Amaca Pty Ltd v Goodyear Australia Pty Ltd

[2021] NSWDDT 6

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Amaca Pty Ltd v Goodyear Australia Pty Ltd [2021] NSWDDT 6

Hearing dates:

3 – 5 May 2021

Date of orders:

11 November 2021

Decision date:

11 November 2021

Before:

Scotting J

Decision:

1    I find that the just and equitable contribution between the parties is that James Hardie (Amaca) should be 75% responsible for Mr Tarrant’s damage and Goodyear 25% responsible for Mr Tarrant’s damage.

2    The parties are to provide Short Minutes of Order to my Associate within 7 days of today, to give effect to my findings and dealing with costs.

3     I will hear the parties on costs, if no agreement can be reached.

Catchwords:

DUST DISEASES — Contribution — cross claim — contributions assessment - Just and equitable contribution – relative blameworthiness

NEGLIGENCE – Duty of care – Employer – User of dangerous substances – Asbestos

TORTS – Joint and several liability – Contribution – Apportionment of Liability – Liability for “same damage” – Contraction of mesothelioma

Legislation Cited:

Law Reform (Miscellaneous Provisions) Act 1946

Cases Cited:

Belhaven and Stenton Peerage (1875) 1 App Cas 278

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 142

Hamilton v Nuroof(WA) Pty Ltd (1956) 96 CLR 18

Kondis v State Transport Authority (1984) 154 CLR 672

London Graving Dock Co Ltd v Horton [1951] AC 737

Luxton v Vines (1952) 85 CLR 352

Macquarie Pathology Services Pty Ltd v Sullivan (NSW Court of Appeal unreported 28 March 1995)

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492

Seltsam Pty Ltd v McGuiness at (2000) 49 NSWLR 262

Smith v Austin Lifts Ltd [1959] WLR 100

Wilsons and Clyde Coal Co v English [1938] AC 57

Category:

Principal judgment

Parties:

Amaca Pty Ltd (Second Defendant/Cross Claimant)

Goodyear Australia Pty Ltd (First Defendant/Cross Defendant)

Representation:

Counsel: J Sheller SC (Second Defendant/Cross Claimant)
D Toomey SC/J Tryon (First Defendant/Cross Defendant)

Solicitors: Mills Oakley (Second Defendant/Cross
Claimant)
William Roberts Lawyers (First Defendant/Cross Defendant)

File Number(s):

2020/161432

Publication restriction:

None

Judgment

Introduction

1. James Tarrant was employed by the cross-defendant, Goodyear Australia Pty Ltd (Goodyear), at its factory situated at 11 Grand Avenue Camellia, between about 1963 and 1967. At all material times, James Hardie & Co Pty Ltd (James Hardie) operated a factory producing asbestos cement products at 1 Grand Avenue, Camellia. [1] The Goodyear factory and the James Hardie factory were located next door to each other and shared a boundary to the west of Building 8 of the Goodyear factory, separated by a chain link wire fence.

   1. Amaca Pty Ltd (Amaca), the cross-claimant, has assumed the liabilities of James Hardie.

2. Mr Tarrant alleged that he was exposed to asbestos in the course of his employment with Goodyear in two ways. First, from asbestos containing insulation products used on steam pipes and machinery in the Goodyear factory (the insulation exposure) and second, from asbestos dust released into the air as a result of the operation of the James Hardie factory (the contamination exposure).

3. Mr Tarrant contracted mesothelioma and brought proceedings in the Tribunal that were settled. Amaca and Goodyear paid the settlement sum to the plaintiff in accordance with the allocation of their provisional liability determined by a contributions assessor. In prosecuting the cross-claim, Amaca seeks to challenge the Contributions Assessment Determination and to seek contribution from Goodyear pursuant to s 5 Law Reform (Miscellaneous Provisions) Act 1946. Goodyear and Amaca accept that they were each liable to Mr Tarrant for the same damage.

4. The only issue in the proceedings is: what is the appropriate apportionment between Amaca and Goodyear applying s 5(2) Law Reform (Miscellaneous Provisions) Act 1946? The parties indicated that they seek the Tribunal’s determination of the appropriate apportionment between them, following which they will formulate the appropriate order to give effect to that decision.

Evidence

5. The evidence relied on by both parties was wholly documentary. It consisted of a large number of affidavits, statements and business records compiled over many years concerning claims by employees of Goodyear and/or James Hardie, and some documents relating to contemporaneous investigations into conditions at each factory.

6. All of the relevant witnesses are now deceased. No submission was made as to credit of any of the witnesses. Only one witness, Richard Davis, gave evidence before me set out at [100]-[101] below in a similar cross-claim involving the same parties on 22 May 2019. That cross-claim settled and it was not necessary for me to make any finding relating to Mr Davis’ credit. It is not appropriate to do so now. Accordingly, I have assessed Mr Davis’ evidence on the same basis that I have assessed the evidence of the other witnesses.

7. For the most part, the evidence of the witnesses was very similar, with very limited inconsistencies, which I will address if it is necessary to do so.

8. In this case, it is necessary to make findings specific to Mr Tarrant’s exposure to asbestos at the Goodyear factory in the period of 1963 to 1967 (the relevant period). For that purpose, I have set out a summary of Mr Tarrant’s evidence and the evidence of his brother, John Tarrant, who also worked for Goodyear in a similar period. I have then referred to the evidence of the other witnesses that is relevant to making findings about the circumstances of Mr Tarrant’s exposure. Finally, I will set out the evidence relating to James Hardie’s knowledge about the dangers of asbestos in the relevant period. I have not referred to all of the evidence where, it fell outside of the relevant period, it was repeated in other evidence or it was irrelevant to the apportionment issue.

Relevant law

9. Section 5 Law Reform (Miscellaneous Provisions) Act 1946 relevantly provides:

5 PROCEEDINGS AGAINST AND CONTRIBUTION BETWEEN JOINT AND SEVERAL TORT-FEASORS

1. Where damage is 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.

1. 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.

   10. The test for apportioning contribution between tortfeasors under s 5(2) is in substance the same as that applied in apportionment for contributory negligence. In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494 the High Court stated:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris (1956) 96 CLR. 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd [1953] A.C. 663 at 682; Smith v. McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v. Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

11. In Macquarie Pathology Services Pty Ltd v Sullivan (NSW Court of Appeal unreported 28 March 1995) Clarke JA described the apportionment exercise in the following terms:

…the making of an apportionment involved a comparison of both culpability and of the relative importance of the acts of the parties causing the 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.

12. Goodyear owed a non-delegable duty of care to Mr Tarrant was a non-delegable duty to take reasonable care to avoid exposing him as an employee to an unreasonable risk of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25. An employer’s duty includes the duty to provide:

1. a safe place to work; ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372;

2. a safe system of work and supervision; Kondis v State Transport Authority (1984) 154 CLR 672;

3. proper and adequate materials and equipment; Wilsons and Clyde Coal Co v English [1938] AC 57 at 84-85 (Lord Wright) and

4. competent staff; Wilsons and Clyde Coal Co v English [1938] AC 57 at 78 (Lord Wright).

13. James Hardie owed a non-delegable duty of care to the Goodyear workers, including Mr Tarrant, to take reasonable care to avoid a foreseeable risk of injury to persons who were proximate to its use of a dangerous substance; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.

14. A court can be satisfied of an issue on the balance of probabilities based on circumstantial evidence: Seltsam Pty Ltd v McGuiness at (2000) 49 NSWLR 262 at [90]. This requires considering the weight that can be given to the united force of all of the circumstances put together: Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279.

15. Facts can be inferred on the basis of the primary facts, if it is reasonable to draw the inference: Luxton v Vines (1952) 85 CLR 352 at 358. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. Some facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability: Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 142 at 169-170.

Evidence of the workers

James Tarrant

16. Mr Tarrant was employed at the Goodyear factory for about three and a half years between 1963 and 1967.

17. Mr Tarrant worked for the first three months of his employment in the tyre department, where the tyres were manufactured. He worked as a labourer and did whatever was required of him throughout the day. He moved around the tyre department for the entirety of his shift.

18. One of Mr Tarrant’s tasks was to clean up off-cuts of cloth that were used in the manufacture of tyres. This involved sweeping the floor of the tyre department which stirred up dust.

19. The tyre department was located in Buildings 8, 8A and 8B of the Goodyear factory. Though Mr Tarrant was required to work throughout the tyre department, he spent most of his time in Building 8B. The plan of the Goodyear factory identified by a number of the witnesses appears at Figure 1.

Figure 1.

20. Building 8 of the Goodyear factory was located closest to the James Hardie factory, in the north-west corner of the Goodyear site. There was a chain link wire fence separating the two factories and the James Hardie dust collector (dust collector) was located directly across from where Mr Tarrant worked.

21. Mr Tarrant spent most of his time cleaning in the tyre department. He cleaned the walkways and swept up after tradesmen. He did not specifically recall working on the mezzanine level of the building but believed that it was probable that he did.

22. Mr Tarrant observed that steam pipes that were insulated with exposed asbestos lagging ran throughout the tyre department. From time to time the steam pipes had to be repaired and the asbestos lagging was disturbed. Mr Tarrant observed that dust came off the asbestos lagging if he bumped up against it. He also saw that when the steam pipes shook as a result of the operation of the process line, dust came off the steam pipes that went into the air and settled on the floor. The dust that Mr Tarrant swept up off the floor included the dust that came off the steam pipes.

23. Mr Tarrant stated that there was a large boiler in the tyre department that was lagged with asbestos. Mr Tarrant described that lagging as “exposed” and “very dusty”.

24. After about three months, Mr Tarrant was transferred to the hose department which he described as “also very dusty”. There were steam lines running throughout the hose department and he was exposed to dust from the exposed lagging in the same way as he had been exposed in the tyre department. There was also a fine white dust in the hose department “all the time”. Mr Tarrant believed that the hose department was located in a building behind Building 8, but he could not recall specifically.

25. Mr Tarrant went to visit his brother, John Tarrant, in the tyre department regularly. These visits usually occurred at lunch time, after Mr Tarrant had been moved to the hose department.

26. Inside the Goodyear factory was very hot and the windows of Building 8, that faced the James Hardie factory, were almost always left open, but especially in summer. The wind blew dust from the dust collector into the building where Mr Tarrant worked. Mr Tarrant observed the dust to be a whitish grey colour. Mr Tarrant saw it in the air and observed the dust to be stirred up by the wind.

