Document QJRJ78XnoVn6mw9DRDX9E0RNo
FILE NAME Colonial Sugar Refinery CSR
DATE 1979 DOC CSR187
DOCUMENT DESCRIPTION Legal - Judgment in Joosten vs. Midalco
IN THE SUPREME COURT ) 1
OF WESTERN AUSTRALIA )
Heard -
Judgment
13 June 1979 17 18 24 25 & 27 September 9 October 1979
19
1979
No. 1052 of 1979 BETWEEN
JOAN
MARY
MACDONALD
JOOSTEN
Plaintiff
-and-
MIDALCO PTY LTD
Mr.
H.
W.
Olney
assisted by Mr.
K.
F.
Smart and instructed
;
by Taylor Smart & Co. appeared for the plaintiff
Mr. G. A. Kennedy Q.C. assisted instructed by Robinson Cox & Co.
by Mr. G. T. appeared for
Sadlier and the defendant
Authorities cited
~-
Cartledge v E. Jopling
Pickett v British Rail
& Sons Ltd. 1963 A.C. Engineering Ltd. 1978
Brown v John Mills & Co. 8 K.I.R. 708
Wright v Fleming
Dunlop Rubber Co. The Law of Torts
Ltd. and 5th Ed
I.C.I.
p
106
,
13
Donoghue v Stevenson 1932 A.C. 562 Skelton v Collins 1966 115 G.L.R. 94
758 3 W.L.R.
K.I.R.
955 255
In this tragic cause the plaintiff a 52 year old married woman who is a qualified stenographer seeks damages at common law because
of the fact that she contracted the disease known as Mesothelioma
whilst in the employ of the defendant between the month of September
1950 and early 1953.
On 28th February 1978 the Pneumoconiosis
Medical Board determined pursuant to s 8 of the Workers Compensation
Act that she was suffering from the aforesaid disease 100 and was
thereby disabled from earning full wages
However the plaintiff
now grounds her claim in negligence against the defendant and shall
refer to the full particulars alleged later
Whilst the defendant
has in its pleadings denied the nature of the injury suffered by the
plaintiff against
and the cause thereof at trial it was really not argued
It became clear on the medical evidence adduced that the
2
plaintiff is suffering from Pleural Mesothelioma caused by the
inhalation of blue
in the plaintiff's
asbestos fibre crocidolite pleura whilst working in the
and the lodging there defendant's office
near to its mill at Wittenoom and that the disease from which she was
suffering was first identified in February of 1978 although it had
revealed not been
by ray examination in early January 1975.
There
is no known cure for Mesothelioma and the plaintiff's life
expectancy is now very before the Court is as foreseeable
short
Apart from damages
to whether the plaintiff's
the only issue
injury was
Prior to 1939 asbestos was not mined in Australia to any great
extent
During the war years white asbestos fibre was used by the
building materials division of Colonial Sugar Refinery Ltd. the
parent of the defendant C.S.R. in its manufacture of asbestos
cement products
Such asbestos was imported from Canada and Rhodesia
The white asbestos fibre is found in the rock chrysotile which is
comprised of hydrated silicate of magnesium containing little iron
and practically no calcium
In about the year 1944 Colonial Sugar
Refinery Ltd. operated a chrysotile mine at Zeehan in Tasmania
Chrysotile is a softer rock than that of crocidolite within which
blue asbestos is
mainly silicates
found the of iron
composition of Prior to 1943
that host rock containing crocidolite had been
gathere andd crushed in a primitive plant at Wittencom in Western
Australia
At the behest of the Commonwealth and State Governments
and for the purpose of promoting its building materials C.S.R. investigated Western Australian blue asbestos asbestos in
division
the year 1943
The blue asbestos to which I have referred is situate in the
gorges of the Hamersley Hamersley Ranges
1000 miles north north of In 1943 there was no town and
surrounding Wittenocm approximately
Perth and 200 miles east of Roebourne no sealed roads and the defendant formed
for the purpose of developing both the mine and mill had to start from
3
scratch
The area suffers a most inhospitable climate being both
hot and dusty other than the dust created by the milling to which
I will refer
After what appears to have been little better than
a cursory investigation development commenced but the acquisition of
appropriate machinery and materials during wartime slowed progress
Most of the original machinery and buildings appears to have been
purchased from abandoned mines and sites elsewhere in the State
In
the early days of the mill's development no more than 8 to 10 tons
of bagged fibre was trucked to Port Samson weekly
The host rock was
found to be much harder than anticipated and very heavy on the wear
and tear of machinery used to crush it and extract the fibre
Metal
ducting used for that purpose and to extract dust from each plant became rapidly worn and pierced by the small particles of abrasive
material
However the emphasis was upon increased production and to
that end the defendant's officers were constantly employed This is not a case where the credibility of any witness is
greatly in doubt
Whilst on the one hand there may be a natural
tendency for the plaintiff and her witnesses to exaggerate the volche
of dust in which the plaintiff and her husband were required to work
it may equally be said that the defendant's officers have perhaps
