Todd v Bluescope Steel

Court of Appeal (NSW)|2006-09-20|Before: Kearns J

CITATION : Todd v Bluescope Steel (AIS) Pty Limited [2006] NSWDDT 33

PARTIES : George Todd (Plaintiff) Bluescope Steel (AIS) Pty Limited (formerly BHP Steel (AIS) Pty Limited) (Defendant)

Dust Diseases Tribunal :- asbestosis divisibility of asbestosis exposure with defendant and earlier exposure CATCHWORDS: assessment of relative exposures life expectancy general damages damages pursuant to Griffiths v Kirkemeyer and Sullivan v Gordon and consideration of s15B of Civil Liability Act.

LEGISLATION CITED: Civil Liability Act 2002

Griffiths v Kirkemeyer (1977) 139 CLR 161 ; CASES CITED: Sullivan v Gordon (1999) 47 NSWLR 319; Werner v Krahe [2002] NSWCA 168

DATES OF HEARING: 16/08/06, 17/08/06, 11/09/06, 12/09/06, 20/09/06

Mr D G Letcher, QC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: Mr T M Rowles instructed by Sparke Helmore appeared for the Defendant

Outline 1. The plaintiff has asbestosis. That much is conceded by the defendant. The plaintiff seeks damages for this illness.

Asbestosis is a divisible disease. What that means in the context of this case is that the defendant is not liable for the whole of the damage suffered by the plaintiff as a result of his exposure to asbestos, but is liable only to the extent of the damage occasioned as a result of his exposure to asbestos whilst in the employ of the defendant. This has a significance because before the plaintiff was exposed to asbestos in the employ of the defendant, he had an earlier period of exposure when he worked at a shipyard in Belfast for Harland & Wolff (the shipyard exposure).

The plaintiff was employed by the defendant (the steelworks) from 1st November 1955 until about 1957 and then again from about 1960 until about 1982. In these periods, he alleges that he was exposed in the course of his employment to asbestos dust and fibre and, as a result, contracted asbestosis.

The liability issue in this case is exposure. Mr Rowles, counsel for the steelworks, does not dispute that the plaintiff had some exposure in the course of his employment with the steelworks. The exposure issue has two aspects. The first is that Mr Rowles says that the extent of his exposure during his employment at the steelworks is in issue. The next is the relative amount of exposure at the steelworks compared to the shipyard exposure.

At the outset, I would indicate that I accept all witnesses on all issues as witnesses of truth. There are some discrepancies and, where they are significant, I have sought to deal with them.

The shipyard exposure 6. The plaintiff commenced work for Harland & Wolff in 1939. He worked on the construction of ships as a fitter's labourer. He was the general hand for the fitters. He worked inside the ships. There were steam pipes everywhere that were insulated with asbestos rope. He was sometimes around other labourers whilst they were applying the asbestos rope after he had fitted the pipes. He did this work for about eight to nine months.

In 1940, he commenced his apprenticeship with Harland & Wolff as a ship welder. After five years' apprenticeship, he became a tradesman and continued working for Harland & Wolff until about 1955. He worked on the construction of ships, including aircraft carriers, frigates, ocean liners, oil tankers, cruise ships and whaler ships. He did that work intermittently over that period. Sometimes, when a ship was finished, he was out of work until the next shipbuilding contract commenced. Sometimes, he was out of work for up to six months. He estimates that over the entire period he worked for Harland & Wolff, he was without work for about four to five years. He worked on the inside and outside parts of the ships, but mainly inside. He worked in all areas of the ships, including the boiler rooms and engine rooms. His outside work included welding around the propeller shafts. Inside the ships, the steam pipes were covered in asbestos ropes. The pipes were initially welded by a plumber's welder and his job was to weld the flanges for the pipes to the bulkheads on the ships. The pipes were not covered in insulation when he did this. The insulation was applied afterwards.

In his affidavit (Exhibit PX1), the plaintiff said that he did not work in the vicinity of the workers who applied the insulation to the steam pipes. That was the subject of some oral evidence which is not entirely clear. The plaintiff had difficulty concentrating at times and though I accept him as a witness of truth, I think his ability to focus on some of the questions was affected by his condition. His evidence about others doing lagging work in the holds of the ships when he was welding varied from denial to acceptance to confusion as to the meaning of "lagging" and, when that was clarified, to denial. I do not for a moment think that there was anything sinister in the plaintiff's answers. He was obviously struggling in giving his evidence, but the denial at T4.37 appears to be inconsistent with the acceptance at T4.08-15. I thought some of his answers were merely agreeing with questions put to him without his focussing his mind on the questions. I would put very little weight on his admission that laggers were working in the holds of ships at the same time he was. The evidence, in any event, is of little value because it does not cover the extent to which this was done, if at all. Nor does it deal with what proximity the laggers were working in relation to the plaintiff. Further, the evidence rests with the process being a wet process. The only other evidentiary material touching upon this is the history in Dr Johnson's report of 15 August 2006 when the plaintiff could not recall whether laggers worked in his vicinity.

The plaintiff agreed with a suggestion put to him in cross-examination that about seventy-five to eighty percent of the work that he did would have been inside the holds of ships. This is consistent with his affidavit.

In the course of his work, he used asbestos gloves and asbestos armlets to protect himself and his clothing from burns. Later, towards the end of his apprenticeship, he received leather jackets and did not use asbestos armlets after that.

There was a lot of asbestos rope around the pipes throughout the ships and he regularly walked through these areas.

In his affidavit, the plaintiff deals with the hours per day he was exposed to asbestos. He says that he wore asbestos gloves and armlets for about six to six and a half hours per day. Dr Foster has a history, he says he was exposed to asbestos every day while he was working for eight hours . The plaintiff was cross-examined about this and the upshot of the cross-examination was that the plaintiff considers that Dr Foster has this history incorrect. In cross-examination, he adhered to his estimate of six to six and a half hours a day exposure.

The exposure at steelworks 13. Neither in the plaintiff's evidence, nor in any of the other evidence is there any distinction made as to the plaintiff's work duties in the two different periods of work that he had at the steel works.

