IN THE DUST DISEASES TRIBUNAL
OF NEW SOUTH WALES
DDT NO. 198 of 2015
ALAN ERIC BUCHANAN
Plaintiff
AMABA PTY LTD (FORMERLY HARDIE-FERODO PTY LTD)
First Defendant
FMP GROUP (AUSTRALIA) PTY LTD (FORMERLY BENDIX MINTEX PTY
LTD)
Second Defendant
COMCARE
Third Defendant
AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD)
Fourth Defendant
CONTRIBUTIONS ASSESSMENT
DETERMINATION
In this matter I have been requested to undertake a Contributions Assessment
by the Registrar of the Dust Diseases Tribunal of New South Wales pursuant to
clause 53(1) of the Dust Diseases Tribunal Regulation 2013.
1.
In a statement of particulars filed in the Tribunal on 15 June 2015 the
plaintiff alleges that he has contracted a mesothelioma as a result of his
exposure to products containing asbestos supplied by the first defendant
(who I will hereinafter refer to as Amaba), the second defendant (FMP)
and the fourth defendant (who I will refer to as Amaca).
2.
Additionally the plaintiff alleges that he was exposed whilst serving two
years in the Australian Army where he worked as a mechanic. It appears
to be common ground amongst the defendants that none of them are
implicated by the plaintiff in the exposures that are said to have occurred
Document1
9/02/2016 2:17:00 PM
PAGE
2
in the course of the plaintiff’s army service between 14 February 1966 and
14 February 1968.
3.
None of the defendants disputes that the plaintiff is suffering from the
condition known as mesothelioma, nor is there any issue that it is
attributable to exposure to asbestos or products containing asbestos.
4.
The plaintiff’s industrial history discloses in paragraph 3.1 of his
particulars that he was employed by his father Eric Buchanan first as an
apprentice mechanic from late 1960 until 13 January 1966. He was then
conscripted into the army but did not see active service, working at
various locations in mainland Australia as a mechanic. On his discharge
from the army he resumed employment with his father at the Caltex
service station on Milperra Road, Milperra where he remained until July
1969. He then married in August 1969 and moved to Rockhampton where
he worked as a tradesman mechanic as a self employed person at an
organisation, Dunning Motors, at 125 William Street, Rockhampton. He
remained working for that organisation as a principal until 1995.
Thereafter he worked in occupations not involving exposure to asbestos
as set out in his summary of work exposure other than what he says was
trivial exposure while working for the Woorabinda Pastoral Company
where he worked as a part time mechanic and he says possibly came into
contact with some old brake linings.
5.
Between 1972 and 1974 he performed renovation work on a property at
Rockhampton which involved using products of Amaca, in particular
Hardiflex flat sheets, in renovation work.
6.
He did further renovation work on another property he lived in a
Lammermoor in the late 1970s and early 1980s.
PAGE
7.
3
At paragraph 4.1 of his particulars the plaintiff indicates that he had
extensive exposure whilst working for the Caltex service station from
brake linings and clutch plates. He identifies Amaba and FMP as the
major manufacturers of the plates that were used. He says that the vast
bulk of the manufacturers whose products were used were those of the
first and second defendants and he describes the work as being very
dusty. He did some work that did involve contact with other asbestos
products, in particular head gaskets and gland packing. He says that the
dust levels whilst undertaking this work was nothing compared with the
level of brake linings and clutch plates.
8.
The work he did in the army was much the same as he had performed for
his father at the Caltex service station. He again was working handling
brake linings and clutch plates but he was unable to identify any particular
manufacturer or brand of product that was used. He says he had a lot of
asbestos exposure and no precautions were taken.
9.
He moved to Rockhampton following his marriage and worked at Dunning
Motors. He made extensive use of brake linings, both the first and second
defendants’. He says these were the prime manufacturers and would
account for the vast bulk of his brake lining usage. This was even more so
the case at Dunning Motors compared with the Caltex service station.
10. At pp17 and following he sets out details of his exposure in domestic
circumstances whilst renovating properties and I will not set that out
further. He describes his exposures whilst working as a mechanic as all
being of high intensity. Air hoses were used to clean components and this
liberated asbestos dust into the atmosphere. There was also bystander
PAGE
4
exposure from other workers performing similar tasks to that of the
plaintiff.
