(Re Lorizio) a B and P Constructions Pty Ltd v Amaca Pty Ltd (formerly James Hardie and Coy Pty Ltd)

[2006] NSWDDT 19

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Lorizio) A B & P Constructions Pty Ltd v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2006] NSWDDT 19
PARTIES:	A B & P Constructions Pty Ltd Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd)
MATTER NUMBER(S):	395 of 2004/1
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	Dust Diseases Tribunal :- Cross Claim seeking contribution or indemnity. Supplier knew of the risks the employer was unaware of them. No duty to warn about competitors' asbestos products. No duty to remove asbestos products from the market. What is just and equitable in the circumstances?
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989, s 25(3) Law Reform (Miscellaneous Provisions) Act 1946, s5
CASES CITED:	BI Contracting Pty Limited v The Public Trustee of South Australia and Anor; CSR Limited v The Public Trustee of South Australia and Anor (2005) NSWCA306; Anderson v The City of Enfield (1983) 34SASR 472 at 476; Norton Australia Pty Ltd v Streets Ice Cream Pty Ltd (1968) 120CLR 635; Thompson v Johnson & Johnson Pty Ltd (1989) ATR 80-278; Wright v Dunlop Rubber Co Ltd and Anor; Cassidy v Same (1972) 13K.I.R.255 at 272; Dovuro Pty Ltd v Wilkins (2001) 182ALR481 at 505; BI Contracting Pty Ltd v Myer Emporium Ltd [(2005) 3 DDCR 142; (2005) NSWCA 305].
DATES OF HEARING:	5/6/7/8 and 9 June 2006
EX TEMPORE JUDGMENT DATE:	06/09/2006
LEGAL REPRESENTATIVES:	FOR CROSS-CLAIMANT: Mr J Sharpe instructed by Thompson Cooper Lawyers FOR CROSS-DEFENDANT: Mr G Watson, SC instructed by Phillips Fox

JUDGMENT:

23

Dust Diseases Tribunal of New South Wales

Matter No 395 of 2004/1

(Re: Antonio Lorizio) (Settled 17/03/2005)

A B & P Constructions Pty Ltd

Cross Claimant

v

Amaca Pty Ltd

(Formerly James Hardie & Coy Pty Ltd)

Cross Defendant

9 June 2006

JUDGMENT

DUCK J

1. The Tribunal has before it a cross-claim in proceedings commenced originally by Antonio Lorizio against his former employer, A B and P Constructions Pty Ltd. Mr Lorizio was a man born on 24 July 1963. His case against his employer was that in the course of his employment which commenced early in January 1980 he was negligently exposed to the inhalation of asbestos dust and fibre as a result of which he contracted peritoneal mesothelioma. Those proceedings were ultimately settled by terms of settlement dated 17 March 2005. By consent a verdict and judgment for the plaintiff in the sum of $1 million inclusive of costs was entered. The employer A B and P Constructions Pty Ltd whom I shall hereafter refer to as A B and P, commenced a cross-claim against Amaca Pty Ltd on the footing that Amaca was a supplier of asbestos products to which the plaintiff had been exposed and was a person who if sued would have been liable for the same damage as the employer had been judged liable. Contribution or indemnity was sought pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946.

2. The nature of the plaintiff's exposure may be gleaned from his own affidavit firstly and from material obtained from Mr Restuccia, the principal of A B and P. The plaintiff's affidavit was sworn on 16 March 2005. I should mention that the Court has been informed that the plaintiff is still alive but in very poor health. Relevantly the affidavit deposes to his commencement with A B and P in or about January 1980. He was employed as an apprentice carpenter. He was at that time 16 years old. His affidavit describes Mr Nino Restuccia as owner of the company. His brother-in- law Benito Molica, who is now dead, worked for the company as a carpenter. There was one other permanent man, Vincenzo Boccalatte, and he is also deceased. Mr Restuccia is still alive although he no longer runs the company. The company is now run by his son, Gabriel.

3. The plaintiff said that Mr Restuccia, whom he referred to as Nino, was a carpenter. "He was my supervisor". he said at par 7. Apart from the permanent crew Nino would employ labour as he required it. The plaintiff completed his apprenticeship. He studied for four years at Meadowbank Technical College. He qualified as a carpenter and joiner. He then undertook further studies which resulted in him obtaining a Clerk of Works Certificate, which in the event he did not use. He remained employed by and working for A B and P until mid-1998. He then left and became a subcontractor. He said that when he worked for the company it built houses from demolition and set out to completion. They also did renovations and extensions. On most of the new houses, he said, "we started with demolition of the existing structures". This included fibro structures. He then described how, as part of his duties he would break up the fibro with hammers or sledgehammers. He said that the demolition work was dusty at times. To put in a new service of whatever nature, electrical, water or the like, they had to cut through existing fibro including on the eaves and in that respect he said in par 12, "we would always use an angle grinder". On new work he said, "we used either fibro cutters or power saws". He said the work was very dusty.

