Amaca Pty Limited v Seltsam Pty Limited (Re: Donkin)

[2018] NSWDDT 1

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	Amaca Pty Limited v Seltsam Pty Limited (Re: Donkin) [2018] NSWDDT 1
Hearing dates:	6 February 2018
Date of orders:	09 February 2018
Decision date:	09 February 2018
Before:	Judge D. Russell
Decision:	(1)   Judgment for the cross-claimant against the cross-defendant for $185,000; (2)   Order that such judgment take effect on the date on which the cross-claimant made payment to the plaintiff in satisfaction of the Consent Judgment entered on 21 July 2016. (3)   Order the cross-defendant to pay the cross-claimant’s costs . (4)   Grant leave to the parties to seek any different costs order if so advised.
Catchwords:	DUST DISEASES – contribution between tortfeasors – whether plaintiff exposed to products of two asbestos suppliers – relative blameworthiness equal – causal potency depends of level of exposure to each supplier’s products.   DAMAGES – contribution – joint tortfeasors – considerations relevant to responsibility of each tortfeasor for damage – amount of contribution that is just and equitable.
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1946 Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulation 2013
Cases Cited:	Seltsam Pty Limited v Amaca Pty Limited (Re: Mark Patrick Noonan) DDT 130/14/1 Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 1995)
Category:	Principal judgment
Parties:	Amaca Pty Limited (cross-claimant) Seltsam Pty Limited (cross-defendant)
Representation:	Counsel: J. Sheller (cross-claimant) B. Ilovski (cross-defendant)   Solicitors: Mills Oakley (cross-claimant) Colin Biggers & Paisley (cross-defendant)
File Number(s):	DDT 54/2016/1

Judgment

BACKGROUND

1. In 2016 the late Mr Stewart Donkin sued Amaca Pty Limited (Amaca) in the Dust Diseases Tribunal seeking damages for his disease of mesothelioma. Amaca is the successor of James Hardie & Coy Pty Ltd (James Hardie).

2. The evidence of Mr Donkin was taken at a bedside hearing conducted before Judge Kearns on 1 April 2016 at Moruya Hospital.

3. On 4 April 2016 Amaca (as cross-claimant) filed a Cross-Claim against Seltsam Pty Limited (Seltsam) (as cross-defendant). The Cross-Claim sought contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. The cross-claim also sought interest on monies paid and costs. Amaca alleged in its cross-claim that some of the asbestos cement products to which the plaintiff was exposed were products of Wunderlich, for which Seltsam is presently responsible.

4. Mr Donkin died from his diseases of mesothelioma on 5 April 2016.

5. On 18 May 2016, pursuant to leave granted by his Honour Judge Scotting, an Amended Statement of Claim was filed substituting Glen Stewart Donkin as the executor of the estate of the deceased original plaintiff. The matter then proceeded as an estate claim.

6. On 21 June 2016 the action between the executor and Amaca was settled by a consent judgment for the plaintiff for $370,000 inclusive of the plaintiff’s costs. There is no dispute about the reasonableness of that settlement.

7. On 24 June 2016 Seltsam filed its Defence to the Cross-Claim. Seltsam admitted that it was engaged in the manufacture and supply of certain asbestos cement materials until July 1977 when it ceased manufacturing and supplying such materials. Seltsam denied that the plaintiff was exposed to any Wunderlich product.

8. The relevant portions of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 are as follows:

“(1)   Where damages are suffered by any person as a result of a tort (whether a crime or not):

…

(c)   Any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.

(2)   In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”

ISSUES FOR DETERMINATION

9. The factual issue for determination in this case is whether or not the late Mr Donkin was exposed to Wunderlich asbestos cement products, as well as James Hardie asbestos cement products. Counsel for Seltsam submitted that there was no exposure to Wunderlich products proven on the evidence.

10. If there is a factual finding that the late Mr Donkin was exposed to some Wunderlich asbestos cement products, then it will be necessary to determine the appropriate apportionment between Amaca and Seltsam. This involves making findings about the extent to which Mr Donkin was exposed to each party’s products.

11. To resolve these matters I will review the evidence tendered on the Cross-Claim.

STEWART DONKIN

12. The evidence-in-chief of Mr Donkin, taken at the bedside court on 1 April 2016, was contained in an affidavit which he swore that morning. He was then cross-examined. The affidavit and the transcript were put into evidence on the cross-claim.

