(Re Limpus) Seltsam Pty Ltd v Amaca Pty Ltd

[2006] NSWDDT 5

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Limpus) Seltsam Pty Ltd v Amaca Pty Ltd [2006] NSWDDT 5
PARTIES:	(Re Cathryn Anne Limpus) Seltsam Pty Ltd Amaca Pty Ltd
MATTER NUMBER(S):	DDT250 of 2002/1
JUDGMENT OF:	Duck J
CATCHWORDS:	Miscellaneous Matters :- Factual issue: was deceased plaintiff exposed to the cross defendant's products
LEGISLATION CITED:	s 5 Law Reform (Miscellaneous Provisions) Act 1946 s 6(c) Law Reform Act 1995 (Queensland)
DATES OF HEARING:	20, 21 and 22 February 2006
DATE OF JUDGMENT:	03/03/2006
LEGAL REPRESENTATIVES:	FOR CROSS CLAIMANT: Mr W Austron instructed by Makinson & D'Apice appeared for the cross claimant FOR CROSS DEFENDANT Mr G Watson, SC instructed by Holman Webb appeared for the cross defendant

JUDGMENT:

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Dust Diseases Tribunal of New South Wales

DDT00250 of 2002/1

(Re: Cathryn Anne Limpus) CC: Seltsam Pty Limited

v

CD: Amaca Pty Limited

3 March 2006

JUDGMENT:

1. The plaintiff Cathryn Anne Limpus commenced proceedings against Seltsam Pty Limited by Statement of Claim filed on 25 June 2002. She had been born on 7 August 1956.

2. Stated broadly the nature of her claim was that she was exposed to the defendant’s asbestos cement building products used by her father in the construction of several houses. It was said that she played as a little girl while her father carried out the work. In addition on occasions she held asbestos cement sheets while he cut them.

3. The plaintiff contracted mesothelioma. The case was settled. On 10 December 2002 Terms of Settlement were signed and an Order for Judgment was signed on that day to give effect of the settlement. The defendant agreed to pay to the plaintiff the sum of $800,000 plus costs. The costs were later assessed in the sum of $100,928.87. The certificate as to determination of costs was issued on 9 September 2003. In addition the respondent had to pay one half of the assessor’s costs that half being in the sum of $1,411.67.

4. A cross claim was filed by Seltsam Pty Limited on 19 May 2003. The cross claim was brought against Amaca Pty Limited. It sought contribution or indemnity pursuant to s 5 (1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 and/or s 6 (c) of the Law Reform Act 1995 (Queensland). The cross claim alleged that Amaca Pty Limited had supplied asbestos products from which the plaintiff inhaled asbestos fibre and that this inhalation had the consequence of causing mesothelioma. The cross claimant alleged that the cross defendant was negligent. Hence the cross claim was brought on the footing that the cross defendant was a tort feasor who would if sued have been liable in respect of the same damage. Pursuant to the statute contribution was sought. No submission was made about the difference if any between the New South Wales statutory provision and the Queensland one.

5. The plaintiff died on 6 May 2005. (T3.30)

6. There is no dispute that the settlement of the plaintiff’s action was proper. There is no dispute that the amount certified for costs was proper and that the assessor’s fee is reasonable.

7. The issue between the parties to the cross claim is whether the evidence properly permits the conclusion that the plaintiff was exposed to the cross defendant’s products. Depending on how that matter is resolved the cross defendant raises causation as an issue, a matter which the cross claimant submits was never in issue according to its understanding of things.

8. The cross claimant’s evidence commenced with the tender of an affidavit from the plaintiff’s father William Daniel James Hill sworn 12 August 2002 (CCX1) and an affidavit from the plaintiff sworn on the same date (CCX2). The affidavits described the family’s movements in the relevant years. A chronology of the events follows (the references in brackets refer to the paragraphs of the exhibit).

9. The family moved to Maryborough, Queensland in late 1956 CCX2 [2] CCX1 [2] Mr Hill, the plaintiff’s father built a house on weekends at 194 Jupiter Street, Maryborough CCX1 [3] and [4].

10. When the house was habitable but before it was completed the family moved in. CCX1 [4].

11. The work involved installing asbestos cement flat sheets – ceilings and eaves, bathroom, laundry and toilet walls. CCX1 [4]

12. Mr Hill also built a shed with walls of asbestos cement fibro flat sheets in which building materials were stored CCX1 [4].

