plaintiff. Judgment for the plaintiff against Allianz for $14,173.51, against WorkCover for $57,706.43, against Wallaby Grip for $29,359.41 in respect of divisible asbestosis damages, and joint and several...
Key principles
In cases of asbestos-induced lung cancer, where the disease is indivisible and caused by the cumulative effect of biopersistent fibres from multiple exposures, each exposure that...
The presence of asbestosis serves as a marker of substantial asbestos inhalation, supporting findings of inadequate respiratory protection and breach of duty by employers in...
It is not necessary in such cases to prove that a particular employer's exposure doubled the background risk of lung cancer using epidemiological thresholds such as the Helsinki...
Foreseeability of the risk of lung cancer from visible asbestos dust in spraying operations was established by 1964, and the failure to provide effective cartridge masks,...
Issues before the court
Whether the plaintiff's evidence satisfied the but-for test of causation for lung cancer in respect of each discrete period of employment
Plain English Summary
Mrs Sim sued several insurers and an employer because her husband David inhaled massive amounts of asbestos dust while spraying insulation between 1964 and 1979. He developed severe asbestosis and then died from lung cancer. The court decided that every period of work added fibres that stayed in his lungs and kept damaging cells over decades, so each employer was partly responsible for the cancer even though no single job doubled his risk. The judge accepted the doctors' evidence that you cannot split cancer causation like you can split asbestosis damage, and that the companies should have given proper masks, warnings and ventilation but did not. Mrs Sim received separate awards for the asbestosis (divided by time) and a single large award for the cancer for which all defendants are jointly liable.
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Deep Dive
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Whether Australian Asbestos, Asbestospray Fireproofing, Asbestospray Australasia and Bells breached their duty of care to Mr Sim
Whether the insurers were liable for the employers' tortious exposure
Cited legislation
3 cited instruments linked from this judgment.
What happened
Mr David Sim worked with asbestos from 1964 until approximately 1979, initially for Australian Asbestos Contracting Pty Ltd (1964–1966), then for Asbestospray Fireproofing (mid-1967–30 June 1972), Asbestospray Australasia (1 July 1972–17 September 1975) and finally for Bells Thermalag & Industrial Services Pty Ltd (later Wallaby Grip (BAE) Pty Ltd) until at least 1979 for asbestos-related tasks. The work consisted predominantly of mixing raw asbestos (90 per cent amosite according to the findings at [100]) with cement and water, loading the slurry into hoppers, and spraying it under pressure onto steelwork, ducts and ceilings in commercial buildings and power stations. Overspray was swept up at the end of shifts, generating further visible dust. From 1975 Mr Sim also performed removal of existing asbestos lagging using hand tools and wire brushes.
The Dust Diseases Tribunal found that the atmosphere at the Marrickville mixing premises was “very, very dusty” ([99]) and that Mr Sim was exposed to pervasive airborne asbestos that entered his nose, mouth and clothing. Paper, rubber and cartridge masks were supplied on some sites but became clogged with perspiration and dust within minutes, were not enforced, and were frequently discarded ([104]–[106]). No masks were provided during factory mixing ([106]). No warnings were given of the specific risk of lung cancer until after 1979 ([107]). Mr Sim developed radiologically confirmed asbestosis (ultimately graded 4 with honeycombing) diagnosed in 1996 and lung cancer with spinal metastases diagnosed in January 2009. He died on 6 July 2009 at age 71.
Lorraine Fay Sim, as administratrix of his estate, brought proceedings in the Dust Diseases Tribunal (matter 158 of 2009) against Allianz (insurer of Australian Asbestos under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946), WorkCover (as successor to Vanguard Insurance for the Asbestospray entities under s 236 of the Workers Compensation Act 1987) and Wallaby Grip (as successor to Bells). The principal contested issues were the precise periods and nature of exposure, whether masks and warnings had been provided, whether each discrete employment materially contributed to the lung cancer, and the quantum of divisible asbestosis damages versus indivisible cancer damages. After a contested hearing spanning April to December 2010, Curtis J delivered judgment on 24 December 2010.
Why the court decided this way
The court’s reasoning turned on acceptance of the “cumulative effect” theory of asbestos carcinogenesis advanced by Professor Douglas Henderson, Professor David Bryant and Dr Deborah Yates. At [170] the judgment extracts Professor Henderson’s explanation that amphibole fibres are biopersistent, remain in tissue for decades, and continuously stimulate macrophages to release reactive oxygen and nitrogen species that damage DNA. Each additional exposure increases the fibre pool, the number of mutations and the probability of the multistage progression to malignancy. Because the final malignant transformation occurs against the background of all retained fibres, it is impossible to attribute discrete stages of the process to discrete exposures. The Tribunal had previously accepted this analysis in EM Baldwin v Plane (1998) 17 NSWCCR 434 and the Court of Appeal had approved it in Amaba Pty Ltd v Booth [2010] NSWCA 344; both authorities were followed at [193].
This medical evidence was contrasted with the defendants’ argument, based on Amaca Pty Ltd v Ellis (2010) 240 CLR 111 and the Helsinki criterion, that only an exposure sufficient to double background risk could be regarded as causal. Curtis J distinguished Ellis at [194] on the footing that Ellis was a case requiring a choice between competing causes (asbestos versus smoking or background). Here the only cause was asbestos; smoking had ceased 30 years earlier and all experts discounted it. Epidemiological relative-risk figures describe population averages and cannot disprove causation in an individual with idiosyncratic susceptibility ([204]–[205]). The court therefore held at [210] that each defendant’s employment materially contributed to the lung cancer.
Breach of duty was established by lay evidence from Mr Moraitis, Mr Costa, Mr Ciofani, Ms Loring and Mr Sim himself that dust was visible, masks were ineffective and unenforced, and no cancer warnings were given before 1979. The Tribunal inferred at [129] that exposure exceeded the NHMRC 5 million particles per cubic foot standard because visible dust indicates exceedance (Dr Kilpatrick evidence tendered under s 25(3)). Practical controls (cartridge masks, air-line respirators, exhaust fans) had been available since 1964. The defendants’ failure to implement them was negligent. Asbestosis was treated as divisible and apportioned by years of exposure (14 per cent Australian Asbestos, 36 per cent Asbestospray Fireproofing, 21 per cent Asbestospray Australasia, 29 per cent Bells). Lung cancer damages were awarded jointly and severally.
Insurance coverage was proved by affidavits of Mr McCudden and insurance broker Mr Hicks, which established that Vanguard had written unlimited common-law cover for Asbestospray Fireproofing from 1967 and limited cover for Asbestospray Australasia from May 1974. WorkCover’s search evidence was discounted because of its own inconsistent discovery.
Before and after state of the law
Prior to this judgment the law contained tension between the House of Lords’ approach in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 (material increase in risk sufficient for mesothelioma where single-fibre causation could not be proved) and the High Court’s insistence in Amaca Pty Ltd v Ellis that, where epidemiological evidence could not attribute more than 50 per cent probability to a particular exposure, causation failed. Australian courts had also accepted in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 that epidemiological evidence must be evaluated with caution in individual cases.
This Tribunal decision, applying Amaba Pty Ltd v Booth and EM Baldwin v Plane, clarified that for asbestos-induced lung cancer—where asbestosis is present and all exposures contribute to a single indivisible outcome—the cumulative fibre-burden theory supplies a sufficient causal link on the balance of probabilities without requiring proof that any single employer’s exposure doubled risk. The judgment at [191] expressly endorsed Basten JA’s observation that the civil standard tolerates a “yawning gap between complete understanding and sufficient understanding”. It therefore moved the law toward a more plaintiff-friendly application of material contribution in multi-employer asbestos cancer cases while preserving the Ellis principle for true competing-cause scenarios.
The insurance aspects applied the High Court’s recent decision in Wallaby Grip Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9, confirming that limitation defences based on policy wording failed in the absence of evidence.
Key passages with plain-English translation
Paragraph [170] quotes Professor Henderson: “the greater the number of asbestos fibres, the more free radicals (generated from the fibres or their interactions with cells such as macrophages) and the greater probability of initiated, promoted or proliferative cells at any given time point.” In plain English this means every extra bag of asbestos Mr Sim mixed or sprayed left more fibres in his lungs that kept irritating cells for the rest of his life; the irritation built up like compound interest until cancer started.
At [186] the court explains that even if an “ancestral” mutated cell arose during one employment, later exposures continue to supply free radicals that push that cell and its descendants toward malignancy. Translation: you cannot draw a line after any single job and say “that job did not contribute to the final cancer” because the fibres do not disappear.
Paragraph [105] states: “The masks, whether they were paper, rubber or cartridge, became quickly clogged with perspiration, condensation and dust, and were discarded by the men including Mr Sim. This was known to the employers. Those employers exercised no compulsion to wear the masks. No alternative or better masks were provided. No alternative system of work was introduced to reduce the danger.” Plain English: the companies handed out useless paper masks that soaked through in minutes, watched the men throw them away, and did nothing to fix the problem even though better equipment existed.
At [204] the judgment notes that epidemiological averages “cannot be applied simply and automatically to every individual”. Translation: population statistics that say “13 fibre/ml-years only increases risk by 70 per cent” do not prove one man’s cancer was not caused by that exact dose, because people differ in genetics and how fast they clear fibres.
What fact patterns trigger this precedent
The precedent applies where (1) a worker has asbestosis (a marker of heavy cumulative exposure), (2) develops lung cancer, (3) there is no significant competing cause such as heavy ongoing smoking, (4) the worker was employed by multiple entities performing mixing, spraying or removal of amphibole-rich asbestos, (5) exposure in each employment was more than de minimis and contributed to the total fibre burden, and (6) protective measures before the late 1970s were limited to ineffective paper masks that were not enforced. It is particularly engaged when defendants rely on Helsinki-criterion or doubling-of-risk arguments in the absence of medical evidence contradicting the cumulative-effect theory. The factual matrix of visible pervasive dust, mixing at a central depot, spraying at power stations and subsequent removal work without respiratory protection or warnings is the classic trigger.
How later courts have treated it
Although the judgment itself post-dates some of the authorities it cites, it has been treated as reinforcing the line of authority commencing with EM Baldwin v Plane and Amaba Pty Ltd v Booth. The Tribunal’s explicit adoption of Professor Henderson’s diagram (PX 26) and his evidence that “all of these factors accumulate in a necessary obligate causal chain” has been cited in subsequent Dust Diseases Tribunal decisions as justifying rejection of attempts to apportion lung cancer on a proportional-exposure basis where the disease is indivisible. The careful distinction drawn at [194]–[209] between Ellis (competing causes) and cumulative asbestos cancer cases has guided later courts to confine the doubling-of-risk test to situations where a defendant can point to a plausible non-tortious cause that is more probable than the tortious exposure. The insurance findings on Vanguard policies have been followed in later WorkCover recovery actions concerning the same Marrickville business. The procedural criticism of late s 25(3) tenders where issues were not narrowed has encouraged more rigorous pre-trial identification of live issues in asbestos litigation.
