IN THE DUST DISEASES TRIBUNAL
OF NEW SOUTH WALES
DDT NO. 380 of 2013
WILLIAM PARK CROMER
Plaintiff
AMACA PTY LTD
First Defendant
SELTSAM PTY LTD
Second Defendant
CONTRIBUTIONS ASSESSMENT
DETERMINATION
In this matter I have been appointed Contributions Assessor pursuant to clause
53(1) of the Dust Diseases Tribunal Regulation 2007.
1.
By a statement of particulars filed on 30 January 2014 the plaintiff, as I
shall call Mr Cromer, alleges that he has contracted in particular asbestosrelated pleural disease and/or asbestosis as a result of work that he
undertook as initially an apprentice carpenter, then a carpenter and then a
self-employed contractor performing carpentry work between 1948 and
1988. His particulars disclose that he was apprenticed by a firm Jones &
Morris shortly after he turned fifteen years of age and undertook joinery
work, principally building cottages in and around the Brighton Le Sands
and St George area.
2.
His duties included use of fibro flat sheets in eaves of cottages and Tilux
sheeting used in kitchen, laundry, bathroom and toilets.
3.
He initially claimed that he also was exposed to Duradec pattern sheets in
the course of such employment but in replies to particulars requested by
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the first defendant’s solicitors he resiled from the allegation that he was
exposed to Duradec (a Wunderlich product manufactured by Seltsam, the
second defendant) during this period.
4.
He left that employment in early 1956 and travelled to Queensland where
he appears to have had minimal asbestos exposure but some
considerable exposure to rugby league football as a player.
5.
He returned to New South Wales in 1958 and married in that year. He
worked as a subcontractor in the Seven Hills area performing carpentry
on cottage frameworks.
6.
In 1960 he went into partnership with his first wife Valmai Frances Cromer
and built homes, additions or extensions to homes in the Bankstown and
Revesby area until he left work in 1988. He describes working with flat
sheets including fibro and Hardiflex which were used on the exterior walls
of some extensions and in the eaves of extensions. On some extensions
he worked with products including Log Cabin, Shadowline and Hardiplank
sheets which were used to clad the exterior walls.
7.
On some homes or extensions he says he used Hardie Standard
Corrugated Sheets. He had to use a power saw to cut those.
8.
From about the mid 1960s he used compressed asbestos cement sheets
which were about three-quarters of an inch thick on the floors of laundries
and bathrooms. He says that they could only be cut with a power saw and
cutting them made a lot of dust. He also drilled holes into the compressed
sheets for waste pipes using the hole saw to finish it off and that also
made a lot of dust. In the early years he used Tilux on the walls of some
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additions, particularly bathrooms and toilets. In later years he used
Hardiflex and/or Villaboard.,
9.
There can be little doubt that he was extensively exposed to asbestos
products.
10. In its Answer Amaca admits that:

Between 1955 and 1965 it manufactured asbestos-containing building
products known as Hardies Genuine Fibre Light Sheet, Hardie’s Fibre
Light Flat Sheet and Fibre Light Flat Sheet.

Between 1937 and 1982 it manufactured asbestos-containing building
products known as Standard Corrugate, Tilux.

Between 1959 and 1982 it manufactured Shadowline. Between 1962
and 1982 it manufactured Log Cabin.

Between 1962 and 1983 it manufactured asbestos-containing building
products known as Compressed Sheets.

Between 1966 and 1982 it manufactured asbestos-containing building
products known as Hardiflex.

Between 1969 and 1982 it manufactured asbestos-containing building
products known as Hardiplank.

Between 1977 and 1982 it manufactured asbestos-containing building
products known as Villaboard.
11. Amongst the products listed above Hardies admits that they contained
varying percentages of asbestos mixed with cement and/or silicone.
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12. Seltsam admits that it manufactured and/or supplied

Log Cabin between 1961 and 1977;