4. As regards the new asbestos cement products he worked with, the plaintiff nominated the following: compressed asbestos cement sheets which were used in wet areas, normally bathrooms and laundries; they were always cut either with an angle grinder or a power saw with a special abrasive disc. Villaboard, which was cut with fibro cutters. Hardiplank, which was cut with an angle grinder. Hardiflex, which was normally cut with fibro cutters. The last product he named was Log Cabin, which was described by the plaintiff as a woodgrained fibro which he said was cut with a power saw. For reasons which probably do not matter now it seems probable that when the plaintiff was talking about Log Cabin he was in fact referring to another Hardie product, Hardiplank woodgrain.

5. After he had qualified as a carpenter his work continued in much the same way. He estimated that about 10 per cent of his work between 1980 and 1998 involved contact with old fibro either demolishing it, joining to it or cutting through it. He also estimated that working with new asbestos cement products involved about 20 per cent of his working time during the first four to five years.

6. It might be mentioned at this stage that there is no question raised by the cross-defendant that the settlement was in any way improper.

7. Mr Restuccia, the principal of A B and P, put on an affidavit which was CCX3. He said that about 85 per cent of the work carried out by the company was private residential work.

8. The residential work mainly involved renovations and additions. Commencing in 1980 he said approximately 80 to 90 per cent of the company's residential work was performed on existing properties with the remainder being new constructions. He then said that on a normal residential renovation or addition, demolition or cutting into existing materials represented less than 5 per cent of the total job and of this only a small percentage represented working with existing fibro or asbestos material. This estimate is somewhat less than the plaintiff's estimate. There is no way that any measurement of such a thing can be undertaken. It is sufficient perhaps to say that on any account demolition work did not involve a great deal of the man's time.

9. Mr Restuccia confirmed that the plaintiff was indeed apprenticed and employed as he said. Being his apprentice he said, "He worked mainly in my presence and when he qualified we worked together or in my presence". He confirmed that the company used four types of asbestos sheeting produced by Hardies, namely Hardiflex, compressed asbestos cement sheeting, Hardiplank and Villaboard. He said he was familiar with the products and their names and that he did the purchasing of them. He said that on occasions he bought Wunderlich products, depending on a particular job. The Hardie product had a pink colour and Wunderlich a distinct grey tinge. There is room to think that he has got the colours the wrong way round but I do not think anything turns on it in this case.

10. At par 19 of his affidavit Mr Restuccia said, "There were markings on the products but I do not recall exactly what the markings were although I recall the initials JH and the word Hardie". The main hardware store account for the company was at Abbotsford Hardware but he sometimes ordered from Canterbury Timber and Harrison Timber. He said that Canada Bay Hardware opened in about 1985 "and after then I purchased materials from there". He said that when he purchased asbestos cement products he purchased them by name. He then identified in detail the same products that the plaintiff had referred to with the exception that he did not use Log Cabin. It is for that reason that I think the plaintiff was probably mistaken.

11. He went on to say that he estimated that about 20 per cent of the working time on a residential property involved the use of new asbestos cement products. Such products, he said, were being used in the 1980s until about 1985. The plaintiff spent approximately 20 per cent of his working time on using new asbestos cement products on residential properties. It may be noted that in this respect his estimate is the same as the plaintiff's. He then went on to say this: "There were no warnings on any of the asbestos cement products that the company used". He said he first became aware of the danger associated with the use of asbestos in the late 1980s. When he gave evidence he was asked about that and his memory was not very clear but it may well have been that in fact somebody had told him about the danger in about 1984. The information was conveyed apparently in association with his own observation that the nature of the sheeting had changed. The evidence discloses that at differing times during the 1980s various of the Hardie products were reconstituted without containing asbestos in them.

12. Mr Restuccia said, transcript 15, that when he was at the hardware shops he saw brochures about Hardie products on the counters. He said sometimes they had a pile on the counter there. He did not see the brochures in racks. He was shown a brochure but was unable to say whether that was what he had seen. The document he was shown became CDX2. He was shown a document later admitted into evidence entitled "Home Improvements for the Handyman" but he did not recall seeing that. It was put to him that in late 1978 or early 1979 stickers first started to appear on the back of the Hardie products. I think a fair summary of Mr Restuccia's reply to that proposition was that he did not really dispute that stickers started to appear, that he saw stickers that looked like stickers which were shown to him but that they did not contain a big capital A which appears on stickers annexed to CDX8, the statement of Mr Kevin Angus Bagot, a witness for the cross-defendant. (See, for example, transcript 19 in this regard.)

