On 17 June 2013 Judge Parsons of the District Court of South Australia handed down judgment finding BHP liable in negligence to Mr van Soest in relation to his condition of mesothelioma. Mr van Soest worked as a painter and docker at the BHP Whyalla Shipyard for a period of 12 weeks in 1962.
During this employment Mr van Soest was required to work around laggers installing asbestos insulation around pipes and boilers in the engine room of the PJ Adams, a ship being fitted at the fitting out wharf. Mr van Soest was also required to help the laggers on occasions with their work and to clean up after the laggers, sweeping up asbestos dust.
Years later, in 2011, Mr van Soest was diagnosed with mesothelioma. He brought proceedings in the District Court of South Australia against BHP. BHP aggressively defended the claim, putting all matters in issue. In her Judgment Judge Parsons found that in 1962 BHP knew that the process of installing asbestos insulation on its ships carried with it a risk of contracting asbestosis.
She also found that BHP should have taken measures to limit exposure to asbestos dust including providing their workforce with respirators and vacuum cleaners to clean up the dust.
Judge Parsons also found that Mr van Soest’s exposure to asbestos had made a material contribution to the development of his condition of mesothelioma.
In a separate judgment delivered on 28 June 2013 Judge Parsons awarded Mr van Soest a total of $358,151.30.
This sum included an award of $20,000 for exemplary damages.
Exemplary damages are awarded under the Dust Diseases Act 2005 (SA) where it can be shown that the defendant knew at the time of the plaintiff’s exposure to asbestos that the plaintiff was at risk of exposure to asbestos, and also knew that exposure to asbestos dust could result in a dust disease.
The award is the second award of exemplary damages to be made against BHP under the Dust Diseases Act.
BHP have appealed the Judgment to the Full Court of the Supreme Court of South Australia. The appeal will be heard in December 2013.