13. Some caution must be exercised in accepting the evidence of Mr Donkin. At the end of the bedside hearing Judge Kearns recorded the following on the transcript:

“I noted that he [the plaintiff] was very slow and sometimes dozing off in the middle of the questions. He was nevertheless, at times having appeared to have gone to sleep, able to come to some time after and be relevant to what the question was.”

14. Mr Donkin said in his affidavit that he worked in Wagga Wagga for his father, who was a builder, from the end of 1965 until 1977, when his father ceased working. Mr Donkin then obtained his own builder’s licence and carried out building work, which he did right up until the time he fell ill with mesothelioma.

15. Mr Donkin gave evidence that when working for his father between 1965 and 1977 he had extensive exposure to asbestos cement building products. He also had exposure to such products from 1977 when he commenced working on his own account, until about 1983 when he moved away from Wagga Wagga.

16. Mr Donkin said that the building work done by his father was about 90% domestic construction and renovation work. Almost all of the homes that he and his father built or renovated were asbestos cement fibro homes. He said that during the last three to four years that he worked for his father (which would have been from about 1973 or 1974 to 1977) the business started building and renovating brick veneer homes which were lined internally with plasterboard.

17. When Mr Donkin started working for himself in 1977 he continued to do the same type of work that he had previously done with this father. He said that the nature of the work did not change. About 75% of his work was brick veneer and 25% was still asbestos cement fibro homes.

18. Mr Donkin was not challenged about these parts of his evidence in cross-examination. Further, the allegation that he had exposure to asbestos cement building products when working with his father was corroborated by a statement from his brother (which will be dealt with below).

19. I find it a fact that from 1965 to 1973 Mr Donkin had extensive exposure to asbestos cement building products when working with his father. Most of the jobs on which he worked in that period involved such exposure.

20. I find as a fact that between 1973 and 1977 only about 25% of the homes on which Mr Donkin worked were clad in asbestos cement fibro.

21. I find that this ratio continued between 1977 and 1983 when Mr Donkin worked on his own account as a builder.

22. However, the prospect exists that even the brick veneer homes involved some exposure to asbestos cement building products. There is no direct evidence about this. However, between 1965 and 1973, compressed asbestos sheet was used in the wet area of the houses being constructed. This was a James Hardie product. Further, a product which Mr Donkin identified as “Tilux” was used as a wall covering in bathrooms. Whether these products continued to be used in brick veneer homes was not explored in the evidence, but I find that the most probable inference is that even the brick veneer homes had some asbestos cement building products in them, in particular compressed asbestos cement sheeting and Tilux. I cannot make a precise finding as to what percentage of the brick veneer homes would have used those products. My finding is that there was some additional exposure to asbestos cement products when Mr Donkin worked on brick veneer homes, but nowhere near as much exposure as there was when he worked on homes which had been constructed of asbestos cement fibro.

23. Another matter in the evidence of Mr Donkin was uncontroversial. In Wagga Wagga there was a large hardware store called “Hardys Hardware”. Mr Donkin’s father had an account with Hardys Hardware which was the main supplier of building materials for the business. Mr Donkin’s father also had accounts with Castles Hardware and Geels Hardware and a number of other hardware stores. Later evidence from Mr Donkin’s brother (dealt with below) demonstrates that fibro and asbestos cement products were never bought from those other stores. Mr Donkin said that all of the fibro came from Hardys Hardware, and in this he was corroborated by his brother.

24. I find that the asbestos cement flat sheets used from 1965 onwards by Mr Donkin came from Hardys Hardware. This continued after 1977 when Mr Donkin commenced business on his own account, as he then maintained an account with Hardys Hardware which was his main supplier.

25. Mr Donkin gave evidence that when working for his father asbestos cement fibro products which were purchased from Hardys Hardware included not only asbestos cement flat sheets and compressed asbestos fibro sheets, but also “profile boards such as Coverline, Shadowline, and Tilux”.

26. I have already recited that compressed asbestos cement fibro sheets were a James Hardie product. That it was the only manufacturer of this product was borne out by later evidence from Mr Hoens (dealt with below). The profile boards with the names Coverline, Shadowline and Tilux were James Hardie products. There were products which were similar in appearance made by Wunderlich, but Mr Donkin was quite specific in identifying those products by their James Hardie trade name.

