Estate of McRae v Accident Compensation Corporation (Work Related Gradual Process Injury)

IN THE DISTRICT COURT AT WELLINGTON [2018] NZACC 68 ACR 163/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN CARL JONATHAN HASTINGS AND DAVID SAUL BRISCOE AS EXECUTORS OF THE ESTATE OF LARAINE MCRAE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 6 September 2017 Appearances: B Woodhouse for the appellant L Hansen for the respondent Judgment: 03 May 2017 RESERVED JUDGMENT OF JUDGE JH WALKER [Personal Injury Caused by Work Related Gradual Process, Disease, or Infection S 30 Accident Compensation Act 2001] [1] It is noted that Mrs McRae died on 19 October 2016. As the proceedings have continued, it is necessary that there be substituted as appellants, her successors at law. [2] Probate of her estate was granted on 5 December 2016 identifying that Carl Jonathan Hastings of Wellington, Real Estate Agent, and David Saul Briscoe of Wellington, Solicitor, as the executors named in the will as administrators of her estate. [3] In terms of DCR 2014 Rule 4.50 (which applies HCR 4.49 -52), accordingly I make an order that this proceeding be continued between Carl Jonathan Hastings and David Saul Briscoe as executors of the estate of Mrs Mcrae and the Corporation as respondent. I also dispense with the formality of sealing and service of that order. [4] Accordingly, the appellant in these proceedings is the Estate of Mrs McRae and the respondent is the Accident Compensation Corporation ("the Corporation"). [5] This is an appeal pursuant to s 149 of the Accident Compensation Act 2001 ("the Act"). [6] Mrs McRae had been diagnosed with mesothelioma. [7] On 16 February 2015, the Corporation declined her claim for cover for an asbestos-related condition on the basis that her exposure to asbestos was not work- related. [8] On or about 17 February 2015, the Corporation declined funding for Pemetrexed on the basis they had declined cover. (Copy of this decision letter was not included in the Bundle of Documents ("BofD").) [9] Both of these decisions were reviewed. The review hearing took place on 18 February 2016 and concluded on 11 May 2016. The reviewer Ms Raewyn Anderson made a decision on 11 May 2016 dismissing the applications for review and stating: I am not persuaded on the balance of probabilities, that Mrs McRae was exposed to asbestos in the course of her employment. ACC's decision declining cover is correct. Therefore ACC's decision declining to fund Pemetrexed is also correct. Background [10] On or about 27 November 2014 Mrs McRae was diagnosed with malignant mesothelioma. [11] On or about 12 January 2015, Mrs Mcrae lodged a claim for cover for mesothelioma. [12] Subsequent to the Corporation declining to cover Mrs McRae's mesothelioma on 24 August 2015, an application for review was filed. The Corporation, on 29 September 2015 provided a letter accepting the late lodgement of the review application. [13] It is noted that the review hearing was adjourned part heard to enable additional records to be obtained from the Wellington City Council, for an opinion to be obtained from an architect and for submissions from the parties. [14] Subsequently both reviews were dismissed. [15] An application for appeal was filed on or about 15 May 2016. [16] It was noted in the file that Mrs McRae died subsequently on 19 October 2016. Medical Evidence [17] A clinical letter from Dr Nicola Smith, respiratory physician dated 5 February 2014 was sent to Mrs McRae's doctor, Dr Rob Mcilroy on 5 November 2014. This related to a referral for Mrs Mcrae to the respiratory clinic with a new problem of a left sided pleural effusion. The report noted her previous medical history was mainly of angina which had been diagnosed the last year and she had been seen at the Wakefield Heart Centre. As noted she had never been exposed to tuberculosis, she was born and raised in New Zealand, had lived in Western Australia for the last four years, moved back to New Zealand in 2013 and had recently retired. [18] It is noted Mrs McRae, who was an accountant by profession, went into the aged care sector as a caregiver in 2002. She had recently stopped this because the work was too strenuous. [19] The report from Dr Nicola Smith, Respiratory Physician of 5 November 2014 states: She smoked from her late 20s to the age of 60 up to 10 cigarettes a day. She has no confirmed asbestos exposure but in the 1960s and 1970s spent a significant amount of time renovating old houses including pulling out walls and spending time in the ceilings. She has wondered if she has been exposed to asbestos during this time. She has no pets at home. [20] Her report concluded: The cause of the left pleural effusion is unclear at this stage. She will have a thoracentesis performed in clinic today with fluid sent off for culture, cytology and biochemistry. She has had blood tests today to screen for connective tissue diseases and a serum BnP level. [21] A further letter from Ms Smith, was sent to Dr Mcilroy dated & December 2014. The letter noted Mrs Mcrae had been discharged from hospital one week ago following a left sided VATS and stated: This was reported as the pleura having a malignant looking appearance and 1.5 litres of fluid was drained with a Talc pleurodesis performed. [22] The report continued: I have discussed her histology with Dr Rachel Barber and this is highly suggestive of mesothelioma. However after review by several pathologists they are unable to reach a consensus on whether this is in fact mesothelioma or not and have subsequently sent it to Australia for a second opinion. [23] Dr Smith continued: I have explained to Laraine today that this is very likely to be mesothelioma which is an incurable malignancy of the pleura. The final result should be back in early January. [24] Subsequently on 12 January 2015 an ACC45 claim form was completed by Dr Smith and forwarded to the Corporation. The form states: In respect to the accident employment details, in reply to the question "When did the accident happen" the answer states: "1960s". In answer to "Accident Scene" it stated "workplace and home renovations". In response to the question "What were you doing, what happened" was the answer "exposure to asbestos whilst renovating old houses + at work at Lombard House while being renovated". This was signed by both the Ms Smith and Mrs McRae on 12 January 2015. [25] On the same day Dr Smith reported to Dr Mcllroy stating: The second pathology opinion has come back from Australia, confirming that this is mesothelioma and a chest x-ray shows no recurrence of the pleural fluid. I have put in an ACC form today and will also put through a referral to Medical Oncology and Mary Potter Hospice. I have made an appointment for her to come back and see me in clinic in three week's time. However, if she has an appointment for Medical Oncology in the meantime, she can feel free to cancel this. [26] An ACC note (p10 BofD) records a file note of a telephone conversation between Mrs McRae and the Corporation (Esti Rubio) dated 14 January 2015 which states: CLIENT CONTACT - phoned Laraine and had extensive discussion about diagnosis, treatment and ACC's process to investigate cover. Laraine advised she's a little concerned that she may not be able to [prove] that she was exposed to it at work. She thinks it could have happened when she was working at Lombard. She will contact other friends from those days and see if they can remember as much as possible about the place and whether there was asbestos exposure. [27] A questionnaire form was sent to Mrs McRae at that time. [28] Mrs Mcrae completed the Cover Questionnaire dated 29 January 2015 which was received by the Corporation on 5 February 2014. [29] The Condition Details state: Question: What symptoms did you first notice? Answer: Fluid on lung - picked up on x-ray for totally unrelated condition. Question: Where do you believe your exposure to asbestos occurred? Answer: As asbestos was not banned until late 1980's hard to say - worked at Lombard NZ (Wgtn) while building was renovated in 1969. Question: Contact details for anyone else who has treated these symptoms: Answer: Unknown if anyone else affected. Question: Do you, or have you ever smoked? Answer: No. Question: Year commenced smoking year ceased smoking and how many you smoked per day; and the type of cigarette smoked, eg "roll your own": [Not completed] [30] Mrs McRae provides details of her work history. This indicates that she worked for Lombard New Zealand Limited as an accounting clerk from 1969 to 1971. [31] Under "Other Exposure to Asbestos" she states: Have not built own home. Hobbies are/have been sports related. Dance classes [32] Additional Information states: 1. Besides Lombard NZ the only thing I can think of is that one day was spent at Datacom on a "working bee" scraping painting staff room at CMC building, Wgtn. CMC was an old building. 2. Also air conditioning in the ceilings, in the past, were cleaned while employees were sitting at their desks. [33] A report from Dr Olivia Bupha-Intr, Medical Oncologist and (Medical Registrar to Dr C Barrow) was made to Dr Smith on 5 February 2015. This notes that Dr Bupha-Intr met Mrs Mcrae with her son Carl for an oncology appointment on 5 February 2015. It discusses her symptoms and that she had been referred to a Cardiothoracic Surgeon for a VATS procedure in order to confirm the diagnosis of mesothelioma. Mrs McRae underwent the VATS procedure on 27 November 2014. Dr Bupha-Intr states: This was reported as showing a malignant looking pleura with nodularity and a mucinous rind. [34] Under "Social History" it reports: Laraine lives in her own home in Hataitai. She has one child, Carl, who lives in Wellington and attended her appointment today. She has been widowed for the past 25 years after her second husband passed away from cancer. She is a non- smoker and drinks approximately five glasses of wine per week. Up until her diagnosis she had been working in the Aged Care sector doing community work which involved a lot of housework. She had to stop this as she was unable to do long periods of housework due to her shortness of breath and chest pain. She is still independent but is restricted on strenuous physical activity with an ECOG status of 1. With regards to her exposure to asbestos, she tells me that in the 1960s she spent a significant amount of time renovating old houses, pulling out walls and spending time in ceilings. She also recalls being in an office during which time they were undergoing significant renovations which were thought to contain asbestos. [35] The report continues: I understand she has already had an ACC claim submitted by the respiratory doctors and I have briefly gone through the process for this today. The treatment for mesothelioma that we are offering is a course of chemotherapy with Pemetrexed / Cisplatin. In order to give the Pemetrexed in a public hospital her claim will need to be accepted by ACC. I have explained to her today that she does have a confirmed diagnosis of malignant mesothelioma, which means she