The plaintiff was employed as a welder, although he was classed as a boilermaker. He worked everywhere, including blast furnaces Nos 1 - 5, open hearths Nos 1 and 2, the coke ovens department, the sinter plant, the electric steel department, the BOS and the foundry. He was employed in what was called the "flying squad" or the "flying gang" with about twelve other welders.

He worked on the blast furnaces when they were shut down for maintenance. The blast furnaces were large, steel structures. The inside of these structures had an inside lining of asbestos which was then covered with refractory brick. When the blast furnace was shut down for maintenance, the asbestos lining and refractory brick was removed by special gangs before the welding was done. It was removed from its position in situ in the furnace, but it was not removed from the site and was left on the ground and was on the ground when the welders came to work on the furnaces. The process of removal was undertaken while the welders worked on the furnaces and the process of removal was a very dusty process. In his affidavit, the plaintiff said that he generally worked on the outside of the blast furnaces, but also worked on the inside of No. 4. When he was cross-examined, he said that most of his work was on the inside of the furnaces. He identified working on the maintenance of four blast furnaces, being Nos 1, 2, 4 and 5. A maintenance project lasted about six weeks and in respect of each furnace, occurred once or twice a year.

The plaintiff worked on furnaces and open hearths Nos 1 and 2. He welded scaffolding, brackets and stanchions and carried out running repairs. He worked near the bricklayers. There were insulation blocks of Hardies 85% Magnesia all around the open hearths. These were lightweight blocks and workers, including the plaintiff, often hit one another over the head with these blocks. Under the furnaces, there was a pit where all the debris from the bricks and asbestos insulation and other rubble would fall. Bulldozers were used to pick up and clear the dirt away and this stirred up a lot of dirt and dust and created a dusty atmosphere.

Not all the demolition work on the furnaces had been done before the plaintiff attended to carry out the construction of scaffolding work. There was some confusion as to whether the plaintiff himself did work in collapsing the roofs of open hearths, but I think the evidence supports the view that he did.

There were steam pipes around the furnaces and throughout the steelworks insulated with asbestos rope.

The plaintiff wore asbestos gloves and armlets from 1955 to about the mid-1960s. They were dry and brittle. He sometimes wiped his nose on the gloves and armlets. Dust and fibre came off them regularly.

The steelworks was a very dusty place, generally speaking.

In one part of the plaintiff's evidence (T8.4), there is a question and answer that appears mysterious as follows:

Q: I am sorry about that, Mr Todd. A: No, it didn't do any harm.

In fact, that question and answer has no relevance or reference to the evidence in the case. It was an exchange that occurred after I drew Mr Rowles's attention to the fact that he inadvertently had his foot the plaintiff's oxygen line.

For a time, he was the plaintiff's foreman. He corroborated the plaintiff's evidence of exposure to asbestos dust and fibre and added detail.

He started at the steelworks in 1943 as an apprentice boilermaker, became a boilermaker, then foreman, then went onto staff and was general foreman in charge of the flying squad or flying gang.

The work of the flying gang involved crane repairs, general maintenance, furnace repair, everything .

Mr Tressitor remembers the plaintiff. The plaintiff always worked under his supervision, although not under his direct supervision when he became general foreman.

Mr Tressitor was shown the plaintiff's affidavit, Exhibit PX1. He had been shown it earlier by an investigator, Mr Keenehan. His evidence was to the effect that PX1 contained an accurate account of the plaintiff's working conditions.

Mr Tressitor gave evidence that when a blast furnace was taken down for a reline, there were all trades involved in working there. The job was usually done as quickly as possible. When the brickwork was disturbed, there was dust and debris on the ground and in the atmosphere. There was always dust at the steelworks .

He gave evidence that steampipes were lagged with asbestos. The asbestos was in the form of moulded sections and rope. He recalls laggers using a slurry for the purpose of lagging steampipes. Steampipes were all through the works in every department.

Welders used long gauntlets to protect them from heat. The hand section was a woven asbestos.

Open hearth furnaces were relined and when done, this would last a few months. The clear inference from this is that the open hearth furnaces had to be relined every few months. This job entailed ripping all the bricks out. This was a job which was sometimes done by members of the flying squad. In cross-examination, however, on this point, the following exchange occurred (T32.7):

Q. Indeed, so far as direct work in relation to the applying of insulation materials or the removal of insulation materials, they were tasks that were done by other workers. A. True . Q. Indeed, so far as your gang was concerned they never directly did that sort of work, I suggest to you. A. We didn't handle it at all .

In the light of this discrepancy which was not cleared up and the plaintiff not having given evidence of being directly involved in the removal of insulation, I do not think I should infer or find that he was so directly involved.

The soaking pits were adjacent to the open hearth. The process in the soaking pits was a hot process. Recuperator equipment kept the process hot. The flying squad maintained quite a few of the recuperator stacks. This equipment was lined with asbestos I reckon . Should this piece of evidence have stood on its own, it might not be very persuasive evidence, if persuasive at all, of the presence of asbestos. In the context of the running of the case, however, I think this is a different matter. The evidence was given in the context of evidence being led as to the presence of asbestos. It was also in the context of insulation being required for hot processes. It was also in the context of the hot process insulation being essentially asbestos. Also documents 177 and 182 in Exhibit PX6, being a selection of the defendant's discovered documents, reveal the presence of asbestos in the soaking pits and, in particular, on the stacks. The defendant did not call any evidence on this point and, accordingly, I accept this evidence of Mr Tressitor.

The steelworks generally was a dirty, dusty place.

The plaintiff was one of the better welders and he would be sent out to major jobs where other trades were working around him. This was generally in hot areas.

There were steampipes in the BOS plant and, indeed, in every department.

There were tasks done by the flying squad that might not have involved the plaintiff in being exposed to asbestos, for example, maintenance and repair of cranes, although sometimes this work was done in an atmosphere where there was asbestos dust and fibre as sometimes cranes were in areas where hot processes were involved or where there were steampipes.

He worked as a tradesman's assistant with his father at the steelworks for a short period from May 1972 to March 1973 and that was with the flying squad. At the time, Mr Tressitor was the main foreman . I took that to mean that he was the foreman directly in charge of the flying squad at the time.

