(Re Ali Berro as Executor of the Estate of the late Ahmad Berro) Sate of New South Wales v Amaba Pty Ltd

[2017] NSWDDT 15

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	(Re Ali Berro As Executor of the Estate of the late Ahmad Berro) Sate of New South Wales v Amaba Pty Ltd [2017] NSWDDT 15
Hearing dates:	20 September 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Before:	Judge AC Scotting
Decision:	1. Verdict for the Cross-Claimant on the Cross-Claim. 2. I direct that the parties bring in short minutes of order to give effect to this judgment. 3. I will hear the parties on costs.
Catchwords:	DUST DISEASES – mesothelioma – extent of exposure – exposure of plaintiff   PROCEDURAL – cross-claim – contributions assessment – contributions between parties
Legislation Cited:	Dust Diseases Tribunal Act 1989 s.25(3) Law Reform (Miscellaneous Provisions) Act 1946 s.5
Cases Cited:	Seltsam Pty Ltd v McGuiness at (2000) 49 NSWLR 262 Belhaven and Stenton Peerage (1875) 1 App Cas 278 Luxton v Vines (1952) 85 CLR 352 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 142 CSR Ltd v Wren (1998) Aust Torts Reports 81-461 Booth v Amaba Pty Ltd [2010] NSWDDT 8 Podrebersek v Australian Iron and Steel (1985) 59 ALJR 492
Category:	Principal judgment
Parties:	State of New South Wales (Cross-Claimant) Amaba Pty Ltd (Cross-Defendant)
Representation:	Counsel: Mr DT Miller SC (Cross-Claimant) Mr JC Sheller (Cross-Defendant)     Solicitors: Moray & Agnew (Cross-Claimant) Mills Oakley (Cross-Defendant)
File Number(s):	135/2015/1
Publication restriction:	None

Judgment

1. The State of New South Wales (the State) seeks contribution from Amaba Pty Ltd (formerly known as Hardie Ferodo Pty Ltd) (Amaba), pursuant to section 5 Law Reform (Miscellaneous Provisions) Act 1946, in relation to proceedings brought against it by Ahmad Ali Berro (the deceased) and later continued by his estate.

2. The deceased commenced proceedings against the State claiming damages for personal injury (peritoneal mesothelioma) during the course of his employment as a cleaner at the Everleigh Railway Workshops (Everleigh), between 16 August 1971 and November 1981.

3. On 28 August 2017 the State settled the deceased’s claim with his estate, agreeing to the entry of judgment against it.

4. It was common ground that the deceased suffered from peritoneal mesothelioma and that he died from it on 3 November 2015. Amaba did not challenge the reasonableness of the settlement between the deceased’s estate and the State.

5. The issues in the cross-claim are:

1. Was the deceased exposed to asbestos dust from Amaba’s products as a result of brake work conducted at the Eveleigh workshops during the course of his employment?

2. Was that exposure (if any) in breach of a duty of care owed by Amaba to the deceased?

3. What is the appropriate apportionment between the State and Amaba?

Issue (a)   Exposure to asbestos dust from Amaba’s products

The evidence of the deceased

6. The deceased swore an affidavit on 28 October 2015 and was cross-examined before me at a hospital on 29 October 2015.

7. The deceased deposed that he commenced work at Everleigh on 16 August 1971 as a cleaner.

8. His duties involved cleaning the interior and exterior of passenger carriages including, interstate and suburban trains. Some of the trains had running water and bathroom facilities on-board. On these trains, the deceased was required to access the underneath of the carriages to fill the fresh water tanks by attaching a hose. The carriages would be positioned over a maintenance pit to allow workers to walk underneath them.

9. Often the deceased worked alongside other workers conducting mechanical and maintenance work on the carriages, including work on the wheels and brakes. The deceased saw other workers clean out and replace the brakes and that work produced dust and dirt in the airspace beneath the carriage. The deceased observed that the workers performing brake work were often wearing masks. The deceased was not provided with a mask and breathed in the dust liberated from the work. The deceased estimated that he spent about 3-4 hours of each shift working under carriages. The deceased noticed that after working under a carriage that his clothes, hands and face were covered in dust, dirt and grime.

10. Other areas at Everleigh, including the canteen were dusty and dirty places. The deceased was relocated to Chullora Railway Workshop (Chullora) in November 1981. At Chullora the deceased did not work underneath carriages.

11. The deceased was not cross-examined by the State or Amaba on these aspects of his affidavit.

The evidence of David Reid

12. The State tendered an affidavit of David Edward Reid sworn 12 June 2012, pursuant to section 25(3) Dust Diseases Tribunal Act 1989.