reduced the incidence
I have found the plaintiff and her husband
witnesses of credit as indeed is the position of the medical experts
called by both sides and I hold the same view of the defendant's
officers
They are and were in my opinion impressive well trained
technical experts responsible to the defendant its parent and
employees engaged in working at Wittenoom
Whilst I shall refer to
the incidence of dust arising out of tests conducted by Mines
Department inspectors it is sufficient at this stage to say that both the mill and office wherein the plaintiff worked and for that
matter the staff settlement some quarters of a mile away were
from time to time depending upon the direction in which the wind was
4
blowing subjected to considerable dust fallout from the mill
On
the other hand the defendant's officers were at all times conscious
of the nuisance and as I find made every endeavour to reduce the
dust incidence by changing and upgrading the machinery used for that
purpose and indeed the method of extraction of the mineral
The
milling of crocidolite differs from that of other minerals in that
the process does not involve the wetting of the fibre
Thus the dust
hazard is increased
The extraction of blue asbestos fibre involves the crushing of
the crocidolite within which it is contained progressively from large
to small pieces for the purpose of freeing the mineral fibre
For
the period 1946 to 1949 the process involved a primary crusher
secondary crusher rolls two screens further rolls before reaching
the first of the three stages of fibre and dust extraction
The
first stage involved extraction of fibre and dust by means of a
cyclone in the case of dust separated from the fibre two cyclones
before release to atmosphere
The second stage involved the
extraction of dust from two cyclones into two hessian rooms inside
galvanised walls where the dust laden air was blown
The third stage
involved the extraction of both fibre and dust
from the shaket basena
by means of a cyclone and the collection of dust in the multicione
dust separator
It very soon became obvious that the hessian rooms
were unable to perform their respective tasks satisfactorily and the
multiclone dust separator failed due to rapid wear of internal pipes
It is at this stage that the defendant employed the use of a Warman
dust collector which is best described as involving the submersion of the host rock and fibre in water a process which was rapidly found to be unacceptable to the defendant's main customer because of
the adverse effect which moisture had upon the water holding capacitycapacity
of the mineral fibre
Experimentation with the mill plant had reached
this stage when the plaintiff's husband they were not then married
5
commenced his employment with the defendant in about the month of
April 1950
Conditions at that stage had advanced from the primitive facilities which the original manager Broadhurst first experienced
He was substantially responsible for the early design of the mill
office and settlement
An initial difficulty was to find sufficient
level space at the floor of the gorge where the mine mill power
house and office were situate above flood level
The office building
was purchased as a prefabricated house consisting of two bedrooms
living room and amenities
This was apparently enlarged by enclosing
the verandah which went around three sides of the building with a
corrugated galvanised iron dado approximately 3 ft high and above it
flywire mesh to the roofline which overhung for protection from sun
and rain
The open flywire mesh permitted free circulation of air
The office building was situate upon all of the evidence before me
anywhere between 50 to 100 yards from the mill - in the opinion of
the plaintiff only 100 yards or so
The plaintiff's husband is a trained fitter and machinist
At
the time he went to Wittenoom he was engaged to the plaintiff
The
plan was for him to work and save there for a period of six months
which term qualified him for a return paid air fare whereupon he
would marry the plaintiff and they would then return to Wittenoom
where both would work to earn as much money as possible before
returning to the metropolitan area
In early September 1950 the
plaintiff went to Wittenoom with her new husband and shortly thereafter
commenced in the defendant's employ as a stenographer in the office
to which I have referred
It is her evidence that the office was
not cleaned regularly that it was always dusty and that the flywire
screens surrounding
the evidence of the
the working defendant's
area were clogged with dust
It
servants that whilst there was
is
certainly dust in the office it was not as dusty as the plaintiff claims and they pray in aid therefor the fact that draftsmen worked
6
within the area and that they required clean working conditions
Furthermore the office housed machinery such as typewriters and the
defendant's pedal radio all of which were kept clean
Certainly
there was no conditioning and no suggestion that respirators
should be provided or used while engaged in employment in the office