He described the work at No.1 open hearth where members of the gang would go in and have to clamber over rubble of different products. It was dirty and dusty when that was done. This included bricks described as yellowish-grey and one metre by eighteen inches by two inches. This description, though not identical, has significant similarity to a description later given by Mr Hillard, when he was describing Hardies insulation lining for furnaces and I accept this is what Mr Todd was describing. I am confirmed in that by his evidence that this material lined the inside walls of the furnace. In his twelve months at the steelworks, he worked a total of about three weeks at the open hearth furnace.

He described that when the open hearths were being rebuilt, the materials earlier described were used. He saw materials that were stacked on pallets and there were cardboard cartons lying around the floor. This included insulation materials that had been delivered on the pallets. The insulation materials were in cardboard boxes and what was lying on the floor were boxes both full of insulation materials and empty. The workers used to sleep on the empty cartons.

There was a lot of pipework around the open hearth. It was insulated with compressed fibro. This was about four inches in diameter and about one inch thick. It was dusty to touch. It was often broken and brittle. This description applied to pipework generally around the steelworks. The flying gang often had their lunch by such pipework.

When the rubble was cleared out of the open hearth furnaces, it was done so with the use of brooms and shovels and this was a very dirty and cloudy process.

The dirt and dust from the open hearth furnaces was from rubble of different products.

From early 1962 to late 1963/early 1964, Mr Prentice worked in the flying squad as a boilermaker. He said the plaintiff was his welder and he worked mostly with him.

He worked in a number of different departments in the No.1 works, including No.1 open hearth, blast furnace No.3, No.2 open hearth and the coke works.

He said there were pipes everywhere. They were covered with white-grey material. He was near the pipes all the time. There was always dust from around the pipes of different colours.

There was dust on the floor all the time and people would walk over it and this would often be stirred up into the atmosphere. The dust was, or included, lagging from the pipes. There was dust of different colours in the atmosphere and where it came from would depend on the direction from which the wind was blowing.

He worked in the open hearth furnace demolition. This involved cutting a steel beam called a "stringer" and the furnace would then come down. There were dust clouds everywhere. In cross-examination, it was suggested to him that the furnaces were stripped and the materials moved before the flying squad came in. He did not accede to this. He agreed that the flying squad was not in the furnace when it was knocked down, but they were working in the vicinity of it, and when it was knocked down, there was a lot of dust.

Asked as to the proportion of his work in hot areas as distinct from cold areas, he said he worked in and around hot areas all the time. In cross-examination, he said he worked on crane tracks, but he would not agree that that was fairly common. Indeed, he said mostly the flying gang was put in and around No.1 open hearth, the soaking pits, the blast furnace and the coke works.

The steelworks was generally a dirty and dusty place.

Mr Hillard is a retired bricklayer. He worked at the steelworks essentially from 1958 to 1982. He became junior foreman in 1971 and senior foreman in 1975. He was foreman in charge of bricklayers. From 1980 to 1982, he worked at Steelhaven.

Before he worked at Steelhaven, he worked in a number of different departments at the steelworks, including No.1 open hearth, No.2 open hearth, BOS and flat products. He was aware of the flying squad.

He identified products he used as a bricklayer at No.2 open hearth. It included Hardies insulation asbestos which was used against the internal steel lining of the furnaces. He described it as whitish-brown and three feet by two inches by six inches. The transcript records the three feet dimension as two feet. My recollection and note is that he said three feet. This would also be consistent with his statement, Exhibit PX8.

Open hearth furnaces were demolished and rebuilt with a frequency of about one per month. I take it that he meant by that that not every furnace was being demolished and rebuilt once a month, but every month there was a furnace being demolished and rebuilt. Later, he said there was probably always an open furnace off for repair .

The demolition of the asbestos material was done a lot by hand, using a bar and shovel. It was thrown into a skip or wheelbarrow or other container. The product was dried out, dirty, dusty, it fell to pieces, it disintegrated.

The bricklayers then laid asbestos in the rebuild. The asbestos arrived on pallets in cardboard boxes. It was opened by a bricklayer's labourer outside the furnace. It was put in the furnace by hand and stacked at the feet of the bricklayer.

There were doors to the upper part of the furnaces. They were water-cooled with flexible hoses that were lagged with asbestos rope.

For heating the furnaces, there was what Mr Hillard called "the gun" on each side of the furnace. The gun was water-cooled. The pipes carrying the water were lagged with asbestos rope.

There were a lot of pipes. Some were covered with asbestos rope and some not.

The furnaces and pipes in the blast furnace department and tin plate mill were lagged in the same way as the furnaces in the open hearths. Pipes around the outside of the furnaces were sometimes lagged with asbestos rope. Hardies asbestos was also used in roof sections and under the floor of re-heat furnaces in the tin plate mill. This was renewed when the furnaces came down for repair. This created a lot of dust.

In the blast furnace department, there were pre-heater stoves that were insulated with Hardies blocks. Hardies blocks were also used to insulate the inside of ladles.

There was asbestos in the furnaces and roofs of the electric steel department. Replacement of this asbestos created a lot of dust.

Mr Hillard described the furnaces as being demolished with contempt . In some current parlance, it might be described as "with attitude". His point was that it was done with vigour and speed and without heed to some of the consequences especially relevant in this instance, namely the creation of dust.

When Mr Hillard was at Steelhaven from 1980 to 1982, there were refractory and insulation materials stored there. Large quantities of Hardies asbestos were stored there. He estimated that there would be about a hundred pallets at a time of Hardies block asbestos stored there. There was also stored there asbestos insulation designed to go around pipes.

At the conclusion of his evidence in chief, a statement of Mr Hillard was tendered and became Exhibit PX8. It was taken by Mr Keenehan, then of Itech Investigations. The statement is dated 28 April 2004 which would suggest that it was not taken in relation to this plaintiff's claim. It not only corroborates the evidence Mr Hillard gave, it augments it. Some points from it are:

· Mr Hillard had up to 160 people working on an open hearth reline;

· The stoves at the blast furnaces were lined with a large quantity of Hardies asbestos block;

· The blast furnace ladles were worked on all the time with at least one down for repairs all the time;

· There were trainloads of asbestos stored in the shed at Steelhaven;

· On an open hearth repair, thirty plus pallets of asbestos block would be used on a full reline. There were nine boxes of the asbestos blocks on each pallet;

· A full rebuild of an open hearth furnace would use enough asbestos block to build a house over forty-two squares.