27. Mr Tarrant saw the dust come in through the open windows. He observed there to be white dust on the floor of the Goodyear factory. During his breaks, Mr Tarrant usually walked around the outside of the Goodyear factory near the dust collector. He observed visible dust coming from the dust collector.

28. Whenever he drove to work, Mr Tarrant noticed that when he returned to his car at the end of a shift, it was covered in a fine white dust.

29. Mr Tarrant was not given any warning whilst he was employed by Goodyear about the dangers of asbestos. He was not provided with a mask.

John Tarrant

30. John Tarrant was employed by Goodyear at its factory between about 1959 and 1966. John Tarrant worked as a labourer in the tyre department, transporting plies and treads to machines where the tyres were made. He mostly worked on the western side of the building adjacent to a conveyor that ran parallel to the western wall of the building. His workstation was about 30-50 feet from the western wall of the factory.

31. The Goodyear factory operated 24 hours per day, seven days per week. There were three shifts per day of which John Tarrant usually worked the day shift. He also worked overtime and accepted as much overtime as was offered to him.

32. John Tarrant stated that he was exposed to asbestos through insulation exposure and contamination exposure.

33. As to the insulation exposure, John Tarrant stated that there were steam pipes running throughout the Goodyear factory that were insulated with what the workers called “lagging”. The insulation material was like a crumbly plaster and it appeared “deteriorated” on most of the pipes. The insulation came off easily and released dust when it was touched. John Tarrant stated that when he rubbed a pipe with his hand or brushed against it, dust came off it into the air. He also observed there to be visible dust on the ground underneath the pipes. He described dust falling from the pipes above his head as a result of three factors: vibration from the conveyor belt, the process itself, and from the wind which caused dust to dislodge.

34. As to the contamination exposure, John Tarrant stated that dust was blown into the building where he worked from the James Hardie factory, which was “very close by”. On windy days or on days with a slight breeze, John Tarrant stated that dust from the James Hardie factory could be seen in the air blowing into the Goodyear factory. John Tarrant stated that the Goodyear factory was “extraordinarily hot” and had limited ventilation. The large doors on the western side of the factory that faced the James Hardie factory were kept open on a permanent basis. This allowed dust from the James Hardie factory to be blown into the building where John Tarrant worked. Smoking was not permitted in the Goodyear factory and the workers gathered outside the doors on the western side of the building closest to the James Hardie factory during lunch and other breaks, to eat, talk and smoke.

35. When John Tarrant drove his car to work and parked in the car park adjacent to the factories, he observed that at the end of the day his car was covered in dust from the James Hardie factory.

36. John Tarrant was not given any warning whilst he was employed by Goodyear about the dangers of asbestos. He was not provided with a mask.

37. At the end of some shifts, John Tarrant had a shower at work. When he removed his clothing, he shook it out to remove the dust from it. He observed large amounts of dust to be liberated into the air and to come off from his hair and body.

38. In May 2006 John Tarrant was diagnosed with mesothelioma. He died on 4 May 2008.

Domineco Romeo

39. Domineco Romeo, an employee of Goodyear from about 1963, worked in the bagomatic section of the Goodyear factory for about six years. Bagomatic machines were large automated, steam-powered machines that used heat to mould tyres into shape. Mr Romeo worked on a three-shift rotation. There were steam pipes throughout the bagomatic section. Quite often the pipes leaked and repair and maintenance work was required to be carried out on the pipes. Mr Romeo was within the vicinity of workers doing this work and was exposed to dust from the insulation material that was removed from the pipes. After about six years, Mr Romeo was transferred to the tube manufacturing department at Goodyear and his work in that section is not relevant to the present case.

40. Mr Romeo described having lunch with his friends outside, when he worked the day shift, in the area near the shared boundary of the two factories. Mr Romeo observed, on many occasions when it was windy, asbestos dust blowing from the James Hardie factory into the Goodyear factory. When Mr Romeo had lunch near the boundary between the two factories, the dust blew from the James Hardie factory onto his clothes and body.

Harry Sawle

41. Harry Sawle was employed by Goodyear as a factory hand between 30 April 1954 and 17 November 1960 and then again from 5 August 1963 until 25 May 1979 when he retired. In his second stint of working for Goodyear, Mr Sawle worked on the Banbury floor and later became the supervisor in that area. Rubber and chemicals were placed into the Banbury machines which crushed and processed the rubber. The Banbury floor was located directly opposite the James Hardie factory and took up the entire top floor of a building in the Goodyear factory. The building was housed in Department 41 and the bagomatic machines were located on the lower levels. In 1963 there were six Banbury machines on the floor. They were large machines over one storey in height. The processed rubber came out of the machines on the floor below the Banbury floor. The processed rubber was distributed to other areas in the factory for use in manufacturing different products. Mr Sawle described there being “a great deal” of asbestos dust which came from a number of sources on the Banbury floor. There were a large number of steam pipes located above the Banbury floor that carried steam to each of the Banbury machines. All of the steam pipes were lagged with asbestos insulation. The lagging around the steam pipes was about 12 inches in diameter. Mr Sawle stated that asbestos dust from the lagging was released into the air and into areas in which he worked, as the steam pipes constantly shook because of the vibration of the Banbury machines. The vibration also caused cracks to develop in the lagging and the lagging sometimes fell onto the Banbury floor. Mr Sawle observed asbestos dust coming off the lagging and floating down into the areas in which he worked. He deposed that the dust fell onto his clothes and onto the floor in the area where he worked.

41. Maintenance work was frequently undertaken on the lagging around the steam pipes. Mr Sawle described this as a “very regular occurrence” on the Banbury floor. Maintenance men did the lagging repair work. They mixed asbestos powder with a liquid to form a plaster which they then applied to repair the damaged section of lagging. The asbestos powder came in bags similar to cement bags which had the word “asbestos” written on them. The maintenance men dumped the contents of these bags into a bucket to mix it. This was done on the Banbury floor and frequently in Mr Sawle’s vicinity. Mr Sawle recalled that when the asbestos powder was dumped from a bag and mixed with a liquid, clouds of dust were created. He was often present when this task was undertaken. When he was employed as a supervisor, he was required across the entire Banbury floor and often in the vicinity of where asbestos powder was being mixed.

42. Industrial talc was also used extensively on the Banbury floor. The talc came in bags and was used to keep the rubber from sticking together. It was also used by the cleaners who threw it on the Banbury floor to soak up rubber that had been spilt. Mr Sawle recalled that hundreds of bags of talc were used during the period that he worked on the Banbury floor. The dust from the talc was often visible in the air around him as he worked.

43. Mr Sawle deposed that throughout both periods of his employment at Goodyear, the Banbury floor was located directly across from the dust collector located in the James Hardie factory. White dust constantly blew out from this dust collector. The breeze often came from the direction of the James Hardie factory which blew this white dust from the James Hardie factory into the Banbury floor area where Mr Sawle worked. Many times, this dust was visible in the air around Mr Sawle and got into his work areas, onto the floor, onto ledges in the Goodyear factory and onto his face and clothes while he worked. Mr Sawle described this as “almost [a] daily occurrence”. There were windows located all around the exterior walls of the Banbury floor that allowed the white dust from the James Hardie factory to blow into the Banbury floor. Mr Sawle deposed that he made complaints to supervisors at Goodyear about the dust coming from the James Hardie factory but that no action was ever taken in relation to these complaints.

44. Mr Sawle recalled that there were stacks of fibro cement products, including flat sheet fibro and pipes stacked along the boundary line between the James Hardie factory and the Goodyear factory. The two factories were close together and the closest point between the two factories was the location of the Banbury floor. The factories were separated only by a chain link fence. There were waste bins located along the James Hardie side of the boundary. Front end loaders came on a daily basis carrying waste to drop it into the waste bins. When these waste bins were filled, they were taken away and replaced with new bins. A lot of dust was created when the front-end loaders dropped the waste into the bins. Mr Sawle recalled dust blowing out of the bins and into the Banbury floor area where he worked. He described this as occurring frequently during his employment with Goodyear. Mr Sawle deposed that his insulation exposure and contamination exposure continued until he left Goodyear in 1979.

William Swift

46. William Swift, an employee of Goodyear from about late 1962, worked as a rubber worker in the final inspection department, referred to as “Department 51–3”. The final inspection department was located directly opposite the chain link wire fence that separated the Goodyear factory from the James Hardie factory. Mr Swift’s work involved making sure that the tyres produced in the production line were balanced. Mr Swift often used compressed air to blow out the tyres during this process. He described there always being a “haze of whitish dust throughout the final inspection department” and stated that the use of compressed air by Mr Swift and other workers made the dust “swirl around and go everywhere”. Mr Swift deposed that there was also a lot of talc used in the Goodyear factory and that “there was heaps of it floating around all the time”. Mr Swift described all the windowsills and flat surfaces in his department as always having dust on them. Mr Swift deposed that there were steam pipes running throughout the final inspection department which were lagged with a whitish type material that he believed to be asbestos. Mr Swift described some of the lagging as being in bad repair because of the heat and constant vibration of the pipes. He also described pieces of lagging hanging off the steam pipes and sometimes falling onto the floor of the final inspection department.

47. Mr Swift observed fitters who worked for Goodyear and other people who did not work for Goodyear undertaking maintenance work on the lagging of the steam pipes. On occasions, Mr Swift saw fitters mixing up a whitish powder with water in a drum and applying the slurry to the steam pipes. When this occurred, Mr Swift was only a few feet away from where the fitters were mixing and he observed dust rising out of the drum and going into the air around him. The re-lagging of the steam pipes was a procedure that happened regularly at Goodyear and Mr Swift described it as always being a dusty process. Mr Swift described workers sweeping everywhere at Goodyear, including in the final inspection department. He observed that sweepers used brooms to sweep up the dust and that this made the atmosphere even dustier.

