Berengo v Amaca
[2010] VSC 496
•5 November 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7365 of 2009
| ROBERT BERENGO | Plaintiff |
| V | |
| AMACA PTY LTD | Firstnamed Defendant |
| and | |
| SELTSAM PTY LTD | Secondnamed Defendant |
---
JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 16-19 February 2010 | |
DATE OF JUDGMENT: | 5 November 2010 | |
CASE MAY BE CITED AS: | Berengo v Amaca & anor | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 496 | |
---
CONTRIBUTION PROCEEDINGS – Apportionment as between asbestos manufacturers.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC and Mr B Quinn | Slater & Gordon Pty Ltd |
| For the First Defendant | Mr G Watson SC and Mr G Moloney | Thomson Playford Cutlers |
| For the Second Defendant | Mr M Titshall QC and Mr J Armstrong | Monahan & Rowell |
HIS HONOUR:
Introduction
Robert Berengo is now 49 years old. As a child and early adult he was exposed to asbestos dust and fibres. In April 2009 he was diagnosed as suffering from metastatic pleural mesothelioma[1] (“the illness”). His life expectancy is limited, and the quality of his remaining life has been dramatically reduced.
[1]Report of Dr James Leigh Pg 2.
Mr Berengo sued each of Amaca Pty Ltd and Seltsam Pty Ltd, alleging that he had contracted the illness as a result of their negligence. The plaintiff settled with each of Amaca and Seltsam on 16 February 2010. On that day I made the following orders:
(a)The plaintiff’s case against the second defendant (Seltsam) be struck out;
(b)Judgment for the plaintiff against the first defendant (Amaca) for $2,000,000;
(c)The first defendant pay the plaintiff’s costs of the case as against the first defendant to be taxed in default of agreement.
Amaca claims in these proceedings statutory contribution from Seltsam under Part IV of the Wrongs Act 1958. Amaca claims a contribution towards the damages that it is liable to pay the plaintiff pursuant to the settlement referred to in the previous paragraph.
Amaca formerly conducted business as James Hardie & Co Pty Ltd. Seltsam conducted its business under the registered name Wunderlich Pty Ltd. Both defendants manufactured asbestos products at relevant times.
The relevant provisions of the Wrongs Act are s 23A, s 23B and s 24. The relevant effect of these provisions is to enable statutory contribution to be recovered by one party from another in circumstances where:
(a)The first party (here, Amaca) is liable in respect of damages to another person (here, the plaintiff). That liability can be created by a consent judgment;
(b)It is established that a second party (here, Seltsam) would have been liable to the plaintiff for some damage (here the plaintiff’s illness and its consequences).[2]
[2]I do not propose to reproduce these sections. Their relevant effect is not in dispute between the parties.
Once the entitlement to contribution is established the Court can fix the contribution payable by the second party as is “just and equitable having regard to the person’s responsibility for the damage”.[3]
[3]Wrongs Act 1958 s 24(2).
Seltsam agrees that the settlement figure agreed between the plaintiff and Amaca is reasonable. No issue therefore arises between Amaca and Seltsam in this regard.
It is common ground between Amaca and Seltsam that, in order to show that the plaintiff would have succeeded against Seltsam, Amaca would need to establish the following:
AExposure – that it is probable that the plaintiff inhaled dust which emanated from Seltsam products;
BDuty – that Seltsam owed the plaintiff a relevant duty of care;
CBreach – that Seltsam breached the duty of care which it owed to the plaintiff; and
DCausation – that Seltsam’s breach was a cause of the plaintiff’s mesothelioma.
I shall examine these issues in turn.
A. Exposure
Amaca argues that the plaintiff was exposed to asbestos in two ways:
(i)The plaintiff’s father Giuseppe worked as a painter and was directly exposed to asbestos. As a consequence the plaintiff’s exposure to his father or to some of his father’s work equipment indirectly exposed the plaintiff to asbestos dust;
(ii)The plaintiff was directly exposed to asbestos dust when, on occasions, he worked with his father and when he assisted in the demolition of a sunroom shed at the family home.
It is necessary to review the evidence relating to these two methods of exposure.
Robert Berengo
Robert Berengo was born on 2 November 1961. He lived at home until he was 30. His father Giuseppe worked as a house painter when Robert was a child and young man. His earliest memories are of hugging Giuseppe when he returned from work each day. He continued this practice until he was 14 or 15.