The point of the material in the previous paragraph is not that the plaintiff was working with all this asbestos all the time, but it gives some sense of the quantity of asbestos used in parts of the steelworks where the plaintiff worked and where he was exposed to dust.

Mr Hillard was cross-examined along the lines other witnesses were, namely, when a furnace is demolished, the refractory brick workers pull out the insulation materials, that is, pull them down to the floor, the materials are then taken away to allow reconstruction and then the boilermakers and others come in to do the reconstruction. Mr Hillard agreed with some of the thrust of this cross-examination, but baulked at the last suggestion. He said that the removal of the materials was often done after the boilermakers had started the reconstruction. Even worse, a furnace is a large structure and the work was done in sections. A section would be demolished. The boilermakers would come in and work on that section while the refractory brick workers proceeded to demolish another section. In this instance, the different trades could be working twenty feet apart.

Exhibit PX6 being extracts from the steelworks' discovered documents contains documentary material confirmatory of the presence of asbestos at various parts of the steelworks where the plaintiff worked. I have already referred to some of those documents (177 and 182) in relation to the soaking pits. I need not detail the information in any of the documents in this exhibit. It is confirmatory of the oral evidence, but it does not add to it. Mr Letcher QC who appeared for the plaintiff referred me to numbers 43, 3 and 154. Number 43 reveals that in 1984, the steelworks estimated that it would take one truck per week over two years to remove the asbestos. Document 3 lists some places from which asbestos had been removed and the dates thereof. Document 154 contains a number of certificates of analysis of samples showing samples, in some instances, were asbestos in one form or another.

The plaintiff tendered selected answers to interrogatories from the matter of Steveceski v BHP Steel (AIS) Pty Limited and this became Exhibit PX7. The answers to the interrogatories in that case do not advance the oral evidence in this case.

The plaintiff also tendered answers to interrogatories in these proceedings and they became Exhibit PX11. I do not think that they are sufficiently useful to advance the evidence any further. The first question is too general for the answers to be of any assistance. This is something I drew to counsel's attention on an earlier occasion when there was an issue about the interrogatories. I pointed out that Question 1 could be interpreted in a way that did not demonstrate whether it covered the whole or only part of the period. The point is amply demonstrated by the following question and answer:

Q 1. During the period 1 November 1955 and 23 September 1982 at the Port Kembla Steelworks did you use in the: (a) Blast Furnace Department … any of … (v Asbestos gloves. 1.A (a) In relation to the Blast Furnace the defendant having made enquiries of its present and former officers, servants and agents who might have knowledge or information of the matters enquired of and from searches of such records as now remain in its possession of which it is aware believes (i) through to (v) .

From the plaintiff's case, asbestos gloves were not used after the mid-1960s and, yet, the answer is correct. It is correct because in the stated period (1 November 1955 to 23 September 1982) asbestos gloves were used. The answer does not help in determining in what part of the stated period they were used and that is not the fault of the answer. I find that the answers do not assist me in this regard.

The plaintiff has asbestosis and it was caused by his exposure to asbestos dust and fibre at the shipyard and also at the steelworks. Of that there can be no doubt. The only liability issue was exposure in the sense I have set out in paragraph 4 above.

In light of the evidence I have set out above in respect of which I shall pronounce some findings, the plaintiff is entitled to a verdict.

The amount the plaintiff is entitled to recover will be dependant on the extent of his exposure to asbestos dust and fibre at the steelworks compared to his exposure to asbestos dust and fibre overall. The case has been conducted on the basis that that is the proper approach for determining the extent of the injury caused to him by the steelworks. It has not been suggested that there is any other factor that is relevant.

I need, therefore, to determine the extent of the plaintiff's exposure to asbestos at the steelworks compared to his exposure at the shipyard.

This exercise must, of necessity, be a broad brush one. Any attempt at precision would be wrong and could only lead to error.

I propose to set out hereunder matters I consider relevant and significant in trying to come to a view as to the relative exposures at the two places of employment. No one matter can be given any particular weighting. They are all taken into account in coming to a view as to the relative exposures.

(a) The plaintiff's years of exposure at the shipyard totalled about eleven years. His years of exposure at the steelworks totalled about twenty-five years.

(b) The work at the shipyard was new work. The point here is not that new asbestos is less harmful than old or used asbestos. The point is that new asbestos was likely to be more stable in the sense that it would be less likely to be released into the atmosphere.

(c) The plaintiff's daily exposure at the shipyard was about six to six and a half hours. The evidence does not disclose expressly the hours per day the plaintiff was exposed to asbestos dust and fibre at the steelworks. It seems likely and I find that on some days he was exposed for more than six to six and a half hours and, on other days, was exposed for a lesser period of time.

(d) I find also that there was exposure to asbestos every day at the steelworks to some extent.

(e) The intensity of exposure at both places was more when he used the gloves and armlets.

(f) I find that the intensity of exposure to asbestos at the shipyard on a daily basis was more or less constant.

(g) When he used asbestos gloves and armlets, the intensity was at a higher level than when he did not.

(h) I find the intensity of exposure at the steelworks on a daily basis varied depending on the work the plaintiff did. When working on projects where asbestos was being disturbed, the intensity of his exposure was high. When working on projects where asbestos was not being disturbed, for example on cranes, even in hot areas, the intensity of exposure was relatively low.

(i) The steelworks was a very dirty, dusty place and the shipyard work was new work. There was no evidence as to the presence or nature of other dusts at the shipyard, but one would expect there must have been some other dusts.

(j) I accept the plaintiff's assessment that there was not as much dust in the shipyard as there was at the steelworks. I find that assessment of the plaintiff is in both instances a reference to dust generally and is not a reference to asbestos dust alone.

