Resi Corp v Bradford Insulation (SA) P/L (in Liq) & BI (Contracting) P/L (No 2) - [2018] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RESI CORP v BRADFORD INSULATION (SA) P/L (IN LIQ) & BI (CONTRACTING) P/L (No 2)
[2018] SADC 21
Judgment of His Honour Judge Jennings
14 March 2018
TORTS - NEGLIGENCE
ASBESTOS - DUTY OF CARE
CONTRIBUTION BETWEEN JOINT TORTFEASORS
Action by defendant Resi Corporation for third party contribution by third parties, Bradford Insulation (SA) Pty Ltd (In Liquidation) and BI (Contracting) Pty Ltd. In the primary action, the plaintiff, Mr Geyer, was found to have contracted mesothelioma as a result of his exposure to asbestos during the course of his employment as a boilermaker/welder, leading hand boilermaker, assistant foreman and mechanical foreman at Resi’s Playford Power Stations between 14 July 1957 and September 1986. This exposure was found to have occurred as a result of Resi’s negligence. The Court gave judgment for Mr Geyer against Resi in the sum of $327,474. Resi filed an action against the third parties for contribution on the basis that Bradford Insulation had negligently supplied the relevant asbestos that Mr Geyer was exposed to without warning of its dangers, and its asbestos and processes had contributed towards Mr Geyer’s mesothelioma.
Held: Bradford Insulation’s asbestos and processes contributed towards Mr Geyer’s mesothelioma – Apportionment of liability as between defendant and third parties – Comparison of their respective culpability and of the relative importance of the tortious acts in causing the plaintiff’s damage – Held: although the extent of causal responsibility was similar, Resi’s culpability was greater such that it should bear 70% and Bradford Insulation bear the remaining 30%. Resi is entitled to 30% contribution.
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 ss 6(5) and (6); Dust Diseases Act 2005 ss 8(1) and (2), referred to.
Geyer v Resi Corporation [2013] SADC 122; Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 39; Amaca Pty Ltd (Under NSW Administered Winding Up) (ACN 000 035 512) v Pfeiffer [2017] SASCFC 157, considered.

RESI CORP v BRADFORD INSULATION (SA) P/L (IN LIQ) & BI (CONTRACTING) P/L (No 2)
[2018] SADC 21

This is an action for third party contribution to damages.
Resi Corporation (“Resi”), the defendant, is the successor in title to the Electricity Trust of South Australia (“ETSA”). This action is a secondary action following a primary action that was between Mr Allan Charles Geyer, the plaintiff, and Resi. In that action for reasons published by me on 30 August 2013,[1] I gave judgment for Mr Geyer against Resi in the sum of $327,474, plus costs. I found that Mr Geyer had contracted mesothelioma as a result of his exposure to asbestos during the course of his employment as a boilermaker/welder, leading hand boilermaker, assistant foreman and mechanical foreman at Resi’s Playford Power Stations (“PPS”), between 14 July 1957 up until September 1986, and this exposure occurred as a result of Resi’s negligence. The total amount paid by Resi to Mr Geyer was $719,482.
[1] Geyer v Resi Corporation [2013] SADC 122.
In finding in Mr Geyer’s favour I made the following findings:
The plaintiff performed repairs to boiler walls, removing panels which covered boiler walls to repair the steel vertical tubes behind the walls. Underneath the boiler walls were asbestos blocks. Bradford Insulation installed, cut and removed the asbestos blocks so that other workers could work on the tubes below. Bradford Insulation employees were working whilst the plaintiff and others were in the same area. The workers from Bradford Insulation stood on the same platform which was about 1½ metres wide with the plaintiff and worked in the same proximity. The plaintiff spent two out of every eight hours of his work on boilers in the vicinity of other people cutting insulation.
The plaintiff performed this work until 1959 when he was promoted. About 50% of his time during this period was spent out in the Power Station performing boiler repairs.