13. The plaintiff’s sister, Linda Alice Hill was born on 19 January 1958. CCX2 [3].

14. Mr Hill purchased all the asbestos cement sheets from Horsburgh’s a hardware store in Maryborough. CCX1 [6]

15. The family then moved to Bowen in North Queensland early in 1959 CCX1 [8]; CCX2 [3]. Mr Hill was engaged in rebuilding houses there after a cyclone until about 1964. He then left the building game and became an insurance agent for MLC. CCX1 [8] CCX2 [6]. In Bowen the family initially rented a house at 26 Dalrymple Street. This was for about 18 months. CCX1 [9] CCX2[7].

16. They then rented a house at 29 Golflinks Road, Queens Beach, Bowen. They lived there for about two years. CCX1[9] CCX2[8]

17. While living at 29 Golflinks Road, Mr Hill purchased land next door at 31 Golflinks Road. CCX1[9]

18. The plaintiff’s brother, Gary Wayne Hill was born on 15 September 1960. CCX2 [8]

19. In 1961 the family moved into a house at 22 Kennedy Street, Bowen. They lived there until the house Mr Hill was building at 31 Golflinks Road was able to be occupied. CCX2 [9]

20. The plaintiff thought that this was in 1962 or 1963. CCX2 [9]

Mr Hill thought it was about in 1964. CCX1 [9]

21. In 1964 the house at 31 Golflinks Road, Bowen was sold. The family moved to 31 Leichhardt Street, Bowen. CCX2[25]

Mr Hill refers to this event but describes it as occurring in 1966. CCX1 [17]

22. In 1966 the family moved to Flat 1, 53 Powell Street, Bowen which was half of an old house.

23. In 1968 Mr Hill started to build a house on land at 6 McDougall Street, Bowen CCX1 [21]; CCX2 [27].

The plaintiff helped him. CCX2 [28]; CCX1 [22].

24. The building materials for the job were purchased from Pilchers Hardware in Bowen. CCX2 [30 ]. The Hardware shop was opposite a snack bar which the family had leased in 1966. CCX1 [26]; CCX2 [30].Some supplies were also acquired from Bowen Builders Supplies CCX1 [26]; CCX2 [30].

25. Mrs Limpus left Bowen in 1974 at the age of 17. CCX1 [28]; CCX2; [30].

26. When particulars were exchanged the cross claimant indicated that the premises at which it was alleged the plaintiff was exposed to the cross defendant’s products were:

1. 194 Jupiter Street, Maryborough.

2. 31 Golflinks Road, Queens Beach, Bowen.

3. 6 McDougall Street, Bowen.

4. 67 Torrens Road, Caboolture.

27. As the case was run no evidence was adduced about exposure at Caboolture. The Tribunal is left to consider what if anything happened at the other three houses.

28. The affidavits of the plaintiff and her father implicate the products of the cross claimant. In the light of them the settlement which followed is hardly surprising.

29. Thus as regards 194 Jupiter Street, Maryborough, Mr Hill said he bought all of his asbestos cement sheets from Horsburgs CCX1[6]; T 27 ll 11-12.

Horsburgs have been shown to be Wunderlich stockists: CDX10, a statement from Mr John Horsburg deceased.

30. As regards 31 Golflinks Road, Bowen annexed to Mr Hill’s affidavit (annexure A) is a Wunderlich brochure which he said shows the asbestos moulded sheets that he used on the exterior of the house and the gable end. CCX1[18]. He said he bought nearly all his hardware from Pilchers Hardware in Bowen T 27 ll 26-33; T27 ll 37-42. This included his asbestos cement sheeting.

31. Pilchers were a Wunderlich agent, at least from 1964 onwards in the relevant period. (See the statement of Neil Butter part C of CDX10 and the statement of the same man part B of the same exhibit). From 1964 Mr Butter was the sales representative for James Hardie and Coy Pty Limited for North Queensland. The Bowen Hardware Stores were his responsibility. He said in the statement that he remembered the Pilcher brothers and their hardware store. They purchased only Wunderlich asbestos cement products. They were committed Wunderlich clients. They were as strong a Wunderlich customer as he encountered whilst working in sales at Hardie. They never purchased any Hardie asbestos products through him. When in Bowen he used to have a cup of tea with the Pilcher brothers. One of them used to say to him: “one day son” meaning that one day they would place an order with him. The statement of Mr Butter dated 27 September 2002 part B of CDX10 concudes with the line: they didn’t purchase Hardies products until Hardies bought Wunderlich Limited in the late 1970’s. This evidence has force.