Still-open questions
The judgment leaves open the precise fibre/ml-year threshold (if any) at which a single short exposure might be regarded as de minimis in a cumulative lung-cancer case; the 13 fibre/ml-years from the first employment was held sufficient on the evidence, but the court did not set a universal floor. It does not decide whether the cumulative theory would apply to chrysotile-only exposure without asbestosis. The precise apportionment methodology for divisible asbestosis where exposure intensity varied markedly between employers is not exhaustively prescribed beyond the rough temporal split adopted. Finally, the interaction between the material-contribution finding and statutory contribution or proportionate-liability regimes in jurisdictions outside the Dust Diseases Tribunal remains unaddressed, as does the evidentiary weight to be given to a dying plaintiff’s affidavit when it conflicts with earlier statements. These issues continue to require case-by-case evaluation grounded in the medical evidence called in each proceeding.
CITATION : Lorraine Fay Sim v Allianz Australia Limited [2010] NSWDDT 19
[2]
Lorraine Fay Sim (as legal personal representative of the estate of the late David Sim)
PARTIES : Allianz Australia Limited
WorkCover Authority (NSW)
Wallaby Grip (BAE) Pty Limited (in liquidation)
Wallaby Grip Ltd v QBE Insurance (Australia) Ltd; Stewart v QBE Insurance (Australia) Ltd [2010] HCA 9; (2010) 264 ALR 425
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Amaca Pty Ltd v Ellis (2010) 240 CLR 111
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22
CASES CITED: Amaba Pty Ltd v Booth [2010] NSWCA 344
EM Baldwin v Plane (1998) 17 NSWCCR 434
McDonald v State Rail Authority (NSW) [1998] NSWDDT 4; (1998) 16 NSWCCR 695
Judd v Amaca Pty Ltd [2003] NSWDDT 1
Evans v Queanbeyan Shire Council [2010] NSWDDT 7
Amaca Pty Ltd v Ellis (2010) 240 CLR 111
[6]
DATES OF HEARING: 21-23 April 2010, 6-10 September 2010 and 14 December 2010.
[7]
Mr PCB Semmler QC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff
[8]
Mr TGR Parker SC with Mr DT Miller instructed by Ellison Tillyard Callanan appeared for the first defendant
LEGAL REPRESENTATIVES:
Mr J Sharpe instructed by Thompson Cooper Lawyers appeared for the second defendant
[9]
Mr T Morahan with Mr C Fini instructed by Hicksons appeared for the third defendant
[10]
Dust Diseases Tribunal of New South Wales
Matter Number 158 of 2009
Lorraine Fay Sim (as legal personal representative of the estate of the late David Sim)
v
Allianz Australia Limited
and
WorkCover Authority (NSW)
and
Wallaby Grip (BAE) Pty Limited (in liquidation)
24 December 2010
CURTIS J
JUDGMENT
Introduction
The plaintiff, Mrs Sim, is the widow of the late Mr David Sim, an asbestos worker who contracted asbestosis and subsequently lung cancer from which he died on 6 July 2009.
The principal issue for determination is whether the evidence called by Mr Sim satisfies the "but for" test of causation in relation to the causal contribution by any particular period of employment to Mr Sim's disease of lung cancer.
Mrs Sim sues:
Allianz Australia Insurance Limited (Allianz), the insurer of Australian Asbestos Contracting Pty Ltd (Australian Asbestos) by whom Mr Sim was employed from 1964 until 31 October 1966. Allianz is sued pursuant to s6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 .
WorkCover Authority (NSW) (Workcover), heir to the liabilities of Vanguard Insurance Company, the insolvent insurer of both Asbestospray Fireproofing and Insulation (NSW) Pty Ltd, (Asbestospray Fireproofing) for whom Mr Sim worked between June 1967 and 30 June 1972, and Asbestospray Corporation Australasia Pty Ltd (Asbestospray Australasia) for whom he worked between 1 July 1972 and 17 September 1975. Workcover is sued pursuant to s236 of the Workers Compensation Act 1987.
Wallaby Grip (BAE) Pty Limited, formerly Bells Thermalag & Industrial Services Pty Ltd (Bells), who employed Mr Sim between September 1975 and 2002, alleging tortious exposure to asbestos until 31 December 1979.
Mr Sim's Asbestos Exposure
[11]
Mr Sim worked for Australian Asbestos "for a period of about two years between 1964 and 1966", spraying asbestos insulation on structural steel, air conditioning and exhaust ducts in commercial buildings in Sydney.
The company operated from premises at 54 Meeks Road Marrickville where raw asbestos was mixed with cement, lime and other chemicals and bagged before being transported to the work sites. A great deal of asbestos dust was liberated into the atmosphere in the course of the mixing.
At the work site the bags of insulation were emptied into the hopper of a mixing machine that combined the material with water and propelled it under high pressure through hoses held by the workers onto the steel work.
Large quantities of airborne asbestos dust were generated when the bags were emptied into the hopper, and when the overspray of dried asbestos was swept up at the end of each shift.
Mr Sim mostly worked spraying asbestos, working only occasionally at the Marrickville Depot where he emptied bags of raw asbestos into the mixer.
This employment ceased in 1966 when the company became insolvent.
1966 Casual Work with Other Employers
After Australian Asbestos closed down, Mr Sim worked for about two weeks for a company called Techna Spray, spraying asbestos onto the ceilings of a school at Finlay. He then worked spraying asbestos for Bestobell at the Shell refinery at Clyde, and in Western Australia at Exmouth Gulf for a period of about six weeks. After this he was employed by Action Insulation as a lagger for approximately 2 months.
The total time occupied in these employments is about four months, or approximately three per cent of the total exposure to asbestos. 97 per cent of his exposure was in the employment of the defendants.
1967- 1972 Asbestospray Fireproofing
Asbestospray Fireproofing was a company registered on 15 June 1967 by Mr Bill McCudden who had purchased the equipment of Australian Asbestos. While working for Asbestospray Fireproofing, Mr Sim again sprayed asbestos, occasionally mixing the raw asbestos at the company's premises at Chapel Street Marrickville. He estimated that 95 per cent of his work was on-site spraying asbestos.
In addition to spraying asbestos on construction sites in and around Sydney, Mr Sim also sprayed asbestos at the Vales Point, Munmorah, Wangi, Tullawarra, Wallerawang and Liddell power stations.
1972- 1975 Asbestospray Australasia
[12]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Parties
Applicant/Plaintiff:
Lorraine Fay Sim
Respondent/Defendant:
Allianz Australia Limited
Legislation Cited (3)
Lung Cancer Law Reform (Miscellaneous Provisions) Act 1946(NSW)
Judgment for the plaintiff against Allianz for $14,173.51, against WorkCover for $57,706.43, against Wallaby Grip for $29,359.41 in respect of divisible asbestosis damages, and joint and several judgment against all three for $317,561.85 in respect of lung cancer damages.
In May 1972 Mr McCudden sold the business of Asbestospray Fireproofing to Asbestospray Australasia. Mr Sim's last day of employment with Asbestospray Fireproofing was 30 June 1972. Mr Sim became an employee of the new owner and continued work as before.
Bells Thermalag 1975-1979.
In September 1975 the business of Asbestospray Australasia was sold to Bells who continued to employ Mr Sim.
For the next one or two years he sprayed a limpet asbestos material manufactured by Roberts Spray Fibre in Melbourne. During this period, and thereafter until about 1983, Mr Sim also worked removing asbestos.
A Preliminary Dispute
Mr Sharpe for WorkCover, in reliance upon evidence from Mr McCudden, submits that Mr Sim did not work for Asbestospray Fireproofing full-time, but rather that the work was for no more than four months each year between 1966 and 1972. I reject this submission. When challenged in cross-examination Mr McCudden resiled from his evidence saying: "Well, that's what it says there [referring to his earlier statement] but now I don't know that's true."
I am unable to accept McCudden's evidence that on occasions he was unable to hire Mr Sim because he was working for other insulation companies.
The suggestion that Mr Sim worked for only four months each year was denied by Diane Loring, who worked as secretary to Mr McCudden throughout the relevant time. Ms Loring paid the wages. She said that Mr Sim was a continuous full-time employee, and that the company had enough work to keep him employed. Mr Moraitis, a fellow employee whose evidence I accept, said that Mr Sim worked full time for the company.
Mr Sharpe relies upon a statement in an affidavit by Mr Barry Clee, who also worked for Asbestospray Fireproofing, as evidence that Asbestospray Fireproofing was unable to provide full-time work to Mr Sim. The statement is as follows:
I worked for Asbestospray for about nine or ten months all up. I left in the end because I could not get on with Bill McCudden. The company had run out of work and I had decided to take some holidays. I had some holidays owing to me. I asked McCudden if I could use the car that was supplied to me as part of my job on my holidays. McCudden told me that the car had to stay at the factory. We had a disagreement about it and I resigned and left.
I do not agree that this statement is incompatible with the company having sufficient work to keep some, but not all, workers occupied full-time. Mr Clee left because of his disagreement with Mr McCudden.
Mrs Sim also said that Mr Sim worked exclusively for Asbestospray Fireproofing during the relevant time. Mrs Sim's mistaken recollection that Mr Sim was working for Mr McCudden's company in April 1966, (before the company was registered) when her son had his first birthday, does not cause me to reject her evidence on this score. Her reference to Mr McAllister owing money for wages during Mr Sim's employment by Asbestospray Fireproofing is, in context, clearly a reference to Mr McCudden.
I also reject the submission by Mr Sharpe that Mr Sim worked as an independent contractor rather than an employee for Asbestospray Fireproofing and also for Asbestospray Australasia. In statements made on 25 January 1966, 28 July 2006, 6 April 2009 and 23 June 2009, Mr Sim has consistently stated that he was "employed" between 1967 and 1975.
Mr McCudden said that Mr Sim worked for him as an employee rather than a subcontractor. He said that when asbestos sprayers worked for his company they worked for him exclusively, he directed their work, he set their hours, and he provided all the equipment. These circumstances bespeak a contract of service rather than a contract for services.
In an industrial history given to the Dust Diseases Board dated 28 July 2006, Mr Sim stated that "I was employed by Asbestospray from 1966 until 1975". Although he does not in this statement reveal the change of ownership in 1972, that lapse is understandable because it remained the same business conducted from the same premises throughout that period despite the change of ownership.
In a letter of 21 October 1975 to the Dust Diseases Board, Mr P.M. Balint, a director of Asbestospray Australasia, asserted that Mr Sim was "employed for the full financial year" ending 30 June 1975.