His father’s work vehicle was a station wagon. Robert would travel in it with his brothers. His father would carry his work equipment in the back – paint brushes, tins of paint, sanders, drop sheets, rollers and extension poles. This equipment would be removed from the station wagon and put in the garage at the family home if not required for a time.
Drop sheets would accumulate in the back of the car. Robert, with his brothers, would be given the task of shaking them out, folding them and repacking them in the back of the car for the next job. He did this job pretty regularly. As the little brother he would get the dusty end of the sheet and would end up with dust on him. He did this job from his early teens up until about 1978.
As a 9-10 year old he would accompany his father to various sites. He did not do any physical work at that age. In his early teens he would occasionally help his father with work. That would involve cleaning, sanding, dusting and masking. The sanding would create dust. Mostly this work involved helping Giuseppe at petrol stations. He worked at Yarck, Warburton, Yallourn and Mansfield in this way. He also worked with his father on domestic homes but did not recall the specific addresses. There is no evidence that he at any stage accompanied his father to Commonwealth Hostels sites.
In approximately 1973 he assisted his brothers in demolishing a timber, glass and asbestos sheeting sunroom at the family home in North Balwyn. He assisted also, at about the same time, in the demolition of a shed made out of the same material. Dust was created during these demolition works.[4]
[4]T 122-128.
Robert Berengo was called as a witness by Amaca. His evidence was unchallenged.
As best I can, I have endeavoured to place these different types of exposures into a timeline:
1963/4 -1976 Hugging and general contact with his father;
1963/4-1978Riding in the station wagon;
1971Attending work, but not working with his father;
1973Demolition of shed and sunroom at family home;
1974-1978Shaking out drop sheets;
1974-1978Occasional work with his father at petrol stations and domestic homes.
I regarded Robert Berengo as an impressive witness. I take the view that his evidence was reliable and likely to be accurate on the issue of dates, his activities and locations. He was completely truthful.
Giuseppe Berengo
Giuseppe Berengo is the father of the plaintiff. He took up painting shortly after his arrival in Australia in 1953. From 1961 (Robert’s birth year) until approximately 1978 he worked as a painter and then moved into another business. During that period his work was solely painting and renovation.[5] He painted all over Melbourne doing both domestic and commercial work. His domestic work mostly involved old houses. The commercial work he performed was either at various Commonwealth Hostels sites or at petrol stations.
[5]T 230
In both types of work he was required to prepare surfaces for painting by scraping, sanding, washing down and repairing those surfaces. The surfaces he worked with included asbestos sheeting. He dealt with asbestos sheets regularly. I understood the witness to be saying that paint would peel off asbestos sheets every 2-3 years. That surface would be rubbed down and sanded either by hand or with a power sander.[6] He would accumulate dust on his clothing and when he got home “the kids jump all over me”.[7]
[6]T 132
[7]T 133-4.
He would use drop sheets for interior work and occasionally outside when tiles were present. If he were sanding asbestos sheets the dust would fall to the drop sheet. Renovation work sometimes required him to replace asbestos sheets; most commonly he would replace broken sheets with new ones. He would break up the broken sheet further if necessary to fit it into a 44 gallon drum. A bit of dust would be created. When replacing asbestos sheets the new sheet had to be cut with a power tool, holes drilled and the edge rasped. A ‘fair bit’ of dust was created by the cutting process.
Mr Berengo Snr. was shown various Wunderlich brochures. Exhibit D1 A showed Wunderlich Durasbestos building sheets. The brochure was dated 1 January 1965. The witness agreed it looked “for all the world” like the cement sheets he had described to the court. He was shown Exhibit D1 B, a Wunderlich brochure advertising Wonderflex Multi Purpose Building Board dated 1 October 1967.
He agreed this was a material he commonly saw most days between 1961 and 1978.
Mr Berengo (Snr) was shown further Wunderlich brochures but did not recognise any of the materials advertised as materials he had worked with.
The cross-examination focussed on whether the witness could specify the manufacturer of any of the particular products he worked with. He stated that his work at Commonwealth Hostels spanned from 1954 to 1966 and after 1967 he did a few further small jobs. He was supplied with Wunderlich asbestos from the Commonwealth Hostels Warehouse.[8] It was cement sheet and he used it each time he changed camp.[9] Every six or seven months he did a job at a different hostel. He would share the asbestos sheeting duties with another of his workers. He used only Wunderlich asbestos sheeting at these camps.