In 1959 the plaintiff was promoted to leading hand and began working primarily in the boiler shop. It was approximately 150 feet in length. His job was to supervise others working in the boiler shop. Later still, the plaintiff was promoted to assistant mechanical foreman, which involved not only being responsible for the boiler shop, but also the coal conveyor system. In 1963 he was again promoted to mechanical foreman. Shortly before the plaintiff’s retirement he was promoted to acting mechanical workshops engineer.
As the plaintiff’s career continued with ETSA in his various supervisory roles, he continued to work in the boiler shop in a hands-on role assisting the men with the work and working closely with them to check that the work was being done correct. This involved continuing to work in the vicinity of others brushing down metal items which still had bits of insulation on them in the boiler shop.
Asbestos blankets were also used for heat protection in the boiler shop. They were about 2 metres by 1 metre in size. The plaintiff understood that the blankets contained asbestos and came from the stores department. The blankets were used to help keep the temperature up on metal items to ensure that welding was carried out correctly. Welding work that required asbestos blankets took between 8 and 10 hours. Dust came off the blankets; a light dust which fell to the floor when the blankets were being wrapped around items. The blankets deteriorated over time with holes appearing in them. The blankets were sometimes cleaned by shaking them before putting them back in the store. Dust was left on the floor when this happened.
The asbestos blankets were also used out in the Power Station. They were used to lay over gratings to protect people working below when welding work was being carried out. Dust was created when the blankets were used.
The boiler shop was a particularly noisy area. As a result of noise a contract was let for soundproofing of the walls of the boiler shop. Asbestos was sprayed on the boiler shop walls in 1967. The sprayed asbestos was installed the full length of the boiler shop wall about 150 feet in length. It was installed on both sides of the shop and also on one end the northern end. The sprayed asbestos was installed 26 feet high to the height of underneath the crane runway. The sprayed material was a grey matted material which was sprayed on semi-dry and then patted smooth. Once installed it dried out. If the wall was touched or damaged the sprayed asbestos would flake off. The plaintiff testified that ‘it was quite flimsy in a sense. If it was damaged it would flake off’.
The wall was damaged on occasions as a result of steel bumping against the wall which created more dust. The plaintiff was close by on occasions when this happened.
In 1979 acrylic paint was sprayed over the top of the asbestos wall. However for the 12 years that the asbestos remained unprotected, the plaintiff worked primarily in the boiler shop. The plaintiff visited the boiler shop during the application of paint over the top of the asbestos wall. Even after the spray paint was applied, the walls continued to be damaged by steel swinging around on the crane. Dust was created by the damage.[2]
[2] Geyer v Resi Corporation [2013] SADC 122 at paras 289-297.
It can be seen that I found that Bradford Insulation installed, cut and removed the asbestos blocks in the vicinity of Mr Geyer; that Mr Geyer was exposed to dust from asbestos blankets and to dust from asbestos that had been sprayed on the boiler shop walls within the plant in 1967.
In light of these findings and other alleged facts, Resi brought the within third party proceedings against Bradford Insulation (SA) Pty Ltd (In liquidation) and Bradford Insulation (Contracting) Pty Ltd (“BI”), seeking contribution from BI pursuant to Section 6 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001.
Resi contends that BI is liable in damages for the same harm that was the subject of Mr Geyer’s successful action against Resi because BI negligently manufactured and supplied asbestos containing materials to Resi when it knew or ought to have known of the dangers of asbestos. It also asserts that BI employed laggers to install and remove insulation materials that contained asbestos, and this work exposed Resi’s employees, including Mr Geyer, to asbestos dust and fibre. BI failed to warn Resi and its employees of the dangers of asbestos, or to promote safe practices when using, handling and disposing BI asbestos products, such as by:
·using suitable protective equipment and dust extraction equipment;
·segregating the application, installation and removal of asbestos containing materials; and
·taking precautions to prevent the spread of asbestos dust and fibres during asbestos spraying and application of materials containing asbestos at the PPS.
