Miller v The State of South Australia & Ors [2025] SAET 119

Miller v The State of South Australia & Ors [2025] SAET 119 | Case summary | Zoe

[126]

Mr Miller left school in 1981 and completed a four-year apprenticeship as an electrician with Plasteel, a company that constructed various electrical items for use by electrical contractors including electrical switchboards for commercial use.[7]
During his apprenticeship, Mr Miller was required to attend TAFE. He was not provided with any information about asbestos at TAFE or otherwise during the apprenticeship.[8]
At Plasteel, one of Mr Miller's jobs was to build electrical switchboards. He produced about one switchboard per month. The sheets came pre-cut but he had to cut 'U' shaped slats with a bandsaw and drill holes in the switchboard. The task took a few hours to complete but not all of the time was spent was drilling and cutting. Dust was generated. Mr Miller did not know what the sheets were made of, but they were black and referred to as Zelemite or Bakelite. On a couple of occasions, a thinner black sheet was also used to install a circuit breaker. The thinner sheets also had to be cut to size with a bandsaw which created dust.[9]
Some fuses attached to switchboards contained asbestos cloth to retard fire. Occasionally the cloth would fall out of place and Mr Miller would use his fingers to push it back in. He did not recall that generating dust.[10]
Mr Miller also wired heater boxes. Some of the cabling in the boxes was coated with asbestos cloth. The coating was a white, woven material, which left a white dusty residue on his hands when touched.[11]
After completing his apprenticeship Mr Miller took a year off work.
In about 1987, Mr Miller commenced work with O'Donnell Griffin. He worked in the switchboard division for about a year. He did not recall using any black sheeting, Zelemite, Bakelite, asbestos cloth or asbestos coated wires. All the switchboards he worked on were metal. The remainder of his time with O'Donnell Griffin was spent performing electrical work on site. Mr Miller is not aware of having any exposure to asbestos whilst working for O'Donnell Griffin.[12]
In about 1988, Mr Miller commenced working for Kilpatrick Green as an electrician. He remained there for two to three years working on new commercial construction. He is not aware of having any exposure to asbestos in that time.[13]
In 1991, Mr Miller worked as an electrician for Main Industrial for three to four months. He is not aware of being exposed to asbestos in that time.[14]

[127]

Mr Miller started working for Manpower in 1991. He was sent to work at the RAH in mid-1991 and remained there for about six months. He worked with two witnesses, Russell Villiers and Dean Bastian, performing similar work to them and working in the same buildings as they did.[15] The RAH has been demolished and replaced by another hospital of the same name.
At the RAH, Mr Miller performed project-based refurbishment work involving upgrading electrical equipment and wiring. By reference to a map of the RAH,[16] he described performing a lot of work on multiple levels of the East Wing and in service risers as well as other areas of the map coloured pink, such as the Theatre Block and the catacombs.[17]
The catacombs were a series of passages in the basement of the RAH where services, including pipes and electrical cabling ran underneath the buildings. They were connected to the service risers and were confined spaces in which it was not possible to stand up straight. Mr Miller spent at least a week or two working in the catacombs over the total time he worked at the RAH. This work usually involved pulling electrical cables through the tunnels.[18]
Mr Miller described the parts of the RAH that he performed work in as very dusty and dirty. He stated that the RAH was dustier, dirtier and a worse place to work in than any other place where he has worked.[19]
To perform electrical wiring work, Mr Miller often had to enter ceiling spaces and service risers. The risers ran from the basement of buildings all the way to the top floor and contained electrical equipment and cabling.[20]
Mr Miller deposed that it was common knowledge among RAH workers that asbestos was present in ceiling spaces and service risers. He learned that information from talking to other tradesmen who told him they had worked with asbestos for decades. His knowledge of asbestos came from co-workers and was general in nature. His perception was that the risk of being injured by exposure to asbestos was minimal. No mention was made of cancer or death. He did not know and was not told that much of the asbestos was blue asbestos, and that exposure to small quantities of it could cause mesothelioma. He was not told and did not know that there was no safe level of exposure to asbestos, nor that taking the dust home on his clothes could expose his wife and children to illness or death. He said that had he known these dangers he would not have continued to work in the presence of asbestos and would have left the RAH immediately.
Mr Miller deposed that he was never given a written code, procedure or protocol about what to do if he encountered asbestos at the RAH. He received no training from Manpower or the RAH about how to work safely with asbestos. He was never given a mask, respirator or other personal protective equipment (PPE) to wear at the RAH and never wore any PPE. He deposed that had he been provided with PPE, he would have used it.[21]
When working in ceiling spaces and service risers, Mr Miller saw sprayed asbestos insulation on steel beams. He stated that it looked old, was dark blue-grey in colour and had a rough surface with a flaky and fluffy texture. He also saw blue material he described as asbestos in clumps with dust around it not attached to steel beams. When working in the catacombs underneath the RAH, Mr Miller stated that he frequently walked on, disturbed and kicked up clumps of the blue-grey material.[22]
To enter a ceiling space to perform work, Mr Miller had to remove a ceiling tile. Ceiling tiles rested on aluminium hangers suspended from the concrete slab above them. Often the tiles were coated in blue-grey dust, which was disturbed when a tile was removed. The dust coated Mr Miller's face and clothes. Sometime clumps of material fell down directly onto to his face and clothes when he was removing a tile. He regularly inhaled the dust created by removing tiles.[23]
When performing electrical work in a ceiling space, Mr Miller's head and arms in were above the level of the ceiling tiles and in the ceiling space. He could see what he described as sprayed-on asbestos and fallen clumps of it. He deposed that his work in ceilings involved pushing and pulling cables which disturbed the dust and left it coating his face and hair.[24]
Services ran up and down the service risers and across the ceiling spaces of buildings. Service risers were accessed through a door on each floor leading to a confined space of about 1 to 1.5 square metres. Mr Miller and other tradesmen constantly needed to access those areas. In such areas, Mr Miller could see steel beams in the ceiling space adjacent to the risers which were almost always coated in deteriorated dark blue-grey asbestos that was flaky and fluffy. Equipment and pipes in the service risers were almost always coated in a dark blue-grey dust which was easily disturbed. Mr Miller stated that he often had to brush the dust away before commencing work. He regularly inhaled the dust when working in these areas and a residue was left in his hair and on his face and clothes. He would sometimes only work in the risers for half an hour, but would often be in and out of risers all day.[25]
Mr Miller deposed that he regularly cut and drilled through wall cavities while completing his work. That generated dust, which landed on his clothes and face and which he inhaled as his nose and mouth were within arms' length of the source of the dust.[26]
In his first affidavit, Mr Miller estimated working in spaces where he saw asbestos multiple times a week and sometimes several times a day. He stated that jobs performed in ceiling spaces could take an hour or longer.[27]
Mr Miller was never provided with a mask or other PPE to prevent inhalation of dust, nor was he warned about the potential danger of asbestos dust to his health while working in these areas. He had heard of a device known as the bubble that was used to contain asbestos dust in ceiling spaces, but he never saw or used one nor was he trained or directed to use one. He did not see PPE being used by workers in the ceiling spaces, service risers or catacombs and no one at Manpower or the RAH suggested that he should use PPE.[28]
Mr Miller deposed that he often saw fluffy clumps of broken off sprayed dark blue grey asbestos in the catacombs, particularly near the service risers. He never saw anyone clean the floor of the catacombs. At times he had to work over clumps left on the floor, which he could not help but disturb. He saw it in the air and became coated in dust on his face, hair and clothes.[29]
Mr Miller deposed that the pipes in the catacombs were insulated with lagging, comprised of a different type of asbestos to that sprayed on the steel beams. The lagging was white and looked like Plaster of Paris that had dried hard. It looked old and parts of it hung off the pipes or had fallen onto the floor. Mr Miller stated that he would regularly rub against the pipes when working and disturb the lagging or kick up dust with his boots. He would regularly inhale the dust, and it was left in his hair and on his clothes when he worked in the catacombs.[30]

[128]

Mr Miller said that his dislike of working conditions at the RAH led him to leave Manpower and start working for himself in or about late 1991.
One of the companies Mr Miller performed work for was Total Electrical. He was contracted by Total Electrical on and off for a period of about a year to do domestic electrical work.[31] He installed residual current devices. The work was mainly performed on houses that were 15-20 years old or older in the northern suburbs of metropolitan Adelaide. He was required to drill through pre-existing switchboards and fibrocement sheets used to line eaves. He also drilled through and cut fibrocement sheets used for wall cladding for some installations, for which he used power tools. He stated that these were dusty jobs which he estimated doing at least weekly, and sometimes several times a day. He stated that he regularly inhaled dust when using power tools to drill and cut. At times the dust fell onto his face as he worked. The fibro-sheeting was stamped with the word Hardiflex.[32] Mr Miller did not recall seeing any warnings about exposure to asbestos or the dangers of asbestos on the back of Hardiflex sheets.[33]
Mr Miller also performed contract work for Bathroom Concepts on and off for approximately a year and a half in the early 1990s. He completed electrical work for bathroom renovations, mostly on homes, the wet areas of which were usually timber-framed and lined with fibro cement sheeting. The fibro sheeting was branded Versilux.[34]
The work Mr Miller did for Bathroom Concepts involved installing electrical cabling behind wall sheeting in bathrooms before tiling was done. Most of the houses he worked in were built in the 1960s to 1980s.[35]
A Bathroom Concepts employee performed demolition work. Mr Miller deposed that he was often on-site when demolition was taking place doing electrical work or waiting to commence doing it. He stated that he was often present when the fibro sheets were removed. Piles of broken fibro sheets were left around the site. Some of them were some stamped Villaboard. At times he had to move or clean up the broken sheets to perform his work. That generated dust in the air which he breathed. He had dust on his hands and face after doing this work.[36]
Mr Miller often saw the back of the fibro sheets that had been removed from bathrooms and noticed that they had a different texture to the front. He never saw a warning on the removed sheets, nor was he told the sheeting was potentially dangerous by anyone at Bathroom Concepts.[37]
Outside of sub-contract work for Total Electrical and Bathroom Concepts, Mr Miller performed some private work, usually domestic electrical work in houses that were 10 years old or older. While he had to work in roof spaces with corrugated fibro sheets known as Deep Six, he never cut or drilled through them. He continued to cut and drill through fibro cement sheets lining eaves, on external cladding and in wet areas, using power tools which generated dust.[38] He was not aware that the work posed a risk to his health. He did not realise that fibro cement sheeting manufactured before the 1980s contained asbestos. He never saw any warnings on the material itself or in the hardware stores where he purchased the materials, nor was anything said at any of the building sites he worked on. He deposed that he would not have done the work in question had he known the risk to himself and his family.[39]

[129]

By the mid-1990s, Mr Miller was performing a lot of retail and construction project work. In November 1997 he incorporated David Miller Electrical Pty Ltd, a company which traded as NGC Electrical (SA) (NGC). Approximately 60% of the work performed by NGC now is commercial retail work, including work from well-known retailers such as Peter Alexander, Smiggle and Nike. NGC also does larger commercial projects for schools and government work. The business has grown and now employs 11 tradespeople and hosts 10-15 apprentices at any time.[40]
Mr Miller has not worked on the tools for NGC in the last 20 years or so. As managing director his role involves maintaining contact with clients and potential clients, providing quotes, arranging the finances and insurance and organising materials and deliveries. Mr Miller considers that he generates that the goodwill of the business.[41]
Mr Miller is the sole owner of NGC but some of the profits of the business are distributed to Ms England. Daniel Bourke has worked with Mr Miller at NGC for 17-18 years and is Mr Miller's second in charge. Prior to his diagnosis, Mr Miller worked full time six days a week, eight hours a day on weekdays and a few hours on Saturdays. He has an office in Torrensville and would also work from home. Neither Mr Miller nor Ms England had plans to retire. He stated that he had intended to work for as long as possible, to 75 or older. He has little by way of savings or superannuation and lost most of his assets in the property settlement following a divorce. He had just started to rebuild his finances when he was diagnosed with mesothelioma. Prior to that, he saw no reason why he would not have been able to continue running his business for at least another 15 years. That all changed after the diagnosis.[42]
Mr Miller has continued to work as best he can since becoming unwell, but has not been able to work more than two to three hours per day since having surgery on 19 June 2024. He remains on call for customers and staff. He hopes to cease work as soon as possible, but cannot do so if he wishes to get the most out of his business.[43]
While Mr Miller considers that Mr Bourke is probably the only person capable of taking over the business, Mr Miller considers there is no commercial incentive for Mr Bourke to do so if Mr Miller is not part of the business. In July 2024, Mr Bourke's base rate of pay was increased by $10,000 to $120,000 per annum as compensation for the extra work he is doing given Mr Miller's reduced hours. Mr Bourke now also receives a bonus of 15% of the profits of the business each quarter, which amounted to $50,000 in the quarter before Mr Miller completed his affidavit.[44]
Mr Miller's work clothes, travel, fuel, mobile phone and technology expenses are paid for by the business. He said that his personal expenses are modest as a result.[45]

[130]

Until 2024 Mr Miller enjoyed very good health. He had his heart checked in 2022 and now takes medication to control cholesterol. He has never had a serious health problem. He never had a day off work during the time he was self-employed. He did not have a regular GP as he never needed to see a doctor.[46]
In February and March 2024, Mr Miller said his belly started to get much larger. Initially he attributed the change to drinking too much beer, but despite ceasing beer, the problem seemed to get worse. By early May he could not tie his shoelaces because of the size of his abdomen.[47]
Mr Miller attended a GP on 3 May 2024. He was sent for a blood test and scan. Unhappy with the response, Mr Miller attended the Calvary Adelaide Hospital (Calvary) Emergency Department (ED) on 4 May. He underwent a CT scan of his abdomen and pelvis, which revealed a large collection of fluid in his abdomen. He was admitted to hospital and a drain put into his abdomen, through which 28 litres of fluid was drained within three days. Mr Miller felt better after the fluid was drained but was distressed.[48]
Dr Siew Ung Wong, consultant physician, asked Mr Miller about his exposure to dust at work and said cancer was a possible cause of the fluid. Mr Miller underwent a laparotomy on 9 May 2024. He was referred to Dr Nigel Da Silver, surgeon, who put a camera in his abdomen and took a biopsy from the lining of his abdomen. After undergoing another CT scan of his abdomen, Mr Miller was told he had malignant peritoneal mesothelioma. He and Ms England were shocked and devastated by the diagnosis. He was discharged on 12 May. Soon after leaving the hospital, Mr Miller's abdomen started to leak fluid, so he returned to the Calvary ED, was patched up and sent home again.[49]
Mr Miller was referred to Dr Chris Lauder, surgeon, at the Queen Elizabeth Hospital (QEH). Dr Lauder explained the surgery required involved removing the lining of Mr Miller's abdomen and potentially some other organs such as his spleen and part of his bowel. He was told that during the operation he would have hyperthermic intraperitoneal chemotherapy, a warm chemotherapy bath (HIPEC). After being told this was his best chance for survival, Mr Miller elected to have the surgery.[50]
Mr Miller saw Dr Tim Price, oncologist, on 12 June 2024 to confirm he could undergo the surgery. By then Mr Miller's abdomen had swollen again. He was admitted to the QEH on 14 June and had another 23.8 litres of fluid drained. Mr Miller was concerned that so much fluid had built up so quickly and worried it would keep happening.[51]
Mr Miller underwent surgery at the QEH on 19 June 2024. In a procedure that went for more than 12 hours, Mr Miller's peritoneum was removed along with his gall bladder and parts of his omentum and small bowel. He suffered extreme pain, nausea and breathlessness, and anxiety in intensive care after the surgery. He was unable to get out of bed until 22 June and required assistance from two nurses to do so. On 24 June an epidural was removed. He could then move around the ward better but was still in great pain, felt nauseous and had drains in his abdomen. He had diarrhoea.
During the post-operative period Mr Miller felt miserable and could barely eat, sleep or rest. The drains were removed from his abdomen on 30 June. He continued to experience pain in his abdominal area. On 2 July 2024 he was discharged and sent home. The wounds in his abdomen continued to ooze fluid but he was advised that this was normal.[52]
In the weeks following surgery, nurses attended on Mr Miller daily to change his bandages and check his wounds. He felt that he did not begin to heal properly until about mid-August. Prior to then, Mr Miller was concerned any movement would open a wound and cause fluid to leak. Moving was an effort, and the pain continued for at least six weeks. He took Panadol daily, as well as stronger painkillers, until around September when he felt his body had healed to an extent.[53]

[131]

Mr Miller has significant surgical scarring to his abdomen including a 30cm scar. Before becoming unwell he usually weighed about 90kg. After surgery his weight reduced to 79kg. He felt nauseous and not hungry for weeks after the operation and still does not eat much. He lacks energy and struggles to get out of bed and get motivated. He tires easily and cannot complete a full days' work. He now works for two to three hours in the morning, usually at home so he can rest. He spends his afternoons resting or lying in bed.[54]
Mr Miller has been consulting with Dr Vy Broadbridge, an oncologist, since 23 July 2024. He underwent a baseline scan to see how effective the surgery had been, and further scans on 12 August 2024, 10 October 2024 and 21 January 2025 as well as a PET scan on 20 January 2025. Mr Miller deposed that he understands that the most recent scan shows that the cancer is not progressing at present. Dr Broadbridge has advised Mr Miller that the next line of treatment will be immunotherapy. Mr Miller deposed that he was worried about commencing immunotherapy and how it will affect him and his ability to operate his business.[55]
Mr Miller said that previously he was not an emotional person and did not become ill. Since his diagnosis, he has struggled emotionally and often becomes teary and anxious when thinking about the future, both personally and for his business. He feels he has been robbed of the best years of his life, including a happy retirement in Port Lincoln with Ms England, which now seems unlikely. Both he and Ms England have struggled to come to terms with what the future holds. He feels angry. He hates to look at himself and feels thin and weak.[56]
In the weeks after his surgery, Mr Miller was unable to sleep properly. He had to sleep semi-reclined on the couch propped up by pillows as it was too painful to lay flat. He could not twist or stretch to adjust the pillows through the night and needed Ms England's help to do so. He had diarrhoea for about a month and frequently had to get up during the night to go to the toilet, sometimes 15 to 20 times. When this occurred, he had to wake Ms England so she could help him. He also had night sweats, which often required him to change clothes as he became drenched and cold during the night. The bed linen had to be changed every day. He still does not sleep well, but this is now due to worry.[57] Mr Miller now uses the lift in his unit which he had not previously ever used.
Mr Miller said he has become obsessed with weighing himself on a daily basis as he fears the fluid will return. He has managed to regain some weight and is now approximately 85kg. He feels the cold more than usual and needs a heater when the temperature drops below 20 degrees. He has purchased a heater to keep warm.[58]
Mr Miller owns a block of land at Coffin Bay where he spends weekends fishing. He used to spend a week there and would work from there. The block has a self-contained liveable shed with a bed, bathroom, and work area. Mr Miller had planned to build a house on the property and to be significantly involved in the process but he has now purchased a house in Port Lincoln as building at Coffin Bay would be too difficult. He used to drive to Coffin Bay fortnightly but now flies to Port Lincoln and drives to Coffin Bay. Mr Miller has two boats at Coffin Bay, which he used to maintain, clean and launch on his own. He no longer has the strength to do that and worries about operating the boats himself.[59]
Mr Miller used to be a very fit and healthy person who enjoyed remaining physically active. As well as his physical work, he used to regularly use an exercise bike and go on daily hour-long walks. While he was unable to walk for around six weeks after his surgery, he has now resumed walking but cannot walk as far or as fast as he used to.[60]
Mr Miller and Ms England used to have an active social life and would go out for dinner or socialise with friends at least once a week. Since his diagnosis, Mr Miller has become a recluse, prefers not to go out and has stopped socialising with many of his friends. He does not like to talk about his diagnosis and has not told some people that he is unwell. He used to enjoy travelling with Ms England but their ability to travel now is subject to how he is feeling and the progress of his illness.[61]
Mr Miller used to visit his elderly mother at least once a week to check on her and assist with housework, take her shopping or out for a meal. He is now restricted with what he can do for her when he visits.[62]

[132]

Prior to being diagnosed, Mr Miller had no restriction in his ability to perform household chores. As both he and Ms England worked long hours, they hired a cleaner to come once a fortnight for about four hours. Mr Miller and Ms England shared duties such as vacuuming, mopping, cleaning the bathroom and doing the laundry each week. He estimates spending at least two hours per week on these jobs. While the shopping was shared, Mr Miller prepared 80% of their meals and did the washing up (estimated four to five hours cooking each week). There is no garden at the unit they rent, however Mr Miller would perform maintenance tasks such as regularly cleaning the windows and the verandah.[63]
Mr Miller also maintained his property at Coffin Bay without assistance. He would visit it twice a month to mow the lawns and ensure it was maintained, spending at least two hours maintaining it each time. He was also responsible for washing and maintaining both his and Ms England's cars and the fishing boats, which he estimated also took about two hours per month.[64]
During Mr Miller's admission to hospital between 4 and 12 May 2024, Ms England took time off work to care for and assist him. She attended hospital for at least ten hours each day. She would bring him clean clothes and prepare and deliver food for him. She provided emotional support and comfort. Ms England also took up all of the duties around the home that Mr Miller was no longer able to perform. She provided similar levels of support during Mr Miller's later admissions to hospital between 14 and 15 June 2024 and from 19 June to 2 July 2024 when he had surgery. Mr Miller described her presence as a great comfort.[65]
For three weeks after Mr Miller's discharge on 2 July, nurses would attend upon him daily to check his wounds. Ms England provided the balance of nursing care during that time and managed his medication, including those which had to be administered by injection. Ms England worked remotely for this first week so that she could care for Mr Miller, and thereafter attended work on a reduced capacity so that she could care for him as much as possible. She spent two to three hours per day attending to the cleaning, cooking, laundry and shopping. She drove Mr Miller to all his medical appointments, and helped him overnight, including by providing emotional comfort to help him settle and return to sleep. Without her assistance and support Mr Miller believes he may have had to go to a rehabilitation facility.[66]
Since around mid-August 2024, Mr Miller has recovered some strength and is not as reliant on Ms England for day-to-day support or assistance throughout the night. She continues to do all the cleaning, laundry and shopping, but Mr Miller has been able to prepare his own meals. He is unable to carry anything heavier than about 5kg, so Ms England helps carry heavier shopping bags. Mr Miller began to drive himself to appointments again about a month after the operation.[67]

[134]

In a second affidavit dated 6 March 2025, Mr Miller deposed that his training as an electrician included:[71]
- Identifying different types of electrical wiring and their approximate age/vintage;
- Identifying and rectifying faults in electrical wiring that may cause fire or shock hazards; and
- Identifying, cutting, drilling and altering cladding (timber, fibro and metal) on buildings through which electrical wires and equipment were to be passed through.
At the time when he started working as an electrician, the tradesmen Mr Miller worked with referred to the cladding on both external and internal areas of buildings as fibro. Mr Miller used the same term.[72]
The work Mr Miller performed for Total Electrical and Bathroom Concepts was almost exclusively done on old houses, not newly constructed ones. Where he stated in his first affidavit that the houses he worked on were well over 10 years old, that estimate was based on his observation of the houses, the nature and state of the electrical wiring he replaced and features of the electrical switchboards.[73] The houses looked old and had peeling and weathered paint. The timber battens, cladding, including fibro cladding, and carpets looked weathered and old. Some of the houses had water or mould damage.[74]
The electrical wiring that Mr Miller replaced in houses was old and damaged, disintegrating and crumbling. The insulation on the wiring was falling away to expose live wires. It was extremely rare, and he cannot recall seeing, cables in houses less than 10-15 years old disintegrate like that. In many of the jobs he did for Total Electrical and Bathroom Concepts, the earth wire ran loose alongside the main cable without any insulation, or was missing altogether. The crumbling wires and lack of earth wire created fire and shock hazards. The state of the wiring was like that on almost all the houses he worked on for both companies.[75]
Some of the wiring was covered in vulcanised Indian rubber (VIR) or had VIR cabling, that is, a copper conductor insulated with vulcanised rubber. VIR cables were usually installed in houses constructed in the 1960s and 1970s or earlier. VIR was not used in the 1980s because of the potential for fire and shock hazards as it ages and disintegrates.[76]
Mr Miller also came across tough rubber sheathed cables known as TRS cables in some of the houses he worked in. TRS cables were usually used in houses built up to the 1970s. The insulation on them began to crumble after about 15-20 years. When Mr Miller started as an electrician, TRS cables were contrary to regulations which required independent and sheathed earth cables, which TRS cables did not have. Mr Miller did not install TRS cables when he worked as an electrician.[77]
In the 1960s and 1970s, thermoplastic sheathed cables known as TPS cables began to be used. These were sheathed in coloured thermoplastic or PVC insulation, similar to what is used today, but not as tough. The original TPS cables began to crumble after about 20 years, and did not have an earth wire in them. Most of the older houses Mr Miller worked on had deteriorating TPS cables. When Mr Miller started work as an electrician, older TPS cables had to be replaced by a newer cable with an earth wire.[78]
Mr Miller was also able to estimate the age of the houses he worked on based on notations left by the electricians who installed the switchboards. It was not an uncommon practice for electricians to sign and date the legends on such switchboards. Mr Miller observed that some of the houses dated from the 1960s and 1970s. Houses in the same or adjacent suburbs usually had similar dates marked on their switchboards.[79]
The sheets of fibro that he saw from time to time stamped with Hardiflex or Villaboard were found on houses where he replaced old and crumbly electrical cables. While working as an electrician he never saw a sheet of fibro marked with any words relating to 'asbestos' or 'asbestos free'.[80]

[135]

Mr Miller said he worries every day about his health and his life expectancy. Every day his body hurts. He said that he is not coping well psychologically, which affects his ability to concentrate and to work. He has physical limitations. He said it takes him time to get going when getting into and out of the car because his knees hurt and his body does not feel like it previously did. The surgeons told him it takes a while to recover after the surgery. He tries to walk as much as he can to keep fit. He does not experience shortness of breath when walking. Before his diagnosis he would do heavier exercise, such as running, but he is unable to do that now. He does not take any painkillers.
Mr Miller said that prior to becoming ill, he had intended to keep working for as long as possible, partly due to his small superannuation balance.
When shown exhibit A2, a bundle of photos taken at the RAH, Mr Miller said that a photo on page 4 depicted a service riser at the RAH of the kind referred to in his first affidavit. He identified the presence of light grey asbestos at the bottom of a photo on page 5 of exhibit A2 and said it was the lagging material he referred to in his first affidavit.[81]
On page 6 of exhibit A2, Mr Miller said that he recognised light grey material indicated by arrows as asbestos.[82] He identified the same material was present in the middle of the top part of the same photo and said it was lagging. He said that at the RAH he saw lagging in one wing, the theatre blocks, the catacombs and in service risers.
On page 7 of exhibit A2 Mr Miller identified dark grey material indicated by arrows at the top of the page as being the same material shown as seen in blue-grey patches on the left of the photo.[83] He said that he saw the pictured material in the ceiling spaces and risers at the RAH.[84] It looked the same as the clumps of sprayed asbestos referred to in his affidavit.[85] He also said that he recognised grey-blue asbestos at the bottom of the photo as the same as the sprayed on asbestos or sprayed asbestos in clumps referred to in his first affidavit.[86]
In the first photo on the top of page 8 of exhibit A2, Mr Miller identified the pipes as hot water pipes or gas pipes. The metal bands around them appeared to be holding material to the pipework, which Mr Miller had seen at the RAH.[87] He identified the grey-white material surrounding the pipes as lagging or cladding as "like a plaster finish".[88] He did not know what the material was when he was working at the RAH.[89] He noted that the second arrow at the top of the page pointed to sprayed-on asbestos applied to steel beams.
With reference to the bottom photo on page 9 of exhibit A2, Mr Miller identified two horizontal yellow bars as being lagged pipes. He said that he saw pipes like that in the catacombs and service risers but did not know what they were.[90]
On page 10 of exhibit A2, Mr Miller identified the bottom arrow as pointing to what looked like the "sprayed stuff" that had fallen off.[91] He saw things like this at the bottom of risers, on top of ceiling tiles, and in the catacombs.
Mr Miller said that the bars in a picture on page 15 of exhibit A2 were framing that ceiling tiles sat on. He saw these in various areas at the RAH but could not pinpoint the exact locations.
Mr Miller did not recognise anything in the bottom photo of page 17 of exhibit A2 as he did not do any work in lift wells.

[136]

Mr Miller said that he and Ms England purchased a property in Port Lincoln in October 2024 for $900,000. The property is mortgaged to the ANZ Bank in their joint names for $870,000. Weekly repayments are around $1,250. Mr Miller did not inform the ANZ Bank of his medical condition when he obtained the mortgage.
Ms England works full-time and is in charge of property, maintenance and assets at the Services to Youth Council. She earns approximately $170,000 per annum and has been in role for about 10 years.
Mr Miller and Ms England do not combine their incomes but share expenses on a fifty-fifty basis. Expenses include rent for their home at West Lakes ($1,250 per week), mortgage repayments on the Port Lincoln property and living expenses and bills. Mr Miller normally pays for expenses, such as utilities bills, by credit card. He does not know what his monthly credit card expenses are as the amount varies each month. His credit card statements for the past 12 months are accessible online. Other expenses are paid for by direct debit. Mr Miller does not use cash. There are three accounts from which expenses might be paid - a personal account with the ANZ Bank, for which he has his own personal credit card, a shared account with Ms England with the National Australia Bank (NAB), for which there is a shared credit card, and a shared account with NAB from which direct debit expenses are paid.
Mr Miller arranged the loan to purchase the Port Lincoln property himself without a broker. His property at Coffin Bay, recently valued at around $400,000, was provided as security for the mortgage. Mr Miller provided information about his earnings over the past 12 to 24 months to the ANZ Bank, so the bank could assess his ability to repay the mortgage. He said that he understood it was important to be honest with the bank, but did not disclose his health condition as he did not think it necessary. He was not required to sign any documents concerning existing medical conditions.
The term of the mortgage on the Port Lincoln property is 30 years. Mr Miller does not believe he will live that long, as he understands that his life will be shortened quite dramatically. He formed that impression not through discussions with his oncologist, but by looking at articles and information online. He could not say how long he might live as the information he reviewed online was varied: "it's such a rare form of cancer, the statistics are not concrete".[92]
In addition to bank accounts, Mr Miller also has a work account credit card. He uses it to pay for things such as fuel used at work. He does not use it to purchase food or clothing. Daniel Bourke also has a separate card for this account. Ms England also has a card, but does not use it.
Mr Miller worked with Russell Villiers. The two became friends. The friendship continued for a while after Mr Miller left the RAH. Mr Villiers now lives interstate The last time the two were in contact was a couple of months prior to when Mr Miller gave evidence. Mr Villiers called to see how Mr Miller was as he was in Adelaide at the time. Prior to then, Mr Miller had not spoken to Mr Villiers for five years or more. After Mr Villiers left the RAH, he did a course in conveyancing and then worked for Mr Miller in around 2015 for about four to five months.
Mr Miller was also friends with Dean Bastian whilst he worked at the RAH. The friendship was not the kind where he would ring Mr Bastian up to organise to go out for dinner. Mr Bastian now works in the same industry as Mr Miller and they have come across each other occasionally on projects. Some of Mr Bastian's employees have worked for Mr Miller. Mr Miller did not maintain contact with Mr Bastian after he left the RAH. The last time he spoke with Mr Bastian was when he first engaged his solicitors. At this time, he contacted Mr Bastian to see if his solicitors could speak to him. He only told Mr Bastian that he had not been well, but did not go into any further detail.
Mr Miller said that tradesmen at the RAH would go to site huts early on work-day mornings. They did not have a toolbox meeting every morning, but would always be allocated to a project and a team. Mr Miller did not recall how that was done. Normally, they would work in pairs, but if it was a bigger job a group would be assigned to it. Mr Miller was one of the younger workers at the RAH and was generally allocated to work with someone more senior in terms of experience and/or length of time working at the RAH. From time to time, Mr Miller was assigned to work with Mr Villiers. He only worked with Mr Bastian occasionally.
Mr Miller accepted that he would have heard the word 'asbestos' before he came to word at the RAH, but did not recall it being raised during his apprenticeship or at trade school, nor how he came to be aware of it. He was not aware that exposure to asbestos could be harmful and cause illness. He did not believe that this awareness could have come from his reading about it in the Advertiser newspaper. Mr Miller was shown various articles in the Advertiser, from around 1985 to 1991, about proceedings involving workers who had become sick from exposure to asbestos. He did not recall having read any such articles, or having read any articles about asbestos. Despite the prominence of the article's placement in the newspaper, Mr Miller did not consider it likely that he would have read the articles because he did not read every article in the paper, only those that interested him. He said that he was more interested in the sports pages than the news pages. He did not believe that the titles of the articles would have grabbed his attention such that he would have read the full article. He said that if he had read such articles and had known about the danger of asbestos, he would not have gone near it.[93] He recalled reading an article about Melissa Haylock's experience with asbestos, but this article only sparked his interest because he had mutual friends with her and her children attended the same school as his, so it was a point of interest in the school community.
When he started working at the RAH, Mr Miller said he was aware that there was asbestos in the RAH but was not aware that the tradesmen who spoke about it were talking about the places in the hospital where he would be working.[94] Mr Miller only interacted with, and was supervised by, other Manpower employees. He could think of no reason as to why he would not have followed the directions given to him by a supervisor, but did not recall receiving directions about working with asbestos or using PPE.
When asked about the use of PPE, Mr Miller said three times that he was not asked to wear PPE at the RAH.[95] When asked if he had heard other tradesmen say that asbestos was dangerous, Mr Miller said that others said it "could be dangerous", but no-one warned him about it.[96] He was not concerned about the comments he heard because he did not think he was working in areas that contained asbestos.[97] He did not ask questions of the tradesmen who made comments about asbestos nor did he recall raising any concern about asbestos with his supervisor.[98]
Mr Miller recalled working in the East Wing, near the Botanical Gardens, and in the theatre block. He recalled doing work on projects in other buildings, marked on the diagram in exhibit DJM1 to his affidavit in pink, but could not recall the exact names of buildings in those areas. Mr Miller was shown enlarged maps of the RAH dated June 2004. He could not recall whether this represented how the RAH looked at the time he was working there. He was not aware that some of the buildings on that map were not present when he worked at the RAH. He could not identify the East Wing or the theatre blocks on the plans.
Mr Miller was pressed about his ability to recall his time at the RAH given the significant passage of time. He agreed that he did not have strong memories of what took place, but disagreed that he only had a general recollection of working with Mr Villiers and Mr Bastian. He recalled working with Mr Villiers, maybe a couple times a month, on big jobs such as cable runs, where multiple workers were required. He specifically remembered working with his head above ceiling tiles and seeing what was depicted in some photos shown to him. He could not pinpoint the exact locations in the RAH where he worked as workers were moved around all areas of the RAH. He remembered performing general electrical work, putting cable trays in risers and pulling cables in.
Mr Miller did not recall being told anything by a Manpower supervisor or anyone from the RAH about asbestos. He stated that he did not receive a site induction. He did not recall, and did not know who Jack Watkins was. He did not remember any union presence at the RAH. He had no memory of there being signs in the areas where he worked warning of the presence of asbestos, nor of there being procedures in place when working with asbestos. He did not recall himself or anyone else wearing or using PPE. He did not see anyone conducting airborne dust monitoring at the RAH.
Mr Miller said that he first associated contracting mesothelioma with work at the RAH on or around 4 or 5 May 2024 when he had 32 litres of fluid drained from his abdomen at Calvary. At that time, a physician advised him that he might have cancer and asked him whether he had ever worked with asbestos. Mr Miller told the physician he would have at some stage. He was not asked where this might have occurred whilst at Calvary or the QEH, nor did he remember volunteering information on where he thought he might have been exposed to asbestos. He did not recall telling doctors at Calvary or the QEH that he may have been exposed to asbestos during his apprenticeship.[99]
Mr Miller was discharged from hospital and returned home after surgery on 2 July. This proceeding was issued on 29 July. Mr Miller engaged solicitors after being advised by Dr Broadbridge after his surgery that he may be entitled to compensation. Dr Broadbridge told Mr Miller that Turner Freeman was a firm that specialised in this kind of claim. He did not recall when he first engaged or spoke with someone at Turner Freeman. Mr Miller said that he did not believe that it was only after the proceeding had been issued that he attributed his mesothelioma to the RAH. He did not recall speaking to doctors at Calvary or the QEH about contracting mesothelioma from working at the RAH.[100]
Mr Miller could not recall there being any industrial action or stop work orders given at the RAH.
Mr Miller could not recall giving a history of his symptoms to Dr Siew Ung Wong. He could also not recall if Dr Wong had asked him whether he was exposed to asbestos during his apprenticeship.
Mr Miller did recall a meeting with a Dr Laura Depauw and Professor Tim Price at the QEH on the morning of 12 June 2024. This was after the diagnosis of mesothelioma had been made. He could not recall if there was any discussion regarding exposure to asbestos at the meeting.
Mr Miller was cross-examined about para. [37] of his first evidence affidavit, where he deposed that when working in service risers or in a ceiling spaces, he saw sprayed asbestos on the upper surface of ceiling tiles "almost invariably". He varied that evidence in his second affidavit. The questions which followed were directed to Mr Miller seeing sprayed asbestos on steel beams. That is quite different to the subject of para. [37]. In any event, Mr Miller agreed that he saw asbestos on beams from "time to time" rather than almost always.[101] Mr Miller denied that he had made the change after seeing the statements made by other witnesses. He said that he did not think he had seen a witness statement from anyone.[102]
The different subjects in paras [36] and [39] of Mr Miller's affidavit was raised.[103] That led to the issue being explored again. Mr Miller explained that whilst most of the steel beams he saw in ceiling spaces were coated with blue-grey coloured sprayed on asbestos, there were gaps in the coating. He assumed that the material he encountered on the top of some ceiling tiles was the fallen blue-grey asbestos because he would not see where else the material could have come from.
Mr Miller confirmed that he worked in ceiling spaces and service risers containing sprayed asbestos multiple times each week at the RAH. He confirmed this sometimes occurred several times a day, and that a job in a ceiling space would usually take an hour, if not longer.[104] It was put to him that he could not possibly remember that detail going back 35 years. Mr Miller said that it was the same as refurbishing a room today and that you might be up there for an hour.[105]
Mr Miller disagreed with the following propositions that were put to him:
- Each time he was allocated a job at the RAH, he was told if it was going to be in an area where there was asbestos;[106]
- If there was asbestos in an area where he was working, there were established procedures to be followed;[107]
- There were procedures that involved the use of a bubble, dust monitoring, signage, area segregation or protective equipment such as clothing, respirators and masks;[108]
- If he was allocated to perform a particular job and found asbestos where it was not expected, he was told to immediately stop work and report the presence of asbestos, or to focus on another job while the asbestos was cleaned up;[109]
- The propositions put to him held true whether he was working in the catacombs, a ceiling space or a service riser.[110]
Mr Miller rejected the proposition that it was highly improbable that the degree of detail that he gave in his affidavit about events that occurred 35 years ago was able to be recalled reliably by him.[111]
Mr Miller said that NGC's biggest customers are Harrold & Kite, Inca Constructions, Horizon Constructions and RC Projects. Mr Miller said that he quotes most of the jobs and Mr Bourke organises labour and materials for them. He stated that NGC tendered for larger projects in the 2023, 2024 and 2025 financial years. NGC's revenue was about $3.57 million in the 2023 financial year with 40% of that coming from Harrold & Kite and Inca Constructions. Harrold & Kite has been a client for 25 to 30 years. Mr Miller said that the work done for Harrold & Kite is now looked after by Mr Bourke who now also prepares quotations.
Mr Miller stated that three years ago he had discussions with Mr Bourke about Mr Bourke buying NGC but Mr Bourke was not able to do so. He stated that it is more likely that Mr Bourke will purchase a percentage of NGC. Mr Miller confirmed that prior to being diagnosed, he intended to work to age 75 or beyond.
Mr Miller said that if his claim succeeds, he plans to stop working at the end of the 2024 financial year.