27. If Hardys Hardware was supplying Coverline, Shadowline and Tilux when Mr Donkin was working for this father, then Hardys Hardware was supplying those James Hardie products.

28. Mr Donkin was cross-examined about this at the bedside hearing. The cross-examination was:

“Q.   If I suggested to you that up until 1970 at least up until 1970 that the hardware store, Hardys, which was delivering these products to the site was a seller of Wunderlich products, can you say anything about that?

A.   I can’t tell you much about it.

Q.   If I suggested to you that that memory of the Hardies name appearing on the products was later on when you were working for yourself rather than working for your dad, could that be right?

A.   Yes.”

29. No doubt counsel for Amaca at the bedside hearing selected the date of 1970 because this was the date of the end of the “closed house” agreement between James Hardie and Wunderlich, which I will deal with below.

30. The seed of doubt about whether Hardys Hardware supplied James Hardie products between 1965 and 1970 is thus planted by that answer in cross-examination. I cannot make a finding about that matter based upon the evidence of Mr Donkin alone. However, there is other evidence, dealt with below, from which certain inferences can be drawn.

RODNEY DONKIN

31. Mr Rodney Donkin is a brother of the late Mr Stewart Donkin. He worked alongside his brother in the father’s building business. He provided a very brief written statement dated 31 January 2018 confirming that the residential building work involved “significant amounts of fibro material”. It was his belief that most of the building products used in the business were purchased from Hardys Hardware in Wagga Wagga. He did not know the manufacturer of the products.

32. Mr Rodney Donkin was cross-examined by telephone at the hearing of the Cross-Claim.

33. Besides Hardys Hardware, he recalled his father purchasing from Castles Hardware, Geels Hardware and RM Bostock. He gave evidence which I accept that from these three stores the business purchased “mainly all the fix out stuff”. By this he meant nails, glue, tiles, hinges, architraves and any sort of finishing material. Mr Donkin gave evidence, which I accept, that the asbestos cement building products were purchased from Hardys Hardware.

KENNETH PICKERING

34. I admitted evidence, pursuant to s 25(3) of the Dust Diseases Tribunal Act 1989 from a prior case of Seltsam Pty Limited v Amaca Pty Limited (Re: Mark Patrick Noonan) DDT 130/14/1 (Noonan). I record that I appeared as senior counsel for Seltsam in that case which was heard by Judge Curtis. In the present Cross-Claim both Amaca and Seltsam indicated that they had no objection to me hearing this matter. I considered my position and came to the view that there were no difficulties in my hearing this Cross-Claim. As it turned out, no difficulties arose.

35. Two affidavits of Mr Pickering from the Noonan proceedings were tendered on the Cross-Claim. Those affidavits were admitted, subject to the rulings of Judge Curtis in Noonan, which rejected small portions of the affidavits.

36. Mr Pickering was born in 1928 and commenced working for Wunderlich in 1942. He ceased working for Wunderlich in 1950 and went to the Department of Public Works for three years. In 1953 he commenced employment with James Hardie where he worked until his retirement in 1983. In the Noonan case he gave evidence concerning the “closed house” agreement between Wunderlich and Amaca which lasted until about 1970. I do not need to recite his evidence in relation to the closed house agreement, as it was the subject of a s 25B finding by Judge Curtis, which in turn was relied upon by Amaca in the present Cross-Claim.

37. The issue determined in Noonan by Judge Curtis was as follows:

“James Hardie (now Amaca) and Wunderlich (now Seltsam) both manufactured asbestos cement fibro sheeting between 1967 and 1972. They maintained a Closed House Agreement pursuant to which each retailer purchased asbestos cement products exclusively from one or the other. This agreement came to an end in approximately 1970.”

38. The evidence in Noonan, again tendered on this Cross-Claim, showed that while many, and indeed most, retailers abided by the closed house agreement, there were some exceptions which resulted in a Wunderlich store selling James Hardie products and vice versa. In Noonan, evidence was given that if, for example, the proprietor of a Wunderlich store was asked by a customer for a specific James Hardie product by name, then that retailer would go to another retailer, who was tied to James Hardie, purchase the product there, and then supply it through the Wunderlich store to the customer. The evidence in Noonan (at pp 54 and 57 of Exhibit CCX1) was that this made commercial sense, as many of the people requesting a particular product by a trade name were builders, who had an account with one particular store, and that store would have been keen to supply all of their needs and keep them as a customer.

