Diagnosed with mesothelioma
On 19 December 2014 the Full Court of the Supreme Court dismissed an appeal brought by BHP in yet another claim for a Whyalla Shipyard worker exposed to asbestos dust and fibre. This is the third decision of the Full Court of the Supreme Court of South Australia rejecting an appeal brought by BHP in relation to asbestos exposure of its Whyalla Shipyard workers. Turner Freeman client, Mr van Soest brought a claim against BHP in 2012 claiming damages in relation to his condition of mesothelioma. Mr van Soest was employed by BHP in 1962 for a period of 11 weeks as a painter and docker. He worked on the PJ Adams that was being fitted out at the Whyalla Shipyard at the time. Mr van Soest was required to work with products containing asbestos during this employment and in particular worked around laggers who were installing asbestos insulation around pipes and boilers on the PJ Adams. Decades later he was diagnosed with the deadly asbestos cancer, mesothelioma.
The matter proceeded to trial. BHP denied that it knew at the time that Mr van Soest was at risk of any injury in relation to his exposure to asbestos dust at the shipyard, and further argued that any exposure that Mr van Soest did have at the Shipyard did not cause or contribute to his condition of mesothelioma. Her Honour Judge Parsons of the District Court of South Australia handed down Judgment in Mr van Soest’s favour on 17 June 2013. She delivered a separate Judgment in relation to damages on 28 June 2013 awarding Mr van Soest a total of $358,151.30 in relation to damages against BHP.
BHP appealed the decision to the Full Court of the Supreme Court of South Australia. BHP again argued in the Supreme Court that it could not have known that Mr van Soest was at risk of contracting an asbestos related disease such as mesothelioma during the period that he worked at the shipyard in 1962. BHP argued that given that Mr van Soest only worked at the shipyard for a period of 11 weeks, and was not an asbestos worker himself, BHP could not have known in 1962 that he was at risk of contracting an asbestos related disease such as mesothelioma. Further, BHP argued that presumptions of knowledge under the Dust Diseases Act 2005 (SA) had been incorrectly applied in Mr van Soest’s case. Section 8(2) of the Dust Diseases Act provides that where a defendant carries on a prescribed industrial or commercial process (such as the use of asbestos products on a ship), then it will be assumed, in absence of proof to the contrary, that the defendant knew at the time that exposure to asbestos dust could result in a dust disease. BHP argued that the presumption did no more than provide a general presumption of knowledge in relation to the dangers of exposure to asbestos. BHP argued that Mr van Soest was still required to prove that the circumstances of his exposure to asbestos were known to be a risk in 1962. BHP argued that Mr van Soest’s exposure was below the recommended NHMRC maximum allowable concentration of 5 mppcf of asbestos dust in the air, and therefore, according to the standard of the day, was relatively “safe“.
The Full Court of the Supreme Court rejected these arguments comprehensively. The Court found that BHP knew that its workers at the shipyard were required to work around laggers who were installing asbestos insulation around pipes and boilers on ships and that BHP knew or ought to have known that those shipyard workers in the vicinity were at risk of injury – not just the laggers. In addition, the Court found that the presumption against BHP in relation to knowledge was not a general presumption but applied specifically to Mr van Soest’s exposure.
The judgment can be accessed here – http://www.austlii.edu.au/au/cases/sa/SASCFC/2014/135.html.