13. When asked whether the stickers had colour on them Mr Restuccia said he thought the colour was yellow, not red as the cross-examiner had proposed, but he was not sure. CDX5 were stickers shown to the witness and the broad effect of his response is that what he saw could have been a sticker like this except what he saw did not have a capital A on it. At p 21 of the transcript the witness spoke of his finding out at a hardware suppliers that the asbestos had been taken out of the fibro sheeting. He was then told, he said, that it was dangerous. He said that is when he started to wake up. When asked when he had the conversation with the person in the shop he could not say, "Could it have been as early as January 1982?" He responded, "I can't say I'm sorry." He was shown a brochure and then agreed that he could have found out in 1982, it could have been 1984. Then he said it could have been 1986, he did not know.

14. He was then shown a brochure about Hardiflex 2 and Hardiplank 2, the products put out by Hardies that did not contain asbestos, and asked did he remember seeing them. His answer was, "Maybe I did and I didn't pay attention." That brochure became CDX6. He was asked was he aware that there was legislation in place as at 1980 which regulated safety on construction sites. Ultimately at T24 line 29 he answered, "I've got to say no, if there was a new law I didn't know." He was asked whether he is aware now that there was legislation in place as at 1980. He responded by saying he has been out of the trade for eight years. He said he knew there was some regulation but they are all history now. He said he did not know about the legislation which controlled and regulated the amount of asbestos to which workers could be exposed, nor did he know that there was legislation in place about that topic.

15. He was asked did he do anything to inform himself of potential hazards or risks. He responded by saying, "I didn't know myself." He was asked did he attempt to read the brochures as to which he said, "If I happened to read all of the junk I received I didn't have a chance to go to work." When pressed with the question, "Are you saying you did nothing to inform yourself?" Mr Restuccia answered: "I was too busy working." When pressed about whether there were stickers placed on the James Hardie boards he said, "Maybe." Interestingly this question was put to him, "There were warnings but you did not care to read them because you were in a hurry, you put them face down and just got on with the job, did you not?" "Maybe, but they didn't put it there, tell people, look." It was put to him, "There were warning stickers on the back of the Hardie boards before you ever employed Mr Lorizio, were there not." He replied, "I can answer yes or no." I think what he was trying to convey was that he could not say one way or the other. It was apparent that Mr Restuccia had a working knowledge of English but he was not fluent in it.

16. There is a great deal of evidence which confirms the suggestions put to Mr Restuccia that about 1978/1979 Hardies started to affix stickers to the asbestos cement sheeting. An issue in the case is whether or not those stickers constituted a sufficient warning of the dangers so as to discharge a duty which in the running of this case Hardies has not disputed that it had, to warn people of the risks of asbestos. As to whether or not such stickers were present I find that from 1978/79 onwards the stickers started to be affixed to the sheeting. The material confirmatory of that I might mention briefly, I do not think there is any need to go through it all. Indeed Mr Restuccia's approach to the matter suggests that he had seen something although he did not know what it was.

17. CDX4 and CDX5 are samples of cautions said to have been affixed to the boards. CDX10 is a copy of some minutes of a capital expenditure meeting of the company bearing date 26 October 1978 at which meeting approval was given for the allocation of funds for the acquisition of labelling machines.

18. CDX11 details capital expenditure for November 1978. One of the items provided for, for Rosehill was two Avery 4000 labelling machines. The reason for the allocation of funds was said to be to provide labelling facilities on numbers 1 and 2 finishing lines. Capital expenditure is approved for May 1979 and CDX12 includes expenditure for items such as two hydraulically operated labelling tables for compressed sheet. CDX13 consists of minutes of a directors meeting held on 2 August 1979 at which capital expenditure for New South Wales for July 1979 was approved. One of the items approved was for a Hardiplank trimming machine. One item related thereto was the purchase and installation of labelling equipment. The reason allocated for that expenditure was for automatic labelling of smooth Hardiplank and to provide a ground and bevelled edge on smooth Hardiplank.

19. CDX14 contains the minutes of a directors meeting for the company held on 31 July 1980. Approval is recorded for the expenditure of funds for the supply and install of a destacker equipped with labelling machine for compressed sheet products. There are other documents but I think that there is no point in attempting to identify them all. The broad thrust of what was happening, I think, is clear. So that I think it more probable than not that from 1978/79 onwards the labelling of asbestos sheeting was being developed and that as a consequence cautionary statements of the type tendered in evidence were probably being affixed to the boards. Inasmuch as Mr Restuccia sought to say that things that he saw did not have a capital A, I can only think he was probably mistaken in that regard.

