State of New South Wales v Amaca Pty Limited; Amaca Pty Limited v CSR Limited

[2016] NSWDDT 2

Dust Diseases Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Amaca Pty Limited; Amaca Pty Limited v CSR Limited [2016] NSWDDT 2
Hearing dates:	9/2/2015; 10/2/2015; 11/2/2015; 12/2/2015; 2/11/2015; 3/11/2015; 4/11/2015; 5/11/2015; 6/11/2015; 5/2/2016; 8/2/2016; 9/2/2016; 10/2/2016; 11/2/2016; 12/2/2016; 15/2/2016; 16/2/2016; 17/2/2016; 18/2/2016
Date of orders:	20 May 2016
Decision date:	20 May 2016
Before:	Kearns J
Decision:	In the State’s claims against Amaca, I rule that the liability those parties are to bear is to be borne between them as follows: in the case of Mr Derepas, the State 75%, Amaca 25%; in the case of Mr Lewis, the State 60%, Amaca 40%; in the case of Mr Pajkovic, the State 65%, Amaca 35%; in the case of Mr Daly, the State 70%, Amaca 30%; in the case of Mr Allars, the State 65%, Amaca 35%; in the case of Mr Bennett, the State 70%, Amaca 30%; in the case of Mr Smith, the State 90%, Amaca 10%; in the case of Mr Payne, the State 65%, Amaca 35%.  In Amaca’s claims against CSR, I rule that the amount Amaca is entitled to recover from CSR is represented by the total of the following: in the case of Mr Lewis, 50% of two thirds of the amount Amaca is required to pay to the State; in the case of Mr Pajkovic, 45% of the amount Amaca is required to pay to the State; in the case of Mr Daly, 40% of the amount Amaca is required to pay to the State; in the case of Mr Allars, 50% of the amount Amaca is required to pay to the State; in the case of Mr Bennett, 50% of the amount Amaca is required to pay to the State; in the case of Mr Smith, 50% of the amount Amaca is required to pay to the State; in the case of Mr Payne, 40% of the amount Amaca is required to pay to the State.
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1946
Cases Cited:	Amaca Pty Ltd (under NSW External Administration) v A B & P Constructions Pty Ltd [2007] NSWCA 220 Browne v Dunn (1893) 6 R 67 CSR Limited v Wren (1998) Aust Torts Reports 81-461 Evans v Amaca Pty Limited & Ors 26 February 2009 Jones v Dunkel (1959) 101 CLR 298 McPherson’s Ltd v Eaton & Ors [2005] NSWCA 435 Norton Australia Pty Limited v Streets Ice Cream Pty Limited (1968) 120 CLR 635 Podrebersek v Australian Iron & Steel Pty Ltd 1985 ALR 529 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd re Hay (No 4) (1999) 18 NSW CCR 653 (re McCullagh) Seltsam Pty Ltd v The State of Queensland [2003] NSWDDT 3 The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40 Zwiersen v Field & Hall Ltd & Ors [2016] VSC 16
Texts Cited:	M R Becklake, ‘Asbestos-Related Diseases for the Lung and Other Organs: Their Epidemiology and Implications for Clinical Practice’ (1976) 114(1) American Review of Respiratory Diseases 187 J C Wagner, C A Sleggs, and P Marchand, ‘Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province’ (1960) 17(4) British Journal of Industrial Medicine 260
Category:	Principal judgment
Parties:	State of New South Wales, plaintiff/cross claimant Amaca Pty Limited, first defendant/cross claimant/first cross defendant Wallaby Grip Limited, second defendant/second cross defendant Wallaby Grip (BAE) Pty Limited, defendant/second defendant/third defendant/second cross defendant/third cross defendant CSR Limited, cross-defendant
Representation:	Counsel: Mr J L Maconachie QC with Mr J L Sharpe, instructed by Thompson Cooper Lawyers Pty Ltd, appeared for the plaintiff Mr T G R Parker SC instructed by Mills Oakley appeared for the first defendant/cross claimant Mr D J Russell SC with Ms T Moisidis, instructed by Zambra Legal, appeared for the second and third defendants Mr D Miller of Colin Biggers & Paisley appeared for the cross defendant
File Number(s):	64/2013; 64/2013/1; 65/2013; 65/2013/1; 89/2013; 89/2013/1; 89/2013/3; 126/2013/1; 126/2013/2; 272/2013; 272/2013/1; 419/2013/1; 419/2013/2; 246/2014/1; 334/2014/1; 334/2014/2

JUDGMENT

CONTENTS

Outline and claim

Some procedural and ancillary matters

The issues

The evidence

The State’s evidence – testimonial

Documentary evidence - The products of James Hardie, Hardie-B.I. and others

Documentary evidence - The supply of James Hardie and Hardie-B.I. product to the Dockyard

The exposure of each of the underlying plaintiffs

The common evidence

Knowledge of the Newcastle Dockyard and James Hardie of the health risks of asbestos

Duty of care

Breach

Causation

Contribution

The claims relating to each of the underlying plaintiffs

Amaca’s cross claim against CSR

Mr Lewis

Mr Pajkovic

Mr Daly

Mr Allars

Mr Bennett

Mr Smith

Mr Payne

Rulings and directions

Rulings

Directions

Outline and claim

1. The events underlying this litigation occurred over a period from 1953 to 1980 at the Dockyard at Newcastle. There, ships were built and repaired. The Dockyard had a number of employees undertaking these tasks.

2. The proceedings arise from claims brought by eight of the employees at the Dockyard who contracted asbestos related diseases as a result of their employment at the Dockyard. For convenience, I shall refer to them, as they were during the hearing, as the underlying plaintiffs.

3. Each underlying plaintiff sued the State of New South Wales, responsible for the liabilities of the employer. For convenience, I shall refer to the employer as the Newcastle Dockyard. The State accepted liability and each of the claims was settled.

4. The State now seeks contribution, in respect of each of the claims, from Amaca Pty Limited (Amaca), pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Its case, in brief, is that James Hardie & Coy. Pty. Limited (James Hardie), for whose liabilities Amaca is responsible, was negligent in the manufacture and supply of asbestos product to the Dockyard where the underlying plaintiffs worked. It claims that James Hardie owed a duty of care to each of the underlying plaintiffs and that it breached that duty of care and that the breach was causative of injury to the underlying plaintiffs. Accordingly, it claims contribution from Amaca on the basis that Amaca, if sued by the underlying plaintiffs, would be liable to them in negligence.

5. For part of the period under consideration, being 28 September 1964 to 30 June 1974, James Hardie was in partnership with The Colonial Sugar Refining Company Limited (CSR). Amaca claims that if it is found liable to contribute to the State in respect of any product of the partnership, then it is entitled to a contribution from CSR. For convenience, I shall refer to the partnership as “Hardie-B.I.”.

6. Where it is not critical to distinguish between James Hardie and Hardie-B.I., I shall, at times, for convenience simply refer to Hardie.

Some procedural and ancillary matters

7. The proceedings commenced in Toronto, New South Wales, on 9 February 2015 and evidence was then taken over four days. Of the parties remaining in the proceedings, Mr Sharpe appeared for the State, Mr T G R Parker SC appeared for Amaca and Mr Miller, solicitor, appeared for CSR. The matter did not resume until 2 November 2015 when Mr Maconachie QC appeared with Mr Sharpe for the State and the appearances were otherwise the same.

8. The reason the matter proceeded in Toronto much earlier than the rest of the proceedings was that it was important to take the evidence of witnesses, nearly all of whom were elderly and lived in the Newcastle area.

9. Several of the witnesses who gave evidence in Toronto had prepared statements in the claims of all or many of the underlying plaintiffs. They were Messrs McDonald, Budden and Searle. In dealing with objections to matters in their statements, the only statement dealt with in each case was the statement in the matter of the underlying plaintiff, Mr Allars. The intent was that the statements in the cases of the other underlying plaintiffs would be dealt with in a manner similar to Allars, though formally the process was not undertaken. Later in these reasons where I refer to the evidence in the statements of these witnesses, my references are to statements they made in the matter of Allars. In the result it will not matter as, whilst I have not examined their statements in all matters carefully, it is evident from a quick look that the statements are almost word for word identical.

10. After the partnership was formed in 1964, James Hardie ceased to be the sole manufacturer of asbestos product. It and CSR were then joint manufacturers and the partnership was known as “Hardie-B.I. Company”. The partnership sold its product to Bradford Insulation Industries Pty. Limited (BI) which then supplied it to the Dockyard and other users. Whether the product after 1964 was manufactured by James Hardie or by Hardie-B.I. and whether it was distributed by James Hardie or BI are distinctions that did not concern most of the witnesses and frequently they referred to James Hardie at a time when products were being manufactured by Hardie-B.I. and sold to BI for distribution. It is a matter that is of no moment in understanding their evidence or, in my view, reflecting on the reliability of their evidence.

11. The eight cross claims were heard together. Many periods of employment of the underlying plaintiffs overlapped. Accordingly, an amount of evidence was common to the cross claims. To the extent that evidence given in one case was applicable and relevant in other cases, that evidence was taken to be evidence in the other cases.

12. The volume of material tendered in the case was vast. It was plain on the tender of some of the material that large parts of it had no relevance or were otherwise inadmissible. I indicated that I would not be taking up time reading all the material admitted into evidence and that I would determine the case on the basis of material to which my attention was specifically directed.

13. There is at least one other party liable to contribute to the State in respect of the State’s liability to the underlying plaintiffs. The amount of that contribution in each case is not known, at least to the Tribunal. It has been agreed, that should I determine that Amaca is liable to contribute to the State, I shall not, at this stage, make an order in any case for a monetary amount. Rather, I shall determine, on a proportionate or percentage basis, how the totality of the burden of the liability between the State and Amaca should be apportioned.

14. In submissions in reply, Mr Parker SC provided me with a document going into nine numbered pages setting out a summary of findings sought by Amaca. There are 66 items or sub-items. I do not find it necessary to deal with the document in its form or address every one of the items. My endeavour has been to make such findings as I consider necessary to dispose of these cases.

15. My reasons are set out in the following order:

• a statement of the issues;

• a consideration of the evidence of the witnesses called by the State and of two witnesses, both deceased, whose statements were in evidence;

• a consideration of documentary evidence going to different types of asbestos and the identity of the manufacturer;

• a consideration of the supply of the James Hardie and Hardie-B.I. product to the Dockyard;

• the exposure of each of the underlying plaintiffs;

• knowledge of the Newcastle Dockyard and James Hardie as to the health risks associated with the use of asbestos;

• Hardie’s duty of care to the underlying plaintiffs;

• breach of duty;

• causation;

• contribution by Amaca to the State in respect of each of the claims of the underlying plaintiffs;

• Amaca’s cross-claims against CSR;

• rulings and directions.

The issues

16. The issues between the State and Amaca are:

1. was each of the underlying plaintiffs exposed to James Hardie product;

2. did James Hardie owe each of the underlying plaintiffs a duty of care;

3. if so, did James Hardie breach that duty;

4. if so, did that breach cause injury to each of the underlying plaintiffs;

5. if so, what is a just and equitable apportionment of liability as between the State and Amaca?

