Pfeiffer v Amaca P/L (Under New Administered Winding Up) - [2016] SADC 101

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PFEIFFER v AMACA P/L (UNDER NEW ADMINISTERED WINDING UP) & ORS
[2016] SADC 101
Judgment of His Honour Judge Gilchrist
26 August 2016
TORTS - NEGLIGENCE
ASBESTOS - DUTY OF CARE
CONTRIBUTION BETWEEN JOINT TORTFEASORS
The plaintiff is a man aged 71 who is suffering from mesothelioma which he alleged that he contracted as a result of the negligence of James Hardie and World Services. In the early 1970s he built a house in Katherine NT that was partially made with asbestos sheets that were manufactured and supplied by James Hardie that he cut and worked on and allegedly inhaled asbestos dust in doing so. Between August 1977 and July 1978 the plaintiff worked for World Services as a boilermaker. For about ten months of that employment the plaintiff worked at the Imperial Chemical Industries (ICI) site at Osborne. He alleged that he was exposed to asbestos in cutting and replacing old pipes and replacing steel catwalks, handrails and stairs.
Held that James Hardie and World Services owed the plaintiff a duty of care; both breached that duty and that there was consequential damage, such that the plaintiff was entitled to judgment against both - Quantum agreed - Apportionment of liability as between James Hardie and World Services - Comparison of their respective culpability and of the relative importance of the tortious acts in causing the plaintiff’s damage - Held that although the extent of causal responsibility was similar, James Hardie’s culpability was greater such that it should bear 60% and World Services 40%.
Third party actions were issued in respect of World Services’ liability on the basis that James Hardie manufactured and supplied asbestos product that the plaintiff was exposed to when working for World Services, that Wallaby Grip (BAE) Pty Ltd and Wallaby Grip Ltd are liable for some contribution because they are the successors of Bell’s Asbestos and Engineering Pty Ltd (Bells) and Bells supplied the asbestos products that the plaintiff was exposed to when working for World Services that ICI as the owner of the plant where the plaintiff was exposed to asbestos owed and breached its duty to the plaintiff and that CSR was in partnership with James Hardie in connection with the manufacture and supply of relevant asbestos products.
Held that the evidence did not establish liability as against Wallaby Grip Ltd and that third party claim against it must be dismissed - Held that the evidence established that the other third parties were relevant tortfeasors - Consideration of their respective culpability and of the relative importance of the tortious acts in causing the plaintiff’s damage - Held that of the 40%, Wallaby Grip (BAE) Pty Ltd was responsible for 17.5%, World Services for 10%, ICI for 7.5% and James Hardie and CSR each 2.5%.
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 ss 6(5) and (6); Dust Diseases Act 2005 s 8(2), referred to.
Podrebersek v Australian Iron & Steel P/L [1985] HCA 34; Coates v Commissioner for Railways (1961) 78 WN (NSW) 377; State Rail Authority (NSW) v Wallaby Grip Ltd [1999] NSWDDT 12; Shirt v Wyong Shire Council [1980] HCA 35; (1980) 146 CLR 40; Jones v Southern Grampians Shire Council & Anor [2012] VSC 485, considered.

PFEIFFER v AMACA P/L (UNDER NEW ADMINISTERED WINDING UP) & ORS
[2016] SADC 101

This is a claim for damages for personal injury that also concerns the determination of issues in connection with contribution notices and multiple third party proceedings.
The plaintiff’s claim
The plaintiff is a man aged 71 years who is suffering from mesothelioma. He contends that he contracted this disease as a result of exposure to asbestos.
He contended that he was exposed to asbestos in the early 1970s when he was using asbestos products in connection with the construction of his house in Katherine, Northern Territory. He alleged that the asbestos products that he was using were manufactured, supplied or distributed by the James Hardie & Coy Pty Ltd (James Hardie).
He contended that he was further exposed to asbestos whilst working for World Services and Construction Pty Ltd (World Services) between August 1977 and July 1978 as a boilermaker undertaking duties at the premises of Imperial Chemical Industries of Australia and New Zealand at Solvay Road, Osborne in South Australia (ICI).
Any liability attaching to James Hardie attaches to the first defendant, Amaca Pty Ltd (Amaca). Any liability attaching to World Services attaches to the second defendant, SFS 007.298.633 Pty Ltd (SFS).
The two defendants exchanged contribution notices and SFS has issued multiple third party proceedings. The effect of these are that in connection with the claim based on the plaintiff’s employment with World Services, it is contended that Amaca might be liable for some contribution on the basis that James Hardie might have manufactured and supplied asbestos products that the plaintiff was allegedly exposed to whilst working there; that Wallaby Grip (BAE) Pty Ltd and Wallaby Grip Ltd may be liable for some contribution because they are the successors of Bell’s Asbestos and Engineering Pty Ltd (Bells) and that Bells might have supplied the asbestos products that that the plaintiff was allegedly exposed to whilst working there; that Orica Ltd may be liable for some contribution because it is the successor to ICI and ICI was the owner of the premises where the plaintiff was allegedly exposed to asbestos; that CSR Ltd may be liable for some contribution because it was in partnership with James Hardie in connection with the manufacture and supply of at least some of the asbestos that the plaintiff was allegedly exposed to whilst working there.