building I find it difficult to accept the plaintiff's evidence
that the building was never cleaned by the defendant having regard
to the quality of its officers but nevertheless I am prepared to accept that on occasions it was subjected to uncomfortable
iy
concentrations of dust
There were no sealed roads and the whole'
area was dusty
Oddly enough it was the custom of both the plaintiff
and her husband to eat their lunch daily in close proximity to the
office and one can only assume that they did this in circumstances
where the dust incidence was not so grave as to interfere with the
enjoyment of that meal
Broadhurst regarded the incidence of dust as a nuisance to be
eradicated
He did not think that there was any particular risk
because his understanding of silicosis at the time was that it
required long term exposure to pollute a worker's lungs and the company
intended to have the dust incidence well under control before such
a period of time should expire
Initially one cyclone was used for
the extraction of fibre and dust and it was immediately seen that in
would be necessary to use and two cyclones were brought into
operation
Gradually the process was built up to that which I have
previously described
As each measure failed new measures were
brought into operation
Whilst the defendant's servants had little
or no experience of asbestos mining they had it seems read the
text books which were available at the time and visited asbestos mills
operating in South Africa and Canada
The company brought out two
experts from America to live at Wittenoom and assist its staff in
overcoming its problems
When the Warman dust collectors failed the
.
company consulted H. B. Gregory in Sydney and S. W. Hart in Perth and a rotorclone was especially designed by Gregory to overcome the
plant's problems
I accept Broadhurst's evidence that the company
through its officers never let up on the suppression of dust and
the use of rotorclones for the purpose of further reducing its
incidence
The mill which the company originally established closed
down by the year 1958
The evidence of the
company's
mill superintendent in
1950
Allan
and Mines Department inspector Faichney is that between 1950 and the end of 1952 to early 1953 when the plaintiff left Wittenoom both
the company and the Mines Department were concerned as to the incidence of dust upon the working conditions of the company's
employees
The Department was primarily concerned about mine workers
only its jurisdiction not extending to the position of office
workers
The concern for dust however arose only out of the
knowledge that working in dusty conditions over a period of time may occasion the formation of silicosis in the lungs of the worker
Faichney went as far as to say that his concern was as to the
incidence of silica dust and not asbestos fibre
Indeed the
instrument used to assess the dust incidence does not appear to have
been designed however that
to take in long asbestos fibre though I hasten the fibre responsible for Mesothelioma is very
to add
small
In Faichney's report of 21st August 1951 under the heading
General he has set it out
On examination of the dust samples
both from underground and the treatment plant the amount of fibre
visible is very small
Some samples appear to have no fibre present
and an estimate of the percentage of fibre present in the air would
be very difficult to make
No dust sampling was taken at the
company's office and Faichney did not think that any risk was attached
to workers in that area
Faichney could not recall when he became
aware of the distinction between asbestosis and silicosis
I had
Lf
8
heard of the term asbestosis but I was never really cognisant
of the hazards of it
In the opinion of the Department of Mines the permissible volume
of dust particles was 300 per cubic centimetre
There is no authority
to support such an assertion
By that I mean there is no criterion
laid down in the Mines Regulation Act or the regulations made pursuant
thereto
Nor for that matter is the safe limit of the number of
particles per cubic centimetre identified in any health literature or
regulation of the Department of Health
In Inspector Lloyd's report
of 13th October 1950 addressed to the State Mining Engineer all
readings within the treatment plant exceeded 300 ppcc
Most stations
were in excess of 1000 ppcc ranging down through 740 ppcc 560 480
to 410.
At the power house next to the mill the count taken was 210
and in the centre of the fitting room in the same building as the
power house 80 ppcc whilst in that stage work was in progress
the men's dining room 1000 ppcc
to improve the dust incidence
A
At
count taken in August of 1951 shows a very much improved position
though five of thirteen tests ranging as high as 620 ppcc
revealed
A sample
figures in excess of 300 ppcc
taken in the centre of the mill
building revealed
where and how the
a count of 155 ppcc
sample is taken
In
A great deal must July 1952 five of
depend upon
the stations
within the mill plant exceeded 300 ppcc the No. 1 screen having a
count in excess of 1000.