(k) I find that the concentration of asbestos dust and fibre in relation to overall dust was higher at the shipyard than it was at the steelworks.

(l) I find that most of the plaintiff's work at the shipyard was in a more restricted and confined space than his work in the steelworks.

(m) Overall, I find that the intensity of the plaintiff's exposure on a daily basis at the steelworks exceeded the intensity of his exposure on a daily basis at the shipyard.

I do not accept the eighty percent / twenty percent split that was arrived at by the Dust Diseases Board and acceded to by the plaintiff. In fairness to the plaintiff, I am not sure that he was entirely in agreement with that split. In his affidavit, he did say that he agreed with it. In his cross-examination, however, he said that he did not come to that conclusion and I had the impression that he might not have come to that conclusion if it had not been suggested to him. At the end of his cross-examination, he said there was not as much dust at the shipyard as there was in the steelworks. Further, the material upon which the Dust Diseases Board came to its view, has not been presented in the evidence. Further, this is a decision that I have to make on the evidence before me and I do not think I should be influenced by the view expressed by the Board.

For similar reasons, I do not accept the fifty/fifty split put forward by Dr Johnson.

Practically all the matters that I need to consider in coming to a view as to relative exposures suggest that the exposure at the steelworks was greater than exposure at the shipyard. There are some matters that tend the other way.

Overall, however, I think a fair approach is to start with the fact that the plaintiff's time at the steelworks was about twice as long as his time at the shipyard and then bear in mind that the overall burden of his exposure on a daily basis was more at the steelworks than it was at the shipyard. Doing my best, I think that a fair apportionment is three to one. That is to say that the plaintiff's exposure at the steelworks compared to his lifetime exposure to asbestos was seventy-five percent.

I shall proceed now to assess damages. I shall do so on the basis that the whole of the plaintiff's condition of asbestosis is compensable and then I shall allow the plaintiff seventy-five percent of the figure arrived at.

Life expectancy 82. I proceed to determine this issue first because it is a matter that affects most of the heads of damage that are claimed.

The materials on life expectancy are as follows:

(a) Dr Foster who saw the plaintiff on 13 June 2006 then opined that he had less than three months to live. Her view was expressed as follows: I estimate life expectancy to be less than three months. This is arrived at by the following: · Severe respiratory failure requiring supplemental oxygen for at least 15 hours a day. This is not stable respiratory failure, but it is on a deteriorating path as indicated by the progression of his symptoms and findings and the known clinical behaviour of asbestosis. · Any respiratory infection could precipitate death by an increased respiratory load and further impair his ability to ventilate sufficiently, even with increased oxygen. · Respiratory co-morbidity: kyphoscoliosis and ankylosis of vertebrae further limiting his ability [to] maintain ventilation in his severely impaired lungs ; (b) Dr Foster provided some supplementary reports without further seeing the plaintiff. In a report of 22 August 2006, she then stated that the plaintiff may well have another couple of months now. She expressed her view as follows: Estimation residual life span of a dying person is a task fraught with inaccuracy and only partially related to medical knowledge, logic and experience. It is therefore not suprising that I have under estimated Mr Todd's survival time from when I saw him on 13 June 2006. He may well have another couple of months now, particularly as winter is turning warmer now and respiratory infections can be expected to reduce. That view should be read in light of her comment in her supplementary report of 17 June 2006 where she said any trivial respiratory infection could be the precipitating cause of his death ; (c) Dr Johnson, in his report of 15 August 2006, estimated a life expectancy from then of three to six months, but he did not elaborate on the reasons; (d) Dr Hart, in a report of 26 July 2006, estimated life expectancy in months only. 84. When I saw the plaintiff, when he gave evidence at his residence on 16 August 2006, he was obviously struggling at times even with oxygen to get his breath. He sometimes struggled to utter one syllable answers. I do not think, however, that I should allow this to influence my assessment of the medical opinions in this case.

As Dr Foster has pointed out, estimation of life expectancy is fraught with inaccuracy.

If one were to take literally the latest view expressed by Dr Foster and the extreme end of Dr Johnson's prognosis, then the plaintiff's life expectancy lies somewhere between 22 October 2006 and 15 February 2007. It seems to me that the plaintiff's hold on life is particularly precarious and I am concerned by Dr Foster's observation that any trivial respiratory infection could be the precipitating cause of his death. I note her observation that respiratory infections can now be expected to reduce considering the time of the year. However, I think, in all the circumstances, it is appropriate to take 30 November 2006 as the estimated date of death of the plaintiff.

General damages 87. The plaintiff was born on 6 February 1921 so that he is now 85 years old. He married on 25 December 1942 and has three children, four grandchildren and three great-grandchildren.

Other health problems 88. Apart from his condition of asbestosis, the plaintiff has had other health problems.

He was a smoker from 1939 to early 1983, smoking ten to twenty cigarettes per day. Each year, however, he stopped smoking for a couple of months.

In 1977, he had a left hip replacement. In 1981, he had a right hip replacement. In 1994, he had revision of the left hip replacement. In 1995, he had revision of the right hip replacement.

He ceased work in 1982 because of his hip replacements.

In 1983, he noticed his breathlessness getting worse. He did not say in what way or to what extent it was getting worse. This was about the time he stopped smoking and the evidence does not permit me to say that any deterioration at that stage was related to his asbestosis. In this regard, I note that Dr Johnson thought that it could not be assumed that asbestosis was the cause of his breathlessness then and there is no positive evidence to suggest that it was.

In May 2004, he had a fall resulting in a shoulder reconstruction.

The defendant tendered some clinical notes (Exhibit DX2) which are barely legible. Insofar as they can be read, they disclose the following:

· on 12 July 1962, the plaintiff had x-rays of his right wrist and cervical and thoracic spine and degenerative changes were shown in the cervical spine; · in 1963, he had pain in the cervical spine and back; · in October 1963, there is recorded a knee injury at work; · on 23 June 1964, an x-ray of the thoracic spine showed scoliosis; · on 22 May 1967, there was a normal ECG.