should be funded for this treatment. She is very anxious that her claim may not go through and I have explained that even if ACC reject her claim, there is another stream of funding available to us in exceptional circumstances. [36] A report was obtained by the Corporation was dated 11 February 2015. This was from Dr John Monigatti, lead occupational health advisor. He states: Mrs McRae is proven left-sided pleural mesothelioma, a malignant tumour usually related to past asbestos exposure. Mesothelioma is listed as a Schedule 2 disease. Provided the claimant is (or has been) in employment involving exposure to asbestos, or exposure to the prescribed level and extent, ACC must accept the claim unless it can show that the mesothelioma arose from non-work exposure or contact overseas. However, the Court has established that there is an onus on the client to show that the level of exposure was capable of causing the disease. Potential or innocuous exposure at work, irrespective of the person's work, is not a basis for cover. As Mrs McRae had no known occupational exposure to asbestos I must conclude that the precondition for cover at s 30(3) of the Act is not met. Her condition may be due to non-work exposure or she may be among the small percentage of people in whom mesothelioma arises without apparent cause. [37] On that basis, the Corporation issued its decision of 16 February 2015. This stated: We're unable to approve your claim because your exposure to asbestos was not work-related. We can only approve a claim for asbestos -related disease if it develops because of the work environment or the work tasks performed. [38] The letter also indicated that they would contribute to the costs for the treatment up until 16 February 2015. The letter also stated: As asbestos-related conditions are notifiable diseases, you may wish to register with the Department of Labour. Their contact address is: The Registrar NZ Asbestos Registers Department of Labour PO Box 3705 Wellington [39] As noted, the Corporation accepted a late review application by letter dated 29 September 2015. [40] The review was set down for hearing on 18 February 2016 but adjourned after the date of the first hearing date. It would appear a brief of evidence from Paul Hastings had subsequently been filed on 17 March 2016. Mr Hastings is noted as Mrs McRae's first husband. He states: Mrs McRae and I renovated a house located at 12 Byron Street, Petone, circa 1964-1969 [41] He lists the renovations and states: I am of the certain knowledge that there was not any asbestos-containing materials handled during the home renovations. [42] Subsequently, there is a brief of evidence from her son Carl Hastings file-dated 6 April 2016. He stated he was present at many of the appointments with his mother attending regarding her mesothelioma. He stated: I would like to point out that I felt the initial doctor had, with no ill intent, used leading questions in regard to the home renovations. As Laraine had a history as a "white collar" office worker perhaps she thought it was unlikely for her to have had exposure to asbestos in a work environment. I do not recollect any comment from Laraine regarding work in ceilings, and my Father Paul Hastings confirms that with the property in question there was no ceiling works, nor were there any use of asbestos materials for the purposes of the renovation, or any asbestos containing materials evident at the commencement of such work as the property was in original condition, and constructed in the 1920's. [43] Carl also notes at a meeting on 5 February 2016 with chemotherapist doctor, Dr Catherine Barrow. He states in para 5 of his brief of evidence: . . . Dr Barrow said that she needed to make an ACC application for the funding of the Chemotherapy Drugs and, at this time Dr Barrow said Laraine certainly "ticks all the boxes" for ACC cover. [44] In addition, a report was received from Ms Law, an architect of Goodson Architects Limited in respect to substantial building renovation work which occurred at Lombard House in 1966. The Documentation identified that asbestos building material were present in the building prior to the work in 1966 however there is no record of how the material was to be removed or the building decontaminated. [45] With respect to the building/interior fit out in 1968 Ms Law states: A Building Consent was submitted in late 1967 and the Consent approved in early 1968. This interior fit out work comprised mainly the creation of rooms or spaces on levels 2 to 4. The building materials noted on the drawings and specification were mainly timber, glass partition walls with metal frames, 'Gibraltar Board' and plywood lining, none of which were known to contain asbestos. However, Malthoid bituminous fabric separator was specified as a damp proof course to separate all timber from contact with concrete. This material is suspected of containing asbestos. (http://asbestosaware.co.nz/identify.php) [46] She concludes: Asbestos Exposure to Building Occupants Unless adequate precautions were taken during the work, occupants working inside the building when the spaces or rooms were being constructed during the interior fit out work could have exposure to asbestos material. [47] Dr Monigatti also made a further report dated 30 March 2016 which states: I have reviewed the Building Application Forms dated 3 June 1947, 23 September 1966 and 26 October, 1967 for renovation work to be carried out at 39 Johnston Street, Wellington. [premises of Lombard House]. [48] He continues: I have also read the letter by Ms Law, architect, about asbestos material at the site. I note that all of the asbestos wall sheathing (i.e. exterior cladding) was stripped from the building during the 1966/67 renovation. New vinyl tiles were laid, fibrous plaster ceiling walls were fitted, and copper piping "properly lagged concealed in partitions" was installed at that time. It is probable that the tiles had asbestos in the backing, less likely than not that the lagging was asbestos Tasman Insulation had manufactured pink Batts and other fibreglass insulation since 1961) and very unlikely that any acoustic insulation material possibly used above the ceiling tiles contained asbestos (for the same reason). None of this posed any risks to Mrs McRae, whose two-year tenure of employment as an accounting clerk with Lombard NZ Ltd did not commence until 1969. There was an interior fit out on the second and third floors (creating spaces S01 to $12 and rooms 3F.1 to 3F.12) in 1968. Perhaps that is what she was present for. It involved the installation of partitions, panelling, storage units, lighting, etc. There was no demolition beforehand, no ripping up of floor tiles and no tearing off of pipe lagging. As Ms Law acknowledged, no asbestos-containing materials were used. According to the Specification "The tenant is entitled to occupy spaces on either floor which in the opinion of the architect are complete and ready for occupation" so it is unlikely the staff were in the vicinity whilst the work was still in progress. Even if they had been the exposure to the inspirable asbestos fibres during and after the fit out would have been at background level only and not a plausible cause of pleural mesothelioma. [49] There is a brief of evidence by Mrs McRae which is undated and unsigned in the bundle of documents. It is not clear whether this brief was available at the review hearing. However, Mrs McRae, her son and counsel Ms Woodhouse were present at the review hearing. Mrs McRae's gave evidence and she was asked when she worked at Lombard House. She states: Yeah, I do. They were 1989 ... I don't know what time 1990 ... I don't know. [50] It was noted that Mrs McRae had had a stroke which caused her difficulty in recalling dates. In respect to questions from the reviewer in respect to the construction work Mrs McRae stated: It's going on all over the place. It's - I mean I worked from the ground floor and then I worked up in the fourth floor. So I mean I was working on the first floor, on the ground floor, and then I went up to the fourth floor ... this over a period of a year that I was working ... in both areas. Post Review Hearing [51] Additional evidence was provided in the form of answers to questions presented to Glen Reid PhD, Senior Research Scientist, University of Sydney in a report dated 14 June 2016. The questions asked of him were: 1. Can you please explain the effect of asbestos on the mesothelial cell in the lung; (This is answered in some length) and 2. What are the minimum exposure levels required for mesothelioma to develop? Could it develop from a single exposure/event or does it require repeated exposures? [52] In respect to the second question he states; While there is a relationship between higher asbestos exposure and shorter latency period, there is no minimum exposure level below which there is no risk of developing mesothelioma While difficult to quantify fibre numbers in patients, there is epidemiological evidence that low-level (non-occupational) exposure can result in mesothelioma, such as those encountered during do-it-yourself home renovations. [53] There is also a further report from Dr Monigatti dated 16 June 2016. Ms Hansen asked for further comment in respect to whether Malthoid bituminous fabric separator is likely to contain asbestos and if so whether it might have been a source of asbestos exposure for Mrs McRae. Dr Monigatti states: Even if it had contained asbestos, Malthoid bituminous fabric separator would be regarded as a non-friable asbestos product. In Chapter 8 of the New Zealand Guidelines For Management and Removal of Asbestos (3rd Edition, 2016) Worksafe state that if non-friable asbestos products are maintained in good order and not worked on with abrasive or cutting tools (which generate large quantities of dust) they are unlikely to present a health risk. Any damp proofing used during the interior refit of Mrs McRae's building would, of course, have been in new condition and would have been cut to size with shears or a knife, presenting no risk even to those installing it Finally, please note that the Building Application Form for the fit out did not specify Malthoid bituminous fabric separator as claimed by Ms Law, but Malthoid or other approved bituminous fabric separator. There is no guarantee that this product was used at all. [54] He also states: You ask for clarification of my comment "the exposure to inspirable asbestos fibres during and after the fit out would have been a background level only and not a plausible cause of pleural mesothelioma". Virtually all adults in either urban or rural environments and without a history of exposure to asbestos in the work or non-work environments contain asbestos fibres in their lungs - up to 1,000,000 fibres/g dry lung tissue with the median about one third of that. This "background" exposure comes from the passive weathering of "in-place" asbestos-containing materials such as asbestos-cement roofing, asbestos lagging materials, environmental exposure from the brakes of passing