Dust Diseases Tribunal New South Wales

• Medium Neutral Citation: Dunning v BHP Billiton Limited [2014] NSWDDT 3
• Decision date: 31 July 2014
• Before: Kearns J

Decision

There will be verdict and judgment for the plaintiff in the sum of $2,236,959.57.

• Catchwords: Dust diseases; mesothelioma; whether hierarchical approach, giving priority to documents, to resolution of factual issues dictated by authority; approach to the assessment of witnesses; whether plaintiff was exposed to asbestos; whether evidence may given by non-expert identifying asbestos; whether injury to plaintiff employee foreseeable; state of knowledge, actual and constructive, in 1979 of defendant concerning health risks associated with exposure to asbestos; identity of person within corporate defendant who had actual knowledge of health risks from exposure to asbestos and whether defendant could dictate identity of that person; whether on foreseeability of injury defendant could rely on NHMRC standard to the exclusion of all other learning; whether defendant could rely on advice that might have been given by a reasonably competent occupational hygienist in 1979; whether defendant breached duty of care to plaintiff; whether on breach of duty defendant could rely on NHMRC standard; whether reasonable practical alternatives were available in blast furnace; whether plaintiff's injury caused by defendant's negligence (consideration of the cumulative effect mechanism of causation of mesothelioma); whether defendant in breach of s41 of Factories, Shops and Industries Act 1962; on damages, whether plaintiff being in remission Malec v Hutton discount should be made for possibility that mesothelioma may not recur; whether plaintiff's damages should exclude aggravation or exacerbation of his depressive condition resulting from the litigation.
• Legislation Cited: Dust Diseases Tribunal Act 1989
• Cases Cited: AMP General Insurance Limited v Roads and Traffic Authority of NSW [2001] NSWCA 186; Baker v Quantum Clothing Group Limited (formerly Taymil Limited) (2011) UKSC 17; BHP Billiton Limited v Parker [2012]; Booth v Amaca Pty Ltd and Amaba Pty Ltd [2010] NSWDDT 8; CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338; Fox v Percy (2003) 214 CLR 118; Graham v Co-operative Wholesale Society Limited [1957] 1 WLR 511, 522; Howard Smith & Patrick Travel Pty Limited v Comcare [2014] NSWCA 215; Julia Farr Services Inc v Hayes [2003] NSWCA 37; Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; McLean v Tedman (1984) 155 CLR 306, 313; McPherson's Ltd v Eaton & Ors (2005) 65 NSWLR 187; Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, 402; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Silvestro v Verbon Pty Limited [1973] 2 NSWLR 513; Thompson v Johnson & Johnson Pty Limited [1991] 2 VR 449
• Category: Principal judgment
• Parties: Jake Douglas Dunning as tutor for Steven Douglas Dunning (plaintiff); BHP Billiton Limited (defendant)
• Representation: Mr P Semmler QC with Mr S Tzouganatos instructed by Slater & Gordon Lawyers appeared for the plaintiff; Mr T G R Parker SC with Mr D Talintyre instructed by Piper Alderman and HWL Ebsworth Lawyers appeared for the defendant.
• File Number(s): DDT 79/2011

Judgment

A. THE COURSE OF THE LITIGATION [1]

B. THE PLAINTIFF'S CLAIM [2]

C. THE DEFENDANT'S OPERATIONS [3] - [16]

D. THE PLAINTIFF'S CASE ON EXPOSURE [17]

E. THE LIABILITY ISSUE [18] - [19]

F. THE RESULT [20]

G. THE APPROACH TO THE RESOLUTION OF THE ISSUES [21] - [23]

H. THE PLAINTIFF'S EVIDENCE [24]

(a) THE PLAINTIFF'S AFFIDAVIT (EXHIBIT PX 20) [25] - [35]

(b) THE PLAINTIFF'S ORAL EVIDENCE

(i) THE PLAINTIFF'S EVIDENCE IN CHIEF [36] - [62]

(ii) THE PLAINTIFF'S CROSS-EXAMINATION [63] - [91]

I. OTHER ORAL EVIDENCE IN THE PLAINTIFF'S CASE

(a) JOHN GILLESPIE [92] - [176]

(b) BRUCE BATES [177] - [226]

(c) TERENCE TURNBULL [227] - [269]

(d) KEVIN PARKER [270] - [338]

J. DEFENDANT'S WITNESSES

(a) ERNEST BRYON [339] - [365]

(b) MICHAEL HERRETT [366] - [370]

(c) STEVEN PATTEN [371] - [380]

(d) DAVID WARREN [381] - [414]

(e) LINDSAY THREADGATE [415] - [419]

(f) PETER CLARKE [420] - [423]

K. DOCUMENTS [424] - [493]

L. ASSESSMENT OF WITNESSES [494] - [533]

M. WAS THE PLAINTIFF EXPOSED TO ASBESTOS AND, IF SO, IN WHAT CIRCUMSTANCES AND TO WHAT EXTENT? [534] - [577]

(a) THE COOLING BLOCKS [578] - [590]

(b) THE TAPHOLE DRILL [591] - [603]

(c) GLOVES [604] - [624]

(d) BLANKETS [625] - [640]

(e) CLEANING [641] - [649]

(f) DAILY CHANGE OF CLOTHES [650]

N. WAS THE PLAINTIFF'S INJURY REASONABLY FORESEEABLE? [651]

(a) THE DEFENDANT'S ACTUAL KNOWLEDGE [652] - [670]

(b) KNOWLEDGE THE DEFENDANT OUGHT TO HAVE HAD [671] - [721]

(c) FORESEEABILITY OF INJURY [722] - [737]

O. BREACH OF DUTY - WERE THERE REASONABLY AVAILABLE PRACTICAL ALTERNATIVE MEASURES? [738] - [748]

(a) respiratory protective device [749] - [752]

(b) WARNING AND EDUCATION [753] - [755]

(c) vacuum cleaner [756] - [757]

(d) wetting down and ban on compressed air [758] - [760]

(e) atmospheric testing [761]

(f) laundering of clothing, sealing and disposal of waste [762] - [764]

P. DID THE DEFENDANT'S BREACHES OF DUTY CAUSE THE PLAINTIFF'S MESOTHELIOMA [765] - [772]

Q. STATUTORY COUNTS [773] - [782]

R. QUANTUM

(a) GENERAL DAMAGES [783] - [823]

(b) INTEREST ON GENERAL DAMAGES [824]

(c) LOSS OF EXPECTATION OF LIFE [825]

(d) PAST AND FUTURE GRATUITOUS CARE AND SERVICES INCLUDING INTEREST [826]

(e) PAST LOSS OF EARNINGS [827]

(f) PAST LOSS OF SUPERANNUATION BENEFITS [828]

(g) INTEREST ON PAST LOSS OF EARNINGS AND SUPERANNUATION [829]

(h) FUTURE LOSS OF EARNING CAPACITY [830] - [839]

(i) FUTURE LOSS OF SUPERANNUATION BENEFITS [840]

(j) LOSS OF LONG SERVICE LEAVE ENTITLEMENTS [841]

(k) SUMMARY OF FIGURES [842]

S. ORDERS [843] - [845]

A. The course of the litigation

1 This case has an unfortunate history. All that needs to be noted at this stage is that when the case commenced, the plaintiff was suing in his own right and interest. At the conclusion of his cross-examination on the third day of the hearing, shortly before lunch, an early adjournment was sought and granted. When the matter resumed after lunch Mr Semmler QC, who appeared with Mr Tzouganatos for the plaintiff, informed me that he had concerns for the plaintiff's capacity to instruct properly. Medical examination was arranged and from soon after that time the case has been conducted for the plaintiff by his tutor, Jake Douglas Dunning, who is his son.

B. The plaintiff's claim

2 The plaintiff has mesothelioma. The Third Further Amended Statement of Claim alleges he contracted it from exposure to asbestos in the employ of BHP Billiton Limited at its Newcastle steelworks between 10 December 1979 and 4 October 1981. In submissions, the case became one confined to exposure from 10 December 1979 to March 1981 when the plaintiff was employed at the blast furnace department at the defendant's steelworks. The plaintiff sues the defendant alleging he was negligently exposed. He also sues for breaches of statutory duties said to be owed to him.

C. The defendant's operations

3 To understand the circumstances of exposure as alleged by the plaintiff, it is desirable to explain a little of the defendant's operations.

4 There were four blast furnaces in the blast furnace department. They produced molten iron from iron ore. They had an exterior metal shell with refractory bricks inside. Between the external metal shell and the refractory bricks was insulation.

5 Iron ore and other materials were fed into the top of the furnace. Hot air created by ovens in a lower part of a furnace mixed with materials fed into the furnace and produced molten iron and slag.

6 The furnace had what was known as a cast house floor and crew. The floor was an elevated platform. In some instances, it was six to eight metres above ground level. It was a large area. It had a cast house floor building on it. It had the tuyeres, taphole, cinder notches and other equipment.

7 The furnaces had a taphole at the bottom. That taphole was plugged with clay by a mud gun. The mud gun was a large piece of machinery with several hoses attached to it. The hoses were lagged with insulation.

8 A process called casting was undertaken. As part of this process, the taphole was tapped by a drill. This also was a large piece of machinery with several hoses attached to it. These hoses were also lagged with insulation. The drill was swung towards the taphole. It drilled through the clay that plugged the taphole. When the taphole was unplugged, molten metal then poured out into a trough. The molten metal ran down the trough. A refractory brick with a hole at the bottom at the end of the trough skimmed off the slag that floated at the top of the molten metal. It directed the slag into a runner called the slag runner. The slag ran down the slag runner into a pit at No. 4 blast furnace or into slag pots at the other blast furnaces. The rest of the molten metal ran through the hole in the skimmer and continued running down the metal runner and poured into a vessel known as a torpedo ladle. The torpedo ladle was located on the cast house floor and could carry up to 200 tonnes of molten metal. A cast took about one to three hours to complete. The slag runners and troughs were lined with refractory clay and sand.

9 At the completion of a cast, the taphole was plugged with clay by the mud gun.

10 I mention hereunder some of the features of the blast furnaces.

11 The cinder notch was a hole in the side of the blast furnace that was plugged during the iron ore making process by a mechanical bott. It was positioned above the taphole. It was a tap to let the slag flow out. The plug was removed from the notch so that, by force of pressure, some of the slag would be removed from the furnace to minimise the amount of slag that poured into the troughs. This was removed through a pipe known as a monkey pipe. Blast furnaces Nos 1 and 4 had one cinder notch. Blast furnace No. 2 had two. Blast furnace No. 3 had two and, later, one.

12 Stoves were very large domed objects. They were lined with insulation and refractory bricks. They were about 180 ft in height and about 30 ft in diameter. Blast furnace No. 1 had four stoves. No 2 had four. No 3 had four. No. 4 had three. Except for blast furnace No. 4, and two stoves on No. 3, the stoves had a round shaped door, which could be opened and shut to allow entry of the burner. The doors were sealed with a gasket.

13 The stoves were connected to tuyeres by way of a large refractory pipe line. This pipe line led off from the stoves and went to a large pipe called the bustle main. From there, the air was transported by a down leg pipe, then another blow pipe and then into the tuyeres and into the interior of the blast furnace.

14 Tuyeres were water-cooled copper tubes. They were located around the circumference of the furnace. They conveyed super-heated air from stoves. The air was conveyed through the skin of the furnace, through the refractory brick work and into the blast furnace. The air came from the stoves through the hot blast and bustle main, then the blow pipes and through the tuyeres into the blast furnace. The tuyeres were water-cooled to regulate the temperature in the metal shell and brick linings. Blast furnace No. 1 had 10 tuyeres. Numbers 2 and 3 had 16 and No. 4 had 20. The tuyeres consisted of one pipe around another. The interior pipe contained the hot air. The exterior pipe was called the tuyere's cooler pipe. It was a water cooled pipe. The tuyeres pipe that entered the furnace was encased within a blow pipe.

15 Two of the blast furnaces were cooled using cooling blocks. They were blast furnaces Nos 1 and 2. The cooling blocks carried water. They were driven into the shell of the furnace. They were about two feet long. They tapered from 18 inches to 15 inches in width. They were three inches deep. There were 200-300 of these on blast furnaces 1 and 2. On blast furnaces Nos 3 and 4, these cooling blocks were replaced by cooling staves. These were pipes that carried water. They were inside the furnace, but they entered through the metal shell. The cooling blocks and the pipes were packed with insulation.

16 Blast furnace No. 1 was decommissioned in May 1982. Blast furnace No. 2 was decommissioned in March 1985. Numbers 3 and 4 were decommissioned in September 1999.

D. The plaintiff's case on exposure

17 The plaintiff's case on exposure is that he undertook work in the blast furnace department that exposed him to asbestos dust and fibre. The processes that caused him to be exposed are said to have included work associated with:

• the use and repair of the taphole drill and the mud gun. Their hoses were lagged with asbestos;

• the re-sealing of the stove doors with asbestos gaskets;

• removing, replacing and repacking cooling blocks;

• repair and maintenance of tuyeres;

• plant maintenance on shut downs;

• removal and installation of asbestos lagging on fixed pipes; and

• cleaning associated with those tasks and general cleaning.

E. The liability issue

18 The defendant disputes the plaintiff's alleged exposure to asbestos. It says the exposure was nil or infinitesimal. There are two limbs to this. The first is that the dust which the plaintiff alleges he was exposed to was not asbestos. The second is that the plaintiff was not exposed for the frequency, duration and intensity he alleges. The defendant then says that the nature and extent of the plaintiff's exposure to asbestos leads to a number of conclusions:

(a) that the plaintiff's injury was not reasonably foreseeable;

(b) that the defendant was not in breach of the duty it owed the plaintiff. The defendant also says it was not in breach because it provided all proper and reasonable precautions it ought to have;

(c) that the plaintiff's exposure did not cause his mesothelioma.

The defendant also disputes that it was in breach of any statutory duty owed to the plaintiff.

19 Critical to the resolution of these issues are:

(a) the extent to which the plaintiff was exposed to asbestos;

(b) the knowledge the defendant had or ought to have had as to the risks to health posed by exposure to asbestos.

F. The result

20 I have come to the view that the plaintiff is entitled to succeed in this claim for reasons which follow.

G. The approach to the resolution of the issues

21 I shall proceed shortly with a recounting of the evidence or the effect of the evidence given by the witnesses. I shall then turn to some documentary material. In the course of doing so, I shall make some comments about some of the oral evidence and some of the documents. It is appropriate that, at this stage, I deal with one submission made by the defendant.

22 Mr Parker SC, who appeared with Mr Talintyre for the defendant, submitted I should take a hierarchical approach to the resolution of the issues. This submission was based on Fox v Percy (2003) 214 CLR 118. In the context of this case, that means that I should start with the contemporaneous documentary records, then other objectively established facts, then apply a process of logic and only then turn to the testimony of witnesses. That may be an appropriate approach in some cases. It cannot be the approach to be taken in all cases. That approach assumes the documents are contemporaneous records and gives the documents a primacy they may not have. The approach cannot apply in cases where the documents are shown to be wrong or where there are relevant gaps in them or where there is ambiguity in them.

23 It has been necessary for me to examine numerous documents in the resolution of the issues in this case. They do not all contain incontrovertible material. There are documents that contain error or gaps or are ambiguous. I will need to consider the whole of the evidence, documentary and oral.

H. The plaintiff's evidence

24 The plaintiff gave evidence partly by way of affidavit and partly orally. He also called evidence from a number of witnesses and tendered documents.

(a) The plaintiff's affidavit - Exhibit PX 20

25 The plaintiff started work in the blast furnace department on 10 December 1979. He worked in that department until he went to the ingot mill department in March 1981 (Exhibit PX 20 [12]).

26 The plaintiff's affidavit contains a history of his work before he started with the defendant. That history is short as he left school when 15 years of age and started with the defendant when he was 19 years of age. In that period of approximately four years, he had two different jobs. He was out of work for a period.

27 The plaintiff's affidavit then deals with his work with the defendant in the blast furnace from when he started on 10 December 1979. The issue of exposure here is highly contentious as is the plaintiff's evidence in support of it. I think it is appropriate in the circumstances if I set out verbatim those parts of his affidavit relating to his exposure. In doing so, I omit those parts of the affidavit I ruled inadmissible.

28 The affidavit contains the following relevant paragraphs 12 to 32.

12. The blast Furnace department was a section of the steelworks where raw materials such as iron ore and other ingredients where (sic) melted in 4 large chimney like Blast Furnaces to produce molten metal. The Blast Furnaces were metal structures covered with refractory bricks and insulation. Raw materials were put in at the top of each furnace and flowed down during the melting process towards the bottom of each furnace. This process was called "casting". The molten metal was extracted from each furnace from a taphole which was tapped by using a mechanical device that I knew as the "taphole drill". When a furnace was ready to be tapped, the drill was swung into place. The taphole drill was operated from a control room. It had a number of hoses on it.

13. On each furnace (Number 1, 2, 3 and 4) there were various platforms from which workers carried out their jobs. I was a labourer in the cast house crew. During a cast we worked on the cast house floor. The cast house floor was about 6 to 8 metres above ground level. On the cast house floor level there was the tap hole and a system of troughs into which the molten metal flowed from each furnace during a cast. The troughs led into vessels called ladles which were situated underneath the cast house floor. The iron went in ladles. The slag (the rubbish off the top of the iron) flowed into vessels called slag pots. Also on the cast house floor level was the taphole drill and the mud gun (this was the mechanical device used to plug up the tap hole with special clay which I understood contained pitch).

14. There were other work platforms on each furnace. There was a tuyere floor on each furnace. Tuyeres were a system of copper pipes that entered the circumference of each Blast Furnace carrying the hot air that generated the heat required by each Blast Furnace. The tuyeres were a couple of metres or so above the taphole level. There were a number of tuyeres on each furnace. The tuyeres were connected to a series of other pipes leading to what was called the Hot Blast system. The Hot Blast system is where the hot air was created and blown into each furnace. The air was heated in what were called "stoves" and then blown through via the tuyeres into each Blast furnace. Each furnace was connected to its own hot blast system and stoves. The stoves were made of refractory bricks and insulation. Each stove had an opening that looked like a door.

15. Above the cast house floor and tuyere level were other levels including (a) the areas were (sic) the cooling systems of each furnace were located, (b) where gases were released and (c) where the raw materials were put into each Blast Furnace. I vividly recall that whenever we left the cast house floor to go on to a higher level we took a canary in a cage to check for toxic gases. If the canary keeled over we had to get out of there.

16. Each furnace had a cooling system to cool the lining of each furnace. I think they were all water cooled. Some of the furnaces had rows of cooling blocks around the circumference. The cooling blocks were about two feet long and tapered from about 18 inches to about 15 inches. The cooling blocks were rammed into the furnace and they stuck out slightly from the furnace. There were hundreds of these cooling blocks on some of the furnaces. There were many hoses and pipes connected to each furnace. I am not sure what they carried but I saw them everywhere.

17. The Blast Furnace department was a very hot and dusty place to work. The cast house floor was probably the hottest and dustiest place to work. During a cast, workers (including me) on the cast house floor were working within about 5 or 6 metres from the molten metal pouring out of the taphole and were exposed to the constant risk of hot metal splashes. It was extremely hot.

18. In the blast furnace department we worked three eight hour shifts. The morning shift was 7am to 3pm. The afternoon shift was 3pm to 11pm. The night shift was 11pm to 7am.

19. Throughout my work in the Blast Furnace department the system of work was that no one worker was specifically allocated to a particular furnace. It depended on what was required by the company. For example it was often the case that I worked on the cast house floor on Blast Furnace Number 2 and the next day I worked on the cast house floor on Blast Furnace Number 4. There were about 50 workers on each shift (spread over the four Blast Furnaces) on the production side of things. In addition there were maintenance workers including boilermakers, fitters and electricians.

20. On each cast house crew there were a number of workers performing different tasks including filling the furnace with raw materials, operating the raw materials hoist, operating the tap hole drill, operating the mud gun, clearing and replacing the sand in the troughs, cleaning (with brooms and compressed air) and general labouring assisting other workers including tradesmen. Throughout my work in the Blast Furnace department I worked as a labourer but after the first six months I also operated the mud gun after each cast. When I finished with the mud gun I went back to labouring. In the Blast furnace department every worker on the cast house floor was expected to be able to work on each task as required.

21. The labourers performed the basic labouring work on the casting house floor and in the Blast Furnace department generally. That included shovelling the old sand out of the metal and slag runners, replacing the sand, helping clean the tap hole area after the Blast furnace had been tapped and helping to load the mud gun. Labourers also helped clean the mud gun after it had been used and prepared it for the next casting. The labourers cleaned (using brooms and compressed air hoses) around the Blast Furnace floor in order to clear the dust, dirt and other debris that had gathered there.

22. Throughout my work in the blast furnace department each Blast furnace was shut down for 24 hours for planned maintenance about every two months. The planned maintenance shut downs were rotated so that there was only ever one furnace not operating. During the planned maintenance workers including boilermakers, fitters, engineers, labourers (including me) and refractory bricklayers worked very close to each other repairing and maintaining parts of the furnace and hot blast system. At these times tuyeres, cooling blocks, hoses and pipes were repaired and maintained. In addition to the planned maintenance shut downs, running repairs and maintenance occurred regularly. This was usually done after a cast.

23. I worked with asbestos containing insulation and packing materials and was exposed to asbestos dust on a regular basis throughout my employment in the Blast Furnace department ... [inadmissible text]

24. I regularly worked with and around others using asbestos rope (woven texture, greyish white in colour in various thicknesses and lengths on wooden spools), asbestos tape (woven texture, greyish white in colour in various dimensions and lengths in coils), asbestos blankets (grey in colour with woolly fibres sticking out of them), asbestos cloth (grey in colour with a woven texture), asbestos sheets (grey in colour and square in shape), asbestos insulation blocks (greyish white in colour and used to line the internal metal shell of parts of furnaces and the hot blast system including stoves; courses of refractory bricks were laid on top of this material), asbestos gauntlets ... [inadmissible text]

25. Asbestos rope was used by tradesmen in the Blast Furnace department to insulate parts of hoses and pipes. On regular occasions I removed the old and brittle asbestos rope which crumbled in my hands. The tradesmen then cut lengths of asbestos rope with a hacksaw from spools and applied it around pipes and hoses. I assisted in this process. I also cleaned up with a broom and sometimes with compressed air. I saw a lot of dust in the air around me, on my clothes and hands as I did this work. I regularly inhaled asbestos dust in this process.

26. In my work in the Blast Furnace department I regularly used asbestos rope to pack and seal a number of areas in the Blast Furnaces and stoves including around each tuyere (sometimes I called this a "burner"), cooling block, and the stove doors. I cut lengths of asbestos rope with a hacksaw and then used my hands and a crow bar to pack it in to these areas. I saw a lot of dust go into the air around me from my use of the new asbestos rope and from when I removed old asbestos rope packing which was always dry, brittle, crumbled and gave off a lot of dust in the air. I regularly inhaled this dust. I used a crow bar to remove the old asbestos rope. This dust and debris from the old and new asbestos rope usually ended up on the open steel mesh walkways and fell through to the level below. I cleaned up this dust and debris with a broom and/or a compressed air hose. Occasionally I also used a compressed air hose to blow out the old asbestos rope packing because it was a really hard job to get it out. This generated dust in the air.

27. Tradesmen including fitters and boilermakers used asbestos blankets for protection against heat and metal splashes. They laid the blankets out on a walkway or placed them over a section of whatever they were working on as required. The blankets were dusty to handle. The heat dried them out and they gave off dust around the areas in which they were used. I handled asbestos blankets (moved them from one place to another) on a number of occasions throughout my employment in the Blast Furnace department. In addition I was occasionally within a few feet of others handling asbestos blankets. I inhaled dust that I saw in the air from the asbestos blankets on many occasions in my work at the Blast Furnace department.

28. Tradesmen including fitters and boilermakers also used asbestos sheets for protection against heat and sparks during welding. The sheets were sometimes cut or damaged and gave off dust. The sheets were not fibro, they were softer than fibro.

29. Boilermakers and pipe fitters carried out regular repairs on many steam pipes, flanges, hoses, tuyeres and cooling blocks in the Blast Furnace department. On steam pipes I saw them removing the metal casing on the steam pipes and the insulation underneath. There was no metal covering the insulation on the flanges. As they were repairing the metal, they wrapped the pipe or flange with asbestos rope. If a tuyere was being repaired the flange had to be cut, removed and replaced. These processes involved cutting and handling of asbestos rope within a few feet of me. These processes generated dust which I saw in the air around me. I often assisted in cleaning up during and after this process. I regularly inhaled asbestos dust in this work.

30. Throughout my work in the Blast Furnace department in this period I occasionally worked in the vicinity of refractory bricklayers carrying out repairs (although in this period I cannot recall any major relines) on parts of Blast Furnaces and the hot blast system including the stoves. This occurred during shut downs. During these repairs parts of the lining (and insulation behind it) of the furnaces and hot blast system were demolished with crow bars or jackhammers. I (and other labourers) assisted in this process. The old bricks and insulation behind them crumbled in this process. Clouds of dust went everywhere and all over me each time I did this. The insulation behind the bricks looked like grey thick sheets or blocks. The bricklayers put in new insulation in the form of sheets or blocks before bricking over the top. I do not know what the new insulation material was made of. As a labourer I cleaned up the old bricks and insulation into skip bins using a broom and shovel. This caused more dust to go into the air which I inhaled. This type of work on the furnaces an stoves occurred mainly during planned or unplanned shut downs.

31. In my work as a labourer on the cast house floor I regularly wore asbestos gauntlets (grey and woven up to my elbows) and sometimes a heavy asbestos coat. I wore these in order to protect myself from metal splashes during casting. This gear was very dusty because the heat dried it out. The gauntlets and coat frayed and gave off dust. When I wore the gauntlets I regularly clapped my hands together in order to disburse the heat. I saw dust in the air from the gauntlets each time I did this. I wore this gear everyday during the casting process and I inhaled dust from this gear during these times.

32. One of the tasks that I regularly did as a labourer on the cast house floor was changing the tap hole drill. On the tap hole drill there were many hoses that had asbestos rope lagging on them. I handled the drill at least three or four times each shift in the Blast Furnace department. In doing so I usually brushed up against the lagging on the hoses and this gave off dust. Also during shut downs I assisted in the repair and replacement of the asbestos rope lagging on the hoses. I saw dust go into the air during this work. I inhaled this dust. I cleaned up after the removal and replacement of the asbestos rope lagging on those hoses on the tap hole drill using a broom and compressed air. This caused more dust to go into the air.

29 It is to be noted that insofar as the plaintiff referred to the use of, or being exposed to, asbestos materials, that evidence was admitted on the basis that it was the plaintiff's belief that the product was or contained asbestos.

30 After working in the blast furnace department, the plaintiff went to the ingot mill department in March 1981.

31 The plaintiff was sick of the work and the dust and left the defendant in October 1981 (Exhibit PX 20 [34]).

32 The plaintiff was never warned by the defendant that asbestos was dangerous or that it could lead to death. He was not told he should take precautions. Had he been warned, he would have taken precautions or even left the job (Exhibit DX 20 [35]).

33 The plaintiff then undertook a number of jobs. He worked at Royal Newcastle Hospital for about three years. During part of that time, he worked for Paul Wallace doing domestic bricklaying. It was a second job. Then from about October 1984 to about October 1985, he worked full time, but on and off, for Paul Wallace as a domestic bricklayer.

34 The plaintiff then entered on a new period of work as a refractory bricklayer from 1985 to 1992. This saw him back at the defendant's premises for a short time in the middle of 1989. He was working for a different employer, Andreco.

35 There are other parts of the plaintiff's affidavit that may be left out at the moment. I shall refer to them to the extent that I need to in due course.

(b) The plaintiff's oral evidence

(i) The plaintiff's evidence in chief

36 When the plaintiff commenced his evidence, he was "not good". He had been sick, vomiting and had trouble concentrating. He had not slept the night before and had slept little the night before that. He has had a problem with vomiting since undergoing chemotherapy. He felt nauseous. His mood state was down and had been for "Months, months and months" (T57.23). At this point, I note that the plaintiff had undergone surgery which involved a regime of chemotherapy commencing in March 2011, followed by radical pleuropneumonectomy in May 2011 and followed by radiotherapy commencing in June 2011. He was also under treatment for depression before the hearing commenced.

37 Cognitive behaviour therapy had not helped him. Nor had medication. He was feeling "buggered" (T57.32) physically and probably mentally also. "My mind has gone blank" (T67.26). He felt he had depression and had so for months. (T57)

38 His condition was the same when he resumed his evidence on the second day of the hearing.

39 This history has a relevance, especially in light of the nature and extent of cross-examination to which the plaintiff was subjected and the extent of concessions he made.

40 This history has a relevance especially in light of the nature and extent of cross-examination to which he was subjected and the extent of concessions he made.

41 To the extent that the plaintiff identified product to which he was exposed as being asbestos product, again that evidence was limited to that being the plaintiff's belief that that was what the product was.

42 I deal now with the plaintiff's evidence in chief that might assist in identifying the product as asbestos.

43 In terms of attempting to identify product to which he was exposed as being asbestos, the plaintiff said that at the defendant's premises, the term "asbestos" was used from time to time. It was used by the foremen (T66.14).

44 Rope was grey/whitish and had a woolly texture (T67.44). It was on spools.

45 In the period 1985 to 1992 when the plaintiff worked for a number of different companies, including work at the defendant's premises, at one point he described working with what he described as rock wool, an insulating product. His description of it is different to the description of the insulation products he worked with in the blast furnace department from 1979 to 1981 (T70).

46 The plaintiff worked with gaskets. These were called asbestos gaskets (T76.28).

47 The plaintiff worked with blankets. The plaintiff's belief that the blankets were asbestos was based on the fact that that is what everybody called them. That included superintendents and foremen. This was the case with everything, except gauntlets, the plaintiff believed was asbestos (T77.22). The blankets were about one to one and a half metres by two to two and a half metres. They were a grey/white colour with a "fibrey" texture and felt "real coarse" (T77.49 and T78.01). The edges were frayed.

48 The plaintiff wore gauntlets. The workers referred to these gauntlets as asbestos gauntlets. The plaintiff could not recall anyone other than workers referring to them as asbestos gauntlets, despite being led as to whether the foremen did.

49 I turn now to the plaintiff's evidence in chief concerning his exposure to the product he identified as asbestos when he was in the blast furnace department.

50 The plaintiff estimated that, on average, he was exposed to asbestos dust and fibre about once per week (T71.12). That is an odd piece of evidence. It does not fit with his description of the work he did, for example, changing the taphole drill with its asbestos lagged hoses three to four times each shift. I do not think the plaintiff's mind was on task when he gave that evidence.

51 Insulation of parts of hoses and pipes described in Exhibit PX 20 [25] (paragraph 28 above) occurred "it might be two or three shifts a week you're handling it" (T71.35). He then said it was used in lagging, probably once per week (T71.37) and it would be for about an hour or two (T71.42) and he was close to the lagging.

52 At times he worked with his hands above his head. This occurred when doing tuyeres and he would be removing lagging (T71.49). Dust then went all over his face and on his clothing (T72.04). His face would be a foot from the lagging.

53 When cleaning up with compressed air, or a broom, dust could be seen in the air.

54 In Exhibit PX 20 [26] (paragraph 28 above), the plaintiff described packing and sealing with rope and cleaning up. He said this occurred two to three times a week, two to three hours at a time (T72.39).

55 The rope for the packing of the stove doors was on a wooden spool (T73.16). The tradesmen would scrape the old rope out. The plaintiff would be about a metre from them. Dust would go in the air. It was "flickery" (T73.26). The process of removing the packing would take about 20 minutes (T73.33). After the rope was removed, a new length would be cut sometimes by the plaintiff using a hacksaw (T73.45). After the job was done, the old rope was on the ground. The labourer cleaned up by hand (T74.17).

56 The packing and sealing of the tuyeres was sometimes done by tradesmen and sometimes by labourers (T75.07). The old rope had to be scraped out. This was done with a little bar or an air hose (T74.30). The plaintiff's face was near the old rope when it was being removed (T74.32). The old material was brittle and plenty of dust came off and over the plaintiff (T74.43). Repacking with the new rope was done by the labourers (T75.12). Asbestos was used to pack and seal tuyeres (T74.20). The rope would be cut from the spool with a hacksaw (T75.18). That gave off dust. Two metres of rope could be used (T75.23). It had to be rammed in with a bar. That gave off some dust, but not as much as the old stuff coming out (T75.29). The process of getting rope, cutting it and packing it in took about 20 minutes (T75.33). The whole process could take up to half an hour (T74.46). The labourers cleaned up. Compressed air was used. At first, they would pick up what they could and throw it away in a trough or over the edge in a furnace (T75.35-.41).

57 The plaintiff replaced gaskets on equipment (T76.18). The equipment included dog legs and a pipe attached to the down pipe (T76.22). An asbestos gasket was placed between the pipes. The plaintiff helped the tradesmen in the replacement process. In the process, the removal of the old gasket involved the removal of a dusty gasket (T76.44). The tradesmen would remove it and hand it over and then the labourer would throw it away (T76.46). There was a "glistening" in the air (T77.01). There were plenty of places where this was done, although the plaintiff assisted on only a few (T77.09). The plaintiff breathed in the dust (T77.12).

58 With blankets, the plaintiff would put them on mesh floors so nothing would fall through (T77.27). Levels above the cast house floor were mesh. The tuyere floor was mesh. The cooling block or stave floor was mesh (T77.32). The plaintiff laid the blanket on the floor a few times. When carrying them, or laying them down, they gave off dust. The plaintiff carried them by holding them in front of him, not far from his face (T78.17). Dust got on the plaintiff's hands. When the job was complete, the plaintiff picked up the blanket and shook it. That created and dust and fibres collected on the plaintiff (T78.27).

59 The plaintiff also handled sheets. They were about one metre by two metres (T78.37). The plaintiff carried these. Dust rubbed off on his clothes (T79.21).

60 The plaintiff's work with refractory brick layers was mainly on the troughs (T79.23). He was present when demolition of the old material was being done. The plaintiff helped by throwing the bricks in the skip and by cleaning up afterwards (T79.30). The clean up involved bricks and insulation. There was a jack hammering process involved that created dust. The plaintiff's clothing, face and body were all dusty (T79.35).

61 The plaintiff wore asbestos gauntlets that come up to his elbows. They were grey. They were "texturey" and made him itch (T79.47). They handled heat better than the leather gloves. The plaintiff wore these gauntlets every shift during casting. There were two, sometimes three, casts in a shift. A cast took about an hour or so. They were taken off after cleaning up. The mitt parts frayed and gave off dust (T80.18). The plaintiff clapped his hands to disperse the heat about ten times a shift and that would give off a bit of dust (T80.26). When he did this, the gloves were about 18 inches from his mouth.

62 The changing of the taphole drill was sometimes done by labourers and sometimes by others (T81.19). There were about ten hoses attached to the drill. The plaintiff regularly brushed up against them. That gave off dust. The lagging on the hoses frayed. The plaintiff noticed that fraying about once per week.

(ii) The plaintiff's cross-examination

63 The plaintiff felt depressed for a couple of months after his radio therapy and has plateaued since then (T88.30). His radiotherapy commenced in June 2011. He gave evidence that his concentration had been affected since he was diagnosed (T87.28), then he could not recall a short time later giving that evidence (T88.44). I am not satisfied he understood what he was being asked.

64 His short term memory has been a problem since the beginning of 2012 (T89.04). The plaintiff did not know how long his memory had been affected (T89.06).

65 The plaintiff was first aware that asbestos was dangerous when he became ill (T89.22), a long time ago (T90.11), at least since the 1990s. He was aware it was life threatening (T90.30).

66 The plaintiff first believed his condition was related to work with the defendant when he was diagnosed (T91.07). He did not then believe he had been exposed in other work (T91.42).

67 The questioning relating to when the plaintiff first believed asbestos posed a health risk was confusing. He was asked if he had heard about while working as a contractor (T92.44). The question was not qualified and probably referred to the whole period from 1985 to 1992 when the plaintiff worked as a refractory bricklayer. The plaintiff agreed that when working as a refractory bricklayer, he believed asbestos could be a health risk (T92.48). This was the basis for the next two questions with false premises being put to the plaintiff. They were:

Q. So we now know that by the mid-80s you must have picked up from the media the idea that asbestos could be a health risk, do we not.

MR SEMMLER

I object to that. That is not a fair conclusion from the -

HIS HONOUR

It does not follow, does it?

MR PARKER

I will put it again.

Q. You told me earlier that you could not remember one way or the other, in the 1980s, whether you were aware that asbestos could be a potential health risk. Remember giving that evidence. A---Yes.

Q. You have now told me that when you started work as a contractor you believed that asbestos could be potential health risk.

(T93.01-.16)

68 The questions were objected to and when the error was corrected, the plaintiff said it was about half way through the period 1985 to 1992 that he first learned that asbestos was a health risk (T93.32).

69 The same type of error on the same subject matter emerged a short time later in the cross-examination. The plaintiff told Mr Parker that it was after he went to work for Andreco that he became aware of potential health risks of asbestos (T94.04). That was followed immediately with the following question,

So by the time you worked at Andreco, you were aware of potential for risk from asbestos.

The question was not objected to and the answer was "yes" (T94.06).

70 The plaintiff agreed that paragraph 47 of his affidavit was false. In that paragraph, he stated that he did not know that working with asbestos was dangerous to health when working as a refractory brick layer (T97.30).

71 The system at the defendant's steelworks was that a worker was allocated to a particular furnace and he did not go to another furnace unless someone was sick or something like that (T104.31-.40). This proposition which was put to the plaintiff, and accepted by him, was not supported by Mr Warren who gave evidence for the defendant. It was not uncommon to be sent to the other three furnaces (T105.21). It could be once per week or once per month. The total number of days he spent working on a furnace, other than his principal furnace, was not that great.

72 It was put to the plaintiff that every furnace could be shut down "every few months". The plaintiff answered "every two". That was followed by "Every few I put to you, could be two, could be three, months". He answered, "As far as I - as far as I remember it was every couple of months" (T104.50).

73 The plaintiff was cross-examined about an interview he had with an officer from the Dust Diseases Board (DDB). The following emerged.

• The plaintiff could not remember telling the person from the DDB that he wore leather gloves (T106.06). He did not wear leather gloves (T106.09). He did at times (T106.09). He did not mention wearing gauntlets to the person from the DDB (T106.14).

• It was put that he told the person from the DDB that lagging fell of steam pipes. He could not remember that as a fact (T107.05). Then it was put again and there was added that he had to clean up the floor with a broom and shovel and that increased dust. He agreed he said that to the person from the DDB (T107.11). That is not in the affidavit and he did not know why (T107.16).

• He did not tell the person from the DDB anything about installing or removing pipes (T107.28).

• He did not tell the person from the DDB about using compressed air (T108.20).

• He did not mention to the person from the DDB anything about gaskets (T109.10).

• He told the person from the DDB that when he changed a burner (tuyere), he would pack a blanket type of material around it (T109.19).

• He did not mention rope to the person from the DDB (T109.34).

• He told the person from the DDB he changed burners about four times (T110.16). He said he "Didn't change many out. But I packed plenty of them" (T110.20). Cross-examination then proceeded on this point and the plaintiff disagreed with the suggestion that the only time he could have been involved in packing around the burners was when he was changing them (T110.31). He scraped the old rope out (T110.38). He packed the burners about two to three times a week (T110.44). Work on changing burners happened on shutdowns and when they failed (T111.36). They only failed on a handful of occasions (T111.42).

• The plaintiff did not mention to the person from the DDB about working on the cooling blocks (T114.16).

• The plaintiff did not tell the person from the DDB about the use of blankets put over equipment or on the floor (T114.42).

• The plaintiff did not tell the person from the DDB about putting rope on stove doors (T115.02).

74 Mr Parker returned to the second item in the previous paragraph in his cross-examination the following day. In cross-examination, the plaintiff could not then remember cleaning up insulation from pipe sections that had fallen to the ground (T128.43). When he informed the person from the DDB of this, he thinks he must have been mistaken. He could recall seeing insulation being removed from or installed on pipes (T128.50). He remembered taking covers off and seeing tradesmen do that (T129.02). He remembered seeing tradesmen put insulation on (T129.04). He did not help in the installation process (T129.14) or cleaning up. That work was only done during shutdowns (T129.18).

75 Demarcation was enforced at the worksite (T113.09). This was in the context of who was responsible for undertaking particular tasks with the plaintiff agreeing that he would not undertake tasks that belonged to a trade other than his. In this context, the plaintiff agreed that packing the burners was done by tradesmen and the plaintiff helped (T113.34). It was done during shutdowns, planned or unplanned. It was never of an urgency requiring it to be done outside of shutdowns (T113.39) The plaintiff did not do it himself. He only ever assisted. He ultimately agreed with the proposition that he could have been involved in this sort of work only a small number of times (T114.02). This evidence relating to burners must be understood as referring to tuyeres, not cooling blocks. It was apparent during submissions that there was some confusion about this.

76 The plaintiff was cross-examined on Exhibit DX 1 (T117.40ff). This is a DDB document completed on behalf of the plaintiff. When he signed the form, he wanted the recipient to believe that he did not know whether he had any exposure with the defendant at the blast furnace (T121.11). He thought he had not. He wanted the recipient to believe that his exposure had come during the period he was back at the defendant's premises with Andreco after he had left the defendant in 1981 (T121.15).

77 The plaintiff told Dr Johnson in May 2011 that he worked as a labourer for the defendant from 1978 to 1981, that he worked in blast furnaces for six months and then the ingot mill (T122.13). He told him there were steam pipes that were lagged, that he wore a gauntlet, but he did not know if it contained asbestos (T122.21).

78 The plaintiff conceded he was wrong in saying in chief he used compressed air to clean the floor (T127.33), and in this regard he agreed that paragraph 21 of his affidavit was wrong (T139.41).

79 Maintenance was done during shutdowns unless it was an emergency (T127.46).

80 The plaintiff did not fetch blankets or board from the store (T128.25). He did not fetch any product containing asbestos from the store (T128.31).

81 The plaintiff was cross-examined about the use of rope. It was used in the context of packing burners, replacing burners as a seal around burners and around cooling blocks. The plaintiff assisted with all of these tasks. The burners and packing were done only during shutdowns. The plaintiff's occasions of assistance were few and far between. Work on the doors was done only on shutdowns. The plaintiff's opportunities for that work were few and far between. Work on the coolers was done on the shutdowns. The plaintiff could not recall if it was done at other times. His opportunities for that work were few and far between. When this point was repeated a little later, the plaintiff did not respond (T129-131).

82 Work was done on the blast furnace by refractory brick layers from time to time. A team would come in and only on shutdowns. Sometimes no one from the blast furnace would be involved (T133.29). Sometimes one or more persons from the blast furnace would assist, not necessarily the plaintiff (T133.34). The plaintiff's opportunity to do that was only a handful of occasions (T133.41).