The defendant also tendered a document (Exhibit DX3) containing a summary of radiological and pathology reports from 1962 to May 1997. I do not propose to detail the content of that document. It may be summarised by saying:

· the plaintiff had some radiological investigations of his spine over those years. They showed significant degenerative changes in the cervical, thoracic and lumbar spines, fusion at L1/2, scoliosis, multiple level disc pathology, osteoporosis and osteoarthritis; · there were chest x-rays which showed very slight emphysematous changes in 1967, fibrotic changes in 1975, minimal bronchitic changes in 1987 and changes of chronic obstructive airways disease in 1992; · there were x-rays of other parts of the body showing osteoarthritis.

On 6 November 1992, Dr Feneley referred the plaintiff to Dr Deshpande. In his referral letter, he wrote:

He has had bilateral hip replacements which according to the x-rays are now unstable, he has a horrible looking spine which is giving him I think some sciatic pain on the left side, he has great difficulty in getting out of a chair for instance and he is in almost constant pain in the lower back, left hip and thigh region.

On 18 October 1994, the plaintiff was admitted to St Vincent's hospital for revision of his left hip replacement and was in hospital until 5 November 1994.

On 2 March 2005, Dr Hart reported that the plaintiff was reasonably stable so far as his lung condition was concerned. He had some shortness of breath, but his mobility was also limited by his musculoskeletal problems.

On 25 July 1995, he was admitted to St Vincent's Hospital for revision of his right hip replacement and was in hospital until 9 August 1995. He gave evidence that he was able to get about easily after that operation.

The plaintiff said he had not noticed any restrictions in his ability to get around following his second hip operations and he said he does not have problems with symptoms from his shoulder reconstruction if he tries to do any lifting or carrying.

On 8 July 2004, the plaintiff was in hospital following a fall on 22 June 2004 in which he fractured his left arm and pelvis. He needed a special machine to assist him with breathing when in hospital. He was in Port Kembla Hospital until 16 July 2004.

Breathing problems 102. In the 1980s, he commenced to have problems with his breathing. He saw Dr Finley who diagnosed asthma and prescribed medications, but his breathlessness increased.

For his breathlessness, the plaintiff was referred to Dr Hart and saw him on 21 January 2005. Dr Hart referred him to the Dust Diseases Board. In a report of 26 July 2006, Dr Hart has recorded a history that the plaintiff was reasonably stable until his fall in May 2004 when he fractured his pelvis and shoulder and that he was in hospital for seven weeks following that. He had a history of worsening shortness of breath since then. On reviews, there was progressive worsening shortness of breath. In August 2005, minor exertion resulted in significant oxygen desaturation. On 26 July 2006, spirometry revealed severe restrictive ventilatory defect with no significant improvement on broncho-dilators.

In November 2005, the plaintiff's condition had deteriorated to the extent where he required home oxygen and he is on home oxygen virtually twenty-four hours a day.

Now the plaintiff cannot walk more than about ten metres without stopping to gain his breath. He might have to stop for ten minutes to regain his breath. He becomes breathless even combing his hair.

He very rarely leaves his home because of his breathlessness. He is unable to attend functions or go on holidays. He is no longer able to visit his family in the United Kingdom, Coffs Harbour or Port Macquarie.

He is upset that he cannot play with his grandchildren and great-grandchildren as he would wish.

His breathlessness has made him upset. He knows people who have died from the disease and he is afraid for the future.

Turning then to the medical evidence, Dr Foster saw the plaintiff on 13 June 2006. She noted him to be breathless, even without apparent exertion. After sitting back in his electrically operated recliner chair, his oxygen saturation dropped to eighty percent. He was cyanosed. Spirometry revealed a severe restrictive pattern. He had osteoarthritis in his hands. His spine was ankylosed and rigid. Dr Foster diagnosed asbestosis.

Dr Foster provided a report of 17 July 2006 in which she dealt with her review of some materials. The first indication of asbestosis in the materials was in clinical notes of 21 October 1994. Spirometry in 1989 showed the plaintiff with a restrictive pattern with reduction in function shown in later spirometry. The pattern was not consistent with any significant airways flow limitation. This supports restrictive defect due to asbestosis and not obstructive defect due to smoking.

In a further report of 22 August 2006, Dr Foster dealt with the plaintiff's needs. In addition, she opined that the plaintiff's breathlessness will get worse as his asbestosis progresses.

Dr Johnson saw the plaintiff on 15 August 2006. He recorded a history that the plaintiff became exhausted shaving and that he need to shower with a chair because of his breathlessness. He was essentially in agreement with Dr Hart and Dr Foster as to the plaintiff's diagnosis being asbestosis and its cause being his exposure to asbestos in the course of his employment at the shipyard and at the steelworks. He assessed his disability from his asbestosis at one hundred percent.

I think a fair assessment of the evidence is that the plaintiff has asbestosis. The first presence of it was detectable by the plaintiff probably in about 1989 when spirometry then detected a restrictive pattern. I do not find on the evidence that the breathlessness in the early 1980s or in about 1983 was related to the asbestosis. I find that the asbestosis first manifested itself in breathlessness from 1989. However, this did not have much impact on the plaintiff at the time and for a time thereafter. I base that on:

· the plaintiff's evidence that he had no trouble getting around following his hip operation in 1981. He was then speaking in the context of his hip, but it seems fairly evident that he had no trouble getting around for whatever reason;

· the plaintiff continued at work until taking retrenchment in 1982 and he took retrenchment because of his hips;

· up until 2000, he was able to mow his lawns and without difficulty;

· Dr Johnson was unsure of the cause of the breathlessness in 1983 and it could not be assumed that it was due to the asbestosis. There is no positive evidence that it was due to the asbestosis. 1983 coincided with the end of the plaintiff's long history of smoking.

I accept that from 1989, the plaintiff's breathlessness was due to asbestosis. It has deteriorated, but to all intents and purposes, I find that the plaintiff was able to function normally without disability caused by his breathlessness until about 2000. Thereafter, the plaintiff has been restricted by his breathlessness, but he was relatively stable up until about May 2004 when he had his fall. Thereafter, his breathlessness deteriorated significantly. He was sufficiently ill to need to be referred to his specialist in January 2005 and has deteriorated so much that he has needed home oxygen since November 2005 and he uses the oxygen virtually twenty-four hours per day. There is little he can do. He can barely walk. The slightest effort causes him breathlessness. Even from his current debilitated condition, he will deteriorate and, short of a sudden event, will deteriorate slowly to the point of his demise. He has been robbed, according to the life tables, of the last six years of his expected life. He has now lost much of the opportunity to enjoy family life, not being able to travel and visit family members.