The parties informed me during the hearing that the plaintiff’s damages were agreed in the sum of $630,000.
Having heard the plaintiff’s evidence and considered the written evidence placed before me on behalf of the plaintiff, and having been informed by the defendants that they did not intend to adduce any evidence in response to the plaintiff’s claim, I entered judgment in his favour.
These are my reasons for doing so.
Determination of the plaintiff’s claim
The facts
The plaintiff was a very impressive witness who was plainly telling the truth. He had a very good recall of relevant events. On the basis of his evidence I made the following findings.
The plaintiff was born in rural South Australia. Over the course of his life he has had a variety of jobs that included working as a shop assistant and delivery driver, dairy work, factory work, installing plaster ceilings and cornices, operating a bulldozer and other earth moving equipment, demolition work, road works, boiler making and welding, store managing, farm work and managerial work. He plainly has been a very versatile and industrious man.
In 1970 he moved to Katherine in the Northern Territory. Whilst he was there he built a two story house on stilts. Part of the bottom of the house was enclosed besser brick that formed the laundry. The upper part of the house was constructed using a timber frame that was clad with asbestos cement sheets. These sheets were also used to line the eaves. The house took about four or five months to construct. The plaintiff did all of the prefabrication of the timber that he used. He cut all of the asbestos cement sheets to size, using a combination of asbestos cement cutters and an angle grinder. He also used a rasp to bevel the edges of the sheets.
The cutting of the sheets produced a lot of dust, especially when the angle grinder was used. So too did the rasping. As a result the plaintiff got dust on his hands and clothing and breathed some of it in.
He used thick asbestos cement sheets for the flooring in the bathroom. These were about ¾ of an inch thick. When these were cut with the angle grinder a cloud of dust was produced.
The house contained an en suite bathroom. In constructing this room the plaintiff used sheets known as Tilux sheets. These were hard and when he used an angle grinder to cut them, lots of dust was created.
The plaintiff cut all of the sheeting over a two or three week period for four hours a day. The plaintiff did not wear a mask when he was working with any of the sheets. He had not been made aware of the need for any precautions and had no appreciation that the dust that he produced whilst working on the sheets could be dangerous to his health.
He purchased the sheets and the other building materials from a hardware store in Darwin. The material came from Perth to Darwin by ship. On occasions the plaintiff had to wait for material to arrive. The reasonable inference to draw is that the sheeting was manufactured in Western Australia shortly before it was dispatched to Darwin, and I so found.
The plaintiff had some other minor exposures to asbestos when he was living in Katherine that are not for present purposes relevant.
The plaintiff left Katherine in 1976 and came to live in Adelaide. Between August 1977 and July 1978 he was employed as a boilermaker with World Services. World Services were mechanical engineers and contractors who undertook steel erection, fabrication and maintenance jobs for other enterprises. Its particular focus was on pipe work. The plaintiff worked at various sites over this period, including a stint of ten months at the ICI plant at Osborne.
The ICI plant was a large industrial plant used for the production of soda ash, ammonia, chlorine gas and caustic soda. The plaintiff’s duties there involved cutting and replacing old pipes and replacing steel catwalks, hand rails and stairs at various locations within the plant.
World Services clearly had a significant presence at the ICI plant. It had a dedicated storage hut and its own meeting room. Each day, when the plaintiff and other employees of World Services started work, they would meet at the World Services hut to be briefed as to the allocated tasks for the day. All of the plaintiff’s work at the ICI plant was allocated and supervised by World Services.
The ICI plant contained an extensive network of pipes that included steam pipes, hot water pipes and pipes used to carry various chemicals. One of the plaintiff’s regular jobs involved replacing sections of old pipework. The pipes were insulated with asbestos. The lagged pipes were covered with a layer of sheet metal that was riveted, screwed or clamped into place.
To replace old pipework the plaintiff would remove the outer sheet metal and would then take off the asbestos. The plaintiff said that the sheet metal coverings were often rusted and discoloured.
He said that the lagging on the pipes came in various forms. Some involved rigid sections of insulation that comprised of curved halves that were tied or strapped into place. Others comprised of asbestos rope and tape that had been wrapped around the pipes and valves. The rope was about ¾ of an inch in diameter. The tape was similar but flatter. Finally there was asbestos paste. The paste was used on joins between the asbestos sections and around valves. It was also applied over the asbestos rope.
He removed the lagging that comprised of half pipe sections by untying or unstrapping them or by cutting them with a knife and pulling them away. It was very dusty work.
As for lagging that comprised of asbestos rope and tape, he unwound or cut it and pulled it away. The rope was in poor condition. It was often brittle and gave off a lot of dust when cut and handled. When confronted with lagging in the form of asbestos paste, he removed it by hand. It was also in poor condition and would crumble into dust when disturbed.
The dust generated by the removal of each form of lagging came into contact with the plaintiff’s clothing, face and exposed skin and he breathed some of it in.
The plaintiff said that he did not know how old the asbestos was. He said that it could have been there for a long time because the metal sheeting on the outside was often discoloured and some of it was rusty. His impression was that it had been there for a while.
Over the 10 months that the plaintiff worked at the ICI plant he spent about two to three months removing lagging for about an hour a day. He was also exposed to some asbestos dust when not personally working with lagging but when working in proximity to other World Service‘s employees who were.
