as the deceased.

91 Mr Foster recalls that, at that time, Tomlinson Steel maintained a fabrication shop at Welshpool with approximately 100 employees. He said the workshop was one large building with roller doors at both ends which were usually open all day. He recalls the workshop was about 200 metres by 60 metres in size with fibro walls and roof. Wind blew into the open doors and blew loose material around the workshop.

92 Mr Foster recalls that he and the other apprentices were rotated around the workshop from section to section in the course of their apprenticeship. However, although there were different sections, all apprentices were housed in the same workshop building.

93 The workshop had a lagging section in which laggers applied asbestos to boilers for the purposes of insulation. Tomlinson Steel engaged approximately four laggers at that time. The system of rotation of apprentices meant that all apprentices spent as much as six months in the lagging section. The deceased and Mr Foster both worked in the lagging section, though not at the same time. They assisted the laggers in applying asbestos to boilers.

94 The deceased recalled that, in the first few years of his apprenticeship, he was sent to work to assist the people who mixed the asbestos which was used to line the fireboxes of the boilers. The boilers were known as Cleaver Brooks boilers, manufactured by Tomlinson Steel in Western Australia under licence. The deceased said that the fireboxes were lined with blue asbestos which came in bags and was emptied into a bucket and mixed by hand to line the fire boxes. The deceased recalled that Tomlinson Steel used to have four or five boiler heads being completed at any one time. The deceased recalled that the asbestos came in small brown bags; he remembered emptying asbestos into a bucket, adding water and mixing it by hand. Once mixed, it was applied to the boiler heads in a paste form.

95 The deceased recollected that the lagging work was "dusty and dirty" and generated "a lot of dust". He also recalled that the dust tended to circulate through the whole of the workshop.

96 Mr Foster's recollection is similar in substance to that of the deceased. He recalls that asbestos fibre was packaged in big plastic bags and was grey/white in colour. He also recalls that the asbestos fibre bags were opened and emptied by an apprentice into a 44-gallon drum in the lagging section and that this caused the fibre to "blow up" all around the person pouring it in and that it would also get caught by the wind and be blown around the factory workshop. He recalls that the asbestos fibre was mixed by hand with water into a slurry consistency. It was then manually applied around the boiler door. When the door was closed, the asbestos formed a seal.

97 Mr Foster recalls that, when he did this work, he was covered over in asbestos. He describes the effect as being "like snow all over you". He said it "went all over the floor, everywhere and was never cleaned up".

98 Mr Foster also said that after applying the lagging to the boiler heads, the apprentice would have to do other work under and around the boiler for which he had to lie on the ground. The ground was covered in asbestos fibre and when the apprentice finished that work, the fibre would be through the apprentice's clothes and hair.

99 Although Mr Foster had no personal knowledge of the deceased's experiences in the lagging section at Tomlinson Steel, he did see other apprentices engaged in the same tasks that he had performed.

100 Mr Foster said the asbestos with which the apprentices worked was in a fibre form and not cement powder. He understood the fibre was asbestos.

101 I have no doubt, on the basis of the statements of the deceased adduced in evidence in these proceedings, corroborated in substance by the evidence of Mr Foster, that during the period the deceased worked for Tomlinson Steel between 1963 and 1968, he was exposed to the risk of inhalation of asbestos and that, in all probability, he inhaled asbestos at some time during that period of employment.

102 This conclusion is, to my mind, strongly supported by other evidence adduced on behalf of the plaintiff at trial. For example, Jack Samuel Pryce gave evidence concerning his employment as an asbestos sprayer for a company called Ceiloyd Pty Ltd (Ceiloyd) between 1956 and 1966. Ceiloyd was contracted by Tomlinson Steel to perform this work. One of his regular jobs was to go to Tomlinson Steel's premises in Welshpool to spray asbestos on to the boilers.

103 Mr Pryce recalls that, when he first commenced employment with Ceiloyd, he carried out the asbestos spraying work at Tomlinson Steel's foundry in East Perth. However, the work shifted to the company's Welshpool premises because there was insufficient room at that foundry. Up until 1966, when he finished with Ceiloyd, he recalls going to the Tomlinson Steel premises in Welshpool regularly - about once a month - to carry out asbestos spraying work.

104 Mr Pryce was adamant that the asbestos used for spraying was blue asbestos. He is definite about this because he says that is what the job required. Ceiloyd apparently supplied the bags of blue asbestos, although Mr Pryce did not know from where it originated, and they were stored at Tomlinson Steel's premises. He was never involved in ordering the asbestos.

105 Mr Pryce recollects that the blue asbestos was supplied in hessian bags which were themselves dusty and the contents of which were quite lumpy. He describes the spraying equipment as consisting of a hopper into which asbestos was manually emptied. Inside the hopper, a belt picked up the asbestos and teased it. The teased asbestos dropped to the bottom of the hopper where a blower blew it out through a hose. As the teased fine asbestos was blown out of the end of the hose, high pressure water also sprayed out and the asbestos and water were thus sprayed onto the surface being sprayed.

