Jones v Southern Grampians Shire Council & Anor
[2012] VSC 485
•24 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6125 of 2011
| DEBRA ANN JONES | Plaintiff |
| v | |
| SOUTHERN GRAMPIANS SHIRE COUNCIL | First Defendant |
| and | |
| AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) | Second Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 11, 12 and 15 October | |
DATE OF JUDGMENT: | 24 October 2012 | |
CASE MAY BE CITED AS: | Jones v Southern Grampians Shire Council & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 485 | |
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NEGLIGENCE – Asbestos-related illness – Contribution and apportionment between employer and manufacturer / distributor of asbestos products.
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APPEARANCES: | Counsel | Solicitors |
| For the First Defendant | Mr D Curtain QC with Mr C Winneke | Ligeti & Co |
| For the Second Defendant | Mr G Watson SC with Mr R Dyer | Thomsons Lawyers |
HIS HONOUR:
Introduction
Debra Jones died on 24 April 2012 as a result of contracting mesothelioma. The source of the asbestos, which resulted in her contracting this dreadful disease, was dust from the work clothes of her husband Peter.
Before Mrs Jones died, she settled her claim against James Hardie,[1] the manufacturer of the asbestos cement pipes that her husband worked with during the mid-1980s. Judgment was entered against James Hardie for $900,000 plus costs. It now seeks contribution from her husband’s employer, the Shire of Dundas,[2] under Part IV of the Wrongs Act 1958 (Vic).
[1]James Hardie Pty Ltd (“James Hardie”), now Amaca Pty Ltd the second defendant; to avoid confusion and given the references in the trial referred to in this judgment as James Hardie.
[2]Now part of the Southern Grampians Shire Council, the first defendant (“the Shire”).
Not surprisingly, James Hardie does not dispute that it is liable for Mrs Jones’ injury. The Shire, totally unrealistically, denies any liability. The real issue in the case is determining the just and equitable apportionment of the Defendants’ respective responsibilities for Mrs Jones’ injury.
I have determined that the appropriate apportionment is 65% against James Hardie and 35% against the Shire. My reasons follow.
A précis of the case
James Hardie manufactured and distributed high pressure and storm water pipes made of asbestos cement under the name ‘Fibrolite’. These pipes were commonly used throughout Australia up to the mid-1980s. None or no adequate warnings were given by James Hardie to the Shire, one of its customers, concerning the risk of occupational exposure of its employees. Nor were any warnings given to the Shire or Mr and Mrs Jones of risks to persons with a non-occupational exposure to dust from its products.
The Shire was a small rural municipality effectively adjacent to the City of Hamilton. Mr Jones worked for the Shire from 1984 to 1994 and Mrs Jones alleged that she was exposed to asbestos dust during that period. The Shire employees who worked with the Fibrolite pipes were given no warnings or instructions by the Shire concerning their safe handling and were not provided with any safety apparatus, apart from paper masks, until the late 1980s. Nor were any warnings given concerning the exposure to dust given off from the clothing of Shire employees who worked on the pipes.
James Hardie asbestos cement pipes
Up until at least the mid-1980s, James Hardie manufactured pipes under the name ‘Fibrolite’, composed of asbestos (about 15%) and cement (about 85%).[3] Relevant to this case are two Fibrolite products: (a) asbestos cement water pipes which were used by the Shire as storm water or drainage pipes; and (b) asbestos cement high pressure pipes which were used by the Shire for water mains in the towns of Cavendish and Tarrington.
[3]Exhibit A8.
Mr Kevin Porter, the Shire engineer at the relevant time said (and I accept) that the asbestos cement pipes were obtained directly from James Hardie.[4]
[4]T 177-178.
In the late 1970s and early 1980s, James Hardie published brochures relating to the use of both types of Fibrolite pipe[5]. Included within each publication were instructions as to the cutting of the pipes. In one of the brochures the following was said:
[5]Exhibit A6, A7.
Under certain circumstances breathing asbestos dust can damage health.