The problem is that the dust counts taken
did not differentiate between rock and fibre and the only evidence
before me as to the permissible limit of asbestos dust for working
atmosphere is contained in a memorandum from the Commissioner of
Public Health to the Under Secretary for Mines of the 26th October
| 1951 specifying a figure of 176 ppcc for asbestos dust
That
}
to {
memorandum emphasised the dangerous hazard to the health of workers
{|
i
be
f
t
| H
carrying out their duties
5
4
4
in
an asbestos
fibre laden atmosphere
9
Whilst I have set out something of the incidence of dust at the
mill
there
is no evidence
eee
that
any
report
on
such
figures was
sent
to the defendantorits officers nor is there any evidence that the
reports of Inspectors Lloyd and Faichney and the memorandum of the
Commissioner of Public Health were made known to the defendant or its
servants There is no evidence that either the Department of Mines
or the Department of Health took any action to remedy what have
been thought to be an undesirable state of affairs at the company's
mill Wittenoom
This is important when one has regard to the
difficulties of 25 years before
hindsight when assessing a situation which the plaintiff's illness was diagnosed
existed
The departmental position of the company's office is best
described by Faichney in his departmental report of 19th August 1953
after the plaintiff had left Wittenoom when he wrote
I consider
the worst feature of the mill is the cloud of dust which arises from
the mill and either drifts down to the ground or blows down the
gorge
It seems to have a demoralising effect
Apart from Allan having heard of the disease of asbestosis none
of the defendant's servants had regard to the health aspect of the
incidence of dust at Wittenoom other than considering it a nuisance
to be eradicated so as to improve working conditions
There was no
reference to dust hazard in the textbooks which they had read prior
to establishing the mine and mill plant and there was nothing that
they could gather from their respective overseas experiences
Their
only knowledge of health hazard was that relating to silicosis
The
plaintiff however
ttt
premiere
a te erate
and its officers to
maintains that she was
[irnanrel
owed
a
duty
by
the
defendant
fully inform themselves from medical writings
i available before 1944 as to the dangers of asbestosis
30
On 24th March 1930 the document known as the Merryweather and
Price Report on Effects of Asbestos Dust on the Lungs and Dust
ne Suppression
Parliament
in the Asbestos Industry That report undoubtedly
was laid before establishes the
the United Kingdo
fact that the
inhalation of asbestos dust over a period of years results in the
development of a serious type of fibrosis of the lungs asbestosis
and that the development of the disease varies in direct proportion
to the length of exposure to dust The report is based upon studies
made of workers involved in the asbestos textile industry in the
United Kingdom and other such studies involving case histories made by
medical experts up until that time
The textile industry to which I
have referred involved working with the pure asbestos fibre a task
involving exposure thereto in excess of that of any worker in a mill
plant other than those involved in bagging out the fibre material
It would of course be very different to the position of an office
worker such
established
as the plaintiff
the existence of a
On the other hand the report clearly distinct type of fibrosis of the lungs
asbestosis resembling silicosis in its main clinical aspects but
differing from that disease in the mode of distribution of the fibrous
tissue in the lungs in its radiological features in the enhanced
rate of development under average conditions and as far as the
evidence went in a lower susceptibility to the supervention of
pulmonary tuberculosis
have It certainly would
formed a far graver Neda
warning to the defendant's defendant's officers than their 1944-531944-53 knowledge of
ean silicosis The
Merryweather cs
and Price Report was availableavailable for
|
September Australia by e eorian perusal in Western _
of 1932
neBTEC
Merryweather again reported to the Ministerof Labour and
National Service in the Parliament of the United Kingdom in January
of 1949 in a report which became available in this State in 1951
That report is important because of the manner in which it linked
asbestosis
to
carcinoma
_.
RRR?
of
the lungs
_
It further revealed a
11
considerable reduction in the range of years of exposure both with
respect to asbestosis and carcinoma
For the former it became as
low as six months and for the latter eighteen months
Nowhere
however is the disease of Mesothelioma mentioned
It is common
ground that it was not generally accepted as a primary tumour until !
the 1960's
What is Mesothelioma
?
fo
Whereas in the case of silicosis and asbestosis fibrosis of
the lungs is involved as the result of the inhalation of silica dust
and asbestos dust respectively Mesothelioma occurs where the asbestos
fibre lodges in the pleura that is the membrane envelope surrounding the lungs externally and at some substantially latent period results
in the emergence of a malignant tumour spreading throughout the
pleura and compressing the lung and organs contained therein
It can
invade locally the ribs or the diaphragm of the victim and can also
spread by the bloodstream to other organs
The cause however is
not solely related to asbestos
In the investigations made by Dr.
