(Re Barlow) Power Technologies Pty Ltd v Vero Insurance Ltd

[2006] NSWDDT 6

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Barlow) Power Technologies Pty Ltd v Vero Insurance Ltd [2006] NSWDDT 6
PARTIES:	Power Technologies Pty Ltd Vero Insurance Ltd
MATTER NUMBER(S):	325 of 2000/4
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Dust Diseases Tribunal :- injury accident reasonable precautions professional duty
CASES CITED:	Martindale v Burrows (1997) 1 Qd. R. 243.; GRE Insurance Ltd v Bristile Ltd (1991) 5 WAR 440.; Favelle Mort Ltd v Murray (1976) 133 CLR 580.; Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR 14; Australian Casualty Co Ltd v Federico (1986) 60 ALJR 460.; Gray v Barr (1971) 2 QB 554.; Kodak (Australasia) Pty Ltd v Retail Traders Mutual Indemnity Insurance Association (1942) SR (NSW) 231.; Fraser v B N Furman (Productions) Ltd (1967) 1 WLR 898.; Albion Insurance Co Ltd v Body Corporate SP No. 4303 (1983) 2 VR 339.; Plasteel Windows Australia Proprietary Limited v Sun Alliance Insurance Ltd (1989) 5 ANZ Insurance Cases 60-918.; VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716.; Babcock Australia Ltd v Eraring Energy (No 2) (2001) 22 NSWCCR 141.; Carr v Inland Revenue Commissioners (1944) 2 All ER 163.; GIO General Ltd v Newcastle City Council (1996) 38 NSWLR 558.; E M Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434.
DATES OF HEARING:	6-9/03/2006
DATE OF JUDGMENT:	03/22/2006
LEGAL REPRESENTATIVES:	Mr P Webb QC with Mr T M Rowles Instructed by Carroll & O'Dea appeared for the cross-claimant Mr P W Neil SC with Mr D I Talintyre instructed by Church & Grace appeared for the cross defendant

JUDGMENT:

Diseases Tribunal of New South Wales

Matter Number DDT325 of 2000/4

(Re: Ross Lloyd Barlow)

Power Technologies Pty Ltd

(Cross Claimant)

v

Vero Insurance Ltd

(Cross Defendant)

22 March 2006

CURTIS J

JUDGMENT

1. A plaintiff, Mr Ross Barlow, was between 1968 and 1973 employed by certain transport companies to work at Vales Point and Munmorah Power Stations. His duties required that he tend the fly ash hoppers, loading trucks which carried away this waste. In the course of his work Mr Barlow inhaled asbestos dust and fibre released by employees of the Electricity Commission of New South Wales (Elcom) and Power Technologies Pty Ltd, (formerly ICAL Pty Ltd), (ICAL) who, at different times, performed maintenance on and repairs to the asbestos lagging of the boiler tubes above the hoppers. The boilers were designed and constructed for Elcom by ICAL.

2. In 2000 Mr Barlow contracted mesothelioma, and sued his employers and Delta Electricity (Delta), heir to the liabilities of Elcom, for damages.

3. Those proceedings were settled on 14 June 2001 for $1,175,000, Delta paying $956,250. Delta recovered a contribution to this liability from Amaca Pty Ltd in the sum of $235,000 and claimed further contribution from ICAL. On 3 December 2004, after a contested hearing, judgment was entered for Delta against ICAL in the sum of $483,691. ICAL now claims from Vero Insurance Ltd (Vero) indemnity against this judgment.

4. Vero is heir to the liabilities of Royal and Sun Alliance Insurance Ltd (Royal) which company was the public liability insurer of ICAL pursuant to a policy of insurance renewed annually between 1 October 1967 and 21 October 1974. Vero, admitting that Royal issued the policy to ICAL, has refused to indemnify ICAL.