In another brochure, under the heading “Dust procedures” it said the following:
In cutting asbestos pipes care should be taken to avoid the production of dust.[6]
This warning was accompanied with advice as to methods of dust minimisation. For instance:
If using a powered field lathe the surface to be machined should be kept wet to reduce the generation of airborne dust.[7]
[6]Exhibit A5.
[7]Exhibit A5.
The question of what, if any, warnings accompanied or were attached to the pipes remains somewhat of a mystery. Copies of labels or stickers containing warnings apparently produced by James Hardie at an unknown time were tendered,[8] as was an answer given by it to interrogatories administered by Mrs Jones’ solicitors.[9] James Hardie’s solicitor, Ms Bradey, gave evidence, which I accept, that the answer to the interrogatory had been incorrectly prepared. The answer, therefore, can be put to one side. In the course of Ms Bradey’s evidence, a document was tendered which set out James Hardie’s standard admissions to questions concerning warnings associated with the distribution of asbestos cement pipes.[10] It asserted that from 1977, instructions and warnings were given in brochures relating to the hazards of dust produced by products containing asbestos, which included dust minimisation techniques. It also asserted that warning labels[11] were affixed to the pipes, stating as follows:
[8]Exhibit A5.
[9]Exhibit SGS2.
[10]Exhibit A9.
[11]Exhibit A5.
CAUTION: Contains asbestos fibres. Avoid creating dust. Breathing asbestos dust may cause serious damage to health including cancer. Smoking greatly increases the risk. In accordance with NH&MRC recommendations.
Fibrolite AC pipes manufactured by James Hardie & Coy Pty Limited contain a small percentage of asbestos bound firmly into it by cement and other materials.
When cutting or drilling follow these simple safety rules:
1. When cutting or drilling work in a well ventilated area.
2.Use tools designed for cutting asbestos cement pipes such as a Wheeler pipe cutter.
3.If using a power saw, use one with a dust suppression attachment not as water cooled diamond tipped blade. Although NOT RECOMMENDED, if an abrasive type disk is used, respiratory equipment such as a 3M8710 mask should be worn.
4.Refer to booklet on “Recommended work practices for AC pipes” for an additional detailed requirements.
5. Dispose of any waste and dust in a safe manner.[12]
The labels tendered in the course of the trial[13] replicated this statement with the following addition:
NOTE: When installed AC pipes present no known risk to health.
[12]Exhibit A9.
[13]Exhibit A5.
It was also asserted by James Hardie that it provided stencilled warnings conforming with the 1981 National Health and Medical Research Council[14] recommendations which were affixed to the asbestos cement pipes from approximately 1982. The evidence supporting stencilling of warnings came from a James Hardie directors resolution in March of that year.[15] However, it is to be noted that there is no reference in the standard admissions[16] document that stencilled warnings had being given at any time although it may be that the word “fixed” used in the document covers stencilling.
[14]“NH & MRC”.
[15]Exhibit A5.
[16]Exhibit A9.
Whatever the true situation, Mr Jones denied receipt of any warnings attached to or accompanying the pipes.[17] Mr Porter also denied seeing any James Hardie brochures or receipt of warnings or advice from the company.[18] I accept their evidence.
[17]T 89.
[18]T 174-175, T 183.
The exposure of Peter Jones while employed by the Shire
Mr Jones commenced employment with the Shire in December 1983 and initially worked as a storeman. From mid-1984 to 1994 (the time of the Shire amalgamations) he worked as a plant operator.[19] It was during this period that he was exposed to asbestos as a result of cutting asbestos cement pipes.
[19]T 15-17.
Three witnesses gave evidence as to the exposure of Mr Jones to asbestos dust fibres; Mr Jones himself, Mr Mutch, a fellow employee and, to a very limited extent, Mr Porter, the Shire engineer. The following was not in issue:
· the Shire used Fibrolite storm water pipes and high pressure pipes;
· that Mr Jones was exposed to asbestos dust and fibres in the course of working on storm water pipes – although the degree of exposure was a real issue;
· that no warnings or instructions were given to Mr Jones about asbestos exposure by either James Hardie or the Shire;
· that Mr Jones was not provided with protective equipment other than a paper mask; and
· that most of the work on the storm water pipes involved work on concrete, not Fibrolite, pipes.