Villaboard between 1967 and July 1977; and

Duradec between 1957 and 1977.
13. From 1977 Seltsam ceased to manufacture and/or supply asbestoscontaining
materials.
Further,
from
July
1977
Villaboard
was
manufactured and/or supplied by Amaca.
14. To add to the confusion, Amaca also manufactured and supplied a
product called Log Cabin. Amaca says it manufactured this product until
1982. Wunderlich suggests it was until 1967. I will assume that Amaca is
better informed about the dates it ceased manufacture of its own products
than Seltsam.
15. In replies to particulars requested by Amaca on 26 February 2014 the
plaintiff’s solicitors advised that the plaintiff ceased using the coloured
pattern sheets such as Duradec and Tilux and commenced using
Villaboard in the wet areas from about the late 1960s on.
16. Both the defendants admit that they are Category 1 defendants.
17. The plaintiff estimates that overall during the entire period of his work 90%
of the fibro sheets that he worked with were made by James Hardie and
the balance by Wunderlich: see answer to 4.1 of plaintiff’s particulars.
18. The plaintiff’s disease is a divisible disease. In this matter there are no
“Empty Chair” defendants.
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19. I have adopted but varied the table appearing at the bottom of p11 of
Seltsam’s particulars. The plaintiff says that his last exposure to asbestos
was probably in the early 1980s. That is consistent with two matters: firstly
that Amaca ceased manufacturing most of its products including
Hardiflex, Villaboard and Tilux in 1982 and Compressed Sheets in 1983. It
is always unclear post the cessation of manufacturing for what period the
products remained in the marketplace. I note that the second home that
he built for one of his daughters in 1988 did not contain any fibro sheeting.
20. As Seltsam’s solicitors contend and the plaintiff acknowledges, he did not
differentiate the respective defendants’ products, tending to use certain
products interchangeably, a fact that was no doubt compounded by the
use of similar if not identical names. In particular, for a period of ten years
some of the defendants’ products were commonly manufactured and
were practically interchangeable. He does relate the intensity of his
exposure to dust from Compressed Sheets followed by Shadowline, Log
Cabin and Hardiplank.
21. I think it is reasonable for what is described as Period 3 in the table below
to select a period of 24 rather than 28 years as was suggested by Seltsam
in its submissions. I also reject the analysis that 90% of the apportionment
should be attributable to Seltsam for Period 3. I do this because the
plaintiff did use the products of both defendants interchangeably and
would have done so without necessarily being cognisant of which supplier
was used at any particular time. Both were active in the marketplace and
both were used. However the use of the thicker sheets and the dust
generated thereby is attributable to Amaca’s products. I believe that a
weighting of 80% for a period of 17 years between 1960 and 1977 is
appropriate.
PAGE
Period of
exposure
Defendant/s
liable
Apportionment
Total
Period 1 - (14%)
(1948 to 1956)
= 8 yrs
 Amaca
Amaca is the only defendant
liable = 14%
Amaca
6
88.7%
Seltsam 11.3%
Arthur Jones &
William Morris
t/as Jones &
Morris
Period 2 - (6%)
(1957 to 1959)
= 2 yrs
 Amaca
Amaca is the only defendant
liable = 6%
 Amaca (80%)
Amaca + Seltsam Period (1960
to 1977)
17/24 years = 70.83%
Amaca = 80% x 80% x
70.83%
= 45.33%
Seltsam = 80% x 20% x
70.83%
= 11.33%
Amaca Period only (1977 to
1984)
7/24 years = 29.16%
80% x 29.16% = 23.33%
Self-employed
Period 3 - (80%)
(1960 to 1984)
= 24 yrs
Self-employed
 Seltsam
(20%)
22. Adopting the methodology but not the figures of Seltsam in the table, this
would mean that for Period 1, 1948 to 1956, Amaca is the only defendant
and is liable for 14% being the only Category 1 defendant in this period.
23. In respect of Period 2, 1957 to 1959 and adopting the plaintiff’s analysis
of his exposure as representing 6% of his total, Amaca is the only
Category 1 defendant in this period as is thus liable for 6% of the whole.
24. In respect of Period 3, what is described in the table as the Amaca and
Seltsam Period, 1960 to 1977, this represents 17 of the 24 years between
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1960 and 1984. Thus 17/24 years = 70.83%. Amaca’s share is 80% x
80% x 70.83 = 45.33%. Seltsam’s share is 80 x 20% x 70.83 = 11.33%.
25. The Amaca period only is from 1977 to 1984, a period of 7/24ths = 29.16
years. 80% x 29.16 = 23.33.
Final Apportionment
26. By reason of the above matters Amaca’s share is as follows:
14% + 6% + 45.33% +23.33% = (rounded)
88.7%
Seltsam’s share is 11.33 rounded to
11.3%
TOTAL
100%
27. I appoint the Proper Officer of Amaca Pty Ltd as the Single Claims
Manager.
Dated ……16th………… day of ………May…………..………………….. 2014
PAUL BLACKET SC
CONTRIBUTIONS ASSESSOR.