IN THE DUST DISEASES TRIBUNAL
OF NEW SOUTH WALES
DDT NO. 152/13
ALTHENA CARMEL GRASSO (AS LEGAL PERSONAL REPRESENTATIVE
OF THE ESTATE OF THE LATE ANTHONY GRASSO)
Plaintiff
STATE OF NEW SOUTH WALES
Defendant
Cross Claimant
BHP BILITON LTD
Second Cross Defendant
STATE RAIL AUTHORITY
Third Cross Defendant
CONTRIBUTIONS ASSESSMENT
DETERMINATION
In this matter I have been appointed by the Registrar of the Dust Diseases
Tribunal to undertake a Contributions Assessment pursuant to clause 53(1) of
the Dust Diseases Tribunal Regulations 2013 (“the Regulation”).
1.
A statement of claim was filed in this matter on 10 May 2013 by Anthony
Grasso (hereinafter referred to as the deceased) bringing claims against
the above-mentioned defendant and cross defendants and also against
Svitzer Towage Holdings Pty Ltd (formerly Howard Smith Industries Pty
Ltd).
2.
The deceased died on 18 May 2013 and by a further amended statement
of claim on 16 August 2013 his legal personal representative was
appointed to continue the proceedings.
533564794
16/02/2016 6:42:00 AM
PAGE
3.
2
As a consequence of the filing of the notice of discontinuance of its cross
claim the State (who I shall refer to as “the defendant” to avoid confusion)
filed an amended reply to the plaintiff’s statement of particulars filed on 10
December 2013. It also filed an amended first cross claim on 12 March
2014 removing the reference to Svitzer and claiming contribution from
BHP and the third cross defendant who I shall refer to as SRA.
4.
In his particulars the plaintiff alleges that the deceased was employed
between about 1961 and 1966 by Howard Smith Industries Ltd and then
from about 1967 to about 1972 by BHP Newcastle as a marine engineer
and from 1972 to about 1992 with the Urban Transport Authority and
thereafter from 1992 to 1995 with CSR Readymix at Rose Hill.
5.
There is now no claim against the entity Howard Smith Industries Ltd nor
against CSR Readymix Rose Hill. The plaintiff alleges that if there had
been any exposure to asbestos during this last employment it would have
been minimal only.
6.
In an affidavit sworn on 13 May 2013 the deceased set out details of his
industrial exposure as a marine engineer working for BHP in Newcastle
on various ships. He says that he worked four hours in the engine room
and four hours off, carrying out maintenance work on the machinery and
says he was involved in the removal of lagging from the exhaust manifold.
He says it was the matting type of asbestos but he does remember
asbestos slurry and asbestos rope. There was some asbestos exposure
during this period.
7.
He then says that between about 1972 and about 1992 he worked for the
Urban Transit Authority on the hydrofoils, the inner harbour Sydney ferries
and the outer harbour Sydney ferries which travelled the Manly run. The
PAGE
3
majority of his work however was on the hydrofoils. I will not set out his
duties, which are outlined at paragraphs 7 to 12 of his affidavit but it is
clear that he had regular exposure to asbestos products in confined
circumstances where he was liable to breathe in dust that was given off in
the process of pipe maintenance and insulation work and work in
performing refits in the dry dock. Whilst as a marine engineer he was not
constantly below deck or during refits, it is apparent that he was in the
vicinity and had a bystander exposure.
8.
He was appointed acting assistant engineering superintendent Circular
Quay in 1986 and was responsible for organizing maintenance, refits,
dockings and various surveys for the Urban Transport Authority vessels.
In September 1989 he was appointed as the superintendent Balmain. In
December 1990 he was appointed assistant shipyard manager at
Balmain. He left the company’s employ in 1992. He developed an
awareness of the dangers of asbestos in March 1990 when he undertook
a course entitled “Asbestos – What the Supervisor Should Know”.
9.
It seems likely following his appointment in September 1989 as the
superintendent that he was not exposed to asbestos.
10. The deceased died as a result of the contraction of what was described
as “an extremely aggressive sarcomatoid mesothelioma”. This is an
indivisible disease for the purposes of
the DDT Contributions
Assessment. Regulations The deceased asserted in his affidavit that he
was employed by the Urban Transit Authority. The State of New South
Wales says that the factual position is as set out in paragraphs 15 to 25
inclusive of its amended first cross claim and denies that it has any
responsibility for the employment of the deceased until 1 July 1980 when
PAGE
4
by dint of the Transport Authorities Act 1980 (NSW) the Urban Transit
Authority as it was then named was created.
11. The State says:
“16. In the period between 1959 and 1972 the Sydney
Harbour Transport Board (“the Board”) was charged with
the responsibility for operating ferry services throughout
Sydney Harbour and, form 1959, was the owner of certain
ferries.
Ferry services between 1959 and 1974 were operated by
either the Port Jackson Manly Steamship Company Ltd
(“Steamship”) or Sydney Harbour Ferries Pty Ltd (“SHF”)
being private companies supervised by the Board.
One or other of Steamship or SHF employed the work
force which operated and serviced the ferries (“the work
force”). The employment depended upon the identity of the
employer operating the ferry route being serviced.
As such, assuming the deceased commenced employment
in 1972, he was employed by either Steamship or SHF.
By dint of the Public Transport Commission of Sydney
Harbour Transport (Amendment) Act 1974 (NSW) the
Board was dissolved in 1974 and its rights and liabilities
were transferred to the Public Transport Commission (“the
Commission”) being an entity created by the Public
Transport Commission Act 1972 (NSW).