The contest related to both the nature and frequency of Mr Jones’ exposure to asbestos, particularly when working on the high pressure pipes.
Repair or replacement of the storm water pipes involved the use of both 12 and 15 inch Fibrolite pipes – larger pipes were made of concrete. Repair comprised up to 80% of the work, the balance being pipe replacement.[20] Whether it was a repair or replacement job depended on the damage to the particular pipe which could be located under crossovers and in culverts under roadways throughout the Shire.[21] The Fibrolite pipes, because of their weight, were easier to handle and to work with than the concrete pipes. However, this meant that their use was restricted in heavy traffic areas. It was unusual – although it did occur on the odd occasion – for a Fibrolite pipe to be used under a roadway because of the amount of traffic, particularly if there was limited cover for the pipe.[22]
[20]T 29.
[21]T 29.
[22]T 30.
Mr Porter confirmed that Fibrolite storm water pipes were used in repair or replacement work and that the vast majority (about 80%) of repair or replacement work involved the use of concrete pipes.[23]
[23]T 172-174.
The work on the Fibrolite pipes, in the sense of the pipes being cut to size, involved the use of an angle grinder and took place either on site or at the depot where pipes were readily available.[24] The cutting process gave off considerable amounts of dust .
[24]T 30-31.
In substance, this part of Mr Jones’ account was not challenged by the Shire, however, it hotly disputed the frequency of the exposure, which I shall return to in a moment.
The second aspect of Mr Jones’ exposure was work on the town water mains – using Fibrolite high pressure pipes – which he described as infrequent and confined to the townships of Cavendish and Tarrington. Mr Jones said that he was exposed to asbestos dust in two ways: working in a trench which had been dug to get access to the water line and above ground when cutting the pipe to replace the damaged pipe. There was a direct conflict here between Mr Jones and Mr Mutch, a fellow employee, as to Mr Jones’ exposure to asbestos dust both in the trenches and above ground.
Mr Jones said that when he carried out his work it was in the company of Mr Mutch whom he described as a plumber and, in effect, the man in charge of the operation. Mr Mutch worked for the Shire between 1984 and 1989.[25] Whilst he agreed that he and Mr Jones worked together on the high pressure pipes, he disagreed as to the nature of the exposure experienced by Mr Jones. Whilst he accepted that he would often be accompanied by a backhoe operator[26] and that Mr Jones assisted him, he disputed Mr Jones’ description of the work and its frequency.[27] Mr Jones, according to Mr Mutch, did not work on cutting pipes whilst in a trench.[28] That was done by Mr Mutch alone,[29] as was the cutting of any pipe above ground,[30] although he accepted that it was possible that Mr Jones was exposed to dust with the work above ground if he stood downwind of the work site. The work on the mains was mainly carried out at Cavendish and involved work on a maximum of five leaks a year.[31] He thought, although he could not be definite, that in total Mr Jones only helped out on about ten occasions.[32] He said that when working in the trenches, Mr Jones’ exposure above ground was a lot less than his own, describing it as “minimal”.[33] He also thought that there would only be limited exposure to others when the work was carried out at ground level as common sense dictated that a fellow worker would not stand downwind when cutting was in progress.
[25]T 188.
[26]T 192.
[27]T 194.
[28]T 198.
[29]T 198.
[30]T 201.
[31]T 203-204.
[32]T 194.
[33]T 211.
Mr Mutch described the dust given off from the cutting of the pipes as follows: “Some of the dust would become like a mud grey powder. It – it will spray all over you”.[34]
[34]T 199, see also T 211.
Mr Mutch recalled using a paper mask from the mid-1980s which he used to alleviate his asthma; no instructions were given by the Shire as to its use or as to any dangers associated with working on the pipes.[35] Subsequently, in around 1987, Mr Ray Vickery, a supervisor, instructed him to wear white overalls and to use a dual filter mask.[36] The overalls would be covered in dust and were thrown away at the end of each working day. The masks were worn at the time of cutting the pipes.[37] No explanation was given as to the risks associated with asbestos, although Mr Vickery did tell Mr Mutch to be careful cutting the pipes.[38]
[35]T 208-209.
