(Re Cheong) SRA v Amaca P/L

[2006] NSWDDT 24

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Cheong) SRA v Amaca Pty Ltd [2006] NSWDDT 24
PARTIES:	State Rail Authourity of New South Wales (Cross Claimant) Amaca P/L (First Cross Defendant) Wallaby Grip Ltd (Settled 20/03/2006) (Second Cross Defendant) Wallaby Grip (BAE) P/L (In Liquidation) (Settled 20/03/2006) (Third Cross Defendant) Bradford Insulation Industries P/L (Fourth Cross Defendant)
MATTER NUMBER(S):	192/03/1
JUDGMENT OF:	Duck J
CATCHWORDS:	Dust Diseases Tribunal :-
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946
CASES CITED:	Wallaby Grip Ltd v State Rail Authority of NSW and Ors and James Hardie and Coy Pty Ltd v State Rail Authority and Ors (2001) 21 NSWCCR 650; (re Woelfl) State Rail Authority of New South Wales v Amaca Pty Ltd and Ors DDT 61/1998/1; Macquarie Pathology Services Pty Ltd v Sullivan NSW CA 28 March 1995, unreported; Wynbergen v Hoyts Corporation Ltd (1997) 149 ALR 25
DATES OF HEARING:	19 - 21/07/05
DATE OF JUDGMENT:	07/25/2006
EX TEMPORE JUDGMENT DATE:	07/25/2006
LEGAL REPRESENTATIVES:	M F Holmes QC instructed by Edwards Michael Moroney Lawyers appeared for the cross claimant D J Russell SC instructed by Phillips Fox appeared for the First Cross Defendant W P Y Austron instructed by Makinson & D'Apice appeared for the Fourth Cross Defendant

JUDGMENT:

DUCK J

1 The Tribunal has before it a cross-claim brought by the State Rail Authority (State Rail) against suppliers to it of asbestos products. The cross-claim is brought in proceedings originally commenced by Raymond John Davey against State Rail, who was his employer. Mr Davey was a man who had been born on 8 February 1933. He commenced employment with State Rail in 1950. Between 1950 and 1960 or 1961 he worked at Narrabri, firstly as an engine cleaner, later as a fireman and an acting locomotive driver. In 1961 he was transferred to the Enfield depot of State Rail, where he worked driving locomotives until his retirement in 1991. He commenced proceedings for damages in respect of the condition of asbestosis, which he pleaded arose as a result of the negligence of his employer. The statement of claim was filed on 19 May 2003. He died on 7 August 2003. His claim was settled by State Rail on 21 May 2004, on which date judgment was entered in the action which had been appropriately reconstituted following his death. The judgment was for $200,000 inclusive of costs.

2 The cross-claim was filed on 9 September 2004. The cross-defendants were Amaca Pty Ltd (Amaca) formerly James Hardie & Coy Pty Ltd first cross-Defendant, Wallaby Grip Ltd second cross-defendant, Wallaby Grip (BAE) Pty Ltd (in liquidation) third cross-defendant and Bradford Insulation Industries Pty Ltd (Bradford) fourth cross-defendant.

3 The cross-claim was settled in part by the Wallaby Grip companies for $60,000 plus costs and an amount for interest. Evidence of the way in which that settlement was reached is contained in exhibit C, a letter from the solicitors acting for the Wallaby Grip companies to the solicitors acting for State Rail.

4 An order for judgment to give effect to the settlement was made on 20 March 2006. It is the balance of the cross-claim that requires adjudication by the Tribunal now.

5 Addresses took place on Friday afternoon. I listed the matter for judgment this morning. I was able to do so only because counsel who appeared in the matter were extremely familiar with the documents evidencing a course of business between the cross-claimant on the one hand and the cross-defendants on the other, and further because the Tribunal had considered aspects of the relationship between some suppliers and State Rail in Rayner v State Rail Authority of NSW and Ampol Refineries (NSW) Pty Ltd DDT 72/96 and the cross-claims therein. That case went on to the Court of Appeal and is reported under two names, Wallaby Grip Ltd v State Rail Authority NSW and Others and James Hardie and Co Pty Ltd v State Rail Authority and Others (2001) 21 NSWCCR 650 so that the relevant principles have been the subject of consideration at the level of the Court of Appeal. Further, I have had the benefit of the judgment of Walker J in a matter of Woelfl DDT61/1998/1 and the cross-claim therein which was against Amaca Pty Ltd and Wallaby Grip Ltd. In the light of those matters it is not necessary to attempt to recount the legal history which gives rise to the necessary principles but simply to state them shortly in the convenient form adopted by Mr Russell, SC in part of his submissions.

