3 DCLR(NSW)] GARClAvCGU 135
DISTRICT COURT OF NEW SOUTH WALES
Garcia v CGU Workers Compensation Pty Ltd
Goldring DCJ
14 July 2006
Torts Action for breach of duty to act in good faith Action for damages available to a worker against the workers compensation insurer of the worker's employer Content of duty Circumstances when duty breached Damages can include punitive damages Workers compensation legislation Imposition of other legal duties on insurer.
Damages Exemplan' or punitive damages Action in tort for damages for breach of duty to act in good faith Workers compensation insurer's conduct Towards its insured's worker Circumstances when exemplars-damages may be awarded.
Held: (1) Because of the relationship of an insurer to a worker as the intended beneficiary of the workers compensation legislation, and the worker's vulnerability within that relationship, a workers compensation insurer, irrespective of any duty of care which may be owed by it, owes to a worker employed by its insured a duty to act in good faith, breach of which attracts liability for damages in tort. [i47], [161], [162], [170]
Gibson v Parkes District Hospital (1991) 26 NSWLR 9, applied. Gimson v Victorian WorkCover Authority [1995] 1 VR 209, not followed.
(2) The content of that duty of good faith is not to in bad faith reject, underestimate or delay payment of a worker's claim for workers compensation. [164]
Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at 25. followed.
(3) A workers compensation insurer's action in stopping periodic payments made to its insured's worker is done in bad faith where it is malicious, reprehensible, and done in reckless disregard of that worker's rights and health, and such high handed and deliberate conduct properly attracts an award of exemplary or punitive damages. [199]
Lamb v Cologne (1987) 164 CLR 1: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471. considered.
Per curium Section 21 of the Cn'i7 Liability Act 2002 (NSW), which relevantly, excludes exemplary or punitive damages from being awarded in an action for the award of personal injury damages where the act or omission causing the injury or death was negligence, does not apply to a claim based, not on negligence, but on breach of a duty to act in good faith where the act or omission
that caused injury was not done negligently but was either a deliberate act or an act done without regard to the consequences, neither of which falls within the rubric of negligence. [198J
Observation that the duty imposed on an insurer under the statutory obligation of workers compensation legislation can be described equally accurately as an implied contractual obligation, or possibly an implied or statutory duty. breach of which may give rise to a tortious remedy. [145J
Comment that given the way the law of negligence has developed, it is more than possible that a claim based on an assertion that a workers compensation insurer owes a general duty of care to workers employed by its insured may now succeed. [151]
Cases Cited
Distillers Co Bid-Chemicals (Aiist) Fry Ltd v Ajax Insurance Co Ltd (1974) 130 CLR 1.
Fwlic v Milingimbi Community' Inc (1982) 150 CLR'345.
Gibson v Parkes District Hospital (1991) 26 NSWLR 9.
Gimson v Victorian WorkCover Authority [1995] 1 VR 209.
Glenmont Invest Pry Ltd v Lend Lease Ins Ltd (1999) 74 SASR 152.
Hannover Life Re of Australasia Ltd v Saweng (2005) 13 ANZ Insurance Cases 90-123.
Ilievshi-Dieva v SGIO Insurance Ltd [2000] WASCA 161.
Lamb v Cologne (1987) 164 CLR 1.
Lomsargis v National Mutual Life Association of Australasia Ltd [2005] 2 Qd R
295.
New South Wales v Ibbetl [2005] NSWCA 445. Overlook Management BV v Foxtel Management Pr' Ltd [2002] NSWSC 17. Perre v Apand Pty Ltd (1999) 198 CLR 180. Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187. Rookes v Barnard (No 1) [1964] AC 1129.
Settlement Wine Co Pry Ltd v National and General Insurance Co Ltd (1990) 159 LSJS 84.
Travelers Insurance Company v Savio 706 P (2d) 1258 (1985).
Trident General Insurance Co Ltd v McNiece Bros Pt' Ltd (1988) 165 CLR 107.
Whiten v Pilot Insurance Co (2002) 209 DLR (4th) 257,
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448.
Action
A claim for damages was made by an injured worker against the workers compensation insurer of his employer.
P Blacket SC and W Walsh, for the plaintiff. G Watson SC and J Shelter, for the defendant.
Cur adv vult
29 On 11 August 1999 Ms Kirsty Whyte, a Rehabilitation' Consultant for IRS Total Injury Management ("IRS") reviewed the plaintiff. [Exhibit A page 531. Neither the IRS progress notes of this consultation [Exhibit A page 581 nor Ms Whyte's report dated 16 September 1999 [Exhibit F page 8] make any comment as to the validity of the plaintiff's claim.
30 On 12 August 1999 the plaintiff returned to work on light duties. [Transcript page 15.18]
31 HIH received the plaintiff's Workers Compensation Claim form, including the return to work form and Dr Avila's certificate of 5 August 1999, on 16 August 1999. However, Mr David Saggers faxed a copy of these documents to HIH on 11 August 1999. The cover sheet of this facsimile was addressed to Ms Lisa Hutchison ("Ms Hutchison"), the senior claims officer for HIH.
32 On 17 August 1999, Ms Hulchison gave initial instructions about the plaintiff's claim [Exhibit A page 7]. Ms Hutchison instructed that (i) the plaintiff be examined by Dr Bornstein; and (ii) a report be obtained from the plaintiff's treating doctor, Dr Avila. Ms Hutchison also completed a HIH file note titled "File Note for determining liability" [Exhibit F page 1]. This document indicated that both TW and IRS were concerned with the validity of the claim.
33 The file note for determining liability does not appear, so far as I can determine, to correspond with the workers compensation forms completed by Dr Avila and the plaintiff because of the following: (i) the injury as stated on the NSW Workers Compensation Medical Certificate was to the left shoulder and left arm; (ii) the accident which caused the injury was witnessed by Mr Rassmussen; (iii) the injury was reported to the plaintiff's supervisor;
fiv) the NSW Workers Compensation Medical Certificate was dated 9 August 1999 which was the day Dr Avila completed the form: (v) the NSW Workers Compensation Medical Certificate stated that the plaintiff was unfit to work from 5 August 1999 which was the day the plaintiff reported the injury to Dr Avila.
34 On 17 August 1999 a medical appointment was organised for the plaintiff to be reviewed by Dr Bodel on 30 August 1999 at 9:45 am [Exhibit A page 8 and 10]. Also on this day Ms Hutchison sent a letter to the plaintiff to advise that there was not sufficient information available to enable the insurer to make a decision regarding his claim [Exhibit A page 11]. To overcome this lack of information, it stated that HIH had arranged (i) a report from Dr Avila, which was to be provided by 21 September 1999; (ii) the plaintiff was to be examined by an independent medical examiner [Dr Bodel] on 30 August 1999. The plaintiff was advised that a decision in relation to his claim would be made by Tuesday, 21 September 1999. The plaintiff was advised to contact Ms Hutchison if he had any queries concerning his claim.
35 On 18 August 1999 Ms Hutchison was instructed to obtain a statement from the plaintiff to clarify the queries raised by the employer [Exhibit A page 10]. Milne & Associates Pty Limited ("Milne & Associates"), apparently a firm of investigators, was engaged by Ms Hutchison by letter dated 7 September 1999 [Exhibit A page 19]. They were instructed to investigate the plaintiff's claim but the instructions stated "that this is NOT to be a complete factual investigation. We only require a statement from the injured worker, Mr Carlos Garcia."
36 Milne & Associates, in their report of 17 September 1999, advised that they had received urgent instructions to briefly investigate [sic] Mr Garcia's claim [Exhibit A page 26]. However, Milne & Associates did interview the witness to
the accident, Mr Rassmussen, who corroborated the plaintiff's history of events [Exhibit A page 48]. Mr Rassmussen also advised Milne & Associates that he was a first aid officer and that he did not make an entry in the first aid register because "workers always have sore muscles. You can't put them all in the book" [Exhibit A page 49]. The interview with Mr Rassmussen was included in the report of 17 September 1999. However, Milne &. Associates did not obtain a statement from Dr Avila. HIH received Milne & Associates' report on 20 September 1999 [Exhibit A page 80].
37 On 25 August 1999 Dr Manohar wrote to Dr Avila after reviewing the plaintiff. This letter contained a history of the injury as well as a diagnosis of the plaintiff's condition. Dr Manohar advised that he had diagnosed a strain of the trapezius, rhomboids, infraspinatus and long head of the biceps. This letter was received by HIH on 6 September 1999 [Exhibit F page 5] and was noted by MA, who I find was M. Assaf, a HIH Claims Officer, on 12 October 1999.
38 On 30 August 1999 Dr Bodel reviewed the plaintiff [Exhibit A page 14]. On 1 September 1999 Dr Bodel wrote to Ms Hutchison and advised that the plaintiff had probably suffered a disc injury in the cervical spine. Dr Bodel also advised that the plaintiff would require plain X-rays of the cervical spine and probably an MRI scan of the cervical spine. Dr Bodel also advised that it was too early to make any assessments of the plaintiff's long-term permanent impairment or permanent loss and that he anticipated improvement with further conservative treatment. The defendant claimed privilege over this report until early 2004,
39 On 2 September 1999 Dr Manohar reviewed the plaintiff [Exhibit A page 17].
Dr Manohar wrote to Dr Avila and advised that the plaintiff would be seeing » neurologist Dr Keith Lethlean. HIH received a copy of this letter from Dr Manohar on 28 September 1999.
40 On 7 September 1999 Dr Avila wrote to HIH [Exhibit A page 18]. Dr Avila advised that he initially assessed the plaintiff on 6 August 1999. Dr Avila advised that the plaintiff felt weakness and pain in his neck and scapular region, left shoulder and left arm while tightening nuts on 2 August 1999. Dr Avila advised that he had referred the plaintiff to Dr Manohar "Rehabilitation Physician" for treatment. HIH received this report on 13 September 1999 [Exhibit F page 7]. HIH did not seek a report from Dr Manohar as to the plaintiff's prognosis or the plaintiff's ongoing need for rehabilitation. I find that the history of the injury given by the plaintiff to Dr Avila corresponds to the history that the plaintiff had given to his employer.
41 On 10 September 1999 Dr Lethlean, a neurologist, reviewed the plaintiff. Dr Lethlean referred the plaintiff for a CT scan of his cervical spine. The CT scan was carried out later that day at Wales Imaging, Prince of Wales Hospital, Randwick. Dr Kociumbas reported on the CT scan [Exhibit A page 20]. HIH received Dr Kociumbas's report, which was addressed to Dr Lethlean, on 22 September 1999. Dr Kociumbas stated that at the C5/6 level there was slight narrowing of the left neural exit foramen by ill defined soft tissue but the nerve roots appeared normal bilaierally, query lateral disc bulge. Dr Kociumbas concluded that the narrowing was within normal limits. However, Dr Lethlean, in his report dated 13 September 1999, advised that he had reviewed Dr Kociumbas's report but had "clinically determined" [sic] that the plaintiff had an acute, mechanical left C6 sensory radiculopathy. [Exhibit A page 21]. He requested Dr Manohar to organise a MRI scan. The report of Dr Lethlean dated
13 October 1999 was received by HIH via facsimile on 17 January 1999 under cover of letter from Turner Freeman dated 14 January 1999 [Exhibit F page 23]. HIH never sought a report from Dr Lethlean.
42 On 15 September 1999 Paul Miles of Milne & Associates Pty Limited interviewed the plaintiff [Exhibit A page 71]. The statement given by the plaintiff to Mr Miles is consistent with the history given to his employer, Dr Avila and Dr Bodel.
43 On 16 September 1999 Ms Kirsty Whyte of IRS wrote to Ms Hutchison advising of the referral to Dr Lethlean, and the CT scan. She also reported that the plaintiff complained of severe pain in his left arm radiating to the fingertips, and that he advised IRS that he had a posterior central disc bulge at the levels of C3/4 and C4/5. She observed that "It appears his injury is more severe from the initial left shoulder injury", [sic] HIH received this report on 29 September 1999 [Exhibit F page 8],
44 On 21 September 1999, Ms Hutchison wrote to the plaintiff advising that HIH were currently waiting on a report from Dr Avila [Exhibit A page 81]. However, HIH received Dr Avila's report dated 7 September 1999 on 13 September 1999 [Exhibit F page 7]. In this letter Ms Hutchison advised that, pursuant to the Workers Compensation Act 1987 (NSW), as amended, s 102, HIH was required to commence payment of weekly benefits. Ms Hutchison advised the plaintiff that he should not hesitate to contact her if he has any queries concerning his claim.
45 On 23 September 1999 Ms Hutchison wrote to Dr Avila requesting a report [Exhibit A page 82]. The plaintiff submits that at this time not Dr Avila, but rather Dr Manohar, was the plaintiff's treating doctor. Ms Hutchison stated in this letter to Dr Avila that the reason she was seeking this report was because Dr Avila was the plaintiff's treating health professional and the report would assist in determining liability. Ms Hutchison did not seek a report from Dr Manohar. However, Dr Avila continued to be the plaintiff's general practitioner, and I find that Ms Hutchison was entitled to seek a report from him in that capacity, even though, in hindsight, she would have been better advised to seek also a report from Dr Manohar.
46 On 28 September 1999 Ms Hutchison via facsimile requested a further report from Dr Bodel [Exhibit A page 83].
47 On 30 September 1999 Dr Bodel sent to Ms Hutchison via facsimile his report of 29 September 1999 [Exhibit A page 84 & 85]. Dr Bodel advised that the plaintiff was suffering disability in the neck and left upper limb, which, in his view was "likely, on the balance of probabilities, to be work related to the incident that occurred at work on 2 August 1999". This opinion of Dr Bodel, in my opinion, is extremely significant.
48 On 30 September 1999 Dr Manohar reviewed the plaintiff. [Exhibit A page 8]. Dr Manohar advised Dr Avila that Dr Keith Lethlean had seen the plaintiff. Dr Manohar also advised that he had organised an MRI scan as the plaintiff's condition had not changed for the last two months. This letter was received by HIH on 14 October 1999 and was noted by M. Assaf, the "Workers Compensation Claims Officer, on 15 October 1999 [Exhibit F page 11]. Dr Manohar also completed a NSW Workers Compensation Medical Certificate for the period 30 September 1999 to 2 November 1999. The certificate advised that the plaintiff was to undergo an MRI scan as organised by Dr Lethlean [Exhibit F page 12]. HIH received this certificate on 21 October 1999.
49 On 8 October 1999, Ms Hulchison wrote to TW confirming that the plaintiffs claim had been accepted [Exhibit A page 87]. Ms Hutchison advised that the employer was authorised to pay the plaintiff a weekly award of S692.36 for the first 26 weeks of the claim, thereafter at the Statutory rate. Ms, Hutchison also advised that this authority only extended for the period that the plaintiff was covered by a WorkCover medical certificate in the prescribed form, or until otherwise instructed by HIH.
50 Also on 8 October 1999 Ms Hutchison wrote to the plaintiff advising that his claim in respect of "Injury to the Shoulder" for compensation had been accepted [Exhibit A page 89]. Ms Hutchison also completed a "Claims Outstanding Estimate Worksheet"; the expected return to work date for the plaintiff was estimated by Ms Hutchison to be 28 October 1999 [Exhibit A page 88].
51 On 8 October 1999 the plaintiff's employment was terminated.
52 At this stage, I find, that there was no longer any factual dispute as to the nature and origin of the plaintiff's injury, and that HIH at that stage had accepted the responsibilities of the workers compensation insurer to make periodic payments and meet medical expenses.
53 On 12 October 1999 the plaintiff underwent an MRI of the cervical spine. Dr Ross Glasson reported on the MRI scan [Exhibit A page 90] and advised that at C5/6 there was lipping of the disc left posterior margin at the joint into the left neural foramen and left side of the canal against the thecal sac. At C6/7 there was a large volume of left posterolateral protrusion of disc into the canal against the medial end of the left neural foramen that displaced the thecal sac. HIH received Dr Glasson's report on 26 October 1999. The findings of Dr Glasson were underlined and noted by M. Assaf.
54 Also on the 12 October 1999 Dr Lethlean reviewed the plaintiff [Exhibit A, page 91]. Dr Lethlean, in his report to Dr Manohar dated 13 October 1999 advised:
His recent MRI scan shows changes at C5/C6 and particularly C6/C7 level, which I suspect is the source of the pain. After 9-10 weeks I think it appropriate to refer him to a neurosurgeon with a view to neurosurgery Pat one, Pat two levels (probably), and only his improvement meantime would argue against proceeding with surgery...
Mr Garcia remains pleasant and motivated; I think that he would do well with surgery, unless of course he should begin to improve meantime.
Ms Hutchison received this report on 17 January 1999 [Exhibit F page 25].
55 On 14 October 1999 Dr Lethlean wrote to Turner Freeman, solicitors for the plaintiff [Exhibit A page 92]. Dr Lethlean advised that in his opinion
the present incapacity/symptomatology is the result of the injury sustained (at work) on 2.8.99. '
The prognosis with conservative treatment is uncertain, and as in the reports, my recommendation is for surgical decompression.
The situation is not stable, and permanent impairment cannot be assessed, in relation to cervical or left arm function.
Current impairments are related to the injury at work.
56 Ms Hutchison received this report on 17 January 1999 [Exhibit F page 22].
57 On 15 October 1999 Ms Jodie Nixon wrote to Ms Hulchison and advised her that Mr Garcia had said that Dr Lethlean had reviewed him on 12 October 1999
and that Dr Lethlean may be recommending surgery as a treatment option [Exhibit A page 93]. M. Assaf noted this letter on 1/11/99. HIH Workers Compensation did not seek a report from Dr Lethlean.
58 On 26 October 1999 Dr Manohar reviewed the. plaintiff. The plaintiff advised Dr Manohar that he was not improving and that he had neck ache extending down his left arm. HIH Workers Compensation received this letter on 8 November 1999 [Exhibit F page 13]. M. Assaf noted this letter on ] 1/11/99.
59 On 28 October 1999 Dr Manohar reviewed the plaintiff. Dr Manohar referred the plaintiff to Dr John Matheson. neurosurgeon [Exhibit A page 95]. HIH received a copy of Dr Manohar's letter to Dr Avila advising him of this on 8 November 1999 [Exhibit F page 14J.
60 On 4 November 1999 the plaintiff's claim underwent an HIH Case Management Review [Exhibit A page 96]. M. Assaf decided that there was no need for further medical evidence, as he or she had the reports of Dr Bodel dated 30 August 1999 and Dr Avila dated 7 September 1999. This decision was reviewed by M. Assaf s supervisor and overruled. M. Assaf was directed to refer the plaintiff to Dr Hughes. M. Assaf also considers that there was no need for surveillance. This decision was also reviewed by M. Assaf s supervisor and overruled. M. Assaf was told to arrange surveillance for the day the plaintiff was to see Dr Hughes.
61 On 8 November 1999 an HIH Injury Management Plan was completed by the Medical Case Coordinator [Exhibit A page 97]. The Nominated Treating Doctor was listed as Dr Manohar. However, Dr Manohar was still not requested by HIH Workers Compensation to provide a report as to the likely cause of the plaintiff's left shoulder and arm pain nor its prognosis.
