Micallef v The Myer Emporium Ltd

[2005] NSWDDT 13

Dust Diseases Tribunal

of New South Wales

CITATION:	Micallef v The Myer Emporium Ltd [2005] NSWDDT 13
PARTIES:	Anita Micallef (Plaintiff) The Myer Emporium Limited (First Defendant) BI (Contracting) Pty Ltd (Second Defendant)
MATTER NUMBER(S):	376/2004
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	DUST DISEASES TRIBUNAL - Miscellaneous Matters :- damages agreed - cross claims between defendants - first defendant has constructive knowledge of dangers of asbestos - retailing business - second defendant had actual knowledge of dangers of asbestos - asbestos spraying business - first defendant to contribute ten per cent - second defendant to contribute twenty percent
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989
CASES CITED:	Williams v BI Contracting Pty Ltd & Anor [2004] DDT 19; Macquarie Pathology Service Pty Ltd v Sullivan (NSWCA unreported, 28 March 2005) per Clarke JA); Podrebersek v Australian Iron and Steel [1985] HCA 34; (1985) 59 ALJR 492
DATES OF HEARING:	09/03/2005
EX TEMPORE JUDGMENT DATE:	03/09/2005
LEGAL REPRESENTATIVES:	D Letcher QC instructed by Turner Freeman appeared for the Plaintiff G M Watson SC instructed by Lander & Rogers appeared for the First Defendant A Ventura instructed by Makinson & D'Apice appeared for the Second Defendant

JUDGMENT:

O'MEALLY P

1. This is a claim for damages by Anita Micallef against The Myer Emporium Limited and BI (Contracting) Pty Ltd (BI). The plaintiff was employed by the first defendant at its Adelaide retail store in Rundle Street.

2. In 1963 and subsequently, the store underwent renovation or refurbishment; certainly building alterations were carried out. As part of these alterations, the second defendant was engaged to spray limpet asbestos onto ceilings and structural steel work inside the store. In this process, upwards of 25 per cent sprayed asbestos failed to adhere to the surfaces to which it was applied, and fell to the floor or was carried through the air and settled upon flat surfaces.

3. The area of the store in which spraying was carried out by the second defendant was isolated from retail areas by canvas attached to a wooden frame. It was, however, insufficient to prevent the escape of asbestos dust and fibre into the retail section, and, in particular, to the area where the plaintiff was employed to work. That was an area in which wallpaper was sold, and the plaintiff had particular knowledge, experience and expertise in the use of wallpaper and the means of hanging it. The first defendant in its media advertisements paid particular attention to her skill, experience and expertise in the field.

4. The plaintiff did not witness the process of spraying and it seems appropriate to infer that it was done outside ordinary working hours. The plaintiff did see people who appeared to be associated with the process from time to time; these were men whom she saw behind the canvas barrier to which reference earlier was made. Each morning, following spraying processes, asbestos dust and fibre settled upon dust covers and other flat surfaces. The plaintiff removed dust covers, and in the process asbestos was excited into the atmosphere and inhaled by her. A greater proportion of asbestos dust and fibre accumulated behind the canvas barrier. The plaintiff was from time to time required to proceed beyond the barrier to the area where spraying had taken place in order to obtain stock from the storeroom. During the process of spraying, the stock itself was frequently contaminated by asbestos dust. In order to remove it, she tapped the roll with the object, causing the adhering asbestos dust to fall to the floor. Some of it fell to the floor and some lingered in the atmosphere and was inhaled by the plaintiff. The ladies’ toilet, which she and other members of the staff would use, was also located behind the barrier. In walking to the toilet, she was exposed to and inhaled asbestos dust.

5. As a result of exposure to asbestos, the plaintiff has contracted malignant mesothelioma. The parties have agreed that damages should be assessed at $440,000. Though not admitting liability, counsel for neither defendant has submitted that the plaintiff is not entitled to a verdict.