It is Resi’s case that BI owed both Resi and its employees a duty to take reasonable care in the supply, installation and removal of insulation materials containing asbestos. It was reasonably foreseeable that BI’s failure to do so would expose Resi’s employees to a risk of harm. Resi seeks contribution from BI in respect of the total sum of damages in addition to interest and costs.
BI admits that it was reasonably foreseeable that its failure to exercise reasonable care in the supply, installation and removal of asbestos materials might expose Resi’s employees to a risk of harm. For the purposes of these proceedings, BI admits that it owed Mr Geyer a duty of care and that it breached that duty as a tortfeaser within the meaning of the Act. BI also does not challenge the findings in the trial proceedings, including the finding that Mr Geyer had contracted mesothelioma as a result of exposure to asbestos at Resi’s PPS. BI accepts that it supplied ETSA with asbestos containing materials, and further that it installed and applied insulation materials containing asbestos during the period of Mr Geyer’s employment. BI concedes that Mr Geyer was exposed to BI’s asbestos, as well as non-BI asbestos.
BI in its defence makes the following assertions:
·At various alternative relevant times before the 1970’s, Resi had either actual or constructive knowledge of the dangers of asbestos;
·Some of the asbestos that Mr Geyer was exposed to at Resi’s PPS was not asbestos that it had supplied. In particular, BI alleges that Mr Geyer was exposed to asbestos cloth or blankets, asbestos rope, preformed asbestos pipe sections, asbestos composition, asbestos gloves, asbestos gland packing, and asbestos gaskets;
·Resi chose to use asbestos containing materials, despite being aware of the dangers of asbestos and the existence of alternative asbestos free products, thereby unnecessarily exposing its employees, including Mr Geyer, to dangerous products; and
·As the operator of PPS, Resi controlled access to and works conducted at the premises. It had the power and duty to exercise reasonable care for its employees.
·Resi failed to warn its employees of the dangers of asbestos, or to implement adequate safety precautions to protect their employees from the dangers of asbestos. This could have been done by segregating its employees from unsafe asbestos areas, providing suitable protective clothing and enforcing a system that cleaned employees’ clothes, providing dust extraction equipment and dust measuring equipment, and keeping abreast of scientific knowledge relating to dangers of asbestos.
BI admits that if it were established that BI asbestos contributed to Mr Geyer’s mesothelioma, then BI will be liable to pay damages in tort for the same harm.
Two questions before this Court are whether BI’s products and processes contributed to Mr Geyer suffering mesothelioma; and if so, what is the apportionment of liability which is fair and equitable having regard to the extent of each contributory’s responsibility for the harm.
Relevant to the exercise of the Court’s discretion on the second question are a number of issues such as when each party acquired knowledge of the risk of harm from exposure to asbestos and the adequacy of their response to that risk.
A summary of Resi’s case
Exposure
Resi contended that apart from asbestos blankets, all of the findings on Mr Geyer’s asbestos exposure in the primary action related to asbestos either supplied by BI or work undertaken by BI. Furthermore, it was BI that supplied Resi with the following products: asbestos cloth or blankets, asbestos rope, preformed asbestos pipe sections, asbestos composition, asbestos gland packing and asbestos gaskets. The exposure to asbestos blankets was infrequent and considerably lesser than the exposure to BI’s asbestos and work.
In response to BI’s allegation that Mr Geyer was exposed to certain non BI asbestos, Resi contended that BI’s decision to wait 5 years before pleading this allegation was a forensic decision not to cross-examine Mr Geyer during the primary action on his exposure to these non BI products. There is no evidence for the Court to infer that Mr Geyer was exposed to products other than those to which findings have been made.