Although in his statement of 25 January 1996, given in support of a claim for damages made by a co-worker, Mr Sim said that: "During McAllister's time several of the staff were put on a sub contract basis, including myself", this statement is also to be seen in context.
Mr John McAllister said that he worked as manager of Asbestospray from 6 April 1972 until the business was sold in June 1972. Although Mr McCudden denied employing Mr McAllister, it may be that in this short period Mr McAllister was employed by the purchasers of the business to gain experience of its operations. In any event, Mr McCudden said that the subcontracting arrangements lasted for only about 30 days, and ceased at the request of Mr Sim.
I find that, with the exception of 30 days, Mr Sim worked full-time as a full-time employee of Asbestospray Fireproofing between 1967 and 30 June 1972, and as a full-time employee of Asbestospray Australasia from 1 July 1972 until 17 September 1975.
The Nature and Extent of the Exposure in Each Employment
The parties are at issue as to the identification and relative potency of the asbestos fibres to which Mr Sim was exposed in each period, and the extent to which he was protected against the dangers created by the inhalation of asbestos.
The Evidence
Statements by Mr Vicenzo Ciofani, Mr Barry Clee, Mr George Costa, Mr Nick Moraitis, Mr Peter Swift, Mr John McAllister, Ms Diane Loring, Mr McCudden, and the late Mr Sim were admitted into evidence.
Mr Costa, Mr Moraitis, Mr Swift, Ms Loring, Mr McCudden, and Mr McAllister gave evidence orally.
Mr Vicenzo Ciofani
Mr Ciofani was employed as an asbestos sprayer by Asbestospray Corporation Pty Ltd and then Asbestospray Fireproofing between 1969 and mid-1972. From mid-1972 until September 1975 he worked for Asbestospray Australasia. In an affidavit of 16 December 1994 prepared in his own action for damages, Mr Ciofani stated that while spraying he worked in a continual shower of white asbestos dust which he inhaled, that he was not supplied with paper masks until towards the end of his employment, and that he was at no time warned of the dangers of asbestos.
Mr Barry Clee
Mr Clee worked intermittently for Australian Asbestos between 1961 and 1966, and for Asbestospray Fireproofing from 1967 until about February 1968. He swore an affidavit on 22 August 1997 in connection with his own claim for damages. Mr Clee stated that the bulk of the material used at Australian Asbestos was South African amosite of which the company used "a vast amount." Some blue asbestos was sprayed on turbines, and some chrysotile was used where lower fire ratings were required or where a decorative finish was required. The work was extremely dusty. He said that the same asbestos mixtures were used at Asbestospray Fireproofing and the quantity of dust was about the same.
Mr George Costa
Mr Costa responded to an advertisement in the Telegraph newspaper by Asbestospray Australasia and commenced work in 1973. Mr McAllister was the manager at the time. Mr Costa commenced work assisting Mr Moraitis in mixing asbestos material in the factory, the atmosphere of which he said was very dusty. After six months he commenced work as a sprayer. This work was also very dusty. Mr Costa said in his statement that: "…there was a constant problem with overspray and the drying of over spraying caused dry bits of spray and dust to go into the air for most of the day". He also said that: "Throughout my work at Asbestospray I was never provided with a mask. I did not see any other workers wearing a mask. I was never warned by anyone at Asbestosray [sic] that inhaling asbestos dust was dangerous."
Mr Costa remained with Asbestospray Australasia until 1975 when it was taken over by Bells. He says that throughout this time the asbestos fibre used was grey in colour. Mr McCudden said that grey asbestos was amosite.
In cross-examination by Mr Sharpe for WorkCover, Mr Costa denied that any masks were provided to the workers. He did not recall whether the product known as Ceramospray was used.
Mr Nick Moraitis
In a short affidavit of 19 April 1994 Mr Moraitis stated that he was employed by Australian Asbestos from 1964 until 1966, by Asbestospray Fireproofing from 1967 to 1972, by Asbestospray Australasia from 1973 to 1975, and by Bells from 1975 to 1977.
He stated that throughout these periods of employment he inhaled asbestos dust, he was not warned as to the dangers of asbestos, and he was not provided with a mask.
Mr Moraitis swore a longer affidavit on 23 September 2009. This affidavit was drafted by Mr Tzouganatos, junior counsel for Mrs Sim, after a lengthy telephone conference with Mr Moraitis in the Greek language.
Mr Moraitis gave evidence supplementary to this affidavit. He said that although he could not read English, the affidavit was read to him at his home by an interpreter in the Greek language before he executed the document. The affidavit bears a certification by Ms Joanna Missouli, an accredited interpreter, that she had translated the document from the English to the Greek language and that the plaintiff [sic] understood the content of the document. It was witnessed by Mr Antonio Mancia, the plaintiff's solicitor.
I accept the contents of both affidavits as reliable.
Mr Moraitis said that Asbestospray used white, brown and blue asbestos, but mostly brown, and that from 1974 when the business commenced to use the asbestos free insulation product, Ceramospray, he was instructed by the manager Mr McAllister to add a few bags of asbestos fibre into the Ceramospray mix. He said that when Bells took over in September 1975 there were about 300 bags of raw asbestos behind the mixing machines at the factory.
Mr Moraitis said that it was because Ceramospray did not adhere readily to some surfaces that asbestos was added to the mix as a bonding agent. Mr Swift gave evidence to the same effect. Mr Swift also corroborated the evidence of Mr Moraitis in relation to the presence of raw asbestos on the premises in September 1975.
In his oral evidence Mr Moraitis said when he worked for Mr McCudden's company paper masks were provided, but these were ineffective and discarded.
In cross-examination, Mr Miller for Allianz did not suggest that the evidence of Mr Moraitis in relation to exposure to asbestos with Australian Asbestos should be disbelieved.
In answers to Mr Morahan for Wallaby Grip, Mr Moraitis denied that from the date of the takeover asbestos was no longer included in the spraying mix, and that Bells' manager, Mr Swift, was very strict about the use of masks and overalls. These denials are consistent with the evidence of Mr Swift that limpet asbestos was sprayed by Bells for some two years after the purchase of the company, and that asbestos minimisation procedures were not instituted by Bells until about 1978.
During cross examination by Mr Sharpe for WorkCover concerning the different types of asbestos used by Asbestospray, it became apparent that there was a communication problem between Mr Moraitis and the Greek interpreter. Cross-examination was suspended until another interpreter could be arranged. I do not believe that the evidence of Mr Moraitis should be discounted because of that problem. On the next hearing day Mr Moraitis attended with a different interpreter and Mr Sharpe elected to ask no further questions.
Mr Peter Swift
Mr Peter Swift was the production and site supervisor for Bells when that company purchased the business of Asbestospray Australasia. He confirms the evidence of Mr Moraitis that there was a large quantity of asbestos present upon the premises of Asbestospray Australasia when Bells went into possession.
He also said that after Bells took over Asbestospray Australasia, it continued to spray asbestos to complete pre-existing contracts because: "When we've started a job off and we had to complete it in the same material".
In his affidavit of 28 September 2009 Mr Swift stated that Mr Sim continued working as a sprayer after the purchase, and that Bells ceased spraying asbestos in about 1978. He also said that while asbestos minimisation techniques were used from about 1978/79, it was not until about the mid-1980s that Bells fully complied with asbestos minimisation and protective procedures established by the National Health Research Council and WorkCover. Before that time it was common for shortcuts to be taken, and for workers not to use protective gear as it was uncomfortable to wear on site.
In oral testimony Mr Swift said that after the 1975 purchase Mr Sim worked for about two years spraying Limpet Asbestos. This was a product manufactured by Roberts Spray Fibre in Melbourne, which contained a high content of asbestos.
Mr John McAllister
In an affidavit of August 2009 Mr McAllister said that he worked for "Asbestospray" in sales and marketing from 6 April 1972 until the business was sold to Bells in 1975, at which time he left the company. He said that he visited the sites where asbestos was sprayed and that, although the work "did not generate a lot of dust", the sprayers often wore facemasks.
He also said that by the end of 1973 Asbestospray no longer used any asbestos at all, and only used a ceramic spray.
In particular Mr McAllister said: "I do not recall David Sim and it is unlikely that I would have had direct contact with him if he worked as a sprayer."
In a later affidavit of 29 October 2009 Mr McAllister said that the factory was not "very dirty and dusty", and that above where the mixing took place, a fine mist was released to ensure that the dust settled. He said that any assertion that clouds of dust were released when the workers were mixing the bags of asbestos was simply not correct. Inconsistently, he said that when the workers were mixing the bags of asbestos they had to wear masks and goggles.
In oral testimony Mr McAllister asserted that the workers did not obey the rules regarding health and safety because they did not wear masks and goggles. He said that he especially remembered David Sim because, over the course of years, he had cause to reprimand him at least once a week, and as much as two or three times each week for not wearing a mask. He said there was no one else that he had cause to reprimand.
Mr McAllister was a most unimpressive witness whom I regard as wholly unreliable. His description of the conditions at Marrickville, and during the spraying process, is contradicted by almost every other witness who observed the processes. His assertion that Mr Sim was a heavy smoker is inconsistent with the evidence of Mr Sim and the plaintiff that Mr Sim stopped smoking in 1970. It cannot stand with the evidence of Ms Loring and Mr McCudden who both said that Mr Sim did not smoke.
Mr McAllister's evidence that he had, on hundreds of occasions, reprimanded Mr Sim for not wearing a mask cannot be reconciled with his earlier statement in an affidavit that: "I do not recall David Sim and it is unlikely that I would have had direct contact with him if he worked as a sprayer."
In cross-examination Mr McAllister said that he could not remember the name of any employee other than Mr Sim, and that he could not recall any descriptive characteristic of Mr Sim. He was unable to identify Mr Sim in a photograph depicting Mr Sim in the company of other employees.
Mr McAllister's evidence that all asbestos use had ceased by the end of 1973 is patently wrong. Ceramospray was not approved by the CSIRO for use as an insulation material until August 1974. Mr Swift, the employee of Bells in charge of the takeover from Asbestospray Corporation, said he found a large quantity of asbestos present beside the mixing machine when he inspected the Marrickville premises in September 1975. Mr Moraitis said that there were about 300 bags.
Ms Diane Loring
Ms Loring stated in an affidavit of 16 April 2010 that the factory at Marrickville was very dusty, and that she was never warned by anyone about the dangers of asbestos. She said that anyone who attended at the factory could not help but inhale the asbestos dust that circulated throughout the factory, some days being worse than others.
In cross-examination Ms Loring said that the men working in the premises did not wear face masks, that she was in charge of purchases and that she does not remember buying any masks. She did not recall Mr McCudden requesting or insisting that staff wear masks. She did not recall there being shower facilities in the plant. She did not agree that "there were laundry arrangements for anyone who wanted it done."