Whilst working at the ICI plant the plaintiff used asbestos blankets when using welders and angle grinders. In the course of doing so he would fold and unfold the blankets and shake them out to remove rubbish. That caused dust and fibres to come away from the blankets that went into the air. The plaintiff breathed some of the dust and fibre in. He used the blankets periodically over a period of several weeks. The blankets were supplied by World Services and were obtained through its storage hut.
The plaintiff did not wear a mask or any other protective equipment when removing lagging from pipes at the ICI plant or when working in proximity to others who were doing so, or when using the asbestos blankets that World Services had supplied. He had not been made aware of the need for any precautions when working in the vicinity of asbestos products by World Services or by anyone else. He had no appreciation that the asbestos dust that he inhaled whilst working for World Services could be dangerous to his health.
Liability - James Hardie (Amaca)
Amaca accepted that James Hardie had manufactured and supplied the asbestos cement sheets and the Tilux sheets that the plaintiff used to construct his house in Katherine. It accepted that the Tilux sheets contained asbestos.
At the time when James Hardie supplied the asbestos products that the plaintiff used when he constructed his house in Katherine it was foreseeable that these products would be cut and worked on and that in the process they would give off asbestos dust that could be inhaled.
In the early 1970’s James Hardie was aware that the inhalation of asbestos fibres could cause lung cancer and mesothelioma.
Mr Michael Kottek, an Occupational and Environmental Health Consultant, prepared a report that included extracts and articles pertaining to the dangers of asbestos. Included was an extract from the 1967 Annual Report of the South Australian Department of Health and the Central Board of Health that stated that respirable asbestos fibres were effectively removed by the use of protective masks. I accepted that evidence. I found that in the early 1970s James Hardie should have been aware that the use of a protective mask would have ameliorated the potential dangers of being exposed to asbestos dust. As a result it should, at the very least, have issued a warning in connection with the products containing asbestos that it manufactured and marketed for users of those products to use protective masks when working with them. Its failure to do so constituted a breach of its duty of care to the plaintiff.
The plaintiff struck me as a very sensible man. I thought it likely that had such a warning been given to him that he would have acted on it and I found accordingly. I thought it likely that as a result he would have taken measures that would have diminished the potential for him to suffer injury as a result of his exposure to asbestos dust. I found accordingly.
Professor Paul Reynolds is a senior consultant physician specialising in respiratory medicine. He examined the plaintiff on 17 February 2016. In his opinion, on each occasion the plaintiff inhaled asbestos dust that inhalation made a material contribution to his developing mesothelioma. I accepted that evidence. I found that the exposure to the asbestos dust that the plaintiff inhaled whilst working on the asbestos cement sheets and the Tilux sheets that he used to construct his house in Katherine caused or contributed to his mesothelioma.
Having found that there was a breach of the duty that James Hardie owed to the plaintiff and that there was consequential damage, the plaintiff was entitled to judgment as against Amaca.
Liability – World Services (SFS)
I found that it was foreseeable that during the plaintiff’s employment at the ICI plant the removal of old asbestos from pipes would cause quantities of asbestos dust to be released into areas that the plaintiff was working in.
In light of the evidence of Mr Kottek, as set out above, I found that in August 1977, World Services should have been aware that the inhalation of asbestos fibres was potentially hazardous. I found that at the very least, it should have supplied the plaintiff with a protective mask when working in the vicinity of asbestos dust. Its failure to do so constituted a breach of its duty of care to the plaintiff.
For the reasons just expressed, I thought it likely that had such a mask been provided to the plaintiff, he would have used it. I thought it likely that had he done so, this would have diminished the potential for him to suffer injury as a result of his exposure to asbestos dust. I found accordingly.
On the basis of Professor Reynolds’ evidence I found that the exposure to the asbestos dust that the plaintiff inhaled whilst working for World Services caused or contributed to his mesothelioma.
Having found that there was a breach of the duty that World Services owed to the plaintiff and that there was consequential damage, the plaintiff was entitled to judgment as against SFS.
The contribution and third party claims
I now turn to the contribution and third party claims and to the issues of apportionment.
In connection with these claims the following matters have been established.
Asbestos is the designation of a group of naturally occurring mineral silicate fibres that include the serpentine mineral, chrysotile and amongst others, the amphibole minerals, amosite and crocidolite.
Whilst asbestos has excellent insulation qualities, which is no doubt why it was thought appropriate to use in construction and in insulating pipework, it is also very toxic. These days it is well understood to be associated with a range of very serious and frequently lethal diseases. These include mesothelioma.
By the 1930s there was extensive documentation that exposure to asbestos had the propensity to cause fibrosis of the lungs.
In 1938 a factory operated by James Hardie in Brooklyn, Victoria, was the subject of tests carried out by the Victorian Department of Health. Following those tests James Hardie was advised that “Certain authorities regard 5,000,000 asbestos particles per cubic foot of air as the maximum concentration to which workers should be exposed.” The related report then went on to say that where workers were exposed to such concentrations they should wear suitable dust respirators.
James Hardie became aware in the mid-1950s that the inhalation of asbestos could cause asbestosis.
James Hardie became aware in the mid-1960s that the inhalation of asbestos fibres could cause lung cancer and mesothelioma.