automobiles, and many other sources. It does not include exposure arising from active disturbance of any materials that contain asbestos such as might occur in the occupational setting. Background exposure alone may account for some mesothelioma cases but the incidence rate is thought to be very low indeed. When there is significant (i.e. non-trivial) above-"background" exposure to asbestos that is incremental upon, and additional to, any background effect this extra fibre load is regarded as having made a causal contribution. If it were work-related, ACC cover ensues. [55] He concludes: Even if bituminous fabric separator containing asbestos had been used in the office fit-out it is difficult to envisage how the fibre load in the work-space air once Mrs McRae had returned to it could have been at "above-background" (i.e non-trivial) levels, and even if it had been, how the increment from such a brief exposure would have been significant in the context of background fibres inhaled beforehand and subsequently. [56] Mrs Mcrae also produced a report from Professor William Glass, Occupational Medicine Specialist dated 14 October 2016. [57] Professor Glass reviews the medical history and states that he had a discussion on 14 October 2016 with Mrs McRae. He states: We chatted about her work and her exposure to asbestos. It was a helpful conversation with a lucid and charming woman aware of the terminal nature of her condition. We discussed the renovations that had occurred in her work place prior to her employment and the further renovations that took place during her employment in Lombard House. I was able to bring the discussion back to the 1960's as my Father was a builder in Wellington at that time and earlier and had specialised in what was then called "shop refitting". In essence removal of old interiors and renovating and refitting them. This was a useful exchange as it confirmed that her asbestos exposure had to be considered at that period in time rather than currently when a greater awareness of asbesto [58] Professor Glass refers to a background document from the Corporation's submission and also the reports from Dr Monigatti, noting that the renovation and removal of asbestos containing materials occurred over 1966/67. [59] Professor Glass refers in some detail to Dr Monigatti's reports and states there are three issues of discussion: Issue 1: Background exposure [60] He states: On the basis of this further opinion by Dr Monigatti it appears Ms Hansen was satisfied and in her decision, she stated "I am not persuaded on the balance of probabilities, that Mrs McRae was exposed to asbestos in the course of her employment". (It is presumed that Professor Glass was referring to the reviewer, not Ms Hansen, counsel for the respondent.) [61] Professor Glass continues: Where am I going with this point? Just that if Mrs McRae had been exposed to asbestos in her place of work it would have been at background levels only according to Dr Monigatti. There would then be a situation where Mrs McRae not only was exposed to background levels as "all adults" are but also to "background levels", in her place of work - that is an addictive exposure more than "all adults", in which this extra exposure would have been at her place of work. The difficulty with this argument is the uncertainty of an extra asbestos load arising from the malthoid and I would agree with Dr Monigatti on this point. Issue 2: The "substantial building renovations" over 1966/1967 [62] With regard to this issue he states: This event has not been considered in terms of Mrs McRae's workplace exposure in that she did not begin work at Lombard House until 1968 through to 1971. A year after the "substantial renovations" had been completed. [63] Professor Glass refers to his view on the matter as his father specialised from the 50s onwards in shop refitting and that as a student he worked in these situations in the holidays and it was clear that the "good housekeeping" as an issue associated with this work was "rough and ready", dry sweeping, no vacuuming and treating all material as "no risk to the health". He states: It would be my view that asbestos contamination of the office space after "substantial building renovation" would have been present and that Mrs McRae would have begun her employment in a workplace already contaminated with asbestos. Issue 3: Removal of Asbestos [64] In respect to support for issue 2 above Professor Glass refers to a Longitudinal Study of an American Public Building Following Asbestos Removal from December 1996 which took place over a two-year period. He states results showed geometric mean concentration of 0.0004 structures/cc of air prior to removal and 0.0017, 653 structures/cc days after removal. ... it was estimated that up to four years would be required to return to pre- removal levels. [65] He states in conclusion: Given a situation as at the Lombard Building where "substantial building renovation" occurred 1 year prior to Mrs McRae's occupancy, and that this renovation included asbestos containing material. Given the evidence produced by the US school study concerning the persistence of asbestos fibre in the airspace after removal. Given the lack of awareness of asbestos dust as a health risk in 1968 and the consequent likely work methods and cleaning methods. It is my opinion that it is highly probable that Mrs McRae was employed in an asbestos contaminated office space during her employment at Lombard House, and that this exposure was in addition to the general background level of "all adults" and would have been significantly above a further background level that is it would have been a (non-trivial) exposure and thus would adequately explain Mrs McRae's mesothelioma. [66] An additional report in reply was provided by Dr Monigatti of 1 March 2017. He states: Thank you for seeking further comment on this case. In the 1990s, anxiety caused by potential non-occupational asbestos exposures was fuelling a multi-billion dollar industry annually in the United States to remove asbestos products from commercial buildings and schools. The study by Ryan et al was an attempt to demonstrate that such activity is often unnecessary and not without risk, through contamination of the building during the removal and re-suspension of the fibres through subsequent cleaning and renovation. The authors measured asbestos levels in a high school of 1600 pupils constructed in 1970, which had undergone two major asbestos removal operations in successive summers. The trigger was the need to strengthen the school roof structure, which inevitably would have disturbed some asbestos- containing material, so the school district decided to remove all of it. The scope of the work was such that it took three summers in total, on each occasion a different part of the school. The asbestos-containing structures were identified as cementitious spray-on fireproofing insulation and acoustic spray-on "textured" ceiling treatment (both chrysotile, or white asbestos), and water system pipe fittings (amosite, or brown asbestos). All of the asbestos-containing materials were in good condition beforehand, and the removal was done under appropriately controlled conditions. Sampling before the project began revealed a level of 0.004 asbestos structures per cubic centimetre (s/cc) of interior air, comparable with urban and household background levels in the US in general. Post-removal sampling began on day 1 after the containment was dismantled and continued for 26 evenings over two years. Of the 289 samples collected, 120 were chosen a random for analysis. At 53 days the level was 0.0006 s/cc, at 90 days 0.0016 s/cc, and at 653 days 0.0017 s/cc. There were two unexpectedly higher readings, 0.0045 s/cc at 44 days and 0.0057 s/cc at 158 days. The authors debated possible reasons for this but reached no firm conclusions. Sampling before Year 2 (Project 2) commenced on day 290 with a level of 0.0041 s/cc and post-clearance sampling took place on days 398, 418, 428, 439, 474 and 653 after the Year 1 removal. The concentrations ranged from the highest of 0.0060 s/cc at 428 days down to 0.0022 s/cc on day 653 Ryan et al concluded that asbestos removal, by nature, is likely to increase the airborne concentrations of asbestos and that these levels could persist for an extended period of time. They felt that this reflected the nature of the work as opposed to improper removal procedures, and hypothesised that larger asbestos fibres were preferentially re-suspended from interior surfaces while the smaller ones were more likely to be exhausted from the building. On the basis of their findings the authors advised that the presence of asbestos materials did not justify removal unless a specific need was identified. Ryan et al took care to point out that whilst a corresponding increase in risks for occupants could be debated the overall risks still remained low, particularly when prorated over a lifetime. To put it into perspective, the current health standards for schools in the United States are a background asbestos level of 0.002 s/cc and a clearance limit of 0.02 s/cc, the latter demonstrating acceptable clean-up following an asbestos removal project. That clearance limit is one- tenth of what Environmental Protection Authority (EPA) considers the acceptable level of exposure to asbestos fibres over an eight-hour working day for an entire working life time. So, the concentration of 0.0017 s/cc at 22 months post-removal (cited by Dr Glass) is still many orders of magnitude below what would constitute significant "above-background" levels in the United States, and a little under the acceptable background level. It is noteworthy that Dr Glass, having quoted most of the abstract of Ryan's paper, omitted the sentences "Despite the significant rise in asbestos levels, the asbestos-related health risks were extremely low. Significant differences in surface concentrations (of fibres) were not observed". Nor did he point out that the school had been re-occupied at Day 40 after the first remediation or that none of the readings at any time led to an evacuation. Mrs McRae did not work in a building from which extensive asbestos removal had been undertaken. As indicated previously, exterior cladding containing some asbestos appears to have been stripped in the 1966/67 renovation, and if the new floor tiles installed at that time were asbestos-backed the release of fibres would have been minimal. It is my opinion that Dr Glass has overstated the risk to Mrs Mcrae considerably, and that the asbestos levels in the workplace during her time there many months later are likely to have been in the normal background range. You ask what "structure per cc" means. Asbestos in the air is measured by using a pump to draw air through a sample filter cartridge, which traps particulate matter (i.e. dust and fibres). The filter is then dissolved in a laboratory and all fibres of a specified length are counted. This fibre length typically around 5 um) reflects the fact that fibres in a range of sizes become trapped in the