Mr McCudden
Mr McCudden was called in the plaintiff's case for the purpose of proving insurance.
In the course of this examination Mr McCudden said that the company used blue asbestos on turbines at power stations. He also said that 90 percent of the company's work related to thermal insulation and fireproofing using amosite, and that white asbestos was used as a hard covering on the other forms of asbestos.
In a statement of 12 January 1996, apparently in response to the damages claim brought by Mr Moraitis, Mr McCudden said that the company: "Imported raw asbestos from South Africa-grey asbestos (amosite) in 100 lb bags", and that "we only used [white chrysotile asbestos] a few times a year." This accords with the evidence of Mr Clee.
In the course of cross-examination Mr McCudden agreed with the propositions that Asbestospray Fireproofing provided protective clothing and equipment to the workers including small disposable surgical masks, single and double filter respirator masks, and protective overalls which were laundered by a subcontractor. The company also provided shower facilities at the Marrickville Depot.
These statements repeat assertions made in his statement of 12 January 1996, that most of the staff did not wear the masks, despite his insistence that they should, and workers rarely used the showers provided.
This evidence is inconsistent with the evidence of Mr Sim, Mr Moraitis, Mr Ciofani, Mr Costa and Ms Loring. It is also inconsistent with other statements by Mr McCudden contained within the same document.
Mr McCudden said that after he established the business he sometimes worked on the mixer, that he did not believe that that work was hazardous to his own health, and that not a lot of dust resulted from the spraying.
He further said that it was not until 1971 that he learned through American interests that American trade unions had raised difficulties with the continuing use of asbestos because of health concerns. I think it improbable that Mr McCudden insisted that his workers wear masks in conditions which he did not believe created any risk to health. I reject Mr McCudden's evidence where it differs from the evidence of his employees.
MrDavid Sim
Mr Sim has given several accounts of his exposure, not all of them consistent.
25 January 1996
The first account is a statement made on 25 January 1996 in support of a claim for damages by Mr Moraitis. In that statement Mr Sim said that he was employed as an asbestos sprayer by Australian Asbestos from 1965 to 1967 and by Asbestospray Corporation from 1967 until 1972 when the business was sold, he believed to Mr McAllister. He performed the same work for the new owners until the business was again sold to Bells Asbestos.
Mr Sim said that in the employ of Asbestospray, he used brown asbestos only rarely, blue asbestos on a few occasions, and mainly white asbestos. This evidence is inconsistent with that of Mr Clee, Mr Costa, Mr Moraitis and Mr McCudden who all said that the asbestos used at Asbestospray was mostly brown. I prefer the evidence of those men on this issue, because each corroborates the other, and because Mr McCudden, as a principal of the business, had most cause to know the true position.
In this account Mr Sim said that Mr McCudden provided face masks for employees, including a cartridge type respirator, although the wearing of masks was not enforced and they were rarely worn.
Mr Sim said that before he joined Asbestospray he was aware there were health risks with asbestos in general terms, although he was unaware of the extent of the risk. There were no safety meetings where the health hazards of asbestos were discussed and he cannot recall being warned of the risk.
Under the direction of Mr McAllister for the new owners between 1972 and 1975, the same conditions prevailed. Mr Sim recalled that Mr McAllister ceased using asbestos during the time he owned the business, believing that this change was because of the health risks of asbestos. That recollection is inconsistent with the evidence of Mr Costa and Mr Swift whose evidence on this account, because it is complementary, I prefer.
May 1996
In May 1996 Mr Sim gave an occupational history to Dr Deborah Yates. In her report of 7 May 1996 to Dr Kearns, Dr Yates recorded Mr Sim's employment with Australian Asbestos, Asbestospray and Bells Asbestos and his comment that the work was very dusty, with no change in the work practice between 1964 and 1975. Dr Yates said that Mr Sim mainly used chrysotile or white asbestos with occasional use of blue asbestos, although blue asbestos was not used in the later years of this employment. Again I prefer the evidence of other witnesses that brown asbestos, amosite, was mainly used by each of the employers in this period.
Dr Yates wrote that Mr Sim alternated between loading the hopper and spraying and that, although there was a lot of dust present, a respirator was used only when spraying.
The report states that in 1975 Asbestospray was taken over by Bestobell, that around this time asbestos was banned for use in construction, and that Mr Sim was then employed scraping off asbestos which had previously been applied and re-spraying with non-asbestos materials. This was fairly dusty work. He was initially provided with paper masks, although more strict controls were later introduced, including air fed respirators and disposable overalls.
Dr Yates' history may well be inaccurate in some respects, because she wrote that in 1964 Australian Asbestos was taken over by Asbestospray. That is wrong. Further it is clear from the evidence of Mr Swift that Mr Sim continued spraying material that contained asbestos for up to 2 years after Bells purchased the business of Asbestospray Australasia.
6 April 2003
Records of the Dust Diseases Board include a statement which purports to be made by Mr Sim in the course of a telephone call by an officer of the Board to him on 6 April 2003. This statement speaks of employment by Australian Asbestos, Asbestospray and Bells as an asbestos sprayer, and includes an assertion that no facemasks or other protection were provided.
The statement also records that Mr Sim performed work conventionally performed by laggers, with preformed asbestos blocks and asbestos compound. This accords with a later statement in the records of the Dust Diseases Board dated 28th of July 2006, in which Mr Sim says that he did lagging work with Bells when the spray work was quiet.
11 September 2003
On this day Mr Sim's solicitor made a file note of a conversation which records Mr Sim's statements that for the first 12 to 18 months with Bestobell; "You used Roberts Spray Fibre which contained asbestos", and that during this time he also worked removing old asbestos lagging; "You wore a flimsy mask which was optional".
28 July 2006
On this date Mr Sim provided an industrial history to Mr Laurie Fraser, an advisory officer with the Dust Diseases Board.
In this statement Mr Sim said that he worked for Australian Asbestos between 1964 and 1966, for Asbestospray between 1966 and 1975, and for Bells from 1975 until 2002. He said that he worked on multi-storey buildings, power stations, steelworks, and oil refineries spraying asbestos. He also said that he worked removing existing asbestos insulation and lagging pipes with asbestos compound and asbestos moulded blocks and sections.
The statement records Mr Sims assertions that he was "not provided with suitable respiratory assistance", and that he worked without facemasks or any other protection from dust at the power stations.
An Undated Signed Statement
This document records Mr Sim's employment with Australian Asbestos, Asbestospray and Bells. Speaking of his time at Australian Asbestos, Mr Sim said that "some workers were given masks (rubber) others were not. At no time were we encouraged to wear them."
Mr Sim did not refer to the use of protective equipment at Asbestospray, nor did he say whether the use of asbestos in the material ceased during his employment there. He did say that Bells bought out Asbestospray in 1975, and that "we stopped using asbestos in spray about 1976".
He stated that it was after 1975 that he commenced work in asbestos removal and that "when we first started asbestos removal we had no special equipment for safety. We worked in ordinary cloth overalls and paper masks", and, "it was 1978 on the Sydney Art Gallery that special equipment was used for asbestos removal. Even after the introduction of safety equipment many of the asbestos removal work practices were not up to standard of later years".
6 April 2009
On this date Mr Sim swore an affidavit drafted by his solicitor Mr Mancia.
The affidavit generally speaks of the dusty nature of the work loading the hopper with asbestos and spraying the mix. In relation to his time at Australian Asbestos Mr Sim stated:
Paper or rubber masks were made available by Australian Asbestos to me and the other sprayers at the worksites. No one told us to wear the mask all the time. I wore the mask when spraying. After wearing the mask for a few minutes, both the paper and rubber masks became wet and clogged with perspiration, condensation and dust. When the mask became wet, I found it difficult to breathe and I took it off. The mask only reduced the amount of dust I breathed in when spraying the asbestos cement mix. Foreman and supervisors saw me and other workers working without wearing the masks and never told us to put the masks back on. They knew that when the masks became clogged they were useless and that you could not breathe while working with them.
In relation to his time at Asbestospray Mr Sim stated:
Again, I worked in extremely dusty work environments. During the course of this employment, I was provided with a paper or rubber mask when working on commercial sites. As I did with Australian Asbestos, I wore the masks when spraying and encountered the same problems with clogged wet masks as I did with Australian Asbestos. The mask only reduced the amount of dust I breathed in when spraying the asbestos cement mix. Again the foremen and supervisors never forced us to wear the mask all the time and when they saw me and other workers working without wearing the masks they never told us to put the masks back on.
My exposure to asbestos dust and fibre during this employment occurred in virtually the same manner as when I was employed by Australian Asbestos. Feeding the hopper and asbestos spraying generated a lot of dust in the air around me and I had no way to escape the dust. Again, dust got in my nostrils, in my mouth and found its way through my clothes.
…
The preparation of the asbestos cement mix at the Asbestos Spray workshop in Marrickville was extremely dusty work during which I was not provided with any form of respiratory protection. There was no way to escape the dust and I inhaled it.
Mr Sim also said that Asbestospray did not use blue asbestos (crocidolite). This recollection is inconsistent with the evidence of Mr McCudden who said that blue asbestos was used by Asbestospray Fireproofing.
In relation to his time with Bells Mr Sim stated:
… I continued to carry out my work as a sprayer in the same manner as I did when employed by both Australian Asbestos and Asbestos Spray.
My exposure to asbestos dust and fibre during this employment occurred in virtually the same manner as when I was employed by Australian Asbestos and Asbestos Spray. Feeding the hopper and asbestos spraying generated a lot of dust in the air around me and I had no way to escape the dust.
…
Removing asbestos insulation was also very dusty work during which great amounts of dust where [sic] released into the atmosphere around me. I removed asbestos insulation from pipes, boilers turbines , ceilings in multi storey buildings and steel frames. The removal was carried out manually and I used both my hands and hand tools to remove the insulation. I then scraped off the residue with steel brushes. It was very dusty work and I found myself covered in dust and I inhaled it.
From about 1978 Bestobell Pty Limited started to introduce controls and respiratory protection against the asbestos dust. These include masks, air fed respirators and disposable overalls. These safety measures were implemented gradually between about 1978 and the early 1990s.
23 June 2009
On this day Mr Sim, who was close to death, swore a further affidavit. I accept the evidence of Mr Mancia that Mr Sim was in full possession of his mental faculties at the time. In this affidavit Mr Sim said that when employed by Australian Asbestos he used amosite, chrysotile and crocidolite asbestos:
With Australian Asbestos I was never warned about the dangers of asbestos. Paper masks were occasionally to me [sic] and the other sprayers, but we were never told to wear them. I tried to wear the masks but after a few minutes of spraying it became wet and clogged with perspiration, water and dust. I found it difficult to breathe with the mask and so I took it off, through [sic] it away and kept on working. Foreman and supervisors saw me and other workers working without masks and never told us to put the masks on.
and:
At Asbestospray, occasionally, the paper masks were available for use. As with Australian Asbestos, the masks were useless in keeping up with the dust and could not be worn for longer than a few minutes. I was never told to wear a mask.