In terms of risk in causing mesothelioma, amosite is 40 times more potent as a cause than chrysotile and crocidolite is 400 times more potent.
In the 1960s and 1970s James Hardie manufactured flat asbestos cement sheets and mouldings at a plant in Welshpool, Western Australia.
James Hardie was the sole supplier of asbestos cement sheeting and Tilux for the Northern Territory over the relevant time. Given my finding that the sheeting that the plaintiff used in building his house in Katherine was manufactured in Western Australia it would follow that the sheeting was manufactured by James Hardie at its Welshpool plant and I so find.
In 1966 the mix specification for the manufacture of flat sheets and mouldings by James Hardie at Welshpool comprised of 135 parts asbestos, 568 parts cement and 472 parts silica. Thus the overall percentage of asbestos was 11.5% of which 36.36% was chrysotile and 63.64% was crocidolite.

In 1967 the mix specification at Welshpool changed. The mixture comprised of 136 parts, asbestos, 568 parts cement and 472 parts silica. Crocidolite was no longer part of the mix. Thus the overall percentage of asbestos was 11.6%. The asbestos proportion of the mix included 20% amosite.
In 1970 the Welshpool mixture comprised of mixture comprised of 11.6 asbestos of which 20% was amosite.
In 1974 the Welshpool mixture comprised of 12.3 asbestos of which 19.7% was amosite.
In 1966 the likely mix specification for the manufacture of asbestos products by James Hardie for use at the ICI plant did not include crocidolite but it did include amosite.
In 1970 the likely mix specification for the manufacture of asbestos products by James Hardie for use at the ICI plant comprised between 11.18% and 12.02% asbestos. The asbestos proportion of the mix included 22% amosite.
In September 1966 Wallaby Grip Pty Ltd ceased to be involved in the supply and installation of asbestos products.
Between 24 September 1964 and 26 June 1974 James Hardie and CSR were in partnership and they manufactured asbestos insulating pipe sections which were supplied to Bells. The minutes of a meeting that took place on 8 July 1974 concerning the dissolution of that partnership establish that all outstanding stock was to be dumped.
Between 19 September 1966 and 31 July 1978 Bells supplied asbestos rope, asbestos tape, asbestos cloth, pre-formed asbestos sectional lagging and asbestos pipe to ICI plant.
Wallaby Grip (BAE) Pty Ltd admits that over that period Bells attended the ICI plant to install insulation materials containing asbestos. In 1966 Bells, and hence Wallaby Grip (BAE) Pty Ltd, were aware that the inhalation of asbestos could cause asbestos related diseases including terminal carcinomas.
At the relevant times, World Services and ICI were sophisticated, well-resourced entities.
I now turn to consider further evidence tendered in support of these claims.
In support of his claim the plaintiff tendered a number of affidavits that had been tendered in other proceedings concerning asbestos exposure.
On 10 October 2002 Mr Jim Shearer deposed that he commenced work as a fitter and turner at the ICI plant in 1955 and that he continued to work there until 1976. He stated that the plant contained a number of steam pipes that were lagged with asbestos. He said that the pipes required a lot of maintenance. He said that when the pipes required repair the asbestos lagging had to be removed.
On 31 August 2008 Mr William Somerville signed a statement in which he stated that he commenced work as a maintenance bricklayer at the ICI plant in 1955. After performing alternate duties for a time he returned to that job in 1967 where he remained until 1982. He said that the use of asbestos as insulation was widespread throughout the plant. He stated that the asbestos insulation deteriorated after it had been in use for a period of time due to the high temperature in the factory. He said that the insulation needed to be replaced frequently.
Mr William McLean deposed on 5 March 2013 that he commenced work as a labourer/production worker at the ICI plant in 1966 and that he continued to work there until 1976. He stated that the production of the chemicals at ICI required great heat and that the maintenance fitters routinely undertook repairs and maintenance on the extensive network of lagged pipes that ran throughout the plant.
SFS placed before the Court an affidavit of Mr Ronald Stopp who deposed on 26 March 2008 that he worked at the ICI plant between about 1947 until 1951 as a lagger. He stated that Bells Asbestos supplied ICI with asbestos products over that period. Wallaby Grip Pty Ltd is legally responsible for that supply.
Mr Kottek gave evidence and expressed his opinion that the majority of the plaintiff’s exposure to asbestos occurred when he was working for World Services.
When asked to elaborate upon that he said that he thought the plaintiff’s exposure at Katherine was of the order of 10% and the balance of 90% was attributable to the plaintiff’s exposure at the ICI plant. Mr Kottek said that a factor that he took into account in making that assessment was that the exposure in Katherine was primarily or entirely chrysotile asbestos. It would follow that if the asbestos that the plaintiff was exposed to at Katherine contained amosite or crocidolite that would have an impact upon his opinion as to the relative significance of the exposures at Katherine and the ICI plant.
Professor Reynolds gave evidence agreeing with the proposition that if the asbestos that the plaintiff was exposed to at Katherine and at the ICI plant both contained the amphibole, amosite, each would have been responsible for the production of mesothelioma.
He agreed that if any one of those exposures would have caused the plaintiff’s mesothelioma. He said: “I don’t believe you can discriminate between the two.”[1]
[1] Tr 71
Determination of the contribution and third party claims
In determining the extent of contribution I must apply ss 6(5) and (6) of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001.