6. There is a further question in relation to this issue and that is whether the state of the evidence is such that it is not possible to determine the relative causal potency and culpability between the Newcastle Dockyard and James Hardie so that no assessment of contribution can be made – (re McCullagh) Seltsam Pty Ltd v The State of Queensland [2003] NSWDDT 3; Evans v Amaca Pty Limited & Ors 26 February 2009.

17. In respect of Amaca’s claims against CSR, there is the additional issue of what, if any, contribution should be made by CSR to Amaca.

18. In considering the contribution issue, one issue that arises is the extent to which each of the underlying plaintiffs was exposed to Hardie product compared to other product. This is because there was asbestos product to which each of the underlying plaintiffs was exposed and it was not all Hardie product. In this regard, if there is a liability to contribute, the State will be liable for the whole of the exposure, but Amaca will be liable for a part thereof. There are also other considerations, which I shall come to, that bear on this issue.

The evidence

The State’s evidence – testimonial

19. The State called:

1. Mr John Alexander Cameron McMillan;

2. Mr Kasper Stanley Beker;

3. Mr William Albert Corbett;

4. Mr Robert Ross McDonald;

5. Mr Kenneth William Searle;

6. Mr Ronald Budden;

7. Mr Raymond Francis Payne;

8. Mr Lawrence Leslie Jenner;

9. Mr Robert Brian Cox;

10. Mr Warwick Henry Gazzard.

11. The State tendered an affidavit and statement of Mr Foxford and a statement of Mr Hinton, both of whom were deceased.

20. Before embarking on a consideration of this evidence, I make a brief observation about the partnership between James Hardie and CSR. It was current from 28 September 1964 to 30 June 1974. The partnership, in effect, took over the operation of the business that up until September 1964 had been operated by James Hardie. The agreement appointed BI as the selling agent of its product.

21. Before dealing with the evidence of these witnesses individually, I make some general observations.

22. In referring to the evidence hereafter, I find it convenient at times to express views that I have formed relating to that evidence rather than setting out the evidence without comment in the first instance.

23. The evidence of many of the witnesses identifying asbestos was allowed though limited to their understanding and belief that that was the product. For reasons which I explain, the belief was well-founded. In short, the evidence supporting the use of asbestos is not limited to, but includes:

1. Mr Jenner’s evidence. He was a purchasing officer for the Dockyard and purchased the product;

2. Mr Cox was a person of considerable responsibility at the Dockyard and thoroughly familiar with its operations and in a position to know if asbestos products were being used. He said they were;

3. the Dockyard sought to introduce asbestos-free products. The extent and timing of that is in dispute, but unquestionably before that occurred, there was considerable use of asbestos;

4. there is some documentary material supporting the use of asbestos even as late as 1973 – see [177] below.

24. The effect of the evidence of the witnesses as to the nature and identity of the products used is as follows:

• insulation materials were used both in ship building and repair work;

• many of these products were identified as emanating from James Hardie;

• insulation products from other sources were also used;

• there was a time when a change to asbestos-free products was introduced or started to be introduced. When this change commenced and the extent to which it was undertaken are matters that need to be resolved by reference to other evidence;

• the insulation products that were used included:

1. as to Hardie product -

lagging

blocks

bulkhead sheets

half pipe sections

loose asbestos

compressed sheets

millboard

2. as to non-Hardie product -

rope

blocks

mattresses

Super heat and section

Bulldog

blankets

limpet

cloth

cord

loose asbestos.

25. As to loose asbestos, much was made throughout the case as to the packaging in which it came. I found most of this evidence of little use. I am satisfied that Hardie’s loose asbestos came in a paper bag like a cement bag and non-Hardie’s loose asbestos came in a hessian bag. Whether the witnesses could recall if there was a name or logo on the bags and, if so, what their content was and what colour they were, I consider to be matters of very little importance, if not matters of insignificance. This observation applies also to names and logos on cartons.

Mr McMillan

26. Mr McMillan affirmed an affidavit on 31 July 2012 in other proceedings in the Tribunal – van Akker v State of New South Wales (the van Akker proceedings). The affidavit became Exhibit CC 5. He also gave evidence.

27. Mr McMillan worked for the Australian Ship Building Board from 1964 to 1973. In that time, he worked at the Dockyard. His duties then included ensuring that ships were built according to specification. Following that, he was employed by the Newcastle Dockyard from 1973 as Outfit Superintendent. He used to go down to the ships when they were being built. He did this for four years. He then became Superintendent of Ship Repair for the next nine years. In his time at the Dockyard, he became fully conversant with all aspects of ship building and repair.

28. Mr McMillan identified Hardie products and products that were not Hardie products in use at the Dockyard. He described the bulkhead sheets as being James Hardie exclusively (Exhibit CC 5 [20]). He described the loose asbestos being for slurry. He described the most commonly used asbestos being that of James Hardie.

29. From brochures, Mr McMillan identified different products that were used. Some were James Hardie products. They were half pipe sections and blocks (T39.34). Other products were Bell’s products. Bell’s supplied rope for insulation around small pipes and blankets for hot areas. Asbestos blocks, similar to those in a Hardies brochure, were fitted around exhaust pipes. James Hardie sheets were the only ones that satisfied the requirements for the bulkheads. Half pipe sections came from James Hardie. The slurry powder was a James Hardie product. Limpet asbestos was sprayed on the deck heads and bulkheads, but this was later replaced by fibreglass. The brand of asbestos most commonly used was James Hardie.

30. In his oral evidence, Mr McMillan said that Hardie’s was the only supplier of materials being the pipe sections (T45.19). He saw “Hardies’” bags (T45.24). He also saw bags of other supplies. He recalled “manganese” blocks (T45.31). “Hardies’” product was used when he was on ship repair which was from 1977. It was used on the bulkheads (T48.30). The spraying of asbestos was one of the dustiest processes (T49.33).

31. Mr McMillan stated that prior to about 1975, asbestos products were used almost exclusively for insulation and thereafter fibreglass and Rockwool were used. In cross-examination, he could not be certain of the timing of that. His timing, however, is compatible with other evidence. His commencement of work in the repair section may be fixed at about 1977. He observed product marked “Hardie’s” then being used. I accept that it was not until the mid-1970s that asbestos-free products were used and it took a few years after that before they replaced asbestos products.

Mr Beker

32. Mr Beker swore an affidavit of 24 July 2012 in the van Akker proceedings. It became Exhibit CC 6. He also gave evidence.

33. Mr Beker worked at the Dockyard from 1969 to 1977. His job was mainly clerical.

34. Mr Beker started as a Works Junior and ended up as the Records Clerk and Assistant Publicity Officer. His job included touring the whole of the Dockyard and copying the specifications for the ships. Mostly his duties were in the ship building area. To get from his office to the ship building area, he walked through the whole of the Dockyard. He did so at least two to three times per day. He observed half pipe sections used to lag the pipes on ships being built or under repair. They were in James Hardie boxes. The asbestos products that were stacked throughout the premises came from James Hardie and had “Hardies” written on them. The products included sheeting. This was in the area of ship construction and the area of repair.

32. Mr Beker’s memory of James Hardie is aided by his wondering, when he saw it at the start of his employment, whether it was related to Hardie-Ferodo Bathurst car racing. That is a useful circumstantial detail aiding recall. He also recalls James Hardie letterhead and his use of the James Hardie catalogue.

33. Around 1975 or 1976, the name on the products changed to the letters “JH”. The asbestos supplies that were in stacks around the area where he worked came from “James Hardie” (Exhibit CC 6 [9]). In the Records Department, letters regularly went to James Hardie and letters came from James Hardie on its letterhead. Mr Beker used the Hardie catalogue and referred to products by name. Mr Beker also identified suppliers of non-asbestos products. Mr Beker did not work in the repair section, but he did tour through that section occasionally. When he did, he noticed stacks of products the same as in the other departments. All the products had “Hardies” or, later, “JH” stamped on them.

34. I do not consider the cross-examination diminished the effect of Mr Beker’s evidence. One point established by the cross-examination was that Mr Beker said he had never seen packaging as shown in MFI 2 which became Exhibit JH 7 and that he would remember it if he had. I consider he is mistaken in that. Clearly, he saw Hardie’s branding before around 1975 or 1976 and Hardie’s branding after that, but they were not the same. The fact is, there was Hardie’s branding before. It was the Hardie-B.I. branding. The fact that Mr Beker said he had not seen the branding shown to him and he would remember it if he had does not mean it was not at the Dockyard. It was and that is well supported by other evidence.

35. In further cross-examination, Mr Beker agreed that the products with “Hardies” on them were building products, not the products on the ships (T58.45). That left that part of the evidence in a state of some uncertainty. That cross-examination started off on the specific subject of Mr Beker identifying product as asbestos by opening crates of it. It is clear that what he opened was crates of building products, not insulation products. When he agreed as to the products he had been talking about with the name “Hardies” on them being building products, his attention had not been drawn to relevant parts of his affidavit. In [5] for example, he spoke very specifically of half pipe sections used for lagging and in that context spoke of boxes being marked as containing Hardie product. As a specific piece of evidence that was not challenged and, in my view, it stands.

36. Mr Beker’s evidence is significant and I accept it. It is significant in a number of ways. It is corroborative of other evidence supporting the preponderance of James Hardie material. It is significant also in that it notes the change from Hardie’s to James Hardie in around 1975 or 1976 being approximately the time the partnership ceased. It is significant also in that Mr Beker was a relatively late starter at the Dockyard – 1969. His mind cannot have been impressed by a preponderance or even the existence of James Hardie product throughout the 1950s and 1960s. His evidence supports a preponderance of Hardie-B.I. product from when he commenced in 1969 which is when he noticed it and wondered about whether there was a connection to Hardie-Ferodo. It was then unquestionably asbestos.

Mr Corbett

40. Mr Corbett provided an affidavit in the van Akker proceedings. It became Exhibit CC 7. He also gave oral evidence.

41. Mr Corbett worked at the Dockyard from 1947 to 1953 and from 1958/9 to 1987.

42. As to ship construction, he identified asbestos compressed sheets made by James Hardie for use in the bulkheads. Other tradesmen and supervisors told him they were from James Hardie. They were cut with a jig saw. He also identified laminated asbestos sheets for lining the control room. He also identified blocks of asbestos used to lag around boilers. He identified the blocks from a brochure as James Hardie product.

43. James Hardie millboard was used to protect timber. He identified it from a brochure as James Hardie product. It was put that the State could not rely on millboard, because none of the underlying plaintiffs claimed it as a form of asbestos to which they were exposed. That cannot stand as a proposition of law. In all likelihood, many would not have been able to recall all the forms of asbestos to which they were exposed. It was put that no witnesses claimed or identified millboard as a product (T507.25). Mr Corbett did and used it (Exhibit CC 7, [13]). Mr Jenner, purchasing officer, did (Exhibit CC 12 [14]). He recalled “the name ‘Hardies’” being branded onto sheets of asbestos. He identified half pipe sections. They were wrapped around pipes if rope was not used. He identified those as James Hardie or Hardie-B.I. product from a brochure.

44. Bell’s rope was used for lagging of steam pipes. Cloth was placed around the rope lagging. If rope was not used to lag steam pipes, James Hardie asbestos half pipe sections were used. That was covered with a slurry. Bell’s blankets were used. Limpet spray was used. To Mr Corbett’s observation, the spray process was probably the dustiest process as he described it as being “like a snow storm” [20].

