(re Zaluga) Amaca Pty Limited v State Rail Authority of New South Wales
[2007] NSWDDT 49
•20 February 2007
| CITATION : | (re Zaluga) Amaca Pty Limited v State Rail Authority of New South Wales [2007] NSWDDT 49 |
| PARTIES : | Amaca Pty Limited (formerly known as James Hardie & Coy Pty Ltd) State Rail Authority of New South Wales |
| MATTER NUMBER(S) : | 124/CC1 of 2002 |
| JUDGMENT OF: | Kearns J |
| CATCHWORDS: | Dust Diseases Tribunal :- mesothelioma asbestos dust and fibre de minimis exposure relative causal potency relative blameworthiness |
| LEGISLATION CITED: | Law Reform (Miscellaneous Provisions) Act 1946 Dust Diseases Tribunal Act 1989 |
| CASES CITED: | Eaton v Carrier Air Conditioning Pty Limited (2004) 1 DDCR 716; Bonnington Casting Ltd v Wardlaw [1956] AC 613 |
| DATES OF HEARING: | 04/09/2006, 05/09/2006, 13/11/2006, 20/02/2007 |
| DATE OF JUDGMENT: | 20 February 2007 |
| LEGAL REPRESENTATIVES: | Mr T Ower, instructed by Phillips Fox, appeared for the cross claimaint Mr T Rowles, instructed by Sparke Helmore, appeared for the cross defendant |
Dust Diseases Tribunal of New South Wales
Matter Number DDT124 of 2002/1
(Re: Wolodymir Zaluga) (Settled 10/07/2002)
C.C: Amaca Pty Ltd (Formerly known as James Hardie & Coy Pty Ltd)
v
C.D: State Rail Authority of New South Wales
C.D: Sydney Water Corporation (Settled 10/05/2004)
20 February 2007
KEARNS J
Background
1. Mr Zaluga, the plaintiff, died of mesothelioma. Before doing so, he settled his case against the cross claimant, Amaca Pty Ltd (Amaca), for the sum of $280,000.
2. Amaca now seeks a contribution towards that settlement amount from the cross defendant, State Rail Authority of New South Wales (SRA).
The issue
3. The principal issue here is the extent of the plaintiff’s exposure to asbestos dust and fibre when he was employed by SRA. Mr Rowles, who appeared for SRA, argued that his exposure was so insignificant as not to be causative of his condition or, alternatively, was so insignificant in comparison to his exposure to the product of Amaca that SRA is not liable to contribute at all.
4. It is common ground that in determining contribution, I need to assess two matters. The first is the relative causal potency of Amaca and SRA to the plaintiff’s mesothelioma. The second is the relative blameworthiness of Amaca and SRA. The amount of contribution must be just and equitable – Law Reform (Miscellaneous Provisions) Act 1946, section 5(2).
The facts
5. The plaintiff’s evidence is contained in his affidavit of 9 July 2002. I summarise the effect of it hereunder.
6. The plaintiff came to Australia in 1949. His first job was with the Water Board in New South Wales and he worked for the Water Board from 1949 to 1954.
7. At the Water Board, the plaintiff worked at Warragamba Dam assisting in the building of water purifiers. These were buildings to house chlorine and water pumps. Two were built when he worked there. They were clad with asbestos cement or fibro sheets. The plaintiff passed the sheets to the carpenters. The plaintiff also worked as a storeman for two to three years. He took fibro sheets off trucks and put them into racks in the storeroom. When the plaintiff handled the fibro, there was a layer of dust on the sheets and dust was left on his hands. It can only be a matter of impression, but it would seem that the plaintiff’s exposure to asbestos dust and fibre in his five years with the Water Board may be described as relatively light.
8. The plaintiff next worked for SRA. He did so from 1954 to 1956. I shall return to that work.
9. The plaintiff then worked for Utah Constructions. He did so for about one year, but there was no exposure to asbestos.
10. Then the plaintiff worked again for the Water Board from 1957 to 1960. There was no exposure to asbestos in this period.
