Estate of Watt v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 8 / 97 IN THE DISTRICT COURT DCA No. 6/93 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN THE ESTATE OF J.B. WATT APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland: 23 October 1996 Date of Decision: 30 January 1997 A.J.H. Witten-Hannah as counsel for the appellant A.E. Howman as counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE I have decided to allow the appeal. Introduction: The primary issue in this appeal is whether Mr Watt was entitled to compensation under s.7 of the Act. Mr Watt died in 1993 shortly after the review hearing. [P:\IMRIEJ\WATT.DOC JAB] 2. On 30 September 1992 Mr Watt lodged an M46 form of claim for cover and treatment expenses dated 21 September 1992. In that form the doctor described the injury as "mesothelioma (R) lung". In the form Mr Watt advised that the injury was due to exposure to asbestos possibly in 1976 and that he first sought treatment on 31 August 1992 and that the injury happened at work at the Horotiu Freezing Works. The claim for cover and treatment expenses was accompanied by a letter dated 29 September 1992. from Mr Watt's solicitor. He advised that he was instructed that Mr Watt through the 1970's to appropriately 1976 was employed at the Horotiu Freezing Works where he worked in the rendering department and that involved working with steaming vats insulated with thick asbestos matting in a rough form. By memorandum dated 8 October 1992 Mr Murray Pritchard, the chief engineer at AFFCO New Zealand Limited at Horotiu advised:- "Mr Watt was employed at AFFCO Horotiu as a rendering operator/labourer between 4.3.74 to 27.3.74 and again between 7.2.75 to 10.10.75. His date of birth is 18.3.45. The insulation surrounding all lwell cookers at that time was all Fibreglass including all steam and condensate lines to these cookers. A very small amount of rope style insulation was in use around this plant during that time but I'm unsure that it contained asbestos." Various medical reports were supplied to the Corporation. Some of those reports raise some doubt about the diagnosis of mesothelioma, the alternative diagnosis being adenocarcinoma. Some of the reports also indicated that Mr Watt's exposure to asbestos had been minimal and raised doubts whether it could have been sufficient to give rise to the malignant tumour which he had. After further correspondence and consideration the Corporation advised Mr Watt by letter dated 22 December 1992 that it was of the opinion that all 3. the information supplied did not confirm occupational exposure to asbestos as there was doubt as to the diagnosis and no clear history of occupational exposure to asbestos. Consequently the claim was denied. An application for review dated 19 January 1993 was lodged: The review was held on 28 January 1993. Mr Watt was represented by counsel and Mr Watt and his medical adviser, Dr lan Scott, gave evidence. At the hearing of the review the claim was put on the basis that the disease occurred when the appellant was working either at the freezing works or as a bulldozer driver. In his submissions at the review hearing Mr Witten- Hannah said:- "The submission is that the mesothelioma has been caused as a result of personal injury by accident through the inhalation of asbestos since 1974. There are two aspects to the claim, firstly the claim is made on the basis that the disease occurred during the course of employment, we cannot be certain as to which employment. There are two real possibilities. One would be while he was employed in the Horotiu Freezing Works in about 1976, the other possibility if not probability is that for a number of years after Horotiu Mr Watt was working as a bull-dozer driver and he was under contract to certain Councils that he will give evidence about, part of his contract work involved bull-dozing of rubbish tips, and it was during the course of that work that he could well have been involved in the crushing of asbestos materials whether discarded roofing materials or asbestos lined pipes and he could easily have inhaled asbestos during the course of that employment." No issue has been taken about the extension of the basis of the claim to Mr Watt's work as a bulldozer driver and that is appropriate. As I mention later in this decision the main concern from the time Mr Watt became unwell was the treatment for his condition. 4. At the review hearing Mr Watt gave evidence that he was employed at the Horotiu Freezing Works for about 18 months. He worked mainly with I Wells which were large containers that revolved. They were heated and were insulated with what he believed was asbestos. The asbestos was covered with wirenetting so that it was exposed. The steam pipes were also insulated with asbestos. He said that the insulation was certainly not fibreglass. It was certainly not fibreglass when the works were built. When he was there the premises were being revamped and some of the insulating material was being removed. Mr Watt also gave evidence that after working at the freezing works he became a bulldozer driver. Every Monday he worked push-over at the Kihikihi Dump and the Pirongia Dump. He would crush up the remains of demolished building material of all sorts. The materials would have certainly included asbestos cement sheeting. Dust was created but he did not wear a respirator or air-filter because they were not aware of the problems in those days. He did that work for ten years. The employment also involved culvert work. In that he would have come into contact with asbestos because some of the pipes had asbestos lining or lagging. They had to cut the pipes with a concrete saw and that created dust. Pipelaying was a constant thing happening at the time. Mr Watt also gave evidence about his medical condition. He said he first sought medical advice for breathlessness early in September 1992. A number of medical reports were produced. 