20. We have reached the stage then that the nature of the plaintiff's work is well understood. The amount of time spent on working with new asbestos products is understood. The amount of time spent on the demolition of old asbestos has been described. The cross-claimant says that in these circumstances the supplier would if sued have been liable to the plaintiff in respect of the same damage, that is the mesothelioma and hence is liable to be ordered to contribute to the monies paid. It is probably convenient to outline the issues that the cross-defendant raises by way of defence.

21. Firstly, as regards the old asbestos with which the plaintiff became concerned in demolition work the cross-defendant disputes that any duty arises in respect of that material. It is submitted that the evidence does not permit the Tribunal to identify who supplied any of the old asbestos involved in demolition. I think that is correct.

22. It is submitted by learned counsel for the cross-claimant, Mr Sharpe, that the evidence clearly enough establishes that in the 1950s Hardies had 50 per cent of the market. In the mid-1950s it acquired another 10 per cent of the market and by 1977 was the only supplier of asbestos cement products in New South Wales. That being so it is submitted that a duty fell on Hardies to warn people when they supplied them with new asbestos cement sheeting that they should be careful removing the old sheeting because the dust from it was dangerous. That submission is met by the response, there is no such duty known to law. The only authority Mr Sharpe was able to point to which supported his position was a reference to a case involving South Australian exposure. It was originally known as Richardson against a number of parties including BI Contracting Pty Limited and CSR Limited. By the time it went on appeal it had acquired a different title: BI Contracting Pty Limited v The Public Trustee of South Australia and Anor; CSR Limited v The Public Trustee of South Australia and Anor (2005) NSW CA 306.

23. The facts in this case are substantially different from the facts in that case and without going to the detail of it now I am of the view that the Richardson case does not provide authority for the proposition for which learned counsel contends. I am unaware of any case in which it has been held that an asbestos supplier has a duty owed in respect of material supplied by his competitors or alternatively which is simply present in the community. It is reasonable to regard the proposition as a new one. It is submitted that whether or not a duty exists is to be determined by drawing on analogies to be found in decided cases. The absence of an analogue might suggest that the duty does not exist. A duty should be defined in specific terms and any difficulty in this regard might suggest that the duty does not exist. The absence of authority and of any analogous principle cause me to say that I am not satisfied that such a duty exists.

24. The next matter I wish to consider relates to one of the fundamental questions with which the case is concerned: would James Hardie have been found, if sued, to be liable in respect of the same damage? It relates to the issue of causation. There is no dispute that the plaintiff contacted peritoneal mesothelioma. The opinion evidence which provides the link as to causation between the plaintiff's exposure to asbestos and his disease is the opinion of Professor Henderson, CCX2. The conclusion of the professor's opinion is expressed relevantly in these terms:

For the reasons discussed at length in the preceding section of this report it is my opinion that Mr Lorizio's peritoneal malignant mesothelioma is attributable to his occupational exposure to asbestos sustained during his employment as an apprentice carpenter and fitter and later as a carpenter with A B and P Constructions, the most relevant exposure taking place during the first three or four years after commencement of his employment with that construction firm in 1980. It is my opinion that the relationship between the asbestos exposure so sustained and Mr Lorizio's mesothelioma is one of cause and effect.

25. Substantially what is submitted, I think, is that if one of the causes considered by the professor, namely the exposure occasioned by demolition work of old asbestos in situ is removed from the calculus, then the evidence does not permit the conclusion to be drawn that causation has been established. It is submitted that there is some tortious exposure and some non-tortious exposure and that all that can be said is that the tortious exposure provided some increase in risk and that that is insufficient to permit the cross-claim to succeed. I do not accept the submission. It seems to me to take insufficient account of the way in which Professor Henderson developed his opinion in the report. The following matters seem to me to be material in that respect. Firstly, at page 6, the professor writes:

The types of work carried out on the AC building materials by Mr Lorizio would have been associated with substantially elevated concentrations of airborne respirable asbestos fibres, for example the cutting of AC materials using a power saw is known to produce quite high concentrations of airborne fibres up to about 20 fibres per millilitre. In addition it seems that cutting asbestos cement sheets with such implements promotes preferential release of amphibole fibres into the air, so that the proportion of crocidolite fibres in the airborne dust created by cutting asbestos cement sheeting that include crocidolite was about twice the proportion of crocidolite in the manufactured product.

