Reid v Amaca Pty Ltd
[2020] VSC 276
•19 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
DUST DISEASES LIST
S ECI 2019 01558
| BRUCE REID | Plaintiff |
| v | |
| AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) (ACN 000 035 512) | First Defendant |
| - and - | |
| SELTSAM PTY LTD (ACN 000 003 734) | Second Defendant |
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JUDGE: | INCERTI J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 and 26 March 2020 |
DATE OF JUDGMENT: | 19 May 2020 |
CASE MAY BE CITED AS: | Reid v Amaca Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2020] VSC 276 |
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NEGLIGENCE – Contribution proceeding between defendants – Plaintiff’s claim for damages for mesothelioma caused by inhalation of asbestos fibres – Plaintiff’s claim against first and second defendant settled – Agreement that there was no difference in culpability of first and second defendant – Dispute regarding relative causation based on exposure to product – Product identification – Determining relative exposure to products at the same location in the same time period – Inferential reasoning based on circumstantial evidence – Whether mathematical model of apportionment appropriate – Cumulative exposure – Potency of amosite compared to chrysotile – Apportionment between defendants – Expert evidence – Differing expert opinion – Wrongs Act 1985 (Vic) Part IV – Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 – Swiatek v Amaca Pty Ltd & Ors [2016] VSC 808 – Berengo v Amaca Pty Ltd & Anor [2010] VSC 496 – Holloway v McFeeters (1956) 94 CLR 470.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the First Defendant | Mr Geoffrey Watson QC with Mr Matthew Hooper | Mills Oakley |
| For the Second Defendant | Ms Roisin Annesley QC with Ms Kim Bradey | Colin Biggers & Paisley |
HER HONOUR:
Introduction
In this proceeding, Dr Bruce Reid (‘the plaintiff’) claimed damages for malignant mesothelioma, which he suffered due to asbestos exposure. The plaintiff’s case against the first defendant Amaca Pty Ltd (‘Amaca’) and the second defendant Seltsam Pty Ltd (‘Seltsam’),[1] related to exposure to asbestos dust and fibres during the construction of his home in Yarrambat (‘the house’) over a 6-month period from late 1975 to 1976. Both defendants manufactured asbestos products at the relevant time.
[1]The first defendant, Amaca, formerly conducted business as James Hardie & Co Pty Ltd, and the second defendant, Seltsam, formerly conducted business under the registered name Wunderlich Pty Ltd.
The house was built on a 20-acre block. Broadly, it is alleged that asbestos was used in some of the external areas of the house, specifically, in the verandah eaves surrounding most of the house, as well as the ceiling in the carport and a store room which was referred to as the ‘heater room’ for the purposes of the trial (‘the external sheeting areas’). It is also alleged that asbestos was used in the internal wet areas of the house, being the bathrooms and the kitchen splashback (‘the internal sheeting areas’).
During the construction of the house, the plaintiff alleges that he frequently went to the property to observe the construction and assist with cleaning up, which included sweeping up dust and debris both inside and outside the house.
The plaintiff alleged that he was exposed to asbestos dust from product used by Amaca in the internal sheeting areas, and from product used by Seltsam in the external sheeting areas.
The plaintiff alleged that each defendants’ negligence was a cause of his mesothelioma. The plaintiff settled with each of Amaca and Seltsam on 30 October 2019, for a total sum of $1.4m plus costs.
Under Part IV of the Wrongs Act 1958 (‘the Wrongs Act’), Amaca claims statutory contribution from Seltsam towards the damages that it is liable to pay the plaintiff pursuant to the settlement. Seltsam had also claimed statutory contribution from Amaca, however, Seltsam withdrew this claim on 25 March 2020.
What remained in dispute at trial was the claim for contribution by Amaca against Seltsam.
Applicable law
Section 23B(1) of the Wrongs Act permits a tortfeasor liable in respect of any damage suffered by a person to recover contribution from any other person liable for the same damage. Amaca is seeking to recover contribution from Seltsam in respect of the damage to the plaintiff (being the amount of $1.4 million plus costs for which the plaintiff settled his claim against the defendants).
It is agreed between Amaca and Seltsam that, in order to show that the plaintiff would have succeeded against Seltsam, Amaca needs to establish the following:
(a) exposure — that it is probable that the plaintiff inhaled dust liberated from Seltsam products;
(b) duty — that Seltsam owed the plaintiff a relevant duty of care;
(c) breach — that Seltsam breached its duty of care which it owed to the plaintiff; and
(d) causation — that Seltsam’s breach was a cause of the plaintiff’s mesothelioma.
It is common ground between the defendants that only the first of these matters, exposure, is at issue, and if that is proven, Seltsam admits to duty, breach and causation.
Once an entitlement to contribution is established, pursuant to s 24(2), the amount of contribution recoverable by Amaca is to be ‘just and equitable’ as determined by the Court having regard to the extent of Seltsam’s responsibility for the damage.
In undertaking the apportionment exercise, the High Court has set out the relevant test in Podrebersek v Australian Iron and Steel Pty Ltd (‘Podrebersek’):
The making of an apportionment between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage.[2]
[2](1985) 59 ALR 529, 532–3 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) (citations omitted) (‘Podrebersek’).
For the purposes of this trial, the parties agreed that there was no difference in the negligence of the first and second defendants. In other words, there was no issue as to the first element relevant to apportionment of liability (‘culpability’). What remained, then, was an assessment of the relative importance of the acts of each defendant in causing the damage suffered by the plaintiff (‘relative causation’).
It is important to note at the outset that this case involves quite an unusual exposure profile. While a plaintiff claiming negligence arising out of the same injury against multiple defendants is common, what differentiates this case from other asbestos contribution proceedings is that the injury is said to arise from exposure to products in the same location, in the same time period, arising out of the same activities, and in circumstances where the method of exposure is the same (direct exposure to asbestos dust). This makes the apportionment exercise a difficult one, with much more substantial focus on the amount of each defendant’s product used in the construction of the house and differences in the composition of those products, and any consequent delineation in ‘relative causation’.
Relatedly, much of the evidence in this proceeding is circumstantial. I have relied on inferential reasoning based on the circumstantial evidence in this case. I adopt the statement of a majority of the High Court in Holloway v McFeeters (‘Holloway’) that:
[Y]ou need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture … By more probable is meant no more than on the balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.[3]
I also adopt as instructive Dixon CJ’s observations in Jones v Dunkel:
[T]he law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.[4]
[3](1956) 94 CLR 470, 480–1 (Williams, Webb and Taylor JJ) quoting Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5–6 (Dixon, Williams, Webb, Fullagar and Kitto JJ).
[4](1959) 101 CLR 298, 305.
Evidence
The evidence at trial consisted of:
(a) the transcript of evidence given by the plaintiff at a de bene esse examination on 26 November 2019;
(b) viva voce evidence given at trial by:
(i) Mr Alan Rogers, an occupational hygienist;
(ii) Mr Michael Harvey Kottek, an occupational and environmental health consultant; and
(c) various documents tendered by the parties, including:
(i) the Wunderlich Asbestos Cement Product Manufacturing Manual;
(ii) a report of Dr James Leigh dated 3 October 2019; and
(iii) a report of Mr Robert Turnbull dated 25 October 2019.