5. A report dated 5 January 1993 from pathologists lan Smeeton and Marion Gurley said that the results favoured a diagnosis of mesothelioma over metatastic adenocarcinoma. In a report dated 22 January 1993 Vernon Harvey of the Oncology Centre at Auckland Hospital said that for the reasons he set out it was his opinion that Mr Watt's tumour was more likely to be a mesothelioma than a carcinoma of the lung. Mr Harvey also said that approximately 20% of proven cases of mesothelioma have no clear cut history of exposure to asbestos, but medically and in many countries medico-legally these are still considered to have been caused by exposure to asbestos albeit inadvertent and therefore at levels much lower than those commonly associated with the disease. In a report dated 25 January 1993 Dr Wong said that he believed that Mr Watt had had exposure to asbestos and that the diagnosis was highly likely to be mesothelioma. At the review hearing Dr Scott who had been Mr Watt's doctor since October 1989 gave evidence that he worked during the university vacations at the Horotiu Freezing Works and knew the whole factory pretty well and certainly from 1961 through to 1968 there was a lot of asbestos lagging steam pipes and boilers and in the usual places you found asbestos. Fibreglass is a relatively new system. He believed there was no safe level of exposure to asbestos. Even one fibre of asbestos could cause a mesothelioma if it was inhaled and lodged in the lung of a susceptible individual. Dr Scott referred to reports from other medical practitioners and that there had been no doubt in his mind from about a month after Mr Watt first saw the consultants that Mr Watt had a mesothelioma. 6. The Review Officer issued a written decision dated 4 February 1993. In his decision he reviewed the history of the claim, the medical reports, and Mr Watt's employment history and referred to ss.7 and 10 of the Act. The officer accepted there was sufficient information to accept the diagnosis of mesothelioma but said that there was a problem establishing a causal nexus between Mr Watt's employment and the injury. He referred to the evidence relating to the existence of asbestos in the working environment at Horotiu but considered that the comments made by Mr Pritchard carried more weight. He concluded that the particular property or characteristic, that is the presence of asbestos, which may lead to mesothelioma did not appear to have been present at the freezing works and he did not accept that there was any link between Mr Watt's employment as a bulldozer driver and asbestos dust being inhaled. He concluded that there was nothing in the evidence persuasive enough to establish a connection between asbestos and the injury and declined cover. On behalf of Mr Watt Mr Witten-Hannah lodged a notice of appeal dated 17 February 1993. In the notice of appeal the appellant raised (inter alia) the possibility that there had been personal injury by accident in that there must have been a specific moment or moments in time when an asbestos fibre or fibres entered his body. He also said that there was sufficient evidence of a causal nexus between the appellant's employment and the injury to discharge the burden of proof on him. In particular he submitted that the evidence of the appellant and Dr Scott should be preferred to the note or letter from Mr Pritchard. Further he referred to the appellant's evidence that in his employment as a bulldozer driver crushing materials at rubbish dumps could have resulted in him inhaling air borne asbestos fibres. 7. The Appeal Hearing: In a memorandum filed in the Court in about September 1993 counsel at the time for the Corporation advised that at the hearing of the appeal further evidence would be presented by the respondent. It was proposed to seek sworn evidence from AFFCO New Zealand Limited regarding the insulation in the appellant's work place at the Horotiu Freezing Works. . However, at the hearing of the appeal on 23 October 1996 Mr Howman advised that he had no instructions to call further evidence. In the memorandum filed in about September 1993 counsel also advised that the diagnosis of mesothelioma was accepted, that the Corporation was prepared to deal with the appeal under both s.8(2)(a) and 8(2)(b) and that the essential issue was whether there was a causal nexus between the appellant's work and the mesothelioma. In his submissions Mr Witten-Hannah made a number of points:- (1) He submitted that the evidence proved on the balance of probabilities that Mr Watt contracted mesothelioma as a consequence of accidental inhalation or ingestion of asbestos fibre. He referred to the medical evidence that four out of five cases of mesothelioma have a clear-cut history of exposure to asbestos. (2) Accidental inhalation or ingestion of asbestos gives rise to mesothelioma and not some kind of gradual process or osmosis. There must have been a specific moment or specific moments in time when asbestos fibres entered the appellant's body. 8. (3) There was sufficient evidence of a causal connection between the appellant's employment and the injury he suffered to discharge the burden of proof. He submitted that the Review Officer appeared to have focused his attention upon the period of employment at the Horotiu Freezing Works and has not had proper regard to the uncontroverted evidence of the appellant. about the tenure of employment as a bulldozer driver when the appellant had to cut asbestos lined or lagged piped using a concrete saw which inevitably created dust. He also submitted that the evidence established the other conditions required by s.7. In his submissions Mr Howman set out the background to the appeal, considered the question of jurisdiction, and referred in detail to the evidence relating to the claim under s.7. In relation to s.7 he submitted that:- (a) Mesothelioma can be caused by a variety of causes. (b) Mesothelioma is likely to be caused by exposure to asbestos fibres above a certain threshold. (c) The evidence of the appellant's exposure to asbestos in the course of his employment at the freezing works is questionable. 