(re Eaton) Amaca v CSR Ltd and Ors

[2006] NSWDDT 13

Dust Diseases Tribunal

of New South Wales

CITATION:	(re Eaton) Amaca v CSR Ltd and Ors [2006] NSWDDT 13 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	Amaca Pty Ltd (Cross Claimant) CSR Ltd (First Cross Defendant) Carrier Air Conditioning Pty Ltd (Second Cross Defendant) McPherson's Ltd (Third Cross Defendant) Wallaby Grip Ltd (Fourth Cross Defendant) Wallaby Grip (BAE) Pty Ltd (Fifth Cross Defendant)
MATTER NUMBER(S):	84/03/3
JUDGMENT OF:	O'Meally P
CATCHWORDS:	Dust Diseases Tribunal :- Cross-Claim - Contribution between tortfeasors - Mesothelioma - Indivisible injury - Cross-claimant and cross-defendants jointly and severally liable to plaintiff - Causal contribution made by products manufactured or distributed by each considered.
DATES OF HEARING:	09/05/2006
DATE OF JUDGMENT:	05/09/2006
EX TEMPORE JUDGMENT DATE:	05/09/2006
LEGAL REPRESENTATIVES:	Ms W S Strathdee instructed by Phillips Fox appeared for the Cross-Claimant Mr D J Russell SC instructed by Middletons appeared for the Fourth and Fifth Cross-Defendants

JUDGMENT:

1 In this cross-claim, Amaca Pty Ltd (Amaca) proceeds against Wallaby Grip Ltd (WGL) and Wallaby Grip (BAE) Pty Ltd (WGBAE). WGL and WGBAE are subsequently referred to as the cross-defendants. A cross-claim against Carrier Air Conditioning Pty Ltd was discontinued on 3 September 2004 and another against McPherson’s Ltd (McPherson’s) was dismissed on 31 March 2006. The cross-claim against the first cross-defendant, CSR Ltd, has been adjourned.

2 On 9 September 2004 Isabella Margaret Eaton, as administrator of her late husband's estate, recovered damages in the Tribunal from Amaca, McPherson’s Ltd (McPherson’s) and WGL and WGBAE consequent upon the death of her husband from malignant mesothelioma. Damages were agreed in the sum of $227,971.91 and judgment in that sum was entered in her favour.

3 McPherson’s appealed to the Court of Appeal against the verdict and judgment against it. In the first paragraph of the judgment I said:

I have decided to deliver reasons for judgment immediately. If I fail to deal with any matter, I invite counsel to draw that matter to my attention at the conclusion of these reasons so it may then be dealt with.

At the conclusion of the reasons, counsel were asked whether there was any further matter they wanted dealt with. All counsel responded in the negative. Notwithstanding this, counsel for the appellant was permitted to rely upon omissions in my judgment which persuaded the Court of Appeal that the appeal should be upheld. Additionally, argument was advanced before the Court of Appeal which was not advanced before me.

4 When the Court of Appeal concluded the appeal, it returned only part of the file, but to the registry of the District Court rather than to the Tribunal. When the file left the Court of Appeal all the defendants’ exhibits were missing from it. Today’s hearing was delayed while attempts were made to locate the exhibits missing from the file, and in the time available counsel attempted unsuccessfully to resolve the case. The exhibits remain missing, though copies are in the possession of the cross-claimant.

5 Mesothelioma is an indivisible injury and the verdicts and judgments in favour of the plaintiff against Amaca, McPhearson’s and the cross-defendants were joint and several. The cross-defendants, WGL and WGBAE, are associated companies and were represented in the principal proceedings and in this cross-claim by the same solicitors and the same counsel. It is unnecessary to determine what separate contribution each cross-defendant should make. What I am required to do is to determine what proportion of the damages awarded to the plaintiff should be borne by Amaca and what portion should be borne by the cross-defendants.

6 At relevant times, the use of asbestos products was common in insulating airconditioning equipment and also used to retard the escape of fire through airconditioning ducts. Other asbestos products, particularly millboard, were used to insulate and isolate electricity.