Based on s 8(1) of the Dust Diseases Act 2005 (“DDA”), Resi submits that its onus is limited to establishing that Mr Geyer’s exposure to BI asbestos was possibly a contributing factor to his mesothelioma. Resi submits that based on the evidence, it is irrefutable that Mr Geyer’s exposure to BI asbestos might have caused or contributed to his mesothelioma. This conclusion must follow from the findings in the primary action, which make it patently clear that Mr Geyer’s mesothelioma resulted from significant exposure to asbestos, including BI asbestos, during his time at PPS.
BI has the onus to prove that Mr Geyer’s exposure to BI did not cause or contribute to his mesothelioma. Failure to do so results in the causation being treated as established. As stated above, a finding that BI asbestos contributed to Mr Geyer’s mesothelioma means that BI concedes negligence and will no longer contest a finding that BI is a tortfeaser for the purposes of s 6(1) of the DDA.
Culpability
By virtue of s 8(2) of the DDA, BI is presumed, unless proven to the contrary, to have known at the time of Mr Geyer’s exposure to asbestos that exposure to asbestos dust could result in dust disease. The evidence by itself establishes that BI had actual knowledge of the dangers of asbestos exposure from 1959 the latest. There is evidence of discussions at board level in 1959 regarding the report of Dr Munro Ford who had reported to BI’s directors about risks of asbestosis to BI employees. Resi also relied upon the evidence of Mr Peter Snelling[3] who had given a document produced by John Manville, pointing out the dangers of asbestos and the need to use face masks, on his first day as a BI contracts manager in 1959. There is no evidence that Snelling or anyone in BI passed on the knowledge of the dangers of asbestos to ETSA or its employees. Resi submits that this, along with other evidence, positively establishes that BI had actual knowledge about the dangers and safety precautions surrounding asbestos prior to 1959.
[3] From Williams (As Legal Personal Representative of the Estate of the late Russell John Charles Williams) v BI Contracting Pty Ltd [2004] NSWDDT 19.
Resi conceded that ETSA should have known of the health risks of asbestos exposure from 1957, when Mr Geyer commenced employment with ETSA. Resi showed that based on the evidence of several of ETSA’s former employees and various ETSA documents, ETSA only acquired actual knowledge from the early 1970’s. The earliest inference of when ETSA knew was about March 1970. At that time, it was believed that danger to employees were minimal, and only those loading the dry asbestos into the machine had the biggest risk. This emerging of knowledge in the early 1970’s was not unique to ETSA but followed a common growing awareness about asbestos.
Once ETSA came to appreciate the risks that employees faced, it took a proactive approach by acquiring further information about the dangers of asbestos, stopping the use of asbestos thermal insulation and replacing asbestos insulation with non-asbestos alternatives. The systematic removal of existing asbestos and replacing of alternative materials took a long time because suitable asbestos free materials were unavailable for some time. Furthermore, due to the demands of the State, stripping of asbestos could only occur when the plant was offline or in low demand periods. ETSA ultimately forced its suppliers, including BI, to use asbestos free lagging products, despite the increased cost, and evolved to exclude any asbestos containing products as suitable alternatives became available.
Because asbestos free alternatives were not available for some time, ETSA started different procedures and practices to better protect their employees from existing asbestos. ETSA sought advice and worked with the Department of Health and the Department of Labour and Industry to ensure that dust concentrations did not exceed regulatory standards, for the better protection of their employees.
Despite these steps, Resi accepts that ETSA did not go far enough and significantly departed from the standard of care it owed to Mr Geyer. Resi does not dispute that ETSA failed to adequately protect its employees from asbestos dust before the 1970’s as it was not aware of the dangers of asbestos before then. Resi, however, submits that BI’s culpability is worse because it supplied and installed a product it knew was hazardous. Furthermore, it provided no warnings and took no steps to protect its and ETSA’s employees, although it could easily have done so. BI could have placed warnings on the packaging of asbestos products it supplied to ETSA or it could have taken greater care when undertaking work with asbestos by segregating the application, installation and removal of asbestos from ETSA’s employees. It could also have taken steps to minimise the quantity of asbestos dust generated by the method of its removal and application, such as by taking greater care when mixing the asbestos slurry to avoid the spread of asbestos dust when poured into the 44 gallon drums. BI did nothing in response to the risks of which they were aware of since 1959 the latest.