Key issues in dispute
The following factual issues, which Amaca bears the onus of establishing, are in dispute:
(a) was the asbestos to which the plaintiff was exposed, and which caused his malignant mesothelioma, from the house?;
(b) was Seltsam product used in the construction of the house?;
(c) is amosite more potent in causing mesothelioma than chrysotile? If so, in what proportion?; and
(d) what was the degree, if any, of the plaintiff’s exposure to Amaca and Seltsam product?
These four issues are considered in turn below.
(a) Was the asbestos to which the plaintiff was exposed, and which caused his malignant mesothelioma, from the house?
Relying on the plaintiff’s evidence, counsel for Amaca submitted that the plaintiff’s malignant mesothelioma was caused by exposure to asbestos during the construction of the house.
The plaintiff provided evidence at a de bene esse examination on 26 November 2019. The plaintiff said that in 1975, he began constructing the house at Lot 7, Bannons Lane, Yarrambat. The plaintiff recalled the house to be under construction for approximately six months.[5] During this period of time, the plaintiff said that he was working as a general practitioner at the Whittlesea Medical Centre.[6]
[5]Exhibit 5, 13.16–25.
[6]Ibid 14.20–21.
The plaintiff recalled that he would visit the house while it was under construction. The plaintiff explained that he had a variable work schedule during this period. He said that he would go to the house at lunchtime (if he had a long break or the afternoon off), on Saturday mornings, on his days off, and sometimes even at night. On average, he attended the construction site two to three times during the week and on Saturdays if he was not working or with his family.[7]
[7]Ibid 16.13-18,–17.1-2, 22.26-31, 23.1-2; Exhibit 7, First Defendant’s Interrogatories For The Examination Of The Plaintiff And The Plaintiff’s Answers.
During his weekday visits, the plaintiff said that he would attend the site for a ‘good hour’ and would not go to the site unless he had a ‘good break,’ from about 12:15pm to 2:00pm.[8] On the Saturdays that he visited the site, the plaintiff said that he would be at the site for the time that the builder’s would be there.[9]
[8]Exhibit 5, 17.14–29.
[9]Ibid 18.10–14.
The plaintiff said that he would primarily chat with the builder at the site.[10] When he was at the site, he saw dust created by the builders’ tasks. Although the plaintiff did not usually do activities to expose himself to dirt or mud when in his work attire,[11] he did engage in activities ranging from carrying, lifting, cleaning up for the builder by sweeping, picking up wood, making a pile of wood, shifting material, stacking materials which he described as ‘fibro’, holding material while it was being sawed, and asking the builder whether he wanted anything brought in.[12]
[10]Ibid 17.16–22, 18.23–31, 19.16-18.
[11]Ibid 18.25–31, 19.11-18.
[12]Ibid 18.27–31, 21.12–23, 22.3–6.
He recalled material being sawed at the site, material that he thought to be plaster. These were cut with both hand saws and power saws. The plaintiff recalled that a power tool was set up inside the house and outside in the garage area.[13] Although ignorant of this at the time, the plaintiff now recognises that the material being sawed was what he referred to as ‘fibro’, an asbestos-based material.[14]
[13]Ibid 24.28–25.2.
[14]Ibid 20.10–25.
As to where he conducted his activities, the plaintiff gave evidence that his activities ranged from inside and outside the house, and that he ‘probably’ swept every room inside the house.[15] He recalled sweeping the bricks but not the carport area.[16] He could not specifically recall the eaves or the carport being built, but he described the construction of the house as a big job and that he ‘would have been there at that time.’[17]
[15]Ibid 26.18–20.
[16]Ibid 26.21–25.
[17]Ibid 28.20–31.
The plaintiff could not say whether the builder supplied the asbestos sheets or whether subcontractors supplied their own sheets. He could not say where the asbestos sheets were purchased from. He did not closely examine the asbestos sheets and could not say whether they were branded in any way, but noted that they were an off-white colour.[18]
[18]Ibid 29.1–11.
Seltsam submitted that the evidence does not establish on the balance of probabilities that the plaintiff inhaled asbestos fibres at all.[19] Furthermore, Seltsam submitted that the court should not assume that by reason of the fact that the plaintiff contracted mesothelioma he must have been exposed at the premises. In particular, counsel for Seltsam contend that there is a real possibility that the plaintiff has unrecalled exposure to asbestos, and that his evidence in relation to exposure at the house was unreliable due to, among other things, the long period of time that has passed since the house was constructed. Seltsam also claimed there were contradictions between the plaintiff’s evidence in the de bene esse examination and his answers to interrogatories.[20]
[19]Written Submissions on behalf of Seltsam Pty Ltd dated 1 April 2020 [20] (‘Seltsam’s First Written Submissions’).
[20]Ibid [19], [21]–[22].
Seltsam also submitted that the plaintiff’s evidence as to the time he spent on the property, his sweeping up of debris, holding asbestos sheets, and picking up material, was too vague and general to prove that it was probable he inhaled asbestos at the house during its construction.[21]
[21]Ibid [23].
Analysis
I regard the plaintiff as an impressive witness. He was completely truthful and did not embellish or exaggerate. I view his evidence as reliable and to be accurate as to:
(a) the time he spent at the property during the construction of the house;
(b) his activities at the property during the construction of the house;
(c) that he was at the property when asbestos was being cut; and
(d) that he swept and directly picked up pieces of cut asbestos.
The only probable cause of the plaintiff’s mesothelioma was from the asbestos sheets used in the construction of the house. There is no evidence that the plaintiff was exposed to asbestos at another time or location. The plaintiff, when asked under cross-examination whether he could have been exposed to asbestos at another time, clearly answered that, other than putting up wallpaper in another house, he did not do any renovation work.[22] Any submission as to his possible exposure to asbestos in a location other than the house is mere conjecture.
[22]Exhibit 5, 23.7–18.
Seltsam submitted that the plaintiff’s evidence, at the de bene esse examination, that he held asbestos sheets at one end while the builder was cutting it was inconsistent with a sworn answer to an interrogatory in which he stated that he ‘did not have any involvement in the physical construction of the premises’. However, as Amaca submitted, no prior inconsistent statement was put to the plaintiff and, in any event, it would be reasonable for the plaintiff to consider that holding asbestos sheets while they were cut was not being ‘involved in the physical construction’ of the house.
For the purposes of determining relative causation, therefore, the plaintiff’s mesothelioma was caused by exposure to asbestos sheeting, through inhalation of dust and fibres due to the work of builders and his own activities at the house.
(b) Was Seltsam product used in the construction of the house?
Amaca submitted that the material used in the external sheeting areas could be identified as Seltsam product, relying on expert evidence given by Mr Kottek, an occupational and environmental health consultant.
Mr Kottek’s role involves assessing the location and extent of a person’s exposure to asbestos, and attempting to identify the manufacturers of products to which they were exposed.[23]
[23]Transcript of Proceedings, Reid v Amaca Pty Ltd & Anor (Supreme Court of Victoria, S ECI 2019 01558, Incerti J, 25–26 March 2020) 78.6–28 (‘T’).