6 The relevant principles may be stated as follows: firstly, a claim by one negligent tortfeasor against another is a statutory cause of action brought pursuant to s 5(1)(C) of the Law Reform (Miscellaneous Provisions) Act 1946. This provides that:

(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):
(a)…

(b)…

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which contribution is sought.

7 The second limb of the submission is as follows: the Court is given a broad discretion to apportion blame between two tortfeasors under s 5(2) of the Act which 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 to exempt any person from liability to make contribution, or to direct that contribution to be recovered from any person shall amount to a complete indemnity.

8 The third limb of the submission is as follows: in Macquarie Pathology Services Pty Ltd v Sullivan (NSW CA 28 March 1995 unreported) Clarke J stated that in considering the phrase "responsibility for the damage" the Court had to compare the parties’ relative culpability in causing the damage. His Honour said:

The Court is concerned with the relative blameworthiness and the relevant causal potency of the negligence of each party.

9 The fourth limb of the submission is put this way: in Wynbergen v Hoyts Corporation Ltd (1997) 149 ALR 25 at 29 Hayne J said that regard must be had to the relevant importance of the acts of the parties in causing the damage, and it is:

…the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.

10 I accept that the submission sufficiently and clearly states the principles which are to be applied in this case. In a moment I will make reference to evidence about the nature of the plaintiff's exposure, the nature of the documentation evidencing supply of products by the asbestos suppliers to the State Rail Authority and attempt to apply the necessary principles. There are a couple of cautions to which reference has been made in submissions which the Tribunal must bear in mind. Firstly, the condition from which the plaintiff suffers is asbestosis, a divisible condition. A cross-defendant can only be ordered to make contribution in respect of such damage as his conduct caused. Secondly, it is not permissible to say the Wallaby Grip companies have put in by way of settlement $60,000 and use that as a starting point for the calculation of the contribution of others. This is so firstly because what moves a party to settle a case is generally not known. Settlement might be undertaken for any number of reasons, some of them entirely private to the party to the litigation.

11 The second caution related to the fact that the Wallaby Grip companies have settled arises from the fact that they agreed to their settlement before Walker J had given judgment in Woelfl. The significance of that judgment inter alia is that whereas in Rayner Curtis J had found that State Rail had no actual knowledge of the dangers of asbestos up to 1950, Walker J found that from 1950 and afterwards State Rail had actual knowledge of the dangers, although that knowledge was not as extensive nor as profound as the knowledge of the asbestos suppliers. Hence, it is submitted, and I accept, that the fact of the settlement by the Wallaby Grip companies cannot provide a jumping off point, as it were, for the calculation of contribution of other tortfeasors.

12 In considering the blameworthiness of the parties knowledge of the risks is of course a significant factor, but the yardsticks by which blameworthiness might be assessed in this case, it seems to me, have been in a state of flux almost constantly from 1950 onwards. I mean by that that it has been found and may be accepted that State Rail had actual knowledge from 1950 onwards, but one might readily accept, I think, that the degree of that knowledge would develop with the passing of time. Hence as time passed it might reasonably be thought that the weight of blame might increase on the part of the party whose knowledge was deepening. There is another variable factor which needs to be taken into account, and that is that in 1950 to 1951 the total number of steam locomotives increased from 1145 to 1153. In a report bearing date 30 June 1961 the figures for steam locomotives were said to be 1959/1960: 1009, 1960/1961: 976. In a report bearing date 30 June 1971 the number of steam locomotives was 89. The total fleet of locomotives excluding steam was 491. It will be seen from those figures that another variable factor over the years during which the plaintiff was employed by State Rail was the diminishing number of steam locomotives, particularly between 1961 and 1971.

13 I turn then to consider the nature of the plaintiff's exposure. It is submitted, and I accept, that the nature of Mr Davey's exposure can be ascertained by reference to the following evidence, firstly, his own statement, which is annexure C to the affidavit of Mr Alex Stuart. The documents are to be found in vol 4 of the exhibits under tab 12. The statement is not signed. Mr Stuart deposed to the way in which he obtained his instructions and annexed his notes then typed copies of his notes and ultimately the statement that he had prepared for Mr Davey's claim. He deposed that Mr Davey had seen the statement and said that it required no amendment. Although initially Mr Stuart had been asked to attend for cross-examination about his affidavit in the end the parties seemed to accept it. He was not cross-examined and the statement has been accepted as Mr Davey's statement.