48. Mr Swift deposed that the windows in the final inspection department were regularly left open. There was always a breeze blowing through the factory and this made the final inspection department dustier. Mr Swift observed dust coming from the James Hardie factory through the wire fence on a daily basis but described it as “worse” on days when a strong westerly wind was blowing. Mr Swift deposed that on most days, he ate his lunch with other workers outside the final inspection department on the western side of the factory between the James Hardie factory and the Goodyear factory. Goodyear stored materials used to make tyres in that area. Mr Swift observed a greyish white dust covering those materials and also on the wire fence. Mr Swift observed dust blowing from the James Hardie factory into the Goodyear factory and described this as an everyday part of the work at Goodyear. Mr Swift deposed that there was also a fine layer of whitish dust all over his car when he returned to it in the car park at the end of a shift. He described it as sometimes being so bad that he had to wipe down the windscreen before he could drive home. He observed this dust to come from the James Hardie factory.

Graham Martin

49. Graham Martin, an employee of Goodyear from 1959 to 1964 and from 1965 to 1988, worked in the industrial hose department in Building 32, located in the south-west corner of the Goodyear factory site. Mr Martin described Building 8 as a large building comprising two floors. Initially the ground floor contained heater pits which were used to cure passenger, truck and tractor tyres. Over time, the heater pits were phased out and they were replaced with bagomatic machines. Later, a new building, Building 8B, was built and a new bagomatic section for curing large truck and tractor tyres was installed in that building. Those bagomatics were very large and were steam-powered. There was an extensive network of steam pipes throughout that section and each pipe was lagged with asbestos. Mr Martin deposed that to his knowledge, steam was not used on the top floor of Building 8, but there were steam pipes running through that area.

50. Mr Martin deposed that all of the asbestos contamination on the top floor of Building 8 came from the James Hardie factory, because the machines in the Goodyear factory at that location did not operate on steam. Mr Martin described the dust collector as being “right on the Goodyear fence”. When Mr Martin worked in Building 8 in the bias cutter area on the northern of the building, he observed dust coming in from the James Hardie factory. The bias cutter area was the area where they cut fabric for unisteel tyres. Mr Martin’s evidence was that dust collected on the paperwork that he prepared in that area. The dust blew in from the James Hardie factory, especially when a westerly wind blew. Mr Martin deposed that in the later years of his employment, Goodyear engaged specialist cleaners to clean the area including by removing asbestos dust off the rafters and cleaning inside the roof space itself on the top floor of Building 8.

51. Mr Martin described James Hardie as having a waste dump right on the fence between the two factories. A tip truck would come along and dump loads of broken fibro and rubble on the ground near the fence. Mr Martin observed clouds of dust being generated when each load was dropped. Mr Martin observed James Hardie to stack finished product alongside the fence including flat sheets and pipes.

52. Mr Martin deposed that the Goodyear factory ran on three shifts per day for five days per week. On occasions, overtime was available on Saturdays. There were fitters assigned to every shift to do maintenance work. There were other teams of fitters in the machine shop and in the industrial rubber products department who did not do maintenance work. The maintenance fitters did the running maintenance work and also did major shutdown work once per year. Initially, the major shutdowns were done over the Christmas period and this was the fitters’ busiest time of the year. Some of the running maintenance work, such as replacing a cracked mill roller, could take two or three days. The fitters’ maintenance work included the removal of asbestos lagging to access the parts of the plant that needed repair. Mr Martin was friendly with Bert Coggin, a maintenance fitter working in the Goodyear factory. Mr Martin observed Mr Coggin to work throughout the plant regularly doing maintenance work. Mr Martin observed Mr Coggin replacing gaskets on leaking flanges and steam pipes, replacing steam pipes, working on bearings and generally repairing machinery. Mr Martin worked as a production scheduler between 1966 and 1976 and was then promoted to the position of production supervisor.

53. Mr Martin also described the use of asbestos tape in the course of Goodyear’s production of industrial rubber products, particularly for BHP at Newcastle. One of the suction hoses was 4 inches in diameter and about 60 feet long. Mr Martin was required to wrap the suction hose in 4-inch-wide asbestos flat tape by hand. He would prepare four or five of those hoses at a time every few months.

54. In August 1979, Mr Martin made a statement to Inspector Keogh of the Workers’ Compensation Dust Diseases Board (DDB) relating to a workmate, Ronald Said, who had been diagnosed with mesothelioma at about that time. Mr Martin stated that there was white dust in the area and on the work schedules on the second floor of Building 8 in the bias cutter section. He described the dust as gritty and not the same as talc or soapstone. He described the dust as being heaviest on Mondays after there had been no cleaning on the weekend. Mr Martin stated that the dust settled on the floor and on the machines and he thought it blew in from the James Hardie factory. He saw dust being liberated by James Hardie workers cutting fibro sheets with power saws in their yard and the dumping of broken sheets along the fence line. He stated that the dust stopped coming in about five or six years previously.

55. On 29 November 1981, Mr Martin provided a statement in respect of a claim made by William Stubbs, a bias cutter who worked in Department 41 of the Goodyear factory. Mr Martin stated that the building in which Department 41 was housed had been altered on a number of occasions over the years but some of the original glass walls and windows remained. Mr Martin described the windows and openings of that building letting in the white dust of waste fibro coming from the James Hardie factory. Mr Martin described there being times at night when a white powder was everywhere and recalled that on a hot night you could go out and look towards the James Hardie factory and see dust “spewing out of the overfilled hoppers” and the dust being caught in the powerful yard lights. Mr Martin stated that the dust would get into the factory and that the workers were required to wipe down equipment before they could start in the morning. Mr Martin stated that about 18 months prior to making the statement, the Dust Diseases Board took samples and found asbestos in them. Mr Martin described the powder coming from the James Hardie factory as different to the lime dust used inside tyre moulds because it was more fibrous and always worse when a westerly wind was blowing.

Lawrence Woods

56. Lawrence Woods was employed by Goodyear in its final inspection department from about 1945 to about 1948 and again from 1955 to 1978. Mr Woods worked initially as a rubber worker and later, from about 1963 onwards, as a tyre repairer and buffer. Mr Woods deposed that in the early days of his employment with Goodyear, tyres were manufactured through the use of heater pits. Heater pits were like giant pots with a capacity of about 1,000 gallons. The tyre moulds were placed on top of each other inside the heater pits and steam was injected into them with a valve. The heater pits were surrounded by steam pipes which were lagged with asbestos insulation. External contractors came to perform maintenance work on the steam pipes and the surrounding asbestos insulation every now and again. Mr Woods worked alongside those contractors and was exposed to asbestos dust in the process. Talc was also used in the final inspection department and was a regular source of dust. In about the early 1960s, a new process of manufacturing tyres was introduced using bagomatic machines. The moulds were all mechanical and the bagomatic machine opened “like the mouth of a crocodile” and the tyres were placed inside and the machine then used an automated process to produce a tyre. The bagomatic machines also used steam to operate. Mr Woods deposed that the work in the final inspection department was extremely dusty work. There were large dust extractors near where he worked and these sucked the air in from the whole final inspection department. Mr Woods deposed that the pipes shook and shuddered all the time, dislodging asbestos dust and causing it to be released into the air. He described there always being visible dust in the air where he worked.

57. Mr Woods deposed that the workers often had lunch in the loading dock outside the final inspection department. Dust from the James Hardie factory blew over the fence and settled in the loading dock area. Mr Woods observed dust and fibre hanging in the air around the James Hardie factory and blowing over the wire fence and into the Goodyear factory. Mr Woods was exposed to this dust as it blew over the wire fence.

Terrence Ashburn

58. Terrence Ashburn was employed by Goodyear as a fitter in the maintenance department from 1968 to 1969. Mr Ashburn described the Christmas shut down as lasting approximately four to five weeks. He estimated that in that period he would handle asbestos insulation products at least once per week. He recalled one incident where there was an explosion in a steam pipe that sent lagging flying everywhere, resulting in a “fair bit” of white dust in the factory. Mr Ashburn deposed that there was always a very fine film of asbestos dust present in the factory. However, there were days when it was not so obvious. When Mr Ashburn worked on pipes and machinery, he would get dust on his clothing if he rubbed up against the insulation. There was considerable dust on the back of the machines which were only occasionally cleaned. Mr Ashburn removed asbestos lagging quite regularly to repair pipe work underneath it. This caused dust to be deposited on his clothing and to be released into the air. He also worked in the general vicinity of other people handling asbestos.

59. Mr Ashburn described that his car, particularly on windy days, would be covered in a fine white dust when he returned to it to drive home after his shift. He believed this dust came from the James Hardie factory which was located next door to the Goodyear factory. When he cleaned the dust off his car, it would be released into the air around him.

Russell Baker

60. Russell Baker was employed by Goodyear as a maintenance fitter repairing machinery and pipes from 1955 to 1976. Mr Baker worked in the machine shop and in the mill room and spent about 50% of his time in each of these two departments. In the machine shop he was responsible for building moulds for tyres. This section of the factory was located very close to the James Hardie factory just across the fence. The doors and windows of the Goodyear factory were always open, and dust blew in from the James Hardie factory all the time. The dust went everywhere and there was no escaping the dust from the James Hardie factory. Mr Baker described that when he returned to his car it was always covered in grey asbestos dust which blew over it from the James Hardie factory.

61. Mr Baker described the mill room as being in the middle of the factory surrounded by buildings. A lot of the machinery in the mill room was heated by steam. In order to repair the machinery and pipes Mr Baker would remove the asbestos insulation which looked like Plaster of Paris. He would cut it off with a knife or rip it off with his hands. Whenever he did this, asbestos dust was released into the air around him. Mr Baker did not estimate how often he did this. There was also dust in the air from the vibration of the pipes, even if the asbestos insulation was intact. It was not part of Mr Baker’s work to replace the asbestos insulation, but he was often present when other workers did it. He was exposed to the dust that they created.

62. Mr Baker described that when he came into the factory of a morning there was always dust over everything.

Brian Clarke

63. Brian Clarke was employed by Goodyear as a tyre builder in the tyre building section from April 1964 to March 1990. The building that Mr Clarke worked in was closest to the Parramatta River and adjacent to the James Hardie factory. Mr Clarke observed there to be a lot of steam pipes and machines lagged with insulation in the tyre building section. The insulation on the pipes looked like Plaster of Paris.

64. Mr Clarke stated that any dust emanating from the James Hardie factory entered the tyre manufacturing area and other areas of the Goodyear factory through windows that were left open during the day. He described that there was always dust in the factory area. The dust coming from the James Hardie factory was worse when a westerly wind was blowing.