He provided three reports, dated 31 March 2019,[24] 11 April 2019,[25] and 24 September 2019,[26] respectively. Mr Kottek attended the house and collected three samples of asbestos cement.[27] These samples were from ceiling of the heater room and the eave of the verandah at the north-east corner of the house (both of which Amaca contend was from Seltsam product), and from the tile underlay in the main bathroom (which Amaca accepts as being from Amaca product).[28]
[24]Exhibit 2.
[25]Exhibit 3.
[26]Exhibit 4.
[27]Exhibit 2, 1.
[28]Ibid.
His testing revealed that chrysotile asbestos was present in all three samples, but amosite asbestos was also present in the heater room sample.[29] Mr Kottek opined that based on his experience, the Australian Standard method used by NATA accredited laboratories does not reliably detect the presence of amosite in asbestos cement. He then arranged for the two samples where amosite had not been detected to be analysed by electron microscope.[30] From this additional testing, amosite was detected in the sample collected from the eave, while only chrysotile was detected in the bathroom tile sample.[31]
[29]Exhibit 2, 1. See also Exhibit 14.
[30]Exhibit 2, 1.
[31]Exhibit 3, 1.
Mr Kottek also examined the samples and found both hardwood and softwood fibres in the exterior samples, and but only softwood in the bathroom sample.[32]
[32]Exhibit 2, 1.
Based on the above findings, he concluded:
[I]t is probable that Wunderlich [Seltsam] manufactured the asbestos cement was used to line the exterior soffits (verandah eave, heater room ceiling, carport ceiling); while James Hardie [Amaca] manufactured the asbestos cement used for the bathroom tile underlay (and presumably as the underlay used in other wet areas in the home).[33]
[33]Ibid 2.
The foundations for his conclusions are as follows:
(a) in the preceding five years (from March 2019), Mr Kottek had examined fibres and asbestos content from ‘at least fifty samples’ which he collected from Queensland, Victoria, New South Wales and Tasmania. He has been able to determine the provenance of ‘several’ samples including Amaca sheets with Hardiflex stamping (which he personally collected from two locations in Victoria and one in New South Wales), and Seltsam sheets with Wunderflex stamping (which he personally collected in northern New South Wales).[34] He said in cross-examination that of the roughly 50 samples he tested, three to five of the samples were known to be Seltsam product;[35]
(b) from these sample tests, he had never detected hardwood pulp in samples of asbestos cement known to have been manufactured by Amaca, while he had ‘always’ detected it in samples known to have been manufactured by Seltsam;[36] and
(c) his opinion is further supported by documents tendered in a previous case before this Court in which he gave evidence, Swiatek v Amaca Pty Ltd & Ors (‘Swiatek’),[37] and his existing knowledge. He opines that the Wunderflex product mix (Seltsam product) would ‘typically’ include hardwood pulp and amosite, while he was ‘unaware’ of any information indicating that Amaca used hardwood pulp for anything other than experimental products.[38]
[34]Ibid Appendix B, 5.
[35]T132.25–136.7; Exhibit 9.
[36]Exhibit 2, Appendix B, 9; T136.6–7.
[37][2016] VSC 808.
[38]Exhibit 2, Appendix B, 9.
As a qualification to his opinion, he wrote that it would be desirable to confirm the composition of the bathroom tile underlay in a larger sample, and also to determine the Goliath product mix in 1975 (a third manufacturer of asbestos cement during the relevant period, who is not a party to these proceedings).[39] He also noted that he did not have ‘clear information on the fibre type(s) used by Goliath in 1975’.[40]
[39]Ibid Appendix B, 2; Exhibit 3, 1.
[40]Exhibit 2, Appendix B, 9.
Additionally, based on a laboratory report from SGS–IPS, he confirmed the presence of hardwood fibres in the two samples collected from the external sheeting areas. He wrote that the presence of hardwood fibres is consistent with asbestos cement sheets manufactured by Seltsam, but not by Amaca.[41] He therefore inferred that all the external asbestos cement sheets were manufactured by Seltsam.[42]
[41]Exhibit 4, 1.
[42]Ibid.
In cross-examination, Mr Kottek confirmed that in producing his third report, his instructions had been to measure the house and determine the percentages of each defendant’s products. He sent the samples to the laboratory at SGS–IPS on his own account.[43] In re-examination, Mr Kottek confirmed he also posted samples to the Seltsam’s solicitors because they requested such samples.[44]
[43]T102.24–25.
[44]T146.11–18.
Mr Kottek was further challenged on his process of reasoning in relation to finding amosite in the asbestos sheets. He agreed that at the time he wrote his second report, if he tested a product and did not find amosite, he concluded it was likely an Amaca product. On the other hand, if he did find amosite, he concluded it was more likely to be Seltsam product. Nonetheless, after being taken to James Hardie Specifications for AC Sheeting, he agreed that for a period in 1975 and 1976, Amaca also included amosite in its Hardiflex product mix.[45] He also agreed that at the time he wrote the report, he could not exclude the possibility that it was Goliath product, but could do so now based on updated information.[46]
[45]T129.2–130.9.
[46]T127.14–28.
Mr Kottek explained his method of reasoning in cross-examination that in his testing, if a product did not contain amosite (and only chrysotile), it would not have been a Seltsam product, and similarly, hardwood indicates that a product was not manufactured by Amaca.[47] He said that if a product has hardwood, and was manufactured in the 1970s, and contains amosite, he inferred that it was likely a Seltsam product.[48] He qualified this in confirming that at the time he wrote his first report, he knew Goliath used both hardwood and softwood, as well as amosite in its product mixes, but couldn’t conclude that it had been manufactured by Goliath given ‘what [he] knew at the time’.[49]
[47]T130.28–131.7.
[48]T130.10–22; T131.1–7.
[49]T137.17–138.4.
Seltsam submitted that Amaca is solely reliant upon Mr Kottek’s evidence to establish product identification.[50] There is no other evidence from which the Court can make a finding — no evidence from the builder or other tradespeople, nor any evidence of who supplied the product.[51] Seltsam submitted that Mr Kottek was not a reliable witness, that his methods of testing were flawed, and his evidence ought not to be accepted.[52]
[50]Seltsam’s First Written Submissions [26].
[51]Ibid.
[52]Ibid [25].
Seltsam further contended that the product and manufacturing specification for the Seltsam product Wunderflex dated October 1975 shows that ink was used for stencilled branding on the reverse side of Seltsam’s Wunderflex asbestos sheets.[53] In this regard Seltsam relied on the expert report of Mr Robert Turnbull dated 25 October 2019.[54]
[53]Ibid [29]. See Exhibit 9.
[54]Exhibit D.
Mr Turnbull is a builder and consultant with 40 years’ experience. He was instructed to attend the house to peel away the roof from a few points around the verandah in order to inspect the back of underlying asbestos cement sheets for any marking or stamps. He carried out this inspection on 24 October 2019. Mr Turnbull’s inspection (of the surface of 22 m2 of what he estimated as approximately 200 m2 of asbestos cement sheeting in the eaves and carport) failed to reveal a manufacturer’s stamp or marking.[55]
[55]Ibid 2–3.