39. Thus it was quite possible, based on the evidence in Noonan, for a Wunderlich store to supply James Hardie products, particularly those which have a particular trade name. That matter is important when assessing the inferences available as to whether Hardys Hardware in Wagga Wagga supplied Mr Stewart Donkin’s father, and later Mr Stewart Donkin, with James Hardie proprietary products including Coverline, Shadowline, Tilux, and compressed asbestos sheet. I will return to that matter below.

40. Mr Pickering in the Noonan case was giving evidence about a particular hardware store in Sutherland, which was relevant in Noonan but which has no relevance in the Donkin case. In his second affidavit in Noonan, affirmed on 19 February 2015, Mr Pickering said the following:

“3.    During the closed house agreement, when I was employed by Wunderlich, I was aware of which stockists were supplied by Wunderlich and which were supplied by James Hardie.

4.   During the closed house agreement, when I was employed by James Hardie, I was aware of which stockists were supplied by Wunderlich and which were supplied by James Hardie.

5.    The closed house agreement came to an end in approximately 1971. At the time the closed house agreement came to an end, I was field sales manager responsible for the southern division. I remained in this role until I retired in 1983. My duties in this role included appointing new stores to distribute products and sales generally. During my time as field sales manager, 1956 to 1983, I was very familiar with the stores that stock James Hardie products and those that stocked Wunderlich products.

6.    After the closed house agreement ended James Hardie would sell its products to stores that had been tied to, that is supplied exclusively by, Wunderlich and similarly Wunderlich could sell to stores that had been tied to James Hardie.

7.    When the closed house agreement ended, I recall that James Hardie attempted to get [some of] the main or larger Wunderlich stockists to stock James Hardie asbestos products. I recall that James Hardie did not have much success in doing so. Very few stockists changed to take supply from James Hardie instead of Wunderlich. Similarly, very few of the James Hardie stockists changed to take supply from Wunderlich. In my experience after the closed house agreement ended, stockists tended to remain very loyal to the supplier they had had a relationship with during the closed house agreement. Many of the supply relationships went back many, many years and it was hard for James Hardie to break into the stores that had been tied to Wunderlich.”

41. In paragraph 8 of that affidavit tendered in Noonan, Mr Pickering attempted to give evidence about ten particular Wunderlich stores which declined to stock James Hardie products after the end of the closed house agreement. That paragraph was struck out by Judge Curtis. However, counsel for Amaca tendered the first three lines of paragraph 8 and sub-paragraph 8.10 in the present Cross-Claim. I admitted that additional evidence from Mr Pickering upon this Hearing. The portions at paragraph 8 now in evidence are as follows:

“I recall that after the closed house agreement ended, the following stores were Wunderlich stockists who were approached to stock James Hardie products but who declined to do so and continued to stock Wunderlich products:

…

8.10 Hardys Hardware Pty Limited in Wagga Wagga listed on page 108 of the Sales Manual.”

42. This reference to a “Sales Manual” is a reference to a 1971 James Hardie Sales Manual, which was in evidence in Noonan and which was put into evidence again in these proceedings by the cross-defendant. It has a list of stockists which includes Hardys Hardware in Wagga Wagga. However, the evidence in Noonan established that, as counsel for Amaca in the present proceedings put it, such list was “aspirational”. The Sales Manual dated 1971 was a document created after the closed house agreement ended. It was a list created by James Hardie not only of the retailers who already stocked James Hardie products, but those Wunderlich retailers which James Hardie decided to target and try to bring into the fold, after the end of the closed house agreement. I accept the evidence in Noonan to the effect that the listing of a retailer in the 1971 James Hardie Sales Manual does not mean either that such store was an exclusive James Hardie seller as of 1971, or indeed that such a store sold any James Hardie product in 1971.

42. Mr Pickering was made available for cross-examination in the present proceedings. He attended court. As was appropriate, counsel for the cross-defendant considered, in the light of the evidence admitted, whether or not he wished to cross-examine Mr Pickering. He decided not to.

43. In consequence, the evidence of Mr Pickering, and in particular the evidence of Mr Pickering in paragraph 8.10 of his second Noonan affidavit, is unchallenged.

