(Re: Lawrence) BHP Billiton Ltd v Amaca Pty Ltd

[2003] NSWDDT 18

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re: Lawrence) BHP Billiton Ltd v Amaca Pty Ltd [2003] NSWDDT 18
PARTIES:	BHP Billiton Ltd Amaca Pty Ltd
MATTER NUMBER(S):	23 of 2003 CC1
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:-
LEGISLATION CITED:	S 5, Law Reform (Miscellaneous Provisions) Act 1946
CASES CITED:
DATES OF HEARING:	05/09/03
EX TEMPORE JUDGMENT DATE :	09/05/2003
LEGAL REPRESENTATIVES:	FOR CROSS CLAIMANT: Mr D K Jordan instructed by Piper Alderman. FOR CROSS DEFENDANT: Ms W Strathdee instructed by Phillips Fox.

JUDGMENT:

1. BHP Billiton (BHP) and Amaca Pty Ltd (JHC) each seek contribution or indemnity from each other consequent upon each being found jointly and severally liable to pay damages in the sum of $165,583.09 to Edward Lawrence (the plaintiff). Reasons for judgment in the plaintiff’s action against BHP and JHC were delivered yesterday.

2. The plaintiff was employed by BHP at its Whyalla Shipbuilding and Engineering Works and there he used asbestos cement flat and corrugated sheets, rasping, cutting and otherwise dealing with them. As a consequence asbestos dust and fibre were released and inhaled and the plaintiff contracted asbestosis.

3. His employment by BHP extended from 15 May 1961 to 20 April 1970. As noted yesterday he spent the years until 1968 based in the town workshop and carried out repair and maintenance work on buildings and houses occupied by BHP’s employees. In the second period, that is from 1968 to 1970 he was engaged in work largely in the construction of lockers used to outfit ships built at the shipyards owned by BHP in Whyalla.

4. BHP and JHC are concurrent tortfeasors. In determining the contribution which should be made by each, it is not relevant, in the circumstances of the case, to consider the causal potency of the negligence of each. What I should consider is the relative blameworthiness of each corporation.

5. No evidence concerning the paid up capital, number of employees or areas of operation of BHP and JHC at relevant times has been placed before me. It is, however, conceded by counsel for BHP that it is, and at all relevant times was, a large and multi faceted corporation. It has been conceded by counsel for JHC that at all relevant times it had actual knowledge of the dangers of asbestos and that it had been a producer of asbestos products since well before the plaintiff was employed by BHP.

6. Doing my best with the evidence as it is, I shall determine the contribution which is just and equitable. As required by s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 I shall, as best can be done on the evidence, have regard to the extent of the responsibility of each for the damage suffered by the plaintiff.

7. Learned counsel for BHP has submitted that his client did not have actual knowledge of the dangers of asbestos until on or soon after 15 January 1969. On 15 January 1969 a letter was addressed to the manager of BHP’s Whyalla Shipbuildilng and Engineering Works enclosing a report of Dr K J Wilson, then Principal Medical Officer of the Occupational Health Branch of the South Australian Department of Public Health. Placed before me is that letter together with the report of Dr Wilson, a press release issued by the Whyalla Shipbuilding and Engineering Works on 17 January 1969 and a copy of a letter addressed to the Manager of Bells Thermalag Pty Ltd of 23 January 1969. Bells Thermalag Pty Ltd was, at that time, a supplier of asbestos material to BHP for use at its Whyalla shipbuilding yard.

8. It is said that this material establishes that it was not until January 1969 that BHP had actual knowledge of the dangers of asbestos. With all respect I am unable to agree that that is correct. What it does establish is that by January 1969 BHP had actual knowledge. It does not establish that January 1969 was the time at which BHP first acquired that knowledge, nor does it establish that before then BHP had no such knowledge.

9. It is relevant also to observe, as appears from the press release, that the investigation by the Department of Public Health was made following industrial disputes involving sheetmetal workers whose work brought them into contact with materials containing asbestos. It appears from the press release that the investigation was conducted in November 1968 and it is reasonable to infer that complaints by sheetmetal workers were made before the investigation was carried out.

10. It is accepted by counsel for BHP and JHC that material was available in industrial, scientific and medical literature which dealt with the dangers of asbestos and the means of obviating or minimising those dangers. It is accepted also that that information was available well before the plaintiff commenced employment by BHP and continued to appear during his employment and thereafter. If BHP were, in truth, ignorant of the dangers of asbestos until January 1969 there is no excuse for its ignorance. It carried on activities of many types and many were known to carry risks of injury. BHP had a duty, not merely to act when advice was given to it, but to seek out, acquire and apply information in respect of all activities known to carry risks of injury. This it failed to do.

11. As an employer BHP had a non delegable duty to safeguard its workforce from foreseeable risks of injury. During the course of the plaintiff’s employment the risk of injury by exposure to asbestos was known. If BHP did not know of it, it could have acquired such information by consulting scientific or industrial journals. It could have taken steps to obviate or minimise the risk of injury to its workforce.

12. By the same token it should be remembered that the products manufactured by JHC throughout the time the plaintiff used them carried no warnings nor any indication of the precautions which could and should be taken by persons working with such products. It could have issued warnings about the dangers of asbestos; it could have given instructions how to use and handle its products. It failed to do so.

13. In my view the relative culpability of BHP and JHC is equal. Accordingly, of the damages awarded to the plaintiff each should contribute 50 per cent.

14. Costs of the cross-claim will be reserved.

Mr D K Jordan instructed by Piper Alderman appeared for the first defendant

Ms W Strathdee instructed by Phillips Fox appeared for the second defendant