Amaca Pty Limited v State Rail Authority of New South Wales; Re Zaluga

[2006] NSWDDT 39

Dust Diseases Tribunal

of New South Wales

CITATION:	Amaca Pty Limited v State Rail Authority of New South Wales; Re Zaluga [2006] NSWDDT 39
PARTIES:	Amaca Pty Limited (formerly known as James Hardie & Coy Pty Ltd State Rail Authority of New South Wales
MATTER NUMBER(S):	124/2002/1
JUDGMENT OF:	Kearns J
CATCHWORDS:	Dust Diseases Tribunal :- 25B Notice All exposure to asbestos is causative of the disease mesothelioma visible asbestos
CASES CITED:	Walsh v Boral and Others (1996) 13 NSWCCR 653; BI Contracting Pty Limited v Myer Emporium Limited (2005) 3 DDCCR 142
DATES OF HEARING:	04/09/2006, 05/09/2006, 13/11/2006, 20/02/2007
EX TEMPORE JUDGMENT DATE:	09/05/2006
LEGAL REPRESENTATIVES:	Mr T Ower (cross claimant) Mr T Rowles (cross defendant)

JUDGMENT:

5

Dust Diseases Tribunal of New South Wales

Matter No DDT124 of 2002/1

(Re: Wolodymir Zaluga) (Settled 10/07/2002)

C.C: Amaca Pty Ltd (Formerly known as James Hardie & Coy Pty Ltd)

v

C.D: State Rail Authority of New South Wales

C.D: Sydney Water Corporation (Settled 10/05/2004)

5 September 2006

RULING

KEARNS J

1. Yesterday a number of matters in the cross-claimant's s 25B notice were deferred until this morning for different reasons. However, item 21 was argued and I propose to deliver reasons for my ruling on item 21. It reads:

All exposure to asbestos is causative of the disease of mesothelioma, Walsh v Boral and Others, (1996) 13 NSWCCR 653.

2. This statement on which the cross-claimant relies does in fact find support in the authority where at p 663(C) Judge Curtis said, "I find that all asbestos exposure is causative of the disease, mesothelioma". Mr Rowles took me to a number of parts in that report. All parts he took me to demonstrated that his Honour's findings in the case were findings that the plaintiff in that case was exposed to dust that was visible in the atmosphere. The references he took me to were at 656(F), 657(C), 657(E) and 657(G). It was a case of visible dust, Mr Rowles argued, and therefore his Honour's statement was not a determination related to the issues before him. Mr Rowles also referred me to a passage following the quoted statement from Judge Curtis at 663(E). Certainly the passages that Mr Rowles took me to were passages indicating that the case was one where the evidence was as to visible dust in the working environment of the plaintiff. The determination by his Honour therefore, Mr Rowles argued, that all asbestos exposure is causative is not a determination within the meaning of section 25B because his Honour did not have to make any determination about all asbestos exposure but only about asbestos exposure where the dust was visible. That, it seems to me, is an arguable analysis of the case but I am not convinced that it is the proper analysis of the case, having had an opportunity to read it overnight.

3. At 656(F) his Honour dealt with the plaintiff's exposure with the first, second and third defendants in that case and said that the atmosphere in which he worked was very dusty. He made a comment about the dusty environment at 657(A), (B) and (C). At (C) he found in aggregate that the plaintiff worked the equivalent of four years' continuous exposure on the basis of an eight hour day, five days a week. That was approximately on the basis of his being exposed about 20 per cent of his working hours over a period of about twenty years.

4. At 657(E) his Honour dealt with the plaintiff's exposure to asbestos dust in the employ of the fourth defendant and it was described by the plaintiff as very minimal which his Honour took to be a description in comparison with his earlier exposure. He referred to visible asbestos dust in the atmosphere and thought that the aggregate time of exposure to visible concentration of asbestos dust was approximately one eight-hour day over the course of that employment.

5. Then his Honour dealt with the plaintiff's exposure in relation to the fifth defendant and at 657(G) noted that he was exposed to visible dust.

6. At 659(G) his Honour noted that the effects of asbestos exposure are cumulative and he went on to note that the risks of contracting mesothelioma from small concentrations of exposure to asbestos were well known by 1985. Under his heading of "Relevant Findings" he noted that mesothelioma was dose related because the heavier the exposure the more likely the patient will develop mesothelioma and he developed that in the last paragraph on 662 finishing with this observation, "No exposure is innocent. Each is a cause of the mesothelioma." These observations were made in the light of evidence given by Dr Joseph in a case of Ringsteadwhere the evidence of Dr Joseph, it would seem, related to exposure not defined as to whether it was visible or invisible and one would assume all exposure.