The contribution is to be an amount that is fair and equitable having regard to the extent of each tortfeasors responsibility for the harm. In connection with similar provisions the High Court in Podrebersek v Australian Iron and Steel Pty Limited held that the proper approach:
…involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.[2] (Footnotes omitted)
[2] [1985] HCA 34 at para 10; 59 ALJR 492 at 494
The contribution claims as between the defendants
In determining the appropriate apportionment as between the two defendants I commence with an assessment of the significance of the two exposures.
Counsel for Amaca submitted that I should accept the evidence of Mr Kottek and find that the bulk of the relevant exposure came from the plaintiff’s work at the ICI plant.
Counsel for SFS contended that Mr Kottek’s evidence on the issue of relative causation was flawed and that I should reject it.
Having found that the plaintiff spent four hours a day for two or three weeks cutting and working on asbestos product at Katherine I find that he was exposed to asbestos dust there for between 40 to 60 hours.
Having found that the plaintiff spent an hour a day for two or three months removing lagging when working for World Services I find that he was exposed to asbestos dust there for between 45 to 65 hours. It must be noted that the plaintiff was exposed to other asbestos dust at the ICI plant, but not much.
I did not find Mr Kottek’s evidence of attribution persuasive. My impression was that it amounted to little more than a calculated guess that made erroneous assumptions about the composition of the asbestos that the plaintiff was exposed.
In light of my finding that the asbestos sheets that the plaintiff worked on in Katherine were manufactured not that long before they were supplied to him it is unlikely that any contained crocidolite. But it is likely that they contained amosite, and I so find.
There is little evidence as to what type of asbestos the plaintiff was exposed to when working for World Services. It is likely that the asbestos contained amosite as that was in use in the 1970s and before. It is possible that it contained crocidolite but I cannot put it any higher than that. The evidence does not permit a positive finding that it did.
In light of that and in light of Professor Reinhold’s evidence in respect of attribution, which evidence I accept, I find that in terms of the respective exposures their causal responsibility is not that much different. The balance is slightly tilted against World Services, but only by a small margin.
Now I must turn to the issue of culpability.[3]
[3] In using this word I am to be understood as referring to the extent of the duty owed and the extent of the departure from the standard of care that a reasonable person would have exercised in response to that duty as expressed in Podrebersek v Australian Iron and Steel Pty Limited.
In connection with the third party claim made against it, CSR submitted that World Services is to be treated as if it knew that exposure to asbestos dust would result from the cutting of sectional lagging and that it could result in a dust disease. It makes that submission because for the purposes of the Dust Diseases Act 2005[4]in certain prescribed circumstances, which it submitted existed here, in the absence of evidence to the contrary that knowledge is deemed.
[4] It referred me to s 8(2) of the Dust Diseases Act and the regulations promulgated thereunder.
This was not a submission that was advanced by Amaca but I should still deal with it.
The difficulty that I have with CSR’s submission is that it could result in the comparison of the relative the degree of departure from the standard of care of the reasonable person being an artificial exercise that does not reflect the actual degree of departure. As Kinsella and Collins JJ observed in Coates v Commissioner for Railways, when commenting upon a deeming provision in the Workers Compensation Act 1926 (NSW):
Where a statute provides that something shall be deemed to be a fact, it is necessarily implicit in such a provision that the assumption shall be made if necessary contrary to fact. [5]
[5] (1961) 78 WN (NSW) 377 at 384.
It must follow that the effect of s 8(2) of the Dust Diseases Act is that a tortfeasor may be found to have had knowledge that exposure to asbestos dust could result in a dust disease, even though it did not have actual knowledge, simply because it is unable to discharge the evidentiary burden that the provision creates. Given that these actions are frequently prosecuted many years after the relevant events occurred, that is not an unlikely scenario. Although this might be appropriate in connection with matters of proof as between a plaintiff, suffering from a dust disease, and a tortfeasor, it is difficult to see how it could be regarded as appropriate in connection with a determination of the culpability of multiple tortfeasors. This leads me to conclude that the reach of the presumption created by s 8(2) of the Dust Diseases Act is limited to assisting a plaintiff in establishing liability for a dust disease covered by that Act. It has no role to play in making a comparison of culpability as between multiple tortfeasors on contribution and third party claims. In my view, the assessment of the degree of departure from the standard of care that would be expected of the reasonable person that ss 6(5) and (6) of the Law Reform (Contributory Negligence and Apportionment of Liability) Act requires me to make, is to be made by reference to what actually occurred or did not occur and by reference to what was actually known or not known.