83 The plaintiff was shown catalogues (T122.35, T134.27ff) and asked if he could identify products in the catalogues. I do not find this evidence helpful.

84 In paragraph 21 of his affidavit, the plaintiff said it was often the case that he worked on the cast house floor of No. 2 blast furnace and the next day he worked on the cast house floor of No. 4 blast furnace. Mr Parker had him agree that this was a mistake on the basis that this was less often than not (T139.33).

85 In paragraph 22 of his affidavit, the plaintiff said "In addition to the planned maintenance shutdowns, running repairs and maintenance occurred regularly". The plaintiff agreed "In the light of the evidence (he gave) today" that maintenance did not involve asbestos products (T139.49).

86 In paragraph 29 of his affidavit, the plaintiff stated boilermakers and pipe fitters carried out "regular" repairs and that the plaintiff "often" assisted in cleaning up and that he "regularly" inhaled asbestos dust (T140.19). Mr Parker had the plaintiff agree that each of these matters was false.

87 In paragraph 25 of his affidavit, the plaintiff stated he regularly removed old and brittle ropes from pipes and hoses and that he "regularly" inhaled asbestos dust. Mr Parker had the plaintiff agree that each of these matters was false (T141).

88 In paragraph 26 of his affidavit, the plaintiff stated he was involved in removing old insulation rope. The plaintiff agreed with Mr Parker that this was false. He also stated that he packed new insulation materials in (T142.06). When it was put to him that this was false, the plaintiff said he did help (T142.13). Then he agreed he did not pack the material in. When it was put to him again that that was false, the plaintiff said he did pack it in. Then he agreed he was just supposing (T142.17). Then, at the suggestion that the recollection of this was false, he said he could not remember (T142.19).

89 In paragraph 26 of the affidavit, the plaintiff also stated that he "regularly" inhaled asbestos dust. The plaintiff said that he did inhale it. He agreed the use of the word "regularly" was false.

90 In paragraph 26 of the affidavit, he also stated that he cleaned up the fallen dust with a broom and/or compressed air. It was put that was false. The response was "Some areas we did". He later agreed that he could not recall an occasion when he cleaned up with something other than water and he was just supposing he used compressed air (T141-142).

91 In paragraphs 25, 26 and 29 of his affidavit, the plaintiff did not mention gaskets (T142.32). The plaintiff agreed that the evidence about gaskets was wishful thinking because he hoped it would support his case (T142.47). The plaintiff agreed the whole of his affidavit concerning his work for the defendant was wishful thinking because he hoped it would support his case (T143.01). The plaintiff agreed he has allowed himself to overstate his case as a result of wishful thinking in a desire to support his case (T143.35).

I Other oral evidence in support of the plaintiff's case

(a) John Gillespie

92 Mr Gillespie commenced work with the defendant in 1969. He does not recall the plaintiff.

93 Mr Gillespie had extensive experience working in the blast furnace department in different capacities. He spent 70-80% of his time on the furnaces and was aware of what the various cast house crew members did.

94 He worked in the blast furnace department from 1974 to 1977 as a furnace foreman. From 1978 to 1986, he was in that department, progressing through positions being General Foreman Blast Furnaces in 1978 and 1979, Senior Site Services Supervisor Blast Furnaces from early 1980, Project Manager Blast Furnaces in late 1984 and Assistant Superintendent Blast Furnaces in 1986.

95 In about 1986, Mr Gillespie moved out of the blast furnace department for about 6 to 12 months and became the Superintendent of the Sinter Plant Department at the Newcastle Steelworks.

96 In about 1987 he took up a position as Superintendent of the Blast Furnace Department at the Newcastle Steelworks. In about 1988, the Sinter Plant Department and the Furnace Department merged. Mr Gillespie was Manager of those departments at the Newcastle Steelworks until 1996.

97 Between 1994 and 1996, as part of his role as Manager of the Blast Furnace and Sinter Department, he was also the Project Director for the complete rebuild of the No. 4 blast furnace. When the planning for that project was completed, he left the Newcastle Steelworks.

98 Since then, up to the present time, he has continued to work in the steel industry.

99 Mr Gillespie gave evidence about the work practices and working conditions in the blast furnaces and about the use of asbestos.

100 At this stage, I shall focus on some of Mr Gillespie's evidence going to the issue of whether there was asbestos product in the blast furnace department.

101 The blast furnace department was the section of the steelworks that had the greatest need for insulation (T232.07).

102 Mr Gillespie stated that he had some training in the use and appearance of various materials including asbestos and experience and a certificate in refractories. He was able to distinguish products he understood to be asbestos from other products. The distinction included the fibrous nature of asbestos products and the texture of them. Furthermore, asbestos product was kept and stored by the defendant. One of his jobs was ordering and making sure that stocks were kept up on the furnaces. Asbestos was labelled as asbestos and the word "asbestos" appeared on wrapping. The product was commonly referred to as asbestos, including by superintendents and foremen in the workplace (T165). The replacement products did not look like the asbestos-based products (T212.13).

103 Mr Gillespie was involved in implementing a direction that asbestos be removed from the plant. This was in about 1979 (T166.42, T174.12). This was timed at about the time Mr Gillespie understood an edict came out to get rid of asbestos. Mr Gillespie did not see the directive of the general manager, Mr Harden, of 25 July 1979 (Exhibit DX 3, 322) or any other relevant document, but as there is considerable reference to the directive in these reasons, it is convenient to take it as the edict and also to take Mr Gillespie's awareness of it occurring on 25 July 1979, even though that timing may not be precise. Nothing turns on taking that approach. There was no urgency transmitted to Mr Gillespie about the removal of asbestos (T178.44). It did not appear to be any more urgent than other matters requiring attention (T332.09).

104 In about 1979, attempts were made to replace asbestos materials. Different materials were tried and failed. The furnace had to be kept going, "...we did our best to control the immediate risks against the long term risks of exposure to asbestos." Immediate risks were heat and splash and gas. (T174.12-16)

105 Up until the mid 1980s, asbestos materials were used. Those materials comprised rope, tape, blankets, cloth, gaskets, millboard sheets, insulation blocks and clothing being gloves, gauntlets, aprons, spats and coats. (Exhibit PX 21[40])

106 Asbestos ceased to be used in about 1985 (T189.16).

107 Mr Gillespie was shown a document which became Exhibit DX 3 at page 78. Another copy is at page 195. It is dated 17 September 1979 and sets out certain action taken by the defendant with regard to asbestos. As to that document, Mr Gillespie gave the following evidence:

• there was an asbestos survey;

• he was involved in looking at substitutes for asbestos;

• the issue of cloth was to be strictly policed and only to be issued when absolutely unavoidable;

• insofar as the document stated that rope was not to be purchased on the plant, that was not correct;

• nor was it correct that Kaowool had replaced rope;

• fibreglass replaced tape;

• Bellite, Klingerite and Palmeto continued to be used. Mr Gillespie thought that this referred to pipes;

• there was a large gasket in No. 2 Blast Furnace. It was two inches square and 20 feet long. It was replaced in 1985;

• millboard was replaced, but he could not say that was in September 1979;

• the majority of lagging was done by Insulation Industries. They may not have used asbestos after September 1979;

• asbestos substitutes were being sought for hand and foot protection. He said they could not be replaced when right up next to heat. The document notes that replacement material on gloves was revealing a problem with abrasion. Mr Gillespie said abrasion was not a problem in the blast furnace department;

• blast furnace personnel were sent for medical examinations. Mr Gillespie could not recall if that was in July or August of 1979;

• monitoring did not directly involve Mr Gillespie. This item refers to a circulated memorandum he would have expected to receive, but had no recall of seeing it. It notes that Mr Grogan was to arrange for the laboratory to carry out sampling. Mr Gillespie had never heard of Mr Grogan;

• the document refers to vacuum cleaners. Mr Gillespie said he never saw them and then added that he had no recollection of them;

• the document states that no orders were to be placed outside of the plant without approval of the safety superintendent. Mr Gillespie said that the department only ever ordered within the plant so he had no comment to make about that item;

• the document notes that a specialised group of men from the power department were to be trained to deal with major and minor sized asbestos demolition jobs. Mr Gillespie had no recall of that;

• the document refers to a handbook in the printing stage. Mr Gillespie had no recall of receiving it. He could not deny that this was issued;

• the document refers to a booklet for employees to be published. Mr Gillespie had no recall of that. He could not deny that this was published.

108 Mr Gillespie was shown some photographs of product. He could not tell from the photographs what some of the material was. It included rope and braid (T228.32), boards (T228.44), some rolled up material (T228.50). The blanket or carpet did not look similar (T228.36). I do not find this evidence of attempted identification from photographs to be helpful.

109 Mr Gillespie spoke about the processes of removal of asbestos from the defendant's work processes. In about 1979, the defendant made some attempts to investigate and trial asbestos-free products such as Refrasil, Kaowool and Parramatta Cloth (Exhibit PX 21 [50]).

110 Mr Gillespie said that for a number of years up to the mid 1980s, the non-asbestos products trialled were "simply not up to the task". Problems included the failure of gaskets and the creation of leaks and the failure of asbestos-free gear to adequately protect against hot metal splashes and extreme radiant heat. The blast furnace department workers continued to use asbestos containing materials up until the mid 1980s. After the mid-1980s asbestos dust was generated from the removal of old asbestos packing and insulation (Exhibit PX 21 [51]).

111 Substitutes were used for the sheathing of hoses. Mr Gillespie was involved in the trialling of the substitutes. Wool was tried. That did not last very long. Refrasil was the most successful, but the hoses had to be changed more often. It took a couple of years to develop that material. It was not really used in earnest until late 1981/82 (T222.37).

112 The use of asbestos containing materials was never prohibited in the blast furnace department. Until the mid 1980s, the defendant stocked and dispensed asbestos rope, tape and protective gear as required. When suitable substitutes became available, the defendant ceased ordering asbestos containing materials (Exhibit PX 21 [52]).

113 If insulation materials were required, they were ordered through the stores. Any foreman could write a chit and get them out and they would automatically be replaced. A storeman's job was to receive the chits and issue the goods. The chits could be signed by a foreman (T206.42).

114 Mr Gillespie recalled an inventory taken of asbestos products (T210.25). The time was not identified, but it could be the survey of July 1979, Exhibit DX 3, 206.

115 Asbestos materials were only completely stopped in the blast furnace department when engineered out in 1985 (T211.05). It took a long time to implement everything (T211.17). Mr Gillespie denied that a specialised asbestos removal team was set up (T211.19). He never saw any evidence of it. He was not involved in any of it which would be unusual had it occurred (T211.22).

116 Mr Gillespie was shown a document that became Exhibit DX 7, Tab 1. It is a note dated 7 August 1979 from Mr Bryon to "All Concerned". It recommended an alternative for rope being Kaowool (T213.19). Mr Gillespie denied that Kaowool was used shortly after early August 1979. Kaowool failed (T213.24). Millboard was easier. There was no substitute for the rope.

117 Mr Gillespie swore an affidavit - Exhibit PX 21. He was asked about paragraph 47. It was put to Mr Gillespie that he had no direct knowledge of what was behind the old insulation. This was in respect of the product that was placed behind the refractory bricks when a re-line was done. In his affidavit, Mr Gillespie said this was asbestos up until the mid to late 1970s. The last re-lines in the blast furnace department before the plaintiff commenced were as follows:

(1) 25 January 1979;

(2) 27 February 1977;

(3) 5 April 1975;

(4) 11 May 1979.

118 Mr Gillespie said he was aware that the old insulation was asbestos because it was specified in the drawing (Exhibit PX 21 [47] and T228.01).

119 I shall now turn to other parts of Mr Gillespie's evidence and, in particular, the working conditions in the blast furnace department from 1979 to 1981.

120 Mr Gillespie provided two affidavits. In his affidavit, Exhibit PX 21, he referred to the four blast furnaces.

121 On blast furnaces 1, 2 and 3, on any particular shift there were two labourers per furnace, per shift (T169.12). There could be three if the furnace was abnormal.

122 Labourers tended to move around the furnaces (T168.41). A labourer was not allocated to a particular furnace (T168.46). They were expected to do all tasks and pull their weight (T169.03).

123 Mr Gillespie described the hot process in the blast furnaces. In the interest of some brevity, I simply note his description which is contained at paragraphs 19 to 30 of his affidavit, PX 21. Much of this I have recorded in "The defendant's operations", paragraphs 3 to 16 hereof.

124 A typical crew on each blast furnace comprised a keeper, a stove man, a slagger, a helper, two to three labourers, a hoist driver and a larry-car driver/raw material attendant. In addition, there were two to three ancillary workers cleaning up away from the furnaces. There were 50-60 workers working on each of three rotating shifts. The majority of workers, being labourers, helpers, slaggers and keepers worked on the cast house floor (Exhibit PX 21 [31]).

125 Labourers learned how to perform each job required in the blast furnace department operations. Those jobs were helper, slagger, keeper, stove man. When there was absenteeism, a labourer would be transferred in order of seniority to fill each position until the usual incumbent returned (Exhibit PX 21 [36,37]).

126 The work processes included:

(a) after each cast, labourers cleaning out of solidified slag and replacing sand. This process took about one and a half hours (PX 21 [33]);

(b) loading and the use of a mud gun by the helper (PX 21 [34]);

(c) some basic labouring work done by labourers on the cast house floor and in the blast furnace department, including shovelling out and replacing sand in the metal and slag runners, cleaning the taphole area, helping to load the mud gun and changing the taphole drill and cleaning and preparing the mud gun for casting. The labourers cleared dust, dirt and debris from the blast furnace floor using brooms, water and sometimes compressed air hoses [35].

127 The blast furnaces were to be operated safely and efficiently. Every worker was expected to pull his weight and help his workmates (Exhibit PX 21 [38]).

128 There were shutdowns for planned maintenance about every two months, one blast furnace down at a time. That lasted 16 to 24 hours. During the planned maintenance, several trades, together with the cast house floor labourers, worked in close proximity repairing and maintaining parts of the furnace. Tuyeres, cooling blocks, staves, hoses, refractory pipes and other equipment were repaired and maintained. Running repairs and maintenance were also conducted as needed. This usually occurred after a cast (Exhibit PX 21 [38]).

129 Other maintenance was done on the run between casts or around the back of the furnace at any time. A lot of the maintenance was required outside of planned shutdowns (T182.49).

130 Changing tuyere hoses could only be done on a shutdown. Changing drill hoses and clean up work was all done on the run (T181.30).

131 There was programmed maintenance during shutdowns. Maintenance work that could not be done with the furnace on was done on shutdowns (T189.31). Programmed maintenance was done by maintenance people and operations people. Maintenance people included maintenance people working in the blast furnace department and also maintenance people from another department of the defendant. Maintenance people did not do most of the programmed maintenance (T189.43). The furnace crew assisted the maintenance people on shutdowns (T189.49). The furnace crew would assist the maintenance people in basic tasks to the extent that the maintenance people did not have their own people there (T190.33). It was only occasionally that furnace crew would be called on to assist the maintenance crew (T190.39).

132 Changing of hoses if they were screwed hoses was done by maintenance (T181.37). If they were camlock fitted hoses, it was done by operations people, including labourers. If the hoses were changed by other than operations personnel, labourers would still assist in the clean up (T181.42).

133 The allocation of labour depended on the requirements of the work process on each shift. A labourer usually worked shifts on all blast furnaces over a period of time. They were not personally assigned to a particular blast furnace (Exhibit PX 21 [39]).

134 The plaintiff could have spent most of his time on blast furnace No. 4. It would not be normal for people to work there for 12 or 18 months and hardly visit blast furnaces 1, 2 or 3, but that could be (T208.21). The shift rotation ensured that people worked on all furnaces to make sure they were current. "A---I just understand the shift rotation system. That's how it works" (T208.33). This really became evidence of how the system was to work as Mr Gillespie later agreed that despite understanding the system, he did not observe this (T208.35).

135 Asbestos rope was used by tradesmen to insulate parts of hoses and pipes. Labourers helped remove old, brittle, crumbly asbestos rope. Tradesmen cut new lengths of asbestos rope from spools with a hacksaw and applied it. Labourers assisted in this process. Dust was generated from the work. Mixing of the new cord was done in wet mortar (T205.39). It was wet when packing it into the space. It was dry getting it off the roll (T205.42). Labourers cleaned up with a broom and sometimes used compressed air and water hoses (Exhibit PX 21 [42]).

136 Labourers regularly used lengths of asbestos rope to pack and seal around each tuyere, monkey, cooling block, stave shroud and stove door. They cut the rope with a hacksaw. They mixed it with mortar. They packed it in to those areas. The packing was done by hand and/or a crow bar. It was a dusty job from the removal of old, brittle, crumbled asbestos rope and the use of new asbestos rope. The dust and debris usually ended up on the open walkways and on the level below the walkway. It was eventually cleaned up by the labourers with a broom and/or compressed air or water hose (Exhibit PX 21 [43]).

137 Labourers changed cooling blocks. There were 200-300 cooling blocks on each furnace. They would fail at about 10 a month and at the end of their life, about 20 a month (T175.48). If they got too hot, they would get a pin hole or a crack and any water entering the blast furnace was a disaster and had to be stopped immediately. It was necessary to shut the furnace down and change the cooling block. This involved digging the old asbestos out. This would be about two feet in front of the operator's face. Then the operator had to pull the cooling block out, dig the hole so that the block would fit back in, put in the new cooling block, get the new asbestos cord, dip it in refractory cement and ram it in between the cooling block and the shell with a bar or hammer. Dust was in the cavity around the cooling blocks when the wet cord was being repacked (T226.50). This work was done with gloved or bare hands. Old material fell to the levels below. It was very dusty and friable. Fibres and dust could be seen in the air. It took about an hour or an hour and a half to get the old material out. When it fell, it fell two or three levels down to the mantle launder. Some of the material fell through the grid. Some of it landed and rested upon the metal of the grid. There might be another crew at the next level down doing another block. There could be labourers working down at the bottom where the old asbestos fell (T175-177).

138 There was an urgency about changing a cooling block if it was leaking. It was a labourer's job (T177.22). Replacement of cooling blocks had to be done on a shutdown because of the gas.

139 By 1979, cooling blocks were being replaced at least once per week in each of blast furnace No. 1 and No. 2.

140 Work on the cooling blocks was done only on blast furnaces 1 and 2 after the late 1970s (T194.47). There could be ten to 12 people around the work area on a circular walkway (T195.13). Only two people would be working on a cooling block. If the cooling block failed in operation, they would have to shut down the furnace and change it immediately (T195.47).

141 Cooling blocks would be worked on when the blast furnace was shut down on a scheduled basis every two months and also on an unscheduled basis near the end of their life in the late 1970s, which could be twice a day or probably two or three times a week (T196.09).

142 Cooling blocks tended to fail more towards the end of their life and that is the last half of the life. Failures could still occur in the first half. Blast furnace 1 was re-lined on 25 January 1979 and lasted until it was decommissioned for other reasons in 1982. It was then probably only half way through its normal working life. Blast furnace 2 was recommissioned in 1978 and went through until 1985. 1981 was roughly the half way point of the normal operating life of both blast furnace 1 and blast furnace 2 (T226.41).

143 Mr Gillespie rejected the suggestion that the opportunity for labourers to be involved in packing cooling blocks were few and far between. He said that tradesmen never did that work (T182.28). The maintenance people only did pressure tests, looking for a leak (T190.47).

144 Asbestos cloth and blankets were used by fitters, boilermakers and labourers as protection from heat and metal splashes. The cloth and blankets were dusty to handle. The blankets would be draped over the mud gun or taphole drill. Sometimes, workers put them in a wheelbarrow as a mattress and rested on them (T173.50). The heat dried them out and they gave off dust which could be seen in the air. Handling them would leave dust and fibres on hands and clothes (T174.05).

145 Millboard sheets were also used for protection. When these were cut or damaged, they gave off dust (Exhibit PX 21 [44]).

146 Fitters regularly removed and reapplied asbestos gaskets from places where metal abutted metal. The gaskets were in the form of sheets, rope and woven blanket material. Another such place was where the pipe connection between the blowpipe and down leg pipe carried the hot air from the bustle main. The old gasket material was crumbly and generated dust. The new gasket material was cut, generating dust. Labourers assisted in this process and the cleaning up (Exhibit PX 21 [45]).

147 Boilermakers and pipe fitters repaired steam pipes. They removed the metal casing and the lagging underneath. If they were working on flanges, they removed the exposed insulation. The flanges were changed by maintenance people (T191.03). Asbestos rope was cut, handled and wrapped around the pipes. This work created dust. The dust travelled down onto any person or object that was beneath the job. Labourers often assisted in the process including cleaning up (Exhibit PX 21 [46]).

148 The work on the pipe flanges was for maintenance people (T205.01). Mr Gillespie, himself, changed the boot stop flange near the tuyeres when he was more junior and even when he was foreman (T205.03). He was responsible for organising pipe repairs (T205.32).

149 Major re-lining of the blast furnaces was done partially or completely when the refractory brickwork began to decay or corrode.

150 In addition to re-lines, there were minor or unplanned refractory repairs carried out on each furnace and hot blast system as required. Parts of the lining were demolished with crowbars or jackhammers. Old insulation behind the bricks was removed. This generated dust. Up until the mid to late 1970s, the insulation was in the form of asbestos sheets or blocks. New asbestos sheets or blocks were handled and laid. This generated dust. Labourers assisted in the demolition. They assisted in the cleaning up of installation of new insulation. This was a dusty job. In the earlier years of Mr Gillespie's work in the blast furnace department, the defendant's employees did most of this work. In later years, contractors were used for major relines and some minor repairs. The defendant's employees always assisted during these periods (Exhibit PX 21 [47]).

151 Workers on the cast house floor regularly wore asbestos backed gloves or asbestos gauntlets and sometimes asbestos spats and aprons. The heat caused the gear to deteriorate and fray liberating dust and fibre. It was common for workers to clap their hands when wearing the gloves or gauntlets to "disburse" the heat (T173.13). This caused dust. These items were often worn in the casting process (Exhibit PX 21 [48]).

152 There were gauntlets. They were worn in the blast furnace department, normally for abnormal operations. They were not worn for very long. They were worn clearing the taphole out. Any of the crew would take turns doing that. The task could take two hours at a time. A worker can only work five or ten minutes each at a time because of the heat (T194.22). This occurred probably less than once a month.

153 Gloves with a backing were used for work near molten metal or molten slag. They were used in jobs to keep the fluids running down the runner and chipping off the skull material, poking the taphole, using oxygen on the taphole. That was something that would be done every shift. This could be for about an hour a shift or it could be zero (T207.44). There may appear to be an inconsistency here, but I do not think there is. When Mr Gillespie referred to the task being done every shift, he was referring to the task. When he referred to "zero", he was referring to whether a particular worker might be doing that work on a particular shift.

154 Exhibit PX 19 is a photograph of the No. 3 blast furnace cast house. It shows a man wearing a coat and gauntlets. Gauntlets were normally for abnormal furnace operation (T172.28). The long coats were normally for abnormal operations. Asbestos-backed leather gloves were normally worn at any time during the cast (T172.32). Exhibit PX 19 also shows a non-asbestos blanket when the photo was taken in about 1987 (T173.38).

155 Labourers would clean up "around the furnace under the bustle main. Around that area in the tuyeres." (T193.09). They would use water and a small bar. They would wear gloves doing that, including leather gloves with protection on the back (T193.28). Generally, they wore leather gloves, but if it was hot work around molten metals or molten slag, it was asbestos-backed gloves (T193.47).

156 Labourers would change the taphole drill. From 1979 to 1981, Mr Gillespie observed labourers handling the taphole drill. There were many hoses in and around the taphole drill. The hoses were insulated with asbestos cloth. It was friable and damaged. The labourers brushed up against the hoses. The lagging on the hoses was friable and damaged. There was fibre and dust around the area. This was exacerbated if the main cooling fan was on (T168.11). The labourers handled the drill three or four times during each shift.

157 During repairs on the taphole drill hoses, fitters would remove the insulation from around the hoses with assistance from the labourers. This work generated dust. Clean up was done by labourers using a broom and sometimes compressed air or water (Exhibit PX 21 [49]).

158 In a second affidavit (Exhibit PX 22), Mr Gillespie put together a schedule of the situations in which asbestos was present and work was done. The schedule, in effect, provides an average frequency of occasions and time spent by each worker in the different tasks. The body of the affidavit stated that it was impossible for each of the labourers to avoid regularly working in circumstances where asbestos dust was in his immediate breathing environment.

159 The tasks that Mr Gillespie described in that schedule were:

• remove old cord and repack cooling blocks BF1, BF2 with asbestos cord;

• remove old gasket and repack stave shrouds BF3, BF4 with asbestos gaskets;

• change taphole drill adjacent to asbestos clad hoses;

• clean up after taphole drill asbestos clad hose change;

• wear asbestos backed gloves or asbestos mittens;

• wear asbestos full length coats and spats during casting and using oxygen lance (unusual furnace conditions);

• clean up asbestos material after steam/oil pipe repair;

• use asbestos blanket for protection;

• remove and replace asbestos clad tuyere or cinder notch hoses;

• clean up asbestos material after tuyere or cinder notch hose change;

• work adjacent to asbestos clad mud gun cables on BF1, BF2;

• cleaning up old asbestos blankets and millboard sheets;

• general cleaning of cast house and furnace floors.

160 On some of these tasks, the face was only one to two feet away from the job being done. Fibres and dust could be seen in the atmosphere (T175.35).

161 Mr Gillespie spoke of masks, including airline respirators, being available if workers chose to wear them. Their use was not enforced. The defendant enforced the wearing of airline respirators in areas where there were carbon monoxide gas emissions. Before the 1980s, warnings were not given that the inhalation of asbestos dust could lead to death (Exhibit PX 21[56]).

162 Air testing was done in the mid 1980s (T183.05). It was done several times (T183.38). Mr Gillespie did not know for what products it was done.

163 Mr Gillespie had no recollection of clothing being laundered by the defendant (TT221.39).

164 In cross-examination, Mr Gillespie said there was a hierarchical structure for each blast furnace. The blast furnace department was one of a number of departments. There was a safety department. There were monthly safety meetings and ad hoc toolbox meetings.

165 Demarcation was strongly enforced except in emergencies (T186.44).

166 There was a night order book that was for "physical" instructions for a shift. It was not for safety communications (T187.36).

167 Mr Gillespie disagreed that instructions were to be obeyed, not questioned (T188.43). There were many risks that had to be managed (T189.04). Cost was not an object (T189.06).

168 Insulation on stove doors was not done by maintenance people, but by Operations (T191.07). Maintenance people changed some hoses on the tuyeres and drills (T191.16).

169 After a cast, the metal and slag solidified in the runners so the labourers had to clean that out and re-make the runners and change the taphole drill and clean up (T191).

170 The clean up of all the rubbish and hosing down took about half an hour to three quarters of an hour. The clean up was done with broom or hose normally. That would be done twice a shift (T192.15). The use of compressed air was more common in the 1970s and phased out some time in the early 1980s (T225.46). In respect of minor demolition work, however, Mr Gillespie could not recall occasions after 1979 when the material was not kept damp during the progress of the job (T221.26). This was not evidence that Mr Gillespie could not recall other work processes where the material was not kept damp.

171 Cleaning up on the mud gun was done by the helper, but he might be assisted by the labourer (T192.31).

172 Labourers would assist in refractory repairs. They would do fetch and carry (T192.49).

173 The tuyeres themselves did not have insulation. They had insulation packed around them if there was a gas leak which was infrequent (T204.33). They had insulation on the horizontal flange of the down leg of the boot stop. Where the boot pipe joined the blow pipe, there was a gasket on the horizontal flange (T204.38). That was the only insulation around the tuyeres except for the hoses on the tuyeres (T204.43).

174 Rubber hoses for water on the tuyeres were sheathed in a fabric. Mr Gillespie changed those hoses. If the sheath deteriorated, the whole hose had to be changed. It was sent away and what came back was the hose re-sheathed or a new sheathed hose. The sheaths came from Sheldon Blue shops, a separate stores department, being part of the defendant's organisation (T206.25).

175 Mr Gillespie was shown an undated document which became Exhibit DX 3, 274 and also at p45. This contains a series of guidelines for handling asbestos and about its use. Some aspects of that document were not followed (T220.02). No system was set up for disposal of asbestos. All the asbestos just went down the chute with everything else. There were no specialised containers for asbestos in the blast furnace. Medical monitoring was followed and some of the products were replaced (T221.06). The document required material removed to be placed in a sealed plastic bag and marked "asbestos contaminated". That did not happen. (T221.28). Laundry of clothing was to be done at company's expense. He had no recollection of that being done (T221.39). Mr Gillespie remembers respirators being available, but they were difficult for people to wear principally because of heat (T221.44, T175.16). That problem did not occur on shutdowns (T221.44).

176 There were no instructions to use a vacuum cleaner (T175.10). There was no practice for asbestos be collected in receptacles and disposed of by burial or dumping at sea. There were no vacuum cleaners available (T175.21). There was no issue of booklets containing warnings or guides about asbestos (T175.23). There were no warnings that the inhalation of asbestos could lead to death (Exhibit PX 21 [56]). Mr Gillespie acknowledged that there were warnings from head office in 1979 about health hazards. This was in a meeting. He did not recall seeing any document (T208.36-.45).

(b) Bruce Bates

177 Mr Bates gave evidence, partly by way of affidavit and partly orally. He swore his affidavit on 25 February 2013. It became Exhibit PX 23.

178 He worked for the defendant in two periods. The first was from 1969 until June 1982. The second was from 1986 until the shutdown in 1999.

179 In the first period, he started as a trainee chemical engineer. He worked in various departments in that position. In 1971, he started in the blast furnace department as a trainee in the technical group section. After a few months, he became trestle foreman. He progressed through ranks as furnace foreman, assistant foreman, relief shift foreman, relief foreman on day work and shift foreman.

180 In his affidavit, he said cast house crew labourers were required to clean up for casting and assist with other work as required. Provided they were trained in a position, they may be called upon to fill higher level jobs in cases of absenteeism. To fill the jobs during absenteeism, the cast house labourers were moved into the more senior positions in order of their own seniority. The foremen tried to keep particular crews on a particular furnace, but it was not uncommon for labourers to be moved as required. In his oral evidence, he said it was common for junior labourers to work in different blast furnaces (T244.10).

181 There was no practice of deliberately rotating workers around different blast furnaces (T268.24). It was put that if another blast furnace was working and someone who was not part of the crew had not turned up and they needed someone, then someone would be sent over if they could be spared. Mr Bates denied that (T268.27). He said that in the event of some absence (and sometimes that was 14 people out of 54 per shift), then he might have to switch a number of people from one furnace to another (T268.31). It was only as circumstances required that they would be taken away from their principal furnace (T268.50). There was a lot of absenteeism in Mr Bates's time at the steelworks (T294.26).

182 Each blast furnace was shut down for scheduled maintenance about every month for eight to 16 hours. Only one blast furnace at a time was shut down for planned maintenance.

183 The various trades worked very close to each other repairing and maintaining parts of the furnace. The furnace crew assisted with changing and repairing tuyeres, coolers, cooling elements, cooling blocks, staves, hoses and pipes. Running repairs and maintenance also occurred as needed.

184 Throughout his employment to 1982, workers used heat resistant clothing and insulation products to protect against the high levels of radiant heat and hot metal splashes.

185 During casting, labourers on the cast house floor wore heat resistant gloves, gauntlets and coats. The heat caused the gear to fray and dust was released into the air.

186 Cross-examination on gloves and gauntlets revealed there was a boilermaker gauntlet and a mitten. Both were leather. There was another that had a cloth on the back. That was a gauntlet, but Mr Bates did not remember what the backing of this gauntlet was. The backing went over the back of the hand. That provided extra heat protection. It was not used all that often. More often the leather glove gauntlet and mitten gauntlet were used. A plain leather gauntlet was used most of the time. An all leather glove, more of a gauntlet, canvas back which did not protect from spark, was used in general labouring work and shovelling. There was an all leather glove, not as thick as the boilermaker glove, which covered part of the forearm. (T287-289)

187 In paragraph 9 of his affidavit, Mr Bates referred to heat resistant cloth-backed grey gloves and heat resistant cloth gauntlets. He was challenged about not referring in his evidence in chief to heat resistant cloth-backed grey glove. His answer was "the cloth-backed glove I'm referring to is a cloth-backed gauntlet by our definition today ... We had a gauntlet with a cloth back over the hand for extra heat protection" (T290.22).

188 Mr Bates remembered people clapping their hands together often and a cloud of dust being produced every time. He experienced it himself. Then he was asked and answered as follows:

Q. I am going to read something more to you "Did you ever clap your hands together and a great big cloud of dust went up in the air as a result of dust emanating from those gloves", answer "I have not seen it", is that true. A---Well, I have seen it.

(T291.05-.07)

189 In that context, it was put to him that in October 2012 he had said to the defendant's solicitor,

Q: ... "My father was a builder, so he would come home after demolishing a house and his clothes would be full of asbestos dust. So what did the house guys do, shake the dust. Nothing like that. I never saw anything like that anywhere I have worked. Steel working maybe, with all the graphite, but I have not seen that amount of dust anywhere".

He seemed quite mystified when this was put to him. He said he did not recall saying that and it was not true (T291.43).

190 With the exception of asbestos rope lagging, he did not know what the constitution of insulation and heat resistant protective clothing was. Workers referred to the insulation products as "asbestos". The reference in his affidavit to asbestos rope was based on the fact that everybody, including supervision and the stores people, referred to it as asbestos rope (T244.32). It was the same with asbestos cloth (T245.28). In that case, the people who trained him also referred to it as asbestos cloth. He was not aware of any change in materials during his employment up to 1982 (Exhibit PX 23 [8]).

191 Insulation materials included cord, tape, blankets, cloth, gaskets, millboard sheets, gloves, gauntlets and coats.

192 The cord was used to insulate parts of hoses and pipes.

193 Cast house labourers sometimes assisted in the removal of the old and brittle rope which crumbled. Dust was generated during this work. Labourers cleaned up with a broom and where possible with water hoses. "Compressed air was disapproved of but sometimes workers cut corners" (Exhibit PX 23 [10]). In oral evidence, he stated the use of compressed air was reasonably common (T248.18).

194 The cord was also used to pack and seal areas in the blast furnaces and stoves, including around cooling blocks. This work was done by the blast furnace crew from supervision through to labourer (T245.43). The cord was cut with a hacksaw, hammer and cold chisel or knife. It could be held on a sharp edge and whacked with a hammer. Tin snips or a rasp could be used on it (T278.15). The cord was packed into position by hand or with a crowbar. Dust was created from the new cord and from the removal of old packing with crowbars. The removal of the old material was very, very dusty. It was dug out with bars and jackhammers. Heavier lumps would fall to the ground. Finer dust would float in the atmosphere. That was exacerbated by rising heat. The falling, heavy lumps might fall about 20 feet. If the workers were diligent, and they tried to be, cloth would be put on the walkways. There was a gap between the kick-plate of the walkway and the furnace. The gap was about six to 12 inches. When the heavier material fell, there would be a shattering effect (T245-246). "There's floaties in the air all the time" (T248.27).

195 General practice was to put something down on the walkways. There would still be spillage. People kicked things. The cloth was kicked about. It did not prevent all things falling through (T283.40).

196 It was put that the material that came out would be put out onto a plastic sheet or something that was put down as some sort of blanket. Mr Bates said that was not quite right. The blanket was not put down sometimes. The material that came out was allowed to fall most of the time between the gap (T274.09).

197 A worker's face would be 600-800 mm from the point of digging out the old packing. He would get covered in the dust (T247). The closest that a worker could get to the point where the packing was being removed could be 15-18 inches.

198 Packing cooling blocks was done during shutdowns whether scheduled or unscheduled (T269.39). Cooling blocks were replaced if they were leaking - (T269.41). The furnace crew would replace the cooling blocks (T270.06).

199 It was put that the older the blocks, the more likely there was a tendency to fail. Mr Bates said it did not work like that. The reason the block failed most of the time was because it was burnt. The block would be exposed to falling material and eventually erode away. Those down lower in the shaft could be exposed to a semi-molten gooey mess which was very hot so they could actually burn. The rate of that failure increased as the furnace got old (T270.19). A failure could occur with the block being exposed to descending material. It would become distorted. In this case, the block would be attempted to be replaced even though it might not be blowing gas. If it could not be pulled out, it would just be filled up with refractory and disconnected (T271.10). To disconnect, a hose was looped over that block to the next one above and nothing would be going through it. Quite a lot of the packing was a result of gas failure (T271.20). The furnace would be stopped and all the leaks packed. Quite often, packing occurred not because the block had failed, but because the packing had failed and allowed gas to leak (T270.28).

200 When the blast furnace was brand new, it was unusual in the first year to see too many problems in the stack (T271.41). Problems gradually increased as the life of the furnace wore on (T272.01). It was more usual to pack a gas blow that to replace a block. Packing for gas blows would increase over time (T272.08).

201 Mr Bates recalled that every time he got on day work on No. 2 blast furnace, they had to shutdown at least once during the week to pack blocks and the packing might be from 2 to 22 (T272.16). The furnace was shut down every week in one period of time to pack a number of blocks because of the condition of the furnace shaft upon the furnace (T272.27). This could happen towards the end of the furnace's life. It could also happen due to very poor furnace operation and "we had quite a lot of that" (T272.38).

202 Packing the block involved using asbestos rope. It would be wedged in tightly around the circumference of the new block or the leak. The balance of it would have castable material pushed in as the final seal (T273.13).

203 For replacing a block, the old block was pulled out and a new one put in. Rope was wound around the new block and it would then be jammed in. A castable was put in around the outside and in the gap. Changing a block could take all day. Preparation of the hole was arduous. The cavity would have to be cleaned out to free the block from as much material as possible before trying to jack it out (T273.44).

204 Packing blocks for gas flows was common (T275.49). Mr Bates was cross-examined on what he said to the defendant's solicitor in October 2012. It was put that he had said that over time there was movement and sometimes rope was used to push in the gaps to try and seal off the gas flow. He was asked how often that would need to be done, he replied "Not often. Once every three months." He agreed with that in the context of the early life of the furnace - "Initially - that's right - when it starts" (T276.23).

205 Again, cross-examined on that October discussion, it was put to him that he said that he would probably be starting to pack blocks after four years. He agreed that that would normally be so "unless something abnormal happened during the life of the blast furnace" (T277.16).

206 One question that was not entirely clear seemed to suggest that the only insulation work that the furnace crew did was on tuyeres and was with Fiberfrax material (T280.31). Mr Bates answered:

A---Look, no, as I said, we pack around - we packed around cooling blocks, single notch elements and cracks in the furnace and that work is - all the tuyeres stock work and zimmer (sic) notch work is done by furnace crew so they can use this - not the gasket, this is asbestos rope that I'm referring to. We packed around blowing elements and that's the cooler, the tuyere cooler and also the cinder notch cooler and then also sometimes a weld would break or a split would occur in the furnace shell, gas would blow from that, especially on the number 1 blast furnace whereby we would use asbestos rope to jam into those areas of blow to seal them up on the next shut down. So if we had to shut down for something the jobs would be written up on the board and that's what would happen... (T280.33-41)

207 Tinsmiths and boilermakers used cloth and blankets against radiant heat and metal splashes. These were dusty to handle. The heat dried out the cloth and blankets and they gave off dust.

208 Any one of the crew could handle heat resistant blankets (T248.37). The blankets were to protect the equipment and were thrown over the equipment (T248.41). They were dusty if you shook them or moved them.

209 Workers used millboard sheets as protection from heat and sparks. The sheets gave off dust if cut or damaged. At times, labourers would be involved with cleaning up debris from the welding work.

210 Tradesmen removed and reapplied asbestos gaskets in many areas where metal was up against metal such as on pipe connections on tuyeres. A broken gasket often crumbled into dust. New gaskets were cut and applied. Labourers sometimes assisted with clean up after this work. Dust could be seen in the air.

211 Boilermakers and pipe fitters carried out repairs on steam pipes and flanges in the blast furnace department. They removed lagging and after repairing the metal component, wrapped the pipe with rope. This work created visible dust. Labourers occasionally assisted in the clean up.

212 Labourers changed the taphole drill at least three or four times each shift (Exhibit PX 23 [16]). They would come into contact with the hoses up to three times a shift (T250.50). Hoses insulated with cloth were connected to the taphole drill. It was impossible not to brush up against the insulation. Hands would be put through some hoses to get to the work and to turn isolating valves off and when using stilsons (T250.10). Hoses also shuddered releasing insulation dust. When lowering the drill, the arm and chest could touch the hoses (T250.26). Over time, the hose insulation became hard, brittle, friable and fell apart (T250.38). The air became "particalised" (T250.44) - the same as removing the insulation from around the blocks (T250.47). Usually two people changed a taphole drill (T251.03).

213 Clean up work was carried out next to the mud gun which also had insulated hoses. Brushing against the hose on the mud gun generated dust which was released into the air, on the clothes and person. Currents of air flowing through the blast furnace department disturbed the fraying insulation on a daily basis adding to the dust visible in the atmosphere. Labourers assisted in the cleaning and disposal of old insulated hoses.

214 Labourers could not avoid doing the dirty work (T251.17).

215 Mr Bates remembered a product called Kaowool (T254.31). It was used as a joint material, as a gasket between flange joints. He remembered Fiberfrax (T255.09). It was used at the blast furnace. It was a cloth. It was used to join the boot pipe to the boot pipe flange on No. 4. He remembered Refrasil (T255.18). That was a blanket. He was not sure when that was first used. This evidence was not pin-pointed to any time period.

216 Sometimes maintenance work was done by outside fitters and boilermakers (T257.23). They would re-rope broken pipes, being steel pipes. They would assist with any mechanical breakdown the shift fitter might need assistance with (T257). Repairs on steam pipes could be carried out by outside fitters or boilermakers. So too could repair work on flanges on the steam pipes. They would remove broken pipe and may have assistance from the blast furnace maintenance section in doing that. Most of the pipe repair work was done by the pipe shop. The contractor or pipe fitter from the pipe shop would normally remove the old pipe and supply the replacement and install it.

217 Re-lines were done by specialist contractors from outside the defendant (T258.43). Fitters and boilermakers' mates assisted the tradesmen, holding things, fetching and carrying, cleaning up afterwards (T259.17). The final clean up would be done mostly by the blast furnace people (T258.49, T259.08).

218 Demarcation was not enforced in practice (T259.50).

219 Mr Bates was cross-examined about what he could remember about maintenance jobs. He agreed that every job was different. It was put,

Q. ... you may remember individual details of individual jobs for particular reasons but what you remember is an impression created by all of the other jobs the details of which you can't remember, correct. A---Well again I beg to differ... We'd need to talk about specific work ... (T266.38)

This followed an earlier answer where he said "I can remember specifics" (T266.29).