The Policy

5. Relevant terms of the policy are as follows:

Now This Policy Witnesseth that in consideration of the payment of the premium and subject to the terms conditions exceptions and memoranda contained herein endorsed hereon or attached hereto the Company will pay to or on behalf of The Insured all sums which The Insured shall become legally liable to pay for compensation in respect of

(a) bodily injury (which expression includes death and illness)

(b)…

occurring during the Period of Insurance as a result of an accident and happening in connection with The Business carried on at and from any Place specified in The Schedule.

Exceptions

(l) claims arising out of a breach of the duty owed in a professional capacity by The Insured…

Conditions

4. The Insured shall exercise reasonable care that only competent employees are employed and shall take all reasonable precautions to prevent bodily injury…

Schedule- Particulars of Insurance: The Business: "Engineers", Places to which this policy applies: "South Street Rydalmere".

6. Vero asserts that it is not liable to indemnify ICAL because:

(a) No bodily injury was suffered by Mr Barlow during the period of insurance.

(b) ICAL did not become legally liable to pay compensation during the period of insurance.

(c) The injury to Mr Barlow was not the result of an accident within the meaning of the policy.

(d) ICAL is in breach of condition four of the policy because it did not take all reasonable precautions to prevent bodily injury to Mr Barlow.

(e) The claim arises out of a breach of a duty owed in a professional capacity by ICAL and is excepted by the policy.

(f) The claim exceeds the limit of indemnity.

(g) Mr Barlow's injury occurred at Vales Point and Munmorah and was not an injury in connection with "The Business carried on at and from" South Street Rydalmere.

7. I dismiss the last of these assertions as entirely without merit. Correspondence in evidence establishes that the business of ICAL in connection with the construction of boilers for Elcom was carried out from the "Head office and works" of ICAL at South Street Rydalmere.

Did Mr Barlow suffer bodily injury during the period of insurance?

8. I have before me medical evidence from Professor Martin Tattersall, Dr James Leigh, Professor Douglas Henderson and Dr Michael Burns. This evidence permits of certain conclusions. While the precise mechanism by which a mesothelioma arises is unknown, it commences with the inhalation of asbestos fibres. If these fibres are not cleared by cilial process, coughing, and swallowing within about two hours, it is because they have penetrated and lodged in the parenchyma of the lung. From the place of initial lodgement some fibres migrate to the surface of the pleura. There, defence mechanisms of the body, unable to break down or expel the fibres because of their size, release chemical agents, which send messages to other cells causing some genetic damage. At a later time, shortly before the presentation of symptoms, continuing genetic damage results in the uncontrolled proliferation of mutant cells which constitutes the disease of mesothelioma. In every case the mesothelioma develops as a result of the challenge to the immune system created by the total fibre burden.

9. Dr Burns states that in medical terms penetration of the lung by asbestos fibres constitutes injury.

10. Vero submits that because the fibres which initially penetrate the lung may not migrate to the pleura, and, even if they do may not induce a mesothelioma, injury occurs only when the genetic changes in the pleural cells become irreversible. The flaws in this reasoning were elegantly exposed in a judgment of Derrington J in Martindale v Burrows (1997) 1 Qd R 243 where at 245-246 His Honour said this:

However all of this simply means that although the harm in this case was in fact caused from that exposure, not everyone would have suffered the same result. It is irrelevant that in some cases there is no progress to the malignant transformation. It is relevant that in those cases where it does so, its course can be traced back through the harm that has led to it by a natural progression in that case. The tendency to refer to hypothetical alternatives that may possibly have occurred with someone else can lead into error if it is used for more than to mark the unpredictability of the plaintiff’s condition in its early stages…

Here, there was an ongoing established injury, imperceptible in its beginning and incremental nature, that has led to a cumulative result which [is] perceptible and identifiable…. The harm done to him in causing the changes to his body that would lead to such a result amounted to an injury. This cannot be insubstantial if it is part of a total process with such a catastrophic result, and it would be artificial to analyse the totality by reference to its discrete parts.