13. Mr Reid was employed as an apprentice fitter machinist by the State Rail Authority (SRA) on 25 January 1982. For the first 12 months of his apprenticeship, Mr Reid attended the SRA Training College at Chullora. Mr Reid then worked at Chullora and at various railway stations in the city performing escalator maintenance for 6-12 months.

14. In or about mid-1983, Mr Reid began working at Everleigh. Mr Reid’s work as an apprentice at Everleigh included some of the most dusty and dirty jobs.

15. On occasions, Mr Reid was required to replace the brake linings on carriages from the maintenance pits underneath them. Mr Reid described the removal of an old brake shoe as creating a lot of dust that would deposit on his hands, clothes and in the work area. He then used an air hose or his hands to clean out the brake cradle (where the brake lining was inserted) to remove any dust before inserting the new brake shoe. Mr Reid did work involving the replacement of brakes about 2 to 3 times per week for 2 to 3 hours at a time. Some of the brake work Mr Reid did was not from the maintenance pit and it is not possible to ascertain from the affidavit the proportion of time involved in brake work in the maintenance pit.

Evidence of supply of Amaba’s products

16. Exhibit PX3 was a bundle of documents relating to the supply of brake linings to the State by the Amaba for use in trains for the period of about September 1962 to (relevantly) December 1983.

17. Between 1979 and 1981 the brake linings were specified to contain 17% chrysotile asbestos by weight.

18. Amaba supplied the asbestos containing brake shoes from as early as September 1962.

19. The number of brake linings supplied in the relevant period was significant being 4,000 blocks per week as at 9 March 1971, 5,500 per week as at 24 May 1972 or 280,000 per annum as at 5 May 1976.

20. The period of supply extended to at least 31 December 1980. The State commenced to purchase only non-asbestos brake shoes in December 1983.

Findings on the exposure issue

21. The applicable standard of proof is on the balance of probabilities. A court can be satisfied of an issue on the balance of probabilities based on circumstantial evidence: Seltsam Pty Ltd v McGuiness at (2000) 49 NSWLR 262 at [90]. This requires considering the weight that can be given to the united force of all of the circumstances put together: Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279.

22. Facts can be inferred on the basis of the primary facts, if it is reasonable to draw the inference: Luxton v Vines (1952) 85 CLR 352 at 358.

23. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. Some facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability: Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 142 at 169-170.

24. Whilst the employment of Mr Reid at Everleigh occurred after the deceased had left to work at Chullora, I am satisfied that the brake work on carriages situated over maintenance pits was conducted in the same way as described by Mr Reid during the period of the deceased’s employment. The unchallenged evidence of the deceased was that other workers worked on the brakes of the carriages whilst he was underneath them and that work was dusty. The deceased’s evidence that sometimes those workers wore masks corroborates Mr Reid’s evidence that it was dusty work.

25. The evidence is clear that Amaba was supplying the asbestos brake shoes during the period of the deceased’s employment and for at least 10 years prior to that. In other words, the deceased was being exposed to the dust created by the removal of brake shoes supplied by Amaba as well as the dust created by the fitting of new brake shoes supplied by Amaba in the relevant period of 1971 to 1981.

26. It is not necessary to find that Amaba was the only supplier of asbestos brake shoes in that period.

27. It is possible that the deceased was exposed to other sources of asbestos at Everleigh, but there is no evidence from which it is reasonable to draw that inference.

28. I am satisfied on the balance of probabilities that the deceased was exposed to asbestos dust from Amama’s products whilst employed at Everleigh between 1971 and 1981.

Issue (b)   Amaba’s breach of duty

29. It is well recognised that the supplier of dangerous goods owes a duty to warn of the dangers associated with the use of the product and that the duty extends to purchasers of the products and their employees: CSR Ltd v Wren (1998) Aust Torts Reports 81-461 at [25]-[26].

30. By 1968 Amaba knew that automotive mechanics performing brake maintenance procedures involving the drilling and grinding of their products were at risk of contracting mesothelioma: Booth v Amaba Pty Ltd [2010] NSWDDT 8.

31. The extent of supply by Amaba to the SRA at Everleigh was significant and the potential for the SRA workers to be exposed to asbestos from those products was substantial. Amaba knew or ought to have known that the SRA workers including bystander workers engaged in other tasks, were exposed to asbestos dust from the removal of spent brake shoes on a regular basis because they were removing and replacing hundreds of the asbestos brake shoes on a daily basis.

32. It was submitted on behalf of Amaba that there is no evidence of the warning that should have been given or that the SRA would have complied with it and accordingly there was no breach of duty. The submission should be rejected for the following reasons.