220 He disagreed with the proposition that generally speaking when maintenance was done by people within the blast furnace department, there was not too much clean up left to do (T266.46). He said you could not generalise, but if you had to, the opposite would be correct (T267.01). More often than not, clean up work was left to be done (T267.16). It was important to get the blast furnace back on line as quickly as possible. The blast furnace crew would then clean up (T267.44). On a scheduled maintenance day, the chances of being asked to clean up after the maintenance guys was less (T267.46).

221 Mr Bates was cross-examined on paragraph 13 of his affidavit and it was put that his description of asbestos gaskets being used on pipe connections on the tuyeres was incorrect. He refuted that (T280.11). These gaskets were called asbestos gaskets (T280.14). On occasions, the furnace crew were asked to get asbestos gaskets from the store (T280.16).

222 Paragraph 9 of Mr Bates's affidavit describes insulation materials that were used in the blast furnace. It refers to tape. Mr Bates did not use it. He was challenged as to why he put it in the affidavit if he did not use it (T281-282). The simple answer was that the tape was available on the plant and he saw others use it.

223 Cross-examined on the statement Mr Bates was said to have made in October 2012 to the defendant's solicitor, he is alleged to have said that regular maintenance should have been carried out but was not. He looked distinctly puzzled by this suggestion. He seemed quite mystified by the words attributed to him. He disagreed with the truth of the statement (T284). He said the blast furnace required tuyere stock to be in pristine condition to function (T285.50). It was maintained to the best integrity (T286.03). I accept his evidence about this.

224 Mr Bates denied Parramatta Cloth coats were used in the blast furnace (T287.14), although in his October statement to the defendant's solicitor he did say that Parramatta Cloth coats were provided. In trying to recall, he thought they were probably not there before 1980 but he could not be one hundred percent sure and would not deny that they were there.

225 Up until 1982, Mr Bates was not warned of the dangers of asbestos. He was not told to take precautions when working with it. He never saw any booklet about asbestos issued by the defendant. He did attend a safety meeting every week, but there was no discussion about asbestos. If a directive had been issued about masks, he would have enforced it (Exhibit PX 23 [19]. He did not recall asbestos and its dangers being raised by unions or management (T255.42). He did not remember an edict going out or an industrial dispute or work bans imposed by the AMWU, or any testing of new insulation materials or an inventory being carried out into different types of insulation products (T257).

226 Mr Bates said that he and other workers took dirty and dusty work clothes home each week to be washed (T290.44).

(c) Terence Turnbull

227 Mr Turnbull gave evidence partly by way of a statement (Exhibit PX 24) and partly by way of oral evidence.

228 He commenced as a labourer in the blast furnace department in about 1965. He worked there until leaving in 1983. He was a shift foreman when he left and had been for about 18 months. He was a furnace foreman before that. Mr Turnbull spent most of his time at No. 4 blast furnace as a foreman after 1978 (T330.36). He might have had to go to the other furnaces one or two shifts a week (T330.42).

229 He did all the jobs on the furnace floor (T321.15). All the labourers did the same work (T321.16). There was a high turnover of labour (T321.20). As shift foreman, he was in charge of the three furnaces and had opportunities to see which labourers worked there. Labourers were not assigned to a principal furnace. They could be moved anywhere at all and that was common. There would be a list each day of what furnace labourers were going to work on and it could vary from day to day (T321.40).

230 Mr Turnbull had a belief that asbestos materials were used in the blast furnace. That belief was based on asking for asbestos products at the stores and they were marked asbestos (T322.19). The products did not change until he left in 1983 (T322.26).

231 He did not recall a maintenance department within the defendant coming to the blast furnace to do maintenance work. Sometimes work was done by maintenance people within the blast furnace department. That would involve them going to the store or wherever else to obtain the materials. Sometimes they got it and sometimes "we had to", the people on the floor (T336.22).

232 For a re-line outside contractors came in (T335.38). Outside of re-lines, if repairs were required, that might be done by fitters attached to the blast furnace department and not by the maintenance department, a separate department within the defendant. "We sort of just had our own maintenance little group there" (T335.47). He did not recall maintenance personnel from other departments within the defendant coming in to do work in the blast furnace department (T336).

233 Mr Turnbull was a working foreman (T336.38). Materials were issued by the stores on a chit system. Somebody like a foreman or above had to sign and authorise it (T337.07).

234 There was some confusing evidence about the form in which materials came. Most times it was given already unpacked and taken out of the box (T337.12). Very rarely was it already unpacked by the storeman (T337.17). Most times, rope was issued by the box (T337.19). It was always labelled as asbestos rope on the box (T337.33). It was always in a box unless it was in a plastic bag. If it was a plastic, sealed bag, it had "asbestos" written on it (T337.37). The asbestos products had not changed by the time he left in 1983 (T322.27).

235 Mr Turnbull does not recall any instruction from management that asbestos should only be used when absolutely necessary. He does not remember testing other insulation materials (T344.25).

236 Demarcation did not operate in practice (T344, 345). He remembers strikes, but not many about safety issues (T345.08). He does not remember a dispute involving the metal workers in 1979 and the use of asbestos (T345.12). He does not remember a ban being placed by the metal workers on the use of asbestos (T345.13).

237 Asbestos rope was used as insulation around the hoses and pipes. As a labourer, he often had to remove old crumbly asbestos rope from the pipes. A tradesman cut new asbestos rope with a hacksaw and Mr Turnbull helped apply the new rope. This type of work was dusty. He did this work up until he left in 1983 (T342.45). He did as much as when he was a labourer (T343.13).

238 Asbestos rope was used to pack and seal around various parts, including the cooling blocks. Mr Turnbull cut the rope with a hacksaw and mixed it with a type of mortar. He packed it in by hand or with a crow bar. This type of work was dusty. He was also doing the work up until he left in 1983 (T343.25).

239 If a cooling block or tuyere failed, the furnace would be shut down for about 45 minutes for repairs. The labourers, including Mr Turnbull, had to remove the old asbestos packing with a crow bar and their hands. The old packing was dry, crumbly and very dusty. The dust fell onto the walkways. (Exhibit PX 24[10]) He also did this work until he left in 1983.

240 As foreman, he had to show the men how to do the work (T345.31). He did that until he left (T345.39).

241 Cooling blocks had asbestos that had to be removed and replaced. The material around it was removed with a bar or jackhammer (T325.25). It was not easy to get the old asbestos out. It could take 20 minutes (T325.29). A lot of asbestos dust was flying around from this as well as a cement-like dust. Compressed air was also used to remove the dust (T326.04). That was used virtually every time. The new rope was packed in before other material was added and covered it. The rope was wet down so it could be compressed more. It wasn't so bad when it was going in (T326.13). Putting it in was reasonably good. The removed material would fall onto the walkways or down to the ground floor of the furnace (T326.18). Nothing was put on the walkway to catch the debris (T338.25). Labourers cleared up this material with the air hose (T326.32). The company frowned on it, but "we always did it" (T326.34).

242 In the job of removing the packing material from the cooling blocks, the operator's face would be 18 inches to two feet from the work (T327.18). That repacking work was done three or four times a week (T327.40).

243 There were hoses feeding water to the blocks. They were lagged with asbestos around them (T327.47). This was lagging that looked like the lagging on the hoses attached to the taphole drill. Operators were very close to these lagged water hoses (T328.02). They would brush up against them half the time.

244 There were water pipes leading into the tuyeres. They were not lagged, but the hoses connecting that to the main valve were. They were lagged with the same asbestos-looking material. It deteriorated over time. Working close to that only occurred on a shutdown. The millwrights would redo the hosing. The labourers would clean up after the millwrights (T328.31). That involved compressed air (T329.02). The dust may lie there for a couple of hours. People walking through it would stir it up (T329.11).

245 Sometimes insulation was put around the tuyere if it was blowing badly (T338.04).

246 Asbestos rope was used by cast house workers including labourers on a number of occasions each week.

247 Mr Turnbull remembers that asbestos sheeting was used to make gaskets at the No. 4 blast furnace. He remembers asbestos sheeting being used to make gaskets up until he left in 1983. (Exhibit PX 24 [12])

248 Paragraph 12 of Mr Turnbull's statement (Exhibit PX 24) refers to asbestos sheeting used to make gaskets in the No. 4 blast furnace. Between the bustle main and the blow pipe was a down leg. A gasket had to be made for that. A big flange shaped gasket was made. The sheeting was cut with a Stanley knife or hacksaw (T329.19). It was fitted by the blast furnace crew. This material came from the store (T329.29). It was not that bad cutting it (T329.33), but when the cleaning between the two surfaces was done, the old material had to be scraped off and the worker could be standing underneath it and have powder over him (T329.36).

249 Fitters and boilermakers used asbestos millboard and sheets or blankets for protection. They provided protection from heat from the furnace (T326.40). When they were finished the labourers collected them and put them in a number of wheelbarrows. They were dry, dusty and hot and usually workers, including labourers, used to lie on them for a nap during a break (Exhibit PX 24 [13], T327.02). The old blankets were not returned to the stores. They were left lying around (T327.07). They deteriorated and finished up with holes and just fell apart (T327.09). They were very dusty. Sitting on or holding one would result in dust all over the person (T327.13).

250 During planned and unplanned shutdowns, labourers used brooms, shovels and sometimes compressed air to clean walkways and other areas of the dust and debris from old and new asbestos materials. This created more dust in the air. (Exhibit PX 24 [14])

251 During day shift, there was a fitter's mate. He assisted the fitter. The labourers or the crew cleaned up after the fitters all the time (T335.20).

252 Protective clothing, including gloves, mittens, aprons, coats and spats, was worn during castings. The gear was worn to protect against radiant heat and metal splashes. Mr Turnbull was not sure what the gear was made of. The gear gave off dust as it was worn and frayed.

253 As to gloves, Mr Turnbull gave the following evidence in cross-examination:

Q. From time to time members of the first [sic - furnace] crew would wear gloves and coats, wouldn't they. A---Yes.

Q. And there was a standard issue glove that gets used by the furnace crews. A---Yes.

Q. It was a leather glove. A---Yes.

Q. That is both the front - both the palm and the back were covered completely in leather not fabric. A---Yes. No, they were fabric of some kind. They weren't leather.

Q. Fabric inside but the clothing was leather. A---Yes.

Q. Yes. A---Yes.

(T339.48)

254 The cross-examination started off with gloves and coats. As to gloves, Mr Turnbull refuted that they were completely covered in leather. Not only did he refute this suggestion, he asserted positively that they ("the palm and the back") were fabric of some kind. The next question "Fabric inside but the clothing was leather" is not clear. If it was meant to suggest that the glove was fabric inside, but leather outside, that suggestion may not have been evident to Mr Turnbull as his agreement with that suggestion does not sit well with his refutation shortly before that "both the palm and the back were covered completely in leather". Nor does it sit well with his evidence about the gloves at T340.33 to .41.

255 Anyone handling hot material would have a mitten (T339.47). The mittens were heat resistant. Heat could not be felt through them.

256 Gloves were described as leather gloves with four fingers and a thumb. If they were worn, they had to be taken back to the store and would be replaced (T340.07). This was the same with mittens.

257 Mr Turnbull said gauntlets were never used. They were described as an item that extended further up the forearm (T340.18). He was familiar with boilermaker's gloves (T340.20). They were not used by the operators or the labourers (T340.38).

258 Mr Turnbull did not recall a glove with a leather palm and canvas back (T340.33). He did not recall a glove that was leather all over (T340.41). Hot objects could be held with the canvas glove (T340.45). It was a heat proof glove which was fabric not leather (T340.48). The furnace crew did not wear the standard issue leather gloves (T341.22). They wore a cloth glove or nothing.

259 He believes the mittens with heat resistant material were asbestos gloves (T346.08). They frayed and had to be replaced. They would be replaced by asking for a new pair of asbestos gloves at the store (T347.01).

260 Removing old, crumbly asbestos rope from hoses and pipes and applying new rope was a now-and-again job (T322.32). There were only two labourers on each furnace (T322.41). It was not possible for a labourer to avoid that job. It was always dusty and powdery (T322.47). There was plenty of dust, "...you were covered in it when you finished working with it" (T323.10). The new rope came from the store. On this job, the labourers would pass the rope to the tradesmen. The ground in the vicinity of this work had a lot of dust and dirt (T323.27). This came from undoing the hoses and taking the hoses off (T323.29). The job had to be cleaned up. Compressed air was used. It made more mess, but it was quicker (T323.36). It was used up until he left in 1983 (T323.33).

261 The work was pretty hectic. "If the furnace shut down you'd be flat out to try and get the furnace back on line again" (T323.41).

262 Staves were often grouted with asbestos rope if they got a gas blow (T324.36). It was rammed in with a small bar or anything blunt. That job "wasn't that often". The labourers did the work. The worker's head would be about 18 inches to two feet from the work (T324.47). Before the packing was done, the area had to be chiselled out and cleaned with a bar and sometimes compressed air. Labourers did this. There was plenty of dust (T325.09).

263 With the taphole drill, the worker would be stretching over the hoses to change the drill bits. The hoses were lagged. The workers' arms would be above chest level to stretch over the hoses. The worker would lean over the whole drill frame and the hoses to unscrew the drill. (T328.10)

264 The lagging deteriorated badly over time. As soon as it disappeared, the hoses in the vicinity of the taphole drill would burst because of the heat, so they had to get changed. They would deteriorate over a week and might be changed once a week (T328.15). When doing work on the taphole drill, the worker would be brushing against the hoses all the time.

265 There were procedure manuals. They did not really change all the time (T331.05). There was not a great deal of change in them. There were some changed procedures or materials in the mud gun. There were some minor changes to personal protective equipment (T331.31).

266 In cross-examination, Mr Turnbull agreed that he and all foremen and all men above in the hierarchy chain were conscious of safety and tried to ensure that all the men worked safely. One of the safety instructions was not to use compressed air. Despite this, Mr Turnbull said it was used "and especially if it was a matter of getting the furnace back on line" (T332.41). Despite suggestions to him that it was unsafe to use compressed air, that it was a company directive not to do so, that he was concerned for the welfare and safety of his crew, that he and others ensured that directives were followed, he adhered to his evidence about the use of compressed air. "It was happening all the time, it wasn't just me that was doing this" (T334.22). It was used up until he left in 1983 (T323.33).

267 Mr Turnbull was cross-examined on his statement that asbestos rope was used as insulation around hoses and pipes when the fact was rope was used around pipes, but the hoses had a sheath (Exhibit PX 24[9]). Mr Turnbull acknowledged that was a mistake. In a case involving the detail this case has involved, it is, in my view, an understandable mistake and I do not consider it to be of any great moment.

268 Mr Turnbull was not told anything about asbestos, nor given any brochures or documents about it (T329.48). Had he been warned of the dangers, he would have insisted on the wearing of masks (Exhibit PX 24 [17]).

269 Vacuum cleaners were not used for cleaning up (T323.32).

(d) Kevin Parker

270 Mr Parker's evidence was provided partly by affidavit and partly orally. His affidavit became Exhibit PX 26.

271 Mr Parker commenced a traineeship in metallurgy with the defendant in December 1969. He worked in most departments. In 1974, he failed a subject and so left and spent time travelling overseas.

272 He returned to Australia and recommenced with the defendant in December 1976. He started on the cast house floor in the blast furnace department. He completed his traineeship in 1977.

273 He worked as a labourer on the cast house floor for about 18 months. He was promoted through various positions including furnace foreman, assistant shift foreman, general foreman and supervisor. His employment card shows him as a blast furnace labourer on 22 December 1976 and going onto staff as a furnace foreman on 14 September 1977, then relief shift foreman in the blast furnace on 31 December 1991 (Exhibit DX 15, Tab 6). He left the blast furnace department in about 1990. He remained with the Steelworks until it closed in September 1999. He was then superintendent of the Bar Mill Finishing and Warehouse Department. He continued working until retiring early in 2013.

274 Mr Parker started his work as a labourer in the blast furnace in December 1976. He became a furnace foreman probably on 14 September 1977 (T447.10). He was in the blast furnace up to about December 1990 (T447.21).

275 From 1979 to 1981, he was a shift foreman in the blast furnace department. He does not recall the plaintiff. There was a very high turnover of workers especially labourers in the blast furnace department.

276 As a foreman, he was aware of what members of the crew were doing (T428.25). During the period of Mr Parker's work in the blast furnace department, the cast house crew was required to perform each labouring job in the department. If somebody was absent from their shift, the labourers were moved around from crew to crew. Cast house labourers were not assigned to any particular furnace, but were allocated to any of the four furnaces as required. Cast house labourers usually spent some time working in each blast furnace.

277 Cast house floor labourers did work including shovelling the old sand out of the metal and slag runners, replacing the sand, helping clear the area around the taphole after the blast furnace had been tapped and helping to load the mud gun. They helped clean the taphole drill and the mud gun. They cleaned around the blast furnace floor using shovels, brooms and compressed air. With compressed air, small lances were made up to use as an extension of the hose (T430.39). This created a plume of dust. It would settle anywhere. They helped the tradesmen in repairing pipes, flanges and other machinery. In doing this, they carried tools, materials and equipment and cleaned up.

278 The labourer's work was mostly cleaning up work, shovelling the sand, putting the sand out and that sort of work (T461.10), but all of the cast cycle work was his work (T461.12). A good shift would have the labourer spending most of his time cleaning up (T461.16). A bad shift would involve changing tuyeres, coolers and cooling blocks and occurred at least once per fortnight (T461.25).

279 Each blast furnace was shut down for about 24 hours each month or so for planned maintenance. On these occasions, workers worked in close proximity repairing and maintaining parts of the furnace. In addition to planned maintenance shutdowns, running repairs and maintenance occurred regularly. On a shutdown, it was not unusual to have cast house crew allocated to the tradesmen to assist them (T455.15).

280 Tuyeres, coolers, cinder notch cooling elements, cooling blocks, hoses and pipes were changed and repaired with the assistance of labourers.

281 Throughout Mr Parker's employment until at least 1985, asbestos insulation products and heat resistant protective clothing were regularly used by workers including the cast house labourers.

282 The use of the term "asbestos" by Mr Parker in his evidence was allowed on the basis that that was his understanding of what the product was or that the product contained asbestos.

283 In his oral evidence, Mr Parker stated that the basis for his belief that product was asbestos product was that when he was a labourer, he was required at times to collect materials from the defendant's store. His foreman often referred to the product as asbestos product. Material came labelled as "asbestos" (T427.23).

284 Mr Parker went to the store many times to get rope. It was boxed. Boxes were labelled "asbestos cord" (T447.38). Sometimes, he delegated others to get the materials.

285 At some time between 1977 and 1990, pipes were re-lagged in a Fiberfrax inside the tin cladding. Mr Parker does not recall when that happened (T456.11).

286 Mr Parker was shown Mr Harden's directive of 25 July 1979 (Exhibit DX 3, 322). Mr Parker had not seen the document before and it was not the sort of document he would expect to have seen (T465.17). Mr Harden rarely came to the blast furnace. It was usually at Christmas (T465.22).

287 Mr Parker agreed that the defendant had an objective in 1979 to replace asbestos (T465.34). He did not know when it started. He agreed it was possible instructions for replacement rope could have gone out early in 1979 (T466.07). It was suggested asbestos rope may have been phased out as early as 1979. Mr Parker said he did not see any changes (T465.45). There was no longer a need for rope after blast furnace No. 2 was decommissioned in about 1985 (T444.10-.15).

288 Mr Parker could not recall any ban by the defendant on the use of asbestos at least until the end of 1981. He would have expected such a ban to come to his attention (T441). He could not recall directives from the defendant concerning any urgency with which substitutes were to be used. He recalled a goal zero policy in the late 1980s. This was a zero tolerance approach to injuries, presumably frank trauma (T438).

289 After 1979, blocks continued to be changed with what appeared to be the same material (T474.40).

290 The materials, understood by Mr Parker to comprise asbestos, included rope, tape, blankets, cloth, gaskets, millboard sheets, gloves and gauntlets. There were also coats though Mr Parker's recollection of these was "not particularly vivid" (Exhibit PX 26 [12]). Each of these products was referred to as asbestos. This was so by workers and foremen.

291 From the early 1980s, Mr Parker was aware of attempts by the defendant to introduce alternatives to the asbestos products (PX 26 [13]).

292 Rope was used to insulate parts of hoses and pipes. Labourers assisted in the removal of old and brittle rope. This process generated dust. Labourers cleaned up with a broom, water hoses and compressed air.

293 Insulation pipes had rope wrapped around them (T453.49). Mr Parker did not know where that rope came from.

294 Some steam pipes had tin cladding (T454.07). That cladding was generally removed by maintenance people (T454.10).

295 Hoses were covered by a sheath, not rope (T456.15). There were hoses on the tapping equipment and on the cooling block and above the cinder notches (T456.33). Hoses on the cooling blocks were changed by pipe fitters when they had a threaded end (T456.39). The hoses in the cinder notch areas were mostly camlock and were changed by the operators (T456.44). Hoses on the mud gun were changed by the fitters.

296 Hoses were replaced as whole. They were made up by the fitters (T457.06). The fitters were attached to the blast furnace department (T457.30).

297 Rope was used to pack and seal around a number of areas including cooling blocks on blast furnaces Nos 1 and 2. The rope was cut with a hacksaw, hammer and cold chisel or knife. It was packed in position using hands or a crowbar or both. Dust from the new asbestos rope was released into the air. Removal of old asbestos rope was done using a crowbar and this released dust into the air. Dust went everywhere including falling through mesh floor ways.

298 In cross-examination, Mr Parker was asked about rope or cord. It came in different thicknesses. The rope used for the stack blocks was loose-woven and the rope for the stove doors was tight-woven. The rope used for the blocks was like the rope used for the general lagging for pipes (T445.48). The lagging, however, was not done by the cast house labourers, but they would remove it when damaged (T446.05).

299 The rope for the blocks came from the blast furnace store. There was also a store department within the company. Materials at the blast furnace store were obtained from that store.

300 Mr Parker did not recall being to the main store in his time in the blast furnace department though that could have occurred if the blast furnace store was short of materials.

301 As to the stove doors, Mr Parker himself applied the rope and also saw others doing it (T448.07). This rope came coiled in a box (T448.13). It was done every couple of weeks (T448.20). It did not need to be done at a shutdown. It was "an operational thing that you did as you went" (T448.22). Old material was scraped off. The rope was applied straight from the box into the gasket joint with a knife (T448.32). It was sometimes cut with a hacksaw (T448.36). The job was done usually by one man, sometimes two (T449.10). It was normally done by a stove man.

302 Asbestos cloth and blankets were used as protection against radiant heat and metal splashes. They were dusty to handle. The heat dried them out and they gave off dust.

303 Millboard sheets were also used to protect from heat and sparks. When they were cut or damaged, they gave off dust. Labourers were regularly involved with cleaning up debris from this work.

304 Gaskets were regularly removed and reapplied in areas where metal abutted metal. During repairs when a gasket was broken, it often crumbled releasing dust into the air. Usually, it was scraped off releasing more dust. New gaskets were cut and applied. All of this work released dust in the air. So did cleaning up. The labourers regularly assisted with this work. They cleaned up with brooms and compressed air.

305 Labourers regularly wore asbestos gloves or gauntlets. This gear was usually lying around on the cast house floor. Heat caused the gloves and gauntlets to fray and this released dust into the air.

306 Steam pipes and flanges were repaired by tradesmen. When the flanges were worked on, the exposed insulation was removed. After the repairs were done, the pipe was then wrapped with asbestos rope. The fitters cut and handled the asbestos rope and this generated dust. Labourers assisted in the clean up after this work.

307 Mr Parker summarised exposure to asbestos as emanating

from the following tasks regularly performed by the labourers:-

a. Removing old asbestos rope and repacking cooling blocks on Blast Furnace 1 and Blast Furnace 2 with new asbestos rope;

b. Removing old asbestos gaskets on drop boot stock connected to tuyeres on 1 & 2 Blast Furnaces and replacing with new asbestos gaskets;

c. Changing the taphole drill adjacent to hoses insulated with asbestos rope;

d. Cleaning up after taphole drill asbestos rope hose change;

e. Working adjacent to mud gun cables insulated with asbestos rope;

f. Wearing asbestos gloves and gauntlets to perform tasks;

g. Wearing full length coats during clearing tap hole during casting and using oxygen lance;

h. Cleaning up asbestos insulation material after steam pipe repairs;

i. Carrying and handling asbestos blankets used for protection;

j. Removing and replacing asbestos insulated tuyere or cinder notch hoses;

k. Cleaning up after use of asbestos blankets and millboard sheets;

l. General cleaning of the cast house and furnace floors.

(Exhibit PX 26 [21])

308 Mr Parker expanded on this summary in his evidence in chief. I shall not recount much of that, but content myself with some summary on particular points.

309 All members of the furnace crew were expected to perform the tasks described and, in his experience, did so. A labourer may not undertake a particular task on a particular occasion if there were more men available than required for the task. That would be a rare occurrence (T428.41- T429.01).

310 As to a. in paragraph 307 hereof:

(1) he said the work related to the cooling blocks normally involved two to three labourers and the foreman (T429.22). It was done on the stack of the furnace above the furnace floor (T429.40);

(2) there were hundreds of cooling blocks in the stack of a furnace. The stack was inspected each shift by the furnace foreman. He took a labourer with him (T430.45). If a block was showing signs of gas, it was bypassed until the furnace could be safely shut down (T430.02). A labourer would cut about a one metre length of asbestos rope. It was soaked in refractory and applied. It was not a source of dust in the application. When the furnace was shut down, the offending block was disconnected. It was hit with a short dolly from side to side until it could be sufficiently loosened to pull out. Sometimes, it was still difficult to get out. It could take between 20 minutes and in excess of 60 minutes to get out (T451.06). Most of the rope came out in the breaking of the surface (T450.49). The packing was dug out and a new block was then inserted (T430.10). Dust was created in the removal of the old block and packing. A mat was laid on the floor (T451.48). If there were men below working, they would be moved from being directly underneath (T452.08). The material would fall through different walkway levels of the furnace. Some of it lodged on the walkway, some of it on the tuyere floor area and some of it on the cast house floor (T430.22). It could be on all floor areas (T432.02). The dust that was generated was not a huge amount, but there was dust;

(3) if, on the inspection at each shift, it was determined that a block needed replacing, that was attended to following the inspection (T430.47);

(4) a damaged cooling block did not always have the required sized block to replace it. The objective was to get the cooling block in place as quickly as possible. Often a smaller block had to be used. On a scheduled shutdown, this would have to be replaced again (T432.30). The result was the blocks were changed more often than there were failures (T432.34). This applied only to blast furnaces 1 and 2. It happened one to two times per month;

(5) this work was done only on shutdowns, planned or unplanned (T452.31). When that work was being done, all of the crew was involved either on working on the stack or working on the floor (T452.45). Three men would work on replacing a cooling block (T453.27);

(6) the blocks may have tended to fail later in the life in the furnace than earlier (T453.39).

311 As to c. and d. in paragraph 307 hereof:

(1) the taphole drill was changed twice per cast (T433.03). The drill itself was changed using spanners. There were three to four casts per shift. The cast house crew removed the rope lagging for the fitters to replace it (T433.13). That involved brushing up against the lagging protecting the hoses. Bits would fall off. White dust was commonly on the clothing from the lagging (T433.33). The head of the person doing the job came within two to two and a half feet of the lagged hoses (T433.36);

(2) people came into contact with the hoses attached to the taphole equipment. They tried to minimise their time there because of the heat (T457.39). There were fans there for providing a flow of air through the area (T458.14).

(3) changing the taphole drill did not take a lot of a labourer's time (T461.14).

312 As to e. in paragraph 307 hereof, the work adjacent to the mud gun cables was much the same as changing the taphole drill, but the equipment was larger. There was similar contact with lagged hoses with much the same effect (T433.43).

313 As to f. in paragraph 307 hereof:

(1) gloves and gauntlets were used on jobs close to tuyeres or close to the furnace for extended periods (T433.49). The woven material on the back of the gloves deteriorated and came apart. Bits fell off it and floated around. Quite often, work would be done with the gloves close to the face (T434.16);

(2) Mr Parker was cross-examined about gloves and gauntlets. The standard issue glove was a leather gauntlet (T459.25). It came half way up the forearm. Gauntlets were heavier and had a matted woven material along the back of them (T459.30). That was on the back of the hand. There were also boilermakers' gloves and riggers' gloves. More recently, there were silver-backed gloves;

(3) there were changes in the gloves. The changes were slight (T460.13). There were a number of changes. The gloves came from the store;

(4) the gauntlets came from the store. They disappeared entirely (T460.27). There may have been a number of changes in them before they disappeared. The gauntlets were only used for specific tasks (T460.43). They were for protection from heat and there were a lot of occasions for that type of work (T460.46);

(5) the gloves were not used for sweeping, but were for shovelling (T461.05).

314 As to i. In paragraph 307 hereof:

(1) asbestos blankets were obtained from the store by the labourers. They were in roll form and about a couple of metres square. They were hung over equipment that needed protection. They were laid on brick benches to sit on. They were also used as a cushioning or mattress in a wheelbarrow to rest on (T435.02). They deteriorated over time, loose pieces would come off them and the weave would come undone (T435.14);

(2) blankets were used as shields to work behind (T458.41). They were laid out over the top of equipment if hot to prevent contact. They came from the store (T458.45). They were a ragged edge cut blanket (T458.49). Mr Parker remembered changes in the appearance in the blankets over time from the mid 1980s. They changed more than once (T459.14).

315 The cross-examination did not shift Mr Parker from changes to blankets commencing after the mid 1980s. It was as follows:

Q. Do you remember any change in the appearance or apparent composition of the blankets over the period from 1977 to 1990. A---Yes.

Q. What do you remember. A---The original blankets were quite a coarse weave, a heavy thread, a heavier gauge material in a coarser weave, the later - right after the mid 80's, they were a very fine, tight, thinner material.

Q. Do you remember them changing once or more than once. A---More than once. Different colours, different weights, there were different materials that seemed to have appeared and then disappeared and, as obviously people were trialling different suppliers or whatever of different materials.

Q. You couldn't be precise, I assume, about -. A---No, I can't, I'm sorry.

Q. When those various changes happened, all you can remember is an impression that this is something that changed on a number of occasions. A---It did.

Q. Over that period. A---Yes. (T459.9-.21)

316 Three things were happening in those questions. They were the fact of changes, the nature of changes and the timing of changes. When Mr Parker SC put the critical question, it had two of those items in it, being the timing of the changes and the fact of the changes. Arguably, it did not even have the timing in it. In any event, the answer "It did" seems directed to the fact of the changes and not their timing. In any event, the answer is not inconsistent with his earlier evidence that the changes, though happening on a number of occasions, commenced from the mid 1980s.

317 As to k. in paragraph 307 hereof, cleaning up after the use of asbestos blankets and millboard involved the use of shovel and compressed air (T436.05).

318 As to l. in paragraph 307 hereof, with the general cleaning of the cast house and furnace floors, that also involved the use of shovel and compressed air (T436.07). There was a general cleanup at the end of each shift.

319 Apart from maintenance people attached to the blast furnace department, there was an external maintenance department. Its tradesmen had assistants. Their job was to fetch and carry and clean up (T454.22).

320 The maintenance crew of the blast furnace also had trade assistants and their job was the same, but it was not unusual for cast house labourers to clean up (T454.26). This would occur on shutdowns as each furnace was shut down every two months, there was on average a furnace shutdown every fortnight. There were also unplanned shutdowns. Clean up was also done by the labourers if the maintenance crew needed extra help or a trades assistant was not available.

321 It was Mr Parker's responsibility to ensure that those working for him followed job instruction guides (T463.06). He would never knowingly disobey a safety instruction or permit anyone working for him to do so (T436.23).

322 Mr Parker was cross-examined on his affidavit. In paragraph 12, he referred to rope on spools. He was asked about not having said that when cross-examined earlier (T466.21). He said it came coiled in a box (T448.13). There is no inconsistency.

323 In paragraph 14 of his affidavit, Mr Parker said rope was used to insulate hoses. He agreed that this was incorrect (T466.36). It is an error of minor significance.

324 In paragraph 15 of his affidavit, Mr Parker said rope was used to pack and seal around tuyeres. He meant around areas of the shell in the region of the tuyeres (T466.42). The area is also referred to as the bosh. He says he should have referred to it as that (T466.47).

325 In paragraph 15 of his affidavit, Mr Parker also referred to stave shrouds, but did not mention that earlier in his evidence as a place where rope was used. He forgot (T467.06). I find that entirely plausible and I accept it.

326 In paragraph 16 of his affidavit, Mr Parker referred to millboard sheets. They came from the store. He did not remember any change in millboard (T467.18).

327 In paragraph 17 of his affidavit, Mr Parker referred to gaskets. They had a change in their material and probably more than one (T467.30).

328 Mr Parker SC had the witness agree that paragraph 13 of his affidavit may have been wrong in referring to the early 1980s. The particular part of the affidavit, in the second sentence, reads "From about the early 1980's I became aware of some attempts by BHP to introduce alternatives to asbestos insulation materials". The questions and answers were:

Q. You have said there you have placed the date of what you describe as attempts to introduce alternatives as being in the early 1980s but having seen the document I have shown you which was MFI 8, that is the general manager's memorandum, of 1979 you would agree with me that your reference to the early 1980s may be wrong. A---That's true. There's not a lot of difference between November 79 and 1980.

Q. The document I actually showed you, just for the record, was dated earlier than November 1979 but I just want you to be aware of that in making that answer. So, in fact, what you say in paragraph 13 in the second sentence, you would accept that it may be from the late 1970s that you became aware of attempts by BHP to replace materials. A---It - it could have been a little earlier, yes.

(T468.40-.49)

329 There were several problems with this evidence, none of them the fault of the witness. The first is that the questions proceed on an assumption fairly clearly implied, if not clear, that it is wrong for a person today to state that something happened from "about the early 1980s" if in fact it happened in November 1979 or even in the late 1970s. The expression "from about the early 1980s" encompasses the late 1970s. Accordingly, there is nothing wrong with the statement. The next problem is that the first question contains a false premise, possibly too subtle for the witness to have picked up. The premise is that the witness placed the date of attempts by the defendant to introduce alternatives as being in the early 1980s. He did no such thing. He stated that it was from the early 1980s that he became aware of some attempts. Paragraph 13 of the affidavit was not, in this way, demonstrated to be wrong.

330 By the time Mr Parker left the blast furnace department in about 1990, Nos 1 and 2 blast furnaces had been decommissioned. Before that, all the hose lagging on blast furnaces Nos 3 and 4 had been replaced by Refrasil (T439.22). The process of replacement took years (T441.05).

331 Mr Parker did not recall any air testing being done when he was there (T442.39). He has had experience with air testing and knows what it involves. If people were doing it, "You would know" (T443.09).

332 Mr Parker was asked about temperatures. He gave a number of temperatures, but it would seem that where the workers worked, temperatures could range from about 30-50 degrees (T443).

333 In paragraph 23 of his affidavit, Mr Parker stated he never saw any booklet issued by the defendant about asbestos. The true position is that he could not recall (T469.24). He did not recall receiving any booklets about asbestos up until the end of 1981 (T444.17). He did not recall receiving a brochure from the Chairman of the Industrial Hygiene Committee (T467.34). This is the brochure described in paragraph 489 hereof, Exhibit 14, Tab 9. He could not definitely say he did not receive it (T468.23). The brochure is said by the defendant to have had two coloured booklets on asbestos attached to it. Mr Parker did not recall receiving the green booklet (Exhibit DX 14, Tab 9) and the equipment mentioned in it was not available and nor were any of the policies in it enforced (T472-473).

334 In re-examination, Mr Parker was shown a document, Exhibit PX 39, Tab 189. At the same time, he had before him the document that became Exhibit DX 14, Tab 9. They are not identical, but there are similarities. It was noted that Exhibit PX 39 Tab 189 was not sent out to wages employees as intended (T472.15). Mr Parker did not recall receiving PX 39 Tab 189. He did not recall seeing this document and, if he had, expects that he would have recalled it (T472.40). He was then taken to DX 14 Tab 9 (T472.40) and specifically to the content from the third page of the tab, page 55 of the Exhibit. The content included colour pictures and text relating to a man using vacuum cleaners, a man pushing a broom, dust extraction ducts, respirators, containers, compressed air, personal sampler (T472.42 - 473.35). These are matters I would expect Mr Parker would probably recall if he had received them.

335 The presence of all these things in or associated with the document aids me in coming to the view that if Mr Parker had received the document, he would almost certainly have recalled some or all of those items and recalled receiving the document. He did not recall it. I accept that it is unlikely he had seen Exhibit DX 14, Tab 9 before being shown it in the witness box.

336 Vacuum cleaners were introduced in the late 1980s. Mr Parker is able to date this from his time as general foreman when he was involved in getting them (T436.30).

337 Before the mid 1980s, the defendant had not warned Mr Parker of the dangers to health from asbestos. He was not directed to take any safety precautions in respect of it. If he had been told to wear a mask, he would have. If he had been told to direct his men to wear a mask, he would have despite the uncomfortable nature of doing so (Exhibit PX 26 [23]). If he was aware that small inhaled doses of asbestos could kill, he would have stopped work or taken precautions (T474.46).

338 Mr Parker said operators took their own clothes home and washed them at home (T436.16).

J. Defendant's witnesses

(a) Ernest Bryon

339 Mr Bryon joined the BHP group of companies in January 1964 as a trainee chemist. He started at the Port Kembla steelworks. He was there until January 1967. He joined the army, had active service in Vietnam and returned to Australia in March 1969. He returned to Port Kembla. In September 1974, he was appointed superintendent of training and development for Australian Iron & Steel Pty Limited at Port Kembla. In 1976, he became superintendent of Safety and Development. In 1977, he was promoted to superintendent of Safety and Development. His responsibility here was across the company as a whole. He was based in Melbourne. In 1978, he was appointed personnel manager at Newcastle. He reported to the general manager, Mr Harden.

340 Mr Bryon gave evidence about a number of documents. I shall not develop all of that evidence here as I deal with documents in a later section of these reasons.

341 Mr Bryon gave some detailed evidence about the structure and personnel at Newcastle. I need not detail that at this stage. It is contained in Exhibit DX 16. It is sufficient to note at the moment that the Blast Furnace superintendent and other blast furnace officers reported to the manager of the coke sinter and iron making sections. As manager of personnel, Mr Bryon had a number of superintendents report to him. One of those superintendents was the superintendent of employment, safety and health services. That was Mr Stuart. Mr Anderson, safety superintendent, reported to him.

342 There was a position description for Mr Stuart's position, Exhibit DX 16, Tab 5. Parts of that document are set out hereunder.

DUTIES

...

2. Directs and controls and undertakes regular appraisals of work areas, equipment, safeguards and methods of working in order to ensure that Company safety standards are continually observed;

ensures that corrective action is taken as necessary;

reports and recommends on all incidents together with actual or potential problems.

...

5. Directs a continuing appraisal of safety equipment developments and innovations through literature, surveys and liaison with manufacturers and other industries;

arranges trials of promising items and co-ordinates development of designs for specific Works applications;

reports and recommends accordingly.

...

11. Keeps abreast of developments in the industrial safety field;

recommends investigations and trials of promising innovations;

co-ordinates as directed the implementation of approved changes in and additions to the Works safety programme.

12. Acts in an advisory capacity to all B.H.P. centres on accident prevention policies and specific problems or requirements from time to time.

...

RELATIONSHIPS

...

2. Maintains relationships with Safety Officers throughout the B.H.P. Group, steel industry and in other industries.

3. Maintains appropriate relationships with officials of government, public and private organisations concerned with safety and with manufacturers and vendors of safety equipment.

343 It is apparent that the safety department was responsible for keeping abreast on industrial safety issues. It does not need a document from the defendant to establish this. It is common sense and it should be the responsibility of the safety department to keep abreast on industrial safety issues. The defendant's documents cannot define or restrict, for the purposes of the law, what the responsibility of the defendant was to its employees. The documents may have operational effect, but they cannot bind the courts in terms of the defendant's duty to its employees.

344 There was a hygiene committee on the plant at Newcastle and Mr Bryon was its chairman. Asbestos was under consideration by the hygiene committee. Mr Bryon did not know when that began, but it was before a memorandum of 27 June 1979 from Mr Hayes to Mr Harden (Exhibit 3, 325). That memorandum concerned an issue that had arisen with the AMWSU concerning asbestos.

345 There was also another committee, a technical committee, that was involved with the asbestos issue. It had specialists from engineering and laboratories.

346 Safety was exclusively under the aegis of Mr Bryon's department (T897.50).

347 On 27 June 1979, Mr Hayes sent the memorandum earlier referred to in paragraph 344 to Mr Harden with copies to others including Mr Bryon. It followed a desire by the AMWSU to display a warning poster about asbestos on the notice board of the machine shop. The defendant refused permission, but later reconsidered. The AMWSU requested a conference with the defendant. Mr Bryon wished to sit in on that conference to hear what the union delegates had to say.

348 On 12 July 1979, the superintendent of the industrial relations department sent a memorandum to Mr Harden with a copy to others, including Mr Bryon (Exhibit DX 3, 299). It referred to "Conference with F.I.A.", a different union to the AMWSU. The defendant involved the FIA as the asbestos issue had become "a fairly major issue" (T886.50).

349 On 25 July 1979, Mr Harden sent a memorandum to "All Managers and Superintendents" (Exhibit DX 3, 322). It has been referred to earlier. I set out the body of it in full:

USE OF ASBESTOS

I wish to make it clear that our objective on this Plant is to replace asbestos cloth, tape, cord and gloves with substitute materials and we should proceed as quickly as practicable to use these substitute materials.

Issue of asbestos cloth, tape, cord and gloves is to be strictly policed and issue is only to be made when use of the asbestos is considered unavoidable.

All departments are to use every endeavour to implement use of substitute materials as soon as practicable.

(Red underline appears on the exhibit, but there is no evidence as to when it was placed there.)

An important aspect of that document for the purposes of this case was that the issue of those materials was to be issued only when the use of asbestos was considered unavoidable. Another aspect to note is that the memorandum does not contain a general directive. It is limited to specified items. The plaintiff alleges exposure to asbestos from other items as well.

350 Mr Bryon had input into the policy set out in that memorandum. Others did too. There was no timetable set for its implementation (T907.12) and nor was it given any priority (T909.35). The timing of the implementation was left to the operations people on the ground (T909.11-.13).