[36]T 213-214.
[37]T 214, T 216.
[38]T 215.
Mr Jones, whose evidence was not challenged on this point, was only provided with a paper mask[39] if he asked for it.[40]
[39]T 40
[40]T 28.
Where there is a conflict on the question of exposure when working on the Fibrolite high pressure pipes, I prefer the evidence of Mr Mutch over that of Mr Jones. Whilst I regard Mr Jones as essentially an honest witness, I think that the trauma he has been through may have skewed, to some extent, his recollection of the nature of his exposure. Indeed, there are inconsistencies between the out-of-court accounts given by him as to his exposure, as disclosed in his wife’s statement of claim and in the history given to the industrial hygienist, Mr Kottek, to the account given in Court. In particular there is no mention of the work on high pressure pipes being the source of the asbestos exposure. I readily accept that at the time that this case was being prepared Mr Jones would have been under a period of great stress, but it still leaves inconsistencies of some magnitude in certain aspects of his evidence. On the other hand, Mr Mutch was a forthright witness whose evidence was compellingly acceptable.
In summary, I accept that it is probable that there was exposure to asbestos dust and fibres in the course of working with Fibrolite storm water pipes either in the course of their replacement or repair. I also accept that there was an exposure to asbestos dust and fibres whilst working on the Fibrolite high pressure pipes, but not in the confined space as alleged but rather in a limited way when Mr Jones was exposed to dust and fibres in the open air and in the proximity of the cutting of the pipes.
There remains one further aspect of Mr Jones’ exposure to consider, namely, its frequency.
Mr Jones said that he worked on the backhoe for approximately nine months of the year and estimated that maintenance of storm water drains occurred between 150 and 160 times a year[41] compared to the high pressure pipes work which might only be a handful of times a year.[42] As he readily acknowledged, the vast majority of the storm water drainage work involved the use of concrete pipes. He was cross-examined on the basis that this description was inconsistent with two accounts given out of court, which I have already mentioned. In the statement of claim, which must have been the subject of instructions given by Mr Jones, the estimate in relation to work on Fibrolite storm water pipes is “about 50 times during the period”, the period being between 1985 and 1994. To Mr Kottek, the industrial hygienist, Mr Jones said there were 50 occasions in which he cut pipes “over the years” with the exposure occurring at the depot.[43]
[41]T 38.
[42]T 39.
[43]T 131.
Mr Jones made the point on a number of occasions that the storm water maintenance work primarily involved concrete pipes and only now and then involved Fibrolite pipes.
I do not think that in relation to the work on storm water pipes there are the significant inconsistencies between Mr Jones’ evidence in chief and the accounts given out of court as suggested by counsel for the Shire. The reality is, as acknowledged by Mr Jones, that there was limited exposure because of the primary use of concrete pipes. As I have outlined, Mr Jones accepted that it was relatively rare for him to work on the high pressure pipes. Indeed, such work may well have been limited to the ten or so occasions as suggested by Mr Mutch.
The other imponderable is that of the cessation of the use by James Hardie of asbestos in its pipes. Although this was said to have occurred in the 1980s there was no evidence of any precision to establish the date. In any event the evidence demonstrated that old pipes were kept at the depot and used on an as required basis.
It is not possible, in my opinion, to allocate with any mathematical precision the number of times Mr Jones was exposed to asbestos dust over the period from 1985 to 1994 other than it was irregular and infrequent. But nonetheless it involved both direct exposure to asbestos dust when working on storm water pipes and indirect exposure when exposed to the dust given off by machines operated by fellow workers, such as Mr Mutch.
Mr Jones said, and I accept, that if he was exposed to asbestos dust it would stick to his clothes, which in the summer consisted of footy shorts and in the winter usually consisted of tracksuit pants with a top.
I also accept Mr Jones’ evidence that no warnings or instructions were given by the Shire or James Hardie as to the risks posed by asbestos exposure or minimisation techniques.