9. (d) Even if he was exposed to asbestos at the freezing works there is not sufficient evidence to show that the exposure was in such quantity or over a sufficiently long period of time to put him above the "threshold" referred to in the medical articles. (e) Possible exposure to asbestos fibre during the course of his employment as a bulldozer driver is at best speculative. (f) There is no evidence to suggest that the cause of his contraction of mesothelioma was not to be found to any material extent in his non-employment activities. (g) The appellant has not demonstrated that the risk of incurring mesothelioma is significantly greater if a person was working in a freezing works in 1975 than it is for those who were not so employed. Findings: When considering the evidence it is important to avoid any mind-set about the state of the evidence before the review hearing. For example on the Corporation's file there are a number of notes made before the review hearing to the effect that there was no evidence of occupational exposure to asbestos. Largely that conclusion was based on the note dated 8 October 1992 from the Chief Engineer. That may or may not have been a fair conclusion before Mr Watt had given evidence but his evidence and the evidence of Dr Scott at 10. the review hearing requires that point to be considered afresh. It is also relevant to note that a number of the medical reports were written without knowledge of Mr Watt's exposure to asbestos as a bulldozer driver. Dr Scott referred in evidence at the review hearing to the priority having been treatment rather than taking a detailed occupational history. It is not necessary in this decision to review the evidence. The standard of proof required is the civil standard. Having regard to all the evidence I find on the balance of probabilities that:- (1) Mr Watt suffered from mesothelioma. (2) The mesothelioma was caused by the inhalation of asbestos. (3) That inhalation occurred in the course of his employment as a freezing worker or as a bulldozer driver. Section 7: The parts of s.7 relevant to this claim read:- "7. Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment - (1) Personal injury shall be regarded as being caused by gradual process, disease, or infection arising out of and in the course of employment only if - (a) In respect of a period that ended on or after the Ist day of April 1974, the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and 11. (b) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and (c) The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment. (2) Nothing in subsection (1) of this section shall require that the property or characteristic be present throughout the whole of the person's employment. . .. (5) The date on which personal injury caused by gradual process, disease, or infection arising out of and in the course of employment is suffered shall be the date on which - (a) The person first received treatment from a registered health professional for that personal injury as that personal injury; or (b) That personal injury first resulted in the incapacity of the affected person - whichever first occurs. . . . (13) This section shall apply only where the exposure occurred in New Zealand or the person concerned was ordinarily resident in New Zealand when the exposure to the gradual process, disease, or infection actually occurred (even if the person is ordinarily resident in New Zealand on the date on which the personal injury is deemed to have occurred)." The evidence proves on the balance of probabilities:- (1) In respect of a period that ended on or after 1 April 1974 the employment task performed by Mr Watt both at the freezing works and as a bulldozer driver and the environment in which it was performed had a particular property or characteristic, that is the presence of asbestos fibres, which caused 12. or contributed to personal injury, that is mesothelioma by gradual process, disease, or infection. (2) That property or characteristic, that is the presence of asbestos fibres, was not found to any material extent in the non-employment activities or environment of Mr Watt. Mr Watt did not give evidence to that effect but it has never been suggested that he was exposed to asbestos other than in the course of his employment. (3) The risk of suffering mesothelioma was significantly greater for persons performing the employment tasks of working with I wells and bulldozing in that environment, that is in the presence of asbestos, than for those who do not perform that task in that environment. (4) The date on which Mr Watt suffered the personal injury was when he first sought medical advice for breathlessness early in September 1992. (Other evidence on the file suggests it may have been late in August.) Conclusion: The relevant part of s.8 reads:- "8. Cover for personal injury occurring in New Zealand - (1) This Act shall apply in respect of personal injury occurring in New Zealand on or after the 1st day of July 1992 in respect of which there is cover under this Act. (2) Cover under this Act shall extend to personal injury which - (a) Is caused by an accident to the person concerned; or 13. (b) Is caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 ..." It has been established within s.8(2)(b) that Mr Watt's personal injury. was caused by gradual process, disease or infection arising out of and in the course of employment as defined in s.7. Accordingly I do not have to consider the question of cover under s.8(2) (a). Section 7(5) deems that personal injury was suffered in late August or early September 1992. Accordingly there is cover under the 1992 Act and the Corporation should deal with the claim on that basis. The appeal is allowed and the appellant is entitled to costs. ........ .! +.W. Imrie) District Court Judge