Throughout the time that I was employed by Asbestospray, I was never warned about the risks of inhaling asbestos dust and fibre.
Inconsistently with the earlier statements, but consistently with the evidence of Mr Clee, Mr Costa, Mr Moraitis and Mr McCudden, Mr Sim stated that: "Amosite, chrysotile and crocidolite was used in my work with Asbestospray".
In relation to his work with Bells, Mr Sim stated that in 1978 and 1979, when he worked on the Art Gallery of New South Wales he was first provided with a cartridge mask and plastic overalls. Thereafter on some jobs he was provided with that protection but on other jobs he was not.
Findings as to Exposure
The presence of severe asbestosis in Mr Sim's lungs is a marker of very substantial inhalation of asbestos fibre. That fact militates against acceptance of the submissions by the defendants that Mr Sim was provided with adequate respiratory protection throughout his career.
It is patent from the evidence of all witnesses excepting Mr McAllister, and Mr McCudden to some extent, that the work of mixing asbestos with cement, loading the mix into the hopper for spraying, spraying asbestos, and asbestos removal was very, very dusty. The asbestos dust generated was pervasive; it found its way into the nostrils and mouths of the men performing the work and it coated their clothes.
Consistently with the evidence of Mr Clee, Mr Moraitis, Mr McCudden and Mr Swift, I find that 90 per cent of the asbestos to which Mr Sim was exposed in the employment of Australian Asbestos, Asbestospray Fireproofing and Asbestospray Australasia and Bells was amosite.
Upon the evidence of Mr Moraitis and Mr Swift I find that Mr Sim worked with asbestos in the employment of Asbestospray Fireproofing until the date of his last employment with that company in September 1975.
Mr Sim was also exposed to amphibole asbestos when spraying Roberts Spray Fibre and other amphibole fibres to complete existing contracts in the course of his employment with Bells until 1979. This is consistent with the file note taken in 2003 by his solicitor, and the evidence of Mr Swift. Professor Henderson in his report of 4 June 2009 said that "limpet" asbestos typically contained amphibole asbestos such as crocidolite and amosite.
In every statement with the exception of 6 April 2003, taken over the telephone and probably unreliable in this respect, Mr Sim concedes that masks were provided by Australian Asbestos, Asbestospray, and Bells. That evidence is not inconsistent with that of Mr Ciofani and Mr Costa because in his statement of 28 July 2006, Mr Sim said that "some workers were given masks ... others were not". Mr Moraitis in his oral evidence said that although Mr McCudden supplied paper masks, these, proving ineffective, were discarded. Mr Ciofani said that towards the end of his employment with Asbestospray he was supplied with paper masks.
Nevertheless, the protective measures taken by each employer before 1979 were grossly inadequate. The masks provided were not adequate to the task. I consider the statements by Mr Sim in his affidavits of 6 April 2009, when he was very ill, and 23 June 2009, when he knew he was dying, persuasive. His evidence in this regard is supported by that of Mr Moraitis.
The masks, whether they were paper, rubber or cartridge, became quickly clogged with perspiration, condensation and dust, and were discarded by the men including Mr Sim. This was known to the employers. Those employers exercised no compulsion to wear the masks. No alternative or better masks were provided. No alternative system of work was introduced to reduce the danger.
Accepting the evidence of Ms Loring and Mr Moraitis I find that masks were not provided to workers, including Mr Sim, when working at the Marrickville premises of Asbestospray Fireproofing mixing asbestos with cement.
I find that no employer before 1979 warned Mr Sim of the gravity of the dangers that he faced in inhaling asbestos dust, which dangers included the possibility of death from the lung cancer that he later contracted. That danger was recognised as a foreseeable occupational hazard of exposure to large quantities of asbestos dust in asbestos workers before 1964.
I also find that until 1979 in the employment of Bells Mr Sim was exposed to the inhalation of asbestos dust when removing asbestos without the provision of adequate respiratory protection.
Foreseeability and Breach of Duty
In written submissions following upon the close of the evidence, Mr Parker SC for Allianz contends that the plaintiff must fail for want of proof that Mr Sim's level of exposure exceeded that which, having regard to the state of scientific knowledge at the time, Australian Asbestos ought to have known was dangerous.
The thrust of this submission is that there is no evidence that Mr Sim's exposure would have exceeded the then NHMRC level of 5 million particles per cubic foot (averaged over a working week).
No other defendant makes this submission, and I do not think that it is available to Allianz.
On 22 December 2009 the matter was listed before the president, Judge O'Meally for the purpose of fixing a trial date. Judge O'Meally asked the parties: "What are the issues?"
Mr Fini who appeared for Bells said: "From my client, the third defendant's perspective, the issues are exposure, nature and extent, the diagnosis of asbestosis, causation and damages".
Mr Anderson appeared for Allianz. His response to His Honour's question and the reply by Mr Fini was silence. If he wished to assert that, in contradistinction to the position of Bells, foreseeability and breach of duty were live issues for the trial, he had a duty to say so.
When the matter came before me for hearing on 21 April 2010, I said: "It would help me then if I understand each of the defences. So, Mr Parker, what do you say, what is your defence?"
Mr Parker said "… there is a big issue about liability, centring upon causation."
…
"There is a big Ellis point, a big issue of causation".
The following exchanges occurred:
His Honour:
And is there going to be a contention that asbestosis is not a divisible entity?
Mr Parker:
Well, as we perceive, there [will be] no contest insofar as this is a claim about asbestosis, it was divisible, and therefore there will be liability for that relevant proportion of the asbestosis damages, but the major damages in this case are not asbestosis damages, they are lung cancer damages.
His Honour:
Yes, but if the asbestosis is sub divisible even if you cop 5 per cent is that enough to trigger the liability because lung cancer is more probable if there is asbestosis?
Mr Parker:
We would say no, because we would say that the mere fact that he has asbestosis does not allow one to draw any conclusions as to causation of the lung cancer on a defendant by defendant basis…
His Honour:
That will be a threshold point, I will do that first.
Mr Parker:
At all events, that is the liability issue in the case.
In answer to my enquiry Mr Parker uttered not one word to suggest foreseeability or preventability were issues in the trial.
Mr Morahan said that the issues were: the fact and extent of exposure and causation. Mr Sharpe said: I agree entirely with the matters raised by my learned friend Mr Parker.
When the matter came on for oral submissions on 14 December 2010, Mr Semmler SC who appeared for Mrs Sim, obtained leave to tender pursuant to s25(3) of the Dust Diseases Tribunal Act 1989, evidence which had previously been admitted in proceedings in the Tribunal concerning foreseeability, asbestos fibre concentrations, and the availability of practical measures to protect workers from the inhalation of asbestos fibre. Regrettably and unnecessarily the tender extends to four volumes of documents.
Counsel for Allianz complain that this course is unfair, and they cannot reasonably be expected to trawl through thousands of lines of text in order to respond. This complaint is without merit.
The plaintiff's solicitors had notified Allianz of the material to be tendered pursuant to s25(3) before the trial commenced. It was not tendered earlier because of a commendable intention to contain the evidence to facts genuinely in issue. By misinforming the tribunal as to those matters, and by not making reasonable concessions, Mr Parker is entirely responsible for any burden occasioned by the late tender.
The tender would be almost entirely unnecessary if, in response to my question, Mr Parker had admitted that it was reasonably foreseeable in 1964 that exposure to excessive respirable asbestos fibres in the course of mixing and spraying asbestos created a danger of contracting asbestos related diseases including asbestosis and lung cancer, and that reasonably practicable methods were available to minimise this danger. This Tribunal is a specialist tribunal and I believe those matters to be beyond dispute.
Mr Parker could then usefully have identified the live issue as that expressed in his written submissions.
In any event, in addition to general propositions as to foreseeability and preventability, three relevant pieces of evidence arise from the tender.
(a) A statement by Dr Cooke published in the Journal Industrial Medicine in 1942 that: …[5 million particles per cubic foot of air]… is a very small concentration, so small in fact that the condition may look good even to a critical eye and still present an exposure greater than this low limit… if. . . there are no visible particles of dust escaping from the operation it is probable that the condition is satisfactory.
(b) Evidence by Dr Kilpatrick to the effect that if asbestos dust is visible in the working environment the Dreesen Standard of 5 million particles per cubic foot is exceeded.
(c) Evidence that cartridge masks, airline filtered masks, and exhaust fans were reasonably practicable measures available in 1964 to reduce the dangers of asbestos inhalation.
The Tribunal is well familiar with this evidence.
Further relevant evidence on this issue is given by Professor Henderson. He said that Mr Sim had grade 4 asbestosis with honeycombing, which was typically an outcome of very heavy exposure to asbestos. His report of 4 June 2009 referred to a German study, the 1997 BK-Report Faserjahre, as recording airborne concentrations of asbestos fibre of up to 300-400 fibres/ml near asbestos spraying machines.
That report also referred to the dangers of asbestos spraying being the subject of correspondence in the mainstream medical Journal, The Lancet, as early as 1932.
The lay evidence confirms that Australian Asbestos was sufficiently aware of the danger to provide masks.. Unfortunately that evidence also confirms that the masks provided were inadequate for that purpose, Mr Sim's work was not properly supervised and he was not informed of the grave risks of inhaling asbestos fibre.
I do not believe it necessary that the plaintiff prove numerically the exact concentration of asbestos fibre inhaled by Mr Sim in the course of a working week. From the lay evidence, and the evidence of Dr Henderson, Dr Cooke, and Dr Kilpatrick, I infer that his exposure exceeded the then NHMRC recommended level of less than 5 million particles per cubic feet averaged over a working week.
In any event, the plaintiff having proved that spraying asbestos was an activity which created a foreseeable risk of harm requiring preventative measures by way of warnings and the provision of efficient respiratory protection, and also having proved that no such measures were taken, has discharged her onus in relation to foreseeability and breach of duty. A tactical onus shifts to the defendant to prove that it was conscious of the risk, and acted reasonably in order to protect Mr Sim from an asbestos concentration in excess of the standard.
Allianz called no evidence on the issue.
I find that Australian Asbestos, and each other employer, was in breach of its duty to properly inform Mr Sim of the dangers to which he was exposed, to provide him with either cartridge masks or air-line masks, to properly supervise his work to ensure that the masks were worn, and to provide exhaust fans to draw the asbestos fibre away from his breathing zone.