Janet Elder however some 80 of cases reported upon have been so
related to asbestos victims from Wittenoom i.e. blue asbestos
The
malignancy or tumour is inoperable and the prognosis of a victim is
three to six years at the most
It is Dr. Elder's evidence indeed
the evidence of all three specialists Drs Musk and Elphick that
the plaintiff 99 contracted the disease in the course of her
employment with the defendant
She is of course entitled to
compensation under the provisions of the Workers Compensation Act but
the she
question is is entitled
as to
to whether by virtue of damages at common law
the
defendant's negligence
.
By her pleadings the plaintiff contends that the defendant's
negligence in subjecting her to unnecessary risks by failing to provide her with safe working conditions may be particularised as
follows
12
a The defendant failed to warn the plaintiff that Blue Asbestos
1
Dust could be harmful to her health
i
b
The defendant the plaintiff
failed to take any or from exposure to Blue
adequate
Asbestos
steps to protect Dust when it
well knew or should have known that Blue Asbestos Dust was
dangerous to the plaintiff's health
1
c
The defendant failed to take any or adequate steps to inform
itself of the dangers of Blue between asbestos dust cancer
Asbestos Dust and the
and other respiratory
relationship
diseases
d
The defendant failed to provide the plaintiff with constructed working premises and failed to provide
properly
any dust
proofing air filtration or any other protection from dust
whatsoever
e
The defendant failed to provide the plaintiff with any or
adequate respirators or to ensure that proper dust filters were
available failed to
for any such encourage or
respirators
enforce the
when required wearing of any
and further
such
respirators
f
The defendant failed to have in use in the said
an adequate or effective dust extraction system properly control the emission of Asbestos dust
treatment plant
which could
g
The defendant failed to adequately maintain the said plant and dust extraction system so as to control or
the emission of asbestos dust
treatment minimise
h
The defendant overloaded the said
whereby the Asbestos Dust problem
treatment plant was increased
machinery
i
The defendant to the mill
located
the mine
site
office
in
close
proximity
j
The design and construction of the mine site office was such as to permit the ready influx of asbestos dust and fibres
from the mill
The defendant denies that it failed to take adequate steps to
protect the plaintiff from exposure to blue asbestos dust notwith-
standing the lack of knowledge which its officers had as to the
distinction between asbestosis and silicosis let alone the former's
carcinogenic association and the cause of Mesothelioma
Its short
13
argument is that it viewed its responsibility as an employer to reduce
the dust incidence as much as possible from an engineering and health point of view for the comfort of its employees and that for the
purpose it employed all known means of dust extraction within the
mill
Indeed it is not suggested by the plaintiff that the defendant
done could have
anything more save site the office elsewhere and warn
her
What is strongly argued on behalf of the plaintiff that the
defendant failed to appreciate the possible harmful effects of
asbestosis the carcinogenic aspects thereof and that a disease such
as Mesothelioma was therefore within the risk of a worker's
employment
Possessed of such knowledge the defendant was thus in a
position to warn its employees before engaging their services
Furthermore had it appreciated the possible harmful effects of dust
fallout from the plant it would have situate the office building very
much further away from the mill than 60-100 yards
The plaintiff
of course concedes that the defendant's officers could not have
known of the disease of Mesothelioma but on the other hand their
failure to study recent medical literature available within Australia
left them in the position of being unable to appreciate possible
harmful effects of asbestosis or inhalation of asbestos fibre known
and unknown All ofthese argumentisn the end boil down to that
of foreseeability
It is relatively simple to be wise after the
t
event - here some 25 years
misadventure as negligence
later and condemn that which is Whilst Mesothelioma is known to be
associated with asbestosis
are the exceptions and the
caused by crocidolite in many cases there
plaintiff's case is one of them
The
opinion expressed by Dr. H. R. Elphick a senior consultant physician widely experienced in chest medicine and in particular with the results of mining at Wittenoom that the proprietors of the mill and
mine at Wittenoom could have had no knowledge that a person working
in the office with no direct exposure to asbestos could develop a
14
condition 27 years later which is known to be a consequence of the
minor exposure then involved illustrates the problem
is is increased by the evidence of thoracic specialist Dr.