45. I do not consider that cross-examination on the packaging or the brochures detracted from his evidence. In cross-examination by Mr Miller, he agreed that slag wool and Rockwool were used. This was undoubtedly the case during his employment, but as his employment went up to 1987 that evidence does not assist. Tombo board was also used, but that was after asbestos was phased out.

Mr McDonald

46. Mr McDonald (Exhibit CC 8) worked at the Dockyard from 1954 to 1987. He described the work processes. He referred to asbestos and the removal of old lagging and reapplying lagging. He also referred to the use of asbestos at a more general level without being specific as to tasks. He saw and used products marked with the James Hardie name.

Mr Searle

47. Mr Searle (Exhibit CC 10, Tab 1) was employed at the Dockyard from 1973 to 1987. He made asbestos pads for insulation around expansion joints in ships’ pipes. He insulated the exhaust pipes. He spoke of his use of asbestos products. He saw asbestos products with the James Hardie name on them.

Mr Budden

48. Mr Budden (Exhibit CC 11, Tab 3) worked at the Dockyard from 1952 to 1987. He spoke of the use of asbestos in and around the engine rooms of ships. He spoke of the removal of old lagging and replacing it with new lagging. In his statement, he said he saw products with the name James Hardie on them (Tab 3, [42]). In his evidence, he corrected that to say he never saw it printed (T87.13). He did, however, identify the product at the Dockyard as being the product shown in the 1950 James Hardie brochure (Exhibit CC 11, Tab 3, [43-45]).

49. Messrs McDonald and Budden provided statements in the claims related to seven of the underlying plaintiffs. Mr Searle provided statements in relation to five. That is a total of 19 statements between them. There is a marked similarity in all their statements. They also gave oral evidence. Because of the generality of their evidence, it is not as useful as other evidence. At a general level, it establishes that James Hardie and Hardie-B.I. products were used at the Dockyard over the course of their employment. One thing I do draw is from the evidence of Mr Searle. He started at the Dockyard in 1973. His evidence corroborates the use of Hardie asbestos product at that time. From a combination of his statement (Exhibit CC 10, Tab 1 [38]), a brochure (Exhibit CC 10, Tab 1, Annexure A, pp20 and 22) and his oral evidence (T82.27-.38), the product he identified was 85% Magnesia pipe sections and 85% Magnesia blocks.

Mr Payne

50. Mr Payne was one of the underlying plaintiffs. He provided an affidavit of 15 December 2015 (Exhibit CC 33). He also provided particulars in his claim against the State (Exhibit CC 35). He also gave oral evidence.

51. He had two periods of employment with the Dockyard. They were from 7 August 1972 to 24 August 1977 and 8 April 1980 to 14 August 1980. He was employed as an electrician.

52. There is a significance in Mr Payne’s exposure and its timing. He has asbestos related pleural disease (ARPD). Unlike mesothelioma which may be contracted on relatively slight exposure, ARPD is a dose-related condition. Mr Payne had some slight exposure to asbestos before he started work at the Dockyard. His exposure at the Dockyard had to be of sufficient intensity and duration to cause his ARPD. This, in itself, is a potent factor as to the presence of a substantial quantity of asbestos at the Dockyard, especially in his first period of work. I say especially in the first period because the second period was only a short period and the exposure was relatively modest. It may be inferred, and I do infer, that there was a substantial amount of asbestos in Mr Payne’s working environment at the Dockyard in the period 1972 to 1977.

53. In the first 12 months he worked on the construction of new ships. Then until the end of his first period of employment, he worked on new construction about forty percent (40%) of the time and repairs about sixty percent (60%) of the time.

54. On construction he recalls working on the Express, the John Hunter and the Dredge Endeavour and also other vessels. Mr Payne then named other ships he may have worked on. During his first period of employment, there were eight vessels under construction according to a list of ships (Exhibit CC 13, pp 321-331).

55. Mr Payne estimates that of his time on new ships at least forty percent (40%) of his time was spent in the engine room and the balance in accommodation areas.

56. In his affidavit, Mr Payne describes being present in the engine rooms when pipes and hot areas were lagged. The pipes were lagged with half pipe sections. They were cut as necessary. Powder was formed into a slurry and applied to the half pipe sections. The half pipe sections came in cardboard boxes and the powder in bags like cement bags. I accept that and, accordingly, the powder was a Hardie-B.I. product. The half pipe sections were identical to those shown in Exhibit CC 17B, a Hardie-B.I. brochure. The bags were those that are depicted in Exhibit CC 17A, a Hardie-B.I. brochure. He spoke of the application of spray. He spoke of cutting through bulkheads and walls in the accommodation areas. He also identified mats, rope and blankets.

57. Mr Payne agreed in cross-examination that, on new construction work, he could not recall working alongside laggers working with asbestos materials (T269.18, T271.09). This was in the context of lagging being carried out in an area that was isolated from other employees, no doubt a reference to the lagging being done off the ship. Mr Payne was hesitant and qualified in giving those answers. There are two things left open by that evidence. One is the adjusting and cutting that needed to be done when the lagged pipes were brought on board. In the course of this evidence, Mr Payne mentioned that (T269.39) and it was not taken up in the cross-examination. Mr Cox had described that as the dustiest process. The other matter not touched by this cross-examination was the use of powder to form a slurry.

58. Mr Payne was also challenged as to his recall or lack of recall in relation to drilling into Tilux in his second period of employment. In the end, Mr Payne could not recall any particular work with Tilux (T280.19). What he was really saying was that he was unable to recall or identify any one particular task. That is not to deny that he worked with Tilux or that he had a recall generally of doing so. I accept that he did, but he could not be expected to isolate and recall any one particular job on which he did.

59. Limpet spray was applied on new construction work. He was not present when spray was applied, but was present in areas after it had been applied. To that extent, there was exposure to the spray. There was also possibly exposure from drilling into it.

60. In the accommodation areas, he had to install power points and cables through the bulkheads, ceilings and walls and he had to mount switches and other equipment. He worked in close proximity to carpenters and joiners. He needed power saw or jig saw to cut through bulkheads and walls. The work in the accommodation areas was dusty.

61. On repairs, he had to provide power to the ships. He worked on those ships before, during and after the repair work, depending on the work to be done. He was present when painters and dockers and joiners and carpenters were doing their tasks. Over forty percent (40%) of his time on repairs was spent in the engine rooms and the balance in accommodation areas.

62. In the engine rooms, the half pipe section lagging was removed and then fresh half pipe sections applied. It was cut as necessary. Asbestos powder in the form of a slurry was then applied over the pipes. It was dusty work. Mr Payne identified the half pipe sections in a brochure (Exhibit CC 33 [44]). The brochure was not there identified, but it is tolerably clear that it is the brochure referred to earlier, being the Hardie-B.I. brochure (Exhibit CC 17B).

63. His work and the working conditions in the accommodation areas were the same as described in relation to ship construction – see [56].

64. His exposure to spray was as per new ship construction, that is, not directly exposed but present in areas after they had been sprayed. Apart from spray, Mr Payne identified other non-Hardie product, for example, mats and rope and blankets.

65. In this first period of employment, the main concentration of Mr Payne’s exposure rests with his working conditions in the engine rooms and accommodation areas. The asbestos products providing the bulk of his exposure in the engine rooms were old lagging, half pipe sections and slurry powder. The half pipe sections and slurry powder were Hardie-B.I. products. On repair, some part of the old lagging was Hardie-B.I. product – see [206-208] and the rest that of a manufacturer whose identity was not established on the evidence. There was also exposure to other products. I find also that the bulkheads, ceilings and walls in the accommodation areas were Hardie-B.I. products.

66. In his second period, Mr Payne worked on demountables. Some were new and some were for repair or re-fit. Approximately half of them were new. Who constructed the demountables that came in for repair or refit was not the subject of evidence. If there was any James Hardie product in the demountables in for repair or refit, it was not the subject of evidence. Nor was there any evidence from which an inference could be drawn. Nor was there any evidence of fresh James Hardie product being used in the repair or refit of demountables. Mr Payne installed light fittings, power points, other electrical fittings and conduits for the wires. The demountables had ceiling panels and wall panels. He drilled into them. These were fibro. He drilled into these to install light fittings and switches. Dust was given off in this work. He identified the ceilings from a brochure as being Hardie’s Asbestos Sheets (Exhibit CC 33 [63], Annexure A).

67. At the same time, other workers did their work around him and this involved cutting, sawing and otherwise working with or on the ceilings and walls. Mr Payne was cross-examined on his evidence that he worked on walls on the basis that in earlier documents he referred to ceilings only. Whilst he did not mention walls expressly, it is plain that his earlier documents covered walls. The references, in those documents, to installing light switches otherwise makes no sense. The fact that walls were not expressly mentioned might say more about the person who prepared the document for Mr Payne than it does about Mr Payne. The same might be said about Tilux. It is plain that some demountables had wet areas and Tilux or a product like it was used. It is inevitable that electrical work would be undertaken in some of those wet areas.

68. Mr Payne drilled into Tilux. Whilst Tilux was used, Mr Payne did not identify it as such at the time. He became aware of it after he left the Dockyard and worked as an electrician (Exhibit CC 33 [62]). The cross-examination based on the Duradec brochure does not undermine Mr Payne’s identification of the product. He maintained a difference between the product used and the product in the brochure. Further, his identification of the product was not based on the brochure. It was based on his familiarity with the product as an electrician and his comparison of that with the product he had earlier used at the Dockyard. I find that the walls and ceilings of the demountables and the Tilux were James Hardie products.

69. During this period, he also did some work in the cabins of ships as described before. He does not give any detail about exposure to asbestos doing that work, even by reference or comparison to his earlier period of employment. Cross-examination touched on this, but the matter was not further developed.

70. In the second period of employment, the exposure to building products on new demountables was exposure exclusively to James Hardie product. On ship repair work, there was likely some exposure to products of Hardie and others in the cabins of ships, but there was no evidence of the extent of this exposure. The second period of employment was only a short period of relatively modest exposure compared to the first period.

Mr Jenner

71. Mr Jenner started at the Dockyard in 1960 and was a purchasing officer from about the mid-1960s. He worked at the Dockyard until 1987.

72. Mr Jenner gave evidence of regular purchases of asbestos products. It included bulkhead asbestos sheets and millboard in the form of sheets from James Hardie (Exhibit CC 12 [9]). By the mid-1960s, all the fire rated sheets came from James Hardie (Exhibit CC 12 [10]). Wall sheets, for buildings, came from James Hardie with a small percentage from Wunderlich (Exhibit CC 12 [12]). A James Hardie brochure depicted the asbestos millboard used by the Dockyard (Exhibit CC 12 [14]). It also depicted lagging (Exhibit CC 12 [16]) and cartons in which the blocks were delivered (Exhibit CC 12 [17]). It also depicted half pipe section that was ordered by Mr Jenner and the carton in which it was delivered (Exhibit CC 12 [18]). Mr Jenner’s evidence also covered asbestos that was ordered from other suppliers including Bell’s, Blake & Cement, Hill Bros, Associated Gaskets and James Walker. In addition to ordering James Hardie or Hardie-B.I. product, Mr Jenner also saw the product in the yard and on ships. Mr Jenner acknowledged that the product which he ordered and which he saw in place on the ships could have been from some other manufacturer and not James Hardie (T92.01). Amaca’s case took on an air of unreality at this point. It is stretching belief to consider that the product Mr Jenner saw on the ships was not from Hardie, yet he kept ordering Hardie-B.I. product, and a product from some other manufacturer kept turning up in a Hardie carton.