The exposure of Mrs Jones
Mr and Mrs Jones commenced living together in Hamilton in 1985, initially in a flat on Mt Bainbridge Road, then in Fyfe Street. From about 1989, when Mr Jones was 26 years of age, they moved into a house on Rippon Road.[44]
[44]T 32, T 37.
Mr Jones’ evidence, which I accept, was that his wife was exposed to asbestos through the dust which accumulated on his work clothes in the following ways:
· when she was a passenger or a driver in a car in which he was an occupant and he had come from work;[45] and
· more significantly, in the course of the washing of his work clothes on, in effect, a daily basis.[46] The work clothes were washed separately by Mrs Jones and were usually covered in dust. The dust went everywhere when shaken by Mrs Jones.[47] At Rippon Road, the washing was carried out in a small laundry adjacent to the kitchen which had one small window and a door leading into the kitchen and one leading outside to the backyard.[48] Although his clothes in the summer might only amount to a pair of footy shorts, at other times singlets and overalls may have required laundering.
[45]T 35.
[46]T 39.
[47]T 38.
[48]Exhibit A1.
Is the Shire liable for Mrs Jones’ mesothelioma?
The Shire did not dispute that it owed Mrs Jones a duty of care. Although the primary attention of the Shire’s council was directed towards apportionment, it was not conceded that the Shire had breached the duty of care that it owed to Mrs Jones.
The consideration of this issue raises three discrete issues which can be dealt with compendiously. But before I do so, it is convenient to first identify the nature of the risk. It is helpful to paraphrase what was said by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar & ors:[49] the risk was letting Mr Jones go home on occasions with clothing laden with asbestos dust that could be inhaled by anyone exposed to that dust.
These three issues are:
(a)What did the Shire know of the risks posed to Mrs Jones by reason of Mr Jones’ exposure to asbestos dust and fibres in the course of his employment?
(b)What, if anything, should a reasonable employer in the position of the Shire have known of such risks during the relevant period between 1985 and 1991?
(c)What, if anything, should have been done by the Shire to reduce or eliminate the risk posed to Mrs Jones?
[49](2009) 259 ALR 616 [130] (“Stavar”).
The evidence of Mr Porter, which I accept, was that he knew nothing of the risks posed by asbestos, to either workers or persons handling dust laden clothes, until the late 1980s . At that time, his knowledge was rudimentary and came from the media,[50] that it was dangerous and posed a risk to workers. He had received no information from James Hardie or from the Municipal Association of Victoria, of which the Shire was a member,[51] or any medical officer of the Shire (who shared a medical officer with the City of Hamilton) as to the dangers of asbestos to either workers or their relatives. It can, however, be inferred that from at least the late 1980s onwards, the Shire became aware of some of the risks to workers using asbestos cement products. Mr Mutch said that in about 1987 he was provided with protective clothing and face masks when carrying out work on the pipes although no explanation for the provision of these items was apparently given.[52] Mr Porter confirmed the provision of disposable overalls in the late 80s, which he understood to be directed to potential asbestos exposure when working on pipes.[53]
[50]T176, T 181.
[51]T175.
[52]T 208-209.
[53]T 179-180.
By 1985 there was ample evidence available to the Shire, if it had looked, that asbestos dust and fibres posed a hazard to the health not only of its employees but also those who came into contact with clothing doused with asbestos dust and fibres. It is only necessary to refer to a couple of publications which, if sought out, would have alerted the Shire to the risk both generally of asbestos fibres and specifically to the risks posed to others coming into contact with work clothing.
Twenty years prior to Mr Jones coming into contact with asbestos dust, the British Journal of Industrial Medicine published an article by Muriel Newhouse and Hilda Thompson which detailed the results of research involving the domestic exposure of 76 patients with mesothelioma who provided their full occupational and residential histories. 40 of the 76 patients had occupational or domestic exposure and the article made it clear that there was a risk of developing mesothelioma from domestic exposure to asbestos on the clothes of a household member working with asbestos.