[8]T 142.
[9]I interpret this to mean each time when he took on a new painting job at a different Commonwealth Hostel Camp.
When he needed to replace asbestos sheets for his then clients, he would purchase it from John Stone’s shop in Fitzroy. He would purchase James Hardie asbestos products from them. When he had to deal with old asbestos, whether it was at Commonwealth Hostels or not, he did not know whose product it was.
He worked as a painter from 1954 to April 1967.[10] He stopped and had a thirteen month holiday in Europe. When he came back he resumed painting briefly but the work petered out as he purchased his new furniture importing business. He said he stopped completely, roughly by 1969. During the time he was purchasing asbestos sheets from John Stone either he or another of his workers would work with those sheets. Sometimes up to 30 or 40 drop sheets[11] would end up in the back of his station wagon. They would be taken home and shaken out. He would use his own drop sheets on the Commonwealth Hostels jobs. The asbestos sheets he got from John Stone (Amaca) looked the same as the Wunderlich sheets he obtained from the Commonwealth.
[10]T 148.
[11]T 148.
In re-examination Mr Berengo said the work he performed at the Commonwealth Hostels was pretty much the same type throughout the period he worked for them. In answer to a question from me, Mr Berengo said he thought that from 1961-1967 each year on average he would work between 2 and 3 months on the Commonwealth Hostels jobs, but not full time on those jobs.
There is an obvious conflict between Mr Berengo’s evidence-in-chief, where he asserted he maintained his painting business up until approximately 1978 and his evidence in cross-examination where he said the painting really petered out after 1967 or 8. Mr Berengo (Snr) is now 81 and can readily be forgiven memory lapses with dates. His evidence-in-chief is confirmed by Robert Berengo who recalled shaking out drop sheets until about 1978 (when he was 16 or 17) and otherwise helping his father with painting duties as an early teenager. I have already observed that Robert Berengo was an impressive witness and I accept his evidence, confirmed by his father’s evidence-in-chief, that in fact the painting business operated in some form until about 1978.
Amaca’s argument on exposure
Mr Watson SC for Amaca, argued that there was a circumstantial case that Seltsam contributed significantly to the plaintiff’s exposure to asbestos products beyond the scope of Mr Giuseppe Berengo’s evidence. So much was clear, he argued, from the following:
(a)The admission made by Seltsam in its pleadings that “subject to proof of exposure to asbestos contained in Seltsam’s products, such exposure was consequent to a breach by Seltsam of that duty it owed to the plaintiff”.
I consider the effect of this admission to be confined to the duty of care owed by Seltsam and breach of that duty. I do not consider it is any evidence of exposure by the plaintiff to Seltsam’s products. At its highest it may be that it is some evidence that at some stage Seltsam manufactured asbestos based products, which is proved by other evidence in any event.
(b)Mr Giuseppe Berengo’s evidence which demonstrates that Seltsam’s products were available in Victoria from 1954 onwards;
(c)Exhibit D1 F[12] which demonstrates Seltsam’s involvement in the asbestos cement market from 1952 onwards;
[12]The circular dated 29 December 1960 in which Seltsam outlines a price increase in an asbestos cement sheet product “the first… since 1952.”
(d)The sales brochures dated from 1964 to 1976,[13] which demonstrate in combination that Seltsam was actively marketing a range of asbestos products in Victoria between those dates (as evidenced by the Victorian distribution address in each brochure);
[13]Exhibits D1 A, D1 B, D1 C, D1 D and D1 E.
(e)The evidence of Mr Giuseppe Berengo that the Durasbestos and Wunderflex products depicted in Exhibits D1A and D1B were similar to the materials he used;
(f)An intra-house letter of Amaca describing a meeting which occurred between it and Seltsam which occurred on 28 April 1967,[14] which is evidence that as at 1967 both parties were manufacturing a similar range of asbestos products;
[14]Exhibit D19.
(g)A decision of the Trade Practices Commission, delivered to Amaca on 30 June 1977, which related to a friendly takeover bid by Amaca for Seltsam.[15] The reasons are dated 30 June 1977 and relevantly read as follows:
[15]This exhibit was admitted over objection on a provisional basis at trial. In separate reasons I have found it to be admissible in these proceedings.