14 The second source of information about the nature of the plaintiff's exposure is his history to the Dust Diseases Board.

15 The third source of information about it are the histories given to various doctors. There was evidence from other workers, Mr Clyne and Mr Boyd about the nature of their exposure, and there is documentation about the materials supplied to State Rail, about which I wish to say something later.

16 In his own statement Mr Davey described his exposure at Narrabri, firstly as an engine cleaner, such exposure relating directly to those duties, and then he said towards the bottom of page 6 the following:

There was always an enormous amount of dust and fibre in the air as a result of the work carried out by the boilermakers, fitters, engine cleaners and labourers, particularly when work was being undertaken to the steam pipes or the repair or replacement of the brick arch to the firebox. This resulted in large amounts of dust and fibre being constantly in the air.

Whenever working at the Narrabri running sheds during the period from 1950 to 1960 I always observed dust and fibre in the air. I inhaled this dust and fibre on a daily basis while working at the running shed. On a daily basis whilst working at the Narrabri running shed, throughout each day I blew my nose and a thick dusty muck came out. Further, after each day's work at the Narrabri running sheds I was covered in dust and fibre and the first thing I did when I got home was to have a shower, given that I was so dirty and dusty.

17 In other words the plaintiff's account suggests that the major source of exposure was what might be described as bystander exposure. It was not simply that his own duties required him to work near asbestos but rather the work going on all about him was, as he described, productive of large quantities of asbestos dust. When he went to Enfield he worked as a locomotive driver, initially only as a steam locomotive driver (see p 7). After the introduction of diesel locomotives in the mid to late seventies steam locomotives were phased out over a number of years. Then after they had all been phased out, he said, I worked as a diesel locomotive driver for the last ten years or so. Throughout the thirty-one year period he had at Enfield the plaintiff said about 50 per cent of his time involved him doing shunting work at that depot. He also had some shunting work at other places around Sydney. He said towards the foot of p 7:

As indicated above the Enfield railway workshops were extremely large. There were a few dozen maintenance workers there including boilermakers, fitters and cleaning staff. Boilers were constantly being overhauled and repaired at Enfield. Whenever I walked through or undertook work in the Enfield workshops during the 1960s and seventies I observed boilers being overhauled and repaired. On an average week during the 1960s and 1970s I worked in or walked through the Enfield workshops on dozens of occasions each week.

18 He then described how the work of others gave rise to dusty conditions. It is perhaps sufficient to say that once again the nature of his exposure principally was that of bystander exposure, that is it was the work of those working about him which produced the dust through which he had to pass and which he had to breathe. At p 8 the following appears:

I estimate that on at least hundreds of occasions during the 1960s and 1970s I observed work being carried out on boilers at Enfield. On most of these occasions this work involved the removal or disturbance of the asbestos lagging which surrounded the boiler.

As a result of this boiler work being undertaken an enormous amount of dust and fibre was always given off. This dust and fibre got everywhere and got in my hair, on my face and I inhaled it.

19 He said that during the 1960s and 1970s that he wore overalls. Of them he said:

These overalls were constantly dirty and dusty on a daily basis as a result of not only the coal dust but also the lagging dust when I was undertaking work at Enfield. On a daily basis I changed my overalls.

20 He said that at no time whilst employed by State Rail was he ever provided with nor did he wear a mask. At no time was he ever warned of the dangers of asbestos.

21 His account seems to me to be broadly supported by the accounts of the other men whose evidence has been introduced.

22 I wish then to come to evidence about the supply of products by suppliers to State Rail, and when I have considered that evidence I wish to come to some submissions advanced by learned counsel for Amaca, Mr Russell SC, the effect of which is not only was the plaintiff exposed to Amaca products but there were the products of other companies which contributed to the asbestos dust in the workplace, and for which his client cannot be ordered to pay contribution. It is particularly in this area of the case that the Court is indebted to the knowledge and researches of counsel. They are familiar with the documentation, some of which is fifty years old or more. They have analysed it carefully and these submissions have been developed with great care and with great skill.

23 It is submitted, and I accept, that the system within State Rail for purchasing asbestos products for use in the construction repair and/or maintenance of locomotives remained the same between about 1950 and the mid 1970s. Mr Holmes, learned senior counsel for State Rail, has prepared submissions in written form. For each of the contentions he advances he has identified the documents from which the submission springs and which provide support for it. I do not understand any of the submissions relating to supply to be contested.