Janet
Elder who has made a detailed study of the medical effects of
asbestos mining at Wittenoom since 1959 when she also visited the
area
She has described Mesothelioma as a rare tumour
No one knows
exactly how the malignancy starts or when it starts
How it starts
in particular
It was first attributed asbestos dust in 1959- i
1960 though there were suggestions of it beforehand Pathologist
Wagner was investigating the tumour in 1960 but it was not until 1965
before its primary existence was accepted
Importantly in Dr. Elder's
opinion there was no known relationship between asbestos and
Mesothelioma in 1950-1953
She would not have thought it likely that
| the plaintiff would contract asbestosis whilst working in the
{ defendant's office for the period involved
Lung cancer was only
known to occur amongst asbestos workers who had asbestosis
The
plaintiff does not suffer from asbestosis
Arthur William Musk is another highly qualified physician in
respiratory medicine at Sir Charles Gairdner Hospital
He obtained
a Master's Degree in occupational medicine at Harvard University in
1977
He has seer about 20 or 30 Wittenoom workers mainly at
Gairdner Hospital
They have been suffering from asbestosis lung
cancer and Mesothelioma also from a condition called benign asbestos
pleurisy
He has seen some five or six cases of malignant
Mesothelioma
One was not associated with Wittenoom
He agreed
entirely with Dr. Janet Elder's evidence
His study of Mesothelioma
attributes its origin to crocidolite - where the disease is associated
with asbestosis
In his opinion only fibres of the order of 2 microns
in diameter are small enough to go beyond the large airways in the
body in transit to the pleura
They have a length to diameter ratio
of about 1 or about 5 microns in length
Such fibres are virtually
invisible in the atmosphere to the naked eye
15
Dr. Musk's study of the medical literature to which I have been referred in some detail by Mr. Olney reveals a change in scientific approach from the 1950 case study of those involved in the industry to his statistical survey in terms of relative risks and
epidemiological studies which subsequently came out in the 1950's
He was aware that fibres other than those of crocidolite are known
to cause Mesothelioma
In all his detailed study case histories and
surveys he had not come upon a case which indicated asbestosis or
any other pulmonary disorder or a person who was employed in a
similar position to the one in
the defendant
He agreed with
which the Dr. Elder
plaintiff was employed by
that Mesothelioma did not
become accepted until after Dr. Wagner's article in 1960.
I would
add here that I do not propose to place any further construction upon
the medical literature which has been made available to me in such
volume than that given in evidence by the medical specialists
Undoubtedly there was a volume of medical literature directed towards
the hazards of asbestos workers and some of that literature dealt
with lung cancer associated with asbestosis
In no case however
nor is it contended otherwise by the plaintiff is there medical
\
literature available prior to 1960 dealing with a malignancy of the
pleura from which the plaintiff suffers let alone inhalation of blue asbestos fibre of minute size
the
causation
through
The defendant called Dr. Harry Maynard Rennie who has had a
professional relationship with C.S.R. for 25 years or more and was
a consulting physician at Prince Alfred Hospital holding the position
as specialist thoracic
1950's
In the period
physician during the late 1940's and early up to 1950 he saw coal miners suffering from
occupational fibrosis as the result of inhalation of silica dust
In
his opinion it was quite rare for asbestos to be viewed as the cause
of occupational fibrosis
That was his experience
When he went to
16
Johannesburg in South Africa some years after of the occupational risk to asbestos workers
1953
he
learned
there
Had the defendant's servants resorted to the legislation of the State of Western Australia up to 1950 relating to mining and milling
of minerals it would have received no assistance from the provisions
of the Mines Regulation Act 1906-1946 and amendments and the
regulations made thereunder At no stage did the Mines Department
154 see Reg wees
or for that matter the Department of Public Health
serve notice upon the defendant and there is no evidence of any
complaints with respect to dust incidence