62 On 11 November 1999, M. Assaf, purportedly on behalf of Ms Hutchison, wrote to Dr Lloyd Hughes confirming the appointment on 6 December 1999 for a medical assessment of the plaintiff [Exhibit A page 98].
63 On 11 November 1999 Ms Hutchison wrote to the plaintiff advising that he had an appointment with Dr Hughes on 6 December 1999 [Transcript page 17 line 27-34].
64 On 12 November 1999 Ms Hutchison wrote to Austpac Investigations requesting 1 day's surveillance on the plaintiff on 6 December 1999. Austpac were instructed to obtain video evidence as to alleged symptoms displayed, current work status and activities [Exhibit A page 100].
65 On 16 November 1999 Dr Manohar reviewed the plaintiff. Dr Manohar wrote to Dr Avila advising that the plaintiff still has a sensation of soreness under the left axilla and the left shoulder. He also had neck pain and headaches. Dr Manohar advised Dr Avila that the plaintiff was waiting to see Dr Matheson on 6 December 1999 [Exhibit A page 101]. HIH received this report on 30 November 1999 [Exhibit F page 16]". M. Assaf noted this report on 2/12/99.
66 On 6 December 1999 Dr Matheson reviewed the plaintiff [Exhibit A page 102]. Dr Matheson in his report to Dr Manohar dated that same day states in
part:
He has now gone on to neck discomfort but it is still the more minor component. His main problem is still pain going across the shoulder and down to the elbow and numbness going to the first dorsal interosseous space of the right hand in a C6 distribution involving the thumb, index and middle finger....
Diagnosis C5/6 and C6/7 disc lesions with left C6/7 rupture.
Opinion
He is hovering on the brink of having to recommend surgery but there are some signs of improvement at the moment so we can afford to wait. If he goes on to develop any long track signs or definite neurological loss we should change course fairly rapidly. For the moment the plan is that I will review him in mid-January and will give him a good six months to see if he settles spontaneous!)' before recommending surgery.
67 On 7 December 1999 Dr Manohar reviewed the plaintiff [Exhibit A page 104]. Dr Manohar completed a NSW Workers Compensation Medical Certificate stating that the plaintiff was fit for suitable duties from 7 December 1999 to 18 January 2001 [Exhibit A page 105]. Dr Manohar advised on that certificate that John Matheson, Neurosurgeon, would be providing treatment/therapy to the plaintiff. HIH received this certificate on 9 December 1999. HIH did not seek a report from Dr Matheson. Dr Manohar also wrote to Dr Avila on this day advising that the plaintiff had seen Dr Matheson and that Dr Matheson had asked that the plaintiff continue with conservative treatment for the "time being". HIH received this letter on 22 December 1999 and MA (presumably M Assaf) noted it on 23 December 1999 [Exhibit F page 17].
68 On 9 December 1999 Dr Matheson wrote to Turner Freeman advising that as far as attribution was concerned, there was no doubt that the disc rupture in the plaintiff's neck at the C6/7 level was due to the work accident on 2 August 1999 [Exhibit A page 113]. HIH were advised of Dr Matheson's opinion on 17 December 1999 when Ms Hutchison received a letter from Turner Freeman dated 14 January 2000, which included the opinion of Dr Matheson. HIH received a copy of this report on 24 January 2000 [Exhibit F page 32].
69 On 20 December 1999 Dr Lloyd Hughes reviewed the plaintiff. Dr Hughes, at the time of the consultation had the following documents and films in his possession:
i. A letter from HIH to him.
ii. Document headed "Service Examination/Report". iii. Document headed "Patient Details - Non Medical". iv. MRI Scans provided by the plaintiff. v. Workers Compensation Claim for Compensation and Employer's
Report of Injury. vi. Report of Dr Bodel of 1 September 1999 (but not Dr Bodel's report of
29 September 1999).
vii. Certificate of Dr Avila of 5 August 1999. viii. Certificate of Dr Avila of 9 August 1999. ix. Certificate of Dr Avila of 10 August 1999. x. Certificate of Dr Avila of 20 August 1999. xi, Certificate of Dr Avila of 26 August 1999. xii. Certificate of Dr Manohar of 2 September 1999. xiii. Certificate of Dr Manohar of 30 September 1999. xiv. Certificate of Dr Manohar of 21 October 1999. xv. Certificate of Dr Manohar of 28 October 1999. xvi. Report of Illawarra Medical Imaging of 11 August 1999. xvii. Report of Illawarra Nuclear Imaging of 31 August 1999.
xviii. CT Scan report of Wales Imaging (CT Scan performed on 10 September 1999).
xix. MRI Scan report of 12 October 1999.
xx. Report of Dr Manorial- of 25 August 1999.
xxi. Letter from IRS of 15 October 1999. xxii. Report of Dr Manohar to Dr Avila of 30 September 1999. xxiii. Report of Dr Manohar to Dr Avila of 28 October 1999. xxiv. Report of Dr Manohar to Dr Avila of 26 October 1999.
xxv. Sydney X-Ray letter in respect of technical problems dated 7 October 1999.
70 The report of Dr Lloyd Hughes of 24 December 1999 [Exhibit A page 115] States in part:
He told me that he noticed gradual onset of discomfort in his left shoulder on 2.8.99 while at work. His work at the time involved tightening bolts, but there were no specific incident or accident ... This man's history suggests he developed an acute cervical disc lesion in August this year as a result of degenerative process in the disc involved. There is no history of any injury and the condition is not work related and his symptoms commenced coincidentally while he was working... He has not suffered any permanent impairment of his neck or upper limbs as a result of any accident in question, as there has been no accident,
71 This report was not served on the plaintiff solicitor until 18 January 2001.
72 The plaintiff says that Dr Hughes' actual consultation with the plaintiff lasted only 1 or 2 minutes. [Transcript page 18 line 37.] He did not retreat from this position under cross-examination. The defendant did not call Dr Hughes, so I assume that his evidence would not have assisted the defendant's case. I have found that the plaintiff is truthful, and I find, on the balance of probabilities, that the plaintiff's evidence is correct. It is not, nor could it be, suggested, that HfH was not entitled to seek a medical opinion from Dr Hughes or any other medical practitioner.
73 On 5 January 2000 a facsimile was sent from lan Hill of TW to Ms Hutchison, requesting confirmation of doctor's appointments but specifically an appointment on 10 September 1999 (i.e. appointment with Dr Lethlean) [Exhibit A page 117]. I reach the conclusion that Ms Hutchison was aware that the plaintiff had seen Dr Lethlean. She was also aware that Dr Matheson had reviewed the plaintiff as, to reply to Mr Hills' request, she presumably was aware of the claims payment authorisation schedule. This schedule included payments made to various doctors for treating the plaintiff. Dr Lethlean and Dr Matheson were listed on the schedule [Exhibit A page 143].
74 No attempt was made by Ms Hutchison to obtain a report from either of these treating doctors prior to deciding to cancel the plaintiff's weekly payments on 7 January 2000. Ms Hutchison did not attempt to obtain a report from Dr Manohar, the treating doctor, prior to deciding to cancel the plaintiff's weekly payments.
Cancellation of weekly payments
75 On 7 January 2000, Ms Hutchison reviewed the plaintiff's file. She denied the plaintiff's claim. She sets out the reasons for her denial in the file note for determining liability [Exhibit A page 118 see also typed version of this document at page 156 of Exhibit A]. Ms Hutchison's supervisor, Ms Frances Abrahamse agreed with this decision [Exhibit A page 121]. However,
Ms Hutchison failed to record any reasons in this file note for apparently disregarding Dr Bodel's reports. Further Ms Hulchison apparently interpreted the MRI report of 12/10/99 as showing no abnormality. This was not in accordance with the views of the treating doctors, and, apparently, Dr Bodel. Ms Hutchison did not seek the views of Drs Avila, Manohar, Lethlean or Matheson as to the likely cause, treatment and prognosis of the plaintiff's medical condition prior to denying the plaintiff's claim.
76 The same day, Ms Hutchison wrote to the plaintiff [Exhibit A page 123] advising that liability had been denied and that "recent medical evidence indicates that the current symptoms are related to a degenerative condition and any aggravation caused by the incident on 2/8/99 has now ceased". A notice of discontinuance of weekly compensation payments was also enclosed [Exhibit A page 124]. In that letter, HIH admits that an incident occurred to the plaintiff on 2 August 1999 while the plaintiff was at work [Exhibit A page 123].
77 When the plaintiff received the notification by mail that his weekly payments were to be cancelled, he telephoned Ms Hutchison. Ms Hutchison did not attempt to assist the plaintiff but dismissed him and told him not to bother her [Transcript page 19 line 40; page 23 line 36 to 44].
78 The plaintiff considered that he had cooperated fully with HIH and its investigators and doctors [Transcript page 23 line 6; page 23 line 36 to 44]. Shortly after his conversation with Ms Hutchison he realised his dream of buying a home for his family was now gone. This caused him to be very upset [Transcript page 21 line 15]. The plaintiff was in shock [Transcript page 54 line
"31 IT]
31 - JJJ.
79 The plaintiff also felt humiliated in having to attend Centrelink to apply for "handouts" [Transcript page 21 line 57: page 56 line 6 to 8] when he considered, quite justifiably in my view, that his injury resulted from work, and the workers' compensation insurer had not met its obligations and provided him with money to support himself, his wife and his child. [See also Dr Durrell's evidence: Transcript page 49 lines 3 to 11.]
80 The plaintiff suffered a dramatic loss of income [Transcript page 22 line 5].
81 The plaintiff became very anxious about the welfare of his young family. He became depressed and embarrassed about his situation [Transcript page 22 line 20]. As time went on the plaintiff became aware that he could not provide for his family, [Transcript page 22 line 21] and, because he did not receive any compensation payments he became more and more depressed [Transcript page 22 line 18 to 23].
82 The plaintiff's relationship with his wife and child were affected. His behaviour to both his wife and child became abusive and angry [Transcript page 22 line 25 to 44: page 23 line 46 to 49; page 55 line 34]. He would avoid his wife and child [Transcript page 54 line 41 to 44]. His wife corroborated this evidence. The plaintiff had no sexual relationship with his wife [Transcript page 23.57; page 55 line 25 to 33]. His wife also corroborated this. The plaintiff became clinically depressed. He stopped eating, lost interest in life, did not relate to people. He had thoughts of suicide [Transcript page 24.1].
83 Before the plaintiff's weekly payments ceased, he received counselling to help him deal with the daily pain he was suffering in his neck shoulder and arm. The counselling sessions helped the plaintiff deal with his injuries and his pain levels [Transcript page 34 line 52 to 56]. When the weekly payments ceased so did his medical treatments. The plaintiff was entitled to some further treatments
that were prepaid by HIH. However, these treatments lost their effectiveness as the plaintiff became more depressed. Once the plaintiff''s payments were cut off he became more susceptible to the effects of the pain [Transcript page 60 lines 18 - 191.
84 No medical evidence has been tendered on behalf of the defendant that supports the assertion that any aggravation caused by the incident to the plaintiff on 2 August 1999 had ceased by"? January 2000.
The plaintiff's financial situation
85 Prior to the plaintiff's injury on 2 August 1999 the plaintiff's wife had received fortnightly family payment from Department of Social Security Parenting allowance of $3.30 per fortnight and fortnightly family payment for Family Allowance / Family Assistance to the value of $158.25 [Exhibit F page 378 - statement entries for 21 July 1999 and 28 July 1999].
86 On 21 January 2000 the plaintiff's weekly payments ceased. At that time the plaintiff had been receiving $692.36 per week gross [Transcript page 40 line 19;
Exhibit A page 88]. The plaintiff' wife had also been receiving fortnightly parenting allowance from the Department of Social Security to the value of $66.20 and a fortnightly Family Allowance/Family Assistance to the value of $159.85 [Exhibit F page 382 - statement entries for 4 January 2000 and 12 January 2000].
87 The parenting and family allowance were paid to Mrs Garcia, the plaintiff's wife and not the plaintiff [Exhibit F page 345 to 347; see also Centrelink's Account Payable issued 5 December 2001 advising that from 22 January 2000 to 9 April 2001 Mrs Garcia received $9,815.06].
88 On 22 January 2000 the plaintiff applied for an unemployment pension from the Department of Social Security. On 11 February 2000 the plaintiff received his first unemployment cheque of $210.50 per fortnight [Exhibit F page 383]. On the 15 February 1999 the plaintiff received a further payment of $299.33 [Exhibit F page 383]. From that date on the plaintiff received fortnightly payments of around $297.40.
89 After the plaintiff's weekly payments were cancelled from 21 January 2000 to 7 April 2001 the plaintiff became impecunious. From the 22 January 2000 until the 7 April the plaintiff was receiving $543.66 less per week gross. From the 8 April 2000 until 30 September 2000 the plaintiff was receiving $257.90 less per week. From 1 October 2000 until 31 March 2001 the plaintiff was receiving $261.25 less per week. From 1 April 2001 until 6 May 2001 the plaintiff was receiving $264.75 less per week.
90 The plaintiff received a lump sum payment $20,430.93 on 7 May 2001 from the insurer, after proceedings in the Compensation Court [Exhibit F page 72;
Exhibit F page 328 also page 329]. This was the net value [overall tax rate of 24%] less 10% for HJC payments [the gross sum was $27,409.96]. This lump sum had been miscalculated. From the 8 April 2000 to 30 September 2000 the plaintiff was paid $315.20 per week when he should have been paid $408.80:
[see exhibit F page 328 and 329 which states the correct weekly payments]. From the 1 October 2000 to 31 March 2001 the plaintiff was paid $318.60 per week when he should have been paid $413.20. Hence he was under paid $4,799.60 gross. The plaintiff says this money is still owed to him and he seeks payment of this amount as well as interest on it. Hence the gross weekly payments that the plaintiff says he was entitled to during this period was $27,409.96 plus $4,799.60 = $32,209.56.
91 Centrelink notified the plaintiff on 4 December 2001 that ihe total Newstart Allowance for the period 22 January 2000 to 9 April 2001 was $9,882.02. This amount was repaid by 2 January 2002.
92 The plaintiff says his gross loss was $32,209.56 - $9,882.02 = $22,327.54. Less tax of 18.76%. This figure is the rate of tax that would apply to a gross sum of $32,209.56. Tax paid as at 30 June 2001 on this amounl is $6,042.87, which is the equivalent of 18.76% of the gross amount. However in determining the total tax figure no account has been taken of the Medicare levy because this Medicare levy would be off set by the rebate that the plaintiff would be entitled to receive for a dependant wife and child. The net loss was $18,138.89 for the period.
93 Once the plaintiff's weekly compensation payments ceased, the parenting payment received by Mrs Garcia increased from $66.20 to $294.70 per fortnight.
94 From the 22 January 2000 the Garcia family total income was dependant on money received from the Department of Social Security and money borrowed from family and friends [Transcript page 55 line 53 to 56]. The Garcia family also relied on savings of around $5000 [Transcript page 20 line 42 to 55: page 26 lines 28-35].
95 From the 22 January 2000 the plaintiff and his wife were receiving $262.95 per week (i.e. unemployment benefit plus increased parenting payment) more from the Department of Social Security than they had been receiving prior to the plaintiff's weekly payments being cut.
96 The plaintiff's wife, Virginia was notified by Centrelink on 5 December 2001 that the total welfare payment received by her for the period 22 January 2000 to 9 April 2001 was $9,815.06. Centrelink advised that she was entitled to $3,303.01 for this period and had to repay $6,512.05. This amount was repaid by 3 January 2002. The notification form to Mrs Garcia refers to the newstart allowance. Mrs Garcia never received a newstart allowance, however she did receive the parenting and family allowances. The Garcias repaid $16,394.07 for the period 22 January 2000 to 9 April 2001.
97 The total gross sum of weekly benefits the plaintiff was entitled to for this period was $32,209.56, the gross figures set out in HIH's letter of 1 May 2001 [Exhibit F page 72] plus the underpayment of $4,799.60. The gross financial . loss suffered by the plaintiff's family for this period was $15,815.49. (This figure is based on the rate of tax that would apply to a gross sum of $32.209.56. Tax paid as at 30 June 2001 $6,042.87 = 18.76% of the gross amount. However in determining the total tax figure no account has been taken of the Medicare levy because this Medicare levy would be off set by the rebate that the plaintiff would be entitled to receive for a dependant wife and child.) The net loss was $12,848.50.
98 The defendant's claim that the plaintiff's family were better off because of welfare payments is not supported by the facts of this case. The plaintiff was financially worse off because his weekly payments were cancelled. This loss was not compensated by his unemployment benefits.
Proceedings under the workers compensation legislation
99 On 17 January 2000 a letter dated 14 January 2000 from Turner Freeman was faxed to HIH, marked to the attention of Ms Hutchison [Exhibit F page 19 to 28]. This letter (i) advised that this matter had been referred to Workers
Compensation Resolution Service; (ii) advised that the plaintiff's condition might deteriorate due to his inability to afford treatment; (iii) advised that Dr Matheson attributed the plaintiff's cui-rent condition to his work accident on 2 August 1999; (iv) requested a copy of all medical reports on file pursuant to s 126 of the Workplace Injun- Management and Worker!, Compensation Ac! 7996' (NSW); (y) requested a copy ofDr Hughes' report; and (vi) requested that the plaintiff's weekly payments be reinstated. Enclosed with this letter were the reports of Dr Lethlean dated 13 September 1999, 13 October 1999 and 14 October 1999. Dr Lethlean's report dated 14 October 1999 attributes the plaintiff's condition to a work accident on 2 August 1999.
100 On receipt of this letter and the enclosed reports Ms Hutchison referred the matter to her supervisor, Ms Frances Abrahamse. Ms Abrahamse instructed Ms Hutchison to "Maintain Denial claim was for shoulder not Neck. Also do not serve Dr Hughes report yet." [Exhibit F page 20].
101 That day Ms Hutchison completed a claims management review form. She estimated that the plaintiff would be incapacitated until 27 January 2002 [Exhibit A page 128].
102 On or before 18 January 2000, the Workers Compensation Resolution Service ("WCRS") received the request from the plaintiff's solicitor for conciliation [Exhibit F page 49]. The WCRS forwarded to HIH various reports, including several from Dr Matheson and Dr Lethlean, a report from Wales Imaging dated 10 September 1999 and a report dated 12 October 1999 from Dr Glasson. HIH received these documents on 24 January 2000 [Exhibit F page 29 to 51].
103 The plaintiff's claim for weekly payments was set down for a conciliation conference on 9 March 2000 [Exhibit A page 129]. Prior to the conference HIH were directed to provide to the conciliator a copy of report of Dr Hughes. The parties were also requested to liaise and exchange all documents and medical reports prior to the conference date. The plaintiff's solicitor never received copies of many of the defendant's reports, including, crucially, that of Dr Hughes, prior to the conciliation conference.
104 On 10 February 2000 Ms Hutchison engaged Moray & Agnew to represent the insurer at the WCRS conference [Exhibit F page 52].
105 The plaintiff and his solicitor were present at the conciliation conference. A solicitor represented HIH [Transcript page 20 line 28]. The conciliation conference lasted 1 hour and 15 minutes [Exhibit A page 134]. No one from HIH attended the conciliation conference [Transcript page 20 line 30]. The plaintiff's case was vigorously pursued, yet the insurer's solicitor continued to rely on the report ofDr Hughes. The conciliator recommended, in the plaintiff's presence, to the solicitor for HIH that the insurer should restore the plaintiff's weekly payments [Transcript page 22 line 49].