32. As regards the house at 31 Golflinks Road, Bowen the plaintiff said in her affidavit CCX2[12] that she did not recall any (asbestos) sheets other than ones with a pinkish colour. She was then a girl of six to eight years of age. She said she called the sheets fairy walls because of the pink colour. She made cubby houses out of them CCX2[12]. The parties accept that it was Wunderlich product which had the pinkish colour. In addition CDX3 a Wunderlich Price List for October 1968 refers to Wunderflex Multipurpose Building Board as being light pink in colour.

33. As regards the property at 6 McDougall Street, Bowen, Mr Hill identified (paragraph 25) the Chamferboard sheets he used on the house from photos annexed to his daughter’s affidavit CCX1. He then said that the Wunderlich brochure annexure to his affidavit shows the Chamferboard sheets that he used. As regards McDougall Street Mr Hill said he purchased his building materials from Pilchers Hardware where he had an account. On occasions he purchased building materials from Bowen Building supplies. As indicated above Pilchers was a Wunderlich stockist.

34. When Mr Hill gave evidence in Court he said several times that when buying asbestos cement products he did not ask for any item by brand name. He was concerned to match the profile of the product he was buying with the profile of the product on the job he was doing. Reference to the following pieces of transcript will confirm this observation: T5 ll 43-45; T7 ll 48-49; T8 ll 1-10; T30 ll 16-26; T31 ll 6-7; T16 ll 36-38.

35. Whilst he was in the witness box a Hardie brochure was shown to him. At T30 ll 28-32 he seemed to resile from the previous proposition that he had used Wunderlich product. Once again it was by reference only to the profile of the product not by reference to any trade name. Mr Hill was unable to say that he was using Tilux (a Hardie product) instead of Duradec (a Wunderlich product) T 31 ll 37-38. Although he used the term ‘Shadowline’ several times he agreed that he could not say that what was used on the house then being discussed was the same as what was shown in the Durawall Brochure (Wunderlich). He could not say that it was any different either. T35 ll 8-21.

36. Mr Hill agreed that Super 6 (Hardie) was not used on any of the relevant houses T16 ll 12-27. When the affidavits were being prepared the thrust of them was to implicate Seltsam (Wunderlich). To the extent that some of the things he said suggested that he used Shadowline and Tilux (Hardie products) bearing in mind that he never purchased by reference to brand name and that he is talking of events that happened 40 years ago, it seems to me that such references are not compelling evidence of the brand of product he used. The plaintiff was too young to add much as to whose product was being used on any of the jobs, with the possible exception of her identifying the pink Wunderlich fairy walls referred to above.

37. In respect of the house at 31 Golflinks Road, Bowen there is evidence from Mr Hill at T 8 ll 47-49 and T 9 ll 1-5 to the effect that the external fibro on that house was the material identified by the Wunderlich brochure annexed to his affidavit.

38. Nothwithstanding the material above referred to there has been placed in evidence (CCX4) six advertisements from the Bowen Independent Newspaper between the dates 29 January 1960 and 15 June 1962 in which Hardies products are advertised for sale at Pilcher Brothers Bowen. Pilchers are the second named supplier for Bowen. I conclude that up to mid June 1962 there is a possibility that some Hardies products were available from Pilcher Brothers Bowen. If Mr Hill’s recollection about when the Golflinks Road property was built is correct then this material does not seem to advance things very much. If Mrs Limpus was correct then the possibility that some Hardies material was used arises. She was then seven years old. It is not a foundation from which firm conclusions can be drawn.

39. There are two exhibits which are in the form of a transcript which records in question and answer form a series of statements of the plaintiff and her father. The statements were made on 17 December 2002. CCX5 is the transcript of the plaintiff’s statements. She identifies two samples which were subsequently sent to Mr Pickford for analysis. They were taken from the Golflinks Road house.

40. One of the samples was said to be typical asbestos cement. The second sample was the manhole cover from the bathroom at Golflinks Road. It was made from asbestolux a Hardie product (see CCX7).

41. In CCX8 admissions 47-49 the cross defendant admits that Hardies manufactured asbestolux from 1961 to 1967. Its composition is given.

42. The transcript of Mr Hill’s interview at the solicitor’s office on 17 December 2002 is CCX6. Questions and answers relating to the bathroom manhole cover commence at pg 19. There are a couple of questions on pg 23. The effect of the questions and answers is that Mr Hill said that he removed the manhole cover from the bathroom.

43. Before leaving the exhibit it is worth noting at pg 15 of it he was shown a brochure for Durawall (a Wunderlich product). He said of it “I understand it to be Shadowline (a Hardie product)”. This snippet of evidence emphasises that Mr Hill had no real idea of the brand of product he was using but simply bought material according to the needs of the job in hand at the time.