351 That memorandum gave rise to some responsibility for Mr Anderson. If there was not a suitable replacement for those items, his approval had to be sought to continue to use asbestos. If the approval was not given and the department used asbestos, Mr Anderson was required to report this to Mr Bryon. Mr Bryon did not receive any such report. There could be any number of explanations for that. It may well be that in certain situations, Mr Anderson could have given a blanket type approval (T908.29-.38). Mr Anderson was required to report to Mr Bryon only if his approval had been refused and asbestos continued to be used. That situation was unlikely to arise in the blast furnace as it had a number of situations where there was no suitable replacement for asbestos.

352 Following that memorandum, the hygiene committee was looking to produce a booklet for all employees. The technical committee continued to seek out and test new materials.

353 On 7 August 1979, Mr Bryon sent a memorandum to Mr Harden with copies to others (Exhibit DX 3, 76 and also 302). It stated that a memorandum was to go out to "all concerned" on substitute materials. Mr Bryon explained that that phrase encompassed the whole of the workforce. The memorandum sets out some steps taken, being taken and to be taken. Mr Byron's information for this memorandum came from Mr Stuart or Mr Anderson (T890.30). Its contents and my comments on it are more fully dealt with in paragraph 451.

354 Mr Bryon explained that the method of distributing the memorandum to all concerned might be:

• copies would be given to a department and the department would handle the distribution (T890.13);

• copies would be placed on the noticeboard.

355 If the document intended for all concerned did not get to all employees, that would be a failure in the system (T911.48).

356 On 15 August 1979, Mr Bryon sent a memorandum as chairman of the industrial hygiene committee to the committee (Exhibit DX 3, 304). It attached a final draft of the asbestos booklet that was to go to all concerned (Exhibit DX 3, 305). More detail about these documents is set out at paragraphs 453-4.

357 On 4 October 1979, Mr Bryon, as chairman of the industrial hygiene committee sent a memorandum to a number of the defendant's personnel (Exhibit DX 3, 65). They were members of that committee (T891.02). This attached a final draft of the information booklet for all personnel. Mr Bryon did not recall what happened after this (T891.28). More detail about this document is set out in paragraph 468.

358 Because of the large workforce with varying standards of education and various understandings of English, Mr Bryon thought pictorial representations in a booklet would be a preferred form of communication (T892).

359 Mr Bryon was then taken to Exhibit DX 3, 177-182 and 161-196. These are coloured booklets, one green and one yellow, about asbestos. The form, with its pictorial representations, impressed Mr Bryon in relation to the green document (Exhibit DX 3, 177). He did not see the yellow one (Exhibit DX 3, 161).

360 On 15 November 1979, Mr Bryon, as chairman of the industrial hygiene committee prepared a memorandum for "All Concerned" (Exhibit DX 14, Tab 9). Mr Bryon signed the document. He does not recall the attachment (T895.10). When the document was signed, it went to Mr Stuart. Thereafter Mr Bryon could only speak about the process and not what actually happened. It was Mr Stuart's task to see that the document was distributed (T895.48). There was a printing department that had the capacity to print over 11,000 copies to cover all employees (T896.05). More detail in relation to this is set out in paragraph 489.

361 There was a laundry at the steelworks and when it was decided to launder the clothes of those working with asbestos, they were bagged up and sent to the laundry (T900.18). Mr Bryon thought that decision was made in 1979. He had no personal knowledge of whether the laundry was used for this purpose (T901.26).

362 The defendant employed doctors at the steelworks (T912.03). It also employed them elsewhere. They had access to a range of medical and scientific information.

363 On about 17 August 1979, it is likely that Mr Bryon received a copy of the Electricity Commission's general standing instruction on the handling of asbestos materials (Exhibit DX 3, 266, 297). He agreed it set out prudent precautions including use of a properly fitted, approved cartridge type respirator (T916.05).

364 In 1978, Mr Bryon knew that the inhalation of asbestos could cause cancer and mesothelioma (T913.43), that there was no safe level of exposure for these diseases (T914.05), that mesothelioma could be caused by short or intermittent exposure. He knew there were measures available to eliminate or minimise exposure including respiratory equipment, ducting, vacuuming, cleaning up (T914). He knew there were contra-indications such as dry sweeping and use of compressed air. He knew that workers should be educated fully.

365 Mr Bryon agreed that if, from the end of 1979 to 1981, workers were working in circumstances where they were exposed to asbestos in the blast furnace department from a number of sources and were doing it without knowledge of the potential lethal consequences and without precautions to eliminate the risk, that would be contrary to safe practice (T921.05).

(b) Michael Herrett

366 Mr Herrett started with the defendant at its Newcastle steelworks as a personnel trainee on 28 November 1977 and was such until 1983. For some of that time, he was assigned to the industrial relations department. He reported to Mr Bryon.

367 Mr Herrett's role made him familiar with the filing system in the industrial relations department.

368 Exhibit DX 3 is a case file of the department. The file deals with issues concerning the AMWSU ban. The file, DX 3, contains an information booklet that was intended to go to all employees in 1979. On 30 November 1983, the safety department advised that this had not been done and Mr Herrett made a note to that effect on 2 December 1983. Exhibit DX 3 at p66 contains a clean copy of that document. Exhibit DX 3 at page 55 contains a copy with Mr Herrett's notation on it.

369 By 2 January 1980, the issue involving the AMWSU had been dealt with (T926.42).

370 On being shown a note written by him, Mr Herrett agreed that Mr Grant, safety officer, stated to him that a product containing asbestos, maybe Klingerite, was being used in the sheltered workshop at the end of 1983 (T927.20).

(c) Steven Patten

371 Mr Patten started with the defendant in November 1970 as an assistant industrial officer. In December 1970, he was an industrial officer in the industrial relations department - part of the personnel department. He left in January 1980.

372 Mr Patten gave some evidence about the make up of the file, Exhibit DX 3. The documents in the file are focussed on the dispute with the AMWSU (T932.06). Mr Patten was involved on behalf of the defendant in the dispute with the AMWSU. He largely had the carriage of it with the assistance of others.

373 One document Mr Patten was taken to was entitled "GUIDELINES FOR HANDLING ASBESTOS MATERIALS", Exhibit DX 3, 274. It is referred to at paragraph 175 and also 483 to 487. I set out some of its content:

To deal safely with asbestos products already in service on the plant, the following procedures shall be observed:-

1. Major Demolition Work

...

2. Minor Demolition Work

Minor jobs include removing old jointing materials and valve and gland packings, as well as small quantities of asbestos rope tape, and millboard insulation. It is intended that such work remain under the control of the departmental mechanics who will be responsible to have the following procedures observed:-

a. Asbestos material being removed is to be kept damp during the progress of the job.

b. Material being removed is to be placed in sealed plastic bags and marked "Asbestos Contaminated".

c. The area must be kept clean during the job by wetting down and sweeping up and/or vacuum cleaning (as appropriate). Compressed air must not be used to blow dust and debris away, or to clean down clothing. All collected dust and dirt is to be placed in plastic bags as in b.

d. In the event of clothing becoming contaminated with asbestos, the departmental mechanic will arrange to have it laundered at the Company's expense and to issue additional clothing while this is being done.

e. Personnel handling asbestos must be issued with suitable respirators. (Protector mask using RC74 cartridge or 3M disposable respirator).

f. ...

g. ...

3. Continued Use of Asbestos

...

Scrap jointing should be placed in sealed plastic bags for disposal, marked "Asbestos Contaminated".

374 The last diary note entry in the file was recorded by Mr Patten on 2 January 1980 (Exhibit DX 3, 399). It reads,

Northing further has been heard from the A.M.W.S.U. on this matter since the last addition. It is expected that the eventual elimination of asbestos from the plant is a long term exercise and that the matter could subside, if not actively pursued by the union.

375 The file contains a type of audit of asbestos (Exhibit DX 3, 333). It is undated. It is, at best, as the lead tab would suggest, nothing more than "ROUGH NOTES". It was prepared by Mr Patten as a result of some casual enquiries of a number of departments. The blast furnace department seems not to have been contacted.

376 The file contains a diary note of Mr Patten relating to a conference on 10 July 1979 with representatives of the Union and the defendant (Exhibit DX 3, 384). At one point, the note records Mr Patten indicated that the defendant was testing substitutes for asbestos gloves in the Rotary Kiln and the Refractories and Mr Collingridge, a union representative, responded that that did not remove the danger that existed at the moment (Exhibit DX 3, 385).

377 Mr Patten agreed that in 1979, asbestos cord, blankets and tape were being used in the steelworks (T934.16). He stated there was then no suitable replacement for gloves (T933.50-T934.02).

378 There was another meeting of representatives of the Union and the defendant on 25 October 1979. the issue of aprons arose with Mr Patten observing that fibreglass aprons had caused problems. He agreed that clothing containing asbestos was still being used by the workers (T935.02).

379 The blast furnace was specifically mentioned at the meeting of 25 October 1979. The following was recorded:

Mr. McNiven then explained in some detail the work which had gone on in trying to find a suitable material for the Blast Furnace job, stressing that no one material appeared suitable where abrasive conditions existed along with high pressure and temperature.

(Exhibit DX 3, Vol 2, p396)

380 This was in the context of Mr Sherrin, a union representative asking whether the defendant had looked at all the substitutes outlined in the IMF bulletin with a view to finding something to use in the three jobs listed on the paper given to them earlier in the week. The absence of these materials makes it difficult to put Mr McNiven's statement in a clear context. It does, however, indicate the continued use of asbestos in the blast furnace department in October 1979 in situations of high pressure and temperature and abrasive conditions.

(d) David Warren

381 Mr Warren started with the defendant in February 1956 at the Newcastle steelworks as an apprentice fitter and turner. He moved into the chemical laboratories and was there until about 1970. In the second half of 1971, he went to the blast furnace department. He was a trainee foreman. In June 1972, he became furnace foreman. He became a practice assistant in May 1974 and then assistant superintendent blast furnace services. He held that position until he went to Whyalla in March 1980.

382 Mr Warren gave some detailed evidence about the structure of the organisation and personnel in the organisation at the Newcastle steelworks. Mr Warren described his role as assistant superintendent blast furnace services in simple terms as covering all things that did not relate to the furnace proper and the cast house floor. He offered specific details about his role (T938).

383 There was an assistant superintendent of blast furnace operations. He was responsible "for the operations of the blast furnaces proper" (T938.41). The cast house crew consisted of keeper, helper, labourer and slagger. The labourer was the lowest in seniority (T942-3). The shift foreman was responsible for allocating the workers between the furnaces (T943.39). The labourer tended to move around between furnaces when he first started (T944.28). This appeared to be especially so when people were off.

384 When Mr Warren was a furnace foreman, he worked on all four furnaces. As practice assistant, he spent about half his time around the furnaces (T944.16). It was a bit less when he was assistant superintendent for services. Cross-examination sought to establish that from the time he became the practice assistant, Mr Warren's time on the furnaces was limited. He essentially adhered to his evidence (T963-967, 968). Mr Warren was asked whether Mr Gillespie was spending more time than he was around the blast furnaces in 1978 and 1980. He did not agree and in aid of his recall, he called in the re-line of No. 3 blast furnace and the fact it remained idle then until he left in March 1980 (T967.35). The fact is, after its re-line, No. 3 was operating from 1 March 1977 until Mr Warren left three years later (Exhibit PX 21, Annexure B).

385 Blast furnaces Nos 1 and 2 had cooling blocks. They were replaced from time to time. This was because of age or failure (T945.06). A failure occurred probably "every month or so between the two furnaces" (T945.30). There was a shift in that later to "I can't remember whether it was exactly each month or each six months or each quarter, but I know it was not every day and I know it was more than once a year" (T973.14-.15). Then he agreed it was a variable thing. It could be several occurrences a month or only one (T973.21). Planned replacement was not a "frequent" occurrence (T945.34). He had some recall that "we were starting to get into this aging issue of cooling blocks on No. 1. This was at the end of 1979 or early 1980" (T973.44). Three or four people would be present changing a cooling block (T946.22, T948.28). Riggers would help the crew remove a cooling block (T946.43). Riggers were present as they delivered the new cooling block to the site and put it in position with lifting gear.

386 It later emerged that the riggers did not get the old block out (T948.06). The work was done by a keeper or helper (T948.48), not a labourer (T949.09). The labourer might do some fetching and carrying. Not all members of the cast house crew had to do or know how to do all the jobs done by the crew (T968.32). He later agreed that a labourer could assist on any of the jobs that were performed by the cast house crew (T969.29).

387 In placing the new cooling block in, asbestos rope soaked in air set cement was rammed in around the outside (T951.24). It was wrapped around the blocks. The new rope would need to be handled and cut and that would give rise to dust (T999.17).

388 In changing cooling blocks, Mr Warren does not recall compressed air being used and he said it would be counter-intuitive to do so (T949.24).

389 Debris in the form of solids was placed into buckets or drums or on corrugated iron that had been placed on the floor (T949.35-.46).

390 Mr Warren was asked about hoses (T952.41). He said that there were hoses for the cooling blocks, tuyeres, tuyere coolers, "one king (?)" intermediate and cinder notch cooler, though the last of these may have been piped. Other than for the tuyeres, hoses were used for pneumatic and hydraulic purposes (T953.14).

391 Hoses for the taphole drill, the hydraulic and pneumatic hoses had asbestos insulation when Mr Warren started on the blast furnace (T953.25). He does not recall any change in the appearance of the sheathing on the taphole drill in the time he was there (T1012.16). Nor did he remember any discussion about replacing it (T1012.18). When heat was applied to sheathing on various hoses including on the taphole drill, it would be friable, brittle and crumble (T983.01-.16).

392 Screwed hoses were changed by fitters. They normally had a trades assistant with them (T953.46).

393 With the taphole drill, the operator would be close to the hoses, "touching it", when changing the drill (T954.04). This was several times a shift. Dust would be liberated in the breathing zone (T999.23).

394 Speaking of hoses going to the tuyeres, he said the lagging would deteriorate. Sometimes the hose itself looked fragile. This could be seen because the sheathing at this point had disappeared. It had fallen to the ground. The remaining sheathing varied from robust to friable (T997.12-.34).

395 At first, Mr Warren had difficulty acknowledging that the fallen sheathing could be trodden on by workers (T998.02). Then he acknowledged it was liable to be trodden on, at least in the changing of the hose and perhaps at other times (T998.26).

396 The electric cables on the mud gun in blast furnaces Nos 1 and 2 were sheathed with asbestos when Mr Warren started in the blast furnace in 1971. Mr Warren denied that the operators worked in close proximity to the sheathed hoses of the mud gun or that they rubbed up against them (T1000.06). He explained the structure of the mud gun.

397 There were hoses on tuyeres at No. 4 blast furnace. They were coated in an asbestos sock (T954.16). They were changed, but only very "infrequently" (T956.31), not "frequently" (T970.23). They did not do "frequent" clean ups (T970.31).

398 There were three types of hand protection - leather gloves that came up just past the wrist, an asbestos mitt cum gauntlet that came a long way up the arm, and a leather glove more correctly termed a gauntlet that came a long way up the arm (T954.20).

399 Mr Warren explained the purpose of these gloves. The asbestos mitt cum gauntlet was mainly used for rattling out the blow pipes (T954.40). Mr Warren never saw workers clapping their hands together with asbestos gloves (T955.11). He did see them wiping their foreheads with the edge of the glove (T1001.06). As the asbestos gauntlet deteriorated, it would fragment and create dust. The gloves came from the main store for the blast furnace or the shift foreman (T955.50). Every person had his own pair of standard issue gloves, but not gauntlets (T956.21). The asbestos gauntlets were kept by the storeman in his desk in the control room (T956.24).

400 There were steam or oil pipes in the blast furnace and they were insulated (T956.39). The insulation was changed. The labourer would only be involved in a clean up if it was not done by the trades assistant (T957).

401 In 1979, there were daily safety meetings in the office area where Mr Warren worked (T957.48). The shifts had safety meetings (T958.04). There was a night order book for recording safety issues (T958.06). There were management meetings attended by senior people in the blast furnace and from the works safety department and they were held probably monthly (T958.17). There were shift foremen's safety meetings held probably monthly. There were posters about safety. They were displayed in the crib room (T958.40). There were job safety analyses (JSA) and job instruction guides (JIG) (T958.46). As to the JIG, the furnace foreman would sit down with the employee and work through it and make a record of the employees having been instructed (T959.38).

402 Brochures containing warnings about asbestos would need to be distributed at furnace foreman safety meetings (T1001.26). The general foreman, shift foreman and furnace foreman ought to know of that practice. The general foreman would participate in a JSA (T1001.39). He would be involved in JIGs and be aware of them (T1001.44). The furnace foreman also ought to be aware of JIGs. JIGs would inevitably come to the attention of the shift foreman, furnace foreman and the day foreman/general foreman (T1001.48). The person responsible for explaining the context of the JIGs to the workers was the furnace foreman (T1002.16). The shift foreman and general foreman should be aware of their contents.

403 Mr Warren did not recall any written materials about safety other than posters (T958.38).

404 Mr Warren recalls the defendant taking action concerning the use of asbestos. This was probably "a year or something" before he left (T960.17). He recalled the matter of brake shoes being raised at the morning meetings. He recalled Mr Threadgate as the person training the workforce for removal of asbestos if it was a major job. He recalled a large cocoon when work was being done on lagging on the service mains going into the power and services (T960.18). He recalled an attempt to replace a large seal on No. 2 furnace top (T960.39). He recalled a Fiberfrax blanket being used at No. 4 blast furnace (T961.02). He recalled Kaowool being of not much help (T961.11). Kaowool was in the form of something like insulation batts (T1009.23). Asked if it was in any other form, he referred to board and blankets. He could not recall rope form (T1009.32).

405 The issue of getting rid of asbestos in the steelworks was no different in its priority to any other health and safety issue (T1008.08).

406 Exhibit DX 3, 65 is a memorandum dated 4 October 1979 from Mr Bryon as chairman of the industrial hygiene committee to a number of people including Mr Warren. It attached a draft information booklet on asbestos. Mr Warren had no recollection of receiving this material.

407 Mr Warren said that in testing for gas, he often wore breathing apparatus like a fireman (T981.37). It was difficult in instances with shower cooling of the shell (T981.46). In re-examination, this was revealed as happening at Port Kembla (T1009.50). The difficulties he had there "we didn't have that issue in my time at Newcastle" (T1010.19).

408 Tuyere coolers, cinder notch coolers and cinder notch intermediaries were solid piped. The tuyeres hoses, taphole drill were sheathed in asbestos cloth when Mr Warren started in the blast furnace (T983.02). If the fittings were camlock fittings, it was necessary to handle the sheathing in changing (T983.07). This applied to the mud gun, not the tuyeres hoses (T983.25).

409 It was necessary for gaskets to be replaced from time to time around the furnace floor on the fuel, oil or steam pipes. That later became only a few times a year (T991.34). Mr Warren was not sure if they were asbestos gaskets (T990.25). His recollection was that the big gasket at No. 4 blast furnace was asbestos (T990.43). There were 20 gaskets around No. 4 blast furnace (T992.25), but before Mr Warren left Newcastle, Fiberfrax was being used (T996.28).

410 There were no gaskets on No. 1 blast furnace between the blow pipes and the bustle main (T991.49). The same applied on the boot stop of the tuyeres (T992.05). The same applied to No. 2 blast furnace (T992.15).

411 Millboard was a common heat protector on the cast house floor (T993.50). It would be carried by labourers and would have given off dust (T994.04).

412 Blankets were used as a barrier between a heat source and people working (T994.29). Labourers would have handled them and they gave off dust particularly as they got older (T994.33).

413 If there was a bad blow around the bosh area Thermonite, not rope, was used to pack it (T994.24).

414 Mr Warren acknowledged there had been exposure to asbestos. He said that up until the time he left the Newcastle steelworks, he could not categorically say that all use of asbestos where operators could have been exposed had been removed (T984.49).

(e) Lindsay Threadgate

415 Mr Threadgate joined the defendant in 1962 at its Newcastle steelworks. He started as a trainee and worked in several engineering shops. Before 1978, he was production superintendent in the service shops. That was in the engineering department. From 1979 until 1987, he was power superintendent.

416 Mr Threadgate gave an amount of evidence about what the power department did which I found at the time, and still find, of no help in the resolution of the issues. He also spoke of the management's instructions for the replacement of asbestos. I do not find this assists me with what happened in the blast furnace department. The same goes for his evidence about the use of insulation materials in the power department and its processes for obtaining product from the store.

417 In late 1979, Mr Threadgate was given responsibility for establishing a crew to remove large quantities of asbestos (T1019.42). It turned out they never undertook to remove asbestos entirely. It was sufficient to carry out maintenance work and make it safe where it was deteriorated or fraying. Asbestos remained there until the plant closed (T1021.27). The work of the crew was passed over to contractors in 1982/3. They did not replace asbestos (T1021.44). Mr Threadgate was provided with portable change facilities that included showers, protective clothing, power filtered face mask helmets, vacuum cleaner and specially marked disposal bags. He did not know if the crew did jobs in the blast furnace (T1020.13).

418 Mr Threadgate was in the engineering shops before 1978 and testing for substitutes was not being done then. He thought that started in 1979 and that the catalyst in the search for asbestos-free materials was the industrial dispute over the use of asbestos materials (T1025.26). That ties in with earlier evidence where he stated he started as power superintendent in April 1978. He then spoke of management instructions for asbestos materials to be replaced. Asked whether that was "weeks" or "months" later he said "A year or so" (T1017.21). That dovetails in fairly neatly with the time of the general manager's directive of 25 July 1979, Exhibit DX 3, 322. It is also consistent with Mr Gillespie's timing of an edict.

419 In large measure, Mr Threadgate's evidence of replacement materials being used for asbestos is not helpful to a resolution of the issues because of its general nature and its lack of specificity to the blast furnace department.

(f) Peter Clarke

420 Mr Clarke qualified in England as a chemist. He came to Australia in 1967. He started with the defendant in August 1967 and worked with it until 1998. He worked at its Newcastle steelworks. He worked in the quality control laboratory. It later became known as the technical services laboratory. He reported to the chief chemist, Des Ahearn.

421 Mr Clarke started work analysing bricks. This was a health-related function. This was work within his department. Later, he did work for other departments. He became designated as plant environment chemist.

422 Asbestos was a substance Mr Clarke started to look at. The purpose was to identify it from other substances (T1032.01). He was first asked to do this in 1975 or 1976 (T1034.40). He was instructed to do this by Mr Ahearn because Mr Ahearn told him it was becoming something of a health issue (T1035.30). The procedure involved him receiving a request from a superintendent or an engineer to do the testing (T1035.50). It occurred probably about once per month (T1036.11). Mostly the requests came from the power department. He felt sure there were requests from other departments, but he could not say which (T1036.24). Later he was asked to look at materials the defendant wanted to use as replacements (T1037.01). That was about 1979 or 1980 (T1038.33).

423 Mr Clarke conducted tests for the presence of asbestos in the atmosphere (T1038.49). He started testing for substances generally in the air in about 1974. He started testing for asbestos in about 1978 (T1039.34). For asbestos testing, a pump was attached to the person being tested and a sample attached to the lapel. The person being tested was one of the workers (T1039.45). For an atmospheric test for asbestos, Mr Clarke would receive a request from the department wanting the test (T1040.06). The request was from the superintendent or engineer. Mr Clarke or the tester would go to the department and meet the superintendent or engineer who would then take him to where the problem was (T1047.25). The test would take between about one hour and about four hours depending on the quality of the air. The cleaner the air, the longer was the test (T1040.15). Sometimes further tests were required.

K. Documents

424 Numerous documents were admitted in evidence in this case. I indicated to the parties, in light of the volume of material, that they should not expect I would deliberate on material unless my attention was specifically drawn to it.

425 The defendant submitted the documents reveal an active programme for the replacement of asbestos at the steelworks before the plaintiff commenced there. This section of the judgment will be concerned mainly, but not exclusively, with those documents. At the outset, I would observe that the documents do support that the defendant was in the process of replacing asbestos products at the steelworks before the plaintiff commenced. Mr Gillies supports that the defendant was using replacement products at least from the 1960s (Exhibit DX 6). The documents do not, however, support a programme of any great activity or vigour before about the middle of 1979. Much less do they do so in relation to the blast furnace department. A few things demonstrate that.

• The first document is dated 1 September 1975. It is a document about the use of asbestos products.

• There is then a gap of almost three years until the next relevant document dated 15 August 1978. That is more of a historical document than a contemporaneous record, though it does contain a record of some contemporaneous happenings.

• There is then another gap until the next relevant document of 21 March 1979. Again, that is more of a historical document than a contemporaneous record.

• A number of documents then starts to come into being from 5 July 1979.

426 A number of things may be said about this.

• There was dispute between the parties as to whether the defendant became active in its replacement programme only after union activity in 1979. There is support for that being the case. Mr Threadgate suggested as much (T1025.26). I do not find it useful to engage in that issue.

• There are almost certainly documents missing in the gaps I have mentioned. The lapse of time makes that almost inevitable. I draw no adverse inference against either party from the absence of documents. I determine this case on the documents and other evidence that I do have.

427 In referring to the documents in this section of the judgment, it is useful if I make comments about some of them.

428 On 1 September 1975, Mr Anderson, safety superintendent, issued a document called "Safety - Use of Asbestos" (Exhibit DX 14, Tab 1). It includes:

1. Asbestos Cloth

The yarn is factory treated with a plastic coating and therefore it is doubtful there is any hazard associated with its use in this form. The plastic coating breaks down when the cloth is used in high temperature conditions and in some instances the cloth then breaks up easily into fine dust particles.

...

3. Asbestos Cord, Rope & Wool

A free asbestos used for caulking, pipe insulation and packing.

429 It then describes uses and includes:

Sheltered Workshop:

This department only use plastic coated yarn cloth to make gloves, spats, aprons and cover water cooling hoses. No problem with asbestos dust.

...

Blast Furnace:

Asbestos lagging of steam pipes a pugged material. Asbestos seals for Blast Furnace stove inspection doors.

Asbestos sheets used to shield employees from heat sources eg. against radiated heat. Sheets are also used on ho(t) walkways, floor plates etc. during maintenance. Hot blast valve (?) leaks are plugged with asbestos lagging.

...

General Store:

The following asbestos materials are stored at the General Store and are handled by employees of this Department.

Bulk asbestos in plastic bags General Store

Fire blankets General Store

Bellite jointing General Store

Bellite sheets General Store

Yarns General Store

Graphite and asbestos General Store

Gloves General Store

Mitts General Store

Mill board sheets General Store

Asbestos covered Wire General Store

Fibretex General Store

Rolls of asbestos cloth No. 2 Bulk Store

Asbestolite sheets No. 1 Bulk Store

Loose asbestos in plastic bags Lysaghts No. 3 Bulk Store

Asbestos wool Lysaghts No. 3 Bulk Store

...

Would you please advise me should you consider a medical need for action is required to prevent contamination of breathing air. The two areas I consider may need some attention are the Toolroom and Electrical Shop machining of asbestos based materials and the Steel Foundry activity of roll neck cooling. I would appreciate your comments.

430 The defendant submitted that this document shows that the defendant was addressing health risks of asbestos and seeking advice of a medical nature. That is so. The document also shows the following:

• there was asbestos lagging of steam pipes in the blast furnace. This fact demonstrates the falsity of information in other documents of the defendant. For a start, there is a document of 17 September 1979, later referred to in paragraph 458, which states that for lagging "only asbestos-free products have been used for the past 30 years for most applications". Mr Parker acknowledged that was probably something of an exaggeration. More significantly, at a meeting of some seriousness and significance with union delegates on 10 July 1979, "Mr McNiven assured the delegates that the company was phasing out the use of asbestos on the plant, and said that asbestos lagging had not been used on the plant for the past 15 years" (my emphasis), Exhibit DX 3, 386;

• there were asbestos seals for the blast furnace stove inspection doors;

• asbestos sheets were used in the blast furnace to shield employees from heat sources;

• asbestos sheets were used in the blast furnace on the walkways;

• there were asbestos materials in the general store and bulk stores and they took different forms.

431 There is no document showing what brought this document into being. There is no document showing any response to it or to the request in the final paragraph.

432 There is then a gap until publication of "PERSONAL PROTECTIVE CLOTHING AND EQUIPMENT SPECIFICATIONS" on 23 September 1976 (Exhibit DX 14, Tab 2). At clauses 6.9 and 6.11 of that document are specifications for "MITTS - ASBESTOS GAUNTLET" and "FULL LENGTH LEATHER GAUNTLET - ASBESTOS BACKED". Not much can be drawn from this document.

433 The next document touching on activity undertaken by the defendant with respect to replacement of asbestos is a document entitled "INFORMATION PAPER TO EXECUTIVE ENGINEERS" (Exhibit DX 3, 149). It was issued by Mr Anderson and is dated 15 August 1978. The tone of this document raises questions about the objectivity of its author. The opening paragraph is polemic, indeed wrong. It is:

There is a kind of asbestos phobia developing both in industry and the community at large. This phobia is fostered by the spreading of misleading information often unsupported by the slightest shred of scientific evidence.

To make matters worse, it added at page 2, "It is doubtful that there is sufficient proof to show that asbestos is dangerous". Then, in a somewhat contradictory approach at page 4, is added,

No one has disputed that exposure to asbestos of high enough intensity and long enough duration is casually (sic) related to asbestosis and cancers. The dispute has always been centered (sic) around determining a specific level below which exposure is safe.

434 The document provides information about asbestos and some of its consequential illnesses. It notes that asbestos was used and stored extensively throughout the steelworks in the form of cloth, millboard, cord rope and wool. The document refers to the 1977 New South Wales Department of Health and Industry Regulations under the Factories, Shops and Industries Act. It also refers to the threshold limit value set by the Regulations. The document includes the following paragraph:

No matter what the engineering provisions are to control the release of asbestos to breathing air of workers further controls are required for clean up. No cleaning is allowed unless it is done by vacuum. The waste must be contained by means of a bag, bin or other receptacle for collecting dust, and that is part of, or installed in, connection with exhaust equipment.

(Exhibit DX 3, 152)

435 The document goes on to describe under the heading "Present Situation" what had been done:

Research work has been undertaken by our Works Research Department as early as 1973. Many of those materials which came under our attention when looking for a better material to withstand molten metal splash protection for employees of B.O.S., Blast furnace and Foundries Departments were also gauged for an alternative to asbestos. More recently materials such as KAO-WOOL, BESTOBELL MARGLASS WOVEN GLASS FABRIC, SCANDURA GLASS CLOTH, SG1 & SG2, BESTOBELL GC9 FIBREGLASS CLOTH, REFRASIL ... BESTOSIL, BESTOMID, GARLOCK THERMOSIL FIBREGLASS CLOTH, Asbestos free Mill Board and two asbestos free cloth samples from ASAHI Asbestos Co. Ltd., Japan are being tested.

Asbestos was used as a covering to the brick lining of the Steel Foundry annealing oven hoods, now "KAO-WOOL" a non asbestos product is in use. This foundry also used an asbestos blanket for Roll Neck cooling and today are using NU-PLASTIC (STICK-TITE) another asbestos free product. Experiments are also being carried out to find an alternative to asbestos cloth covering for water cooling hoses at the B.O.S. hoods and at present REFRASIL CLOTH is being trialed (sic). At the Blast furnace a trial of fibre glass cloth to hoses at the mud gun is to be trialed (sic).

There are many fabrics showing promise as substitutes for asbestos and the safest from the historical information available seems to be of a glass fibre manufacture. Some of the more recent materials we will be looking at fall in the ceramic category.

436 The document goes on to list "Suggested Control Procedures". They included:

• in situations of asbestos removal wearing of a cartridge type respirator;

• wetting down;

• all insulation should be placed in plastic bags or similar container and sealed. The containers should be buried;

• with insulation work of a major nature, overalls and cloth caps should be worn, then after completion placed in plastic bags and wetted down before laundering.

437 It was submitted this document may have achieved some circulation. The evidence for that is, at best, second hand hearsay (Exhibit DX 3, 301). The document was for "EXECUTIVE ENGINEERS". The second hand hearsay evidence would have it issued to supervisors. I find it did not come to the attention of Messrs Gillespie, Bates, Turnbull or Parker.

438 The next document is Exhibit DX 3, 284. It is a document of 21 March 1979 prepared by Mr Anderson. He maintained the same attitude he brought to the previous document with the following statement:

There is a certain phobia about asbestos which seems to be fostered by misleading information often unsupported by the slightest shred of scientific evidence.

(Exhibit DX 3, 285, the words ruled through are ruled through in the text)

439 This is not a contemporaneous record of events as they occurred at the worksite. In fact, it is more of a generic document than one specific to the Newcastle steelworks. It recounts some information about asbestos and its consequential illnesses. It does reveal an awareness of health hazards with suggestions of controls. At this time, Mr Clarke was operating in the quality control laboratory and testing for asbestos.

440 The document at page 291 of Exhibit DX 3, includes,

c. Mesothelioma: Is a highly malignant tumour of the covering layers of the lungs and abdominal organs. This disease is almost entirely associated with blue asbestos (crocidolite) now prohibited for use in Australia. The exposure to blue asbestos may apparently be of slight degree or remote in time. Furthermore, relatives of asbestos workers and people living in the close vicinity of asbestos factories seem also to be at risk in this respect.

441 It then refers to the regulations relating to asbestos processes.

442 On 1 May 1979, the AMWSU sought to place a poster about asbestos (Exhibit DX 3, 400) on the machine shop noticeboard. Permission was refused, but the defendant said it would reconsider (Exhibit DX 3, 383).

443 The next document is dated 5 July 1979 and is concerned with the use of asbestos in the service shops, not the blast furnace department (Exhibit DX 3, 326 and also at page 298).

444 The next document is entitled

A.M.W.S.U.

REFUSAL TO ALLOW MACHINE SHOP DELEGATE TO

POST NOTICE ON ASBESTOS - SUBSEQUENT

CONFERENCE

(Exhibit DX 3, 383)

445 It consists in the main of a series of contemporaneous diary notes. Within the document is noted a conference on 10 July 1979 held between representatives of the Union and the defendant. Mr McNiven, on behalf of the defendant, stated that asbestos lagging had not been used on the plant for the past 15 years (p386). That cannot have been correct. It is not consistent with the document referred to in paragraphs 428-9. It is contradicted by the next document I refer to which states "Asbestos rope is commonly used throughout this Plant as a lagging material" (Exhibit DX 3, 209). It is contradicted also by Mr Warren (T953.27) and by Exhibit DX 14, Tab 1. Mr McNiven also stated that after work on removal of asbestos had commenced, if asbestos was feared to be present, the area was monitored.

446 On 11 July 1979, a note of a conference on 10 July 1979 was recorded (Exhibit DX 3, 384). It was a conference between representatives of the Union and the company discussing asbestos. The following is recorded about gloves.

Mr. Adamson then turned his attention to the question of gloves, and asked what steps had been taken to replace asbestos gloves, Mr. Patten replied that substitute gloves were presently being tested in the Rotary Kiln and the Refractories. Mr. Collingridge said that that did not remove the danger which existed at that moment and asked why the gloves with asbestos backing on them could not be disposed of immediately. Mr. McNiven replied that it would be wrong to dispose of the gloves presently in use without first obtaining a suitable replacement. He said that ordinary gloves were not suitable for work in the steel industry.

447 In July 1979, an asbestos survey report was issued by Mr Anderson and Mr Lannan (Exhibit DX 3, 206). It notes "in recent years, more and more evidence has been produced to show that exposure to asbestos dusts can constitute a very serious health hazard" (p208). It notes that asbestos rope was commonly used throughout the plant as a lagging material around pipes and hand rails and was also used to control heat transfer and heat loss. Under the heading "Replacing Asbestos Rope Lagging", it recommends steps more or less in accord with those mentioned in paragraph 436. It also includes a step that all asbestos contamination on the floor area should be cleaned up by vacuum machine (p212).

448 Part I of the document contains "the detail of asbestos use in each of the Newcastle Plant Departments" (p208). In Part 1, in the blast furnace section under the "IRON GROUP", there are listed 2 rolls of cloth, 16 rolls of rope, 500 asbestos sheathed hoses. There is also noted "Substitute 'Silastic'" in respect of "Mill Board". The report has some observations of a generic nature in relation to substitute materials for asbestos and a detailed list of asbestos substitutes tested.

449 The report has a table of "Current Asbestos Usage" (p230). It is not easy to tie up the items in the table with the rest of the report. Rope is not mentioned in the table. As it was commonly used for lagging, perhaps it is covered by the "Lagging" item. If so, its asbestos content was 75% or 79%. The other item that is hard to tie up is the "Asbestos Sheathed Hoses" mentioned in Part 1. Again, perhaps they are covered by the "Lagging" item. There is at least one significant omission from the report. Mittens are not referred to anywhere in Part I of the document. They were being used on the plant, Exhibit DX 3, 200-202 and 210, and in light of an enquiry coming from Mr Barnes, the blast furnace union delegate, at a meeting in September 1979, probably in the blast furnace department (Exhibit DX 3, 201) - see paragraph 467 hereof. The answer to this cannot be that the survey has included mittens under the item "Gauntlets & Gloves". Item 2 on page 210 of the exhibit makes the distinction between gloves and mittens. If I am wrong about that and the fact is that mittens are covered by the term "gauntlets" or "gloves", then there is still a significant omission in the report because it records no gauntlets or gloves in the blast furnace department. I am not prepared to draw the conclusion that the survey supports that in July 1979 asbestos gloves and gauntlets were no longer in use in the blast furnace department.

450 On 25 July 1979, Mr Harden wrote the directive about asbestos, Exhibit DX 3, 322. It is set out and referred to in paragraph 349. This document helps fix the time after which Mr Gillespie said that some changes were attempted in the blast furnace department.

451 On 7 August 1979, Mr Bryon sent a memorandum to Mr Harden with copies to others (Exhibit DX 3, 76 and also 302). It sought to describe the "CURRENT SITUATION RE ASBESTOS". The first three items, though partly in the present tense were mainly in the future tense. The first item notes that a memorandum was to go out to all concerned on substitute materials. I skip the second and third items. The fourth item states tests for some substitute materials were being conducted. The fifth item refers to a draft booklet. The sixth item states the Engineering Department was understood to be recommending a task force to specialise in significant asbestos demolition work. If the task force referred to was the same as that established by Mr Threadgate, that did not come into effect before November 1979. The seventh item notes that a medical surveillance programme was under way.

452 On 7 August 1979, Mr Bryon issued a note to "All concerned" (Exhibit DX 7, Tab 1). This was presumably the memorandum referred to in the previous document. It opens "With respect to the replacement of asbestos following the direction of the General Manager ..." It goes on to recommend some substitute materials and notes experimental work was being done on substitutes.

453 On 15 August 1979, Mr Bryon sent a memorandum to the Industrial Hygiene Committee (Exhibit DX 3, 304). The document has had added to it later a date stamp with the lettering "REG'D". That is initialled. The date is 5 September 1979. The significance of this was not the subject of evidence. There is also endorsed on the document, and undated, but presumably post-dating the document, the following notation, "Final draft OK'd Ready to be printed". The document enclosed the final draft of an asbestos booklet to go to "All Concerned". It was not printed.

454 The booklet includes the following,

3.2.1 Where possible the use of asbestos should be avoided.

...

3.2.3 Where It is Essential for Asbestos to be Cut or Machined:-

(a) ...

(b) ...

(c) The process to be wetted where possible.

(d) Local exhaust ventilation to be provided at all working points. Extraction must be away from the operator's breathing zone.

...

e. All asbestos to be kept in suitably enclosed containers so that dust does not escape into the general atmosphere of the factory...

f. The quality of operator's breathing air must be tested by the Laboratory...

g. Regular monitoring of the environment, especially within the breathing zone of the operator, must be performed and records of the fibre counts kept for inspection.

455 On 17 August 1979, Mr Patten sent a note to Mr Bryon with copies to Mr Russell and Mr Anderson (Exhibit DX 3, 297). It attached a copy of the procedures used by the Electricity Commission of New South Wales when handling asbestos bearing materials. Those procedures are dated 23 June 1978 and are in Exhibit DX 3 at 266. The procedures include,

5.2 Minor Work

The Engineer or Supervisor in charge shall:

5.2.1 Arrange for the placing of plastic or other sheeting on all surfaces in order to prevent the spread of asbestos fibres.

5.2.2. rovide suitable vacuum cleaning facilities.

5.2.3 Arrange for the wetting of the insulation by suitable soaking or spraying with water. The procedure used shall be provided by periodic air sampling.

...

6. CONTROL OF DUST LEVELS

6.1 Wetting Material - to Minimise Airborne Fibres

6.1.1 Before removal, all material containing asbestos shall be thoroughly soaked with water where practicable.

6.1.2 A fine mist spray shall be used where soaking is not practicable, the spray being used regularly during the work so that dry asbestos uncovered during the removal or cutting is progressively wetted to ensure that dust is not liberated into the atmosphere.

6.2 Vacuum Cleaning

Where any asbestos bearing material is to be handled, vacuum cleaners shall be used to remove any dust or spillage from the work area and from clothing or protective equipment.

...

6. CLOTHING

6.1 All personnel engaged an asbestos process shall wear protective clothing including cloth caps.

9.2 Before leaving the working area, thorough vacuum cleaning of protective clothing, followed by wetting with water, if necessary, shall be carried out to ensure that airborne fibre is not released.

9.3. All items of protective clothing for laundering shall be placed in clean plastic bags marked "Asbestos Contaminated" before they are removed from the process area or contaminated area of the change rooms.

...

11.2 Minor Work

For all minor work, a properly fitted approved cartridge type respirator as nominated in the appended list shall be used by all persons working or entering the work area.

456 The next document I was directed to chronologically is a record of a union meeting. I do not find this of assistance, nor do I find helpful the documents relating to the dispute between the defendant and the Union, including the transcripts of the proceedings in the Industrial Court. Nor do I find helpful newspaper and like publications I was referred to.

457 On 17 September 1979 (Exhibit DX 3, 78 and 195), a document was issued headed,

"ACTION THAT HAS BEEN TAKEN TO DATE WITH

RESPECT TO THE CONTROL AND ISSUE OF

ASBESTOS PRODUCTS THROUGHOUT THE WORKS,

PROCEDURES FOR HANDLING AND USE OF ASBESTOS,

AND INTRODUCTION OF SUBSTITUTE MATERIALS"

458 The content of the document is as follows.

1. General:

After completion of an asbestos survey and a report by Works Research on possible substitutes and recommendations, a specific and definite statement was made by the General Manager that the objective of this plant is to replace asbestos cloth, tape, cord and gloves with substitute materials and the issue of these materials is to be strictly policed.

2. Asbestos Cloth:

The issue of this material is being strictly policed and its issue is only to be made when it is considered absolutely unavoidable. In the case of the Service Shops, the issue of asbestos cloth is no longer possible and refrasil and Kaowool materials are now being used as a substitute.

3. Asbestos Rope:

Asbestos rope is no longer purchased on the plant. Kaowool rope as a substitute has now taken its place.

4. Asbestos Tape:

Asbestos tape is no longer used and a substitute fibreglass tape has taken its place.