[137]

Mr Miller said that he and his former wife purchased 7 Thanet Street, Brooklyn Park in May 1991. They were both working at the time, however, on the day the property transfer occurred, Mr Miller was retrenched from his employment with Main Industrial.
Mr Miller said that after he applied for work with Manpower, he was interviewed and provided his qualifications and experience. He recalled there was no induction or training. Mr Miller could not recall if he signed a contract or if there was any discussion about the length of his engagement. He did recall being told he would be working at the RAH.
Mr Miller could not recall if he learnt about electrical safety whilst completing a TAFE course in 1981. He did not have much recollection about the course generally.
When asked to rate how dusty the various jobs he did were on a scale of 1-10, Mr Miller said:
- Cutting U-shaped slats at Plasteel - 9/10;[112]
- Cutting Zelemite and Bakelite at Plasteel - 7/10;[113]
- He could not recall any dust when using asbestos cloth;[114]
- Working with heater boxes and dusty wires - 6/10;[115]
- Working at the RAH - 10/10.[116]
Mr Miller said that after taking a year off work after completing his apprenticeship with Plasteel, he worked for O'Donnell Griffin as a fully qualified electrician. He did not recall any exposure to asbestos there.
Mr Miller said that the worst working conditions at the RAH was working in ceiling spaces. He described working in the service risers as more confined than working in ceiling spaces. He said there was nothing he could do whilst working in either place to avoid inhaling dust.
Mr Miller confirmed that experienced tradesmen at the RAH did not seem to be too concerned about asbestos. He did not have a recollection of what he thought about the risk of asbestos in 1991.
Mr Miller could not recall what his financial position was when he started his own business in 1991. He said that he was able to secure work through media advertising and cold calling contractors. He said that when he worked for Total Electrical there were periods where there were large orders and he was busy, and other periods when work was quiet.
The work Mr Miller completed for Total Electrical would typically occupy three days a week and the major focus of the work was installing residual current devices. Mr Miller also installed floodlights in domestic housing for Total Electrical. That involved drilling into fibrocement sheets. He recalled that installing floodlights outside would take about 15 minutes. It took two to three seconds to drill a hole. The sheets were about 10mm thick. The 15-minute installation would typically involve unpacking the light, getting all the tools ready, setting up the ladder, drilling, running cable and testing the light.
Mr Miller installed outdoor power points on older houses. Some would be installed on brick and others on fibrocement. He recalled going into ceiling spaces from time to time to run cables. He saw a Hardiflex stamp on sheets in ceilings at times. He explained that cutting sheets and drilling holes in them did not take long but was done repeatedly. He said that the houses he worked on were usually built in the 1960s or 1970s.
Mr Miller would usually perform work for Bathroom Concepts for one to two days a week with the remainder of the week spent on private clients. When renovating older bathrooms, Mr Miller completed his work prior to the bathroom being gutted. He removed power points, lighting, heaters, fans and took wiring back to the source. Once the new bathroom walls were installed, he would install cables and do a first and second fix.
In relation to para. [63] of his first affidavit, Mr Miller said that he was on site about 30% of the time when old fibro sheets were smashed and removed.[117]
In relation to para. [64] of his first affidavit, Mr Miller said that he recalled seeing a Villaboard stamp on the broken bits of fibro sheets and would often kick them out of the way when completing bathroom work. He went on to say there would often be dust and bits of broken fibro in the wall cavities when he installed new electrics and cleaned up after himself.
Mr Miller was shown a Wunderlich Villaboard pamphlet and was asked if he had ever seen the Wunderlich brand when he saw the fibro sheets with the Villaboard branding. He said that he had not. Mr Miller could not recall seeing interiors like the ones shown in the pamphlet when working on houses built in the 1960s and 1970s nor had he heard of Wunderlich at the time.
Mr Miller said that the conditions he worked in at the RAH were worse than in any other place that he worked at. He said that he had some control over working conditions at Total Electrical and Bathroom Concepts as a subcontractor, but did not have that when working at the RAH.
In relation to paras. [166]-[167] of his first affidavit, Mr Miller said that while he had never heard any public announcements from James Hardie, he was aware of the company.[118]
Mr Miller said that if he had known of the dangers of cutting or drilling into fibro cement materials, he would have behaved differently when undertaking those tasks. He would have tried to seek advice, and said that the advice provided by the more experienced tradesmen at the RAH was not so much advice but comment.[119] He added that it was unlikely he would have picked up on an announcement about the danger of asbestos through the media given his media consumption. He said that if the message had been relayed through a large campaign, it would have found its way to him.[120]
Mr Miller said that if he had known of the danger of asbestos, he would not have worked for Total Electrical or Bathroom Concepts.[121]
Mr Miller said that his superannuation up until the 2022 financial year was nil and the figure of $97,488 was a transfer of superannuation from an existing account. He had taken more interest in superannuation and was making contributions when he was diagnosed on the advice of a tax accountant. He said that given the tax advantages, most business owners in his situation would make significant super deposits.
Mr Miller confirmed that his property at Coffin Bay is not rented out and is used for recreational purposes, mainly fishing. He said that he received no advice regarding the purchase of the Port Lincoln property, and that due to his condition and his reduced lifespan, he might move there to enjoy the lifestyle.
Mr Miller said that during his hospitalisation, he was in physical and mental turmoil. He said that given he had been so unwell, had had surgery and had taken strong medication, it was likely that he had memory fog.

[139]

Stephen Drury was employed by Manpower as an electrician and worked at the RAH for Manpower from 1990-95. He was then employed by the RAH until 2012. Mr Drury did not know Mr Miller.
Mr Drury was not given any formal induction or training about asbestos at the RAH and only became aware of its properties by word of mouth. He had little if any idea of the danger of asbestos to his health. He deposed that he did not know that there was no safe level of exposure to asbestos when he started working at the RAH.
Mr Drury became aware there were asbestos zones in the RAH in his early years at the RAH.
Mr Drury described a device called the bubble which was used to perform ceiling work in asbestos zones. The bubble had retractable walls that expanded in the ceiling space. It was made of steel or aluminium. Its purpose was to create a space to contain any asbestos dust that fell from the ceiling. Mr Drury was given a mask and respirator to wear when he used the bubble but not protective clothing. When Mr Drury started work at the RAH, there was one bubble between approximately 15 electricians and many other tradesmen, but more bubbles were built during the 2000s.
Mr Drury advised it was not uncommon for him to enter ceiling spaces and find asbestos present. He found clumps of asbestos in areas where he understood that the asbestos had been removed. He stated that records of asbestos locations were neither comprehensive nor always accurate.
Mr Drury found barriers separating asbestos areas from non-asbestos zones in ceiling spaces, however sprayed asbestos was capable of moving and moved throughout non-asbestos zones where they were not sealed off.
Mr Drury stated that he was not required to wear a mask or respirator in non-asbestos zones. He was often surprised by the presence of asbestos in such areas. He deposed that sprayed asbestos was present in the north wing, east wing, the residential building, the theatre block, outpatients and the services and teaching block.
Asbestos was often found in the risers, hollow columns containing services that Mr Drury often had to work in. The bubble could not be used in the risers, and Mr Drury did not wear a mask or respirator in them.
Asbestos was also found in the catacombs in the basement of the RAH. Pipes with asbestos were often wrapped in white lagging. Mr Drury was not required to wear a mask or respirator when working in the catacombs.
Mr Drury was not informed about blue asbestos. Later he learned that it was potentially lethal. He learned that from a talk given by Jack Watkins, a union member who took an active role in relation to asbestos at the RAH.
Mr Drury deposed that he did not receive a formal induction when he commenced work at the RAH, nor was he provided with any kind of training or education in relation to asbestos. He was not required to obtain a certificate in relation to working with asbestos from any government department before commencing there. Mr Drury stated that asbestos was removed from the RAH from time to time and one of the companies that removed it was McMahons. If there was a large redevelopment plan, McMahons completed the removal prior to work commencing. He said that asbestos was still being removed when the RAH was demolished.

[145]

Counsel suggested Mr Drury received training and instruction in patient safety, the use of PPE and the asbestos register. Mr Drury disagreed.[130]
Mr Drury was asked if he and other Manpower employees or electricians would gather at a Manpower site hut or some other location to be advised of projects or assignments. He said there was no Manpower site hut, he did not recall such meetings occurring and toolbox meetings did not occur when he commenced at the RAH.
Mr Drury clarified para. 6 of his statement; he had some awareness that asbestos could be dangerous when he commenced work at the RAH but it was minimal and he was not aware that the RAH had any asbestos at that time.
Mr Drury said that a bubble operator was meant to wear full PPE, including a battery powered respirator and mask, as shown in a photo in exhibit 1R9. He explained that the vacuum cleaner in the bubble was to clean up after finishing use of the bubble. After work was completed, a decontamination process followed. The bubble operator used the vacuum to clean from the top of the bubble down any material or contaminant that had dropped inside. The operator would then spray water to settle any remaining dust, remove their suit and mask and leave the bubble. The operator used a dust monitor in the bubble, but not in the ceiling space, during this process.
When using the bubble, the operator would be in the ceiling space from about waist level up and if a beam with asbestos was above them, they were usually able to reach it.
Dust monitors were placed inside and outside of the bubble in the area being worked in, but they were never placed in the roof or ceiling spaces. Mr Drury understood that the dust monitors checked for fibres in the air and a report of their findings was produced soon after. Mr Drury could not recall how he received these reports and did not think they were published for others to see.
Mr Drury identified a photo of a worker finishing the decontamination process in exhibit 1R10. He said that the way the bubble was decontaminated remained the same during his time at the RAH. He did not recall any signage about bubble procedures.[131]
Mr Drury explained that, on most occasions, the person inside the bubble would decontaminate themselves and place the PPE suit into a plastic bag. However, on occasions, the operator would be transported in the bubble to another location to undertake a decontamination process.
If a bubble operator had to run a length of cable, they would unzip the bubble, do the work, throw the cable via a conduit, then rezip the bubble. The person outside the bubble moved it to the next location. That may need to be done three or four times to complete a job. Mr Drury explained that the operator would not leave the bubble or fully decontaminate themselves or the inside of the bubble until they left the bubble.[132] Mr Drury understood the reason for using the bubble and wearing PPE was to minimise exposure to asbestos to the operator and others.
Mr Drury recalled Jack Watkins speaking with RAH employees about the danger of asbestos on two occasions. He did not recall any other union representative doing so.
Mr Drury agreed that if asbestos was found, the person who found it was to inform their supervisor, cease work and the asbestos would be tested. If the test came back positive, the area was cleared by an approved asbestos removalist. Mr Drury said this occurred multiple times and sometimes in unexpected locations.
Mr Drury confirmed that when asbestos was found, it was removed prior to work being undertaken in that area. Mr Drury and the team he worked with were informed if an asbestos removalist was going to be used prior to them commencing larger projects, however it was more common that work on smaller projects would begin without first removing asbestos.[133] Mr Drury could not recall when the asbestos removal works first took place in relation to his period of employment but did recall that it occurred in the mid to late years of his employment at the RAH.[134] The removalists had portable showers and change areas to prevent contamination of other areas.[135]
Mr Drury said that work was distributed to a group working on a project by either the supervisor, Luke Barnard, or the leading hand.
Counsel asked whether Mr Drury had seen signage on the ceiling advising of asbestos in the area above. Mr Drury could not recall any signage when he first started working at the RAH but did see stickers, not solid or hanging signs, in his later years there.
Mr Drury said there was no recommendation to be careful when lifting ceiling tiles, or to wear gloves and a mask when doing so, until the late 1990s or early 2000s.[136] He said that even after he first encountered asbestos after lifting a ceiling tile, he did not exercise more caution. He put that down to immaturity. He said that he was not ever instructed to wear a face mask whilst working for Manpower at the RAH.[137]
Mr Drury described the catacombs as the lower basement or subfloors of the RAH which the majority of services ran through and which connected buildings through tunnels. Electrical cabling and pipework were two of the services that ran through the catacombs.[138] Mr Drury said that the pipework in the catacombs was wrapped in asbestos lagging with metal cladding over the lagging.[139]
Mr Drury recalled seeing, during his early years at the RAH, temporary plastic barriers in ceiling spaces which separated the asbestos areas and non-asbestos areas of the ceiling. He said the barriers remained in place after asbestos had been removed.[140]

[148]

Dean Bastian is an electrician who worked extensively at the RAH for approximately 30 years. He started there in about 1989 or 1990 as an employee of Manpower. He worked with Mr Miller.
Manpower lost the contract to perform electrical work at the RAH and Mr Bastian was independently contracted to the RAH by E&BS. Later, a company trading as Spotless obtained a contract to perform work at the RAH and employed Mr Bastian. The work Spotless performed at the RAH was directed, coordinated and overseen by E&BS.
Mr Bastian was aware that asbestos was used extensively at the RAH, particularly on steel beams for fire rating purposes. He knew that from what he saw and what he was told by long-serving employees.
Mr Bastian stated that when he started work at the RAH he was not provided any induction or training on where asbestos was present or how to deal with it.
If Mr Bastian knew he was working in a ceiling space in and identified asbestos zone, he would use a bubble. When working inside the bubble, Mr Bastian wore a respirator and a white disposable suit. He used water spray and vacuum cleaners to remove any sprayed asbestos which became dislodged through work being completed.
Throughout Mr Bastian's work at the RAH, he was not directed to take any precautions when working in ceiling spaces that were not described as being in an asbestos zone. He stated it was well-known that sprayed asbestos moved from identified asbestos zones to areas that were meant to be free of asbestos.
Due to the work that Mr Bastian undertook, sprayed asbestos would easily become dislodged, creating continuous exposure through dust and fibres. Throughout Mr Bastian's earlier years, he regularly encountered sprayed asbestos without wearing any respiratory protection. He encountered asbestos in the service risers where electrical equipment, switchboards and pipes were located. When working in service risers, employees were not directed to use respiratory protection. The bubble could not be used in risers.
Mr Bastian stated that asbestos was also present in the catacombs under the RAH. Employees were never directed to use respiratory protection and were told just to keep working if they spotted asbestos debris. It was not until later that they reported it and had it cleaned up.[143]
During the 1990s, Mr Bastian was made aware of the dangers of asbestos from older co-workers. He recounted a conversation he had with Jack Watkins, a trade unionist, who advised those at the RAH of the dangers of asbestos. He stated that he was never provided information from overseers or management about the dangers of asbestos during the 1990s.
Mr Bastian recalled that as time went on, efforts were made to seal off known asbestos areas in the RAH, but that did not happen in the 1990s. Mr Bastian stated that an asbestos register was kept, but it was not comprehensive and workers still found asbestos in areas outside those identified in the register.

[150]

Prior to working at the RAH, Mr Bastian undertook general electrical work, which involved drilling through asbestos sheets.[144] He was not aware that the sheets contained asbestos until after he commenced working at the RAH. He had not heard of asbestos prior to working at the RAH.[145]
Mr Bastian confirmed there were typically 10-12 electricians onsite at the RAH, sometimes even 20. The number varied depending on how busy the work schedule was.
Mr Bastian said that he received no formal induction from Manpower and learnt of the presence of asbestos at the RAH through word of mouth from other tradesmen. He did not recall formal inductions ever taking place at the RAH.[146] He said that the training he received was on the job training with the leading hand and other tradesmen.[147] He said that in the North Wing, it was assumed there would be asbestos, while in the East Wing, some areas contained asbestos and others did not.[148]
Mr Bastian was not aware that pipe lagging and sheeting were asbestos products until some time after commencing at the RAH. He said there were no pre-start meetings in the mornings prior to commencing work.
Mr Bastian said he was required to use a bubble when accessing areas where asbestos was thought to be present in the ceiling space. He confirmed that respirators, white suits, sprays and vacuum cleaners were used with the bubble along with a dust monitor. Later he said that if a bubble was unavailable when asbestos was present, work stopped until one was free.
Mr Bastian could not recall any signs at the RAH warning of the presence of asbestos hanging from ceilings when he commenced work there but recalled that such signs were installed later in the 1990s.
Mr Bastian confirmed that exhibit 1R9, a picture of a person wearing PPE and a respirator, shows the PPE he referred to in para. [10] of his witness statement. From the time he started wearing PPE, Mr Bastian understood that it was provided to minimise the risk of being exposed to asbestos.
Mr Bastian recalled two occasions when Mr Jack Watkins, a union organiser, came to the RAH to discuss the dangers of asbestos. The first occasion was a couple of years after Mr Bastian commenced at the RAH and the second was between 1994 and 1996. He said that practices changed after Mr Watkins' first talk.
When Mr Bastian worked in an area where they did not believe asbestos was present but it was found, work was halted and a supervisor told.[149] He said that he recognised blue sprayed asbestos on beams soon after starting at the RAH but was not aware pipe lagging contained asbestos for some time.
On the first occasion that Mr Bastian first found asbestos in a ceiling space when he did not expect it to be present he was surprised.[150] He said that he found asbestos in areas not identified as asbestos zones every couple of months. He said that at times he might find asbestos five times in a week and at other times may not come across it for up to six months.[151]
Mr Bastian did not recall being given a direction to wear a face mask when lifting ceiling tiles until "[a] long time down the track".[152] He did not recall being given any instructions about what to do if he found asbestos in or around a service riser.[153]
Mr Bastian recalled asbestos being removed continuously from the RAH. He further noted that unless it was a small find, asbestos removal contractors would be called in to remove the asbestos.[154]
Mr Bastian confirmed that if he was in the catacombs and came across asbestos, he would let his leading hand or supervisor know that he had identified asbestos and it would be dealt with accordingly.[155]
Mr Bastian recalled the use of vermiculite as a replacement for asbestos which was used to fireproof beams at the RAH.[156]

[154]

Russell Villiers was employed by Manpower as an electrician. He worked at the RAH for a few months in 1990, before returning in 1991 and remaining there until about 1993. Mr Villiers later commenced in a role with E&BS in 1996, where he remained until the late 2000s.
Whilst employed by Manpower, Mr Villiers' work was primarily project-based refurbishments and renovations. Day-to-day maintenance was done by RAH employees. The work Mr Villiers did came from E&BS. E&BS organised and coordinated the work of electricians and other tradesmen at the RAH.
Mr Villiers worked all over the RAH site including the services and teaching building, the outpatient block, the theatre block, the accommodation block and the north and east wings. To the best of his memory, most of the buildings he worked in were full of asbestos.
Mr Villiers was not given any formal warning about the danger of asbestos prior to commencing work at the RAH. He was not given any safety induction or training about asbestos. He only became aware of the risk that asbestos posed via word of mouth.
Mr Villiers described a device called the bubble that was used for ceiling work when asbestos was known to be present. The bubble was a sealed box on wheels with a removeable top that pushed up against the ceiling tiles primarily to prevent any asbestos contamination from spilling into surrounding areas. Mr Villiers did not recall being formally trained on how to use the bubble beyond another electrician showing him.
Mr Villiers stated there was only one bubble despite there being up to 10 electricians on shift on any given day. The bubble was reserved for areas known to have asbestos. Mr Villiers said that he was exposed to asbestos when removing ceiling tiles in areas where asbestos was not considered to be present. There was never a requirement to wear a mask, respirator or use the bubble in such areas.
Mr Villiers stated that he encountered asbestos in service risers. The bubble could not be used in a riser. He said that in the early 1990s, clumps of asbestos were present on surfaces in, and the floors of, risers. Nothing was done about that in his early years at the RAH. Much later, if asbestos was found in a riser it would be reported and cleaned up.
It was necessary for Mr Villiers to go into the catacombs at least once a month, if not more. He also encountered asbestos there. He never wore a mask, respirator or any protection from asbestos whilst in the catacombs.
Mr Villiers stated that he did not appreciate that even a small exposure to asbestos could kill him. He stated of the RAH that "work practices involving asbestos were certainly lacking".[162]

[156]

Mr Villiers said that he was not aware of asbestos being sprayed by Bradford Insulation at the Myer Centre when he worked on that project. While the company he worked for at the Myer Centre had provided safety training, he did not recall receiving any training about working with asbestos.[169] He estimated working with Mr Miller for 2 months of the 6 months Mr Miller worked at the RAH.[170] He recalled that they worked together on a project in the East Wing.
Mr Villiers was asked whether he had dealings with Luke Barnard, Ted Carlaw and David McGowan. He recalled them. He confirmed that he did not have an induction or orientation when he commenced at the RAH.[171]
Mr Villiers said that when he worked in an asbestos zone, there was discussion about how to do the job. If work was undertaken outside of an asbestos zone, care was not taken.[172] He said that he would first have encountered asbestos at the RAH in his second stint there in 1991.
Although Mr Villiers was aware that asbestos was dangerous, he had not encountered it prior to starting at the RAH. When questioned about his knowledge of asbestos, he said that he had no concerns because he had never come across it before.[173] He said it was likely he was told about the danger of asbestos at some stage but could not recall when or by whom.[174]
Prior to the first time he used the bubble, Mr Villiers found asbestos in areas that were not designated asbestos zones. It was suggested to him that there was no asbestos in the non-asbestos zones. He disagreed and said that he came across asbestos in such areas.[175] He believed that may have first occurred in his first 6 month period at the RAH but could not provide a specific timeframe.[176] When Mr Villiers talked about his first 6 month period at the RAH, I took him to mean his second stint at the RAH in 1991 as his first stint at the RAH was for less than 6 months.
Mr Villiers agreed that he was working with another person when he first encountered asbestos at the RAH. He or they saw some asbestos sitting on a ceiling tile in a non-asbestos zone. It was towards the latter part of Mr Villiers' first six months at the RAH.
Mr Villiers confirmed that he reported finding asbestos at times but was not involved in the clean-up process. As he understood it, asbestos that was reported was vacuumed up, but he was not aware of any testing process.
Mr Villiers did not think that he first came across asbestos in a service riser at the same time as he first encountered it in a ceiling space. He thought it more likely that he encountered asbestos in a ceiling space before encountering it in a riser.[177]
Mr Villiers said that if he came across asbestos where it should not have been he would report it every time.[178]

[157]

Jospeh Busuttil currently works as a building designer and supervisor. In 1973, Mr Busuttil commenced work with SA Housing and Construction (SACOM) in the architectural designs section.
Mr Busuttil had a hand condition which meant he could not do manual drafting work, and in 1980 he was transferred to the Asbestos Management Unit (AMU). Mr Busuttil remained with the AMU, which in 1985 became the Asbestos Liaison Unit (ALU), until 1992 or 1993.
The role of the AMU (and ALU) was to arrange contracts for the removal of asbestos in government buildings. Mr Busuttil would not personally arrange for contractors to remove the asbestos. That task was done by his manager, Mr Buckfield. Mr Busuttil's role was to complete inspections and liaise with clients.
Some of Mr Busuttil's early jobs at the AMU included the Queen Elizabeth Hospital, Port Augusta Hospital, Art Gallery, State Library and the tourism building opposite Parliament House. He also completed some smaller jobs at the RAH which involved arranging asbestos removal.
Mr Busuttil would supervise the set-up of plastic bubbles and monitors to make sure the work was completed correctly. Mr Busuttil could not remember exactly where in the RAH this work was completed. Mr Busuttil was a hazardous materials inspector at the time.
Mr Busuttil went into detail about the scope and nature of asbestos removal work at the RAH which I will not recite as it is not material. Mr Miller and the Manpower electricians did not undertake asbestos removal work.
Prior to the formation of the ALU, Mr Busuttil recalled asbestos removal being undertaken at the RAH in the service risers, plant rooms, underground tunnels and East Wing.
The ALU completed asbestos surveys at the RAH.
Mr Busuttil was shown a letter containing his name from Cosko Developments to the DOL dated 28 May 1987, which provided an example of when contractors would seek permission from the DOL to undertake asbestos removal. The letter outlined that monitoring would be carried out by David Ellis Monitoring Services (DEMS).
Mr Busuttil was shown a letter addressed to him from a Mr Ray Parker dated 3 August 1987. The letter provided an example of when work was not completed to satisfaction and Mr Busuttil was requested to supervise the undertaking of work, to bring the site to completion.
Mr Busuttil was shown a letter from Mr A M Finnis to Mr Reynolds dated 9 September 1987, which contained a list of things that needed to be completed on an asbestos removal project, and confirmation that once this list was complete, the removal job was complete.
Mr Busuttil was shown a letter dated 1 March 1988, which provided an example of a contract tender letter, which described work that needed to be completed.
Mr Busuttil recalled that some of the pipework in the catacombs would be lagged in asbestos, with some lagging being full encased in metal, and some lagging being partly encased.
Mr Busuttil was shown an asbestos survey of the RAH dated February 1988. It referred to the McEwin Building, the Bice Building, the Theatre Block and the Outpatients Department. He said that the ALU would provide a copy of such surveys to the RAH and keep a copy themselves.
After completing the surveys, if asbestos was not removed straight away, Mr Busuttil would put up signs (or provide them to the RAH) which would say "caution - asbestos - refer to register".[179]
Mr Busuttil recalls Jack Watkins being a big asbestos safety presence in the 1980s, including at the RAH.
Mr Busuttil mostly dealt with Mr Reynolds and Mr Parker at the RAH.

[161]

When given a hypothetical based upon the facts Mr Miller asserts, Mr Busuttil was very reluctant to accept the assumptions.[187] When he eventually did so, he said it was possible that there could be exposure to asbestos.[188]
Mr Busuttil did not know Mr Miller. He is unaware of what Mr Miller did on a day-to-day basis when he worked at the RAH in 1991.
Mr Busuttil agreed that he knew in 1988 that asbestos fibres were dangerous if inhaled, that there was no safe level of exposure to asbestos and that asbestos fibres were carcinogenic.[189]
Mr Busuttil agreed that in 1988, an occupier of a government building was required to take preventative measures against workmen being exposed to asbestos.[190] Mr Busuttil could not accept that asbestos was found in parts of the RAH that were not asbestos zones because, he said, tradesmen would know where there was asbestos lagging.[191] He went on to say that in 1988, tradesmen at the RAH had to assume that risers, ceiling spaces and the catacombs were contaminated with asbestos.[192] He agreed with the proposition that if tradesmen did not protect themselves in those places, and they were exposed to asbestos, they had not done the right thing.[193]
Mr Busuttil agreed that tradesmen working in service areas were at risk of being exposed to asbestos and should have taken protective measures.[194]
Mr Busuttil said that the heads of the ALU and the Department of Labour (DLI) were aware of the dangers of asbestos. He repeated that the whole Department had the same level of knowledge of asbestos as he did.[195] The ALU was not required to advise clients or customers about the danger of asbestos dust as that was the responsibility of the DLI.[196]
Mr Busuttil said that ALU personnel were required to wear PPE including respiratory equipment when conducting asbestos surveys in potentially contaminated, or actually contaminated, parts of buildings being monitored. While conducting a survey or audit, the ALU would conduct air sample monitoring.[197] Mr Busuttil said that he would always wear a suit and a respirator when working in the presence or likely presence of asbestos because he did not want to risk being exposed to it.[198]
Mr Busuttil agreed that the RAH asbestos register was always being updated to reflect any additional work or monitoring completed in an area deemed to be, or potentially be, contaminated.
Mr Busuttil knew from his experience that asbestos fibres could become airborne if disturbed. He was not able to say whether changes in air pressure could cause fibres to become airborne.[199] He accepted that friable asbestos fibres had the potential to move from one structure to another.[200] He also agreed that it was possible that moving a ceiling tile could disturb asbestos fibres on top of the tile.
Mr Busuttil was taken to RAH asbestos surveys that have his name on them, and which refer to asbestos debris. He said that he understands that term to mean pieces of asbestos that have come off from where they were placed, such as lagging that falls off a pipe onto the floor. Mr Busuttil said that the debris would only move or migrate if they were disturbed.
Mr Busuttil was shown exhibit 1R7 and the bottom photo on the page numbered 5/175. He was unsure whether all the white bits in the photo were asbestos after being told that the photos were taken to show asbestos in buildings.
On the following page, the top photo of the plant room, or plant room tunnel, is described in the 1994 asbestos register as "castable asbestos lagging found inside of pipework service riser".[201] Mr Busuttil expressed surprise at the presence of white coloured asbestos on the floor of a riser.
The top and bottom photo on page 7/177 were put to Mr Busuttil. He agreed that they may show blue asbestos.[202] When asked what else it could be, he said it could be "anything".[203]
Whilst working at the ALU, Mr Busuttil would attend the RAH approximately once a fortnight. If asbestos removal work was being performed, he would attend the RAH for inspections at least once a day for approximately an hour.[204]

[163]

Darryl Pitcher was called by the State. He worked as an electrician and completed his apprenticeship between 1985 and 1989 with FW Hercus, a machine tools and metal engineering manufacturer.
In December 1989, Mr Pitcher began working at the RAH in E&BS where he remained until December 2007. Within E&BS, there was a maintenance division and projects division, with many of the contractors in the projects division being employed by Manpower.
The RAH maintenance division comprised a maintenance manager who oversaw different teams, including air conditioning, fitting, electrical, plumbing and building. Sub-teams had supervisors who oversaw tradespeople, and team leaders who reported to the supervisors.
Mr Pitcher was acting team leader of the electrical team within the maintenance division for approximately 2-3 years before becoming permanent team leader in 1995. He progressed to being electrical supervisor for 2-3 years, before being appointed as acting director of E&BS in July 2005. He remained in that role until he left the RAH in late 2008.
Glen Reynolds was the Director of E&BS when Pitcher started at the RAH. Pitcher considered Mr Reynolds to be a great leader around safety. David McGowan was the fire and safety officer at the RAH. Mr McGowan's role also extended to asbestos safety. Mr McGowan reported to Mr Reynolds.
Mr Pitcher stated that he was aware of the properties of asbestos before he started working with asbestos at the RAH. He stated that in his experience, safety risks and threats were taken very seriously, and that there was a good culture around asbestos safety, with shortcuts not permitted.
Mr Pitcher stated that he understood that there was no safe level of exposure to asbestos. In his induction at the RAH, Mr Pitcher said he was provided with material and information about safety, including the risks and dangers of asbestos. After his induction, Mr Pitcher recalled meetings being held in the morning, known as toolbox meetings, where asbestos was discussed from time to time. Because of that, Mr Pitcher said that he was "vigilant when working with asbestos and t[ook] the necessary precautions."[206]
Mr Pitcher understood that the Department of Mines and Energy was involved in regulating asbestos. He stated that training was provided by the Department on the risks and dangers of asbestos. This occurred at the RAH "potentially once a year,"[207] by which he meant it may have been less than annually.[208]
The policy on asbestos safety required the use of safety equipment, including disposable paper coveralls, foot covers and full battery-powered respirator masks with disposable cartridge filters.
Initially, workers shared masks, but later there was an opportunity for workers to order their own masks. It was up to each individual to keep their mask clean. Mr Pitcher's mask had a battery-powered pump on the front and a disposable filter. New filters were always available. Masks were fitted over the top of the disposable overalls.
When a job involved a risk of exposure to asbestos and was likely to take more than 15 minutes to complete, airborne filter monitoring of asbestos fibres was ordered. If a job was likely to take less than 15 minutes, PPE was used but monitoring was not. It was rare for a job to take less than 15 minutes. Monitoring was managed by Adelaide Airborne Fibre Monitoring. Mr Pitcher said that air monitoring was used in the early 1990s, as he remembers it being used in an early job completed at the RAH where he was re-installing wiring on level 4 of the Q wing.
HEPA filtered vacuums were used to clean up the worksite and personnel. Disposable filters, coveralls, overshoes, disposable protective equipment and contaminated equipment were disposed of in bags. People would work in twos to ensure that all the gear fitted correctly and that each individual was vacuumed off at the end of a job.
An asbestos register was kept at the RAH. It recorded where asbestos was located. The Department of Health was responsible for managing the register. Employees were to consult Mr Pitcher, who in turn consulted the register before having them complete a job to determine whether there was asbestos in the designated work area. Mr Pitcher said that he used and relied on the register. He also said that there were signs on the ceiling to warn of the presence of asbestos.
Maintenance staff were involved in auditing and updating the asbestos register. If asbestos was found and had not previously been identified on the register, or if it was removed, a request was made to update the register. Mr Pitcher did not recall seeing asbestos in an area where it was not meant to be. He was nevertheless aware of the procedure if suspected asbestos was found. Workers were required to stop what they were doing and report the suspected asbestos to a supervisor.
Mr Pitcher felt he was "well equipped with knowledge and equipment before having to work in an asbestos environment".[209] He believed that asbestos was taken pretty seriously at the RAH and that there was never pressure to work in such an environment or do things in an unsafe way.