11. In 1960, the plaintiff started sub-contract work with Leveridge Builders. He did this for about three months. He did all the internal work in the building of war service homes. He used Tilux and flat sheets in the wet areas, such as kitchens and bathrooms. He used fibro cutters to cut them. He punched and drilled holes in the Tilux. He used a rasp. The work was dusty. There was no artificial ventilation and no exhaust equipment. The dust settled on his body, his face, in his hair and on his clothes that he wore home. The intensity of exposure in this three month period may be described as moderate.
12. The plaintiff’s next job with exposure to asbestos was with Stewart Homes in Canberra from about June 1960. He did subcontract work for about two years. He used fibro on the eaves and in the laundries and bathrooms. On the fibro, he used fibro cutters, a nail punch and a rasp and this created dust. Most of the work was internal. Bathrooms were quite small with no ventilation. The work on the eaves was overhead work which created dust which deposited on his face. The overhead work was done about one day per month. The intensity of exposure to asbestos dust and fibre in this work was probably a little greater than it was at Leveridge Builders.
13. After two years’ subcontracting with Stewart Homes, the plaintiff worked for a Mr Gassen for about 12 months. This work was identical to that he was doing at Stewart Homes.
14. From about August 1963 to about February 1964, the plaintiff worked for Knight Bros in Sydney. Knight Bros were builders. The plaintiff handled and used flat sheet fibro and Tilux. On these products, the plaintiff used fibro cutters, a rasp and an electric drill. Dust settled on his clothes and he tried to blow it away and brush himself down. The intensity of his exposure in this work was probably about the same as that at Leveridge Builders.
15. The plaintiff then worked for Tennessee Homes from about March 1964 to about July 1968. The houses in this work were bigger and more luxurious than the houses he had been building up to this point. Fibro and Versilux were used in the wet areas such as laundries, bathrooms and kitchens. Flat sheets were used on the eaves. Sometimes, the Versilux was put on by plasterers, but the plaintiff was close by when this was done. Tools used were fibro cutters, punch and a rasp. Rasping caused dust to get onto the arms and hands. The intensity of exposure in this work was probably about the same as Leveridge Builders.
16. The plaintiff then worked for Neeta Homes in 1969 for about 12 months. Again, he did internal work on home building. He describes flat sheets being used in laundries, bathrooms and kitchens. He provides no other detail as to his exposure. I think that the intensity of his exposure in this job was probably somewhat less than that at Leveridge Builders. This is not simply because of the lack of detail given by the plaintiff, but also because the plaintiff has quite evidently amended his affidavit before swearing it, specifically to delete reference to the use of Versilux.
17. The plaintiff then built his own home after three months. He used Wunderlich asbestos product in doing so. He did not use it to any significant extent and used only fibro cutters to cut it. He was exposed to little asbestos dust and fibre. Because of the small period of time involved, the overall lifetime exposure of the plaintiff to asbestos dust and fibre and the evidence of exposure being to little asbestos dust and fibre in this task, I propose to ignore this period of exposure in my assessment of contributions. Over the same period, the plaintiff did some work with Swan Builders, but with no exposure to asbestos products.
18. The plaintiff’s last job then was with L. C. Land Builders which he commenced in 1971. He retired in 1987. Mr Rowles confined his submissions to a period ending in 1983, because that was the period of exposure to asbestos dust and fibre alleged in the statement of claim. The plaintiff’s affidavit was not so confined. In the overall context of this case, I do not think it matters whether the plaintiff’s exposure in this period was over 12 years or 16 years. The plaintiff worked on many homes. He used a lot of fibro. He used compressed fibro sheets, Hardies flat sheets, Hardiplank, log cabin, fibro weatherboard, three inch corrugated fibro, Tilux and Supersix. Tools used included a circular saw with an abrasive disc and an electric drill. Cutting into the compressed sheets released vast quantities of dust. This was so bad, the plaintiff used a handkerchief over his mouth and, at one stage, bought himself a paper mask. Other tasks released dust into the atmosphere, but in lesser quantities. The plaintiff also did renovation work which involved handling and removing old sheets. These were thrown onto the ground, creating dust. The plaintiff also swept at the end of his working day and this created dust in the air around him. I infer that the intensity of his exposure over this 12 year period to be heavier than other exposures.