…

The appearance [of mesothelioma] establishes that the earlier morbid changes were indeed so serious as to be productive of mesothelioma at the later stage and were not merely potentially so.

11. A similar view was taken by the Full Court of Western Australia in GRE Insurance Ltd v Bristile Ltd (1991) 5 WAR 440. In the course of his judgment Nicholson J added that:

The appellant admits the finding that the asbestos fibres which eventually caused the mesothelioma in the plaintiff were inhaled during the period when the appellant was at risk. That seems to me to be decisive that the entry of fibres into the plaintiff's body constituted an injury. It precludes the necessity of examination of the medical evidence.
Mr Neil SC for Vero, in argument quite properly conceded that the fibres responsible for Mr Barlow's mesothelioma were inhaled by him during the period of risk.

12. Barwick CJ in Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 587 said that in the context of workers’ compensation law "…an external excitement initiating a morbid condition of the body would, in my opinion, be an injury". The otherwise trivial injuries constituted by penetration of a lung by fibres must in this case be seen as indistinguishable from their dire consequences no less than the otherwise trivial injury by mosquito bite in Favelle Mort could not there be distinguished from its disabling effect. The injuries in each case did not create the risk of contracting a disease, they directly caused the diseases in question.

13. I find that bodily injury to Mr Barlow occurred during each of the several periods of insurance effected from 1 October 1967 to 1 October 1974.

Is the indemnity limited to liability occurring during the period of insurance?

14. Vero relies upon Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR 14 as authority for the proposition that a cause of action in a plaintiff who has suffered injury by lodgment of asbestos fibres in his lungs or pleura cannot arise until he suffers actionable damage upon the development of a cancer, and before that time a tortfeasor cannot be liable in damages because: "[the] liability remained inchoate in the eyes of tort law, damage is the gist of the relevant cause or causes of action" (per Mason P at 28). So much may be accepted. The policy of insurance there considered is however quite different to that issued by Vero to ICAL.

15. The court in Orica considered the terms of a statutory policy which provided indemnity "If, between (date) and (date) the Employer shall be liable to pay compensation". Vero’s policy provided indemnity against liability “…In respect of… bodily injury… occurring during the period of insurance”. The Orica policy fixes upon the date of liability, the Vero policy upon the date of injury. The decision in Orica is irrelevant.

16. I find that upon a proper construction of this policy Vero is liable to indemnify ICAL in respect of a liability which is in respect of bodily injury occurring during the period of insurance but which liability need not itself occur during that time.

Was the injury to Mr Barlow the result of an accident?

17. Not being capable of single precise and exact definitions for all purposes, the words accident and accidental tend to take their particular meaning from context. The Shorter Oxford English dictionary includes for accident the meanings "1. An event that is without apparent cause or unexpected; an unfortunate event, esp. one causing injury or damage; 2. chance, fortune" and for accidental, “4. happening by chance, undesignedly or unexpectedly"

18. In Australian Casualty Co Ltd v Federico (1986) 60 ALJR 460 at 465, Wilson and Deane and Dawson JJ said:

As a matter of ordinary language in this country, an "accident" (from the Latin accidens) means very much what the etymologist would expect. It is something which happens without intention or design. When used with reference to something which causes injury, it means an unexpected and unintended mishap.
Their Honours however did go on to say:
…it may, in some cases, be necessary to define with greater precision what is involved in the notion that a mishap be unintended and unexpected. An obvious example of a case where more precise definition of those notions would be required is where the risk of the mishap was foreseen or courted even though it was thought unlikely that it would occur.

19. Gray v Barr (1971) 2 QB 554 is an example of a case where the meaning of the word "accident" in an insurance policy is to be constrained by circumstance. Barr took a loaded shotgun to Gray's farm and fired one shot into the ceiling to frighten him. When Gray grappled with Barr, Barr involuntarily fired a second shot which killed Gray. Barr was acquitted of murder and manslaughter upon his plea that the death of Gray was accidental. When sued by the administrator of Gray's estate he claimed an indemnity from his insurers under a household policy. His claim was held to be barred by public policy. Phillimore LJ at 586 said:

No doubt the word "accident" involves something fortuitous or unexpected, but the mere fact that a wilful and culpable act-which is both reckless and unlawful-has a result which the actor did not intend surely does not, if that result was one which he ought to reasonably have anticipated, entitle him to say that it was an accident.