[169]

Mr Pitcher did not agree that there was a stronger safety culture or greater consciousness of asbestos safety at the end of his time working at the RAH.[220]
Mr Pitcher was not surprised by the statement contained in the audit report of the Occupational Health and Safety Injury Management Department (OHSIMD), which said that the asbestos register was comprehensive but had not been reviewed annually as required.[221] Similarly, Mr Pitcher was not surprised by the following comments made in the audit report:[222]
- "Asbestos management responsibilities are not adequately defined in job and person specifications";
  - "Some room numbers referred to in the asbestos register do not correspond to actual room numbers";
- "There is no checklist or procedure for inspection of the asbestos bubble pre- and post- use";
- "Warning signs on building exteriors do not provide contact details for accessing the asbestos register";
- "The mechanism for staff access to the asbestos register (other than EBS) is not defined or communicated";
- "The existence of an asbestos register is not specifically covered in the employee orientation induction checklist";
- "Safe work procedures do not cover all aspects relating to asbestos management - e.g. inspection, use and maintenance of asbestos bubbles, including setting-up, use and maintenance of vacuum cleaners, accidental exposures to asbestos, hand/face hygiene post asbestos work, record-keeping".
Mr Pitcher was surprised by the following statements contained in the audit report of the OHSIMD:[223]
- "The quick reference guide used in lieu of the register is incorrect and out of date";
- "Safe work procedures do not cover all aspects of asbestos management and appear to conflict with other asbestos-related procedures";
  - "The system for managing records relating to asbestos is fragmented and does not ensure that records are maintained for lengthy timeframes required by legislation. Training in asbestos-related issues is infrequent and does not conform to the EBS training plan. Staff of the RAH, and non-RAH occupiers of buildings, are not provided with access to the asbestos register or information on how to access the register";
  - "The quick reference guide to asbestos location incorrectly reports absence of asbestos in various areas";
- "Non-occupiers are not provided with copies of the asbestos register relevant to their location";[224]
- "There is no asbestos management plan";
- "There is insufficient labelling of asbestos locations both within and external to buildings containing asbestos";
- "The system for maintenance of records of individual asbestos exposures is inadequate";
  - "Asbestos-related training frequency is inadequate, and does not conform to E&BS training plan".
Mr Pitcher believed that safe work method procedures were still being developed in September 2007 when the audit report was completed.[225] He then said that this was because of "the new work, health safety expectations".[226] It was put to him that there were no new safe method procedures or regulations in 2007 and that the last ones were promulgated in 1986. He said that he did not remember.[227] It was put to him that the failure to update the procedures after almost 20 years was a damning indictment of the people running the RAH. Mr Pitcher disagreed.[228] He was then asked whether his answer meant that documenting safe work procedures was not important. He said he did not mean that.[229]
It was then put to Mr Pitcher that there was one page in the 30,000 or so pages of documents discovered by the State that talks about a safety induction in relation to the bubble, and was written by Mr Drury.[230] Mr Pitcher suggested that other induction documents may no longer be in existence.[231] Mr Pitcher was asked to assume the facts Mr Miller asserts. He accepted that if the assumptions were correct, the system of work put together by those who ran the RAH had failed.[232]

[173]

Michael Maybank was a refrigeration and air conditioning mechanic by trade and retired in 2024. He studied at TAFE between 1990 and 1996 and obtained an Associate Diploma in Mechanical Engineering.
Mr Maybank worked at the RAH between 1980 and 2018. He initially worked as an apprentice tradesman and transitioned to refrigeration team leader in the mid-1980s whilst within E&BS.
Mr Maybank stated that E&BS had a Maintenance division and a Projects division. The Maintenance division conducted maintenance work around the RAH and was comprised of "workshops" including air conditioning and refrigeration, electricians, fittings, carpenters, and plumbers. Sometimes external specialists were engaged when required. The Projects division was for larger projects, and at the time, engaged labour hire companies such as Manpower and other contractors.
In 1980, when Mr Maybank commenced work at the RAH, he worked in areas where asbestos was present because it was not prohibited. Mr Maybank explained that in around 1982, the Federal government declared that asbestos was a dangerous substance and gradually types of asbestos were banned. Mr Maybank was "hit... hard" when he learnt about the dangers of asbestos given his previous exposure.[241]
In the mid-1980s, there were awareness campaigns about the dangers of asbestos led by unions, such as the one at the RAH led by Jack Watkins.
At the same time, the ALU surveyed the RAH to identify where asbestos was located and recorded the findings on a register. E&BS used the register to check for the asbestos presence of asbestos in working areas and to see if safety precautions were necessary. Mr Maybank recalled checking the register.
DEMS conducted monitoring and readings of the air to minimise risk to workers. This was undertaken in and around known asbestos areas.
Mr Maybank recalled that if work was needed in an asbestos area, there were often alternative means for his team to conduct work, which involved maintenance and not installation.
When Mr Maybank was in an asbestos area, he used PPE such as overalls, masks and the bubble. He said that the bubble was a device that would enable access without exposing others in the area to asbestos. The bubble was later mechanised, and occasionally workers used frames and plastic to create an air lock. Airborne fibre monitoring was occurring inside and outside the zone, and there was a face respirator with a filter mask to put on prior to entering the zone.
Before exiting the work zone, workers sprayed a mist to settle dust and vacuumed themselves down. They then de-robed in an air chamber and confirmed they were clean before exiting.
Mr Maybank said that by 1991, procedures and safety precautions had been honed. If a worker encountered asbestos unexpectedly, including on and in machinery, it was escalated to a supervisor.
David McGowan, the Fire Safety Officer (FSO), provided training which included respiratory equipment and asbestos training. Mr McGowan worked for E&BS' Director. Various other training experts attended the RAH over the years covering safety around asbestos.
E&BS developed its own occupational health and safety committee which reported to that of the RAH. The committee was heavily involved with asbestos safety.
Mr Maybank referred to the asbestos registers for the location of asbestos, however, it was usually everywhere in the ceiling spaces. He often saw blue asbestos when lifting tiles, hence the safety precautions and procedures.
Mr Maybank recalls the theatre block was relatively free of asbestos and if there was any, it was not recorded on the register. There was asbestos in the Service and Teaching building. This asbestos was completely cleared prior to a major renovation of the building; however, some floors were found not to have much or any.
According to Mr Maybank, stickers were placed at the entrance of buildings to advise that asbestos was present, and some stickers were placed at the entrance to service riser ducts. If a tile sticker had a black dot, it indicated an access point. If there was a blue or white face on the sticker wearing a full mask, the worker was required to wear a respirator.
The catacombs had pipes which could handle temperatures up to 150º Celsius and were lagged with asbestos insulation and which, in the late 1980s and early 1990s, were metal clad. There was a program in the early 1990s to remove some of the lagging but Mr Maybank could not recall the details.
When renovations were undertaken, if the floor needed to be stripped to the slab, asbestos removalists were used to clear the asbestos and then the Projects division commenced work with a removal certification. The register was then updated. The two companies used to remove asbestos were McMahons Services and Royal Park Salvage.
Mr Maybank does not remember Mr Miller but finds it difficult to believe that he was not warned about the dangers of asbestos. Mr Maybank recalls there being "a real scare campaign", which led to awareness at the RAH through conversation.[242]
Glen Reynolds was the Director of E&BS from the mid 1980s. Mr Maybank remembers Mr Reynolds as being safety conscious and a "procedures person". Mr Reynolds was "big on documentation and permits" and set up a system when he became director.[243] The witness statement does not expand to explain the system.

[176]

Mr Maybank stated that he was aware there is a no safe level of exposure to asbestos dust and that it "affects different people in different ways".[244] He first became aware of the risk asbestos posed when he was screened for it by the RAH's occupational health doctor because he was exposed to asbestos "before it was outlawed".[245] Mr Maybank not aware that the federal government banned blue asbestos in 1966, but said that he was aware that there are different types of asbestos fibres.
People came to the RAH to talk about the difference in asbestos fibres regularly over the period in which Mr Maybank worked there.[246] Mr Maybank said that he came across asbestos in vinyl form, not "the dangerous airborne example".[247]
Mr Maybank said that he never came across asbestos in a ceiling space where he did not expect to find it.[248] He said that the bubble did not have to be used in non-asbestos areas.
In relation to masks, Mr Maybank said that it was an electrician's choice whether to use a mask in a non-asbestos area, but "we were all conscious of dust particles, so we'd use the P2 masks if we were accessing a dirty area".[249] He agreed that it was not a blanket rule to wear a mask or respirator at all times in every service riser.[250]
Mr Maybank said the Occupational Health and Safety Committee was very active, even in 1991. There was however significant improvement by 2007.
In 2007 there was a major redevelopment of the "main core" of the RAH.[251] Mr Maybank was therefore not surprised that the audit concluded that "[t]he asbestos register is comprehensive, but is not being reviewed annually as required. The quick reference guide used in lieu of the register is incorrect and out of date".[252]
The following statements made in the 2007 audit surprised Mr Maybank:[253]
- "The system for managing records relating to asbestos is fragmented and does not ensure that records are maintained for lengthy timeframes required by legislation".
- "Staff of the RAH and non-RAH occupiers of buildings are not provided with access to the asbestos register, or information on how to access the register".
- "The existence of an asbestos register is not specifically covered in the employee orientation induction checklist".
- "There are no documented procedures covering accidental exposure to asbestos".
Mr Maybank stated that whenever he accessed asbestos bins, they were locked. He indicated that the standard operating procedures "for asbestos work must have been reviewed 20 times when I was working there... [a]s industry gave their input, we updated as required".[254]
Regarding the procedure to identify risks prior to commencing work, Mr Maybank said that he would work out whether an asbestos zone needed to be accessed or not. This was assessed before the bubble was used, and "[s]ometimes we would avoid actually going through any of that sort of work by re-engineering the problem".[255]
Mr Maybank said that inductions commenced "fairly early in the piece".[256]

[180]

Before retiring from the work force, John Hill was a carpenter who commenced his apprenticeship in 1965. Between 1985 and 1992, Mr Hill was employed at the RAH as a project officer. His direct report was Raymond Parker who was Project Manager. Mr Parker was answerable to the director of E&BS, who later became Glen Reynolds after Mr Hill started as a project officer in 1985.
Mr Hill managed contracts. This involved putting projects out to tender, managing all the plans, and organising the supervisors; Luke Barnard, Ted Carlaw and Kym Dennis.
Mr Hill was hired to assist with new projects and renovations carried out by the maintenance staff employed by the RAH.
One substantial ongoing project was the renovation of surgical theatres. The work involved taking down the main theatres and setting up smaller, temporary theatres which would have to be methodically cleaned and made ready for use, with the assistance of the maintenance staff.
Projects were carried out in Ward B8 in the East Wing, the Hone Wing, wards in the North Wing including Ward S2, the main building kitchen and minor works in the Institute of Medical and Veterinary Services (IMVS). A large part of the project work involved asbestos removal and monitoring. There was asbestos in the North Wing, East Wing, Main Building, Residential and Theatre block.
Asbestos removal occurred in Ward B8 in the East Wing prior to project work starting there. Mr Hill believes this most likely occurred in 1986 or 1987. Upgrades and refurbishments occurred in the North Wing.
Different buildings had different amounts of asbestos. The East Wing and the North Wing had asbestos in the ceiling spaces.
No project work was carried out in the catacombs. Mr Hill does not know whether asbestos insulation was used to lag the catacomb pipes.
Registers logged the locations where asbestos was located. The registers were used to notify of any asbestos leaking outside of the work area. In a supplementary witness statement, Mr Hill stated that dust monitors were used to identify the presence of airborne asbestos. Monitoring was used inside and outside of the bubble to check for leaking.
Asbestos was used for fire-proofing steel in the RAH. McMahon Services was used for asbestos removal from the East Wing. It was well monitored. McMahon Services supervisors and workers followed all guidelines for asbestos removal. Mr Hill remembers seeing them use "tiny brushes to remove all traces of asbestos in the grooves of the steel work."[260]
Mr Hill stated that asbestos was removed, where possible, before the refurbishment of wards. Mr Hill was involved in the process of arranging the asbestos removal. The bubble was used when a worker was doing work in an area with asbestos. Asbestos was monitored on the outside of the bubble. He was unsure whether asbestos was monitored inside the bubble.
Workers who used the bubble had to "get fully suited up in suits and masks when they were working inside the bubble."[261] Once a worker had finished in the bubble, they would "vacuum themselves and the bubble space on the way out of the bubble."[262]
Hill does not recall the bubbles being there when first starting at the RAH, but he said that they were there early on in his time at the RAH.
Contractors used the bubble and were suited up when working in it. The main contractors who used the bubble were the electrical contractors.
Mr Hill maintained that electricians were not permitted to access the ceiling spaces that had asbestos, without protection. They were required to follow the asbestos procedures.
Mr Hill stated that asbestos monitors were everywhere. As soon as someone went into a ceiling space, they had to have a monitor. It was said that Jack Watkins controlled and managed that process.
Mr Hill said that he was very safety conscious. He was not aware of any slip ups with regards to asbestos protection and safety whilst at the RAH.
Mr Hill perceived that there was a general awareness about asbestos and the dangers it posed. He was acutely aware of asbestos in the RAH from the beginning of his employment, and of the risks it potentially posed to workers, with the need to be vigilant. He remembers others being conscious about it because there were patients who were particularly sick and vulnerable.
Mr Hill stated that he found it very hard to believe that someone who worked at the RAH was not aware of the protections used at the RAH at that time, or the dangers of asbestos and the measures required to be undertaken by all workers, whether they were employees or contractors.

[183]

Edward (Ted) Carlaw worked at the RAH as an employee and a contractor between 1983 and 2014. During the early 1990s he was a supervisor in E&BS, later becoming a construction manager in the mid 1990s. Mr Carlaw supervised various tradesmen, including contractors from Manpower. Mr Carlaw did not recall working with Mr Miller.
Mr Carlaw stated that all electricians at the RAH were under the supervision of Luke Barnard of E&BS. During large renovations, Mr Carlaw stated that his crew often worked with Mr Barnard's crew and he was confident in commenting on how Mr Barnard worked and operated his crew.
Before and during the early 1990s, Mr Carlaw recalled there were policies and safety procedures in relation to asbestos for all workers at the RAH, including contractors who worked in an asbestos area, or suspected asbestos area, was required to wear a respirator and PPE.
When working in ceiling spaces, workers had to be inside a bubble which had negative pressure and was designed to isolate them and prevent asbestos from escaping. When exiting the area, the bubble operator had to vacuum the area they were working in as well as themselves, put their protective clothing in a sealed bag, and send their mask away to be cleaned. There were two bubbles, and it was against procedure to lift ceiling tiles without a bubble.
Asbestos registers were required to be filled in that correct procedures had been followed. Filling in registers was required before and after undertaking work.
Mr Carlaw claimed that if Mr Miller had been supervised by Mr Barnard, then he would not have been allowed to undertake asbestos work without PPE and adhering to procedures. Mr Carlaw states he has this knowledge because he worked with Mr Barnard for a long time.
Jack Watkins, the union representative, was a frequent attendee at the RAH to discuss asbestos and safety procedures. In 1987, Mr Watkins caused work to stop during the refurbishment of the RAH North Wing.
If asbestos removal funding was provided, as it often was for larger projects, there was no work undertaken until the removal had happened and clearance was provided. McMahon was one of the companies that completed asbestos removal work.
If funding was not provided, as was often the case on smaller projects, all normal working precautions would be applied. This included the wearing of PPE, use of the bubble (if required), asbestos monitors, and adopting the sign-on sign-off process for the register. Not all smaller projects required workers to be in a ceiling space.
Occasionally, workers used plastic sheeting or mechanically boarded up an area to isolate it and create a "working area bubble" to limit contamination. There would be a filter to create negative air pressure, such that there would be no leakage outside of the bubble. Monitoring would also occur in the bubble.
There were airborne asbestos monitors inside and outside areas where asbestos work was being conducted, and any removal would require their use. If a positive reading occurred, no work could commence until the workers received clearance.
Mr Carlaw said that he found it unlikely that Mr Miller would have not been given PPE or supervision while working with asbestos.

[184]

Prior to working at the RAH, Mr Carlaw worked in both the Northern Territory and Western Australia.
At the time Mr Miller worked at the RAH, Mr Carlaw was self-employed and contracted to the RAH.
From commencement of work at the RAH until 1985, Mr Carlaw was in the maintenance division. He then moved to the projects division under Ray Parker, with Mr Barnard. Keith Evans was the maintenance superintendent.
Prior to working at the RAH, Mr Carlaw was aware of asbestos, but not of its danger.
Mr Evans informed Mr Carlaw that asbestos was dangerous, and precautions should be taken. This was discussed regularly by supervisors and other workers.
Mr Carlaw was a supervisor for labourers, plumbers, fitters and AC crew from 1985 until the early 1990s. He built the first bubble in the mid 1980s.
Mr Carlaw and Mr Barnard were both ensuring the workers were aware of the dangers of asbestos and relevant safety precautions. This was often discussed in safety meetings.
From the beginning of Mr Carlaw's time at the RAH, he recalls asbestos being removed, and some areas of the RAH became asbestos free. Large projects would begin with specialist removal of asbestos, when funding could be obtained.
In mid to late 1980s, the first asbestos register was introduced that documented the location of asbestos and its state. This register was updated after asbestos removals.
Mr Carlaw states that work being conducted in areas with unknown asbestos presence was not a common occurrence, with it taking place less than once a year. This may be in a riser.
If asbestos was found, the worker would stop and tell a supervisor, and not be allowed to continue without all safety precautions taken.
When something resembling asbestos was found, it would be tested and removed if there was a positive finding. However, Mr Carlaw claimed there was not often a positive finding.
Mr Carlaw required his team to wear masks unless they were certain there was no asbestos.
Mr Carlaw states that he spoke of asbestos and relevant safety precautions during inductions, which were given to new contract workers in projects, including Manpower contractors. Mr Barnard also gave inductions, occasionally together with Mr Carlaw. Inductions were in place when the bubble was introduced in the mid-1980s.
An induction consisted of a walk around the site with an introduction to areas the worker would be in, as well as asbestos, patient safety, working on ladders, safety glasses, other PPE, and isolation of electrical equipment.
In the mid to late 1980s, Mr Carlaw recounted that inductions were rigorous, including a form that the inductee had to sign to say that they had read and agreed to all information given. These forms had checklists on them, including a point regarding asbestos. The forms were kept in the office.

[185]

Referring to paras 8 and 9 of his witness statement, dated 7 March 2025, Mr Carlaw confirmed that there were policies and procedures in place prior to 1990 in relation to asbestos, and that they were developed and updated over time.[265]
Mr Carlaw was a contractor with Damock Engineering from 1983 to 1985. He then contracted directly with the RAH and worked in the maintenance section until 2000. Mr Carlaw then become an employee of the RAH during the 2000s, working in the projects section.[266]
Keith Evans was a supervisor for the maintenance section, who informed Mr Carlaw of the dangers of asbestos in the RAH and the precautions he should take, when he contracted with the RAH directly (after 1985).[267]
Mr Evans told Mr Carlaw that he should wear a mask when working in an asbestos area, and that if he was not comfortable wearing it, come away, and report it back.[268]
Mr Carlaw worked with Mr Barnard from late 1984 onwards.[269]
For many works completed as part of the projects, Mr Carlaw would work closely with Mr Barnard. Mr Barnard would complete the electrical works, and Mr Carlaw would follow with the fittings. He clarified that close proximity work was performed about three quarters of the time.[270]
Mr Carlaw observed that Mr Barnard was very safety conscious and vigilant. Mr Carlaw recounted that Mr Barnard would care for and clean the masks, as well as organising asbestos monitoring. Mr Carlaw explained that Mr Barnard would explain, when delegating tasks, that the worker would be going into an asbestos area and the type of PPE they were required to wear or use.[271]
Counsel asked how Mr Carlaw acquired this knowledge. Mr Carlaw explained that his office was next door to Mr Barnard's office and that they would frequently have conversations around work that required workers from both their teams to attend.[272]
The witness was shown a photo of a bubble. Mr Carlaw stated that he made the first bubble, but that the bubble shown to him in the photo was of a later bubble, as it had an electrical outlet on the side. That was not a feature of Mr Carlaw's bubble. Mr Carlaw recalled there were two bubbles from about 1985 to 1990.[273] He did not recall ever seeing the bubble presented in the exhibit whilst at the RAH.
Jack Watkins and Mr Carlaw spoke on three occasions to discuss asbestos issues at the RAH. In Mr Carlaw's opinion, Mr Watkins was very happy with the handling and removal of asbestos on a regular basis. This impression was formed from these conversations.[274] Mr Watkins being "happy" was on a general scale in relation to the RAH, Mr Carlaw and Mr McGowan.[275]
Mr Carlaw was working adjacent to the S2 ward refurbishments, in which Mr Watkins' involvement caused a stop to the works. Mr Carlaw's witness statement in para. 15 stated that Mr Watkins was "cordial". The temporary stop of works in S2 affected Mr Carlaw's area while the asbestos was removed. The unions placed a ban on the surrounding area.[276]
Counsel asked Mr Carlaw if there were rules regarding masks for the people working under him, in relation to working with and around asbestos. Mr Carlaw recalled that there was a general policy that supervisors would check the register to ensure no asbestos was known in that area, but it was always stated that the worker was to carry a mask at all times. If unsure whether asbestos was present or not, the worker was to wear a mask in case. If a worker found asbestos in the ceiling, they were to stop work and report it.[277] Mr Carlaw recounted this procedure was consistent with Mr Barnard's workers as well.
To address the objection to para. [20] of the supplementary witness statement, Mr Carlaw was asked to recount the process of "induction" (without using that phrase). He explained there was a form to be signed that acknowledged the safety observations, along with a questionnaire that acknowledged the workers had read and understood the form. This was run by E&BS and occasionally by Mr Carlaw himself. Mr Carlaw recalled it took approximately 20 minutes to complete the questionnaire.[278] Working safely with asbestos was only one part of the questionnaire.

[186]

Mr Carlaw recounted that there was asbestos all throughout the RAH. Asbestos had been sprayed on the beams as fireproofing and lagging on pipes. Mr Carlaw confirmed there was asbestos in the East wing and North wing, specifically in outpatients, the theatre block and the risers.[279]
Mr Carlaw recalled the presence of blue and white asbestos, with no knowledge of any other type. Counsel asked if Mr Carlaw was able to distinguish characteristics of each type, and Mr Carlaw simply stated that they were equally dangerous. The witness was aware that there was no safe level of exposure to asbestos.[280]
When Mr Carlaw commenced working at the RAH, he heard talks through Mr Evans and others as to the dangers of asbestos. Mr Carlaw heard that asbestos could cause mesothelioma and that safety precautions should be taken. This information was acquired from his time with E&BS, not Damock Engineering.[281]
Paragraph [8] of Mr Carlaw's witness statement stated that there were policies and procedures in the early 1990s for safety. These policies were for safety with tools, asbestos and patients, matching that of the description for the process in para. [20] of the witness statement. If an area was suspected or listed to have asbestos, the worker was required to wear PPE before going into that space. The worker was not allowed to be in the area without PPE. This information was ascertained from the asbestos register.[282]
Mr Carlaw confirmed that the bubble he built was designed for ceiling spaces specifically, not the risers or the catacombs. Counsel referred to para. [12] relating to the asbestos registers, and the witness explained that the RAH kept a register that "supposedly" (using finger air quotation marks) covered all areas that contained asbestos, and that every worker could access and check if asbestos would be in their working area.[283]
If a worker saw on the register that there was ‑blue asbestos in their area, they would talk with a supervisor and arrange access to the bubble, PPE‑ and monitors.[284] If the registers suggested the working area was clear of asbestos, workers would still take precautions as the register was not 100 percent accurate. These precautions involved wearing a P2 mask, lifting the ceiling tile, and checking for the presence of any asbestos, before commencing work.[285]
Workers were told, and it was suggested, to wear a mask irrespective of what was recorded on the register, but it was up to the discretion of the individual tradesman to wear a mask. Wearing a mask was not a requirement if the register said the area was clear of asbestos.[286]
Mr Carlaw did not undergo an induction at the RAH when he commenced work there with Damock Engineering.[287]
Mr Carlaw commenced in the maintenance section of E&BS not long after he started performing work at the RAH with Damock Engineering. He only remained employed by Damock Engineering for a matter of weeks before he was appointed as a contractor by the RAH with E&BS.[288]
Mr Carlaw disagreed with Counsel when it was put to him that a worker was not required to wear a respirator at any time when working in a service riser, ceiling space, or the catacombs. He then clarified that wearing a mask was not a requirement if the register suggested the area was clear of asbestos, it was only advice.[289]
Mr Carlaw said that he knew Michael Frajer, the leading hand in refrigeration, and an electrician by trade. In 2010, Mr Frajer wrote a memorandum to work health and safety regarding the inaccuracies of the asbestos register, explaining workers would be required to wear, at minimum, a mask at all working times, regardless of what the register said, while it was being upgraded. Mr Carlaw did not recall the memo. Counsel for Mr Miller suggested that the memo was sent because wearing a mask at all times was not at the time standard practice.[290]
Mr Carlaw stated that he held a positive view of Dean Bastian, Russell Villiers, and Stephen Drury. He agreed that they were all experienced tradesmen and good workers.[291]
Counsel recounted some of the evidence given by Mr Bastian, Mr Villiers, and Mr Drury. Each witness had said that they were not given an induction, or any training or information in relation to asbestos, and that they learnt about the dangers of the product over time through experience. Mr Carlaw was unable to definitively state whether Mr Barnard had provided an induction. Mr Carlaw further assumed that all three witnesses, as electricians by trade, would have previously encountered asbestos and would have had the associated knowledge.[292]
Mr Carlaw agreed that service risers were present in most RAH buildings, and that they contained switchboards, pipes, and electrical equipment, running from the uppermost ceiling down to the basement.[293] One of Mr Carlaw's jobs when he first worked at the RAH was to seal the service riser ducts for fire protection from floor to floor. Counsel explained that the registers from 1989 to 1994 suggested that many of the risers in the East wing, North wing, theatre and operations block were not blocked off as at 1994. Mr Carlaw said he could accept that was the case.[294]
Mr Carlaw also accepted that when clumps of sprayed asbestos had moved from the ceiling spaces into the risers, exposure to asbestos could not have been prevented. Mr Carlaw clarified that the bubble could not be used in the risers.[295]
Mr Carlaw accepted that services ran through the catacombs but did not recall asbestos being present in the catacombs.[296]
Mr Carlaw did not accept that Mr Bastian and others were never directed to wear a mask or respirator when entering service risers.[297]
Counsel referred to a document from 2007, titled Royal Adelaide Hospital Occupational Health and Safety Injury Management Department Audit Report into the Asbestos Management Policy of the Royal Adelaide Hospital.[298] Mr Carlaw did not recall the audit, but was surprised at the finding that there was no procedure for inspecting the bubble pre and post-use, having been under the impression that there was a checklist or written procedure to detail as such.[299]
The audit further found that the asbestos register was not covered in the employee orientation induction checklist. Mr Carlaw responded that this was about employees, not contractors, and that he could therefore not speak to it.[300]
Mr Carlaw was not surprised that there was no documented procedure in place for accidental exposure to asbestos.[301] However, after that response, he largely disagreed with most of the findings in the audit that were put to him, including that asbestos training was given infrequently and there was no system for maintaining documentation for prescribed time periods.[302]
Cross-examination by the applicant ended with this exchange:[303]

[191]

David McGowan commenced working at the RAH in 1985 as a Fire Safety Officer within E&BS. He remained at the RAH until 2005. There were two breaks during that period; three months at the end of 1989 and when he left to work as the superintendent of the West Terrace Cemetery from 1993 to 1996. He returned to the Fire Safety Officer role in 1996.
Mr McGowan looked after and supervised asbestos safety. Part of his role was to liaise with the Mineral Fibres branch of the DLI about asbestos and how to manage it.
Mr McGowan reported to Glen Reynolds for most of the time he was at the RAH. He said that Mr Reynolds was very safety conscious. There were other contractors in the Projects division, some of whom came from a labour hire company called Manpower.
The Public Buildings Department commissioned a building fire safety report in 1988 authored by John Flaus. Mr Flaus identified that sprayed asbestos was used as construction fire protection between the 1950s and the 1970s. The report highlighted that most of the RAH buildings built after 1958 contained asbestos. Those buildings included the East Wing, North Wing, the Services and Teaching block, and Theatre Block. Mr McGowan did not recall there being asbestos in the catacombs. He stated that the catacombs had no sprayed asbestos as they contained no fire load.
In 1985, a project was put in place to remove asbestos in the RAH. The project started in 1986 or 1987. Some smaller asbestos removal had occurred before then and before Mr McGowan began working at the RAH.
The removal of asbestos on a larger scale was underway by 1989. The RAH contracted asbestos removal jobs out to specialist licenced asbestos removal companies. Mr McGowan remembered McMahons was the main asbestos removal company used.
When asbestos was removed, everything was sealed off, plastic was everywhere and people from the removal companies wore full protective equipment. The specialist companies put a PVC spray down, scraped the asbestos off and then took the PVC spray off to catch the fibres. Removal occurred in the East Wing, North Wing, Services and Teaching Block and Theatre Block. Mr McGowan cannot remember precisely when the removal occurred in each area, except in the case of the East Wing, which occurred in the late 1980s.
When asbestos removal occurred, air monitoring companies monitored the rates of airborne asbestos. This was performed by David Ellis Monitoring and Peter Seekman. Those companies submitted their results to Mr McGowan and the Mineral Fibres branch of the DLI. The asbestos was removed, and air monitoring had to show safe levels existed before any major works or renovations commenced.
Mr McGowan was responsible for the asbestos safety policy at the RAH which was adopted from the DLI.
Both employees and contractors were required to use face masks with DLI approved filters. Mr McGowan clearly recalls people wearing face masks around asbestos from when he started working at the RAH.
All employees and contractors were required to wear a face mask, gloves, and Tyvek paper suits/overalls if there was any risk of asbestos contamination in a work area. The Tyvek overalls were disposed of under specific conditions. All employees and contractors had to use showers after they had been working near asbestos and in Tyvek overalls.
When used, a bubble created a negative pressure and vacuum seal area so that no air or asbestos fibres could get out of it. Employees and contractors used the bubble wearing full protective gear (gloves, masks and Tyvek overalls). All dust was vacuumed up and water was sprayed to dampen loose fibres. Air monitoring was used both inside and outside the bubble when it was used.
There was a detailed asbestos register to track where the asbestos was in the RAH. The register was in the care of the drafting office.
Mr McGowan undertook some of the survey work himself to identify which buildings had asbestos and was usually accompanied by someone from the DLI. If asbestos was found and was not recorded on the register, it was added to the register. Mr McGowan did that himself, or the person who found the asbestos would do it. He is aware that some people from air monitoring companies added to the register. When new entries were made on the register, he had to inform Glen Reynolds.
Before any work commenced, both employees and contractors were required to consult the asbestos register to determine whether asbestos was in the intended worksite. If asbestos was recorded on the register, full personal protective equipment was required, regardless of whether the bubble was used. If large scale work was to occur, asbestos was removed by the removal companies before the work commenced.
Mr McGowan frequently checked on employees and contractors when they were working to ensure that appropriate fire and safety precautions were undertaken. This included asbestos safety precautions.
Mr McGowan organised annual asbestos training at the RAH, which began before his coronary bypass at the end of 1989. During the training he explained "the dangers of asbestos, how it sticks to your lungs and stays forever, and how you needed to protect your breathing".[315] Through demonstration, he also taught practical skills like how to properly fit a mask and overalls.
Contractors who were to undertake work around asbestos, including electrical contractors, were required to have an asbestos certification from the DLI. This certified that the contractor had completed asbestos training. Some contractors, such as builders and bricklayers, did not require these certificates because they were undertaking new building work and not working near asbestos. Mr McGowan sighted and checked the certificates of the contractors.
In the mid to late 1980s, there was a big union presence at the RAH. If there was any suggestion of asbestos being found, unions campaigned and applied pressure to shut down the site. Mr McGowan was vigilant because of that.
Manpower was responsible for ensuring that its contractors were properly trained and able to complete the work. Manpower was aware of the asbestos at the RAH and of the actions the RAH took to protect people.
Mr McGowan said that Mr Miller may have been working in areas where asbestos had been removed and a clearance to work there had already been given. If that was so, he said there would be no further air monitoring in that area.

[193]

Mr McGowan said that when he first started at the RAH there were already precautions in place in relation to asbestos.[316]
Mr McGowan observed Mr Carlaw and Mr Barnard's practices working with asbestos and how they supervised their workers.[317] He also talked to them about asbestos. He formed the impression that Mr Carlaw and Mr Barnard were very safety conscious and aware of the dangers of asbestos.[318]
Mr McGowan met with officials from the DLI to discuss asbestos.[319] They referred to their documentation, which Mr McGowan described as being "a ministerial direction on what safety precautions ought to be taken".[320] Such documents described how to identify asbestos properly, the importance of the air monitoring process and the disposal of contaminated overalls and washing down masks.[321]
Mr McGowan could not recall any criticism of the RAH's asbestos practices by the DLI. He added that if there had been criticism, he "probably would have [remembered], because [he] felt the responsibility quite keenly".[322]
Mr McGowan said that he was responsible for ensuring, by observation, that when people were working in an asbestos area they were following correct protocol such as putting on an overall and masks and correctly disposing of the material found by using the vacuum. Mr McGowan would do this by frequently walking around the RAH and inspecting all works being completed.[323]
When Mr Parker discussed projects with Mr McGowan, they discussed how to seal up the corridors with plastic and who would inform the asbestos monitors at the start of the project.[324]
Mr McGowan stated that people were not permitted to work on projects at the RAH without taking asbestos precautions.[325] He said a fire pillow was a 'small soft thing like a pillow which is intumescent, which means that under fire conditions, it expands and will block the hole...it's a very well-tested method of providing fire separation where there [were] penetrations for services".[326]
Mr McGowan said that ceiling spaces in the RAH were "grossly contaminated" by sprayed asbestos.[327] However, he said that there was no sprayed asbestos in the riser ducts. Therefore, performing work "in the riser ducts was a matter for fire prevention, rather than asbestos work".[328]

[200]

Many of the services required of maintenance personnel or contractors included working in ceiling spaces and other areas where asbestos was located. Mr Reynolds considered that the most significant place where asbestos was encountered, and potentially the most hazardous place to work at the RAH, was in ceiling spaces.[340]
Mr Reynolds was responsible for the safety of E&BS workers at the RAH. David McGowan was responsible for asbestos safety and that responsibility filtered down to the respective divisional managers, section leaders and trade supervisors. An example of the responsibility being filtered down included the supervisors' role of inducting new workers and take them through the RAH's safety procedures, including in relation to the safe working with asbestos. This was provided to anyone who could be exposed in their work to asbestos.
Mr Reynolds did not recall the SA Health Commission document Technical Bulletin No. 24, but said he very much recalled the things it discussed as forming part of the RAH's procedures for working with asbestos.
Mr Reynolds recalled workers were required to wear protective clothing. Safety equipment was supplied by the RAH for employees and contractors working for E&BS.
Depending on the work undertaken, areas of the RAH were sectioned off from operational areas with warning signage, including prohibiting access to the ceiling spaces.
Mr Reynolds recalled decontamination procedures for workers and the use of special vacuum cleaners. He also recalled the mobile ceiling access apparatus called the asbestos bubble which workers were required to use along with protective equipment to access the ceiling spaces. Additionally, E&BS engaged independent organisations to perform air monitoring. This included project work and ad hoc tests to check air quality. Mr Reynolds was given monitoring reports to ensure that asbestos levels were within acceptable levels.
Mr Reynolds did not recall Mr Miller but insists he would not have been permitted to undertake work without following the procedures in place.
Mr Reynolds contended that if Mr Miller says he did not wear protective equipment, that could only mean that Mr Miller was not working in areas where there was asbestos.
The removal of asbestos was difficult and required significant planning due to the operational needs of the RAH. It occurred as part of a project, such as refurbishments, to prevent disruption. This removal was undertaken by specialist removal firms such as McMahons and Cosko under the supervision of the Asbestos Liaison Unit. Removal took place and was assessed before the refurbishment work commenced.
Mr Reynolds did not accept that Mr Miller would have undertaken work and not worn the protective equipment and not followed the procedures E&BS had.
Mr Reynolds recalls Jack Watkins, a union asbestos officer, who would often visit the RAH to ensure that all safety protocols were being followed, including checking that workers were wearing safety equipment. Mr Reynolds met with Mr Watkins frequently, and eventually enjoyed a friendly relationship due to their aligned interests in asbestos safety.
Mr Reynolds stated with confidence that asbestos procedures were followed when work was undertaken in areas where asbestos had not been removed because "[i]t would simply not be allowed by" him.[341]
Mr Reynolds did not recall the letter to Mr Barter on 12 November 1991 but recognised his own signature and recalled the Occupational Health and Safety Committee within the RAH and its requirement to report any incidents involving asbestos safety at the RAH.
Mr Reynolds recalled that E&BS became certified to Australian Standard ISO 9001 Quality Management Systems. To become certified, E&BS had to establish documented procedures which were distributed to relevant managers and supervisors, as were any amendments. E&BS needed to show ongoing compliance to remain certified to the Australian Standard. In demonstrating its compliance, an independent consultant retained by E&BS, on behalf of the Australian Standard, would come to the RAH to review their documents and approve continued certification. To the best of his knowledge, Mr Reynolds recalls E&BS remaining certified during the time he was at the RAH.