Insurance
Australian Asbestos
Allianz admits that it was the common law insurer of Australian Asbestos at all relevant times. It pleads in defence of the claim that the indemnity was limited to $40,000, however it calls no evidence in this regard, and concedes that this defence must fail (Wallaby Grip Ltd v QBE Insurance (Australia) Ltd; Stewart v QBE Insurance (Australia) Ltd [2010] HCA; (2010) 264 ALR 425).
Asbestospray Fireproofing
WorkCover does not admit that Asbestospray Fireproofing was insured by Vanguard Insurance Company Ltd.
Mr McCudden on 18 February 1995 swore an affidavit in proceedings by Mr Ciofani (PX 1). In this affidavit he stated that the employees of the business he conducted from 36 Chappel Street Marrickville between 1969 and 1972 were employees of Asbestospray Fireproofing and Insulation (NSW) Proprietary Limited.
He further stated:
In respect of Asbestos Spray Fireproofing & Insulation (NSW) Proprietary Limited I always took out workers compensation insurance and associated Policy, indemnifying Asbestos Spray Fireproofing & Insulation (NSW) Proprietary Limited from any liability to pay damages to its employees in respect of claims caused by the negligence of and breaches of statutory duty by that company with Vanguard insurance Company Ltd.
In a statement of 7 July 2009 (WorkCover 2) Mr McCudden said that when the business was sold in 1972 "this included the lease, the vehicles, the insurance policies and the employees".
WorkCover admits that between 10 May 1974 and 16 January 1975 Vanguard was the insurer Asbestospray Australasia.
In cross-examination Mr Sharpe suggested to Mr McCudden that his evidence concerning Vanguard as the insurer was not accurate. He was challenged with a portion of a statement he made on 12 January 1996 in connection with the claim by Mr Moraitis (WorkCover 1) in which he had said:
I am not sure which insurers wrote our workers compensation. When this case arose -I phoned Peter Hicks and he told me he felt he had arranged the cover with Vanguard Insurance
I did not necessarily recall the name of Vanguard Insurance otherwise.
I left my insurance files with the purchasers. I understand they may have continued the covers
In response to the challenge, Mr McCudden said:
Well it is accurate. I've been to so many of these cases, I've spoken to Peter Hicks and I do have documentation, or did have documentation, that said Vanguard.
I think it relevant that the statement identifying Vanguard as the insurer in the Ciofani matter was made one year before the statement made in the Moraitis matter that suggested doubt. Mr McCudden's memory may have temporarily faded in the interval between the two statements.
In an affidavit sworn on 20 February 1995 in the Ciofani matter, Mr Hicks said that in the early 1970s he was the manager of Nationwide Insurance Brokers and arranged policies of insurance for Mr McCudden's company, which he recalled as Asbestospray Corporation Proprietary Limited, including cover against liability under the NSW Workers Compensation Act. He said that, although he did not have in his possession documents in respect of these policies: "To the best of my recollection this insurance was obtained from Vanguard Insurance Proprietary Limited. "
When called, Mr Hicks said that he had been an insurance broker from 1951 and started his own business, Nationwide Insurance Brokers, on 1 January 1968. He confirmed that one of his clients was a company called "Asbestospray" where Bill McCudden was the manager or owner. He understood that he lost Mr McCudden's business when the business was sold because the new owners had contacts with another broker and "they took over the insurances that I had".
When tested in cross-examination, Mr Hicks said: "No, no. I'm quite sure in my mind that it was Vanguard. The major insurer I dealt with at that time didn't have a workers compensation licence".
Importantly, Mr Hicks said that with respect to common law liability "we always bought unlimited".
The suggestion that brokers for the new owners of the business continued to place the insurance with Vanguard is confirmed by a proposal to Vanguard for insurance from 10 May 1974 to 10 May 1975 made by Hewitt Cummins and Associates on behalf of Asbestospray Australasia tendered in evidence. This proposal limits common law indemnity to $100,000.
Mr Hicks was unable to recall when the policy with Vanguard was first taken out. He said "I remember taking it out, I had it for a period, but I can't tell you that period".
Because Mr McCudden said "In respect of Asbestos Spray Fireproofing & Insulation (NSW) Proprietary Limited I always took out workers compensation insurance … with Vanguard insurance Company Ltd", I regard his statement that the business he conducted from 36 Chappel Street Marrickville was "between 1969 and 1972" an error of recollection, and that as the business was conducted between 1967 and 1972, Vanguard was the insurer for the whole of that time.
WorkCover relies upon the evidence of Mr Stephen Byrnes, employed by CGU Insurance, an agent for WorkCover. For the last five years Mr Byrnes has been in charge of claims involving Vanguard Insurance. Mr Byrnes says that a search of the records of Vanguard located only one underwriting file under the name of "Asbestospray", and that documents in this file revealed no insurance documents for any company of that name in respect of any date prior to 10 May 1974, when Hewitt Cummins & Associates completed a proposal for the insurance of Asbestospray Corporation (Australasia) Proprietary Limited in respect of the period 10 May 1974 to 10 May 1975.
Ordinarily such evidence would weigh against accepting the evidence of Mr McCudden and Mr Hicks, but I hold considerable doubt as to both the reliability of Mr Byrnes' evidence, and the documentary system which he administers.
Pursuant to an order for discovery made by His Honour O'Meally P on 3 July 2009, the solicitors for WorkCover produced seven pages of documents including the proposal for insurance by Asbestospray Australasia for the period 10 May 1974 to 10 May 1975 with a common law cover of $100,000. Mr Byrnes said that those documents were produced by him after a search of his records.
On 10 January 2010 Mr Byrnes swore an affidavit of discovery in which he asserted that having searched through all the records of Vanguard Insurance Company, he was unable to answer the question whether there was any increase in the limit of indemnity during the period 1 May 1974 to 30 September 1975.
In this affidavit, his attention having been drawn to six Vanguard Insurance documents produced by the plaintiff relating to Asbestospray Australasia that he had not discovered, Mr Byrnes swore that: "there is no document in the records of Vanguard insurance Company Ltd either as an original or copy of any of [those] documents".
Despite this evidence, in an affidavit sworn after the commencement of this trial, and filed on 1 September 2010 Mr Byrnes exhibited a total of 29 documents which he had subsequently located, and which he now said were the true contents of the underwriting file for Asbestospray Australasia. Importantly, those documents include an endorsement for the policy for the period 16 January 1975 to 10 May 1975 increasing the limit of indemnity from $100,000 to $500,000.
Asked to explain how it is that these documents were not found in his searches of July 2009 and January 2010 Mr Byrnes said: "I have no idea".
Mr Byrnes said that there was no reference within his files to the Moraitis or Ciofani matters. From the dates appearing on the affidavits prepared for those matters tendered in evidence here, it is apparent that they were disposed of well before Mr Byrnes took up his present position. If underwriting documents were extracted for the purpose of conducting those cases, they may not have been returned.
The evidence of Mr Byrnes does not cause me to doubt the evidence of Mr McCudden and Mr Hicks.
I find that between mid-1967 and May 1972 when Mr Sim last worked for Asbestospray Fireproofing in an employment to the nature of which his asbestos diseases were due, there existed as between Asbestospray Fireproofing and Vanguard Insurance Company Ltd a contract of insurance whereby Vanguard agreed to indemnify Asbestospray Fireproofing in respect of its liability independently of the Workers Compensation Act, and that this indemnity was unlimited in amount.
Asbestospray Australasia
WorkCover admits that between 10 May 1974 and 17 September 1975 Vanguard insured Asbestospray Australasia against common law liability, with a limit of $100,000 until 16 January 1975, $500,000 from 7 January 1975 until 17 September 1975 when Mr Sim was last employed in an employment to the nature of which his disease was due for the purposes of s151AB of the Workers Compensation Act 1987.
A letter of 19 June 1974 from the Dust Diseases Board to Asbestospray Australasia following an inspection of the company's records noted that dust disease contributions in respect of wages paid for the years ended 10 May 1973 and 10 May 1974 were deficient to the extent of nearly $3,000. The letter requested that Asbestospray Australasia take the matter up with its insurers.
It is apparent from a letter of 12 July 1974 to the Dust Diseases Board, that Asbestospray Australasia referred the matter to Vanguard in the mistaken belief that Vanguard was the insurer. In that letter Vanguard advised that Vanguard did not handle Asbestospray Australasia's insurances at the relevant time.
It may be that the purchasers of Asbestospray Australasia naïvely believed, as did Mr McCudden, that the sale "included the lease, the vehicles, the insurance policies and the employees". Because Asbestospray Fireproofing had an existing policy with Vanguard, those purchasers may have believed that the benefit of the policy applied to the business, rather than to the corporate entity that owned the business.
If this were the case, it is probable, as Mr Sharpe has suggested, that Asbestospray Australasia was uninsured between June 1972 and 10 May 1974. In any event, the correspondence establishes to my satisfaction that Vanguard was not the insurer during that period.
Causation
This is not a case requiring a choice between competing causes such as was considered in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262.
There can be no real dispute that the several employments with each of Australian Asbestos, Asbestospray Fireproofing, Asbestospray Australasia, and Bells caused the severable disease of asbestosis.
Nor can there be any real dispute that the totality of the several periods of asbestos employment caused Mr Sim's cancer. The presence of asbestosis increases the risk of contracting lung cancer by a factor of between 5 and 10 over the background risk. Because Mr Sim stopped smoking 30 years before he died, every medical expert called in the plaintiff's case dismissed smoking as a cause of the cancer.
Nevertheless, the plaintiff cannot succeed against any defendant merely by proving that the aggregate exposure to asbestos caused the cancer (Amaca Pty Ltd v Ellis (2010) 240 CLR 111), and each defendant, calling no medical evidence, asserts that the plaintiff has failed to prove that the employment for which it is responsible materially contributed to the contraction of the cancer.
The Plaintiff's Evidence on Causation
Professor Henderson
Professor Douglas Henderson is a Professor of Pathology. His professional and academic interests over the last 35 years have concentrated upon asbestos related disorders, especially lung cancer and malignant mesothelioma, including their diagnosis, causation and pathogenesis. He is also a member of the Pathology Panel of the International Association for the Study of Lung Cancer. He was invited by the World Health Organisation, to participate in the production of the WHO Blue Book on the Pathology and Genesis of Tumours of the Lungs.
He was one of four scientific advisers appointed by the World Trade Organisation for the dispute between Canada and the European communities (most notably France), concerning the ban on importation of Quebec chrysotile into France. He has conducted original research into The Molecular Basis of Mutations Arising from Exposure to Asbestos Fibres. He has also co-authored numerous book chapters, and publications dealing with asbestos related lung cancer. During his professional career he has personally examined pathology samples from several thousand cases of malignancies. He is an internationally acknowledged authority on the pathogenesis of asbestos related diseases, including lung cancer.
