DUST DISEASES TRIBUNAL
OF NEW SOUTH WALES
Matter No 178 OF 2012 AND 178 OF2012/1
David Alfred Black
Plaintiff
AUSGRID
First Defendant
AMACA PTY LIMITED (Formerly JAMES
HARDIE & CO PTY LIMITED)
Second Defendant
SELTSAM PTY LTD
Third Defendant
TITLE OF CROSS CLAIM
AUSGRID
Cross claimant
BABCOCK INTERNATIONAL LTD
First Cross Defendant
WALLABY GRIP LIMITED
Second Cross
Defendant
AMACA PTY LTD
Third Cross Defendant
CONTRIBUTIONS ASSESSMENT
DETERMINATION
The Registrar of the Dust Diseases Tribunal has referred this matter to me as
Contributions Assessor in accordance with Clause 49(1) of the Dust Diseases
Tribunal Regulation 2007. I have been asked to make a determination and,
in accordance with Section 61(3)(b) of the Regulations, to appoint a single
claims manager.
By virtue of the provisions of Clause 49(4) of the Regulations I am to make that
determination on the assumption that the defendants are liable and solely on
the basis of:
(a)
The plaintiff’s Statement of Particulars and the defendants’
replies on the claim; and
(b)
Standard presumptions as to apportionment determined by the
Minister for the purposes of this clause by order published in the
Gazette,
being
the
Dust
Diseases
Tribunal
(Standard
Presumptions – Apportionment) Order 2005;
FACTS
The plaintiff, david Alfred Black (who was born on 16 April,1933) is suffering
from the disease of malignant pleural mesothelioma. He has worked as a
plumber and gas fitter during all periods of his working life which are relevant
to the issues in this determination. His employment commenced as an
apprentice with the first defendant, Ausgrid, on 14/02/1949 and continued
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until 6/08/1954 by which time he had become qualified in his trade. The
plaintiff has asserted that during much of that employment he was required
to work at Bunnerong power station, Pyrmont power station and at other
places including the main depot from where he was frequently sent to work
at sub-stations. The Plaintiff has described daily exposure to asbestos during
the periods of work in the power stations when he worked in close proximity
to laggers which was dusty and dirty work. He was also required to carry out
maintenance work in the boiler rooms and generating rooms which were “full
of asbestos. As well as being exposed to asbestos during the lagging process
there was also considerable exposure when asbestos lagging was removed.
I note that a detailed history of this work was obtained by Dr.A.B.Breslin which
is set out in his report dated 11 may 2012 and it is described by the doctor as
very significant asbestos exposure.
The plaintiff has described three other periods when he had some exposure
to asbestos. The first was from 1954 to 1962 when he was self-employed as a
plumber, the second from 1970 to 1976 when he worked in partnership with
Mr.K.Woodland performing plumbing work in the Sydney metropolitan area
The same partnership continued during the third period from 1977 to 1983 in
Queensland. The plaintif described work cutting and drilling flat sheet
asbestos cement fibro, Tilux, Versilux, thick compressed fibro sheets and Super
Six corrugated fibro roofing. The nominated products have all been identified
as Amaca products but the plaintiff has stated his own belief that he used
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80% Amaca product and 20% Seltsam product in the performance of his work
during these later periods.
Dr. Breslin expressed the view on the basis of the history received by him that
the employment with Ausgrid contributed 70% of the plaintiff”s exposure to
asbestos and his work as a plumber a 30% contribution. The plaintiff described
his level of exposure whilst working in the power stations as high and, whilst
working in other areas with Ausgrid, as low.
The plaintiff did not identify the manufacturer or supplier of any of the
asbestos products to which he was exposed during his employment with
Ausgrid. However Ausgrid has instituted cross claims against companies
alleged to be involved in the manufacture, supply and installation of asbestos
in the power stations referred to by the plaintiff. The first cross defendant,
Babcock is described as the designer, manufacturer and installer of the
boilers at both power stations and Ausgrid allege that Wallaby Grip and
Amaca both supplied asbestos used in the packing and insulation of the
boilers and associated plant and equipment although it is no longer alleged
that Wallaby Grip and Amaca supplied asbestos products to Pyrmont power
station.
APPLICATION OF STANDARD PRESUMPTIONS
PERIODS OF EXPOSURE
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Clause 5(7) of the Standard Presumptions provides that where the disease is
indivisible, as is the situation in the present case, the apportionment provided
will apply to the whole of the claim unless the assessor is satisfied that a
differential determination of the contribution of each exposure period ought
be made. I consider that this is such a case and that it is appropriate to
increase the contribution to be apportioned to the period of the plaintiff’s
employment with Ausgrid and to decrease the apportionment to the periods
of self-employment. I have taken into account the plaintiff’s statements as to
the extent of his exposure with Ausgrid, particularly when working in the
power stations, and the opinions expressed by Dr.Breslin as to the
proportionate significance of the exposure in that employment. It is also
necessary to take into account that on a time basis the periods of selfemployment comprise approximately 80% of the overall period. I have
conclude that it is appropriate to apportion 60% to the Ausgrid period and
40% to the self-employment period.
CATEGORIES OF DEFENDANTS
All the defendants except for Ausgrid are clearly in category 1 and Ausgrid is
in category 2,as employer of the plaintiff. It has been strongly contended
however that Ausgrid should be included in category 1 as well as in category
2. Evidence has been introduced from other cases that the predecessor to
Ausgrid directly employed laggers to work in the maintenance of the power
stations in the application, removal and replacement of asbestos lagging. It
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seems to me that this evidence indicates that the relevant organisation was
involved in that regard in the installation of asbestos and that it did so in the
normal day to day running of its business. Reference has been made to
similar determinations by other assessors and that I had come to a similar
conclusion in another matter. Accordingly I determine that Ausgrid should be
included in category 1 and 2 in period 1.
VARIATION TO THE STANDARD PRESUMPTIONS
The cross claim has been amended to delete the assertion that Amaca nd
Wallaby Grip supplied asbestos products to the Pyrmont power station.
Accordingly it is appropriate to vary the proportions payable by those
category 1 defendants in the first period by a deduction of 1/5th in the case
of Amaca and Wallaby Grip and by an increase of the same amount in the
case of Ausgrid and Babcock.
CALCULATION OF APPORTIONMENT
Period 1 (60%) 14/2/49 – 6/8/54
Category 1;
Ausgrid:
60% x75%x25% +2.25 =
Babcock
“
“
“
“ =
Amaca
“
“
“ - “ =
Wallaby Grip “
“
“ - “ =
13.5%
13.5%
9%
9%
Category 2
15%
60% x 25%
=
Period 2 (40%) 1954 – 1962; 1970 – 1983
Category 1
Amaca
Seltsam
40% x 80% =
40% x 20% =
32%
8%
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SUMMARY OF DETERMINATION
Ausgrid
13.5% + 25%
=
28.50%
Babcock International
13.5%
=
13.50%
Amaca
9% + 32%
=
41.00%
Wallaby Grip
9%
=
9.00%
Seltsam
8%
=
8.00%
Total
100.00%
Appointment of Single Claims Manager
I appoint the second defendant
Amaca Pty.Ltd.
as the Single Claims
Manager in accordance with Clause 61(5) and Clause 61(9) of the Dust
Diseases Tribunal Regulations 2007.
Dated:
7 September 2012
B.A.ODLING
Contributions Assessor
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