I think a reasonable assessment for general damages in all the circumstances is one hundred and twenty thousand dollars ($120,000).

Interest on past general damages 116. Mr Letcher QC argues for interest to be calculated on two thirds of the general damages and for it to be calculated from 1983.

For reasons I have already expressed, I do not think interest should be calculated from 1983.

Nor do I think interest should be calculated from 1989 when I have found that breathlessness commenced because of the asbestosis. The reason for this is that the asbestosis appears to have had little impact on the plaintiff from 1989 until about 2000. There is little in the evidence about the plaintiff's condition from 1989 to 2000 and I do not think any significant part of the general damages is referable to a period before 2000.

I think it is appropriate to allow interest from 2000.

Considering the length of time that the plaintiff has had symptoms from 2000, the significant deterioration in his condition in 2004, the need for home oxygen in November 2005, his current debilitated condition which he has had for a time and his relative shortened life expectancy, I think it is not unreasonable to allow interest on two thirds of the general damages as being attributed to the past.

Accordingly, I allow interest on seventy-five thousand dollars ($75,000) at two percent (2%) for six years - nine thousand dollars ($9,000).

Past out-of-pocket expenses 122. I set out hereunder the content of the plaintiff's schedule of damages in relation to this item.

Period No. of years Description Cost per year Value 2002 to 2006 4 Lawn mowing once a fortnight $40.00 x 26 = $1,040.00 $4,160 2002 to 2006 4 Taxi expenses; average of one trip a week to and from shops/doctors $20.00 x 52 = $1,040.00 $4,160 Total $8,320

The lawn mowing is supported by paragraph 42 of Exhibit PX1. Mr Rowles's answer is that the lawn is not required to be mown fortnightly - it just does not happen . He submitted I should discount this figure to twenty-five percent of the amount claimed.

There was no challenge to paragraph 42 of Exhibit PX1 in the defendant's case. It is not a large item and I propose to allow it at four thousand one hundred and sixty dollars ($4,160).

The claim for taxi expenses is supported by paragraph 43 of Exhibit PX1. Paragraph 43 supports the figure claimed of twenty dollars ($20.00), but it does not support the use of a taxi once a week. This is said to be in the evidence of Kerrie Moynihan. Since about September 2005, she has provided care which has included taking her grandmother to do grocery shopping, taking her grandfather to Dr Hart and other appointments. The plaintiff says that the last time he was able to go to the shops was Christmas 2005. If Kerrie has been providing care including taking the plaintiff to appointments and her grandmother shopping since September 2005, it seems to me likely that this claim for out-of-pocket expenses should cease at about that time.

I propose to allow the claim up to 31 August 2005. That would allow about seventy five percent of the claim. Rounding it out, I propose to allow this claim at three thousand dollars ($3,000).

The total allowed for past out-of-pocket expenses is, therefore, seven thousand one hundred and sixty dollars ($7,160).

Interest on past out-of-pocket expenses 128. I allow interest as follows:

(a) four thousand one hundred and sixty dollars ($4,160) by four and a half percent (4.5%) per annum by four years, being seven hundred and forty-eight dollars, eighty cents ($748.80); (b) three thousand dollars ($3,000) by four and a half percent (4.5%) per annum by three years, being four hundred and five dollars ($405); (c) three thousand dollars ($3,000) by nine percent (9%) per annum by one year, being two hundred and seventy dollars ($270), Total: one thousand for hundred and twenty three dollars, eighty cents ($1,423.90).

Payback to Medicare Australia 129. The amount here is five hundred and twenty-four dollars, five cents ($524.05) supported by Exhibit PX9. I allow that figure.

Past care - Griffiths v Kirkemeyer (GvK) and Sullivan v Gordon (SvG) 130. The plaintiff claims assistance for lawn mowing from 19 February 2000 to 17 May 2002. He claims over this period at the rate of an hour a week. That rate is no doubt an average to accommodate periods when the lawn grows fast and is cut more frequently than at other times.

The evidence on when the plaintiff ceased to mow lawns is variable.

· In his evidence (T3.17), he said that he was able to mow until 2000. · In his affidavit (Para 42 of Exhibit PX1), he said he was not able to mow lawns since the late 1980s. · Raymond Todd said that the plaintiff was still mowing his lawns in 2004.

I was not addressed on these discrepancies. It seems to me unlikely that Raymond Todd's evidence is correct if Mrs Todd was mowing the lawns, which I accept, up until 2002. It is then the former of the remaining two that better fits with the other evidence. Mr Raymond Todd, I think, is probably mistaken in his recollection as to when the plaintiff was last mowing lawns, but I do not think he is likely to be so far mistaken that he would be recalling the plaintiff mowing lawns in 2004 if he had ceased in the late 1980s. I think the evidence in the affidavit simply contains a mistake.

I propose to allow this claim from 19 February 2000 to 17 May 2002 at the figures in the plaintiff's schedule, namely two thousand and fifty-three dollars, twenty-two cents ($2,053.22).

The next item is driving to and from doctors' surgeries which the plaintiff claims between 1 January 2005 and 31 December 2005 for a total of seven occasions. I do not propose to allow this item. It is said to have its support in Kerrie Moynihan's evidence, but she did not start assisting the plaintiff until September 2005. Further, I think this item is partly subsumed in the next one.

The next item is a claim for assistance with shopping, cleaning, vacuuming, laundry, getting the mail and personal care from 1 June 2005 to 20 September 2006.

The whole of the evidence on these items supports a claim for two hours per day up until the present. Both Raymond Todd and Kerrie Moynihan estimated offering assistance at two to three hours per day and shopping and paying bills. That is consistent with the plaintiff's evidence of the assistance being offered at two hours per day. Kerrie Moynihan tended to put it at the higher end of the range, but she acknowledged that some part of the time was simply talking to her grandparents and offering comfort.