By dint of section 18 of the 1972 Act, the Commission was
permitted to employ persons and, by dint of section 17(a)
of the 1974 Act, the employment of the work force was
transferred to the Commission in 1974 with continuity of
employment.
The STA says that, by dint of section 17(a), the deceased’s
employment by either Steamship or SHF, was thus
transferred to the Commission in 1974 with continuity of
that employment.
In 1980, by dint of the Transport Authorities Act, 1980
(NSW):
(a)
the Commission was abolished;
(b)
the Urban Transit Authority of New South Wales
(“the UTA”) was created;
PAGE
(c)
the SRA was created;
(d)
the ownership of the Commission’s infrastructure,
including ferries was vested in the SRA;
(e)
the UTA was directed to operate ferry services; and
(f)
the rights and liabilities of the Commission were
transferred to the SRA (by dint of Schedule 8 of the
1980 Act which the STA notes provides that the acts
and omissions of the Commission are taken to be
acts and omissions of the SRA;
5
By dint of a suite of legislation including the Transport
Administration Act, 1988 (NSW) the UTA was reconstituted
as the same legal entity and renamed the STA. The State
says that in the circumstances by dint of the 1980 Act, the
SRA is liable for any breaches of duty, breaches of statute
or breaches of the contract of employment in the period
preceding and including up to the date of transfer of those
liabilities.”
12. BHP in its reply very properly has not been drawn into this debate which
assuming the bare factual matrix as outlined in the plaintiff’s affidavit and
the State’s reply is barely put.
13. The third cross defendant by a further amended reply filed on 20 March
2014 attached a copy of the Public Transport Commission and Sydney
Harbour Transport (Amendment) Act (NSW) 1974 in force from 1
December 1974 (“the Sydney Harbour Transport Act”). They contended:
“The Sydney Harbour Transport Act allowed previous
employees the of Port Jackson and Manly Steamship
Company Ltd and Sydney Harbour Ferries Pty Ltd to be
offered employment by the Public Transport Commission. If
this employment offer was accepted it commenced from 1
December 1974. The claim against SRA relates only to its
responsibility for the alleged acts or omissions of the Public
Transport Commission. It follows then that the SRA is not
responsible for any alleged acts or omissions during any
period of employment alleged as between 1972 and 1
December 1974. During this period the deceased was
employed by private entities and these entities are not
sued in these proceedings.”
PAGE
6
14. It alleges therefore that its exposure period for the plaintiff’s claim is from
1967 to 1972 (5 years 6 months or 66 months) and from 1 December
1974 to 30 December 1989, being the date at which the plaintiff’s
statement of particulars alleged that the deceased’s exposure on the
ferries ceased, a period of 14 years and 1 month. The SRA says that the
total exposure period is therefore 19 years 7 months or 235 months.
15. BHP in its amended reply admits that it employed the deceased from 17
June 1969 to 27 December 1972, not 1966 to 1972 as alleged, and
although it does not annex the relevant employment record to its reply,
having regard to the specificity of the admission and the corresponding
vagueness of the plaintiff’s particularization of it, I am prepared to accept
BHP’s assertion.
16. I further note that the plaintiff does not annex any of the deceased’s group
certificates or other material deposing to the precise period of his
employment.
17. Having regard to the nature of the deceased’s condition, namely
mesothelioma and the fact that the work that he undertook in respect of
the ferries up until 1989 was essentially the same, I see no reason to give
any particular weighting to exposure for that period. The nature of the
tasks that he undertook at BHP as a marine engineer was essentially the
same as that undertaken on the ferries and despite arguments about
exposure, I am not persuaded that the evidence is sufficiently cogent to
suggest that there should be any particular weighing of the BHP
employment against the Sydney Ferries employment.
18. I accept that his employment with BHP was 3 1/2 years. I also accept that
on and from 1 December 1974 the effect of the Public Transport
PAGE
7
Commission and Sydney Harbour Transport (Amendment) Act was to
facilitate the transfer from private to public employment by staff who had
previously been employed on the ferries.
19. It would seem to me that the Amendment Act makes clear by reference to
its definitions in section 17A of “Company Employee” and “Transferred
Employee”
and
references
to
continuity
of
employment
and
superannuation schemes in subsections (5), (6) and (7) of section 17A
that this was new employment although with benefits and emoluments
that were carried on from previous private employment.
20. The allegations at paragraphs 15 to 23 of its cross claim involve questions
of law as to the effect of the legislation upon the deceased’s employment.
21. For the purposes of this apportionment I propose to ascribe a period from
1 December 1974 to December 1980, a period of 6 years, to the State
and thereafter from 1980 to 1989, a period of 9 years, to the SRA.
22. I have been asked the vary the percentage based upon the knowledge of
the State extending back to 1950 by BHP. I have been invited in effect to
treat it as a Category 1 defendant. In my view the State and BHP, having
regard to their size and history, are in no different position to one another
and the SRA is the same. In my view, having regard to the size of the
organizations, their knowledge and the nature of the enterprises that they
undertook, they were all equally placed to be cognisant of the dangers of
asbestos.
23. I therefore apportion responsibility as follows:
BHP – 3.5 years of 18.5 years exposure
18.91%
PAGE
8
The State – 6 out of 18.5 years exposure
32.43%
SRA – 9 out of 18.5 years exposure
48.64%
24. I appoint the proper officer of SRA to be the Single Claims Manager.
25. I have forwarded them my memorandum of fees.
Dated ……4th………… day of ……………April……..………………….. 2014
PAUL BLACKET SC
CONTRIBUTIONS ASSESSOR.