24 The next point advanced is this: State Rail had a booklet listing schedule numbers and categories within each schedule and which detailed the product name, description and number. Schedule 31 related to engine packing and asbestos goods. The product item, name and number never changed. Asbestos millboard, for example, was always item 2900. The sources for that submission are identified. Next, almost all of the purchasing of products containing asbestos for use in the construction, repair and/or maintenance of locomotives was done pursuant to contracts. I accept that that is so. SRA contracts for the supply of asbestos products were let for a period of two years. For this submission reliance is placed on the statement of Mr Osborne, dated 30 June 2004, par 22; transcript of evidence in Woelfl from 1 July 2004, p 65 line 8. The submission develops as follows:

The contracts for the supply of asbestos products were not for fixed quantities, periodic orders generally of twelve month duration were placed on a contractor for the supply of such products.

25 The evidentiary sources for the submission are identified in the submission. In the absence of contest about it it does not seem to be necessary to repeat what is there set out.

26 Between 1938 and 1950 Amaca was the exclusive supplier to the State Rail of asbestos blocks and powder. So much was found by Curtis J in Rayner, in this case exhibit 3.8 pars 59 and 60. Next:

Amaca was the exclusive supplier to State Rail between 1951 and 1955 of the following asbestos products, (1) asbestos magnesia blocks, (2) asbestos millboard, (3) asbestos (magnesia) compound.

27 Reliance for this submission is placed on the statement of Mr Osborne dated 30 June 2004, exhibit 1.2, at pars 29, 30, 32 to 35 and 38. Reliance is also placed on exhibit 1.4 in this case, which is a summary of State Rail contracts for the supply of products and which covers the period from 27 September 1949 to 13 August 1974. In the running of the case the parties have accepted that the summary is a reliable account of what appears in State Rail's records. By reference to that exhibit, that is the summary exhibit 1.4, the next submission is developed, that is Amaca was the exclusive supplier to State Rail in 1956 of the following asbestos products, firstly, asbestos magnesia blocks, secondly, asbestos millboard, thirdly, asbestos magnesia compound. Further support is drawn from the statement of Mr Osborne of 20 July 2004, exhibit 1.3 at par 8. I should interpose and say that as the case unfolded the relevance of asbestos millboard became questionable and it does not seem to play a great part in the case.

28 The next submission related to the year 1957 and from the same sources it is submitted, and I accept, that in that year Amaca was the exclusive supplier to State Rail of asbestos millboard, asbestos magnesia compound and asbestos sectional piping. Once again I do not think the sectional piping has a great part to play. The next plank in the submission is as follows:

Amaca was the exclusive supplier to SRA in 1959 of millboard and asbestos magnesia compound, but in that period it is apparent from exhibit 1.4 that there was another supply of asbestos magnesia blocks.

29 In the present proceedings vol 6 commencing at p 267 under the tab vol 2 contains what was in other proceedings SRA16. It is book number 2, State Rail document, "Period Contracts for Stores and Services." Sch number 31 is introduced, dealing with engine packing and asbestos goods. The period covered by the document is 1 July 1958 to 30 June 1960. At p 273 it is set out that Bells Asbestos and Engineering Australia Ltd supplied item 2932, magnesia blocks lagging. The submission goes on then to say that between 1960 and 1964 Amaca was once again the exclusive supplier to SRA of asbestos magnesia blocks, asbestos millboard, asbestos magnesia compound. Reliance in support of that proposition is said to be found in the statement of Mr Osborne, exhibit 1.3, that statement bearing date 20 July 2004 at par 8, and the summary document exhibit 1.4. As I say I do not understand the submission to be contested. On 12 May 1964 State Rail accepted the tender by Amaca for asbestos blocks, millboard and magnesia compound and other asbestos pipe coverings, but this contract was taken over by Bradford on 19 October 1964. Confirmation of the submission may be obtained from exhibit 9, which is once again a State Rail record. The two pages of the exhibit are to be read side by side, and they do indeed on their face appear to confirm that what is submitted is accurate.

30 The significance of the supply of 85 per cent magnesia blocks and compound may be understood by reference to a couple of documents. Firstly, at exhibit 1.2, the statement of Mr Osborne, a brochure from Hardies about 85 per cent magnesia blocks is attached. It includes the claim, that is by Hardies, to the effect that the blocks are used by the New South Wales Government Railways Department for insulating its largest and most modern locomotives. There is further in the evidence a specification for C36 and C38 engines which demonstrates that the blocks are used for insulation around the boilers in those engines. So much may be seen from vol 6 of the tendered documents; it became exhibit 15 in these proceedings; at p 196, the subassembly details for those locomotives are set out. It is not suggested that those locomotives are the only locomotives which were insulated for heat in this fashion. Some insulation was undertaken by the supply of asbestos mattresses, they are not the product of Amaca.