6. It is uncontroversial that the first defendant had an obligation as the plaintiff’s employer to safeguard her from risks of reasonably foreseeable injury in respect of which means were available to obviate or minimise that risk. It failed to fulfil that obligation. The plaintiff is entitled to a verdict against the first defendant.

7. The evidence establishes that the second defendant was in the business of asbestos spraying and was engaged to spray limpet asbestos onto ceilings and steel structures within the premises at which the plaintiff worked. The spraying of asbestos released large amounts of asbestos dust and fibre into the atmosphere and also constituted a reasonably foreseeable risk of injury. Each defendant owed a duty of care to the plaintiff; each defendant failed to comply with its duty. The plaintiff is therefore entitled to a verdict against each defendant, and judgment in the sum of $440,000.

8. Each defendant has cross-claimed against the other. It is not disputed that the first defendant ought to have had knowledge of the dangers of asbestos. The evidence demonstrates it was a large employer, that is, it employed a large number of people. The second defendant was, as is well known, in the business of spraying limpet asbestos.

9. Admitted pursuant to s 25(3) of the Dust Diseases Tribunal Act, 1989, is the evidence of Mr P J Snelling given in the case of Williams v BI Contracting Pty Ltd & Anor [2004] DDT 19. The evidence of Mr Snelling discloses that before 1963, BI had actual knowledge of the dangers of asbestos. Mr Snelling held an executive position with the predecessor of the second defendant. Though he did not have knowledge that a small amount of asbestos was capable of causing mesothelioma, he did know from material provided by Johns Manville, and provided before 1963, that exposure to asbestos was dangerous and constituted a risk of injury. Johns Manville was a large-scale producer of asbestos products in the United States of America. The plaintiff was a member of a class exposed to the risk of avoidable and reasonably foreseeable injury.

10. In determining what proportion of a judgment sum should be paid by each of a number of tortfeasors, one is usually required to have regard to the moral culpability and causative potency of the act or neglect of each; (see Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 2005) per Clarke JA). In this case, causative potency is not a matter for consideration because the first defendant did not itself introduce matter which made a material contribution to the plaintiff’s disease. Therefore, the question to be considered is moral culpability.

11. Mr Ventura, who has put everything he could possibly put on behalf of his client and more, submits that that approach is not appropriate. He had referred me to the decision of the High Court of Australia in Podrebersek v Australian Iron and Steel (1985) 59 ALJR 492. He cited from the joint judgment of the Chief Justice and Mason, Wilson, Brennan and Deane JJ at 494:

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] AC 663 at 682 … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
With all respect to Mr Ventura, that test seems to be identical in nature to that propounded by Clarke JA in Macquarie Pathology .

12. There is no evidence that the first defendant had actual knowledge of the dangers of asbestos, but, as it accepts, it ought to have known of the dangers of asbestos. There was ample material available in the medical, scientific and industrial literature, as is well known, which spoke of the dangers of asbestos. The first defendant was, however, a retailer of consumer goods. The obligations of the second defendant were not its.

13. PX2 establishes quite clearly that the second defendant was in the business of spraying asbestos. The obligations upon it to acquaint itself with the contents of scientific, industrial and medical literature were greater than the first defendant’s obligation to do so. Taken with the fact that it had actual knowledge of the dangers of asbestos, its culpability is much greater. It is my view that the first defendant should pay 10 per cent of the plaintiff’s damages and the second defendant 90 per cent.

14. There will be a verdict for the plaintiff jointly and severally against each defendant, and judgment in the sum of $440,000.

15. The first defendant will bear liability to pay 10 per cent of the judgment sum and the second defendant 90 per cent. The defendants will pay the plaintiff’s costs as agreed or assessed in the same proportions as they shall contribute to the damages, save that the second defendant will pay the first defendant’s costs from 7 March 2005.

16. Leave to issue further cross-claims on or before 30 April 2005.

Mr D Letcher, QC instructed by Turner Freeman appeared for the Plaintiff

Mr G M Watson, SC instructed by Lander & Rogers appeared for the First Defendant

Mr A Ventura instructed by Makinson & D’Apice appeared for the Second Defendant