lungs but the human body has processes to remove the longer or shorter ones. In each sample there will be a mixture of asbestos and non- asbestos fibres of appropriate length but phase contrast microscopy (PCM), the quickest and most economical way of counting the fibres, cannot differentiate between them and measures "total fibres per cubic centimetre" instead. Whilst useful as a screening test for asbestos fibres measurement by PCM will always overestimate of the number present, sometimes by a little but often a lot. After asbestos abatement or remediation activities in US public buildings (such as the school in the Ryan paper) the EPA requires that the residual asbestos fibres be measured accurately). This is done by transmission electron microscopy (TEM), which although time-consuming is sensitive enough to distinguish one fibre type from another. The microscopict examines a sample containing a known percentage of the fibres, calculates the ratio of asbestos to non- asbestos fibres and then applies it to the total fibre count to determine the concentration of "(asbestos) structures per cubic centimetre" (i.e. s/cc). The Position of the Appellant [67] Ms Woodhouse, counsel for the appellant, filed written submissions prior to the hearing of May 2016 which provided a synopsis of submissions and made oral submissions at the hearing. [68] In respect to the background it was stated that Mrs Mcrae was employed as an accounting clerk at Lombard House, 39 Johnston Street, Wellington and was employed 40 hours a week between 1968 and 1971 and received a salary during that time. [69] Ms Woodhouse refers to building consents provided by the Wellington City Council outlining that Lombard underwent renovations in 1968 and that Mrs McRae instructs that this construction period was approximately a year. Counsel outlines the evidence filed and refers to the law. She refers to s 30(3) of the Act which provides: 30 Personal injury caused by work-related gradual process, disease, or infection . . . (3) Personal injury caused by a work-related gradual process, disease, or infection includes personal injury that is- of a type described in Schedule 2; and suffered by a person who is or has been in employment- (i) that involves exposure, or the prescribed level or extent of exposure, to agents, dusts, compounds, substances, radiation, or things (as the case may be) described in that schedule in relation to that type of personal injury; or (ii) in an occupation, industry, or process described in that schedule in relation to that type of personal injury. (3A) To avoid doubt, where a claim is lodged for cover for a work-related gradual process, disease, or infection, section 57 applies to require, among other things, the Corporation to investigate the claim at its own expense. [70] She also states that mesothelioma is listed as an occupational disease under Schedule 2 of the Act. [71] Ms Woodhouse, Counsel for the appellant states at 3.3 of her submissions: The interaction between s 30 and s 60 creates a presumption that when a person suffers a personal injury, described in Schedule 2, and on the balance of probabilities that person has been in employment which exposes them to risk of the disease specified (here asbestos), then cover should be extended. This shifts the normal evidential burden of proof from the claimant to ACC. This means the ACC must prove that there is either no personal injury as described in the Schedule or that there is a cause other than the employment which has resulted in the personal injury. [72] In her oral submissions she discussed these sections. [73] Section 60 of the Act states: 60 Decision on claim for Schedule 2 injury The Corporation may decline a claim that a personal injury is a work-related personal injury of a kind described in section 30(3) only if the Corporation establishes that- a) the person is not suffering from a personal injury of a kind described in Schedule 2; or (b) the person's personal injury has a cause other than his or her employment. Schedule 2 includes occupational diseases and states: Lung cancer or mesothelioma diagnosed as caused by asbestos. [74] Ms Woodhouse submits that the usual requirements of causation in s 30(1) and (2) do not apply. In this she refers to s 30(4) of the Act which states: (4) Personal injury of a type described in subsection (3) does not require an assessment of causation under subsection (1)(b) or (c). (4A) This Act covers personal injury caused by a work-related gradual process, disease, or infection only if- (a) the exposure to the gradual process, disease, or infection actually occurred in New Zealand; or (b) the person concerned was ordinarily resident in New Zealand when the exposure actually occurred. [75] MS Woodhouse at the hearing also referred to s 30(3)(a) which states: To avoid doubt, where a claim is lodged for cover for a work-related gradual process, disease, or infection, section 57 applies to require, among other things, the Corporation to investigate the claim at its own expense. 76] Ms Woodhouse stated that s 57 applies to require "among other things", that the Corporation investigate the claim at its own expense. This section is headed: Steps Corporation takes to action complicated claims for cover [77] She submitted, in her written submissions: 4.1 Mrs McRae has a confirmed diagnosis of left-sided pleural mesothelioma. Mesothelioma is one of the occupational diseases listed in Schedule 2 of the Act. The ACC have accepted that Mrs McRae suffered from mesothelioma. 4.2 Under s 30(3) of the Act, if a claimant is suffering a disease listed in Schedule 2 then it must be determined whether the claimant is or has been in employment involving exposure to agents, dusts, compounds, substances, radiation, or things (as the case may be) described in that schedule with regards to that type of personal injury. 4.3 Therefore under s 30(3) Mrs McRae needs to show, on the balance of probabilities that she was exposed to asbestos in the course of her employment. It is submitted that this has been met. 4.4 Mrs McRae has consistently outlined throughout the correspondence with the ACC that she is of the view that she was exposed to asbestos during her employment at Lombard House. For example, in the initial ACC45 claim form dated 12 January 2015, Mrs Mcrae outlines the accident scene as "workplace and home renovations" and notes exposure to asbestos at 'Lombard Finance when being renovated'. Evidently this was a 'memorable event ' in Mrs McRae's mind. [78] Ms Woodhouse provides a footnote stating: 4. This is in contrast to the facts of Bird v ACC (2011) where it was alleged by the respondent that there was no memorable event. [79] Ms Woodhouse also refers to the report provided by Ms Law outlining the significant demolition was undertaken in 1966. This was prior to Mrs McRae commencing work at Lombard House. Ms Woodshouse states that Ms Law identifies a number of asbestos related products that were taken out of the building during this period. She states: ... The focus of this building report was what was removed from the building, therefore it does not shed light on the replacement materials used. As asbestos-containing materials were prevalent during this time, it is likely that the additional asbestos-containing materials were used to replace aspects of the building after the demolition, or that there was residual asbestos- containing materials. [80] In the footnote 5 counsel refers to the fact there is still asbestos present in Lombard House and refers to an email from Carl Hastings dated 16 March 2016 which notes the owner of the property was aware of the asbestos in the lobby area during 1995-2003. [81] Ms Woodhouse also refers to Ms Law outlining the interior fit-out which took place in 1968 during which time Mrs McRae was working at Lombard House. Ms Woodhouse also refers to Ms Law noting the Malthoid bituminous fabric separator was specified as a damp-proof course to separate all timber from contact with concrete. Although the second bundle of documents included all the Court documents, no reference was supplied. Ms Woodhouse states that Ms Law further notes that this material was suspected of containing asbestos. [82] Ms Woodhouse submits that Dr Monigatti's contention that Ms Law "acknowledged, no asbestos containing material was used" is erroneous and she refers to the reference by Ms Law outlining that malthoid bituminous fabric separator was used, which was suspected of containing asbestos. [83] Ms Woodhouse states that this present case can be distinguished from Bird v ACC in which the appellant alleged he was exposed to asbestos when walls were stripped in his workplace however there was no evidence adduced to show that this event took place, nor was there any evidence showing materials containing asbestos. She refers to Judge Ongley in Bird v ACC noting at paragraph [24]: There was no evidence of the asbestos being disturbed, or that the mouldings would have actually contained asbestos. If there had been asbestos in the building in question, it would have been sealed or a stable state not creating exposure and the mouldings may never have obtained asbestos. Therefore the question of exposure was only a risk of possibility. [84] She also refers to Judge Ongley outlining "employment involving exposure": ..is descriptive of employment that has some discernible element of probable exposure in the employment task or environment. If there had been asbestos lust, .. or disruption of asbestos fabric, then cover would be available without proof of causation, subject to a reverse onus in s 60. [85] Ms Woodhouse submit in this case there is a "discernible element of probable exposure" supported by the following considerations: i. Mrs McRae has constantly recalled throughout all correspondence that she is of the view that she was exposed to asbestos at Lombard House; ii. Mrs McRae has instructed that she recalls being amongst the construction for a prolonged period of time and recalls exposure to dust iii. Ms Law outlines in her report that for building works undertaken/constructed before the mid 1980's, a number of commonly used materials at the time contained asbestos; iv. Building records obtained demonstrate that Lombard House underwent significant renovations from 1968 onwards, corroborated with Mrs McRae's evidence; [2011] NZACC 26. N Bird v Accident Compensation Corporation [2011] NZACC 26 V . The building records outline a material suspected of containing asbestos was used during the 1968 renovations; and vi. In order to create office spaces existing walls and floorings would have had to be disturbed. As outlined by Ms Laws, many materials used for building prior to the 1980's contained asbestos which in turn were likely to be disrupted during renovations. [86] Ms Woodhouse also submitted in her synopsis that: 1.8 The ACC without any investigation of employment as required by s 30(3)(a) rejected the claim on the basis that she had no known occupational exposure to asbestos. 1.9 This is a complete failure of its statutory duty under s 57 where they must investigate the claim at ACC's expense. 