IN THE DUST DISEASES TRIBUNAL
OF NEW SOUTH WALES
DDT No. 58 of 2012
HENRY VAN AKKER
Plaintiff
STATE OF NEW SOUTH WALES (NEWCASTLE
STATE DOCKYARD)
Defendant
STATE OF NEW SOUTH WALES (NEWCASTLE
STATE DOCKYARD)
Cross-Claimant
AMACA PTY LIMITED (FORMERLY JAMES HARDIE
& COY PTY LIMITED)
First Cross-Defendant
WALLABY GRIP LIMITED
CONTRIBUTIONS ASSESSMENT
M. McDermott Esq
Barrister at Law
8th Floor Selborne Chambers
174 Phillip Street
Sydney. N.S.W. 2000
Second Cross-Defendant
IN THE DUST DISEASES TRIBUNAL
OF NEW SOUTH WALES
DDT No. 58 of 2012
HENRY VAN AKKER
Plaintiff
STATE OF NEW SOUTH WALES (NEWCASTLE
STATE DOCKYARD)
Defendant
STATE OF NEW SOUTH WALES (NEWCASTLE
STATE DOCKYARD)
Cross-Claimant
AMACA PTY LIMITED (FORMERLY JAMES HARDIE
& COY PTY LIMITED)
First Cross-Defendant
WALLABY GRIP LIMITED
Second Cross-Defendant
CONTRIBUTIONS ASSESSMENT
REFERRAL
The Registrar has referred this matter to me pursuant to Clause 49(1) of the Dust Diseases Tribunal
Regulation 2007 (“the Regulation”) for a determination of apportionment between the defendants and
cross-defendant herein.
The determination is to be made on the papers, on the assumption that each of the defendants and crossdefendant is liable and applying the Dust Diseases Tribunal (Standard Presumptions – Apportionment)
Order 2007 (“the Standard Presumptions”).
3
Pursuant to Clause 49(4) of the Regulation, the determination must be made solely on the basis of the
plaintiff’s statement of particulars, the replies of the defendants and cross defendants to the claim and the
Standard Presumptions referred to above.
THE PAPERS
In this matter I have had regard to the contents of the following documents:
1.
The plaintiff’s statement of particulars filed on 12 April 2012..
2.
The reply of the defendant cross-defendant (State of New South Wales – hereinafter “SNSW”) filed
on 14 April 2012.
3.
Reply of the cross-defendant (Amaca Pty Limited – hereinafter “Amaca”) filed on 12 June 2012.
4.
Reply of the second cross-defendant (Wallaby Grip Limited – hereinafter “WGL”) filed 12 June
2012.
PLAINTIFF’S PARTICULARS
The plaintiff’s particulars reveal that:
The plaintiff was born in the Netherlands on 28 December 1941 and was diagnosed as suffering from
mesothelioma on 2 March 2012.
The plaintiff completed his schooling in Australia and commenced working as an apprentice fitter and turner
at the New South Wales State Dockyard in Newcastle in 1958.
The plaintiff completed his apprenticeship in 1963 and apparently then left the Dockyard and obtained
employment with Newcastle Engineering in that same year working full time as a machinist.
Later that year the plaintiff obtained employment working as a machinist at BHP in Newcastle.
The plaintiff alleges significant exposure to products containing asbestos when he worked at the New South
Wales Dockyard for five years in the period 1958 to 1963.
He was also exposed to asbestos products for relatively short periods between 1974 and 1988 when he
carried out home renovations on various properties purchased and renovated by him in that period. The
plaintiff says that the various renovations occupied about 14 months of his time during that 14 year period.
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So far as I can tell, no party has been joined to the action in relation to the home renovations carried out by
the plaintiff and for the purposes of this contributions assessment I will disregard the relatively modest
exposure alleged by the plaintiff when performing his home renovations.
When working at the Dockyard during his apprenticeship the plaintiff was involved mainly in general
engineering, machining, fitting and carrying out repairs on old ships and constructing new ships. He
regularly worked in the vicinity of other workers who applied lagging to steam pipes, boilers and other
machinery in the engine rooms of ships.
On a regular basis he was standing in the immediate vicinity when bags of asbestos fibre were tipped into
drums for the purpose of being mixed with water to create a slurry which was then applied by hand or hand
tool directly onto steam pipes.
Large quantities of dust were generated into his immediate vicinity causing him to inhale the asbestos dust
and this often happened in confined spaces.
In the course of his employment he was often required to remove old crumbly asbestos lagging using a
crowbar or a knife or any other suitable tool. This activity would also generate considerable quantities of
asbestos dust in his immediate vicinity with consequential inhalation of the contaminated atmosphere.
