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

[2005] NSWDDT 60

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Cassar) Stevedoring Industry Finance Committee v James Patrick and Co Pty Ltd (in liquidation) & Anor [2005] NSWDDT 60
PARTIES:	Stevedoring Industry Finance Committee James Patrick and Co Pty Ltd (in liquidation) Patrick Operations Pty Limited
MATTER NUMBER(S):	17/01/1
JUDGMENT OF:	Curtis J at 1
:-
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c) Dust Diseases Tribunal Act 1989, s 25B
CASES CITED:	Gibson v Stevedoring Industry Finance Committee (unreported 2 June 1998, DDT 89 of 1996); SIFC v Patrick Operations Pty Ltd; re Michael Cassar (DDT 440/02 unreported 26 June 2003); SIFC v Patrick Operations Pty Ltd; re Dankworth [2005] NSWDDT 14; SIFC v James Patrick and Co Pty Ltd (In liquidation) & Anor (Re Bowie) [2005] NSWDDT 59; Ross v Meggitt Overseas Ltd (1999) 18 NSWCCR 324; Macquarie Pathology Service Pty Ltd v Sullivan (unreported NSW Court of Appeal 28 March 1995).
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 J 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 17 of 2001/1

(Re Spero Cassar)

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 Spero Cassar contracted asbestosis and asbestos related pulmonary disease as a result of inhaling asbestos dust and fibre in the course of his employment as a waterside worker in the port of Sydney between 1954 and 1971. His exposure to asbestos was as to 38 per cent in the employment of James Patrick and Co Pty Ltd (in liquidation) and Patrick Operations Pty Ltd and as to 62 per cent in the employment of other stevedoring companies. By agreement I treat the Patrick companies as one entity (Patricks).

2. On 12 January 2001 Mr Cassar sued the Stevedoring Industry Finance Committee (SIFC) in negligence and on 27 October 2003 recovered judgment in the sum of $130,000 plus the agreed sum of $30,000 for costs. SIFC has recovered contribution of $54,000 from other stevedoring companies.

3. SIFC, pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946, now claims against Patricks an order that Patricks contribute 38 per cent to the judgment and costs order. Such an order for pro rata contribution is consistent with my apportionment in Gibson v Stevedoring Industry Finance Committee (unreported 2 June 1998, DDT 89 of 1996) an apportionment not disturbed on appeal. It is also consistent with my judgment in SIFC v Patrick Operations Pty Ltd; re Michael Cassar (DDT 440/02 unreported 26 June 2003) and the decision of Duck J in SIFC v Patrick Operations Pty Ltd; re Dankworth [2005] NSWDDT 14.

4. For reasons expressed in SIFC v James Patrick and Co Pty Ltd (in liquidation)& Anor; re Bowie [2005] NSWDDT 59, which reasons I incorporate into this judgment, I believe those decisions to be wrong in so far as they relate to divisible damage.

5. In Ross v Meggitt Overseas Ltd (1999) 18 NSWCCR 324, Johns J, after a comprehensive review of medical evidence, held that asbestosis was a divisible condition to which serial tortfeasors had discretely and separately contributed. This decision has been accepted in subsequent cases in the tribunal as constituting a determination upon an issue of a general nature within the meaning of s25B of the Dust Diseases Tribunal Act 1989. Neither SIFC nor Patricks challenges the correctness of that determination. The asbestos related pleural disease from which Mr Cassar also suffers may or may not be a divisible condition, however in the circumstances SIFC bears the onus of establishing that it is indivisible and this onus has not been discharged.

6. SIFC is cumulatively liable for 100 per cent of the plaintiff’s damage which includes the divided liability to which other tortfeasors have contributed and the divided liability of Patricks for 38 per cent. The liability to which Patricks may be ordered to contribute is only the divided liability of SIFC for 38 per cent of the plaintiff’s damage, that is $60,800.

7. In apportioning responsibility pursuant to s5(1)(c) the Tribunal "is concerned with considering relative blameworthiness and the relevant causal potency of the negligence of each party" (per Clarke JA in Macquarie Pathology Service Pty Ltd v Sullivan (unreported NSW Court of Appeal 28 March 1995).

8. In the present case the separate breaches of duty by SIFC and Patricks led to the same asbestos fibres contaminating the workplace of Mr Cassar and the causal contributions by SIFC and Patricks to the plaintiff’s damage are equal. It is appropriate then to apportion liability in accordance with my views as to relative culpability. For the reasons set out in SIFC v James Patrick &Co Pty Ltd (in liquidation); re Bowie (supra), the relevant liability of SIFC to the plaintiff is to be apportioned 85 per cent to Patricks and 15 per cent to SIFC.

9. SIFC paid the judgment on 8 December 2003. I allow interest on $51,680 at 9 per cent for 702 days, $8,945.60.

10. Judgment for Stevedoring Industry Finance Committee against Patricks in the sum of $60,625.60.

Order Patricks pay the costs of Stevedoring Industry Finance Committee.

Mr J E Sexton SC with Mr A Scotting appeared for the cross-claimant

Mr I G Harrison SC with Mr JAD deGreenlaw appeared for the cross-defendant