Mesothelioma was not
mentioned in the Workers Compensation Act until 1970. How then may
it be said that the defendant's servants should have reasonably
foreseen the possibility of the injury to the plaintiff
puts his argument in this way
Mr. Olney
In the first place the defendant's defendant's defendant's servants did not make any
enquiry or receive advice as to the
possible effects generated in its mill at Wittenoom
of asbestos dust Had it done so it would have
discovered a wealth of medical knowledge identifying the more harmful
effects of asbestosis as
lung cancer
being at risk
As it was from those
opposed to silicosis and the possibility
the company did not regard its employees
diseases
Therefore it took no steps to
of
as
warn the plaintiff of any possible healt hazard arising from the
inhaling of the dust and fibres in her office
Whilst the defendant's
servants endeavoured to combat the incidence of dust in its milling
operations the hardness of the host rock and the difficulty of
separating it from the mineral fibre militated against the defendant's
efforts minimal
to entirely
exposure to
effect suppression
In fact it would appear
small amounts of fibre can give rise to
that
Mesothelioma 25 to 30 years later
17
Of the company's efforts to suppress dust Mr. Olney points to
the overseas practice of establishing large settling rooms in which
are constructed cross baffles for the purpose of separating mineral
fibre from dust b lown therein
The defendant's failure to construct
such a settling
terrain and the
room notwithstanding the shortage of materials to
difficulties of
be employed for
the existing
that purpose
at the relevant time say nothing of no economic gain arising
therefrom as was the overseas demonstrated the negligence
of the defendant and its lack of concern for its employees
I have
some difficulty in understanding this latter argument when in fact
as I have previously said all that was needed was a minimal - the
precise quantity is not known - inhalation of almost invisible
mineral fibre
But that is sufficient to sustain Mr. Olney's main
argument
That is that there was ample medical literature available
to the defendant's officers had they enquired to demonstrate the
hazardous nature of asbestos dust even in small quantities and as
to the possibility that the inhalation thereof could
lung cancer Mesothelioma is a form of lung cancer
give
The
rise to medical
literature which did exist and to which I have previously referred
indicated a danger sign for the company to take grave care and to
warn its employees as to the possible effects of work in areas where
mineral fibre might be inhaled
In other words possessed of the medical knowledge available
had the defendant's officers been asked as to whether it was safe for
its employees to work in areas contaminated by dust such officers
would have been obliged to admit that they did not know and thus were
liable in negligence for not being in a position to warn
In the
words of Sachs L.J. and Lawton L.J. in Wright v Dunlop Rubber Company Limited 13 K.I.R. 255 at p 271 Had they given thought to the risk
to Dunlop's workers as manifestly they should have done some action
by them was called for
_
The least they should have done was to have
18
warned Dunlops of the suspicions which they had
[ The plaintiff's
le
so
argument is based upon the proposition that whilst the disease
Mesothelioma was unknown the possibility of contracting cancer from i i
exposure to asbestos was known and should have placed the defendant's
servants on guard
One progresses from that position to the
conclusion that the defendant whilst not having the relevant knowledge
ought to have known of the risks associated with the inhalation of
asbestos dust ~ even to the extent of the danger posed to the
plaintiff working in an office a
to dust in the defendant's mill
short
distance
away
from
those
exposed
Before turning to the defendant's substantive argument I should
shortly dispose of its plea under the Statute of Limitations
It is
quite clear that the disease from which the plaintiff is sadly
suffering
then that
was
the
not identified until plaintiff first knew
February of last
of the existence
year of the
It is only disease
I uphold Mr. Olney's submission that the plaintiff's cause of action
arose at the time the plaintiff became aware of her condition
See
Cartledge v E. Jopling & Sons Ltd. 1963 A.C. the plaintiff's claim is not statute
758.