20. Vero submits that the conduct of ICAL which resulted in the injury to Mr Barlow was so deliberate and reckless that the plaintiff's injury was not the result of an accident within the meaning of the policy. For reasons apparent in the following paragraphs I reject this submission.

Is ICAL in breach of the condition of the policy that it take all reasonable precautions to prevent the bodily injury?

21. It is ICAL which bears the onus of proof in this regard (Kodak (Australasia) Pty Ltd v Retail Traders Mutual Indemnity Insurance Association (1942) SR (NSW) 231). ICAL formally submits that this case was wrongly decided.

22. In expressing my reasons for judgment in Delta Electricity v Power Technologies Pty Ltd 3 December 2004 DDT 325 of 2002 I said under the heading "Culpability of ICAL":

It strains credibility to suppose that at the time the contracts were entered for the construction of these boilers ICAL was ignorant of the dangers posed by uncontrolled liberation of asbestos material during repair and maintenance work which would inevitably follow construction of the boilers. ICAL is to be blamed for failing to communicate to the Electricity Commission, at the time the contracts were let, in the clearest terms, those dangers and the necessity to adopt stringent precautions against workers inhaling asbestos fibres when the asbestos installed in accordance with the design was disturbed. That culpability was aggravated by the failure of ICAL to itself maintain a safe system for its own workers handling asbestos so that predictably the maintenance processes adopted by ICAL were adopted by Elcom workers. This culpability of ICAL is compounded because asbestos and water tube boilers were central to the business of ICAL but only secondary to the business of Elcom.

23. Vero asserts that these findings inevitably lead to a finding of fact in this cross action that ICAL failed to take all reasonable precautions so as to prevent Mr Barlow suffering bodily injury from his exposure to asbestos fibres while working at the power stations. I am persuaded to the contrary.

24. The leading judgment on the interpretation to be placed upon a clause such as this is that of Diplock LJ, with which Wilmer and Wynn LJJ agreed, in Fraser v B N Furman (Productions) Ltd (1967) 1 WLR 898. The Court of Appeal (UK) there considered an employer's liability indemnity policy in which the relevant condition read "the insured shall take reasonable precautions to prevent accidents and disease". Diplock LJ said (at 905-6):

The first point to consider is a question of construction of that condition. It must be construed, of course, in the context of a policy of insurance against specified risks.

…

“Reasonable" does not mean it reasonable as between the employer and the employee. It means reasonable as between the insured and the insurer having regard to the commercial purpose of the contract, which is, inter alia, to indemnify the insured against liability for his (the insureds) personal negligence.

…

What, in my judgment, is reasonable as between the insured and the insurer, without being repugnant to the commercial purpose of the contract, is that the insured, where he does recognise the danger should not deliberately court it by taking measures that he himself knows are inadequate to avert it. In other words, it is not enough that the employer's omission to take any particular precautions to avoid accidents should be negligent; it must be at least reckless, that is to say, made with actual recognition by the insured himself that a danger exists, and not caring whether or not it is averted. The purpose of the condition is to ensure that the insured will not, because he is covered against loss by the policy refrain from taking precautions which he knows ought to be taken.

25. Diplock LJ's judgment was applied in Albion Insurance Co Ltd v Body Corporate SP No. 4303 (1983) 2 VR 339 at 345 where McGarvie J giving the leading judgment on behalf of the Full Court said (at 345):

The test is whether the insured deliberately courts the danger by refraining from taking any measures or by taking measures which he knows to be inadequate. The word "deliberately" indicates intentional, considered action or inaction. The verb "court" suggests action or inaction which invites the danger of accident. The test requires more than a recognition of the danger and failure to take any measures or any measures known to be adequate to avert it. It requires that this be due to a deliberate decision to court the danger" (emphasis added).