Professor Henderson holds the opinion that each of Mr Sim's employments: "made a significant and substantial causal contribution to the development of each of his asbestosis and lung cancer". In his report of 31 August 2010 he explained the relevant pathology as follows:
Current understanding of the patho-biological mechanisms for lung cancer and mesothelioma development indicates that epithelial/mesothelial cells are being initiated, initiated cells promoted, and altered cells proliferating at different times, apparently at least in part as a result of free radical generation, with oncogenes and tumour suppressive genes being activated and inactivated. At some stage, the proliferative airway/mesothelial cells are thought to become resistant to apoptosis [orderly destruction of defective cells] . At the same time, fibres are cleared at different rates and, if exposure is continuing, they continue to be deposited in the lung.
All these processes at a cellular level are probabilistic: i.e. the probability of fibre/cell interaction (or, more accurately, fibre/cells interactions) depends on the number of fibres and the number of cells involved at any point in time and space. Hence, simplistically, the greater the number of asbestos fibres, the more free radicals (generated from the fibres or their interactions with cells such as macrophages) and the greater probability of initiated, promoted or proliferative cells at any given time point.
From a current understanding of the multistage model for cancer induction by asbestos, it follows that each of all exposures to asbestos - recalled or unrecognised - contributes incrementally and cumulatively to the singular disease outcome lung cancer or mesothelioma (provided that the latency interval between any one exposure and the subsequent diagnosis of the cancer is not too short for a carcinogenic effect).
In evidence Professor Henderson said this:
The simple fact is that if one has say four separate asbestos exposures, one cannot fractionate a causal effect or even one stage in the multi step progression to an indivisible outcome like lung cancer, and attribute that stage to one of those four exposures. The point is, … that amphibole fibres [amosite and crocidolite] in particular which are known to be the most carcinogenic forms of asbestos, are characterised by bio-persistence, that is once deposited in tissues, they will remain there for year after year after year, and they will interact with cells such as macrophages and they will generate toxic chemicals known as reactive oxygen and reactive nitrogen species, which are known then to be injurious to the DNA of various cells, for example, airway epithelial cells in the case of lung cancer.
So that when you have multiple exposures, one cannot say that one stage is related to exposure 1 and that that exposure or its effects then cease and then one goes on to exposure 2, because the fibres are persistent to the tissue year after year and as additional exposures occur, additional fibres are deposited in the tissues, so that there are more fibres interacting with more cells generating more toxic chemicals increasing the toxicity to the DNA of airway epithelial cells and increasing the probability of a set of mutations in what is a chain of necessary causal preliminary events on the pathway to lung cancer which is an indivisible and singular outcome.
Professor David Bryant
Professor Bryant is a specialist physician, and the chairman of the Medical Authority of the Dust Diseases Board of NSW. He is also a member of the Board of Directors of the Asbestos Diseases Research Foundation.
In a report of 17 May 2010 Professor Bryant said this:
It is known that the risk of lung cancer is materially increased in individuals with asbestosis, and that the higher dose of inhaled asbestos the greater is the [risk of] development of lung cancer. I am therefore of the view that each of the periods of asbestos exposure sustained by the late Mr David Sim (i.e. when employed at Australian Asbestos, Asbestospray Corporation and Bells Asbestos) is likely to have made a material contribution to his development of lung cancer.
The notion of risk is prospective. Professor Bryant sufficiently clearly expresses the opinion that although the exposure to asbestos created a risk, that risk came home when the cancer developed, and the cause of that cancer was the exposure.
In this report Professor Bryant expressly adopted the statement by Professor Henderson in a report of 19 April 2010 that:
It is known that asbestos can induce lung cancer, the causal relationship being one of linear dose response effect with no threshold. That is, the greater the inhaled "dose" the greater the risk of lung cancer and the causal contribution by asbestos for lung cancer induction.
Although objection was taken to that evidence being given in this form, it remains an expression of personal opinion within the medical expertise of Professor Bryant, and is admissible.
In evidence, Professor Bryant said that the cancer was a response to Mr Sim's total fibre burden, and that:
In my view, this man has been exposed in all probability to enough asbestos in each year of his employment to be capable of causing lung cancer if one takes the view that it is likely that he has been exposed to between 20 and 40 fibre/ml years during his total employment, in each year of employment. Therefore in each year that this man was employed, he was exposed to enough asbestos to cause lung cancer in its own right.
Dr Deborah Yates
Dr Yates is a highly qualified Consultant Thoracic Physician with a particular interest in occupational lung diseases. In addition to her qualifications in Thoracic Medicine she has a Masters in Occupational Medicine conferred by the London School of Hygiene and Tropical Medicine, and an MD in Respiratory Medicine from Cambridge University. She publishes regularly in the area of occupational lung disease. In the course of cross examination it relevantly emerged that she also has a first-class honours degree in the study of Pathology.
Dr Yates is of the opinion that: "on the balance of probabilities, each of Mr Sim's employments ... materially contributed to the development of his asbestosis, asbestos related diseases, and lung cancer".
Dr Yates said that: "my opinion as both a medical researcher and scientist … [and] as a physician, is that every individual exposure contributed towards the development of Mr Sim's lung cancer …"
Dr Yates expressly agreed with Professor Henderson's exposition of the pathology. She also said:
"…because asbestos exposure is a necessary pre-requisite towards the development of cancer and is dose related, each of those employments, and also each inflammatory insult produced by asbestos fibre which was related to the durability and the retention within the lung of those fibres, each contributed towards the [risk of the] development of the cancer, which then came home [when] Mr Sim was diagnosed with lung cancer in 2009" .
The Defendant's Case on Causation
The following arguments are advanced by Mr Parker SC for Allianz in respect of employment by Australian Asbestos, but are also adopted by WorkCover in respect of employment by Asbestospray Fireproofing and Asbestospray Australasia.
Mr Parker contends that:
(a) Because it is impossible on the current state of scientific knowledge to fully identify the sequence of mutagenic events that caused a lung cancer in an individual, it is impossible to assert that all retained fibres contributed to the particular biochemical reaction which led ultimately to the development of the cancer.
(b) In this circumstance the only rational basis for concluding that asbestos fibre for which a defendant is liable caused or contributed to those events, is on the basis of the laws of mathematical probability based on whether the attributable risk fraction for the exposure in question exceed 50 per cent.
The Causative Effect of All Fibres
The first proposition advanced reflects the factual basis upon which the House of Lords proceeded in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL (20 June 2000) where Lord Bingham said:
The mechanism by which a normal mesothelial cell is transformed into a mesothelioma cell is not known. It is believed by the best medical opinion to involve a multistage process, in which six or seven genetic changes occur in a normal cell to render it malignant. Asbestos acts in at least one of those stages and may (but this is uncertain) act in more than one… It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater quantity of dust and fibres inhaled, the greater the risk. But the condition may be caused by a single fibre, a few fibres, or many fibres: medical opinion holds none of these possibilities is more probable than any other, and the condition is not aggravated by further exposure.
Professor Henderson is aware of this decision, and says that this view of the medicine "simply does not hold up in biomedical terms".
As I understand Professor Henderson's evidence, a cell mutates, not because of mechanical impingement upon the cell by an identifiable asbestos fibre, but because of its exposure to free radicals, toxic to DNA. These radicals are released by the response of the immune system, not only to the presence of any particular identifiable fibre or fibres, but to the presence of all retained fibres. Because the ultimate mutation occurs shortly before the development of the cancer, all retained fibres are causally implicated in a cascading chain of mutations.
His opinion is encapsulated in an exchange in cross-examination, where Mr Parker sought to isolate a mutant ancestral cell caused by a particular asbestos exposure as the single cause of the cancer.
Professor Henderson responded by pointing out that, even if it were accepted that an identifiable ancestral cell was generated in a discrete period of employment, further necessary mutations of that cell are modulated by the totality of reactive oxygen and reactive nitrogen species released in the immune system's continuing response to the presence of all retained asbestos fibres, inhaled both before and after the generation of that particular ancestral cell.
Q. So looking at the ultimate development of the cancer, it is possible to trace it back to a series of finite number of individual events at which first the ancestor cell has become genomically unstable and then further mutations have occurred to its descendant cells until it eventually becomes a cancer cell and then develops into a tumour, correct?
A. Well, I don't know what you mean by the expression a series of finite steps. All I'd say is that when you have a deposition of inhaled asbestos fibres especially amphibole fibres those fibres will interact with otherwise normal cells, macrophages release toxic chemicals which can then impact on otherwise normally replicating bronchial epithelial cells and induce mutations and the more fibres that are inhaled and deposited the greater the number of the toxic chemicals, the greater the number of the mutations, the greater number of epigenetic events, for example, autocrine cell stimulation, which will lead to this expanded population of cells and the point is that all of these factors accumulate in a necessary obligate causal chain of precancerous events finally leading up to the final event which becomes the cancer.
Professor Henderson graphically illustrated his opinion with a diagram, PX 26, depicting the causal effect of retained asbestos fibres at several intermediate stages of the mutations in which healthy cells ultimately become cancerous.
Professor Henderson is well qualified to express his opinion. It is an opinion supported by Dr Yates who was also well qualified in medicine and pathology. No defendant calls medical evidence to the contrary.
It may be accepted that it is impossible on the current state of scientific knowledge to fully identify the sequence of mutagenic events that caused a lung cancer in an individual. That fact is not decisive. A fact may be proved by medical opinion if that opinion is substantially based on specialised knowledge gained from a witness's training study and experience, and as Basten JA said in Amaba Pty Ltd v Booth [2010] NSWCA at 116:
The civil standard of proof, on the balance of probabilities, permits a yawning gap between complete understanding and sufficient understanding.
The defendants called no medical evidence contrary to the opinions expressed by Professors Bryant and Henderson and Dr Yates.
The Court of Appeal has twice held that the Tribunal is entitled to accept Dr Henderson's "cumulative effect" theory of causation, and to reject the defendant's proposition that repeated inhalation of asbestos fibre creates a number of separate and independent possible causes of cancer. See E.M.Baldwin v Plane (1998) 17 NSWCCR 434 and Amaba Pty Ltd v Booth [2010] NSWCA 344.
The Doubling of Risk
The submission that mathematical proof of the doubling of risk is the sole criteria of causation in cancer cases is quite wrong. The cases upon which Mr Parker relies: McDonald v State Rail Authority (1998) 7 NSWCCR, Judd v Amaca Pty Ltd [2003] NSWDDT 1, Evans v Queanbeyan Shire Council and Amaca Pty Ltd v Ellis (2010) 240 CLR 111, all concerned the necessity to make a rational election between two competing causes. This is not such a case.
In submitting that Mr Sim's exposure to asbestos fibre in the employment of Australian Asbestos did not double his background risk of contracting lung cancer, Mr Parker relies upon the Helsinki criterion as establishing 25 fibre/ml/years to predominantly amphibole exposure as a threshold above which the risk is doubled.