31 It is convenient then to turn to two changes in the nature of the supply of those products which took place. Firstly, exhibit 1.4 demonstrates that Bells took over the supply of 85 per cent magnesia blocks on 30 April 1970. That contract was renewed on 19 June 1972 and renewed again on 13 August 1974, so that from 1970 onwards the remaining cross-defendants drop out of the supply picture for 85 per cent magnesia blocks.

32 The second matter which became important was that on 24 September 1964 James Hardie and CSR Ltd entered into a deed, which is exhibit 8 in these proceedings. Pursuant to the deed they set up a partnership for the purpose of carrying out certain activities for their mutual advantage. The partnership was to be known as Hardie - BI Company. James Hardie was to be the manager of the partnership business. Bradford was to be a party to the arrangement in respect of division 7 of the agreement. Pursuant to division 7 Bradford was appointed by the partners to act as the sole selling and distributing agent of the products described in pars 1 and 2 of cl 1 of division 4 other than in New Zealand. Division 4 cl 1(i) and (ii) deals with those thermal insulating materials as are now manufactured or marketed by the insulation division of James Hardie including (without limiting the generality of the foregoing the following items): 85 per cent magnesia section blocks and plastic, high temperature magnesia sections, blocks and plastic, super high temperature magnesia sections blocks and plastic, K-lite calcium silicate sections and blocks, asbestos millboard, a word that I cannot read and then Caposite, and such other thermal insulating materials as may be developed from time to time for use on or in association with heating equipment or vessels. Pursuant to div 7 par 2 Bradford was conferred with the powers necessary to discharge its duties under the agreement. At the foot of par 2 the following proviso is recorded:

Provided always that the exercise by Bradford Insulation of any or all of the above rights and powers shall be subject to mutual agreement with the partnership committee as to any aspect of such exercise.

33 It is common ground that Bradford was from 1964 a wholly owned subsidiary of CSR Ltd.

34 The cross-claimant has developed the following submissions about the supply by Bradford of thermal insulation products to State Rail. Once again I do not understand that the substance of these submissions is contested. That is not to say that there are not other submissions which need to be considered, but the documentation about supply has been carefully analysed and gives rise to the following submissions. In 1964 Bradford took over the contract dated 18 May between Amaca and SRA for the supply of inter alia asbestos millboard, asbestos magnesia compound and asbestos magnesia blocks. I have already referred to the documentation in support of that proposition. The new contract with Bradford was accepted by SRA on 19 October 1964. The deed related only to thermal insulation products which were sch 31 items, the other contracts on foot between the SRA and Amaca relating to different products such as corrugated sheets and pipes were unaffected.

35 Bradford, it is submitted, was the exclusive supplier to the SRA between 1964 and 1966 of the following asbestos products: asbestos magnesia blocks, asbestos millboard, asbestos magnesia compound. Reliance is placed in putting that submission on exhibit 1.4 for the relevant period, and also exhibit 9, the contract register for the period July 1964 to June 1966, the document to which I have previously made reference. The submission is then made that Bradford was the exclusive supplier to the SRA between 1966 and 1968 of the following products, namely, asbestos magnesia blocks and asbestos millboard. Once again exhibit 1.4 is pointed to, and also another document set out in the submission. I emphasise that no criticism has been advanced of the way in which these submissions have been developed. In a similar fashion it is submitted, and I accept, that Bradford was the supplier to the State Rail between 1968 and 1970 of asbestos magnesia blocks. Exhibit 1.4 is again pointed to, and the contract register for the period July 1968 to June 1970.

36 The last tender referred to in exhibit 1.4 was that dated 2 May 1968, so that by 1970 the supply of those products to SRA had been taken over by Bells.

