Dionistatos v Acrow Formwork and Scaffolding Pty Ltd & Acrow Formwork and Scaffolding Pty Ltd v Gordian Runnoff Ltd and Anor  NSWDDT 8 (29 August 2013)
Mr George Dionysatos, died in 2012 from mesothelioma cancer. His son, as the legal representative of his estate, took action against his father’s former employer, Acrow Scaffolding Pty Ltd. Mr Dionysatos worked for Acrow in the 1960s with workmen who assembled scaffolding for the construction of the Sydney Opera House. During this time, he was exposed to large quantities of asbestos dust.
The first issue was whether Mr Dionysatos was exposed to asbestos during his employment and, if so, the quantity of that exposure. Mr Dionysatos swore an affidavit the day before he died relating to the large quantities of dust in the air at the construction site as a result of spraying of scaffolding and cutting of soundproofing floors. The Tribunal also heard evidence from a former co-employee of Mr Dionysatos and an asbestos sprayer on the site which was consistent with Mr Dionysatos’ affidavit. The Tribunal found that Mr Dionysatos was occasionally exposed to visibly high concentrations of asbestos dust throughout his employment with Acrow.
However, Acrow contended that even if Mr Dionysatos was exposed to asbestos, Acrow would not have foreseen that the quantity of exposure created a foreseeable risk to the health of Mr Dionysatos. The Tribunal did not accept this defence and stated that the foremen and supervisors knew of the enormous amount of asbestos spraying which occurred at the site. The Tribunal found that, although at the time it was not foreseeable that small quantities of asbestos dust exposure could lead to mesothelioma, the amount of dust exposure experienced by Mr Dionysatos would make an ordinary person aware that there was a risk to his health.
Acrow breached its duty to eliminate or investigate the obvious risks associated with the asbestos exposure. Acrow also failed to ventilate the circulation of fresh air and provide protections to employees (such as through the use of respirators) where dusts may be injurious to the health of workers under construction safety regulations.
Acrow contended that both Hornibrook, the principal contractor on the job, and the State of New South Wales were also liable for breaching their duties to Mr Dionysatos. Acrow had limited control of the construction site and accordingly did not have full knowledge of the dangers on the site.
Hornibrook engaged asbestos spraying subcontractors which created an obvious risk to the other workers and Hornibrook failed to take practical measures to protect Mr Dionysatos from this exposure. Giordian Runoff Ltd (the successor of the insurance company which covered Hornibrook at the time) was liable to pay damages.
The State of New South Wales, in its contract with Hornibrook, provided that the Engineer was an agent of the State who was on site constantly overseeing the work. The Engineer also had a duty to Mr Dionysatos to provide protection against the dangers associated with inhaling asbestos dust. The State had access to the Department of Health and the Director of Occupational Health and had the greatest power to protect employees against this risk.
Justice Curtis found in favour of Mr Dionysatos against Acrow. As a result of Acrow then making a cross-claim, 50% of the damages were to be paid by the State of New South Wales, 35% by Hornibrook and 15% by Acrow.
1. General damages, for pain and suffering, were awarded at $290 000 with an interest of $7 250.
2. Damages for loss of expectation of life were awarded at $13 000.
3. Past out-of-pocket expenses, for expenses such as medical costs, were agreed to total $13 913 with an interest of $626.
4. Damages were awarded for the gratuitous care provided by family members required to care for Mr Dionysatos during his life as a result of the mesothelioma. This amounted to $17 500.
5. In addition, the Tribunal took into account that Mr Dionysatos had cared for his wife with dementia before his death. The Tribunal awarded damages to compensate for the past gratuitous care undertaken by his daughters which had previously been completed by Mr Dionysatos and for the commercial care which will be required for Mr Dionysatos’ wife in the future. This amounted to $147 853.
The damages awarded to Mr Dionysatos totalled $490,142.
If you suffer from mesothelioma or any dust related disease, please do not hesitate to contact the experienced dust disease lawyers and barristers at Gerard Malouf and Partners.