BI’s indifference to the health and safety of those exposed to the dangers of the product it supplied was a very extreme departure from the standard of care expected of a reasonable person. Furthermore, BI were more than mere suppliers. They also installed its asbestos products and had employees permanently stationed at ETSA’s premises under BI’s supervision. Resi relies on a number of cases to support their submission that BI should bear the bulk of the liability at 70%, with Resi held liable for the remaining 30%.
A summary of BI’s case
Exposure
BI submits that the evidence is clear that there was a lot of asbestos at ETSA’s premises which were not supplied by BI. Mr Geyer was exposed to the following non-BI asbestos products: asbestos cloths or blankets; asbestos rope; preformed asbestos pipe sections; asbestos composition; asbestos gloves; asbestos gland packing; and asbestos gaskets. In response to Resi’s criticism over BI’s failure to raise this allegation earlier, BI submitted that this evidence was strictly irrelevant to Mr Geyer’s claim so it was severed from being raised in the primary action. Furthermore, any disagreement on this issue is irrelevant as the evidence is already before the Court in BI’s submissions.

BI also notes that Mr Geyer’s exposure pre-1959 was relatively significant with Mr Geyer spending half of his time working in and around boilers. However, BI submitted that its workers did not conduct work in the boiler room workshop other than the application of the acoustic wall treatment which Mr Geyer was not present at. Instead, BI submits that the evidence overwhelmingly supports the contention that at all times, the boiler room workshop was contaminated with respirable asbestos directly caused by ETSA.
Resi has failed to prove on the balance of probabilities that the proportion of asbestos within the boiler room at the PPS, to which Mr Geyer was exposed, was not supplied by BI. Therefore, BI cannot be responsible for contributing to Resi’s liability in so far as it derived to exposure to non-BI asbestos. The evidence does not enable the Court to determine how much exposure was due to BI supplied asbestos as opposed to non-BI supplied asbestos.
Alternatively, if Mr Geyer was exposed to BI’s asbestos and products, BI submits that some of the exposure was caused by ETSA’s employees when they disturbed the asbestos products and created air-borne asbestos dust. It was also a usual practice for ETSA employees to sometimes apply asbestos slurry lagging by hand to stop air leaks, and remove asbestos during maintenance.
Culpability
While BI does not challenge the findings that it supplied and undertook work involving asbestos products during Mr Geyer’s employment, BI submitted that this was done in circumstances where ETSA was the Crown’s agency or instrumentality at all times, and had expressly required BI to supply asbestos products while aware of the dangers of asbestos. ETSA knew from 21 October 1971 of alternative non-asbestos containing substitutes but did not order them, even while aware of the risks of asbestos.
As the operator of PPS and employer of Mr Geyer and others who worked there, ETSA had the power and duty to exercise reasonable care to its employers since it controlled access to works conducted at the premises. ETSA directed certain employees, including Mr Geyer, to work in areas that involved working with asbestos products or exposed them to airborne asbestos dust and fibres. ETSA also had contractual power to regulate BI’s performance of its contract and supervise BI’s workers.