73. Mr Jenner’s evidence was not seriously, or at least successfully, challenged on these matters. He did say that he ordered a considerable amount of Rockwool after a period of time (T93.07). That piece of evidence is of limited value as it does not identify any time, let alone a time from which a considerable amount of Rockwool was ordered. That is significant because the changeover from asbestos-containing products to asbestos-free products did not suddenly happen. It was a gradual process and it took time in each instance to ensure that the replacement product was satisfactory. The first items that allowed a satisfactory replacement were the pipes. It is plain from Exhibit JH 12, p113, item 4 that a satisfactory substitute for asbestos had not been found for the pipes by 4 August 1972. It is plain also from Exhibit JH 12, p143, that the substitute had not been found by 27 March 1973 (see [177]) Further, when it was found, Mr Cox said it was “around for a while, but we never bothered using them” (T25.07).

71. Mr Jenner said there was a tremendous amount of asbestos pipe sections from Hardie-B.I. – “there were so many of them and there was a tremendous amount, and obviously as you know, a ship has got a lot of pipes in, and they were all throughout the shipyard” (T92.06-.08). I accept that evidence.

72. Amaca relied heavily on the evidence of Mr Foxford and submitted it should be preferred to the evidence of Mr Cox. Even if that submission is good, and I do not think it is, it does not deal with Mr Jenner’s evidence.

Mr Foxford

76. The State tendered a statement (Exhibit CC 13, p290) and an affidavit of Mr Foxford (Exhibit CC 13, p315). Their contents are much the same, though there are some differences.

77. Mr Foxford was employed by the Dockyard from 1944 to 1986. He worked in the storeroom until 1951/2. There, he accepted and distributed supplies including asbestos products (Exhibit CC 13, p311 [3]). Asbestos products were moved to Store No. 2 in about 1964 (Exhibit CC 13, p311 [5]). From 1951/2, he became a purchasing clerk until 1958, then purchasing officer until 1986 (Exhibit CC 13, p311 [6]).

78. Mr Foxford was required to purchase in accordance with State Government supply contracts, although there was a discretion to purchase outside that in certain circumstances (Exhibit CC 13, p312 [8]).

79. I make some brief observations about the State Government supply contracts later [152-155]. The Government started negotiating two year period contracts in the 1960s (Exhibit CC 13, p312 [8]).

80. Mr Foxford identified the following asbestos-containing products purchased at the Dockyard (Exhibit CC 13):

• insulation blocks “Magnesia” (p313) or “85% Magnesia” (p314);

• plastic covering/composition (pp 313, 316);

• asbestos cloth (p313);

• asbestos cord (p314);

• composition filled mattresses (p314);

• K-lite – used for refrigeration (p315);

• limpet sprayed asbestos (p316);

• asbestos rope (p316);

• Klingerite (p317);

• Turnal or Tombo board (p317).

81. Mr Foxford said he would have been involved in the purchase of the lagging for the “Moresby”. According to a list of ships, Exhibit CC 13 p321, the Moresby was ship No. 73. Its keel was laid on 23 June 1964 and it was handed over on 18 July 1965. I say more about this list of ships later [158-160].

82. Mr Foxford annexed to his affidavit what he believed was “a typical lagging specification for ships constructed in the 1960s” (Exhibit CC 13, p313). The annexure is just one page (Exhibit CC 13, p320). Under the heading “EXHAUST PIPES” is a reference to “insulation blocks”. This was a reference to 2" to 2½" magnesia slabs. Under the heading “LAGGING”, is a reference to 2" magnesia blocks. That was also a reference to 2 to 2½" magnesia slabs. Reference to 1" thick plastic covering was a reference to fibre purchased in hessian bags. It was high temperature plastic composition (HTPC), (Exhibit CC 13, p314, cl15(b)). It was made into a slurry (Exhibit CC 13, p313 [9-12]). There was no evidence that Hardie packaged its product in hessian bags. The evidence was its product was packaged in paper or bags like cement bags. It was submitted that Mr Foxford was mistaken in his reference to hessian bags. I do not accept that submission. The reference to hessian bags obtains support elsewhere, for example, from Mr Smith.

83. Mr Foxford was shown specifications said to be for the Henry Bolte and the Murray Porter – ship Nos 74 and 75. Keels were laid on 23 February 1965. They were handed over on 28 January 1966. The specifications had:

• High Temperature resisting insulating slabs, that is 2 to 2½" 85% Magnesia slabs;

• High Temperature plastic composition, this was fibre in hessian sacks;

• asbestos cloth, this was in rolls;

• High Temperature composition filled mattresses 2 to 2½" thick, these were made up by painters and dockers out of asbestos cloth. The cloth was sewn into pillows. The pillows were filled with fibre. They were placed around flanges between pipes (Exhibit CC 13, p314 [15]; p332)).

84. The only product which was subject to a State Government contract was the 85% Magnesia slabs 2 to 2½" thick. They were straight slabs and slabs with bends (Exhibit CC 13, p314 [16]).

85. Bell’s supplied the insulating blocks in the early 1960s. BI took over supply during the 1960s (Exhibit CC 13, p314 [18]). Mr Foxford, here, is fairly clearly referring to the time of the commencement of the partnership between James Hardie and CSR. It is likely that what he is referring to is a takeover of supply from James Hardie. Certainly, BI took over supply of insulating blocks during the 1960s. It took over from James Hardie. If Mr Foxford is in fact saying that BI took over supply from Bell’s, then the product Bell’s was supplying to the Dockyard before BI took over was a James Hardie product. The insulation slabs referred to by Mr Foxford (Exhibit CC 13, p313-314, cl 11, 12, 15(a)) were known by the name K-Lite (Exhibit CC 13, p315, cl 18). Accordingly, they were a Hardie-B.I. product.

86. There were three suppliers of cloth – Hills Bros, Australian Asbestos and Bell’s. A product known as BI or Bulldog was supplied in hessian bags by Bell’s (Exhibit CC 13, p293 [21]). Bell’s supplied limpet asbestos. Employees of the Dockyard mixed and sprayed it. In the 1960s, contractors began spraying. At this point, I note a submission by the State that Hardie undertook spraying. I reject that submission.

87. The painters and dockers were the ones who had the most direct contact with asbestos.

Mr Cox

88. I said earlier that I did not accept the submission that, to the extent that the evidence of Mr Foxford and Mr Cox were inconsistent, the evidence of Mr Foxford should prevail. I am mindful of the fact that the benefit a trial judge has in assessing a witness can be lost or diminished by the passage of time and Mr Cox gave his evidence in February 2015. Nevertheless, my very firm impression of Mr Cox was that he was a most impressive witness. He impressed as a person with a thorough understanding of his duties from time to time and a very good and clear understanding of the operation of the Dockyard. I have confidence in accepting his evidence.

89. Mr Cox started at the Dockyard in 1960. Over many years, Mr Cox held several positions of responsibility culminating in his being Acting General Manager from 1985 to 1987. In fact, he fulfilled the general manager’s role over a considerable period when the general manager was absent on secondment and later for several months after the general manager retired.

90. Mr Cox’s duties covered both ship building and repair. Mr Cox said that ship building involving the use of asbestos continued up until about the mid-1970s and then an alternative was used (Exhibit CC 4 [5]). The repair section of the Dockyard continued up until it closed in 1987.

91. The first ship that Mr Cox supervised the construction of was Cape Pillar, ship No. 70 in the list of ships (Exhibit CC13, p327). Its keel was laid in September 1963. It was launched on 26 September 1964 and handed over on 13 November 1964. Mr Cox was in charge of the whole of the construction (T18.05). Also, at the same time he was Ship Supervisor (1964-1966), three other ships, at least, were being built – the Kooringa, the Moresby and the Henry Bolte. Overlapping that period were two other ships, HMAS Moresby and the Murray Porter. Mr Cox had ample opportunity to observe and become acquainted with the intricacies of ship building.

92. Over time, during his working life, Mr Cox became fully aware of the material used in ship building and repair including insulating products and including asbestos. Considering the different roles he had and his mastery of them that is not surprising.

93. Confirmatory of this are the functions Mr Cox undertook in his work and his interest in processes quite apart from the responsibility of his roles from time to time. One example of this is an occasion that caused him to notice the words “James Hardie”. This was at a time when he was visiting a shed to check progress on the insulation of exhaust pipes. There he noticed boxes with the words “James Hardie” on them. He noticed this until about the mid-1970s (T12.01). Another example is in the period 1960 to 1964 when he was a draftsman in the office. During that time, he made observations of what was happening on the ships even though it was not then within his area of responsibility. It was a matter of personal interest to him (T17.21).

94. Cross-examination sought to confine Mr Cox’s responsibility for inspection and regular inspection to a two year period when he was Project Superintendent from 1969 to 1971. At one point he agreed with the cross-examiner that his responsibility for inspection and his regular inspection ceased when he ceased to be project superintendent. That piece of evidence, taken alone, does not do justice to his evidence. Later evidence disclosed that when he became Assistant Production Manager in 1973, a job that was classed as an office job, “you had to be around the plant all day because you were responsible for production” (T23.40) and “We had to inspect the ships, whatever, every day” (T23.43). Also there was the following evidence at T28.32-28.47:

Q.   Can I just go back to the evidence you gave about the shed.        A‑‑‑Yes.

Q.   And about seeing work being done there involving the pipe sections.        A‑‑‑Yes.

Q.   Also the slurry.        A‑‑‑Yes.

Q.   Would it be fair to say that that is the only insulation work that you can say that you actually inspected in the sense that it was part of your job to inspect that work.        A‑‑‑Me personally?

Q.   Yes.        A‑‑‑To inspect it?

Q.   Yes.        A‑‑‑No just that I inspected all areas, I had to inspect the exhaust pipes because they were critical in the installation of the engine room.

Q.   What I am getting at is that that was part of the time that you were at the dockyard that you were inspecting that work among others, correct.        A‑‑‑Yes.

Q.   Purely to say two years or so.        A‑‑‑Yes I suppose.

Q.   Something like that.        A‑‑‑Yes.

Q.   The rest of your time at the dockyard, it was not your job to actually inspect insulation work in that way.        A‑‑‑Well, if you were in charge of the whole project you had to inspect every bit of the work and just whatever's on the critical path in the construction period, you zeroed in on that. The insulation as I said before was on the critical path, so you always looked to see how far they'd got.

(emphasis added)

95. Mr Cox observed asbestos being used over the years he worked at the Dockyard (Exhibit CC 4 [83]).

96. Mr Cox gave evidence that by the mid-1970s, one of his projects was to find an alternative to asbestos. He said looking for alternative products did not happen until the mid-1970s (T19.01). That is wrong, but it may not have fallen to him to be involved until then. He said that unions were complaining. He said there was always industrial action (T28.02). Amaca relied on some records relating to industrial action, but that evidence of Mr Cox raises a question as to how comprehensive that documentary material is. In any event, I find that material of limited value. At the time the unions were complaining, the Newcastle Dockyard was telling the unions that there was “not a problem with it” (T26.24).

