Amaca v Seltsam

[2005] NSWDDT 21

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re: Compton); Amaca v Seltsam [2005] NSWDDT 21
PARTIES:	(Re: Ronald Compton) Amaca pty Ltd ( formerly known as James Hardie & Coy Pty Ltd) (Cross Claimant) Seltsam Pty Ltd (Cross-Defendant)
MATTER NUMBER(S):	DDT 122/99/1
JUDGMENT OF:	O'Meally P
CATCHWORDS:	:- Cross claim for contribution - exposure to products of two manufacturers - determination of causal contribution made by each - contribution assessed
LEGISLATION CITED:	Dust Disease Tribunal Act, 1989
DATES OF HEARING:	17th May 2005
EX TEMPORE JUDGMENT DATE:	05/17/2005
LEGAL REPRESENTATIVES:	Counsel: E G M Cox (Cross Claimant) instructed by Holman Webb Counsel: D M Jay (Cross Defendant) instructed by Toomey Pegg Drevikovsky

JUDGMENT:

O'MEALLY P

1. This is a cross-claim by Amaca Pty Ltd (Amaca) claiming contribution from Seltsam Limited (Seltsam).

2. On 24 September 1999 Ronald Eric Compton (the plaintiff) issued a statement of claim against James Hardie & Coy Pty Ltd (JHC) claiming damages. He alleged that he had been negligently exposed to asbestos dust and fibre which emanated from products manufactured by JHC in whose shoes Amaca now stands, and as a result contracted mesothelioma.

3. On 30 September 1999, the plaintiff’s action was fixed for hearing before my colleague Duck J. His Honour heard the case on 13, 14, 15 and 16 December 1999 and on the last date, 16 December 1999, found a verdict for the plaintiff and entered judgment in the sum of $383,263.

4. In the course of the plaintiff's evidence, he conceded that he had been exposed to asbestos which came from products manufactured by Wunderlich Ltd (Wunderlich), in whose shoes Seltsam now stands. This cross-claim, pursuant to leave granted some time before 17 December 1999, was issued on 29 February 2000. The issue for my determination is the extent to which each of Amaca and Seltsam should bear liability to contribute to the damages awarded to the plaintiff.

5. It is accepted that both JHC and Wunderlich knew or ought to have known of the dangers of asbestos, that is, that exposure to asbestos constituted a foreseeable risk of injury and that means were available to obviate or minimise that risk. It is accepted by Seltsam that Wunderlich was a tortfeasor which, if sued by the plaintiff, would have been liable to him.

6. The issue, as I see it, is what contribution was made to the plaintiff's mesothelioma by exposure to the products of each manufacturer. It is the case that all asbestos exposure occurring in an acceptable latency period, makes a material contribution to mesothelioma. See Eaton v Carrier Air Conditioning and Ors [2004] 1 DDCR 716 at 720 [11]. It has, however, been submitted by counsel for Amaca that I should take into consideration the market share which each of the companies in whose shoes the current parties stand had at the relevant time but, as it seems to me, that is not something it is necessary to consider. Though the evidence of Mr Gazzard given in Roberts v James Hardie & Coy Pty Ltd No. 15 of 1997 (tendered in these proceedings pursuant to S25 (3) of the Dust Diseases Tribunal Act, 1989) speaks of JHC’s market share, I am uninformed about Wunderlich's market share. Be that as it may, the appropriate question to determine, in my view, is and remains, what contribution did the exposure to the product of each manufacturer make to the plaintiff's disease.

7. I think it should be recorded that the obdurate attitude taken by either one or both parties to this cross-claim is disturbing. By the exercise of co-operation and commonsense the costs which have been incurred would have been avoided. No doubt the costs of pursuing this claim will exceed the amount in dispute. At a time when there are criticisms of the costs of pursuing litigation in the Tribunal, one might wonder at the motives of some of those who make them. That having been said, however, it is my obligation to determine what contribution each should make to the plaintiff's damages.

8. Relevantly, I have the affidavit of the plaintiff, which was used in the principal proceedings, the transcript of his evidence and the evidence of Mr Armando Gardiman, who was the plaintiff's solicitor. I also have notes made by him in conference with the plaintiff and some correspondence passing between the plaintiff's solicitors and the solicitors for Amaca relevant to the plaintiff's action.

