Eraring Energy v Bradford Insulation Industries Pty Ltd
[2005] NSWDDT 26
•06/08/2005
Dust Diseases Tribunal
of New South Wales
CITATION: Eraring Energy v Bradford Insulation Industries Pty Ltd [2005] NSWDDT 26
PARTIES: Eraring Energy
Bradford Insulation Industries Pty LtdMATTER NUMBER(S): 142 of 2003/1
JUDGMENT OF: Curtis J
CATCHWORDS: :- Cross Claims - Contribution
DATES OF HEARING: 30 and 31 May and 1 June 2005
DATE OF JUDGMENT:
06/08/2005LEGAL REPRESENTATIVES: FOR Cross Claimant: Mr J Gracie with Ms T Moisidis instructed by Goldrick Farrell Mullan
FOR Cross Defendant: Mr GM Watson SC instructed by Makinson and d'Apice
JUDGMENT:
Dust Diseases Tribunal of New South Wales
Matter Number DDT 142 of 2003/1
Re: George Bower
Eraring Energy
(Cross Claimant)
v
Bradford Insulation Industries Pty Ltd
(Cross Defendant)
8 June 2005
JUDGMENT
CURTIS J
1. A plaintiff, George Bower, was employed by the Electricity Commission of New South Wales as a draughtsman between 1961 and 1986. In 1999 he contracted mesothelioma as a result of his exposure to asbestos fibres, generated by construction and maintenance work, in power stations at Balmain, White Bay, Pyrmont, Liddell, Vales Point, Munmorah and Bunnerong.
2. On the 17th of April 2003 Mr Bower issued a statement of claim against Eraring Energy, successor to the liabilities of the Electricity Commission of New South Wales, claiming damages in respect of his condition. On 21st of July 2003 this claim was settled upon terms pursuant to which Eraring Energy paid to Mr Bower the sum of $300,000 inclusive of his costs.
3. Eraring Energy claimed contribution from various contractors and suppliers of asbestos materials including Bradford Insulation Industries Pty Ltd (BI) and has recovered by settlement $173,515 in total. Bradford Insulation Industries Pty Ltd has not yet contributed. In the present action Eraring Energy seeks from BI contribution to its net liability of $126,483.
4. The basis of the claim is that between 24th September 1964 and 30 June 1974 BI purchased asbestos insulation materials manufactured by James Hardie and Coy Pty Ltd and CSR Ltd and resold these materials to construction and maintenance contractors whose work at Vales Point and Munmorah liberated asbestos fibres in the atmosphere where Mr Bower worked.
5. Bradford Insulations concedes that it supplied asbestos materials for the construction and maintenance of the power station at Munmorah only. It concedes that it owed a duty to warn Mr Bower and that it was in breach of this duty. It contends however that its culpability as supplier was far less than that of Eraring Energy as employer and that, in any event, the causal contribution of those fibres which emanated from the products it sold was de minimis when compared to Mr Bower's total exposure to asbestos.
Mr Bower's History of Exposure
6. For six months between 1962 and 1963 Mr Bower was stationed at Bunnerong Power Station. He spent approximately one third of his time in the power station and two thirds in the office. Asbestos dust permeated the atmosphere within the power station and also within the office.
7. For 12 months between 1963 and 1964 Mr Bower was stationed at head office and spent 10 per cent of his time at Balmain and White Bay power stations.
8. For 12 months between 1964 and 1965 Mr Bower was stationed at Pyrmont power station. Again asbestos fibres permeated the atmosphere including that of his office. He spent approximately two thirds of his time in his office and one third in the power station.
9. For 18 months between early 1965 and, say, June 1966 Mr Bower was against stationed at head office. He spent 10 per cent of his time visiting power stations at Pyrmont, Vales Point, Munmorah, Liddell, White Bay and Balmain.
10. From, I shall assume June, 1966, until 1986, Mr Bower visited power stations for the specific purpose of installing fire protection for the transformers. In his affidavit he does not directly say that he was exposed to asbestos liberating activities during this time and from his limited description of the work I think it improbable that he was during that time exposed to the inhalation of asbestos fibre.
Preliminary Observations
11. Mr Bower was a draughtsman who did not work with asbestos materials. His was bystander exposure occurring when he was present at power stations for the purpose of taking measurements or inspecting faults. I have assumed that the concentration of airborne asbestos fibres was similar within each power station.
12. Eraring Energy concedes that no exposure to asbestos products supplied by BI occurred at Balmain, White Bay, Pyrmont, Bunnerong or Liddell. It further concedes that BI did not supply asbestos materials for the construction of boilers and turbines numbers one to three at Vales Point. The last of these three was commissioned sometime in 1965. Number four was commissioned at sometime in 1966. There is no direct evidence that BI supplied asbestos products for the construction of this boiler, nor any evidence that there was no alternative source of supply. The limited evidence does not permit me to infer that the material used for the number four boiler probably came from BI.
13. Upon the evidence Mr Bower was exposed to asbestos fibre between 1962 and June 1966. The only exposure to products sold by BI was when he attended at Munmorah between June 1965, when lagging operations commenced on the construction of boiler number four, and June 1966 when his duties changed to fire protection.
Analysis of Weighted Exposure
14. Upon the available material the following calculations may be made:
Sites 1962 - 1963 Bunnerong 2 months within the power station 4 months in office discounted by 50 per cent 1963 - 1964 Head Office 10 per cent of 12 months 1964 - 1965 Pyrmont 4 months within the power station 8 months within the office discounted by 50 per cent 1965 - 1966 Head Office 10 per cent of 18 months Weighted Cumulative Exposure
15. Upon these calculations the products for which BI was responsible contributed asbestos fibres to the atmosphere at Munmorah only, and that only for a 12 month period commencing in June 1965. During that year Munmorah was one of 6 power stations regularly visited by Mr Bower. His cumulative exposure to all asbestos products at Munmorah amounts to one sixth of one tenth of 12 months, that is 0.2 months in a total weighted exposure of 15 months.
16. There is evidence that contractors at Munmorah used asbestos products which were not supplied by BI. It is reasonable to assume that products supplied by BI contributed not more than 80 per cent to the concentration of asbestos fibres within the atmosphere of the power station. The causal contribution of BI products to Mr Bower's cumulative asbestos burden on these calculations reflects a ratio of 0.16 months to 15 months, that is about one per cent. Because earlier exposure is generally regarded as causally more potent (cf the Peto formula), I believe the real causal contribution to be less than one per cent. Such a contribution I regard as de minimis.
17. Verdict and judgment for the cross defendant.
Mr J Gracie with Miss T Moisidis instructed by Goldrick Farrell Mullan appeared for the cross claimant
Mr GM Watson SC instructed by Makinson and d’Apice appeared for the cross defendant
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