33. First, this is a case where no warning was given. Second, the content of the warning can be inferred from what was known or ought to have been known about the dangers of asbestos at the relevant time. The warnings issued by James Hardie & Coy Pty Ltd in January 1979 in [42] below were inadequate. The statement that the dust was not harmful unless inhaled in large quantities was inconsistent with the knowledge of the scientific community from 1965 onwards and in industry by 1979 that asbestos in small amounts was capable of causing mesothelioma. The warning did not refer to the risk that was posed, that is the risk of death from mesothelioma so as to render the tenor of the warning useless. Third, the SRA took steps to require mandatory breathing protection when it decided that asbestos posed a risk to the health of its workers. I infer that it would have also implemented any steps required to give effect to a warning from Amaba, had one been given.

34. In the present case I am satisfied that Amaba was in breach of the duty it owed to the deceased.

Issue (c)   Apportionment

35. Section 5(2) Law Reform (Miscellaneous Provisions) Act 1946 provides:

In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power ti exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

36. The apportionment of the respective share of responsibility for damage involves a comparison of both culpability, ie the degree of departure from the standard of care of the reasonable person, and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party that must be subjected to comparative examination: Podrebersek v Australian Iron and Steel (1985) 59 ALJR 492 at 494 per Mason, Wilson, Brennan and Deane JJ.

37. The State is sued as the successor to the deceased’s employer the SRA. The SRA was in the business of providing public transport. It was not a manufacturer of asbestos products. Amaba supplied the asbestos products to the SRA for profit.

38. The SRA owed the deceased a non-delegable duty of care.

39. Amaba owed the deceased a duty of care to warn him of the risks to health posed by exposure to asbestos dust from its products.

40. On the evidence, for some years prior to 1978 the SRA had knowledge of the dangers of asbestos. In 1978 it required the use of personal protective equipment by its employees including respiratory protection. On 7 December 1978 the Resident Engineer issued a directive to all “Engineers, Foremen, Sub-Foremen, Gangers and Leading-Hands” requiring the mandatory wearing of protective equipment, combination overalls and breathing equipment, when required to use or work in close proximity to workers using asbestos. I infer from the directive and the deceased’s evidence that this requirement did not extend to cleaners for the following reasons. First, having regard to the levels of demarcation in the workforce in the 1970’s it is unlikely that the cleaners were supervised by a Foreman or Leading-Hand. Second, it appears on the evidence that the other workers working in the maintenance pit were issued with masks and that they wore them. Third, the directive was related to the payment of an allowance to workers required to work with asbestos and there is no evidence that the deceased was paid such an allowance.

41. Based on this evidence I find that by about 1978 the SRA was taking steps to minimise its workers to the risks posed by exposure to asbestos dust, but that the approach was incomplete and it did not provide for workers such as the deceased.

42. In January 1979 James Hardie & Coy Pty Ltd published a ‘background note’ entitled ‘Asbestos and Health’. The State has previously discovered this document as a document that it had in its possession shortly after its publication. In the section ‘Asbestos in Brake Linings’ it stated:

The dust found in brakes or clutch assemblies when they are dismantled for repair or maintenance is potentially harmful only if inhaled in large quantities. The dust is very fine and should be removed with a damp rag or vacuum. Compressed air should not be used to clean out the brake drum as this could result in any asbestos fibres in the dust becoming airborne.

43. There is no evidence that there was any warning on the packaging of the asbestos brake shoes supplied by Amaba to the SRA, or any warning given by it to the SRA. Had such a warning had been given I am satisfied that the SRA would have advised its workforce of it and developed responses to the risk of exposure to asbestos.

44. Amaba had actual knowledge of the dangers of asbestos from 1968. It is also probable that it had the knowledge of James Hardie & Coy Pty Ltd, which has been found in other cases from about 1950, but that point is unnecessary to decide in this case.

45. In summary, both the State and Amaba had actual knowledge that exposure to small amounts of asbestos could cause mesothelioma. Both of them took limited and ineffective steps from about 1978 to protect the deceased from the risk. Amaba supplied the products for profit and was more morally culpable than the State that was involved in the provision of public transport. The State was in a better position to control the deceased’s exposure to asbestos during the course of his work.

46. Taking into account all of the evidence, the appropriate apportionment is 50% to the State and 50% to Amaba.

47. The orders I make are as follows:

1. Verdict for the Cross-Claimant on the Cross-Claim.

2. I direct that the parties bring in short minutes of order to give effect to this judgment.

3. I will hear the parties on costs.

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Decision last updated: 15 December 2017