BI submitted that based upon the evidence, ETSA had actual knowledge of the health risks from exposure to and inhalation of asbestos dust and fibres prior to the early 1970’s. The evidence used to support this allegation include:
·A report of the 1959 Conference of the Electricity Suppliers Association of Australia which included comments about the health dangers of asbestos to employees. Although ETSA did not attend the conference, it is inferred that as a member, a copy of the 1959 ESAA report would be sent to ESTA. ETSA also attended a later 1961 ESAA conference where a copy of the 1959 report was circulated;
·Numerous studies and papers published from 1930’s onwards regarding the dangers of asbestos;
·The evidence of Mr Miller who said he heard rumours of the dangers of asbestos when he began working for ETSA in 1957;
·Industrial actions in November 1968 at the Whyalla Shipyards and March 1970 at the Torrens Island Power Station over the dangers of asbestos;
·The ban of blue asbestos by ETSA before March 1970 or alternatively, June 1971;
ETSA breached its duty of care to its employees because it knew or ought to have known of the dangers of asbestos but continued to use asbestos containing products, rather than asbestos free alternatives, and failed to warn its employees, including Mr Geyer, adequately or at all of the dangers of asbestos. BI submits that if Resi did not know of the dangers of asbestos from 1959, it could only be due to it ‘turning a blind eye for fear of the consequences of knowing’, especially when considering its status as a State instrumentality and its inherently dangerous business.
Despite being told by the State Electricity Commission of Victoria on 2 July 1971 about the dangers of asbestos and the need for precautions, ETSA failed to undertake an audit of its power stations to ascertain asbestos exposure, nor did it implement interim safety measures or seek expert advice on the dangers of asbestos and precautions to be taken. A belief that such a danger was overrated, along with cost considerations, resulted in ETSA spraying the remaining asbestos material with clear PVA, instead of removing the asbestos.
Furthermore, after knowing all it needed to know by June or October 1971, ETSA failed to take any adequate precautions to prevent the generation and dispersal of asbestos dust, such as: segregating its employees from unsafe areas of the premises; providing suitable clothing, respirators and face masks; providing an adequate system to clean the clothes of employees exposed to asbestos; and ensuring that its employees used safety procedures when using, handling, removing and disposing of asbestos. BI contends that ETSA’s lack of action was motivated by its thirst for profit which it valued ahead of its employees’ safety.
Resi’s contention on BI’s failure to provide warnings on the dangers of asbestos is untenable because on 18 September 1972, BI provided ETSA with a booklet on the dangers of asbestos and recommendations to minimise risk to employees. It was only on 14 August 1972 that ETSA began preparing safety guidelines for its employees, and only in the late 1980’s that ETSA began putting in place precautions such as perimeter barriers, protective suits, air monitoring and dust sampling.
BI denies that Resi is entitled to a contribution towards Mr Geyer’s costs. If however, BI is found to have contributed to Mr Geyer’s mesothelioma, then BI relies upon a number of cases to establish that the starting point to assess apportionment between the parties is 50/50. BI submits that Resi should bear the lion’s share of liability because for the entire duration of Mr Geyer’s employment, ETSA ignored or underestimated the risk of asbestos. Even after it knew of the risks, ETSA’s response was inadequate in its failure to systematically remove and replace asbestos at an earlier date.
Determination of BI’s liability and third party contribution
I have had regard to the detailed submissions, extensive material and cases that counsel have provided.
Determination of BI’s liability
First, I must determine whether or not liability has been established as against BI. If it has, which will be contingent upon proof of exposure to asbestos, I must reflect upon whether all of the exposure at ETSA’s premises was attributable to BI, or only part of it. If it is only part of it, I must reflect upon the difference. I then must consider ETSA and BI’s relative degrees of departure from the standard of care of the reasonable person.
In my view the facts are sufficient to enable me to find that Mr Geyer was exposed to BI asbestos dust in circumstances in which that exposure might have contributed to his mesothelioma. As such, the evidentiary presumption created by s 8(1)(b) of the DDA created an evidentiary burden on BI to establish that this exposure did not contribute to Mr Geyer’s mesothelioma. It has not adduced any evidence to discharge that burden. I therefore find Mr Geyer’s exposure to the asbestos dust that BI supplied and installed at ETSA’s premises contributed to his mesothelioma.
Contribution
In determining the extent of contribution, ss 6(5) and (6) of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 must be applied:
(5) The contribution is to be an amount that is fair and equitable having regard to the extent of each contributory's responsibility for the harm.