19. I return to the plaintiff’s exposure with SRA. The plaintiff worked with SRA from 1954 to 1956. He started at Penrith Station and had no exposure to asbestos product there. He then worked at seven different locations where he did have exposure to asbestos product. They were Doonside, Mt Druitt, Kingswood, someplace between Kingswood and Werrington, Knapsack, Lyndon and Warrimoo. In each location, he and others built a section hut. It was about eight metres long with concrete walls about four feet off the ground. The walls and roofs were clad with corrugated fibro sheets. They were cut with a handsaw and drill. The sheets also had a layer of dust on them. Holes were punched in some of the sheets. The holes were six inches in diameter. There were four such holes in each building. After the holes were punched, a sharp object was used to cut around them after which they were sawed, filed and rasped. This process released dust in the air around the plaintiff. The intensity of exposure in this period may be described as relatively light.
20. In several paragraphs above, I have described the intensity of the plaintiff’s exposure. This can only be a matter of impression from what he has described in his affidavit. It is intended by me to offer a broad description of the level of exposure at times when the plaintiff was exposed.
21. When the plaintiff gave his evidence on 9 July 2002, there was a challenge as to the identity of all the product he used being product of Amaca. Apart from cross-examination of the plaintiff, that was not further developed. It was not challenged in these proceedings. I find that, with the exception of the period when the plaintiff built his own home, all the asbestos product to which he was exposed was product of Amaca.
Was SRA exposure causative of the plaintiff’s mesothelioma?
22. I find that the whole of the exposure described above was causal in the development of the plaintiff’s mesothelioma. I admitted into evidence (Exhibit XC9) a notice under section 25B of the Dust Diseases Tribunal Act 1989. In that notice, Amaca relied on the following finding of a general nature:
All asbestos exposure during the latency period is causative of, and makes a contribution to, mesothelioma.
Reference was then made to a decision of O’Meally P in Eaton v Carrier Air Conditioning Pty Limited (2004) 1 DDCR 716. Paragraph 11 supports the matter in the section 25B notice. It also defines the latency period to be generally accepted as between ten and 60 years and that certainly embraces the whole of the plaintiff’s exposure in this case. Nevertheless, Mr Rowles challenged the section 25B notice submitting that, when analysed, the matter relied on was not an issue decided by His Honour in that case. I do not think that challenge is made good. O’Meally P had to deal with a submission by a party that not all asbestos exposure during the accepted latency period is causative of, or makes a material contribution to, mesothelioma. He dealt with that submission over the course of several paragraphs culminating in his finding in paragraph 11. Not only that, he prefaced his finding with the clause, it is beyond controversy. Further, he was critical of the submission in that case with the following observation in paragraph 8:
Nevertheless, the evidence that all asbestos exposure makes a material contribution to mesothelioma is evidence which I would have thought is now beyond controversy. Not only has such a conclusion been reached in many cases before this but the uncontradicted evidence in this case supports that view. The failure to maintain that concession was unjustified and unmeritorious.
23. I think what Mr Rowles’s submission came down to in the end is that neither Eaton, nor any other case has found that a de minimis exposure is causative of or makes a material contribution to mesothelioma. That may well be so, but that it is not inconsistent with Eaton and other cases. Further, it is consistent with Bonnington Castings Ltd v Wardlaw[1956] AC 613 where a plaintiff was exposed to silica dust in circumstances that were negligent and also in circumstances that were not negligent. It was held that if the exposure in circumstances that were negligent made a material contribution to his condition that was sufficient to establish causation. As to when a contribution is material, Lord Reid at p621 said that any contribution that is not de minimis is material. In this sense, material contribution and de minimis contribution (if a de minimis exposure can make a contribution) may be seen as mutually exclusive. However, I do not need to explore this any further, because I do not consider that the plaintiff’s exposure to asbestos dust and fibre with SRA was a de minimis exposure.