1.10 It was left for a dying woman to organise assistance at her own expense to investigate. [87] She also refers to reports being obtained from the architect Ms Law and from asbestos expert Professor W Glass concerning the renovations. She states: 1.14 Given these reports the ACC cannot establish as required by s 60 that the applicant is not suffering from mesothelioma caused by asbestos or that the applicant's mesothelioma was caused other than her employment. 1.15 Instead the ACC continue to misapply the Act and the case law. [88] Ms Woodhouse refers at 1.6 of her additional submissions: Dr Monigatti for the Corporation applies the wrong test for Schedule 2 injury. In his report dated 16 June 2016 Dr Monigatti notes "When there is significant (i.e. non trivial) above "background exposure to asbestos" there is an increment that is incremental upon, and additional to, any background effect extra fibre load is regarded as having made a causal contribution if it were work related, ACC cover ensues" [89] She submits that Dr Monigatti uses the word "significant" which is the test under s 60(2) but not under s 30(3) and that the Corporation is trying to introduce the significantly higher risk test in s 30(2). [90] She continues with her synopsis: 1.18 Furthermore if they were not applying the wrong test it is not sufficient for ACC to merely assert its contrary view. Under s 60 they need to establish that Mrs Mckae is not suffering mesothelioma caused by asbestos or that the mesothelioma has a cause other than her employment. 1.19 Dr Monigatti also misinterprets this case law. At paragraph of the ACC submissions he sets out 'The Court has established that there is an onus on the client show [sic] that the level of exposure was capable of causing disease' (report dated 11 February 2015). 1.20 Presumably he is referring to Bird v Accident Compensation. 1.21 It should be noted that ACC later accepted the claim of Mr Bird. 1.22 However as there is no evidence of work place exposure in Bird, counsel for Mr Bird raised a novel argument that all was required by the wording of the legislation was that it is enough for someone to be suffering from mesothelioma, providing they had been in employment at some stage. In effect all that was needed was some risk, not specifically a work place risk (see paragraphs [19] and [21] of Bird). 1.23 The novel argument was rejected by Judge Ongley and it is in this sense that his comments should be viewed. 1.24 Bird is now authority for Dr Monigatti's assertion that there is an onus on he claimant. Indeed at paragraph [18] of Bird Judge Ongley points out the onus of disproving causation lies with the respondent under s 60. 1.25 There is also no authority for Dr Monigatti's assertion that the onus is on the client to show that the level of exposure is capable of causing a disease. That again shows that the Corporation is trying to bring in the s 30(2) requirements to a s 30(3) claim. [91] Finally she submits that the Corporation's approach is against the "generous and unniggardly" approach required by the Court of Appeal in Ambros.3 Position of the Respondent [92] Ms Hansen also filed written submissions in July 2016 and spoke to these at the hearing. She refers to Lombard House undergoing building alterations in 1966 including the removal of asbestos-containing materials and that it underwent an office/interior fit- out in 1968 comprising mainly the creation of rooms or spaces on levels 2 to 4. She Accident Compensation Corporation v Ambros [2007] NZCA 304; [2008] 1 NZLR 340 confirms that Mrs Mcrae worked in the building while these renovations were carried out. Ms Hansen referred to the fact that an email from the former owner of Lombard House Peter Takadas said in an email of 16 March 2016 that he undertook extensive renovation work between 1995 and 2003 at which time there was asbestos in the wall linings in the lobby. [93] She also refers to the report from Ms Law and the additional evidence provided by Dr Monigatti. [94] Ms Hansen stated that at the review hearing Mrs McRae said she worked at Lombard House from 1968 until 1971 and that she feels this was the only time she could have been exposed to asbestos. She believed she had been unfairly treated because she was a woman in an asbestos context. [95] Ms Hansen sought further comment from Dr Monigatti in respect to Malthoid bituminous fabric separator being likely to have contained asbestos and, if so, whether it might have been the source of asbestos exposure for Mrs McRae. [96] Ms Hansen stated that Dr Monigatti replied on 16 June 2016 noting it was possible low quantities of white asbestos had been used to reinforce the product but he was unable to confirm it. He said that even if it had contained asbestos the malthoid bituminous would have been regarded as nonfriable asbestos and provided it was not worked on with abusive or cutting tools it was unlikely to present a health risk. He also said there was no guarantee this product was used in the fit out. [97] She also referred to Dr Monigatti's evidence in respect to exposure to expirable asbestos fibres. [98] In respect to the law counsel also refers to s 30(3)(a), (b)(i) and (ii) of the Act and states that once the relevant exposure is proved on the balance of probabilities the onus shifts to the ACC under s 60. [99] Ms Hansen refers to the fact that pursuant to s 60 the Corporation may decline a claim that a personal injury is a work-related injury described in s 30(3) only if it establishes: [a] That the person is not suffering from a personal injury of a kind described in Schedule 2; or [b] The personal injury has a cause other than his or her employment. [100] Ms Hansen refers to the decision of Priddle v ACC where the Court of Appeal held that s 30(3) was not an extension of the general provision for work related gradual process injuries. Section 30(3) stands on its own and meaning must be given to the expression "employment involving exposure". The Court held that all that is required under s 30(3) is proof of workplace exposure. [101] She also refers to the decision of Bird v ACC and Judge Ongley conclusion see paragraph [85] above). [102] In her submissions counsel states that when asbestos was removed from Lombard House in the 1968-1967 renovation there was no evidence that Mrs McRae worked there at the time. 103] In respect to the work which was undertaken in 1968 the evidence from the Wellington City Council, and Ms Law, is that renovation was an interior fit out. [104] Ms Hansen refers to Dr Monigatti, reviewing the building application forms and his opinion that the work did not involve any demolition and that an email from the subsequent building owner states that the building still contained asbestos sealed in the wall linings. 105] She states there is no evidence that any residual asbestos was disturbed during the 1968 renovations. She refers to the fact that Ms Law acknowledged that the majority of building materials used in the fit out were not known to contain asbestos (CA 223/05). and the only material she could identify as being relevant was malthoid bituminous fabric separator which is a damp-proof course to separate timber from contact with concrete. Ms Hansen submitted that Ms Law's evidence is only that this particular material is "suspected of containing asbestos". [106] Ms Hansen refers to Dr Monigatti's view that even if malthoid bituminous contained asbestos it would not pose any risks, and there was no confirmation that it had in fact been used. [107] Ms Hansen also refers to the fact that Dr Monigatti was of the view that the renovation specifications showed it was unlikely the staff would have been present while the work was still in progress but if they were "exposure to inspirative asbestos fibres would have been at background level only and not a plausible cause of mesothelioma". She refers to the further opinion of Dr Monigatti that virtually all adults and without a history of exposure to asbestos at work or non-work environments have asbestos fibres in their lungs as a result of background exposure from asbestos containing materials. [108] It is Ms Hansen's conclusion there is no more than a risk of workplace exposure and that the Corporation is correct in declining cover. [109] Counsel also referred to the evidence Professor Glass made of the information on the 1968 renovation, and his reliance on information from the American study. She refers to the rebuttal evidence by Dr Monigatti that the levels relied on by Professor Glass is still below those of a background level and cannot establish that Mrs McRae had been exposed to asbestos in the workplace. [2011] NZACC 26. [110] Ms Hansen also refers to the evidence that Mrs McRae made disclosures that she had on occasions worked in renovating houses and ceilings and that no rebuttal evidence has been provided in this issue. [111] Ms Hansen submits that the primary submission is that Mrs McRae is required to prove, on the balance of probabilities, that there has been workplace exposure to asbestos. Counsel submits this is highly unlikely and is a possibility only. [1 12] She refers to the fact that Judge Ongley in Bird says that the possibility is not enough and must be a higher level than this otherwise everybody would be covered. Discussion and Analysis [1 13] The first issue to be determined is the law that applies to this matter. It is accepted that s 30 of the Act has application. In addition, it is accepted that Schedule 2, which deals with occupational diseases, including lung cancer or mesothelioma diagnosed as caused by asbestos, applies. [1 14] Section 30(3) deals with personal injury caused by a work related gradual process, disease or infection and includes personal injury that is: (a) of a type described in Schedule 2; and (b) suffered by a person who is or has been in employment- (i) that involves exposure, or the prescribed level or extent of exposure, to agents, dusts, compounds, substances, radiation, or things (as the case may be) described in that schedule in relation to that type of personal injury; or (ii) in an occupation, industry, or process described in that schedule in relation to that type of personal injury. [115] Accordingly, in this case the relevant words for consideration are "suffered by a person who is or has been in employment ... that involves exposure". [116] Section 30(3A) states: (3A) To avoid doubt, where a claim is lodged for cover for a work-related gradual process, disease, or infection, section 57 applies to require, among other things, the Corporation to investigate the claim at its own expense. [117] The Investigation Process, as such, is set down in s 57 of the Act under the heading "Steps Corporation Takes to Action Complicated Claims for Cover". [118] Pursuant to s 57(1)(b) this section applies to the present claim. [119] Section 57(2) sets out specifically the steps the Corporation is required to undertake: (2) The Corporation must take the following steps as soon as practicable, and no later than 2 months, after the claim