The evidence does not satisfy me that before September 2005, services were provided to the plaintiff and, accordingly, I do not propose to allow damages for these matters before then.

I find that since 1 September 2005, care has been provided to the plaintiff and to his wife by Kerrie Moynihan and by the plaintiff's granddaughter, Leatrice, and by Raymond Todd to the extent of two hours per day.

Subject to one matter, there is no need to treat the care to the plaintiff or to his wife differently. The one matter is whether the care provided to the plaintiff's wife falls within the SvG damages as now governed by the recent amendments to the Civil Liability Act 2002 . Mr Rowles argued that they did not because the services did not satisfy the definition of "gratuitous domestic services" within the meaning of section 15B of the Civil Liability Act . This was because the provider, Kerrie Moynihan, was in receipt of a carer's pension and, therefore, was being "paid" within the meaning of that definition. The riposte of Mr Letcher QC was that the services provided are services that the plaintiff was providing and they were not paid services. In reply, Mr Rowles sought and was granted leave to send in a written submission on this point. He has not done so. On reflection, I think Mr Rowles's submission is partly correct. Gratuitous domestic services is defined as follows:

services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid.

The plaintiff was the person providing the service when he was able to. The injury has made him unable to provide the service any longer. The person who is now providing the service, being the service for which the compensatory damages are sought, is Kerrie Moynihan or Leatrice or Raymond Todd.

The question, then, is whether Kerrie Moynihan has been paid for the services. It is clear that neither Leatrice nor Raymond Todd have been paid for the services. To exclude the entitlement, what Kerrie has to be paid for is "services of a domestic nature". The phrase is not defined. What is known is that Kerrie is in receipt of a carer's pension. There is no further evidence about it. There is no evidence of the amount. There is no evidence of precisely what qualified Kerrie to receive the pension or precisely what the pension is paying for. There is no evidence as to whether she receives it for the care of her grandfather, her grandmother or both. If she is receiving it for the care of her grandfather alone, she is not being paid within the meaning of the definition in section 15B . The evidence does not satisfy me that Kerrie was being paid for services within the meaning of section 15B .

I propose to allow by way of damages an amount for care whether it be GvK or SvG from 1 September 2005 to 20 September 2006 at the rate of two hours per day. The allowance is calculated as follows:

1 September 2005 to 18 November 2005 - 11 weeks x 14 hours x $21.60, being $3,326.40;

19 November 2005 to 31 December 2005 - 6 weeks x 14 hours x $21.68, being $1,821.12;

1 January 2006 to 19 May 2006 - 20 weeks x 14 hours x $21.68, being $3,035.20;

20 May 2006 to 16 August 2006 - 12 weeks x 14 hours x $21.41, being $1,798.44;

17 August to 20 September 2006 - 5 weeks x 14 hours x $21.41, being $1,498.70.

In part of the period just dealt with, the plaintiff has claimed only one hour per week for GvK damages. However, he picks up the other one hour per week in the claim for past SvG damages. At this stage, I have found it convenient simply to deal with both those claims together.

Interest on past care 144. I allow interest on the figure of two thousand and fifty-three dollars, twenty-two cents ($2,053.22) (para 133) and on half the figure of eleven thousand four hundred and seventy-nine dollars, eighty-six cents ($11,479.86), namely, five thousand seven hundred and thirty-nine dollars, ninety-three cents ($5,739.93) at four and a half percent (4.5%) per annum from 1 September 2005 for twelve months. The reason I have allowed interest on half the figure of eleven thousand four hundred and seventy-nine dollars, eighty-six cents ($11,479.86) is because I consider half the care has been care the plaintiff previously provided to his wife and so does not qualify for interest. This reasoning is set out in more detail in paras 149-154. The allowance for interest is three hundred and fifty dollars, sixty-nine cents ($350.69).

Future GvK and SvG 145. The plaintiff claims at twenty hours per week up until the last two weeks of his life. Then he claims at fifty-six hours per week.

I see no reason to increase the care from fourteen hours per week up to the last two weeks of the plaintiff's life and I allow care at that rate from today to 16 November 2006, being two weeks short of the plaintiff's found expected date of death. Accordingly, I allow the plaintiff ten weeks by fourteen hours per week be twenty-one dollars, forty-one cents ($21.41), being two thousand nine hundred and ninety-seven dollars, forty cents ($2,997.40). Because this period is so imminent and short I see no need to discount for present receipt.

I think fifty-six hours per week in the last two weeks of the plaintiff's life is not unreasonable. Dr Foster deals with this in her report of 22 August 2006 at page 2 (Exhibit PX2). She does not specify an amount of time for the care required, but the workload required to assist the plaintiff in the last two weeks of his life will be significantly increased. I allow fifty-six hours per week for two weeks at twenty-one dollars forty-one cents ($21.41) per hour, being two thousand three hundred and ninety-seven dollars, ninety-two cents ($2,397.92). Again, because of the imminence of this part of the claim and the short time involved, it is not necessary to discount for present receipt.

There is a sense of unreality about the care increasing dramatically on 16 November 2006 and in some ways there could be under or over compensation in both periods. However, the assessment of damages under this head is not one that can be undertaken with precision and it is largely one of impression - Werner v Krahe [2002] NSWCA 168 per Foster AJA at [27].

It has not been necessary so far to dissect the care provided to the plaintiff from the care provided to his wife. This is because whether it be one or the other, the plaintiff has been compensated in damages.

It is necessary from 16 November 2006 (two weeks prior to the plaintiff's expected date of death) to dissect it because it is only up to that date that I have accommodated care for both the plaintiff and his wife.

To the extent that care has so far been provided for his wife as distinct from care for the plaintiff, it will be a measure of the continuing care she will need and will be compensable.

It is clear on the medical evidence and on the evidence of the plaintiff and Kerrie Moynihan that the plaintiff's wife does need care.

The evidence does not allow the dissection to be done with any precision. The evidence is as follows:

· paragraph 38 of the plaintiff's affidavit, Exhibit PX1, says that the plaintiff provided two hours' care per day for his wife;

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