“3 Hardies propose to purchase the asbestos cement manufacturing business of Wunderlich Limited for $18,811,000 (subject to stock adjustment etc). The assets to be acquired are the land, plant, stock and buildings of Wunderlich’s three asbestos factories at Sunshine, Victoria, and Gaythorne, Queensland, and Rosehill, N.S.W., excepting that at Rosehill the premises will be leased.
4 Wunderlich limited is a wholly-owned subsidiary of C.S.R. Ltd, a major Australian public company………..Wunderlich’s sales of asbestos cement products for the year ending 31 March 1977 were $18.4 million.
5 Hardies sell their asbestos cement products in all States of Australia through a distribution system of hardware stores and building suppliers, (virtually one in every suburb). Hardies do not sell direct except in unusual circumstances, e.g. where a manufacturer is processing asbestos cement sheet in a special way and needs a special run, tenders, etc.
6 Wunderlich operates in all States except South Australia and Western Australia through a similar distribution system of hardware stores and builders suppliers. Where the product is the same the price lists of both companies are identical.
7 In the States where Wunderlich operates, both companies estimate that Wunderlich has approximately 35% of asbestos cement cladding products sales.
…………
9 According to Hardies Submission, national market shares (by value) in asbestos cement cladding products would be
Hardies*72%
Wunderlich 26%
Goliath 2%
100%
*Does not include A.C. pipes
………….
12Product information booklets and product lists for both Hardies and Wunderlich showing main uses, sales and comparable or substitutable material were submitted to the Commission.”
Conclusions – Exposure
It ought to be borne steadily in mind that Amaca bears the onus of establishing that the plaintiff was exposed to Seltsam’s products. I consider it likely that the plaintiff was exposed to asbestos dust and fibres emanating from Seltsam manufactured cement sheet worked on by Mr Guiseppe Berengo at Commonwealth Hostels sites and carried home by him on his work clothes and on work equipment carried in the family station wagon and stored in the family garage (including drop sheets). I make this finding only in respect of the new asbestos sheeting that Mr Guiseppe Berengo worked with at the Commonwealth Hostels site. I am unable to reach any conclusions as to the manufacturer of the existing in situ sheeting that was prepared and repainted, or who manufactured the broken sheets that were replaced at those sites.
Similarly, I am unable to say who manufactured the existing asbestos sheets at the private homes or commercial properties that Guiseppe Berengo worked upon between 1961 and 1978. There is simply no direct evidence as to their manufacturer and I consider insufficient evidence to allow the conclusion that Seltsam was responsible for any of them. I am also unable to conclude that Seltsam was responsible for the manufacture of any of the asbestos sheets in the demolished sunroom and shed at the Berengo family home.
In reaching these conclusions I am mindful of the following:
· On the evidence adduced I am unable to conclude that Seltsam manufactured asbestos cement sheets any earlier than 1952. They may well have done so but I am unable to find that they did.
· The circumstantial evidence relied upon by Amaca, which is set out in paragraph 29, establishes, at its highest; that:
(a)Seltsam manufactured and sold asbestos sheeting products from at least 1952;
(b)It sold these products in Victoria from at least 1954;
(c)By 1964 and continuing to 1974 Seltsam had distribution outlets in Victoria;
(d)Guiseppe Berengo worked with asbestos sheet products that looked similar to those manufactured;
(g)By 1967 both parties manufactured a similar range of products;
(h)By 1977 Seltsam had achieved a total of 35% market penetration in all states except South Australia and Western Australia in respect of its asbestos products.
· Where Mr Berengo (Snr) replaced existing asbestos sheeting, whether in domestic or commercial properties (including the Commonwealth Hostels), there is simply no evidence as to who the manufacturer was, or indeed, when the sheeting was manufactured.
· Similarly, there is no evidence as to the manufacturer or the age of the asbestos sheeting present in the demolished sunroom or shed at the Berengo family home.
· Whenever Guiseppe Berengo supplied asbestos sheets to effect repairs, he would purchase those items from John Stone’s shop in Collingwood. These were Amaca products.
I find that the plaintiff was exposed to dust and fibres which emanated from Seltsam products on occasions when his father had worked upon new Seltsam asbestos sheeting in the course of his work at Commonwealth Hostels. The plaintiff’s exposure was indirect, in the sense that the dust and fibres had been carried home by his father on his clothes and work equipment.