7 The cross-claimant and cross-defendants are the successors to companies which manufactured and supplied, or only supplied, asbestos products to various employers of the late Mr Eaton or to others engaged in the installation of airconditioning ducting at premises at which he worked.

8 The late Mr Eaton was exposed to a variety of asbestos products. The evidence does not establish that all of the asbestos to which he was exposed came from products manufactured or supplied by the cross-claimant and the cross-defendants only. Nevertheless, there is now no dispute that he was exposed to asbestos from products either manufactured or supplied by each. All asbestos exposure makes a material contribution to malignant mesothelioma and the verdicts recovered by the plaintiff were, as noted, joint and several. Each party is therefore liable to the plaintiff for the whole damage suffered, but in determining the extent of the contribution to the damages awarded to the plaintiff which is to be borne by each, the contribution made by suppliers or producers other than the present parties to this cross-claim may be ignored.

9 In determining contribution in a case such as this two factors ordinarily arise for consideration. The first is the relative culpability of the parties; and the second is the causative contribution made by each. Counsel for each of the parties agree that relative culpability is equal in this case, and thus the only matter to be considered is the causal contribution to the late Mr Eaton's mesothelioma made by the products manufactured or supplied by each. This will depend on the extent of the exposure from the products of each.

10 During the course of the principal proceedings I had occasion to observe that in this, more than in other cases, there was difficulty of recollection occasioned by the passage of time, and because much of the evidence was based upon assumption and belief rather than upon an accurate recollection of facts. No oral evidence has been called on the cross-claim; instead I have been referred to the transcript of evidence given in the principal proceedings and to some exhibits.

11 The cross-claimant stands in the shoes of James Hardie and Company Pty Ltd (JHC) which, it is now conceded, supplied sectional material which when cut and rasped for use in connection with airconditioning apparatus, released asbestos dust and fibres which were inhaled by the late Mr Eaton. The cross-defendants concede that the Bells Companies, in whose shoes they stand, supplied asbestos millboard used as baffles in airconditioning ducts.

12 Asbestos millboard is extremely friable and soft. It is prone to release dust and fibre even with extremely light handling. When cut either with a handsaw or an angle grinder asbestos dust and fibre are released into the atmosphere. Use of an electric saw or grinder produces more dust than a handsaw, and the closer one is to a saw of whatever type, the greater the amount of dust inhaled. The late Mr Eaton was exposed to asbestos dust from millboard and from sectional material when cutting them in factory premises and on site. He used both hand held and electric equipment.

13 What is not conceded in this cross-claim is the exposure of the late Mr Eaton to asbestos from millboard manufactured by the cross-claimant. The cross-claimant has disputed that it supplied asbestos millboard to McPherson’s. The failure to make such a concession was occasioned principally by the evidence of Laurence Basil Clucas, who was the manager of the general department of McPherson’s. At all relevant times McPherson’s was the largest hardware retail outlet in Australia and had stores throughout the nation. Mr Clucas’ evidence discloses that McPherson’s did sell millboard which came in crates, but he said it was sold only in single sheets. He asserted that McPherson’s did not purchase millboard from JHC, though because McPherson’s had a policy of retailing Australian products if available, he would have purchased millboard from JHC if they made it. In his oral evidence Mr Clucas said that McPherson’s did not purchase from JHC, though added that of this he was not sure.

14 Between 1967 and 1978 Mrs Frances Daly was employed by Hillman and Howell, which subsequently became E Hillman Pty Ltd. This enterprise was an airconditioning systems manufacturer and installer located at Brookvale, where the late Mr Eaton was employed as a foreman. He was so employed when Mrs Daly began her employment in 1967. Initially she was a bookkeeper, but within a short time she rose to office manager. The functions assigned to her included ordering stock. Of the various witnesses called, Mrs Daly was probably the most emphatic and reliable. Her answers were direct and confidently given. She was firm in her recollection that she ordered Hardies millboard from McPherson’s between 1968 and 1978 and that it came a pallet at a time and at fortnightly intervals. Whilst she did not see it being delivered she did see the millboard on pallets. She was certain that the millboard was Hardie’s millboard. She often saw the late Mr Eaton in the factory and he was in the factory more often than on site. She saw him use an electric saw to cut asbestos products.