5. Mechanical Sealing:

This refers to materials such as Bellite, Klingerite and Palmeto. These materials are still in use on the plant. This material is generally cut with wad punches, knives, tinsnips or scissors and the asbestos is captive within the material and, therefore, we see no health problem with this material.

Advice will be issued to supervisors for procedures to be following in handling jointing materials.

6. Lagging Material:

The use of asbestos rope and mill board has been replaced with the use of Kaowool rope lagging and rehardened Kaowool board or Bestobell A/F mill board for the protection against radiant heat or furnace packing.

There will be no further issues of asbestos rope or mill board from the general store.

The majority of lagging on the plant is carried out by a firm called Insulation Industries and only asbestos-free products have been used for the past 30 years for most applications. In future they are not to use any asbestos products.

7. Building Materials:

This refers to materials such as Hardiflex and Maronite (common building materials).

When this material is to be machined, vacuum dust extraction equipment is to be used.

8. Brake & Clutch Linings:

These materials have captive asbestos in them and to date not substitute material is available. Advice will be issued to supervisors on procedures to be followed for removal of accumulated brake lining dust.

9. Personal Protective Clothing:

A number of substitutes have been tried and are still being tried with a view to eliminating asbestos cloth which has in the past been used for items of personal protections such as gloves, mittens and spats. There has been some success with fabric replacements on the back of gloves and it would appear that the ceramic cloths closely compare with asbestos, but because of their lack of ability to withstand abrasion they cannot be considered as replacement for asbestos in all applications.

So far we have no satisfactory replacement for asbestos in the use of mittens or spats where hot metal splash is the hazard being protected against.

10. Personnel:

Personnel who have been working with asbestos products are scheduled for medical examinations. These examinations stated in late July-early August.

11. Monitoring:

A memo has been circulated to Superintendents and Chief Mechanics concerning the hazards involved in demolishing asbestos materials and pointing out that monitoring facilities are available. When these materials are being demolished, contact must be made with Mr. J. Grogan who will determine what precautions should be taken. Mr. Grogan will also arrange for the Laboratory to carry out any necessary sampling of the materials and/or air quality. The department concerned should arrange to issue respirators and/or special clothing if Mr. Grogan determines that this is necessary.

Arrangements must also be made to hose down or vacuum clean the area periodically to remove all accumulated dust.

12. Purchase of Industrial Vacuum Cleaning Units:

Portable industrial vacuum cleaners have been purchased and have been installed in the Service Shops and Electrical Department to be used exclusively to vacuum asbestos refuse which will then be placed in sealed plastic bags and buried. In addition, no machining is permitted without dust extraction units being in place.

13. Control of Purchased Asbestos Products:

No orders for asbestos products can be placed outside the plant without the approval of the Safety Superintendent who is monitoring asbestos products and the substitute materials. Instructions have been given to the Store personnel that asbestos is not to be purchased.

14. Demolition and Disposal of Asbestos Material:

There will be established a specialised group of men from the Power Department who are to be trained to deal with the major and moderate sized asbestos demolition jobs. These officers will have the following facilities which will be exclusive for their use:-

a portable shower room, locker room, protective clothing, M.S.A. powered air purifying respirators and an industrial vacuum cleaner to facilitate clean up operations.

Medical checks will be given to people involved in this special group as set out in the Government Asbestos Regulations, Factories Shops & Industries Act.

15. Asbestos Handbook to be Issued to Supervision:

A handbook is in the printing stage which will inform supervisors throughout the plant of the substitute materials that are to be used and what trials are necessary under their jurisdiction when asbestos alternatives are not available.

16. Booklet for Employees:

The company wishes to publish a booklet or notice setting out procedures for safe use of asbestos.

The Department of Industrial Relations and Technology has been contacted, but they have not been able to provide a suitable booklet. Other sources are being contacted.

Newcastle

17th September 1979

It has a number of handwritten annotations on it.

459 I make a few observations about that document.

460 Item 2 states that the issue of asbestos cloth was no longer possible and substitutes were being used. That is not strictly correct as is evidenced by a handwritten additional note beside that item (Exhibit DX 3, 195). That note reads,

Some applications where as yet we have not found a substitute.

Hotmetal splash.

Without that note, the document is misleading and yet copies of that document exist without any notation on them, for example, DX 3, 78.

461 If the statement in item 3 is intended to convey, and it seems it does so intend, that Kaowool rope has taken the place of asbestos rope in its use on the plant, I consider it is not correct. The survey document mentioned in paragraph 448 above establishes the use of rope in the blast furnace department as at July 1979. The evidence from Mr Gillespie that rope could not be successfully substituted in the blast furnace department was compelling. That evidence was corroborated by Mr Parker. I am satisfied asbestos rope continued to be used.

462 The same observation may be made in relation to item 6.

463 Abrasion, item 9, was not an issue with asbestos gloves or mittens in the blast furnace department, but hot metal splash was and continued to be. The fact that abrasion was not an issue in the blast furnace department is not inconsistent with substitutes not being tried there. In any event, asbestos product continued to be used in the blast furnace department because of the hot metal splash issue.

464 Neither the specialised group nor its facilities, item 14, were in the blast furnace department in the period 1979 to 1981. Whilst item 14 talks about a specialised group, it is evident from a later document that it could not have been established before November 1979.

465 The evidence was unsatisfactory as to what handbooks, items 15 and 16, or other publications were distributed to supervisors or employees. Indeed, the evidence is definitive in relation to one document that was not distributed as intended. An information booklet was intended for distribution to all employees late in 1979. It seems to have been assumed that it was. On 2 December 1983, Mr Herrett, a personnel trainee with the defendant, wrote the following note on a copy,

Safety dept advises 30/11/83 that this did not get sent out to all wages employees, as had been the original intention.

Up until that note was written, it might have been assumed that the document was distributed to all employees. That could still be the case as though Exhibit DX 3, 55 has this note on it, it is not the only copy of the document. Exhibit DX 3, 66 is an identical copy without the note. Somebody could still be misled if they did not have the copy with the note. This "ACTION THAT HAS BEEN TAKEN" document standing alone is capable of being misleading.

466 The next document is Exhibit DX 3, 200. It is a record of a meeting with the AMWSU on 18 September 1979. Mr Anderson is recorded as having said that he had been working on substitutes for asbestos for about three years. It was submitted that that supported that Mr Anderson had personally been working on substitutes since 1976. What that supports is that that is what he said. More to the point, it does not say anything about what he had done, except in general terms in some parts of the document, and it does not say what he had done in the blast furnace.

467 The document records an exchange between Mr Barnes and Mr Anderson where Mr Barnes raised an issue about asbestos backing on mitts. Mr Barnes was the blast furnace representative at this meeting. As the enquiry came from him, I infer that there were then asbestos backed mitts in use at the blast furnace. Mr Anderson responded that leather backed mittens were being trialled, but were not satisfactory for hot metal (Exhibit DX 3, 201). Mittens are not referred to anywhere in Part I of the survey document. The survey is not a comprehensive document.

468 On 4 October 1979, Mr Bryon, as chairman of the Industrial Hygiene Committee, sent a memorandum to members of that committee (Exhibit DX 3, 65). The members included Mr Warren. The memorandum attached a draft of an information booklet on asbestos for issue to wages personnel. The memorandum sought the comments of committee members. The information booklet is at Exhibit DX 3, 66, but also appears at p55 with the notation that it was not sent to wages employees as originally intended. The booklet includes some safety features such as,

"How Important is it to Keep Dust Levels Down?"

It is essential.

...

IMPORTANT STEPS TO BE FOLLOWED TO KEEP DUST LEVELS DOWN.

...

Keep floors and benches clean. Do not use brushes only vacuum cleaning.

...

When dust extraction equipment is not available always wear a clean and properly fitting respirator.

469 An undated memorandum with the author unidentified was apparently sent to Mr Bryon with a copy to Mr Stuart (Exhibit DX 3, 159). It was probably prepared in October 1979. It identifies two booklets relating to asbestos. The booklets were prepared by South Pacific Asbestos Association. They are entitled "Your Health and asbestos dust" (Exhibit DX 3, 161) (the yellow booklet) and "YOUR HEALTH... working safely with asbestos" (Exhibit DX 3, 177) (the green booklet). Both were approved by the Chief Inspector of the Department of Industrial Relations and Technology. It was noted that approval was not being sought for any other publication. The memorandum then adds,

Without conceding that we are generally covered by the "Asbestos Processes Regulations" occasions could arise when the level of asbestos dust would exceed 2 fibres/c.c of air and we would then be subject to them. To ensure that we are not in breach of regulations and to fulfil our undertaking to provide a safe working booklet to employees we recommend the distribution of the attached booklets in preference to the one drafted by Company officers.

470 After some further commentary, the memorandum finishes up by saying "We would like to discuss this matter with you etc".

471 On 23 October 1979, a document headed "A S B E S T O S" was issued by a person with initials H.E.U. (Exhibit DX 3, 430). The document is as follows.

The plant survey reveals that most departments are not experiencing problems with the use of asbestos compounds such as in brake linings and pipe jointings, for example Bellite and Klingerite. It is also apparent that most departments are removing all other asbestos from their stores as directed in the memo from Mr. G. Stuart dated 3rd October, 1979. It was also evident that very few urgent problems are being experienced by departments due to substitutes for asbestos being unsatisfactory or non-existent.

The exceptions to the above are as follows:-

1. Coke Ovens Department

The Coke Ovens still have various forms of asbestos in the departmental store and intend using this until their stocks run out.

2. Blast Furnace

A substitute packing for the distributor of No. 2 Blast Furnace was used on the last shut-down and this failed very rapidly. Difficulties are being experienced in finding a substitute for asbestos and a number of companies have already indicated that they are unable to supply a satisfactory substitute. However, we are currently discussing the problem with two further manufacturers who may be able to develop a substitute.

3. Skelp Mill

A flexible connection between the hot air header and recuperator has in the past consisted of asbestos, kao-wool and wire netting. A suitable alternative to this has not yet been found. See Drg. No. 48208.

4. No. 2 Merchant Mill

Asbestos mitts are still being used in the mill until present stocks are depleted.

5. No. 1 Merchant Mill

Asbestos covered hoses are being used until stocks are depleted. The existing hoses are being covered with silver paint and other precautions are also being used.

6. Cold Rolling Mill

A problem is being encountered here in finding a suitable substitute for 6 mm millboard which is used for gaskets on the gas cracker.

7. Refractories Maintenance

The remaining asbestos products which are still in the store are being used until stocks are depleted.

472 The defendant seeks to draw from this a number of things.

• The opening paragraph does not offer any suggestion of any problem in the blast furnace department with substitutes, therefore it can be said there were no problems except as indicated later in the document.

• The exceptions deal specifically with the blast furnace department and, accordingly, it may be taken that what is in that item represents the only problem in the blast furnace department.

• Asbestos mitts are mentioned in the No. 2 merchant mill, but not in the blast furnace department. Accordingly, it can be said they were not being used in the blast furnace department.

• Asbestos covered hoses are mentioned in the No. 1 merchant mill, but not in the blast furnace department. Accordingly, it can be said that they were not being used in the blast furnace department.

473 The document refers to the blast furnace and notes a problem with an asbestos substitute for the distributor of No. 2 blast furnace. It makes no other reference to the blast furnace. If that is meant to convey that asbestos needs to be used for that distributor and that is the only item of asbestos that has not been substituted in the blast furnace, then it is wrong. Rope continued to be used and so did asbestos lagged hoses. It is possible the document might be read differently. The reference to the blast furnace is one of seven exceptions following the sentence, "It was also evident that very few urgent problems are being experienced by departments due to substitutes for asbestos being either unsatisfactory or non-existent". It may be that all the document is doing in referring to the blast furnace is pointing out an urgent problem where there are replacements. That is consistent with rope and asbestos lagged hoses in continued use.

474 This is an unreliable document. The document refers to the "plant survey" without identifying it. The document has the appearance of being a draft. The figure 3 in item 3 is ruled through. The reference following the text in item 3 is ruled through. There is some indistinct writing under item 3. Item 5 appears to have a line through it. The figure 6 on item 6 is ruled through and the figure 3 written beside it. Item 7 is ruled through. The author, presumably H.E.U., is not identified. The document is not signed. Following item 2, there is indistinct writing which presumably had some significance to the author. I do not find this document helpful.

475 Then there is another note of 23 October 1979. This one does not identify an author. It is entitled "A S B E S T O S" (Exhibit DX 3, 427). It is difficult to fit this document in with the previous one. In the bundle Exhibit DX 3, it comes before the previous one. In the main, its content is contained within the previous one. There are some variations. The fact that the previous document has initials that apparently identify an author might suggest it came later. On the hand, the fact that the previous document has some changes on it might suggest that this particular document came later. I do not find either of these documents useful in seeking to resolve the issues in this case.

476 There is then the meeting between representatives of the defendant and the Union of 25 October 1979 referred to in paragraphs 378-9 where Mr McNiven stated that substitute materials in the blast furnace were so far not suitable because of abrasive conditions and high temperature and pressure.

477 There is an undated, handwritten document somewhat like a survey (Exhibit DX 3, 434). This document states,

NOTE: GENERAL STORE CANCELED (sic) ORDER ON SHELTERED WORSHOPS FOR ASBESTOS MITTS ON 20-2-78.

REASON OUTSIDE FIRM WON CONTRACT THESE MITTS WERE NOT SATICFACTORY (sic).

ON REQUEST FROM DEPTS, SHELTERED WORKSHOPS STARTED TO PRODUCE ASBESTOS MITTS ON THE 29-8-78.

478 The document shows substitute items for asbestos in nine different locations at the steelworks. The blast furnace is not included as one of the locations. The document does not mention the blast furnace department at all. I am not prepared to infer that it had any reference or relevance to the blast furnace department.

479 This document throws up other problems. Part of it, the top half, covers the period 1 June 1978 to 31 May 1979. This part also shows up what are likely to be holes in the survey of July 1979. Part 1 of the July 1979 survey reveals aprons and spats in the No 2 reconditioning yard and there only. This document reveals aprons and/or spats in the No. 2 merchant mill, the D.M. foundry, steelmaking, No. 2 reconditioning yard, No. 1 merchant mill, No. 2 stock yard and the skelp mill. It is possible that some time between 31 May 1979 and July 1979, the aprons and spats could have been removed from all except the No. 2 reconditioning yard, but that seems unlikely. It is especially unlikely where the bottom section of this document sets out where substitute items were placed from 15 June 1979. There is no mention of replacement of aprons, except in the No. 2 reconditioning yard. There is no mention of replacement of spats, except in the No. 2 stock yard and No. 2 reconditioning yard. This document also shows up deficiencies with the next document, Exhibit DX 3, 435 which deals with substitutes for asbestos mitts, aprons and spats. Exhibit DX 3, 434 shows substitutes being used in No. 2 stock yard, No. 1 bloom mill and cold rolling, steel making and Q.C. lab. None of those areas is covered in the next document. The answer cannot be that that is because the substitutes were satisfactory. The substitutes were satisfactory in "refractories", yet the refractories is covered by the previous document.

480 The document speaks of substitution "from" 18 June 1979. It is not clear to me what date or time I should take for the supposed substitution in the blast furnace. Nothing before 18 September 1979 seems possible in light of Mr McNiven's comment to Mr Barnes and that comment had within it the need for ongoing use of asbestos mitts in the blast furnace.

481 There are so many deficiencies with the document and the next document, Exhibit DX 3, 435, that I am not prepared to draw from them that substitution of gloves had been effected in the blast furnace.

482 An undated document, Exhibit DX 3, 435 is headed

USE OF ASBESTOS SUBSTITUTE

MITTS, APRONS, & SPATS

The document is said to be dated in October 1979 and is a document concerning the use of substitutes for asbestos mitts, aprons and spats (Exhibit DX 3, 435). This document covers some sections, but not all, of the defendant's operations. It does not claim to be a comprehensive document and I do not draw from its lack of reference to the blast furnace that all asbestos mitts, aprons and spats and also gloves and gauntlets had been replaced in the blast furnace.

483 An undated document and one with no identified author is entitled "GUIDELINES FOR HANDLING ASBESTOS MATERIALS" (Exhibit DX 3, 45 and also at 274). This is another document with a handwritten notation on it. At the top of it is the following notation,

Made available to Supts in the 'Industrial Hygiene' Folder as from Dec 79/January 1980 - issued by G.N. Stuart, Sup Safety & Admin Services.

It is initialled by Mr Herrett on 2 December 1983.

484 This is unsatisfactory evidence as to the dissemination of this document. Without that notation, it might have been assumed that the document was distributed as intended, whenever that was. The evidence of its distribution in that note is hearsay and guesswork. The evidence as to the distribution comes about four years after it is said to have been distributed and the source of the information could not be definitive about when it was done. Dec 1979/January 1980 was as good as could be ascertained. Whether the source, presumably Mr Stuart, was relying on his memory, relying on information from others, relying on some undisclosed documents or reconstructing what he thought must have happened, is not known. There is dispute in this case as to the distribution of a number of documents and I am not prepared to rely on this material as satisfying me that this document was distributed to superintendents. None of the defendant's witnesses, apart from Mr Herrett's evidence as to the notation, gave evidence of its distribution. They would not all be expected to have received it, but possibly Mr Warren might have. The plaintiff's witnesses had no recall of it. I find it was not distributed to Messrs Gillespie, Bates, Turnbull or Parker.

485 The document opens with "It is Company policy that the use of asbestos materials be discontinued on the plant unless absolutely unavoidable". It goes on to set out safety procedures that should be followed.

486 Under a heading "Continued Use of Asbestos", it states,

At present there are substitue (sic) materials available to replace asbestos in most applications, and these are being used.

One major exception is the sheet jointing material used for pipe flanges and cover gaskets etc.

487 The defendant's case is that there was no significant problem mentioned with respect to substitutes in the blast furnace. This document says nothing about the blast furnace where a substitute for rope could not be found. Perhaps the defendant did not consider this to be a "major exception".

488 Mr Patten recorded a note on 30 October 1979 (Exhibit DX 3, 401). It refers to an attached memorandum from the Manager Engineering recommending the formation of a group of men in the Power Department to deal with large accumulations of asbestos on a plant wide basis. It was noted that Mr Threadgate advised Mr Patten that he would be calling for volunteers to form the team. This fixes the time of the formation of Mr Threadgate's team as being not before November 1979 which is only shortly before the plaintiff commenced with the defendant. It may even have been later than November 1979 that the team was formed.

489 Mr Bryon, as chairman of the Industrial Hygiene Committee, prepared a memorandum for all concerned on 15 November 1979 (Exhibit DX 14, Tab 9). At the end of the memorandum is the notation, "Attach". Immediately following the memorandum in the exhibit are the two approved documents earlier referred to being the green booklet and the yellow booklet. Neither they, nor any other document, are referred to in the memorandum. It may be inferred that with the notation "Attach", Mr Byron intended to attach, and probably did attach, something. He recalled seeing the green booklet ("YOUR HEALTH... working safely with asbestos") and being impressed by it, but did not see the other booklet. There was a number of steps that had to be undertaken, however, before this memorandum and its attachment(s) reached "All Concerned" and those steps, and whether they were undertaken, were all out of the control and knowledge of Mr Bryon. The steps included printing in excess of 11,000 copies of the memorandum and attachment(s) and then attaching the attachment(s) to the memorandum. I infer that the green booklet was attached to his memorandum. None of the witnesses called by the defendant gave evidence of seeing either of these brochures or Mr Bryon's memorandum. None of the plaintiff's witnesses had any recollection of seeing them. I find that these documents were not distributed to All Concerned as intended.

490 Exhibit DX 14, Tab 10 came from the Industrial Relations file. It comes from a file opened in relation to an inquiry carried out into occupational health and safety. It was accordingly created in a broad sense in contemplation of legal process and liable to be created in interest. In parts, it reads accordingly. It is not a contemporaneous document as commonly understood. This document establishes that safety was a "line" responsibility. The more important point is whether it provides help on whether Mr Bryon's knowledge of the dangers of asbestos were knowledge of the company and there is nothing in it that impresses me as suggesting that that was not so.

491 On 21 May 1980, a memorandum was issued by the purchasing superintendent to all superintendents (Exhibit DX 14, Tab 11). It sets out a purchasing protocol. It includes,

REQUISITION AUTHORISATIONS To enable the processing of a requisition through Purchasing Department certain signatures are required. A system has been nominated by Management which gives authority to various departmental Managers to nominate certain Superintendents and Mechanics to sign requisitions on behalf of the requisitioning department. In addition to this it is necessary for nominated commodities to have additional signatures. For your information I attach copy of the authorisation list which may be of assistance to you in having your requisitions reach Purchasing at an earlier date.

492 Mr Anderson was the person nominated whose signature was required for asbestos products and Mr Stuart for gloves (except Medical Centre).

493 Exhibit DX 15, Tab 3 contains:

"B.F. Safe Working Instructions and Gen. Gas Regulations" Handbooks Issued on 10.12.79.

That is evidence that the plaintiff received those instructions and regulations when he started on 10 December 1979. That is not evidence that he was provided with any asbestos handbook.

L. Assessment of witnesses

494 Mr Parker directed me to what Ipp JA said in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186, especially on the topic of assessing the reliability of witness testimony. I am mindful of what his Honour said in that case about the care that needs to be taken particularly in making findings based on the fallible criterion of demeanour. This is especially so in this case where, for the main part, the witnesses have given evidence of events occurring about 35 years ago. Apparent genuine memory can easily be wrong. The matter also needs care taken by reason of the fact that the plaintiff and his witnesses gave evidence partly by affidavit or statement and did so on issues that were hotly contested. There are considerable advantages in the administration of justice in doing that, but there are potential disadvantages in fact finding. Those disadvantages were pointed out by Heydon J in Gately v The Queen (2007) 232 CLR 208 at [121]. The matter is compounded in this case by considerable word-for-word similarity between the affidavits. However, I do not understand these comments as requiring me to ignore the appearance and demeanour of the witnesses.

495 The defendant submitted I had to be careful about the evidence of the plaintiff's witnesses, especially considering factors such as the time delay, the preparation of statements and/or affidavits by the plaintiff's solicitor, perhaps subconsciously slanting material in a way that was favourable to the plaintiff and especially considering the marked similarities in these statements and affidavits, even down to identical spelling mistakes. The point is noted. It hardly supports the submission made that all I have to go on, on this issue of exposure, is the appearance of the witnesses.

496 The first thing to note about that is that the appearance of the plaintiff's witnesses was impressive. The second thing to note is that is not all the plaintiff has to go on. He has consistency. This is mixed in with inconsistency. He has compatibility with other evidence. He has probability. He has the odd piece of evidence that lends credulity. He has a collective lack of recall. He has documentary evidence. I expand on some of these things.

497 As to demeanour, and their evidence generally, I shall expand shortly on the evidence of the plaintiff and Mr Warren. As to Messrs Gillespie, Turnbull, Bates and Parker, I thought they were frankly impressive witnesses. That does not make their evidence right. Their memories maybe honest, but incorrect. I have, however, no sense of any lack of confidence in accepting their integrity.

498 As to consistency and inconsistency, it would not be practical to list all items on which the evidence of a witness was consistent with or inconsistent with that of another witness or that of a document. The defendant provided me with an extensive list of inconsistencies to which I have had regard. I think it is sufficient if I note at this point that on a number of contentious matters there was a consistency in the evidence of the plaintiff's witnesses, though with differences in some detail. Examples of this include:

• the evidence as to whether a worker was assigned to a particular blast furnace or worked on all of them. Mr Warren's evidence supported the latter;

• the frequency with which blast furnaces shut down for maintenance;

• the work tasks undertaken by labourers in the blast furnaces;

• the use of compressed air in the blast furnaces;

• the timing of substitute materials for asbestos and, in particular, whether rope was used until the mid 1980s.

On all these matters, the evidence of the plaintiff's witnesses is consistent though differences can be found in some of the detail. Differences are to be expected.

499 As to compatibility with other evidence, it is sufficient at this stage to note the comments I have made in relation to the various documents. Mr Gillespie's evidence about the defendant apparently becoming active or more active in its replacement programme is compatible in its timing with the general manager's directive of 25 July 1979. It is also compatible with Mr Threadgate's evidence (see paragraph 418 hereof). There is Mr Warren's evidence that there were asbestos sheathed hoses when he was in the blast furnace in 1970/71 and he was not aware of any change by the time he left the defendant in March 1980. There is also his evidence that the defendant was taking action about a year or so before he left in March 1980. There is the survey showing the use of asbestos in the blast furnace department in July 1979. There is Mr Barnes's statement in September 1979 about the use of asbestos mitts in the blast furnace department. There is Mr McNiven's statement in October 1979 as to the difficulties in finding substitutes for asbestos in the blast furnace.

500 As to probability, it is likely that following the general manager's directive of 25 July 1979, there was more activity with a view to ridding the blast furnace of asbestos. Mr Gillespie's evidence of the timing of the commencement of this is probably correct. Replacement did not just occur. Trials were required. Trials were undertaken. Not all trials were successful. The chances of a replacement programme having been completed within the few months between the edict and the plaintiff's commencement is most improbable. This is especially so when there are statements about the ongoing use of asbestos in the blast furnace in September and October 1979 with no apparent immediate prospect of being able to replace it with substitutes.

501 There is the odd piece of evidence lending credulity to the plaintiff's case.

• As to compressed air, the plaintiff has Mr Parker's evidence of a special lance being designed and attached to the end of the hose. That is not a piece of evidence likely to be fabricated or imagined.

• There is also Mr Gillespie's evidence of his distinct recollection of the asbestos rope having to be engineered out and that was not done until Blast Furnace No. 2 closed. This is corroborated by Mr Parker. That also was a piece of evidence unlikely to be fabricated or imagined.

502 If one person does not recall an event of 35 years ago, that might be consistent with the event not having occurred or with its occurrence and the person simply forgetting. There are factors that can bear on which of those is correct.

• The more significant the event, the more likely it is to be recalled.

• Something unusual about the event might make it more likely to be recalled.

• The failure of one person, in a position to know whether an event occurred, to recall it might mean it occurred, but the person has forgotten it. The failure of several people, all in a position to know whether an event occurred, to recall it might make it more likely that the event did not occur.

503 The plaintiff's witnesses either refute or do not recall:

• air testing for asbestos. There are features about testing that might make it memorable such as its novelty and the wearing of particular apparatus. It would be particularly memorable for Mr Parker;

• vacuum cleaners being used for cleaning. They recall cleaning in many forms, but not that, with the exception that Mr Parker recalled vacuum cleaners from the late 1980s (T436.30);

• work clothes being laundered. That would be such a change in routine that one would think it might be memorable;

• booklets on asbestos being issued. One might expect that to be memorable and that would be especially so with two of the booklets being coloured booklets with pictorial representations.

504 The collective failure of four people to recall these things and all of them in a position to be aware of them is something the plaintiff has to go on. It is not likely that if all these things occurred, all these witnesses could have forgotten all of them. The defendant draws on the fact that some of these things could not be denied, for example, Mr Gillespie could not deny the issue or publication of booklets on asbestos. Evidence that somebody cannot deny the occurrence of an event is not evidence that the event occurred. Mr Gillespie's inability to deny that booklets on asbestos were issued or published, is not evidence that they were and is merely a consequence of his having no recall.

505 It is true that there are events the witnesses could not recall that did occur. That does not negate altogether this point about collective failure to recall, but it certainly reveals its fallibility and lessens its weight and impact. Nevertheless, it is a point that, with the others, aids me in coming to the view that, contrary to the defendant's submission, the plaintiff had more to go on than the appearance of the witnesses.

506 The defendant's point is well made that the similarities in the affidavits can affect the reliability of the evidence and its probative value. It all comes down, in the end, to an assessment of the overall evidence. It is not surprising that if, for example, five different workers described the same work process to a solicitor and did so in a way that gave the solicitor a particular understanding of the work process that the solicitor, for convenience, might describe it in the same way when finally preparing an affidavit or statement for those workers. One thing, however, is puzzling. Mr Parker said he typed his affidavit and provided it to the solicitor (T469.29). That seems unlikely and I do not think it occurred. It is possible he typed a document and sent it to the solicitor, but that particular option was not explored. On the face of it, it would not appear consistent with the evidence at T469.28-.32 and T470.40, but one can never be sure without that option having been explored. This is a factor I bear in mind in considering Mr Parker's evidence and the evidence overall. In all the circumstances, however, I am of the view that he was an honest and essentially reliable witness.

507 That brings me to the plaintiff's evidence. It was submitted I should reject the whole of his evidence in chief and his affidavit evidence on this issue and accept his concessions in cross-examination. I reject the submission. A few examples are sufficient to dispose of it.

508 The evidence as to the use of compressed air is compelling. There was documentary evidence that the practice should not be undertaken and there was evidence that the foremen would not breach the rules and put workers' safety at risk. There was, however, consistent compelling evidence that it was used. That evidence is inconsistent with the plaintiff's concession. To accept the plaintiff's concession would be a backhand way of rejecting the evidence as to its use. That concession should be rejected. There was also the concession that the plaintiff was allocated to a particular blast furnace and did not generally work at all of them. This is contrary to the overwhelming burden of evidence including evidence from the defendant on this issue. There was also his concession that the work on the cooling blocks was done by other tradesmen (T130.35) when the overwhelming evidence and the fact, as I find it, was that the labourers did it.

509 The plaintiff was cross-examined for a long period of time. Cross-examination commenced after morning tea on the second day and continued until about 12.30pm on the following day. He was in a poor physical and mental condition. He was from the start of his evidence in chief.

510 In cross-examination, the plaintiff gave answers that were internally inconsistent. He gave evidence that was inconsistent with histories he had given to other people. He made numerous concessions to the effect that he was not exposed as he had alleged in chief or in his affidavit. He made numerous concessions to the effect that opportunities for him to have been exposed in different tasks were few and far between. He effectively completed his cross-examination by agreeing that the whole of his affidavit concerning his work with the defendant was "wishful thinking" on his part because he hoped it would support his case. If this is correct, it effectively destroys the whole his evidence in support of his case.

511 In my view, the plaintiff was almost catatonic in giving much of his evidence. He was flat. He was deadpan. His mind was muddled. It was especially muddled by the skill and technique of the cross-examination. The cross-examiner and the witness were certainly not on the same intellectual level. They do not have to be. The result, however, was that the plaintiff effectively did not know what he was saying some of the time. I had no indication at all of any attempt at deception or dissembling on his part. I go further and say I thought, to the extent that he could, especially considering the long lapse of time and his health, he was attempting to be absolutely frank and truthful.

512 These views do not need psychiatric or other evidence to support them. As it turns out, Dr McDonald, the plaintiff's treating psychiatrist, does. So does Dr Phillips. Dr Revai did not agree entirely, but that may be a matter of degree and, through no fault of his, he was working under disadvantages that he mentioned (T616). I was impressed particularly by the evidence of Dr McDonald. I accept it. It is well supported on a factual basis by the evidence of the plaintiff and of his wife.

513 I do not accept the concession by the plaintiff that the whole of his affidavit concerning his work with the defendant was wishful thinking on his part because he hoped it would support his case or for any other reason.

514 The plaintiff's concessions of "wishful thinking" are, on the face of it, so self-destructive of the whole tenor of his evidence and the concessions were made so meekly, I do not accept them.

515 Several of the concessions made by the plaintiff were made following false, illogical or ambiguous premises put to him. For example,

• having said that it was after he went to work for Andreco that he was told asbestos was deadly, the next question was "So by the time you worked at Andreco you were aware of potential for risk from asbestos" (T94.05) and he agreed;

• it was put to the plaintiff in cross-examination that every furnace would be shut down "every few months". The plaintiff responded "every two". He was then corrected, at least subtly and incorrectly so, with "Every few I put to you, could be two, could be three months". "Two" had not been put in the previous question (T104.50);

• in his affidavit, the plaintiff said that it was often the case that he would work on, for example, the cast house floor of blast furnace No. 2 and the next day at blast furnace No. 4. He then agreed that it was "less often" that that would happen. Without any more detail, Mr Parker had the plaintiff agree "So, you have made a mistake in your affidavit". The fact that something happened "less often" does not mean it did not happen often and, accordingly, on that basis there was no mistake;

• the plaintiff was asked the following question, "But you will agree with me, in the light of the evidence you have given today, that if any running maintenance occurred at all outside the shutdowns, planned or unplanned, it was not maintenance that involved any of the products that you refer to as asbestos products. That is right, is it not?" (T139.46-.49). The plaintiff answered "Yes". That is a matter I later took up with Mr Parker. I sought references to the transcript where the plaintiff gave evidence that the maintenance did not involve asbestos products. Mr Talintyre gave me a list of transcript references. They were T127.45-.46, T129.17-.30, T130.03-.08, T130.28-.35, T130.41-42, T131.07-.09, T133.22-.27. Not one of those references supports the premise. I took the matter up again with Mr Parker (T241). I have been given no further references;

• in paragraph 26 of his affidavit, the plaintiff stated he was involved in removing old insulation rope. The plaintiff agreed with Mr Parker that this was false. He also stated that he packed new insulation materials in (T142.06). When it was put to him that this was false, the plaintiff said he did help (T142.13). Then he agreed he did not pack the material in. When it was put to him again that that was false, the plaintiff said he did pack it in. Then he agreed he was just supposing (T142.17). Then, at the suggestion that the recollection of this was false, he said he could not remember (T142.19). To have said all this in this short space of time that he did not, he did, he was just supposing and he could not remember, is some indication of the state of confusion of the plaintiff. This was the confusion of an addled mind rather than any attempt at deception. The paragraph of the affidavit also stated that the plaintiff "regularly" inhaled asbestos dust. The plaintiff said that he did inhale it. He agreed the use of the word "regularly" was false. The paragraph also stated that he cleaned up the fallen dust with a broom and/or compressed air. It was put that was false. The response was "Some areas we did". He later agreed that he could not recall an occasion when he cleaned up with something other than water and he was just supposing he used compressed air (T141-142).

516 Mr Semmler submitted that the plaintiff was overborne by the cross-examination. Mr Parker responded by submitting that was not so and the plaintiff resisted many matters that were put to him and he provided me with an extensive schedule of instances. To say that the plaintiff resisted overstates the plaintiff's approach and demeanour considerably. I detected no resistance at all. I would not class any disagreement as resistance. Practically everything the plaintiff put forward by way of disagreement was meek.

517 All this leads me to the point as to what I should do with the plaintiff's evidence. I propose to ignore it on this issue. To some extent, this will be doing him a disservice as much of his evidence about his working conditions is unquestionably true. The difficulty I face though is being able to rely on it. In light of the fact that I do not accept large parts of his evidence in cross-examination, and in light of the fact that there are significant inconsistencies given in different accounts at different times by the plaintiff, I think it would be unsafe to rely on his evidence on this point unless it can be established otherwise to be true.

518 That brings me to the evidence of the plaintiff's witnesses and Mr Warren, the defendant's principal witness on the conditions in which the plaintiff worked.

519 In general, I prefer the evidence of Messrs Gillespie, Bates, Turnbull and Parker where it conflicts with that of Mr Warren. There are several reasons for this.

520 I do not think Mr Warren was an impressive witness. He tended to ramble at length and irrelevantly in many answers and seemingly to get his point of view across rather than be factual and impartial.

521 In seeking to obtain from Mr Warren evidence that labourers might be required to do certain tasks, Mr Semmler asked some questions about whether that might be dictated by several tasks being done on the blast furnace at the same time. Mr Warren showed a reluctance to come to grips with the questions until I intervened with a couple of questions. (T969.34-T970.12)

522 Mr Warren was asked if Mr Gillespie was a person of great integrity, "It's not up to me to judge", "I'm not here to answer that question" (T967.50-T968.02). Those answers might have been seen by him as appropriate, but as with a number of other answers, they showed a reluctance by Mr Warren to answer where he should have or where it could be perceived the answers might not assist the plaintiff. Other examples include:

• "I've endeavoured, contrary to your approach..." (T973.29);

• "So, what are you looking for from me?" (T975.27);

• a reluctance to answer a question with the word "frequently" in it (T980.25), though he had freely answered a number of questions earlier with that word in it and had used the word himself (T948.28-.32, T956.26, T957-8, T958.20, .32, T964.48, T965.20, T966.26, T970.20, .21, .33, T972-3);

• after the question at T980 with the word "frequently" in it, he continued to baulk for a time at questions with the word in it (T981-2);

• an uncooperative attitude to questions at T982.10-.23;

• "It's 4 o'clock and I'm being asked to think about 40-odd years ago and you're just going off at apace. Mate, please don't do that." (T984.28-.30). The question was proper and Mr Semmler was not "going off at apace";

• he was being evasive at T986.43 when he asked Mr Semmler to detail what he meant by "the same would apply". The question was clear;

• in answer to a question I asked about whether dust might be generated, he volunteered "a possibility of a very miniscule amount" (T993.03). Not only was this a piece of volunteered information not favourable to the plaintiff's case, but it was volunteered using an adjective to give some quantitative evaluation to the amount of dust. This seems odd in circumstances where earlier he was refusing to deal with the concept of frequent because of the attempt to quantify time. When asked why he used the term "possibility" and the term "very miniscule", his explanation was not satisfactory - "When you say all the time or extensive, then I have felt need to just highlight a dimension on it" (T993.12-.13). There had been no mention of time or extent in the question I had asked. Then he added, "Your Honour, I have been continually questioned yesterday and today with what I am experiencing as very exaggerated dimensions on a whole heap of things, from my recollection. So I guess it has just become a habit - my only answer to you is that it has just become habitual for me to have a felt need in responding and providing the information to add a dimension to it, sir" (T993.23-.26);

• "Your Honour, I have come here to give information on the best of my recollection. I don't appreciate trying to be cross-examined inside out about this and that." (T1003.18-.19)

• "I refuse to answer that because of the inference behind it." (T1004.7);

• "My recollection is given in good faith as to the best of my ability. I do not expect to be continually tried to be pushed into a corner to make a statement which is not my words." (T1004.25-.26)

523 Mr Semmler suggested to Mr Warren that he was being paid for his time in giving evidence (T993.30). Mr Semmler was wrong. He later withdrew the suggestion after he became aware of his error. This does not affect any of the matters I have set out as, except for the last three points in the previous paragraph, it came after all of them.

524 The plaintiff's witnesses had excellent opportunity to observe and understand the working conditions in the blast furnaces. Mr Warren asserted he did too. He was eager to volunteer a comment about the quality of his time when at the blast furnaces as if it was better than the quality of the plaintiff's witnesses. It was not. It is apparent Mr Warren did not have the same opportunities to observe the men at work as the plaintiff's witnesses did. If he did, he did not use those opportunities fully or his recall has let him down. One example is the use of compressed air for cleaning up. It was a fact. Considering the ban on it, it is odd that his answer on the subject matter was that he could not recall and that it would be counter-intuitive rather than "It didn't happen. It was banned.".

525 There is a consistency between the plaintiff's witnesses on important matters. Their evidence was criticised. One submission was that it had been prepared on some "template". I was handed a schedule during submissions. The schedule shows many cases of similarities especially of large passages in the wording of the affidavits or statements of these witnesses, even to the point of reproducing the same spelling or other error. The first thing to note is that no challenge was made during evidence and no submission was made that there was anything improper in this. The second thing to note is that no doubt the plaintiff's solicitor had conferences with witnesses. Following that, one can expect that a draft statement or draft affidavit was prepared. The criticism can be made, and fairly be made, that at that point the solicitor then converted parts of the witness' information into his or her own words. That, however, is an inevitable process and result in the preparation of any affidavit or witness statement. In numerous situations, it would be impossible to present a statement or affidavit that contained only the witness' words. It would often be incomprehensible. One of the criticisms is that the written document inevitably contains leading evidence. The leading can come not through any impropriety, but from the solicitor directing the witness to specific matters to seek to ascertain the facts. The result can lead to a wrong impression. It is the sort of problem adverted to by Heydon J in Gately. The third thing to note is that if the solicitor was receiving consistent information from the witnesses, there would be nothing wrong with expressing that in the same way in the different statements and affidavits. To go about the exercise of changing it hardly has any point and could even give a false air of validity to the information.

526 On the point of consistency, it is highly unlikely that all four of the plaintiff's witnesses could have got it wrong in the same way on so many significant matters. No suggestion was made that they had got their heads together for the purpose of giving their evidence.

527 There are differences in the evidence of the plaintiff's witnesses. They are differences of a kind one would expect of witnesses recalling similar events.

528 I thought all the plaintiff's witnesses were doing their best to give truthful evidence according to the best of their recollection. They impressed me as honest and reliable witnesses.

529 Mr Gillespie was criticised because in paragraph 50 of his affidavit, he referred to the beginning of concerns by the defendant about asbestos and trials of substitutes as occurring "In about 1979". It was submitted that this occurred a few years before 1979.

530 There are documents that support the fact that the defendant was considering or acting on the replacement of asbestos products before 1979. They have been referred to.

531 Then there are several documents in 1979, both before the edict and before the plaintiff commenced employment. They also have been referred to.

532 There are only the two relevant documents before 1979 and they have a three year gap between them. Any document after that about events before 1979 is historical and not contemporaneous. I do not accept the submission that Mr Gillespie has pushed his date back by a number of years. In substance, what he said in paragraph 50 of his affidavit is correct. It would have been literally correct if the words "beginning of" had been left out of the phrase "beginning of some concern". I have expressed in several paragraphs in these reasons (see especially 499 and 537) my view that Mr Gillespie is correct in his timing and I so find..

533 In any event, even if the defendant had undertaken a vigorous replacement programme before 1979, that would not free me of my obligation to determine if there was asbestos in the blast furnace when the plaintiff worked there and, if so, whether he was exposed to it. Those are the matters I have to address.

M. Was the plaintiff exposed to asbestos and, if so, in what circumstances and to what extent?

534 Mr Gillespie spoke of the edict coming out about the use of asbestos. There can be no doubt he was referring to a time shortly after the general manager's directive of 25 July 1979. It was submitted that the whole of Mr Gillespie's evidence and the plaintiff's case were infected by the error in paragraph 50 of Mr Gillespie's affidavit. That paragraph reads:

In about 1979 there was the beginning of some concern on the part of management at BHP Newcastle in relation to the use of asbestos products and the exposure of workers to asbestos dust. At about this time some attempts were made to investigate and trial asbestos free alternatives to some of the materials that I have described above. The asbestos free alternatives included products such as Refrasil and fibreglass based (Kaowool) rope, tape, gloves, gauntlets and blankets. Parramatta Cloth (wool based) was also trialled as an alternative to asbestos cloth.

535 I reject the submission. First, there was a prohibition against the use of asbestos containing materials, but it was not universal. It was not a blanket prohibition on the use of all asbestos. Secondly, the prohibition was a policy. It was not demonstrated that it applied in practice in the blast furnace. The defendant's own evidence supports the continued use of asbestos in lagging on steam pipes, lagging on taphole drill hoses. Thirdly, the evidence is compelling about the continued use of rope until the mid 1980s. It had to be engineered out.