As I have observed, on the evidence adduced I am unable to conclude that Seltsam was manufacturing asbestos cement sheet products before 1952. There is no evidence as to when any of the existing asbestos sheets worked on by Mr Berengo (Snr) were manufactured. Similarly, the fact that Seltsam may have had a 35% market share in Victoria in 1977 taken by itself, or in combination with other evidence, does not permit me to conclude that the plaintiff’s exposure to Seltsam products was any greater than I have found. There is no evidence of over what period it had held that market share, or in what precise areas its products were distributed within Victoria. Even if it could be concluded that every time the plaintiff or his father were exposed to asbestos that was otherwise incapable of identification, there was a 35% chance it was Seltsam asbestos, this is not proof that in fact any asbestos at any particular work site was of Seltsam origin.
Duty and breach
Seltsam admits that if exposure of its products to the plaintiff is proved, that it owed the plaintiff a duty of care and that it breached that duty.[16]
[16]See second defendant defence to para 16(a) of the plaintiff’s Amended Statement of Claim. See also T162.10-T165.25.
Causation
The only medical evidence called in the trial was from Dr James Leigh. The issue to be determined is whether Amaca has established that it is probable the exposure that I have found to dust and fibres from Seltsam’s products was a cause of the plaintiff’s mesothelioma.
Dr Leigh was called by Amaca. Seltsam did not adduce medical evidence. Dr Leigh’s evidence-in-chief was constituted by the tender of a report he had prepared for these proceedings.[17] The relevant effect of his evidence-in-chief is as follows:
[17]Evidence D1 J. Dr Leigh made two minor corrections to the report T181. Dr Leigh was initially instructed by the plaintiff’s solicitors.
· He is a consultant Occupational Physician specialising in occupational respiratory medicine and asbestos related disease;
· The plaintiff suffers from metastatic pleural mesothelioma diagnosed in April 2009;
· Based on materials supplied to him by the plaintiff’s solicitors, the plaintiff was exposed to asbestos by way of his father (through his work clothes between 1961 and 1978, and when shaking and drop sheets), by accompanying his father to work sites as a small child and then later assisting his father at work, and by demolishing the family’s back sunroom and shed in approximately 1974;
· It is likely that the plaintiff was exposed to chrysotile, chrysotile/tremolite, crocidolite, and amosite;
· All exposure, recalled and unrecalled or unrecognised, would have contributed cumulatively to the risk of mesothelioma;
· The detail available was insufficient to make any reliable quantitative estimate of exposure;
· 47 of 3956 cases on the Australian Mesothelioma Register[18] gave as their only exposure living with or washing clothes of an asbestos or asbestos products worker. 32 litigation cases in the United States between 1990 and 2008 were documented where the only exposure was home contact with family members who had received occupational exposure. Dr Leigh cited other similar examples of incidental exposure;
[18]Australian Mesothelioma Register 1/1/86-31/12/01.
· Generally there is a dose/response relationship between asbestos exposure and mesothelioma risk, but the threshold is unknown and recent quantitative studies have shown it to be less than 0.15fiber/yr/ml;
· The current consensus view is that asbestos is involved in both the initiation phase and the promotion/proliferation phase of mesothelioma tumour development;
· “All cumulative exposure to asbestos in an individual case must be considered to play some part in causation”.[19] Exposure initiates cancer cells, promotes the development of initiated cells and promotes the proliferation of altered cells.
[19]Exhibit D1 J, pg 6.
The recording of the cross-examination of Dr Leigh was hampered by an audio malfunction. This was brought to counsel’s attention and a revised transcript of that cross-examination has been agreed to by the parties.[20] It draws upon what was recorded and notes made by the parties’ representatives which have been used to supplement the transcript where necessary. It is agreed by the parties that the revised transcript is a sufficiently accurate representation of the cross-examination that it can safely be relied upon. I am grateful to both parties for adopting this sensible course.
[20]I annex the revised transcript to these reasons.