is lodged: a) investigate the claim- i) at its own expense; and ii to the extent reasonably necessary to enable it to take the following steps in this subsection; and (b) either- (i) make its decision on the claim and give notice of it under section 64; or (ii) decide that it cannot make its decision on the claim, or any other decision, without additional information, and tell the person of the extension, which must not exceed 2 months, that will be required. Procedure [120] The claims were filed on or about 27 January 2015 and the decisions that were made by the Corporation were issued on 16 and 17 respectively of February 2015. [121] Section 30(4) of the Act states: (4) Personal injury of a type described in subsection (3) does not require an assessment of causation under subsection (1)(b) or (c). [122] To have application, both elements of s 30(3) must apply, i.e. a personal injury and either s 30(3)(b)(i) or s 30(b)(ii) (see paragraph [115] above). [123] For s 30(3)(b)(ii) to have application, this accordingly requires Mrs McRae to establish that mesothelioma was diagnosed as being caused by asbestos and was suffered by Mrs Mcrae while in employment that involved exposure to asbestos. [124] Section 30(4A) is not in issue as it is not suggested Mrs McRae contacted mesothelioma out of New Zealand. [125] Section 60 of the Act states: 60 Decision on claim for Schedule 2 injury The Corporation may decline a claim that a personal injury is a work-related personal injury of a kind described in section 30(3) only if the Corporation establishes that- (a) the person is not suffering from a personal injury of a kind described in Schedule 2; or (b) the person's personal injury has a cause other than his or her employment. [126] Accordingly, the Corporation may decline a claim that a personal injury is a work related personal injury of a kind described in s 30(3) (see paragraph [115] above). [127] With respect to the present proceedings, the steps indicated are: 1. Claims were lodged on 27 January 2015. 2. In respect to satisfying that s 30(b)(ii) applies, i.e. that Mrs McRae is a person who is or has been in employment which involves exposure (to asbestos), the evidence that was provided by the appellant has been as follows: a. The first medical report of 5 November 2014 where Dr Smith states: She has no confirmed asbestos exposure but in the 60s and 70s spent a significant amount of time renovating old houses including pulling out walls and spending time in the ceilings. b. In the Corporation's claim form 12 January 2015, under accident scene states "workplace and home renovations". Under exposure to asbestos states "while renovating old houses and at work at Lombard Finance while being renovated". C. The Cover questionnaire completed by Mrs McRae dated 5 February 2015 states: As asbestos was not banned until late 1980s hard to say - worked at Lombard New Zealand (Wellington) which building was renovated in 1969. Also in the same document she states that she was employed by Lombard New Zealand Limited as an accounting clerk from 1969 to 1971. d. In the same questionnaire, in respect to additional information, Mrs McRae states: 1. Besides Lombard New Zealand the only thing I can think of is that one day was spent at Datacom on a "working bee" scraping painting staffroom at CML Building, Wellington CML was an old building. 2. Also air conditioning in the ceilings; in the past, were cleaned while employees were sitting at their desks (location not provided). e. Dr Bupha-Intr's report of 5 February 2015 states: With regard to her exposure to asbestos, she tells me that in the 60s she spent a considerable amount of time renovating old houses pulling out walls and spending time in the ceilings. She also recalls being in an office during which time they were undergoing significant renovations that were thought to contain asbestos. f. Subsequent to the Corporation decision, and prior to the review decision, the following information in respect to supporting any exposure to asbestos at Lombard House includes: An email from the subsequent owner (1995 to 2003) who noted "only asbestos I was made aware of was in the lobby. This was in the wall linings. These were lined and sealed in place". The architect's report from Ms Law of 22 March 2016 which included: - For building works undertaken/constructed before the mid- 1980s, a number of the commonly used materials at the time contained asbestos. Work undertaken in Lombard House in 1966 specifications included that existing asbestos containing materials to be removed. She states: New materials may have had asbestos contained vinyl tiles. Autistic ceiling tiles. Lagging hot water system. Office interior outfit 1968. Council approved early 1968. Ms Law notes: Malthoid bitumous fabric separator specified as a dump course. Suspected of containing asbestos. g. Other evidence includes a document stating "brief of evidence from Laraine McRae" (as document number 1 in the bundle of documents), which is unsigned and undated. This document was not referred to specifically at the hearing or in the submissions of Counsel. On the face of it would appear to relate to a period subsequent to the review hearing. This has been attributed to Mrs McRae and it is intended to deal with credible findings in respect to this evidence. h. The transcript of the review hearing is also provided in the bundle of documents. [128] It should be noted although there is a degree of informality particularly at the review hearing stage, in respect to an appeal, the Evidence Act 2006 applies. Accordingly, from the review transcript it should be noted: [a] The hearing commenced on 18 February 2016 and was subsequently adjourned so that Ms Law's evidence, which in fact is dated 22 March 2016, could be provided and referred to the Corporation. [b] Although a brief of Mrs McRae's evidence is referred to it was not made available at the hearing. It stated at page 15 of the transcript by her counsel Ms Woodhouse that: Yeah, that's what I've got recorded in the brief of evidence, but we haven't managed to sign it off yet, and I haven't disclosed it to Julia so I don't want to ... bring that up yet. [c] There is no evidence a brief of evidence was provided and it certainly is not referred to in the decision of the reviewer. [d] It is noted at page 9 of the review decision that Mrs McRae was sworn in and was questioned by Counsel and the Reviewer, Ms Anderson: Ms Woodhouse: Ok. Do you want to lead that evidence? Mrs McRae: Yes, absolutely so (inaudible) introduction. Obviously the focus is on the employment during Lombard House. . . . Ms Woodhouse: Ok. So the dates that you worked at Lombard House. Do you recall the dates, the time of - you know, the years that you worked at Lombard House? Mrs McRae: Yeah. I do. They were 1989 to I don't know what time. 1990 ... I don't know. [e] Mr Hastings, Mrs McRae's son, intervened at this stage and was sworn in . Mr Hastings: Approximately June last year Laraine had a stroke. Ms Anderson(the Reviewer): Oh right. Mr Hastings: After the chemotherapy treatment. Ms Anderson: Right. Mr Hastings: And that caused aphasia which makes it difficult to recall numbers. Ms Anderson: Right. Mr Hastings: And things like that. so unfortunately she can get numbers quite confused and also memory is affected and ... so word selection ... numbers and her memory unfortunately at times can just be a little bit off, but, you know the majority of the time it's ok, but just sometimes with the numbers and recollections of dates can be hard. Ms Anderson: Ok. Ok, well let's make it easy as we can. So just, so just do it in the way that - . . . Ms Woodhouse: So previously you said you worked there from 1968. Mrs McRae: Yeah Ms Woodhouse: But perhaps earlier Mrs McRae. Mrs McRae: Yeah. Ms Woodhouse: Until approximately 1971 but perhaps later. Mrs McRae: No, it wasn't up to 19 - it would be up to 1970 it wouldn't be after 1971. Ms Woodhouse: OK. Mrs McRae: 'cause that's when Carl was born. Ms Woodhouse: Ok. But when so about 1968 to about 1970? Mrs McRae: Yeah. Ms Woodhouse: OK Mrs McRae: Could be. Yes, yes. . . . Ms Woodhouse: Ok, can you please describe if you remember any construction work happening at Lombard House. Mrs McRae: It's going all over the place. It's - I mean I worked from the ground floor and then I worked up in the fourth floor. So I mean I was working on the first floor, on the ground floor and then I went up to the fourth floor. Ms Woodhouse: mm. Mrs McRae: So - I mean, this was over the period of a year I was working there. Ms Woodhouse: Mm. Mrs McRae: And I was working in both areas. Ms Woodhouse: Sorry, just to be clear. So over - the construction happened over a period of a year. Mrs McRae: Yeah it would be yes. Ms Woodhouse: Ok. There was ... did you see construction work. You mentioned on the phone you thought it was very messy during the time at the workplace. Mrs McRae: Oh yes, it was, yeah it was, yes. Ms Woodhouse: Ok, and so you were sort of working among the construction and all that. Mrs McRae: We were. We all did. You know, we all worked amongst it and that was it. . . . Ms Anderson: So when you were working at Lombard you were working as an accountant or some sort of accounts things in the building. Mrs McRae: Yes. Yes, it was. Then I went upstairs and I was working, I - I don't know what you call it because you just didn't do that sort of work today. It's the sort of work that is done by much a more senior person. Ms Anderson: Mm. Mrs McRae: And I mean we just did this sort of work. I mean, I was secretary to the company. Secretary but not in a secretarial role ... Ms Anderson: Yeah and that was between 1968 and 1971 and you think that for a year of that three year period Lombard was renovating. Mrs McRae; Yeah. Yes. That's right. Ms Anderson: OK. Mrs McRae: So probably earlier. Yeah. Ms Anderson: Sorry. Mrs McRae: Probably earlier rather than later. Ms Anderson: Oh, so early in the period do you think? Mrs McRae: Yeah. Ok. ... Ms Anderson: So do you intend to ask about whether she saw asbestos or it was noted, or I mean is that Ms Woodhouse: Yeah, I mean. Ms Anderson: Because they're certain I - you know I'm unsure what the Lombard. Ms Woodhouse; Oh yeah. Ms Anderson: It's proof - it's proof there's a building application but it doesn't. Ms Woodhouse: Yeah, sure. Ms Anderson: Prove that there's asbestos. Ms Woodhouse: Yeah. Did you see any dust. Mrs McRae: Yes I saw dust yes. Ms Woodhouse: But we haven't been able to ascertain if it was asbestos related or not. Mrs McRae; No. . . . Ms Woodhouse: I mean the building records also make reference to you know, we have to remove dust before painting. So there is the inference that there was a lot of dust around. And there are several references to asbestos related materials that would have contained asbestos during that period. Ms Anderson: Right such as putty and gib board and plastered walls. But obviously that's in ACC's hands now to consider ... Ms Woodhouse: That is my - I looked up a few of them of the items, just on Google. Things like