106 Because of what he and his legal advisers perceived to be the defendant's attitude at the conciliation conference, the plaintiff commenced proceedings to obtain an order that his weekly payments be recommenced [Exhibit A page 134]. An application for determination was filed on 5 May 2000 on behalf of the plaintiff seeking weekly payments under sections 36, 37, 38, 38A and 40 of the Workers Compensation Act 1987.
107 As at the end of 2000 the plaintiff's solicitor had not been supplied with a copy of the report from Dr Hughes dated 24 December 1999, which he had initially requested on 17 January 2000. The insurer deliberately withheld the report from the plaintiff's solicitor until 18 January 2001 [Exhibit F page 69].
Under section 119 of the Workplace Injun' Management and Workers Compensation Ad 199S and the Regulations the insurer was obliged to forward this report. It appears from the content of the conciliator's letter of 31 July 2000 [Exhibit A page 134] that the defendant supplied the conciliator with a copy of Dr Hughes report, but did not send one to the plaintiff or his solicitor.
108 On the 9 March 2000 the solicitors for HIH, Moray & Agnew, sent a letter requesting that the plaintiff be reviewed by their medicolegal expert, Dr John Polgar [Exhibit F page 53J. Dr Polgar reviewed the plaintiff on 2S March 2000 [Exhibit F page 54]. No report from Dr Polgar has been served.
109 On 1 May 2000 the plaintiff made a claim pursuant to section 66 of the Workers Compensation Act 1987 on TW. A copy of this claim was sent to HIH. On 8 May 2000 an application for determination was sent to TW, and a copy of this application was also sent to HIH [Exhibit F page 56].
110 On 30 May 2000 Dr Matheson reviewed the plaintiff. At this consultation Dr Matheson recommended surgery [Exhibit A page 133].
111 On 1 June 2000 the solicitors for HIH, Moray & Agnew sent a letter requesting that the plaintiff be reviewed by their medicolegal expert, Dr James Bode! [Exhibit F page 57]. The plaintiff attended this consultation.
112 On 2 June 2000 an answer to the plaintiff's application for determination was signed and filed by Moray & Agnew. It denied that the plaintiff was injured at all or as alleged, that he was incapacitated as alleged, and that any incapacity that the he may have had or may now have was not the result of any injury that arose out of or in the course of his employment with TW. Further, it said that the plaintiff was, at all material times, able to earn a sum greater than or equal to his probable weekly earnings but for the alleged injury, and that no persons depended upon him for support.
113 On 25 July 2000, Moray & Agnew wrote to the plaintiff's solicitors advising
that they were claiming privilege over various documents and reports including
[Exhibit F page 64]:
a. Two reports of Dr Bodel dated 1 and 29 September 1999 b. Report of Dr Lloyd Hughes dated 24 December 1999 c. Report ofDr J Polgar dated 28 March 1999.
114 On 31 July 2000 the WCRS conciliator, Mr Cahill, recommended that the insurer review its decision [Exhibit A page 134]. HIH declined to review its decision. The plaintiff's weekly payments were not recommenced.
115 The plaintiff felt devastated by this [Transcript page 25 line 17-30].
116 On 8 August 2000 Moray & Agnew wrote to the solicitors for the plaintiff and advised that they had been instructed to investigate the possibility of finalising this matter by way of commutation [Exhibit F page 65], and on 25 August 2000 the plaintiff's solicitor wrote to Moray & Agnew [Exhibit F page 66] advising that the plaintiff was prepared to settle this matter on the basis of resumption of weekly payments from the date of termination at the full applicable rate, pursuant to sections 35, 36 and 37 of the Act, payment of medical, hospital and pharmaceutical expenses and of costs. They also asked, "Your client will also undertake at the lime of resolution, not to stand in the way or cause any difficulty, in respect of any operative treatment that might be sought or needed in respect of the work injury."
117 The solicitors also wrote, "The attitude of your client insurer to this claim is more than puzzling. Our view is that it represents bad faith of the worst order." and they requested "a full statement as to why the denial of liability which was
initially accepted for some months, is now maintained, supported by provision of all your medical reports to ourselves, if the above offer is not accepted."
118 On 6 September 1999 Moray & Agnew wrote to the plaintiff's solicitor with a further offer of settlement by way of commutation [Exhibit F page 68J. The plaintiff did not reply to this further offer. Moray & Agnew did not respond to the plaintiff's solicitor's request to provide a statement as to why the denial of liability was being maintained nor did it provide copies of the medical reports the basis of such a denial.
119 On 15 January 2001 Moray & Agnew served by mail the report of Dr Lloyd Hughes, dated 24 December 1999, which was received by the plaintiff's solicitor on 18 January 2001, 1 year and 1 day after the plaintiff had first requested a copy of the report [Exhibit F page 69].
120 On 29 January 2001 the plaintiff's solicitor wrote to Moray & Agnew in response to the latter's letter of 15 January 2001 [Exhibit F page 71]. It pointed to HIH's failure to provide access to 2 reports of Dr Bodel.
121 On 4 April 2001, the morning that this matter was set down for hearing, NRMA Workers Compensation (NSW) (No 2) Pty Limited ("NRMA Workers Compensation",), the workers compensation insurer that had taken over from HIH, agreed to recommence the plaintiff's weekly payments. The plaintiff received a cheque from NRMA Workers Compensation to the value of $20,430.93 [Exhibit F page 74].
122 On 3 July 2003 Commissioner Hogg entered an award to the plaintiff against TW. The terms of the settlement were as follows:
Section 66 - $8.000.00 in respect of 20% impairment of the plaintiff's neck;
$11.250.00 in respect of 15% left arm at or above the elbow.
Section 67 - $10,750.00 in respect of pain and suffering. $5,375.00 for past pain and $5,375.00 for future pain.
Loss and damage claimed by the plaintiff as a result of the defendant's actions
123 From January 2000 through to May 2001, when the plaintiff was not receiving weekly payments and suffering from depression the plaintiff says his wife provided the attendant care to the plaintiff: she looked after him, she washed, shaved and fed him. She also monitored the plaintiff's medication to make sure he complied with the regime [Transcript page 27 line 55 to page 28 line 5; page 55 line 1 to 5]. The plaintiff's wife cared for her husband for at least 4 additional hours per week after payments ceased [Transcript page 57 line 9]. This may be so, but I find that the need for care was not solely a result of his depressed conditions. It was due in part at least to the cervical spine injury, but was significantly increased by the worsening of his mental condition.
124 By the time the plaintiff's weekly payments had recommenced all his savings had been spent. The plaintiff also owed money to his family and friends who had lent money to him to help care for his family.
125 Once weekly payments were recommenced the insurer also accepted obligation to pay the plaintiff's medical expenses and treatment costs (both past and future) arising from the injuries sustained on 2 August 1999. Hence the plaintiff could now undergo surgery to repair his cervical disc lesions to relieve his pain. However, having such an operation did not necessarily mean that the plaintiff could return to work as a fitter and turner [Exhibit A page 14] paragraph 3 per Dr Van Gelder].
Dr f/Jathi'son 's advice on surgen'
126 As at 30 May 2000, when Dr Mathcson reviewed the plaintiff, he could not undergo the surgery because he could not afford to pay for such treatment [Transcript page 24 line 44-47]. Dr Matheson had previously taken a view that he would prefer to treat the plaintiff conservatively rather than surgically, unless he reached the point where he considered surgery was necessary, but in his earlier reports, of which HIH was aware, he had certainly raised the possibility of surgery. If HIH had paid for surgical treatment at that lime, the plaintiff would have had the surgery [Transcript page 25 line 5], I find, on the preponderance of medical opinion in evidence before me, that if surgery had been performed on the plaintiff it is more likely than not that his cervical lesions would have been removed and his pain symptoms would have ceased.
127 On 10 April 2001 Dr Manohar reviewed the plaintiff. Dr Manohar wrote to Dr Avila advising that the plaintiff was considering surgery. The plaintiff was referred to Dr James van Gelder at Liverpool, who reviewed the plaintiff on 16 May 2001. Dr Van Gelder considered that the plaintiff would benefit from cervical surgery, although it was unclear whether he would ever return to work as a fitter and turner [Exhibit A page 141]. Dr Van Gelder noted that the plaintiff's pain fluctuated. However, the plaintiff was advised that his condition was now chronic and this meant that the chance that the operation would be successful was not as high as it would have been if he had undertaken the surgery when Dr Matheson had recommended it a year earlier. The plaintiff became very scared about the idea of surgery and fixated on the unlikely event that he would end up in a wheelchair [Transcript page 27 line 8 to 36].
128 On 29 May 2001 Dr Manohar reviewed the plaintiff. The plaintiff advised Dr Manohar that he was frightened of the risk of surgery and decided against such treatment [Exhibit A page 142].
Psychiatric injun' and treatment
129 The plaintiff commenced to see Dr Anthony Durrell, a psychiatrist, in July 2001 and Dr Durrell has been treating him regularly since then (i.e. initially fortnightly, and then on a monthly basis). From July 2001 to 15 March 2006 the plaintiff had 41 consultations with Dr Durrell. These consultations are continuing monthly.
130 Dr Durrell notes in his report to NRMA Workers Compensation that:
... the abrupt withdrawal of insurance support from January 2000 until April 2001 generated very high levels of psychosocial stress for Mr Garcia. This insurance related stress further fuelled his Depression and ultimately escalated his Depression from mild levels of severity to a moderate - severe form. This has in turn worsened his long-term prognosis and his responsiveness to treatment is impaired. The insurance issue has also left the Mr Garcia with recurrent uncertainties about future sudden withdrawals of insurance support....
Medical History
There are no significant premorbid organic factors contributing to his current depression. Past Psychiatric History
Mr Garcia has no past history of mental illness or drug/alcohol problem
Mr Garcia, since August 1999, has lost his role as the provider of the family and the cessation of his insurance payments for the 16-month period, January 2000 to April 2001, was a major source of prolonged psychological stress. Mr Garcia has
considerable levels of unresolved emotional tension relating to the insurance company "stuffing around with my life and my family life ... no compassion or care for me or my family during that time ... just acted like they had no responsibility to help me". Mr Gurcia endured the added psychosocial stress, related to insurance company's lack of support, at a time when he was psychologically and physically vulnerable.
... the level of psychosocial stress associated with the insurance company's abrupt withdrawal of support was sufficient to be seen as an additional causative factor in his ongoing Depressive illness. Moreover the severity and chronicity of his Depression impairs his long-term prognosis. This his long term prognosis has been adversely affected by his insurance support being withdrawn as a time when he was physically and mentally unwell,
This opinion is basic to the plaintiff's current claim.
131 The plaintiff contends that his depression has two causes: (i) chronic pain; (ii) denial of his compensation claim (after initial acceptance) and cancellation of his weekly payments from 22 January 2000 to 4 April 2001. He also says that if he had undergone the operation i.e. in May 2000, when Dr Matheson recommended, it is likely that he would not have suffered any depression, or at least depression which was significantly less serious,, as his pain would have been relieved. The view that pain would be relieved is supported by the report of Dr Van Gelder [Exhibit A page 141] If the pain that the plaintiff was suffering had been reduced at that time, it is likely that the plaintiff's outcome would have been better. Dr Durrell said [Transcript page 49 line 54 - 58]: "On the balance of probabilities if surgery was undertaken his pain was improved to a level, that would have certainly assist me as a psychiatrist to get him into a faster level of remissions and sooner period of time in a long term prognostic sense improve his outcome".
132 If the plaintiff had undergone the operation at that time, i.e. in February 2000 [see Transcript page 17 line 57 to page 18 line 7], when Dr Matheson had first recommended such a course, it is likely that the plaintiff would not have suffered any depression, or his depression would have been significantly less, as the operation, more probably than not, would have eliminated or reduced his pain, and he would not have had to continue to suffer the chronic pain. nor would he have had to undergo the humiliation of having his claim denied and having to face the fact that he was not able to support his family. I find that, despite the reservations the plaintiff expressed, it is more probable than not that, if the insurer had agreed to pay for the surgery at the time Dr Matheson recommended it, the plaintiff would have had the surgery.
133 Due to the plaintiff's depression, which was aggravated by the insurer's denial of the plaintiff's claim and the cancelling the plaintiff's weekly payments, the plaintiff was not able to make a rational decision about whether to have the surgical repair of his cervical discs due to his concerns about a negative outcome. This remains an ongoing problem for the plaintiff.
134 Due to the ongoing pain the plaintiff now has a chronic problem. If the operation is now carried out, he may still continue to feel the pain even though the cause of such pain has been removed. Dr Durrell advised that exposure to pain for a chronic period may create an impression that it is intractable. Depression may be similar [Transcript page 49 line 18 to 22].
135 On the 4 June 2002 the plaintiff was sent a cheque for $15,788.33
representing the plaintiff's full entitlements under his superannuation policy with CBUS - the Construction and Building Unions Superannuation [Exhibit F page 395].
136 I have considered carefully the report of Dr Lisa Brown, psychiatrist, tendered by the defendant. The differences between her report and that of Dr Durrell, the treating psychiatrist, appear to be mainly in terminology, in that she agrees that Mr Garcia is suffering from a major depressive illness. She is not in as good a position as the treating clinician to assess the development of this condition and its responses. Her remark as to whether or not the plaintiff would have developed the condition in any event is pertinent, but Dr Durrell in fact covers this area. Dr Brown also refers to a report of Dr Pickering, but this is not in evidence.
137 I find, on the basis of Dr Durell's opinion, that the actions of HIH in ceasing periodic payments to the plaintiff, and in refusing to pay for surgery to the plaintiff's spine at the time recommended by Dr Matheson significantly aggravated the plaintiff's major depressive illness.
The law: Contract
138 The contractual claim appears to be based on two propositions
a. the decision of the High Court in Trident General Insurance Co Ltd v
McNiece Bros Pry Ltd(WS) 165 CLR 107; and b. a statutory contractual or quasi-contractual obligation;
The statutory obligation is relevant also, in my view to the tort claim, as the plaintiff's arguments seem to assert that a possible source for the duty of care it says the defendant owed the plaintiff is derived from statute.
The alleged indemnity agreement
139 Although I am inclined to find that the plaintiff was, as pleaded, under common law principles, the beneficiary of an indemnity agreement entered into by the insurer and his employer, in the end, because of the conclusion I reach in relation to the tort claim, it is unnecessary for me to decide this matter or say much more about it.
The statutory framework
140 The workers compensation scheme of insurance is a compulsory statutory scheme of insurance for employers (see Workers Compensation Act 1987 ("the 1987 Act"), s 155). It was a scheme established for the benefit of the worker.
141 The insurance policy that applies to this statutory scheme is set out in Form 4 of Schedule 1 of the Workers Compensation (General) Regulation 1995 (NSW).
142 Clause 24 of the employer's insurance policy (issued to TW in respect of the plaintiff) states:
This Policy is subject to the provisions of the Act and the regulations under the Act and those provisions are taken to form part of this Policy.
The term "the Act" is defined in the insurance policy to mean the 1987 Act and includes the Workplace Injun' Management and Workers Compensation Act ]998.
143 The obligations to the worker of the insurer and employer are determined by this insurance policy. The plaintiff is entitled to enforce his rights under the policy as if he was a party to the agreement. The 1987 Act, s 159, relevantly states that
(2) A policy of insurance shall provide that:
a. the insurer as well as the employer is directly liable to any worker insured under the policy ...
(5) A liability, under a policy of insurance, of an insurer to a worker under a provision inserted in the policy under subsection (2) ... is enforceable as if the worker were a party to the policy.
(6) A contravention of subsection... (2) ... does not annul a policy of insurance or affect the liability of the insurer to the person insured under the policy.
144 This provision, especially paragraph (2)(a), overcomes any argument based on the theory that the plaintiff is not privy to the contract because he was not a party to a contract.
145 Although, because of the conclusion I have reached in relation to the liability of the defendant in tort, it is not necessary for me to determine this issue, it seems to me that the duty imposed under the statutory obligation can be described equally accurately as an implied contractual obligation, or, in this case, possibly an implied or statutory duty, breach of which may give rise to a torrious remedy. The content of the duty is, in each case, identical. However, where the matter is regarded as a tort, the plaintiff may be entitled to additional remedies.
The law: Tort
Does an insurer have a duty to act in good faith towards workers?
146 It is important that this claim is not pleaded as claim under what might be referred to as the general law of negligence. It is pleaded alternatively as a claim for breach of contract (further amended statement of claim, para 11) or as a breach of "duty to act in good faith to the plaintiff' (further amended statement of claim, para 12).
147 There seems to be no authority to the effect that an insurer owes a general duty of care to the beneficiary of an insurance policy issued by it, but there is a decision of the Supreme Court of New South Wales, (Gibson v Parkes District Hospital (1991) 26 NSWLR 9) which has been followed or approved in some other jurisdictions, to the effect that a workers compensation insurer owes, to a worker employed by its insured, a duty to act in good faith. That is quite distinct from a duty of care, as that expression is used in the context of the law of negligence, though in some cases the content of the duty may be similar. Strictly speaking, because they arose in the context of an application to strike out a pleading, the remarks of Badgery-Parker J are obiter. However, the application was based on the assertion that a plaintiff worker could not allege that a workers compensation insurer owed him a duty not to act in bad faith, so that what his Honour says seems to me to be directly in point. The logic of what his Honour said is compelling,
148 I do not read this decision as importing the whole of the law relating to the contractual duty of good faith into the law of torts. That duty is one owed mutually to each other by insurer and insured. It is well developed in the law of insurance contracts, though its content may vary: see E Peden, "Contractual Good Faith: Can Australia Benefit from the American Experience?" (2003) 15 BLR 175. Rather, when the expression is used in this area of tort law, it refers to a duty arising from the special relationship of the insurer and the worker, which imposes some, but not all, of the obligations arising under a contract, upon the
insurer. This includes the duty to receive and process bona fide claims by workers without bias or prejudice. Breach of the duty, therefore, does not constitute a tort analogous to negligence, and I do not accept the assertion of the defendant in this case to that effect.
149 In Gibson v Par
This case would never get off the ground in South Australia. First we have no anti corruption branches to monitor the corruption in our state. Perhaps a better chance in NSW or WA or Queensland where there is some accountability in the system.
Second when the judiciary make an adverse finding the parliamentarians all hit the media and bully the judges and lawyers to back down.
Plenty of cases that show the corrupt bully boy tactics.
Just look at the nemer case and eugene mcgee.
Then think about what happened to the lawyers being singled out who represented these and others in famous cases..
Check out the coronial enquiry.
He was obviously depressed and nobody took notice.
He had many attempts for someone to recognise his problem and help him. Alas it was all too late.
Its well known south australia is a state of injustice. If there were more funding for legal cases against Workcover there would surely be more injustices come to light. One such issue would be that Workcove rhas often breached its duty of care. Its now just a matter of time before they are pursued. Then the floodgates will really open. No longer will the liability be unfunded but it will be an actual liability owed to many of the injured workers that have been less denied a proper duty of care.
Police bullying probe to reopen
Nick McKenzie
January 18, 2007
Page 1 of 2 | Single page
Paul Mullett
An inquiry into bullying allegations against police union boss Paul Mullett will be revived, with the state Ombudsman set to find that the Victoria Police and the WorkCover Authority failed to fully investigate the claims.