The last material related to crocidolite, I think, has no application in respect of working new AC sheeting on the part of the plaintiff. The admissions of the cross-defendant, however, make it clear that some amosite was present in its products at relevant times. Professor Henderson goes on to say:

Workers such as carpenters among others can sustain substantial occupational exposures to asbestos sufficient to induce asbestosis in a significant proportion of those so exposed.
He then introduces detailed material in support of that proposition. He goes on to say:

It is well known that there exists a dose response causal relationship between asbestos exposure and mesothelioma. In addition the amphibole varieties of asbestos are substantially more potent for mesothelioma induction than chrysotile.

He goes on to speak of the relative proportionate risks and concludes by saying:

A widely cited set of potency ratios in the literature is 30 to 15 to 1 respectively. (ie relative potencies for crocidolite amosite and chrysotile for mesothelioma)

Later at page 7 the following appears:

Where there are multiple exposures to asbestos each increment of exposure within an acceptable latency interval produces a corresponding increment in the risk/incidence of mesothelioma dependent upon the time of exposure, its magnitude and the types of asbestos fibre involved.

Authority is quoted. Taking those component parts of the opinion into account and bearing in mind that the non-tortious exposure if it may be so described, was verging on minimal, and if that be too extravagant, was very restricted to something like a small proportion of less than 5 per cent of the time, up to 10 per cent of the time, I am satisfied on the balance of probabilities that the exposure by the carpentry work undertaken by the plaintiff to the inhalation of asbestos dust and fibre caused or materially contributed to the induction of peritoneal mesothelioma.

26. I have indicated that I am satisfied that from 1978/1979 warnings started to appear on the products. It is convenient I think now to look at the content of those warnings and at the question of whether or not they were sufficient. The context within which that examination might be undertaken might conveniently be provided by reference to a couple of authorities. Firstly, I refer to Anderson v The City of Enfield (1983) 34 SASR 472 at 476. The judgment is that of King C J. He said:

The manufacturer and distributor of an inherently dangerous product owes a duty to give adequate warning to people into whose hands the product may come of the dangerous qualities of the product.
The matter with which the Court was there concerned was an alkaline product to be used in the course of steam cleaning operations.

Turco [(Aust) Pty Limited], the supplier of the chemical

was therefore under a duty to the plaintiff to give such a warning, although, of course, not necessarily to give it direct to the plaintiff. The nature and extent of the warning which is necessary too discharge the duty must depend upon the degree of risk involved in the use of the product and the circumstances of its distribution.

27. King C J then distinguished another case, which I mention, Norton Australia Pty Ltd v Streets Ice Cream Pty Ltd (1968) 120 CLR 635. Later, in considering labels involved in the case under deliberation the chief justice said:

The real point for determination is whether the words appearing under the heading 'caution' in the context in which they appeared were adequate to bring home to a user the gravity of the danger involved in contact with the skin by the product, both in its undiluted form and after dilution in accordance with instructions.

The chief justice records a submission:

So far from bringing home the seriousness of the danger the words in the caution there being considered read as a whole are positively disarming.

He went on to say that he thought the warning was quite a mild warning.

A reasonable reader might well infer that while the moderately alkaline substance should be kept from the skin, skin contact would produce no more than passing discomfort. There is nothing to suggest the seriousness of the potential consequences. A capacity of this substance to cause serious skin damage called for a forthright and striking warning which would impress a potential user with the danger of skin contact.

28. It hardly needs saying that in the present case we are considering not damage to skin but damage to life itself, potentially.

29. There is material appearing in the judgment of Vincent J in Thompson v Johnson & Johnson Pty Ltd reported at (1989) ATR 80-278. The following appears:

The duty which rests upon a manufacturer or distributor presented with a potential health problem arising from the use of its products must of course be considered in the light of the particular circumstances of each case. Clearly enough the obligation of such a person to take action in order to protect consumers cannot be dependent upon the prior establishment of the fact that a product is unsafe or has been proven to be associated with the development of some medical disorder. Where such knowledge exists and it is established that the manufacturer knew or ought to have known of it and has failed to take the appropriate action the attribution of tortious liability would in general be a relatively straightforward matter.