Although there were references from as early as the 1920s concerning the risks posed to family members by dusty clothing being taken home,[54] there was a growing body of medical evidence published between 1964 and 1985 dealing with the risks posed by asbestos exposure and particularly that of low dose exposure being productive of mesothelioma. These were identified in a report of Mr Kottek[55] and need not be enumerated upon here. A number of the articles appeared in widely circulated and prestigious medical journals such as the British Journal of Industrial Medicine, the British Medical Journal and the New England Journal of Medicine.
[54]Exhibit A3, Appendix A.
[55]Exhibit A3, Appendix B.
Of particular significance in this country was the report published by the Commonwealth Department of Health in 1981 from the 91st session of the NH & MRC which included a report on “The Health Hazards of Asbestos”. Included in the report were recommendations concerning the use of building products and including water, drainage and flue pipes. Under the heading “Basic Requirements for Working with Asbestos Cement Building Products”, the following was said:
Care must be taken to avoid inhalation of dust during all work processes. Particular care must be taken when working in confined or enclosed areas and during the collection and disposal of dust and waste product.
When dust concentrations are expected to be above the prescribed levels, efficient local exhaust ventilation applied at the source of dust generation should be the first consideration. Where local exhaust ventilation is not possible, approved respiratory protection must be worn.
Persons not directly involved in a process generating high dust concentrations should be prevented from working in the area.
To avoid exposing the families of workers to a health risk, care must be taken to remove asbestos dust from work clothing with a vacuum cleaner.
Contaminated work clothing, though vacuumed, should, where practical, be laundered by the employer who may arrange for this to be done at a commercial laundry. The laundry should be advised of the hazards of asbestos and the need for caution in handling the clothing. (emphasis added)[56]
[56]Exhibit A5.
In 1984, interim guidelines were established by the National Consultative Committee on Occupational Health & Safety which went into considerable detail as to the occupational risks posed by asbestos and particularly the risks posed by the use of power tools on products containing asbestos.[57]
[57]T 107-108.
I am satisfied that, by 1985, the risk of Mrs Jones contracting a dust-related disease as a result of exposure to asbestos dust on her husband’s clothes was reasonably foreseeable. The risk was not far-fetched or fanciful.
I am also satisfied that the Shire, acting reasonably, should have made enquiries concerning the risks posed to its employees and, more relevantly for this case, their families as a result of the inhalation of asbestos dust and fibres. Remaining inert and mute, as it did, was not an option. It is no answer to contend that James Hardie or other organisations such as the Municipal Association of Victoria or the State or Commonwealth Governments[58] did not hand feed it information about these dangers. It employed over 30 people in outside work, a number of whom worked directly with products containing asbestos. It could have asked its own health officer for advice or sought the opinions of occupational physicians or a general practitioner practising in the Hamilton area. It could also, if it turned its mind to the issue, have sought advice from the State or Commonwealth governments, where information such as the NH & MRC guidelines undoubtedly would have been available.
[58]T 175.
The results of such enquiries would have alerted a reasonable employer to a number of steps that could have been taken to alleviate the risk posed to Mrs Jones. Here, the answer was simple and involved two aspects of the exposure of the Jones family. First, it could have endeavoured to reduce the amount of dust or fibres to which the clothing of Mr Jones was exposed. Essentially, this meant the provision of overalls and the wetting down where applicable of the dust given off by the use of the machinery that cut the pipes. Secondly, and more critically, an employer acting reasonably should not have allowed work clothes to be taken home for washing or laundering. There was no explanation as to why the steps taken in the late 80s to provide disposable overalls could not have been undertaken earlier. It is necessary to repeat the conclusion reached by Allsop P in Stavar (where the exposure to asbestos occurred between 1965 and 1991):
The obvious precaution was the provision of protective clothing not to be worn home and washed at home. This was not done.[59]
[59]Ibid [130].
I am satisfied, therefore, that there was a foreseeable risk of injury, not far fetched or fanciful, to Mrs Jones of which the Shire ought to have been aware. Its failure to take any of the steps I have identified constituted a breach of duty.
The evidence of Dr James Leigh as to the causal link between the work exposure and the contraction by Mrs Jones of mesothelioma was not disputed.[60] Causation is established.
[60]Exhibit A2.