In an embarrassing reversal, the force is likely to be given back the bullying investigation that it hand-balled to WorkCover in September.
At that time, Chief Commissioner Christine Nixon said the "finished" investigation had found a culture of bullying and harassment. Workcover's subsequent investigation concluded with no adverse findings.
The police probe began last May after Ms Nixon received a complaint under the Whistleblowers Act about the Police Association secretary's conduct. At least three other complainants then came forward.
The revival of the inquiry comes at a sensitive time, with police command and the union negotiating the next enterprise bargaining agreement and relations between Mr Mullet and Ms Nixon already strained.
Deputy Ombudsman John Taylor has spent several weeks investigating the handling of the inquiry by WorkCover and Victoria Police, rather than the content of the allegations.
It is believed he has found that allegations by the complainants were never properly tested or, in the case of WorkCover's investigation, not examined. Workcover had never obtained the victim statements given to police, he found. Nor had it interviewed or approached any of the complainants.
In one instance, Workcover investigators had relied on media reports to obtain relevant information, and its investigation had been largely confined to a pre-announced visit to the Police Association headquarters, brief interviews with some staff and a review of the organisation's anti-bullying procedures.
WorkCover has privately argued that its investigation was hampered because Victoria Police gave it scant information about the allegations to avoid disclosing the identity of complainants protected by the Whistleblowers Act.
But Mr Taylor is believed to have found a lack of rigour in the WorkCover investigation.
His criticism may have wider implications for the way WorkCover the state body that regulates workplace safety and welfare deals with bullying complaints and conducts its investigations.
Mr Taylor also examined Victoria Police's failure to complete a full investigation and its decision to hand the issue to WorkCover. The two superintendents appointed by Ms Nixon to examine the allegations found that they could be subject to further investigation.
[SUPREME COURT OF SOUTH AUSTRALIA]
THE QUEEN V PRASAD
KING CJ, WHITE and MOHR JJ
19 November 1979; 11 December 1979
23 SASR 161
Criminal law -- Trial -- Sufficient evidence at close of case for prosecution to make out a case for accused to answer -- Whether discretion in trial Judge to direct acquittal if he considers evidence so unsatisfactory that it would be unsafe for jury to convict upon it
Held (by King C.J. and White J., Mohr J. dissenting), that the trial Judge in a criminal case has no discretion to direct the jury to bring in a verdict of not guilty where there is a case to answer, even though the evidence for the prosecution is conflicting or unsatisfactory. He may invite the jury to do so, but may not direct them.
The Queen v. Mansfield (1977) 65 Cr. App. R. 276, not followed.
The Queen v. Kalaitzidas (1978) 20 S.A.S.R. 87 and The Queen v. Papps (1972) 4 S.A.S.R. 319, discussed.
Criminal Appeal.
The facts are set out in the judgment of Mohr J.
K. V. Borick and A. Marshall, for the applicant.
J. R. Sulan and S. T. Lane, for the Attorney-General.
Cur. adv. vult.
The following judgments were delivered:11 December 1979
KING CJ:
This is an application for leave to appeal against a conviction on a charge of obtaining a cheque for $7,000 by false pretences. The allegation against the applicant was that he obtained the money by purporting to sell the whole of the shares in a company which conducted a restaurant business, when in truth he owned only half the shares.
The case for the prosecution rested fundamentally on the evidence of Mrs. Penley to whom the other half of the shares had been allotted on the formation of the company. White J. and Mohr J. discuss her evidence in detail in their reasons for judgment which I have had the advantage of reading. The effect of her evidence is that she did not transfer her shares to the applicant. The prosecution's case derived some support from statements made by the applicant to the investigating detectives and the evidence of a former solicitor, Tennyson Turner. The applicant told the police that he had delivered the document of transfer of the shares, which he claimed to have received from Mrs. Penley, to Turner. Turner gave evidence denying that he had even seen or received the alleged transfer.
At the conclusion of the case for the prosecution counsel for the defence submitted that there was no case to answer or, alternatively, that
(1979) 23 SASR 161 at 162
the evidence was so unsatisfactory that, even with a proper direction, it would not be safe to allow the case to go to the jury. The learned Judge rejected the submission and the trial proceeded. The applicant made no answer either by sworn evidence or unsworn statement and called no evidence. After addresses of both counsel and the summing up by the trial Judge the jury brought in a verdict of guilty.
The applicant's counsel did not contend before us that there was no case to answer. He contended, however, that there was a discretion in the trial Judge to stop the case because of what he argued to be the unsatisfactory character of the evidence for the prosecution. He contended that her failure to do so was a wrong exercise of discretion and should result in the conviction being quashed in this Court.
The question whether there is a case to answer, which arises in a criminal trial at the close of the case for the prosecution, is a question whether on the evidence as it stands the accused could lawfully be convicted, that is to say, whether there is evidence with respect to every element of the offence charged which, if accepted, would prove that element: May v. O'Sullivan1 ; Zanetti v. Hill2 , per Kitto J. at p. 442. It is a question of law and if a submission of no case is made it must be ruled upon by the trial Judge: R. v. George3 . An erroneous rejection of a submission of no case is an error of law. If there is no case to answer, the judge should direct the jury as a matter of law that there must be a verdict of not guilty and the jury is bound to accept and act on that direction.
It was contended before us that although there is a case to answer there is nevertheless a discretion in the trial Judge to stop the case and direct a verdict of not guilty if he considers that the evidence for the prosecution is so unsatisfactory that it would be unsafe to convict upon it. This submission was based upon a practice which has grown up in England since the passing in that country in 1966 of an amendment to the Criminal Appeal Act, 1907, as a result of which the Court of Appeal is empowered to set aside a verdict of a jury on the grounds that it is unsafe and unsatisfactory. The history of the practice is set out in Reg. v. Mansfield4 , per Lawton L.J. at pp. 1105-1106.
Whatever justification might exist for the practice in England where the change as to the grounds upon which the Court of Appeal may intervene is now embodied in the Criminal Appeal Act, 1968, I cannot see any basis in principle for the adoption of the practice in this State. There has been no corresponding change in this State as to the grounds upon which the Full Court may interfere with a conviction. The ground in this State, which corresponds with the altered ground in England, remains that the verdict is unreasonable or cannot be supported having regard to the evidence. It seems to me that to say that a judge can direct a jury to bring in a verdict of not guilty when there is evidence capable in law of supporting a conviction is to infringe one of the basic principles of trial by jury. It is fundamental to trial by jury that the law is for the
(1979) 23 SASR 161 at 163
judge and the facts for the jury. If there is no evidence which would justify a conviction then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts. That, as it seems to me, would be contrary to law.
It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings: Archbold, Criminal Pleading and Practice 39th ed. (1976) p. 332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution's case. It is part of the tribunal's function as judge of the facts. It cannot, consistently with principle, exist in a judge whose function does not include adjudication upon the facts.
The second ground of appeal is that the verdict is unreasonable and cannot be supported having regard to the evidence. There was ample evidence, if believed, to justify the conviction. The issues of credibility of Mrs. Penley and Mr. Turner were for the jury. No doubt they were assisted in arriving at a decision by the fact that the evidence attacked by counsel was not contradicted. The applicant gave no version of the facts to the jury but relied upon such evidentiary value as they might find in his self serving answers to the detectives.
In view of the issues which were debated I would grant leave to appeal, but I would dismiss the appeal.
WHITE J:
The facts are set out in the reasons of Mohr J. and I need not repeat them. However, I propose to set out Mrs. Penley's cross-examination more fully to show the tenuous nature of her concession of the possibility that she might have transferred away her shares, and the
(1979) 23 SASR 161 at 164
correspondingly tenuous nature of the appellant's complaint that her evidence was so unreliable that the jury verdict is unsafe.
The simple facts are that Mrs. Penley was the registered owner of one half of the shares in Praspen Estate Pty. Ltd., the company name reflecting the Prasad and Penley interests respectively. As such shareholder, she was the person in the best position to know whether or not she had transferred away her half interest in the company to Prasad or to some one at his request. Admittedly, several years had passed since the events in question. Nevertheless, she said that she had not done so. Her claim to be the owner of one half of the shares was the crux of the Crown case against Prasad, who had represented to someone else that he owned all of the shares.
She said:
"Q. is it not a fact that you transferred your shares to Mr. Prasad or his representative? A. No, I have never signed anything to transfer my shares from that company.Q. Do you think you might have signed a share transfer without remembering it and even without your knowledge? A. No.
Q. Is it possible that you could have done that? A. No, it is not.
Q. Just signed a document that was put in front of you? A. No.
Q. That is not what you said at the preliminary hearing in this matter, is it? A. I don't know.
Q. Do you remember me asking you, "Is it not a fact that you transferred your share or shares to Mr. Prasad or his representative", and did you say, "Not to my knowledge, no"? A. That's correct.
Q. That's correct. You said that? A. Yes.
Q. Did I then ask you, "Well, do you think that that might have happened behind the scenes without your knowledge", and did you say, "It could have, I'm not sure"? A. Yes.
Q. Remember saying that then? A. Yes."
And:
"Q. Then I asked you, "But you signed a transfer of whatever shareholding you had, did you not", and his Honour said, "Perhaps you can clarify that transfer to or from". I went on "Transfer to somebody else in effect to Mr. Prasad". Do you see that? A. Yes.Q. Your next answer, you said, "That I can't answer. My husband would have to help on that query. All the facts and figures were not always told to me". "All the facts and figures were not always told to you". Answer "No". "So sometimes a document could be put in front of you and you would sign it without being told all the facts and figures", and you said, "Exactly". Do you see that passage? A. Yes.
Q. Do you agree that I was asking you there whether you might have signed a transfer of your shares to Mr. Prasad? A. Not to my knowledge, my husband's knowledge.
Q. But you see, at that hearing I asked you that question. "Do you think you might have signed a transfer of your shares to Mr. Prasad". Do
(1979) 23 SASR 161 at 165
you agree with that? That is what I was asking you there? A. I haven't signed any share certificate to Mr. Prasad."
And:
"Q. Isn't that the position you may have signed a transfer but you don't know, to transfer the shares back to Mr. Prasad but you don't know? A. I haven't signed any transfer back to Mr. Prasad.Q. At the preliminary hearing you said that you didn't know whether you had or not. That is the effect of it, isn't it, you had to ask your husband? A. Yes.
Q. That is different to what you are telling us today, isn't it? Isn't it? A. I don't think so. You can't always remember word for word what you have spoken, but as near as possible to telling the court the truth.
Q. But as near as possible perhaps is not enough here. Didn't you say, "That I can't answer. My husband would have to help me on that query. All the facts and figures were not always told to me". Did you or did you not say that?
Objection. Mr. Lane objects."
And:
"Q. What did you mean by your answer "Not to my knowledge, no"? A. I haven't signed any transfer of my shares in Praspen Pty. Ltd. to the best of my knowledge.Q. Is that still the position that you haven't signed any to the best of your knowledge? A. That is correct.
Q. Do you think then you might have signed something or you might have forgotten about it or you don't know what you were signing at the time? Is that possible? A. Itthere is only one word in that last letter that came back.
Q. Do you think it is possible that you might have signed the transfer of the shares to Mr. Prasad or his representative or you have now forgotten about it? A. No I haven't forgotten. I haven't signed.
Q. Or is it possible you didn't know what you were signing at the time? A. I haven't signed any shares to
Q. What did you mean "Not to my knowledge, no"? A. Exactly what it means. I haven't signed any papers without a proper meeting."
And:
"Q. You agree you said that at the preliminary hearing? A. Yes.Q. What did you mean by the answer, "That I can't answer. My husband would have to help me on that query. All the facts and figures weren't always told to me." You explain to the ladies and gentlemen of the jury what you meant by that answer that you gave them in answer to the same question I am asking you now. A. I give you the same answer now. I am not always with my husband to answer every business call that comes through or when there is business discussions down there. For advice such as from Mr. Turner. I can't sit down and listen to everything that is said.
(1979) 23 SASR 161 at 166
Q. I understand that but when I was asking you the same question at the preliminary hearing as to whether you might have signed this transfer and not recognised that it was a transfer, not understood it was a transfer you in effect said it is possible I might have but I would have to ask my husband about that query. Didn't you? A. Yes.
Q. Now that means clearly that you might have signed the transfer but you don't know doesn't it? A. I don't know.
Q. Isn't it possible that you may have signed a transfer of these shares back to Mr. Prasad? A. No I haven't signed any transfer of fees (sic). There would have been the proper way of doing it, businesslike to be done."
And:
"A. Yes. I have signed papers with my husband and Mr. Prasad. My husband has read through them and then I have signed them too after having a brief glimpse through.Q. Isn't it possible on one of these occasions that you may have signed a share transfer back to Mr. Prasad and you have now either forgotten it or didn't look at it very carefully at the time? A. No, I haven't signed anything."
And:
"Q. Is it a possibility that you could have signed this share certificate to transfer the shares back to Mr. Prasad and you have now forgotten about it, or didn't notice at the timeisn't that just a possibility? A. I don't think so.Q. But isn't it a possibility? A. It could be."
It was open to the jury to say, having listened to that intense cross-examination, that she was conceding the hypothetical possibility of something happening even though she was asserting that it had not happened. Having seen her and heard her, and all of the comments about the reliability of her evidence, it was for the jury, at the end of the day, to say whether they were left with any reasonable doubt about the truth of her assertion that she was still the owner of the shares and that she had not transferred them to Prasad.
If the jury was prepared to believe her, it did not matter whether the disbarred solicitor Turner was called to give evidence. When interrogated by the police, Prasad said that he left all of the company's books, share certificates and so on with the solicitor Turner including the particular share certificate which he, Prasad, told the police that he had personally collected from Mr. Penley and given to Turner; but it must be noted that he did not claim to have seen Mrs. Penley or to have spoken to her on the telephone about her signing the transfer of the shares to him or about collecting the endorsed share certificate from her.
In the exercise of his discretion, the prosecutor elected to call Turner to rebut Prasad's explanation as to the suggested whereabouts of the missing share certificate. Turner denied that he ever had the books of the company; in particular, that he had ever had Mrs. Penley's share
(1979) 23 SASR 161 at 167
certificate. Turner's character was attacked and the jury was told that he was a convicted cheat and liar whose word could not be accepted.
Again in the exercise of his discretion, the prosecutor elected not to call Mr. Penley, who was supposed to have given the share certificate to Prasad with Mrs. Penley's endorsement of transfer thereof "independently witnessed". It is not for us to speculate why Mr. Penley was not called by either the prosecution or the defence. Comments were made to the jury about his absence. We are not to know whether the appellant did see Mr. Penley on that day; or if he did, whether he was given any share certificate; or if he was, whether Mr. Penley had forged his wife's signature to the transfer and did not wish to give evidence about what had happened; or whether Mr. Penley was unavailable as a witness. We simply do not know. The jury must have been addressed about the absence of Mr. Penley and the absence of any explanation from the appellant himself, other than what he had told to the police when he was interrogated.
At the end of the prosecution case, Mr. Borick, counsel for the appellant, submitted that there was no case to answer in the sense that there was no credible or reliable evidence to go to the jury. He conceded that in law there was a case to answer if the evidence was credible and reliable but he wished the trial Judge to assume the jury function of saying that she herself did not believe Mrs. Penley (or that she herself was left with a reasonable doubt that Mrs. Penley might have transferred her shares to the appellant), and that she herself could not believe Turner's denial of possession of the certificate which Mrs. Penley might possibly have transferred and which Mr. Penley might possibly have handed to the appellant. Coupled with Mr. Penley's absence, the lapse of time and other factors, counsel contended that it was unsafe or dangerous to leave the case to the jury. The trial Judge in the exercise of her discretion ruled that there was a case to answer. On behalf of Prasad, Mr. Borick elected to call no evidence. After addresses and the summing up (which counsel described as completely fair) the jury convicted Prasad of obtaining $7,000 by falsely pretending that he owned all of the shares in the company.
Mr. Borick's argument pre-supposes the existence of a discretion in the trial Judge to direct an acquittal by the jury even though there is some evidence with respect to each element of the offence. There has been considerable fluctuation of opinion in England concerning the existence and nature of this discretion (Young5 ; Falconer-Atlee6 ; Barker7 ; and Mansfield8 . The latest case is Mansfield9 , which makes no reference, however, to Falconer-Atlee10 . In December, 1978, Walters J. relying upon Falconer-Atlee11 said to the jury in the case of The Queen v. Kalaitzidis12 :
"My function is not to weigh the evidence of Miss K., to decide whether or not I believe it, but rather to determine whether upon her
(1979) 23 SASR 161 at 168
evidence a reasonable jury, properly instructed in the law, could bring in a verdict of guilty against each accused. Where the evidence brought forward by the Crown has been shown to be discredited to a very marked degree; where it has been shown to be so unsafe and unsatisfactory, where it is so manifestly unreliable that no reasonable jury could safely act upon it, it seems to me that the judge should accept the responsibility of saying so, and that he should direct the jury to return a verdict of acquittal. The judge has the responsibility of stopping the case "there and then", and of inviting the jury to accept his direction and to return a verdict of not guilty. In the circumstances of this case, I fully accept that responsibility. In addressing these remarks to you, I have in mind the words that fell from Lord Justice Roskill in the case of The Queen v. Falconer-Atlee13 where the Lord Justice, in delivering the judgment of the Court of Appeal (Criminal Division) said: "If a judge thinks that the case is tenuous, then, even though there is some evidence against the accused person, the judge, if he thinks it would be unsafe or unsatisfactory to allow the case to go to the jury even with proper direction, should take upon himself the responsibility of stopping it there and then." In this connexion also, I would cite a practice direction, to similar effect, given by the then Lord Chief Justice of England, Lord Parker. His Lordship said:
A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable that no reasonable tribunal could safely convict upon it.14 Ladies and gentlemen, it seems to me that there are many infirmities, inaccuracies, inconsistencies and improbabilities in the story that Miss K. has told from the witness box. I need not refer to them in detail, because you have had full opportunity of hearing her evidence and of seeing her while she was under examination and cross-examination. However, I would be greatly surprised if you did not share my feelings of distrust in her testimony. In my considered opinion, her evidence is so manifestly unreliable and is of so doubtful a nature as to make it dangerous and unsafe to put any one of the accused to his defence. In view of the dubious and unreliable nature of her evidence, I think it would be quite unsafe for you to find any one of the accused guilty, and I therefore direct you to return a verdict of acquittal of each accused accordingly. Nevertheless, as my brother Sangster said in the case of The Queen v. Papps15 :
"When I say I direct you to acquit, those are the usual words, the effect of them however is this, I advise you to acquit; because I have no power to tell you what you will do and I can only advise you how I think you should act and it is not really unusual for a Judge to
(1979) 23 SASR 161 at 169
direct a jury to acquit at the end of the Crown case if the evidence has taken a turn in a particular direction. It would be extremely unusual, in fact I do not know of any case in South Australia, where the jury has refused to follow such a direction from the Judge. But I do not want to take your verdict of acquittal without telling you it must be your verdict; I have no power to force your hand, and you have the power to reject the advice."