James Ostler

65. James Ostler, an employee of Goodyear from 18 July 1955 to 23 July 1990, was a supervisor in the hose department for 11 years from about 1960 onwards. The hose department was located on the first floor of the IRP Building at the Goodyear factory. The work in the hose department involved the use of an autoclave that was lagged with asbestos. The asbestos lagging deteriorated due to the high temperatures and would crumble off in Mr Ostler’s work area. There were also times when repair work needed to be carried out that involved the removal of the asbestos lagging. There were a lot of steam pipes in the IRP Building running from the boiler house. Cleaning was also carried out in the hose department to avoid contamination of the production process from the dust present.

66. Mr Ostler worked in the passenger car curing area from about 1972 to 1976. The passenger car curing area was located on the boundary between the Goodyear factory and the James Hardie factory. Mr Ostler stated that extractor fans had been built in the wall of the adjacent James Hardie factory which faced his work area. He stated that asbestos dust would fly from the extractor fans into his working environment. The dust contaminated the passenger car curing area each day and Mr Ostler was often required to clean up the dust continuously in order to prevent contamination of the tyres in the curing process. Mr Ostler recalled that on Monday mornings, the dust would have built up to a ¼ inch thick on the ground of his work area. He was required to spend his morning cleaning up the dust before he could start work each day. Mr Ostler observed that the dust from the extractor fans would build up along the steel rafters located directly overhead inside the passenger car curing area. Throughout the day, thick clumps of dust would often fall off the steel rafters down onto Mr Ostler and into his work area. The dust from the rafters was also disturbed by maintenance workers and electricians. The passenger car curing area was quite dusty and when the light shone into the area, Mr Ostler observed dust and fibre floating around in the air. He stated that the passenger car curing area was “heavily contaminated with asbestos dust and fibre”.

Ronald Jeal

67. Ronald Jeal, an employee of Goodyear from 1 July 1957 to 27 November 1987, worked from about 1957 to about 1965 in the heater pits, located on the south-western side of the Goodyear factory. Mr Jeal stated that the heater pits were in the part of the factory closest to the James Hardie factory. Mr Jeal described a small area between the western wall of the Goodyear factory and the James Hardie factory fence. Immediately inside the fence on the James Hardie side there was a dump. Mr Jeal observed workers from James Hardie using the area to dump all sorts of white grey rubbish from the factory. It was stacked up on the eastern end of the James Hardie factory site near the fence. From time to time, Mr Jeal observed truckloads of fibro pieces and other white material being loaded by front end loaders onto trucks and taken out of the James Hardie factory to the dump area. There was also a large amount of finished fibro flat sheeting and a thick white product that was stacked in the area by the James Hardie workers. The material was stacked on pallets and left uncovered. There was dust on and around it. The whole area of the James Hardie yard between the factory building and the fence was covered in a greyish white dust that came up into the air when it was disturbed.

68. Mr Jeal described the dust collector as a “large tank-like dust stack”. It was very close to the fence. It was on the James Hardie side of the fence and there was frequently dust in the air around it. The Goodyear factory had many doors and windows on the western end of the factory that were kept open at all times to ventilate the building, mainly because of the heat generated inside the building by the various manufacturing processes.

69. Where the heater pits were located was a very hot area of the factory. The heater pits themselves were lagged with an off-white fibrous plaster like insulation and were covered with steam pipes. Steam was used to mould and cure the tyres. The steam pipes were lagged with what looked like a plaster cast of the same dirty white coloured insulation, covered with a thick fibre bandage of about ⅛ inch thick of the same colour. From time to time when repairs were carried out in the heater pits on the pipes, the insulation was removed. The workers would cut or hack it off, put the material back on, and then bandage it again. The steam pipes often vibrated and Mr Jeal recalled that brushing up against the pipes with his body would cause a powdery substance to rub off on his clothes.

70. Mr Jeal was present when asbestos lagging on the pipes was removed and replaced from time to time. There was an amount of dust present in the atmosphere on those occasions. However, on a day to day basis, there was also dust in the area. Mr Jeal used a sheep skin to clean off dust from the rubber cylinders. Some of the dust would have been generated in the heater pit area itself, with the balance of the dust being generated in other parts of the factory or blown in from outside. After a weekend off, the cylinders had more dirty white dust on them than in the weekdays before.

71. When a westerly wind blew, a lot of dust flew in from the outside. The dust blew in from dumped heaps on the yard surface and off the finished products on the James Hardie side of the fence. Dust also blew into the Goodyear factory from around the dust collector, ate dark-coloured, tank-like structure that James Hardie had built on the boundary line opposite the store room used by Goodyear to store used aircraft tyres before they were re-treaded. Mr Jeal was responsible for picking up those tyres from Qantas at Mascot and delivering them to that storeroom on the north-western corner of the Goodyear factory, south of the bagomatic building. The dust blowing in from the James Hardie factory side of the fence could easily be seen on windy days. At times there were clouds of dust blowing in over the fence. Mr Jeal opined that most of the dust coming into that end of the Goodyear factory from the James Hardie factory came in through windows and doors which were left open. Occasionally, Mr Jeal would sit on the western side of the factory for a break or to eat his lunch. Sometimes, and especially in winter, he would stand in the sun while he waited for repair work to be done in the heater pit area so that he could start production again. On those occasions, he saw the dust and where it came from. The dust was a greyish white colour coming from the James Hardie factory.

72. In 1964 Mr Jeal was re-located to the wharves. Thereafter he spent about half an hour in the morning and half an hour in the afternoon at the Goodyear factory. The trucks were loaded at the stores area on the western side of the stores building, close to the James Hardie factory. A lot of dust blew over the fence from the fibro stacks, the waste dumps, and the yard surface.

73. From about 1967 Mr Jeal was employed as a truck driver driving to and from the Goodyear factory. On most days he attended the Goodyear factory for about half an hour at 7am and for about one hour at 3pm. He described that there was always a greyish white dust visible in the area where he worked at the Goodyear factory. It was visible in the air, on the ground, on the truck, and on the load.

74. Mr Jeal commenced proceedings in the Tribunal against Goodyear and James Hardie. Those proceedings were heard in May 1995. Mr Jeal gave evidence and was cross-examined in those proceedings. Mr Jeal gave evidence that the Goodyear factory had a sawtooth roof and that the windows were always kept partly open. He described the windows as being dirty from the dust on them.

75. In cross-examination, Mr Jeal agreed that there was a conveyor positioned on the outside of the western wall of Building 8 of the Goodyear factory. He could not recall if there were windows in the western wall of the building other than the windows in the sawtooth roof. Mr Jeal gave evidence that the conveyor was installed after the bagomatic machines were installed in the area where the heater pits had been. He could not recall if the conveyor had been installed while he was still working in the heater pit area. Mr Jeal gave evidence that on occasions where there were broken parts of the steam pipes that needed repair, the pipes would be temporarily covered until there was a shutdown for maintenance, such as what occurred during the Christmas period. Valves would be wrapped in a bandage-like material until there was time to do the repair properly. Mr Jeal gave evidence that valves could be repaired by shutting down part of the system. Mr Jeal’s evidence was that the Goodyear fitters worked on those types of repairs in the heater pit area a couple of times each week.

76. Mr Jeal gave evidence that he was not given any warning about the dangers of asbestos at any stage during the course of his employment with Goodyear.

Bruce Tompson

77. Bruce Tompson, an employee of Goodyear from 1949 to 1982, worked in Department 71 manufacturing V belts and associated products. In about 1953, Department 71 was moved into a building that had been recently constructed. Mr Tompson did that work until 1979. Mr Tompson described Department 71 as being set up with main steam lines with feeder lines attached to each of the presses and machines. Each of the steam lines was lagged. The lagging was a whitish-creamish coloured plaster on the pipe work. On occasions, the flanges required maintenance. When that occurred, maintenance crews would take the flanges apart by unscrewing the bolts, install new gaskets and then do the flanges up again. The lagging around the flanges needed to be removed and replaced. Mr Tompson saw the plaster material being applied to the pipe work which was then covered with calico or linen cloth. Whenever this work was done there was dust in the areas where it was performed. As well as the pipes, the horizontal heaters were also lagged. The lagging was damaged from time to time by trucks and materials being stacked onto it. When the lagging was damaged, it had to be repaired. There were also pots used to cure the V belts. The pots were also lagged. Everything that was lagged was covered with the same material, a plaster type material that was whitish or creamish in colour. The material was mixed and applied wet. Small maintenance jobs were done by Goodyear workers. Major maintenance jobs were done by external contractors and were performed either on the weekends or during the Christmas shut down period.

78. Mr Tompson observed dust to blow into the Goodyear factory from the James Hardie factory when a westerly wind was blowing. There were James Hardie products stacked outside the Goodyear factory on the James Hardie side of the fence. There were also rubble heaps where James Hardie stored waste products on its land next to its factory. Mr Tompson recalled that union meetings were always held on the western end of the Goodyear factory near the truck bays next to the James Hardie factory. The western gate was used to enter and exit the factory and it was next to the James Hardie factory. When a westerly wind blew from the direction of the James Hardie factory, it blew into the western bays and windows of the Goodyear factory, inside the building and out the east end doors. Mr Tompson recalled seeing clouds of dust blowing into the Goodyear factory from the James Hardie factory.

79. Mr Tompson observed James Hardie workers dumping waste from the factory along the river’s edge. The waste material also was dumped into holes and potholes on Grand Avenue, in the parking area of the Goodyear factory, and on the Goodyear playing field. The action of the wind and traffic driving over the material would send dust up into the air from that waste material. When the foundations for the new building for Department 71 were constructed, a lot of the waste material was disturbed.

80. Mr Tompson recalled that inside the Goodyear factory was a dirty place to work. There were a lot of workers sweeping in various departments. Dust disturbed by sweeping would spread into the air around the workers and later settle on the floor.

81. Mr Tompson commenced proceedings in the Tribunal against Goodyear and James Hardie. Those proceedings were heard in November 1997. In his evidence, Mr Tompson said that dust was liberated in the Goodyear factory from machines operating in his vicinity, from the pipes when they shuddered or vibrated and from the rafters. Mr Tompson described that dust blew in from the James Hardie factory with the right type of westerly wind and that there was “plenty of it”. The dust entered the Goodyear factory through the open doors and would circulate around inside.