44. I find that prior to the end of the closed house agreement in 1970 Hardys Hardware in Wagga Wagga was an exclusive Wunderlich stockist. I also find that after the end of the closed house agreement in about 1970, Hardys Hardware continued to stock Wunderlich products and did not become a store generally allied with James Hardie products.

45. However, I find that if a customer of Hardys Hardware had requested a James Hardie product by name, then Hardys Hardware would have obtained that James Hardie product from another source and sold it to the customer. I therefore find that Mr Stewart Donkin should be accepted in his evidence that his father purchased the James Hardie products Coverline, Shadowline, Tilux and compressed asbestos sheeting from Hardys Hardware.

46. I also find that even though Mr Stewart Donkin, after he commenced as a builder on his own account in 1977, continued to buy from Hardys Hardware, he was purchasing those four James Hardie products from Hardys Hardware.

47. That leaves a factual issue to be decided – which company manufactured and supplied the asbestos cement flat sheet fibro, which formed the bulk of the asbestos cement products supplied by Hardys Hardware to Mr Donkin’s father, and later to Mr Donkin on his own account?

WALLACE MELLISH

49. Mr Mellish swore an affidavit dated 28 July 2016 in these proceedings. He was born in 1929. In 1945 he started work for Wunderlich and he worked there until he resigned on 3 August 1973. He worked at the Rosehill factory of Wunderlich which manufactured Durasbestos asbestos cement flat sheets, corrugated sheets and a range of asbestos cement accessories. Orders for asbestos cement building products came from the sales staff at the Redfern office of Wunderlich. The orders came typed with the name of the hardware store and its address at the top of the order. Orders came to the production office where Mr Mellish used the information to program what needed to be manufactured in the following weeks to meet the orders. He saw virtually every order that came to the factory while he was working there. He knew the names of all the distributors and was familiar with the identity of the stockists of Wunderlich asbestos cement building products.

50. Mr Mellish said that Hardys Hardware was distributor of Wunderlich asbestos cement products. He clearly remembered the name of that hardware store and remembered that name appearing at the top of order forms when he worked for Wunderlich. He knew of the closed house agreement and knew that it came to an end in the early 1970s. He said that right up until he resigned from Wunderlich in August 1973 orders were being received from Wunderlich to supply asbestos cement products to Hardys Hardware.

51. Mr Mellish recalled that Hardys Hardware would send a truck to the Wunderlich factory, which was then loaded with asbestos cement building materials, and the Hardys Hardware driver would take it away.

52. Mr Mellish was cross-examined on that affidavit. In spite of his age I formed the view that he was giving evidence from memory and that he was accurate in the evidence he gave. He said that he had “vivid memories of the orders from Hardys at Wagga” and I accept him in that regard.

53. That being so I find that Hardys Hardware was ordering asbestos cement building products on a large scale from Wunderlich right up until August 1973. This means that for about three years after the closed house agreement came to an end, Hardys Hardware was ordering large quantities of product from Wunderlich. On this basis, I find that all of the asbestos cement flat sheet to which Mr Donkin was exposed prior to August 1973 came from Wunderlich.

54. I also find that this continued after August 1973, on the basis that it is highly unlikely that such arrangement stopped straight away in August 1973. However, the evidence does not enable me to find that Hardys Hardware ever ceased to supply only Wunderlich flat sheet asbestos cement products after 1973 and up to 1977, when something important happened.

55. In July 1977 James Hardie bought the asbestos cement business of Wunderlich, and it was an agreed fact in this case that from July 1977 onwards James Hardie was the only supplier of asbestos cement building products, both to Mr Donkin, and generally in the market.

DESMOND HOENS

56. Mr Desmond Hoens gave evidence by an affidavit affirmed on 31 January 2018. He worked for James Hardie between 1952 and 1994. He ended up as the General Sales Manager for Australia. In his various positions he became familiar with the nature and appearance of asbestos cement building products made not only by James Hardie, but also by Wunderlich.

57. In his affidavit he set out a table of the comparable Wunderlich products to each James Hardie product. In relation to compressed sheets, he identified a Wunderlich product which he called “Durasbestos thick sheets”. Cross-examination of Mr Hoens revealed that a Durasbestos thick sheet was simply two Durasbestos flat sheets bonded together. Mr Hoens said, and I accept, that it was not a successful product and it was quickly withdrawn from the market.

58. On that basis, I find that any asbestos compressed sheet to which Mr Donkin was exposed at any time was a James Hardie product.