536 Mr Gillespie fixed the time when he became involved in trialling substitutes as when the edict came out on 25 July 1979 (T222.27). It was submitted that Mr Gillespie's evidence could not be used to find that nothing was happening in the blast furnace until 1979. That is not the real question. The real question is what asbestos was in the blast furnace department in the period December 1979 to March 1981. The fact that efforts were undertaken before 1979 does not answer that.

537 Mr Gillespie, it was submitted, did not have an objective factor that enabled him to fix the time when the defendant was seeking to place substitutes for asbestos in the blast furnace. He did. There are two points of reference in the timing of the events, the subject of his evidence. The first point is the edict. There is no doubt that was 25 July 1979. That puts his evidence about the major activity in relation to the replacement of asbestos as occurring at not before July 1979. That in itself is an answer to the defendant's submission that Mr Gillespie's evidence is transposed in time by several years. This point is supported by Mr Gillespie's being involved in implementing the edict as mentioned in paragraph 103. The second point of reference he has is the closure of the No. 2 blast furnace and the continued use of rope until it could be engineered out in 1985. That timing is a solid objective piece of evidence supporting Mr Gillespie's evidence as to the timing of replacement products in the blast furnace department and as to related activities happening or not happening there. That evidence as to timing is corroborated by Mr Bates who left the blast furnace and the defendant in 1982 before returning in 1986. His evidence was of continued use of asbestos material up until 1982. Then there was also the evidence of Mr Turnbull who left the blast furnace and the defendant in 1983 and his evidence is of continued use of asbestos materials up until then. This also ties in with the formation of Mr Threadgate's team some time in or after November 1979.

538 Having made these observations, I now turn to the question of the plaintiff's exposure to asbestos during his work in the blast furnace department.

539 It is unnecessary for me to examine each and every allegation of exposure that the plaintiff relies on. It is sufficient for me to dispose of this case to make findings in respect of only some of them. I am satisfied that the plaintiff was exposed to asbestos in each of the following:

• the cooling blocks;

• the taphole drill;

• gloves;

• blankets;

• cleaning;

• daily change of clothes.

540 Before embarking on an analysis of those different processes, I say something about the evidence of the witnesses as to the presence of asbestos in the blast furnace.

541 After I reserved, Mr Tzouganatos, by a note, drew my attention to Howard Smith & Patrick Travel Pty Limited v Comcare [2014] NSWCA 215. One of the issues in that case was whether the deceased worker was exposed to asbestos. Evidence to the effect that he was, was given by the deceased and three other workers also deceased. They were all waterside workers. A question arose as to the admissibility of that evidence. The principal judgment was delivered by Basten JA.

542 It is necessary to recite some of the facts of that case. The original plaintiff was Mr Lindsay. He contracted mesothelioma. He sued Comcare which was responsible for the liabilities of the Australian Stevedoring Industry Authority. He died. The proceedings were settled. Comcare sought to recover a contribution from Howard Smith as a joint tort feasor. For that to succeed, both Comcare and Howard Smith had to be liable to Mr Lindsay. Liability would not be established in the absence of Mr Lindsay being exposed to asbestos. There was evidence from Mr Lindsay and three other deceased waterside workers that Mr Lindsay was exposed to asbestos. The issue was whether that evidence was admissible.

543 Mr Lindsay's evidence was that he was exposed to asbestos at the Port Kembla waterfront from about 1964 to 1974. He gave some detailed evidence about his exposure. It included:

(a) he moved bags of asbestos in the holds of ships;

(b) he walked by asbestos lagged steam pipes and into and by engine rooms on ships;

(c) he brushed up against lagging;

(d) for several years, he operated steam winches. The winches and their steam pipes were lagged with asbestos. It was often worn;

(e) he rigged asbestos cargo for removal from ships and re-stacked it;

(f) ships with asbestos cargo stopped in Sydney on their way to Port Kembla. The cargo was unloaded in Sydney, but asbestos dust remained as the holds were not cleaned in Sydney.

544 All the above processes gave off asbestos dust.

545 Mr Foley worked on the Sydney waterfront from 1948 to 1958. He unloaded bundles of asbestos fibro in hessian bags. There were many. The hold was tightly packed with the cargo. The bags were moved by workers operating in pairs. Bags would often tear. From 1958 to 1964, Mr Foley worked at Port Kembla. Apart from one instance, he did not recall unloading asbestos cargo at Port Kembla. He confirmed item (f) in paragraph 543. As a waterside worker, he worked by hot pipes lagged with asbestos. It was often worn. He saw the re-lagging process with asbestos rope. The processes described were dusty.

546 Mr Munro and Mr Wales gave evidence to similar effect.

547 "The proper analysis in the present case must commence with identification of the facts sought to be proved." (Howard Smith at [23])

548 What the plaintiff seeks to prove in this case was that he was exposed to asbestos dust in his employment with the defendant. There can be no question that he was exposed to dust or that he and his witnesses are entitled to give that evidence. The question here is whether his evidence or that of witnesses can establish that the dust was asbestos. That needs to be established on the probabilities (Howard Smith [23]).

549 I was asked to rule out the evidence of Mr Gillespie which went to the identity of asbestos. It was admitted provisionally. To the extent that the plaintiff needs to rely on that evidence, I rule it in unconditionally to be evidence of fact. How good it is really depends on what Mr Gillespie knew and the circumstances.

550 Two reasons were submitted as to why I should reverse the provisional ruling. The first was it was not Mr Gillespie's job in the relevant period to be involved with the handling of asbestos materials. That submission overlooks or does not give due weight to the fact that in that period Mr Gillespie spent 70-80% of his time on the furnaces. He must have had detailed knowledge of what was happening. Before that he was even closer to the activities on the furnaces as a furnace foreman - relief assistant shift foreman - assistant shift foreman. He was part of management. It is even part of the defendant's case that he was involved in the process of replacement of asbestos materials. Presumably the defendant was sufficiently confident that he knew what he was doing when materials were being replaced. He gave compelling evidence of products that were successfully replaced and those that were not. I accept his evidence.

551 The second point was that the question of identification of the product is an expert question. It was submitted that the only way of telling it is by looking through a microscope. That depends on the purpose for which the identification is needed. That is so if one wants scientific certainty. What is needed in this case is probability. I reject the defendant's submission that the plaintiff needs to persuade me "authoritatively" as to the identity of the product being asbestos. Balance of probabilities is the test. In considering that, there are some significant, incontrovertible facts. First, there was the undoubted presence of asbestos products in the blast furnace department when Mr Gillespie worked there. Secondly, there was the undoubted attempt by the defendant to remove product when Mr Gillespie was in the blast furnace department. Thirdly, there was Mr Gillespie's role in assisting in the removal of product.

552 This is not a case of being "confronted with two colourless, odourless liquids, one of which is thought not to be water" - Howard Smith [24], thus requiring specialised knowledge to make the distinction. There is no confrontation here at all. The defendant itself had identified product in situ as asbestos. It then brought in substitutes and identified them as such. There is no suggestion of possible mistaken identity.

553 On the particular issue raised by Howard Smith, the effect of Mr Gillespie's evidence is set out at paragraphs 100 to 116 hereof and also in some paragraphs following - 556 to 558 and 562 to 564. I accept his evidence.

554 I do not need to consider the evidence of Messrs Bates, Turnbull and Parker on this point.

555 In dealing with Mr Gillespie's evidence, I note that a lot of it is plainly evidence of objectively observed fact and does not depend on Howard Smith for its admissibility.

556 Mr Gillespie started with the defendant in 1969. He went to the blast furnaces in 1974. His evidence at to his experience is to be seen first on a background of asbestos being used extensively in the blast furnaces in 1974.

557 The first directive of attempts to replace asbestos that Mr Gillespie became aware of was the edict of 25 July 1979.

558 He was part of the process of having asbestos replaced in the blast furnace. He knew the difference between the replacements and the asbestos in situ. He had training in the use and appearance of different products including asbestos. He knew the replacements that worked and those that did not, so that in the latter case, the use of asbestos was continued.

559 There are then the matters referred to in paragraph 563 hereof.

560 Without more, that would be enough to satisfy any requirement for the admissibility of Mr Gillespie's evidence on this issue.

561 Paragraph 28 of Howard Smith might be paraphrased for the purpose of this case as follows:

Given the proper identification of the issue to which the evidence went, the experience of (Mr Gillespie) over many years and the fact that no attempt was being made to distinguish types of asbestos or quantities of airborne material, what (he) described was based on what was, for (him), common knowledge. (His) evidence in that regard was admissible as evidence of a fact which (he) perceived.

562 There was no attempt here to distinguish types of asbestos in the chemical sense. There were different types of asbestos in their appearance - rope, tape, cloth etc - but that is a matter for lay observation and evidence. The attempt was to distinguish between asbestos and its substitutes. It is a distinction I accept Mr Gillespie was able to determine and he did so.

563 The case for asbestos does not rest with Mr Gillespie's evidence of his experience. It includes other matters. Mr Gillespie had not seen the memorandum of 25 July 1979, but he recalls the edict (T210.34). He recalls there were trial materials and experiments following that edict. He did not recall any being replaced immediately. He did not have any problems getting required asbestos materials from the store (T210.48). Some of the replacement jointing material blew out under pressure (T211.13). It took a long time to find new materials (T211.17). He saw no evidence of a specialised asbestos team set up after the edict (T211.22). To the extent that there was such a team operating at the steelworks, I find that it did not function in the blast furnace department. Mr Threadgate's team was not set up before November 1979.

564 It also includes other matters such as the material being ordered by the store by name, the material being labelled "asbestos" and the crew especially foremen and supervisors calling the material asbestos. The last is the weakest of those points, and the plaintiff does not need it, but it is unlikely that personnel properly calling a product "asbestos" because it was, would continue to use that term when the product changed.

565 It was put to Mr Gillespie that having read a note of 7 August 1979 from Mr Harden (Exhibit DX 3, 76 and also 302), he would be able to say that he ceased using asbestos rope and started using Kaowool at some time shortly after early August 1979. Mr Gillespie refuted the suggestion and the document does not support it. It speaks prospectively and it speaks of a memorandum to be sent out. The evidence supports (and I shall come to it shortly) continued use of rope in the blast furnace department from 1979 through to 1981 and beyond.

566 The document DX 14, Tab 1 of 1 September 1975 refers to the use of asbestos products in the defendant's premises and in the blast furnace department. It refers to plastic coated yarn gloves. It also refers to gloves in the general store. Exhibit DX 14, Tab 2 is the specification of 23 September 1976. At 6.9 it refers to mitts and asbestos gauntlets. At 6.11 it refers to full length leather gauntlets, asbestos backed. It is difficult to know what to make of these two documents where the former document refers to asbestos gloves, and not gauntlets, being used and stored and the latter refers to specifications for asbestos gauntlets, but not asbestos gloves.

567 Exhibit DX 3, 149 of 15 August 1978 is one of Mr Anderson's reports. It mentions the molten metal splash issue in the blast furnace, but does not identify a time. There is general comment about experiments being undertaken to find alternatives.

568 Exhibit DX 3, 207 is the survey of July 1979. It notes that asbestos cloth was used for gloves and mittens, p210. It refers to 20 pairs of gauntlets and gloves in the sinter plant, but it does not refer to any in the blast furnace. It identifies asbestos products used in the blast furnace department at p217.

569 Exhibit DX 3, 384 is the diary note of 10 July 1979. There is a comment from a union official that there was no restriction on the supply of asbestos material. In the context that was a reference to gloves. He wanted the practice stopped immediately and stated that they should be supplied only where employees were required to wear it for their work.

570 Mr Gillespie was shown Exhibit DX 3, 78 and 195, a document of 17 September 1979 setting out action said to have been taken in respect of the removal of asbestos. He was asked to agree with a number of its contents. He agreed that asbestos cloth was to be used only when absolutely unavoidable. He rejected the statement that asbestos rope was no longer purchased on the plant and that Kaowool had taken its place. He explained that Kaowool and other substitutes were unsatisfactory for rope. I reject the criticism that Mr Gillespie has his timing of this wrong. In all probability, trialling of substitutes spoken about in these documents commenced after the memorandum of 7 August 1979 (Exhibit DX 3, 302). Mr Parker's question at T213.21 would appear to support that. The fact is it did not work and rope continued to be used. I am impressed by Mr Gillespie's evidence that the problem had to be engineered out and that was years later.

571 I have made other comment about this document at paragraphs 457 to 465 and especially for this purpose at 461.

572 This document is defective in another way. In referring to "Mechanical Sealing", it did not mention the distribution seal on blast furnace No. 2. That was a gasket two inches square and 20 feet long. It was cut with a saw, not the items mentioned in the document (T215.41). That remained an asbestos gasket until 1985 (T215.47).

573 Exhibit DX 3, 430 is a document dated 23 October 1979 and is a type of progress report on the removal of asbestos. I have dealt with it at paragraphs 471 to 474.

574 Mr Gillespie agreed that substitutes were trialled for sheathing on the hoses (T222.32). Again, it is probable that trial commenced some time after August 1979. Wool failed (T222.33). Refrasil was used, but not in earnest until late 1981, early 1982. The result was the hoses had to be changed more often (T222.36). This timing is consistent with Mr Bates's observations that there was no change until he left in 1982 (Exhibit PX 23 [8] and T297.34). It is also consistent with Mr Turnbull's evidence. He left the blast furnace department and the defendant in 1983. I note, however, that he did not recall testing alternative materials while he was there (T344.26).

575 Mr Parker was aware of attempts to find alternatives from the early 1980s (Exhibit PX 26 [13]). Over the years, different things were trialled and some were successful (T441.04). Like Mr Gillespie, he thought the last time rope was used was in 1985 when Blast Furnace No. 2 was decommissioned (T444.10). The sheathing on the hoses changed over time, but he could not remember when (T458.26).

576 Mr Parker had not seen the memorandum of 25 July 1979 of Mr Harden (T465.15). Having been shown it, he did not accept the invitation to agree that asbestos rope may have been phased out as early as 1979 (T465.45). He could not recall any change until 1985 (T466.12).

577 All this demonstrates the continued use of asbestos in different forms during the time the plaintiff was employed there. I shall now deal more specifically with the processes I mentioned in paragraph 539. Before doing so, however, I record that I am satisfied that in his employment in the blast furnace department, the plaintiff was not allocated to a particular furnace. The evidence is not all at one on this point, but the main burden of the evidence, and this includes the evidence from the defendant, and the more probable, in my view, is as I have indicated.

(a) The cooling blocks

578 The case for the continued use of asbestos rope during 1979 to 1981 is compelling. It is supported by the plaintiff's witnesses. Mr Gillespie was able to say definitively that it could not be replaced effectively and was continued until the blast furnace shut down. Mr Bates and Mr Turnbull stated it was being used whilst they were there. In the case of Mr Bates, he left the blast furnace and the defendant in June 1982, returning in 1986. In the case of Mr Turnbull, he left the blast furnace and the defendant for good in 1983. Mr Parker said it was used until No. 2 blast furnace was decommissioned. Mr Turnbull said that rope was mostly obtained from the store by box (T337.19). The box was labelled "Asbestos" (T337.33). Sometimes it was in a sealed plastic bag labelled "Asbestos" (T337.37).

579 Mr Warren's evidence was not at all times clear, but seemed to boil down to not being able to say whether or not asbestos rope was used on the cooling blocks. He does recall that Kaowool was not much help as a substitute (T979.37), but then he could not recall Kaowool in rope form (T1009.33). He did recall that he used asbestos rope and he could not recall if there was any change (T951).

580 Mr Patten agreed that cord was being used in the steelworks in 1979 (T934.16).

581 The July 1979 survey (Exhibit DX 3, 217) reveals the presence of rope in the blast furnace. That document reveals not only its presence, but its continued use (Exhibit DX 3, 208). The general manager's directive of 25 July 1979 assumes, if not acknowledges, the continued use of "cord" on the plant. Mr McNiven's statement in the meeting of 25 October 1979 is consistent with the continued use of rope, "No (substitute) material appeared suitable where abrasive conditions existed along with high pressure and temperature".

582 The defendant relied on documents to resist the claim in relation to the continued use of rope in the blast furnace. The defendant relies on the document of 1 September 1975, Exhibit DX 14, Tab 1, relating to "Use of Asbestos Products". The defendant relies on the fact that there is no reference in the document to cooling blocks in the blast furnace section of the document. Yet there can be little doubt that rope was then used and packing was one of its functions. It is apparent the document is either not complete or faulty.

583 The survey of July 1979 shows the continued use of rope in the blast furnace (Exhibit DX 3, 208 and 217). The document of 7 August 1979 (Exhibit DX 7, Tab 1) has Kaowool recommended as a substitute for rope thereby acknowledging that rope was still in use. The recommendation was for the substitute to be used for "lagging, pipes and handrails". There was no suggestion that it be used for packing. The timing of this recommendation is consistent with Mr Gillespie's evidence that nothing was happening in this regard before the edict of July 1979.

584 The "ACTION TAKEN" document of 17 September 1979 (Exhibit DX 3, 195) noting that rope was no longer purchased and that Kaowool has taken its place is wrong insofar as that suggests that rope was no longer in use. I have made observations about that document in paragraphs 457 to 465.

585 The document headed "Asbestos" of 23 October 1979 under the initials of H.E.U. I have dealt with elsewhere and commented about its unsatisfactory nature in paragraphs 471 to 474. There is no mention in the document of any difficulty with rope. That is another aspect of the unreliability of this document.

586 Rope was used on the cooling blocks on blast furnaces Nos 1 and 2. The process of changing the cooling blocks has been described in consistent terms by all witnesses except Mr Warren. I prefer the evidence of the witnesses other than Mr Warren. The process is recounted in paragraphs 137 to 143, 194 to 205, 241-2, 310. I find compressed air was used. I find the work was done by labourers.

587 The process of changing the cooling blocks gave off dust as described by the witnesses. This was from the cutting of new rope and the removal of the block. Removal of the block gave off dust including dust from the old rope. The intensity of the asbestos dust cannot be described in numerical terms and to the extent that the defendant's case is that this is required by the plaintiff, the defence is ill-founded.

588 On some assumptions put to him, more or less in accord with the evidence as to the working conditions in the removal of the block, Mr Rogers thought that the exposure level would exceed 2 fibres/c.c. for the duration of the process insofar as it was disturbing the old rope (T815.24). I do not place much weight on the evidence of the occupational hygienists as to particular levels of exposure for particular tasks. Retrospective analysis of this kind is fraught with difficulty because of the number of variables involved. It is not just the number of variables that is a problem. Two workers being tested and being exposed in apparently identical circumstances can return different levels of exposure on testing (T845.04).

589 The intensity of the exposure can really only be described using adjectival terms of relativity. Even that has significant limitation in its utility. I would consider this exposure to be variable. Bearing in mind the descriptions of its dustiness and the proximity of the operator's face to the dust, I think it would be at least of relatively high intensity during the process of removal of the old block and the removal of old asbestos from the cavity. For the remainder of the time, it would be of lesser intensity.

590 The frequency with which the plaintiff undertook this task is difficult to determine. Blocks were changed on planned shutdowns. Each furnace was shut down every two months. Accordingly, either blast furnace 1 or blast furnace 2 was shut down every month. That is one occasion per month the task was undertaken. Blocks were also changed on unplanned shutdowns. There were various reasons why they might need to be changed or plugged including age, failure of the block, failure of the packing, gas blows. When they did need changing, it was usually urgent and the blast furnace had to be got back on line as soon as possible. The evidence of the frequency of these changes was variable and by extraordinarily wide assessments. I leave Mr Warren out of this as I do not accept his evidence on this issue though in one respect it does favour the plaintiff. That is his recollection of blocks ageing on No. 1 blast furnace shortly before he left in 1980. Age is something that causes changes at greater frequency. It does not seem to be a factor at the time the plaintiff was there. In doing the best I can on all the evidence relating to the frequency of the change of cooling blocks on unplanned shutdowns, I find that the plaintiff was exposed to asbestos from unplanned shutdowns in the changing of cooling blocks about 10 times per month during his time there.

(b) The taphole drill

591 Again the case for asbestos is compelling.

592 Mr Gillespie agreed substitute materials were effected, but that was not until late 1981/82 (T222.37).

593 Mr Warren said the hoses in the taphole drill "certainly" had asbestos covers when he started on the blast furnace. That was in 1971. In re-examination, he was asked whether he recalled any change in the appearance of the sheathing or any discussion about changing the sheathing and he replied, no, to both.

594 That lack of change obtained support from the survey which records 500 asbestos sheathed hoses being used in the blast furnace department in July 1979 (Exhibit DX 3, 208, 217). This answers the criticism in the cross-examination of Mr Gillespie that all he had to go on was his recollection and his agreement with that (T223.03). Maybe that was all he had to go on, but his recollection of the use of asbestos sheathed hoses in 1979 coincides with the fact as demonstrated by the survey.

595 What occurred some time after the edict was trial of wool. That failed. Then Refrasil was used, but that process took a couple of years to develop (T222.37). That would take it up to about mid 1981 from the time of the edict.

596 The defendant relied on a number of documents in resisting this aspect of the claim.

597 Exhibit DX 14 Tab 1 and Exhibit DX 3, 153 may be put to one side. They are superseded by the survey of July 1979 which reveals the continued use of asbestos clad hoses in the blast furnace.

598 The defendant relies on the note of the meeting of 18 September 1979. That records Mr Barnes, the blast furnace representative of the Union, at the meeting asking "What about the use of Parramatta cloth on the hoses?". The response was that it was being trialled "at the moment" (Exhibit DX 3, 204). That is entirely consistent with Mr Gillespie's evidence. He said in relation to the sheathing on the hoses that wool was tried. That is consistent with Parramatta cloth. "It didn't last long". Then Refrasil was tried, but that did not really come into effect for a couple of years (T222.34-.37, T232.20).

599 The defendant also relies on the document of 23 October 1979 at Exhibit DX 3, 430. I have already commented on the utility of this document at paragraphs 471 to 474.

600 As to the work process, the labourers handled the taphole drill three to four times per shift. Brushing up against the insulation was inevitable. That resulted in asbestos dust being released into the breathing zone of the operator and on his clothing and person. Hoses also shuddered, releasing dust. Over time, the insulation became brittle, friable and fell apart. Mr Bates described the air as becoming "particulised". Mr Gillespie described the lagging as becoming friable and damaged and fibres and dust could be seen in the area (T168.01). The fan exacerbated that (T168.11).

601 Again the extent of the exposure cannot be quantified in numerical terms. The effect of Mr Rogers's evidence was that changing the taphole drill might approach 1 fibre/c.c. Mr Kottek thought it might be a bit more, but did not seem to disagree. I have commented earlier about the reliability of this type of evidence. I think it is best described as overall falling in the light range on a scale of light, moderate or heavy. With the close physical contact and the visibility of the dust, I think it likely that it is at the upper end of light. I find the plaintiff was thus exposed for several minutes three to four times per day.

602 In addition, the asbestos lagged hoses on the taphole drill needed to be changed. The evidence as to the frequency of that is confusing. Mr Gillespie puts it at 180 times per month (Exhibit PX 22). Mr Parker says once per month or two months (T433.12) or it was "regular repair" (Exhibit PX 26 [19]). Mr Turnbull says it was once per week (T328.15).

603 With the frequency with which the taphole drill was being changed, the frequency with which bits of lagging were falling off and the frequency with which the workers were rubbing up against the lagging, it seems most unlikely that the hoses were being replaced only once every month or two. On the other hand, Mr Gillespie's estimate of 180 times per month seems too high. Spread over four blast furnaces, that would be 45 times per month for each blast furnace. That would mean it was being done at every blast furnace every day and sometimes more than once per day. I think it is more likely, and I find, that this change was being done in respect of each blast furnace about once per week. The task of change and clean up took about half an hour. If this task was evenly spread among the labourers, the plaintiff would have been exposed to asbestos from this task about every two weeks and I so find. Cleaning aside, the exposure from this was relatively light.

(c) Gloves

604 In his affidavit, Exhibit PX 21, Mr Gillespie said that from the commencement of his work in the blast furnace department until the mid 1980s, asbestos materials were used. They included "woven grey asbestos cloth backed gloves, asbestos cloth gauntlets, asbestos aprons, asbestos spats and asbestos coats" (Exhibit PX 21 [40]). Workers regularly wore asbestos backed gloves or asbestos gauntlets and sometimes spats and aprons to protect them from metal splash (Exhibit PX 21 [48]). It is to be borne in mind that the evidence in the affidavit is of a general nature. More specific attention to the subject matter was undertaken in Mr Gillespie's oral evidence.

605 The handwear that Mr Gillespie gave evidence about included:

• leather gloves;

• asbestos backed gloves;

• a gauntlet.

606 Leather gloves were the general handwear for the workers. Asbestos backed gloves were worn if the work was hot, for example, around molten metal or slag. The gauntlet was for abnormal operations, for example, a really sick furnace (T193.47-194.10, T207.37). Many of the tasks simply required the wearing of the normal leather gloves.

607 Hot work which required the wearing of the asbestos backed gloves was a regular job. It occurred every shift. A worker could be at that work for an hour a shift maximum, although it could be zero. Mr Gillespie said that asbestos backed gloves were worn throughout the period 1979 to 1981 (T173.13).

608 Mr Gillespie was shown the general manager's directive of 25 July 1979, Exhibit DX 3, 322. He agreed that the instructions in it concerning asbestos including the instructions in relation to gloves went out at about the same time (T212.44). From early July 1979, he and others were doing all they could to eliminate asbestos (T213.04).

609 In September 1979 there was the document setting out action taken in respect of asbestos (Exhibit DX 3, 78 and 195). Item 9 read:

9. Personal Protective Clothing:

A number of substitutes have been tried and are still being tried with a view to eliminating asbestos cloth which has in the past been used for items of personal protection such as gloves, mittens and spats. There has been some success with fabric replacements on the back of gloves and it would appear that the ceramic cloths closely compare with asbestos, but because of their lack of ability to withstand abrasion, they cannot be considered as replacement for asbestos in all applications.

So far we have no satisfactory replacement for asbestos in the use of mittens or spats where hot metal splash is the hazard being protected against.

610 It was put to Mr Gillespie that in September 1979 the defendant was still seeing if it could replace asbestos cloth in hand and foot protection including gloves. Mr Gillespie agreed that was correct (T216.19). He said, "The only applications that we really couldn't replace was when we got right up next to the heat with the hot metal" (T216.29).

611 Mr Gillespie was asked about the reference to abrasion in the document. He said he did not know where that came from, that abrasion was not an issue with gloves (T216.37-T217.02).

612 I accept what Mr Gillespie says about this.

613 Mr Parker took me to a number of documents on this particular issue.

614 The first two he took me to were the September 1975 document dealing the use of asbestos products (Exhibit DX 14, Tab 1) and the September 1976 document being the specification. It is difficult to know what to make of the specification. None of the specifications for gloves in it includes asbestos, yet it is clear even on the defendant's documentary case alone that there were asbestos gloves. The general manager's directive of 25 July 1979 (Exhibit DX 3, 322) is sufficient to establish that. See also the note of the conference on 10 July 1979, Exhibit DX 3, 384; the survey of July 1979, Exhibit DX 3, 214-220, 223.

615 The next document I was referred to was Mr Anderson's document of 15 August 1978 (Exhibit DX 3, 149). There is no specific reference to gloves in it.

616 The next document I was referred to was the survey of July 1979. The schedule reveals no gauntlets and gloves in the blast furnace. That is evidence enabling a conclusion to be drawn that by July 1979 asbestos gauntlets and gloves were no longer used in the blast furnace department. It is not a conclusion I am prepared to draw. I have expressed reasons for this in considering this document in paragraphs 447 to 449.

617 The next document I was referred to was the diary note of the conference of 10 July 1979 (Exhibit DX 3, 384). There was an exchange relevant to gloves which I have set out at paragraph 446.

618 There was no suggestion there of substitute gloves being tested at that time in the blast furnace department and in light of Mr McNiven's comments that it would be wrong to dispose of gloves presently in use without obtaining a suitable replacement and that ordinary gloves were not suitable for work in the steel industry, it seems unlikely that they were being tested in the blast furnace. That position is consistent with Mr Gillespie's evidence that the gloves could not be replaced "when you got right up next to the heat with the hot metal".

619 The record of the meeting on 18 September 1979 between Union and company representatives (Exhibit DX 3, 200) supports the presence of asbestos backed mittens in the blast furnace. I have discussed this at paragraphs 466-7.

620 Other documents relied on I have already commented on:

• Exhibit DX 3, 434 in paragraphs 477 to 481;

• Exhibit DX 3, 435 in paragraph 482;

• Exhibit DX 3, 427 in paragraph 475.

621 Mr Warren gave evidence about hand protection. I have summarised the effect of the relevant part of his evidence at paragraphs 398 to 399 above.

622 One of the main issues here lies between what Mr Gillespie says as to the hand protection worn by the workers and what Mr Warren says. I have already indicated my preference for Mr Gillespie's evidence over Mr Warren's and that remains the case here. In any event, the probabilities on this issue favour Mr Gillespie's evidence. Mr Gillespie says there was a leather glove and that was the generally worn glove. Mr Warren appears to agree with that. Mr Gillespie says there was a gauntlet worn for abnormal operations. Mr Warren appears to agree with that. It was rarely worn. Mr Gillespie says there was another glove worn around hot work like molten metal and slag, work like poking the taphole or oxylancing it. That was an asbestos backed glove. They were prone to be worn regularly for an hour a shift, but it may be not at all. The point of difference lies here. Mr Warren says this was a leather gauntlet. The gloves in issue had to protect from radiant heat and against metal splash. Asbestos was preferred to leather for hot metal content, see for example:

• Exhibit DX 3, 201 where Mr Anderson wrote that leather backed mittens were satisfactory for radiant temperatures, but not hot metal;

• Exhibit DX 3, 381 where Mr McNiven said that ordinary gloves were not suitable for work in the steel industry;

• Exhibit DX 3, 196 where it was observed that there was no satisfactory replacement for asbestos in the use of mittens where hot metal splash was the hazard. This material is consistent with Mr Gillespie's evidence to the effect that these particular gloves were for protection from metal splash;

• Exhibit PX 21 [48].

623 The defendant relied on the system that asbestos materials could not be obtained from the store without Mr Anderson's approval. The system really was that asbestos materials could not be obtained unless it was demonstrated that there were no suitable substitutes available. There was no suitable substitute available for the asbestos backed gloves in the blast furnace department. I accept Mr Gillespie's evidence that the wearing of the gloves was regular and was likely to be every shift. Work requiring the wearing of those gloves would be for one hour per shift maximum. There would be occasions when there would be no work requiring the wearing of those gloves.

624 I find that the plaintiff wore asbestos backed gloves at least on average for half an hour every working day. The wearing of the gloves gave off asbestos dust in the normal carrying out of the work. The gloves, from time to time, were worn close to the plaintiff's face and the intensity of the dust given off in the wearing of the gloves would probably be described as light and with some peak periods of at least moderate intensity on occasions when the gloves were near his face or he clapped his hands as was common practice amongst those wearing gloves or when he rubbed around his face. There were higher episodes of intensity of exposure also as the gloves got older.

(d) Blankets

625 Mr Parker submitted there was no evidence that after 1979 blankets contained asbestos. That submission is not correct. Mr Patten agreed that asbestos blankets were in use in 1979 (T934.16). Then Mr Gillespie's evidence was that after 1979 attempts were made to replace blankets. Presumably they were to be replaced because they contained asbestos. I find this to be the fact. Mr Gillespie's evidence then was that replacement attempts failed because the replacements did not protect against radiant heat and hot metal splash.

626 Mr Gillespie said that from his time in the blast furnace until the mid 1980s, the asbestos materials used in the blast furnace included blankets (Exhibit PX 21 [40]).

627 The blankets were for protection against radiant heat and metal splashes (Exhibit PX 21 [44]). The heat dried them out and they gave off dust.

628 In about 1979, efforts were being made to replace blankets (Exhibit PX 21 [50]). There were problems with the substitutes. They did not work against metal splashes and extreme radiant heat. Asbestos blankets continued to be used in the blast furnace department until about 1984 or 1985.

629 One of Mr Gillespie's jobs was to make sure stocks were kept up on the furnaces. That included blankets. He said you could see the fibres within the blankets, "the texture of it. It's not hard to tell asbestos materials" (T166.29). One of the items Mr Gillespie was attempting to remove was blankets. There would be no point in attempting to remove them if they were not asbestos.

630 Mr Gillespie was shown a photograph (Exhibit PX 19). It was taken in 1987 (T179.38). It showed a blanket draped over machinery. He identified it as Refrasil (T171.35). Back in 1979 to 1981, the work of that blanket was done by an asbestos blanket (T173.40). They were mainly to protect workers against heat (T173.42). They would be draped over the mud gun or taphole drill and even used as mattresses to lie on (T173.50). They gave off fibres and dust in handling them (T174.06). The dust could be seen in the air. Operators, including labourers, used blankets (T207.03-.08). They were commonly used on the cast house floor (T207.15).

631 Mr Warren possibly had a different version of events. He was "pretty sure" that when he left in March 1980, Fiberfrax blankets were being used (T961.09). That answer, however, was in the context of the blanket being used as gasket material. In answer to a question about gaskets, Mr Warren responded "but by the time I had left Newcastle, we had stopped using those gaskets well before the time I left Newcastle and we were using Fiberfrax blanket, because that worked" (T992.27).

632 It seems, therefore, that Mr Warren's evidence about blankets was related to their use not as blankets, but as gasket material. There is a significant difference. A blanket as a blanket was for protection against radiant heat and hot metal splash. Blanket as material for gaskets was as a seal or protection against pressure. It was the radiant heat and the hot metal splash that was the relevant issue in the blast furnace.

633 Mr Patten agreed that asbestos products were being used in the steelworks in 1979. The products included blankets.

634 Mr Parker referred me to a number of documents.

635 Exhibit DX 14, Tab 1 is the document of 1 September 1975 referring to the use of asbestos products in the defendant's operations. Blankets are referred to in the section "All Mechanical Shops".

636 Exhibit DX 3, 217 is the survey of 10 July 1979. It refers to fire blankets, but not to blankets otherwise. Yet again, this document is shown to be incomplete.

637 Exhibit DX 3, 430 is a document that refers to the plant survey. There is no mention of blankets. As indicated elsewhere, I do not find this document of any use.

638 The continued use of asbestos blankets in 1979 in my view is more consistent with Mr Gillespie's account of the blankets being asbestos blankets in 1979 and attempts being made to find a substitute sometime after the edict of 25 July 1979. His evidence as to the difficulties encountered in the use of substitutes and the continued use of asbestos blankets thereafter is compelling. This is another instance where the identity of the product as asbestos by Mr Gillespie is not necessary for a conclusion that the product was asbestos, though I do accept his evidence on this. The fact is asbestos blankets were in place. In the latter half of 1979, substitutes were trialled. There were problems with the substitutes. The defendant had to revert to what had been used before, namely the asbestos blankets. There cannot be any doubt that the blankets were asbestos blankets. Mr Patten says so, the company was seeking to replace them. The reason it was seeking to replace them was that they were asbestos.

639 Mr Gillespie says that the blankets were commonly used on the cast house floor. They were handled by the labourers. There is no specificity in the oral evidence about the time involved in exposure to these blankets. In Exhibit PX 22, Annexure A, Mr Gillespie estimates that they were handled 180 times a month between 40 labourers. In view of the work that they had to do and Mr Gillespie's evidence that they were commonly used on the cast house floor, that seems a reasonable assessment, if not an underestimate. I am not so sure about his estimate of one hour's duration in the task. At all events, it is clear that the plaintiff was handling blankets at least once a week and sometimes more. He was exposed to asbestos dust and fibre given off by the blankets when he handled them. I am not allowing in my assessment here for the fact that workers commonly used the blankets as mattresses to lie on. It may well be that the plaintiff did so. That, however, is not an activity that was an essential part of the work. It is not one that was necessarily engaged in by all the crew. In the absence of evidence, other than the plaintiff's, specific to this, I am not prepared to find that he used the blankets as a mattress to lie on.

640 Insofar as the intensity of his exposure to asbestos from blankets is concerned, if it can be described at all, it might be described as in the upper range of light exposure. Handling the blankets gave off fibres and dust and dust could be seen in the air. Mr Warren agreed that the blankets that were used as blankets gave off dust (T994.34).

(e) Cleaning

641 The plaintiff was involved in cleaning. There were numerous instances of the plaintiff having to clean up.

642 Mr Gillespie said that labourers cleaned around the blast furnace floor. They did so using brooms, water and sometimes compressed air (Exhibit PX 21 [35]). Clean up included the dust from new and old rope in the changing of the cooling blocks (Exhibit PX 21 [43]). Clean up also included cleaning up after repairs on the taphole drill hoses, using broom and compressed air or water (Exhibit PX 21 [49]). Compressed air on this work was common in the 1970s. It was phased out in the early 1980s (T225.46). Mr Gillespie said the labourers would clean up around the furnace two times per shift (T192.06). They would normally hose down (T192.10). It took about half to three quarters of an hour each time (T192.13). The use of compressed air was frowned on (T222.02). Mr Gillespie tried to enforce the ban (T224.23). He did not see it being used often.

643 There is evidence about more prominent use of compressed air from Messrs Bates, Turnbull and Parker. They all corroborated the use of compressed air.

644 Mr Bates said that compressed air was often used in cleaning up then followed up by water (T248.11). One had to be careful with water in the blast furnace. Compressed air was reasonably common (T248.18). He agreed that he would not expose his men to risks (T252.13). He agreed that compressed air was hazardous.

645 Mr Turnbull said that compressed air was normally used and it was used right up until 1983 (T323.33). After the changing of hoses on the taphole drill, clean up was undertaken by the labourers. They simply picked up the old material and threw it in a scrap bin. The other stuff was then blown away with compressed air (T328-9). Before it was cleaned away, it was often walked on and that created dust (T329.11).

646 Mr Parker described the use of lances being attached to the compressed air hoses (T430.39). He thought compressed air was used in the blast furnace department, probably on a daily basis and this was through until mid 1980s (T435.46).

647 I accept that cleaning up was a regular part of the work of the labourers, including the plaintiff, in the blast furnace. I consider the plaintiff undertook this work probably twice a day. I accept that compressed air was used by the labourers including the plaintiff. It is difficult to know the extent to which it was used. Messrs Bates, Turnbull and Parker put its use at a considerable greater frequency than did Mr Gillespie. Mr Gillespie thought that water was used more often. I consider it is likely that cleaning up using compressed air or a broom was at least a weekly occurrence and probably more often.

648 I find that the plaintiff was exposed to asbestos in the work of changing the cooling blocks and cleaning up after the changing of cooling blocks. It is almost inevitable that if compressed air was used in the changing of cooling blocks, it was used in the clean up after as it would be nearby and handy. I reject the submission that it would not be used on mesh walkways. They would be ideal surfaces on which to use it. I do not include here the use of compressed air in the changing of the cooling blocks. That has been accounted for in the section dealing with the cooling blocks. The plaintiff was also exposed to asbestos in the work of cleaning up around the taphole drill hoses in the daily cleaning. That involved asbestos dust on a daily basis from the dust and fibre coming off the taphole drill on the change of drill and in the normal operation of the drill. It also involved exposure to asbestos when it was liberated on a change of hoses and became part of the general clean up. Asbestos dust emanating from the other work processes I have described was also caught up in the daily, often twice daily, clean up undertaken by the plaintiff.

649 The use of a broom created dust exposing the plaintiff to a light to moderate intensity of exposure and the use of compressed air increased that intensity.

(f) Daily change of clothes

650 All the processes that the plaintiff worked on resulted in asbestos dust and fibre getting on his clothing. Undoubtedly other dust did too. It was inevitable, however, at the end of each day and at the beginning of most days, that he changed his clothes which were impregnated with asbestos dust and in the process released dust including asbestos dust into the atmosphere around him as he was changing. It is inevitable that this was a daily occurrence so far as asbestos dust was concerned. The quantification of this exposure is not possible. Mr Rogers said that this could be of high intensity for a short period or it could be of less intensity (T869.34).

N. Was the plaintiff's injury reasonably foreseeable?

651 One enquiry raised by this question concerns the defendant's actual knowledge of the risks of exposure to asbestos in the period 1979 to 1981 and also the knowledge it ought to have had in that period.

(a) The defendant's actual knowledge

652 I do not understand South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1 to govern this case. The defendant submitted that it was only Mr Stuart, the superintendent of employment, safety and health services or his subordinates whose knowledge is relevant. I reject the submission. The defendant might have structured "line" responsibility, but it cannot structure itself by "lines" to avoid legal responsibility. The fact is safety was exclusively under Mr Bryon's department (T897.50) and Mr Bryon was head of the department. Further, Mr Bryon reported to Mr Harden, the general manager (T880.44). Further, it beggars belief that Mr Bryon, in charge of safety, would not communicate significant matters to Mr Stuart. Further, the submission was that it was Mr Stuart and his subordinates whose knowledge mattered because Mr Stuart was in charge of assessing the risk and deciding what response, if any, there should be to the risk. If the defendant put Mr Stuart in that position, then it was incumbent on it to give him the knowledge he needed to assess the risk and make his decision. Otherwise, he would be operating in ignorance. If the defendant had knowledge through Mr Stuart's superiors, it needed to give it to him. In my view, Mr Bryon's knowledge was the defendant's knowledge.

653 I was directed to Mr Stuart's view expressed in a newspaper publication of the defendant (Exhibit DX 14, Tab 3). I do not find that helpful. If it is to be inferred that Mr Stuart's knowledge is contained in statements in that publication, the facts in those statements do not match the circumstances in the blast furnace department. Nor is there any indication there about what he knew at all concerning published material or received learning on the risks related to asbestos exposure. The only illness he referred to was asbestosis. Further, the statement attributed to him is a statement of his view, not a statement of his actual knowledge of the information that formed that view. It is not the person's view that determines foreseeability. Foreseeability is determined by the standard of the reasonable man and ultimately that is a matter for the courts.

654 In light of this, it is not necessary to look at the knowledge Mr Threadgate.

655 From 1978, Mr Bryon knew that:

• asbestos dust posed health risks to humans;

• its inhalation could cause cancer and mesothelioma;

• the probability of risk was extremely low with exposure below a certain level;

• there was some risk of getting cancer and mesothelioma and there was not any safe level so far as those diseases were concerned;

• mesothelioma could be caused by short or intermittent exposure;

• as long as there was any asbestos dust in the breathing environment, there was some risk of injury (T913.41-T914.23).