Leonard Hill

82. Leonard Hill, an employee of Goodyear from 1955 to 1983, worked in the curing section located in the front section of Building 8 of the Goodyear factory, on the top floor from 1955 to 1963. Mr Hill described where he worked as approximately 30 to 40 feet from James Hardie manufacturing section. He deposed that there was a dust extraction system in the James Hardie factory that blew dust out into the atmosphere. Mr Hill stated that the wind generally blew in the direction of the Goodyear factory and that asbestos dust was blown over and through the cyclone wire fence and into building 8 where he worked from the James Hardie factory. He described the flow of dust as “constant” and that every day he saw clouds of asbestos dust rising from the James Hardie factory, particularly around the dust collector that blew into the Goodyear factory. The movement of vehicles, including forklifts, stirred up the dust, including dust from waste material that had been dumped as fill on the roads. From 1963 to 1968 Mr Hill worked on the bagomatic machines at the northern end of building 8. He stated that the roller door to the west was always open and allowed the dust from the James Hardie factory to enter building 8. He described the James Hardie and Goodyear buildings being about 40 metres apart in that location. From 1968 to 1970 Mr Hill worked as a supervisor of the curing process on the ground floor of building 8. Mr Hill deposed that there was a lot of lagging in that area, including the use of asbestos rope wound around the pipes and plaster type lagging. Workers performed repairs to pipes in this area that required the removal of lagging and that caused dust to be generated in his vicinity. He was required to clean out the pits under the machines using a broom and a shovel. The debris in this area included crumbled lagging. From 1970 to 1974 Mr Hill worked in an office that was not dusty. From 1974 to 1981 he returned to work on the top floor of building 8 in the band building section. He continued to observe a lot of dust blowing in from the James Hardie factory in this work and he observed the dust accumulate on the tables where he worked. In about May 1980 Mr Hill was sent to the Health Department at Lidcombe with about 170 other Goodyear workers for surveillance testing. He stated that 17 people were identified with “asbestos on their lungs”.

83. Mr Hill commenced proceedings in the Tribunal against Goodyear and James Hardie. Those proceedings were heard in December 1991. In his evidence, Mr Hill described the door in the western wall of the Goodyear factory as being very large, in the order of 20 feet high and 16 feet wide. Mr Hill often spent time outside of the Goodyear factory to escape the heat. When he did so, he noticed that there was dust in that area that came from the dust collector. He described the dust collector as “quite large” and about 20 to 25 feet high. He gave evidence that every now and then it “let off a lot of powder”. When Mr Hill worked on the top floor of Building 8, the dust from the James Hardie factory blew in through the windows in the sawtooth roof of the Goodyear building.

Raymond Allum

84. Raymond George Allum, a Goodyear employee from 1954 to 1982, worked in Buildings 30, 31 and 32 in the south-western corner of the Goodyear site, where rubber hoses and industrial rubber products were manufactured. Mr Allum commenced work as a shipping clerk and his duties involved the recording of movements of stock. All of the steam pipes in the buildings where Mr Allum worked were lagged. Mr Allum deposed that he experienced bystander exposure to asbestos dust if there was maintenance work being performed on the steam pipes or the machines.

85. Mr Allum was also required to attend Buildings 8 and 8A for the purpose of undertaking stocktakes. On those occasions, Mr Allum observed dust coming from the dust collector, which was located adjacent to the fence that separated the two factories. Mr Allum deposed that the dust collector “spewed dust directly into the Goodyear plant”. He also deposed that any product that was stacked by Goodyear along the boundary fence with the James Hardie factory was always covered in white dust. He observed that James Hardie workers dumped rubble and waste along the fence and that the dust from these piles blew into the Goodyear site through the chain wire fence. The dust would blow directly into the loading dock area and was particularly prolific when a westerly wind was blowing.

Walter Bagnall

86. Walter Bagnall, an employee of Goodyear from 1957 to 1977, worked from about 1959 to 1967 on the belt conveyor where the tyres were checked for defects as they came out of production. The belt conveyor was located in the south-western corner of the Goodyear site, in a building closest to Grand Avenue. From about 1967 to 1969, Mr Bagnall operated the forced variation machine, which was located in the same area. From 1969 to 1978, Mr Bagnall worked in the final inspection department, inspecting tyres after they were produced.

87. Mr Bagnall deposed that there were lagged steam pipes running overhead in the area where the belt conveyor was located. Mr Bagnall saw laggers applying insulation to the pipes, including a material that looked like twine that was wound around the pipes. Mr Bagnall described a whitish dust falling from the pipes onto the machinery and floor below them. Mr Bagnall was exposed to that dust when he swept up his work area. Mr Bagnall deposed that talc, which he described as giving off a yellow-white dust, was applied to tyre tubes before they were put into the curing machine and that the rubber workers involved in that process were often covered in the yellow-white talc dust. Mr Bagnall described the Goodyear factory generally as a “dusty factory”. He believed the dust to be a combination of dust from the lagged pipes, talc dust and other dust from the tyre production process.

88. Mr Bagnall always worked on the western side of the factory closest to the James Hardie factory. Mr Bagnall deposed that he regularly spent his morning tea and lunch breaks on the grassy area on the western side of the Goodyear factory adjacent to the James Hardie factory. Mr Bagnall deposed that the materials stored by Goodyear in this area were covered with a whitish dust, which he also observed to be on the wire fence that separated the two factories. In the area where he worked, the windows were mostly left open and Mr Bagnall observed a whitish dust on the windowsills and in the area around the windows.

Anthony Camilleri

89. Anthony Camilleri was employed by Goodyear for two distinct periods, working first as a factory hand and rubber worker from about 1955 to 1960 and then as a rubber worker from September 1963 to October 1985. For about a year from 1955, Mr Camilleri was employed as a cleaner in Department 32, where a mill room and a number of Banbury machines were located. He then worked for four years as a factory hand and rubber worker. In this role, he worked in the vicinity of lagged pipes and was required to clean up lagging that had been disturbed during the course of repairs. He was also exposed to dust which blew into the Goodyear factory from the James Hardie factory.

90. From 1963 to about 1978, Mr Camilleri returned to work at Goodyear as a rubber worker in Department 73 in a new building, before moving to Department 41. In Department 73, Mr Camilleri worked in the manufacture of radiator hoses and hoses for train brakes. In Department 41, Mr Camilleri worked in the manufacture of bands for tractor tyres. Department 41 was located on the top floor of the old building near the Parramatta River, which ran alongside the James Hardie factory. There were two large doorways in Department 41 that faced the James Hardie factory.

91. In Department 41, Mr Camilleri deposed that he was exposed to dust that blew in from the James Hardie factory from finished goods that were stacked on the boundary. He also deposed:

There was a large tower that gave off dust in Hardies back from the fence. A lot of dust blew into the Goodyear factory from Hardies all of the time and particularly when the winds blew our way. We shut the doors but it still came in the roof skylights and its was a gritty grey-white dust and I could feel there was some fibre in it. The Hardies dust was a lot different from talc which was smooth and pure white.

Alwyn Campbell

92. Alwyn Campbell was employed by Goodyear from about 1951 to 1984, first as a tyre builder and later, from about 1967, as a quality control officer. During his time as a tyre builder, Mr Campbell worked in Building B of Department 41. Mr Campbell described Building B as being immediately next door to the James Hardie factory and as being comprised of two levels. Building B had a large sliding wooden door in the middle of the second floor facing the James Hardie factory, which was mostly left open for light and ventilation. The roof was a sawtooth roof and the windows in it faced the James Hardie factory. The windows in the roof were mostly left open but could be closed by a block and pulley system. Mr Campbell described the asbestos dust from the James Hardie factory blowing into Building B and settling on the horizontal surfaces including machinery, stock, and the rafters. Mr Campbell worked exclusively in Building B as a tyre builder until about 1967 when he became a quality control officer and then worked all over the Goodyear factory.

92. Mr Campbell deposed that in about 1969, an exhaust system was installed at the James Hardie factory that collected all of the dust from the James Hardie factory and released it via a stack near the wire fence between the Goodyear factory and the James Hardie factory. The dust blowing out of the stack went straight through the windows and doors of Building B. Mr Campbell deposed that the dust from the James Hardie factory came in “all the time”. He covered the tyres and stock at the end of each day to avoid contamination from the dust. In particular, on Monday mornings, the covers had a fine layer of dust on them. He described the “whole area around the James Hardie factory was covered with dust”. When he worked in Building B as a tyre builder and in various departments as a quality control officer, Mr Campbell deposed that whenever he looked up, he could observe asbestos dust in the air. This was particularly so on windy days prior to the removal of the dust collector.

93. I do not accept Mr Campbell’s evidence in so far as it alleges that the dust collector was installed in or about 1969 for the following reasons. First, there is no evidence in Mr Campbell’s affidavit providing a reason as to the relevance of the date alleged by him or providing a reference point for that date. Second, in paragraph [24] of his affidavit, Mr Campbell describes that the truck and passenger tyre rooms were located at the western end of the Goodyear factory in line with the dust collector, from which I infer that he was providing a physical reference point that existed at the time of his observation which was made in the late 1950s and during the 1960s. Third, reading his evidence as a whole, I infer that the conditions he described as existing when he was working as a tyre builder in Building B in the period of about 1951 to 1967 were the conditions created by the transmission of dust from the dust collector. Fourth, Mr Campbell’s evidence on this matter is against the weight of the evidence of the other workers. Fifth, in answer to interrogatories in Mr Said’s claim, James Hardie admitted that it had external dust collectors in place between 1953 and 1980 to collect dust from its manufacturing processes. Finally, there is other evidence to suggest that the dust collector was replaced with a more “modern unit” in [114] below. I infer that Mr Campbell’s evidence was referring to the installation of the replacement dust collector.

Robert Cawley

95. Robert Cawley was employed by Goodyear as a rubber worker from 1963 to 1965, 1967 to 1968 and 1972 to 1975. Mr Cawley deposed that there were steam pipes running throughout the Goodyear factory that were lagged with asbestos. The heat from the pipes caused the lagging to crumble over time and fall into his work area. The dust got into his hair and onto his clothing and skin. When the pipes shook, they gave off a whitish dust. He was further exposed to the dust when he swept the floor at the end of each day. Mr Cawley described the Goodyear factory as operating 24 hours per day seven days per week and stated that he worked rotating eight hour shifts and sometimes 12 hour shifts that included overtime.