(6) In determining the contribution to be made by a contributory whose liability for the harm is a derivative liability, the court is to have regard to the act or omission from which the liability arose.
The contribution to which Resi may be entitled to from BI is the amount that is fair and equitable having regard to the extent of its and BI’s responsibility for the harm caused to Mr Geyer. In determining that exercise the High Court in Podrebersek v Australian Iron and Steel Pty Limited held that the proper approach:
…involves a comparison both of culpability, i.e. 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. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.[4]
[4] [1985] HCA 34 at para 10; 59 ALJR 492 at 494 (Footnotes omitted).
The contribution claims as between the defendant and the third parties
In determining the appropriate apportionment as between Resi and BI, I commence with an assessment of the significance of the two exposures.
As outlined in Amaca Pty Ltd (Under NSW Administered Winding Up) (ACN 000 035 512) v Pfeiffer,[5] the presumptions in s 8(2) of the DDA would apply, meaning that contrary to the submissions of BI, there is no obligation on Resi to prove how much exposure Mr Geyer had to BI’s asbestos in comparison to Resi’s asbestos.
[5] [2017] SASFC 157.
I find that in terms of the respective exposures, BI and Resi’s causal responsibility is not that much different. The balance is slightly tilted against Resi due to Mr Geyer’s exposure to asbestos blankets, but only by a small margin.
Now I must turn to the issue of culpability and consider the relative degrees of departure from the standard of care of the reasonable person by Resi and BI.
BI supplied and installed asbestos while being aware that it was hazardous and that it could harm those who were exposed to it. It could have and should have provided warnings and information about the hazards that it presented. It took no steps after it had installed the asbestos to warn ETSA of the danger that it presented. BI’s employees continued to carry out their work at PPS in a way which exposed Resi’s employees to asbestos dust. Its indifference to the health and safety of those who it knew would be exposed to the product that it supplied and which it knew was dangerous, was a significant departure from the standard of care that would be expected of the reasonable person.
ETSA, as the employer, had a non-delegable duty of care to provide Mr Geyer with a safe working environment. It was inexcusable for ETSA to rely completely upon BI, and fail to take any steps of its own to determine the risks of asbestos to its own employees before the early 1970’s. ETSA was a much larger, sophisticated, and well-resourced entity, in comparison to BI. Being an instrument of the State, it had access to a wider range of resources at its fingertips. As accepted by Resi, ETSA could have and should have taken earlier steps to make enquiries about the risks that working with asbestos entailed.
As I found in the primary action, ETSA knew, at least from 1973 onwards, that while Mr Geyer was working in the boiler shop, he was exposed to asbestos dust and at risk of contracting a dust disease. If, at the relevant time, there was no suitable non-asbestos alternative, it should have taken appropriate protective measures earlier to minimise the harm to which its employees were exposed. Its departure from the standard of care that would be expected of the reasonable person acting in its position over the period of Mr Geyer’s employment was very significant and became increasingly so as the years passed.
Having considered the respective departures by BI and ETSA, I find that Resi’s departure from the standard of care to be expected of a reasonable person was greater than BI. Its status as an instrumentality of the State, along with its duty as Mr Geyer’s employer, being ultimately responsible for assigning duties to Mr Geyer, and being solely responsible for his exposure to asbestos blankets, should result in Resi bearing a greater responsibility than BI in the apportionment.
Conclusion
I have come to the conclusion that the appropriate apportionment as between Resi and BI is 70/30, that is, Resi is should bear 70% of the liability, and BI the remaining 30%. In arriving at this conclusion, I have given due consideration to the cases that each party has provided. However, it is trite to say that each case turns on its own facts.
It follows that Resi is entitled to recover from BI 30% of the judgment sum paid by it to Mr Geyer. I would like to hear from the parties as to the precise terms of the orders that follow and as to questions of interest and costs.