He was never provided with a dust mask or any other type of protective equipment when working at the
Dockyard nor was he warned about the dangers of inhaling asbestos dust and fibres in the course of his
employment.
REPLY OF DEFENDANT (“SNSW”)
The defendant’s reply makes no admission regarding the nature of the plaintiff’s condition, whether he was
employed by the State Dockyard and if so when. The defendant admits that it ought to have known that
exposure to asbestos gave rise to a risk of personal injury.
In relation to the question of apportionment, the defendant submits that the two cross-defendants (Amaca
and WGL) should be placed in category 1 and the defendant should be placed in Category 2.
The defendant submits that it is not a category 1 defendant disputing that it can properly be characterised as
an “installer of asbestos”.
The defendant submits that the Standard Presumptions should not be varied.
The defendant submits that mesothelioma is an indivisible disease and the plaintiff alleges exposure
between 1958 and 1963, a period of 5 years.
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The defendant then makes calculations of the appropriate apportionment which unfortunately seem to be
based on an error.
The defendant’s calculations assume that Period A referred to in Clause 5 of the Dust Diseases Tribunal
(Standard Presumptions – Apportionment) Order 2007 extends to 31 December 1961.
My reading of the Apportionment Order indicates that Period A ends on 31 December 1960 and accordingly
the defendant’s calculations are unreliable.
REPLY OF FIRST CROSS-DEFENDANT (“AMACA”)
Amaca submits that the plaintiff’s particulars identified four products used in the area in which he worked:
1.
asbestos powder (mixed to form a slurry);
2.
asbestos rope;
3.
asbestos caulking material that was “like a cord”; and
4.
asbestos gasket branded Klingerite.
The products referred to in (3) and (4) above were identified in a letter supplying particulars dated 30 April
2012 provided by the plaintiff’s solicitors in response to a request for further particulars.
In my opinion, a fair reading of the plaintiff’s particulars would indicate that the products referred to in (3) and
(4) above formed a relatively minor part of the plaintiff’s overall exposure and I do not accept that it would be
reasonable to apportion manufacturer liability for the plaintiff’s exposure equally between each product
identified as submitted on page 26 of the Reply of the Cross-Defendant.
Amaca submits that the plaintiff has provided insufficient evidence to establish that any of his exposure to
asbestos dust and fibre was to products manufactured by Amaca.
In this regard I note that the plaintiff has not joined an Amaca to his action and makes no case himself
against Amaca.
Amaca has been joined to the action as a cross-defendant by the defendant (SNSW) and in its reply, SNSW
has included a statement from Robert Bryan Cox who worked at the State Dockyard from 1960 until after
1983 when he was appointed operations manager.
Mr Cox includes the following comments in his statement:
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“… The brands of the product we used were James Hardie and Bells Asbestos… The James
Hardie products we used were the calcium silicon blocks made from asbestos. They used to come
in cardboard cartons with the name James Hardie on the side of them…
Slurry powder was also a James Hardie product and the name was also on the side of the bags…
Over the time I was at the Dockyard, particularly in relation to ship building we used James Hardie
asbestos products exclusively as they were the only ones that could supply the correct product…
The reason we used James Hardie products, particularly for the exhaust pipes, was that there were
no other products around at the time that specialised in the asbestos related products we needed
for the insulation work. I know we used Bells Asbestos for the asbestos ropes, but all of the other
products were James Hardie… Bells Asbestos used to supply the asbestos ropes. There was not
a lot of this product used and most of the big supply came from James Hardie. I would say that we
used James Hardie products about 90% of the time for the ship building and Bells about 10% for the
Class A products…”
For the purposes of this contributions assessment, I accept that Mr Cox’s recollections regarding the supply
of asbestos products to the State Dockyard are reasonably accurate. Accordingly I accept that James
Hardie products were used for about 90% of the time at the Dockyard in ship building and Bells products
were used for about 10% of the time for Class A products.
In relation to apportionment of liability, Amaca submits that SNSW should be included in Category 1 as well
as being a Category 2 defendant.
I accept this submission.
In the statement of Robert Cox (referred to above) the following comments are included:
“… The products were ordered through the purchasing department. Any records of the purchases
would have been held by the purchasing department. The drawing office and technical office would
have just given them the specifications and it would have went to tender or to a specific supplier,
such as James Hardie, to supply it …”
The State Dockyard at this time was a large organisation undertaking major ship construction and
maintenance and it is evident that the activities of the State Dockyard included designing and specifying
products appropriate for installation on boilers, steampipes and other equipment in ships under construction
or undergoing maintenance and repair and in these circumstances I am satisfied that the State Dockyard
can properly be characterised as an installer as well as an employer in the circumstances of this case.