[202]

Mr Reynolds left the RAH in June 2005. He thought that Darryl Pitcher was appointed acting director following his departure.[346]
When Mr Reynolds commenced at the RAH in May 1985, he was aware that asbestos fibres were carcinogenic. At the time he was not aware there were different types of asbestos fibres, but very early on came to learn that information from Bulletin 24 of the Health Commission.[347]
Mr Reynolds did not know during the mid to late 1980s that there was no safe level of exposure to asbestos, and that one asbestos fibre could lead to mesothelioma and death, but became aware of that during his time working at the RAH.[348]
When asked which buildings had asbestos in them, Mr Reynolds stated that they included the east wing, north wing, three front buildings, service and teaching, theatre block, outpatients department, some of the residential wing and some of the service tunnels between the new and the 1970s building.[349] Mr Reynolds stated that asbestos was present on the steel beams and structural beams.[350]
Mr Reynolds stated that he was made aware that the asbestos in ceiling spaces was blue asbestos.[351]
He confirmed the first asbestos register was compiled in around 1988 and another updated asbestos register was compiled in around 1994.[352]
In the mid to late 1980s, Mr Reynolds was conscious of the risk of injury from exposure to asbestos for electricians and other tradesmen.[353] However, he did not believe they were at risk of coming into contact and inhaling asbestos because they were trained to work in asbestos areas.[354]
Mr Reynolds accepted that in the early 1990s if a tradesman was working in a service riser or in the catacombs, it was possible they could come across respirable asbestos dust.[355]
Mr Reynolds confirmed he was aware there was approved code of practice that was promulgated by the Parliament of South Australia, and commenced on 1 April 1991, which enforced obligations on the RAH as matters of law. However, he did not know that the RAH was under an obligation to keep all records of asbestos procedures for 30 years.[356]
Mr Reynolds explained that "David McGowan was principally fire safety officer" and "as the safety officer, he would collect and collate the information that came in from [asbestos] monitoring".[357] Mr McGowan was also the principal liaison officer on the issue of asbestos procedures, including monitoring, provision of information and updating of the registers.[358]
Mr Reynolds recalled workers performing work in areas where it was known that there was asbestos in the ceiling spaces.[359]
Mr Reynolds did not recall the OHSIMD of the RAH undertaking any audit of the RAH's asbestos management practices and procedures.[360] He explained the responsibility of the OHSIMD of the RAH was to overview the occupational health and safety procedures on site.[361]
Counsel asked Mr Reynolds if he recalled Yvonne Lindenbauer (Manager, prevention and safety of the department) or Robin Newlands. Mr Reynolds vaguely remembered both.[362]

[203]

David Hawkins joined the Mechanical Designs Unit of the Public Buildings Department in 1972 and worked there for 16 years. He moved to the AMU of the RAH in 1988. Mr Hawkins stated that asbestos surveys of the RAH had commenced by that time.[363] He worked with Joe Busuttil when he started at the AMU.[364]
Mr Hawkins' work at the AMU involved conducting asbestos surveys. Licensed asbestos removal contractors were, at times, used to remove high priority friable asbestos. The AMU also supervised removal contracts to ensure the job was complete before contractors were paid.[365] The AMU did not assist departments to establish policies and procedures for working with asbestos, but did promote the Code of Practice. The AMU's role was to conduct the survey and prepare the register. It was a condition of work for the asbestos removal contractors to follow the Code of Practice.[366]
Asbestos identification training was provided by the AMU onsite where the surveys were conducted.[367]
The asbestos register detailed where asbestos was found, the status of some asbestos products and recommended actions that should be taken, the latter column included whether a contractor had removed the asbestos (if known).[368] During surveys, the AMU determined whether asbestos was friable or non-friable, as defined in the asbestos register definitions. Not all material had to be removed and he gave the example that low-risk material such as non-friable sheeting was not always removed.[369]
Mr Hawkins was involved with the first RAH asbestos survey which took weeks to conduct. He did not precisely recall the state of asbestos at the RAH when he commenced working there but said it was shown on the asbestos register. He did not recall sprayed asbestos being in the old heritage buildings but did recall it was used as fire rating on structures in the newer buildings.[370] Annual re-inspections which took 1-2 weeks to complete were conducted in areas where asbestos was found, as required by legislation.[371]
By 1989 or 1990 information about the location of asbestos was available at the RAH through the asbestos registers, which were provided to the RAH as soon as they were prepared.[372]
If funds were available at the end of the financial year, the AMU sometimes arranged for sprayed asbestos to be removed from the residential block where the nurses lived. The asbestos was sprayed underneath the cement to improve fire safety but "would get knocked around by tradespeople" and needed to be removed.[373]
Protective gear was worn when asbestos inspections were conducted. For duct risers, P2 masks were worn. In confined spaces where asbestos was thought to be, or where asbestos was sprayed on the underside of a roof, a full face mask and disposable suit was worn.[374] When ceiling tiles needed to be raised and it was known there was sprayed material above, the 'bubble' was used. This was a mobile machine the width of a ceiling tile and 3m long, with an extension top section that was raised to touch the ceiling tile prior to its removal to prevent the asbestos spreading. Air sampling was undertaken inside and outside of the bubble, and the bubble was not removed until no airborne asbestos fibres were in the area.[375]
Mr Hawkins recalled seeing asbestos in the flanges in the pipework of the catacombs underneath the RAH, but nowhere else in that area.[376]
Initial surveys at the RAH produced registers in the form of reports or surveys, however, these were eventually converted into tables. This was because the RAH wanted the register to include details of every room and the location of asbestos in that room so that it would be simple for workers to establish whether asbestos was present. An example of this was shown to Mr Hawkins and the document was titled "Royal Adelaide Hospital - Theatre Block".[377]
Air sampling was used for a long time, including in 1988 when Mr Hawkins joined the AMU. The AMU engaged contractors to conduct air sampling monitoring for inspections, and contractors were not allowed into certain asbestos-contaminated areas until air sampling was conducted and a clearance issued.[378]
The AMU made recommendations for asbestos removal if it considered the asbestos to be a risk, such as friable asbestos. However, the RAH managed its removal process based on areas that needed to be upgraded.[379]
Mr Hawkins confirmed that a document headed "RAH Services and Teaching", dated 19 November 1990 reflected notes of his meetings with John Hill and Jim Kennelly around this time about work to be completed at the RAH.[380]
It was Mr Hawkins' impression from his observations and discussions at the RAH that it was very safety conscious in relation to protecting people working with asbestos in its buildings.[381]

[204]

Mr Hawkins stated that he left the AMU in 2010 when he retired.[382] He does not know Mr Miller or the work that Mr Miller performed at the RAH.[383]
As far as Mr Hawkins is aware, the survey AMU conducted in 1988 was the first of its kind at the RAH. Surveys were conducted for proposed redevelopments of the entry for the RAH and the surrounding buildings were affected (including the Bice, McEwin and the services and teaching buildings, which have now been demolished). The survey process involved going to various places in the RAH looking for the presence of asbestos and its state. While there was some idea of where to look for asbestos, it was not known prior to conducting a survey whether asbestos would be present in a particular site or building.[384]
Precautions were taken against the possible inhalation of asbestos dust when performing these surveys. This mainly included wearing a P2 mask, regardless of whether they expected asbestos to be found. Mr Hawkins noted there were "not really" other precautions taken because they were not crawling through areas where asbestos was present.[385]
Mr Hawkins gave the example that if asbestos was present in a riser, there was a "fair chance" it would also be found in other locations.[386] That observation was based on the age of the buildings and the way they were constructed.[387]
Mr Hawkins agreed it was possible that asbestos sprayed in the buildings surveyed had transferred from where it was initially sprayed into the service risers, and the equipment and cables in those areas. He suggested this may have occurred from mechanical damage, such as things getting knocked around when extra wires or pipes were run, or deterioration of the adhesive or glue used to affix it. In this case, the clumps or fibres would usually end up on the top of the ceiling space, as debris on the tiles.[388] He agreed that pulling cables through ceiling spaces or putting in new services damaged the asbestos lagging/spray and result in friable asbestos moving from its original location to other areas.[389]
Mr Hawkins agreed that if the register reflected it, he had found extensive asbestos contamination in multiple service risers in the buildings surveyed. He did not recall making a recommendation in a report dated February 1988 that the areas where asbestos had been found on equipment and machinery in service risers should be decontaminated and cleaned up. He did observe that if that was recorded in the register, then decontamination and a clean up should follow.[390] He agreed that decontamination and clean up of contaminated areas was a recommended action that would have been recorded in the register.[391]
Mr Hawkins described the registers in 1988 as "early registers", in that they were "the beginning of making the registers".[392] The format changed after a while, including when legislation was introduced that stated what information the registers had to include. He noted that the registers in 1988 "were as accurate as they could be at the time".[393] While the survey extended to other buildings at the RAH after 1988, in that year the whole site was not surveyed and Mr Hawkins was not aware of anyone else surveying the remaining buildings.[394]
In 1988, Mr Hawkins knew that respirable asbestos fibres were not always visible to the naked eye. He knew that tradesmen, including electricians, working in areas such as the service risers could still be inhaling fibres without knowing it, even in areas that did not appear to be visibly contaminated. He noted that the air sample monitoring they conducted detected whether there were any respirable fibres in the air but agreed that such fibres could not be seen.[395]
It would have been the RAH's responsibility to implement a recommendation that asbestos covered areas should be decontaminated and cleaned up. A licensed asbestos removal contractor would need to be engaged to perform any clean-up that was required based on air sample monitoring results.[396]
Mr Hawkins was not comfortable in describing patterns of movement of asbestos fibres in risers based on his experience at the RAH.[397]
In 1988, the AMU and Mr Hawkins personally were aware that asbestos fibres were carcinogenic.[398] He stated that did not know at that time that even small amounts of asbestos fibres could result in injury or death, and that he did not have much knowledge about the dangers of inhaling asbestos other than the fact that they were provided with protective equipment and were required to do air sample monitoring for airborne asbestos fibres. However, Mr Hawkins later accepted that the reason this was done was because he knew, in 1988, that inhaled asbestos fibres were dangerous and could lead to asbestos related lung cancer, mesothelioma or death.[399]
Mr Hawkins confirmed that paras 11 and 13 of his statement referred to the buildings that he mentioned were the subject of the first survey, being those near the entrance of the RAH.[400]
With reference to para. 7 of his statement and the recommended action column of the reports, Mr Hawkins noted that if asbestos was friable and in an exposed location, the recommended action was to remove it as soon as practicable. If it was a rigid sheet-type material, the recommended action was to monitor it to ensure that it remained in good condition.[401]
His concern in conducting surveys was with friable asbestos because it has the capacity to move and get into people's lungs.[402]
Mr Hawkins was referred to pages 375 and 376 of exhibit A37. He confirmed that this was the document he referred to in para. [13] of his statement and that it was his handwriting in the document. Mr Hawkins confirmed that the comments under the heading 'General Notes' were his recommendations as to what needed to happen as a result of the 1988 survey being, for the most part, decontamination of a range of areas.[403]
Mr Hawkins did not recall whether he conducted the next survey in 1994.[404]
It was put to Mr Hawkins that the 1994 and 1995 surveys revealed contamination in the same areas it was found in 1988, and that the RAH had not followed his recommendations. In response, Mr Hawkins noted that they only provided the report and could not make the RAH follow the recommendations.[405]

[207]

Richard (Rick) Crichton has over 35 years' experience working with asbestos, including consulting, management and trades work. Until 1986 he worked with SA Housing Trust, first as a landscaper and then in office roles. Mr Crichton became an Inspector, which required him to attain a building certificate over a four year period.
In 1989, Mr Crichton commenced employment with Environmental and Industrial Laboratories (EIL). He performed air monitoring, asbestos analysis and completed asbestos registers.
Mr Crichton also analysed materials for the presence of asbestos. He undertook training to do so between 1990 and 1992. Analysts count the fibres collected during air sampling and analyse them for asbestos.
During his time with EIL, Mr Crichton worked in buildings such as the Queen Elizabeth Hospital, Flinders Medical Centre, Modbury Hospital, the old RAH and schools.
In 1995 Mr Crichton started his own business, Crichton Environmental Building Management. He started a second business in 2000, Amosite Group Pty Ltd trading as Tyne Environmental Management Services. Currently Mr Crichton undertakes analysis work and air monitoring.
Mr Crichton first worked at the RAH in 1989 or 1990 when with EIL. He recalled David McGowan being in charge at the time. He also recalled there was asbestos in the ceiling spaces and service risers for fireproofing.
Mr Crichton set up air fibre monitors where tradespeople worked around asbestos. He noted that the air monitoring collected and counted the asbestos fibres in the air. Anything narrower than 3 microns and longer than 5 microns was counted. If a high result (over 0.02) was received, he was required to immediately inform David McGowan and notify the DLI. However, Mr Crichton does not recall ever having a high result when air monitoring at the RAH.
Mr Crichton recalls the bubble being used in ceiling spaces. The bubble was a device that the operator sat in wearing a disposable suit and full-face mask.[412] The bubble was raised up to the ceiling to create a seal then tiles were pulled back. There were multiple air monitors inside and out while work was occurring. Afterwards, the person in the bubble was properly decontaminated. Mr Crichton never worked in the bubble and does not know what it entailed.
At the RAH, including the East Wing, Mr Crichton recalls asbestos being removed by specialists before renovation started. Mr Crichton was part of the air monitoring during this process, which included taking readings several days after removal before the renovations could commence.
Before asbestos was removed, a seal was placed around the area to enclose it, and this was tested by filling the area with smoke and to confirm there were no leaks in the seal. Any leaks were patched prior to asbestos being removed.
Mr Crichton set up monitors outside the plastic seal and the decontamination chamber. The chamber was a series of showers where the worker removed their suit and mask in stages to ensure no fibres remained on them.
When Mr Crichton conducted clearance work - inspecting areas where asbestos work had been done or removed - he used the same PPE as the workers.
Mr Crichton stated that David McGown and others at the RAH were "safety conscious about asbestos to the point of being quite pedantic", and more so than other worksites Mr Crichton had attended.
Mr Crichton can clearly recall the implementation of safety protocols, including PPE, the bubble and signage.

[211]

Robert Archer is an electrician who joined the RAH's maintenance team in or about 1980. He transferred into a pricing position in the projects team in about 1997 due to a back injury that prevented him from completing electrical work. He stayed in that role until his retirement in 2005.[424]
Mr Archer said that the maintenance team consisted of smaller teams who worked on small electrical and air conditioning jobs. The projects team worked on bigger jobs and consisted of mostly contractors.[425] Manpower supplied the RAH with contractors who were used by the projects team, which worked on bigger jobs.[426]
Mr Archer recalls that asbestos was present in the North and East Wings.[427] However, he could not recall seeing asbestos in the catacombs under the North Wing,[428] and could not recall seeing asbestos inside service risers.[429]
Upon commencing employment, Mr Archer recalls some broad awareness concerning the dangers of asbestos and in 1986 or 1987 he became aware of the protections and precautions that should be taken in relation to asbestos.[430]
Mr Archer remembers Jack Watkins who as a union man. Mr Watkins worked with Glen Reynolds, the head of E&BS, concerning asbestos safety. Mr Archer's impression is that Mr Watkins assisted to drive the change in asbestos awareness and safety precautions at the RAH in the mid 1980s. Changes were decided by Mr Watkins and Mr Reynolds, who worked with Mr Evans and Mr McGowan to implement the change on the ground.[431]
In relation to asbestos safety, Mr Archer commented that the Maintenance team "was very vigilant about making sure people were safe and... took care".[432]
Mr Archer recalls the bubble was used from the mid 1980s. It was used to seal off an area so that tradespeople could work in an asbestos contaminated area. To operate the bubble, a person entered the bubble wearing a battery-powered mask and close-weave paper overalls with a hood to prevent asbestos getting into their hair. They extended the bubble up to the ceiling so they could work in the ceiling space.[433]
When Mr Archer used the bubble and was in the ceiling space, he vacuumed the immediate area around the ceiling tile. The inside of the bubble was also vacuumed and wiped down before exiting it. The overalls and contents of the vacuum were bagged, sealed and disposed of in a locked trunk in their workshop.[434]
In the mid 1980s, the maintenance team shared a bank of masks which had chargeable batteries. They were expected to clean the masks and put the batteries on charge. However, in around the late 1980s, the maintenance team received individual masks after Mr Archer campaigned for this. They were responsible for their own mask.[435] He said that contractors had their own bank of masks which was supplied by the RAH.[436]
Mr Archer did not often see asbestos in ceiling spaces where he did not anticipate it to be. When Mr Archer did identify asbestos, he stopped work and reported it to Bob Moseby or the supervisor at the time. Mr Moseby then advised Mr McGowan and Mr Reynolds who often examined the area. If the work needed to continue, the bubble was used. This was the expected protocol in the late 1980s and early 1990s.[437]
The bubble was used for work in the ceilings but if work needed to be completed in a service riser where asbestos was present, masks and close-weave overalls were used. The same reporting process was followed when asbestos was identified in service risers unexpectedly.[438]
Mr Archer recalls being told by supervisors to wear a mask if he was unsure whether an area contained asbestos. It was always the message to err on the side of caution, but it was up to the individual. Mr Archer wore a mask from time to time.[439]
Mr Archer was not involved in removing or organising asbestos removal. He remembers seeing specialist removal workers on site at the RAH.[440]
In the East Wing, Mr Archer recalled the removal of a lot of asbestos, mostly undertaken by McMahons. When this was completed, the whole area was sealed off and air intake fans were placed around the area.[441] Sometimes up to 40 rooms were sealed off for McMahons to remove asbestos. It was removed from the whole area including the ceiling spaces, service risers and wall cavities.[442] The removal occurred in the late 1980s and early 1990s.[443]
Asbestos air monitoring was used when the bubble was operated in asbestos areas or suspected asbestos areas to ensure that asbestos did not escape. Mr McGowan organised the air monitoring, which was also used in spaces adjacent to the service risers and ceiling spaces where there was work being completed in asbestos or suspected asbestos areas. This happened in the late 1980s and early 1990s.[444]
There was an asbestos register at the RAH from late 1980s. On two occasions Mr Archer took those who created the register to different RAH buildings where they spent around a week, on each occasion, documenting the asbestos present.[445]
Mr Archer or his supervisor checked the asbestos register before undertaking work. If asbestos was noted in an area Mr Archer needed to work in, he used the bubble (if it was in a ceiling space) and if he was not able to use it due to the space he was working in, he wore masks and overalls.[446] If the bubble was not able to be used, it was common practice in the electrical team to seal rooms completely before undertaking work to prevent contamination.[447]
Mr Archer recalled that contractors used appropriate precautions because the rules were the same for everyone. Contactors had a bank of masks and disposed of asbestos overalls, wipes and other items in the same locked trunk that the maintenance team used.[448] He recalled that if contractors were seen not complying with safety protocols, they were reminded to do so and to use safety gear.[449]
When Manpower initially started working at the RAH, Mr Archer showed some of them escape routes, switchboards and local knowledge of the ceiling spaces.
If workers and contractors were seen to not use proper safety equipment, others were encouraged to report that to supervisors.[450] Mr Archer recalled an instance in the late 1990s where a contractor was working in the ceiling and did not use the bubble, and dust was falling from the ceiling tiles of a canteen in the IMVS to the floor. Mr Archer was unsure whether it was asbestos but reported this to Mr McGowan and, possibly, to Mr Drury. The contractor was not allowed at the RAH for some time and was "counselled firmly" about the safety procedures and equipment to be used for asbestos.[451]
Mr Archer knew Luke Barnard, a supervisor and electrician on the projects team. In the late 1980s and early 1990s, Mr Archer believed Mr Barnard was careful and safety conscious.[452]
Mr Archer was scared of asbestos and serious about the precautions to be taken, including in the late 1980s and 1990s. It was Mr Archer's impression that this was uniform across the trades.[453]

[216]

The State was critical of Mr Miller's evidence. It contended that the extent of Mr Miller's lack of knowledge about the danger of asbestos was out of step with that of the other non-expert witnesses.[477] The State submitted that Mr Miller's claim that he lacked knowledge of asbestos when he commenced at the RAH "lacked authenticity",[478] and that there was "sufficient doubt" about whether his evidence on the issue should be accepted.[479] For the following reasons, I reject those submissions.
When he started work at the RAH, Mr Miller was a young man who had completed his apprenticeship and had taken a year off work after that. Mr Miller said that the tradesmen he worked with at the RAH spoke about asbestos but continued to perform work in its presence and did not take any particular care when doing so. Mr Miller's ignorance about asbestos and the way in which he came to learn about it is consistent with the accounts of Mr Drury, Mr Villiers and Mr Bastian, as is his evidence that he received no induction, warning or training about asbestos at the RAH. Mr Maybank worked with asbestos without any warning or PPE when he started at the RAH in 1980. He did not understand the danger he was exposed to and said that he was "hit... hard" when he learned of it.[480]
Mr Miller was taken to some newspaper articles published in the Adelaide Advertiser newspaper at about the time he started at the RAH that describe asbestos as dangerous. The State submitted that Mr Miller would have read at least one or two such articles. Mr Miller said that he read the sports pages first and only read articles that took his interest. He listened to FM music radio which did not have any real news content. Mr Miller did not strike me as someone who took an interest in politics or international issues. His focus was mainly on work, his family and sport. The only time when Mr Miller seemed to become engaged when giving evidence was when he was talking about his business. I accept that Mr Miller did not read any newspaper articles about asbestos at any relevant time.
The State took issue with how often Mr Miller said that he encountered asbestos at the RAH. The State submitted Mr Miller's original statement in his first affidavit that he came across asbestos 'almost invariably',[481] or multiple times each week, was out of step with the evidence of all other witnesses. At the outset of his oral evidence, Mr Miller modified his affidavit to say that rather than coming across asbestos 'almost invariably' or 'most of the time', he came across it "from time to time".[482] The State submitted that in doing so, Mr Miller "effectively conceded that what he had said in his [first] affidavit was not true".[483] The State challenged Mr Miller's reliability and credibility.
The State submitted that I need to feel an actual persuasion that Mr Miller was exposed to asbestos at the RAH.[484] The State submitted that there was a divergence between his account and the account of the other non-expert witnesses. For the following reasons I find there are strong similarities between the evidence of the Manpower electricians and Mr Miller, and I accept those accounts, and I feel an actual persuasion that Mr Miller was exposed to asbestos, including crocidolite, at the RAH.
Mr Miller only worked at the RAH for 6 months in 1991. He was there for a much shorter time than any other witness who had worked at the RAH. He was recalling events that took place in a relatively short part of his life almost 35 years ago. Not surprisingly, Mr Miller's recollection of working at the RAH was less than perfect. He agreed that he overstated the degree of his exposure to asbestos at the RAH in his first affidavit. He denied that he did that after reading the statements of the Manpower electricians. Based on his description of how he came across asbestos at the RAH, and how it corresponds with the evidence of the Manpower electricians, I am satisfied that Mr Miller encountered asbestos when he lifted ceiling tiles, worked in risers and walked through the catacombs.
Mr Miller was challenged about his identification of asbestos from some photos in exhibits A2 and 1R7. He said in cross-examination that there were gaps in the material sprayed on beams. He observed material of the same colour as the material sprayed on the beams on surfaces below the beams. He inferred that seemed to be a sensible conclusion and asked where is did the material come from.
The process of sealing off risers by erecting plastic barriers was commenced before Mr Miller started working at the RAH but was still very much underway when he was there. Sealing off risers suggests that the movement of crocidolite Mr Miller described was known to the RAH and identified as a serious risk.
Mr Miller said the RAH was the worst environment he has ever worked in. It was dirty and dusty. He said he left there after 6 months because he did not want to work in that environment. I accept that evidence.
Exhibits A2 and 1R7 support Mr Miller's assertion that crocidolite, amosite and chrysotile were present in risers, on top of ceiling tiles and in the catacombs in the early 1990s. Mr Miller and the Manpower electricians identified most of the blue, grey and white material in the photos as asbestos. Most of the witnesses who performed hands-on work at the RAH gave evidence that there was an abundance of asbestos in the RAH.
Before turning to the evidence of the Manpower electricians, it should be noted that community attitudes towards health risks were very different in 1991 than they are today. The risks and consequences of cigarette smoking were known by 1991. The National Tobacco Campaign did not commence until 1997 and smoking was not banned in restaurants, hotels and coffee shops until 2007. Smoking was still allowed in public areas of the South Australian Industrial Relations Court in the late 1980s.
Like Mr Miller, Mr Drury was largely ignorant about asbestos when he started working at the RAH and was not given any information or training about asbestos:[485]

[226]

Mr Bastian said that he did not receive an induction or any warning or training about asbestos when he started work at the RAH. He was not told where asbestos had been identified or how to identify it. Like Mr Drury and Mr Villiers, Mr Bastian confidently identified the presence of asbestos in the photos contained in exhibits A2 and 1R7. I accept his evidence.
Mr Bastian was not told about asbestos when he attended TAFE. He had a two-day induction with for an employer in Roxby Downs he worked for prior to starting at the RAH but the induction did not deal with asbestos.
Mr Drury, Mr Villiers and Mr Bastian were straightforward and reliable witnesses. For the reasons that follow, I prefer their evidence and the evidence of Mr Miller to the evidence of the State's witnesses where there is a conflict between the accounts. Contrary to what some of the State's witnesses maintained, I accept without hesitation that Mr Miller and the Manpower electricians did not receive any induction, warning or training about the presence and danger of asbestos when they commenced working at the RAH. I find that they were not given any PPE to use when they started. They learned about asbestos and were given PPE later on. Mr Drury, Mr Villiers and Mr Bastian all worked at the RAH for much longer than Mr Miller and all became RAH employees. I find that the safety measures that they described were adopted after 1991, and probably after they became employed by the RAH, for the reasons that follow.
The State submitted that I should accept the evidence of its witnesses that there was a high degree of awareness about the danger of asbestos and how to work safely with it in 1991. For the following reasons, I reject the submission.
Mr McGowan was responsible for asbestos safety at the RAH. He reported to Mr Reynolds for most of the time he was in that role. The annual asbestos training that Mr McGowan said that he organised was not recalled by any of the Manpower electricians. Mr Bastian and Mr Villiers recalled attending a session conducted by Jack Watkins about asbestos, but not a training session by someone employed by the RAH or E&BS.
The potential conflict is easily resolved. Mr McGowan gave evidence that he did not train any employees of Manpower in relation to asbestos safety and awareness because he considered that was not his responsibility:[491]

[230]

Documentary evidence was not tendered to show that Manpower was required to train its employees in relation to asbestos, or even that Manpower was made aware of the nature, extent and danger of asbestos contamination at the RAH. To the extent that Mr McGowan and any other witness asserted that Manpower was responsible for advising and instructing its employees in relation to asbestos safety at the RAH, I reject that evidence in the absence of any supporting documentary evidence.
Mr McGowan said that a project to remove asbestos from the RAH was designed in 1985 and commenced operation in 1986 or 1987. Some smaller asbestos removal had occurred before then. Mr McGowan said that the removal of asbestos on a larger scale was underway by 1989.[493]
Mr McGowan said that the ceiling spaces in the RAH were grossly contaminated by sprayed asbestos but there was no sprayed asbestos in the riser ducts. He said that performing work "in the riser ducts was a matter for fire prevention, rather than asbestos work".[494] The comment suggests he did not understand the nature and extent of electrical work done in risers by the Manpower electricians. Later in his evidence Mr McGowan agreed that there could be asbestos in a riser if there had been "a dislodgement of a piece of sprayed asbestos that dropped...in the ceiling space and in the ordinary air flow".[495] He said that it was possible for asbestos fibres to be disturbed and move prior to the time when fire barriers were installed in ceiling spaces.[496] That supports Mr Villiers' evidence in that regard.
The process of erecting fire barriers in ceiling spaces was in its infancy and far from complete when Mr Miller worked at the RAH. Mr McGowan's evidence supports the evidence of Mr Miller and the Manpower electricians that asbestos was present in RAH ceiling spaces and risers, and in abundance in the case of the former.
Mr McGowan agreed that the management of asbestos at the RAH was delegated to him.[497] He said the certificate given by the DLI to certify the completion of asbestos training was required by all employees who worked in the maintenance division.[498] Mr Miller and the Manpower electricians worked in the project division.
At the end of re-examination, Mr McGowan described a phenomenon known as the stack effect by which, he said, air in the building warms up, as does air in the risers. He said that there was an updraught at all times and suggested that asbestos fibres would remain suspended at the top of the updraught in risers indefinitely. He implied that the stack effect meant asbestos particles remained at the top of risers.
I do not accept Mr McGowan's description of the stack effect. It was not established that he has any expertise in relation to the subject and his assumption that the temperature in risers is always higher than the outside temperature does not account for draughts that may have occurred when doors to risers were opened and cooler air was introduced.
Mr Reynolds was ultimately responsible for all works in the RAH and "also had overall responsibility for the safety of E&BS workers in the hospital".[499] Like Mr McGowan, Mr Reynolds did not see himself as having, any responsibility for the safety of external contractors. Mr Reynolds delegated responsibility for asbestos safety to Mr McGowan:[500]

[232]

Mr Reynolds' comment that asbestos safety 'filtered down' to other managers must be construed in the knowledge that neither he nor Mr McGowan, the two senior managers responsible for the safety of tradespeople at the RAH, considered they had any responsibility for providing training about asbestos to external contractors like Mr Miller.
I find that there was a significant lacuna or void with asbestos safety and training at the RAH in 1991. Any training, and it would appear any proper supervision, was directed to RAH/E&BS employees who primarily worked in the maintenance division. No training was given to external contractors. Based on the evidence of Mr McGowan, I reject the evidence of any witness who asserted that Mr Miller was or would have been provided with an induction and training in relation to asbestos.
Mr Reynolds stated that inductions "included all contract workers as well".[501] I take that comment to refer to internal contractors. The same construction applies to Mr Reynolds' assertion that all workers were required to wear protective clothing and respirators.[502] If Mr Reynolds meant employees and contractors working for E&BS, as his statement suggests, I accept that evidence.[503] If he meant to include Manpower employees in the comment, I reject that evidence.
To the extent that Mr Reynolds' evidence conflicts with that of Mr Miller or the Manpower electricians about their training, safety awareness and the provision of PPE, I prefer their evidence to that of Mr Reynolds. Their evidence that they were given no training is consistent with the evidence of Mr McGowan. Mr McGowan did not consider it was his responsibility or role to educate external contractors about asbestos.
The Manpower electricians all said that they encountered asbestos in the early part of their time at the RAH. That is not surprising. As Mr Villiers said, the RAH was literally full of asbestos in the early 1990s. The State submitted that "sprayed asbestos covered thousands of metres of structural steelwork".[504] Precautions such as wearing PPE and using the bubble may have applied to RAH/E&BS employees and internal contractors working in asbestos zones, but did not apply to Mr Miller during his time at the RAH.
I find that Mr Miller and the Manpower electricians were not given a mask, not told to always have a mask with them and not told to always wear a mask when in risers, ceiling spaces and the catacombs. The Manpower electricians were directed to use those precautions when employed by the RAH and working in asbestos zones, but that did not apply to Mr Miller in his short tenure at the RAH. External contractors were treated in a materially different way to RAH employees and internal contractors.
While Mr Miller stated in his first affidavit that he encountered asbestos more frequently than the Manpower electricians stated they did, I am satisfied that he worked in proximity to crocidolite and inhaled fibres. I am satisfied that his overstatement was due to his incomplete memory and not deliberate or designed to support his claim. As will be seen, the evidence of Professor Klebe, which I accept, was that a single, one hour exposure to crocidolite is capable of causing mesothelioma.[505]
Crocidolite was used to fire-proof structural steel in RAH buildings constructed between the late 1950s and the early 1970s. Crocidolite is friable. As it ages, it becomes brittle. Sprayed crocidolite can and did fall off surfaces in clumps as the photos in exhibits A2 and 1R7 demonstrate.[506] The exhibits contain photos of blue, white and grey coloured asbestos in various locations in the RAH. The photos are in a document created by the RAH in 1994 and/or 1995.[507] Based on expert evidence described later in these reasons, if a clump of crocidolite is disturbed by being kicked on the floor of the catacombs or moved when lifting a ceiling tile, asbestos fibres become airborne, move in the air and can be inhaled. Mr Hawkins gave evidence to that effect. He was a member of the AMU. His evidence supports the evidence of the Manpower electricians that crocidolite moved from the beams it was sprayed onto. To the extent that other RAH witnesses said that crocidolite could not make its way into risers, ceiling spaces or the catacombs, I reject that evidence.
The evidence of most of the non-expert witnesses called by the State did not directly engage with or contradict the evidence of Mr Miller and the Manpower electricians. The State's witnesses generally worked under very different conditions to Mr Miller and the Manpower electricians. The reasons which follow explain the differences, and explain why I prefer the evidence of Mr Miller and the Manpower electricians to the evidence of State's witnesses where there is conflict between them.
Mr Busuttil did not work at the RAH but only visited there. He did not accept that a young electrician working at the RAH in the early 1990s could be as ignorant of asbestos as Mr Miller and the Manpower electricians were when they started work at the RAH. He was plainly wrong about that for the reasons already given.
Mr Busuttil was a member of the AMU, which in or about 1985 became the ALU. He attended at the RAH along with other State Government buildings and sites. Mr Busuttil did not understand the nature of the project work the Manpower electricians did. He was involved in asbestos removal and saw the maintenance work performed by RAH/E&BS employees. He saw workers using the bubble and wearing PPE. He monitored air levels whilst asbestos removal took place. Mr Busuttil said he did not know why an electrician would need to disturb asbestos when they pulled cables through ceiling spaces or walked through the catacombs. The comment reveals a total lack of understanding of conditions in ceiling spaces, risers and the catacombs. If asbestos was present where a cable had to be run or where a tradesperson walked, it would be disturbed. Some of the State's witnesses acknowledged that. Mr Busuttil said he did not know why tradesmen would not be wearing masks and PPE when working when on the States case, RAH management never insisted on masks being worn outside of asbestos zones.
Mr Busuttil stated that all tradesmen at the RAH had to assume that the risers, ceiling spaces and catacombs were contaminated with asbestos and if they were not taking precautions to protect themselves, they were not doing the right thing. He assumed that his level of knowledge of asbestos was shared by all who worked at the RAH and was plainly wrong about that. His evidence went well beyond his limited experience at the RAH. It is unfortunate that the ALU or AMU did not suggest to RAH management that all tradespersons and labourers should wear masks in risers, ceiling spaces and the catacombs.
I accept the submission of counsel for Mr Miller that Mr Busuttil's evidence about the knowledge of the ALU and the DLI supports Mr Miller's case because Mr Busuttil agreed that by the late 1980s:[508]

[234]

