(Re Bowie) Stevedoring Industry Finance Committee v James Patrick and Co Pty Ltd (in liquidation)

[2005] NSWDDT 59

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Bowie) Stevedoring Industry Finance Committee v James Patrick and Co Pty Ltd (in liquidation) & Anor [2005] NSWDDT 59
PARTIES:	Stevedoring Industry Finance Committee James Patrick and Co Pty Ltd (in liquidation) Patrick Operations Pty Limited
MATTER NUMBER(S):	204/04/1
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	:- cross-claim
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c)
CASES CITED:	Gibson v Stevedoring Industry Finance Committee & Ors (DDT 89 of 1996, 2 June 1998 unreported); SIFC v Patrick Operations Pty Ltd; re Michael Cassar (DDT 440 of 2002, 26 June 2003 unreported),; SIFC v Patrick Operations Pty Limited; re Dankworth [2005] NSWDDT 14.
DATES OF HEARING:	24/10/2005
DATE OF JUDGMENT:	11/09/2005
LEGAL REPRESENTATIVES:	FOR CROSS-CLAIMANT: Mr J E Sexton, SC with Mr A Scotting instructed by Blake Dawson Waldron. FOR CROSS-DEFENDANT: Mr I G Harrison, SC with Mr J A D de Greenlaw instructed by McCulloch & Buggy.

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter No DDT 204 of 2004/1

(Re Laurence Edward Bowie)

Stevedoring Industry Finance Committee

(Cross Claimant)

v

James Patrick and Co Pty Ltd (in liquidation)

(First Cross Defendant)

and

Patrick Operations Pty Limited

(Second Cross Defendant)

9 November 2005

JUDGMENT

CURTIS J

1. Mr Laurence Bowie in 2002 contracted lung cancer as a result of intermittent exposure to asbestos as a stevedore between 1947 and 1978. His exposure was as to 67 per cent in the employment of James Patrick and Co Pty Ltd (in liquidation) or Patrick Operations Pty Ltd and as to 33 per cent in the employment of other stevedoring companies. By agreement I treat the Patrick companies as one entity (Patricks).

2. On 17 June 2004 Mr Bowie sued the Stevedoring Industry Finance Committee (SIFC) in negligence and on 6 December 2004 recovered judgment against SIFC in the sum of $200,000 inclusive of costs. Pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 SIFC claims against Patricks contribution to this judgment.

3. Consistently with my apportionment in Gibson v Stevedoring Industry Finance Committee & Ors (DDT 89 of 1996, 2 June 1998 unreported), an apportionment not disturbed on appeal, SIFC claims a pro-rata contribution which mirrors the causal contribution of fibres inhaled during the period of the plaintiff's employment by Patricks; that is 67 per cent of the judgment sum. Such a pro rata approach was applied by me in SIFC v Patrick Operations Pty Limited; re Michael Cassar (DDT 440 of 2002, 26 June 2003 unreported) and followed by Duck J in SIFC v Patrick Operations Pty Limited; re Dankworth [2005] NSWDDT 14.

The problem

4. If the damages are divisible, Patricks would, if sued, be liable only in respect of 67 per cent of the total damages. In such a case, in respect of the period of employment with Patricks, SIFC is also liable only as to 67 per cent of the damages, and a pro-rata apportionment pursuant to which Patricks is to pay to SIFC 67 per cent of the total damages would constitute the grant to SIFC of a complete indemnity in respect of its commensurate liability with Patricks for "the same damage" to the plaintiff.

5. If the damages are indivisible SIFC is, and Patricks, if sued, would be, liable for the whole of the plaintiff's damages and an order that there be a pro rata contribution from Patricks in respect of its period of employment would not constitute an indemnity. Such an order however may not be just and equitable in all the circumstances of the case.

6. In Gibson v SIFC (supra), a case involving asbestosis, I did not address the question of whether the damages were divisible or indivisible. If I intended in that case to grant to SIFC a complete indemnity, it was incumbent upon me to find whether or not the damages were divisible and, if they were divisible, to give reasons why a complete indemnity should follow. This I did not do.

7. Patricks, not unreasonably, submit that I should now revisit the question of apportionment in cases similar to Gibson. In each case I must decide whether the damages are divisible or indivisible, and, if I determine that the just and equitable contribution of Patricks is to amount to an indemnity, I must give reasons for that determination.

The present case

8. Patricks concede that if sued it would have been liable in damages to the plaintiff and does not take issue with the quantum of the plaintiff's judgment.

9. The respective roles of Patricks and SIFC in the management of waterfront labour were canvassed in my reasons for judgment in Gibson v SIFC and it is here unnecessary to repeat that material.

10. Upon the medical evidence before me there is no dispute that the damage suffered by Mr Bowie is indivisible. He has lung cancer. Both SIFC and Patricks are liable for the whole of his damage. The causal potency of the breach of duty by SIFC, which includes that 33 per cent of exposure for which Patricks bear no responsibility, is greater than that of Patricks.

11. Nevertheless to my mind the culpability of Patricks is far greater than that of SIFC for these reasons:

(1) Patricks as Mr Bowie’s employer owed to him statutory duties which did not fall upon SIFC;

(2) Patricks as Mr Bowie’s employer had far greater control of his working conditions;

(3) Patricks knew in advance of his assignment, that the cargoes upon which Mr Bowie was to work included asbestos.

(4) The duty owed by SIFC to Mr Bowie was a unique duty less broad in scope than the duty owed by Patricks as his employer.

(5) The failures of SIFC were failures to respond to the circumstances created by the negligent acts and omissions of Patricks and in particular to control by proscription the conduct of Patricks.

12. That being said, I do not believe that SIFC would be entitled to an indemnity if all serial tortfeasors were before the court. SIFC is not vicariously liable nor is it without fault. The breaches of duty by SIFC were not casual acts of negligence, but constituted a systemic failure, to have regard for the safety of men, including Mr Bowie, who were working in appalling conditions. In my opinion SIFC is responsible for 15 per cent of the damage as a result of its breaches of duty.

13. In a cross-claim by SIFC, involving liability to a waterside worker who has contracted an occupational disease and whose damages are indivisible, where all tort-feasors are not before the court, I believe it to be just and equitable that a stevedoring company/cross-defendant should contribute to the liability of SIFC in the ratio of 85 per cent of the proportion which the period of employment of the plaintiff by that stevedoring company bears to the whole period of causative employment for which SIFC is liable. That is, its contribution should be 85 per cent of a pro rata contribution.

14. In the present case a pro rata contribution would be 67 per cent. Eighty five per cent of that is, in rounded figures, 57 per cent. Patricks are to contribute to SIFC 57 per cent of SIFC’s liability to the plaintiff. Fifty seven per cent of $200,000 is $114,000.

15. I reject the submission by Patricks that I should take cognisance of the results in recent "labour hire" cases. The features of a labour hire arrangement cannot be imposed on the statutory regime that resulted from the Stevedoring Industry Acts. The major distinction lies in the fact that the duties owed to an employee by the labour hire firm and the client are commensurate.

16. SIFC paid the judgment on 15 February 2005. I allow interest on $114,000 at 9 per cent for 267 days: $7,505.26.

Orders

17. Judgment for SIFC in the sum of $121,505.26.

Order the cross-defendant to pay the costs of the cross-claimant.

Mr JE Sexton SC with Mr A Scotting appeared for the cross claimant

Mr IG Harrison SC with Mr JAD de Greenlaw appeared for the cross defendant