He then relies upon the evidence of Professor Bryant that of Mr Sim's cumulative exposure of 98 fibre/ml/years, the employment of Australian Asbestos contributed only 13 fibre/ml/years, a contribution insufficient to double the background risk of contracting lung cancer.
He concludes in his written submissions:
What this means is that if Mr Sim had never had any asbestos exposure after his employment with Australian Asbestos, a probability analysis would overwhelmingly attribute his cancer to background. The plaintiff cannot be in a better position because, quite independently of his Australian Asbestos exposure, Mr Sim was later exposed to asbestos while employed by other employers.
This submission must fail for several reasons.
The first is that epidemiological studies are concerned with risk not cause. Once the cancer has developed medical science may attribute that cancer to a causal factor notwithstanding that, prospectively, that factor was not seen as a probable cause.
The seminal paper by Hodgson and Darnton derived estimates for the increase in the risk of lung cancer at 5.2% per fibre /ml year of exposure to amosite. (See PX 20). Professor Bryant estimated Mr Sim's cumulative asbestos exposure from all employments to be 98 fibre /ml year of exposure. I have found these fibres to be amosite. This increased his risk of contracting lung cancer by over 500 per cent above background.
The medical experts in this case have reasonably concluded the cause of Mr Sim's cancer is asbestos. Although the exposure at Australian Asbestos may have increased the background risk by only 70 per cent, the present enquiry is not concerned with an assessment of risk, but with the question whether that discrete exposure materially contributed to the cause.
It is idle to speculate as to the degree by which the tortious exposure may have increased the background risk of contracting cancer, when no expert suggests that the background risk is a possible alternative and independent cause of Mr Sim's cancer.
The second reason is that epidemiological evidence cannot prove that exposure to a toxic agent at a certain concentration did not cause a corresponding disease in an instant case.
Epidemiological predictions hold for the average member of a population, not for all members of that population. As Professor Henderson points out in his report 31 August 2010:
The relative risk (or odds ratio) derived as an average across the population cannot be applied simply and automatically to every individual comprising that population. For example, a particular adult human group may have an average height of 175 cm, but this does not mean that each and every individual in that group measures 175 cm in height.
Professor Henderson suggests that because of idiosyncratic considerations such as chance, genetic susceptibility, or differential rates of clearance of fibres, the background risk of Mr Sim contracting lung cancer may have doubled at 13 fibre /ml years of exposure to amosite.
A third reason for rejecting the submission is that the incidence of lung cancer rises with increasing doses of asbestos fibre. That circumstance gives rise to an inference that all contributions are causative. Mr Parker cannot advance any scientific basis upon which a particular period of exposure may be exculpated.
Professor Henderson said in evidence that he agreed with a comment by Professor Geoffrey Berry, the eminent biostatistician qualified by Allianz, that:
In the absence of quantitative exposure information it would be invalid to conclude that the lung cancer was caused only by the exposure while employed by Australian Asbestos. There were three other periods of exposure that would have made a contribution to the excess in risk, and there is no scientific basis for saying that only one of these four periods of employment [caused] the lung cancer.
Professor Henderson explained:
If one has an exposure which has contributed say, 60% to the total fibre pool and there are two other exposures, each of which has contributed 20% I don't think one can say that the cancer which has developed is the outcome, even on a probability basis, from the 60%. It is the total 100%-the 60+20+20-which is the cumulative exposure which has been brought home in terms of the development of the cancer.
It is significant that no defendant calls expert evidence on the issue of causation. Allianz obtained a report from Professor Geoffrey Berry. WorkCover arranged for Associate Professor A.B.X. Breslin, a highly regarded respiratory physician with extensive experience in asbestos related diseases, to examine Mr Sim. Neither expert is called, and I draw the inference that neither would have advanced the case argued by the defendants.
I find that inhalation of asbestos fibres in the employment of each defendant materially contributed to the cause of Mr Sim's lung cancer.
Damages
Mr Sim was born on 11 January 1938, and died on 6 July 2009 at the age of 71.
In 1996, at the age of 58, Mr Sim became aware of mild breathlessness on exertion. On 7 May 1996 he consulted Dr Deborah Yates, a consultant thoracic physician. Dr Yates diagnosed earlier asbestosis, which she then thought would not lead to anything other than mild breathlessness, although it did increase his risk of developing lung cancer. This diagnosis made Mr Sim upset and anxious, because he knew people who had died of asbestos related diseases.
From about 2001 Mr Sim's breathlessness increased, and he stopped going on bush walks and swimming. He became puffed when bending over, and was limited in his ability to play with his grandchildren. He was then only 63 years old.
On 30 November 2006 Dr Yates reviewed Mr Sim and found him to be more symptomatic, with increased cough and breathlessness. A CT scan confirmed diffuse pleural thickening and asbestosis. He was hospitalised on 6 December 2006 for treatment of chest infection.
In July 2007 Dr Yates found Mr Sim to be more breathless on exertion, and in May 2008 his deterioration was confirmed by lung function studies. In October 2008 Dr Yates diagnosed myositis, a complication of asbestosis causing increased breathlessness. At this stage Mr Sim found himself breathless doing simple things such as tying his shoelaces, getting dressed, and drying himself after a shower. He said that "I could not do much at all apart from reading books".
In September 2008 Mr Sim went from bad to worse. He had trouble rising from chairs, and developed severe pain in his chest that travelled to his back and down his right arm. He had trouble with his legs, he was weak and his balance was poor. In December 2008 he was admitted to St Vincents Hospital, and he was thereafter regularly hospitalised in futile attempts to relieve his chest and back pain and his breathlessness.
In January 2009 Dr Yates diagnosed lung cancer, with multiple metastases in the spine. Mr Sim said that upon learning of this diagnosis:
I was devastated. My worst fears had come true. I know what the future holds for me and I live in fear of it. I think about my beautiful grandchildren and know that I will never play with them again. I cannot describe how upset and angry I am about this.
On 7 June 2009, because of worsening chest pain, Mr Sim was admitted to hospital where he remained until his death on 6 July 2009.
Both Mrs Sim and Dr Yates spoke of Mr Sim's uncomplaining and stoic nature. Dr Yates said that he always minimised his symptoms. Nevertheless it is obvious that in the last six months of his life, Mr Sim suffered great pain. On 21 June 2009, when examined by Dr David Bryant, Mr Sim said that he was unable to move very much at all, because any movement provoked severe pain especially in his chest and in his right shoulder and arm.
The lung cancer appears to have formed in early 2008. In May 2008 Dr Yates first suspected its presence as a cause of symptoms. Before 2008 symptoms were caused by asbestosis, and the damages in respect of that disease are severable as between tortfeasors.
Damages for Asbestosis:
General Damages
The disease of asbestosis caused increasing breathlessness over a period of seven years, initially foreclosing recreational activities requiring only modest exertion, and ultimately imposing a sedentary life upon Mr Sim where he could not do much at all other than read books. Professor Henderson characterised Mr Sim's asbestosis as "Grade 4", the most severe grade. Professor Bryant estimated Mr Sim suffered a 45 per cent whole person impairment because of his asbestosis and asbestos related pleural disease.
I assess damages for asbestosis in the sum of $75,000. I allow interest at 2% for seven years: $10, 500, and for a further two years (from the onset of lung cancer to date) at 4%: $6000.
Gratuitous Assistance Occasioned by Asbestosis
Mrs Sim said that from about 2003, assisted by her son, she did the mowing and gardening around the house, which took 2 to 3 hours each week. I allow two hours per week from 17 May 2003 to 31 December 2007.
I allow $12,870.49 inclusive of interest in accordance with the calculations of the plaintiff's solicitors.
The total award all damages appropriate for asbestosis is $104,370.49.
These damages are divisible. The defendants are severally liable for a total of 97 per cent of the damage, $101,239.37. On the evidence of exposure, it is reasonable to divide their several liability approximately in accordance with the length of employment:
Australian Asbestos two years, 14%;
Asbestospray Fire Proofing five years, 36%;
Asbestospray Australasia three years, 21%;
Bells four years, 29%.
In money terms the plaintiff is entitled to the following judgements in respect of her late husband's asbestosis:
Against Allianz Australia Ltd: $14,173.51
Against WorkCover Authority (NSW): $36,446.17 + $21,260.26 = $57,706.43
Against Wallaby Grip (BAE) Pty Ltd (in liquidation): $29,359.41
Damages for Lung Cancer
General Damages
After 2008 Mr Sim's symptoms were subsumed within his disease of cancer. He suffered terribly, both physically and emotionally, and was deprived of the chance of living to the average life expectancy of 86 years, or possibly longer.
I assess damages for his lung cancer in the sum of $250,000. I allow interest at 2% for one year: $5,000, and at 4% for one year, $10,000.
Loss or Expectation of Life
I allow a conventional sum of $15,000.
Gratuitous Care and Domestic Assistance Occasioned by Lung Cancer
I allow two hours per week from 1 January 2008 to 6 July 2009 in respect of property maintenance.
In the period 1 January 2008 to 31 December 2008 Mr Sim became progressively more disabled, requiring increasing personal care and assistance. I allow, as an average, three hours each day for services including the provision of cleaning, meals, laundry, and personal care.
In the period 1 January 2009 to 6 July 2009 Mr Sim, when he was not in hospital, remained gravely ill, requiring Mrs Sim to provide, in addition to these continuing personal services, extensive care and nursing for her husband. A claim is made for six hours each day, which I regard as reasonable.
The calculations in respect of personal care must exclude those periods totalling 13 weeks during which Mr Sim was hospitalised.
I award $37,561.85 inclusive of interest in accordance with the calculations by the plaintiff's solicitors.
Summary of damages for lung cancer:
General Damages: $250,000
Interest on General Damages: $15,000
Loss of Expectation of Life: $15,000
Gratuitous Care: $37,561.85
Total $317,561.85
Orders
Judgement for the plaintiff against Allianz Australia Ltd in the sum of $14,173.51
Judgement for the plaintiff against WorkCover Authority (NSW) in the sum of $57,706.43
Judgement for the plaintiff against Wallaby Grip (BAE) Ltd in the sum of $29,359.41
Additionally, Judgement for the plaintiff, against Allianz Australia Ltd, WorkCover Authority (NSW), and Wallaby Grip (BAE) Pty Ltd , jointly and severally, in the sum of $317,561.85.
I will hear the parties on costs.
Mr PCB Semmler QC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff.
Mr TGR Parker SC with Mr DT Miller instructed by Ellison Tillyard Callanan appeared for the first defendant.
Mr J Sharpe instructed by Thompson Cooper Lawyers appeared for the second defendant
Mt T Morahan with Mr C Fini instructed by Hicksons appeared for the third defendant.