ADDITIONAL DOCUMENTARY EVIDENCE

59. I have dealt already with the 1971 James Hardie Sales Manual. The cross-claimant also tendered reproductions of pages containing advertisements in The Daily Advertiser, which is the newspaper circulating in the Wagga Wagga area in 1960s and 1970s.

60. Some of those advertisements relate to Wunderlich aluminium doors and windows. Hardys Hardware was a supplier of Wunderlich aluminium doors and windows. However, I am not willing to draw an inference from the supply of aluminium products that Hardys Hardware was therefore a supplier of Wunderlich asbestos cement building products.

61. However, there are two findings to be drawn from the bundle of advertisements from the The Daily Advertiser. The first finding is that Hardys Hardware advertised that it was a supplier of Wunderlich asbestos cement products. The second finding is that there were no advertisements in The Daily Advertiser to the effect that Hardys Hardware was ever a supplier of James Hardie asbestos cement building products.

62. At p 136 of Exhibit CCX1 is an advertisement from The Daily Advertiser dated 1 September 1972, for Wunderlich Wonderflex building board. That is said to be a Wunderlich asbestos cement product which is available from the large number of stores. Hardys Joinery Pty Limited is one of those stores, as is Castles Hardware Pty Limited.

63. Page 144 of Exhibit CCX1 contains an advertisement from the mid-1960s in The Daily Advertiser for Hardie’s Fibrolite, which is a James Hardie product. That advertisement lists the stockists in the area. There are three stores in the Wagga Wagga area which are stockists of Hardie’s Fibrolite. Hardys Hardware is not one of them. None of the three stores were ever patronised by Mr Donkin or his father.

64. The advertising of Wunderlich products with a list of stockists and James Hardie products with a list of stockists in those years fits in with the closed house agreement. In particular, the advertisement from the mid-1960s for a James Hardie flat sheet product (Fibrolite) leads me to find as a fact that Hardys Hardware did not stock or sell James Hardie flat sheet product in the 1960s. Given the unchallenged evidence about the operation of the closed house agreement, I find by inference that Hardys Hardware did not stock James Hardie asbestos cement flat sheet building products, at least before the end of the closed house agreement in about 1970.

65. There was no evidence concerning the thoroughness of the searches which led to the advertisements from The Daily Advertiser being tendered. However, they range across many years and from that alone I would infer that an extensive search was made for such advertisements. I accept the submission of counsel for the cross-claimant, that the cross-defendant had its own opportunity to carry out such searches, and did not tender any evidence to demonstrate conclusions from the advertisements contrary to those which I have reached.

66. Given my acceptance of the evidence of Mr Pickering that James Hardie tried to obtain an arrangement with Hardys Hardware to make it a James Hardie stockist after the end of the closed house agreement, and failed to do so, I find that after 1970 Hardys Hardware only sold Wunderlich asbestos cement flat sheet product and did not sell James Hardie asbestos cement flat sheet product. There is no evidence that this arrangement changed before July 1977, when James Hardie became the sole supplier of such product.

67. I find by inference that Hardys Hardware probably continued to sell only Wunderlich asbestos cement flat sheet until 1977.

CONSIDERATION

68. An application for contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 requires the court to compare the relative culpability of the parties in causing the damage. The classic statement of the task is contained in the judgment of Justice Clarke in Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 1995) where his Honour said:

“The making of an apportionment involves a comparison of culpability and of the acts of the parties causing damage. To put it another way, the court is concerned with considering relative blameworthiness and the relative causal potency of the negligence of each party.”

69. In the present case counsel for the cross-claimant submitted that each party was equally blameworthy. There was no submission to the contrary from the cross-defendant. This must be so, as both parties to this cross-claim were large producers and suppliers of asbestos cement building products.

70. The task for the court is therefore to consider relative causal potency. I have already found as a fact that a substantial quantity of the asbestos cement building products to which the late Mr Donkin was exposed were Wunderlich products, being asbestos cement flat sheets.

71. In assessing relative causal potency, the court therefore must find, in effect, how much of the exposure of the late Mr Donkin was to James Hardie products and how much was to Wunderlich products.

72. On my review of the evidence on the cross-claim above I have recorded the facts which I have found. I make the following further findings of fact.