26. Perception of the risk is to be determined by the subjective view of the insured, not that of a reasonable bystander, even if the subjective view was foolish (Plasteel Windows Australia Proprietary Limited v Sun Alliance Insurance Ltd (1989) 5ANZ Insurance Cases 60-918).

27. It is patent ICAL had cause to know, both at the time the contracts to erect the boilers were let and at the time that it carried out its own maintenance operations, that persons who were exposed to certain concentrations of asbestos dust liberated in the course of maintenance activities faced a risk of injury. There is no evidence that it took any precaution to obviate that risk. The question is then whether the failure on the part of ICAL to take precautions was the result of a deliberate and conscious decision by its proper officer to court the risk.

28. I have found that the negligence of ICAL consisted of:

(a) Failing, at the time it secured the contract for the erection of the boilers, to warn the Electricity Commission of the need to adopt stringent precautions when asbestos was handled in the repair and maintenance of the boilers.

(b) Failing, at the time that ICAL employees performed maintenance and repair work on the boilers, to maintain a safe system for working with asbestos.

29. Any deliberate decision to court a danger must relate to the particular risk that came home. Mr Barlow was not employed in the application or removal of asbestos. He was employed by a transport company to load fly ash into trucks. I believe it improbable that at the time ICAL entered the contracts for the construction of the boilers the person having the relevant delegation within the enterprise which was ICAL would have turned his mind to the combination of events that placed such a worker at risk, yet alone formed a deliberate intention to court that risk.

30. Upon the evidence of Mr Barlow, Mr Davis, and Mr Gorsuch in this case, ICAL engineers and employees complied with the standard industry practices followed by the various corporations engaged in the construction and maintenance of coal-fired generators for Elcom. Their evidence is sadly consistent with evidence frequently before this tribunal. It may be accepted that compliance with industry standards is no defence to a case brought in negligence. I believe however that, on another plane, industry practice reflects the general standards of civilised behaviour accepted in both the community at large and within any given industrial community. Observance by a tortfeasor of work practices general in an industry is, to my mind, prima-facie evidence that the tortfeasor has not deliberately courted a risk.

31. It is improbable that all the engineers employed in the design, construction and maintenance of power stations by various commercial and governmental concerns, whose responsibilities included matters of safety, were uniformly unconcerned with the health of the men working upon their projects and men who shared a deliberate choice that they would acquiesce in the possibility of injury to those men. To the contrary I believe that, because they acted in common in the development and acceptance of what proved to be unsafe work practices, these work practices were not the result of any deliberate decision of any one of them to court known dangers. Over one half of the asbestos dust to which Mr Barlow was exposed was generated by work which was not performed by ICAL.

32. VACC Insurance Ltd v BP AustraliaLtd (1999) 47 NSWLR 716, upon which Vero relies, was a case in which the insurer escaped liability to indemnify in respect of an insured’s liability for damages to a customer severely burned when petrol ignited at the insured’s service station. In awarding exemplary damages the trial judge said "in spite of [knowing] the offending petrol bowser, in certain circumstances, would spontaneously discharge fuel, [the insured] permitted the bowser to be used whilst it was so prone to malfunction. I regard this, given the nature of the product and its inherent dangerousness, as displaying a recklessness in the extreme…".

33. In contrast, at the time of Mr Barlow's exposure to asbestos it was not thought that that substance was inherently dangerous. The scientific community had not yet concluded that there was no safe level of exposure, although the extent of the risk was believed to rise and fall in proportion to the concentration of asbestos dust and the period of exposure. Expert guidance was necessary to assess the gravity of the risk in any instant case. In Babcock Australia Ltd v Eraring Energy (No 2) (2001) 22 NSWCCR 141 at 173-174 I said this:

I have no cause to believe that the engineers employed by BIL, by BAL, or the supervisors of Elcom were uniformly wilfully blind to the dangers or unconcerned with the health of the men. Their failures were failures to keep abreast of contemporary literature upon the safety aspects of their profession and to recognise the necessity for dust measurements at the Wangi site. The failure of their employers was a failure to appoint a person whose duty it was to collate and circulate to the engineers and inspectors, publications relevant to the safety aspects of the work.