In relation to product identification through stencilling, Mr Kottek was asked whether it was possible to determine the manufacturer of an asbestos sheet by looking at its ‘backing’ and reviewing the stencilling. Mr Kottek replied, ‘Sometimes, yes’.[56] He said that while Seltsam used stencilling on its Wunderflex product in New South Wales or Queensland, he would have been surprised to find it in Victoria given he had not come across it yet.[57] He gave anecdotal evidence of having made enquiries to see if the people he knew had seen a stamped Wunderflex sheet in Victoria.[58] He also said that he was looking for one to test its fibre composition, but had ‘never found one’.[59]
[56]T122.13–124.5.
[57]T122.14–19.
[58]T112.6–27.
[59]T112.23–25.
Mr Kottek was taken to a product specification for Wunderflex dated October 1975,[60] which indicated ink preparations as part of the product,[61] which Seltsam argued was used for stencilling.[62] After being told to assume that Seltsam had indeed stencilled its products for the relevant time period, he was asked whether an absence of stencilling on the eaves would cause him to doubt that the product was manufactured by Seltsam. He said ‘No’.[63]
[60]Exhibit 9.
[61]T123.31–124.5.
[62]Seltsam’s First Written Submissions [29].
[63]T125.15–20.
Analysis
I accept Mr Kottek’s evidence that from the samples he tested from the heater room and the eaves, it was more likely than not that they were Seltsam product. I found Mr Kottek to be a reliable witness, who made appropriate qualifications in his opinions in both the written reports and his viva voce evidence. For example, Mr Kottek explained that while his testing revealed only softwood in the bathroom sample, it would be desirable to confirm the composition of the bathroom tile underlay in a larger sample, and also to determine the Goliath product mix in 1975.[64] He also noted in his 31 March 2019 report that he did not have ‘clear information on the fibre type(s) used by Goliath in 1975’.[65]
[64]Exhibit 2, 2.
[65]Exhibit 2, 9.
I note that in respect of samples from the external sheeting areas, Mr Kottek only collected samples from the heater room and a small section of an eave from the north-east section of the house. He did not collect a sample from the carport ceiling.
The assumptions underpinning Mr Kottek’s analysis are:
(a) the presence of chrysotile asbestos only (and the absence of amosite) in an asbestos sheet means that in the relevant period, it was not manufactured by Seltsam, and is consistent with Amaca product;
(b) the presence of hardwood indicates that the product was not manufactured by Amaca (and generally indicates that it was manufactured by Seltsam); and
(c) the presence of both amosite and hardwood together, is enough for an inference that the product was manufactured by Seltsam.
Based on these assumptions, including those set out in [38] above, and Mr Kottek’s testing, that revealed that the bathroom samples contained only chrysotile and softwood, compared to the presence of softwood, hardwood, amosite and chrysotile in the exterior samples. This allows for an inference that it is more likely than not that Seltsam product was used in the construction of the house.
I do not accept Seltsam’s suggestion that Mr Kottek went on a ‘frolic’ when sending the samples to SGS–IPS on his own account. If anything, this was indicative of the reverse, that is, Mr Kottek was particularly rigorous in his analysis and wanted to ensure that his conclusions based on product mixes (that the bathroom tile sample contained only softwood) could be supported by additional electron microscopy results.
Seltsam’s other challenges to Mr Kottek’s process, including the chain of custody, selective testing for samples and limited sample sizes, do not, without expert evidence as to the invalidity of the results, mean that the results from Mr Kottek’s testing are unreliable or invalid. Mr Kottek’s inferences are underpinned by over 20 years of experience in making retrospective exposure assessments, including testing and identifying the manufacturer of asbestos products for both plaintiffs and defendants.[66]
[66]Exhibit 2, 12.
In respect of the number of samples that Mr Kottek took, while only taking two samples from the eaves and one from the heater room ceiling may seem limited, he (as the expert) was in the best position to determine the number of samples he required. He stated in cross-examination that his intention was always to gather three samples when he went to the house.[67] There was no evidence to challenge the adequacy of the number of samples used by Mr Kottek to reach his conclusions.
[67]T96.17–29.
Counsel for Seltsam submitted that Goliath is a possible manufacturer of the external sheeting area samples that Mr Kottek tested, given that they also manufactured asbestos material containing amosite, as well as hardwood and softwood, in the relevant period. While this is a possibility, I cannot, without further evidence to substantiate this point, conclude that Mr Kottek’s inference is not open to make. This is especially the case given that Mr Kottek’s evidence is that now, with the knowledge of Goliath product mixes from the relevant period, the samples he took from the eaves are not consistent with Goliath product.[68]
[68]T139.2–7.
Based on the above, I conclude on the balance of probabilities that Seltsam product was used in the construction of the house. The absence of evidence from the plaintiff, the builder, tradespeople or suppliers does not detract from this conclusion. Nor, in light of Mr Kottek’s accepted evidence, does the fact that Mr Turnbull was unable to identify ‘Wunderflex’ stencilling on the boards used in the carport and verandah.
(c) Is amosite more potent in causing mesothelioma than chrysotile? If so, in what proportion?
Amaca contend that the expert evidence of Mr Rogers and Dr Leigh establishes that amosite, which was used in the Seltsam product but not the Amaca product, is more potent in causing mesothelioma and more likely to become airborne than chrysotile. Amaca submits that it matters little whether amosite was 10, 100 or 550 times more potent; for example, if it were 10 times more potent, it would result in an apportionment of 5% to Amaca and 95% to Seltsam.[69]
[69]Written Submissions on behalf of Amaca Pty Ltd dated 1 April 2020 [68]-[73] (Amaca’s First Written Submissions’).
Seltsam submits that there is real uncertainty in the scientific literature as to how significant the difference in causal potency of different asbestos fibre types is, particularly at low levels of exposure, and that any causal potency ratios are meaningless in this matter and do not provide any proper basis for the apportionment of liability for the plaintiff’s damage between Amaca and Seltsam.[70]
[70]Seltsam’s First Written Submissions [47]–[48].
Mr Kottek pointed to an article on the increased potency of amosite in causing mesothelioma, and highlighted the presence of amosite in what he inferred was Seltsam product.[71]
[71]Exhibit 4, 2.
In cross-examination, Mr Kottek confirmed that he had not conducted any research into causal potency of amosite (compared to other asbestos fibres), and had no particular expertise in this area.[72] He also agreed that without information on exact exposure, potency ratios alone are only useful when dealing with equivalent exposures to different products.[73]
[72]T144.14–23.
[73]T145.1–10.
Mr Alan Rogers’ evidence was provided in a report dated 26 October 2019.[74] Mr Rogers is the Director of Alan Rogers OH&S Pty Ltd. He has a number of qualifications related to chemistry and occupational health, and industrial hygiene. Since 1978, he has researched the association between asbestos and diseases such as asbestosis, lung cancer and mesothelioma in Australia. He has published more than 80 scientific papers and has been involved in the drafting of more than 30 major government reports and regulatory codes of practice and standards.[75]
[74]Exhibit 1.
[75]Ibid 2–3.