30. That was a case involving tampons causing toxic shock. The plaintiff proved that she had suffered toxic shock from the tampons and alleged that the supplier was negligent for not warning of that risk. The plaintiff failed because the state of knowledge at that time was insufficient to reasonably require the manufacturer to provide such a warning. Reference is made in the judgment to the decision of the Court of Appeal in England in Wright v Dunlop Rubber Co Ltd and Anor; Cassidy v Same (1972) 13K.I.R.255 in particular at 272:

It is obvious that the answer to the question, what are reasonable steps, must depend upon the particular facts. It is obvious also that the duty is not necessarily confined to the period before the product is first produced or put on the market. Thus if when a product is first marketed there is no reason to suppose that it is carcinogenic but thereafter information shows or gives reason to suspect that it may be carcinogenic the manufacturer has failed in his duty if he has failed to do whatever may have been reasonable in the circumstances in keeping up to date with the knowledge of such developments and acting with whatever promptness fairly reflects the nature of the information and the seriousness of the possible consequences. If a manufacturer discovers that the product is unsafe or has reason to believe that it may be unsafe his duty may be to cease forthwith to manufacture or supply the product in its unsafe form. It may be that in some circumstances the duty would be fulfilled by less drastic action: by, for example, giving proper warning to persons to whom the product is supplied of the relevant facts as known or suspected giving rise to the actual or potential risk. Factors which would be relevant would be the gravity of the consequences if the risk should become a reality, and the gravity of the consequences which would arise from the withdrawal of the product. In making these assessments the nature and extent of the risk thought to have arisen, the economic and other costs involved in addressing that risk as well as the practical difficulties in doing so and the seriousness of the potential consequences would all have to be taken into account.

31. That judgment was referred to with approval by Finkelstein J in Dovuro Pty Ltd v Wilkins (2001) 182 ALR 481 at 505 and following. I do not think it is seriously disputed that by 1980 Hardies, had a duty to warn, the question is whether or not that duty has been satisfactorily discharged. Warnings used may be first seen firstly in CDX4 and CDX5, about which I have already spoken. Two of the cautions displayed in CDX4 relate to Fibrolite AC pipes with which we are not concerned in this case. The top caution in CDX4 is in these terms - relevantly it appears to say in the third line:

Asbestos dust can damage health. Keep dust down by following these simple safety rules.

I find it difficult to read and I cannot take that any further. CDX5, samples of labels with the big A attached which were utilised by learned counsel for the cross-defendant in the cross-examination of Mr Restuccia contained the following: (a) "Caution" in white on a red background.

This product contains asbestos. Breathing asbestos dust can damage health, keep dust down.

On the right-hand side in a box coloured red and black the following appears:

This product contains a small percentage of asbestos bound firmly into it by cement and other materials. Asbestos dust can damage health. Keep dust down by following these simple safety rules.
The final notation is:

Note: when fixed in position asbestos cement sheets present no known risk to health.

32. These cautions contain no reference to contracting mesothelioma, cancer or other lung disease. They are anodyne in the extreme. The note with which the caution is finished tends to convey the idea that there really is no problem and that this cautionary label is being affixed as a matter of form. There is a later version of the caution, part of the same exhibit. I think from memory the evidence suggests that this came in somewhere about 1982. In any event the caution has a big A, "Caution" in white on a red background and then the substance of the caution is as follows:

Contains asbestos fibre, avoid creating dust. Breathing asbestos dust may cause serious damage to health including cancer. Smoking greatly increases the risk. In accordance with NH & MRC recommendation.
The following then appears underneath:

This is an AC building product manufactured by James Hardie which contains a small percentage of asbestos bound firmly in by cement and other materials. When cutting and drilling follow these simple rules.

Finally:

Note: When fixed in position asbestos cement sheets present no known risk to health.

33. The only difference relevantly between this caution and the one before mentioned is that two words are slipped in, that is to say "including cancer". The same comments apply in respect of it. Further its form is an imitation of the form which had previously prevailed, and how anyone is likely to pick up reference to the words "including cancer" is not clear. It is to be remembered that these materials are to be used by people doing building work. I do not think that a caution in that form is sufficient to attract the attention, firstly, of those to whom it is directed. Secondly, the content of the caution is insufficient to bring home the real risks associated with the inhalation of asbestos dust.

34. The other relevant matter about what was affixed to the sheeting is, as was pointed out by Mr Sharpe in submissions, these stickers were being attached to sheets which might be 9 or 10 feet long and several feet wide in some cases. That simply emphasises, I think, the inadequacy of the caution contained in the document.

35. It is submitted that in further discharge of the duty to warn on the cross-defendant that its brochures contained warnings too. They may be seen from the documents annexed to the statement to Mr Bagot, CDX8. The Hardies Villaboard brochure in August 1978 is the first such document. The caution in that document is expressed in these terms:

When fixed into position Hardie's asbestos cement building products present no known risk to health. They contain a small percentage of asbestos bound firmly into the product by cement and other materials. Breathing asbestos dust can damage health. As a precaution you should keep dust levels down by working in a well ventilated space. Use hand tools designed for cutting asbestos cement, a power saw with a dust suppression attachment or an old handsaw. Damp down waste dust and dispose of it in a sealed bag.