97. Mr Cox agreed that the Dockyard was trying to phase out asbestos from about 1971 but that it took time (T24.45). Mr Cox was involved in the process of trying to find replacement products (T25.19). The process of replacement took some years (T27.27). This is consistent with his evidence that the suppliers were giving conflicting information as to whether there was a problem with asbestos (T26.37). The pipe insulation changeover was the easiest and that took over 12 months (T27.45). That needs to be read with his earlier evidence that the pipe sections were around for a time, “but we never bothered using them” (T25.08). The accommodation areas and bulkheads took two to three years (T27.49). He thought the first vessel that was completely asbestos free was the Lysaght Endeavour, ship No. 91 (T32.25). Its keel was laid in May 1971. It was launched in April 1973 and handed over in September 1973 (Exhibit CC 13, p 329). Mr Cox was mistaken in identifying that as the first ship to be asbestos free as there is evidence of asbestos being used in that ship (Exhibit CC 13, pp8-12). There is also evidence of asbestos being used in ships constructed later – see, for example [177] below.

98. Mr Cox gave evidence of different suppliers of asbestos product to the Dockyard for the purpose of ship building. In the early days of Mr Cox’s observations, there can be no doubt about supply by James Hardie, or Hardie-B.I. from September 1964, and there can be no doubt that it was a significant supplier. Mr Cox gave evidence of boxes in the insulation shed with “James Hardie” on them. He gave evidence also of certificates from James Hardie for rating for fire protection (T30.20). “James Hardie” was the name “we were using at the time, the product we were using at the time” (T30.30). He did not remember much of the precise detail about the packaging, but I think that is of little, if any, significance. It was put into its context by Mr Cox, “I was interested in the product going on the pipes. I wasn’t really worried about their insignia.” (T31.38)

99. Mr Cox’s evidence could not extend to the identity of the supplier of the product for the bulkhead sheets (T13.05). That, however, is covered by other evidence which I accept, for example, that of Mr Jenner and Mr McMillan. The supplier was James Hardie. Mr Cox identified the loose asbestos as being in paper cement bags (Exhibit CC 4, p4 [22]). That identifies it as a James Hardie or Hardie-B.I. product. All the flat sheets were supplied by James Hardie (Exhibit CC 4, p4 [24]).

100. Mr Cox was criticised in respect of his identification of James Hardie product (T490.24). He tied the identification to his seeing James Hardie packaging in the shed, but the shed did not come into existence until 1969/70. Before the shed, the work had been done outside on the wharf (T29.05). I think it is likely Mr Cox is mistaken in a detail here and he probably saw the James Hardie packaging before the construction of the shed. There is certainly objective evidence of Hardie-B.I. asbestos product destined for the Dockyard and almost certainly delivered to it in 1967 and 1968 before the construction of the shed. It was delivered in cartons, crates and bags (Exhibit CC 13, p97-112).

101. It was submitted that the basis for Mr Cox’s evidence about James Hardie product was that he saw it in the shed. What he saw in the shed was undoubtedly Hardie-B.I. product. This is because the shed was established in 1969 and Hardie-B.I. product was being delivered then. It was submitted it is wrong to extrapolate from that and say that James Hardie product was at the Dockyard from 1960 onwards. There is no need to extrapolate. Mr Jenner’s evidence takes the supply of the product from Hardie-B.I. back to the mid 1960s and there is other evidence, which I accept, establishing the use of James Hardie product at the Dockyard before the commencement of the partnership in 1964, for example, Mr Corbett’s evidence. There is also the evidence of Messrs McDonald, Searle and Budden, though, because of its generality, it is of limited use. It does establish, however, at a general level, the use of James Hardie product at the Dockyard before the commencement of the partnership and the use of Hardie-B.I. product after the commencement of the partnership.

102. Mr Cox’s affidavit (Exhibit CC4) annexed a copy of a James Hardie brochure from the 1950s. Back then, James Hardie was producing 85% Magnesia, High Temperature and Asbestos Millboard. They were all asbestos products. The brochure describes 85% Magnesia in Pipe Sections and in Blocks, flat or curved. It refers also to 85% Magnesia Plastic Composition supplied in 40 lb. bags. High Temperature Insulation is described as supplied in blocks. Asbestos Millboard is described as a strong, light and flexible sheet. It was packed in crates. 85% Magnesia Pipe Sections and Blocks and High Temperature Blocks were packed in crates. Technical advice to consumers was available on application to James Hardie.

103. The affidavit also identified product that was not Hardie product and annexed a copy of a Bell’s brochure. It identified Millboard (Exhibit CC 4, p50) and 85% Magnesia Composition (Exhibit CC 4, p81). It also identified Bestobell Magnesia Sectional Pipe Covering (Exhibit CC4, p83).

104. The predominance of James Hardie or Hardie-B.I. product impressed Mr Cox so much that he estimated it was used ninety percent (90%) of the time and Bell’s product ten percent (10%) of the time (Exhibit CC 4 [28]). I have come to a different view about that, but the point is the James Hardie or Hardie-B.I. product was dominant.

105. Mr Cox described the dustiest process as being insulating the exhaust pipes on board the ship (T12.23) and that included the occasions when the insulation was done off the ship. This is because of the fitting process in putting it on the ships. Other witnesses had different views about what the dustiest process was. Mr Corbett thought it was the spraying process. Item 6 of Exhibit JH 12, p108, refers to rope as the dustiest process. Mr Foxford’s evidence might suggest the painters and dockers were the most exposed of the workers (Exhibit CC 13, p311, cl 5). Mr Bennett’s evidence would suggest that removal of old lagging was the dustiest work as it was difficult to see from one end of the engine or boiler room to the other when this was done (Exhibit CC 23). That demonstrates the difficulty, even impossibility, of being able to determine how much James Hardie or Hardie-B.I. product was used compared to other products, what the relative dustiness of each process was and how long any of the underlying plaintiffs were exposed on each occasion they were exposed.

106. I am satisfied that in ship construction to the extent asbestos product was used, the majority of it was James Hardie or Hardie-B.I. product.

107. A Browne v Dunn (1893) 6 R. 67 submission was made to the effect that Amaca was not entitled to challenge Mr Cox’s estimate of the extent of the use of James Hardie or Hardie-B.I. product because he was not cross-examined on it. I do not accept that submission. It is sufficient to note that the basis for Mr Cox’s estimate was challenged in cross-examination. It must have been clear to everybody that the assessment of Mr Cox was being challenged.

Mr Hinton

108. Mr Hinton’s statement (Exhibit CC 43) was prepared for litigation in Victoria arising out of the use of asbestos at power stations in Victoria.

109. Mr Hinton was employed by James Hardie from 1945 to 1987. In 1957 or 1958, he became factory superintendent of insulation. In 1963, he became Factory Manager. At the time, James Hardie considered its thermal insulation products to be the future of the business and that was the driver behind its partnership with CSR the following year.

110. In 1964, Mr Hinton was appointed Manager of the Hardie-B.I. Plant in Sydney until 1972. He then became Technical Assistant to the production director at the head office in Sydney until 1978. Thereafter, his work was in Indonesia then New Zealand.

111. Upon the formation of the partnership, the Camellia factory continued to manufacture the same products that had been manufactured by James Hardie at that factory. It was the only factory in Australia that manufactured Hardie-B.I. product. It manufactured High Temperature insulation products. The basic products were called 85% Magnesia, K-Lite and Caposite. The statement continues as follows:

Initially 85% Magnesia was not suitable for extremely high temperature insulation. After further development, the product was made more heat resistant and it became known as “high Temp Insulation” or “High Temperature Insulation”. Hardie-BI also manufactured another variant of 85% Magnesium called “Super High Temp” although this product was essentially the same as “High Temp Insulation”…

The Hardie-BI partnership’s most successful high temperature insulation product was K-Lite. It was technically superior to High Temp Insulation and once K-Lite was released onto the market, the High Temp Insulation product virtually disappeared. K-Lite was very versatile. It could be manufactured in blocks, in pipe sections of varying sizes and designed to fit whatever structure was required.

In the first few years of the Hardie-BI partnership, our most ordered product was 85% Magnesia. However, after the introduction of K-Lite in the mid-1960s, K-Lite became our major product until the end of the Hardie-Bi partnership. 85% Magnesia was also manufactured up until the end of the Hardie-BI partnership.

Each of these high temperature insulation products contained asbestos. They were specifically manufactured for use in power stations and oil refineries which generated high temperatures. At the extreme end, these temperatures were often in excess of 1000 degrees Celsius. K-Lite was a particularly successful and popular product as it could withstand temperatures of up to 1200 degrees Celsius.

(Exhibit CC 43 [13] - [16])

112. Hardie-B.I. was the only Australian manufacturer of high temperature asbestos insulation (Exhibit CC 43 [19]. Hardie-B.I. product accounted for ninety-five percent (95%) of high temperature insulation sales. “There was no other competition within Australia and, to my knowledge, no other company importing the quantity of high temperature insulation that was required on major projects such as power stations and oil refineries” (Exhibit CC 43 [19]).

113. Approximately five percent (5%) of high temperature insulation product was imported from the United Kingdom. Towards the end of the partnership, the Japanese were beginning to supply some high temperature products, but in very small quantities. Hardie-B.I. remained the dominant market force in high temperature insulation products until it ceased production in 1974. Mr Hinton added,

In general terms, if high temperature insulation was used at the SECV power stations then the chances of that high temperature insulation being Hardie BI products would be somewhere around 95%. Hardie BI had a real market dominance and we were pretty much the only manufacturers of high temperature insulation in Australia.

(Exhibit CC 43 [23])

When the Hardie-BI partnership ended in 1974, the Hardie-BI factory was also closed. This meant that James Hardie insulation also ceased production although there would have been a lot of in situ insulation present at the various sites in which it was used.

(Exhibit CC 43 [28])

Mr Gazzard

114. Mr Gazzard was employed by James Hardie from 1953 to 1981. He started as a junior clerk. In 1954, he was a sales clerk in the insulation materials department. In 1955, he went to the building materials division. He was at Newcastle from 1967 to 1969.

115. James Hardie manufactured 85% Magnesia in sectional pipe segments, flat and radiused blocks which were supplied in cardboard cartons, 85% Insulating Cement supplied in bags, Hardie’s High Temperature sectional pipe segments, flat and radiused blocks supplied in cardboard cartons, High Temperature insulating cement supplied in bags, Hardie’s asbestos millboard sheets in 1/8, 3/16, 1/4, 3/8 and ½ inch thickness, ¾ and 1 inch thickness also available to order (Exhibit CC 16).

116. Thick compressed asbestos cement sheets were manufactured extensively by James Hardie. During the mid-1950s to about 1975, James Hardie held a NSW contract to supply its building products to NSW government departments (Exhibit CC 16).

117. Mr Gazzard went to the Newcastle Dockyard on occasions, particularly if the Dockyard required compressed sheeting or roofing material, but not insulation material (T173.33).

118. Compressed sheeting was mostly 3/16”, sometimes thicker (T173.45). It was normally cut to size at the James Hardie factory (T182.50). Diamond wheels were used to cut it at the factory. It could not be cut with a jigsaw or bandsaw, but it could be cut on site with a rotary saw with a diamond blade or an angle grinder (T187.20-.30; T189.24).