15 The evidence of Mr Clucas does not, in my view, prove that McPherson’s did not stock or sell products manufactured by JHC. He was, as noted, the manager of the general department. Within the store in Sydney were two other relevant departments, that is to say the engineering department and the building department. Mr Clucas conceded that each of those departments were separate from his and, even though they might have purchased asbestos material, he would have expected to be informed of such purchases. He was not. No-one from the engineering department or the building department was called to give evidence that neither of those departments ordered nor kept asbestos millboard manufactured by JHC but only from other manufacturers or suppliers. Had there been such evidence the assertion that JHC did not supply asbestos products to McPherson’s might have been more soundly based.

16 Mr J C Kelso gave evidence in the primary proceedings. He graduated in metallurgy in 1951 and in the same year commenced employment by McPherson’s. Initially he was a laboratory assistant and progressed to become marketing manager of its New South Wales operation. His promotion to that position occurred in 1968. Mr Kelso asserted that McPherson’s never stocked James Hardie millboard ever. Had someone phoned McPherson’s and asked for James Hardie millboard that person would have received the response that McPherson’s did not stock it. Mr Kelso retired from employment by McPherson’s in 1982. As marketing manager he would have been responsible for marketing rather than purchasing products sold by McPherson’s. His evidence does not prove McPherson’s did not stock Hardie’s millboard.

17 Had there been evidence from those with managerial or sales responsibility in the engineering or building departments that neither department stocked Hardie’s millboard, there would have been a clear conflict between their evidence and that of Mrs Daly. As will be clear from what I have already said, I found Mrs Daly's evidence more helpful than the evidence of Mr Clucas or Mr Kelso. I am satisfied that the late Mr Eaton was exposed to asbestos millboard supplied by both the Bells companies, for which the cross-defendants are liable, and by JHC, for which the cross-claimant is liable.

18 The late Mr Eaton was employed by Chatterton and Stephens Pty Ltd (Chatterton) for eight years between 1955 and 1963 and by Hillman Pty Ltd and its predecessor for the fifteen years between 1963 and 1978. It is conceded by the cross-defendants that while employed by Chatterton for the period of eight years, Mr Eaton was exposed to dust from asbestos millboard including dust from millboard supplied by the cross-defendants’ predecessors.

19 The exposure to products of JHC from 1963 to 1978 was, as best I can assess the evidence, less in duration and intensity than the exposure to the products for which the cross-defendants are liable. It is, however, impossible to determine with any degree of precision the contribution which the asbestos from each party’s products made, but being of the view that the greater exposure occurred from the cross-defendants’ products I think it must bear liability to pay the greater proportion of the damages awarded to the plaintiff. Doing the best I can to do justice between the parties it is my view that the cross-claimant should contribute 40 per cent of the judgment sum and the cross-defendants 60 per cent.

20 For the determination of the judgment sum counsel should bring in short minutes which take account of interest as well as the mathematical division in accordance with the percentages determined.

21 The cross-claimant should have its costs as agreed or assessed.

Ms W S Strathdee instructed by Phillips Fox appeared for the Cross-Claimant

Mr D J Russell SC instructed by Middletons appeared for the Fourth and Fifth Cross-Defendants

I certify that the previous 21 paragraphs

Are the reasons for Judgment of His Honour

Judge O’Meally

Associate

30/05/2006	-	An error was noticed in parafraph 2. One sentence was deleted. - Paragraph(s) 2
30/05/2006	-	Under 'Amendment Details' previously listed, it should read An error was noticed in paragraph 2. One sentence was deleted. - Paragraph(s) 0