In making a comparison of the respective departures, on the one hand, I have an entity that manufactured and supplied a toxic and dangerous substance that it well knew posed a danger to those using it.[6]
[6] In State Rail Authority (NSW) v Wallaby Grip Ltd [1999] NSWDDT 12 at para 108 Curtis J said: “There is no evidence that between 1938 and 1950 the SRA had actual knowledge of the dangers to health posed by visible clouds of asbestos dust. Hardie did know. It is sufficient to refer to one exhibit only. SRA 26 revels that on October 1938 Hardie’s asbestos factory at Brooklyn in Victoria was the subject of tests carried out by the Victorian Department of Health to determine the concentration of asbestos particles in the air. The results were sent to Hardie. The report stated that: ‘Certain authorities regard 5,000,000 asbestos particles per cubic foot of air as the maximum concentration to which workers should be exposed’ and advised that where workers were exposed to such concentrations, even intermittently, they should wear suitable dust respirators.” (emphasis mine)
On the other, I have an entity that had duty of care as an employer to provide the plaintiff with a safe working environment. Whilst there is no evidence that establishes that it knew about the dangers of exposure to asbestos, given the state of knowledge in the 1970s about those dangers, it could have and should have made enquiries about the risks that working with asbestos entailed. It was a sophisticated, well-resourced entity such that its lack of knowledge about the danger of asbestos was inexcusable. It should have taken appropriate protective measures to minimise the harm to which its employees were exposed. Its departure from the standard of care that would be expected of the reasonable person was very significant.
In my view the culpability of James Hardie is worse. It created the product. It supplied the product to consumers of all levels of sophistication including individuals, like the plaintiff, knowing that it was hazardous. Yet it did not provide any information about the hazards that it presented. Its indifference to the health and safety of those who it knew would be using products that it manufactured and supplied and which it knew were dangerous was an extreme departure from the standard of care that would be expected of the reasonable person.
In factoring this into the equation I apportion liability as between Amaca and SFS at 60% to Amaca and 40% to SFS.
The contribution claims as between the second defendant and the third parties
This exercise requires as assessment of the respective contribution to the 40% liability that I have imposed upon SFS by it and the third parties.
It is convenient to break these up into two primary groups: Those who manufactured or supplied the asbestos that was used at the ICI plant and those who were responsible for the plaintiff being in a position where he would be exposed to that asbestos, being the employer, World Services, and the owner of the plant, ICI.
The first group potentially comprises of Wallaby Grip Pty Ltd, Wallaby Grip (BAE) Pty Ltd, Amaca and CSR.
The second group comprises of World Services and ICI.
Wallaby Grip Pty Ltd does not admit that at any relevant time it supplied any asbestos to ICI. It submitted that SFS, which has made the third party claim against it, had failed to discharge its onus of proof. It submitted that the evidence does not establish that any of the asbestos that the plaintiff was exposed to at the ICI plant was asbestos that had been supplied there prior to September 1966.
Wallaby Grip Pty Ltd’s primary submission must be accepted. Although there is evidence that it provided asbestos products to the ICI plant from 1947 to 1951 the evidence does not permit a finding that in 1976 the plaintiff was exposed to products that it supplied at that time. Although it might be supposed that if it supplied the plant with asbestos product between 1947 and 1951, and that thereafter it continued to be involved in the supply of asbestos products, there is a fair chance that it continued to supply the plant with asbestos over the intervening period, that is mere conjecture. In my view the evidence falls short of establishing this to the requisite degree. The third party claim as against Wallaby Grip Pty Ltd must be dismissed.
CSR contended that the regular maintenance at the ICI plant indicated that the asbestos products that were used there were frequently replaced. It submitted that the frequency was such that I ought not infer that any of the asbestos that was present at the ICI plant during the period when the plaintiff worked there was asbestos that had been manufactured by it and Amaca under the partnership agreement given that the partnership ceased the manufacture of asbestos in mid- 1974.
In the alternative it argued that I could not be satisfied to the requisite degree that any of the asbestos that was present at the ICI plant during the period when the plaintiff worked there was asbestos that was supplied after September 1964.
If either of these contentions are correct it must follow that either all of the asbestos that the plaintiff was exposed to at the ICI plant was less than about three years old or that all of it was more than thirteen years old.
Whilst the evidence of the others who worked at the ICI plant suggests that the maintenance of the pipes in the plant and the removal and replacement of asbestos lagging was a regular and ongoing process and a number spoke of the heat of the pipes and the effect that that had on their degradation, it seems to me to be inherently unlikely that none of the asbestos that the plaintiff was exposed to at the ICI plant was more than three years old. Moreover, although there is no evidence that would establish that the plaintiff had any expertise in determining the age of asbestos products, I cannot ignore the fact that he had extensive experience working in factories, demolition work, boiler making and welding. His evidence of some of the outside of the pipes being rusty and his impression that they had been there for a while is telling. Whilst it does not establish the exact age of the asbestos it does persuade me that at least some of it was three years old. As to the proposition that all of it was at least thirteen years old, the evidence of the regular renewal of pipes suggests that that is unlikely and I so find.
Amaca accepts that in the period between September 1964 and June 1974, the James Hardie and CSR partnership manufactured insulation pipe sections that contained asbestos. I think it is likely that they supplied these pipe sections to Wallaby Grip (BAE) Pty Ltd which it in turn supplied and installed them at the ICI plant. I think it is likely that the plaintiff was involved in the removal of some of the pipes that had been insulated with that product. I accepted his evidence that on occasions he would cut the sections of insulation pipe with a knife and would then pull them away and that the process produced dust that he inhaled. I think it is likely that at least some of the pipes that the Plaintiff worked on in this way were insulation pipe sections that contained asbestos that had been supplied by the James Hardie and CSR partnership. I think it is likely that the dust produced by that work included asbestos dust. Having accepted Professor Reynolds’ opinion that on each occasion the plaintiff inhaled asbestos dust, the inhalation made a material contribution to his developing mesothelioma, I find that the plaintiff inhaled asbestos dust that came from product supplied by the James Hardie and CSR partnership that caused or contributed to his mesothelioma
In light of Wallaby Grip (BAE) Pty Ltd’s admission that between 19 September 1966 and 31 July 1978 Bells supplied and installed asbestos rope, asbestos tape, asbestos cloth, pre-formed asbestos sectional lagging and asbestos pipes to ICI for use at the ICI plant and having accepted the plaintiff’s evidence about his inhalation of dust generated whilst he was removing these products, for the same reasons as just expressed, I find that the plaintiff inhaled asbestos dust that came from products supplied and installed by Bells over this period that caused or contributed to his mesothelioma.
