DDT No 210 of 2012
Between
GERASIMOS DIONISATOS (as the legal personal representative of the estate of the late
GEORGE DIONYSATOS)
Plaintiff
BORAL WINDOW SYSTEMS LTD (FORMERLY CYCLONE COMPANY OF
AUSTRALIA PTY LIMITED)
Defendant/Cross Claimant
WALLABY GRIP (NSW) PTY LIMITED (in liquidation)
First Cross Defendant
WALLABY GRIP (BAE) PTY LTD (in liquidation)
Second Cross Defendant
DETERMINATION OF APPORTIONMENT
The proceedings which have been referred to me for a determination of apportionment as between the defendant and cross defendants, Boral Window Systems Ltd ( formerly
Cyclone Company of Australia Limited) [“Cyclone”], Wallaby Grip(NSW) Pty Limited
[“NSW’] and Wallaby Grip (BAE) Pty Ltd [“BAE”] arise from a claim made for compensation for contracting pleural and peritoneal mesothelioma brought by Gerisamos
Dionisatos [“the Plaintiff”] as executor of the estate of the late George Dionisatos [“the
Deceased”].
The deceased, who was born on 18 October 1036 was diagnosed with mesothelioma in
April 2012 and passed away on 13 July 2012. A Statement of Claim was filed in the
Dust Diseases Tribunal on 9 July 2012 and an amended Statement of Claim substituting the deceased’s daughter as executor of his estate was filed on 6 November 2012. A
Statement of Particulars was also filed on 6 November 2012 and attached to the Form 1 particulars is an affidavit of the deceased dated 10 July 2012.
1

It is alleged by the Plaintiff that the deceased worked for Cyclone between late 1963 or early 1964 and about 1969 doing rigging and scaffolding work at the Opera House. At page 3 of his affidavit the deceased deposes as to the work he was doing and details that he often worked in the vicinity of other trasdesmen and regularly inhaled dust, including working where laggers were spaying insulation. He also had to clean up after the spraying was complete, which was very dusty work.
The Cross Claim filed by Cyclone on 18 October 2012 seeks contribution and indemnity from the cross defendants on the bases as set out in the cross claim, and expanded upon in the Reply filed by Cyclone. The cross claim alleges that WGL and BAE supplied, manufactured and/or installed asbestos materials to which the deceased was exposed.
Cyclone filed a Reply on 20 November 2012 which contains detailed and helpful submissions, and I have had regard to all of those in coming to my determination. They submit that they are a Category 2 defendant and that the cross defendants are Category 1 defendants. They submit that the Standard Presumptions ought be varied against the cross defendants given their size and knowledge of the risks of exposure to asbestos.
The Reply filed by NSW and BAE on 29 November 2012 which makes detailed and helpful submissions and annexes relevant correspondence and documents to which I have had regard in coming to my determination. NSW and BAE submit that they are innocent defendants pursuant to clause 53 of the Regulation but accept that the regulation obliges them to make submissions as to apportionment.
NSW and BAE submit that Cyclone is a Category 1 and that they are Category 2 defendants. They submit that there ought be a variation of the Standard Presumptions to the maximum of 20% on the basis that they were the deceased’s employer and thus had the power to direct and control his actions, and in so doing they took no steps to reduce or minimize the harm to him. They submit that the determination of apportionment ought be done on a time on risk basis. They note that the allegations against them only seek indemnity from 1966 onwards, and for the period of the deceased’s employment before
1966, Cyclone ought bear all that liability.
2

Whilst the cross claim does not plead such separate periods, the Reply filed by Cyclone at page 19 submits as follows;
“The plaintiff does not provide any information as to when he says the asbestos laggers and/or sprayers were on site. The defendant submits this exposure occurred when the cross defendants were on site from about 1966.”
Further the correspondence attached to the cross defendant’s reply ( attachments A and
B) support this proposition and thus I accept that that a time on risk approach ought be adopted, noting that the cross defendants are only liable from 1966 onwards.
The defendants and cross defendants were unable to agree as to apportionment of liability and the matter was referred to me by the Registrar pursuant to Clause 49(1) of the Dust
Diseases Tribunal Regulation 2007 (“the Regulations”).
I have received the Tribunal file and have had regard to the Replies filed by the defendant and the cross defendants.
The determination I am required to make under Section 49(4) of the Regulations is made on the assumption that the defendant and cross-defendant are liable. It is also 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."
The standard presumptions are pursuant to the Dust Diseases Tribunal (Standard
Presumptions – Apportionment) Order 2007 (‘the Order”) which provides that the legal basis for the apportionment between joint tort-feasors is governed by section 5 of the Law
Reform (Miscellaneous Provisions) Act 1946.
I have had regard to the Standard Presumptions contained in section 5 of the Order and the Factual Considerations contained in section 3 of the Order . In assessing the appropriate contributions I have considered the submissions contained in the replies by the cross-claimant and the cross-defendants in the context of section 3 of the Order.
3

I am of the view that NSW and BAE are Category 1 defendants and that Cyclone is a
Category 2 defendant.
Thus the apportionment is calculated as follows ( rounded);
PERIOD 1
January 1964 – 30 September 1966 ( 33 months) – (Index Period B) – 46%
Cyclone 46%
PERIOD 2
1 October 1966 – 31 December 1969 ( 39 months) - (Index Period B) – 54%
Category 1
NSW
BAE
54% x 65% x ½ = 17.55 %
54% x 65% x ½ = 17.55 %
Category 2
Cyclone 54% x 35% = 18.9 %
I therefore determine that the apportionment is as follows ;
Cyclone(Boral)
NSW
BAE
64.9 %
17.55 %
17.55%
----------
100%
I have been asked to determine a single claims manager, and I appoint Cyclone ( Boral) as single claims manager pursuant to s.61(3)(b) of the Regulations .
Dated : 17 December, 2012
WENDY STRATHDEE
Contributions Assessor
4