Mr Pitcher stated that Manpower employees used the same type of equipment as RAH employees. He also stated he thought that equipment was provided by Manpower. He did not believe that projects division workers worked in proximity to asbestos any more than maintenance division workers did. Like Mr Busutill, Mr Pitcher stated a general proposition that went beyond his first-hand experience. Mr Pitcher said that the policy on asbestos safety required the use of safety equipment, including disposable paper coveralls, foot covers and full battery-powered respirator masks with disposable cartridge filters. Mr Miller and the Manpower electricians were not provided with that equipment when they commenced at the RAH. Mr Miller never had the use of that equipment. The procedures and protocols Mr Pitcher spoke of were applied to external contractors in 1991.
Mr Pitcher disagreed that workers at the RAH found asbestos in places where it was not meant to be. I reject that evidence and prefer the evidence of Mr Miller and the Manpower electricians and the witnesses called by the State who agreed with the proposition. Mr Pitcher also said that he did not "have a specific memory of finding asbestos in areas where [he] didn't expect it".[509] It is difficult to accept that is an accurate recollection given the evidence of the Manpower electricians, the photos in exhibits A2 and 1R7 and Mr Pitcher's own comment that recording asbestos found not flagged on the register "was an important part of the safety protocol".[510]
Mr Pitcher was not surprised by the statement in the Audit Report completed by the OHSIMD which said that the asbestos register was comprehensive but had not been reviewed annually as required.[511] The findings in the 2007 Audit Report that Mr Pitcher did express surprise about support the evidence of Mr Miller and the Manpower electricians. The findings include that the quick reference guide incorrectly reported the absence of asbestos in various areas; that non-occupiers were not provided with relevant parts of the asbestos register; and that the system for maintaining records of individual asbestos exposures was inadequate.
The State submitted that the probative value of the 2007 Audit Report, and the weight that should be afforded to it, is limited. The version of the document that was tendered is three pages long, unsigned and has handwritten notes from an unknown person on it. The State submitted that the basis for the findings and conclusions reached is not articulated in a way that enables the document's veracity to be assessed.
The provenance of the 2007 Audit Report is not fully known. It was however created and used by the RAH. Its contents challenge Mr Pitcher's very positive assessment of the quality of the management of asbestos at the RAH. While I do not accept all the findings in the report, I accept the findings that Mr Pitcher did not express surprise about. I also accept the finding that no change was made to the asbestos safe method procedures between 1986 and 2007 because, other than Mr Maybank, the State's witnesses agreed with that proposition.
The value of Mr Pitcher's evidence is very limited. In addition to the issues described he answered some questions in a discursive, indirect way that avoided dealing with the issue raised by the question.
The evidence suggests that after the industrial issues about asbestos removal raised by Jack Watkins were dealt with, the management of asbestos at the RAH did not advance. That conclusion is not only evident from the findings in the 2007 Audit Report which I have accepted, it is supported by the witnesses called by the State who said that the asbestos register was never reliable. The asbestos register remained unreliable from when it was commenced and 2007. While the 2007 Audit Report is not directly relevant to Mr Miller's case given the audit was undertaken well after Mr Miller ceased working at the RAH, it raises concerns about the diligence of the RAH in relation to asbestos, other than with asbestos removal and when Jack Watkins was involved.
Mr Maybank worked primarily in the maintenance division of the refrigeration team at the RAH. He said that when he was in an asbestos area, he used PPE such as overalls, masks and the bubble. A face respirator with a filter mask was put on prior to entering the zone. That description accords with the precautions taken in asbestos zones but does not challenge the evidence of Mr Miller and the Manpower electricians that a very different work practices applied outside of asbestos zones.
Mr Maybank said that he found it hard to believe that Mr Miller was not warned about the danger of asbestos. He recalls there was a "scare campaign" about asbestos which generated awareness and conversation.[512] In oral evidence he explained why Mr Miller was not given a warning:[513]

[236]

Mr Maybank worked in asbestos zones where PPE was used. The Manpower electricians encountered asbestos in non-asbestos zones and were not subject to any direction about PPE and had not been given any training or information about asbestos.
Mr Maybank gave evidence that he worked near asbestos when he started at the RAH in 1980. He said that he was hit hard when he learned of the danger of asbestos given that exposure. He said that workers might encounter asbestos a couple of times a year in a place where they did not expect to find it. That is important evidence because it suggests that even someone who did maintenance electrical work as an employee of the RAH/E&BS encountered asbestos where it was not expected to be.
Mr Maybank said there was no induction program when he started working at the RAH. He said that inductions commenced later on but could not recall when.
Mr Hill was hired to assist with projects and renovations at the RAH. He described being involved with projects in ward B8 in the East Wing, ward S2 in the North Wing and in the IMVS. Mr Hill said there was asbestos in the ceiling spaces of the East Wing and the North Wing where some of the projects were carried out. He said no projects were carried out in the catacombs. He did not know whether asbestos insulation was used to lag the catacomb pipes. He admitted that his role was office-based and said he did not work as a tradesman. He was unaware that asbestos was present in risers. He did not believe that tradesmen were at risk of inhaling asbestos if they worked in the catacombs. He did not have hands-on experience.
Mr Hill described the process of removing asbestos prior to commencing work on a ward or other area. He mentioned the bubble, not allowing electricians to access ceiling spaces without the bubble, wearing PPE and using air monitoring. All those things referred to work done in asbestos zones and not in the supposedly asbestos-free areas where the Manpower electricians and Mr Miller worked.
Mr Carlaw claimed that if Mr Miller had been supervised by Luke Barnard, he would not have been allowed to knowingly undertake work with asbestos without PPE and adhering to procedures. Like the evidence of the other former RAH managers, Mr Carlaw's evidence was given through the prism of someone familiar with the treatment and management of RAH employees and internal contractors. His account is neither relevant nor accurate in relation to the Manpower electricians and Mr Miller.
Mr Carlaw's evidence that inductions took place from the mid to late 1980s is qualified by Mr Maybank's evidence that he, and by logical extension the RAH, did not arrange for external contractors who worked at the RAH to be inducted. The induction Mr Carlaw described only took 20 minutes and involved completing a one page document by ticking boxes.
Mr Carlaw said there was asbestos in the East Wing and North Wing, specifically in outpatients, the theatre block and the risers.[514] The policies and procedures he described for working safely with asbestos did not apply to external contractors like Mr Miller, Mr Drury, Mr Bastian and Mr Villiers.
Mr Carlaw said that the asbestos register 'supposedly' described all areas where asbestos was present.[515] He used his fingers to place air quotation marks around the word 'supposedly'. It was apparent that he did not think the register was reliable. Mr Carlaw said that each tradesman could choose whether to wear a mask when working outside of an asbestos zone.
The 2010 memorandum Michael Frajer sent to the RAH Work Health Safety unit stated that the asbestos register was inaccurate and suggested that workers should be required to wear, at minimum, a mask at all times regardless of what the register said. Mr Carlaw said that he did not recall the memo. Mr Frajer was a leading hand and a RAH employee.
At first Mr Carlaw disagreed with the proposition that workers were not required to wear a respirator when working in service risers, ceiling spaces or the catacombs. He later amended that answer and said that wearing a mask was not a requirement if the asbestos register did not record the area as an asbestos zone.[516] Mr Carlaw accepted that when clumps of sprayed asbestos had moved from the ceiling spaces into the risers, exposure to asbestos could not be prevented and the bubble could not be used in risers.[517] He accepted that services ran through the catacombs but did not recall asbestos being present in the catacombs.[518]
Mr Carlaw's evidence that Mr Drury, Mr Bastian and Mr Villiers were experienced tradesmen and good workers supports the confidence I have in the reliability of their accounts.[519]
In cross-examination, Mr Carlaw accepted that it was "entirely possible" that a tradesman working at the RAH in the early 1990s would be exposed to asbestos dust and fibres in various locations in the RAH from time to time.[520]
Mr Hawkins agreed that it was possible for sprayed asbestos to move from its original location into service risers and land on equipment and cables in risers. He agreed that pulling cables through ceiling spaces or putting in new services could damage sprayed asbestos and asbestos lagging and result in friable asbestos moving from its original location.[521] Mr Hawkins also agreed that if the register contained a notation made by him that he had found extensive asbestos contamination in multiple service risers in the buildings surveyed, then that is what he had found.
Mr Crichton's evidence was limited to the very specific role that he played in asbestos monitoring.
Mr Archer commenced work at the RAH in the maintenance team. While he later moved to the projects team, his role was to price work and not to perform it. He was moved after injuring his back.
Mr Miller submitted that I should make the following findings of fact in relation to his exposure to asbestos at the RAH:[522]

[243]

Amaca was formerly known as James Hardie & Coy Pty Limited. From about 1937 to about 1987 it was the largest manufacturer and distributor of asbestos cement building materials in Australia. From 1977, it was the sole manufacturer and distributor of asbestos cement building materials in Australia. Until 2001, Amaca was a wholly owned subsidiary of James Hardie Industries Limited ("JHIL"), its parent company.

Amaca manufactured and sold a variety of asbestos cement building materials including flat and corrugated sheets and building planks which were used to build commercial, industrial and residential buildings. James Hardie has been responsible for 70% of Australian asbestos consumption,[526] a vast proportion of this being used by Amaca in the production of building materials. Amaca's asbestos cement building materials continue to form part of hundreds of thousands of buildings throughout Australia including houses. In the 1980s Amaca considered that there were "asbestos building products, in some form, in almost every building in Australia."[527] The majority of houses throughout Australia built prior to 1985 had Amaca's building product in the eaves and wet areas.[528]

Importantly, from 1 January 1961 Amaca had a monopoly on the production and sale of asbestos cement building materials in the State of South Australia.[529] The evidence of its long term employee, Mr Graham Allen, confirms that it was the sole manufacturer of asbestos cement fibro products in South Australia and that Amaca's asbestos cement products were the only type of fibro products sold in South Australia after 1956.[530] He said that Wunderlich "continued to operate in South Australia as a distributor of products manufactured by James Hardie."[531] Amaca continued to manufacture and distribute fibro cement products in South Australian until the late 1980s, asbestos being removed from the products in the early 1980s.[532] Mr Allen testified that in South Australia, Amaca manufactured a variety of asbestos cement building materials including flat sheets, planks[533] and corrugated sheets which were originally called "Deep Six" because of the six inch profile from ridge to ridge...

[244]

Section 8(3)(a) of the DD Act permits evidence given in an earlier dust disease action against the same defendant (or respondent) to be admitted in a subsequent proceeding unless doing so is considered inappropriate. The evidence of Mr Allen was accepted in Werfel v Amaca and the State of South Australia.[534] The finding was not disturbed on appeal.[535] It is appropriate to admit and apply the evidence of Mr Allen in Werfel in this proceeding and I do so.
Mr Miller submitted that any exposure to asbestos that he may have had whilst employed by Plasteel Pty Ltd does not affect the liability of either respondent, as mesothelioma is an indivisible injury to which each exposure materially contributes.[536] Mr Miller believes that he was not exposed to asbestos in employment with O'Donnell Griffin, Kilpatrick Green or Main Industrial.
Amaca did not contend that Mr Miller was not exposed to asbestos by its products, but maintained that Mr Miller had proven only minor and occasional exposure to asbestos dust and fibre in and from Amaca products, whilst he was self-employed and performing work for Total Electrical and Bathroom Concepts for two years or so in the early 1990s.
Mr Miller explained that when he installed floodlights in homes for Total Electrical, the work was performed outside and it would take two to three seconds to drill a hole in the 10 millimetre thick sheet.[537] He explained that the 15 minutes he usually spent installing a floodlight involved unpacking the light, getting the tools ready, setting up the ladder, running cable and testing the light.[538]
Mr Miller recalled installing outdoor power points on older houses. Some would be installed on brick and others on fibrocement.[539]
Mr Miller recalled having to go into ceiling spaces "from time to time" to run cables whilst with Total Electrical.[540] He saw the Hardiflex stamp on sheets in ceilings. Cutting sheets and drilling holes in them did not take long, but was repeated on a number of occasions.[541] The houses he worked on were usually built in the 1960s or 1970s.
Mr Miller explained that the work he did for Bathroom Concepts involved renovating older bathrooms. He would replace the existing electrics and rewire.[542] Mr Miller would perform work for Bathroom Concepts for perhaps 1-2 days a week, with other workdays dedicated to his private work for homeowners.[543]
Mr Miller would complete some of the work prior to the bathroom being gutted, namely removing power points, lighting, heater fans and taking the wiring back to the source.[544] Once the new bathroom walls had been installed, Mr Miller would complete "first fix, install cables, and then second fix".[545] Mr Miller explained that he was on site about 30% of the time when the demolition phase of bathroom renovations took place.
Mr Miller was also exposed to James Hardie products whilst working in his own right in the early 1990s. His evidence of seeing Hardiflex and Villaboard stamps on what he referred to as fibro sheets was not challenged, nor was his account that when working on or updating switchboards, he often saw a date in the 1960s and 1970s on the switchboard legend.
Amaca submitted that Mr Miller's evidence that the lean-to at 7 Thanet Street, Brooklyn Park that was demolished was clad in asbestos is his belief rather than a proven fact.[546] I will return to this issue.
Amaca submitted that Mr Miller's exposure to asbestos through James Hardie products after he ceased working at the RAH was very limited. Amaca takes issue with Mr Miller's evidence that he was able to identify houses that were constructed in the 1960s and 1970s. I reject that submission. Given how many homes Mr Miller saw, and given he saw the year of the construction of many of them on switchboards, I accept Mr Miller's evidence on the subject.
I accept Amaca's submission that Mr Miller's exposure to asbestos-cement products manufactured by James Hardie in the two or so years after he left the RAH was not great. That is not to say that the exposure was not sufficient to establish liability. The deeming provision in s 8(1) of the DD Act means that even a low level of exposure can establish liability.
Mr Miller sought the following findings of fact in relation to Amaca:[547]

[245]

4.41 From 1 January 1960, Amaca was the sole manufacturer and distributor of asbestos cement building materials including flat sheets, Hardiflex, Deep Six and Super Six corrugated sheets, Versilux and Villaboard in South Australia.

4.42 The asbestos cement sheets sold by Amaca in South Australia prior to about 1968 contained about 15% asbestos made up of varying amounts of crocidolite, amosite and chrysotile.

4.43 The asbestos cement sheets sold by Amaca after about 1968 to about the mid-1980s contained about 15% asbestos made up of varying amounts of amosite and chrysotile.

4.44 Prior to 1978 no warnings were ever affixed to Amaca's asbestos cement products.

4.45 The asbestos cement building materials manufactured and sold by Amaca in South Australia prior to about 1968 contained between 10% and about 15% asbestos made up of varying amounts of crocidolite, amosite and chrysotile.

4.46 The asbestos cement building materials manufactured and sold by Amaca in South Australia after about 1968 until about the early to mid-1980s contained between 10% and about 15% asbestos made up of varying amounts of amosite and chrysotile.

4.47 Mr Miller was an impressive and truthful witness. His testimony as to the matters of fact referred to above should be accepted.

4.48 In 1994, Mr Miller was exposed to asbestos dust from asbestos cement sheets manufactured by Amaca when he performed all of the required electrical work including disconnections of light fittings and switches that were mounted on the asbestos cement lean to at his residence at 7 Thanet Street, Brooklyn Park, South Australia.

4.49 Between late 1991/early 1992 and about 1996/97, Mr Miller was regularly exposed to and inhaled crocidolite, amosite and chrysotile asbestos dust from asbestos cement sheets manufactured by Amaca (including Hardiflex flat sheets on eaves and walls of lean to's, Versilux sheets and Villaboard sheets on walls in wet areas including bathrooms), when he used power tools to cut, and drill these materials (while installing electric equipment and cables) during his work as an electrician on domestic houses;

4.50 Throughout the course of Mr Miller's exposure to and inhalation of asbestos from asbestos cement building materials manufactured by Amaca as set out above, he did not know that the materials he was cutting and drilling contained asbestos. He did not wear a respirator or take any other measures to minimise or obviate his exposure to asbestos fibres.

[253]

Mr Kottek was not aware of the State actively disseminating information about the risk of asbestos cement to the construction sector prior to the Code of Practice for Asbestos Work (Excluding Asbestos Removal) in 1991.[560] Mr Kottek recalled that the next publication was in 2002 in the form of a pamphlet on Asbestos Used in Housing Construction.[561] Despite this, Mr Kottek believes it to be possible that the SA Health Department distributed informal information sheet on the asbestos risk "in response to telephone inquiries".[562]
Mr Kottek considers that James Hardie was aware of the hazard posed by asbestos to users of their products as it was aware of the 1977 IARC report which confirmed the no-threshold level of exposure to asbestos.[563]
Further, Mr Kottek believes that there was a degree of control over the dissemination of information regarding the hazards of asbestos exposure. He described a 1996 asbestosis case where a woman developed mesothelioma from simply holding sheets of asbestos whilst her husband cut them with a saw. A subsequent 1973 James Hardie Environmental Control Committee discussed the case and there was a call to label all asbestos products.[564] A 1972 Progress Report then discussed the damage of industrial action to asbestos cement sales. Despite this, it was reaffirmed by James Hardie representatives and Dr McCullagh as a Commission that there "were no known cases of lung disease caused through cutting asbestos cement sheets".[565] Mr Kottek believes that Dr McCullagh's comments "were not soundly based" due to the limited surveillance for asbestosis outside the asbestos manufacturing industries.[566]
In 1978, Dr David Kilpatrick appeared on a Melbourne radio station explaining the risks of disturbed asbestos fibres to which Mr Kottek notes James Hardie was aware by July 1978 as a result of their inclusion in a 3LO report.[567] It is that knowledge and awareness that led Mr Kottek to draw the conclusion that "James Hardie [should] have taken steps to ensure that the public and workforce were advised of the risk from careless handling of in situ asbestos cement, particularly that installed prior to 1970 and containing crocidolite".[568] Mr Kottek conceded that the Reid Family Papers demonstrate that James Hardie did engage in advertising and community education campaigns which had "considerable reach".[569] However, Mr Kottek considered that James Hardie could have either provided information directly to customers of asbestos cement, or in the alternative, affixed labels to new asbestos-free cement sheeting on the associated hazards to raise awareness and bring it directly to the attention of users.[570]

[255]

Mr Kottek agreed that without being provided exact dates when Mr Miller worked at the RAH, he could not say whether the Code was in force while Mr Miller was at the RAH.[572]
Mr Kottek stated that if the measures identified in Technical Bulletin 24 had been adopted, Mr Miller's exposure and risk of mesothelioma would have been substantially reduced. That opinion was based on the assumption put to him in the letter of instruction that no control measures were in place at the RAH whilst Mr Miller worked there.[573] Mr Kottek had seen, in the materials provided to him, references suggesting that the procedures outlined in the Technical Bulletin 24 were in place at the RAH at the time of Mr Miller's exposure.[574] That information did not cause him to change his opinion.[575]
Mr Kottek stated that the occupational exposure limits that applied during Mr Miller's work were those from the NHMRC, and later the National Occupational Health & Safety Commission (NOHSC) Safe Work Australia exposure standards.[576] The limits were adopted from the British Occupational Hygiene Society (BOHS) standards in 1969, which at the time expressed that 100 fibre millilitres per year (equivalent to 2 fibre mls per year for 50 years) would result in a one per cent chance of developing asbestosis. The BOHS standards were not intended to directly protect against any disease other than asbestosis, so they did not apply to mesothelioma.[577]
These 1969 exposure standards are referred to on page 3, para. [3] of Mr Kottek's report. Upon reflection, he said that by around 1980 the NHMRC had adopted a 0.1 fibre mil exposure standard for crocidolite, and in 1984 adopted the same level for amosite. This was an evolution of the 1969 standards and their intended purpose. These changes did not have an epidemiological goal of limiting asbestosis to a particular level but were rather aimed at reducing exposure to these materials. [578]
Detail was given about further changes to exposure standards. The 1991 Code of Practice adopted an exposure standard of 0.1 fibre mls.[579]
Mr Kottek noted that prior to 1991, there had been a general belief that exposure to asbestos should always be minimised. Even at that time, exposing someone to 0.1 fibre mls of crocidolite for eight hours a day, 40 days a week would have been considered "an astonishing burden of mesothelioma". Reliance on numeric exposure standards was not considered as "the be-all and end-all".[580]
The reduction in South Australia to a standard of 0.05 fibre mls was to highlight where there should be control. Mr Kottek noted that the control limits are usually over a much shorter period of time, and if properly implemented, would act to bring the long-term average exposures well below the exposure standard.[581]
Mr Kottek stated that had the recognised control measures been implemented at the RAH, they likely would have reduced Mr Miller's exposure to asbestos and the consequent risk of mesothelioma, potentially quite significantly.[582] He said that if the RAH had adopted a standard of 0.02 fibre ml control limit, that would have been lower than the control limit identified in the Code of Practice and by the NHMRC at the time.[583]

[256]

Mr Kottek agreed that in the early 1990s, there were different exposure standards for crocidolite and chrysotile. This was because chrysotile was still being used by manufacturers such as James Hardie, Bendix (for brake linings) and Richard Klinger (for gaskets), and attention was then being paid to the practicalities of those industries reducing chrysotile exposure.[584]
The exposure standard for chrysotile was not reduced until relatively recently. By 2003 chrysotile was not introduced in new manufacturing.[585]
As well as its continued use, another reason for the differing exposure standards for chrysotile and crocidolite was the greater toxicity of crocidolite.[586] The difference between the two has been the subject of significant academic study, including the Hodgson and Darnton study in 2000.[587] Mr Kottek said that the findings in that study have not materially changed to date. The risk ratio of exposure to crocidolite compared with exposure to chrysotile was said by the authors to be 500 to 1.[588]
Mr Kottek accepted that, from an occupational hygiene perspective, adopting a standard of permissible exposure to crocidolite of 0.02 fibre mls was incompatible with permitting workers to perform work in ceiling spaces and risers where crocidolite was present without any PPE.[589]
Mr Kottek agreed that it would be astonishing if someone in the 1990s was asked to work in ceiling spaces or risers where crocidolite was present without any protective equipment.[590]
Mr Kottek confirmed that the Code came into force in April 1991. He was told that Mr Miller did not start working at the RAH until 31 May 1991.[591]
Mr Kottek agreed that in the early 1980s there was a lot of emphasis on crocidolite, for example by the NHMRC.[592]
Mr Kottek stated that he believed that the crocidolite used at the RAH was probably CSR Silbestos, which he understood was primarily blue asbestos, mixed with a mineral binder that likely included cement and plaster. He said that it was "entirely unremarkable" that the spray was 85% asbestos.[593] He agreed that, in comparison, asbestos sheeting was about 15% asbestos and 85% non-asbestos. He added that later on, the proportion of asbestos in cement sheeting became lower, at 90-95% non-asbestos and 5%-10% asbestos.[594]
Mr Kottek agreed that there remains today an unsatisfactory level of ignorance or unawareness towards the dangers of asbestos. While noting the general awareness is "certainly much better than it was", he said that it was "not where I would like to see it".[595] He cited in his report (at the bottom of page 12) a survey where 30% of home renovators and 12% of tradespeople were not confident in their ability to identify when they or others may be in danger of exposure to asbestos. Though this data was obtained almost ten years ago, he observed that in 2018, it was found that there had not been a real change in those percentages.[596]
When asked to assume that Mr Miller's overall exposure to chrysotile was the same as his overall exposure to crocidolite, Mr Kottek was asked whether it could be assumed that the crocidolite exposure was 500 times riskier than the chrysotile exposure. Mr Kottek said:[597]

[267]

(a) asbestos fibre (in all its forms) was carcinogenic, toxic, and a cause of latent injury, including mesothelioma;

(b) mesothelioma was a fatal illness which caused immense suffering prior to death;

(c) the dose of asbestos required to cause injury was unknown but it was known that, individuals reacted differently to different exposures;

(d) it was a fundamentally accepted principle of occupational hygiene that the inhalation of all dust, especially asbestos dust carried a serious risk of injury to those exposed and was to be avoided;

(e) practicable measures were available and had been recommended to reduce exposure to asbestos including wearing a respirator, avoiding the use of power tools and informing the worker/end user of the dangers of inhaling asbestos dust and the need to take precautions;

(f) there is no safe level of exposure to asbestos which did not carry with it a risk of mesothelioma;

(g) mesothelioma could be (and had been) caused by small, transient, brief, one-off, non-occupational and domestic exposure to asbestos including from asbestos cement products disturbed during home renovations by handymen;

(h) so called exposure "standards" or "maximum allowable concentrations" of asbestos published by some authorities including the NHMRC, were based on weak and dubious scientific evidence, were merely guides and did not delineate between safe and unsafe levels of exposure to asbestos - there was no safe level of asbestos exposure to asbestos;

(i) [in relation to Amaca only] as at the early to mid-1980s there were asbestos cement building materials in most Australian houses, the overwhelming proportion, particularly in South Australia, containing asbestos cement products manufactured by Amaca;

(j) [in relation to Amaca only] home renovations, repairs, painting and extensions were very common activities in Australia;

(k) [in relation to Amaca only] after the early to mid -1980s it was almost impossible to distinguish between building products containing asbestos and those that did not containing this substance because the products looked the same;

(l) [in relation to Amaca only] during the course of home renovations including electrical upgrades and bathroom renovations, Australians who used power tools to cut and drill, and otherwise manipulate in situ asbestos cement materials, could be exposed to respirable asbestos fibres;

(m) [in relation to Amaca only] during the course of home renovations including electrical upgrades and bathroom renovations, Australians who used power tools to cut and drill, and otherwise manipulate in situ asbestos cement materials, could contract mesothelioma and die many years later;

(n) significant concern was being expressed in Australia and internationally regarding the advent of the third wave of asbestos victims from exposure to in situ asbestos in environmental, domestic, home handyman and para-occupational settings;

(o) from the late 1980s to the mid-1990s, the pattern of exposure history recorded in the Australian Mesothelioma registry in cases of mesothelioma was changing: more cases of mesothelioma were being reported from exposure to asbestos during domestic, handyman, environmental and para-occupational rather than from the older traditional factory based exposure;

(p) It was reasonably foreseeable to the State that electricians including Mr Miller working at the RAH were at risk of contracting mesothelioma from inhaling asbestos dust and fibres while working in service risers, ceiling spaces and catacombs.

(q) It was reasonably foreseeable to Amaca that the classes of persons of which Mr Miller was a member, being tradesmen who might intermittently use power saws and drills to cut, drill and disturb in situ asbestos cement building materials manufactured by Amaca, were at risk of contracting mesothelioma.

[280]

The State of South Australia was negligent by:

Failing to provide proper and safe plant, equipment and supervision for the applicant.

Failing to provide a safe system of work for the applicant.

Failing to provide a safe place of work for the applicant.

Failing to take any or any effective measures to protect the applicant from the effects of asbestos dust and fibre.

Failing to provide effective masks or any other respiratory protective equipment.

Failing to provide protective clothing for the applicant.

Failing to provide exhaust equipment or adequate ventilation in the areas where the said asbestos dust and fibre were liberated.

Failing to restrict the liberation of the said asbestos dust and fibre by water dampening or otherwise.

Requiring or permitting the applicant to be exposed to the inhalation and ingestion of asbestos dust and fibre.

Failing to properly supervise the applicant's work.

Failing to warn the applicant of the dangers to which he was exposed.

Failing to substitute non asbestos materials for asbestos material where available.

Failing to medically examine the applicant regularly or effectively knowing the danger of ingestion or inhalation of asbestos dust and fibre.

Failing to conduct air sampling in areas where the applicant worked to assess the extent of the risk to the health of the applicant as a result of exposure to asbestos dust and fibre.

The applicant relies upon the breaches of statutory duty set out hereunder as evidence of negligence.

The applicant relies upon the doctrine of res ipsa loquitur.

Failing to make enquiries of appropriate authorities including the New South Wales Department of Health, The Commonwealth Department of Health, Division of Occupational Hygiene, the New South Wales Department of Labour and Industry, the Victorian Department of Health, the South Australian Department of Health, occupational hygienists, occupational physicians and consultants and other like persons as to the risks associated with working with insulation products containing asbestos

[284]

Interpretation

17b. In this Part, unless the contrary intention appears-

"dangerous" includes unsafe:

"landlord" includes a landlord under a statutory tenancy:

"occupier" of premises means a person in occupation or control of the premises, and includes a landlord:

"premises" means-

(a) land;

(b) a building or structure (including a moveable building or structure);

or

(c) a vehicle (including an aircraft or a ship, boat or vessel).

Occupier's duty of care

17c. (1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.

(2) In determining the standard of care to be exercised by the occupier of premises, a court shall take into account-

(a) the nature and extent of the premises;

(b) the nature and extent of the danger arising from the state or condition of the premises;

(c) the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger;

(d) the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger;

(e) the extent (if at all) to which the occupier was aware, or ought to have been aware, of-

(i) the danger;

and

(ii) the entry of persons onto the premises;

(f) the measures (if any) taken to eliminate, reduce or warn against the danger;

(g) the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger;

and

(h) any other matter that the court thinks relevant.

(3) The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.

(4) Subject to any Act or law to the contrary, an occupier's duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of any person who is a stranger to the contract.

(5) Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subsection, the question of whether the occupier is liable for injury, damage or loss shall be determined by reference to that higher standard of care.

(6) ...

[292]

I approach these issues on the basis that ABC was the occupier of the premises generally, putting aside for the moment the question of who was the occupier of the chute. In my opinion the Judge was right to conclude that ABC took reasonable care to ensure that workers on the site were informed about safety issues generally, in relation to safety at its premises in particular and the Judge was right to conclude that ABC took reasonable care to control entry into confined spaces. There can be no doubt that ABC employed competent contractors to carry out the maintenance work and to provide scaffold. I proceed on the basis that Mr Henry was injured because of the failure by Scaffolding, a specialist contractor, to carry out its work carefully and safely.

ABC's common law duty of care as an occupier

As an occupier of the premises in question, ABC owed a duty to take reasonable care for the safety of persons entering the premises, including persons like Mr Henry: Wrongs Act (SA) s 17C. That duty would include a duty to take reasonable care to protect a person like Mr Henry from harm resulting from the activities of contractors working on ABC's premises. That duty in turn could involve a duty to warn an entrant to the premises about a source of harm, or a duty to keep an entrant away from an area in which contractors are working. Subject to that, the main focus of the duty of an occupier relates to the state of the premises, rather than to activities taking place on the premises. The duty of ABC as occupier of the premises would not usually extend to a duty to protect a person on the premises, not being an employee of ABC but an employee of a contractor working on the premises, from harm that resulted from the carelessness of the worker's own employer, or from harm that resulted from the manner in which another contractor carried out its work. Once again, even that proposition has to be qualified. As occupier of the premises ABC had a duty to consider safety issues arising from the presence of Allied and Scaffolding on ABC's premises, and from the interaction between those two firms as contractors separately engaged for the one task.

In my view, to the extent that Mr Henry makes a claim against ABC as occupier of the premises, that claim is answered by the conclusion that as occupier ABC was not under a duty to supervise the manner in which workers employed by Scaffolding went about the task of erecting scaffolding. And it was the manner in which they did that that led to Mr Henry's injury. Putting it a little differently, ABC as occupier was under no duty to protect Mr Henry against the risk of harm as a result of workers employed by Scaffolding erecting a scaffold that was not safe. In my opinion, this aspect of the claim by Mr Henry against ABC fails.

[309]

The word 'reasonable' has a broad and protean meaning in law, particularly in relation to the law of negligence. I take "reasonable and practicable" in the present context to mean measures that were appropriate to the degree of risk and capable of practical implementation. I accept the State's submission that the standard that applies is that of 1991.
The most obvious reasonable and practicable measure that could have been taken was to warn and train external contractors like Mr Miller about the presence and danger of asbestos dust in the RAH. The failure to warn and train all tradespersons who performed work at the RAH in relation to asbestos was an obvious oversight that could easily have been remedied.
The authorities about warnings relied upon by the State do not cause me to vary that view. The presence of a large amount of crocidolite in a public hospital that thousands of people attended weekly warranted a warning. The RAH acknowledged that by warning its employees and the contractors that it engaged directly. Papatonankis v Australian Telecommunications Commission and Another[626] is authority for the proposition that an occupier is not under a duty to give a warning about a defect in premises if tradesmen are "accustomed to meeting and safeguarding themselves against defects of that kind".[627] The presence of asbestos in a workplace in 1991 was not a matter that Mr Miller or any of the Manpower electricians were accustomed to dealing with. While training is ordinarily an employer's obligation,[628] I have found that the State has not established that Manpower was advised of the presence and prevalence of asbestos in the RAH. For that reason, cases where the employer is found to owe a duty to warn rather than the occupier do not assist this analysis. That factor distinguishes this case from the comments Doyle CJ made in Complete Scaffold Services that the State relies upon. The State has not established that the RAH took any steps to ensure that external contractors were informed about the presence and danger of asbestos dust at the RAH.
Crocidolite posed a very serious risk to workers at the RAH. Providing all tradesmen and labourers with a warning and insisting that they wear masks when entering or working in ceiling spaces, risers and the catacombs were inexpensive and easily implemented measures that could have been used. Professor Klebe described working in proximity to crocidolite as "an incredibly dangerous activity".[629]

[331]

Ms Caro explained that the effective placement of a printed advertisement or notice in a newspaper in relation to a safety risk depends on how much is paid for its position. Advertisements near the front of a newspaper cost more. If an advertisement related to a particular subject such as sport or travel, it would ordinarily be placed in that section.[645]
Although she had no actual experience of this, Ms Caro understood that a notice such as a recall notice would tend to be placed in a prominent position at the front of a newspaper.[646]
In her report, Ms Caro was asked to undertake a retrospective analysis by looking at the performance of certain campaigns run in response to particular risks and drawing conclusions on whether a campaign of the kind proposed (e.g. warning of the dangers of asbestos products) would have been successful. Had the campaign been run, it would have been measurable in terms of a statistical change, such as was seen in the anti-smoking campaign discussed in her report.
Ms Caro understood that, from instructions provided to her and from her own reading, asbestos was extensively used in the construction industry and remains present in numerous houses within the community.[647]
The success of a media campaign can be dependent on external factors that may not be able to be controlled.[648] Ms Caro did not know if there was any analysis that health campaigns targeted at more immediate risks were more effective than those targeted at long-term risks.[649] The success of a campaign may also be influenced by its execution as well as its message.[650]
Ms Caro accepted that government involvement or regulation in health campaigns was helpful, but did not consider it as a necessity. In particular, she stated that government funding of an external organisation can be more helpful than a campaign having an association with government bodies or departments, which is sometimes counterproductive.[651]
Ms Caro described a campaign that she would have recommended James Hardie undertake in her report. The campaign had two rationales. One rationale was to give consumers a warning and the other was to provide a business benefit to James Hardie once its products were free of asbestos.[652] Ms Caro proposed a campaign with short-term and long-term execution, including five years of television commercials. While Ms Caro was not aware of a similar campaign being performed by a private company in Australia, she did not agree that the likely impact would be speculative as other campaigns designed to make people change behaviours rely on the same skills, experience and understanding of markets.[653]
Ms Caro thought that the commercials would likely include some sort of call to action to make people aware of the dangers associated with asbestos. While it is possible that such commercials may have included discussion of statistical risk, the copywriter and art director would have determined, based on all the information, whether that was the most effective and engaging way to present the information and not spread panic.[654] Ms Caro considered it would have been useful if warnings were given of the long-term risks associated with asbestos exposure.[655]
Ms Caro recommended that the commercials be tested after 1, 3 and 5 years to make sure the message was reaching its intended audience and to see if they needed to be tweaked.[656]
The campaign could be extended to hardware stores by occupying point of sale space, such as in the aisles, on the floor or at the checkout of the stores. Ms Caro was not familiar enough with such stores to say if any hardware store had ever had such campaigns in place, though she noted "in all supermarkets and shops, milk bars, that sell cigarettes, there are warning messages everywhere".[657]
Ms Caro noted that while campaigns associated with tobacco and HIV included a threatening element, that was in recognition of the fact that those campaigns were asking people to give up or mitigate things they took pleasure from. This was not the case for the proposed campaign regarding asbestos which only called for caution to be taken.[658]
Ms Caro also recommended direct marketing, that is marketing that goes directly to individuals rather than via a mass communication device. Direct marketing may include leaving brochures in letterboxes or sending letters to customers, including people and businesses who work in construction.[659] Noting that all advertising has a high ignore rate, Ms Caro did not accept that direct marketing had a higher rate of being ignored than other forms of advertising. She said that it can be highly effective.[660]
Ms Caro had no knowledge of whether technical colleges and TAFE institutions were also educating students learning trades such as construction, on the dangers of asbestos.[661]
In relation to television advertisements, Ms Caro stated that certain times could be booked to play the commercial to reach the intended target audience. This could have possibly been within news broadcasts, although this was not within Ms Caro's expertise.[662]
Making an educated guess, Ms Caro noted it was possible for men to be more resistant to general advertising campaigns on health than women, but imagined that men would "be pricking up their ears" when targeted on specific things such as their workplace.[663]
While modern consumption of media and online advertising enable more targeted advertising to occur these days, in the 1990s mass-marketing was a much blunter instrument, hence the use of direct mail and point of sale methods.[664]
Ms Caro noted that the effectiveness of the campaign she proposed would potentially not be impacted by the stage at which a person was in during their working life.[665]
Ms Caro accepted that even if a person had seen an advertising campaign and understood what it required of them, this did not mean they would necessarily do those things.[666] She accepted that an influencing factor would be whether the action required of a person would cause damage to their business, but noted that the purpose of mass-marketing and targeted marketing techniques in public health campaigns is to try and implement wider societal change and make the behaviour targeted unacceptable. She agreed that Mr Miller may not have complied with a campaign that required him to exclude a significant part of his work from his new business, but suggested that the target of the mass-market campaign would have meant that to be an employer of choice, you would have to do this kind of mitigation. She could not say whether his business at the time, being a one-person operation, would have impacted the effectiveness.[667]
Ms Caro could not say whether Mr Miller would have been receptive to the proposed direct-marketing campaign. She noted however that business-to-business marketing was highly effective. When used to warn people in a particular industry, like the construction industry, that something could be deadly to them, she imagined that direct marketing would be read and noticed but could not say whether it would also be acted upon.[668] She expected that Mr Miller would have read direct mail so as to "build his bank of knowledge" as a new business owner.[669]
Ms Caro agreed that the perceived financial cost to Mr Miller's business may have been a factor which influenced whether he complied with the campaign. Even if the campaign was "informative but non-threatening", Ms Caro believed that, if the message came from the manufacture of the product itself, consumers would be more likely to take notice of it.[670]
Ms Caro agreed that if an individual thought they only had an occasional exposure to asbestos, this might have a bearing on their reaction to the campaign. However, she noted that an important message to convey in advertisements would be that any exposure could have serious consequences. If, through post-recall research, it became apparent that a non-threatening approach was not being effectively heeded, a more confrontational style of warning, such as is used in anti-smoking campaigns, might be considered.[671]
With reference to anti-smoking campaigns, Ms Caro noted that even though, statistically, only a minority of the target population may actually change their behaviour in the short-term, this can still be a success. She noted that public health campaigns are often long-term as their effect is cumulative, with the message "more likely to be driven home" as exposure to the campaign increases over time.[672]
The likely percentage of effectiveness of the proposed campaign against asbestos is speculative, however, Ms Caro noted that over the last 15-20 years the message appears to have gotten through, given recent examples about panic ensuing when asbestos was found in mulch in public parks in Sydney. In her professional opinion, Ms Caro believed that had such warnings started earlier and come from the manufacturer, there may have been a more rapid understanding of the problem.[673]