The Shire is liable for Mrs Jones’ injuries and the remaining issue is that of apportionment.
Apportionment
Although the decision of the High Court in Podrebersek v Australian Iron & SteelPty Ltd[61] dealt with the question of contributory negligence, it is accepted that the principles involved in the apportionment exercise in such a case are to be applied in a case involving apportionment of contribution between tortfeasors:
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 comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.[62]
[61](1985) 59 ALR 529.
[62]Ibid 533.
Subsequently, in Macquarie Pathology Services Pty Ltd v Sullivan,[63] Clarke JA said, in an oft cited observation:
[T]he making of an apportionment involved a comparison of both culpability and of the relevant importance of the acts of the parties in causing the damage. To put it another way the court is concerned with considering relative blameworthiness and the relevant causal potency of the negligence of each party.[64]
[63](Unreported, New South Wales Court of Appeal, 28 March 1995).
[64]Ibid 19. See also BI (Contracting) Pty Ltd v The Myer Emporium Ltd [2005] NSWCA 305; Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25, 29; Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (2001) 53 NSWLR 626, 637.
Before turning to the considerations relevant to the apportionment it is important to keep in mind the general nature of the breach alleged against both defendants. The breach is of the duty owed to Mrs Jones, not Mr Jones, although Mr Jones’ exposure is relevant in the sense that it was the source of the consequential exposure of Mrs Jones to the asbestos dust.
I now set out the considerations relevant to the apportionment.
Responsibility of James Hardie
Source of the dust
There is no suggestion that the incriminated dust emanated from products other than those of James Hardie, which manufactured and distributed the products which produced asbestos dust and fibres inhaled by Mrs Jones. This is not a case where one needs to consider the effect of dust from another manufacturer.
Knowledge
James Hardie was in a unique position, perhaps only matched by other global large scale asbestos manufacturers, to have a real understanding of the health risks posed by exposure to asbestos. Such knowledge necessarily formed part of its commercial operations.
James Hardie had a wealth of actual knowledge concerning the risks associated with exposure to asbestos, particularly its relationship to mesothelioma. Its affidavit of document identifies well over 3,500 documents, many of which relate to the potential risks of asbestos exposure both to employees and end users. It held extracts from many medical journals concerning asbestos-related disease and the adverse effects of mesothelioma. Its own medical advisor, Dr S F McCullagh, in the 1960s, 1970s and 1980s provided notes and advice concerning asbestos exposure. It held copies of the relevant statutory regulations, both at State, Commonwealth and international levels, as well as observations from its officers as to the effects of those regulations. It is only necessary to refer to a couple of the documents held by it to appreciate the breadth of its knowledge: 1978 Medical Journal of Australia “15 Cases of Pleural Mesothelioma Associated with Occupational Exposure to Asbestos in Victoria”; 1978 The Lancet “Non-Occupational Exposure to Asbestos and Malignant Mesothelioma”; 1981 NH & MRC paper “The Medical Aspects of the Effects of the Inhalation of Asbestos”; 1984 Cancer Foundation of Western Australia “Asbestos: Just How Dangerous Is it?”.
Of particular significance here is a document that I have already referred to, the NH & MRC report in 1981 of the 91st session of the council which contained a report on the health hazards of asbestos. James Hardie held a précis of that report which included, as noted, specific advice concerning the risks posed to the families of workers by contaminated work clothing.[65] I am satisfied that James Hardie was aware, prior to 1985, of the risk of serious if not fatal injury to persons exposed to asbestos dust and fibres in the course of handling the clothing of workers in a domestic setting.
[65]Exhibit SGS-3,1222.
Warnings
Whilst I accept that James Hardie published brochures which alerted users of asbestos cement products to the need to minimise exposure to asbestos dust, the gravity of the health hazard was never sheeted home. I think there is force in the description by senior counsel for the Shire of the warnings as anodyne.
There is another problem with the warnings contained in the brochures: whether such documents ever reached the end user, in this case the Shire and its employees. No evidence was led by James Hardie as to the methods of distribution of the brochures or how they might be accessed by its customers. Mr Porter had not seen any warnings or brochures and he was not cross-examined by counsel for James Hardie in relation to the receipt of such brochures by the Shire.