In my view, however, it is proper for a judge, when he has heard the principal Crown witness and where he knows full well the nature of the whole of the evidence to be adduced by the prosecution, to stop the case, to withdraw it from the jury, and to direct the jury to return a verdict of acquittal, even before the stage has been reached at which the Crown closes its case.
Having said these things to you, I ask you to retire and to consider the evidence of Miss K. and the directions that I have given you. Remember, however, that the facts, as they have been introduced in the evidence of Miss K., are for you; it is for you to pass judgment on her testimony. Even so, I strongly advise that you return a verdict of not guilty in favour of each accused. But, since each accused is in your charge, it is for you to pronounce the appropriate verdict. If you pay heed to what I have said, it should not require a great deal of deliberation before you return the appropriate verdict.
Ladies and gentlemen, I invite you to retire and to consider your verdict. It should not take you long if you follow the advice that I have given you.
The jury retired at 10.56 a.m.
Mr. Moran: There is one matter that concerns me. They are not in a position to return a verdict of guilty.
His Honour: Nevertheless, it seems to me that as the accused are in charge of the jury, it is for the jury, if they wish, at this stage to return a verdict in accordance with my directions to acquit.
The jury returned at 11.09 a.m. with a unanimous verdict of not guilty as to each accused, and the accused were discharged."
In Mansfield16 , the Court of Criminal Appeal said:
"His second submission raised an interesting point. At the end of the prosecution's case Mr. Cockburn submitted to the judge that there was no case to answer and he did so, as he explained, on two grounds: first, that the evidence did not establish the offences charged in the indictment and, secondly and alternatively that even if there was evidence to establish the offences charged in the indictment the judge should withdraw the case from the jury on the ground that on the prosecution's evidence it would be unsafe for any jury to convict. The learned judge refused to allow Mr. Cockburn to make his submission on the second of these two grounds. The reason he gave was that this Court in the case of Young17 had disapproved of a submission of that
(1979) 23 SASR 161 at 170
kind and, secondly, because of a decision of this Court in Barker18 which was decided on November 7, 1975.The learned judge's recollection of the case of Young (supra) must have been faulty because the point dealt with in Young had nothing to do with the submission which Mr. Cockburn was seeking to make. So far as the case of Barker (supra) is concerned, it does not deal with the problem whether counsel can make a submission to the judge at the end of the prosecution's case that it would be unsafe to convict on the evidence then before the court.
In order to deal with this point it is necessary to go back a few years. The rules applied in the criminal courts about submissions of no case and the speeches of counsel are partly statutory and partly practice. The Criminal Evidence Act, 1865, as amended by the Criminal Evidence Act, 1898, and the Criminal Procedure (Right of Reply) Act, 1964, regulates the final speeches of counsel. Those statutes have no bearing upon the problem whether counsel can make a submission of no case. It has long been the practice of the courts to allow counsel to do so. Up till the early sixties the practice seems to have been that counsel submitted on the basis that there was no evidence upon which, if uncontradicted, a reasonable jury could convict. It is understandable why the submissions of counsel up to the early sixties took that form because, under the Criminal Appeal Act, 1907, if there was evidence upon which a reasonable jury could convict, the Court of Criminal Appeal would not interfere to quash the conviction.
There grew up in the two or three decades before the early sixties, and probably for a short time after the early sixties, a practice of inviting the jury to stop the case. This Court, in Young (supra), ruled that that practice was bad and should stop. In 1966 the old Criminal Appeal Act of 1907 was repealed and a new one came into existence in which the basis for allowing an appeal in a criminal case was changed. The Court was no longer to be concerned with the problem whether there was evidence upon which a reasonable jury could convict but with the question whether the verdict was unsafe or unsatisfactory. That change now finds its place in section 2 of the Criminal Appeal Act, 1968.
Mr. Mathew's recollection is that about the time when the change came into existence, namely 1966, the practice began at the Bar of inviting the judge at the end of the prosecution's case, to say that on the prosecution's evidence it would be unsafe for the jury to convict and accordingly the judge ought to withdraw the case from the jury. Mr. Cockburn submitted that that is now a well-established practice. That accords with the trial experience of the three members of this Court.
Unfortunately since this practice started in the criminal courts there has, it seems, been a tendency for some judges to take the view that if they think that the main witnesses for the prosecution are not telling the truth then that by itself justifies them in withdrawing the
(1979) 23 SASR 161 at 171
case from the jury. The Lord Chief Justice in his judgment in Barker19 pointed out that this was wrong and he did so in the following passage: "It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge's job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury and would have been quite wrong in the present case."20
Mr. Cockburn tells us, and of course we accept it, that he was not going to suggest to the learned judge that some of the witnesses were lying and therefore their evidence was unreliable. That would have been a matter solely for the jury. Mr. Cockburn intended to submit to the judge that some of the evidence was so conflicting as to be unreliable and therefore if the jury did rely upon it the verdict could be unsafe.
In our judgment he was entitled to make that submission to the judge and the judge was not entitled to rule that he could not."
Mansfield21 and Barker22 both state that "it is not the judge's job to weigh the evidence, decide who is telling the truth and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury".
That view seems to be contrary to both Falconer-Atlee23 and Lord Parker's practice direction quoted in Kalaitzidas24 . Sangster J. in Papps25 recognized the difficulty about directing the jury, as opposed to inviting them, to acquit. It seems that in England, as a result of a change in the law not followed here, a fine distinction is now drawn between a submission that "some of the witnesses were lying and therefore their evidence was unreliable" (which must be rejected by the trial judge) and a supposedly different submission that "some of the evidence was so conflicting as to be unreliable and therefore if the jury did rely upon it the verdict would be unsafe" (which must be heard and ruled upon by the trial judge). With respect, I cannot see any material difference between the two submissionseven though evidence is conflicting, the resolution of the conflict is still a matter for the jury. If a witness says one thing in examination-in-chief and another in cross-examination, the jury may believe the former but not the latter (or vice versa). The differences are rarely black and white contrasts. If one prosecution witness says one thing and another prosecution witness says another about the same matter, the jury still must decide where the truth lies, in spite of conflicting evidence.
The practice in England has led to considerable confusion there, as the recital in Mansfield26 demonstrates. In the absence of a corresponding change in the law and practice direction, I think that the reliability of
(1979) 23 SASR 161 at 172
the evidence rests with the jury, whether the supposed unreliability of the evidence arises from the supposed lies or supposed conflict.
In this way, the time-honoured separate functions of judge and jury will be preserved. There still remains the duty to direct the jury to acquit, on a submission of no case, if there is no evidence on a particular element of the charge. But once there is some evidence on each element, its weight is for the jury. This also leaves to the trial judge the right to make suggestions to the jury or to ask the jury their views where the evidence appears to be so unreliable that it could not support a verdict of a jury properly directed. Such suggestions and advice should not, I think, ever take the form of directing the jury what to do within their own province.
If we did recognize the kind of discretion urged upon us by Mr. Borick, difficulties would be created for juries, accused persons, counsel, trial judges and courts of appeal. In this case, Mr. Borick submitted that the Full Court could stand in the same position as the trial Judge did before she had exercised her "discretion"; and that, as she had exercised her "discretion" erroneously in his opinion, the Full Court could exercise the same "discretion" as if it had never been exercised. Counsel was unable to point to any error of law or misapprehension of fact on the part of the learned trial Judge which would enable this Court to say that she had exercised her "discretion" erroneously. He attempted to overcome that hurdle by asking this Court to look at the matter afresh. Even if this Court could go back to that point of time, I can only say for my part that I would have exercised my "discretion" in the same way. However, it is neither possible in law nor necessary in fact to go back to that point of time. The trial progressed in a fair and regular manner. After the trial Judge's ruling, the appellant deliberately and after advice from experienced counsel, took one of the three alternative courses open to him. He elected to stand mute and to call no evidence. All of the considerations about credibility of witnesses and about inferences which might be drawn from Mrs. Penley's concessions, and about the absence of Mr. Penley and the credibility or otherwise of Mr. Turner, were put to the jury. The jury must have accepted Mrs. Penley as a witness of truth who was not conceding as a reasonable possibility that she had signed any transfer of her shares to the appellant. It is not possible in these circumstances for this Court to substitute its own ruling for the trial Judge's ruling against counsel's submission of no case to answer.
The appellant has not shown that the verdict is unreasonable or cannot be supported having regard to the evidence. Accordingly, I agree that the appeal should be dismissed.
MOHR J:
This is an application for leave to appeal against conviction.
The appellant was convicted in the Central District Criminal Court on 20th September, 1979, for the offence of false pretences. The information against him read:
"Narendra Prasad on the 5th day of November, 1974, with intent to defraud obtained from Masud Moughelbay a bank cheque No. 152325
(1979) 23 SASR 161 at 173
drawn on the Bank of New South Wales, Hindley Street Branch, to the amount of $7,000.00 by falsely pretending that he had 1,000 fully paid shares in Praspen Estate Pty. Ltd. (including 2 class "A" shares) to sell."
At the trial it was undisputed that Praspen Estate Pty. Ltd. was incorporated on 4th April, 1973, and that the "Return of Shares" lodged by the accused with the Companies Office on the 25th April, 1973, showed the accused as the holder of one class "B" share and 499 class "C" shares and one Victoria Patricia Lean Penley as the holder of one class "A" share and 499 class "C" shares in the company. Mrs. Penley was an original subscriber to the company and signed the Memorandum and Articles of Association of the company along with the appellant. The shares referred to above were the only shares allotted.
The company became in due course the proprietor of a restaurant known as "The Cedars" in Hindley Street, Adelaide. The restaurant was purchased from one Moughelbay and his wife. This transaction took place on 2nd August, 1974. According to what the accused told the police when he was interrogated the shares allotted to Mrs. Penley had been transferred by her to him (except the single class "A" share which was transferred to his then secretary, Miss Bayliss, for the purpose of complying with the Companies Act) prior to this transaction as she (Mrs. Penley) did not want to become involved in the restaurant business. This share was the class "A" share originally allotted to Mrs. Penley.
The appellant told the police that Mrs. Penley had made these transfers prior to the company acquiring the restaurant as she did not wish to become involved in the restaurant business.
On 5th November, 1974, the restaurant was effectively transferred back to Mr. and Mrs. Moughelbay by Miss Bayliss purporting to transfer the class "A" share to Mrs. Moughelbay and the appellant purporting to transfer 999 class "C" shares to Mr. Moughelbay. The consideration received by the appellant was the $7,000.00 referred to in the information.
In August, 1978, Mrs. Penley discovered through a chartered accountant, Mr. Taylor, that she was no longer registered as the proprietor of any shares in the company. She made a demand on the company.
Mrs. Penley maintained throughout her evidence that she had never transferred her shares in the company to anyone. She had been aware since 1974 that the company had run a restaurant for a time during that year. The closest Mrs. Penley came to continued suggestions that she had somehow transferred her shares to the appellant was towards the end of her cross-examination when the following exchange took place:
"Q. Is it a possibility that you could have signed this share certificate to transfer the shares back to Mr. Prasad and you have now forgotten about it, or did not notice at the timeisn't that just a possibility?A. I don't think so.
Q. But isn't it a possibility?
A. It could be."
The appellant during his interrogation by the police stated that he had handed the share transfer signed by Mrs. Penley along with other records
(1979) 23 SASR 161 at 174
of the company to Mr. Tennyson Turner, then a solicitor but now having been struck off the roll of legal practitioners following his convictions for fraudulent conversion. Mr. Turner acted in the matter of the transfer of the shares from the appellant and Miss Bayliss to Mr. and Mrs. Moughelbay. Mr. Turner was called as a witness by the prosecution and denied that he was handed a transfer of shares from Mrs. Penley and that he had been handed the books of the company as the appellant had told the police.
The above represents in short terms the case for the prosecution, i.e. that the appellant had never been the owner of more than 500 shares in the company and had falsely pretended to be the owner of 1,000 shares. The Crown case rested squarely on the evidence of Mrs. Penley that she had not transferred her shares to the appellant and what support that evidence got from the evidence of Mr. Turner, that he had never been handed a transfer signed by Mrs. Penley nor had he been given the books and records of the company.
At the conclusion of the Crown case counsel for the appellant whilst conceding that, in law, a prima facie case had been made out which could go the jury applied to the learned trial Judge that in the exercise of her discretion she should direct the jury to acquit because it was submitted the evidence from Mrs. Penley was so qualified by her answer that it "could be a possibility" that she had signed a transfer and that because of his character the evidence of Mr. Turner could not be relied on.
The learned trial Judge, after reflecting on the matter overnight, ruled against this submission and indicated that she proposed to allow the matter to go to the jury. The appellant's counsel thereupon obtained a short adjournment and on the trial resuming indicated that the appellant would neither give evidence nor make a statement from the dock.
It was conceded by the appellant's counsel, and properly so, that her Honour's summing up was without fault and that she had fairly and properly put to the jury the defence case.
The grounds of appeal are:
"
1. That the learned trial Judge erred in that she should have directed the jury not to convict the accused because:
(I) at the close of the Crown evidence there was no case for the accused to answer;
(II) in the alternative, the evidence tendered by the prosecution was so tenuous and in such an unsatisfactory state that it was unsafe to leave the case to the jury for their consideration.
2. That the verdict of the jury was unreasonable nor could it be supported having regard to the evidence."
The second ground can be quickly disposed of. The verdict must mean that the jury accepted the evidence of Mrs. Penley either with or without the supportive evidence of Mr. Turner. This was clearly open to them. The second ground therefore fails. It is the first ground, or rather the second limb of it, which was strongly argued by the appellant's counsel.
(1979) 23 SASR 161 at 175
As remarked earlier it was conceded at the hearing of the appeal that as a matter of law there was a case to answer. In other words a plea of no case to answer based on the argument that the prosecution had led evidence which, even if believed, was not capable of proving one or more of the legal ingredients of the offence must have failed. This in my opinion is clear.
The problem arises as to whether or not a trial judge has a discretion in those circumstances (i.e. where evidence which is capable, if believed, of supporting the charge has been led by the prosecution) to direct the jury to acquit because of the unsatisfactory nature of the Crown case. The adjective "unsatisfactory" is here used in a neutral sense.
Of course if the discretionary power to so direct an acquittal or withdraw the case from the jury does not exist then this appeal must fail on that ground.
It therefore becomes necessary to decide whether or not such a power exists in this State.
That there is a practice, subject to some English criticism as will be seen, of inquiring of a jury whether they are prepared "at this stage" to bring in a verdict of "not guilty" is known to the Court. The correctness or otherwise of that practice is not here in question. What is in question is whether a trial judge has a discretionary power to direct an acquittal even though there is, as a matter of legal technicality, a case to answer.
In England there is clear authority not only for the existence of the discretion but further that the trial Judge is, in certain circumstances under a duty to direct an acquittal. See Reg. v. Joan Falconer-Atlee27 , where Roskill L.J. said:
" the learned judge, having ruled that there was evidence to go to the jury, went on almost to invite the jury to stop the case. This Court has repeatedly said in recent years that the practice should not be followed. If a judge thinks that a case is tenuous, then, even though there is some evidence against the accused person, the judge, if he thinks it unsafe or unsatisfactory to allow the case to go to the jury even with a proper direction, should take it upon himself the responsibility of stopping it there and then. If the judge is not prepared to stop the case on his own responsibility it is wrong for him to try and cast the responsibility of stopping it on to the jury."
In Reg. v. Mansfield28 the accused's counsel made two submissions: (1) that there was no case to answer, and (2) that the trial Judge should direct an acquittal on the ground that it would be unsafe to convict. He was permitted to make the first submission (which proved to be unsuccessful) but the trial Judge refused to entertain the second. On this the Court of Appeal said he was wrong.
At page 281, Lawton L.J. said:
"There grew up in the two or three decades before the early sixties, and probably for a short time after the early sixties, a practice of
(1979) 23 SASR 161 at 176
inviting the jury to stop the case. This Court, in Young, ruled that that practice was bad and should stop. In 1966 the old Criminal Appeal Act of 1907 was repealed and a new provision came into existence in which the basis for allowing an appeal in a criminal case was changed. The Court was no longer to be concerned with the problem whether there was evidence on which a reasonable jury could convict but with the question whether the verdict was unsafe or unsatisfactory. That change now finds its place in section 2 of the Criminal Appeal Act, 1968.Mr. Mathew's [counsel for the Crown's] recollection is that about the time when the change came into existence, namely 1966, the practice began at the Bar of inviting the judge at the end of the prosecution's case, to say that on the prosecution's evidence it would be unsafe for the jury to convict and accordingly the judge ought to withdraw the case from the jury. Mr. Cockburn [counsel for the appellant] submitted that that is now a well-established practice."
It will be noticed that the practice in England is said to be founded on the change in law in 1966. The law in this State has not been altered in the same way but s 353 of the Criminal Law Consolidation Act provides, inter alia, that an appeal should be allowed if the Court thinks "that on any ground there has been a miscarriage of justice".
In the Victorian case of Wilson v. Kuhl29 , McGarvie J. had this to say:
"In a case where there is evidence which, if accepted, would provide evidence of each element of the charge, a magistrate may still in some cases be entitled to exercise a discretion to dismiss the information without calling on the defendant. Where technically there is evidence on which the defendant could lawfully be convicted but the magistrate concludes that there is a mere scintilla of evidence or that the evidence is so lacking in weight or reliability that no reasonable tribunal could safely convict on it, he may dismiss the information: Benney v. Dowling30 ; Mooney v. James31 ; Practice Note32 .The position is similar upon a criminal trial before judge and jury. Where technically there is evidence on which the accused could lawfully be convicted but the judge concludes that it would be unsafe or unsatisfactory to convict on the evidence, he may withdraw the case from the jury. R. v. Mansfield33 .
The exercise of a discretion to dismiss an information notwithstanding that technically there is a case to answer is not strictly a ruling that there is no case to answer. However, it is often referred to as such, e.g.: Sharp v. Hotel International Ltd.34 ; R. v. Mansfield35 .
The effect of the exercise of the discretion is, of course, that the defendant is not called on to answer the prosecution's case.
(1979) 23 SASR 161 at 177
In this case it is necessary to decide in relation to each information whether at the close of the informant's case (a) there was evidence on which the defendant could lawfully be convicted, and if so, (b) whether the magistrate was entitled (i) to conclude that no reasonable tribunal could safely convict and (ii) to exercise a discretion to dismiss the information."
Although his Honour was there primarily dealing with an appeal from a Magistrate he made direct obiter reference to a trial before a Judge and jury.
The existence of such a discretionary power would seem to accord with good sense and the proper administration of justice. The cases will be few in number where a trial judge would be minded to exercise his discretion so as to withdraw a case from the jury and as was pointed out in Mansfield's case36 it should never be so exercised when the ultimate decision will rest on the view to be taken of a witness' credibility. To do so would be to usurp the function of the jury. The cases where an appellate court would interfere with the trial Judge's exercise of this discretion will be very rare indeed.
Holding therefore that the discretion does exist, the question remains whether or not the learned trial Judge correctly exercised it. In the subject case it is clear that the ultimate question of "guilty" or "not guilty" rests on the acceptance or otherwise of Mrs. Penley's evidence that she had never transferred her shares to the appellant and to a lesser extent on the credibility of Mr. Turner. This being the case, in accordance with the principles laid down in Mansfield's case37 the circumstances for the exercise or non-exercise of the discretion did not arise, but be that as it may there are no grounds for saying that, assuming the occasion had arisen for the exercise or non-exercise of the discretion, the learned trial Judge in this instance was in error.