656 The defendant had a number of documents that bear on its knowledge.

657 In a report apparently dated 23 December 1968, Dr Wilson, the chief health officer of South Australia, wrote,

At the present time the relationship between exposure to asbestos dust and mesothelioma is not so clearly defined as that between exposure and asbestosis. Prior to 1960 when the association between asbestos dust and mesothelioma was first noted in South Africa, this tumor was so rare as to be considered a medical oddity. They are still rare, the total reported up to 1966 was only about 500 in all parts of the world. Evidence from several countries suggests that exposure to crocidolite may be of particular importance in this condition. No authenticated case of mesothelioma following exposure to the dust of the other types of asbestos has yet been reported, but extensive research is currently being conducted overseas to confirm this. There have been reports of mesotheliomata occurring in people exposed for relatively short periods, or exposed to asbestos dust in a non-occupational environment.

(Exhibit PX 41, Tab 188.9I, p 87)

658 This report was sent to the defendant at Whyalla on 15 January 1969 (Exhibit PX 41 Tab 188.9B). The acting general manager acted on that report by writing to Bells Thermolag Pty Limited, presumably contract laggers to the defendant at that time, on 23 January 1969. He requested particular precautions be taken when lagging operations were undertaken.

659 The defendant had in its possession an undated letter and report from Dr Rathus (Exhibit PX 41, Tab 188.10). There does not seem to be any issue that it predated the events in issue in this case. Dr Rathus was the director of industrial medicine of the Department of Health in Queensland. The document included the following:

What has made the problem more serious has been the discovery recently of an association between exposure to asbestos and the development of a fatal tumour of the lining of the lungs known as "Mesothelioma". There seems to be a direct association between exposure to asbestos and this tumour which is invariably fatal.

...

The point about the tumour of which we are getting more and more information, is that it occurs many years after the exposure to asbestos but the association seems incontrovertible in most cases.

... inhalation of asbestos fibre must be made as small as possible for all those exposed and attention has been directed towards protection of asbestos workers at all phases from the mining of the ore, through the milling and processing to the ultimate use of asbestos fibre by the various industries.

...

It should also be realised that men not directly connected with the work may be involved with asbestos exposure, such as labourers and cleaners who follow the job and sweep up the spent fibre. These men must also wear masks and if possible the waste asbestos should be wetted before sweeping. Again the absolute answer if of course an industrial vacuum cleaner which should be used where possible though it is realised it is impractical in some situations.

(Exhibit PX 41, Tab 188.10, pp 48 and 50)

660 In September 1975, the defendant's medical officer at Whyalla, Dr McGill wrote a paper (Exhibit PX 41 Tab 188.21C). It was entitled "PRELIMINARY REPORT INTO CURRENT SITUATION OF ASBESTOS HAZARD, INCIDENCE AND CONTROL". It included the following.

ASBESTOSIS - DEFINITION AND GENERAL REMARKS

...

... its strength is also its weakness and this very indestructibility makes it hazardous to the respiratory system of all who work with it, in whatever form.

Whether crocidolite, chrysotile, anthophyllite or tremolite, or as talc, asbestos can and does produce deleterious effects on the lungs which can result in either - disabling pulmonary fibrosis (i.e. classical asbestosis) or in pleural plaques or mesothelioma...

The overall risk of death from respiratory disease in patients affected by asbestos is of the order of 70% - whether that be from obstructive fibrosis or from malignant tumor.

Case Histories of Patients, processes, and whole mines (e.g. Wittenoom Gorge, W.A. 1960) have shown beyond doubt the substantially increased risk of carcinogenesis by any of the dusts inhaled from asbestos, or asbestos containing substances.

(The emphasis is included in the original)

...

CLINICAL DATA

1. Asbestosis or malignant respiratory carcinoma may result from slight, transient contact with asbestos fibres in the air and is not confined to workers in the so-called "asbestos industries". (It has been known to occur in women who launder their husbands' clothes, or in residents near a mine or factory).

2. Any compound, textile, powder, paint or contamination dust with 5% or over of asbestos content is particularly suspect ...

PRESENT PROBLEMS

These are twofold: People and Processes.

People

A. ...

B. ...

C. All areas in which the known or suspected cases have, or are, working will have possible cases, as yet undetected and asymptomatic.

D. All areas where we know we use asbestos-containing materials will have possible cases, as yet undetected and asymptomatic.

...

POSSIBLE "FIRST-AID" MEDICAL SOLUTIONS FOR EARLY IMPLEMENTATION

...

3. Find out as soon as possible, without waiting for survey results, of all areas known to use frank asbestos containing substances e.g. asbestos blankets used by boilermakers, gloves used by so many and reconditioned in Safety Reconditioning Department, use of asbestos mats, lagging and insulations ...

661 In February 1978, Dr Francis delivered a paper to the Second Australian Pneumoconiosis Conference in Sydney (Exhibit PX 31 Tab 4). Mr Stuart attended that conference. In that paper, she wrote,

A long term, time weighted average concentration standard, which is well suited to pneumoconioses producing dusts, is inappropriate for a carcinogenic dust.

(pE.2.6)

662 An undated document from the Central Engineering Division of the Construction Department is a discussion paper on the safe handling of asbestos (Exhibit PX 41 Tab 167). Though undated, it does have a date of 22 February 1979 apparently written on it later. It notes that studies have shown an association between asbestos and mesothelioma. It quotes a source to the effect that it is not possible to assess whether there is a level of exposure below which an increased risk would not occur. It sources the reference to the World Health Organisation International Agency for Research on Cancer.

663 The defendant's survey of asbestos in use at Newcastle in July 1979 states,

"in recent years, more and more evidence has been produced to show that exposure to asbestos dusts can constitute a very serious health hazard".

(Exhibit DX 3, 208)

664 On 1 November 1979, the superintendent of safety and health services of the defendant's Whyalla premises, sent a memorandum to the Manager, Engineering with copies to others (Exhibit PX 41 Tab 188.44). It included the following:

In recent discussions with the Health Commission, it is obvious that they now approach the subject from the view that any exposure levels are to be considered unsafe and that precautions that were formerly restricted to situations of high exposure may now have to be adopted in low exposure situations.

665 A paper by David Goddard of the Victorian Health Commission was published in the Australian Safety News in November / December 1979. It was held by the defendant. It included,

Setting the "standard of acceptable exposure"

Standards set by Government Authorities will stop most but not all sickness from work. However, since prevention is essential with cancer, the standard for substances that can cause cancer must be very tight. Because the effects of low doses of asbestos dust are somewhat uncertain, the assessment of risk and therefore the setting of a standard is, to that extent, also uncertain. Faced with this, the World Health Organisation's International Agency for Research on Cancer, in evaluating asbestos, stated that:

"At present, it is not possible to assess whether there is a level of exposure below which an increased risk of cancer would not occur".

This means not that there is no acceptable level for asbestos, but that the evidence is not strong enough to confidently establish this level.

(Exhibit PX 31, Tab 3) (The emphasis is included in the original.)

666 A bundle of selected written evidence submitted to the Advisory Committee on Asbestos in the United Kingdom from 1976 to 1977 was admitted into evidence (Exhibit DX 10). It was in the possession of the defendant by the time of the events the subject of these proceedings (T105.29-.33). It included the following:

Mesotheliomas have been reported from very low exposures to asbestos - living within a mile of an asbestos factory, living near a ship yard, relative working at an asbestos factory, sawing up asbestos sheets for a day, etc.

(p48) (The emphasis is included in the original.)

667 The document also included criticism of the safety standard for exposure to asbestos at pages 49 - 50. It went on to add:

... the committee have a duty to warn all people exposed to asbestos that there is no safe level of exposure to asbestos dust.

(p50) (The emphasis is included in the original)

668 There was also a number of documents internal to the defendant's Newcastle operations that revealed a knowledge of health risks associated with asbestos and precautions that should be taken, for example, Exhibit DX 3, 65.

669 These documents and Mr Bryon's knowledge establish that the defendant knew:

• the matters set out in paragraph 655;

• exposure to asbestos could cause mesothelioma;

• the exposure could be for short periods and to low levels

• the disease occurs many years after the exposure;

• the association between exposure and the disease was incontrovertible;

• persons not directly involved with exposure could contract the disease, for example, labourers, cleaners, persons sawing asbestos sheets for a day, persons living within a mile of an asbestos factory or living near a shipyard;

• malignant respiratory carcinoma may result from slight transient contact with asbestos fibres in the air;

• any compound, textile, powder, paint or contamination dust with five percent or over of asbestos content was particularly suspect. (The defendant's asbestos materials had between 64% and 90% with some minor irrelevant exceptions (Exhibit DX 3, 230));

• all areas where the defendant was using asbestos at Whyalla had potential cases of mesothelioma. This was not confined to lagging. It extended to the use of asbestos blankets, gloves and mats (p102 of Exhibit PX 41, Tab 188.21C);

• the World Health Organisation had stated that it was not possible to assess whether there was a level of exposure below which an increased risk of cancer would not occur;

• Dr Francis considered the safety standard was not suitable for cancer or mesothelioma;

• there was no known level of exposure that could be considered safe. The Health Commission of South Australia was approaching the matter on the basis that any exposure was considered to be unsafe;

• so long as there was asbestos dust in the working environment, there was a risk of mesothelioma.

670 In the light of the defendant's actual knowledge, it is not really necessary to examine the knowledge it ought to have had. However, I do so as I could be wrong in the conclusion I have reached as to its actual knowledge.

(b) Knowledge the defendant ought to have had

671 The plaintiff relied on material admitted into evidence under s25(3) of the Dust Diseases Tribunal Act 1989. It provides:

Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties.

672 The material tendered under this section is well trodden ground and the parties or their representatives are well familiar with it. I shall not trawl through all of it. I intend to confine myself to material referred to in submissions that I consider has some importance. This will involve skipping over a number of articles dealing with dusts generically and concentrating more on articles dealing with asbestos and mesothelioma in particular. This is not to say that those other articles do not have an importance. The ones I intend to refer to are more to the point.

673 Merewether wrote an article entitled "The Occurrence of Pulmonary Fibrosis and Other Pulmonary Affections in Asbestos Workers". It was published in the Journal of Industrial Hygiene in May 1930. It included the following at page 250:

With regard to the effect on the lungs of different varieties of asbestos, no evidence was found to indicate that any one of its varieties is more potent in producing fibrosis than the others, other factors such as concentration of dust, being equal. There is now no doubt, however, that both chrysotile and crocidolite will produce fibrosis; while the third, the comparatively newly discovered amosite, resembles crocidolite so closely in its chemical constitution, and in the characteristics of the dust, that there can be no reasonable doubt, also, with respect to it.

674 In a 1930 publication, published by His Majesty's Stationery Office, Merewether and Price wrote a report entitled "Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry". It included a description of asbestosis at page 9,

It is helpful to visualise fibrosis of the lungs as it occurs in asbestos workers as the slow growth of fibrous tissue (scar tissue) between the air cells of the lung wherever the inhaled dust comes to rest. While new fibrous tissue is being laid down like a spider's web, that deposited earlier gradually contracts. This fibrous tissue is not only useless as a substitute for the air cells, but with continued inhalation of the causative dust, by its invasion of new territory and consolidation of that already occupied, it gradually, and literally, strangles the essential tissues of the lungs.

675 Under the heading "Summary and Recommendations" at page 31, was included the following,

The appropriate methods for suppression of dust may only be fully determined when the harmful effects of comparatively low concentrations of asbestos dust are duly appreciated.

676 In November 1931, an article by Frederick Wilson was published in Safety Engineering (Exhibit PX 36, Tab 1.28). It was entitled "The Very Least an Employer Should Know About Dust and Fume Disease". It included the following,

Under best conditions it cannot help but be harmful to a degree, while under adverse conditions the shortening of life is almost inevitable. We do know, however, that breathing of dust under the following conditions is seriously harmful:

...

Asbestos and every operation in which it is used.

677 In 1942, W C Hueper published a text "Occupational Tumours and Allied Diseases" (Exhibit PX 36, Tab 1.54). At page 404, it stated, "There is an incidence of lung cancer and asbestosis of the lung which is definitely excessive".

678 In 1947 in the British Journal of Cancer, an article was published by E. L. & N. M. Kennaway. In the summary, it included,

Cases of cancer of the lung have occurred in some occupations involving exposure to asbestos.

... In the death certificates examined, and in the Reports of the Chief Inspector of Factories, no occupations involving exposure to any kind of dust, except those concerned with asbestos, arsenic and nickel, which employ very small numbers, have been found in which there might be an increased incidence of cancer of the lung.

(Exhibit PX 36 Tab 1.62)

679 In 1948, Dr Smith the Director-General of Public Health in New South Wales in a report stated,

To reduce the loss of heat from molten metal held in a crucible, one firm covered it with a layer of coarse asbestos, the finer particles of which spread throughout the building when it was shovelled onto the metal. The exposure to asbestos was intermittent and of short duration, about five minutes at each pouring, and, as at the time, asbestos was only being used two or three times a week, the dust hazard was considered to be small. However, in view of the dangers associated with asbestos dust it was advised a substitute such as magnesia... should be used.

(Exhibit PX 36 Tab 1.65)

680 In 1949, an editorial in the Journal of the American Medical Association stated the causal relation was supported between asbestosis and cancer (Exhibit PX 36 Tab 1.67).

681 In 1953, A. I. G. McLaughlin wrote an article published in The Lancet. It included,

... Individuals, too, vary greatly in their capacity to deal with dusts, and of two men who have been working at the same job, for the same length of time one may get a disease of the lung and the other may be unaffected. This is one reason why I am not greatly impressed by the validity of what are known as the maximum allowable concentrations of dusts (M.A.C.), of which lists have been drawn up in various countries. The M.A.C.s seem to be based on the assumption that man is a standardised machine, which clearly he is not. The reasons for the differences in individual reaction to dust are not accurately known, but it is likely that they depend on anatomical, physiological and biochemical variations from one person to another.

(Exhibit PX 36, Tab 1.74, p52)

682 On 10 July 1956, in a Melbourne journal, Manufacturing and Management, an editorial staff article included,

People prone to the disease are those handling asbestos in its raw state or processing it to make lagging materials; also operatives sawing and cutting any finished product containing asbestos such as brake linings, asbestos sheeting and various insulation materials. Dismantling old lagging is a hazardous occupation.

Once established, asbestosis constitutes a grave threat to life and health. Symptoms are shortness of breath, tightness and pain in the chest, together with loss of energy and tiredness.

(Exhibit PX 36, Tab 1.80, p21)

683 In 1957, Dr Thomas wrote an article in the Medical Journal of Australia. He stated,

The following occupations are involved: handling the substance in its raw state; grinding the substance prior to its use in some process; mixing with diatomaceous earth or kaolin to form lagging materials; sawing, cutting and finishing any product containing asbestos - for example, brake linings, asbestos sheeting and various insulating materials; tearing down old lagging - this is a very dangerous process, even in the open air; spraying asbestos on walls and ceilings as an insulator.

(Exhibit PX 36, Tab 1.83, p76)

684 In 1960, the paper of Wagner & Ors was published in the British Journal of Industrial Medicine. It included,

This hypothesis could not be supported at once from the original histories obtained from the patients, for they included housewives, domestic servants, cattle herders, farmers, a water bailiff, an insurance agent, and an accountant, none of whom were working on the asbestos mines at the time. We therefore undertook a detailed investigation of their past occupation and place of residence, and the association with asbestos exposure was discovered... In only one case do the relatives deny that the patient ever visited the asbestos mines or was exposed to asbestos.

(Exhibit PX 36, Tab 1.88, p260)

685 In 1960, an article published in the British Medical Journal included,

Carcinoma of the lung is a serious and well-recognized complication in asbestosis. Its frequency in asbestosis is difficult to determine for it is now a common condition in the general population. Moreover, exposure to asbestos may have occurred many years before the cancer develops. Nevertheless, the paper by Doll (Doll, R., Brit. J. Industr. Med., 1955, 12,81.) makes it fairly clear that a patient with asbestosis has a risk about 10 times that of the general population of getting carcinoma of the lung. Another hazard is mesothelioma of the pleura. This rather rare tumour may draw attention to the fact that a patient has worked in asbestos dust.

...

Nevertheless asbestos dust is most toxic and the amount needed to cause asbestosis is not known so constant vigilance and new preventative measures are needed if this disease is to be abolished.

(Exhibit PX 36, Tab 1.89, p1351

686 In 1965 the British Journal of Industrial Medicine published an article by Newhouse and Thompson (Exhibit PX 36, Tab 1.93). Eighty-three patients with confirmed mesothelioma were studied for possible exposure to asbestos. The article included the following,

In 76 of the series full occupational and residential histories were obtained. Forty (526%) gave a history of occupational or domestic (living in the same house as an asbestos worker) exposure to asbestos ... There was also evidence that neighbourhood exposures may be important. Among those with no evidence of occupational or domestic exposures, 306% of the mesothelioma patients and 76% of the in-patients with other diseases lived within half a mile of an asbestos factory...

Domestic Exposures. - The group of nine, seven women and two men, whose relatives worked with asbestos, are of particular interest. The most usual history was that of the wife who washed her husband's dungarees or work clothes. In one instance a relative said that the husband, a docker, came home 'white with asbestos' every evening for three or four years and his wife brushed him down. The two men in this group, when boys of 8 or 9 years old, had sisters who were working at an asbestos factory. One of these girls worked as a spinner from 1925 to 1936. In 1946 she died of asbestosis. The press report of the inquest states: 'She used to return home from work with dust on her clothes'. Her brother had apparently no other exposure to asbestos... He died in 1956 of a pleural mesothelioma.

...

There seems little doubt that the risk of mesothelioma may arise from both occupational and domestic exposures to asbestos.

687 In 1965, an article was published in the British Journal of Industrial Medicine (Exhibit PX 36, Tab 1.94). It was entitled "Report and Recommendations of the Working Group on Asbestos and Cancer". The article stated,

Present evidence indicates that the associated carcinoma of the lung is not limited to exposure to any one type of asbestos fibre. However, further investigations are urgently needed to establish whether the degree of risk is importantly related to the type of fibre inhaled.

In the case of mesotheliomata, evidence from several countries suggests that exposure to crocidolite may be of particular importance, but it cannot be concluded that only this type of fibre is concerned with these tumours, and further investigation of this problem is needed.

...

These findings, when considered in relation to the great increase in the use of asbestos for many purposes in all countries, suggest that a more serious and widespread hazard from exposure to asbestos dust may exist than is widely appreciated.

688 In 1964, an article by Dr Selikoff was published in the Journal of the American Journal Association. It included,

Environmental Asbestos Exposure. - The recent demonstration, by South African and British investigators of pleural and peritoneal neoplasms among individuals who had chance environmental exposure to asbestos many years before raises the very important question of possible widespread carcinogenic air pollution. The possibility of environmental exposure has long been known. Soon after the initial clarification of asbestosis as a clinic entity, Haddow demonstrated asbestos bodies in a man not employed in the industry but living next door to an asbestos factory. This finding was later mirrored in the finding of chronic beryllium disease among residents of a community near a beryllium factory. What is new, however, is an appreciation of the potential extent of the problem. Thomson and associates have reported the frequent findings of asbestos bodies in the lungs of urban dwellers. Among 6,312 individuals x-rayed in an area about an asbestos mine in Finland, Kiviluoto found 499 cases of pleural calcification of the type characteristically seen among asbestos workers, without obvious cause. In a comparable area without any asbestos mine, no cases were found among 7,101 persons x-rayed. It should be noted that these were not people who worked in the mine - none did - but, rather, were farmers, housewives, and others who lived in the general location.

(Exhibit PX 36, Tab 1.91, p26)

689 In 1965, an article by Dr Selikoff was published in the New England Journal of Medicine. The article included the following,

Ten deaths from mesothelioma among 307 consecutive deaths is an extraordinarily high rate and permits the conclusion that this disease is an important complication of asbestos exposure. This conclusion, moreover, refers to such exposure in the United States, under working conditions of the recent past, with relatively light and intermittent asbestos exposure. It indicates too, that mesothelioma may not necessarily be entirely a problem of only one kind of asbestos (crocidolite) and that it is surely not limited to South Africa.

(page 563)

In another case we found asbestos fibers in the lung of a man who died of pleural mesothelioma and who had worked in a dry-cleaning plant as a "spotter". This observation calls to mind the finding of asbestos bodies and fibers in the sputum of people employed in a dry-cleaning works in South Africa in an area 100 miles away from the nearest mine, ... as well as cases of berylliosis caused by handling contaminated work clothes... These examples of indirect occupational exposure and community exposure raise the important question whether mesothelioma will be found to be a community problem in addition to that existing with industrial exposure to asbestos.

(page 565)

(Exhibit PX 36, Tab 1.95)

690 In 1967, an article was published in the British Medical Journal. It included the following,

Two aspects of the asbestos-mesothelioma association are very disturbing. In some cases extremely short exposures have been reported. There is also growing evidence that residents in asbestos mining or manufacturing districts and those at risk by the brushing and washing of contaminated working clothes can develop mesenchymal tumours or the bizarre pleural fibrosis and calcifications which seem to be associated with exposure to asbestos.

(Exhibit PX 36, Tab 1.96, p63)

691 In 1968, an article by R. H. Mortimer and C. B. Campbell was published in the Medical Journal of Australia (Exhibit PX 36, Tab 1.97). The opening sentence was "The association of pleural mesothelioma with asbestos exposure is now widely recognized" (p720). Just before the summary, it added,

These facts support the suggestions of Jacob and Anspach (1965) that the incidence of pleural neoplasms may be increased in people with relatively little asbestos exposure and insignificant respiratory insufficiency. They considered that people with heavy asbestos exposure develop severe pulmonary fibrosis and cor pulmonale, and do not live long enough to develop neoplasms.

Development of mesotheliomas after minor asbestos exposure has recently caused widespread concern (Leading Article, 1967a, b). The industrial applications of asbestos are increasing, and exposure is becoming more widespread. The incidence of this neoplasm is already rising, and prevention of further cases is a public health problem of some magnitude (Elmes, 1966).

692 In 1974, the British Journal of Industrial Medicine published an article by M. Greenberg and T. A. Lloyd Davies (Exhibit PX 36, Tab 1.98). The article presented results of investigations of cases notified to the Mesothelioma Register from England, Scotland and Wales for the years 1967 and 1968. 413 cases had been notified, but not all were confirmed as mesothelioma cases. In any event, 13 cases of definite mesotheliomas were of "Neighbourhood, domestic or hobby" exposure (p95). The penultimate paragraph read,

In this study the briefest occupational exposure to asbestos associated with a mesothelial tumour was three weeks, but if asbestos was a cause of mesothelioma it cannot be assumed that lesser exposures are safe.

693 In 1976, Dr Becklake's article was published in the American Review of Respiratory Disease (Exhibit PX 36, Tab 1.99). At page 189 is a graph. It is really self-explanatory. It might beg the question, "recognised by whom?", but it shows the association of mesothelioma and asbestos as being recognised as suspected from about 1940 until the late 1950s, then probable until early 1960s and then established.

694 The question "recognised by whom?" surely cannot be asked by the defendant. This ties in with the defendant's submission that it was under no obligation to have acquired any of this information.

695 Mr Parker called in aid what Ipp JA said in McPherson's Ltd v Eaton & Ors (2005) 65 NSWLR 187, especially at [101]. The cases are different. That case concerned a retailer:

• with no actual knowledge of the dangers of asbestos;

• whose sale of asbestos products comprised less than one percent of its products sold; and

• where millboard was to be cut by its purchaser or somebody else down the line.

696 BHP was one of the biggest companies in Australia. It had offices and operations throughout Australia and overseas. It employed safety officers, chemists, engineers and medical officers. It was employing 11,500 employees at its Newcastle steelworks. About 50 of them worked in the blast furnace department. Others worked in departments that used or had used asbestos. It also employed or had employed employees in significant numbers in other parts of Australia where the employees worked in conditions where they were exposed to asbestos. It knew it had in place a product that was potentially lethal. It knew it was exposing its workforce to that product. It was going through the process of phasing out its use. It was doing so for health reasons. It had resources available to it to enable it to obtain the literature I have referred to. It had a safety officer with a duty, within its Newcastle operations, to keep abreast of matters affecting industrial hygiene. There was no excuse for it, in these circumstances, not to be fully up to date with the available literature on the learning as to the risks associated with the use of asbestos. To say it had no duty to seek out the information that would have been readily available to it offends common sense. In my view, the defendant, as large as it was and employing many workers exposed to or potentially exposed to asbestos, as it did, and knowing that exposure could be fatal, was under an obligation to find information that would inform it on this subject matter.

697 The defendant submits that it has not been shown that these articles would have come to its attention. I reject that submission. The defendant had ample resources to utilise to ascertain this information. It had its own resources. It could also have used external resources.

698 At one stage, the defendant's position on this took on air divorced from reality. The following question was put,

That is so in relation in particular to the publication by Eva(?) Francis(?) which was the subject of some questions before the adjournment. Let me suggest, that publication was there, but you are not saying that an occupational hygienist of reasonable competence advising BHP in relation to this matter between 79 and 81 would necessarily have found or would have found it necessary to embark on a chain of inquiry which would have led him or her to that publication, agreed?

(T760.11-.15)

699 Mr Kottek ultimately agreed that the occupational hygienist might not have found this publication. This case is not about the competence of an occupational hygienist. It is about an employer's duty to its employee and the defendant was in actual possession of the document, the subject of the question.

700 In relation to other documents, it is to be noted that some are publications I have referred to are almost household names, for example, The Lancet. One would expect that all the others would be known to engineers, scientists and medical practitioners employed by the defendant.

701 The information I have set out would have come to the attention of the defendant had it undertaken the appropriate research and enquiries.

702 The defendant submits that the only document that informs this debate is the standard. This is because there is expert evidence that it represents the scientific consensus of the time.

703 The defendant's submission as to the standard was directed mainly to breach of duty, but it has a relevance to foreseeability. The point is if the standard is the definitive document, no other document can inform on foreseeability.

704 The defendant's submission about the standard was extensive. The nub of it can be found in a passage of Lord Dyson JSC in Baker v Quantum Clothing Group Ltd [2011] 1 WLR 1003. At [101], he said

There is no rule of law that a relevant code of practice or other official or regulatory instrument necessarily sets the standard of care for the purpose of the tort of negligence. The classic statements by Swanwick J in the Stokes case [1968] 1 WLR 1776 and Mustill J in Thompson v smiths Shiprepairers (North Shields) Ltd [1984] QB 405 which have been quoted by Lord Mance JSC at paras 9 and 10 of his judgment remain good law. What they say about the relevance of the reasonable and prudent employer following a "recognised general practice" applies equally to following a code of practice which sets out practice that is officially required or recommended. Thus to follow a relevant code of practice or regulatory instrument will often afford a defence to a claim in negligence. But there are circumstances where it does not do so. For example, it may be shown that the code of practice or regulatory instrument is compromised because the standards that it requires have been lowered as a result of heavy lobbying by interested parties; or because it covers a field in which apathy and fatalism has prevailed amongst workers, trade unions, employers and legislators (see per Mustill J in the Thompson case at pp 419-420); or because the instrument has failed to keep abreast of the latest technology and scientific understanding. But no such circumstances exist here. The code was the result of careful work by an expert committee. As the judge said, at para 87, the guidance as to the maximum acceptable level was "official and clear". He was entitled to accept the evidence which led him to conclude that it remained the "touchstone of reasonable standards" for the average reasonable and prudent employer at least until the publication of the consultation paper on the 1986 draft directive (para 48).

705 I do not think this assists the defendant's case. Lord Dyson said there is no rule of law that a standard necessarily sets the standard of care. In what follows, he did not deviate from that. He said compliance with a standard will often afford a defence. These two propositions are not inconsistent. Whether compliance with a standard affords a defence depends. Once one gets to that point, the question is "depends on what?". The answer must be "on the circumstances". Lord Dyson set out some circumstances where compliance with the standard will not afford a defence. They are not exhaustive. They are prefaced by "For example".

706 Examples of situations where compliance with a standard do not afford a defence are to be found in Baker.

• Common sense or newer knowledge may dictate whether or not the standard is appropriate.

• What the employer knows or ought to know is relevant.

• An employer must keep reasonably abreast of developing knowledge and not be too slow to apply it.

[9]

707 Mr Parker submitted that there was no reason for the defendant to think there was something wrong with the standard. As sought to be read by the defendant, there was. He also submitted that a reasonably competent occupational hygienist would not have advised the defendant that its workers should have no exposure to asbestos. That is not the test.

708 Even if it were the test, what a reasonably competent occupational hygienist would have advised the defendant is not what this case is about. This is a case about whether the conduct of the defendant at the time did or did not come within reasonable standards of care for its employees and, in particular, the plaintiff.

709 What a reasonably competent occupational hygienist would have advised the defendant would depend on the level of competence of the occupational hygienist and what questions the defendant asked him. In this case, the defendant did not ask occupational hygienists anything. So what it would have been advised is speculative. However, as the defendant fought the case so vigorously on this point, I need to deal with it.

710 To say that an occupational hygienist could properly have advised the defendant that it could operate within the standard does not tell us that another competent occupational hygienist might have advised it that it was courting disaster if it proposed simply to comply with the standard.

711 The hypothetical occupational hygienist that the defendant relies on in this case would appear to be the minimally qualified one. At least that seemed to be the basis Mr Parker set for his questions (T744.43). If an employer was concerned about potential fatalities in its workforce, I would not think it reasonable that it should seek out a minimally qualified occupational hygienist for its advice.

712 If an employer wanted sound advice from an occupational hygienist, it would be incumbent on the employer to provide him with all the relevant facts. Those facts would encompass not simply the objective facts of a worker's conditions of potential exposure to asbestos, but also the knowledge it had at the time of potential health risks. At this point, the occupational hygienist would be informed precisely what work processes a worker such as the plaintiff might have to undertake and also what work processes other workers nearby might undertake. The occupational hygienist would also need to be informed of all asbestos materials in the workplace where there was potential for asbestos dust to be liberated in the breathing zone of workers. With the defendant's persistent denials of the presence of asbestos in the blast furnace, it seems unlikely that an occupational hygienist in 1979 would have been fully informed of these facts, but this is all speculative.

713 If the defendant were to seek information and advice from an occupational hygienist, it would need to tell the occupational hygienist what it already knew. It would need to tell the occupational hygienist that its state of knowledge was to the effect set out in paragraph 669. The statement of these matters shows just how hypothetical would be the view of an occupational hygienist. Indeed it shows there was no need to turn to an occupational hygienist.

714 In any event, I have not found the evidence of the occupational hygienists to be of much assistance in this case.

715 I am not impressed by the approach of Mr Rogers to what an occupational hygienist would have advised. His principle of occupational hygiene seemed to be underpinned by the "math". In many ways, the approach was a slavish adherence to the standard - see for example T711.41, T713.05, T671.28. The employer's duty is not to work out the "math". It is to act reasonably towards his employee.

716 One consequence of applying the "math", is that an employer could repetitively expose his employees to high levels of asbestos, even well in excess of the prescribed standard figure and do so with impunity so long as he provided enough breaks to bring the time-weighted average exposure level to below the standard figure. That might be "the principle of occupational hygiene" (T671.14), but it is not the principle that governs an employer's duty to his employee.

717 I had difficulty also in understanding how Mr Rogers's reasoning process applied in determining when safety measures should be taken. At one point, he agreed that it was appropriate that a substitute for asbestos be applied. The context was intermediate, short term exposure being about five minutes, two to three times per week (T705.26-.41). The explanation was that it was raw asbestos. The defendant's asbestos products contained about 75% asbestos and the plaintiff was exposed for periods well in excess of five minutes and was exposed daily. I have difficulty reconciling his different approach in these two situations. I have difficulty understanding how the "math" would put the intermediate, short exposure case in this paragraph in excess of the standard.

718 Another area where Mr Rogers's evidence was difficult to reconcile was the level of exposure when the worker changed his clothes at the end of the day. He hastened to qualify an answer by saying that exposure could only add a very small amount to a hypothetical monitored exposure (T869.06). Yet a little later, he said it could be like a wife shaking out her husband's clothes to wash them (T869.31). That would be high intensity exposure and he qualified that answer by saying "for a short period" (T869.38). Yet the wife shaking out the clothes was then known to be a potential mesothelioma victim and the worker, with potential to have the same exposure in the example postulated, gets out of his clothes every day. It seems to me that in his evaluation of risk, Mr Rogers is not giving due weight to some of the exposures. One could delve into this more and more, but the more one does, the more one departs from what this case is all about, namely an employer's duty to his employee, and turns it into a case concerning proper or prudent practice of occupational hygienists.

719 As to the standard the NHMRC itself, in its 1977 report, drew a distinction between mesothelioma and other asbestos caused diseases. It stated it was "not possible to specify a hygiene standard" at which the risk of cancer was removed and then noted "It is generally agreed that the minimum exposure needed to cause mesothelioma is considerably less than that required to cause other asbestos induced diseases" (Exhibit PX 32, Tab 3, p23, cl 11, cl 12). That hardly qualifies it, in accordance with the words of Lord Dyson, as a "guidance as to the maximum acceptable level (being) 'official and clear'." (Baker at [101]). Further, to the extent that the defendant seeks to rely on the standard, as something that was followed as accepted industry practice, there are two answers to that. The first is there was no evidence from the defendant that suggested that the standard had been accepted as industry practice. The second is that the evidence disclosed that the Health Commission of South Australia did not follow it.

720 All this demonstrates that the standard did not have a status that trumped all other information.

721 I make the following findings as to the learning of the dangers of asbestos that was available in 1979 and the defendant ought to have been aware of:

• the knowledge set out at paragraphs 655, 669;

• in the 1960s, the association between mesothelioma and asbestos was widely recognised;

• by 1965, the view was expressed that a more serious and widespread hazard from exposure to asbestos dust may exist than was widely appreciated;

• asbestos was toxic in sufficient quantities;

• toxic effects included asbestosis, cancer and mesothelioma;

• each of these diseases was known to be fatal or potentially fatal;

• the effects of exposure were not immediate and took many years to develop;

• there were cases of mesothelioma attributed to relatively, in some cases extremely, short, low level and transient exposures;

• there was no level that was known to be safe;

• individuals varied in their reactions to asbestos dust;

• doubts, if not outright rejection, were being expressed about the suitability of standards to deal with carcinogenic illness.

(c) Foreseeability of injury

722 In light of this material, I now address the question as to whether the injury to the plaintiff was reasonably foreseeable.

723 Foreseeability of the precise injury suffered is not required and nor is foreseeability of the precise mechanism of injury - Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, 402. The test of foreseeability does not require that the defendant have foreseen mesothelioma. It is sufficient for the defendant to have foreseen personal injury to the plaintiff. It does not matter in this case. I am satisfied that the defendant ought to have foreseen mesothelioma. This is so whether on the basis of the defendant's actual knowledge or on the basis of the knowledge it ought to have had. In my view, the result is inevitable on this information, so much so that it barely needs developing. However, I make a few observations.

724 Knowledge of the association between asbestos and mesothelioma was a developing thing. By the time the plaintiff started with the defendant, the association was established and widely recognised. It was not known if there was some safe level to which a person could be exposed. There was literature about low, even extremely low, levels of exposure causing mesothelioma. The literature was advising that no level could be assumed to be safe and the Health Commission of South Australia was proceeding on that basis. One of the consequences of exposure was death. This meant that though the risk might be classed as small, it was nevertheless real and its consequence was calamitous. The defendant knew that at Whyalla all workers exposed to asbestos were potential mesothelioma victims. Past history from the literature was available to inform the defendant that mesothelioma had occurred in cases of intermittent and of low levels of exposure and its own knowledge informed it that it could happen in the future from short or intermittent exposure.

725 A reasonably prudent employer in the position of the defendant would have realised that the long latency period between exposure and the contraction of the disease meant that it was likely that the final word was not yet in on how dangerous asbestos was.

726 In Julia Farr Services Inc v Hayes [2003] NSWCA 37, Giles JA reviewed a number of authorities on foreseeability, especially in the context of risk of injury from exposure to asbestos. At [125], he said,

The appellant did not seek leave to reargue these decisions. In my opinion, they are fatal to the appellant's submissions. Foreseeability can turn on knowledge of the dangers of any exposure to asbestos, including in the calculus for breach of duty, and is not confined to knowledge of the dangers of exposure to high levels of asbestos or levels of asbestos above any particular standard. (There are difficulties in using the standards in any event, but it is not necessary to go into that.) On the evidence before him, Maguire J did not err in his approach to foreseeability. Of course, the existence of an accepted standard may in the enquiry into breach of duty be material to the response of the reasonable man. But that is a different matter, and Maguire J's finding of breach of duty, even if thought a robust finding, is a finding of fact with which this Court can not be concerned ...

727 However one describes the degree of risk in this case, it could not be described at the time as far fetched or fanciful. To do so would be to make a mockery of the learning.

728 Mr Parker called in aid documentary material especially the "Statement on Health Hazards Associated with the Use of Asbestos in the Construction Industry". He referred especially to the following paragraph.

These hygienic standards are believed to prevent the earliest signs of the appearance of asbestosis in a normal working life time. In workplaces where asbestosis is controlled, the risk of asbestos induced lung cancer in smokers is minimised. No hygienic standard for mesothelioma induction has been determined, especially for crocidolite and the concentration of this mineral which could be dangerous to health might be very small.

729 This material does not deny the force of the information in the literature I have referred to. The conclusions I have drawn from that literature remain valid. It is in this context that one needs to ask what ought reasonably to have been foreseen by a person in the position of the defendant.

730 Mr Parker took me to a number of authorities. He relied on CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338. As Basten JA pointed out there, "a degree of care must be taken when transposing statements of principle from one case to another" [144]. This is so, but it does not advance the defendant's case. In terms of categorising cases, that was a case where the victim was a young child whose exposure was momentary domestic exposure. This case is one where the plaintiff and the class of persons to which he belonged were exposed on a repetitive basis in an industrial setting.

731 In developing his reasoning on foreseeability in CSR v Amaca, Basten JA said at [147], "There was no statement in evidence from any source in 1965, whether knowledgeable, responsible, authoritative or otherwise, to the effect that building products manufactured with a significant quantity of crocidolite involved a risk of harm in circumstances where they were broken, or disintegrated, causing dust and the release of loose fibres". Care needs to be taken in transposing that statement from a case of momentary domestic exposure from a building product to repetitive exposure in an industrial setting.

732 Here, the evidence discloses the material I have set out in dealing with the defendant's knowledge. What had to be established in CSR v Amaca was "some level of appreciation in September 1965 that use of blue asbestos in building products of the kind manufactured by Amaca (and in earlier years by the appellants) carried real risks for householders". That is a different test to what needs to be established in this case. Significant differences include the relationship of employer and employee, the exposure of the employee in an industrial setting and the recurrent exposure of the employee. Then the test is to be applied with the state of knowledge in the period 1979 to 1981 and not the state of knowledge in 1965.

733 One point made in CSR v Amaca relating to the care that needs to be taken in the application of the learning in the literature to the case in hand concerned the applicability of that literature to cases of light exposure in a domestic setting. The literature did not contemplate such cases as was Mrs Dunn's exposure in that case. She was exposed briefly on a few occasions when she was three and four years old. Allsop P commented in that case that the literature and other material at that time spoke about exposure in a context of "mining or industrial or other closely related environmental contact" [29]. That is not what this case is. In addition, the learning has moved forward from 1965 to 1979. By 1979, there was literature making the link between mesothelioma and:

• asbestos not necessarily being crocidolite;

• indirect occupational exposure;

• community exposure;

• extremely short exposures;

• washing and brushing of contaminated clothing;

• relatively little asbestos exposure;

• the briefest occupational exposure being three weeks with the observation that lesser exposures could not be assumed to be safe.

734 Mr Parker then submitted that the issue of reasonable foresight of injury in this case must be assessed in the defendant's favour because the risk had not been quantified. The sufficient answer to that, in my view, is that it does not have to be. Further, it is relevant to note here that one of the results of the risk coming home is death.

735 Mr Parker relied on the NHRMC standard as having been set by an authoritative group of people. He submitted the standard, having been set by that body, it would not be reasonable to say that an employer should look any further than the standard. The matters I have set out, especially the recurrent exposure of the plaintiff to asbestos and the defendant's state of actual and constructive knowledge demonstrate that that should not be accepted.

736 Further,

• whilst the evidence discloses that the defendant was aware of the standard, it does not show that it was aware of its being a document set by an authoritative group of people or that it relied on it for that reason;

• there is nothing in the evidence to suggest that the defendant had any awareness that what was set out in the standard was any more authoritative, if it was at all, than any other information it had;

• the defendant had actual knowledge of the risks to health posed by exposure to asbestos;

• the evidence satisfies me that the defendant did not rely on the standard at least in the blast furnace department as it did no atmospheric testing for asbestos in that department at or before the time the plaintiff was there to determine whether it complied with the standard;

• to the extent that there was any scientific consensus about the standard, there was no suggestion that there was one to the effect a worker could be exposed to asbestos without risk of injury. There was no suggestion that there was a consensus that a worker could work within the limits of the standard without risk of injury. There was a consensus that the exposure needed to cause mesothelioma was considerably less than that needed to cause asbestosis. There was a strong body of evidence that the standard was not appropriate for mesothelioma. That is not answered by saying that Dr Francis and others were not part of the authoritative group of people who set the standard. If that is the answer, the consensus is one confined to a small group of people;

• insofar as the defendant asserts that the standard set a measure that was adhered to in practice by industry participants, there is no evidence that was so and there was evidence that the Health Commission of South Australia was not proceeding on the basis of the standard or a so-called consensus. It was taking the approach that all exposure levels were unsafe.

737 In my view, there was a reasonably foreseeable risk of injury to the plaintiff in the circumstances of this case.

O. Breach of duty - Reasonably available practical alternative measures

738 The defendant submitted that there was no evidence that the standard was exceeded. Therefore, it submitted, it was not obliged to do any more than it was doing. I disagree. The defendant's submission was not put as a proposition of law, but as something that applied on the facts of this case.

739 Once it is acknowledged that this argument is not one of legal principle, but one dependent on the facts of the case, then it is necessary to examine the facts. When one does that in this case, one is led, in my view, to a conclusion that the defendant did breach its duty of care to the plaintiff.

740 In discussing foreseeability, I have already written enough as to why the standard does not govern this case. The same applies in considering breach.

741 In examining the facts of this case, I have to be careful in adopting statements from other cases. Mr Parker relied on Baker v Quantum. I have dealt with this case in considering foreseeability and do not need to add to that.

742 In Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449, the test for the appropriate approach to a standard is stated at 494 as,

Whether or not the NHMRC recommended that a warning be given was not determinative of the question of reasonable care, for to accept that proposition would permit the respondents to abrogate the duty of reasonable care owed by them. It is not the response of such a body which determines whether a person in the position of the respondents is or is not negligent. That is for the courts to decide. However, it is a relevant fact to be taken into account when determining whether reasonable care has been exercised.