[336]

Counsel for Amaca and Mr Roberts engaged in some back and forth about the healthiness or otherwise of the food produced by a well-known global fast food chain. Mr Roberts said that whether the food was healthy or not was "subjective to some, possibly".[679] When asked whether fast food dispensers owed a duty to the public, Mr Roberts said there was a social responsibility and the healthiness of fast food had improved over time.
There was discussion about the spending cost on a campaign like that advocated for by Mr Roberts. He agreed that a $30,000 per month spend today on public relations would come within the top 3 spends on public relations in Australia. Mr Roberts stated that a spend of $65,000 on public relations in 1979 would equate to a $365,000 spend in 2023. Mr Roberts did not know where such a spend would have put an employer in comparison to other employers in 1979.[680]
Mr Roberts stated in his report that Mr Miller was a keen listener to commercial radio, and specifically the news and bulletins on a nightly basis. Counsel suggested to Mr Roberts that Mr Miller gave evidence that he only listened to the FM music radio.[681] Mr Roberts understood that Mr Miller would consume print media, specifically The Advertiser and The Messenger. He was not aware that sport was the main object of Mr Miller's attention.[682]
Mr Roberts explained, in his opinion, that a person would not take interest or read an article with little personal relevance. Counsel asked the witness to assume that, given that Mr Miller may not have been interested in the non-sports sections of the newspaper, his analysis in relation to print media may not be appropriate.[683] Mr Roberts replied that just because Mr Miller does not recall the articles, that does not mean that he did not read them.[684]
Mr Roberts had not read the articles mentioned and therefore had no opinion in relation to how alarming they may have been. Counsel asked Mr Roberts to assume they were universally alarming. Mr Roberts explained something may be alarming in terms of a headline, but still may not draw relevance to the audience.[685]
Mr Roberts stated that the goal of a campaign is to make people change their behaviour.[686] A press release would be sent prior to launch, with a goal of attracting media coverage. This would build momentum for the campaign. A campaign may run for 12 to 15 months, commencing say in January and continuing until asbestos awareness week in June. The milestone event would generate peak attention. Part of the campaign would be for the managing director to show care for its consumers.[687]
Mr Roberts is not aware of any community engagement at a government level from any perspective. In his witness statement, Mr Roberts refers to leaflets being received by hardware stores. It was assumed that staff and customers would have perused the pamphlets and there be reference of asbestos somewhere. Mr Roberts thought that store employees would not hand out the leaflets, but that the leaflets would be prominently displayed next to tills for easy access by customers.[688]
Mr Roberts said that an asbestos safety ambassador could be appointed. For the purposes of public relations, this could be a celebrity who resonates with the mainstream. For example, Scott Cam of the television show, The Block. That would take the campaign outside of conventional news outlets.[689] This type of ambassador was used in the 1990s.[690] Many would take on the role of ambassador without payment or with a token payment if a greater good was being achieved. Public health and well-being were the greater good.[691]
Community engagement is not hugely expensive Mr Roberts said. When organising and executing a campaign, those doing it need to believe in the cause, as he discussed in his report.[692]
Mr Roberts accepted that the government is a stakeholder in a sense, in that a large number of housing commission homes contain asbestos. Mr Roberts was unsure whether government support would have aided the campaign or may have produced mixed messaging.[693]
Counsel suggested that large scale health campaigns have been effective largely because of government involvement. Mr Roberts agreed.[694]
Mr Roberts agreed that to assess the effectiveness of his proposed campaign on Mr Miller, as much information as possible on Mr Miller's profile was needed. In understanding Mr Miller, Mr Roberts would need to observe his consumption of news and media, which includes print media, television, programs, sports media, and more to address the various elements of the campaign.[695] Counsel told Mr Roberts that Mr Miller had stated that if he had known of the danger of asbestos, he would have changed how his business operated and would not have worked with asbestos. Mr Roberts agreed that was a significant response to information.[696]

[347]

Mr Miller worked at Plasteel as an apprentice over a four-year period from 1981.
Whilst working at Plasteel, Mr Miller cut holes in panels and attached them to switchboards containing asbestos cloth. The cloth was a fire retardant and occasionally it would fall out and need to be replaced. Mr Miller would use his fingers to push the cloth back in place.
Mr Miller also wired heater boxes for hot water that contained an asbestos cloth. This would leave a dusty residue on his hands.
From 1987 to 1991, Mr Miller worked for various electrical companies and does not recall being exposed to asbestos.
In 1991, Mr Miller worked for Manpower (a labour hire company) to perform work at the RAH for six months. He performed refurbishment work, upgrading the electrical equipment and wiring which involved entering the ceiling spaces of RAH buildings and service risers. Sprayed asbestos was located in these areas as a fire retardant. Pieces of the asbestos had deteriorated and were flaky to touch.
Mr Miller worked in such spaces on a weekly basis and was not provided a mask, respirator when doing so.
Mr Miller worked in the catacombs sporadically. They contained heat and steam pipes with asbestos insulation. The asbestos was easily disturbed when Mr Miller was working with cabling in this area. He would have dust on his clothes after working in the catacombs.
Mr Miller later worked as a subcontractor for Total Electrical where he would drill through pre-existing switchboards that contained asbestos as well as asbestos cement sheets on outdoor eaves, asbestos sheeting in lean-tos and wet areas. Mr Miller did approximately a dozen jobs per month for Total Electrical.
Mr Miller next worked for Bathroom Concepts where he saw asbestos cement being broken up and left on the building site. At times he had to pick up the asbestos sheets and move then out of the way so he could complete his electrical work.
Mr Miller finally worked as a private electrician and again was required to drill through asbestos sheeting to do installations and re-wiring.
Mr Miller's exposure to asbestos ceased in about the mid-1990s.

[350]

Exposure to asbestos has a strong association with mesothelioma development. A study by Wagner et al.[704] identified a correlation between asbestos exposure, particularly crocidolite, and the development of pleural mesothelioma.
When asbestos fibres are inhaled, a proportion of them are deposited in lung tissue. Highly reactive free radicals, particular oxygen and nitrogen species, are generated from the interaction of asbestos fibres with macrophage (white blood) cells attempting to remove the fibre from the lungs. The free radicals cause damage to DNA impacting growth regulation, cell death, motility or apoptosis (cell death). These cells grow faster and result in abnormal cancerous growth.
Continued exposure results in more asbestos fibre being deposited, more fibre-macrophage interactions and increasing radial generation perpetuating the damage and subsequent proliferation of mesothelial cells.
The Peto Model indicates that mesothelioma can be related to cumulative asbestos exposure. This model assesses the intensity, frequency and duration of exposure over time indicating the important role of time.
Mr Miller first started working with asbestos in 1981 and was diagnosed in 2024, resulting in a latency period of 43 years. The most conservative and widely accepted minimum latency of 10 years is fulfilled.
Handling, cutting, drilling, sanding and disrupting asbestos containing (AC) building materials causes elevated concentrations of airborne respirable asbestos fibres. The mode used to cut the asbestos results in different release of amphibole asbestos fibres in comparison to chrysotile fibres. Professor Klebe states that the concentration of crocidolite in the airborne dust created by working with AC materials was approximately double the proportion of crocidolite in the product as manufactured. Sweeping fibres with a dustpan and broom produces high peak airborne respirable fibre concentrations.
Asbestos-containing dust, once introduced into a workplace can persist because it is difficult to remove the fibres entirely, even by vacuuming. Dust can be re-suspended by everyday activities. This means that exposure can occur beyond the time when the work that led to the dust occurred.
The switchboards that Mr Miller worked on likely contained Bakelite which was known to contain up to 5% amosite (brown asbestos). The carcinogenic risks of Bakelite are well documented.
The spaces that Miller worked in at the RAH, particularly the ceiling spaces and catacombs, were confined and therefore any asbestos introduced into the space would largely have remained there regardless of Mr Miller's own work in the space.

[352]

Professor Klebe suggested that Dr Gal's report is misleading in its selective use of references which are often outdated. The result is Dr Gal's (erroneous) conclusion that high amounts of amphibole asbestos is a necessary precondition of peritoneal mesothelioma.
The no-threshold model for mesothelioma applies to both peritoneal and plural mesotheliomas. Chrysotile is found in relevant tissue from patients with peritoneal mesothelioma and alone is capable of inducing peritoneal mesothelioma.
There is an identified dose-response trend for low exposure where an increase in asbestos exposure resulted in an increase in mesothelioma rates at approximately 47 per 100,000 person-years for pleural mesothelioma and 21 per 100,000 person-years for peritoneal mesothelioma.
Hodgson and Darnton estimate that the risk of pleural mesothelioma has a convex dose-response line that is steep for low-dose exposures and less steep for higher-dose exposures.[705] The study affirms that the no-threshold model for mesothelioma risk is appropriate.
The Australian Institute of Health and Welfare (AIHW) report which identifies 88% of patients as having possible or probably exposure to asbestos fails to consider frequency or duration of exposure so as to be able to assess whether there is exposure above background levels.
Every type of asbestos is clinically recognised as a pertinent risk factor for peritoneal mesothelioma and no threshold of exposure is safe.
Because Mr Miller is male, Professor Klebe considers Dr Gal is wrong to suggest that inflammation presenting as endometriosis is a possible cause of his mesothelioma. Dr Gal cites ALK1 mutated mesotheliomas, however these are found in young women and children with no or little asbestos exposure and have a different morphology to Mr Miller's biphasic tumour.
Professor Klebe was unsure whether Dr Gal had suggested that Mr Miller has a genetic predisposition to mesothelioma. She assessed that the retained BAP1 by IHC found in pathology and the lack of any history of malignancy in the family history would make such a proposition highly unlikely.

[357]

Professor Klebe agreed that there are other known causes for mesothelioma. Examples are radiation or erionite (an asbestiform fibre). She said that some patients who present with mesothelioma do not recall any asbestos exposure, but that does not necessarily mean an absence of exposure. It is a matter of active investigation to determine the source of potential exposure. On occasion, background level exposure can be enough to trigger mesothelioma for with a genetic predisposition.
Professor Klebe gave the example of her teacher, Professor Rowley, who was exposed briefly to crocidolite lagging when it was being sprayed in proximity to him and developed mesothelioma as a result.
Professor Klebe's stated that her report discusses the pathway of fibres, the interaction of the fibres in lungs with cells, and the generation of mesothelioma. The analysis requires a combination of molecular biology, chemobiology, cancer biology, and immunobiology. The last of those is the central focus of a research lab Professor Klebe runs and her PhD.
Professor Klebe elaborated on the differing potencies of fibre types, referring to Hodgson and Darnton's studies in that area. Professor Klebe made assumptions about the type of exposure Mr Miller had, the first of which assumed a mixed exposure, the second was specifically exposure to sprayed asbestos.
Professor Klebe understands that James Hardie asbestos cement materials contained a mixture of asbestos types. There may have been crocidolite present at the time in issue.[713] She understands that the product was named as it is because cement was the main ingredient.
Professor Klebe stated that crocidolite was used in spray form at the RAH after being mixed with water. Once it dried, it became friable. Crocidolite remains suspended in the air longer than other types of asbestos regardless of whether it comes from cement products or sprayed material.[714]
Counsel advised that the crocidolite sprayed at the RAH was sourced from Wittenoom in Western Australia. Professor Klebe said that she had read the report of Professor Berry which documents that the rate of mesothelioma of those who worked in the Wittenoom mine and mill are incredibly high. She has not seen a higher rate:[715]

[360]

WITNESS KLEBE: Well, because they've got - the fibres have different shapes.

MR SHELLER: Yes.

WITNESS KLEBE: So the amphiboles are straight shaped. So they're kind of needle shaped, and they do some mechanical damage owing to their shape, and they do some direct eruption of cell membranes of that, whilst the chrysotile fibres, they are curved fibres. They are sort of serpentine, sort of snake like shape and they do probably less mechanical damage. And they also clear more quickly.

So what the body is trying to do, it's trying to get rid of the fibre. It's trying to digest the fibre. The chrysotile eventually will get cleared quicker. So it stays there for less long, whilst the amphiboles stay there longer. But the basic processes in the body - like, what the body is trying to do with it remain the same.

MR SHELLER: The word I've seen used is "biopersistence".

WITNESS KLEBE: Yes. That's the clearance, basically.

MR SHELLER: And so the amphibole fibres, for example, crocidolite - because of that needle-like appearance, they have a capacity to penetrate - - -

WITNESS KLEBE: Yes. If they stay there for long enough. Yes.

MR SHELLER: - - - and then they stay there for longer as a result. And is it right to say that the longer they are there, the greater risk that they will cause damage?

WITNESS KLEBE: They've got more chances to cause mutations, yes. Because they stay there for longer.

MR SHELLER: All right. Whereas the curly white fibres, the chrysotile, as - and you told us a couple of times, they are more capable of being cleared by the lungs?

WITNESS KLEBE: Yes.

MR SHELLER: And is that interaction within the lungs replicated in and around the peritoneum?

WITNESS KLEBE: Yes.

MR SHELLER: And I think, again, you've set this out in your report that the process of interaction between fibre and cell in the lungs is the same as fibre - - -

WITNESS KLEBE: Yes. The process of the macrophage and action is the same. Of course, you know, when we talk about the lung - I mean, the fibres already have to be moved from the actual lung to the mesothelial lining. And, of course, the lining to the of (indistinct) surface - - -

[361]

Professor Klebe explained that the mesothelium lines several body cavities including the lungs or pleura and the peritoneum. Asbestos fibres can be transported through lymphatic channels from the lungs to the mesothelial lining on the surface and cannot be coughed out once they move into the mesothelium.
The biopersistence of amphibole asbestos is more likely to cause DNA damage and the promotion of proliferative mesotheliomal cells. Amosite and crocidolite are in the amphibole group. When cells interact with amphibole asbestos, many of them die and therefore do not develop cancer. If the effect of the asbestos persists and enough of it stays in the tissue, there is a higher likelihood of it causing cancer in the long run.[717]
Professor Klebe agreed that Mr Miller working around pure crocidolite asbestos was at the "right at the top of the tree in terms of dangerous activities".[718]
Exhibit 2R6, a British 2012 Journal of Cancer article that followed up malignant mesothelioma in Wittenoom miners and millers of crocidolite was shown to Professor Klebe. The fatality rate in men was said to be 5%. Professor Klebe understood that the overall rate of mesothelioma is found to be 15% for such workers in more recent publications.[719]
Professor Klebe said that peritoneal mesothelioma is much rarer than pleural mesothelioma. The exact rate of each varies with difference cohorts. The most recent comparison in the Australian Mesothelioma Register has about 40 peritoneal mesothelioma cases and about 680 pleural mesothelioma cases or a ratio of between 1:14 and 1:15.[720]
The Hodgson and Darnton study referred to earlier was shown to Professor Klebe.[721] It describes the risk of contracting mesothelioma from the three main types of asbestos, white, brown and blue, as 1:100:500. Professor Klebe repeated that she believes a more accurate, contemporary risk ratio is 1:14:26 based on data acquired since the Hodgson and Darnton study.[722] Exhibit 2R8, a 2018 study that sought to update the Hodgson and Darnton study expressed the risk ratio as 1:83:376.[723]
Professor Klebe was asked about studies that suggest that a high level of amphibole (blue or brown asbestos) is necessary to cause peritoneal mesothelioma. When asked whether that was because amphibole fibres are more likely to pass into the peritoneal mesothelium (translocate) because of their arrow like shape, Professor Klebe said several potential pathways have been proposed.[724]
One proposed pathway is that fibres become fixed in the pleural mesothelium and the fluid under the continuous outer lining translocates them to the peritoneal mesothelium.[725]
The second proposed pathway is that after being inhaled into the lungs, fibres travel through lymphatic clearance.[726]
The third proposed pathway is that fibres travel through the blood.[727]
Given that fibres are inhaled, it is also possible that some of them remain in the mouth, are swallowed and translocate through the surface of the bowel wall and poke out of the gut into the peritoneum.[728]
Professor Klebe said that it is difficult to know, outside of theoretical and controlled studies, which fibres cause which issues and cells to die. It is ultimately impossible to determine, on a biological level, which fibre was the cause for the chain of events for an individual with mesothelioma.[729]
When the issue of causation and apportionment of liability was explained to her, Professor Klebe said:[730]

[368]

Dr Vy Broadbridge is a Medical Oncologist with experience in general malignancy, including mesothelioma. She is Mr Miller's treating oncologist and is currently a consultant oncologist at Adelaide Oncology and Haematology. She practices at Calvary North Adelaide, the Western Hospital and Calvary Central Districts and is a permanent consultant oncologist at the QEH. Dr Broadbridge received an MBBS in 2002 and has specialised in medical oncology from October 2012. She is a member of Medical Oncology Group of Australia, the American Society of Clinical Oncology, and the European Society of Medical Oncology.
Dr Broadbridge first consulted Mr Miller on 22 July 2024. Two consultations followed in August 2024. Mr Miller presented at hospital in May with abdominal distension, associated with bloating and loss of appetite. He had ascites along with extensive peritoneal thickening. A biopsy confirmed that he had peritoneal mesothelioma. He was referred to Dr Nigel De Silva, a colorectal surgeon at the Queen Elizabeth Hospital, who recommended that he undergo heated intraperitoneal chemotherapy and peritonectomy (HIPEC), which he underwent on 19 June 2024.[747]
Mr Miller's pathology confirmed diffuse epithelioid peritoneal malignant mesothelioma with spindle cell component, which could be interpreted as a biphasic mesothelioma with sarcomatoid/desmoplastic and epithelioid components.[748]
When Dr Broadbridge met Mr Miller on 22 July 2024, four weeks post HIPEC, he was recovering well, with no abdominal pain, good appetite and normal bowel function. Mr Miller had no abnormalities in his lungs or heart. Dr Broadbridge noted a large scar on the abdomen from the recent surgery, which did not look inflamed, but was otherwise soft and non-tender.[749]
Dr Broadbridge discussed the rarity of the diagnosis with Mr Miller, noting that peritoneal mesothelioma was so rare that the treatment was extrapolated from studies based on pleural mesothelioma. Mr Miller's last CT scan was prior to surgery If the next CT scan showed no measurable disease, the management plan would be one of ongoing monitoring. Dr Broadbridge confirmed there was no role for adjuvant therapy, given a lack of published evidence, and that if Mr Miller developed cancer recurrence based on symptoms of abdominal distension or future scans, he would need to undergo doublet immunotherapies with ipilimumab and nivolumab.[750]
Dr Broadbridge organised a repeat CT scan for Mr Miller on 13 August 2024, with a follow up appointment on 19 August to discuss the results. Mr Miller presented with small volume ascites and peritoneal thickening on the left flank. Mr Miller's case was reviewed at Adelaide Haematology and Oncology on 24 August 2024. The changes were thought to be postsurgical as opposed to a recurrence of cancer. Based on the observations, Dr Broadbridge determined that Mr Miller should undergo continued monitoring, with CT scans every two to three months depending on symptoms. Dr Broadbridge conveyed this information to Mr Miller via telephone consult on 28 August 2024.[751]
Dr Broadbridge did not discuss Mr Miller's employment history, but based on the exposure Mr Miller underwent, as described in the letter forwarded through Mr Miller's solicitor on 31 July 2024, she determined that it did make a contribution to the development of mesothelioma.[752]
In terms of future treatment and monitoring, Dr Broadbridge confirmed that Mr Miller would require three to six monthly visits with herself, with no requirements to visit a GP or respiratory physician. There would be no need to visit a palliative care or pain management specialist unless Mr Miller developed rapidly progressive disease. Mr Miller would not require pain relief or oxygen at present. He would require regular CT scans, with future surgery necessary if he developed ascites that needed draining. The first line of treatment would be immunotherapy, with chemotherapy as a second line if the first was ineffective. Hospitalisation would depend on his response to treatment.
Dr Broadbridge determined Mr Miller's prognosis was poor, with overall survival ranging between 9-17 months post diagnosis. Dr Broadbridge noted however that if patients were able to undergo HIPEC, there was marked improvement in median survival from 34-100 months, with five year survival rates from 30-60%. Survival was dependent on stage and histology, with sarcomatoid and biphasic histologic subtypes having worse outcomes compared with epithelioid mesothelioma. Other prognostic factors included being over 75 years old, performance status, elevated lactate dehydrogenase (LDH) and hematologic abnormalities.[753]
Dr Broadbridge noted that Mr Miller was young, had good performance status, normal LDH, no hematologic abnormalities and was able to have HIPEC, however he has the poorer histologic type.[754]
Dr Broadbridge noted that with regards to causation, it was generally accepted that exposure to asbestos is the primary cause of malignant mesothelioma. Accordingly, Dr Broadbridge was inclined to agree that asbestos exposure during Mr Miller's employment at the RAH and his exposure to asbestos cement sheets, made a contribution to his condition.[755]
Dr Broadbridge made the assumption that Mr Miller would progress with local and metastatic disease within the next twelve months, with it likely that he would accept recommended treatments, including immunotherapies offered, for a duration of 24 months.[756]
Dr Broadbridge made the following cost projections in relation to treatment:

[375]

Dr Broadbridge saw Mr Miller on 21 October 2024, noted that he remained well, with no abdominal symptoms, and displayed signs of a complete recovery from the abdominal surgery.
Dr Broadbridge observed abnormalities in Mr Miller's recent CT scans however, with peritoneal thickening across the abdomen, which was present post-surgery and had not yet reduced or resolved. This prompted concerns that Mr Miller had potential recurrence of mesothelioma. Dr Broadbridge organised for a CT scan and PET scan to be undertaken in January 2025.
Dr Broadbridge surmised that if the PET scan showed active disease consistent with recurrence, Mr Miller would need to commence systemic therapy with doublet immunotherapy. Dr Broadbridge then referred to studies which had shown that only a select group of patients were able to undergo cytoreductive surgery and HIPEC, with better outcomes for those who had the procedures at hospitals with experience in conducting them.[757]
Dr Broadbridge noted that the five year survival benefit post-surgery and HIPEC ranges between 30-60%, with poor prognostic factors including male gender, being more than 60 years old and biphasic histology. Though Mr Miller was able to have surgery and HIPEC, he is male, 60 years old, and has a biphasic histology which fits in with a poorer prognosis. Dr Broadbridge noted that it was also difficult to assess from the surgical report whether any residual disease was left behind, which could increase rick of recurrence.[758]
Dr Broadbridge surmised that should Mr Miller develop recurrence, she would need to refer him back to a colorectal surgeon to assess whether he could have another peritonectomy and HIPEC. However, if he was unable to have further surgery, his next option would be systemic therapy.[759]
Dr Broadbridge would offer Mr Miller the option to take immune checkpoint inhibitors, a combination of ipilimumab and nivolumab, as a treatment for his condition. This would be given to him every 3 weeks, for a minimum of 2 years, if there was no toxicity or progression. Should he be unable to tolerate this treatment, he would then have to commence chemotherapy. Dr Broadbridge referred to recent studies, which indicated that responses had been poor to systemic chemotherapy, with the benefit of 5 year survival being approximately 6 months.[760]
Dr Broadbridge concluded that there was a high probability that Mr Miller would develop recurrence in the next 6-12 months, and would need to start systemic therapy. Mr Miller's prognosis would be dependent on his response to treatment, with January to provide a clearer indication as to his progress.[761]

[377]

Dr Broadbridge has been practising as a medical oncologist for approximately 10 years. Her qualifications are accepted by all parties.[763]
Dr Broadbridge was shown the CT report from January 2025. The report found that there was considerable mild peritoneal thickening compared to 10 December 2024. Dr Broadbridge said that the thickening has been present since surgery. She is unsure whether the thickening is simply scarring or a recurrence of the cancer.[764]
Based on more recent radiology, Dr Broadbridge is now of the opinion Mr Miller's life expectancy will be relatively long for a patient with peritoneal mesothelioma. Based on current information, Dr Broadbridge believes the cancer will progress in the next six months, and she will then explore treatment options including surgery. Further surgery would be a peritonectomy and HIPEC.[765]
A peritonectomy takes over 12 hours and involves cutting into the abdomen and exploring the bowel loops to remove as much cancer as possible. If feasible, chemotherapy would then be targeted to the abdomen for two to four hours before cleaning and closing the patient. If possible, Mr Miller will be opened in that same site as the first surgery, but a laparoscopic approach would be ideal.[766]
Alternative methods of treatment are systemic therapy, so doublet immunotherapy or chemotherapy (using two agents at the same time), with ipilimumab and nivolumab.[767]
Immunotherapy involves being in the hospital every three weeks for 30-60 minutes with a line in a vein, for approximately two years if there is a positive response and no complications.[768]
Receiving two agents at the same time has a 50% chance of a severe complication requiring hospital admission and IV steroids would be given if there were complications. Treatment would cease.[769] Dr Broadbridge said that the complications can range from fatigue or skin rashes to inflammation of any or all organs in the body. This inflammation can cause a variety of issues to the respective organs.[770]
If the patient is well enough following immunotherapy, chemotherapy can be considered an option for peritoneal mesothelioma. In this instance, cisplatin and pemetrexed would be given intravenously every three weeks. There are the same risks of complications, although different side effects. The main concern is death from infection.[771]
If the cancer progresses as Dr Broadbridge expects it will, and Mr Miller is not a candidate for surgery, she he considers that he will survive for between 12 to and 18 months from when the cancer becomes active again.[772]
Dr Broadbridge said that Mr Miller is currently fit and able to travel and live a relatively normal life. When he reaches terminal phase, he will be weak and have a large, distended abdomen from a build-up of fluid. He will likely have bowel blockage and will not be able to eat. Dr Broadbridge said this was essentially dying by starvation. It is a common outcome in peritoneal mesothelioma. Peritoneal mesothelioma patients take longer to pass away than pleural mesothelioma patients. Death is painful and the patient may be sedated with tubes.[773]

[378]

By reference to a letter she sent to Mr Miller's treating GP, Dr Broadbridge confirmed that she saw Mr Miller in April 2025 and that his cancer remained dormant at that time. The letter states that the CT scan of 7 April 2025 shows no signs of a recurrence.[774] Dr Broadbridge qualified that in part by saying that a PET scan does not always pick up active cancer.
In her letters to the treating GP, Dr Broadbridge's plan from April was not to start any new treatment because there were no signs of progression of the cancer. She added that did not mean that she could not confidently say that there was no active cancer.[775]
Dr Broadbridge said that 4 elements are required to form a definitive view on recurrence: [776]
1. Clinical presentation;
2. CT scan;
3. PET scan;
4. The views of the treating surgeon.
Dr Broadbridge said that PET scans do not always pick up peritoneal mesothelioma, so despite elements 1 and 2 above being stable, even if she suspected a recurrence, she may not have ordered a PET scan.[777]
In each consult with Mr Miller, Dr Broadbridge looks for any sign that the cancer may have recurred and would take necessary steps immediately if there was suspicion.
If there was suspicion of recurrence, Dr Broadbridge may not immediately start investigation or treatment because investigation and treatment may have a significant impact when Mr Miller is still fit and mostly well.[778]
In describing why PET scans are not always accurate, Dr Broadbridge said that first scan showed cancer, thickening, fluid, and then surgery and chemotherapy was undertaken. Then only the scarring shown on the imaging after that is a baseline but it will not give an accurate image of what is cancer and what is scarring.[779]
A change in clinical symptoms would cause Dr Broadbridge as an oncologist, to wonder if there had been a recurrence.
Dr Broadbridge had not yet sought the view of a surgeon (element 4), but she copies Dr Da Silva, the treating surgeon, into correspondence and scan requests, and hopes that he reviews the scans.
The CT scan of 13 August 2024, about two months after the surgery, showed some peritoneal thickening that Dr Broadbridge was concerned about. That led Dr Broadbridge to seek the opinion of others.[780] A multidisciplinary team (MDT) of radiologists, pathologists, and other specialists, reviewed the results.[781] The MDT reached a consensus that the thickening was due to swelling from the surgery and not a recurrence of the cancer.[782] Dr Da Silva and Associate Professor Pittman did not attend.
Since that result, there has been very minimal change to the peritoneal thickening and the last scan showed a very small improvement.[783]
Despite the MDT's recommendation, Dr Broadbridge is still concerned. She spoke with Dr Da Silva afterwards. He agreed with the MDT, but Dr Broadbridge felt there was too much for the explanation to solely be scarring. She was of the opinion that the scarring would have resolved to a greater degree.[784]
Dr Broadbridge said she must always have a level of suspicion as a treating oncologist.
Since the results of August 2024, there have been improvements, but none since January 2025. Dr Broadbridge would have expected to see continued improvement, not a minor improvement and then stasis.[785]
Counsel suggested that the minor improvement since the surgery to the scan in April 2025 was reinforced by the MDT recommendation, and that Dr Broadbridge's suspicion is only that of a treating oncologist and is not reflective of a true threat of recurrence. Dr Broadbridge responded by saying that the lack of improvement from January to the present raises enough concerns for her to revisit the case with the MDT and request a biopsy if feasible.[786] She believes the MDT will likely agree once her concerns are raised.[787]
Dr Broadbridge was taken to para. [8] of her September 2024 report: [788]

[382]

Associate Professor Kenneth Pittman is a medical oncologist who provided a medical report dated 3 December 2024 for Mr Miller.
AP Pittman diagnosed Mr Miller as having biphasic malignant peritoneal mesothelioma. The predominant feature is diffuse epithelioid mesothelioma of tubulopapillary type, with some areas of sarcomatoid desmoplastic type.
AP Pittman considered that Mr Miller's domestic and significant work exposure to asbestos has made significant contribution to the development of his mesothelioma. His opinion is based upon various papers that describe an association between asbestos exposure and mesothelioma. He wrote that peritoneal mesothelioma is rarer than pleural mesothelioma. Consequently, less definitive studies have been published regarding the correlation between asbestos exposure and peritoneal mesothelioma. However, in the studies that have been published, there appears to be a strong correlation between the two things, particularly in males.
In relation to prognosis and life expectancy, relevant factors include age, sex, ability to undergo successful debulking surgery and HIPEC, residual malignancy, and underlying pathology of the disease. Mr Miller has good prognosis factors including his relatively young age and having undergone HIPEC. The poor prognostic factors include being male, the extent of the disease at time of surgery, and the mesothelioma being biphasic (with sarcomatoid components). AP Pittman concurred with Dr Broadbridge's report dated 8 November 2024 which stated that Mr Miller has a high probability of recurrent disease over the next 12 months. If there was a recurrence, systemic therapy, including immunotherapy, would be required. Those treatments are not considered curative. It was unclear to AP Pittman whether the peritoneal thickening in the CT scan in October 2024 was residual or recurrent mesothelioma. An abnormal CT scan postoperatively is not a good prognostic sign.
In relation to future medical treatment and monitoring, AP Pittman concurs with Dr Broadbridge's opinion on monitoring, treatment, and costs.

[383]

AP Pittman has treated patients for approximately 30 to 35 years. He said that mesothelioma may be characterised as either epithelioid or sarcomatoid or a combination of both. AP Pittman said that Mr Miller has an epithelioid malignancy with some sarcomatoid variant components. Epithelioid mesothelioma tends to be somewhat lower grade and not quite as aggressive as sarcomatoid variants. There are some molecular changes which make sarcomatoid variants respond differently to alternative treatments. The sarcomatoid variant tends to be a more aggressive type of malignancy.
In explaining the peritoneal cancer index, AP Pittman said that if the index is under 20, there is a better prognosis that if its greater than 20. The index for Mr Miller is 22 based on operative findings. AP Pittman suggests that it is probably slightly higher based on pathology findings.[798]
The surgery removed some of the cancer. After removing as much as possible, a heated chemotherapy protocol was applied to absorb a couple of microns into the tissue. All 12 items sent for pathology, other than one perigastric lymph node, contained mesothelioma. The areas of concern were the right-sided abdominal peritoneum and the falciform ligament which is a lining of the tissue that divides the liver. These both contained biphasic components, and therefore, sarcomatoid components.[799] AP Pittman said that the CT Scan report of Dr Solanki was abnormal but stable.
AP Pittman said that Mr Miller has less disease now than he did prior to surgery. Prior to surgery he had a lot of fluid in his abdomen and peritoneal thickening. AP Pittman explained that recent results indicate that the disease is in partial remission.[800] Despite that, he considered that the malignancy is likely to progress within the next 12 months.[801]
In elaborating on the good and bad prognostic factors described in his report, AP Pittman said that bad prognostic factors include the PCI score, the sarcomatoid elements and the fact that Mr Miller did not have a normal CT scan immediately post-surgery. Those factors suggest that recurrence is more likely than not.[802]
Treatments available include chemotherapy and immunotherapy. The median time of remission achievable with immunotherapy is eight to nine months and an average survival of 16-18 months.[803]
Chemotherapy inhibits processes which allow cells to divide. Immunotherapy makes the immune cells more aggressive in the hopes that it will cause the cells to destroy malignant cells.[804] The side effects of immunotherapy are relatively rare but can be long lasting and problematic.[805]
Side effects of immunotherapy with mesothelioma include making cells aggressive against tissue, affecting the skin, joints, gut, lungs and endocrine system.[806]
Side effects associated of chemotherapy include nausea, fatigue, hair loss, peripheral neuropathies and weaker immune system leading to anaemia and fatigue, low platelet counts, increasing the risk of bruising or bleeding and immunosuppression. A patient then has a greater risk of infection.[807]
Mesothelioma tends to be a locoregional problem. It spreads to organs in the body such as the lungs, brain and bones. Peritonela mesothelioma predominantly involves the abdomen and pelvis, increasing abdominal distension and discomfort requiring drainage of peritoneal fluid or ascites. It can inhibit gut function and cause weakness.[808]
Patients with mesothelioma become weak, are in pain and require a lot of analgesia making them drowsy and susceptible to infections such as pneumonia. That is the usual final mode of death.[809] As symptoms progress and the patient becomes more debilitated, there is a need for nursing care.[810]
Whether a patient dies in a hospice or at home depends on the amount of support they have from family and others who are able to help. Expert nursing care is required. Those who are managed at home will usually have home nursing on a regular basis. Early on it may be once or twice a week and then in the terminal stage, fairly continuous.[811]

[396]

...Klebe was asked by Miller's counsel whether her opinion would be different if she assumed that the exposure history she was asked to accept in preparation of her report was not as it existed, or as detailed in Miller's affidavit of evidence, but rather based on a new hypothetical exposure limited 'to a single occasion' where Miller was 'in the ceiling space' and 'clumps of fluffy fibres fell on him' while he worked in that space 'for a few hours or an hour'.[833]

Over objection by the State, Klebe was permitted to answer that question and said it did not change her opinion.

While her opinion remained unchanged, she was not asked whether any exposure at the RAH, regardless of how trivial, would be sufficient to the development of his condition. She was merely asked about a single occasion, in a ceiling space, with Miller being in direct contact with asbestos fibres for at least an hour. That is the assumption that is required to be proven by the applicant for her (sic) Klebe's opinion based on the new assumption to be admissible. It has not been.