putty, plastered walls. Ms Anderson: But I would like to get a report, given you know, after we receive back the report back from ACC it would be good to get a report on those aspects as well. . . . Ms Anderson: So is there anything else you can say that would help me to work out, or help, and ACC to work out whether you should have cover for asbestos related disease Mrs McRae: Just ... I just can't think of anything else that would have given me this. Ms Anderson: Yeah. Mrs McRae: Given that I thought that the property in Byron Street, but I didn't know until yesterday and Carl said to me, it wasn't even entered into. Ms Anderson: Yeah Mrs McRae: So I believe that asbestos had been around for years and I hadn't realised it had only been around for a certain length of time. [f] In Professor Glass's report at page 84 of the document he states that on 14 October 2016 he had an interview with Mrs McRae and he noted that her son Carl kindly took him to Mary Potter Hospice to meet with her. He reports: On arrival Laraine was sleeping with her book open beside her. She awoke over a few moments and we were introduced by Carl, she was expecting me. We chatted about her work and her exposure to asbestos. It was a helpful conversation with a lucid and charming woman aware of the terminal nature of her condition. We discussed the renovations that had occurred at her workplace prior to her employment and the further renovations that took place during her employment at Lombard House. I was able to bring the discussion back to the 60s as my father was a builder in Wellington at the time and earlier and had specialised in what was then called "shop refitting". In essence removal of old interiors and renovating and refitting them. It was a useful exchange as it confirmed that her asbestos exposure had to be considered at that period of time rather than currently when a greater awareness of asbestos exists. Discussion [129] I have some difficulty with Professor Glass's report in that it would appear that the original documentation from Dr Monigatti may not have been made available to him. [130] In the Bundle of Documents at page 48 where Professor Glass is addressing asbestos at Lombard House in 1966-1971, there is no indication that he has any access to Ms Law's report. His information appears to have been based on the respondent's counsel's submissions which presumably were supplied to him. [131] In respect to the "background" at paragraph 10, page 2, what in fact he is referring to is counsel's commentary on Ms Law's report, not her evidence. For example, where it states it is also noted "no record of how the material was removed or the building decontaminated" this does not mean that this information does not exist but that Ms Law has not commented on these matters in her report. [132] Paragraph 2 in his analysis is also information from Ms Law's report and is merely her comment on the situation and is not evidential [133] Similarly, when he refers to paragraph 12, page 3 of the evidence given by Mrs McRae and her son, this is also from Counsel's submissions. As noted earlier from the review transcript, Mrs McRae was unable to identify when she worked at Lombard House. [134] The questions were leading questions and Mrs McRae was essentially only agreeing with what her counsel put to her. [135] In all her other evidence, particularly the questionnaire she personally filled in, Mrs Mcrae stated that she commenced her employment in 1969. No other independent evidence has ever been produced to substantiate the employment dates. [136] This is not to criticise of Mrs Mcrae in anyway as it is recognised that her health was deteriorating. [137] Professor Glass, also revisits the situation of the renovations in 1966 to 1967. It does not appear, from his evidence, that he has not personally looked at any of the Council documentation and speculates only as to how the renovations would have been carried out at the time based on the asbestos regulations and what the general awareness was as to the health risks of asbestos, which at that time were very low. [138] Although it is accepted that Professor Glass was a student at that time, and had a father involved in the industry, his view as to whether there was any residual asbestos or contamination can only be highly speculative. [139] The position of the Corporation is the question of whether it has been established, on the balance of probabilities, that Mrs McRae, who it is acknowledged has mesothelioma, was a person who had been in employment that involved exposure to asbestos. [140] The consistent evidence of Dr Monigatti is that it is a requirement that it is necessary for the appellant to establish she has had exposure to asbestos in the places of her employment and if the appellant suffered workplace exposure she is not required to demonstrate that was the cause of her mesothelioma. This does not mean however that the consequence of this is that there is a presumption of workplace exposure even if the exposure is no greater than the general background exposure as long as there was an exposure. [141] The requirement, as stated in paragraph [20] of the Bird decision by Judge Ongley, is the argument makes redundant the requirement of "suffered by a person who has been in employment involving exposure". Judge Ongley states in Bird: [20] ... In ordinary language employment involving exposure relates to employment related exposure. It could possibly bear the meaning used by Mr Miller, which is more akin to employment coinciding with exposure but the purpose of s 30(3) and Schedule 2 is quite obviously to cover work related diseases. Schedule 2 has the heading occupational disease, and all references in the Act to Schedule 2 refer to work related or occupational diseases or personal injury . [21] ... But the Court of Appeal in Priddle decided that section 30(3) was not an extension of the general provisions for work related gradual process injuries. Section 30(3) stands on its own and the meaning must be given to the expression "employment involving exposure". [142] Accordingly, it requires evidence of a realistic or significant exposure and to a degree of higher than just being in the atmosphere. [143] I note Dr Monigatti, as to the standard required, stated in his first report: However, the Court has established that there is an onus on the client to show that the level of exposure was capable of causing the disease. Potential or innocuous exposure at work, irrespective of the person's work, is not the basis for cover. [144] The threshold is not to the extent of Mrs McRae being required to establish that the level of exposure was "capable of causing the disease". As Judge Ongley has stated at paragraph [25], the question of risk or possibility of risk is not sufficient. The expression "employment involving exposure" is descriptive of employment that has some discernible element of probable exposure in the employment task or environment. [145] In respect to the report from Ms Law, she has dealt with the building alterations from 1966 and the fit out of 1968. Dr Monigatti responds on 30 March 2016 having reviewed the building application forms for the work carried out at 39 Johnston Street, Wellington where Lombard House is cited. [146] He refers specifically to the information relating to the work undertaken in the 1966, 1967 renovations and states that: New vinyl tiles were laid, fibrous plaster ceiling tiles were fitted and copper piping properly lagged concealed in partitions, was stored at the time. [147] He also states: Probable the tiles were asbestos in backing, less likely than not the lagging was asbestos (Tasman insulation had manufactured pink bats and other fibreglass insulation since 1961), and unlikely any acoustic installation material would be used in the ceiling contained asbestos. [148] It is his view that none of these pose any problems for Mrs McRae whose two years of tenure did not commence until 1969. It is noted this information comes directly from Mrs McRae's information provided on the questionnaire. He refers to the interior fit out on second and third floors in 1968. He refers to the fact that it relates to the installing of partitions, panelling, storage units, lighting etc and he notes there was no demolishment beforehand and no ripping up of floor tiles and no tearing off of pipe lagging. [149] Dr Monigatti, in his report, states "as Ms Law acknowledges, no asbestos containing materials were used" [150] He notes that according to the specification "the tenant is entitled to occupy spaces on either floor which in the opinion of the architects are completed and ready to occupy". He states it is unlikely that staff were in the vicinity while the work was in progress but even if they were the exposure to respirable asbestos fibres during and after the fit would have been at background level only and not a plausible cause for Mrs McRae's mesothelioma. [151] Dr Monigatti's last report is after that received from Professor Glass. Dr Monigatti takes issue with Professor Glass's reliance on the Ryan US study. He in fact, provides a copy of the multitudenal study of the American Public Building Following Asbestos Removal Report dated December 1996. [152] Since this is one of the main tenets of Professor Glass's report it is important that I refer to it in detail: In the 1990s, anxiety caused by potential non-occupational asbestos exposures was fuelling a multi-billion dollar industry annually in the United States to remove asbestos products from commercial buildings and schools. The study by Ryan et al was an attempt to demonstrate that such activity is often unnecessary and not without risk, through contamination of the building during the removal and re-suspension of the fibres through subsequent cleaning -and renovation. The authors measured asbestos levels in a high school of 1600 pupils constructed in 1970, which had undergone two major asbestos removal operations in successive summers. The trigger was the need to strengthen the school roof structure, which inevitably would have disturbed some asbestos- containing material, so the school district decided to remove all of it. The scope of the work was such that it took three summers in total, on each occasion a different part of the school. The asbestos-containing structures were identified as cementitious spray-on fireproofing insulation and acoustic spray-on "textured" ceiling treatment (both chrysotile, or white asbestos), and water system pipe fittings (amosite, or brown asbestos). Al of the asbestos-containing materials were in good condition beforehand, and the removal was done under appropriately controlled conditions. Sampling before the project began revealed a level of 0.0004 asbestos structures per cubic centimetre (s/cc) of interior air, comparable with urban and household background levels in the US in general. Post-removal sampling began on day 1 after the containment was dismantled and continued for 26 evenings over two years. Of the 289 samples collected, 120 were chosen at random for analysis. At 53 days the level was 