24. It is true that Eaton does not provide guidance on the extent of exposure necessary to establish causation or material contribution, because there is no detail in Eaton as to the extent of exposure. If the matter were tested in this case, and it needs to be tested this way, by asking whether the plaintiff could have succeeded against SRA had it been sued as a defendant, I think the answer is ‘yes’. I am aided in that by a number of matters. First, the plaintiff developed his symptoms in late 2001 and was diagnosed with mesothelioma early in 2002. His exposure with SRA was from 1954 to 1956, about 45 years before the development of his symptoms and his diagnosis, which is classic of the latency period for mesothelioma. Also, Professor Breslin, in his report of 20 May 2002, had a fair summary of the plaintiff’s exposure to asbestos with SRA and, in his report of 27 May 2002, was firmly of the view that that period of exposure made a material contribution to the plaintiff’s mesothelioma. If anything, the history of exposure that Professor Breslin had was less than the extent of the exposure in the plaintiff’s affidavit. Further, Dr Clarke, the plaintiff’s treating thoracic physician, regarded the plaintiff’s work as a carpenter as the most important exposure. He seems to be including SRA work as a cause, but a less significant one. Further, Professor Henderson was of the view that the plaintiff’s exposure (and his was plainly including SRA exposure) was significant in the causation of the mesothelioma.
25. In the course of his submissions, I was taken to the history of exposure to asbestos recorded by Professor Breslin. I consider that the evidence in the plaintiff’s affidavit is likely to be more accurate than the history recorded by Professor Breslin. That is not to be critical of Professor Breslin. He is a medical practitioner and, I accept, very careful in his recording of history. He does not, however, approach the recording of history in the same way as does a solicitor or barrister taking instructions for an affidavit. Experience tells us that this is a time consuming and meticulous task with a view to obtaining accuracy to the extent that that can be done. A medical practitioner does not have that luxury or need in his history taking. I accept the history of exposure as deposed to by the plaintiff in his affidavit.
26. I am satisfied, therefore, that the plaintiff’s exposure to asbestos dust and fibre in the employ of SRA made a material contribution to the development of his mesothelioma.
Relative exposure and causal potency
27. Determining relative exposure of necessity is a broad-brush exercise. This is so for a number of reasons. First, the precise periods of different employments or sub-contract work are not known. Secondly, within those periods, it is not known for what time the plaintiff was exposed to asbestos and what time he was not exposed. Thirdly, the intensity of exposure within each period varied and the different intensities cannot be measured. Fourthly, there is no evidence defining the asbestos types to which the plaintiff was exposed at different times. With those difficulties in mind, I proceed to determine relative exposure.
28. I start by taking an approach taken by Mr Rowles in his submissions. The plaintiff was exposed to asbestos dust and fibre with SRA for about two years less the period, unknown, that he was at Penrith Station. I accept exposure over a period of about two years. His other exposure was as follows:
• Water Board, 5 years (1949 – 1954);
• Leveridge Builders, 0.25 year (1960);
• Stewart Homes, 2 years (1960 – 1961);
• Mr Gassen, 1 year (1962);
• Knight Bros, 0.5 year (1963 – 1964);
• Tennessee Homes, 4.3 years (1964 - 1968)
• Neeta Homes, 1 year (1969);
• L. C. Land Builders, 12 years (1971 – 1983).
The total of the non-SRA exposure is about 26 years.
29. SRA exposure compared to overall exposure then is two years, compared to 28 years, or about seven percent (7%). The plaintiff gave a history to Professor Breslin that about 20-25% of his time involved exposure to asbestos dust and fibre. His history to the Dust Diseases Board was of exposure for a period of three hours each working day. This difference in these histories is insignificant. Further, these histories do not bear on the exercise on the exercise I have just undertaken.