Moreover, it is important to appreciate that when Klebe articulates a view concerning asbestos being a carcinogen for the development of mesothelioma, she is referring to respirable asbestos. This is based on the theory that the biological mechanism commences, of necessity, with the inhalation of asbestos fibres. Her report makes that clear.

It follows that the mere visual presence of asbestos in one's proximity is not to the point. The meaning of exposure necessary for attribution to mesothelioma demands the inhalation of asbestos fibres. Accordingly, interrogating the evidence of exposure requires affirmation that Miller was exposed to respirable asbestos fibres that were not only capable of being inhaled, but on balance were inhaled by him. In other words, simply being in a space where asbestos may be present does not equate to relevant exposure. Even being in a space where asbestos may be disturbed does not necessarily equate to relevant exposure. It depends on whether one is in sufficient proximity to inhale airborne fibres for them to be inhaled.

If Miller's evidence of exposure is rejected, it follows that the Court cannot be asked to accept a different version of that evidence. The only version of his exposure is the version about which he gave evidence. A rejection of Miller's evidence must inevitably lead to the conclusion that he has been unsuccessful in proving causation.

[456]

In particular, the Judge did not undertake any review (nor even acknowledge) any awards apart from Dunning,[885] whether made in this State or elsewhere. For example, no reference was made to the award of $190,000 made in Hamilton in 2013,[886] nor the award of $230,000 made in Latz in 2017.[887] Likewise, no review was undertaken of decisions here, or interstate. The review undertaken by Corboy J in Lowes v Amaca Pty Ltd in 2011 was cited to the Judge, but not mentioned in her Honour's reasons.[888] Both sides provided extensive references to awards made both here, and interstate.

That is not to say that it was necessary for the Judge to address every case cited, or to embark on her own review of awards made across Australia in the years since Hamilton. Rather, it was necessary to engage with the case made against Mr Werfel in respect of the reliance placed on Dunning, and to heed the warning given by this Court in Hamilton that the weight to be given to awards made in the Dust Diseases Tribunal "is much reduced ... [e]xtreme caution should ... be exercised" before having regard to them, because appeals from that Tribunal are confined to errors in point of law.[889]

Quite apart from the inadequacy of the Judge's reasons on this issue, the reference to the decision of the Dust Diseases Tribunal in Dunning, as if it provided some form of benchmark in this State, is inconsistent with the approach of this Court in Hamilton, and revealed an error of law.

As to the amount awarded, though we are aware of recent interstate decisions in mesothelioma cases where the awards have been made in the order of $350,000 to $430,000,[890] the review of the award of damages made in this case must give primary emphasis to the general level of damages awarded in South Australia. Whilst interstate awards are not irrelevant, particularly on appeal, we were not asked to review awards made for general damages across Australia since Hamilton was decided in 2013. Neither party on the hearing of this appeal furnished the Court with anything like the material made available in Hamilton. Neither party, particularly Mr Werfel, suggested that a review of awards of the kind undertaken in Hamilton furnished a basis for the conclusion that, in the circumstances of this case, an award more than twice that made in Hamilton can be justified by awards made here or interstate, or on the grounds of inflation and CPI movements since 2013, when Hamilton was decided.

Nonetheless, we accept that there remains a difference in awards of damages for pain and suffering and loss of amenities across Australian jurisdictions in terminal illness cases. Any apparent anomaly caused by a difference in awards between the Australian jurisdictions flows from the need for consistency of approach within each jurisdiction.[891] For example, in 2013, the Full Court in Hamilton decided to award general damages of $190,000, rather than the sum claimed of $230,000, even though interstate authorities supporting a higher award were cited to it, such as the Western Australian case of Lowes v Amaca Pty Ltd, in which $250,000 was awarded in 2011.[892]

It may be accepted that historical changes in the value of money over time will generally support an incremental increase in the level of general damages awards made over time across Australia.[893] However, the result in Hamilton serves to show why, in our view, it would be wrong to fail to give primary emphasis to awards made in this State. Though there is no reason why the pain and suffering of a South Australian should be assessed at anything less than the pain and suffering of any other Australian, there remain differences nevertheless. These must be addressed incrementally over time, with the benefit of whatever submissions and materials the parties and their representatives choose to put before the Court.

Regardless of the inadequacy of the reasons of the Judge, and the error of law which vitiates her assessment, in our opinion the award of $400,000 made in this case for general damages for pain and suffering and loss of amenities was manifestly excessive and out of step with the general level of damages awarded in this State. It must be set aside.

[466]

At para. [416] of Werfel, the Court refers to "recent interstate decisions in mesothelioma cases where the awards have been made in the order of $350,000 to $430,000[902]".[903] The general damages awarded in the two cases referred to were $350,000 and $360,000. The $430,000 referred to was made under s 10A of the Civil Liability Act 2002 (WA).
In 8 of the 27 cases counsel for Mr Miller cited, an amount of $350,000 was awarded for general damages. An amount between $360,000 and $385,000 was awarded in another 6 of the 27 cases. An amount less than $350,000 was awarded in 5 of the 27 cases, 3 of which were decided in 2013. Latz, which was decided in 2017, also comes within that cohort. An amount greater than $385,000 was awarded in the remaining 8 cases. The 2 largest awards, $800,000 and $885,000, were made by juries in Queensland.
Since May 2023, general damages have been awarded in 6 mesothelioma cases. Leaving aside the Queensland jury awards, the amounts awarded for non-economic loss in the 4 cases are, in chronological order, $420,000, $450,000, $500,000 and $475,000. While the amount awarded for non-economic loss in Werfel is about $70,000 to $80,000 less than in Parkin and Kennedy, the two cases referred to in the last footnote, the awards made by Judges since May 2023 have shown a dramatic increase in the amount of non-economic loss awarded in mesothelioma cases interstate.
I accept that the $280,000 awarded in Werfel is equivalent to $344,344 in present day terms based on CPI increases.[904] While I agree with the State that CPI increases are not necessarily to be applied in a purely linear way, awards of general damages in dust disease matters since May 2023 show that CPI increases appear to have been applied interstate. While the awards made by Judges since May 2023 are all decisions of the NSW Dust Diseases Tribunal, the earlier awards made in other mainland States are all higher than the corresponding awards made in South Australia.
The Full Court in Werfel did not disagree with the Full Court in Hamilton paying regard to interstate awards but said there was no basis for the Judge at first instance in Werfel, or for itself, to undertake that exercise.
There is a sound basis for considering comparable interstate awards in this case. Extensive reference was made to awards of general damages in mesothelioma cases in other Australian jurisdictions. In addition, the cost of living has increased substantially since Werfel was decided. It is well known that the median house price and the cost of construction in South Australia have both risen very substantially, and to an equal or greater extent than in any other State, in the last 5 years.
I have accepted Dr Broadbridge's evidence that a death caused by peritoneal mesothelioma takes longer, and is even more painful and unpleasant, than a death caused by pleural mesothelioma. Dr Broadbridge explained that death due to peritoneal mesothelioma usually results from long term malnourishment. That is a relevant distinction between this case and Werfel.
It is an unwelcome task to estimate how long someone who is suffering from a horrible illness will survive. It is also a difficult exercise in this case given that HIPEC treatment appears to have changed outcomes. While Dr Broadbridge and AP Pittman suggested there is a percentage chance of Mr Miller surviving peritoneal mesothelioma, that chance is well below 50%. Dr Broadbridge estimated a less than 10% chance of survival which I consider a more likely estimate than AP Pittman's estimate of a less than a 25% chance. While it may be too early for reliable data about the effect of HIPEC and immunotherapy on mesothelioma to be available, neither expert suggested that 10% or 25% of patients who undergo HIPEC and immunotherapy will survive peritoneal mesothelioma. I accept the evidence of Dr Broadbridge that peritoneal mesothelioma is a terminal illness. However, the award must have regard to Mr Miller's positive response to HIPEC to date and that the illness is not progressing at the present time.
Having regard to the longer survival rates of peritoneal mesothelioma patients who undergo HIPEC, I find that Mr Miller's cancer will not recur for 3 years from when he underwent surgery and HIPEC and that he will survive for 12 months after the recurrence. The finding is by necessity a speculative and unwelcome one, but based on the evidence and the results described, I consider that is the most likely course of the illness.
I assess past non-economic loss at $230,000 and future non-economic loss at $170,000. The award is greater than the award made on appeal in Werfel, but there was no basis on which the Full Court could consider comparable awards in other jurisdictions in Werfel, and for the reasons given, I consider Mr Miller's pain and suffering warrants a higher award than the award in Werfel. Awards of non-economic loss in mesothelioma and other dust disease cases have increased substantially since Hamilton and Werfel were decided. The Court in Werfel described the process of increasing awards of non-economic loss as incremental. While the amount awarded here is significantly more than the amount awarded in Werfel, the significant increase in the cost of living in the 5 years since Werfel was decided warrants the increase.
It is worth noting that under s 58 of the Return to Work Act 2014, the maximum amount payable to a worker for non-economic loss as at 1 July 2025 is $639,955. The corresponding amount in December 2020 was $521,158. The increase of almost $120,000 in 5 years illustrates how dramatically the cost of living has increased in that time. Parliament has seen fit to pass on CPI increases to assessments made under s 58.

[473]

The total of those amounts is $117,600, not $105,600. It is not clear which amounts Mr Miller did not press in seeking less than $117,600.
The State submitted that mathematical precision in relation to this head of damage is not achievable and an amount of $60,000 should be allowed. That was based on AP Pittman saying not all future costs may be required. To give an example, the State said that if there is a recurrence of the cancer and further surgery is performed, Mr Miller may not survive the surgery. Dr Broadbridge said that death was a high possibility if there is further surgery.[907] The State also said I should allow for a chance between less than 10% and less than 25% that the cancer will not recur.
Of the two estimates of survivability, I prefer Dr Broadbridge's estimate of less than 10%. While there are cases where patients with peritoneal mesothelioma who have had HIPEC have lived considerably longer than 12 to 18 months post diagnosis, I have found that Mr Miller's illness is terminal. The percentages given by Dr Broadbridge and AP Pittman are not a positive estimate of survival but a "less than" percentage. The actual percentage settled on by each expert could be substantially less than 25% or 10%. In my view it is not appropriate to reduce the award of general damages as submitted.
The award of general damages should not be reduced because of the prospect of further surgery. If Mr Miller is told that there is a material risk that he will die if he has further surgery, which Dr Broadbridge said was likely, I find that it is likely that he would decline to have the surgery. The material risk of death and the extremely invasive and traumatic nature of the surgery would deter most patients, especially in the context of a terminal illness.
The State observed that Dr Broadbridge's estimate of $40,000 for hospice management is consistent with the upper end of her range of the terminal care stage based on Mr Burgoyne's evidence that each day of care at the Mary Potter Hospice costs $1,285.
I am satisfied that Mr Miller's cancer will recur, albeit further into the future than Dr Broadbridge estimates. I allow $105,600 for future medical expenses.

[482]

Ultimately, there is little evidence of the actual care and services provided by England to meet the needs of Miller and more particularly the number of hours that were allegedly provided. At best, the evidence is vague and nonspecific.

Miller's evidence is that following discharge from hospital, on 2 July 2024, he spent most of his time resting and that during the first week or so, England was providing the care and was not working.[918] Thereafter England returned to work but continued to provide Miller with some assistance. She did 'all the cleaning, meal preparation, laundry and shopping...[spending] two to three hours per day attending to all of these tasks'.[919] England drove the applicant to medical appointments,[920] and for approximately 6 weeks helped overnight, with toileting and medication.[921]

Broadbridge first met Miller four weeks post the surgery. At that stage she recorded that Miller had no abdominal pain, had a good appetite and that his bowels were functioning normally. He looked clinically well.[922]

Miller was driving himself around by four weeks post the surgery.[923]

By mid-August, Miller was less reliant on England for day to day support although she continued doing all 'cleaning, laundry, and laundry [sic]'.[924] It is noted that by this time, Miller was able to travel to Coffin Bay alone and care for himself.

When seen by Dolling on 2 September 2024 it was noted that Miller was already independent in his personal care.

When next seen Dr Broadbridge, on 21 October 2024, Miller remained well with no abdominal symptoms and 'seems to have completely recovered from the abdominal surgery'.[925]

In his statement, Miller refers to going back to preparing his own meals. He does not specify from when he was able to do so. It was presumably around the time he was able to be in Coffin Bay alone, therefore mid-August 2024.

He refers to England 'still spending at least an extra hour a day doing things for me around the home'[926] however it is not specified what this relates to.

England did not give evidence. She presumably would have been able to give direct evidence of the care she provided to Miller and the hours she spent providing that care. She would also have been able to give evidence to delineate what care and services were required by Miller, and what services were provided for their joint benefit. Her failure to give evidence was surprising in the circumstances. While her absence permits a Jones v Dunkel inference, it probably does not advance the matter significantly. What the Court is left with are extremely broad estimates around the care.

[483]

The evidence of Mr Miller about his limitations in the 7 to 8 weeks following his surgery and the medical evidence provides a sufficient evidentiary basis to award the gratuitous services Ms England provided to him in that time. He was unable to care for himself during that time. I allow 50 hours of care in the week after Mr Miller was discharged from hospital. Ms England cared for Mr Miller full-time in that week, including helping him to toilet at night. A lesser amount of care was required in the weeks that followed. I allow 25 hours of a care a week for the next 4 weeks and 15 hours of care a week for the 3 weeks thereafter.
The parties also disagreed about the hourly rate that should be awarded. Mr Miller relied on the evidence of Mr Burgoyne and Ms Dolling that the base rates payable under the NDIS are now, for practical purposes, the minimum rate that one has to pay to obtain such services.[927] The State submitted that the rate of $20 per hour the Full Court used in Werfel should be applied.
In my view, a blended approach is required. In the 5 weeks after Mr Miller was discharged from hospital, Ms England was providing what Mr Burgoyne described as personal home care. Ms England would get up during the night to assist Mr Miller to toilet. She was effectively on call at all times in the first week as the care was in the nature of personal home care. I award the NDIS hourly rate of $73.09 during those 5 weeks. The nature and extent of the care required changed 5 weeks post-surgery to what Mr Burgoyne calls domestic care assistance. It is not appropriate to apply NDIS rates for that care because Mr Miller was capable of caring for himself by then and the care was not skilled or in substitution for nursing care. I allow a rate of $25 an hour for care provided by Ms England for periods longer than 5 weeks post-surgery. I also allow for Ms England driving Mr Miller to hospital and other places at the rate of $25 per hour.
The evidence lacks detail in relation to the services provided to Mr Miller after he became able to care for himself. Mr Miller deposed that Ms England continued to provide at least one hour of assistance to him each day, but did not specify the nature of that assistance. That evidence has to be qualified by the fact he spent time alone at Coffin Bay without any assistance provided. I am not prepared to award gratuitous services based on that evidence.
I award the cost of car cleaning and window cleaning as per Mr Miller's evidence that he used to do those things but no longer can. The State's complaint that the information in the various tables produced by Ms Dolling does not marry with the evidence on the subject has some force given what was said in Werfel. I allow a lump sum of $35,000 for past gratuitous care under Griffiths v Kerkemeyer.[928] Interest at 3.25% for 16 months is payable on that amount making the award $36,517.

[490]

... As the text of s 9(3) makes clear, what is compensable is the loss or impairment of the plaintiff's capacity to perform domestic services for another person. Damages are not awarded pursuant to s 9(3) for the plaintiff's incapacity to meet his own need for domestic services. The award depends on the loss or reduction of the plaintiff's capacity to provide services of a particular kind, namely domestic services, to another person. The cross-appellant submits that the words of s 9(3) should be construed to give the fullest relief which the fair meaning would allow. "[A]nother person" could be anyone if those words are given their widest amplitude. I do not consider that to be the correct construction of those words as used in s 9(3). Those words take their meaning from the concept of "domestic services". Those domestic services must be services rendered or which would have been rendered to a member of the plaintiff's household, i.e. a person residing in the plaintiff's home. In that way, the concept of domestic services informs the qualification of the person or persons who are or would be the recipient of those services.

While the Note does not form part of the Act it is nonetheless available, like a Second Reading Speech, as an extrinsic aid to interpretation. It can be seen that the term "domestic" imposes some limit on the nature of the services which are compensable. In addition, it also imposes some limit on the identity of the other person referred to in the subsection. The award of damages pursuant to s 9(3) is confined to compensating any loss or impairment of the injured person's capacity to perform such services for a member of the plaintiff's household. It does not extend to compensating for the loss or impairment of the injured person's capacity to perform such services to persons outside his or her household.

To the extent that there is any ambiguity in the phrase "for another person" so as to suggest that the liability for damages pursuant to s 9(3) extends to any loss or impairment of the plaintiff's capacity to perform such services for any other person beyond the plaintiff's household, recourse can be had to the Second Reading Speech and the Note to the subsection.

Consideration of the second reading speech reveals that the mischief towards which s 9(3) is directed is to ensure that care would continue to be provided to dependent children and spouses of persons injured by exposure to a dust disease.

The Note provides that the subsection is intended to restore the effect of Sullivan v Gordon. The context in which s 9(3) was enacted was the High Court's decision in CSR v Eddy which overruled the decision in Sullivan v Gordon.

Sullivan v Gordon held that a plaintiff who is rendered unable to provide gratuitous personal or domestic services for another because of personal injury, is entitled to recover as damages an amount calculated by reference to the commercial value of those services. The New South Wales Court of Appeal allowed the recovery of damages for the loss of the capacity of the plaintiff to care for her daughters.

I accept that the compensable loss for which Sullivan v Gordon damages were, and are to be awarded pursuant to s 9(3), remains the loss to the injured person and is not the loss to the person to whom the services were and are to be provided. Nonetheless, that loss falls to be assessed in damages on the basis of the commercial cost of replacing those services. (footnotes omitted)

[491]

The parties have very different views about this head of damage. Mr Miller claims $293,942.33 under s 9(3) of the DD Act while the State maintains there is no evidence that Mr Miller is no longer able to provide the services previously provided by him and no award should be made.
I adopt the following principles enunciated about this head of damage by the Full Court in Werfel:
- An award must commence with evidence about what an applicant formerly did and can no longer do;[935]
- The assessment of the "market cost" of replacing those services must recognise that Mr Miller claims no particular skill or expertise in performing the services, and any postulated reasonable market cost or commercial rates must start with award rates rather than agency rates;[936]
- Calculations should not be based on an assessment of what services should have been provided according to Ms Dolling, but must be based upon Mr Miller's evidence of what services that he previously provided to Ms England;[937]
- Regard must be had to how a claimant has assisted or is able to assist in the years following the onset of the injury or disease.[938]
Despite the significant amount claimed, the hours of assistance relied upon are not great. Mr Miller claims 2 hours per week for cleaning tasks, 4.5 hours per week for shopping, meal preparation and cleaning up after meals and 1 hour per week for home maintenance for cleaning glass, maintaining the Coffin Bay property and maintaining cars and boats. The amount claimed is large because the claim is advanced until Mr Miller's 80th birthday in the 17 'lost years' (from 2027 to 2044), with a multiplier of 697 and a 3% discount.
Given Mr Miller's evidence that he does not enjoy shopping, and given the absence of evidence from Ms England on the subject, I do not accept the claim advanced for food shopping. The evidence does not really assist with determining how much time Mr Miller and Ms England each spent preparing food per week, let alone with the time spent shopping and cleaning up after meals. In saying that I acknowledge that many couples who share the performance of domestic duties probably never stop to measure or record these things, but evidence is needed to make an award.
After excluding the time claimed for shopping and maintaining the Coffin Bay property, which the evidence does not establish that Ms England benefitted from, I allow 5 hours per week for this head of damage. The claim is not advanced for the past, but for after Mr Miller passes away. The $25 hourly rate used for non-skilled gratuitous services is appropriate to use because no particular skill or expertise is required to perform the tasks in question. That produces an amount of $87,125 prior to discount and an award of $74,056.25 after the 15% discount that Mr Miller suggested was appropriate.

[495]

Mr Miller told Mr Thompson that, as a result of his divorce, he had to "effectively 'start again'" financially.[942] In recent years, Mr Miller had employed a key manager, Mr Daniel Bourke. Mr Bourke is responsible for general project and team management. Mr Miller had intended to transition ownership of the business to Mr Bourke over time but to remain involved during the transition and perhaps beyond.[943] As a result of his illness, Mr Miller increased Mr Bourke's base pay and planned to increase his profit share. Mr Miller does not believe that Mr Bourke will have the financial means to purchase the business and believes that "delayed payment terms" will be required to sell the business to Mr Bourke.[944]
NGC Electrical (SA) (NGC) is a business name under which the Miller Family Trust (MFT) operates. The trustee of the MFT is David Miller Electrical Pty Ltd (DME), which was registered on 26 November 1997. Mr Miller was the sole-director of DME until 07 June 2024 when Ms England also became a director.[945] Mr Miller holds all the shares of DME.
Mr Thompson summarised Mr Miller's personal Income Tax returns for the 2019 to 2023 financial years. Mr Thompson noted that virtually all Mr Miller's income was generated by distributions from the MFT and that from 2020 to 2023, Mr Miller claimed substantial income tax deductions for personal superannuation contributions. Mr Thompson views Mr Miller's income tax returns as discretionary and does not rely on them as a sole dataset to assess Mr Miller's economic loss.[946]
In assessing the MFT's profit and loss statements, Mr Thompson calculated the gross income and profit before and after other income generated from 2016-2024. Mr Thompson stated that the gross income was "relatively stable", experiencing a slight decline during the COVID-19 pandemic, and a subsequent increase from 2022. That resulted in a relatively stable average gross profit margin of 64.7%.[947] Mr Miller sought a "significant cash flow boost" by way of support payments like JobKeeper during the pandemic in 2020 and 2021, and a one-off payment from an apprentice scheme in 2023.
Mr Thompson proceeded to calculate the depreciation schedule for the Miller Family Trust based on the total original cost asset of $906,023, taking into consideration asset pools, motor vehicles, plant and equipment. In contrast to the depreciated value of assets as at 30 June 2023 which was $323, after discussions with Mr Miller, Mr Thompson calculated that the realisable value of assets held and utilised by the business after a reduction for outstanding finances, is between $100,000-$120,000.[948]
To determine the true profits of the MFT, Mr Thompson:[949]
1. Extracted the net profits
2. Added donation expenses on the basis they are not core operating expenses
3. Deducted JobKeeper and Cash Flow Boost payments received from 2020-2021 as a result of the COVID-19 pandemic
4. Deducted an adjustment for the increased level of the reported average Apprentice Scheme payments in 2023
5. Normalised the depreciation expenses reported by deducting the sales profit from the reported depreciation and applied a 3.4% sales income percentage calculated based on the 2016-2023 sales income generated.
6. Adjusted the resulting true profits in accordance with the CPI to reflect current value.
The result was the following pre-tax profits before any allowance for the labour of Mr Miller was added:[950]

[496]

Mr Thompson considered that Mr Miller's goodwill is a key component of the operation of the business. NGC is 'a very "lean" operation', with high profit margins. The true impact of Mr Miller's absence from the business is not able to be determined until he is absent.[951]
Mr Thompson indicated that Mr Miller expected to continue to receive business profits, or in the event that the business is sold, a capital sum that could be invested to earn income.[952] As a result, Mr Miller's net loss should be measured as the difference between NGC's profits and an alternate return on the investment of the sale proceeds.[953] Mr Thompson stated, that in his experience, when a business is sold for market value, the price paid is based on "profits to be derived from the future operations of the business".[954] Mr Thompson considers that NGC will not continue to successfully operate without Mr Miller's involvement.[955]
In calculating the loss due where NGC is able to continue operating, Mr Thompson highlights that economic loss is to be calculated upon the consideration of the commercial value of Mr Miller's own labour. Mr Thompson proceeds to allocate an additional sum for his entrepreneurship as recognition for the timeliness and efficiency of Mr Miller's work. Mr Thompson considered whether to allocate an additional 15% for this as done in Wilson v Eraring Energy,[956] but ultimately he suggested a 30% allowance to account for the value of Mr Miller's own labour contributions.[957]
In accordance with the decision in Husher v Husher,[958] Mr Thompson focused on the lost income Mr Miller would experience rather than the level of income stated for Income Tax purposes.[959] Mr Thompson adopted the approach taken in Spargo v Haden Engineering,[960] and "calculated the level of Income Tax payable on Mr Miller's earnings based on the assumption that his earning capacity would have been accounted for in his own name for Income Tax purposes".[961]
Mr Thompson considered that the approximate average profit achieved in the 3 years prior to the onset of the disease was $390,000. During the 2023/2024 financial year, sales income appears to have exceeded all previous years.[962] Based on that, Mr Thompson calculated notional post-tax earnings of $4,608.47 per week in the 2023/2024 financial year.[963]
To determine the capital proceeds of the sale of NGC, Mr Thompson assumed that the business would sell on 1 July 2025 and that a purchaser would not pay more than twice the established net earnings for the business given the short transition period and Mr Miller's importance to the business. Mr Thomspon allowed for 4 payments of 25% over a 4 year period, finalising on 1 July 2028.[964] Drawing on the 2023 National Salary Survey, which sets out relevant average total earnings for managing directors, Mr Thompson assessed Mr Miller's contribution of labour as equal to $220,000 before tax per year. Applying an additional earnings multiple of 2.0, indicative of a 50% capitalisation rate, an indicative value of $400,000 was arrived at. After assessing an alternate return on capital, Mr Thompson considers an after-tax rate of 8.0% appropriate to reflect the 10 year average return derived from superannuation funds.
Mr Thompson calculated Mr Miller's past economic loss from 1 July 2024 to 30 November 2024 by taking into account weekly and additional costs and income tax over a period of 21.8 weeks. The result was a past economic loss of $2,478.[965]
To determine future economic loss based on the assumptions he was asked to make, Mr Thompson used two distinct periods; 1 December 2024 to 30 June 2025 and 1 July 2025 to 30 July 2025. Future economic loss up to 30 June 2025 is $24,005, with an additional $14,950 during the period 1 July 2025 to 30 July 2025.
Future economic loss for the 'lost years', that is from 31 July 2025 to 2 November 2039 when Mr Miller would reach 75 years of age, produces a total loss of $1,936,568.[966]
Combining Mr Miller's past economic loss, future economic loss to life expectancy, and future economic loss beyond life expectancy, Mr Thompson calculated a total economic loss as $1,978,001 based on the commercial labour approach.[967]

[498]

Mr Wallace proceeded on the following assumptions about the claim:
- Mr Miller first experienced symptoms of mesothelioma, he was working full time operating NGC;
- Mr Miller has suffered a reduction in his earning capacity, will be forced to cease work as a result of mesothelioma and claims for lost earnings, superannuation and other benefits;
- Mr Miller will live until 30 July 2025;
- But for his peritoneal mesothelioma, Miller would have continued to maintain his self-employment as the Managing Director in the operation of his business until age 75;
- Mr Miller's 'essential personal maintenance' is estimated at $300 per week;
- No deduction is made for contingencies/vicissitudes.
Mr Wallace noted the following about the report of Mr Thompson:
- Mr Miller's level of work in his business has reduced significantly, although he was providing key management services;
- Mr Miller increased Mr Bourke's pay to reflect his increased responsibilities and will also pay an increased level of bonus until the sale of the business;
- Mr Miller will cease working on 30 November 2024;
- On 1 July 2025, Mr Miller will dispose of the business and invest proceeds in an alternate commercial investment.
In addressing Mr Thompson's report, Mr Wallace stated:
- Mr Thompson used the 'lost profit approach' discussed at paras [14.5] and [14.17] of his report;
- The lost profit approach is said by Mr Thompson to be applicable if it is established if the business cannot run without Mr Miller;
- Mr Thompson does not directly answer that question, however based on para. [14.4(iii)], it appears that Mr Thompson considers that an answer cannot be given until after Mr Miller is replaced as the owner/operator of the business;
- There is no logical basis for concluding that 'the most factually appropriate' measure of loss is the lost profit approach and it is more appropriate/logical to assume that the business can continue to operate without Mr Miller;
- It follows that Mr Wallace considers that the replacement labour approach ought to be used rather than the lost profit approach.
Mr Thompson compared the alternate return on capital to lost profits (paras [14.5 (iii)] and [23.1]). In Mr Wallace's opinion, when assessing economic loss caused by personal injury, it is wrong to compare profits to returns on capital as they are different things. The loss of profits has been directly caused by the injury whereas the gain that comprises a return on capital investment has not been directly caused by the injury.
In Mr Wallace's opinion, if indirect losses and gains are included in a personal-injury economic loss calculation, other indirect gains and losses would also need to be considered. Based on the request that he calculate loss suffered by Miller as a result of his illness, Mr Wallace believes that returns on capital should not be included in the analysis. Additionally, calculating returns on capital requires a forecast on expected investment returns, which unavoidably leads to forecasting inflation. Mr Wallace referred to a passage from Assessment of Damages for Personal Injury and Death,[968] which states "that in an action for damages for personal injury, evidence as to the likely course of inflation ... is inadmissible".[969]
Mr Wallace believes that Mr Thompson's calculation of true profit is subject to the following issues:
- JobKeeper subsidies have been excluded from the true profit;
- Profit from the sale of non-current assets of $16,998 for the year 2020 have not been excluded which conflicts with Mr Thompson's statement that he has deducted 'Profit on the Sale of Assets' (para. [13.2(v)(b)]);
- Mr Thompson has adjusted his calculations of true profit by the movement in CPI (para. [13.2(vi)]), despite not establishing that the business has historically been able to raise its prices at the same rate as the movement in the CPI.
Mr Thompson has calculated the business profit but for the illness at $390,000 per annum before tax, on the arithmetic average of his calculation of true profit for the 2022 to 2024 years (para. [21.1]). Due to the issues mentioned, Mr Wallace has calculated this amount to $376,500, where the profits are not adjusted by the movement in CPI.
Mr Wallace considers that it is inappropriate to rely on Mr Thompson's 'indicative valuation' of the business as Mr Thompson has not supported the key valuation assumptions that he has adopted with empirical evidence. For example, Mr Wallace expects that capitalisation rates should be based on capitalisation rates used in comparable transactions instead of a capitalisation rate of 50% based on Mr Thompson's 'general experience' and 'understanding of similar transactions'.[970] Mr Wallace stated that he is not a valuer and is unable to provide an opinion as to the value of the Business.
Mr Wallace stated that he requires details of Mr Thompson's discussions with Mr Miller to determine whether it is appropriate to assume that Mr Bourke's bonus will double.
Mr Thompson was instructed to assume that the Miller's personal expenditure amounts to $300 per week. Mr Wallace had not been provided with any details about how the amount had been arrived at nor any documents relating to it. Mr Wallace estimated that Mr Miller's personal expenditure was $442 a week.[971] I will not detail how Mr Wallace arrived at that figure because Mr Miller accepted it in lieu of $300.
Aside from those criticisms of Mr Thompsons report, Mr Wallace believes that the calculations elsewhere in Mr Thompson's report are accurate and in accordance with the assumptions stated in that report.
In making his assessment using the assumptions set out earlier, Mr Wallace also used a present value date as at 30 November 2024, an assumed retirement age of either 67 or 75 and he assumed that retirement will coincide with the sale of the business to Mr Bourke.
In assessing past economic loss between 1 July 2024 to 30 June 2025, Mr Miller lost additional wages to Mr Bourke of $192.31 a week. More details are required before Mr Wallace could provide an estimate on the losses attributed to the bonus paid to Mr Bourke. That totals $2,478.
In assessing future economic loss from 1 December 2024 to 30 June 2025, and assuming that the business will be sold on 1 July 2025, Mr Wallace assumes a loss of $113.65 per week or $3,428 in total.
Beyond 30 June 2025, Mr Wallace calculates a future economic loss to age 67 of $1,020,577, from which personal expenditure in the lost years of $129,118 must be subtracted, to arrive at a figure of $894,870 before any deduction made for vicissitudes. If the calculation is made to age 75, the loss is $2,063,169 from which $262,920 must be subtracted to arrive at a loss of $1,803,660 before any deduction is made for vicissitudes.