11. The plaintiff estimates his asbestos exposure in the various periods as
follows:
Caltex Service Station – 25% of my lifetime asbestos
exposure
Australian Army – 10% of my lifetime asbestos exposure
Dunning Motors – brake linings and clutch plates – 55% of
my lifetime asbestos exposure
Renovations – 10% of my lifetime asbestos exposure from
Hardies fibro.
12. Of the brake lining exposure, the plaintiff says the vast bulk was HardieFerodo or Bendix, that is Amaba and FMP. 60% of the brake linings were
Amaba’s and 40% were FMP’s.
13. He also says in terms of exposure at Dunning Motors the first fifteen years
of that employment was when the asbestos exposure was the heaviest.
14. There is agreement amongst all defendants that Defendants 1, 2 and 4
are all Category 1 defendants and the Commonwealth is a Category 2
defendant.
15. All defendants appear to accept the plaintiff’s own subjective assessment
as to his asbestos exposure as the basis for proceeding.
16. Comcare accepts the plaintiff’s estimation of its liability as being 10%.
This also appears to be the position of the first and fourth defendants,
Amaba and Amaca.
PAGE
5
17. FMP asserts that as against Comcare the Standard Presumptions should
be varied by the maximum amount allowed in favour of the Category 1
defendants on the basis that:
a)
The Australian Army occupied the premises where the plaintiff
claims the exposure to asbestos occurred and required the plaintiff
to work with asbestos products and in areas where he was exposed
to asbestos dust;
b)
The Australian Army knew of the risks associated with the use of
asbestos;
c)
The Australian Army had a significant operation;
d)
The Australian Army was the only party with direct control over the
conditions in which and the premises where the plaintiff worked
during the service.
18. There are, however, no other entities in the relevant period to vary the
Standard Presumptions and I therefore propose to find that Comcare is
10% liable on an apportionment basis.
19. Amaba and Amaca accept the plaintiff’s analysis of his exposure and at
paragraph 8.8 of their Reply Amaca has submitted that the plaintiff’s
evidence in regard to the breakdown of his exposure over time and
between the various asbestos-containing brake products and asbestoscontaining building products as the best evidence available.
20. The position is slightly complicated by FMP’s submission that it should
bear no liability for the plaintiff’s exposure to clutch plates during what it
describes as the Caltex period, 1960 to 1966, given that it did not
PAGE
6
manufacture clutch plates at the relevant time. It estimates that this
represents half of the plaintiff’s exposure at Caltex.
21. Amaba says that its liability for asbestos-containing brake products
occurred post 1962 after its commencement.
22. No doubt with the effluxion of time the plaintiff’s recollection about
exposure is at best only an approximation. In my view it is appropriate in
the circumstances to accept his analysis that 60% of the brake linings
were Hardie-Ferodo and 40% Bendix. They are the only relevant
defendants in this period which represented 25% of his overall exposure
to asbestos.
23. There is some force in the FMP suggestion that his exposure is limited to
linings and as the attribution of 50% of the plaintiff’s work to clutch work is
not based upon the plaintiff’s evidence, this is simply a bare submission.
24. I accept Amaba and Amaca’s estimation of liability in the Caltex period as
follows. Based on the reasoning set out in paragraph 8.8 of the Amaba
Reply I will not set out the full calculations but it results in the following
analysis:
FMP
25% x 40%
10%
Amaca
25% x 60% x 22.22% pre 1962
3.333%
Amaba
25% x 60% x 77.78 post 1962
11.66
Australian
Army
All parties including Comcare
accept that its liability is 10%
25%
10%
25. Dunning Motors (55%). For this period I accept the Amaba submission
that his exposure was 60% Hardie-Ferodo and 40% Bendix Mintex based
upon the plaintiff’s estimate. Apportionment in respect of this period
should be as follows:
PAGE
Amaba
55% x 60%
33%
FMP
55% x 40%
22%
7
26. Home renovations – based upon the plaintiff’s estimate, I apportion this as
a 10% liability, a fact which is accepted by Amaba and Amaca.
27. The overall breakdown of apportionment results in the following:
Amaca
3.333% + 10%
13.333%
Amaba
11.667% + 33%
44.667%
FMP
10% + 22%
32%
Comcare
10%
Total
100%
28. I appoint the Proper Officer of Amaba as the Single Claims Manager.
Dated ……11th………… day of ……………August……..…………………..
2015
PAUL BLACKET SC
CONTRIBUTIONS ASSESSOR.