119. The insulation products division and the building products divisions were two separate divisions of James Hardie, as to location, manufacturing processes and storage of product. Mr Gazzard did not work in the insulation products section after 1955. He did, however, sell millboard in his time at Newcastle from 1967 to 1969 (T184.30). He could have sold it to the Dockyard (T184.36).

120. Mr Gazzard was aware of imported alternative insulation products in competition with James Hardie in 1954 to 1955 (T188.45). Millboard, 85% Magnesia could have been imported from Turner & Newell or Bell’s Asbestos in the United Kingdom. He was aware of slag wool as an asbestos-free product. This was manufactured by Bradford in batts (T189.14).

Documentary evidence - The products of James Hardie, Hardie-B.I. and others

121. The first evidence chronologically is a James Hardie brochure from 1950 or thereabouts (Exhibit CC4, p6). It contains reference to:

• 85% Magnesia;

• High Temperature Insulation; and

• Asbestos Millboard.

122. There is also reference to Hardie’s 85% Magnesia Plastic Composition supplied in bags (Exhibit CC4, p23). These were insulating materials and, in the case of Millboard, for protection against fire also (Exhibit CC 4, p25). 85% Magnesia came in pipe sections and blocks. It was flat or curved. It was supplied in cartons. High Temperature Insulation came in blocks. Millboard came in crates.

123. The brochure specifically cites marine engines as items suitable for the use of 85% Magnesia. At the time, 1950, James Hardie was the only manufacturer in Australia of 85% Magnesia.

124. Next in time is an undated James Hardie brochure (Exhibit CC 16). It predates the partnership. It was assumed this brochure was probably current in the 1950s. It covers the above products and also:

• K-Lite;

• Combination Insulation;

• Super High Temperature Insulation;

• Insulating Cements;

• Caposite.

• Again, James Hardie was the only manufacturer in Australia of 85% Magnesia and also of K-Lite.

125. There is then an undated Bell’s brochure (Exhibit JH 3A). It is in several sections. Sections A to D and F deal with products that are not Hardie products, and there are many. Section ‘E’ deals with thermal insulation. In this section are included K-Lite Pipe Insulation, 85% Magnesia and High Temperature Insulation. These products were, in fact, Hardie products (pp41 and 42). Marinite was also included. It was an asbestos sheet material (p44). Rockwool was also included (p45). The brochure describes the K-Lite, 85% Magnesia and High Temperature as “Hardie’s” products. That helps fix the time of this brochure as being before formation of the partnership in 1964.

126. Another undated brochure is a Bell’s brochure (Exhibit JH 3A, p57). It covers “Tombo”, a board containing asbestos.

127. A further undated Bell’s brochure is at Exhibit JH 3A, p61. It refers to “Hardie-B.I. K-Lite”. It, therefore postdates the beginning of the partnership in 1964. It also covers Rockwool (p63). It also refers to asbestos rope lagging (p67).

128. There are then six brochures of different overseas suppliers (Exhibit JH 3B, p1, p4, p20; p57; JH 3C and JH 3D). To the extent that they are dated or dates can be estimated, they date from 1960 to 1981. I put to one side this evidence. The share of the market in New South Wales by these suppliers was so small it could hardly impact at all. This is supported by Mr Hinton’s evidence (Exhibit CC 43 [19]-[20], [23]). Further, despite several overseas suppliers being named, there was no suggestion in the evidence of the witnesses that relevant materials were being supplied to the Dockyard from overseas sources. Mr Gazzard’s evidence does not alter this. His evidence does not suggest that in 1954 to 1955 overseas suppliers had any significant impact in the market. Much less does it suggest that overseas supplies found their way to the Dockyard.

129. James Hardie was the only manufacturer of 85% Magnesia and K-Lite in Australia (T357.03). These products were provided to Bell’s after 1964 (T357.11). It was submitted that did not establish that every single pipe section that was used anywhere in Australia at the relevant time came from the James Hardie factory because of the potential for imports. That may be right, but it is not to the point. The point is whether, on the probabilities, the State has established that the 85% Magnesia and K-Lite products used at the Dockyard came from James Hardie or Hardie-B.I. Significant in assessing the probabilities are James Hardie or Hardie-B.I. being the exclusive manufacturer in Australia, the Dockyard having contracts for supply with James Hardie, the dominance of James Hardie and Hardie-B.I. in the market with these products, with imports being limited to about five percent (5%) of the market and no suggestion in the evidence that for any reason the Dockyard had to go to imports for these products. The probabilities are so overwhelming as to border on certainty that every single pipe section at the Dockyard came from the James Hardie factory.

130. A CSR brochure dated February 1964 reveals that BI produced Rockwool (JH 2, p16).

131. All these brochures show that there were different insulation products in the market, some containing asbestos and some not, and there were different suppliers of products. Like the State government supply contracts, they do not show where in the market place the products finished up. The evidence of the witnesses at the Dockyard is helpful here.

132. The partnership agreement between Hardie and CSR was dated 21 September 1964 (Exhibit JH 10, p1). The partnership operated from 28 September 1964. The partnership was essentially between Hardie and CSR, but BI was a party to part of it. The partnership business was to manufacture and distribute products that were listed (Exhibit JH 10, pp3-4). They were:

• 85% Magnesia Sections, Blocks and Plastic;

• High Temperature Magnesia Sections, Blocks and Plastic;

• Super High Temperature Magnesia Sections, Blocks and Plastic;

• K-lite – Calcium Silicate Sections and Blocks;

• Asbestos Millboard;

• Fibrefil;

• Caposite; and

• “such other thermal insulating materials as may be developed from time to time for use on or in association with heating equipment or vessels”.

133. BI was appointed “as sole selling and distributing agent” (Exhibit JH 10, p13). The partnership was to sell to BI the products for resale (Exhibit JH 10, p15, clause 3.(a)). BI was to confine its purchases of the products to the partnership with some expressed exceptions (Exhibit JH 10, p15, clause 3.(b)). The partnership was to carry adequate stocks (Exhibit JH 10, p15, clause 4(b)).

134. Division 7, clause 4(c) provided:

Bradford Insulation shall and shall always be deemed to be principals in respect of all dealings with the products and shall not have power to bind the partnership whether by way of guarantee or otherwise or with regard to the sale or delivery of products by any specified date unless and so far only as authorised in writing by the partnership or by the Partnership Committee and shall not impose or have the power of imposing any liabilities on the partnership in any manner whatsoever unless and so far only as authorised, by the partners in writing.

(Exhibit JH 10, p16)

135. Division 7, clause 16 provided:

For an initial period of five years from the 28th day of September 1964 and provided Bells Asbestos & Engineering (Aust.) Limited (hereinafter called “Bells Asbestos”) purchases the whole of its requirements of the products solely from Bradford Insulation, the partnership will provide and allow to Bells Asbestos a discount on all purchases by Bells Asbestos for delivery directly by the partnership to Bells Asbestos stores or nominated job sites of minimum quantities specified in Clause 9 of this Division such discount to be five per centum (5%) of the net purchase price (excluding all invoiced charges) paid by Bells Asbestos for the products purchased by Bells Asbestos from Bradford Insulation in addition to any general discount provided and allowed by this Agreement. In this clause the expression “invoiced charges” shall include but not be limited to freight insurance and crating. (Exhibit JH 10, p20)

136. In relation to this clause, Amaca submitted that it could not be assumed that the product sold by Bell’s was manufactured by the partners. Bell’s may have imported some product (T361.07). Again this misses the point and I have already dealt with it [129].

137. The State submitted that if product was supplied by BI, it was Hardie-B.I. product. I do not accept that necessarily follows. BI was free to obtain product from sources other than Hardie-B.I. The partnership agreement, clause 3(b) in Division 7 in particular, did not tie BI to partnership product. The clause relevantly provided, “

Bradford Insulation covenants to confine its purchases of the products to the partnership except as may otherwise be agreed … or in the event of inability of the partnership to supply the product …”

All that did was tie BI to the products described in clause 1 of Division 3 (Exhibit JH 10, pp3-4) except as otherwise agreed or in the event that the partnership could not supply. There was no restriction on BI purchasing other products such as rope and Bulldog and supplying it to others. That did not make such other product Hardie-B.I. product.

138. There was an issue arising under the partnership agreement about the extent to which Bell’s supplied Hardie-B.I. product to the Dockyard. The argument centred on clause 16 of Division 7 of the agreement (Exhibit JH 10, p20). The clause is set out above [135]. It provides, in effect, that if Bell’s for the first five years of the partnership (that is from 28 September 1964) purchases the whole of its requirements of the products, as defined in the agreement, from BI, the partnership will allow it a discount of five percent (5%) in addition to any other discount allowed by the agreement. Bell’s was not a party to the agreement.

139. A resolution of the Partnership Committee on 22 February 1965 referred to the five percent (5%) discount payable to Bell’s pursuant to clause 16, but resolved that it not be paid for the period 28 September 1964 to 27 February 1965 (Exhibit CC 42, p10). A further resolution of 29 March 1965 again referred to that commission payable to Bell’s and resolved not to pay it for the period 1 March 1965 to 27 March 1965 (Exhibit CC 42, p11). There is an ambiguity about the word “payable” in the resolutions. It may simply be a reference to the clause in the agreement or it may be an acknowledgement that Bell’s had qualified for the commission. I think the latter is the correct interpretation. If Bell’s had not qualified for the commission, there would be no point in the resolution. On this interpretation, Bell’s was getting all its supplies of partnership products from BI. This continued up to 27 May 1968 when a minute of a meeting of the Partnership Committee noted that Bell’s would no longer obtain the whole of its requirements for these products from BI.

140. It does not follow that the whole of the partnership product Bell’s was buying from BI in the period from 18 September 1964 to 27 May 1968 went to the Dockyard. It does follow, however, that to the extent that Bell’s provided that type of product to the Dockyard, it had no source of manufacture other than Hardie-B.I.

141. I was taken to a number of Minutes of the Partnership Committee for a number of purposes.

142. One purpose was to demonstrate the phasing out of High Temperature Blocks. There were only two Minutes. The last of them dated 21 November 1966 recorded that orders for High Temperature blocks would not be accepted after 16 December 1966 (Exhibit JH 10, p34).

143. Another purpose was to demonstrate the phasing out of 85% Magnesia. These Minutes commenced on 27 November 1967 where it was noted that stocks would not be replaced as depleted, but orders would continue to be accepted on a “special manufacture” basis (Exhibit JH 10, p36). The Minutes through to 5 June 1970 recorded progress on the phasing out of 85% Magnesia. They record a steady progress up to 18 November 1969. On that occasion, it was recorded that the stocks of 85% Magnesia held by BI were almost exhausted (Exhibit JH 10, p50). On 23 April 1970, it was recorded other States (not Victoria) were still attempting to dispose of their stocks (Exhibit JH 10, p51). On 5 June 1970, it was recorded that most States still had stocks which “were being offered when ever the application suited 85% Magnesia” (Exhibit JH 10, p53).

144. When this evidence is married with Exhibit CC 17A and CC 17B, it was submitted that in about 1970 Hardie-B.I. had ceased producing 85% Magnesia. This is said to be demonstrated in those exhibits by 85% Magnesia being referred to in the first of those brochures chronologically, Exhibit CC 17B, but not in the later one, Exhibit CC 17A. I do not draw that inference. It is difficult to draw that inference from those exhibits without knowing when in the period of the partnership those brochures were published. Further, it is contrary to the specific evidence of Mr Hinton which I accept. He stated that 85% Magnesia was manufactured up until the end of the partnership which was in 1974 (Exhibit CC 43, [15]). Further, Mr Jenner was challenged, not successfully, as to his identification of the 85% Magnesia. He was not challenged to suggest it was not available from about 1970.

