IN THE DUST DISEASES TRIBUNAL
OF NEW SOUTH WALES
DDT No. 255 of 2014
GABRIELLE LANGHORN (AS LEGAL
PERSONAL REPRESENTATIVE OF THE
ESTATE OF THE LATE WILLIAM
WENDORF)
Plaintiff
SNOWY HYDRO LIMITED
First Defendant
AMACA PTY LIMITED (UNDER NSW
ADMINISTERED WINDING UP)
Second Defendant
CONTRIBUTIONS ASSESSMENT
DETERMINATION
The Registrar referred these matters to me pursuant to Clause 53 of the Dust Diseases
Tribunal Regulation 2013 (“the Regulation”) for a determination of apportionment as
between the Defendants.
My determination is to be made on the papers, on the assumption that the Defendants
are liable, and applying the Dust Diseases Tribunal (Standard Presumptions – Apportionment)
Order 2007 (“the Standard Presumptions”).
I have the Tribunal file which includes:
(a)
The Plaintiff’s Statement of Claim, Amended Statement of Claim, Second
Amended Statement of Claim and Statement of Particulars.
(b)
A reply from Snowy Hydro Limited.
(c)
A reply and an amended reply from Amaca.
History of the Proceedings
A Statement of Claim was initially filed on 11 August 2014 when William Wendorf sued
the above named defendants. Unfortunately Mr Wendorf died on 27 November 2014
and his daughter, being one of the executors named in his will, has been substituted as
his legal personal representative to prosecute this claim. She is the current named
Plaintiff. For simplicity, I will refer to William Wendorf as “the deceased” in this
determination.
There are no cross claims filed.
History of the deceased’s exposure
The deceased was born on 3 November 1928 and died on 26 November 2014 at the age
of 86 years. It is alleged in these proceedings that his asbestos exposure caused
asbestosis, asbestos related plural disease and calcified plural plaques.
The deceased came to Australia from Germany in about 1951. There was no asbestos
exposure prior to his arrival.
Thereafter the deceased worked in Australia as a carpenter and later foreman in the
construction industry. He identifies the number of discrete periods of exposure as
follows:
First Period - 1951 to 1954 – Snowy Mountains Authority (the precursor to the first
defendant) when helped to build villages for the workers in the Snowy Mountains
Scheme at various sites throughout the high country. He worked for about 2 ½ years
and said that he regularly cut, handled, drilled and nailed asbestos fibrolite sheets, tilux
and compressed thick flat sheets as well as working in the presence of others doing the
same thing.
Second Period – about 1954 to 1960 – the deceased was a self employed carpenter in
the Cooma area and sub-contracted with other builders. During this period the deceased
said he regularly handled, cut, drilled and worked with fibrolite, compressed thick flat
asbestos sheets in wet areas and tilux in the bathrooms and laundries. It is important to
note that although the plaintiff says that the contractors that he worked for during this
period got most of their work from the Snowy Mountains Authority, it is not alleged in
the Statement of Claim or Particulars that the first defendant Snowy Hydro is liable
during this period, for instance as occupier or head contractor on the site. The
Statement of Claim is clear that the only party alleged to be liable during this period is the
manufacturer or the second defendant.
Third Period – about 1960 to 1964 – the deceased moved to Canberra. Between about
1960 and about 1964 he worked for DA Constructions as a carpenter, site manager and
general foreman. He says he was “on the tools” for the first twelve months building mainly
commercial buildings and he was exposed to Super Six corrugated sheets for the roofing,
compressed thick flat sheets in wet areas and fibrolite sheets. After the first twelve
months he worked as a site manager and foreman on schools and commercial premises
and while he did not handle asbestos himself, he worked in the presence of workman
who were handling, cutting, drilling, rasping Super Six and fibrolite and could not avoid
breathing it in.