Mr Rogers’ report provides an expert opinion on:
(a) causal potency (a relative risk assessment or estimate) of chrysotile fibres relative to amosite fibres; and
(b) whether the plaintiff’s estimated dose of asbestos fibres (that is, whether the dose was low, medium or high) affect this causal potency.[76]
[76]Ibid 1.
Mr Rogers’ report provides an overview of the different types of asbestos that he argues vary in potency. He reasons that it is well established, and in cross-examination said that a consensus has emerged,[77] that crocidolite is the most potent type of asbestos, with amosite being less potent, and chrysotile rarely, if ever, inducing mesothelioma.[78] Mr Rogers produced a table setting out the relative potency of each type of asbestos:[79]
[77]Ibid 4; T41.24–27.
[78]Exhibit 1, 4.
[79]Ibid 1.
| Chrysotile | Amosite | Crocidolite |
| 1 | 550 | 1000 (Rogers et al, 1994) |
| 1 | 100 | 500 (Hodgson & Darnton, 2000) |
| 1 | 325 | 1000 (Berman & Crump, 2008) |
Mr Rogers explained the figures in the table above provide a relative risk assessment based upon exposure to each form of asbestos.[80] For example, the risks associated with exposure to chrysotile, as compared to amosite and crocidolite (based upon the results from the study in Rogers’ 1994) would be 550 and 1000 times a relative exposure of chrysotile, respectively.
[80]Ibid.
While Mr Rogers’ evidence includes a third type of asbestos, crocidolite, this type of asbestos was not alleged to be found at the house, or to otherwise relate to an issue in dispute.
Mr Rogers further argues that the scientific literature indicates that there is no evidence to support a view that the daily or lifetime cumulative asbestos exposure affects the relative risk between chrysotile and amosite.[81] He refutes studies that indicate that there is lesser potency for amosite relative to chrysotile at very low or trace exposures, arguing that such arguments are theoretical, speculative and not supported by factual observation.[82]
[81]Ibid 17.
[82]Ibid 17–18.
Dr James Leigh’s report, dated 3 October 2019, provides insight into how all exposure to asbestos cumulatively contributes to the risk and cause of mesothelioma.[83] I consider Dr Leigh’s report to relevantly establish the following propositions:
[83]Exhibit C.
(a) all exposure to asbestos would have contributed cumulatively to the risk of the plaintiff developing mesothelioma;
(b) each exposure episode would have made a material contribution to the risk the plaintiff developing mesothelioma; and
(c) there is no level of asbestos exposure (regardless of whether it was chrysotile or amosite) below which there is no risk of mesothelioma.[84]
[84]Ibid 3, 14–15.
Analysis
I found Mr Rogers’ report, in combination with his oral evidence, comprehensive and rigorous. He set out the competing views in his field and noted the ideological, political and commercial divide amongst experts.
Selstam challenged Mr Rogers rigorously as to a one page letter that updated information in relation to Hodgson & Darnton’s 2000 Report (which he relied on in his table of conclusions at [64] above). Selstam submitted that this letter put the chrysotile to amosite to crocidolite ratio at 1:27:200[85] or 1:14:71.[86] Mr Rogers responded to Seltsam’s during cross-examination that he was not aware of the letter, thus explaining why he did not rely upon for the purposes of producing his own report, and that he disagreed with the numbers produced by Hodgson and Darnton calling it both a ‘theoretical examination’ and having ‘no biological relevance’.[87]
[85]T46.4-7; T47.1-8.
[86]T49.1-3; T49.15-21.
[87]T47.16-28.
Although I accept that Mr Rogers was not aware of the letter updating material upon which his table’s data is drawn, this is not fatal to the validity of his evidence. Mr Rogers is an eminently qualified expert. He provided well-reasoned responses as to the questions posed to him. I am not willing to discount his conclusions merely due to this one limitation. Further, as Amaca submits at whether amosite is 10, 100 or 550 times more potent may matter little for the ultimate apportionment exercise.
I do not accept the negative inference Seltsam seek for me to draw against Amaca due to Amaca’s failure to seek an opinion as to the plaintiff’s cumulative exposure.[88] The issue was not explored adequately by Seltsam for me to draw any conclusions on the matter and it would be inappropriate for me to draw such an inference without supporting evidence.
[88]Seltsam’s First Written Submissions [52](c).
I found Dr Leigh’s report to be clear and convincing. Dr Leigh was not did not undergo cross-examination although Amaca submitted that Mr Rogers’ evidence was in conflict with his report.[89]
[89]Submissions in reply on behalf of Amaca Pty Ltd dated 7 April 2020 [28]-[36].
I accept Mr Rogers’ conclusion that there is an scientific consensus as to the relatively greater potency of amosite compared to chrysotile, and that chrysotile is the least potent asbestos amongst the three. Dr Leigh’s evidence supports Mr Rogers’ conclusion in this regard.[90]
[90]See Exhibit C, 10–11.
Greater relative potency is critical as it establishes that any exposure to amosite that the plaintiff experienced would have been potentially more risky (in respect of causing mesothelioma) than his exposure to chrysotile. In this case, relevantly, the greater relative potency of amosite, is one of the factors I rely upon in inferring that Seltsam‘s conduct is a relatively more important act in causing Dr Reid’s damage.
Mr Rogers’ and Dr Leigh’s opinions as to the relationship between cumulative exposure and potency is a more difficult inquiry. Factually, Dr Leigh’s evidence is not in tension with Mr Rogers’ conclusion that the relative potency of amosite over chrysotile is not affected whether the plaintiff’s estimated dose of asbestos fibres is low, medium or high. However, the two experts’ opinions differ as to chrysotile’s potency; Dr Leigh argues that chrysotile is generally considered to be a cause of mesothelioma,[91] while Mr Rogers’ argues that chrysotile rarely, if ever, causes mesothelioma.[92]
[91]Ibid 10.
[92]Exhibit 1, 4.
This distinction is important because Dr Leigh argues that all exposure to asbestos would have contributed cumulatively to the risk of the plaintiff’s mesothelioma, including his exposure to chrysotile, while the same conclusion is not necessarily reached by Mr Rogers. Consequently, in Dr Leigh’s view, there is no level of asbestos exposure, including chrysotile below which there is no risk of developing mesothelioma.[93]
[93]I am not necessarily suggesting that Mr Rogers’ evidence supports the opposite conclusion, i.e. that one can be exposed to chrysotile and not be at risk of developing mesothelioma. Rather, it is not immediately clear that Dr Leigh’s conclusion can be reached through Mr Rogers’ evidence on this point.
It is worth affirming that it is not a characteristic of the judicial role to enter the mind of a scientist and to analyse, weigh up, and decide the strength of a scientific opinion from the perspective of a scientist. The role of a judge in a civil case is to decide where the truth lies, or whether a case has been made out, on the balance of probabilities. There is always the risk that, if a trier of fact were to adopt such an approach, they could become so immersed in every detail, and look so deeply into the minds of the experts, that they apply the standard of a scientist rather than that of a judge.[94]
[94]See the discussion in J D Heydon, Cross on Evidence (LexisNexis, 12th ed, 2020) [29075] citing Dingley v The Chief Constable of Strathclyde Police 2000 SC (HL) 77, 89 (Lord Hope).