0.0006 s/cc, at 90 days 0.0016 s/cc, and at 653 days 0.0017 s/cc. There were two unexpectedly higher readings, 0.0045 s/cc at 44 days and 0.0057 s/cc at 158 days. The authors debated possible reasons for this but reached no firm conclusions. Sampling before Year 2 (Project 2) commenced on day 290 with a level of 0.0041 s/cc and post-clearance sampling took place on days 398, 418, 428, 439, 474 and 653 after the Year 1 removal. The concentrations ranged from the highest of 0.0060 s/cc at 428 days down to 0.0022 s/cc on day 653. Ryan et al concluded that asbestos removal, by nature, is likely to increase the airborne concentrations of asbestos and that these levels could persist for an extended period of time. They felt that this reflected the nature of the work as opposed to improper removal procedures, and hypothesised that larger asbestos fibres were preferentially re-suspended from interior surfaces while the smaller ones were more likely to be exhausted from the building. On the basis of their findings the authors advised that the presence of asbestos materials did not justify removal unless a specific need was identified. Ryan et al took care to point out that whilst a corresponding increase in risks for occupants could be debated the overall risks still remained low, particularly when prorated over a lifetime. To put it into perspective, the current health standards for schools in the United States are a background asbestos level of 0.002 s/cc and a clearance limit of 0.02 s/cc, the latter demonstrating acceptable clean-up following an asbestos removal project That clearance limit is one-tenth of what Environmental Protection Authority (EPA) considers the acceptable level of exposure to asbestos fibres over an eight-hour working day for an entire working life time. So, the concentration of 0.0017 s/cc at 22 months post-removal (cited by Dr Glass) is still many orders of magnitude below what would constitute significant "above-background' levels in the United States, and a little under the acceptable background level. It is noteworthy that Dr Glass: having quoted most of the abstract of Ryan's paper, omitted the sentences "Despite the significant rise in asbestos levels, the asbestos-related health risks were extremely low. Significant differences in surface concentrations (of fibres) were not observed." Nor did he point out that the school had been re-occupied at Day 40 after the first remediation or that none of the readings at any time led to an evacuation. Mrs McRae did not work in a building from which extensive asbestos removal had been undertaken. As indicated previously, exterior cladding containing some asbestos appears to have been stripped in the 1 966/67 renovation, and if the new floor tiles installed at that time were asbestos-backed the release of fibres would have been minimal. It is my opinion that Dr Glass has overstated the risk to Mrs Mcrae considerably, and that the asbestos levels in the workplace during her time there many months later are likely to have been in the normal background range. [153] While the information provided by Professor Glass has identified three issues, background exposure to substantial building renovations over 1996 and 1997, and the removal of the asbestos, in reality there appears to be a considerable amount of the evidence of Dr Monigatti that Professor Glass does not disagree with. [154] The position taken by Dr Glass in respect to Issue One, and the background exposure, is that he agrees with Dr Monigatti that given that information in respect to malthoid is not available there is an argument with respect to uncertainty and accordingly no reliance can be put specifically on the new interior outfitting which occurred in 1967/1968. [155] In respect to the renovations of 1966/1967 Dr Monigatti states in his report of 30 March 2016: I note that all the asbestos wall sheathing (exterior cladding), was stripped from the building during the 1966, 1967 renovation. [156] He refers to the new vinyl tiles etc that were installed at the time. [157] While it is impossible to know how the material that was stripped was removed the evidence does support that no matter if there were materials with asbestos in part replaced e.g. the tiles had asbestos backing there is no evidence that any materials were cut and damage was done to them at the time of installation. [158] This also applies as stated in Dr Monigatti's report of 16 June 2016 relating to the malthoid bitumous fabric separator which is regarded to be a non-fibre asbestos product. [159] At the time of the hearing I raised with Counsel whether either had made any investigation with the New Zealand Registers. These relates to the listing of persons who are of the view that they have been exposed to asbestos and identification of any work place building. No information from these sources was forthcoming. Credibility [160] Some of the concerns which arise from these proceedings are credibility issues. [161] There was no explanation provided as to the conflict of evidence between Mrs McRae's written documentation and the oral evidence from the review hearing. [162] One area of concern that arises is the fact that in the first report from Dr Smith of 5 November 2014 it specifically states that: In respect of Mrs McRae she smoked from her late 20s to the age of 60 up to 20 cigarettes a day. [163] In the questionnaire completed by Mrs McRae, in respect to the question "Did you or have you ever smoked?", the answer given is "No" and accordingly no dates are included. [164] Secondly, Mrs McRae's disclosures of working on house renovations. I take into account also her son Carl's understandable distress at his mother's health and his attempts, in the brief of evidence provided, and also in his testimony at the review, to suggest that the information in respect to the renovated houses was instigated by the doctor rather than Mrs McRae. The transcripts states at page 28: Mr Hastings: Yeah. It is when talking with the doctor. It was basically the doctor was asking about houses that had been renovated. And so - and so Laraine went down the path of wracking her brain over any houses that there could be. And then when she started thinking about workplace environments that's when she was straight away just mentioned Lombard House as something that was the only place that had work done on it at the time. And then when I just went and investigated a bit further about where the actual houses were and then it was then clear they were not your typical houses for asbestos being present due to their age. [165] Accordingly, no reliance can be placed on this evidence for the purpose of establishing Lombard House as the source of Mrs McRae's condition. [166] In addition, given the transcript of Mrs McRae's testimony at the review hearing I am not able to place reliance on Professor Glass's report relating his discussion with Mrs McRae who he describes as "lucid and a charming woman" only days before her death. [167] This is no criticism of Professor Glass, or of Mrs McRae, particularly given her tragic circumstances and the nature of her condition. But while sympathetic, the Court, as noted in Ambros, needs sufficient evidence on which to make proper findings of causation. [168] Accordingly, I do not accept the submissions of Ms Woodhouse that the reports relied on by Ms Law and Professor Glass confirm exposure by Mrs McRae in the workplace which brought about her injury. [169] In respect to s 57(2) and the mandatory requirement of the Corporation to take steps to investigate as soon as practicable. The evidence supports that Mrs McRae lodged her claim in or about 12 January 2015 and completed the Cover Questionnaire 29 January 2015. [170] The Corporation obtained a report from Dr Monigatti, dated 11 February 2015 who opined that Mrs McRae had no known occupational work-related exposure to asbestos. [171] Apart from the application at the time, other than the diagnosis, there was no additional evidence that indicated that a work-related gradual process was responsible and Mrs Mcrae herself, as well as the medical reports, raised other possible causative explanations. [172] The Corporation is required, no later than 2 months, to make its decision and this was issued on 16 February 2015, based on the advice of a specialist in occupational health. [173] I find accordingly, the Corporation had fulfilled this requirement. Conclusion [174] Pursuant to s 33 of the Act the test required is in s 30(3A) i.e. that the injury is one in Schedule 2. It is accepted that there is no argument here that Mrs Mcrae suffered from a Schedule 2 injury. That requirement is met. The second requirement is s 30(3)(b) requires a person is or has been in employment "that involves exposure ... to, dusts, agents, compounds ...", in this case to asbestos. This is not a causation question and on the balance of probabilities it lies with the appellant to establish Mrs McRae was "in employment which involved exposure to asbestos". [175] I find that a risk, or possibility of risk, from exposure to asbestos in her working environment has not been established. Although it is accepted that Mrs Mcrae worked in Lombard House somewhere between 1968/1969 and 1970/1971 I find the evidence, on the balance of probabilities, odes not establish that Mrs McRae was put at risk of being exposed to asbestos sufficient to bring about her health condition. [176] The only known information in respect to asbestos in any respect to the "fit out" at Lombard House, was a possibility only of some asbestos content in the malthoid bitumous fabric separator, specified as the damp proof course to separate timber from contact with the concrete. There is no specific evidence in respect to any renovation that any dust, let alone asbestos dust, was created. As stated in Ms Law's report: The building materials noted in the drawings and specifications were mainly timber, glass partition windows, metal frames, gibrator board and plywood lining, none of which are known to contain asbestos. [177] With respect to the natural and ordinary meaning of the phrase "employment that involves exposure", I find this does not mean or extend to employment where the only known exposure is a background or ambient exposure found everywhere in New Zealand were building renovations have been carried out from time to time. [178] I do not find there is any competing evidence that Mrs McRae has been involved in employment which involves her having exposure to asbestos. [179] No specific evidence, or submissions have been put before me in respect to the second review which relates to an entitlement of Mrs McRae to specific treatment, but this follows essentially the finding on the first decision. [180] Accordingly, both decisions of the Corporation are correct, and the decision of the review officer is upheld. [181] The appeal is dismissed. [182] There is no issue as to costs. Judge J H Walker District Court Judge Solicitors: John Miller Law, Wellington for the appellant Lisa Hansen, Barrister, Wellington for the respondent ACR 163-16-Estate of McRae