Torok v Allianz Australia Insurance Ltd (NSWDDT 2023)

Link to Decision

Link to Video

Background

• Circumstantial exposure is enough when the plaintiff cannot give direct evidence of exposure
• General damages increased in NSW with respect to mesothelioma

Brief Facts

Mr Attila Torok, the plaintiff, is an 83-year-old male who suffers from mesothelioma alleged to have been caused by exposure to asbestos dust and fibre in employment by Cockatoo Dockyard as a casual painter and docker for a total of 98 days in 1980.

While working at Cockatoo Island, the plaintiff’s responsibilities involved scraping paint and materials off surfaces in preparation for re-painting. It was argued that the plaintiff’s working conditions were poor, and he would often be required to work in confined spaces, and that he would have been indirectly exposed to asbestos being handled by others in his vicinity. While the workers were provided with masks, they were not fit for the conditions of the workers environment.

The plaintiff served evidence of 66 workers who suffered from an asbestos-related disease following exposure to asbestos while working at the Cockatoo Dockyard.

Despite the worker admitting and acknowledging exposure to asbestos during employment by a separate employer, GT Heptinstall for approximately three to four months over four years, the court considered the nature and conditions of the plaintiff’s work environment at the Dockyards to be the cause of his injury.

Judgment

Liability

The plaintiff was unable to give direct evidence of exposure to asbestos during his time at the Dockyard. Therefore, the court relied on the plaintiff to establish on the balance of probabilities, that he was exposed to asbestos dust and fibre during this employment.

The defendant properly conceded asbestos was used at Cockatoo Island. His Honour Judge Russell agreed with the plaintiff that the use of asbestos at Cockatoo Island was “extensive”. All the evidence tendered in the case from former workers, showed that it was used there for decades creating a dusty environment whenever it was used. Further, the 66 Industrial Histories in evidence demonstrated that those 66 workers had either died or been severely disabled because of exposure to asbestos at Cockatoo Island. In some circumstances, it was not the painters and dockers at Cockatoo Island who were directly exposed to the extensive asbestos dust, however, by working near trades who were handling asbestos insulation materials, the workers were indirectly exposed to asbestos.

On that basis, the Court found that it was “glaringly improbable that a painter who carried out labouring work for 98 working days at Cockatoo Island in 1980 would not have had causative exposure to asbestos dust”.

Damages

The Court awarded the plaintiff $420,000 in general damages. Prior to this decision, general damages were last assessed in NSW in October 2022 at $360,000 in the decision of Hudson v Amaca Pty Ltd (NSWDDT 2022).

Implications

A finding on the balance of probabilities will assist plaintiffs who, given the passage of time, may not have the recall of direct exposure which would have otherwise been needed to confirm exposure to asbestos dust and fibre.

Given the large number of claims made in relation to exposure to asbestos dust and fibre in employment in NSW, particularly with respect to large scale employers like the Dockyards and NSW Government Railways, the question of liability is likely to be more readily agreed upon following the findings of the Court.

The decision will also likely increase the award for general damages to a ‘base level’ of $420,000 in line with his Honours award.