Leave to appeal is therefore refused.
Appeal dismissed.
Solicitor for applicant: A. Marshall.
Solicitor for the Attorney-General: The Crown Solicitor.
1 (1955) 92 C.L.R. 654, at p. 658.
2 (1962) 108 C.L.R. 433.
3 (1908) 25 T.L.R. 66.
4 [1977] 1 W.L.R. 1102.
5 (1964) 48 Cr. App. R. 292.
6 (1973) 58 Cr. App. R. 348, at p. 357.
7 (1975) 65 Cr. App. R. 287.
8 (1977) 65 Cr. App. R. 276, at pp. 280-282.
9 (1977) 65 Cr. App. R. 276.
10 (1973) 58 Cr. App. R. 348.
11 (1973) 58 Cr. App. R. 348.
12 (1978) 20 S.A.S.R. 87, at pp. 91-93.
13 (1973) 58 Cr. App. R. 348, at p. 357.
14 [1962] Crim. L.R. 160.
15 (1972) 4 S.A.S.R. 319, at pp. 330-331.
16 (1977) 65 Cr. App. R. 276, at pp. 280-282.
17 (1964) 48 Cr. App. R. 292.
18 (1975) 65 Cr. App. R. 287.
19 (1975) 65 Cr. App. R. 287.
20 (1975) 65 Cr. App. R., at p. 288.
21 (1977) 65 Cr. App. R. 276.
22 (1975) 65 Cr. App. R. 287.
23 (1973) 58 Cr. App. R. 348.
24 (1978) 20 S.A.S.R. 87.
25 (1972) 4 S.A.S.R. 319.
26 (1977) 65 Cr. App. R. 276.
27 (1973) 58 Cr. App. R. 348, at p. 357.
28 (1977) 65 Cr. App. R. 276.
29 [1979] V.R. 315, at p. 319.
30 [1959] V.R. 237, at p. 242.
31 [1949] V.L.R. 22, at p. 32.
32 [1962] 1 All E.R. 448.
33 [1977] 1 W.L.R. 1102.
34 [1969] V.R. 103, at p. 108.
35 [1977] 1 W.L.R. 1102, at p. 1105.
36 [1977] 1 W.L.R. 1102.
37 [1977] 1 W.L.R. 1102.
.----------
Should professional sportspeople claim WorkCover like every other worker in the State?
At the moment they can't, but this week a footballer won a Supreme Court case that opens they way for sportspeople injured during the 90s to make claims, and an Adelaide lawyer says it's time the law was changed for all professional sports players to use WorkCover.
He warns players can't rely on their clubs to protect their interests once their careers are over.
NEIL SACHSE: When they get injured, the injuries can last them a lifetime, and therefore be very expensive, so I think it's one of the most important things in any sort of sport.
IAN HENSCHKE: Neil Sachse knows the life-shattering cost of a serious sporting injury and the lifesaving value of insurance.
The former footballer today is executive officer of the Spinal Research Fund.
He became a quadriplegic 28 years ago after a sickening collision during only his second VFL game for Footscray.
There was no WorkCover back then, but he was fortunate enough to be insured for a small amount by today's standards.
The former North Adelaide and State star player says you are flirting with danger if you play any contact sport without proper cover.
NEIL SACHSE: I s'pose I was fairly lucky in that I was the first beneficiary of any sort of insurance policy, back in those days, that the VFL had taken out.
And it's become a costly exercise, and it could break you, really.
Players either should have an insurance policy that's paid for by the club, or be able to have access to a WorkCover-type scheme.
IAN HENSCHKE: One sport star who didn't have access to WorkCover until this week is former Power rover Danny Morton.
DANNY MORTON: It certainly had a large impact on my career.
I was playing some pretty good footy up until that time.
I'd played every game for Port, unfortunately hurt the neck, and then played seven games in the next two years for the club.
But the career did take a pretty significant nosedive since that.
IAN HENSCHKE: After badly injuring his neck five years ago, Danny Morton found himself amongst the footballers and other professional sportspeople who were excluded from claiming WorkCover under what was known as the 'Crows rule'.
The rule was brought in by WorkCover and the government in 1991 when the Adelaide Crows entered the AFL.
It effectively disqualified professional sportspeople from claiming compensation if they were injured during a game.
Danny Morton challenged the validity of the regulation, and this week won his case before the full bench of the State Supreme Court.
DANNY MORTON: I know there's been some questions as far as it being a landmark decision, and you've pioneered this, and all this sort of stuff, and you know that certainly was the furthest thing from my mind, as far as -- I was just looking on a personal thing.
I think the ruling will now open the door for others that didn't think they had a case.
IAN HENSCHKE: The Supreme Court finding only covers the period between 1991 and 1999, when the Crows rule was changed.
GREG GRIFFIN.
SPORTS LAWYER: Well, up until the Morton decision, they simply had no expectation that they would be covered.
To the contrary, they were told they had no claim.
IAN HENSCHKE: Sports lawyer Greg Griffin, who also is acting for former Crows ruckman Shaun Rehn, says he's been inundated with claims by other sports stars injured in the 1990s.
The latest list includes Tony Modra.
GREG GRIFFIN: The Morton claim is substantial.
The Rehn claim, I think, is very substantial.
Tony Modra -- he suffered a very bad injury.
The question is how serious the residual disability is in his knee.
And Mathew Kelly, for example -- he never played football again after his wrist injury, which basically brought an end to what was a stellar career.
He was only 22.
IAN HENSCHKE: WorkCover's Paul Roberts says the court ruling will not be challenged, and it won't put WorkCover under financial pressure, as it has has more than $600 million available for payouts.
PAUL ROBERTS, WORKCOVER: There really are not too many SA sports professionals who would be eligible to make a claim for this period.
There's a limited number of sports professionals who would have been earning the kind of annual income the act would allow, and a limited number who would be earning their entire livelihood from sport.
IAN HENSCHKE: WorkCover says its premiums will not go up as a result of new claims from the court case, and the clubs involved won't be penalised.
PAUL ROBERTS: Our intention is that we're not going to go back to sporting clubs which would have been involved, which would have had sporting professionals, to ask them to pay the levy retrospectively.
We think that's not appropriate, and probably not lawful as well.
We're not going to go down that path.
Effectively, we're really looking at some retrospective claims, and we don't think the liability is going to be too significant.
IAN HENSCHKE: Adelaide Crows chief executive Steven Trigg has welcomed the news that there won't be any retrospective levies, and says any claims are now a matter for WorkCover.
Danny Morton's claim is now the first on the list.
Since 1998, his young family has had to get by on savings and club insurance payments, and given the large contracts paid to players nowadays, he appears to have missed out on a lot more than just matches.
DANNY MORTON: It hasn't been a total loss for me, you know?
I've had a wonderful career -- I certainly don't leave the game hurt or bitter.
I feel blessed to have even graced an AFL field, given the body that I've been given, so I certainly don't leave the game regretful or hurt.
IAN HENSCHKE: Danny Morton is now studying to be a primary school teacher, and he hopes this week's court case will help him get a speedy resolution of his claim.
DANNY MORTON: I mean, everyone likes to be able to provide for their family and give their family the best opportunity, and hopefully, with this, that'll go a long way to ensuring that.
GREG GRIFFIN: Clubs insure only for their liability for a set contractual period.
Now, most players don't have any or sufficient insurance to cover themselves for disability and the like.
Now any worker in this State who is injured can go to WorkCover, and thereafter, WorkCover have a regime in place which will make sure that they don't suffer economic hardship, whereas professional sportspeople, when their contracts end, they're on their own.
THE STATE OF SOUTH AUSTRALIA -v- ELLIS [2008]
Catchwords:
Employer's liability - Estate claim - Asbestos - Lung cancer - Death due to progressive lung cancer - Is lung cancer a divisible or indivisible disease - Employment in industry involving exposure to asbestos - Peak exposures to asbestos - Quantification of exposure - Latency - Two periods of employment - Relevance of separately evaluating the contribution made by each defendant - Material contribution - Causation - Deceased formerly a smoker - Tobacco smoking a significant cause of fatal lung cancer - Extent of exposure to asbestos in working environments - Relatively low levels of asbestos exposure - Potential cumulative effects of exposure - Potential interaction of tobacco smoking and exposure to asbestos fibres as multiplying the toxic effect of both substances - Acceleration of onset of lung cancer - Significance of early onset of cancer after exposure to asbestos in either workplace - Significance of statistical attempts to estimate harmful concentrations of asbestos fibres in working environments - Breach of employers duty - Superseding cause - Contributory negligence
Legislation:
Industrial Safety Code Regulations 1975 (SA), r 39(1), r 39(2), r 39(3), r 39(4)
Industrial Safety, Health and Welfare Act 1972 (SA)
Occupational Health, Safety and Welfare Act 1984 (WA)
Occupational Health, Safety and Welfare Amendment Regulations (No 2) 1991 (WA)
Occupational Health, Safety and Welfare Regulations 1988 (WA), r 103, r 322, r 801, r 803, r 804, r 808, r 815, r 816, r 823, sch 3
Result:
Grounds 1, 2, 3 and 5 of the appeal are dismissed
Ground 4 of the appeal is upheld and the reduction of 10% arrived at by the trial judge in respect of Mr Cotton's contributory negligence is substituted by a reduction of 50%
Category: A
Representation:
Counsel:
First Appellant : Mr G M Watson SC & Ms C J Thatcher
Second Appellant : Mr G M Watson SC & Ms J M Kubacz
Third Appellant : Mr G M Watson SC & Mr S J Rushton
Respondent : Mr B W Walker QC & Mr J R C Gordon
Solicitors:
First Appellant : State Solicitor for Western Australia
Second Appellant : Minter Ellison
Third Appellant : Lavan Legal
Respondent : Slater & Gordon
Case(s) referred to in judgment(s):
MARTIN CJ:
Introduction
1 The appellants, the State of South Australia, Amaca Pty Ltd (Amaca) (formerly James Hardie and Coy Pty Ltd) and Millennium Inorganic Chemicals Ltd (Millennium) (formerly SCM Chemicals Ltd) appeal from a judgment entered against them in favour of Ms Teresa Ellis, in proceedings which she commenced against them in her capacity as the executrix of the estate of the late Paul Steven Cotton (Mr Cotton).
2 Each of the appellants was found liable on the basis that their breaches of duty had resulted in Mr Cotton being exposed to respirable asbestos fibre which caused, or materially contributed to, his contraction of lung cancer.
3 Mr Cotton was born in Adelaide, South Australia, on 6 October 1956. During his childhood, he lived with his family in a brick house in a suburb of Adelaide. There was no suggestion in the evidence that he experienced any particular exposure to asbestos fibres during his childhood or adolescence, beyond that exposure to which all members of an urban community are subject.
4 Mr Cotton left school at the age of 16, and commenced employment in a variety of capacities. At the age of 17 he took up smoking cigarettes. He smoked continuously for a bit over 26 years, until he was diagnosed with lung cancer in May 2000. The evidence, which the trial judge accepted, was to the effect that throughout this period, Mr Cotton smoked between 15 and 20 cigarettes per day. When the reasons of the trial judge are read as a whole, it is clear that references to 'half a pack a day' in those reasons should be taken to be references to half a pack of 30 cigarettes.
5 On 4 September 1975, Mr Cotton commenced employment with the Engineering and Water Supply Department of South Australia (EWSD). In the first 6 months of his employment he worked as a gardener and had no particular exposure to asbestos. However, from about March 1976, he worked as a member of a gang engaged in the laying of pipes made of asbestos cement manufactured by Amaca. Occasionally the gang would be engaged in repairs and maintenance work in respect of previously laid pipes. Mr Cotton worked in that capacity until 2 October 1978; that is, for a period of about 2.5 years.
6 After ceasing employment with EWSD, Mr Cotton worked in a variety of capacities in outback South Australia and the Northern Territory. He met Ms Ellis in the Northern Territory in about 1981. They formed a relationship and lived together in a de facto relationship until Mr Cotton's death. They had four children.
7 Mr Cotton lived with his family in Katherine in the Northern Territory until moving to Western Australia in 1989 or 1990. There is no evidence to suggest that he experienced any particular exposure to asbestos while living and working in the Northern Territory.
8 On 19 April 1990, Mr Cotton commenced work with Millennium. He worked for Millennium until 19 February 1991, when he was laid off because of lack of work. He resumed employment with Millennium on 14 October 1991 until 28 January 1993, when he was again laid off. However, he resumed work with Millennium shortly thereafter on 11 February 1993, and remained employed by Millennium until his death on 6 January 2002. As I have noted, his lung cancer was diagnosed in May 2000, when he was 43 years of age.
9 During Mr Cotton's employment with Millennium he was engaged in a variety of work. It will be necessary to review the evidence and findings in relation to the particular activities which he carried out during his employment with Millennium in some detail later in these reasons.
10 Mr Cotton commenced proceedings claiming damages for personal injury against each of the appellants prior to his death. Following his death, Ms Ellis was substituted as the plaintiff.
11 The causes of action relied upon against EWSD were negligence, breach of a term to be implied into the contract of employment (said to be co-extensive with the duty of care imposed upon employers at common law) and breach of statutory duty. The same causes of action were asserted against Millennium. As against Amaca, the only cause of action relied upon was negligence, and in particular breach of Amaca's duty of care as manufacturer and supplier of the asbestos cement pipes upon which Mr Cotton worked while employed by EWSD. The trial judge found each cause of action against each appellant had been made out.
12 The appellants had each relied upon a variety of defences, including contributory negligence. Having found in favour of Ms Ellis in respect of the claims in contract against both EWSD and Millennium, the trial judge concluded that contributory negligence was not available as a defence to, or in reduction of, those claims. That conclusion is not challenged. However, in respect of the claim against Amaca, the trial judge upheld Amaca's contention that Mr Cotton had failed to take adequate care for his own safety, by smoking after being warned by a medical practitioner not to do so in 1992, and he reduced the claim against Amaca by 10% by reason of that contributory negligence.
13 The assessment of the damages awarded against each of the appellants was complicated by the different legal provisions applying to fatal accident claims in South Australia and Western Australia. However, as no issue is taken with the assessment of damages by the trial judge, it is unnecessary to traverse those issues or particularise the amounts awarded.
The reasons of the trial judge
14 The reasons of the trial judge occupy 354 pages. Their length reflects the complexity of the issues and the breadth of the evidence adduced, which included many reports and scientific articles. However, the sheer length of the reasons provided, combined with the fact that they were no doubt compiled during successive intervals between commitments to other judicial duties, has meant that there are inconsistencies between the findings made at different points in the reasons. I will identify those inconsistencies later.
The grounds of appeal
15 The grounds of appeal are expressed in general terms. Detailed written and oral submissions were advanced in amplification of the grounds, which challenged many of the findings of fact and conclusions of law at which the trial judge arrived. The length of the reasons given by the trial judge, the breadth of the evidence adduced at trial, and the breadth of the issues raised on appeal have each affected the time taken to give proper consideration to the issues, and the length of these reasons.
16 In these reasons I will deal firstly with the issues raised by the appellants in relation to the findings of fact made by the trial judge, and then with the issues they have raised in relation to the approach which the trial judge took to the legal issues.
The factual issues
17 I will deal firstly with the challenges made to the findings relating to Mr Cotton's employment by EWSD. Those challenges essentially relate to the findings made in respect of the composition of the asbestos cement pipes upon which Mr Cotton worked, in particular, the types of asbestos within those pipes when compared to other asbestos cement pipes which were the subject of tests and reports, and the amount of time per day during which Mr Cotton was engaged in tasks which exposed him to respirable asbestos fibre.
The composition of the pipes
18 As the trial judge found [66], asbestos occurs in different forms in nature. The three forms most commonly encountered are crocidolite (known as blue asbestos), amosite (known as brown asbestos) and chrysotile (known as white asbestos). Crocidolite and amosite are both forms of amphibole asbestos (being the name given to the type of rock from which they form). Chrysotile asbestos, on the other hand, is not an amphibole as it derives from serpentine rock. The amphibole forms of asbestos are now known to be significantly more toxic than the serpentine forms, and within the amphibole forms, crocidolite is known to be significantly more toxic than amosite. The amphibole forms of asbestos are also known to give rise to higher concentrations of respirable fibre when disturbed - such as when cut.
19 In relation to asbestos products (including asbestos cement) manufactured within Australia, the predominant source of crocidolite was the blue asbestos mine at Wittenoom. However, that mine closed in 1966, and generally speaking, the use of crocidolite within Australian cement products was phased out following the closure of that mine.
20 The trial judge dealt with the evidence relating to the composition of the asbestos cement pipes upon which Mr Cotton worked when employed by EWSD: [66] - [78]. At [72] he refers to the report of an expert witness, Professor de Klerk, in which he referred to the type of asbestos in the pipes as having been likely to have been of mixed type. As the trial judge records, in oral evidence (ts 758), Professor de Klerk said that by referring to 'a mixed type' he meant that 'there would have been amosite and chrysotile and probably a little bit of crocidolite as well'.
21 However, Professor de Klerk is an epidemiologist and biostatistician. No evidence was given which would qualify him as having relevant expertise to advise on the likely composition of asbestos cement pipes manufactured and used in South Australia in the mid-1970s.
22 On the other hand, as the trial judge notes [72], evidence with respect to the likely composition of the pipes was led from two occupational hygienists - Mrs Sowden and Mr Pickford. The trial judge found [285], Mrs Sowden has specialised in the occupational hygiene issues associated with exposure to asbestos for many years, and is well known and respected in that field. Mr Pickford is one of only 15 fellows of the Australian Institute of Occupational Hygienists [300] and, like Mrs Sowden, has specialised in issues arising from exposure to asbestos. The evidence of Mrs Snowden was that she had assumed that the asbestos content of the pipes would have been about 15% and that 10% - 15% was a typical concentration. She further stated that the James Hardie pipes contained chrysotile and amosite. Mr Pickford, on the other hand, stated that the asbestos content was between 8% and 15%. Mr Pickford did not specifically mention chrysotile or amosite but noted that he doubted that any of the pipes contained crocidolite.
23 In the same paragraph of the trial judge's summary of Mrs Snowden's and Mr Pickford's evidence, the trial judge also comments on two documents. First, the mix specifications for James Hardie which state that the asbestos content of the pipes was between 13.42% and 14.92% (but the trial judge notes that the origins and purpose of that document was never clearly established). Second, a safety memorandum issued by EWSD which stated that asbestos cement types which the EWSD produced contained less than 20% asbestos.
24 The trial judge also referred to a report written in 1965 by Dr McCullagh, who was the medical officer employed by Amaca. In that report he referred to the use of crocidolite in the making of asbestos cement. However, that report, of course, predated the closure of the Wittenoom mine.
25 The trial judge summarised his conclusions in relation to the evidence in the following terms:
In combination with the writings of Dr McCullagh it seems probable, therefore, that the asbestos cement pipe used by the EWSD while Mr Cotton was working in its Adelaide operations included a variety of forms of asbestos, including Amosite, Chrysotile and Crocidolite.