7. It is in that context that his Honour made his finding that all exposure is causative of mesothelioma. Further it was in the context of argument on behalf of the fourth and fifth defendants in that case that their exposure did not cause mesothelioma. That was because the earlier exposure was significant and fitted in well with the known latency period for the development of mesothelioma. The argument on the part of the fourth defendant, for example, was that, in effect, one day's exposure more recently could not be causative. The entire statement of Judge Curtis was “The argument is superficially plausible, however, accepting the opinion of Dr Schneeweiss and Dr Joseph, I find that all asbestos exposure is causative of the disease mesothelioma”.

8. I think Walsh v Boral probably does support item 21 in the s 25B notice as originally framed. However, Walsh v Boral was not analysed before me as I have analysed it and at the conclusion of Mr Rowles’s argument yesterday I asked him in the light of his analysis, if he could have any objection if the statement of Judge Curtis was read as being limited to visible asbestos, that is to say in effect, that exposure to all visible asbestos is causative of the disease mesothelioma. As I understood Mr Rowles’s response he did not have any objection to that as an available and acceptable analysis of Walsh v Boral and the legitimate foundation for a 25B item to that effect. However, he went on to say that there would be an objection further down the line because notice in that form had not been given and it raised issues as to his state of preparation and the availability of evidence.

9. At the end of yesterday afternoon Mr Ower sought to amend the s 25B notice so that item 21 was now to read, "all exposure to visible asbestos is causative of the disease of mesothelioma". Mr Rowles objected to this because he said he never had to face up to this point. He was confident he would have the item in number 21 as originally framed knocked out with the result that he would not have to deal with it. He also said that he would have had evidence available to him that is not available to him now and he referred me to BI Contracting Pty Limited V Myer Emporium Limited (2005) 3 DDCCR 142 where at p 146 there is a statement attributed to Professor Henderson as follows:

Spraying is an extremely hazardous type of insulation work generating high concentrations of airborne respirable asbestos fibres up to 400 fibre/m. In comparison a few days spent cutting asbestos cement sheets would have been causally inconsequential.

10. I do not find this authority especially helpful. It was a case about apportionment between tortfeasors. It would seem the quoted extract was in the context of the plaintiff in that case doing a few days' work at the private residence of a director of one of the defendants, in contradistinction to the work he was doing at the store where a lot of spraying was being undertaken. In the context of two tortfeasors both admittedly liable, the issue being a fair apportionment between them, it seems to me that that statement does not offer a lot of help in this matter.

11. I think Mr Ower is entitled to his amendment. As I understand it the cross-defendant in this case wants to argue that the plaintiff had little exposure in its employ. I am not sure that there would be much difference between the parties in relation to that, maybe a difference in emphasis. Mr Ower in opening this case said it was not a case of extensive exposure with the cross-defendant, nevertheless was significant and I take it by that he meant worth pursuing in the litigation. It seems to me that both parties have approached this case on the basis that the plaintiff's exposure with the cross-defendant is not great and that they would both be prepared to present such evidence as they have in relation to the plaintiff's exposure with the cross-defendant, that evidence being of a lay and/or expert nature.

12. There is one curious matter that arises from one of Mr Rowles’s submissions, and that is up until 10 August this year when the s 25B notice was served, his client presumably was contesting this litigation, which I take it was set down before that date, and set down on the basis that witnesses, if required, were available. His client was contesting this litigation on the basis that witnesses were to be called, if need be, in relation to exposure or no exposure. If it was confident in knocking out item 21 of the s 25B notice that would leave it as if that item in effect had never existed so far as the cross-defendant is concerned and, with that confidence, it would continue to have its evidence available to present on the issue. In the circumstances I cannot see how there can be any prejudice. Further, I might add on the question of prejudice, I am not sure that item 21, in whatever form it is accepted, makes any difference unless one or other of the parties has some evidence available that the plaintiff was exposed to asbestos that could not be seen. I am told it is a documentary case and that the evidence of exposure, I gather, is essentially going to come from whatever the plaintiff has said. What he said is no doubt his recollection of what he saw so whether the word "visible" is in the s 25B item or not it does not seem to me it is likely to make any difference.

13. In the circumstances I propose to allow the amendment to item 21 in the 25B notice so that it will now read, "All exposure to visible asbestos is causative of the disease of mesothelioma" and I propose to allow that item under s 25B.

**********

Mr T Ower instructed by Phillips Fox appeared for the cross-claimant

Mr T Rowles instructed by Sparke Helmore appeared for the cross-defendant