. . .

The cause of the high incidence of asbestos related diseases after 1930 was systemic. There was a world of informed medical practitioners and scientists talking effectively to each other, and a separate world of practical men engaged in industry too distracted by the need for doing to enquire whether that which they were doing was safe. These latter men readily identified and responded to dangers such as explosions, electrocution and falls because they were immediate and apparent: recognition required no specialised knowledge. The failure of their employers to establish a process whereby unusual dangers such as unsafe concentrations of asbestos dust would be identified and obviated in the execution of this work, was a failure on the part of management which, given the gravity of its consequences, is sufficient to render the employer liable."

Seen in this light the failure of ICAL was an organisational failure. The nature of organisational failures is such that generally no one person is aware of the ramifications of a series of events and no one person responsible for the adverse consequences which may flow from that concatenation.

34. I am persuaded by all the circumstances that no one person who constituted the guiding mind of ICAL at any relevant time made a deliberate decision to court the danger to which Mr Barlow was exposed.

35. I find that ICAL has discharged its onus of proving that it was not in breach of the condition of the policy that it take all reasonable precautions to prevent bodily injury to Mr Barlow.

Does the claim arise out of a breach of the duty owed in a professional capacity by ICAL?

36. In Carr v Inland Revenue Commissioners (1944) 2 All ER 163 at 166 du Parcq LJ said

I think that everybody would agree that, before one can say that a man is carrying on a profession, one must see that he has some special skill or ability, or some special qualifications derived from training or experience. Even there one has to be careful, because there are many people whose work demands great skill and ability and long experience and many qualifications who would not be said by anybody to be carrying on a profession.

Ultimately one has to answer this question: Would the ordinary reasonable man,…say…of any particular occupation, that it is properly described as a profession?

37. Kirby P in GIO General Ltd v Newcastle City Council (1996) 38 NSWLR 558 at 568, referring to the judgment of du Parcq LJ, said: "the term "professional" in the context of professional indemnity insurance today is very broad…. The term involves, in the context of a policy written for a local government authority, no more than advice and services of a skilful character according to an established discipline. "

38. ICAL, when contracting for the construction of the boilers, owed professional duties to Elcom to ensure that the boilers were skilfully designed because ICAL held itself out as providing professional engineering services. At the time the dangers associated with asbestos were very much in the public domain and the possession of skill, learning, or special qualification was unnecessary to prudently cast upon ICAL the duty to advise Elcom of the relevant dangers. Elcom was a large quasi-governmental instrumentality which already operated coal-fired power stations where asbestos was used extensively.

39. I do not believe that ICAL in these circumstances, when discharging its professional duties to Elcom, owed a further duty to Elcom to warn against the dangers of this product. The duty to warn was a common law duty owed to Mr Barlow against the foreseeable possibility that Elcom would itself be negligent, not a professional duty owed to Elcom.

40. If I am wrong in that, it is relevant that I have found in the primary proceedings that Elcom acquired actual knowledge of the dangers of asbestos in January 1970. Any claim in respect of liability for injury occurring after that date cannot be one "arising out of" any earlier breach of a duty owed in a professional capacity.

41. The maintenance work carried out by tradesmen employed by ICAL upon the boilers which liberated asbestos dust inhaled by Mr Barlow was not work performed in a professional capacity on any commonly accepted use of the word "professional".

42. I find that the claim does not arise out of a breach of the duty owed in a professional capacity by ICAL.

Does the claims exceed the limit of indemnity?