In these circumstances I consider that the plaintiff has established, on the probabilities, that all the pipes produced by the second defendant and used by the first defendant for its water laying operations in and around Adelaide at the time Mr Cotton was employed by the EWSD contained mixed asbestos fibres making up between 15 per cent and 20 per cent of the entire composition of the asbestos cement product. The asbestos content was mixed and definitely included Chrysotile and Amosite and, probably, some Crocidolite [77] - [78].
26 The trial judge gives no reasons for apparently preferring the unqualified assumption made by Professor de Klerk, and the historical report written by Dr McCullagh to the evidence of Mrs Sowden and Mr Pickford. During the appeal, counsel for the respondent accepted that the evidence adduced at trial did not sustain the finding that the new pipes laid by the EWSD between 1976 and 1978 and upon which Mr Cotton worked contained crocidolite (ts 250 - 251). However, counsel for the respondent also pointed out that a small component of the work done by Mr Cotton for the EWSD involved repair of older pipes, and that it was possible that the older pipes may have contained some crocidolite. However, it is accepted that the work done by Mr Cotton repairing old pipes was a very small component of the work which he carried out (which was normally concerned with the laying of new pipes).
27 The trial judge repeated his erroneous finding to the effect that the new pipes upon which Mr Cotton predominantly worked while employed by EWSD contained crocidolite [118], [507], [509] in the latter two instances in a portion of his reasons which led to the conclusion that EWSD had made a material contribution to Mr Cotton's contraction of lung cancer. The trial judge also used the erroneous finding as a basis for diminishing the relevance and significance of two reports relied upon by the experts called by the appellants - referred to as the WAIT AID Study and the Amdel report. Each report was concerned with the measurement of the amount of respirable asbestos fibre released in the course of carrying out cutting work on asbestos cement pipes. The trial judge diminished the significance of those reports because the pipes that were tested did not contain crocidolite, whereas he had found (erroneously) that the pipes upon which Mr Cotton worked in South Australia did contain crocidolite: [250], [254]. The submission of the respondent to the effect that the error made by the trial judge was immaterial must therefore be rejected. It will be necessary to evaluate the significance of that error later in these reasons.
28 The trial judge made another error in respect of the composition of asbestos cement pipes. Again this concerned the composition of the pipes which were tested in studies relied upon by the experts called by the appellants. In relation to the Amdel study, the trial judge inferred that the types tested for the purposes of that report contained no amosite, because he could not detect a reference to amosite or crocidolite in the report of the study. There was no direct evidence to that effect. Moreover, the evidence of Mrs Sowden, which was not contradicted, was to the effect that asbestos cement pipes were never manufactured containing only chrysotile. The trial judge refers to that evidence, but proffers no reason for rejecting it in the context of that portion of his reasons dealing with the Amdel report.
29 Further, in evaluating the evidence given by Mr Kottek, an occupational and environmental health consultant called by the respondent, the trial judge observed:
Turning to his expression of opinion about the likely exposure of Mr Cotton to asbestos, Mr Kottek refers to measurements of asbestos contained in James Hardie documents referred to by Mrs Sowden as involving work in 1983 - 1984. That, therefore, is a reference to A/C pipe containing only Chrysotile which Mr Kottek expected would emit less dust than pipes containing Amosite and Chrysotile used by Mr Cotton at the EWSD in Adelaide [265].
30 Again, the trial judge gives no reason for concluding that the pipes worked upon in 1983 - 1984 would only have contained chrysotile, when that conclusion is contrary to the direct and uncontradicted evidence of Mrs Sowden.
31 The appellants have established that the trial judge erred in respect of the findings he made in relation to the composition of the asbestos cement pipes upon which Mr Cotton worked while employed by EWSD, and in respect of the composition of the pipes used in some of the tests relied upon by the appellants' experts. The significance of those errors will be addressed later in these reasons.
The time spent cutting and rasping pipes
32 As the trial judge found, the work upon which Mr Cotton was predominantly engaged while employed by EWSD involved the laying of new asbestos cement pipes. Generally those pipes would be laid in trenches which had been cut in the ground. The pipes would be delivered to site, offloaded from the delivery truck, laid in place alongside the trench, and then joined in the trench. On occasions, because the length of the trench would not correspond exactly to the combined length of the pipes, or because a turn or an angle join was required, it would be necessary to cut the pipes. As the trial judge found, the actions of handling and joining the pipes did not, of themselves, give rise to significant quantities of dust, as the fibres in the pipes were not being significantly disturbed. However, dust, and therefore respirable fibre was created when the pipes were cut.
33 A number of methods were used for cutting the pipes during Mr Cotton's employment, including an angle grinder (very occasionally) or manual saws. However, the predominant method used was a chain cutter known as a Wheeler cutter, which involved a device which tightened a chain (which resembled the chain on a bike or a chainsaw) to a pressure which severed the pipe. After the pipe had been cut, it would usually be necessary to bevel the cut with a manual rasp in order to make a socket for the purposes of joinder to another pipe.
34 The activities of cutting and rasping were the activities which substantially gave rise to Mr Cotton's exposure to respirable asbestos fibre. There was controversy at trial as to the length of time generally occupied performing those tasks. As Mr Cotton had passed away by the time of the trial, he gave no direct testimony on this issue. However, statements he had previously made on the subject were tendered in evidence. In a statutory declaration, Mr Cotton described the process of cutting and rasping without making an estimate of the time taken. However, the transcript of evidence he gave in the course of worker's compensation proceedings before the Conciliation & Review Directorate of WorkCover was tendered in evidence. In the course of those proceedings, Mr Cotton asserted:
Well, doing the cut and all that used to take you about a half hour to an hour. It depended.
He went on:
MR COTTON: You had this big long chain thing. You wrapped that around, and it went into a catch like that. It had a steel handle, and on the end there was a thing like a speedo on a motorbike. You could just keep winding it up, and as you did that the chain ...
MR HADLOW: It tightened the chain?
MR COTTON: It tightens the chain up and cracks the pipe. As the pipe cracks, you give it a whack on the other end with the rubber hammer, and actually you've got a clean break.
MR HADLOW: Then you'd do the filing?
MR COTTON: Then you'd file off the taper.
MR HADLOW: That process would take about ...?
MR COTTON: About an hour or an hour and a half.
MR HADLOW: Altogether?
MR COTTON: Yes.
MR HADLOW: Okay. The filing: how much of that time would be spent between the cutting process and the filing process?
MR COTTON: Most of the time you'd be doing your filing, because that was the bit you had to get out.
35 It does not appear that Mr Cotton was cross-examined in relation to those assertions, which is not surprising, given that the worker's compensation proceedings were brought against Millennium, who had no particular interest in the work carried out by Mr Cotton for EWSD. However, it must be said that, on the face of it, it is surprising that a process of the kind described by Mr Cotton could take an hour or an hour and a half when applied to a pipe four inches in diameter.
36 Prior to his death, Mr Cotton swore answers to interrogatories administered by EWSD which were tendered in evidence. In those interrogatories he was asked to state the hours per day, days per week and weeks per year he spent working on the tasks he had identified in relation to the asbestos cement pipes. He replied that it was not possible for him to give any estimate of the time involved.
37 Shortly after being diagnosed with lung cancer, Mr Cotton consulted Professor Musk, a respiratory physician. Professor Musk reported that part of the history given by Mr Cotton included, in relation to the work done for EWSD:
This required the pipes to be cut and the ends rasped/filed to fit them together. This was done in the trenches for ten to twenty minutes three to four times a day. He would then continue to work in the trench where the filing had taken place.
38 In his reasons, the trial judge referred to the evidence given by Mr Cotton to the effect that the operation took 'about one to one and a half hours in total' [96], and also to his evidence that it 'would take half an hour to an hour' [97].
39 The trial judge referred also to evidence given by other employees of EWSD. In particular, he referred to the evidence of Mr Tilly, which was to the effect that:
[T]he actual chain cutter produced very little dust and could take only one or two minutes depending upon the size of the pipes being cut. With 6 inch or 8 inch pipes, once they had been cut, a file would be used to shape the ends and that may take eight or nine minutes and would generate lots of dust.
40 The trial judge referred also to the evidence given by other workers, including Mr Neagle and Mr Streater, although did not refer in his reasons to the evidence which they gave as to the time taken to undertake work of this kind. He did, however, state that he was:
[I]mpressed with the credibility and reliability of Mr Neagle and of Mr Streeter and, indeed, of all these former employees.
41 Mr Neagle's evidence was that cutting of the pipes was only occasional '[d]epending if you were going around the corner or you had to go and do a water drain or a T-junction or a fire plug or a valve, you'd cut the pipes' (ts 225). He described the process of using the chain cutter to cut a pipe, and estimated that it would take 2 or 2 1/2 minutes (ts 226). He agreed that very little dust was generated in the process of cutting the pipe saying:
No, it was mainly chips because they made a jagged edge on the pipe, so it was chips that fell off, not actual dust.
42 He further estimated that the time taken to bevel the edge and 'grind the rebate' would take about 10 minutes (ts 242). He estimated that the cutting process would take place, on average, three times per day.
43 Mr Streater also described use of the chain cutter. He agreed that it was a method which resulted in very little dust being generated (ts 213), although if there was a burst main which had to be broken with a hammer, it seems more dust would have been generated.
44 Mr Campbell was another worker employed by EWSD who gave evidence. He said that cutting a pipe using a chain cutter 'probably took less than a minute' (ts 1039). He further estimated that it took between two and five minutes to hand rasp the end of a pipe once it was cut, depending on the size of the pipe. He observed that the rasp generated flakes and dust, but mainly dust (ts 1039). In his view, the whole process of cutting and rasping the pipe above ground would take five to six minutes, and laying and joining the pipe in the trench would take 30 to 45 seconds. Although Mr Campbell worked for EWSD after Mr Cotton's employment had ceased, there is no reason to suppose that the process described by Mr Campbell would have taken any longer to perform during Mr Cotton's time at EWSD.
45 The trial judge did not refer in his reasons to the time estimates given by Mr Neagle and Mr Campbell. However, he held:
During a typical working day Mr Cotton, or members of his gang, would usually be required to carry out a cutting operation on the four inch diameter AC pipes about twice, although this could be more frequent depending upon the particular design of the layout and connections required for the reticulation being installed. Despite different estimates of the times required for these tasks being given by witnesses operating on other crews and using slightly different methods, I consider I should accept the evidence of the deceased that these combined cutting and rasping operations, when required, would each last for about one to one and a half hours, meaning that two to three hours per working day would be occupied by those functions [119].
However, later in his reasons, he held, somewhat inconsistently:
However, there is little doubt in my mind that while Mr Cotton was working for the first defendant in Adelaide laying cement asbestos water pipes he was, on repeated occasions, subjected to a series of peak exposures to asbestos cement dust which were relatively short and transient but which occurred two or three times each working day for periods of something in the order of half an hour or more and, that at other times when working with the asbestos cement pipes, there was probably a significantly lower level of background exposure to asbestos fibres, but greater than occurs in a workplace where asbestos is neither used nor present [406].
46 The inconsistencies between the findings made in [119] and [406], make it difficult, if not impossible, to know precisely what the trial judge has found in respect of the amount of time during which Mr Cotton was customarily engaged in the tasks of cutting and rasping pipes while employed by EWSD. Further, his failure to refer to the evidence given by the other workmen who estimated the time likely to be taken, or to provide any reasons for rejecting that evidence, reinforce the concerns which arise from the apparently inconsistent findings. Further, as I have observed, the time estimates made by the fellow workmen appear inherently more probable than those made by Mr Cotton in the course of his evidence in the worker's compensation proceedings. I find it impossible to see how the tightening of a chain around a four-inch pipe, and the bevelling of a cut made in the pipe by that process could take between an hour and an hour and a half.
47 Accordingly, I conclude that the findings made by the trial judge in respect of the amount of time spent by Mr Cotton in cutting and rasping pipes while employed by EWSD are flawed. The preponderance of the evidence establishes that the time taken to cut and rasp a pipe would be in the vicinity of 10 minutes, and that Mr Cotton would have been engaged in that exercise perhaps two or three times each day - that is, for a total of between 20 and 30 minutes each day. It follows that, depending upon whether one takes the finding at reasons [119] or the finding at reasons [406] to represent the findings of the trial judge, he has overstated the amount of time spent by Mr Cotton cutting and rasping the pipes while employed by EWSD by factors of six or three respectively.
48 This is not to say that Mr Cotton's only exposure to respirable asbestos fibre while employed by EWSD occurred while he was cutting and rasping the pipes. There was evidence that some dust was released by the general movement of the pipes, and to the effect that the material rasped or grinded off during the cutting process would simply be allowed to fall at the worksite, where, if disturbed, it could generate more dust, and therefore some respirable fibre. However, the view of all the experts was to the effect that exposures of this kind would be much smaller in magnitude than exposure during cutting and rasping, by several orders of magnitude.
49 Later in these reasons I will address the significance of the erroneous findings made by the trial judge in respect of the extent of Mr Cotton's exposure while cutting and rasping pipes during his employment with EWSD.
Exposure while employed by Millennium
50 The evidence in respect of the duties performed by Mr Cotton, the times at which he performed them, and the times at which asbestos materials were progressively removed from the worksite at Millennium was confusing and contradictory. Unfortunately, the findings of the trial judge have not resolved the confusion or contradictions.
51 Evidence was adduced of Mr Cotton's employment history with Millennium. The evidence took the form of a statement from Elizabeth Baggetta, the human resources manager of Millennium, which was tendered by consent without her being required for cross-examination. That evidence was described by the trial judge as:
One of the few areas of certainty and lack of controversy in this regard is the history of Mr Cotton's employment classification with the third defendant.
52 The trial judge summarised that evidence at [125]. As he found, the employment records maintained by Millennium show that during Mr Cotton's first period of employment, between 19 April 1990 and 30 November 1990, he worked as a Plant Operator - Bulk Bag Packer, and from 1 December 1990 until 19 February 1991 as a Plant Operator - General Cleaning on day work in section 3 of the plant.
53 Section 3 is an area of the plant containing calciners and Raymond Mills/Crushing Rolls - it is separate from the band drier room (BDR) [128]. The BDR is closed off from section 3 [155].
54 During his second period of employment with Millennium, between 14 October 1991 and 28 January 1993, Mr Cotton initially worked as a Plant Operator in the Raymond Mill, and then as a Plant Operator-Packer 4. He worked in those capacities between 14 October 1991 and 25 May 1992, when he commenced duties as a Plant Operator-Packer 5. He continued to work in that capacity on various shifts until his employment was terminated on 27 January 1993. During Mr Cotton's third period of employment, from 11 February 1993 to 6 January 2002, he worked as a Plant Operator in the Research and Development section between 11 February 1993 and 8 August 1993, after which he resumed duties as a Plant Operator-Packer 5 until October 1995. Thereafter he worked as a Plant Operator in the Shrink Wrap section until going on sick leave in March 2000.
55 The significance of these records, and their acceptance by the trial judge and the parties as providing an accurate record of Mr Cotton's employment, is that they establish the sections of the plant in which he was working at different times, and the duties he was performing. When those records are compared to Mr Cotton's recollection of the times at which he worked in different parts of the plant and performed differing duties, it is clear that those recollections were inaccurate. This is hardly surprising, as the evidence he gave in that regard occurred during worker's compensation proceedings which took place 8 or 10 years after the relevant periods, being the periods prior to the removal of the bulk of the asbestos materials from the Millennium worksite. The same observation may be made in respect of the evidence given by other employees of Millennium, which understandably, did not establish with specificity the precise periods during which Mr Cotton worked in different areas of the plant.
56 The evidence was to the effect that workers employed at Millennium, including potentially Mr Cotton, were exposed to respirable asbestos fibre from three potential sources of asbestos material. Most of those sources were located in an area of the plant known as the BDR. This was a large shed-like area of the plant, approximately 200 - 250 m in length, which contained a long oven, colloquially described as a large pizza oven, in which titanium dioxide, which was the material processed at the plant, was dried on a conveyor belt.
57 The first potential source of asbestos was the insulation associated with the pipes. Heat for the drying process was supplied through hot water pipes, which were insulated with a lagging material which included asbestos. This lagging material had been installed decades earlier, and was deteriorating, as a result of which chunks of the material were falling to the floor. Material which fell to the floor in this way would be swept up as part of the normal cleaning operations within the BDR. A second potential source of asbestos was the asbestos insulating material used within the doors to the oven, and on the exterior seals to those doors. This insulating material was also in a deteriorating condition and apparently released dust when the doors were removed which occurred periodically when the oven was cleaned. The third potential source of asbestos within the BDR was the roof, which was described as fragile and friable, and which was said to release dust from time to time. There were also areas of the plant which had walls which contained asbestos, but the evidence was consistently to the effect that these are unlikely to have been a significant source of respirable asbestos fibre.
58 The general effect of the evidence was that the activity which is most likely to have produced significant amounts of respirable fibre was the action of sweeping up lagging material which had fallen from the heating pipes in the BDR. Mr Cotton's evidence was to the effect that while he worked as a Plant Operator-Packer 5, after he had completed his work in the research and development department, he was required to enter the BDR from time to time, and to carry out cleaning duties in that room. On some of those occasions, he was engaged in the removal of the oven doors. His evidence, accepted by the trial judge, was that sometimes he went into the BDR three times per week, although sometimes he was only required to enter the room once a month. His evidence, in the worker's compensation proceedings, was to the effect that he had swept up the floor in the BDR about 15 or 20 times during the 12 month period prior to the removal of the asbestos lagging from the pipes in that area.
59 The trial judge reviewed the evidence given by a number of Millennium employees in respect of the removal of asbestos material from the work site. Mr Savage was one such witness, who was described by the trial judge as:
[A]n absolutely truthful, precise and reliable witness. He was the epitome of an intelligent, experienced, trustworthy senior tradesman.
His evidence was to the effect that the lagging on the heating pipes was partly removed in November 1991, and the remainder by March 1992.
60 Evidence to the same effect was given by Mr Forrester who was described by the trial judge as:
[A] careful, measured and precise witness who gave thoughtful and intelligent evidence with a good recollection of events.
Mr Forrester also accepted that the lagging material on the insulation pipes in the BDR was removed between November 1991 and March 1992.
61 Evidence was also given by Mr Ligman, who had been the day supervisor at the Millennium plant. He described the activities that were carried out in various sections of the plant. The effect of his evidence, which was summarised and apparently accepted by the trial judge, was to the effect that while Mr Cotton was working as a Plant Operator - Bulk Bag Packer or a Plant Operator-Packer 4, involved in shrink-wrapping or when working in the Raymond Mill, he would not have been required to attend the BDR: [213] and (ts 1491 - 1492). Mr Ligman accepted that while Mr Cotton worked on day work for two and a half months in section 3 (December 1990 - February 1991), he may have been required to clean up the BDR occasionally (ts 1497). This evidence is consistent with the evidence of other employees, who recalled Mr Cotton performing clean up duties in the BDR before the asbestos lagging was removed from the heating pipes. However, when he was working as a Plant Operator-Packer 5, Mr Cotton's duties would have required him to attend the BDR for clean-up operations a couple of times a month (ts 1493). The trial judge therefore accepted [215] that while employed as a Plant Operator-Packer 5, Mr Cotton would attend the BDR 15 to 18 times a year for about four to eight hours at a time. This evidence was consistent with Mr Cotton's evidence during the worker's compensation proceedings. By reference to the employment records provided in the statement of Ms Baggetta, to which I have referred, the trial judge found [213] that Mr Cotton commenced duties which would have required his occasional attendance in the BDR on 26 May 1992.