On the material presented to the Court, I accept Amaca’s submission that the Court should find on the above evidence that amosite is at least 10 times more carcinogenic than chrysotile and more likely, based upon Mr Rogers’ table, around 100 to 550 times more carcinogenic. I agree with counsel for Amaca that it is not necessary for me to come to a conclusion as to the precise proportion of relative potency between amosite and chrysotile. Although a range between 100 times or 550 times potency (or even 10 times) relative to chrysotile is clearly broad, in the present context, it does not displace the greater potency amosite exhibits compared to chrysotile.
Although not a determinative issue, I prefer Dr Leigh’s opinion as to the carcinogenic propensity of chrysotile. I do so for three reasons. First, Mr Rogers’ evidence does not exclude the possibility that chrysotile can cause mesothelioma, only that it is quite unlikely. Dr Leigh’s evidence supports the probable likelihood of the carcinogenic nature of chrysotile. Secondly, Dr Leigh’s opinion on this matter was unequivocal and his report provided an authoritative opinion reconfirming the ability of chrysotile to cause mesothelioma.[95] Mr Rogers’ opinion on this point was equivocal and was not supported by sources that are as authoritative. Thirdly, Amaca did not present adequate evidence to the Court for chrysotile’s carcinogenic propensity to be interpreted as insignificant. Although Mr Rogers is in tension with Dr Leigh on this point, as stated above, their two position are not irreconcilable, especially when it is acknowledged that Mr Rogers’ evidence permits an interpretation that chrysotile is carcinogenic.
[95]Exhibit C, 11: ‘The ability of chrysotile to cause mesothelioma has been recently [reconfirmed] by the International Agency for Research on Cancer (WHO) [World Health Organisation] (Lancet Oncology 2009; 10:453-454)’.
The ultimate importance of this, for the purposes of this case, is that a party that has exposed an injured plaintiff to chrysotile asbestos that has caused mesothelioma will be liable for a proportion of the injured plaintiff’s damages, unless other countervailing factors, such as the degree of exposure or the quantity present of a product, are shown to reduce relative causation.
Dr Leigh’s evidence from his report that amosite fibres are more likely to become airborne than chrysotile fibres is unchallenged by Dr Rogers and Seltsam.[96]
[96]Ibid 3.
Thus, I find:
(a) the scientific consensus is that amosite is a more potent form of asbestos than chrysotile;
(b) a low, medium, or high exposure to asbestos does not impact this relative potency. That is, a low dose of amosite compared to a low dose of chrysotile still results in amosite exacting a more pernicious impact upon an exposed person;
(c) each episode of exposure to asbestos materially contributes to the risk of a person developing mesothelioma;
(d) this material contribution to risk includes both amosite and chrysotile, notwithstanding the relative greater potency of the former; and
(e) the countervailing factors of the degree of exposure and the quantity of a product, coupled with the potency of the form of asbestos, will have the ultimate bearing upon the apportionment of relative causation.
(d) What was the degree, if any, of the plaintiff’s exposure to Amaca and Seltsam product?
Amaca submits that the Court should infer that the plaintiff’s proportional inhalation of asbestos dust corresponded (even if imperfectly) with the proportion of asbestos cement sheeting used as between the external and internal sheeting areas. Related to the issue of the plaintiff’s relative exposure, Amaca also submitted that amosite fibres (argued to come from Seltsam product) have a greater capacity to become airborne, by at least a factor of three,[97] supporting the probability that the plaintiff proportionately inhaled more asbestos from Seltsam product.
[97]Seltsam’s First Written Submissions [66]–[67]; Exhibit C, 3.
Mr Kottek gave evidence that he measured the widths and lengths of the external areas constructed with asbestos. After determining that his own measurements did not deviate materially from the dimensions on the plan, he estimated that around 178 m2 of asbestos was used to line the eaves, store room ceiling and garage ceiling.[98]
[98]Exhibit 4, 1.
He inferred that in the internal areas, asbestos cement was only used as a tile underlay in the shower cubicles, bath splashback and possibly in the kitchen splashback. He assumed that all the internal asbestos cement was manufactured by Amaca and installed during the initial construction. Based on these assumptions, he calculated that around 18 m2 of asbestos cement was installed internally.
From the ratio of 178 m2 (outside) to 18 m2 (inside), he estimated that roughly 9% of the asbestos cement used in the house was manufactured by Amaca.[99]
[99]Exhibit 4, 2.
Counsel for Seltsam argued that despite Mr Kottek’s calculation of square metreage for the external sheeting areas compared to the internal sheeting areas, there is no evidence that the majority of the asbestos cement sheets used in the construction of the house were Seltsam product (especially considering Mr Kottek only tested two of the 95 sheets from the eaves).[100]
[100]Seltsam’s First Written Submissions [25]–[26], [28].
In cross-examination, Mr Kottek accepted that in 1975 and 1976 in Victoria, Amaca, Seltsam and Goliath were all manufacturers of asbestos cement sheeting, and whose products were interchangeable.[101] He agreed that that a builder could use an Amaca cement sheet for one eave, and a Seltsam one for the next eave in the same construction site. He agreed that without knowing what the builder did, his report and opinion were limited to the two eaves that he tested.[102] However, in re-examination, Mr Kottek said that in the past, he had interviewed buyers of asbestos materials as part of his role in identifying sources of asbestos. He gave evidence that the distributors (usually hardware stores) would ‘generally’ deal with one supplier, and while the distributor may change suppliers, this was uncommon.[103]
[101]T121.19–25.
[102] T121.7–122.5.
[103]T149.22–150.24.
I conclude, based on Mr Kottek’s evidence, that most, if not all, the asbestos cement sheeting used in the external sheeting areas was Seltsam product. While a builder could theoretically have used an Amaca cement sheet for one eave, and a product from a different manufacturer on a different eave in the same construction site, Mr Kottek’s evidence (based on his firsthand interviews and substantial experience in identifying manufacturers of asbestos products) is that this would be unlikely given that hardware stores typically deal with one supplier. Supporting this conclusion, is the common sense unlikelihood and impracticality of a builder purchasing asbestos sheeting from two or more suppliers for the outside areas of the house and thus it is probable that the same product was used throughout the external sheeting areas. While Mr Kottek did not obtain a sample from the carport, as I have found above, he was in the best position to determine the number of samples he required.
Given my acceptance of the plaintiff’s evidence as to his time at the house, and the fact that the majority of asbestos used on the house was Seltsam product,[104] I infer on the balance of probabilities that the plaintiff inhaled asbestos dust and fibre liberated from Seltsam product used in the external sheeting areas as well as from Amaca product used in the internal sheeting areas.
[104]Exhibit D, 3.
Seltsam submitted that Amaca’s proposed approach of determining relative exposure based on the square metreage of asbestos sheets used in the external sheeting areas compared to those used in the internal sheeting areas was flawed as it fails to consider how the asbestos fibres become airborne and whether there was equal disturbance to the Amaca product versus the Seltsam product.[105]
[105]Seltsam’s First Written Submissions [49]–[50].