145. Another purpose of the Minutes was to show the introduction and use of asbestos-free products. The Minutes here commence on 27 May 1969 with a reference to experiments in Rockwool in lieu of asbestos in K-lite (Exhibit JH 10, p48). Minutes then through to 1 February 1974 reveal that technical difficulties with the alternative were ongoing though there was an ability to accept and fill orders. The technical difficulties prevented the partnership being able to set up a regular production process for the asbestos-free product.

146. On 15 November 1973, Mr King, a member of the Partnership Committee, sent a memorandum to the General Manager of CSR (Exhibit JH 10, p135). It included the following points:

• the business of High Temperature insulation was only moderately profitable;

• there was little likelihood of long term growth of calcium silicate (the K-Lite);

• further capital expenditure could not be justified to continue the business;

• he recommended closing down the operation in June 1974. This was agreed to at a meeting on 30 November 1973.

147. A Deed of Dissolution of the partnership was entered into on 26 June 1974 with the dissolution to be effective on 30 June 1974 (Exhibit JH 10, p151).

148. A meeting of 8 July 1974 recorded that unwanted stock was to be dumped (Exhibit JH 10, p146).

149. Exhibit CC 17B noted that James Hardie was available for technical advice. That was changed to BI in Exhibit CC 17A. For reasons which I express in [295], this was not a matter relieving James Hardie in any way.

150. Amaca submitted that the production of thermal insulation products ceased by the end of June 1974. I accept that is so.

151. There is then the matter of building products. Brochures for these are in Exhibit JH 4. There are four brochures. One is for Tilux, p1. Another is for Interior Linings, p5. Both of these are dated late in 1979 and contain cautionary notes about health risks associated with asbestos. The other two brochures are dated August 1980 and September 1980. They are dated after Mr Payne, chronologically the last of the underlying plaintiffs, ceased employment at the Dockyard. That does not make them irrelevant. They are sufficiently contemporaneous with his time there to be relevant and refer to materials he worked on.

Documentary evidence - The supply of James Hardie and Hardie-B.I. product to the Dockyard

152. There are some contractual related records bearing on supply of asbestos. Before turning to them, it is to be noted that the State had standard contracts for the supply of materials. This related to the State’s activities and needs as a whole. The documents of themselves do not reveal what material the State bought or where it was used. Other evidence is required for that.

300. Warnings could have been issued. The nature of the warnings would need to change to meet developing knowledge about the dangers of asbestos.

301. There can have been no practical difficulty in getting a warning to end users such as the underlying plaintiffs. Any number of means would have been available to James Hardie. Mr Cox’s evidence demonstrated that a message could get to the end users – “… we were getting conflicting stories from the suppliers there was no problem with it” (T26.37).

302. I do not think Norton stands in the way of the State’s case on warning. In that case, the use of flammable adhesive in a closed atmosphere in which there was a naked flame could not have been contemplated (p642). Here, asbestos was used in a way in which it was contemplated it would be used. Further, the dangers associated with flammable material are obvious to all. It might reasonably be contemplated by the manufacturer and distributor that simple and obvious precautions would be taken. The dangers associated with the use of asbestos were not at all obvious especially to tradesmen who worked with and around it. The need for warning and its content must accommodate the fact that numerous end users of asbestos at different times would be ignorant of the dangers associated with its use.

303. CSR Limited v Wren (1998) Aust Torts Reports 81-461 noted that fulfilment of the duty of care owed to a person beyond the immediate purchaser may, in a particular case, only be fulfilled by taking steps specifically directed to the end user - at 64,828-9. In that case, the supplier of asbestos product to the plaintiff’s employer was so closely related to the employer that it knew the working conditions in which the plaintiff worked and that no precautions were taken against the known dangers of asbestos. That was a sufficient, but not necessary, fact to found liability. It is sufficient if the manufacturer or supplier of product ought reasonably have within his contemplation that end users might work with the product in a way that could release asbestos dust and fibre into the breathing zone of those end users or those working sufficiently adjacent to them. James Hardie ought reasonably have had that contemplation in these cases. It knew the product wherever it went would be cut, drilled, rasped and otherwise handled in ways that would liberate dust into the atmosphere. It knew at all relevant times the dangers associated with the use of asbestos. It knew that the harmful results of exposure to asbestos would not take effect for a very long time. It must have known that, unlike flammable material, asbestos was a product whose dangerous properties were not universally known. It must have known that those dangerous properties would not be known to a workforce that manually worked with asbestos. It ought to have been within its reasonable contemplation that members of such a workforce would be working with the product in a variety of conditions including, in many instances, without protection. In its supply of product, it did not pay attention to what those conditions were. This is supported by the fact that in no instance, even when it actually knew of the dangerous conditions in which end users were working did it issue any warning. It did not rely on steps taken by its purchasers to protect end users. By and large, it would not have known in any given instance what the working conditions of those end users were. These matters support the view that the reasonable response required it to warn end users.

304. From 1978, James Hardie started placing notices on its building products. They were in a form shown in the last three pages of Exhibit JH 9. It is sufficient to note the wording of one of them. It was as follows:

“a Caution

This product contains asbestos.

Breathing asbestos dust can damage health.

Keep dust down.

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

310. Then some “rules” were set out:

When sawing, drilling, etc. work in a well ventilated space, preferably outdoors.

Use hand tools designed for cutting asbestos-cement sheets such as fibro cutters or a score and snap knife – or use an old hand saw. If cutting by power saw use one which has a dust suppression attachment.

Avoid drilling overhead where possible by pre-drilling before fixing.

Damp down waste dust and dispose of it in a sealed bag.

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

311. This was not truly a warning. It was a notice more in the nature of a reassurance in use of the product.

312. The warning that should have been given in each instance depended on the state of knowledge known to James Hardie when each of the underlying plaintiffs was employed by the Newcastle Dockyard. The warning should have been in such a manner and of such form and content as to inform each underlying plaintiff of the real risks then known to be associated with being exposed to asbestos. The content of the warnings would need to vary to accommodate advances in the developing state of knowledge. It is convenient here simply to refer to the information contained in the article by Margaret Becklake, referred to in [319(7)]. In brief, warning should have been issued from:

• in or soon after 1953 to the effect that exposure to asbestos was harmful to health, that it caused asbestosis and could cause lung cancer and mesothelioma and lead to death;

• in or soon after 1955, to the effect that exposure to asbestos was harmful to health, that it caused asbestosis and lung cancer and could cause mesothelioma and lead to death;

• in the early 1960s, to the effect that exposure to asbestos was harmful to health, that it caused asbestosis, lung cancer and, even with light exposure, mesothelioma, and could lead to death.

Causation

313. Not all the underlying plaintiffs stated what they would have done had they been warned of the dangers of asbestos. Evidence to that effect in any event needs to be treated with care.

314. In each case, however, I accept that an appropriate warning would likely have led to each underlying plaintiff taking appropriate steps to protect his health including, if need be, seeking and obtaining alternative employment. This is supported by a number of factors. It is the sort of response one would expect of a person particularly if he was told that the exposure could kill him. Further, employment opportunity in the Newcastle and surrounding areas, it may be inferred, was plentiful. It is notorious that the area was a very big industrial hub throughout the whole of the period the subject of the claims. The likelihood is that each underlying plaintiff could have readily obtained other employment. This is illustrated by the fact that each of them did.

• Mr Derepas apparently had no difficulty in obtaining employment in Townsville when he ceased at the Dockyard (Exhibit CC 27, p12).

• Mr Lewis had two periods of employment at the Dockyard and he apparently had no difficulty in obtaining other employment at the end of both (Exhibit CC 14, p11).

• Mr Pajkovic apparently had no difficulty in obtaining employment when he ceased at the Dockyard (Exhibit CC 25 [3.1]).

• Mr Daly wore protective gear when told to (Exhibit CC 21, p13). His employment position after the Dockyard was not as clear as the others, but it seems likely he was able to obtain work (Exhibit CC 21, p7).

• Mr Allars, when he learned of the dangers of asbestos, refused to work in conditions that would expose him. The Newcastle Dockyard accommodated him in that regard and kept him employed.

• Mr Bennett specifically said that if he had been warned, he would have worn appropriate protective clothing (Exhibit CC 23, p10). He apparently had no difficulty in obtaining employment when he left the Dockyard (Exhibit CC 23, p8).

• Mr Smith stated that had he been warned he would have taken protective measures. He apparently had no difficulty obtaining employment when he left the Dockyard (Exhibit CC 29, p6).

• Mr Payne had two periods of employment and apparently had no difficulty in obtaining other employment at the end of both (Exhibit CC 35, p9).

315. I do not consider the fact that there was some information in the public domain about the dangers of asbestos is sufficient to come to a contrary view. Most of the underlying plaintiffs were deceased so it was not possible to ascertain their state of knowledge of the dangers of asbestos. Further, they were entitled to rely on their employer providing them with a safe working environment and would be entitled to assume that they had one. As to Mr Allars, he did learn of the dangers of asbestos and when he did he demanded and obtained other work at the Dockyard.

Contribution

316. In dealing with contribution, I need to deal with a submission based on McCullagh. There, the then President, O’Meally P, could not determine on the evidence the relative causal potency of two tortfeasors to enable one of those tortfeasors to obtain contribution from yet a third tortfeasor. He could not “determine a proportion of an unknown proportion” [16] and, accordingly, he could not assess what contribution should be made by the third tortfeasor. I followed McCullagh in Evans.

317. Mr Maconachie QC submitted those cases were wrongly decided. On reflection, I have reservations about their correctness, but I do not need to embark on that because I think they are distinguishable.

318. In these cases, there is evidence to permit an assessment of relative causal potency between James Hardie and the Newcastle Dockyard. There is a considerable body of evidence, both oral and documentary. It is extensive. Some of it is confusing and difficult to comprehend. The task has been difficult. Nevertheless, the task of assessment is capable of being done and has been done.

The claims relating to each of the underlying plaintiffs

319. To save repetition, it is convenient to set out factors that are common to all or many of the claims relating to the underlying plaintiffs. These facts I take into account in assessing contribution between the State and Amaca.

1. At all relevant times, James Hardie or Hardie-B.I. carried on a most substantial business throughout Australia in the production and distribution of asbestos insulation and building products. To some extent, this was referred to by Rush J in Zwiersen. It was more fully detailed by Curtis J in Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd; re Hay (No 4) (1999) 18 NSW CCR 653 from [126] when the period of exposure was from 1958 to 1961.

2. There was some evidence about the size and extent of the Newcastle Dockyard. A map was tendered. It reveals the Dockyard was located on a substantial portion of land and water. There was an extensive workforce. The Newcastle Dockyard must have had readily available to it resources for advice on all types of matters, including engineering, medical, industrial, legal.

3. At all relevant times, James Hardie had actual knowledge of the health risks associated with exposure to asbestos. Matters discussed at [283-287] are pertinent here.