62 Evidence was also given by a Mr Engebretsen, who was the assistant maintenance superintendent at Millennium. The trial judge quotes:
I found Mr Engebretsen to be a careful and precise witness who was trying to be accurate and who gave evidence truthfully on matters within his direct knowledge [209].
His evidence, which the trial judge summarised at [196] - [209] was to the effect that contractors (KBE) were engaged to remove the lagging from the heating pipes in the BDR in 1991, and that about half of the work was done in 1991, and then completed in March 1992.
63 After summarising all the evidence given in respect of removal of asbestos material from the Millennium plant, the trial judge set out a chronology listing the findings that he made in respect of that process [236]. Included within that chronology are the following entries:
November 1991 - about 50 per cent of the asbestos lagging from steam pipes in the BDR removed.
27 November 1991 - During annual shutdown KBE Contractors removed all the asbestos lagged pipe work in the boiler house and approximately 50 per cent of the asbestos lagging in the BDR ...
...
March 1992 - Asbestos removal of lagging from pipes in BDR completed by KBE Contractors.
64 So, the trial judge found, consistently with the uncontradicted evidence, that contractors had removed all the lagging which contained asbestos material from the heating pipes in the BDR by March 1992. He had also found, consistently with the uncontradicted employment records, and the evidence of Mr Ligman, that Mr Cotton's regular duties in the BDR did not commence until he commenced work as a Plant Operator-Packer 5 in May 1992 - that is, two months after all the lagging material in the BDR had been removed from the heating pipes. However, there was evidence (not specifically referred to in the reasons of the trial judge) that during the two and a half months Mr Cotton worked on days in section 3 (in late 1990, early 1991), he may have performed cleaning duties in the BDR.
65 However, the trial judge also accepted the evidence given by Mr Cotton in the worker's compensation proceedings [154]. He summarised that evidence, and the findings which he made in reliance upon it as follows:
The general tenor of Mr Cotton's evidence, without being precise, is that what are known as areas 1, 2 and 3 and the packing end were in close proximity to the BDR, although the BDR was closed off from them. Similarly, it appears from his evidence that his role as a shift work process operator, packer working in section 3 must have begun in January or February 1992 and that it was from then on that he began working regularly in the BDR. He said that this was about 12 months before the asbestos removal programme began in the BDR [155].
66 It will immediately be seen that these findings cannot stand with the other findings made by the trial judge, based on the uncontradicted evidence, as to the times at which the asbestos lagging material on the steam pipes in the BDR was removed, and the time at which Mr Cotton commenced duties in that room. It is clear from those findings that Mr Cotton's requirement to attend the BDR 15 - 18 times per year did not commence until May 1992, by which time the asbestos lagging material on the heating pipes had been removed. Further, the evidence of Ms Baggetta, which the trial judge accepted as providing '[o]ne of the few areas of certainty' was to the effect that Mr Cotton worked in section 3 between 1 December 1990 and 19 February 1991. He cannot therefore have started in that section in January or February 1992. There was evidence that during the two and a half months Mr Cotton was working in section 3, he would have been required, on occasions, to perform cleaning duties in the BDR. It follows that the trial judge erred in finding that Mr Cotton had been engaged in duties in the BDR which included sweeping up asbestos material which had fallen from the lagging on the heating pipes for a period of 12 months before that material was removed.
67 The trial judge returned to his findings in relation to Mr Cotton's exposure to respirable asbestos fibre while employed by Millennium during that portion of his reasons dealing with liability. In that context he found:
The asbestos removal programmes conducted began with the asbestos lagging on the pipes in the BDR during 1991/1992 but did not involve the removal of all asbestos from the BDR, leaving the insulation and seals on the band drier hatch doors, other lagging on the top of the BDR and, of course, the asbestos cement roofing which was old and in a friable and deteriorating condition. The removal programmes to eliminate those further asbestos components in the BDR again took place in stages (during shut downs or maintenance periods) over the years from 1990 to April 1995 and the roof removal was not completed until late 1997. Removal of the asbestos cladding on the walls, internal walls and roofing in the packing areas and in which Mr Cotton was also employed was not completed until about 1998 [206].
During these periods there was an ever present risk of exposure to asbestos dust and, in Mr Cotton's case, particularly during sweeping up operations. In the time that he was working periodically in the BDR from the second half of 1991 until late 1992 he was sweeping up the dust from the floor which contained the fragments and shedding from the exposed lagging containing Chrysotile, Amosite and Crocidolite on the steam pipes and was, as I have found, exposed to short-term, but regular, high peak exposures of asbestos containing Chrysotile, Amosite and Crocidolite. No efforts were taken to avoid this, to conduct dust suppression by wetting or other methods or to provide protective equipment to the men working on those tasks. Again, the danger of development of any asbestos disease, including mesothelioma, was clearly patent and the failure to take steps to minimise this was, in my view, in breach of duty by the third defendant towards Mr Cotton. The question in this case is whether it caused to a material degree his fatal disease. [634] - [635]
68 The finding that Mr Cotton was working periodically in the BDR from the second half of 1991 until late 1992 sweeping up dust from the floor which contained fragments and shedding from the exposed lagging cannot stand with the findings earlier made in relation to the time at which the lagging was removed, and the time at which Mr Cotton commenced duties in the BDR, which was at one point held to be January or February 1992 [155] and elsewhere in May 1992 [125], [213].
69 This is not to say that Mr Cotton was not engaged on occasional duties within the BDR after May 1992 which would have exposed him to respirable asbestos fibre. The trial judge found, consistently with the evidence, that the sealing material on the oven doors in the BDR was not removed until December 1994 and that further work of that kind was carried out in January 1995. Accordingly, on intermittent occasions while employed as a Plant Operator-Packer 5, Mr Cotton would have carried out work removing the oven doors on the relatively infrequent occasions when the oven was shut down for cleaning purposes. He would also have received some exposure on the occasions he did cleaning up work in the BDR over two and a half months in late 1990, early 1991.
70 The other prospective source of respirable asbestos fibre was the roof in the BDR, and the sheeting walls in that room and other parts of the plant. Although the roof in the BDR was described as friable, and shedding dust, the experts generally accepted that while the roof was not disturbed, it was unlikely to have been a source of substantial quantities of respirable fibre. That evidence is consistent with the evidence of membrane filter sampling undertaken by consultants engaged by Millennium over a lengthy period commencing in 1988, prior to the commencement of Mr Cotton's employment at Millennium. The reports of that sampling, which were tendered in evidence, did not reveal any occasion upon which respirable asbestos fibre was present in sufficient quantities to be detected. It should be noted that between 1988 and 1995, the BDR was not tested as part of the sampling. However, during the removal of the asbestos sheeting, which took place in March 1995 [201], sampling was undertaken in the BDR and still did not detect sufficient quantities of respirable asbestos fibres. This would have been the period during which the roof was most 'disturbed' and therefore the height of potential for the release of respirable asbestos fibres. Further, precautions were taken during the removal period to warn staff about the asbestos removal and to limit staff access to the area. The area was cordoned off, and tape erected to prevent workers from moving under the area where the roof was being replaced.
71 Mr Cotton's evidence in the worker's compensation proceedings, accepted by the trial judge, was that while this work was going on, he was working in shed 4, which was about 70 feet away from the area in which the work was being carried out. Accordingly, while it is possible that some of the fibre disturbed by the work being carried out on the roof travelled to the area in which Mr Cotton was working, it seems unlikely that his exposure was extensive. That inference is supported by the finding made by the trial judge in relation to the air sampling carried out by contractors engaged by Millennium while asbestos removal activities were taking place. The trial judge found:
The pattern of sampling revealed by the second and subsequent series of analysis reports strongly suggests that this was sampling conducted in areas where contractors were actually removing asbestos, rather than an overall continuous planned estimation of airborne asbestos risks within the plant as a whole. There is no doubt that this system of air sampling was extensive and that it indicated that the airborne asbestos concentration at the areas sampled was low, and below the norms accepted for industry at the time. However, because of the nature and location of the sampling, it does not reveal the conditions in the BDR at the time Mr Cotton was working there and does not reveal anything about potential peak loads of airborne asbestos during operations such as sweeping up or cleaning in the BDR or, for that matter, in the packing sheds at the time of the removal of the asbestos cement roof sheeting. Nevertheless, it does show that during the periods when it was conducted and in other areas of the plant, the general level of airborne asbestos contamination was very low [310].
72 As I have already stated, the observations made by the trial judge in respect of Mr Cotton's work sweeping up and cleaning in the BDR must be read subject to his erroneous conclusion that there was still asbestos material lagging the heating pipes when Mr Cotton carried out that work from 1992 onwards. Read with that significant qualification in mind, the findings of the trial judge to the effect that the general level of airborne asbestos contamination in the plant was very low is significant. The trial judge then reviewed evidence of other sampling undertaken in the plant and concluded:
Nothing in those sample results alters the general impression that, when and where tested, the analysis results revealed the very low levels of airborne asbestos [311].
73 It is clear from this review of the evidence relating to Mr Cotton's exposure to respirable asbestos fibre while working at Millennium that the trial judge erred by finding significantly greater exposure than was sustained by the evidence.
Peak exposures
74 At many points throughout his reasons, the trial judge made reference to 'peak' exposures experienced by Mr Cotton while undertaking particular activities - such as cutting and rasping the asbestos cement pipes while employed by EWSD or (erroneously) while sweeping asbestos lagging material from the floor of the BDR ([255], [257], [271], [273], [288], [301], [319], [332], [333], [372], [385], [406], [409], [499], [518], [561], [562], [614], [617], [622], [624], [628], [630], [635]). Although it is, of course, necessary to estimate the level of exposure while particular activities are carried out for the purposes of assessing either a time weighted average or the total cumulative exposure during a particular period of employment, the language used by the trial judge when referring to peak exposures suggests that he concluded that concentrated exposure to fibre over small periods was somehow more toxic than sustained exposure to smaller levels of fibre over longer periods - see for example [333], [385]. The trial judge held:
Indeed, the writings and opinions which I have examined acknowledge the potential toxic effect of asbestos even at low doses (including the Helsinki Protocol); they acknowledge that short-term peak doses less than the long-term average, especially if they exceed more than 10 fb/ml may be very harmful [518].
Similarly, the trial judge held:
I do not consider that demonstrating, even if it could have been demonstrated in this case, that Mr Cotton's average level of asbestos exposure calculated over an eight hour day was less than the prescribed maximum exposure levels by the applicable regulation in force at the time, demonstrated the exercise of reasonable care if, in addition, the fact of the matter is that he was exposed to regular but transient short periods of high level exposure in an uncontrolled operation involving sweeping up of dust containing asbestos particles including Amosite and Crocidolite and when it was known that he was an habitual smoker [622].
Further, the trial judge held:
The literature referred to in [528] of these reasons specifically mentions that it is not only the average long-term exposure which needs to be controlled but that even short-term exposures of 10 minutes or so of 10 fb/mls or above should be avoided. Consequently, I am unable to accept the submissions advanced by the defendants in this case that, if it could be concluded that Mr Cotton's exposure was less than the maximum exposure levels stipulated by applicable regulations at the relevant times, that would exclude any finding of lack of reasonable care [624].
75 The reference in that paragraph to [528] of the trial judge's reasons is erroneous because that paragraph is concerned with the evidence relating to the age of onset of lung cancer. It seems likely that the trial judge was intending to refer to [499] of his reasons:
Writing in the annals of occupational hygiene in 1970, an officer of the Factory Inspectorate Department of Employment in London, S Luxon (Exhibit 72(52)) discussed the then new asbestos regulations which came into effect in May 1970 and propounded that attempts to control asbestos dust should aim for a level of 2 fb/ml and 0.1 mg per ml for Chrysotile asbestos and spoke of the new methods of atmospheric testing then introduced, as proposed by the British Occupational Hygiene Society in 1968. However, he wrote that despite the adoption of those long-term average air concentrations, one should not ignore entirely peak concentrations and that in his view it seemed reasonable to accept that a concentration of, say, 12 fb/ml should not be exceeded during any period of 10 minutes. He went on to write:
'It must be remembered that we are using the fibre count not as an absolute measure of concentration but rather as a conveniently measurable parameter to indicate the total asbestos in the air. The work leading to the formulation of the BOHS Standard referred to above related to conditions in the textile industry and not enough information is yet available on the relationship between mass of asbestos and fibre counts in other industries. To further complicate the problem, it is not known what fibre sizes are biologically active and, even if this were known, appropriate elutriation (ie the rejection of material not biologically active) would be very difficult with a fibrous material such as asbestos. We ourselves are making both fibre counts and total mass determinations by X-ray diffraction analysis in industries, such as the motor industry, where degradation of the fibres may occur, resulting in a substantial change in size distribution.'
76 This appears to be the only support in the evidence for the proposition that peak concentrations of fibre carry greater dangers than sustained lower level exposures. It seems that the trial judge may have wrongly transposed the reference to 12 fb/ml to 10 fb/ml. The suggestion comes from an officer of the Factory Inspectorate Department of Employment in London, in a paper written in 1970. The qualifications of that officer for the expression of that view are not apparent. It is not a view which was endorsed by any of the experts called to give evidence in the case. Counsel for the respondent conceded during the hearing of the appeal that it is not a view which can be sustained as a matter of logic (ts 266). That is because the expert evidence is uniformly to the effect that it is the inhalation of respirable fibre into the lung which causes the potential for injury. While the quantity of fibre inhaled is relevant to the risk of injury being sustained, there is no logical reason why the inhalation of a particular quantity of fibre over a short period should carry any greater risk of harm than the inhalation of the same quantity of fibre over a longer period. The risk of disease is related to the amount of fibre retained by the lung, not the rate at which it is ingested.
77 The erroneous emphasis given by the trial judge to the significance of peak exposures appears to be responsible for another flaw in his process of reasoning which is evident in [614] of his reasons:
The evidence of concentrations which I have found probable, while admittedly estimating transient and relatively short-term peak exposures, are in excess of the maximum exposure limits recommended by the authorities. Accordingly, there is no basis for the first or second defendant to claim that the exposure levels associated with the work in Adelaide were at, or below, levels of exposure then thought acceptable because of the absence of sampling or objective testing.
78 The flaw in this reasoning is that the exposure standards recommended by authorities such as the National Health and Medical Research Council, and imposed by regulatory authorities, are all expressed by reference to time weighted average exposures, and not by reference to peak exposures. Accordingly, the only way in which compliance with those recommendations or regulations can be measured is by estimating time-weighted average exposure over the entire working period, and not by reference to short-term peak exposures only.
Quantification of Mr Cotton's exposure
79 The appellants challenge the findings made by the trial judge in respect of the attempts made to quantify the extent of Mr Cotton's exposure to respirable asbestos fibre while employed by EWSD and Millennium. A number of expert witnesses, predominantly occupational hygienists, gave evidence of their attempts to quantify Mr Cotton's likely exposure to respirable fibre during the course of his employment. They relied to differing degrees upon reports and studies dealing with the amount of respirable fibre produced when undertaking activities which were said to be comparable (in differing degrees) to the activities undertaken by Mr Cotton. The trial judge used findings which he made in respect of the limited relevance of some of those studies and reports to diminish the weight of the evidence given by the experts called by the appellants. Therefore, it is necessary to commence with a consideration of his findings in relation to those studies and reports.
The WAIT AID Study
80 The WAIT AID Study was commissioned by Amaca in 1983. A consulting firm associated with a tertiary education institution was engaged to assess the amount of respirable fibre released in the course of installing mains water pipes in a suburb of Perth.
81 As the trial judge found:
The reports observed that the dust from the pipes was only noticed during the machining of the cut pipe ends and that no other operation produced noticeable dust. Most of the day's work involved laying of the pipes, some time was spent bringing pipes to the trench. About one hour was spent performing three cuts on pipes and subsequent machining. The total machining time was about 30 minutes. It was also observed that dust from the machining of the cut pipe ends could be reduced considerably if the pipe end was kept wet during the machining process ...
All of the tests conducted showed results of less than 0.1 fibres per ml of asbestos. The evidence does not disclose what type of asbestos fibre was in the particular pipes and it seems that only cutting involving the Wheeler cutter and a hammer and chisel were tested and that there was no sampling of machining or rasping of concrete pipe ends conducted, although Dr Nedved appears to have observed that the practice of using a field lathe (manual) was seen to produce visible dust and swarf (Exhibit 153(4)) [246] - [247].
82 The conclusions drawn by the trial judge with respect to the comparability of the work the subject of the WAIT AID Study to the work undertaken by Mr Cotton were:
I have considerable reservations in accepting the WAIT AID Reports as being indicative of working conditions experienced by Mr Cotton in Adelaide from March 1976 until October 1978 because the tests do not indicate that they were conducted during periods when rasping and filing of the edges of cut pipe was being undertaken. Another significant difference is that the AC pipe then in use by the contractors participating in the test did not contain any component of Crocidolite, whereas the evidence is that there was Crocidolite in the AC pipes in use in Adelaide. Other evidence suggests that Crocidolite is considerably more noxious than Amosite or Chrysotile. Nevertheless, the WAIT AID tests do provide a basis for the first and second defendants' submissions that work involving the cutting of AC pipes in the open with Wheeler pipe cutters only produces a very low level of airborne asbestos fibre contamination [250].
83 The trial judge was correct to observe that the work the subject of the WAIT AID Study did not appear to include rasping and filing of the edges of cut pipe. However, it did appear to include the machining of the cut ends of pipe although apparently during at least some of the work, the pipe ends were kept wet during the machining process [246].
84 The other reason given by the trial judge for diminishing the relevance of the WAIT AID Study is his conclusion that the pipes the subject of that study did not contain any component of crocidolite, whereas the pipes upon which Mr Cotton worked in South Australia did contain crocidolite. For the reasons I have given above, that conclusion is erroneous. Nevertheless, the general conclusion by the trial judge to the effect that the study supported the proposition that the cutting of asbestos cement pipes in the open with Wheeler pipe cutters only produces a very low level of airborne asbestos fibre contamination is plainly justified by the study.
85 Despite that finding, the trial judge was not prepared to accept that the WAIT AID Study provided any reliable indication of the extent of Mr Cotton's exposure to respirable fibre while working for EWSD: [293], [317], [368], [408]. This rejection of the relevance of the WAIT AID Study was also relied upon to sustain his rejection of the evidence given by witnesses called on behalf of the appellants, including Mrs Sowden and Mr Rogers, to whose evidence I will refer in due course.
86 One of the reasons relied upon by the trial judge to reject the relevance of the WAIT AID Study is erroneous. While the relevance of that study is diminished by the differences in the work undertaken for the purposes of that study when the pipes were machined while damp (when compared to the work undertaken by Mr Cotton rasping the ends of dry pipe manually), in my view, the trial judge was wrong to conclude that this difference deprived the WAIT AID Study of any relevance, and did not sustain his conclusion that the evidence of Mrs Sowden and Mr Rogers had no weight.
The Amdel Report
87 Amdel is the trade name of an industrial scientific and laboratory service [251]. In 1984, Amdel conducted a study of the exposure to respirable asbestos fibre