It was further submitted that Amaca’s proposed approach of applying mathematical probabilities to determine risk of exposure, and specifically, to make a factual determination of likelihood, in the context of contribution proceedings, has previously been rejected by this Court.[106]
[106]Submissions in reply on behalf of Seltsam Pty Ltd dated 6 April 2020 [3] citing Berengo v Amaca Pty Ltd & Anor [2010] VSC 496 [35] (T Forrest J).
Seltsam submitted that even if exposure (and exposure to Seltsam product specifically) is proven, given that there is no basis on which to calculate the plaintiff’s relative exposure to asbestos from the different manufacturers, Seltsam’s contribution to Amaca in respect of the damage suffered by the plaintiff should be 50 per cent of the settlement amount plus costs.[107]
[107]Seltsam’s First Written Submissions [52]–[53].
In cross-examination, Mr Kottek confirmed that where asbestos fibres were not airborne, they do not pose a risk to health.[108]
[108]T114.29–T115.19.
When asked about the factors that he would need to take into account to determine exposure to asbestos, he identified the following factors:
(a) distance;
(b) method of disturbance;
(c) amount of visible dust;
(d) whether the activity was inside or outside; and
(e) length of time of exposure.[109]
[109]T118.29-119.7.
Specifically, he also gave examples of activities and factors that he would expect to influence the level of exposure to fibres, including:
(a) whole asbestos sheets being used creates less dust;
(b) asbestos boards being cut with a power saw would result in dust spreading further, thereby reducing the relevance of proximity as a factor;
(c) a person who is exposed to asbestos indoors would have a higher risk (assuming the activities carried out were equivalent);
(d) nails being hammered in rather than drilled would release less fibres; and
(e) sweeping indoors rather than outdoors creates a greater risk (assuming the same amount of dust in both locations).[110]
[110]T119.8–121.6.
I also accept the evidence of Dr Leigh that, based upon what he knew, it was impossible for him to determine with any accuracy what the plaintiff’s exposure intensities were, what fibre types he was exposed to, and what the durations of exposure were. The detail provided to Dr Leigh was therefore insufficient for him to make any reliable quantitative estimate of exposure.[111]
[111]Exhibit C, 3.
Analysis
In respect of the plaintiff’s relative exposure to Amaca product compared to Seltsam product, his evidence (which I have accepted above) was that when undertaking the activities that caused him to be exposed to asbestos (sweeping, holding while being cut, carrying, cleaning, seeing dust, speaking to tradespeople), he did those activities both inside and outside. Beyond this generality, he was not able to identify the extent to which the time he spent on those activities differed as between the external and internal sheeting areas. Further, Mr Kottek confirmed that he has not spoken to the plaintiff in this case.[112] Consequently, these two points lead me to conclude that despite the simplicity and attractiveness of Amaca’s mathematical model to apportion exposure, the very factors he identified as important to determining the level of exposure to asbestos undercuts Amaca’s submissions.
[112]T79.23–24.
Mathematical or formula-based evidence is not new to this Court. However, I am guided here by what Chief Justice Spigelman of the New South Wales Supreme Court (as he then was) wrote about quantitative analysis:
the tendency to give quantitative measurements a quite disproportionate influence in the making of decisions … which arises from the very concreteness of statistics against the more amorphous quality of principle, is a tendency that must be resisted.[113]
[113]James J Spigelman, ‘Seen to be Done: The Principle of Open Justice — Part II’ (2000) 74(6) Australian Law Journal 378, 380–1 (emphasis added).
Amaca’s reliance on Swiatek as blessing the adoption of their proposed model for apportionment is flawed. In Swiatek, there were different exposure periods that were relevant for the different defendants, which allowed Keogh J to adopt a time-based exposure analysis and therefore, split the exposure period into ‘Amaca years’ and ‘Seltsam/CSR years’,[114] which his Honour then moderated to take into account evidence of more direct exposure. By contrast, the plaintiff’s exposure to both Amaca and Seltsam product in this case were in respect of the same time period, the same location (broadly categorised as the construction site), the same activities, and, as I have found, he was directly exposed to asbestos dust from both defendants’ products. An adoption of the approach taken in Swiatek is therefore inapt given the fundamental differences in the exposure profile in that case. I note that this applies similarly when considering Berengo v Amaca Pty Ltd & Anor (‘Berengo’),[115] relied on by Seltsam, where T Forrest J explicitly placed the different types of exposure that the plaintiff there experienced into different timelines.[116]
[114]Swiatek [2016] VSC 808 [33], [36], [43].
[115][2010] VSC 496.
[116]Ibid [17], [47]–[48].
It is important to note at this point that Seltsam’s submission, relying on Berengo,[117] that the application of mathematical probabilities has been rejected in the context of asbestos contribution proceedings, is not entirely accurate. In Berengo, T Forrest J held that the Court could not use evidence of market share, absent other evidence about product identification for the specific location of exposure, to conclude that Seltsam product was used.[118] In this case, Mr Kottek provided expert evidence on product identification and I have found that Seltsam product was used in the house. Further, Amaca’s submissions relate to the mathematical probability of exposure based on square metreage of different products if the Court accepts that Seltsam product was used in the construction of the house, not to the mathematical probability that Seltsam product was used at all.
[117]Ibid [35].
[118]Ibid: ‘Similarly, the fact that Seltsam may have had a 35% market share in Victoria in 1977 taken by itself, or in combination with other evidence, does not permit me to conclude that the plaintiff’s exposure to Seltsam products was any greater than I have found. There is no evidence of over what period it had held that market share, or in what precise areas its products were distributed within Victoria. Even if it could be concluded that every time the plaintiff or his father were exposed to asbestos that was otherwise incapable of identification, there was a 35% chance it was Seltsam asbestos, this is not proof that in fact any asbestos at any particular work site was of Seltsam origin.’
Referring back to the High Court’s comments in Holloway about inferential reasoning and that circumstances must do more than raise conflicting inferences of equal probability, in order for the Court to be satisfied on the balance of probabilities of the 9:91 ratio for apportionment as put forward by Amaca (based on the square metreage and not taking into account the potency ratios of amosite and chrysotile), I would need to also be satisfied of other relevant factors including that:
(a) the amount of dust released from each of the defendants’ products was in proportion to their measured square metreage; and/or
(b) the plaintiff inhaled asbestos dust in such proportion.
There is simply insufficiently specific evidence from the plaintiff (and I make no criticism of this) as to these matters, and I am consequently unable to draw any conclusions as to them.
Therefore, I do not accept that there is a process of reasoning in Mr Kottek’s evidence which supports the precise mathematical calculation undertaken by him as to the extent of exposure to asbestos from Seltsam products while the plaintiff was at the house during its construction. Mr Kottek’s evidence is helpful and relevant as a guide but not as a mathematical calculation.
Finally, on the issue of degree of exposure, Seltsam submitted that the court ought to have regard to Mr Kottek’s evidence that indoor exposure is riskier than outdoor exposure and noted that any Seltsam product was used only in the external sheeting areas.[119] On this point, given the plaintiff’s exposure occurred during the construction of the house, a clear separation between the inside and outside areas of the house cannot be assumed (especially in the early stages of construction). While I have found that more Seltsam product was used to construct the house overall, leading me to find that it is probable that the plaintiff inhaled more asbestos dust emanating from Seltsam-origin product, I cannot accept that dust from product used in the external sheeting areas would likely only be inhaled while the plaintiff was undertaking activities outside and vice versa.