96. Mr Cawley deposed that dust from the James Hardie factory blew through and over the wire fence that separated the two factories, especially on windy days. Mr Cawley deposed that there was an exhaust stack in the yard of the James Hardie factory that blew asbestos dust into the Goodyear factory. The roller doors of the Goodyear factory were usually left open.

Christopher Davis

97. Christopher Davis was employed by Goodyear as an engineer from about October 1964 to April 1973. Mr Davis’ role was in the design, specification and supervision of production including quality assurance of the finished product. Though he was not responsible for supervising maintenance work, Mr Davis did observe that work being performed around the plant from time to time. The whole plant involved the use of steam that was conveyed in pipes lagged with asbestos. When maintenance work was done on the pipes, the removal of lagging created dust. The stripped lagging was thrown onto the floor and cleaned up afterwards.

98. Mr Davis deposed to a “vivid recollection” of dust blowing into the Goodyear factory from the James Hardie factory. He recalled seeing clouds of dust blowing from the James Hardie factory into the Goodyear factory when he drove along Grand Avenue.

99. Mr Davis deposed that the dust from the lagging inside the Goodyear factory was “greyish white” in colour and that the dust blowing in from the James Hardie factory was “an obviously whitish dust”.

Richard Davis

100. Richard Davis was employed by Goodyear as a tyre builder from late 1966 to mid-1968. He worked in Building 8, close to the James Hardie factory, on the mezzanine level. Mr Davis worked shift work, sometimes working double shifts and often working overtime, for about 4 hours. On the mezzanine floor there were openings cut in the wall facing the James Hardie factory. Mr Davis deposed that when he came into work there was a fine white dust in his work area. He would cover his work area on Fridays to avoid the rubber product being contaminated by the dust over the weekend. He later realised that the dust came in from the James Hardie factory.

101. In his evidence before me Mr Davis stated that he did not recall the presence of lagged steam pipes in the area of the Goodyear factory where he worked. In cross-examination Mr Davis identified a number of waste dumps on the James Hardie site. He described these as giving off dust when the wind blew, which was about three or four times a week. He described the dust collector as like a silo. It was elevated to about the same height as the mezzanine floor. Mr Davis stated that the vents on the dust collector faced back towards the James Hardie buildings. Mr Davis described the dust coming from the James Hardie factory to be worse when a westerly wind was blowing. He also saw the dust on the cars parked in the vicinity of the James Hardie factory.

Ellis Oldham

102. Ellis Oldham was employed by Goodyear as a labourer from 1969 to 1982 or 1983. Mr Oldham described the Goodyear factory as a very busy place, “full of men, tyres and machines”. He described the factory as “very hot” and with lots of steam pipes criss-crossing the roof in all different areas. The steam pipes were insulated and from time to time, the insulation was disturbed for repairs to take place. The doors and windows in the Goodyear factory were always left open because of the heat, including during winter.

103. Mr Oldham would spend his breaks outside the Goodyear factory in the area between the two factories. He described this area as “always pretty windy” and recalled that dust blew over from the James Hardie factory.

John Smith

104. John William Smith was employed by Goodyear as an engineer specialising in tyre design from about December 1969 to October 1970 and from about August 1973 to February 1979. Mr Smith deposed that there was an extensive lagged pipe network in the Goodyear factory and that there were always maintenance works going on. Mr Smith spent 50% of his time on site working in the area of the bagomatic machines on the western side of the Goodyear factory, close to the James Hardie factory. Mr Smith deposed that as he walked through the factory and when he was in the bagomatic area, he was often exposed to dust from maintenance work being performed in his vicinity. The heat made conditions in the factory unpleasant and the windows were always left open for cooling.

105. When the wind blew from the direction of the James Hardie factory, Mr Smith deposed that there was nothing to prevent the dust from the James Hardie factory entering the Goodyear factory because the windows were left open. The area between the two factories was always dusty.

George Love

106. George Love was employed by Goodyear as a labourer loading trucks from about July 1959 to 1964. Mr Love came to Goodyear after working in the James Hardie factory from 24 September 1956 to 19 July 1959. Mr Love described the James Hardie factory as large and open and stated that there was always dust hanging in the air of the factory. As part of his employment with James Hardie, Mr Love undertook a number of tasks involving the use of raw asbestos fibre that were very dusty, but which are not relevant for present purposes. As a worker at the James Hardie factory, Mr Love was encouraged to eat outside because of the dust levels present inside the factory.

107. At Goodyear, Mr Love worked unloading tyres from a conveyor belt onto trucks. He described the wind blowing dust from the James Hardie factory into the Goodyear factory, and stated that this was a daily occurrence. He also observed dust being liberated from the James Hardie factory when he walked past on his way to and from his car.

Harry Edwards

108. Harry Edwards was employed by Goodyear in a number of positions from about 1953 to 1963. Mr Edwards had also worked for James Hardie in its Camellia factory for three months in 1948. In that position, he swept the floors and cleaned up offcuts of asbestos products, putting that material into waste bins in the factory. He described the James Hardie factory as a very dusty place.

109. Mr Edwards described the Goodyear factory as having an extensive network of lagged steam pipes. On occasions, he passed by maintenance workers undertaking work on the steam pipes. In his first three years at Goodyear Mr Edwards delivered rubber to all different parts of the factory using a wheelbarrow. In his last four years, Mr Edwards worked as a runner. He stated that when the wind blew from the direction of the James Hardie factory, there was nothing to prevent the dust coming into the Goodyear factory. The area between the two factories was always dusty. Mr Edwards saw dust in the air as he walked past the James Hardie factory on his way to and from the train station. He also observed broken bits of asbestos cement products dumped on the James Hardie site, in close proximity to the Goodyear factory. Mr Edwards took a number of cigarette breaks during the day, in the designated smoking room or near the loading dock. From the loading dock, Mr Edwards stated that he could see into the James Hardie factory, which he observed to be an extremely dusty place. Wind blew dust from the James Hardie factory into the Goodyear factory.

Aurelio Vella

110. Aurelio Vella was employed by Goodyear as a factory hand between 1964 and 1965. Mr Vella worked mainly outside on the western side of the Goodyear factory near bins used for rubber waste, adjacent to the James Hardie factory. Mr Vella deposed that on windy days dust blew over from the James Hardie factory. He then moved to work inside the factory and continued to observe dust to blow into the Goodyear factory.

Allen Bonning

111. Allen Bonning was employed by Goodyear as a labourer from about 1960 to 1962 or 1963. Mr Bonning worked in the testing and tyre fitting section. A lot of his work was done in the yard. The area where Mr Bonning worked was close to the James Hardie factory. When he worked in the yard, Mr Bonning saw dust in the air coming from the James Hardie factory. He stated that there was always a layer of white dust on the ground in the yard where he worked and on the tyres where they were stacked. As Mr Bonning moved the tyres, the dust would be disturbed and circulate in the air around him.

William Stubbs

112. On 6 September 1982, William Stubbs gave evidence in the Workers’ Compensation Commission of New South Wales in a claim for compensation from Goodyear. Mr Stubbs gave evidence that he was employed by Goodyear from 1941 to 1973. He worked in Department 41 as an assistant to the bias cutter. Mr Stubbs gave evidence that white dust blew into his work area from the James Hardie factory whenever a westerly wind blew. He described Department 41 as being situated next to the James Hardie factory and stated that there were a number of windows in that area that were usually left open for ventilation purposes. Mr Stubbs’ evidence was that the dust blowing into his work area covered the machinery, the floor, and the fabric he was cutting.

Eric Moore

113. Eric Moore was employed by Goodyear from 1950 to 1990, retiring as the Production Manager for Tyre Manufacturing. He provided a statement for an unknown purpose, dated 20 July 1995. Mr Moore stated that asbestos was used to lag the steam pipes and curing presses for tyres in the Goodyear factory. The bagomatic machines also used large asbestos brake pads. Asbestos dust from the rafters and horizontal surfaces was removed by a contractor in 1980 or 1981. Mr Moore stated that the dust had built up over many years as a result of the windows in the sawtooth roof not being closed properly. He stated that over a weekend, if there was a westerly wind blowing, there would be a white dust all over the floors, benches and machinery. If people walked through it, they would leave footprints in the dust. Mr Moore stated that this dust came from the James Hardie factory.

Howard Crowne

114. Howard Crowne was employed by Goodyear from 1955 to 1990, retiring as the Purchasing Manager. He provided a statement for an unknown purpose, dated 18 August 1995. Mr Crowne stated that although he had heard that asbestos products were being made by James Hardie in the factory next door, he was not aware of any dust coming into the Goodyear factory from the James Hardie factory. He stated that this had never been discussed in his presence, and that if there had been a problem with this dust then he would have been told about it. Mr Crowne stated that he was not aware of asbestos being used in the manufacture of tyres. He did not know if the brake pads on the bagomatic machines were made of asbestos. He was aware of the use of talc in the tyre making process. Mr Crowne stated that the bagomatic presses and the pipes leading to them were lagged with asbestos, which was removed when the dangers were realised.

John Poole

115. John Poole was employed by Goodyear as its Senior Purchasing Officer from 1971 until about 1985. He provided a statement for an unknown purpose, dated 26 September 1995. Mr Poole stated that he was not aware of the use of talc in the manufacture of tyres. He described the Goodyear factory as relatively clean, except for the Banbury area where there was a lot of black carbon dust. The brake pads used in the bagomatic machines contained asbestos until about 1984, when they were replaced with non-asbestos alternatives following a direction from management. He stated that all steam pipes were lagged with asbestos, which was progressively removed by contractors during the 1980’s, both within and outside of working hours. The Goodyear factory operated 24 hours per day seven days per week until about 1978. Mr Poole stated that the lagging deteriorated because of the super-heated steam used to power the machines. Lagging required replacement about every two years.

Geoffrey Schuler

116. Geoffrey Schuler was employed by Goodyear as its Chief Chemist from 1971 to 1981 and then as its Technical Manager until 1990, when the factory closed. He provided a statement for an unknown purpose, dated 8 October 1995. Mr Schuler could not recall any asbestos dust coming into the bottom floor of Building 8 from the James Hardie factory. He stated that asbestos dust from the James Hardie factory did come in through the windows upstairs. Mr Schuler was aware that asbestos lagging was removed from steam lines in the 1980’s, but this was not within his area of expertise.