It follows that
The defendant's arguments may be confined to the test of foresee-
ability and in addition its denial that it failed to take adequate
steps to prevent its employees from inhaling dust
Whilst the
defendant's servants knowledge of asbestosi wass limited and more
to be equated with the disease silicosis the most that any detailed study of asbestosis in 1950 would have revealed was that there was
some association between that disease and lung cancer - see the
evidence of Dr. Elder
disease apparently more
How then associated
could it with the
guard against an unknown mining of blue asbestos
fibre than that of white and particularly so where an office worker
was
the
involved standards
Again
of 1950
the and
test of what was reasonable must be against not against the modern trend towards strict
19
liability
The identification of cause is not sufficient to impose
liability and an employer is not an insurer of his employee's
condition save in areas of worker's compensation The studies carried out by Merryweather and Price
were
concerned
with the use of already mined and milled white asbestos fibre in
textile factories in the United Kingdom and notwithstanding the
alarming
not seen
figures therein
fit to close up
revealed the United Kingdom such factories but merely to
Parliament
bring down
had
regulations relating to suppression of dust
Although
medical literature existed in Western Australia at the
some relevant
relevant time
|
no Government department had legislated along similar lines Notwithstanding Dr. Hensell's memorandum to the Under Secretary for
Mines of 26th October 1951 and the concern therein revealed for the
health of the workers at Wittenoom there is no evidence of the
department's intervention as the memorandum suggests
There is
certainly no evidence of the defendant's servants knowledge of the the
Commissioner's opinion
Blakiston's New Gould Medical Dictionary defines silicosis as
diffuse fibrosis of the lungs caused by the inhalation through a
period of years of dust having a significant content of silicon
dioxide particles less than 10 microns in diameter
It is a form
of
pneumoconiosis
Asbestosis is defined by the same authority as a
form of pneumoconiosis marked
inhalation of dust laden with
by fibrosis of the lungs from prolonged
asbestos
Pneumoconiosis is defined
as chronic inflamation of the lungs caused by the inhalation of dust
All the recognised forms of pneumoconiosis are due to dust
The
predominant featuries fibrosis which varies in type with the
etiologic dust
Silicosis and asbestosis are the main forms
Mesothelioma is defined as a primary tumour either benign or
malignant of the cells formed in the lining of the peritoneum or
-
pleura
the
latter being
the serous
membrane
enveloping
the
lung
and
.20
lining the internal surface of the thoracic cavity
We have already
learnt that one of the causes thereof is the inhalation of minute
fibres of
crocidolite
for the first time in
-
see the
Australia
else in the world apart from in
evidence of Dr. Musk - which was mined
anywhere | at Wittenoom and is not mined
South Africa and Bolivia
It was the |
South African investigations by Dr. Wagner which brought
association of crocidolite fibres with Mesothelioma - in
a
to light the
the early
1960's
Negligence is conduct falling below the standard established
for the protection of others against unreasonable risk of harm
_
This
standard of conduct is ordinarily measured by what the reasonable man
of ordinary prudence would do in the circumstances
See Fleming
The Law of Torts 5th Ed at p 106.
To measure that standard
knowledge of the danger to be guarded against must exist
It is
common ground that knowledge of the disease Mesothelioma did not exist
at the time the plaintiff was in the defendant's employ and certainly
not its cause
Mr. Olney has endeavoured to surmount that problem by
equating the existence of knowledge of the hazards of asbestos mining IL
particularly particularly generally but I am unable to accept that proposition
where the plaintiff was employed in the defendant's office some
so jh
distance from mill
In
my opinion
what
happened to the
plaintiff
the defendant's by i.
could not have been reasonably foreseen
+ reasonably
defendant's defendant's officers
nna:
during the period 1950-1953 1950-1953 and it would be unreasonable to contend
to the contrary
The liability for negligence whether you style it
such or treat it as in other systems as a species of culpa is no
doubt based upon the general public sentiment of moral doing
for which the offender must pay
See Lord Atkin in Donoghue v
Stevenson 1932 A.C. 562 at p 580.
Whilst the defendant's servants
may not have known all that they should have known about asbestosis
when establishing the defendant's mill in fact their knowledge of the
hazards to health occasioned by excessive dust and their determination
to suppress its incidence in my view of the evidence absolves the
ee
21
defendant from liability
I do not attribute culpa to such
responsible officers
I am indebted to Mr. Olney for his reference to the Wrighv t
Dunlop Rubber case but a reading thereof occasions me to distinguish
it from the facts in this case
There the Court of Appeal found that
the defendant I.C.I. did know of the carcinogenic qualities of
sae
|
Nonox S.
ee
a,
surely Furthermore . to warn a worker of apSrosaesa e inba le danger ea tenet
does not extinguish an employer'semployer'sliability The plaintiff does not
suggest that the defendant's mine and plant should have been closed
In my opinion it has not been shown by the plaintiff that the
defendant could have done anything more
vd
controlling of dust during the relevant
under the heading of period This is particularly
so when one has regard to the evidence of Dr. Musk as to the part
played by the crocidolite near invisible fibres in the causation of
Mesothelioma
The plaintiff has not established the foreseeability
of the risk which she ran whilst working for the defendant
None of
} i
the particulars of negligence have been made out
I do not condemn i
as negligence that which in my opinion was sad misadventure
The
plaintiff's claim fails