[119]Seltsam’s First Written Submissions [44].
Seltsam’s contribution
On the basis of the above findings, Amaca has established exposure, as I have found that it is probable that the plaintiff inhaled dust liberated from Seltsam products. As it is common ground that duty, breach and causation are not in issue, Seltsam’s contribution to the plaintiff’s damage is the only remaining issue to consider.
Section 24(2) of the Wrongs Act provides as follows:
Subject to subsections (2A) and (2B), in any proceedings for contribution under section 23B the amount of the contribution recoverable from any person shall be such as may be found by the jury or by the court if the trial is without a jury to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the jury or the court if the trial is without a jury shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.
In relation to how the court is to apportion responsibility, T Forrest J said in Berengo:
In measuring the apportionment of responsibility, I must consider the respective culpability of both parties and the relative importance of the acts of either party in causing the damage. Ultimately, there is no mathematically precise means by which apportionment can be determined. “The tasks involve matters of proportion, balance and relative emphasis and are, in this regard, similar to the exercise of a broad discretion.”[120]
[120][2010] VSC 496 [44] (footnotes omitted).
The parties agree that there is no basis to distinguish between the relative culpability of each defendant. At the time of the plaintiff’s exposure to asbestos from Amaca and Seltsam products, each were manufacturers of asbestos cement products; both had a presence in the Victorian market; and both concede they owed the plaintiff a duty of care, breached the duty of care and that their breaches were causative of the plaintiff’s injuries. I am therefore unable to say that the departure from the expected reasonable standard of care was any greater by Amaca than Seltsam, or vice versa.
The evidence establishes exposure to both products. In cases where precise contributions cannot be determined between the tortfeasors because the evidence is incomplete, there can still be a foundation for determining proportional contribution. I consider that causation can be proportionally allocated between the plaintiff’s likely exposure given the amount of Amaca and Seltsam asbestos sheets used in the construction of the house and the different asbestos fibres to which he was exposed.
Put another way, I consider there is adequate and sufficient evidence to make an apportionment between Amaca and Seltsam of their respective shares and their responsibility for the damage involved. In doing so, I must consider a comparison of the relative importance of the acts and facts in relation to the parties and their relative contribution in causing the damage (keeping in mind that relative ‘culpability’ is indistinguishable between them).
Having considered the evidence in this case, I am of the view that the degree of exposure, and thus the degree of risk, varied between Amaca and Seltsam. In a case such as this one, relative causation is proved by evidence of exposure to risk and determining if there is a rational basis for distinguishing between the degrees of exposure. I consider there is a rational basis for the division of causation in this case. In regard to relative causation, the court is required to examine the whole conduct of each party, an examination which in circumstances of inability to quantify comparative causal potency could itself lead to differential responsibility by regard to the degree of exposure to risk.[121]
[121]James Hardie & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425, 448 [101] (Sheller JA, Spigelman CJ, Stein and Giles JJA agreeing).
In order to consider the Seltam’s contribution, it is necessary to revisit and summarise my findings on exposure:
(a) all asbestos sheeting used in the internal sheeting areas was Amaca product, while most, if not all, asbestos sheeting used in the external sheeting areas was Seltsam product;
(b) approximately 178 m2 of Seltsam asbestos sheets was used to line the eaves, store room ceiling and garage ceiling. While approximately 18 m2 of Amaca asbestos sheets was used to line the indoor wet areas;
(c) the Seltsam asbestos sheets contained amosite and chrysotile while, the Amaca asbestos sheets used at the house contained chrysotile but no amosite;
(d) the plaintiff conducted activities in all locations of the house while it was under construction. He cleaned and swept outdoors and indoors. The plaintiff was exposed to the workers while they were handling and cutting the asbestos containing products, indoors and outdoors. He held the asbestos sheets while they were cut and while he tidied up the house he picked up and stacked rubbish including pieces of asbestos sheets. While he undertook these activities, he was exposed and inhaled to asbestos dust and fibres;
(e) based on the plaintiff’s evidence alone, I cannot conclude that when he was at the house he was exposed to more or less asbestos dust or fibres emanating from Amaca products as compared to Seltsam products;
(f) amosite is more potent and more likely to become airborne than chrysotile. The relative risk difference between amosite and chrysotile does not alter on the basis of low, very low or ultralow cumulative exposures;
(g) chrysotile is most likely carcinogenic and it is probable that each exposure would have made a material contribution to the causation of the plaintiff’s mesothelioma.
As a result of the above findings, in relation to relative causation of the plaintiff’s mesothelioma, I conclude that:
(a) the plaintiff’s exposure to both amosite and chrysotile materially contributed to his mesothelioma;
(b) the plaintiff’s exposure to the more potent form of asbestos, amosite, which was also more likely to become airborne, was more ‘important’ (to borrow the High Court’s language in Podrebersek) in causing his mesothelioma than the less potent version, chrysotile;
(c) as more Seltsam product was used in the construction of the house, coupled with the accepted greater potency of amosite over chrysotile, Seltsam’s actions were of greater relative importance than Amaca’s in causing the plaintiff’s mesothelioma; and
(d) correspondingly, Amaca’s actions in exposing the plaintiff to chrysotile was a lesser act of relative importance in the causation of the plaintiff’s mesothelioma. However, Amaca did made a material contribution to his mesothelioma that, based upon chrysotile’s carcinogenic propensity and the plaintiff’s possible cumulative exposure to chrysotile, cannot result in the 9% to 91% apportionment sought by Amaca.
The approach to determining apportionment is described in Podrebersek by Gibbs CJ, Mason, Wilson, Brennan and Deane JJ:
A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’.[122]
[122](1985) 59 ALR 529, 532 (citations omitted) quoting British Fame (Owners) v Macgregor (Owners) [1943] AC 197, 201.
I consider that it is impossible to express the relative contributions of the parties to the plaintiff’s exposure with any more precision. The plaintiff was exposed to Seltsam and Amaca asbestos sheets. He could not specify whether he most likely inhaled asbestos dust and fibres from Seltsam product more, less or the same compared to Amaca product. However, there was significantly more Seltsam product used in the construction of the house. Further, as I have said Seltsam’s product contained chrysotile and amosite which made it more potent than Amaca’s product and increases the likelihood of Seltsam’s product having more impact on the development of the plaintiff’s mesothelioma.
I cannot distinguish between the parties on the issue of respective culpability. I consider the plaintiff’s exposure to Seltsam product was of more relative importance in causing the damage suffered by the plaintiff than the plaintiff’s exposure to Amaca product. I consider Seltsam’s contribution to the plaintiff’s damage was 70% (with the remaining 30% from Amaca).
Conclusion
I will therefore order that the contribution of each of Amaca and Seltsam in respect of the damage to the plaintiff (being the amount of $1.4 million plus costs for which the plaintiff settled his claim against both defendants) is:
(a) Amaca: 30 per cent
(b) Seltsam: 70 per cent
Total: 100 per cent.
I will hear from the parties as to costs and the appropriate form of orders.
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