Fourth Period – about 1964 to 1973 – the deceased was employed by a builder named
Len O’Hara as a foreman. He worked on various commercial and government buildings
and schools. He was regularly in the presence of workman who were handling, cutting
and rasping asbestos building products including compressed thick flat sheets, villaboard
and versilux.
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Fifth Period – between 1978 and 1982 – the deceased was self employed as a carpenter
in Canberra building spec homes. He built about half a dozen homes each year and was
regularly exposed to fibrolite flat sheets, villaboard, compressed thick flat sheets and
Hardieflex. He also worked in the presence of other carpenters who were working with
asbestos in a similar manner.
There was no safety equipment provided at any time.
There was no other identified asbestos exposure. For instance, there was no exposure
while undertaking home renovations.
The deceased is unable to estimate the apportionment of exposure between the above
periods but does identify that the manufacturer of the products that he used throughout
was James Hardie & Co Pty Limited (for whom the second defendant is liable).
Reply of First Defendant
The first defendant admits it employed the deceased between 9 April 1951 and 6 July
1953 a period of two years three months and that the deceased was probably exposed to
asbestos in the course of his employment.
It suggests that Amaca should be Category 1 while it is Category 2 as employer. It does
not seek any variation of the Standard Presumptions.
The first defendant disputes Amaca’s submission that it should be categorised as a
Category 1 defendant. In essence it says that although it was a large complex
organisation responsible for a massive infrastructure scheme, the use of asbestos was
merely incidental to its main purpose i.e. it was merely an end user of asbestos products.
The provision of houses for employees which involved the construction work where the
deceased was exposed, was merely one small component of its operation. I accept the
first defendant’s submission that it does not satisfy the test to be characterised as a
Category 1 defendant as its use of asbestos products was incidental to enterprise and
activities.
The first defendant also disputes that it is liable for the period 1954 to 1960 as occupier
or head contractor. I accept this submission on the basis that it is not alleged in the
Statement of Claim or particulars as described above.
Reply of Second Defendant, Amaca
Amaca admits it manufactured most products the plaintiff identified but says
“compressed thick flat sheets” is a generic product description. In addition it says other
companies (such as Saltsam Pty Limited) manufactured equivalent products to those
identified by the deceased. Amaca makes no admissions as to the deceased’s exposure to
its products and says that it supplied warnings from June 1976 onwards.
It alleged Snowy Hydro was, in addition to being a Category 2 employer was a Category 1
“installer” of asbestos products because its employers installed those products into the
workers villages constructed by the deceased and others.
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Amaca submits the standard presumptions should be varied by the maximum 20%
against Snowy Hyrdo because of its relationship of employer, its state of knowledge
(being a government instrumentality) and the steps available to it to avoid or minimise
the risk of harm to the deceased.
Amaca submits that it is an innocent defendant pursuant to clause 57 of the Regulations.
Discussion
I calculate the deceased total period of exposure to be 26 years. It is only in Period 1
that an apportionment needs to be made between the defendants. I calculate Period 1 at
(say) 3 years out of 26 or 11.54% of overall life exposure.
In Period 1, I find there are two parties responsible namely the first defendant as
employer and the second defendant as manufacturer. This period falls within the index
period A (i.e. prior to 1 January 1961). I find the first defendant is Category 2 while the
second defendant is Category 1. They carry liability during this period of in proportion
25/75. Thus the calculations are:
First defendant 25% x 11.4% = 2.885% - say 3%
Second defendant, Amaca 11.54% x 75% = 8.655%
For periods 2-5 above the second defendant is solely liable. This proportion of the
plaintiff’s overall lifetime exposure is 88.46%.
Accordingly the liability of the first defendant is 2.885%
The liability of the second defendant is 8.655% plus 88.46% = 97.115
The final apportionment (after rounding)
Defendant
Apportionment
Snowy Hyrdo Limited
3%
Amaca
97%
Total
100%
DATED 2 June 2015
JAMES T. KEARNEY
CONTRIBUTIONS ASSESSOR
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