On 18 June 2012 the Full Court of the Supreme Court handed down a land mark decision in favour of former BHP Whyalla shipyard worker, William Parker. The Supreme Court upheld a Judgment made by Judge Lovell of the District Court in which he found BHP liable in negligence and awarded Mr Parker damages including exemplary damages, the first award ever made under the Dust Diseases Act 2005 (SA).
Mr Parker worked at the Whyalla Shipyards as a shipwright. In 1971 and 1972 Mr Parker was sent to the 'fit out' wharf whilst on a period of light duties. During this period Mr Parker worked in the vicinity of laggers installing and spraying asbestos insulation on the ships at the fit out wharf. Mr Parker was not given a mask to wear nor warned of the dangers of exposure to asbestos. Years later, in 2001 Mr Parker developed asbestosis.
The Supreme Court upheld the finding that by 1971 BHP knew of the dangers of exposure to asbestos and yet did nothing to protect Mr Parker from this danger. The Court found that BHP had to either test for asbestos in the air or provide some precautionary measures such as a mask and an industrial vacuum cleaner in response to the danger that asbestos posed at its shipyard.
Mr Parker's asbestosis cannot be said to be the result of a casual act of negligence, or an isolated breach of duty. Instead it can be said to have resulted from the systemic failure by BHP to make its workplace safe.
The Supreme Court Australia
BHP didn't argue with the finding that Mr Parker suffered from the disease asbestosis, however, they did argue that the exposure to asbestos that Mr Parker suffered at BHP didn't cause this condition. Mr Parker had suffered some exposure to asbestos at a UK shipyard before he immigrated to Australia. The Supreme Court found that the exposure to asbestos that Mr Parker suffered in Whyalla was not insignificant and had contributed to his condition.
The Full Court upheld Mr Parker's award for compensatory damages and in addition, upheld the award made for exemplary damages in the sum of $20,000. The award of exemplary damages was the first made under the Dust Diseases Act. Exemplary damages are awarded to punish a defendant for their conduct. Section 9(2) of the Dust Diseases Act allows a plaintiff to make a claim for exemplary damages where it can be proved that the defendant knew that the plaintiff was at risk of exposure to asbestos dust and also knew at the time of the plaintiff's exposure that exposure to asbestos dust could result in a dust disease. The Supreme Court has confirmed that by 1971 BHP knew that exposure to asbestos dust could result in a dust disease. In considering the award of exemplary damages made by Judge Lovell the Court noted, "Mr Parker's asbestosis cannot be said to be the result of a casual act of negligence, or an isolated breach of duty. Instead it can be said to have resulted from the systemic failure by BHP to make its workplace safe."
The Judgment will have an affect on future asbestos claims against BHP as well as other asbestos claims made in SA generally.