Patrick Walsh

117. Patrick Walsh was employed by Goodyear as a fitter from about 1955 to 1990. Mr Walsh worked shift work alternating between morning, afternoon and night shifts. He also worked about seven to 14 hours of overtime each week. Mr Walsh’s role was to perform maintenance and repairs on the machinery involved in the tyre making process. If a machine required major work, that was done during the Christmas shut down period. If work was minor, it was done “on the spot”. Sometimes, Mr Walsh removed asbestos lagging to repair a leaking pipe. This involved using a knife, a chisel and a hammer and/or his hands to remove it. This process created dust in his immediate vicinity. Re-lagging was done by specialist lagging contractors. Mr Walsh was present sometimes when this work was done. The laggers usually used pipe sections or blocks, held in place by metal or rope. The insulation material was cut to the required size at the time. Mr Walsh also replaced gaskets, which he believed to contain asbestos. He often used compressed air to blow the remnants of the gasket away, which created dust in his immediate vicinity. Mr Walsh worked on weekends to clean out dirt and dust from machinery.

118. Mr Walsh deposed that the western wall of the Goodyear factory had a large doorway in it and that the door was always left open. When he looked through that doorway, he could see into the James Hardie factory. Mr Walsh often spent time talking to other workers in the area between the two factories. The wind blew dust from the James Hardie factory through this area and into the Goodyear factory and particularly into the tyre room where Mr Walsh spent most of his time.

Frederick Ross

119. Frederick Ross, an employee of Bells Asbestos, worked as a lagger at the Goodyear factory for about 10 to 12 months in the period from 1939 to the mid-1960s. He described attending the Goodyear factory for repair and shutdown work, but mainly repair work. Mr Ross deposed that he used pipe sections, blocks, composition and rope in his work at the Goodyear factory.

Joseph Welch

120. Joseph Welch, an employee of Bells Asbestos, worked as a lagger at the Goodyear factory sometime after 1965. Mr Welch recalled undertaking maintenance work, including lagging a boiler for about two to three weeks and lagging the top of the “bandag” machines used to make tyres, as well as working on steam pipes. The steam pipes at Goodyear were lagged using pipe sections and rope. The top of the bandag machines were lagged using asbestos blocks and composition. When Mr Welch worked at Goodyear he worked mainly on his own.

Documentary evidence relevant to exposure

121. On 1 August 1979 Inspector Keogh of the DDB attended the Goodyear factory to conduct investigations into Mr Said’s exposure to asbestos. On that day he met with Albert Stephenson, the Manager of Safety and Security, and Charles Bradley, the Personnel Officer. Mr Stephenson expressed concern about Mr Said’s diagnosis because he worked in the bias cutters section where there was no use of asbestos. Inspector Keogh inspected where Mr Said had worked noting that no asbestos was used in the process at that location, but there were lagged steam pipes running across the ceiling. Inspector Keogh opined that “there was nothing to suggest that the pipes would cause a dust hazard”, observing them “to be in a good state”. Mr Stephenson informed Inspector Keogh that work on the pipes was usually carried out on weekends or over holiday periods. Inspector Keogh was then shown a large door in the western wall that opened onto the James Hardie factory. The possibility was raised with Inspector Keogh that asbestos dust was blowing in from the James Hardie factory. Inspector Keogh opined that there was very little likelihood of that exposure causing Mr Said’s mesothelioma. Inspector Keogh took samples of dust from the skillion roof of Building 8 and sent them for analysis.

122. On 6 August 1979 Inspector Keogh interviewed Mr Said. Mr Said stated that the air vents and the doorway were always left open and through those there was a continual flow of white dust that covered the floor and the machines. The dust had to be cleaned up before work could start and was thick enough to leave footprints in. Mr Said opined that the white dust blew in from the James Hardie waste dump located at the rear of the plant and from the James Hardie yard. The dust stopped being a problem a few years previously, and that coincided with when James Hardie stopped using the waste dump. Mr Said stated that there were times when lagging was removed and repaired in the Goodyear factory, but those occasions were so infrequent that he could not specify an occasion when that occurred.

1. Dr Bell requested that James Hardie notify him of the death of any worker suspected to have asbestosis. Dr Bell requested that dust counts in James Hardie’s major installations be resumed and that the DOH could carry out such counts on a routine basis until such time as James Hardie could acquire the necessary equipment to do them in-house.

2. Mr Gilbert opined that the problem of dust control was going to become a major issue in the near future requiring changes to production techniques. Mr Gilbert suggested that any future discussions with the Department of Health should be conducted at a higher level within James Hardie with the Technical Director being present. Mr Gilbert stated that it appeared certain that dust control would have to be handled on a Federal basis if James Hardie were to keep ahead of various State Health Department demands.

147. On 3 May 1966 Trevor Jones of DOH with the Department of Public Health, New South Wales, sent a letter to the Manager of the James Hardie factory setting out the results of a series of tests carried out on 13 April 1966 to assess dust exposure at various points within the factory. The total dust concentration measured at the No 2 linishing booth was 11.2 mppcf, more than double the recommended standard. In the letter, Mr Jones stated:

In general, with the exception of No 1 linishing booth, dust concentrations were at a reasonable level having regard to the abovementioned standard however it is suggested that with asbestos product, the dust exposure should be kept at as low a level as possible.

148. Mr Jones made a number of suggestions for the modification of the operations including:

1. Elimination of manual handling and tipping of bagged asbestos and stacking of empty bags;

2. Adjustment of the position of ventilation, for example, having exhaust take-off directly below the linishing bench;

3. Final finishing of articles by hand should be done under local exhaust ventilation, if this process could not be avoided;

4. Regular checking of the adequacy of local exhaust ventilation of booths and saws;

5. Elimination of the practice of blowing accumulated dust from clothing with compressed air;

6. Reinstatement of dust exposure monitoring by the Company.

149. On 6 May 1966 Dr McCullagh wrote to Mr Gilbert of James Hardie proposing a new system of medical examination for employees at the James Hardie factory. Dr McCullagh proposed daily visits by a doctor for examination of the approximately 900 workers at the factory. Dr McCullagh proposed that this would allow for the prompt examination of all new employees and enable the elimination of those unfit for any reason who were an unacceptable compensation risk. Dr McCullagh stated:

In any factory this examination is a wise precaution. Where asbestos is being handled it is particularly necessary, since wherever possible older men should be preferred to younger, in the choice of new employees. This will remain the case until asbestos dust levels have been reduced virtually to zero. The reason for this is that the damage asbestos does develops very slowly over the years and continues to develop even as exposure is ceased. In the normal course of events, older men have fewer years ahead of them than do younger men, and therefore, both in the interests of the employee and the Company, the older man should be preferred.

150. On or about 11 July 1966 Dr McCullagh delivered a presentation at the James Hardie Factory Manager’s Conference. A summary of the presentation recorded Dr McCullagh making the following points:

1. Recent literature reported fairly conclusive evidence that the inhalation of asbestos dust caused lung cancer and cancer of the chest cavity lining (which I infer to be mesothelioma) as well as asbestosis.

2. The weight of evidence that asbestos causes cancer is not as strong as the evidence base for the proposition that smoking causes cancer. It “appears that asbestos is no more dangerous than smoking”.

3. There is no safe upper limit for asbestos dust. In the US and Australia, the maximum allowable exposure is 5 mppcf. The aim in the UK is nil.

4. Any exposure is dangerous and cumulative. Absolute maximum should be no more than 5 years at 5 mppcf.

5. Heaviest exposures cause asbestosis, lighter exposures cause cancer. Therefore, as exposures become lighter, cancer will become more apparent. With better dust control, people are living long enough to develop cancer.

6. Asbestos is now suspected as being an environmental pollutant in areas around factories that use asbestos. The main danger is posed to people living within half a mile of the source. Studies in London and Finland have demonstrated that mesothelioma is more prevalent in those areas.

7. It is likely that much tighter dust control regulations are coming. It is inevitable that employees with dust diseases will be classified as compensation cases.

151. Also at the 1966 Factory Manager’s Conference, Mr Page presented a session on the improvements to the dust control processes at Camellia, which included discussion of regular checking of dust removal systems.

152. On 27 June 1967 Mr J Winters, the Industrial Hygiene Engineer of James Hardie at Camellia, reported that the asbestos system between the booster fan and asbestos hoppers was emitting large quantities of dust due to clogging of the bag filters. The clogging was reported to be causing excess pressure in the line, which in turn caused asbestos to be forced out of the smallest openings in the duct work. The cause of the clogging was a lack of shaking of the bags, which could not be done mechanically and was not done manually by workers because it was dusty. Mr Winters proposed certain engineering measures to fix the problem.

153. The annual Factory Manager’s Conference took place between 19 and 23 June 1967. Minutes of the Conference were circulated on 3 July 1967. Section 19 of the Minutes, entitled “Dust Control and Employees Medical Scheme”, noted the relationship between exposure to asbestos and mesothelioma. It was noted that the incidence of mesothelioma was low but there was potential for publicity to drive the imposition of very severe regulations by State Health Departments as well as broader resistance to the continued use of asbestos. It was noted to be important to James Hardie to “get our house in order” so as to demonstrate that the processes could be controlled within the industry, thereby protecting its future markets by reassuring the public that no danger existed in the handling of asbestos products.

154. On 9 August 1967 Mr Winters submitted a report on high dust concentrations in the laboratory asbestos treatment plant at the James Hardie factory. The existing method of fibre treatment in the relevant area was producing excessive dust recorded as high as 2.87mg and 12 mppcf. Workers were directed to wear masks at all times in the area, but this was not possible as a result of tenderness and irritation caused by the masks, which resulted in workers removing their masks to “take a breather” in a contaminated atmosphere. The process described by Mr Winters involved the hand mixing of raw asbestos from bags, shovelling the mix from the floor onto a trolley, feeding the asbestos into the fiberiser and then raking and sweeping the asbestos onto a trolley. This process was repeated before putting the asbestos, which was now ready for use, back into bags. Mr Winters noted that the conditions in the relevant area were further aggravated by the blow room above the asbestos hopper discharging fine asbestos dust back into the air and the fact that the treatment plant was fully enclosed such that there was no natural ventilation to assist. The solution proposed by Mr Winters identified two areas to be exhausted to the dust collector.