73. I find that between 1965 and 1973 the late Mr Donkin worked for his father largely on residential construction and renovation.

74. I find that in the years 1965 to 1973 almost all of the homes on which Mr Donkin worked were asbestos cement fibro homes.

75. I find that all of the asbestos cement flat sheets on these fibro homes were Wunderlich sheets.

76. I find that both in the fibro homes and in the brick veneer homes, James Hardie asbestos cement products being Coverline, Shadowline, Tilux and compressed fibro sheets were used.

77. The evidence does not enable me to find with any precision what percentage of the exposure in the years 1965 to 1973 was to Wunderlich product and what percentage was to James Hardie product, but I do find that substantially more than half of the exposure in those years was to Wunderlich product, as flat sheets would have been the product most used by volume. Most of the houses were clad and lined with fibro.

78. In the years 1973 to 1977 the late Mr Donkin worked for his father and the houses were 25% asbestos cement fibro homes and 75% of brick veneer homes.

79. I find that in those years the asbestos cement flat sheets came from Hardys Hardware in Wagga Wagga and that such sheets were Wunderlich sheets.

80. I find that in those years on both the fibro homes and the brick veneer homes, Mr Donkin was exposed to James Hardie asbestos cement products being, Coverline, Shadowline, Tilux and compressed fibro sheets.

81. The evidence does not enable me to say what proportion of the exposure in those four years was to Wunderlich and what proportion was to James Hardie.

82. However, given the change in the nature of the business (from almost no brick veneer homes to 75% brick veneer homes) I find that the exposure during that period was approximately 50% Wunderlich and 50% James Hardie.

83. I find that from 1977 until 1983 the late Mr Donkin was exposed only to James Hardie asbestos cement products. I find that in those years about 25% of the homes on which he worked were asbestos cement fibro homes. On these homes the flat sheet product was a James Hardie product. Further, on both the fibro and the brick veneer homes all of the other asbestos cement products (including Coverline, Shadowline, Tilux and compressed fibro sheet) were James Hardie products.

84. I find that the exposure to asbestos cement building products in the six years 1977 to 1983 was less intense exposure than the exposure between 1965 and 1973, when there were many more fibro homes than brick veneer homes. I have already found that in that period substantially more than half of the asbestos exposure was to Wunderlich product.

85. Counsel for the cross-claimant made detailed submissions which included a mathematical analysis of how much exposure there had been in total, by applying percentages to the various periods.

86. I have already indicated that the evidence is not precise enough for me to approach the matter in that way, and indeed to do so, would introduce into this judgment a suggestion of mathematical precision which is simply not possible on the state of the evidence.

87. In summary, my findings of fact are that in the period of 8 years between 1965 and 1973 there was more Wunderlich exposure than James Hardie exposure. In the period between 1973 and 1977, the exposure was about 50% Wunderlich and 50% James Hardie.

88. In the period from 1977 to 1983 the exposure was all James Hardie, but there was less intense exposure than there was in the period 1965 to 1973. The fact that almost all of the homes worked upon in the first period of 1965 to 1973 were fibro homes must be given appropriate weight.

89. I find that the appropriate apportionment under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 is 50% to the cross-claimant and 50% to the cross-defendant.

90. The result will be a judgment for the cross-claimant against the cross-defendant for half of the amount which the cross-claimant paid to the late Mr Donkin’s estate, that amount being $370,000 inclusive of the plaintiff’s costs. There will therefore be a judgment for $185,000. I have no evidence as to when $370,000 was paid by the cross-claimant to the estate. Interest should be paid by the cross-defendant to the cross-claimant upon the sum of $185,000, at court rates. I will give effect to that by ordering that the judgment will take effect from the date of payment by the cross-claimant to the estate.

91. I will also make the ordinary order for costs and grant leave to the parties to seek any different order if, through the operation of the Dust Diseases Tribunal Regulation 2013, a Calderbank letter or any Offer Of Compromise, a party seeks a different order for costs.

ORDERS

92. My orders are:

1. Judgment for the cross-claimant against the cross-defendant for $185,000;

2. Order that such judgment take effect on the date on which the cross-claimant made payment to the plaintiff in satisfaction of the Consent Judgment entered on 21 July 2016.

3. Order the cross-defendant to pay the cross-claimant’s costs .

4. Grant leave to the parties to seek any different costs order if so advised.

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Decision last updated: 09 February 2018