In undertaking a determination of the appropriate apportionment I again commence with an assessment of the significance of the respective exposures.
Whilst the evidence establishes that the James Hardie and CSR partnership supplied the ICI plant with insulation pipe sections that contained asbestos that is all that it establishes. They might have supplied all of the insulation pipe sections that the plaintiff cut, but I cannot put it any higher than that. That said, given the fact that at least in 1970 there was a designated mix specification for the manufacture of asbestos products by James Hardie for use at the ICI plant it is reasonable to infer that it was a substantial supplier of this product for use at that plant.

The James Hardie and CSR partnership may have supplied other asbestos products that were relevantly in place at the ICI plant, but I cannot put it any higher than that. The evidence does not permit a positive finding that it did.
Whilst the evidence establishes that Wallaby Grip (BAE) Pty Ltd supplied and installed asbestos rope, asbestos tape, asbestos cloth, pre-formed asbestos sectional lagging and asbestos pipe to the ICI plant between 19 September 1966 and 31 July 1978, that is all that it establishes. They might have been the only supplier of those products over that period, but I cannot put it any higher than that. That said, in State Rail Authority (NSW) v Wallaby Grip Ltd Curtis J found that Bells was a large commercial enterprise trading in asbestos and that it was a major supplier.[7] From this I infer that if Wallaby Grip (BAE) Pty Ltd was not the sole supplier of the asbestos products that were supplied to ICI over this period, they were a major supplier of those products for use at the ICI plant.
[7] State Rail Authority (NSW) v Wallaby Grip Ltd [1999] NSWDDT 12 at para 109; (1999) 18 NSWCCR 193.
Accordingly, in respect of the manufacturer/suppliers, Wallaby Grip (BAE) Pty Ltd bears responsibility for a lot of the plaintiff’s exposure to asbestos when working for World Services at the ICI plant and the James Hardie and CSR partnership for some of that exposure.
It has not been established that Wallaby Grip (BAE) Pty Ltd supplied the asbestos blankets that the plaintiff used at the plant.
It is likely that the plaintiff was exposed to some asbestos dust as a result of using the asbestos blankets that World Services provided him with. For the reasons expressed above, I find that that exposure caused or contributed to his mesothelioma. Those blankets were not supplied by ICI. They were exclusively World Services’ responsibility. In the overall scheme of things this was not a particularly significant exposure but as a result of it, some difference in causal responsibility does exist.
Accordingly, in respect of the employer/occupier group, World Services bears responsibility for all of the plaintiff’s exposure to asbestos when working for it at the ICI plant and ICI bears responsibility for nearly all of it.
I now turn to the issue of respective culpability.
Counsel for Wallaby Grip (BAE) Pty Ltd and counsel for CSR submitted that there was no duty on the manufacturers and suppliers of asbestos products to somehow foresee that five, ten or twenty years in the future someone would permit others to go a factory fitted with asbestos and, in breach of all scientific and industrial knowledge at that time, direct them to strip off lagging which is carcinogenic.
If it was intended by this submission to put the argument that neither owed the plaintiff a duty of care, I reject it. A person owes another a duty of care if a reasonable person in that person’s position would have foreseen that the person’s conduct involved a risk of injury to the plaintiff or to a class of persons that included the plaintiff.[8] It was, in my view, entirely foreseeable that in supplying asbestos products that was used to insulate pipes in an industrial plant, that over time those pipes would require maintenance.
[8] Shirt v Wyong shire Council [1980] HCA 35 (1980) 146 CLR 40 at 47 per Mason J.
A reasonable person would have foreseen that the maintenance would have resulted in persons such as the plaintiff being exposed to the asbestos.
At all relevant times the James Hardie and CSR partnership and Wallaby Grip (BAE) Pty Ltd were aware that the inhalation of asbestos could cause asbestos related diseases.
A reasonable person in their position would have taken steps to warn all relevant parties of the danger that the asbestos products posed and of the need to take precautions when dealing with them. As J Forrest J observed in Jones v Southern Grampians Shire Council & Anor “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.”[9]
[9] [2012] VSC 485 at para 68.
As it was none of them did anything.
I think it is likely that had such a warning been provided, ICI and World Services would have acted on it. Given my assessment of the plaintiff I think it likely that if he had been aware of such a warning he would have acted on it. The James Hardie and CSR partnership and Wallaby Grip (BAE) Pty Ltd owed a duty of care to the plaintiff. Both breached that duty and there was consequential damage. Their negligence caused or contributed to the plaintiff’s mesothelioma.
It was submitted that in comparing relative culpability of the two groups earlier identified, the owner of the ICI plant and World Services were the entities who had the opportunity to make a real difference to the plaintiff.