30. One of the advantages of Mr Rowles’s submission lies in its simplicity. The problem with that is that relative exposure cannot be determined so simply, especially for the reasons I have mentioned in paragraph 27 above. The submission does, however, bring home the point that the period of the plaintiff’s exposure during his employment with SRA is vastly overwhelmed by the totality of his exposure.
31. Competing submissions were then put forward. Mr Rowles submitted that the seven percent (7%) figure should be lowered, because the intensity of the plaintiff’s exposure with SRA was much less than elsewhere, especially in his building work after 1960. Mr Ower, counsel for Amaca, submitted that SRA exposure should be more heavily weighted than the other exposure and, in this regard, he relied on Professor Breslin and submitted that earlier exposure is causally more potent. Professor Breslin says so in his opinion (point 7) in his report of 20 May 2002 and also in his report of 27 May 2002. In the latter report, he says this is well known and well accepted. Professor Breslin relies on a formula developed by Peto. He notes the formula implies that all exposures taken into account involve the same type of fibre in the same concentration and Professor Breslin observes that this is rarely the case in practice. Nevertheless, he adheres to the view that the earlier exposure is more significant aetiologically. In this case, insofar as the evidence assists, there was variability in fibre type and concentration (Exhibit CD2). There is evidence of the concentration and it varied from one employment or period of sub-contract work to another. Because of the evidence of fibre type and its concentration and the variability of intensity of exposure, I think that not much reliance can be put on the Peto formula in this case. Professor Breslin seems to accept this in his report of 27 May 2002 where he notes that it is rarely the case in practice that a person is exposed to the same type of fibre in the same concentration, but he still considers the exposure before 1960 to be more significant than the exposure after 1960. He adhered to his view in a report of 11 June 2002, but on this occasion, he again relied on the Peto formula. For reasons stated, I do not think that much reliance can be placed on the Peto formula in this case.
32. Dr Clarke, in his report of 10 April 2002, recorded a truncated occupational history and expressed the view that the most important exposure was the work as a carpenter. It may be taken that he was referring to work after 1960. The fact that his occupational history was truncated does not detract from this view. The significance is that he does not place any significance on the exposure with SRA by reason of the fact that it was early exposure.
33. Professor Henderson, in his report of 15 May 2002, thought that the exposure of greater significance was the plaintiff’s exposure to asbestos dust and product in the period 1960 to 1985.
34. I do not think there is any weighting to be given to any particular period of exposure on the basis that it occurred at a particular time.
35. I do think there is a weighting to be given to exposure on the basis that the intensity of exposure was greater in one period than in another. However, not too much emphasis should be put on this because there is no precision in the evidence as to the intensities of exposure or duration of exposure. I shall return to this in my conclusion.
Relative blameworthiness
36. At all times when the plaintiff was exposed to asbestos dust and fibre, both Amaca and SRA were aware of the potential risks to health from exposure, Amaca from 1938 and SRA from 1950. That became common ground on the last day of hearing and, accordingly, much of the argument in the case and much of the evidence became irrelevant. On relative blameworthiness, there is nothing between the parties on that point.
37. Matters I consider I need to take into account in determining blameworthiness of SRA are as follows.
(a) SRA was the plaintiff’s employer and, accordingly, owed him a high duty of care. It was argued that it owed the plaintiff a non-delegable duty of care. That is so, but that does not elevate the duty of care any higher in this case.
(b) SRA was a substantial organisation and a large employer of men and women. It was the second biggest employer in Australia in the 1950s and 1960s (Exhibit XC4, tab F).
(c) SRA had available to it a number of precautionary measures it could and should have taken to protect the plaintiff from exposure to asbestos dust and fibre. Those measures included:
• dampening down of the dusty workplaces;
• the use of extractors to remove dust from the plaintiff’s breathing environment;
• the use of respirators to protect the plaintiff from breathing in the dust and fibre.