In cross-examination, Dr Leigh accepted that injury starts to occur at the time of inhalation of the dust fibre but that the tumour does not start until many years later.[21] He eschewed the “single fibre theory” and said that it was the cumulative effect of all exposures that was responsible for malignant transformation:
[21]T 182, T
…..you cannot exclude the possibility that all fibres are involved in initiation and promotion.[22]
[22]T 184.3, T185.1ff
Whilst accepting that he could only express it in these negative terms, Dr Leigh also expressed it positively:
All of them (exposures to asbestos fibres) have a cumulative effect.[23]
[23]T 184.18
When asked about why the detail provided to him was insufficient to make any reliable quantitative estimate of exposure, Dr Leigh said:
…..all exposure would have had some effect.[24]
In answer to a question from me, Dr Leigh confirmed that he was talking about a cumulative contribution to the illness, not the risk of illness.[25] Dr Leigh agreed that not every exposure leads to mesothelioma and that the body has some biological mechanisms to counter those exposures, however, he also observed that:
….all (exposures) play a part in causation, you cannot single out any one.
Dr Leigh confirmed this on a number of further occasions. Additionally, he opined that an accumulation of exposures increased the risk of contracting mesothelioma.[26] In cross-examination, Dr Leigh explained that the concepts of risk and cause were inter-related and otherwise stood by the opinions on causation offered in his statement.
[24]T 186.7
[25]T 186.28ff
[26]T 194-195
I take the view that I ought to accept Dr Leigh’s evidence. It is the only expert medical evidence in these contribution proceedings; I consider Dr Leigh’s opinion of the ‘cumulative’ nature of causation to have been largely unaffected by cross-examination. I am reinforced in the view that I ought accept Dr Leigh’s evidence from the failure by Seltsam to call any evidence on this issue. Seltsam were granted leave to obtain an expert opinion on causation.[27] It seems to have obtained that opinion[28] or at least considered obtaining such an opinion from Dr Streeton. Whilst a selective reading of Dr Leigh’s cross-examination might support the conclusion that a minor exposure could have caused mesothelioma, but it could not be safely concluded on balance that it did, I consider that upon a proper reading of the totality of Dr Leigh’s evidence (which relevantly I have either paraphrased or quoted), his opinion is firmly to the effect that all exposures, however minor, are causative of the plaintiff’s mesothelioma. I accept this opinion.
[27]T 114.20 ff
[28]T 115.21-T116.2
Conclusion - Entitlement to Statutory Contribution
Amaca has established against Seltsam, exposure, duty, breach of that duty and causation. Amaca has therefore established that if the plaintiff had proceeded against Seltsam he would have succeeded. Contribution is the only remaining issue.
Apportionment of responsibility
Section 24(2) of the Wrongs Act 1958 provides as follows:
‘(2) Subject to subsections (2A), in any proceedings for contribution under section 23B the amount of the contribution recoverable from any person shall be such as may be found by the jury or by the court if the trial is without a jury to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the jury or the court if the trial is without a jury 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.”
In measuring the apportionment of responsibility, I must consider the respective culpability of both parties[29] and the relative importance of the acts of either party in causing the damage.[30] Ultimately, there is no mathematically precise means by which apportionment can be determined. “The tasks involve matters of proportion, balance and relative emphasis and are, in this regard, similar to the exercise of a broad discretion.”[31]
[29]That is the degree of departure of each of them from the standard of care of the reasonable person.
[30]Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532-3; Wynberger v Hoyts Corp Pty Ltd (1977) 149 ALR 25; followed in Victoria in Alcoa Portland Aluminium Pty Ltd v Husson (2007) 18 VR 112 at [83]-[88] per Chernov JA with whom Neave JA agreed at 95.
[31]Alcoa Portland Aluminium Pty Ltd v Husson (2007) 18 VR 112 at [86].
Respective Culpability
It is impossible, on the evidence before me, to distinguish between the parties on their respective culpabilities. Both manufactured asbestos products. Both admit they breached their respective duties of care owed to the plaintiff. Both were large companies commanding in total (as at 1977) nearly 100% of the Australian market for asbestos cement cladding products. I am unable to say that the departure from the expected reasonable standard of care was any greater by Amaca than Seltsam, or vice versa.
Relative Importance of the Acts of the Parties
Amaca contend that there is no basis to distinguish between it and Seltsam on this issue. The evidence establishes exposure to both products and, it was submitted, there was not “a satisfactory foundation for modelling proportional contribution.” Mr Watson argued that I ought follow the same reasoning process as was adopted by the New South Wales Court of Appeal in EM Baldwin & Sons Pty Ltd v Plane,[32] which he contended was “right on point.” I regard that decision as confined to its peculiar facts.[33] It is not a statement of principle that in cases where precise contributions cannot be determined between tortfeasors the apportionment of liability must be equally shared.[34]
[32](1998) 17 NSWCCR 434.
