Jones v Southern Grampians Shire Council & Anor  VSC 485
|Judgment Date:||24 October 2012|
|Jurisdiction:||Supreme Court of Victoria1|
- Employer found liable for causing employee's wife to be exposed to asbestos.
- Employer's failure to properly inform itself of the dangers of exposure to asbestos results in breach of duty.
- Decision consistent with the approach taken by the New South Wales Court of Appeal in Caltex Refineries (Qld) Pty Ltd v Stavar & Ors.2
Mrs Debra Jones (the Deceased) passed away from mesothelioma on 24 April 2012. Prior to her death, the Deceased commenced proceedings in the Supreme Court of Victoria for damages, alleging that her contraction of mesothelioma was caused by her exposure to asbestos residue on her husband's work clothing during his employment with the Shire of Dundas (the Shire) from 1984 to 1994. The Deceased's husband, Mr Peter Jones was required to work with 'Fibrolite' pipes, a James Hardie product that was composed of asbestos and cement. The Deceased succeeded in her claim against James Hardie for $900,000 plus costs.
James Hardie sought contribution pursuant to Part IV of the Wrongs Act 1958 (Vic) from Mr Jones's employer, the Shire.
In her proceedings, the Deceased alleged that she was continually exposed to asbestos from 1984 to1994, particularly when she was an occupant in Mr Jones's car on his journey home from work and, more significantly, as a result of her laundering Mr Jones's work clothing on a daily basis. Mr Jones's work clothing was covered in dust, which went everywhere when the Deceased shook them out prior to washing.
It was accepted that up until the mid 1980's, no warning was given by James Hardie to the Shire about the occupational and non-occupational risk of exposure to asbestos from James Hardie products such as Fibrolite. The Shire employees working with Fibrolite pipes, including Mr Jones, were given no safety instructions or safety apparatus in relation to the handling of Fibrolite pipes until the late 1980's (apart from paper masks).
Was the Shire liable for the Deceased's mesothelioma?
The Shire did not dispute that it owed the Deceased a duty of care, however, denied that it had breached its duty to the Deceased. In considering whether or not the Shire had in fact breached its duty, his Honour Forrest J first identified the nature of the risk in this circumstance as being similar to that identified in Caltex Refineries (Qld) Pty Ltd v Stavar & Ors. 3 That risk was:
"...letting Mr Jones go home on occasions with clothing laden with asbestos dust that could be inhaled by anyone exposed to that dust" [at 38].
In consideration of the Shire's liability, his Honour identified three issues for determination [at 38]:
- What did the Shire know of the risks posed to Mrs Jones by reason of Mr Jones' exposure to asbestos dust and fibres in the course of his employment?
- What, if anything, should a reasonable employer in the position of the Shire have known of such risks during the relevant period between 1985 and 1991?
- What, if anything, should have been done by the Shire to reduce or eliminate the risk posed to Mrs Jones?"
The Shire's Knowledge
His Honour was satisfied that by 1985, the risk of the Deceased contracting a dust disease from exposure to asbestos on Mr Jones's work clothing was a reasonably foreseeable risk that was neither far-fetched nor fanciful. 4
His Honour accepted that the Shire was unaware of the risks posed by asbestos to employees or persons handling dust laden clothes until the late 1980's. Prior to this time, the Shire only held rudimentary knowledge from the media that asbestos was allegedly dangerous to workers, however, did not receive any documentation from James Hardie, the Municipal Association of Victoria or any other medical officer of the Shire as to the risk of exposure to asbestos by employees or their relatives.
His Honour was satisfied that the introduction of protective clothing and face masks in the late 1980's indicated that the Shire was aware of at least some of the risks of asbestos to their employees at that time. Further, there was growing medical evidence published between 1964 and 1985 with respect to the risks of asbestos exposure. Of particular significance was the Commonwealth Department of Health's 1981 report, "The Health Hazards of Asbestos", which specifically indicated that:
"Contaminated work clothing, though vacuumed, should, where practical, be laundered by the employer who may arrange for this to be done at a commercial laundry. The laundry should be advised of the hazards of asbestos and the need for caution in handling the clothing." 5
Forrest J considered that a reasonable employer in the position of the Shire should have made enquires as to the risk of asbestos exposure for its employees and their families. His Honour rejected the notion that James Hardie and other private and Government institutions should have 'hand fed' relevant information to the Shire. 6 Rather, his Honour found that it was open to the Shire to seek information regarding the risk of asbestos exposure either from independent practitioners, its own health officers, or even the State or Commonwealth Government.
Eliminating the Risk
His Honour was of the opinion that a reasonable employer who made the above enquires could have taken the following steps to eliminate the risk of the Deceased's contraction of mesothelioma:
- Requiring employees to wear overalls and to wet down areas of excess dust, particularly around machinery; and
- Not allowing employees to wear their work clothes home for washing or laundering.
Similarly to Caltex Refineries (Qld) Pty Ltd v Stavar & Ors 7 , his Honour considered that there should have been an obvious precaution with respect to work clothing not being worn or laundered at home. There was no reason why the precautions introduced in the late 1980's, such as the provision of disposable overalls, could not have been adopted earlier.
His Honour was satisfied that the Shire did not have actual knowledge of the direct dangers posed by the Deceased's exposure to Mr Jones's clothing prior to 1985. However, the Shire did have the responsibility to provide some warning and instruction to its employees to minimise the harm of asbestos exposure to them and their families during this period. His Honour was therefore satisfied that the Shire's failure to take any steps to minimise Mr Jones's exposure to asbestos and the amount of dust that accumulated on his clothes at an earlier stage constituted a breach of duty. Accordingly, the Shire was found liable for the Deceased's contraction of mesothelioma.
His Honour also found however that James Hardie was well aware of the dangers of asbestos dust in respect of both end use and non occupational exposure faced by the Deceased but that it failed to provide the Shire with the relevant information and warnings. Consequently, his Honour apportioned liability 65% to James Hardie and 35% to the Shire.
- This decision is not unexpected as it follows the New South Wales Court of Appeal decision in Caltex Refineries (Qld) Pty Ltd v Stavar & Ors8 and is consistent with the approach adopted in other jurisdictions in respect of an employer's duty of care to its employees and their immediate family.
- The decision provides a useful analysis of the state of the literature available in the 1980's in relation to the health risks associated with exposure to materials containing asbestos dust and fibre.
1 Forrest J
2  NSWCA 258; (2009) 259 ALR 616
4 Jones v Southern Grampians Shire Council & Anor  VSC 485 at 48
5 Ibid at 43
6 Ibid at 46
7  NSWCA 258 Op. cit
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