I am not satisfied that the Shire received any warnings or advice contained in the brochures.
Further, there is no satisfactory evidence that any warnings as to health or the necessity to reduce exposure to dust either accompanied or were stencilled on the pipes supplied to the Shire. The production, without anymore, of stickers or labels and the minutes of the directors meeting concerning stencils simply demonstrates that such warnings may have been given. But the evidence does not go so far as to enable me to conclude that such information ever reached the Shire or, more importantly, the men exposed to the asbestos dust and their immediate supervisors. Mr Jones was unequivocal in his denial, which I accept, as I do the denial by Mr Porter .
Finally, there is the question of warnings concerning Mrs Jones’ potential exposure or, more accurately, the lack of such warnings. None were given to the Shire or Mr and Mrs Jones notwithstanding James Hardie’s knowledge of the risks as set out in paragraph [56]. In 1985, it would have been well within James Hardie’s means to circulate its customers (such as the Shire) with a comprehensive health bulletin dealing not only with the risks posed to those who worked on asbestos cement products but also those exposed to dust in a non-occupational sense such as Mrs Jones. Moreover, it could have emphasised the need for an employer to have work clothes laundered away from home, so as to minimise non-occupational exposure.
Responsibility of the Shire
The source of the dust
The only source of asbestos dust was from the work performed by Mr Jones on the pipes in the course of his employment with the Shire. That dust was, of course, from James Hardie products.
Knowledge
I am satisfied that through sheer inertia, the Shire had no actual knowledge of the risks posed to Mrs Jones as a result of washing her husband’s clothes. I am also satisfied that before 1987 it had virtually no knowledge of the risks posed by asbestos exposure at that time. Inferentially, given the provision of protective clothing to Mr Mutch, as confirmed by Mr Porter, it must have formed the opinion that there was a risk to workers directly exposed to asbestos dust working on the pipes. I am also satisfied, as set out earlier, that the Shire should in 1985 have been aware of the risks posed to Mrs Jones from exposure to her husband’s work dust.
Warnings
Advice and instructions to Mr Jones as to techniques to minimise exposure both at work and to members of his family could have been given by the Shire. He could have been told of the risks to his wife in carrying out the laundry tasks. None were given.
Control of Mr Jones’ work conditions
The direct cause of Mrs Jones contracting mesothelioma was the exposure of her husband to asbestos dust and fibres. His working conditions were controlled solely by the Shire. Apart from providing Mr Jones with a paper mask, which he had to use at his own discretion and had no effect on the amount of dust on his clothing, no steps were taken by the Shire to minimise his exposure to dust, and accordingly the amount of dust that accumulated on his work clothes. The provision of disposable overalls, apparently instituted in 1987 for some workers such as Mr Mutch, was an obvious precaution that could have been taken by the Shire from 1985.
Considerations
In my opinion, James Hardie should bear the greater proportion of responsibility. Notwithstanding the Shire’s ability to control the level of dust that contaminated Mr Jones’ clothes, the repository of knowledge concerning the dangers of asbestos dust in respect of both end use and non occupational exposure lay with the manufacturer and distributor of the product. It had actual knowledge of the prospective dangers faced by Mrs Jones, whereas the Shire did not. A dissemination of information by James Hardie would have alerted the Shire to the problem. Its failure to take any steps to provide warnings or advice concerning the dangers associated with its products must result in a greater apportionment of liability over that of the Shire.
Further, although the Shire controlled Mr Jones’ working conditions, his actual exposure to asbestos dust in the course of his employment was relatively low – infrequent and irregular. This was not a case of consistent heavy exposure as seen in other asbestos related disease claims.
My conclusion is that an appropriate apportionment against James Hardie is 65% and 35% against the Shire.
Conclusion
Both James Hardie and the Shire are liable for Mrs Jones’ contraction of mesothelioma.
The apportionment under the Wrongs Act should be 65% against James Hardie and 35% against the Shire. The parties should submit minutes of orders in conformity with these reasons.
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