9. The plaintiff's affidavit and his oral evidence establish what now is uncontentious, that is that the bulk of his exposure to asbestos came from products manufactured by JHC. It also establishes that he was exposed to asbestos dust and fibre which came from products manufactured by Wunderlich. The products manufactured by Wunderlich with which the plaintiff worked were Villaboard and a flat sheet product, both of which contained asbestos. He also worked with and presumably installed windows or window frames manufactured by Wunderlich. These did not contain asbestos.

10. When seen in consultation by Mr Gardiman for the first time, that is on 20 September 1999, the plaintiff informed Mr Gardiman that he had worked with “some Wunderlich material but small quantities only”. He indicated that he did not have the same familiarity with Wunderlich's products as he had with those manufactured by JHC. There is no doubt, indeed it has not been in issue in this cross-claim, that the plaintiff had a great familiarity with the products of JHC. The note made by Mr Gardiman on 20 September 1999 was that the plaintiff worked with 85 per cent Hardie’s material and 15 per cent Wunderlich’s. It should be recorded that at the time that consultation occurred, the plaintiff was a patient at Strathfield Private Hospital where, about a week before, he had undergone a radical pleuropneumenectomy. This is massive surgery which requires an incision from the back of the chest to the anterior lower rib cage. When the surgical opening is made, and the lower rib cage is opened by means of a ratchet inserted between two ribs sufficiently wide to admit two pairs of hands belonging to two surgeons, the pleura is stripped. It is horrible, induces considerable pain and involves a long convalescence. I say this having heard evidence of the nature and post-operative effects of pleuropneumenectomies in many cases. At the time of the consultation, the plaintiff was administering self-injected pain controlling drugs; presumably opiates. Nevertheless, he was, in the opinion of Mr Gardiman, quite lucid.

11. On 27 September 1999, the solicitors then acting for Amaca wrote to the plaintiff's solicitors requesting particulars. Question 15, relevantly, was in these terms:

Overall, what proportion of the asbestos dust and fibre, to which the plaintiff alleges he was exposed, came from products manufactured by:

(a) JHC; and

(b) any other manufacturer and supplier (please identify)?

12. On 15 October 1999, following receipt of the request for particulars, Mr Gardiman again consulted the plaintiff. The request for particulars was discussed and notes were made by Mr Gardiman. In respect of question 15 Mr Gardiman noted the plaintiff's response that the exposure to JHC’s asbestos was at least 85 per cent, probably more. He noted also that the plaintiff had a recollection of working with unidentified Wunderlich asbestos material which was flat sheet. He remembered also Wunderlich windows.

13. The notes of Mr Gardiman’s first conference were admitted with the consent of Mr Jay, counsel for Seltsam. In respect of Mr Gardiman’s evidence, he objected to it on the basis that discretionary factors in the Evidence Act required its exclusion. So far as the discretionary factors are concerned, I am of the view that neither the evidence nor the notes of the second conference should be excluded. But it is upon the basis of the notes used to supply particulars that Amaca submits that its liability to contribute to the judgment sum should be 85 per cent and that of Seltsam 15 per cent.

14. If it were the case that the plaintiff's asbestos exposure was as to 85 per cent from products manufactured by JHC and 15 per cent by Wunderlich, that submission would have greater strength. However, with all respect to Mr Cox, counsel for Amaca, it overlooks the plaintiff's evidence that he worked with three products of Wunderlich, only two of which contained asbestos. It is not appropriate to equate use to exposure. Moreover, in respect of at least one product it was rendered into size and shape by scouring and snapping. Other asbestos products, particularly those of JHC were rendered to size and shape by the use of a circular saw or a power driven grinder. Such methods of cutting asbestos products would by their very nature release considerably more quantities of asbestos dust and fibre into the breathing zone of the operator than would scouring and snapping. That is not contentious and the cross-claimant and the cross-defendant agree it would be the case.

15. Doing the best I can to do justice between the parties on the material available, it is my view that the cross-defendant should contribute 10 per cent of the damages awarded the plaintiff and the cross-claimant 90 per cent. In respect of costs awarded to the plaintiff, they should share liability to pay them in the same proportion.

16. I declare the cross-defendant should bear liability to contribute to the damages awarded to the plaintiff as to 10 per cent and the cross-claimant as to 90 per cent. Each should contribute to the plaintiff's costs in the same proportions.

17. I order the cross-defendant to pay the cross-claimant's costs as agreed or assessed.

Mr E G M Cox instructed by Holman Webb appeared for the cross-claimant

Mr D M Jay instructed by Toomey Pegg Drevikovsky appeared for the cross-defendant