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Amaca submits that the Standard Presumptions should be varied as against SNSW by the maximum 20
percentage points on the basis that SNSW was the plaintiff’s employer, had a non-delegable duty of care to
the plaintiff and had access to information and actual knowledge of the risks associated with the use of
asbestos containing products at the relevant time.
Amaca makes calculations regarding apportionment which I do not accept, inter alia, for the reason that they
seem to repeat the error in basic calculation made in the reply of the defendant (ie, attributing 40% of the
plaintiff’s exposure to the period 1958 – 31/12/1961).
REPLY OF SECOND CROSS-DEFENDANT (“WGL”)
In relation to apportionment, WGL submits that Amaca, WGL and SNSW should be placed in Category 1.
WGL submits that by undertaking ship construction and repair and employing its own technical and drawing
office that specified the purchase and use of asbestos materials to which the plaintiff was exposed, SNSW
must have been aware of the suitability of such materials for industrial application such that installation of
asbestos products on ships was an integral part of the Dockyards business.
As indicated above, I accept this mission.
WGL submits that the Standard Presumptions should be varied by the maximum 20 percentage points
against SNSW on the basis that, at the relevant time, the Dockyard was a government instrumentality with
ready access to material then held by the New South Wales Department of Health regarding the dangers of
using asbestos.
WGL points to the size of the State Dockyard at the relevant time employing over 1,500 employees,
constructing two vessels and repairing 435 ships in 1958.
I decline to vary the Standard Presumptions in this matter in the manner submitted by WGL and Amaca.
The Standard Presumptions have been framed essentially to take account of the relative state of knowledge
that can be attributed to the broad categories of defendants in each period.
There is nothing in the material before me to suggest that any one in authority at the State Dockyard at the
relevant time had actual knowledge of the dangers of asbestos such as might be sufficient to cause me to
attribute actual knowledge to the defendant in this matter.
Any actual knowledge of the dangers of asbestos which may have resided within the New South Wales
Department of Health at the relevant time would not necessarily have come to the notice of management at
the State Dockyard.
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WGL’s calculations of the apportionment of liability are based on a variation of the Standard Presumptions
(which I have declined) and also erroneously attributing 40% of the plaintiff’s exposure at the Dockyard to
Period A (which in fact should be 60%).
FINDINGS
I find that the plaintiff suffers from the disease of mesothelioma which is an indivisible condition.
I find that the plaintiff was exposed to products containing asbestos during this employment as an apprentice
fitter between 1958 and 1963 (a period of 5 years).
I infer that the plaintiff’s employment at the State Dockyard concluded at the completion of his apprenticeship
and probably in the early part of 1963 as he subsequently obtained employment in that year first at
Newcastle Engineering and then at BHP.
I find that for the purposes of apportioning liability:
1.
Amaca, WGL and SNSW are Category 1 defendants.
2.
SNSW is also a Category 2 defendant being the plaintiff’s employer for the relevant period.
I decline to vary the Standard Presumptions.
I accept the assessment of Mr Cox that 90% of the materials containing asbestos used at the Dockyard were
supplied by James Hardie (now Amaca Pty Limited) and 10% were supplied by Bells (now WGL).
Accordingly the calculations required by the Standard Presumptions are as follows:
Calculation
Period A
1958 to 31/12/60 – 3 years – 60% of total exposure
Category 1:
(75%)
SNSW:
60 x 75% ÷ 3 =
Amaca:
60 x 75% ÷ 3 x 180% = 27
WGL:
60 x 75% ÷ 3 x 20% =
Category 2:
(25%)
SNSW:
60 x 25% =
15
3
15
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Period B
1/1/61 to 1963 – 2 years – 40% of total exposure
Category 1:
(65%)
SNSW:
40 x 65% ÷ 3 =
Amaca:
40 x 65% ÷ 3 x 180% = 15.6
WGL:
40 x 65% ÷ 3 x 20% =
1.73 (rounded to 1.74)
40 x 35%
14
8.66
Category 2:
SNSW:
DETERMINATION
I determine that the overall apportionment of liability in this matter as between the defendant and the crossdefendants should be as follows:
1.
SNSW
15 + 15 + 8.66 + 14 =
52.66
2.
Amaca
27 + 15.6 =
42.60
3.
WGL
3 + 1.74
4.74
100%
I appoint the State of New South Wales the single claims manager.
……………………………..
Mark McDermott
8th Floor Selborne Chambers
Dated: 26 June 2012