38. There was an issue as to whether the use of respirators was a practical alternative available to SRA at the time the plaintiff was employed it. That issue arose from a report of Ms Sowden of 25 October 2006 (Exhibit CD27). Her opinion was:
I consider that respirators specified by persons not familiar with the subtle details of respirator design and performance during the 1950s were unlikely to have been fully effective in preventing the inhalation of fine dust, not only because of the respirators’ probable poor facial fit, but also because of their weight and discomfort which made workers so reluctant to wear them.
Earlier, she had written:
Prior to the development of well-designed light-weight disposable polypropylene masks in the mid 1970’s, respiratory protective equipment was heavy and uncomfortable. When respirators were necessary, continual care and supervision was required to ensure that they were worn correctly and were properly maintained. For these reasons they have always been regarded as a last resort, to be specified only when other control measures, preferably operating independently of the worker, are either impracticable or insufficient.
That would seem to suggest that effective respirators were available before the mid-1970s if they were worn correctly and properly maintained. Of itself, that is of little use because it does not indicate for how long such respirators were available.
On page 2 of her report, she wrote:
The first device known to provide adequate protection was developed in the UK in the late 1930s and marketed as the “Mark IV dust respirator” by Siebe Gorman. It appears that such dust respirators were in use in Australia in the 1940s, if not earlier.
In light of this material, I accept that effective respirators were available when the plaintiff was employed by SRA and it should have provided such protection for the plaintiff. I am fortified in that view by the evidence of the availability of respirators in 1950 described in Exhibit XC3 at pp286-7 of Volume 1 of that exhibit. The difficulties associated with their use seem to apply more to prolonged use of them than to the relatively short term use that would have been required of the plaintiff in his employment with SRA. Further, SRA had respirators available which it was using in 1953 (Exhibit XC5 and 6). There was nothing from SRA to suggest they were ineffective and Ms Sowden’s report on behalf of SRA did not specifically address that.
39. Matters to be considered on relative blameworthiness of Amaca are:
(a) it was a substantial supplier of asbestos product and, indeed, was recognised as by far the largest supplier of such product in the marketplace in New South Wales at all relevant times;
(b) whilst it must have been plain to Amaca that some of its products would be used by persons (for example, SRA) who, because of their status, would be aware of the dangers of exposure to asbestos dust and fibre, it must also have been plain to Amaca that some of its product would be used by others (for example, perhaps Leveridge Builders and others) who would not have been aware of the risks. The need to warn in such situations was the greater;
(c) at all times relevant to the plaintiff’s exposure, Amaca supplied product without any warning as to the dangers to health associated with use of the product or, if it did offer warnings, they were not sufficient to bring that warning home to the plaintiff. The content of the duty to warn varied time depending on advancement in the state of knowledge of health risks associated with exposure to asbestos. Over time, the content became more stringent.
Conclusion
40. I do not think it useful, and nor would it be accurate, to take every item relevant to blameworthiness and give it a weighting. Likewise, such an exercise would not be useful or accurate in approaching items that go to the make up of causal potency.
41. I think it is fair to say that on the relative blameworthiness point, SRA is more blameworthy than Amaca in this case. This is because of the high duty of care that SRA owed to the plaintiff as its employee, its actual knowledge of the risks to health associated with exposure to asbestos dust and fibre and its ability to take reasonable steps to protect the plaintiff and its failure to do so. As the plaintiff’s employer, SRA was in a position to take steps that Amaca was not in a position to do. On the other hand, I think that the extent of overall exposure of the plaintiff to Amaca products compared to his exposure when employed by SRA is so overwhelming that Amaca must bear an overwhelming burden in respect of the settlement of the plaintiff’s case.
42. In my view, the amount of contribution that is just and equitable in this case is represented by attributing five percent (5%) to SRA and ninety-five percent (95%) to Amaca.
43. There will be a verdict and judgment for the cross claimant, Amaca, on the cross claim against the cross defendant, SRA, in the sum of $14,000.
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Mr T Rowles instructed by Sparke Helmore appeared for the cross defendant
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