36. For the same reasons that is simply not adequate to bring to attention the serious risks associated with the use of the product. In a little while I need to come back to considerations of what is equitable and just but relevant to that later issue is this comment, that the evidence discloses that the cross defendant was aware of these risks. Mr Bagot said he knew of them in the late 1960s. Not only did he know about them, he used to go around as did others, on sales promotions warning people of the dangers of which he was aware. Given that fact the blandness of these warnings is even more striking.

37. The next brochure annexed to Mr Bagot's statement, CDX 8, is the Hardiplank brochure, woodgrain and smooth, for August 1978. It is in similar terms to the document last mentioned. Home Improvements for the Handyman for October 1978 is the next document. In respect of that document the following appears at page 10:

Caution: Hardies asbestos cement building products contain a small percentage of asbestos bound firmly into the products by cement and other materials. Asbestos dust can damage health and under normal circumstances this is unlikely when using asbestos cement sheets. As a precaution, however, you should keep dust levels down by following these simple safety rules.

If anything, that caution is even less effective than the ones previously discussed. I do not think that it is a sufficient warning of the real risks faced by people using the product.

38. The cross-defendant points to some other steps taken to bring to attention the risks associated with the use of asbestos cement products. They include, for example, a press release on 6 February 1979 CDX16, and the Building Product News published in March 1979. The press release deals with the introduction of the labelling process. It commences this way:

Labels advising consumers on safe methods for working with asbestos cement are now being fixed to asbestos cement building products manufactured in all mainland Australian states. James Hardie & Co Pty Ltd, Australia's largest manufacturer of asbestos cement materials introduced the labels in New South Wales in October last year. The label comprises the international symbol now used overseas to identify the asbestos containing products. A warning on the potential health hazard associated with inhaling excessive quantities of asbestos dust and advice how to avoid this hazard when working with asbestos cement [and so on].

At p 2 in respect of the introduction of labelling the following appears:

Because of this and in line with the growing practice of labelling products which could pose any health risk no matter how remote we decided to label our products.

Once again whatever else that material may do it camouflages the real risks to which people using the product may be exposed.

39. CDX22 consists of a number of brochures published by Hardies in respect of various asbestos cement sheet products. In September 1977 there is such a document, it contains no caution. In October 1978 there is a sheet published in respect of Hardiflex flat sheets. At p 4 of the document there is a caution, it commences:

When fixed into position Hardie's asbestos cement building products present no known risk to health. They contain a small percentage of asbestos bound firmly to the product by cement and other materials. Breathing asbestos dust can damage health. As a precaution you should keep dust levels down and work in a well ventilated space.

It seems to me that the same comments made previously might be made fairly of that caution.

40. A brochure for Hardiplank woodgrain and smooth for August 1978 contains a caution at p 2, it is in similar terms. The same comments might be made fairly about it. There is a brochure for Hardie's compressed thick sheet published in August 1977. I do not believe it has any caution at all. A brochure published in August 1980 is entitled "Hardie's Exterior Claddings". On the third page of that document there is a caution in similar terms. There is a brochure published in June 1981 in respect of Hardie's exterior claddings. At p 3 there is a caution published in the same terms. The same comments might be made fairly about it. In December 1982 a brochure was published entitled "Hardie's Exterior Claddings" it appears to have no caution which may suggest that they were moving to replace asbestos in the product at that stage.

41. I think I have touched on the brochures that have been tendered in respect of products containing asbestos at the relevant time. At the risk of repeating myself, it seems to me that those brochures do not contain warnings which bring home to users of the product the real risk that the inhalation of asbestos dust posed to them. One may go further, perhaps, but it is not necessary to do so, the issue for determination is whether the warnings were sufficient. I do not think they were.

42. The conclusion which flows from those matters is that Hardies did not discharge the duty to warn which the circumstances placed on it. It is to be concluded therefore that they would, if sued, have been liable in respect of the same damage suffered by the plaintiff. It follows that they are liable to make contribution to the cross-claimant in respect of the damages paid to the plaintiff. The issue is, what is just and equitable. Stated shortly the following features seem to me to be relevant:

43. Firstly, I deal with those factors which militate against the interests of Amaca. The first and obvious thing to say is that Hardies knew of the risks. Mr Bagot said so whereupon it was suggested that his evidence at T60-61 did not specify that he was attempting to deal with asbestos cement sheeting. Two responses may be made: firstly, that is not altogether clear, having regard to the context in which those questions were put to him. Secondly, in any event, he went on to say that he and others used to go around to sales events promoting the product and warning people specifically of the dangers of asbestosis, lung cancer and the like. That speaks of actual knowledge on the part of himself and of the other employees of the company. That is a significant matter.