[500]

Mr Thompson received further financial documents regarding the business post 1 July 2024 after writing his supplementary report.[972] Referring to the table on page 63 of his first report,[973] Mr Thompson said there had been a $600,000 increase in sales in the financial year ending 30 June 2024, a 15% to 16% increase from the previous year. The purchases also increased by about 15% to 16%. Labour hire increased by about 30%. Subcontracting costs and wages also increased.[974]
Mr Thompson understood that Mr Miller became unwell in the second half of the financial year, and was not then working on the tools or hands-on in the business. From his instructions, he believed that Mr Miller retained some overall management of the business at this time. He understood that the number of hours worked by Mr Miller reduced to about 2-3 hours per day after diagnosis and treatment. He did not know about Mr Miller's work habits since 1 July 2024.
Mr Thompson agreed that there is nothing identifiable in the performance of the business to suggest a marked change as a consequence of Mr Miller's ill health in the second half of the 2024 financial year.[975]
In terms of testing prospective risk of the business losing customers, Mr Thompson noted that the test would not be what has happened while Mr Miller's input in the business has been reduced, but rather will come when he is no longer part of the business at all.[976]
Mr Thompson understood that Mr Miller had a close relationship with his clients. He did not know whether they were aware or had been told of Mr Miller's poor health. He did not know how, practically speaking, it could be ascertained whether there had been some sort of response from clients as a consequence of knowing about Mr Miller's illness.[977]
Mr Thompson stated that Mr Miller's business was highly profitable, provided an essential service (being electrical services), and was well-managed. He agreed that Mr Miller had great personal relationships with his clients.[978]
Mr Thompson believed that a knowledgeable intending purchaser would view the key part of the business' success as being the good relationships established with customers, as the majority of revenue did not come from investment of fixed assets, but rather of goodwill. He considered the ability to manage trades as being of lower importance. Knowing what the client base was like, how long the staff had been in the business, and the reliability of ensuring clients would transition from the existing owner to the new owner would all be part of the due diligence conducted by any purchaser acquiring a business.[979]
Mr Thompson agreed that the quality of work done by the trades and capacity to charge competitive rates were also important, and that doing both of these well was a marker of high levels of successful management.[980]
Mr Thompson disagreed that anyone moving into owning an electrical trade business would come in with knowledge of what was required in terms of work and what could be charged for that work in the market. He provided that a vast majority of electrical contracting businesses are not conducted on this scale, but are much smaller, with only a few workers engaged. Mr Miller had been able to generate a large business by successfully garnering clients and profitably managing the delivery of services. He maintained that the most important thing about this business was Mr Miller's relationship with his clients.[981] He agreed that the book of clients was effectively the goodwill. The business does not have a lot of fixed assets; what it is worth is effectively it's ability to generate profits from the book of clients and the repeat business from those clients.[982]
The goodwill in the business may be attractive to a larger business looking to expand by buying that share of the market. If they were aware of Mr Miller's situation, Mr Thompson identified three possible outcomes. Firstly, they may pay the full price for the business, being a multiple of four times the profit. They may also, because of Mr Miller's illness, elect not to pay anything, and compete for the clients by advertising. Thirdly, they may identify Mr Bourke as being a key person in the business with the client base, recruit him, and provide him some incentive to help grow their own business.[983]
Given the substantial turnover and value of the business, Mr Thompson did not believe there would not be a sale of the business.[984]
In relation to his supplementary report, the sum allowed for labour costs (less than $3,000) was based on the instructions provided that from January to June 2025, the additional amount that was being paid to Mr Bourke on top of his base rate of pay up to 30 June 2024 would continue to be paid. The original report had a slightly higher figure, which has been removed from the updated calculation.[985]
As stated in Mr Thompson's first report,[986] whether or not the business can continue to operate after Mr Miller leaves is dependent on the extent to which the business' goodwill is distinguishable from Mr Miller's personal goodwill. That is not able to be answered with any certainty until Mr Miller is actually absent from the business.[987] Despite that, the most factually appropriate methodology to apply to measure Mr Miller's loss was, in Mr Thompson's view, the loss of profits approach. He reached this view from discussions with Mr Miller and his accountant about their intentions for the business, specifically, to dispose of the business. This fit more factually with profits no longer being generated and an alternate sum being derived from the investment of the capital proceeds.[988]
Using sales income information from between 1 July and 31 August 2024, on a simple annualised basis (assuming 12 consistent months), Mr Thompson calculated in his first report the future revenue at nearly $5.4 million. This would be a significant increase in revenue and profitability from the previous year. However, having received more up to date information it can be seen that the business is trading 'pretty much in line' with the 2024 figures up to March 2025.[989]
The profit and loss statement for July 2024 to March 2025 showed an increase in gross profit by 8.2% from the previous 12-month period. The net profit over the same period increased by 48.1%. The business traded well over that period.[990]
Mr Thompson agreed that one measure that can be used to assess the viability of the business going forward without Mr Miller is how the business has performed during the period where he was less involved. The question as to whether the business could continue in Mr Miller's absence then becomes what his actual involvement was during that time. This was not something Mr Thompson knew.[991]
If Mr Miller had had no involvement in the business during that period, and it continued to operate profitably, that indicates that the business does not completely rely on his management.[992]
In preparing his report, Mr Thompson had assumed, based on discussions with Mr Miller, that Mr Miller retained a reasonably active involvement in the business.[993]
Mr Thompson agreed that it would be relevant to whether the business could continue and retain clientele to know what Mr Miller was doing and how he was interacting with clients, as compared to what Mr Bourke was doing, how he was interacting with clients, and the relationships he had formed with those clients.[994] He agreed that the relationship between Mr Bourke and the clients could be such that they would remain with the business even without Mr Miller, but stated that this was something he did not know. It could be determined, for example, through a survey sent to customers, although this would be a risky option.[995]
Mr Thompson understood that Mr Miller's business had transitioned from focussing on mainly smaller clients to taking on bigger projects for only a few larger clients, from which 70% of the revenue came. From speaking with Mr Miller, he took this to have been an organic change rather than a conscious decision. Mr Thompson had not spoken to Mr Miller about his relationship with those clients, or what his intentions were in relation to them. He again noted that Mr Miller having a discussion with those clients about the future of the business would have been risky and practically difficult.[996]
Mr Thompson understood that it was Mr Miller's long-term intention to sell the business, and Mr Miller had identified Mr Bourke as the logical purchaser. Mr Miller had not given a fixed date for a sale to occur. He intended to exploit the business to rebuild himself financially after a messy marital break-up.[997] Mr Thompson considered it likely that Mr Miller would sell part of the business to Mr Bourke over time, and that Mr Bourke would want to ensure Mr Miller was engaged in the business while he transitioned the clients.[998] He did not believe that Mr Miller had turned his mind to selling the business before he became unwell. He did not recall whether Mr Miller had mentioned speaking to Mr Bourke about selling the business a few years earlier.[999]
In his calculations, Mr Thompson had worked on the assumption that loss was to the age of 75 as instructed.[1000]
Mr Wallace observed that whether or not Mr Miller, would have sold the business or continued to work was not only a factual issue but also an assessment issue. In response, Mr Thompson noted that proceeding on a loss of profits basis, the terms of the disposal of the business are relevant. There are many ways it could occur.[1001]
Mr Thompson referred to a file note of his conversation with Mr Miller dated 30 July 2024, where it was recorded that the long-term plan was to transition the business and sell to Mr Bourke over time.[1002] He added that no start date was identified for this process.[1003]
Mr Thompson referred to a file note of his conversation with Mr Moroney, Mr Miller's accountant, dated 24 September 2024, where he recorded that the long-term plan was to transition the business and Mr Bourke was a key person in the business.[1004]
It was put to Mr Thompson that what had to be determined in this matter was damages to compensate Mr Miller for the loss or impairment of his earning capacity, whereas Mr Thompson had focussed on the loss of actual profits both in the past and future. Mr Thompson noted that if the exercise of Mr Miller's earning capacity included being able to generate profits on the capital he has in his business, then they are directly linked to his earning capacity. His calculations have allowed for alternate use to which that capital could be put outside the business. He noted that even though Mr Miller did not play the sole role in contributing to the business' profit, he had the critical role in so doing.[1005] Mr Thompson agreed that the labour replacement approach would be appropriate in circumstances where Mr Miller's earning capacity was limited to the value of his labour. However, if the value of Mr Miller's earning capacity extends beyond his labour to his entrepreneurial ability to generate a greater return than he would achieved passively by investing his capital.[1006]
Mr Thompson applied a deduction of $300 for personal expenditure. He provided that what should or should not be included in the consideration of essential personal maintenance was a question of law which he was not able to assist with.[1007] Mr Wallace agreed that the elements required to derive earning capacity come from the law, not accounting. Mr Wallace provided that it is often impractical to use actual data, which was why he relied on the ABS data.[1008]
Mr Thompson referred to the financial profit and loss statements for Mr Miller's family trust as demonstrating that over the period from 2020 to 2024, the CPI/profit margin had been maintained. He cautioned against concluding that the downturn in profits shown on this document was evidence of the pricing of the business not keeping up with the costs, given the impact of COVID in this period.[1009] Mr Thompson noted that he relied on this document and his own experiences in determining that it was appropriate to apply CPR increases.[1010] Mr Wallace did not agree that conclusions could be drawn about CPI based on the documents referred to by Mr Thompson. For example, he pointed to the 2016 to 2019 period, which showed quite a bit of change in the gross profit ratio that he noted could not be attributed to COVID, but could have been a result of either prices or productivity.[1011]
With reference to para. [4.7(iv)] of his first report,[1012] Mr Thompson said that an effective transfer of the business to Mr Bourke over time would depend on lots of things, such as Mr Miller's financial circumstances and whether he needed to continue generating the full profit for a period of time to extract the maximum value from the business. He did not know whether it was likely that there would have been a transition period before Mr Miller turned 75.[1013]
Mr Thompson said it could be argued that if Mr Miller had not become ill, he could have continued to run the business and then sell it for a value in excess of what he could now sell it for. This would potentially give rise to a capital loss on the disposal of the business due to being forced to sell it now, as opposed to being able to undertake a management buyout in an orderly manner.[1014]
Mr Thompson accepted that Mr Bourke was also in a position of control in negotiations for the sale of the business as he was developing relationships with clients.[1015]
With reference to para. [14.5(i)] of his initial report,[1016] Mr Miller's 'but for' profits would diminish in the event there was a sale or part-sale of the business, although that would be set off against a capital sum he would receive in an accelerated sense as part of that process. For example, if Mr Miller sold 25% of his equity, he would then only receive 75% of the profits. However, Mr Thompson noted that the profits may not be not be split 25/75 if the partners paid themselves a commercial salary (called a partner's salary) and then split the residual in this proportioned way.[1017]
Mr Miller's share of the profit may also decrease if Mr Bourke's salary increases with his increased equity, for example, to become equivalent with Mr Miller's salary.[1018]
Mr Thompson clarified that para. [14.7(1)] of his report provided that using the average profits over a number of years captures within earnings the business risk that existed in each of those years, and builds into the calculation of projected future profitability the risks that existed during that time. If a significantly high level of risk adjustment was applied to the capitalisation of those earnings for the purpose of calculating the value of the business, these risks would be accounted for more than once.[1019]
It was put to Mr Thompson that this approach of using average profits does not capture risk that may not materialise, which may otherwise be accounted for by applying subsequent risk adjustment. That is, applying the risk adjustment would only result in double counting of risks that had already materialised and been accounted for in the average of the profits. He did not disagree that proposition.[1020] Mr Wallace interjected to provide the example of Video Ezy: a calculation performed in 2000 that took the average profits for the past five years and projected that for the next 20 years would be "woefully wrong" as it did not take into account changed technology.[1021]
Mr Thompson accepted that as long as Mr Miller's current situation continues, and the business remains in his hands, the appropriate loss is the loss of labour that he has to replace himself during that period. [1022]
Mr Thompson accepted that, in the alternative to a purchaser's willingness to buy the business substantially diminishing if Mr Miller's condition became known, it may also be that the business, being very profitable, would become very attractive for another business to acquire. He referred back to the three possibilities he outlined earlier in his evidence, being that a purchaser may be happy to pay full price, that they may pay a reduced price because of their knowledge of the circumstances, or that they may pay nothing and wait to acquire the business by instead spending money on marketing to win the clients.[1023]
Mr Thompson conceded that while bringing a new owner into the business may result in a loss of clients who are unwilling to transition from the previous owner, it may also be that the new owner would bring with them additional clients. Mr Bourke presented a real risk in that sense, in that if he did not want to buy the business, the chances of finding another purchaser were likely problematic as he could take with him a significant volume of clients.[1024] Mr Wallace added that assuming everyone would take advantage of Mr Miller's condition was a very cynical view of human nature, and did not necessarily reflect what appeared to be happening.[1025]
In the event of a part sale, for example of 50% of the business to Mr Bourke, Mr Thompson agreed that there was a lot of conjecture about whether that would affect the replacement of labour modelling. If Mr Miller remained working in the business, the commercial value of his earning capacity would, in essence, remain the same. If the commercial value remains the same, then the replacement of that commercial value should also remain the same.[1026]
Mr Thompson stated that neither his opinion nor the methodology he would use had changed after seeing updated records to March 2025.[1027]

[501]

Mr Wallace identified the cost to replace Mr Miller's labour as $275,000 per year.[1028] His approach was to use that measure to quantify economic loss. For that reason his amount does not include any separate entrepreneurial premium as Mr Thompson's does. Mr Wallace did not take into account potential loss to the business from losing clients once Mr Miller is not involved. [1029]
Mr Wallace accepted that there is a risk that a business may lose clients when a longstanding director or key person is no longer with the company.[1030]
Mr Wallace thought it more appropriate to assume that the business would continue to operate without Mr Miller and adopt the labour replacement approach over the lost profit approach. He accepted that there is a risk that once Mr Miller dies or is not in a position to continue working in the business, it may cease to operate.[1031]
Mr Wallace accepted that the value an experienced long-term business owner may place on retaining their business may exceed the value assigned by a purchaser.[1032]
Mr Wallace did not expect that the rate of return for a small business owner working alongside their capital and managing their risk would be too different from that of a passive investor in the same type of business. However, he noted that that answer assumes he knows what the owner expects, and that this was hard to quantify as an external investor would expect a high rate of return from a small business given the higher risk associated than, for example, investing in a government bond or the stock market.[1033]
Mr Wallace agreed that a significant risk exists, if a small business owner is forced to sell their business, that the full value will not be achieved, especially if the sale takes place in a shortened timeframe.[1034] He assumed that there would be a risk of Mr Miller not achieving the purchase price he seeks due to knowledge of his illness and advantage being taken of that.[1035] Mr Thompson agreed that there would be a risk in those circumstances.[1036]
Commenting on Mr Thompson's report and adjustment for CPI, Mr Wallace stated that Mr Thompson had not established that the business price rose with CPI, and that until that is shown it is not appropriate to apply CPI. He noted that while it may be appropriate, he had not been provided with a sample of invoices over a number of years to check the prices of the business over time.[1037] He was not able to determine that by looking just at the financials or gross profit of the business.[1038]
Mr Wallace was satisfied with Mr Thompson's responses to his questions about the loss of profits methodology employed. Mr Thompson had confirmed that he treated the cash flow/business profits differently, as between but for and actual. He did not discount the but for business profits in his loss of profits calculation, but discounted those by 3% per annum in the future. He heavily discounted the actual profits by applying a capitalisation rate. Mr Wallace noted his issue had been with the inconsistency between the different cash flows - to him, they are both the same types of cash flow and carry very similar risks, and so the discount rates should be similar.[1039]
One asset of the business that is not on the balance sheet is its human capital - its staff. While the value of the customer relationships is important, you need those staff to be able to deliver the services the customers expect. These two things are part and parcel - you can't have one without the other.[1040]
The MYOB-generated profit and loss statement up to March 2025 shows that the turnover/revenue from July 2024 to March was $3.2 million, which, when annualised, comes to $4.36 million. In 2024, the revenue was around $4.2 million. In this financial year, therefore, the business is tracking better than it was. If Mr Miller has been less involved, whoever is managing things in his absence has done a very good job such as to mitigate his absence.[1041]
The appropriate methodology to apply in determining economic loss is dependent on whether the business can continue in the absence of Mr Miller or can be sold. If it can continue, the appropriate methodology is the replacement labour approach. If it can't, this would imply that all the profits had been lost, so the loss of profits approach, net any adjustments for example, if the business winds down and can recover something, would be the appropriate approach.[1042]
Mr Wallace agreed that, at a broad level, the questions to be answered in order for the correct methodology to be found are articulated on page 14 of Mr Thompson's report.[1043]
In relation to whether Mr Miller would have sold the business had he not become ill or continued to work, Mr Wallace identified that this as not just a factual issue, but also an assessment issue. Had Mr Miller sold part of the business to Mr Bourke, but continued working, he would be on a different profit share and would derive a different amount from the business.[1044] If that occurred in part because of Mr Miller's illness, there would need to be a change in the succession plan. It would then need to be identified how that change caused a loss of profit. The second consideration would be whether Mr Miller, but for his illness, would have worked full time to age 75 and part-time in the alternate situation. Mr Wallace did not believe that the loss of profit approach would be appropriate in those scenarios as a loss of profit has not been identified. The only discussion has been whether the business could continue, and he did not see how it could not continue to do so.[1045]
The question of loss of profit needs to be separated from loss of earning capacity. It is likely a different succession plan would cause a different loss in Mr Miller's earning capacity, but Mr Wallace noted that there is too much conjecture for him to be able to say which way it would go.
Mr Wallace agreed that Mr Thompson's position was that all of the profits from the business each year would be assigned to Mr Miller as his effective income, less personal expenditure and an additional deduction for the alternate return on capital.[1046] Mr Wallace's report questions the appropriateness of this approach as it assumes that all profits are derived from Mr Miller's labour alone, and not also from the labour of others.[1047] Mr Thompson disagreed with this position, stating that these costs are properly captured within the profit and loss account. The cost of employing labour is deducted before you get to the profit, as well as the cost of the capital already invested (being the alternate return). This leaves the total profit of the business, which arise from the effective management of the business.[1048]
Mr Wallace was of the view that Mr Thompson had inconsistently treated the actual but for cash flow and but for profits.[1049] He noted that this issue only arises under the loss of profits approach. Under that approach, Mr Miller's capacity from his personal exertion, the return on labour, and return on capital from the business are all grouped in the profit figure. There is a risk that this may or may not continue (as informed by business risks). On the but for considerations, Mr Thompson had only averaged the past few years and assumed that, but for, Mr Miller would have continued to derive approximately $390,000 profit, with no further discounting aside from the usual 3% per annum for inflation. For the actual cash flow, however, Mr Thompson had determined the ongoing profit of the business after deducting the commercial value of Mr Miller's labour at $200,000 a year, discounted by the capitalisation rate, to come up with a valuation for the business. These approaches give rise to the inconsistency that, on one hand under the but for considerations, there was no risk that the cash flows would not continue, whereas on the actual side, the 50% discount/capitalisation rate implies that the business is highly risky.[1050] If this inconsistency was remedied by applying a discount of 50% (or slightly lower to account for the 'value to the owner' concept) to the $390,000 profit Mr Miller would have derived but for, Mr Wallace noted that there would be a large reduction in the loss on that side of the ledger.[1051]
Mr Wallace agreed that while there was disagreement between himself and Mr Thompson as to whether the loss of profit method should be used, there was very little difference between them in relation to the replacement labour method.[1052] Mr Thompson also agreed that there was not a lot of difference on this approach in strict dollar terms, and that the only real difference was the assumptions that they each applied, including different assumed retirement ages.[1053]
In the event of a partial sale, such as 50% of the business to Mr Bourke, Mr Wallace said that the question would then become (on the but for side of the ledger) what Mr Miller would be paid after that sale. He said that without further evidence any number of alternatives could occur, so no clear answer can be given as to how a partial sale would affect the replacement of labour modelling.[1054] Whether he would ascribe the same value to the replacement of labour would depend on whether Mr Miller's input reduced as a result of the sale. If it did, then the commercial value of the labour would need to be reduced by multiplying the full-time commercial value by a percentage based on Mr Miller's input/hours.[1055]
Mr Wallace stated that neither his opinion nor his methodology changed after seeing further business records of NGC to March 2025.[1056]

[502]

NGC is a very profitable business. It has an impressive list of commercial clients, including some national shopfitting firms and the State Government. The work is performed by 10 to 11 tradespeople and 10 to 15 apprentices.
Mr Miller gave evidence that if his claim succeeds, he will cease working at the end of the financial year. I accept that evidence. Mr Thompson said that the business is extremely profitable for a trades-based business based on his experience. I accept that evidence.
Mr Miller gave evidence that he intended to work until he reached 75 years of age. He said that he had only just started to consolidate his financial situation after making a financial recovery from his divorce. That assertion is supported by the meagre amount of superannuation he has, relative to his earnings, and by the substantial contributions that he made to superannuation in the period immediately before being diagnosed. In addition, Mr Miller enjoyed his work and was successful, and Ms England is career focussed. For those reasons, I accept that Mr Miller would have worked to 75 had he not become ill, but make one qualification. I find that Mr Miller would have transferred ownership of the business to Mr Bourke over a 4 year period between his 71st and 75th birthdays. If he did not, he would have risked Mr Bourke setting up a business in competition to NGC or working for a competitor. While Mr Bourke is content with his current arrangement, it is likely that he would want equity in the business in the future. He has already been given a very high level of responsibility by Mr Miller, including having close contact with, and quoting work for, NGC's biggest and most important client.
It will be more difficult for Mr Miller to sell NGC to a corporation than to Mr Bourke. As Mr Wallace said, a corporation would likely take a more conservative approach to valuing NGC given Mr Miller's strong personal involvement in the business and his connection to clients. Mr Bourke knows the clientele and how to run the business effectively. For those reasons, I find that Mr Miller would have transferred ownership of the business over time in the lead up to turning 75. I have calculated future economic loss based on Mr Miller working to 73 years of age. While I have accepted that Mr Miller probably would have continued to work beyond that age, I consider it likely that he would by then have been on a reduced share of equity to transition ownership of NGC to Mr Bourke.
The State submitted that Mr Miller had discussed transitioning ownership of NGC to Mr Bourke before becoming ill and had told that to his accountant and Mr Thompson.[1057] The State was critical of Mr Miller for not mentioning those discussions in his affidavits. It is not clear what the basis or timing of any transition would have been. It is also not clear what was discussed or what the motivation for having a discussion with Mr Bourke was. Mr Bourke may have initiated the discussion. Without some evidence of what was discussed it is not appropriate to take the discussions into account in calculating economic loss. I have reduced Mr Miller's likely working life from 75 years of age to 73 years of age in any event.
In calculating future economic loss I adopt the replacement labour approach rather than the loss of profits approach, partly for the reasons given by Mr Wallace, partly because NGC has continued to perform very well since Mr Miller became ill and partly because of Mr Bourke's increasingly important role in the business. I also rely on the State's submission based on Mr Thompson's evidence.[1058] Mr Thompson said that to calculate economic loss, 3 questions need to be answered:[1059]

[510]

The first comment made in that passage is incorrect. Mr Miller suggested $300 as the amount of expenditure on essential items, not Mr Thompson. Regardless of that, the parties had tacitly agreed to use either $300 or $442 to represent Mr Miller's weekly expenditure on necessities. If the figure had not been agreed, I would have selected the higher amount. If any party did not wish to accept either amount, Mr Miller should have been cross-examined about his expenditure. Trust deeds would not have assisted with the enquiry. Further, as the passage set out above states, I am not satisfied that credit card statements would have assisted with the enquiry. Knowing that Mr Miller spent a certain amount at a particular supermarket, hardware store or delicatessen from credit card records may have given rise to more questions than answers. A credit card statement does not itemise individual purchase amounts or describe how many items were purchased. I am not confident that Mr Miller would have been able to recall what items were purchased by reference to his credit card records.
Mr Miller and the State each submitted that the appropriate deduction to make for vicissitudes is 15%. I accept that as an appropriate deduction.
Based on the comment in Dr Broadbridge's September 2024 report that patients who have HIPEC have a marked improvement in median survival between 34 months and 100 months, I find that Mr Miller will not have a recurrence of active mesothelioma until November 2027. Thereafter I find that he will live for 12 months during which time he will not work.
I find that NGC will be sold on 1 July 2026. On that basis, I award $11,820 for past economic loss for the period 1 July 2024 to 1 July 2026 based on a weekly loss of $113.65 as per Mr Thompson's Table 24.1 for 104 weeks.
For the period 1 July 2026 to 1 November 2037, Mr Miller has a net future economic loss of $3,552 per week based on Mr Thompson's net replacement labour value figure. By reference to the Deferred Tables in the Vincent's Tables 2025 that were in evidence, the 7 month deferral at a 3% discount rate gives a deferral multiplier of 0.983. The parties agree that a 15% deduction for contingencies should be applied. Future economic loss between 1 July 2026 and 30 November 2028, 2.42 years, at a rate of $3,552 per week after a 15% deduction comes to $361,750. For the lost years between 1 December 2028 and 2 November 2037, a deduction for personal expenditure of $442 per week is made to $3,552 per week over a period of 8.92 years. The deferral multiplier is 0.915. After a 15% deduction, future economic loss during the lost years is $990,119 making a total future economic loss award of $1,351,869.

[514]

...We consider that the effect of s 9(2) is to establish conditions which are sufficient for an award of exemplary damages in a dust diseases action, and to indicate that if those circumstances exist, an award should usually be made. That is to say, if the defendant is in the category identified in sub-par (a) and had the knowledge to which sub-par (b) refers, the Court ought, absent some sufficient countervailing consideration, make an award of exemplary damages. It is no longer necessary that a defendant's conduct be characterised as reprehensible before an award is made (although if a defendant's conduct is reprehensible, that would be relevant to both the exercise of the discretion and to the assessment of the amount to be awarded). Section 9(2) should be understood as substituting the statutory criteria for the common law criteria; not as adding to those criteria. There will be circumstances in which, despite the use of the word "should", the Court may exercise the discretion not to make an award, but those circumstances will be outside the norm.

This has the effect that an award of exemplary damages may be made against a defendant in respect of a breach of duty occurring many years previously, who no longer has any involvement with asbestos, whose conduct does not in the eye of the common law warrant punishment, and in respect of whom notions of deterrence are of no or limited weight. That however is the legislative intention. There is no indication that s 9(2) is not to apply in such circumstances and, indeed, they are the circumstances which are likely to exist in many, if not most, dust diseases actions.

It should be kept in mind that many dust diseases do not become manifest for many years after the injured person's exposure to asbestos. The evidence in this action indicated that periods of 15 to 30 years are common. In these circumstances it is almost inevitable that some defendants will have ceased business altogether, or changed their practices, or ceased any use of asbestos. Nevertheless, s 9(2) contemplates that an award of exemplary damages should be the norm.

[524]

Based on the evidence submitted by Mr Miller, I make the same five findings that were made in Latz. The findings were summarised by the Full Court in Werfel in this way:[1081]
1. James Hardie is party to a charitable trust which it established to compensate the victims of asbestos disease caused by that company, and by which a fund was established to deal with claims for which James Hardie is liable.[1082]
2. The Judge had documentary evidence demonstrating that James Hardie knew about the risk to the health of its workers from asbestos dust by 1938, and this awareness increased over the years. By the early 1960s, James Hardie knew that asbestos sheeting could cause mesothelioma and that the users of those products were at risk of developing that disease, but it made a conscious choice not to alert the public about that. By 1976, James Hardie knew of precautions that could be taken to minimise the risk of contracting asbestos related diseases as a result of cutting asbestos products and it implemented precautions for its own workforce.[1083]
3. In 1963, a safety officer with James Hardie met with senior executives and raised concerns about the threat posed by the company's products as a result of cutting cement sheets made with asbestos. He suggested that those products be labelled. He also suggested that the company had a moral obligation not to give those who used James Hardie products the impression that there was no problem with asbestos. A senior executive and the company physician told the safety officer that, once a product had been sold, the company had no further obligation.[1084]
4. In 1966, an executive of James Hardie referred to a newspaper article describing the lethal effects of mesothelioma and was concerned about "this sort of information getting around Australia". That same year, James Hardie's industrial physician addressed a conference of factor managers and told them that exposure to asbestos was dangerous and cumulative, and that it caused asbestosis and cancer. For commercial reasons, James Hardie continued to manufacture, market and sell asbestos products, including asbestos sheeting.[1085]
5. James Hardie's conduct occurred in a context where it was fully informed about the lethal dangers of asbestos but did not warn its customers about the potential harm associated with using its products, and failed to advise of the known precautions that might have been used to minimise the harm. Stanley J found that this conduct "amounted to reckless indifference".[1086]
In setting aside the award of exemplary damages at first instance in Werfel, the Full Court said that the lack of precise first instance findings was 'particularly important',[1087] and it was not appropriate to simply adopt an earlier award without explanation. I consider that the findings made in this case are sufficient to enable a more substantial award than the award made on appeal in Werfel. Further, and contrary to the ultimate finding made in Werfel, the common law standard to award exemplary damages is satisfied here. The conduct of Amaca was reprehensible for the reasons given in Latz. James Hardie knew that its products were lethal and may cause death but took no steps to warn consumers, tradespersons and home handypersons with that knowledge. However, Amaca has already been punished by the award of exemplary damages in Latz for the same conduct so there is no need or a limited need for specific deterrence. In my view, an award of $50,000 for exemplary damages against Amaca is appropriate.
While the State was negligent in failing to take proper care for the safety and welfare of external contractors, the evidence does not permit a finding that the conduct was egregious and reprehensible. That distinguishes this matter from Latz.
While an award of exemplary damages at common law against the State is not warranted, the criteria in s 9(2) of the DD Act are satisfied in my view for the same reasons as to why the State breached its duty of care to Mr Miller and was negligent. The State and the RAH each had the knowledge required by s 9(2).
The State submitted that even if s 9(2) is satisfied, there remains a discretion to not make an award of exemplary damages. The submission is correct, but I am not persuaded that the discretion to not make an award should be exercised. The RAH displayed a very significant disregard for the care and safety of Mr Miller and other external contractors who performed work at the RAH. The evidence establishes that Mr Miller could reasonably have been expected to come into contact with asbestos in the course of working at the RAH. The failure to provide him with a warning about that and a mask is well below the standard that an employer who knew of the risk of asbestos should have exercised in 1991. The State was better placed than almost any other employer to apply its knowledge that asbestos was toxic and potentially lethal. Crocidolite is the most lethal type of asbestos and was in abundance at the RAH. As the Full Court said in Werfel, when the statutory preconditions are made out, an award of exemplary damages will usually be made.[1088] Having regard to s 9(2), an award should be made.
As the award is under s 9(2) of the DD Act, the award is less than an award of exemplary damages at common law. I award an amount of $40,000.
Mr Miller is entitled to the following damages:

[542]

Judge Curtis applied the dictum of Clarke JA in Macquarie Pathology Service Pty Limited v Sullivan (unreported) Court of Appeal, 28 March 1995. The appellant first submitted that, having found the defendants equally blameworthy and set the causal potency at 75 per cent to the appellant and 25 per cent to the second respondent, the trial Judge ignored equal blameworthiness and simply apportioned the responsibility for the plaintiff's damages 75 per cent to the appellant and 25 per cent to the second respondent. On its face what his Honour did seems entirely sensible. He regarded the parties as equally blameworthy, but regarded the causal potency of the appellant as greater in a proportion of three to one to that of the second respondent. It is not a mathematical exercise, and where the responsibilities were not to be distinguished in one respect but were to be distinguished in another respect I see no reason why the distinguishing respect should not be given full effect. To apportion as Judge Curtis did seems just and equitable.

...

Professor Henderson's evidence, which Fitzgerald AJA had earlier said the Tribunal substantially accepted, was that while there was uncertainty concerning the process of development of mesothelioma it was related to the cumulative effect of all asbestos fibre inhaled in the material period which ends about ten years before the first diagnosis of the disease. The Tribunal, his Honour thought, correctly accepted this theory and rejected the manufacturer's fundamental proposition that inhalation of more than one amphibole form of asbestos fibre raised a number of separate, independent, possible causes of mesothelioma and the conclusion for which it contended, namely, that the plaintiff's mesothelioma was probably caused by only one of the other amphiboles which he had probably inhaled.

In the present case there was evidence before the Tribunal from Dr James Leigh that for all fibre types there is a dose response relationship between the risk of asbestosis, lung cancer and mesothelioma. The appellant submitted, however, that apportionment must be calculated by reference to causal potency, and in the absence of evidence providing a rational basis for the division of causation between the defendants there could not be apportionment by reference to the extent of risk related to the length of exposure or the potency of exposure.

...

On the evidence in this case Judge Curtis found that the degree of exposure, and hence the degree of risk, varied between the two defendants. I can see no error in his Honour applying the relevant proportions to determine what was a just and equitable apportionment having regard to each defendant's responsibility for the damage.

If E M Baldwin & Son Pty Ltd v Plane is properly understood as being a factual determination by this Court of approximate equality of culpability in a case where the Court was entitled to re-assess that culpability, the decision is one restricted to its particular facts and of no relevance in this appeal. On the other hand if it is to be regarded, as it fairly might be, as a statement of legal principle that, in circumstances where successive employers have exposed a worker to the risk of injury from asbestos over different periods with, perhaps, different intensities of exposure to asbestos with different degrees of toxicity, apportionment of liability between successive negligent employees, found to have caused disease resulting from such exposure, must be equal, then in my respectful opinion, such statement is wrong. In cases of this sort, where causation is proved by evidence of exposure to risk and there is a rational basis for distinguishing between the degrees of exposure, it is not correct to say that there is no rational basis for the division of causation. Nor, indeed, should the conventional regard to culpability and causation obscure the need to examine the whole conduct of each party, an examination which in circumstances of inability to quantify comparative causal potency could itself lead to differential responsibility by regard to the degree of exposure to risk.

[545]

It is not surprising that as a scientist, Professor Klebe adopted the view that all exposures to asbestos are contributory. There is no way to determine which asbestos fibre or fibres initiated Mr Miller's illness. I have accepted that evidence but have also accepted the undisputed evidence that crocidolite is far more toxic than amosite or chrysotile.
The State and Amaca each had knowledge of the danger of exposure to asbestos dust prior to 1991. The State took steps to reduce that danger to RAH employees and internal contractors, but did not with external contractors like Mr Miller. It follows that each party is morally culpable.
The extent of Mr Miller's exposure to asbestos, and his risk of contracting mesothelioma, is different as between the State and Amaca. Mr Miller was exposed to crocidolite at the RAH, usually in confined environments like ceiling spaces, risers and the catacombs. Professor Klebe said that Mr Miller would have inhaled crocidolite fibres in those places without disturbing asbestos in them. The much higher risk ratio of crocidolite by comparison to amosite and chrysotile means that the exposure to asbestos at the RAH was significantly more potent causally than the exposure to asbestos in James Hardie products. That finding should be reflected in the apportionment between the State and Amaca.
Professor Klebe said that apportioning liability in this case is a task she would not wish to undertake. Professor Klebe also said she would rather change a switchboard than walk through the catacombs of the RAH. That comment shows that even a learned expert who considers that all exposures to asbestos are contributory, behaves in a way that acknowledges that some exposures to asbestos are higher risk than others.
Having regard to the criteria in s 6(5) of the LR Act, it is fair and equitable that the State assumes greater responsibility for Mr Miller's injury, loss and damage than Amaca. The asbestos in James Hardie products was predominantly chrysotile, with some amosite and a very small amount of crocidolite. The asbestos cement sheets were predominantly comprised of cement with a 10% to 15% asbestos content. Mr Miller said that it only took a few seconds to drill a hole through the sheeting to pass cable through when working for Total Electrical. Cross-examination established that Mr Miller's exposure to asbestos through being near demolition work whilst working for Bathroom Concepts was less than his affidavit may have suggested. In contrast, Mr Miller's exposure to asbestos at the RAH was primarily to crocidolite in friable form. Mr Miller's exposure to crocidolite in James Hardie products was much more limited than his exposure to crocidolite at the RAH. Crocidolite was the least common type of asbestos used in James Hardie products up to and including 1967[1105] and was not used in James Hardie cement sheeting from 1968.
In Seltsam Pty Ltd v McGuiness,[1106] Spigelman CJ said:[1107]

[549]

BI did not dispute that it manufactured and installed all the sprayed asbestos insultation used in RAH buildings that were constructed in 1959, the 1960s and the 1970s.
Counsel for BI asserted that before any issue of apportionment between BI and the State is considered, the State must prove that BI would be liable to Mr Miller if Mr Miller had sued BI direct. In para. [12] of the Third Party Statement of Claim, the State pleads that BI owed a duty to the State and its employees and contractors to take reasonable care in the manufacture, supply, installation and removal of asbestos.
BI submitted that the only relevant duty that the State can base a claim for contribution on under the LR Act on "is a duty owed by the BI parties to labour hire workers including Miller".[1108] BI submitted that there was no relationship between it and Mr Miller that can found a duty of care.
BI referred to Caltex Refineries (Qld) Pty Ltd v Stavar,[1109] where Alsop P listed some salient features to use to determine whether a duty of care is owed.[1110] BI submitted that it had no relationship with Mr Miller and had no control over the RAH after it had sprayed crocidolite there in or around 1964. BI pointed to the years that passed between when the spraying was performed and when Mr Miller worked at the RAH. BI also submitted that the State and the RAH had actual knowledge of the danger of asbestos before Mr Miller commenced working at the RAH.
The only allegations of negligence made by the State which BI admits are potentially relevant are in paras [14.1], [14.2] and [14.18] of the Third Party Statement of Claim.
Counsel for BI referred to a number of decisions concerning BI including Geyer v Resi Corporation,[1111] and The State of South Australia v Bradford Insulation (S.A.) (in Liquidation) & Anor (No 3) (Spooner).[1112]
In Geyer, BI was found 30% responsible for the plaintiff's damages. The employer allowed the plaintiff to work in proximity to where BI was spraying asbestos and was found to be 70% responsible for the damages. In Spooner the apportionment was 50/50 as between BI and the employer. The employer in both cases was an instrumentality of the State.
In responding to BI's submissions, counsel for the State submitted that the analysis failed to mention that BI was contracted to spray asbestos in certain RAH buildings by another company, Baulderstone, and not the RAH. Counsel for the State said:[1113]

[561]

In Spooner, Rossi J held BI and Resi equally responsible for the plaintiff's loss. His Honour observed that the relative capacity of the State and BI to have averted a risk of injury was a relevant consideration.[1123] His Honour also noted that BI had actual knowledge of the risk of contracting a dust disease from exposure to asbestos dust whereas ETSA had presumed or constructive knowledge.[1124]
Unlike the plaintiffs in Geyer and Spooner, Mr Miller did not work in the presence of BI employees when they applied asbestos.
The State submitted that BI should bear more responsibility because Mr Miller was not an employee of the RAH or the State. BI submitted that its involvement with the RAH ceased about 20 years before Mr Miller commenced working at the RAH and the State should be held more responsible for his loss and damage.
BI knew that it was spraying a toxic substance capable of causing a fatal and painful illness in a public hospital. BI failed to provide any warning about the danger that sprayed asbestos posed to the RAH or the State. I do not accept BI's submission that the passage of time rendered its failure to provide a warning for the reasons given on that issue in Werfel.[1125]
While the State may not have known the nature or consequences of the product that BISA supplied when it was supplied, the State became aware that it was crocidolite and was toxic long before Mr Miller worked at the RAH. The removal of asbestos from the RAH commenced before Mr Miller worked there, and measures were put in place to protect employees and internal contractors, but the health and safety of external contractors like Mr Miller was neglected over a long period. Insisting that all tradespersons and labourers use masks when working in ceiling spaces, risers or the catacombs was a simple and inexpensive step that may have prevented Mr Miller from contracting mesothelioma.
The State was better placed and resourced to take steps to safeguard tradespersons and labourers who worked at the RAH. However, that consideration must be balanced against BI's knowledge that it had supplied a very dangerous product and failed to give any warning of that.
BI submitted that the State had actual knowledge of the danger of inhaling asbestos dust and fibres as early as 1 January 1949. BI relied on the Applicant's Comprehensive Bundle of Documents from the State of South Australia's Discovery, exhibit A37, in that regard. The bundle contains Good Health Bulletins that are general in nature and deal with a broad range of OHS and public health issues.
Good Health Bulletin 115 of July 1960 discusses asbestos along with silica and coal dust under the heading 'Inanimate Dusts'.[1126] The article states that very small particles of silica, asbestos and coal are dangerous because they may not be cleared from the lungs by coughing and identifies the circumstances in which asbestos may pose a risk to health:[1127]

At a glance

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Judgment (767 paragraphs)

Miller v The State of South Australia & Ors [2025] SAET 119 (31 October 2025)

Parties

Legislation Cited (10)

Cases Cited (38)