155. The annual James Hardie Factory Manager’s Conference took place between 17 and 21 June 1968. Section 13 of the Minutes of that Conference, entitled “Industrial Hygiene”, was prepared by Mr Gilbert, in the following terms. The Industrial Hygiene report stated that significant reduction in the prevailing dust levels could be achieved by improving the “dust consciousness” of all workers, “from Superintendents down to the men sweeping the floors”. The Minutes stated:

By more frequent routine shaking of dust socks, routine emptying of dust hoppers, clearing out blocked exhaust lines and housekeeping of floors, walls, rafters and ceilings surrounding dust sources, lower dust levels could be achieved throughout all our factories.

…

The design of all new dust collection plants and asbestos blowing circuits should incorporate automatic cleaning of the dust socks either by mechanical means or by reverse cycling of the air stream. Dust socks, including those on asbestos blow rooms, must be isolated from all factory areas by an unbroken wall and be vented to the outside atmosphere…Emptying of dust collection system hoppers requires careful consideration so that the collected material may be emptied without pollution of the surrounding atmosphere occurring…

…

The Company policy on disposal of material collected in dust hoppers, including the green turnings from pipe sockets, etc. is that it must be dumped in a suitable tipping area and completely covered in some manner so that it will not blow around. It must not be sold or given to factory employees and must not be used to make hard standing within our own factories excepting where it is covered with some suitable hard wearing (sic)…

…

The problem of dust contamination has, over the past few years, become a matter of prime importance from every point of view, not the least being the future market acceptance of products containing asbestos fibre…

Findings of fact

156. Taking into account all of the evidence I make the following findings of fact.

157. The extent of the contamination exposure in the relevant period was substantial. Dust from the James Hardie factory processes was blown into the Goodyear factory on the prevailing winds, as a result of the movement of plant and materials in the area between the two factories, as a result of the loading and unloading of waste materials and through the operation of the dust collector. The dust that came from the James Hardie factory contained asbestos dust and fibre.

158. The dust collector collected dust from the exhaust systems in the James Hardie factory. The dust collected included very small particles of asbestos that were generated by the pulverisation of asbestos fibre and the sanding of finished products in the James Hardie manufacturing processes. The air that was released into the air from the stack of the dust collector contained these small particles of asbestos fibre. Until about 1971, the process of emptying the dust collector also liberated substantial amounts of asbestos dust.

159. Asbestos dust continued to be liberated from the dust collector for a considerable period after James Hardie replaced asbestos with cellulose in its products.

160. The James Hardie waste dumps and external waste bins were also a significant source of dust created in the area between the two factories. The use of machinery to break up the waste products and to load and empty the bins caused a considerable amount of dust.

161. The finished products of James Hardie stacked on its side of the fence were not an independent source of exposure to asbestos. However, they did provide surfaces on which the dust from the dust collector and the waste materials could accumulate and thereafter be recirculated into the air in that location. The same can be said of the products and materials stored by Goodyear on its side of the fence.

162. A large proportion of the dust that settled on the surfaces of the Goodyear factory blew in from the James Hardie factory through the windows and doors of the Goodyear factory, which were left open because of the heat generated by the processes inside the Goodyear factory. This included dust that settled onto the top surfaces of the lagged pipes in the Goodyear factory. When dust was liberated from the lagged pipes in the Goodyear factory as a result of the vibration of the machinery, a significant proportion of that dust was dust that had blown into the Goodyear factory from the James Hardie factory.

163. A large proportion of the dust that had settled on the rafters of the Goodyear factory and in other “inaccessible” places originated from the James Hardie factory.

164. The contamination exposure was significant enough to generate contemporaneous complaints from the Goodyear workers, to the extent that they took samples of the dust and sought to have it tested.

165. The dust from the James Hardie factory was recirculated within the Goodyear factory through the movement of goods and materials and the workers cleaning and using compressed air.

166. The evidence of testing the shelf dust samples from within the Goodyear factory supported the conclusion that the contamination exposure was significant in the western parts of the Goodyear factory. The contamination exposure was probably also more significant in the top floor of Building 8, where asbestos was not used in Goodyear’s processes and the only lagged pipes ran across the ceiling.

167. The extent of the contamination exposure was most convincingly demonstrated by the accumulation of dust from the James Hardie factory on the cars in the car park.

168. Amaca submitted that the contamination exposure required a westerly wind to be generated and therefore its significance was limited to favourable weather conditions. I do not accept that submission for the following reasons. First, the evidence is that the dust was at its most prolific when a westerly wind blew, and on these occasions significant amounts of new asbestos dust was blown into the Goodyear factory buildings. However, once the dust was within the Goodyear factory buildings, it was likely to settle on surfaces and remain there to be recirculated for an unknown length of time. Second, the position of the buildings and structures in the areas between the two factories could have had the effect of creating air movement. This would be a matter for expert evidence. In my view, it would be speculative to conclude that the dust was not conveyed from the James Hardie factory into the Goodyear factory when the prevailing winds were not westerly. Third, there were movements of workers and machinery on both sides of the fence that were likely to cause air disturbance capable of circulating the dust in the area between the two factories and causing it to enter the Goodyear factory. Fourth, the dust collector emitted dust through the air pressure generated by the exhaust system that was released through vents some distance above the ground. That dust was likely to travel some distance in the air before settling.

169. Overall there was a significant weight of consistent evidence about the nature, duration and frequency of the contamination exposure.

170. The extent of the insulation exposure in the relevant period was far less significant than the contamination exposure. Talc, which was widely used in the Goodyear factory and was a substantial source of dust in the Goodyear factory. Most of the workers who used talc in their work could distinguish its appearance from the dust that blew in from the James Hardie factory. I am satisfied that only a small proportion of the dust generated in the Goodyear factory contained asbestos.

171. Most of the maintenance work that involved the removal and replacement of asbestos lagging on steam pipes in the Goodyear factory occurred during the annual Christmas shutdown and on the weekends, when workers such as Mr Tarrant were unlikely to be present. It is likely that there were occasions when Mr Tarrant was exposed to small amounts of asbestos dust as a result of removal and repair of asbestos lagging during running maintenance tasks, but these occasions were infrequent.

172. I find that the Goodyear workers’ recollections of how often maintenance work requiring the removal of lagging was done to be unreliable because it is likely that being asked to recall such occasions led to recollections of them being more frequent than they actually were. On all of the evidence, the Goodyear factory seemed to operate continuously but for the Christmas shutdown period.

173. The most independent contemporaneous evidence was that of Inspector Keogh, that the lagging on the steam pipes in the Goodyear factory was generally in good repair.

174. There were machines in the Goodyear factory that were extensively lagged with asbestos, including boilers, heater pits and the bandag machines. It is likely that some asbestos dust remained in the Goodyear factory even after older machines were replaced and was recirculated through the factory by the movement of workers, the vibration of machines, and the movement of air.

175. There was very little that Goodyear could have done to minimise the exposure of its workers to dust from the James Hardie factory. The windows and doors of the Goodyear factory were left open for ventilation because of the high temperatures reached inside the factory due to the hot nature of rubber moulding work. Had the work been undertaken with the windows and doors closed to minimise the dust coming in, alternate precautions would have been necessary to protect the Goodyear employees from the heat.

176. Nevertheless, Goodyear retained a duty to its employees to minimise their insulation exposure and to deal with the contamination exposure that it had been made aware of.

177. Goodyear could not discharge its duty by warning its employees of the risk: London Graving Dock Co Ltd v Horton [1951] AC 737 at 746 (Lord Porter) and Smith v Austin Lifts Ltd [1959] WLR 100 at 118 (Lord Denning).

178. Goodyear did not have actual knowledge that the contamination exposure posed a risk of death to its workers.

179. James Hardie knew that exposure of its workers to asbestos dust over time could lead to asbestosis, lung cancer or mesothelioma. It could not quantify the risk, but was on notice that a serious risk existed. Dr McCullagh’s advice was that the development of asbestosis in a worker was inevitable after sufficient exposure to asbestos and the expiry of the required (unknown) lag period. He thought that the same could be said for pleural disease and cancer. He recommended that older men be hired because they would be less likely than younger men to survive long enough “to suffer the possible consequences of their exposure”.

180. James Hardie knew that it was possible that brief and small exposures to asbestos could result in mesothelioma.

181. James Hardie had been advised by Dr Bell that there was an accumulating mass of evidence that serious diseases could be caused by relatively short periods of exposure to asbestos. Dr Bell also advised James Hardie that asbestos dust was a hazard to families living within a three-mile radius of the factory and that hardening of the chest lining could be caused by small exposures to asbestos, including neighbourhood exposure.

182. Dr McCullagh also advised James Hardie that lighter exposures to asbestos were likely to cause cancer, and that this was a particular risk as more effective dust controls were introduced. Dr McCullagh informed James Hardie that asbestos was considered to be an environmental pollutant and that studies in London and Finland demonstrated that the main danger was posed to people living within half a mile of the source.

183. James Hardie knew that it had a problem with the emptying of the dust collector because it could cause pollution of the surrounding atmosphere. James Hardie also knew that the dumping of waste in external bins was a source of dust that needed to be eliminated.

184. James Hardie could have discharged its duty in a number of ways, including by warning Goodyear of the danger posed to its workers by exposure to small amounts of asbestos dust, using water to minimise the dust generated from the waste bins and dumps and emptying the dust collector. It could have also made modifications to the dust collector to prevent it emitting dust from the manufacturing process.

Determination

185. I am satisfied that Mr Tarrant was exposed to asbestos to a far greater extent as a result of his contamination exposure as opposed to his insulation exposure.

186. I am also satisfied that James Hardie’s conduct involved a more significant departure from the standard of care of the reasonable person, because of its actual knowledge of the risk of serious harm posed to the Goodyear workers by reason of the contamination exposure. It could have taken precautions to minimise the liberation of dust from its factory and processes, but failed to do so. It could have also warned Goodyear about the dangers of asbestos that it knew about, including that small amounts of exposure, such as neighbourhood exposure, could lead to serious illness or death.

187. I find that the just and equitable contribution between the parties is that James Hardie (Amaca) should be 75% responsible for Mr Tarrant’s damage and Goodyear 25% responsible for Mr Tarrant’s damage.

Orders

188. The parties are to provide Short Minutes of Order to my Associate within 7 days of today, to give effect to my findings and dealing with costs.

189. I will hear the parties on costs, if no agreement can be reached.

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Endnote

Decision last updated: 11 November 2021