44. In dealing with this topic may I touch on some evidence which was introduced in the case which did not help. Opinion evidence was tendered from Dr Ferguson and Ms Sowden. It was tendered pursuant to s 25(3) of the Dust Diseases Tribunal Act as general historical evidence. In part it was but it was heavily laced with the opinions of the witnesses. The thrust of those opinions was that the general state of knowledge was such that Hardies could not be expected to know of the risks associated with asbestos cement products, and further, in the case of Ms Sowden, that warnings were of no great efficacy anyway. The evidence about the state of knowledge was given, as I say, pursuant to the section, but it meant that the witnesses were not heard, were not cross-examined in these proceedings, although transcript of their cross-examination from ten years ago was tendered. The thrust of their evidence is completely undone by what Mr Bagot had to say about the knowledge of the company and its employees. Further, I wonder, given the instructions furnished by the company, why that evidence was introduced at all. The matter was not discussed at length and I will say no more about that, but I think it proper to record my concern.

45. That is the first and most significant matter when considering what is just and equitable. The second thing is: Hardies continued to market their product before the asbestos was taken out of it with warnings which were ineffective, often buried in a mass of other materials in the documents in which they were produced, but which were insufficient for the reasons I have already spoken of. Thirdly, the warnings had the capacity, because of the way they were expressed, to lull people into a false sense of security.

46. The matters militating against the employer I think are these:

Firstly, the plaintiff was only sixteen years old when he commenced his apprenticeship. He was young, vulnerable, and requiring much more careful supervision than he got. Secondly, A B & P through Mr Restuccia saw the warning signs but paid no attention to them. Thirdly, he was ignorant of government legislation and did not appear to regard it as of any significance. Next, there was no evidence of any change of work practices after Mr Restuccia became aware of any problem, although in the context of the present case that has perhaps little relevance in that asbestos had been removed from the product by then. An issue arose about whether Mr Restuccia had advised that masks be worn after he became aware of danger. The plaintiff said he had no warnings. It may be said about that, firstly I think, that asbestos was being removed from the products and it was the change in the nature and texture of the asbestos cement boards which alerted Mr Restuccia that something was going on. But to the extent that it is of relevance, and it is probably pretty restricted, I do not accept Mr Restuccia’s assertion on that issue. There was simply no evidence of the type of mask that was used and no detail was offered about its purchase or supply, there was no suggestion that he himself wore masks. As I say that is of very limited significance because by then asbestos was no longer in the sheeting or alternatively the stock of material containing asbestos was running down.

47. When counsel were invited to submit how the assessment of what was just and equitable should be approached Mr Watson for the cross-defendant was bold and submitted that his client should have complete indemnity. Mr Sharpe, learned counsel for the cross-claimant was cagey and submitted that an apportionment similar to that undertaken in B I Contracting Pty Ltd v Myer Emporium Ltd [(2005) 3 DDCR 142; (2005) NSWCA 305] was appropriate. That is a 90/10 division weighted against the distributor having knowledge. It is very much a matter of impression. I have identified the factors that I think are relevant. I think the burden of the award should be borne equally by the supplier on the one hand and the employer on the other, fifty/fifty. There is some non tortious exposure of the plaintiff to old asbestos materials which were in situ and which he confronted in his demolition work. As I have indicated the proportion of that work was relatively small, but nonetheless there was exposure for which the cross-defendant bore no responsibility. I wish to make clear that that has not been lost sight of in the undertaking of the balancing of factors between the parties.

48. There is a matter which I need to address which is a submission by the cross-claimant that having regard to the knowledge that Hardies had it was negligent of them to keep marketing the product. I have touched on the principles already in the cases to which I have made reference. From the point of view of the company if that step were taken the documents in evidence suggest that 2000 people would be put out of work, they would have no product to sell for a number of years, perhaps as many as ten and the effect would be generally commercially catastrophic. On the other hand the product was a useful cheap building product much in demand and needed in the community over a number of years. Had proper warnings been given about how to deal with the product matters might have unfolded in a much less unsatisfactory way than they have. The consideration of matters such as this involves a balancing. I do not believe that the reasonable response was simply to shut down the factory but much more might have been done to protect the end users of the product than was done.

49. There will be verdict and judgment for the cross-claimant against the cross-defendant for $500,000.

50. I order the cross defendant to pay interest on the amount of the judgment at 9 per cent pa from 6 April 2005.

51. I order the cross-defendant to pay cross-claimants costs.

52. I grant the parties liberty to apply about costs.

Mr J Sharpe instructed by Thompson Cooper Lawyers appeared for the Cross-Claimant

Mr G Watson, SC instructed by Phillips Fox appeared for the Cross-Defendant