37 Mr Austron, learned counsel for Bradford made a number of submissions about his client's position. The essence of the first of his submissions was that there was no evidence that the plaintiff came into contact with any product of his client’s. That was amplified by submitting that there were no doubt many impurities in the air, if I may so describe it, in the workplace, including ash, coal dust and the like. The evidence makes no attempt to extract, if that be the word, asbestos from all the other things that were in the atmosphere. Further, learned counsel points to a history contained in the report of Dr J L McKeon, bearing date 16 July 2003, CDX2, which refers to the exposure of asbestos being intermittent. I think that the fair answer to those submissions is that the nature of the exposure was such that in a circumstance in which his client was the sole supplier of blocks, that is 85 per cent magnesia blocks used for the thermal insulation of steam locomotives, that it is more probable than not that having regard to the conditions in the workplace described by the plaintiff he was exposed to the dust from those blocks. In relation to the submissions developed by learned counsel he pointed to the fact that only three contracts were identified as implicating Bradford but I think it has already been made clear that the contracts were for two years and an examination of the available documents reveals no other supplier during the periods in which Bradford held the contracts.

38 It was submitted that there is no evidence of the rate at which the asbestos blocks were consumed. I think as far as it goes that submission is correct, but the probabilities I think remain as I said a few moments ago. It was submitted that the evidence is insufficient to come to a view on the causative potency of Bradford’s conduct. I think once the position is reached in which it is the sole supplier over six years of the 85 per cent magnesia blocks, having regard to the way in which they were used and the nature of the workplace in which they were used, it is more probable than not that the plaintiff was exposed to them, and there is sufficient material to permit a view to be expressed about their causative potency. It is as well to remember in this regard something that I mentioned at the outset, namely, during the years in which Bradford had the sole supply of those items the number of steam locomotives was diminishing, and towards the end diminishing quickly. So that is a factor to be borne in mind, which in the end, I think, comes to the aid of Bradford in the exercise that the Court must undertake.

39 We come then to what to do about apportionment. At the risk of some repetition it seems to me the following features have relevance. Before listing them I should say that learned counsel for Amaca did not dispute that his client bore some responsibility to make contribution in this case. Amaca's involvement spans the period from 1950 when the plaintiff started to work for State Rail and continued in one guise or another up until 1970 when Bells took over the supply of the relevant magnesia blocks. It supplied product directly in its own interests until 1964 and then was the manager of the partnership pursuant to which Bradford supplied from 1964 to 1970. Amaca has been found by Curtis J to have had actual knowledge of the dangers of asbestos from as long ago as 1938. While State Rail has been found to have had actual knowledge from 1950 onwards in Woelfl it was found that the depth and degree of knowledge on the part of Amaca was greater than that of State Rail. The knowledge of State Rail must have changed over time, and that is one of the variables that the Court must take into account.

40 The next factor, I think, to be weighed in the balance as it were is that the exposure in the earlier years appears from the plaintiff's account of things to be extremely heavy; of necessity as the number of locomotives diminished with the passing of time the exposure must have lessened.

41 Next, it is to be remembered that there were other asbestos products contributing to the dusty atmosphere for which Amaca and later Bradford had no responsibility. In particular that is so in respect of asbestos rope, which was used inter alia in the cabins of locomotives and against which the plaintiff brushed from time to time.

42 There is another factor to be borne in mind, that is that even when Amaca and Bradford were no longer supplying the products 2905 and 2932, that is after 1970, State Rail still had its duties to its employees in respect of asbestos products supplied by other suppliers and by then one would think its knowledge would have increased as to risks.

43 The matter is not susceptible of analysis in mathematical terms. Because of the shifting indicia I have come to the view that the proper way to deal with apportionment is simply to find those amounts which in the exercise of discretion I think ought be contributed by the cross-defendants.

44 Having regard to the matters to which I have referred I think that Amaca should contribute $50,000, Bradford should contribute $10,000. Having regard to Wallaby Grip's contribution that will leave State Rail bearing $80,000.

45 I make then the following orders:

46 I grant leave to Bradford Insulation Industries Pty Ltd to file and serve cross-claims against such parties as may be advised on or before 31 October 2006.

47 Order Amaca Pty Ltd to pay to State Rail Authority by way of contribution to the plaintiff's damages the sum of $50,000.

48 I order Bradford Insulation Industries Pty Ltd to pay to State Rail Authority by way of contribution to the plaintiff's damages the sum of $10,000.

49 I reserve the question of interest.

50 I reserve the question of costs.

51 Grant liberty to the parties to apply.

52 I direct the return of the exhibits.

Mr M F Holmes, QC instructed by Edwards Michael Moroney Lawyers appeared for the Cross-Claimant

Mr D J Russell, SC instructed by Phillips Fox appeared for the First Cross-defendant

Mr W P Y Austron instructed by Makinson & D’Apice appeared for the Fourth Cross-Defendant

I certify that the previous 52 paragraphs

Are the reasons for Judgment of His Honour

Judge Duck

Associate