[33]Where successive employers exposed the plaintiff to differing asbestos products with differing toxicities over man years.
[34]James Hardie & Co v Roberts & Anor [1999] NSWCA 314 (13 Sep 1999); Podrebersek v Australian Iron & Steel Pty Ltd (1985) ALJR 492.
Whilst the evidence is incomplete, I consider there is a satisfactory foundation for modelling proportional contribution. In order to do so, it is necessary to revisit and summarise my findings on exposure:
A Definite Amaca Exposure
(1) Indirect exposure. All sheeting purchased by Giuseppe Berengo between 1961 and 1978 was purchased from John Stone and was manufactured by Amaca. Whenever Giuseppe Berengo was required to replace sheeting (save at Commonwealth Hostels premises) he used this sheeting. He would saw, rasp and file the sheeting. This would involve Amaca-sourced asbestos dust and fibres lodging on his clothing and work equipment, including drop sheets, thus indirectly exposing the plaintiff through personal contact with his father and his father’swork equipment.
(2) Direct exposure. The plaintiff was directly exposed to Amaca manufactured asbestos dust and fibres when he accompanied his father to work and when his father was replacing asbestos sheeting with John Stone sourced products. The plaintiff attended work with his father, both as a child and as an adolescent, when he actually performed some work himself. This was at both private residences and commercial properties such as petrol stations.
B Definite Seltsam Exposure
(1) Indirect exposure. This arose either from the plaintiff’s personal contact with his father’s work clothes , or his contact with his father’s equipment, and occurred only when his father had been replacing in situ sheeting with new sheeting at the Commonwealth Hostels jobs. The only exposure that can be attributed to Seltsam is in connection to the dust and fibres emanating from the new sheeting.
(2) Direct exposure. There was no direct exposure that can be attributed to Seltsam.
C Unidentified Exposure
The plaintiff’s exposure to asbestos dust and fibres from an unidentified manufacturer arose as follows.
(1)Indirect exposure. This exposure arose either from the plaintiff’s personal contact with his father’s work clothes or equipment between the period 1961-1978. It relates to asbestos dust and fibres emanating from existing in situ asbestos sheeting that was either worked upon or replaced at all his father’s work places including private homes, commercial premises and Commonwealth Hostels.
(2)Direct exposure. This exposure arose from the plaintiff’s attendances at his father’s places of work both as a child and as an adolescent, in the circumstances described above and relates to exposure to dust and fibres from all existing in situ sheeting whether worked upon or replaced.
Apportionment-Conclusions
A large proportion of the plaintiff’s exposure to asbestos dust and fibres cannot be attributed to either Seltsam or Amaca. In reaching conclusions on apportionment, I take no account of this exposure. However, I have attempted to compare the respective contributions to exposure by both Seltsam and Amaca. I consider the exposure to Amaca-manufactured dust and fibres to be significantly greater than Seltsam. The Amaca exposure was both direct and indirect in the ways that I have found. It occurred between 1961 and 1978. The demonstrable Seltsam exposure was exclusively indirect and occurred only in very limited circumstances; that is, when the plaintiff either came into close contact with his father’s work clothes or equipment, after his father had been working with replacement sheeting at a Commonwealth Hostels site. It will be recalled that Mr Giuseppe Berengo thought he worked at Commonwealth Hostels sites from 1961 to 1967, for between two to three months per year, but not full-time. Whilst I am satisfied that there was some demonstrable Seltsam exposure, I consider that when assessed beside the demonstrable Amaca exposure, its contribution to the total demonstrable exposure was relatively insignificant.
I consider that it is impossible to express the relative contributions of the parties to the plaintiff’s exposure with any more precision. The identity of the manufacturer of most of the dust and fibres that the plaintiff was exposed to cannot be ascertained from the evidence. Of the exposures that can be traced to a manufacturer, I consider that Amaca was by far the greater contributor. There is not an issue in this case as between the respective toxicities of the Seltsam and Amaca products (such as in Plane).
As I have indicated, I cannot distinguish between the parties on the issue of respective culpability. The only distinction I can draw is that outlined in paragraphs 48 and 49. I consider that Amaca was by far the greater contributor to the various identifiable exposures that caused the plaintiff’s illness. I consider that Seltsam ought to contribute 7½% towards the damages that Amaca is liable to pay the plaintiff.
5
0