43. The limit of indemnity prior to 1 October 1969 was $200,000. Thereafter it was $500,000. Mr Barlow was exposed to asbestos until 1973. In reliance upon dicta of Spigelman CJ in Orica, Vero argues that it is liable in respect of one policy only and that is the policy on foot when Mr Barlow first suffered injury upon inhaling asbestos in 1968.

44. At paragraphs 56 and 57 of his judgment Spigelman CJ said:

The Employer becomes "liable to pay" upon a single penetration with respect to the whole of "his liability" at common law. When another penetration occurs the employer's "exposure" or "risk", and therefore "liability", is not changed….It may be that the employer's "liability independently of the act" has become more likely to come home, because of the cumulative effect of the explosions, but that is a different matter. Establishing the state of affairs in which the employer is "liable to pay" occurs only once. That state of being "liable" is not affected by other exposures.

Only one cause of action will arise at common law against the employer for the development of mesothelioma, despite there having been multiple "injuries" within the meaning of the policy. There will be only one occasion on which the employer will become "liable to pay". It does not matter in the present case when that occurs.

45. It must be noted that His Honour proceeded in Orica on the basis that the relevant facts relating to the aetiology of mesothelioma were agreed by the parties to be as set out in the judgment of Fitzgerald AJA in E M Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434 at 477, summarised by Santow JA in Orica at par 195.

46. In the present case I have before me additional medical opinion comprising the evidence of Professor Martin Tattersall given in the matter of Hoyle. Professor Tattersall would not there accept a proposition put to him in cross examination that, after inhalation of asbestos fibre sufficient to, upon epidemiological evidence, cause mesothelioma, any subsequent exposure was upon the probabilities not causative of mesothelioma in an instant case. The professor said at page 184 of the transcript:

What I'm saying is that there is a relationship between the lung quantity of fibre and the risk of mesothelioma being diagnosed, and so in answer to your question "Was the first year of a 10 year exposure as likely as the 10th year of a 10-year exposure to cause it", I said "No, the 10th year of a 10 year exposure is associated with a greater quantity being retained in the lung and that correlates with the risk.
at page 185:
Q. But Doctor, as I understand it then, the first fibre has a higher potentiality because of the lapse of time, but the last fibre has a greater potentiality because of its incremental effect upon an already high fibre burden.

A. Because there are more fibres.

Q. So the last fibre also has an increased potentiality because of everything that's gone before.

A. That’s the conclusion I would draw from the relationship between cumulative retention and risk.

at page 192:
Q. In the particular case of Mr Hoyle is it your view that it is equally conceivable that the cause was his exposure before 1961 equally as caused after, or that it was the risk before 1961 is equal to the risk after 1961.

A. I think I would say it is the cause which is equally conceivable not the risk.

and :
You can suggest to me that that is epidemiological evidence relating to cohorts of individuals but in Mr Hoyle's case I cannot accept that the post-1961 exposure did not cause his mesothelioma.

47. Mr Barlow's mesothelioma resulted from the totality of his asbestos inhalation. Upon Professor Tattersall's evidence it is not possible to conclude upon the probabilities that he would have developed this mesothelioma without the burden of his final year of exposure. In that circumstance is not possible to demonstrate that ICAL was or would have been liable "in respect of…bodily injury…occurring during" any previous year of cover. The only probability upon which the resolution of this dispute must rest is that the mesothelioma, and the liability of ICAL, was caused by the final year of exposure. It is the policy issued in that year which responds to that liability and the limit of indemnity in that policy is $500,000.

Orders

48. Judgment for Power Technologies Pty Ltd in the sum of $483,691.

Liberty to apply in relation to interest.

Vero Insurance Ltd to pay the costs of Power Technologies Pty Ltd.

Mr P Webb QC with Mr TM Rowles instructed by Carroll and O’Dea appeared for the cross claimant

Mr P W Neil SC with Mr D I Talintyre instructed by Church and Grace appeared for the cross defendant