4. At all times from 1962, the Newcastle Dockyard had actual knowledge of the health risks associated with exposure to asbestos. Matters discussed at [288-290] are pertinent here.

5. At all times up to 1962, the Newcastle Dockyard did not have actual knowledge of the health risks associated with exposure to asbestos.

6. At all times up to 1962, it was available to the Newcastle Dockyard to ascertain the then state of knowledge of the health risks associated with exposure to asbestos and, as a reasonable employer, it ought to have done so.

7. The developing state of knowledge as to the health risks associated with exposure to asbestos is conveniently represented in a graph in an article by Margaret Becklake (Exhibit CC 44, Tab 76, p189). It may be summarised as follows.

1. As at 1953, when Mr Derepas started at the Dockyard, there was an established association between asbestos and asbestosis, a probable association with lung cancer and a suspected association with mesothelioma.

2. As at 1955, when Mr Lewis started at the Dockyard, the association between asbestos and lung cancer had moved from being probable to being established.

3. By the early 1960s, recognition of the association between asbestos exposure and mesothelioma was established. It might be noted here that in 1960, the Wagner article (Exhibit CC 44, Tab 66) noting the link between mesothelioma and asbestos, even light exposure, had been published.

8. The Newcastle Dockyard, as employer of each underlying plaintiff, was in a position to determine and fix the working conditions in which each of them worked. It had direct control over each of them. Its culpability lay with the knowledge it had, or ought to have had, of risks associated with asbestos use, in exposing them to conditions of work without proper safeguards for their protection, and without warnings as to the dangers to which they were being exposed.

9. The moral culpability of James Hardie lies in its distribution of product known to it to be dangerous without, until 1978, issuing any notice to persons it knew or ought to have known to be working with the product in various different ways that liberated the dangerous dust into their working environment. If anything, the notice issued by James Hardie on its building product in 1978 enhances its moral culpability. It highlights its decades of silence and aggravates that with a notice that could be interpreted more as a comforting reassurance rather than a warning. The notice was deficient in many respects. It was deficient as to its manner of circulation or publication. It was attached to large sheets that could be seen, at best, only by some end users. It might have been seen by carpenters and joiners who directly handled the product. It would not have been seen by workers in ancillary trades such as electricians and plumbers. It was deficient as to form. It was a small sticker on a large sheet. It was deficient as to content. It said nothing about cancer or mesothelioma or any threat to life. Also, the letter from BI to the Newcastle Dockyard on 14 May 1968 advising there were no health risks associated with the use of K-Lite calcium silicate and 85% Magnesia can only add to the moral culpability of James Hardie. However, that letter does nothing to reduce the moral culpability of the Newcastle Dockyard.

10. The warning that should have been given in each instance depended on the state of knowledge known to James Hardie when each of the underlying plaintiffs was employed by the Newcastle Dockyard. The warning should have been in such a manner and of such form and content as to inform each underlying plaintiff of the real risks then known of being exposed to asbestos.

11. The contribution exercise is to take into account a comparison of the relative causal potency of the negligent acts of the Newcastle Dockyard and James Hardie and a comparison also of their moral culpability – Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529.

12. I bear in mind also in respect of each claim the circumstances I have set out earlier regarding each of the underlying plaintiffs culminating in the views I have expressed as to the exposure of each of them to Hardie product and non-Hardie product. My references to non-Hardie product have encompassed product where the identity of the manufacturer is not known as well as where it is known.

320. With those matters expressed, I can deal with the contributions in respect of each claim very briefly.

Mr Derepas

321. Mr Derepas was employed between 1953 and 1957.

322. Considering the relative culpability and causal potency of the parties, I consider that of the totality of the liability to be borne by these parties, 75% should be attributed to the State and 25% to Amaca.

Mr Lewis

323. Mr Lewis was employed from 4 January 1955 to 29 November 1960 and then from 9 July 1962 to 10 January 1977. Over this employment there was a shift in the state of knowledge to health risks whereby the Newcastle Dockyard gained actual knowledge.

324. As to the relevant apportionment, I assess 60% to the State and 40% to Amaca.

Mr Pajkovic

325. Mr Pajkovic was employed from 1965 to 1977.

326. I estimate the relative apportionments at 65% to the State and 35% to Amaca.

Mr Daly

327. Mr Daly was employed from 9 August 1968 to 20 March 1970 and from 14 August 1972 to 9 February 1979.

328. In this case, I attribute 70% to the State and 30% to Amaca.

Mr Allars

329. Mr Allars was employed from 25 June 2009 to 22 September 1970, then from 8 February 1971 to 10 July 1973 and finally from 24 April 1974 to 6 March 1987. In his case, the effective last date is 1979, being when he was last exposed.

330. I apportion the relevant liability as 65% to the State and 35% to Amaca.

Mr Bennett

331. Mr Bennett was employed from 14 December 1970 to 11 August 1977.

332. I apportion 70% to the State and 30% to Amaca.

Mr Smith

333. Mr Smith was employed from 5 December 1973 to 16 November 1977. His exposure to Hardie-B.I. product was slight.

334. I apportion 90% to the State and 10% to Amaca.

Mr Payne

335. Mr Payne was employed from 7 August 1972 to 24 August 1977 and from 8 April 1980 to 14 August 1980.

336. I attribute 65% to the State and 35% to Amaca.

Amaca’s cross claim against CSR

337. Amaca cross-claims against CSR. In brief, the claim is for an equal contribution from CSR or alternatively contribution or indemnity to the extent that it is just and equitable having regard to the extent of CSR’s responsibility for the loss, injury and damage to each of the underlying plaintiffs.

338. The claim is limited to partnership product.

339. That creates a problem in that exposure of some of the underlying plaintiffs in ship construction and repair was to Hardie-B.I. product and some of it was to James Hardie product. Amaca would not be able to recover in respect of the latter product. As the submissions did not deal with this, I do not deal with it except in some cases to make some adjustment. This will not matter much in the result as the bulk of Hardie product to which the underlying plaintiffs were exposed was insulation product.

340. Normally, liabilities of a partnership would be borne equally between the partners. My attention was not directed to anything in the partnership agreement or deed of dissolution that provides otherwise and it was not argued to the contrary. Accordingly, I am of the view that CSR is bound to contribute 50% of any liability of Amaca in respect of partnership product.

341. There is no claim made in respect of Mr Derepas’s case. He was not exposed to Hardie-B.I. product.

342. In the case of Mr Lewis, he was not exposed to Hardie-B.I. product before the partnership was formed. Amaca will not be entitled to any recovery in respect of that period.

343. In the cases of Mr Lewis and the remaining underlying plaintiffs, they were all exposed after the partnership ceased. To the extent that it was asbestos insulation product sourced from Hardie, that was Hardie-B.I. product. To the extent that the exposure to Hardie sourced asbestos product was to building product, that exposure was to James Hardie and not Hardie-B.I. asbestos. To the extent that exposure to Hardie product diminished after the dissolution of the partnership, that has already been factored in in my assessment of the relative extent of exposure as between James Hardie and the Dockyard.

344. I deal with the individual cases.

Mr Lewis

345. Amaca cannot recover in respect of Mr Lewis’s employment before the partnership period. That represents approximately one third of his total employment. I propose taking a somewhat simplistic approach and allowing Amaca to recover in respect of the remaining two thirds of the period of Mr Lewis’s employment. Accordingly, it will be entitled to recover 50% of those two thirds.

346. Accordingly, Amaca should recover from CSR 50% of two thirds of the amount it will be required to pay to the State.

Mr Pajkovic

347. Mr Pajkovic’s employment was from 1965 to 1977.

348. Mr Pajkovic’s exposure included exposure to some building products, being James Hardie and not Hardie-B.I. products. The evidence relating to that warrants lowering by a small margin Amaca’s entitlement to what would otherwise be a 50% recovery.

349. Amaca should recover from CSR 45% of the amount it will be required to contribute to the State.

Mr Daly

350. Mr Daly’s employment was from 9 October 1968 to 20 March 1970, and from 14 August 1972 to 30 June 1979.

351. Of the Hardie asbestos to which Mr Daly was exposed, the vast bulk of it was insulation material though there was some not insignificant exposure to building products. It is appropriate for this reason to reduce the 50% that Amaca would otherwise be entitled to recover from CSR.

352. Amaca should recover 40% of the amount it will be required to contribute to the State.

Mr Allars

353. Mr Allars’s employment was from 26 June 1969 to 22 September 1970, 8 February 1971 to 10 July 1973 and 24 April 1974 until, relevantly, 1979. His exposure was essentially to insulation products.

354. Amaca is entitled to recover 50% of the amount it will be required to contribute to the State.

Mr Bennett

355. Mr Bennett’s period of employment was from 14 December 1970 to 11 August 1977. His exposure was essentially to insulation products.

356. Amaca should recover from CSR 50% of the amount it will be required to contribute to the State.

Mr Smith

357. Mr Smith’s period of employment was from 5 December 1973 to 16 November 1977. His exposure was on repair work and essentially to insulation products.

358. Amaca should recover 50% of the amount it will be required to contribute to the State.

Mr Payne

359. Mr Payne’s periods of employment were from 7 August 1972 to 24 August 1977 and from 8 April 1980 to 14 August 1980.

360. In this first period of employment, Mr Payne had exposure both to insulation and building products with the insulation products comprising the bulk of his exposure.

361. The second period of employment was short. The exposure was to building products which were not Hardie-B.I. products. There was some exposure likely to both insulation and building products in ship repair work, but the evidence on it suggests it was minor.

362. To accommodate the exposure to building products in both periods of employment, some reduction needs to be made to what would otherwise be Amaca’s right to recover 50%.

363. Amaca should recover 40% of the amount it will be required to contribute to the State.

Rulings and directions

Rulings

364. In the State’s claims against Amaca, I rule that the liability those parties are to bear is to be borne between them as follows:

1. in the case of Mr Derepas, the State 75%, Amaca 25%;

2. in the case of Mr Lewis, the State 60%, Amaca 40%;

3. in the case of Mr Pajkovic, the State 65%, Amaca 35%;

4. in the case of Mr Daly, the State 70%, Amaca 30%;

5. in the case of Mr Allars, the State 65%, Amaca 35%;

6. in the case of Mr Bennett, the State 70%, Amaca 30%;

7. in the case of Mr Smith, the State 90%, Amaca 10%;

8. in the case of Mr Payne, the State 65%, Amaca 35%.

365. In Amaca’s claim against CSR, I rule that the amount Amaca is entitled to recover from CSR is represented by the total of the following:

1. in the case of Mr Lewis, 50% of two thirds of the amount Amaca is required to pay to the State;

2. in the case of Mr Pajkovic, 45% of the amount Amaca is required to pay to the State;

3. in the case of Mr Daly, 40% of the amount Amaca is required to pay to the State;

4. in the case of Mr Allars, 50% of the amount Amaca is required to pay to the State;

5. in the case of Mr Bennett, 50% of the amount Amaca is required to pay to the State;

6. in the case of Mr Smith, 50% of the amount Amaca is required to pay to the State

7. in the case of Mr Payne, 40% of the amount Amaca is required to pay to the State.

Directions

366. I direct the parties to bring in short minutes of order reflecting my rulings on 9 June 2016. Such other directions as needed to be made on that date.

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Amendments

30 August 2016 - added CSR Limited to party field in coversheet

Decision last updated: 30 August 2016