44. Further it highlights the difficulty of looking back over 40 years and trying to identify which brand of product was being used.

45. Mr Hill said that he cut the manhole cover from a flat sheet. There is evidence to suggest that Asbestolux came in both flat sheet and tile form. It is clear that Asbestolux is different from ordinary fibro in that the matrix of the material is not cement but rather calcium silicate. It is softer and easier to break than normal asbestos cement (see Mr Pickford’s statement CCX7).

46. On balance I think it may be accepted that Hardies Asbestolux was used to make the manhole cover. There is not however any evidence to suggest that while that was being done the plaintiff was present.

47. CCX9 consists of a bundle of copy Advertisements from the Maryborough Chronicle. They appear to cover the period July 4 1956 to June 21 1958. The thrust of them is to show that there was a supplier named Hyne and Son Pty Limited in Maryborough which carried Hardie products. Having regard to Mr Hill’s evidence about where he bought his asbestos cement sheeting it does not seem to me that those advertisements take the matter much further.

48. At the back of the bundle forming the exhibit there are a few advertisements from the Bowen Independent which show Pilcher Brothers as carrying some Hardie products. There is a similar bigger bundle of advertisements from that paper contained in CDX11. The period covered by the latter bundle is from the 1 January 1962 to 31 December 1964. The thrust of the exhibit seems to be that Cummins and Campbell were suppliers who stocked James Hardie product in Bowen at the time. Michaels (aka Pilcher) carried some James Hardie products. In respect of the period 1 January 1968 to 31 December 1969 the pattern of the advertisements had changed so that Michaels advertised but for Wunderlich products only. I conclude that Michaels (or Pilchers) may have had some Hardie products available for purchase in the earlier period ie up to 31 December 1964 but that the principal Hardie suppliers for the district were Cummins and Campbell. By 1 January 1968 it seems to be to be improbable that Pilchers were carrying any Hardie products.

49. It may be that Pilchers bought some Hardie products at retail prices to keep up their market share [see in this regard Mr Butter’s statement dated 18 November 2002 statement C part of CDX10].

50. In submissions the cross claimant placed great reliance on the evidence of Mr Hill. In particular it relied on his use of the description Shadowline for asbestos cement material he was using. Shadowline is a Hardie product. The materials quoted above however indicate that Mr Hill had no idea of the difference between Shadowline and Durawall. At T30 of the transcript Mr Hill appeared to be saying that he thought as he was giving his evidence in the witness box that the material appearing in the photograph of the Golflinks Road house had a different profile from the material in the Durabestos brochure. Once again he is distinguishing between the brochure on the one hand and the photo on the other not by reference to brand name but by the profile of the material.

51. Submissions were made urging the Tribunal to adopt Mr Hill’s identification of Tilux as a product he used in Maryborough and 31 Golflinks Road but having regard to his evidence at T31 lines 37-38 when he said he couldn’t say he was using Tilux instead of Duradex I hestitate to proceed as urged.

52. I wish to say something briefly about Mr Hill’s evidence. It was sometimes difficult to follow just what he was saying. The major reasons for this I think I have already adverted to: when he was buying product he was not buying it by reference to its manufacturer. It was all along time ago. In addition he is not young now and his health is indifferent. I hestitate to accept all he says at face value. I do not mean to suggest in any way that he was doing other than his best to tell things as he remembered them. But the overall effect of his evidence is that I have reservations about it.

53. At the end of the case the cross claimant by leave tendered the report of Professor Henderson. The Professor emphasises there is no lower threshold dose of inhaled asbestos which has been delineated below which there is no increase in the risk of mesothelioma (CCX11 pg 9). He attributed the plaintiff’s mesothelioma in a causal relationship to her total cumulative exposure to asbestos. He thought that any contribution from the exposure in or about 1988 (about which no evidence has been adduced in the cross claim) to have been very small and perhaps minuscule or trivial, in comparison to the others that went before. Further he would expect the exposure sustained in about 1984 to have made only a small contribution. On view of the facts I have come to I do not think it matters.

54. I am not satisfied that the cross claimant has shown on the balance of probabilities that the plaintiff had been exposed to Hardies product. Hence I am not satisfied that the cross defendant is a tort feasor who if sued would have been liable in respect of the same damage. That being so there will be a verdict for the cross defendant. I order the cross claimant to pay the cross defendant’s costs.

Mr W Austron instructed by Makinson & D’Apice appeared for the cross claimant

Mr G Watson, SC instructed by Holman Webb appeared for the cross defendant

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