Counsel for Wallaby Grip (BAE) Pty Ltd submitted that as such, the split between employer and occupier, on the other hand, and the suppliers on the other, ought to be fifty-fifty rather than weighted one way or the other.
Counsel for CSR submitted that it should be weighted heavily against the employer and occupier and that they should bear the bulk of the liability attaching to SFS.
Counsel for SFS put the opposite submission to CSR. He submitted that in determining relative culpability, World Services’ failing (and by extension ICI’s failing) was a failure to keep up to date with a specific area of science, whereas the others were responsible for supplying vast amounts of a very toxic substance without warning.
I do not accept any of these submissions.
I have already discussed World Services’ culpability in connection with the contribution claim as between the two defendants. It comprised of much more than a mere failure to keep up to date with a specific area of science.
The same is true of ICI. As the owner of the premises at which the plaintiff carried out duties for World Services, it had a duty to provide the plaintiff with a safe working environment. It knew that persons such as him would be involved in removing asbestos lagging. After all, it contracted World Services to undertake that work. Whilst there is no evidence that establishes that ICI knew about the dangers of exposure to asbestos, given the state of knowledge in the 1970s about those dangers, it could have and should have made enquiries about the risks that working with asbestos entailed. Like World Services, it was a sophisticated, well-resourced entity such that its lack of knowledge about the danger of asbestos was inexcusable. It should have ensured that appropriate protective measures were put in place to minimise the harm to which those working at its plant were exposed. Given my assessment of the plaintiff I think it is likely that had he been made aware by ICI of the need to adopt appropriate protective measures to protect himself from the potential dangers of inhaling asbestos dust, he would have acted on it. Its negligence caused or contributed to the plaintiff’s mesothelioma. Its departure from the standard of care that would be expected of the reasonable person was very significant.
As for the other group, I have already commented upon James Hardie’s indifference to the health and safety of those who it knew would be using its products. In my view the only reasonable inference available is that its partner, CSR, was equally aware and equally indifferent.
Wallaby Grip (BAE) Pty Ltd was no better. Like James Hardie, its indifference to the health and safety of those who it knew would be using products that it supplied and installed and which it knew were dangerous was an extreme departure from the standard of care that would be expected of the reasonable person.
Whilst on the issue of causal responsibility the employer and occupier bear greater responsibility, when it comes to culpability, I regard the respective departures by James Hardie and CSR partnership and Wallaby Grip (BAE) Pty Ltd from the standard of care that would be expected of the reasonable person to be greater than departures of the requisite standard by ICI and World Services. Taking these matters into account, of the 40% attributable to the World Services exposure, I apportion liability as between James Hardie and CSR partnership, and Wallaby Grip (BAE) Pty Ltd, on the one hand, and World Services and ICI, on the other, at 22.5% to the former group and 17.5% to the latter.
For the reasons just expressed, I regard the duties owed and the respective departures by James Hardie and CSR partnership and Wallaby Grip (BAE) Pty Ltd from the standard of care that would be expected of the reasonable person to be the same.
The James Hardie and CSR partnership and Wallaby Grip (BAE) Pty bear equal responsibility for the asbestos products that the partnership supplied.
Given my finding that the James Hardie and CSR partnership relevantly supplied less of the asbestos product that the plaintiff was exposed to at the ICI plant than Bells did, and that the additional asbestos that the plaintiff was exposed to there that was supplied by Wallaby Grip (BAE) Pty included asbestos rope, tape and paste, that the plaintiff described as particularly dusty, their respective contributions must be adjusted to reflect this.
I apportion their liability as 17.5% to Wallaby Grip (BAE) Pty and 5% to the James Hardie and CSR partnership. As James Hardie and CSR were jointly responsible for the manufacture and supply of the relevant asbestos it follows that in respect of this exposure each is equally responsible. It follows that Amaca and CSR should each bear 2.5%.
Whilst the standard of care that World Services and ICI owed to the plaintiff was similar, as was the extent of their departure from that standard, they were not, in my view, exactly the same.
World Services was no mere labour hire company that was simply supplying labour to a putative employer. It was a large employer with particular expertise in working in the area of plant maintenance and pipe work. Its presence at the ICI plant was significant enough for it to have had its own storage hut on the premises. It was ultimately responsible for assigning particular duties to the plaintiff. Its supervisors told him what was to be done, and if need be, how it was to be done. In my view these facts indicate that World Services owed a higher duty of care to the plaintiff than ICI and its departure from what might have been expected of a reasonable person in response to that duty was greater.
This, coupled with the fact the World Services was solely responsible for the exposure resulting from the plaintiff’s use of asbestos blankets leads to the conclusion that there must be some adjustment of their respective liabilities and that World Services must bear greater responsibility than ICI. Of the 17.5% that I assign to this group I attribute 10% responsibility to World Services (and hence SFS) and 7.5% responsibility to ICI (and hence Orica).
Conclusion
The third party claim as against Wallaby Grip Pty Ltd is dismissed.
As to the contribution and third party claims I apportion liability as follows:
·       Amaca   62.5%
·       Wallaby Grip (BAE) Pty Ltd       17.5%
·       SFS  10%
·       Orica  7.5%
·       CSR  2.5%
I will hear the parties as to costs.