106 Mr Pryce said this process created a lot of dust. He explained that not all of the asbestos was caught by the water jets and some always drifted off as dust.

107 Mr Pryce recalls that most of the time he went out to Tomlinson Steel's premises he went on his own without an offsider.

108 Mr Pryce recalls that at some point Tomlinson Steel workers complained to the company about the asbestos dust and he recalls being moved to the south end of the workshop. However, this did not solve the dust problem in his opinion because the workshop was like a wind tunnel and the dust from the asbestos spraying became an even bigger problem. However, he left Ceiloyd soon after these complaints and does not know what, if anything, occurred in response to the complaints.

109 Ron Hall was also called to give evidence on behalf of the plaintiff. He worked as an asbestos sprayer for Ceiloyd between 1959 and 1970 and attended at the Tomlinson Steel premises at Welshpool regularly as part of his job.

110 Mr Hall explained that he worked in the middle of the workshop and that there was no special room or enclosure where the spraying took place. In his view, all of the workers in the Tomlinson Steel workshop "copped the dust when we did our spraying".

111 He also held the view that the asbestos used at the Tomlinson Steel premises was blue asbestos, such asbestos being necessary for heat insulation.

112 Milan Chaloupka, who was employed by Tomlinson Steel at material times and eventually held the position of Production Controller at the Welshpool premises, was called to give evidence on behalf of the first defendant.

113 Mr Chaloupka confirmed that spraying work was done by contractors for the company. He agreed that lagging work was done by apprentices and agreed that Mr Foster's evidence concerning apprentices assisting with the lagging process was correct. Mr Chaloupka also confirmed that blue asbestos was used at the premises.

114 Mr Chaloupka recalls that the workshop at the Welshpool premises had three bays. He said there were no divisions or partitions between the bays because overhead cranes needed to pass from one side of the structure to the other, although he recalls that in earlier years asbestos spraying was carried out in an area along the north-west wall of the boiler workshop and he thought this area has been partitioned off from the rest of the workshop by corrugated iron sheeting. However, when pressed in cross-examination, he was prepared to concede that, if there was evidence from others that lagging took place in a central bay of the workshop, this could be true. While he was not confident in his recollections generally, Mr Chaloupka did recall that the spraying with blue asbestos "raised a dust".

115 Dr James McNulty, who at material times was a young medical officer with the Department of Health for the State of Western Australia, had occasion to visit the premises of Tomlinson Steel at Welshpool in April 1968 to ascertain whether there were any occupational health hazards. He noted Ceiloyd's activities, that involved spraying blue asbestos in the workshop, which "raised fine dust which blew into the workshop". He also noted ground contamination which provided "a long-term source of airborne fibre".

116 In a letter dated 30 April 1968 from Dr McNulty to Works Manager, Tomlinson Steel, Planet Street, Carlisle (the same premises as those generally described as being at Welshpool), Dr McNulty addressed the matter of "Asbestos Spraying of Boilers". He noted that the spraying of boiler heads with blue asbestos at the premises "raises much fine dust which blows into a large workshop where other men are working". He also noted considerable "ground contamination" which blows about freely and slowly breaks up providing a long-term source of airborne fibre". Dr McNulty specifically warned the company that:

"The use of blue asbestos at all should be minimised, or avoided completely. If it is to be used, spraying should be done only into an exhausted booth, over-spray trapped, subsequently removed and satisfactorily disposed of. Good housekeeping is essential and waste and spilt fibre must be cleaned up and similarly disposed of.

The sprayer should be protected by an air-supplied hood and care taken to avoid carrying fibre in his hair and clothing during the working day, and from workplace to home, etc., as is now the case."

Hendrika Misiani (As Executor of the Will of Alfredo Antonio Misiani (Dec)) v Welshpool Engineering Pty Ltd 008 669 421

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (569 paragraphs)

Hendrika Misiani (As Executor of the Will of Alfredo Antonio Misiani (Dec)) v Welshpool Engineering Pty Ltd 008 669 421 (In Liq) & Anor [2003] WASC 263 (19 December 2003)

The deceased's relationship with first defendant and second defendant

The question of foreseeability and Tomlinson Steel

Whether first defendant breached its duty to the deceased

Whether the second defendant breached its duty of care to the deceased

Whether each defendant caused or materially contributed to the mesothelioma

Apportionment of liability between first defendant and second defendant

The Law Reform Act claim - Plaintiff's claim for damages on behalf of the estate of the deceased

Fatal Accidents Act claim - Plaintiff's claim for damages as a "relative"

Capital losses on sale of Bullsbrook property

Summary of damages awarded in respect of the Fatal Accidents Act claim

Parties

Legislation Cited (8)

Cases Cited (46)