743 Of significance for this case is that it is for the courts to decide whether or not a person "in the position of the defendant" is negligent. Relevant to that position is the defendant's knowledge, actual and constructive.

744 Mr Parker sought to distinguish BHP Billiton Limited v Parker [2012] SASCFC 73. The point of distinction was that in that case there was no evidence that the occupational health committee was set up to identify and establish a scientific consensus.

... There was no significant evidence about the state of qualified scientific opinion in Australia on the topic of risks to health from exposure to asbestos in the workplace. The significance of the NHMRC Standard is that it was the kind of document which one would expect an employer, or at least a large employer like BHP, to be aware of and to have regard. [84]

745 In my view, the significance of the standard was the same in this case. I have written earlier in these reasons (paragraph 736) about the so-called scientific consensus and expressed by my views about what consensus there was. Even if there was a scientific consensus in all relevant respects, that would not avail the defendant here. The defendant had a considerable amount of actual knowledge of the dangers of asbestos. There is no suggestion that it selected or relied on the standard because it was aware that it represented a scientific consensus or was any more authoritative than any other piece of knowledge it had. The defendant was aware of the standard and should have had regard to it. It should also have had regard to its own knowledge and the other material I have referred to.

746 The plaintiff relies in part on some of the s25(3) material. I do not need to be troubled by that as there is direct evidence relevant to this case as to practical alternative measures. Those measures were:

• respiratory protective device;

• warning and education

• vacuum cleaner;

• wetting down and ban on compressed air;

• atmospheric testing;

• laundering of clothing;

• sealing and disposal of waste.

747 I deal with each of these matters. In respect of these matters, in this case once it is determined that they are practical alternative measures that could have been adopted, there is nothing in the other matters that need to be considered (Wyong Shire Council v Shirt (1980) 146 CLR 40 [47-8]) in determining breach, that would lead to the view that these steps need not have been taken.

748 So far as practicability of each of these measures is concerned, one thing to note is that every one of them was suggested and recommended by the defendant. They can all be found in the defendant's documents.

(a) Respiratory protective device

749 Mr Gillespie said it was difficult to get people to wear respirators. They were told to wear them provided there was no other greater issue. One issue was thought to be heat stress (T222.02). He said they could not get enough air into their lungs (T224.42). That could not be an issue on the cooling blocks or in general cleaning up. It could only be an issue on the changing of the taphole drill. The evidence on that was that it was relatively short in time so the issue does not really arise there. There was no doubt about Mr Parker's attitude to masks. If his men were at risk he would have insisted on them wearing them.

750 Respiratory protective device could be in the form of an air line respirator or cartridge mask. Practical difficulties were raised in relation to the air line respirator especially by Mr Rogers. I do not accept his view on this. Mr Warren, had no problem with it at Newcastle (T1010.21). Both forms of respiratory protection were practical and would have been effective.

751 The defendant's duty in taking reasonable measures to provide a safe place of work and safe and proper equipment extends to taking reasonable measures to see that these matters are implemented - McLean v Tedman (1984) 155 CLR 306, 313. There was nothing to prevent the defendant insisting on the wearing of cartridge masks when tasks were being undertaken that liberated asbestos dust in the breathing zone of the plaintiff. It was compulsory and enforced for the carbon monoxide risk.

752 The reluctance of the workers to wear them no doubt would be influenced by what they knew. This is demonstrated by the fact that they did wear them and they were compulsory when there was a risk they could be exposed to carbon monoxide. Knowing that they could die if exposed to carbon monoxide was no doubt a powerful incentive to wear the masks. Knowing that they could die of mesothelioma also, no doubt, would be a powerful incentive to wear masks. This brings me to the warning and education point.

(b) Warning and education

753 A worker cannot be expected to make an informed decision about whether or not to wear a mask unless he is fully informed as to the risks of not wearing a mask. It is important that the worker be fully informed. This is common sense. If it needed evidence, Mr Rogers eventually said so (T677.13-.31). Whatever the worker needed to be told about the risks and degrees of risks of exposure to asbestos, one thing he needed to be told was that he was at risk of contracting an incurable disease that, if contracted, would prove fatal and probably within about 18 months of contracting it. He was told nothing.

754 The evidence as to the distribution of the various booklets and brochures was unsatisfactory. The only booklet that left Mr Bryon for printing was the green one. The evidence does not establish that it got any further than leaving Mr Bryon. There was no evidence that it got to any of the blast furnace supervisors or superintendents, much less was there any evidence that it or any of its contents got to the plaintiff. There was a stamp on the plaintiff's employment card. It reads " 'B.F. Safe Working Instructions and Gen. Gas Regulations' Handbooks Issued on 10.12.79", Exhibit DX 15, Tab 3. That is not a description that fits the green booklet. It looks more like documents relating to general safety such as safe lifting techniques. It is a stamp that would be appropriate for workers commencing at the Newcastle steelworks before 15 November 1979. That was the earliest date the green booklet could have been available (paragraph 489).

755 As a result of the failure to warn and educate and take steps to enforce the wearing of masks, the plaintiff was exposed to and inhaled asbestos dust in the processes I have outlined in paragraph 539. He was also deprived of the opportunity of choosing not to work in that environment. He did not like the dirty work environment. I accept that if he knew it was potentially fatal, he would probably have chosen not to work in it.

(c) Vacuum cleaner

756 A vacuum cleaner was a practical option. The defendant had one. The defendant recommended its use, see for example Exhibit DX 3, 71. It was used by the crew established by Mr Threadgate. There was no reason why it or another could not have been used in the cleaning processes in the blast furnace. One was introduced in the late 1980s. I do not accept Mr Rogers's evidence about impracticability. Nothing was put to the plaintiff's witnesses about impracticability. Mr Warren could have given evidence of impracticability and did not.

757 As a result of this failure, the plaintiff was exposed to and inhaled asbestos dust in the course of cleaning up and during the day when he breathed in asbestos dust that had become entrained in his clothing and on his person and likewise when he changed his clothes at the end of the day.

(d) Wetting down and ban on compressed air

758 There was a ban on compressed air. This was part of a sound system. Evidence by foremen or supervisors that they would not breach safety rules does not establish that compressed air was not being used. It was being used and it was being used to the knowledge of the foremen and supervisors. All of the witnesses called by the plaintiff on this issue held supervisory positions. Whilst they said they would enforce safety rules, they did not do so in practice. Corners were being cut. Convenience in doing the work is no excuse.

759 The plaintiff was simply working to what seemed to him to be the daily routine. There was a failure to implement what was a sound system. The defendant was responsible for that failure.

760 As a result of this failure, the plaintiff was exposed to and inhaled asbestos dust in the course of changing cooling blocks, cleaning up, during the day in inhaling asbestos dust that had become entrained in his clothing and on his person and likewise in changing his clothes each day.

(e) Atmospheric testing

761 Atmospheric testing was not done. The defendant had available equipment for this. The defendant was aware of the existence of the NHMRC standard and its content. It could not know whether or not it was complying with it without testing. It ought to have tested. Its failure to do so left it in a position of ignorance as to levels of asbestos the plaintiff was exposed to. Some exposures might have exceeded the standard for the duration of the task. In failing to test, the defendant effectively tied its own hands behind its back and accordingly did not find itself in a position to consider implementing and did not implement steps that should have been taken. This resulted in the plaintiff being exposed to asbestos in all the circumstances I have described.

(f) laundering of clothing, sealing and disposal of waste

762 These items I can deal with together. They were all implemented or available to be implemented by Mr Threadgate's crew. Further, there was a laundry at the steelworks in 1979 (paragraph 361). These steps could have been implemented in the blast furnace department. They were not. They should have been.

763 As a result of these failures, the plaintiff was exposed to and inhaled asbestos dust in changing his clothes at the end of each day. Unless he wore clean clothes each day he was again exposed when he dressed the next day and during his day of work from the asbestos entrained in his clothing. He was also exposed to asbestos waste that he cleaned up which should have been disposed of.

764 I find that the defendant was in breach of the duty of care that it owed the plaintiff.

P. Did the defendant's breaches of duty cause the plaintiff's mesothelioma?

765 Section 25B of the Dust Diseases Tribunal Act 1989 relevantly provides:

(1) Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.

766 In Booth v Amaca Pty Ltd and Amaba Pty Ltd [2010] NSWDDT 8, Curtis J stated:

62. Upon the facts in this case I specifically determine for the purpose of s25B that all exposures to chrysotile asbestos, other than trivial or de minimis exposure, occurring in a latency period of between 25 and 56 years, materially contributes to the cause of mesothelioma.

The plaintiff relies on that determination and on s25B and the defendant does not challenge it.

767 The determination of Curtis J in Booth is an expression of what is sometimes called the cumulative effect mechanism of causation of mesothelioma.

768 The defendant's attack on causation focussed on what constitutes material contribution for the purpose of the s25B determination. Because the cumulative effect mechanism of causation applies, it is sufficient to identify what that theory is.

769 The cumulative effect mechanism was expressed by Professor Henderson on numerous occasions both in his reports and in his oral evidence. I quote but a few.

(a)

All exposures contribute: it should be noted the statement that all exposures contribute to mesothelioma causation when there were multiple episodes of exposure does not mean that each and every fibre comprising each one of those exposures actually participates in mesothelioma induction - which would be a nonsensical proposition for simple reasons of anatomy and the flow dynamics of inhaled dusts. What it means is this:- for each episode of exposure, some fibres will be inhaled and then exhaled; a fraction of the inhaled fibres will actually be deposited in airways and lung tissue (proportionally more amphibole fibres are deposited and retained than chrysotile fibres); many of those will remain localised within airways tissues and lung parenchyma, and some will be cleared from the lung tissue. But a proportion/fraction of those fibres will translocate to the pleura. In this way, a fraction of each exposure will reach the target tissue for mesothelioma development (most often the pleura).

Multiple exposures result in additional deposition of fractions of the inhaled/deposited fibres within airways and lung, with further migration of fractions/sub-fractions reaching the pleura and peritoneum - thereby adding to the pool of previously translocated fibres in the target tissue. Other factors being roughly equal (e.g., asbestos fibre types), the fractions of deposited fibres reaching the pleura will be proportional to the numbers of fibres inhaled and deposited for each episode of exposure (especially for amphibole fibre exposures) - by way of multiple fibres interacting with multiple mesothelial cells over multiple generations of those cells, to bring about the development of a mesothelioma.

These observations conform to the dose response model for mesothelioma induction, which is almost universally accepted.

(Exhibit PX 25, Tab 20, p15)

(b)

Proceeding from the no threshold cumulative exposure model, whereby all identified exposures in excess of low level background exposure for an individual would contribute cumulatively to the singular development of a malignant mesothelioma ...

(T479.14-.16)

(c)

"Well, I don't attempt to quantify background because background by definition means that there is an extremely low risk that anybody in our society, particularly older individuals can develop a mesothelioma and we cannot find an identified exposure to explain that effect. But once we actually have an identified exposure, we know that the fibres from that exposure by way of interaction with mesothelial cells will have an incremental effect, that is, they will augment the underlying effect of any background." (T489.11-16).

(d)

"... I would look at the data for each of the exposure and try and say, "Well, each of them would have constituted an identified above background exposure and each of them would have made a significant proportional causal contribution." The point is it's not a matter of choosing one exposure and exculpating another or doing vice versa. The model is that all exposures contribute." (T497.28-32)

(T497.29-.32)

770 This is all really self explanatory. Professor Henderson said that one looks for a series of markers of above-background exposure with appropriate latency in order to assign causation. Latency is not in issue. The series of markers in this case must be "a reliable and sustainable history, of above background occupational or non-occupational exposure". It is obvious on the findings I have made that the plaintiff's exposures were exposures above background exposure. Indeed, each exposure I have identified in paragraph 539 was above background exposure. Each of those exposures was a result of the defendant's negligence. Causation is established in respect of each exposure.

771 The defendant called no medical evidence to challenge Professor Henderson's evidence.

772 There was some evidence given about whether the asbestos could have caused any injury because of the loss of its toxic qualities as a result of temperatures to which it was exposed. All I need say about that is that there was an amount of evidence given about when asbestos starts to change, when it starts to lose its toxic qualities and what various temperatures were, including the temperatures of hot metal. The evidence presented was unsatisfactory and did not suggest that the asbestos to which the plaintiff was subjected was in touch with any temperature that would have affected its toxic qualities.

Q. Statutory counts

773 In addition to the count in negligence, the plaintiff also relies on statutory counts.

774 The plaintiff relies on the Factories, Shops and Industries Act 1962 and the Factories (Health) and Safety - Asbestos Processes Regulation 1977 in force at the time he was employed by the defendant in the blast furnace.

775 At the relevant time, the Act provided in s41 as follows:

(1) In this section "fume" means fume, mist, gas, vapour, dust or other impurity.

(2) Where in connection with any process carried on in a factory there is generated or given off any fume of such a character and to such an extent that the inhalation thereof would be likely to be injurious or offensive to persons employed in the factory, or any substantial quantity of dust of any kind, effective measures shall be taken to prevent the accumulation in any workroom of such fume or dust and to protect such persons against the inhalation thereof.

Where the nature of the practice makes it practicable, exhaust appliances shall be provided and maintained, as near as possible to the point of origin to the fume or dust, so as to prevent it from entering the air of any workroom.

(3) ...

(4) Notwithstanding the provisions of this section, the regulations may prescribe-

(a) the maximum concentration of any fume that may be present in any factory or class of factory or in specified parts of factories and impose a penalty on the occupier of a factory wherein such concentration is exceeded;

(b) precautions to be taken in particular classes or descriptions of factories for the prevention of injury to health from the inhalation of fumes.

776 The plaintiff also relies on s41(3). The claim under that provision is not supported by the evidence.

777 Before turning to s41(2), I deal with the defendant's submission that references in it to the giving off of fume to "such an extent that the inhalation thereof would be likely to be injurious" must be understood as a reference to concentrations over the prescribed limit. I disagree. The submission is based on the wording in s.41(4) which states "Notwithstanding the provisions of this section". That is said to be a clear textual indication that s41(2) is qualified in accordance with the submission. That is not so. What these words are saying in effect is that whatever is in subsection (2) it does not affect what subsection (4) does. Subsection (4) then goes on to state that the regulations may provide certain things. They may do so whatever subsection (2) says. Furthermore, the defendant's submission does not line up with the way the authorities have dealt with s41(2). I shall come to that shortly. I turn now to s.41(2).

778 To satisfy subsection (2), the plaintiff needs to establish the following elements, that:

(1) a process was carried on;

(2) it was carried on in a factory;

(3) in connection with that process, there was given off a fume or dust;

(4) in the case of fume, that it was of such a character and to such an extent that the inhalation thereof would be likely to be injurious or offensive to persons employed in the factory;

(5) in the case of dust, it was of substantial quantity;

(6) effective measures were not taken to prevent the accumulation in any workroom of such fume or dust and to protect such persons against the inhalation thereof.

779 I deal with each of these elements in turn.

(1) The first element cannot be in issue.

(2) As to the second element, "factory" is defined extensively in s4(1). It is sufficient to note that it includes

any building or place ... in which-

(i) four or more persons are engaged directly or indirectly in a manufacturing process ...

Manufacturing process is also defined by s4 and there cannot be any doubt that four or more persons were engaged directly or indirectly in a manufacturing process.

Accordingly a process was carried on in a factory and the second element is satisfied.

(3) As to the third element, "fume" is defined by s41(1) and it includes dust. The asbestos given off in the work processes was a dust. I do not accept a comment that came during the course of the hearing that asbestos is a fibre, not a dust. There is no reason why "dust" in s41 should not have its ordinary meaning. In ordinary parlance, the product given off by the processes I have described would be recognised and described as dust and was in fact done so by the witnesses in the case.

In light of the findings I have made, fume, as defined, and dust were given off. Fume and dust under consideration for the purpose of the section must be limited to asbestos. The third element is satisfied.

(4) In Silvestro v Verbon Pty Limited [1973] 2 NSWLR 513, one of the issues was whether a fume given off in a work process was such that "the inhalation thereof would be likely to be injurious to persons employed in the factory" within the meaning of s41. Bowen JA stated at 523A, "The phrase 'would be likely to be injurious' introduces an element of judgment of likelihood. It introduces the notion that the employer should have foreseen that injury was likely to result and, therefore, should have taken effective measures to protect persons employed in the factory." Hardie JA agreed with Bowen JA.

In stating this, Bowen JA was adopting the test that had been adopted in the United Kingdom. He noted that the interpretation there was "likely to be injurious according to the estimation of a reasonably well-informed factory occupier or which the actual occupier knew or ought to have known to be likely to be injurious" (522C). That appears to apply the common law test of foreseeability and that view was expressed by Devlin J, as he then was, in Graham v Co-operative Wholesale Society Limited [1957] 1 WLR 511, 522.

In view of the findings I have made, the fourth element is satisfied.

(5) The fifth element arises as an alternative to the fourth element and, accordingly, there is no need to consider it.

(6) In view of the findings I have made, the sixth element has been satisfied. This element, unlike the second paragraph of the section, is not dependent on questions of reasonableness and practicability. The obligation is absolute.

780 It is not in doubt that breach of the provision gives an injured person a right of action.

781 For reasons given, I think the plaintiff is entitled to succeed on the statutory count for breach of s41(2).

782 My determination in relation to this makes it unnecessary to analyse all the requirements of the different regulations relied on by the plaintiff.

R. Quantum

(a) General damages

783 The plaintiff has provided written submissions which detail matters relevant to the assessment of general damages. Essentially, I agree with the submissions. If I were to start afresh, my own wording would undoubtedly be different. I could indeed add to what has been submitted. As I accept essentially all that is put in the submissions, I shall adopt most of what is put using wording of the plaintiff's submissions. I shall make some observations of my own in the process.

784 Mr Dunning is a young man. In every sense, his life has been destroyed by his mesothelioma. He is a dedicated husband and father.

785 Prior to his illness, he was very fit and worked full time as an underground coal miner for North Wambo Coal Mine Pty Limited. He was in good health. At the time of diagnosis he was 50 years old. He is currently 54 years old. I interpolate here that 50 years is young for the contraction of mesothelioma. That is a manifestation of his being exposed when he was 19 years old. Most cases in the Tribunal involve plaintiffs who are considerably older.

786 Mr Dunning gave evidence in his affidavit of his distress at not being able to see his son grow up.

787 Mr Dunning began to suffer from sharp stabbing pain in early November 2010. He was admitted to Kurri Kurri District hospital on 12 November 2010 and transferred to Maitland Hospital on 14 November 2010. He was then transferred to Newcastle Private Hospital on 15 November 2010.

788 He had an operation on 16 November 2010, a right video assisted thoracoscopy, a flexible bronchoscopy, drainage and decortication. He remained in hospital until 20 November 2010. He was told a few days after being discharged that he had malignant mesothelioma. He was "devastated". He broke down and cried (T312.13).

789 Mr Dunning was then referred to A/Prof Brian McCaughan, cardio thoracic surgeon. He elected to undergo the trimodality treatment compromising chemotherapy, a radical pleuropneumonectomy procedure and radiotherapy. Mr Dunning commenced chemotherapy on 2 March 2011. He had it for 12 weeks. He suffered significant side effects from the chemotherapy including sweating day and night (Exhibit PX 20[66]). He suffered from vomiting a few times a day (T64.18), he had trouble sleeping and felt crook all the time (T64.23-26). He had no appetite and started to lose weight (T64). At the hearing on 11 February 2013 Mr Dunning testified he had by then lost 19kg in weight (T59). Mrs Dunning said that during the chemotherapy "he was very sick from it" (T388.48), "he just sat and stared and shaked." (T388.46-47).

790 After the chemotherapy Mr Dunning was then admitted to Strathfield Private Hospital on 24 May 2011 and underwent the radical right pleuropneumonectomy procedure. He was not good and anxious approaching the surgery (T389.36). Mrs Dunning did all the liaising with the hospital and doctors before the surgery as Mr Dunning could not (T389.45). It was a three hour procedure. A/Prof McCaughan was able to preserve the pericardium and most of the diaphragm. The process involved a shark bit incision around the side. It was a very big, long incision. It was approximately 30 centimetres long. A/Prof McCaughan then described the process. It is more particularly described in Exhibit PX 25 Tab 13. In his evidence at T520.30-.40, A/Prof McCaughan was speaking generally. He spoke of the removal of the right hemi-diaphragm and pericardium. That was not necessary in this case (Exhibit PX 35 Tab 14). After the operation, Mr Dunning was in intensive care for about 3 days (T390.14). He then remained in Strathfield Private Hospital until 2 June 2011. Mrs Dunning said that after the operation he was "like a 70 year old man" (T390.41). Since then he has not run or gone for long walks (T390.43-44).

791 Mr Dunning commenced radiotherapy on 28 June 2011, He had 28 sessions of radiotherapy and suffered serious side effects including burns, nausea and vomiting (T62, 63). Mrs Dunning said the radiotherapy "made him very sick" (T391.21) and gave him "Redness, very red, very red, like a rash I mean", which was sore and burning" (T391.24-26). By this time, he was withdrawing, going quiet and had no conversation (T312.21).

792 A/Prof McCaughan testified at T522.48-50 and T523.1-3 that radiotherapy "...knocks you round, you get tired, you often don't have an appetite and it's just at the time we need you - your metabolism reforming after the very major chemotherapy and surgery. So a lot of them do it pretty tough through radiotherapy."

793 Mr Dunning continues to vomit, experience pain, lack of energy and night sweats (Exhibit PX 20[76]). Mrs Dunning stated Mr Dunning still suffers from night sweats the "majority of nights" (T389.04). He has not driven a car since the operation (T387.18). When he has a shower or tries to tie his shoe laces "He's panting" (T391.42-50). A shower exhausts him (T391.45). Mrs Dunning drives him, gets his clothing, helps him to dress, gets his breakfast. She helps him with his pyjamas and helps him to bed (T392-395). His walking makes him "very tired, very short of breath" (T393.15). He has trouble sleeping (T395.18-20). Since he was diagnosed with malignant mesothelioma he has not had any physical relationship with his wife. (T65, 33).

794 In addition to the physical effects of his mesothelioma and treatment referred to above, Mr Dunning suffers from depression, a consequence of his mesothelioma.

795 Mrs Dunning testified that her husband is scared of dying of mesothelioma (T313.40). "He's scared that the mesothelioma is going to come back and he's going to die of it very soon" (T393.18-19). Mrs Dunning testified that when things remind him of the mesothelioma (such as cancer or funeral ads or "if anybody talks about cancer or mesothelioma") they trigger uncontrollable shaking "his hands, his arms, his legs. Unsteady on his feet" (T394.44-50, T395.1-5). When Mrs Dunning asks him what's going on in his head "He would say he wants to be here longer, to be with his family, but he is so scared that the meso is going to come back very soon and kill him, at such a young age" (T 395.21-25).

796 I would add at this point that I found Mrs Dunning to be an impressive witness and I accept her evidence.

797 Mrs Dunning said "He's not the same man. He is a completely different man. Completely different person" (T392.38-39). She said of him "...he just stares into space. He's got a blank look on his face and he's - the lights are on, but no one is home" (T392.49-50-T 393.1). "He sits in a chair all day" (T393.3). When he tries to watch television "He looks at it but he doesn't know what's going on" (T393.810). Before the mesothelioma Mr Dunning was "happy go lucky, try anything, take this piss out of you" (T395.46-47). Mr Dunning was interested in fitness and trying to keep himself fit and he lived a full and happy domestic life before he was struck down with this disease (T396.14-.17).

798 A/Prof McCaughan testified that when he examined Mr Dunning on 18 February 2013 that "...This fellow was just curled up in the chair, wouldn't talk, his wife was very concerned - it impressed me and my major worry at that stage was not his mesothelioma, I was not interested in his mesothelioma, I was concerned and speaking with his wife about whether he was getting professional psychiatric care, that's all I - that was my role as practitioner, not as a cardiothoracic surgeon but as a practitioner" (T523.39-44).

799 Mr Dunning's treating psychiatrist, Dr McDonald, first examined him on 21 March 2013 and testified that when he examined him: "Nothing interested him, he was unable to obtain pleasure, he had no sex drive. Nothing lifted his mood, and he had a constant feeling of loss of everything that connected him to a meaningful world, loss of connection with other people - for him, his job had been his connection with other people - and a loss of purpose and a loss of a future, a feeling that his life had become meaningless and pointless. So I would, in summary, say that these symptoms, taken - if I can also add that, consistent with that description of the emotional changes, on interview I found him to be displaying the classical signs that are associated with the melancholic form of depression which is a very biological form of depression. That he had a completely unresponsive set of facial expressions, very little movement, a forehead that was perpetually furrowed and an appearance that I described at the time of being forlorn. So this constellation of symptoms described by him and the signs observed by me certainly point, without question, to somebody who is suffering from an illness, which is the illness of major depression with melancholic features" (T 607.28-41).

800 Dr McDonald gave joint evidence with Dr Phillips and Dr Revai. I found Dr McDonald to be an impressive witness. I accept his opinions.

801 All psychiatrists agreed that the plaintiff suffers from a major depressive disorder and that it started late in 2010. It is likely that it worsened with his trimodality treatment and it worsened with the litigation.

802 Dr McDonald has continued to treat the plaintiff. His recent report reveals that the plaintiff has had some fluctuating moments, but essentially, there has been no change (Exhibit PX 33).

803 The prognosis is that the plaintiff's depressive condition is likely to continue. He currently takes medications and will have to remain on them. The conclusion of litigation will not change that. Should he deteriorate, he will require hospitalisation. It is less, rather than more, likely that he would deteriorate. The consequences should he deteriorate could be serious, even life threatening.

804 Dr Revai thought there might be some improvement in the plaintiff's condition on the conclusion of litigation and on the basis of the length of his remission. The point as to the conclusion of litigation has its problems. This litigation has been extraordinarily and unnecessarily long. An appeal is a realistic prospect. If there is, one could anticipate that would not assist the plaintiff's psyche. The prospects of improvement following litigation do not appear bright. The prospects of improvement on the basis of the length of remission seem slim. The years of remission so far have not helped.

805 Mr Dunning is currently in remission. However, he will die a miserable painful death when the mesothelioma returns. A/Prof McCaughan was adamant that it will. He said the surgery and treatment that he gave Mr Dunning had not cured him (T519.33). He explained that mesothelioma is "a multicentric malignancy ... if he lives long enough, he will get mesothelioma elsewhere if something else doesn't lead to his death" (T526.5-12). When it was put to A/Prof McCaughan that it was guesswork in terms of whether and how his cancer will recur, he rejected this saying: "No, that's predictable on all the ones we've seen. That is predictable" (T532.39-40) "...he will get mesothelioma again somewhere" (T532.42-43).

806 A/Prof McCaughan described in graphic terms the mode of death in mesothelioma. He said,

A---It depends where it comes back but I haven't seen a pleasant death from this disease. We're very dependent on our palliative care physicians in caring for their pain, the one that I said went ten years, his great problem was because it was on the other side he just couldn't breathe and he was strangulating in his own fluid and that's not uncommon, very distressing thing. We've had a number of people who've developed of the other side where you won't be surprised, no I can't take both lungs out so in fact they get fluid totally through the other lung. Very distressing. Pain's a common feature and then of course it can present, although it's not known to have a lot of spread to distant sites, it can go to distant sites, so it has been described almost anywhere else and the symptoms related to that. So with the liver they just lose weight, lose appetite, can get it in the bones and rarely it can even go to the brain. So they need a lot of care in the last few months of their life.

(T526.15-.25).

807 Further, A/Prof McCaughan testified that,

The fact you're confined to bed for obviously months, can't breathe. See, lung cancer you might take out a lung - just the lung in a big lung cancer, or a lobe. They will have their other lung and the rest of the lung, and they might die because they've got disease in bones, brain or liver, but they're breathing. These patients, one of the commonest problems they have is not being able to breathe. They're suffocating. They can't get air in.

(T533.04-.08).

He added as follows,

The thing in meso that has impressed me by my patients - and they're the ones that have been my inspiration, to be quite honest - is the breathing problem and the struggling with breathing. It's like the patient who has smoked too much all their life and can't breathe because they don't have any lungs left, they're just feeling that they can't get the air in, and often we precipitate their death by the use of morphine.

(T533.40-.45)

808 In his report of 18 February 2013, A/Prof McCaughan expressed the opinion that Mr Dunning would be expected to live longer than 5 years from the date of surgery from the point of view of his prognosis from his malignant mesothelioma. He later testified that he has a 60% chance of living a further 2 years but that it wouldn't surprise him if he lived ten years (T525.44-48).

809 The plaintiff has lived with the physical, psychological and emotional problems of his illness for some years and will continue to do so for the rest of his life.

810 I need to determine the plaintiff's life expectancy. I take my guidance on this from A/Prof McCaughan. On 22 June 2011, A/Prof McCaughan reported that the data supported a 60% chance of the plaintiff being alive in two years with a distinct possibility of being alive beyond five years. The assessment becomes more accurate as time passes (Exhibit PX 35 Tab 14). Time is reckoned from the time of surgery, being May 2011.

811 On 18 February 2013, A/Prof McCaughan reported that the plaintiff would be expected to live longer than five years post surgery. This was apparently to some extent dependent on effective management of his depression (Exhibit PX 35 Tab 45). In giving evidence, A/Prof McCaughan stated,

Well all I tried to convey is my information in the paragraph before which related that I think he has a very significant chance of living more than five years disease free and I don't know if I should jump ahead but I've had an opportunity to see a CT that was done in late July of this year, I mean there is still no evidence of any disease, so it's now beyond two years and in that group of patients that I followed, they're the ones who I now have patients at seven, eight and nine years without disease.

(T524.31-36)

812 He went on to say that the mental state has a big influence on survival (T525.12). That would operate adversely in this case. A/Prof McCaughan has a number of patients who have survived up to about 10 years (T525.15-.24). The plaintiff has everything except his depression in his favour for survival (T525.36). The depression aside, the plaintiff is the most favourable patient A/Prof McCaughan has had. He was hopeful he would survive greater than five years and even longer (T525.42). He would not be surprised if he survived ten years.

813 At the end of his cross-examination, the following exchange occurred.

Q. You said earlier that you have to approach each person as an individual. All one can say about this particular patient, though, is that he is at the most favourable end of the curve. A---Yes, and remains at two years post-resection the most favourable.

Q. So if anyone is going to survive for more than ten years, or more than 15 years, or even more than - A---You won't get me to say that much, though. It could. If my -

Q. Perhaps I could just finish the question. A---Sorry. I thought you were asking me.

Q. If anyone is going to survive for ten years or 15 years, it will be this man. A---That wasn't a question so -

Q. Do you agree. A---No, I can't agree with that. I think it's totally too far out. You know, I mean, he could have meso in a year. It's total guesswork, I mean, so I don't think it would help the patient or the Court for me to agree or comment on that. It's just not a question I can answer.

Q. Likewise, it is guesswork in terms of whether and how his cancer will recur. A---No, that's predictable on all the ones we've seen. That is predictable.

Q. But not as to how. A---Not as to how. It will regrow - reform.

Q. But not as to where or how or when. A---No, not when, but he will get mesothelioma again somewhere.

(T532.28-43)

814 The plaintiff has the most favourable physical indications for survival, but the mental state is a significant counter to that. When A/Prof McCaughan gave his evidence, the plaintiff was already in the 60% category of those surviving two years. He has survived another year. The prospects seem favourable for survival beyond five years.

815 It is a regrettable function I have to undertake and as A/Prof McCaughan said, "It's total guesswork". A/Prof McCaughan has patients who have survived in the range of seven to 10 years. Whilst he would not be surprised if a patient survived ten years, he was reluctant to go beyond that. He also noted the plaintiff could have mesothelioma in a year. My best determination on the evidence is that the plaintiff would probably survive a total of seven years approximately from the surgery.

816 It was submitted by Mr Parker that the plaintiff is relatively independent and by reason of his prognosis compared to other mesothelioma victims, he has some "compensations". I am not impressed by the submission that the plaintiff is relatively independent. It hardly emerges from pages 58 to 60 of the transcript to which Mr Parker referred me and it is hardly compatible with paragraphs 793 to 797.

817 As to compensations, Mr Parker submitted that the plaintiff is in remission. He is, however, left with the significant ongoing physical and mental disabilities from which he suffers. The longer he is in remission, the longer he will be in that position. Added to that, is his depression and the misery of his plight which is ongoing. Further, his state of mind is one of extreme concern and fear that the mesothelioma is going to kill him. He is not wrong in that. He might be in remission, but the longer he lives, the longer he lives with that fear and with his physical disabilities, his depression, misery and mental anguish.

818 It was submitted I should make a discount in accordance with Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 for the prospect that the plaintiff may not get a recurrence of his mesothelioma. A/Prof McCaughan said he will. The defendant called no evidence to counter that or cast any doubt on it. In light of this and as the period is so short, I make no discount.

819 It was submitted I should put the effects of mental anguish arising from the litigation to one side. In AMP General Insurance Limited v Roads and Traffic Authority of NSW [2001] NSWCA 186, the employer had negligently caused back injury to an employee. The employee applied for an extension of time in which to bring common law proceedings for his injury. He suffered stress from cross-examination in those proceedings. He developed depression and committed suicide shortly after the hearing of the application. The issue was whether his widow could recover in respect of the suicide. Spigelman CJ said:

35 The legal proceedings concerned the injury which the deceased suffered by reason of the employer's default. That does not mean that the employer is responsible for whatever happens in court. The employer would not necessarily be liable if the employee suffered different harm whilst in a hospital which he attended for treatment of his original injury. This is not a case in which the events in court can be treated as some form of exacerbation of the original injury. (Cf Mahony v J Kruschich (Demolitions) Pty Ltd [19985] HCA 37; (1985) 156 CLR 522 at 529-530.)

36 Neither the trial judge's findings, nor the evidence in the case, suggest that the cross-examination operated in a manner which can be described as reactivating the psychiatric injury caused by the accident. The trial judge expressly found that the depression was "effectively cured in early March some six weeks before the proceedings took place" (at [56]). He further found "Mr Boxsell's suicide was caused by events which took place during the application for leave and it was that event which triggered the later depression which led to him taking his life" (at [57]).

820 The Deceased in that case had ceased to suffer from any depression before the proceedings. This case is different. It is clear from the plaintiff's own evidence, that of his wife and the fact that he was being treated for depression before the hearing and up to the time of the hearing, that the plaintiff was suffering a significant ongoing depression when the case commenced. This was not a case of litigation causing depression in a person of normal fortitude who was not suffering depression when the case commenced. This was a case, when it commenced, of a person already suffering depression by reason of the negligence of the defendant. It can be expected that litigation would follow the negligence. That was foreseeable. It can also be expected that litigation would increase depression in an already depressed person. That is what happened here and that was foreseeable. The defendant submitted that it was entitled to exercise its rights and defend the proceedings. Indeed it was. The plaintiff was also entitled to exercise his rights and bring proceedings. It was the defendant's negligence that resulted in the proceedings. It can hardly be an answer to that that the plaintiff did not have to bring proceedings.

821 I indicated to the parties a preliminary view that I thought this was one of the worst cases of mesothelioma I have seen. I indicated in effect that I could be awarding a substantial figure for general damages. I cannot be ignorant of awards of general damages given by this Tribunal, but my task is to award the plaintiff a sum that fairly compensates him for all he has suffered and will suffer. Reasonableness must guide the assessment. In the circumstances of this case, I consider an appropriate figure to be $500,000.

822 I am conscious that this figure is $150,000 in excess of any figure that has been awarded for general damages in the Tribunal before. That, in itself, has caused me to pause and consider and reconsider over a prolonged period. Whilst Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 directs that each case needs to be considered on its own merits, there is undoubtedly a benefit in the administration of justice in parties being able to assess general damages based on assessments and patterns and trends in other cases. This is probably even more so in a specialist tribunal where the same illness keeps recurring. One might expect something of a benchmark or approximate benchmark to be recognised. These matters have troubled me, but in the end, I have determined that I have to provide a reasonable assessment for Mr Dunning for his general damages.

823 This is not any ordinary mesothelioma case. Features of it that have impressed me in the making of this assessment include:

• the plaintiff's young age in contracting the disease;

• the torrid surgical treatment the plaintiff underwent;

• the torrid time the plaintiff had with his chemotherapy and subsequent radiotherapy;

• the prolonged (for a mesothelioma victim) physical disability the plaintiff has had and will have. Most mesothelioma victims die within about 18 months of contracting the disease and, for a lot of that period, not all have intense, ongoing suffering;

• the impact this illness has had and will have on the plaintiff including the miserable situation in which he now finds himself.

(b) Interest on general damages

824 I allow 2% per annum for 3.66 years on $250,000, being $18,300.

(c) Loss of expectation of life

825 I allow $30,000.

(d) Past and future gratuitous care and services including interest

826 This is agreed at $100,000.

(e) Past loss of earnings

827 This has been calculated by the plaintiff and not challenged by the defendant at $242,612.75 as at 20 June 2014. To bring the matter up to date, I add $9,710.10 being $1,618.35 per week for 6 weeks. The total is $252,322.85.

(f) Past loss of superannuation benefits

828 Likewise, this has been calculated by the plaintiff and not challenged by the defendant at $37,792.66 as at 20 June 2014. To bring this up to date, there needs to be added earnings of $12,724.80. With the superannuation added to that, the loss of superannuation benefits is $39,192.38.

(g) Interest on past loss of earnings and superannuation

829 Likewise, this has been calculated by the plaintiff and not challenged by the defendant at $44,163.85 as at 20 June 2014. Again, to bring the figure up to date, the allowance should be $48,012.55. Here, I have used a multiplier of 3.66 years, rather than the 3.5 years in the plaintiff's schedule.

(h) Future loss of earning capacity

830 At the time of his illness, the plaintiff was working in the coal mining industry. He started this in 1992. He worked as an underground coal miner in Queensland for three years. He did likewise at Muswellbrook for the next 11 years with Anglo Coal (Dartbrook MGMT) Pty Limited. Then he worked for Austar Coal Mine Pty Limited, again as an underground coal miner. In April 2007, he left Austar and worked as an underground coal miner with UGM Engineers Pty Limited. In October 2008, the plaintiff left UGM and worked for North Wambo Pty Limited at Warkworth as an underground coal miner. He worked there until 11 November 2010 and has not been able to work since.

831 The plaintiff said he intended to work until at least 70 years of age (Exhibit PX 20, [55]). That is in issue. In his evidence, the plaintiff said he intended to work as long as possible (T85.10). It was a well paid job. His work as an underground miner was as a miner driver. He supplied the underground with materials (T85.22). His job was driving machinery. He was probably doing that for about 12 months before he became ill. He had not worked at the face for 12 months before he became ill (T85.37). The driving job he preferred and it was easier on the body. He enjoyed the job. It was a much better job than jobs he had before. He enjoyed the money and the camaraderie.

832 Mr Dunning was not cross-examined on this subject matter, either on the content of his affidavit or on his evidence in chief. It is necessary to determine for how long the plaintiff would have worked.

833 Mr Parker submitted there is no basis for an assumption that the plaintiff would have retired at 70 years of age. There is no assumption about it. It is supported by evidence. In his affidavit, the plaintiff said he planned to work until at least 70 years of age and he had no plans to retire and in his evidence in chief he said he intended to work as long as possible. Putting that together allows that the plaintiff may have continued beyond 70 years of age.

834 There are features that might work against the plaintiff working until 70 years of age. One is the current downturn in the coal industry. I do not see that as a major factor. It is an industry that has survived many ups and downs in the economic cycles. Mines have closed. Others have started. Fluctuations in the industry may be more likely to affect the rate of remuneration rather than a cessation of employment. Another matter that may work against the plaintiff working until 70 years of age is the eligible age for a person to obtain a pension. It is 67 years. Again, I do not think that is a major factor. It is 67 years because the Government has, of relatively recent time, pushed eligible age out from 65 to 67. If there is a trend, it is one to have people working longer.

835 There are factors that support the plaintiff's intention to work to or beyond 70 years of age. They are that the job was well paid, it was an easy job and he enjoyed the camaraderie and he had no plans for doing anything in retirement. I am not bound by what the plaintiff says about his intentions in this regard, even though he was not cross-examined on it. However, I accept that it was his intention to work until at least 70 years of age and I find that he would have worked up until then.

836 There are two periods in the future to consider.

837 The first is the period up until the plaintiff's expected date of death and the second is the period thereafter. In the first period, the net weekly earnings are $2,120.80. After deduction of payments from the Dust Diseases Board that reduces to $1,618.95 per week net. I have estimated the plaintiff's life expectancy at another seven years approximately from May 2011. It is convenient to take that out to the end of July 2018. The multiplier for that period is 196.9, thus yielding $318,771.25. There is an issue as to whether there should be a discount for vicissitudes because the period is so short. I think it is appropriate to allow 5%. For this period, I allow $302,832.68.

838 In the second period, the factors are as follows:

• $2,120.80 per week net earnings;

• less $150 per week for the plaintiff's maintenance in the lost years;

• 517 being the approximate multiplier for 11.75 years;

• 0.888 being the deferred multiplier for 4 years.

These factors yield $904,786.39.

839 At issue is what amount to allow for vicissitudes. Fifteen percent is the traditional figure. That is so for the whole of working life. The shorter the remaining working life, the stronger is the case for a lesser allowance for vicissitudes. In this case, the remaining working life is 13 years in this period. It is not, however, 13 years from now. It is 13 years commencing in three years' time. In other words, the plaintiff would have to reach the year 2030, not 2027. I think a figure less than 15% is appropriate. I allow 12.5%. The result is $791,688.09 for this period.

(i) Future loss of superannuation benefits

840 This has been calculated by the plaintiff at $155,207.84 without allowance for vicissitudes. There is no challenge to the plaintiff's methodology. I think there should be a discount of 12.5% for vicissitudes. I allow $135,806.86.

(j) Loss of long service leave entitlements

841 Again, the plaintiff has calculated this item and there is no challenge to the methodology. The calculated amount is $21,490.47 without allowing for vicissitudes. I allow 12.5% for vicissitudes. I allow $18,804.16.

(k) Summary of figures

842 Summary of figures

General damages	$500,000.00
Interest on general damages	$18,300.00
Loss of expectation of life	$30,000.00
Past and future gratuitous care	$100,000.00
Past loss of earnings	$252,322.85
Past loss of superannuation benefits	$39,192.38
Interest on past loss of earnings and superannuation	$48,012.55
Future loss of earning capacity	$302,832.68 $791,688.09
Future loss of superannuation	$135,806.86
Loss of long service leave entitlements	$18,804.16
TOTAL	$2,236,959.57

S. Orders

843 There will be verdict and judgment for the plaintiff in the sum of $2,236,959.57.

844 The plaintiff is to bring in short minutes of order dealing with the payment and investment of the judgment sum.

845 I shall hear the parties on costs.

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Decision last updated: 31 July 2014