Swiatek v Amaca Pty Ltd
[2016] VSC 808
•21 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
DUST DISEASES LIST
S CI 2015 05749
| HENRY SWIATEK | Plaintiff |
| v | |
| AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD) | First Defendant |
| and | |
| SELTSAM PTY LIMITED | Second Defendant |
| and | |
| CSR LIMITED | Third Defendant |
| and | |
| FOLETCO LIMITED | Fourth Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5, 6 December 2016 |
DATE OF JUDGMENT: | 21 December 2016 |
CASE MAY BE CITED AS: | Swiatek v Amaca Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 808 |
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TORTS – Negligence – Contribution proceedings between defendants – Plaintiff’s claim for damages for mesothelioma caused by inhalation of asbestos fibres – Plaintiff’s claim and contribution proceedings against fourth defendant settled – Agreement that there was no difference in negligence of first, second and third defendants – Operation by first, second and third defendants of a factory producing asbestos products – Proportionate contribution of the activities of each defendant to the plaintiff’s injury – Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the First Defendant | Mr J Ruskin QC with | DLA Piper |
| For the Second and Third Defendants For the Fourth Defendant | Mr T Casey QC with No appearance | Colin Biggers and Paisley |
HIS HONOUR:
Introduction
In this proceeding, the plaintiff claimed damages for the injury malignant mesothelioma, which he suffered by reason of inhalation of asbestos fibres. The plaintiff’s case against the first, second and third defendants related to exposure to fibres at and emanating from a factory in McIntyre Road, Sunshine (‘the Wunderlich factory’), in the period 1960 to 1984. The plaintiff’s case against the fourth defendant related to workplace exposure to inhalation of asbestos fibres during employment for a period of some months commencing in late 1977.
On about 4 May 2016 the plaintiff’s claim against the defendants settled. Some time prior to the commencement of the trial on 5 December, the contribution of the fourth defendant was settled at 12.5 per cent.
What then remained in dispute at trial was a claim for contribution between the first defendant, Amaca Pty Limited (‘Amaca’) on the one hand and the second and third defendants, Seltsam Pty Limited/CSR Limited (‘Seltsam/CSR’) on the other. For the purposes of the trial, the parties agreed there was no difference in the negligence of the first, second and third defendants. In other words, there was no issue as to the first element relevant to apportionment identified by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd, that is ‘the degree of departure from the standard of care of the reasonable man’ or, culpability.[1] What remained was an assessment of the relative importance of the acts of the remaining defendants in causing the damage suffered by the plaintiff or, as it was put by counsel for the first defendant, the ‘causal potency’ of the negligence of each defendant. It was agreed that for the purposes of the assessment of contribution the second and third defendants should be treated as one.
[1](1985) 59 ALR 529 (‘Podrebersek’), 532–533 (citations omitted).
Agreed background
The plaintiff was born on 28 July 1960. Between 1960 and 1985 he lived at 45 Clayton Street, Sunshine North.
The plaintiff attended Albion Primary School between 1965 and 1972, and Sunshine High School between 1973 and 1977. For about six months in 1977-78 the plaintiff was employed by the fourth defendant in a business then called Prestige Dyecraft. Exposure of the plaintiff to asbestos fibres at that workplace is the basis for contribution by the fourth defendant of 12.5% of the plaintiff’s agreed damages. He then worked for a few months for another company called Worsted Finishers. Both of these businesses were located in Braybrook. The plaintiff obtained his driver’s licence at the age of 18 years and then went to work for TAA at Tullamarine.
From 1960 through to August 1977 the second and third defendants operated the Wunderlich factory, producing profile and flat asbestos sheeting (the ‘Seltsam/CSR years’). From August 1977 until November 1982 the Wunderlich factory was operated by the first defendant (the ‘Amaca years’). The Wunderlich factory was located approximately 300 metres south of the plaintiff’s residence on Clayton Street. The primary school that he attended was approximately 800 metres north of the factory, and the high school was approximately 800 metres to the east of the factory. Asbestos fibres were dispersed from the factory to the surrounding area of Sunshine North, and Mr Swiatek was exposed to inhalation of fibres by being in the area. In addition, during his primary school years, Mr Swiatek played near a pond located at the rear of the Wunderlich factory in an area where asbestos waste was dumped, and on those occasions he was exposed to asbestos fibres from the waste.
Evidence
The evidence at trial consisted of:
(a)transcript of evidence given by the plaintiff on 17 May 2016;
(b)viva voce evidence given at trial by Mr Silvio Comin, who was employed at the Wunderlich factory from around 1961 or 1962 to when it closed down in 1982, and an occupational and environmental health consultant, Michael Kottek; and
(c)various documents tendered by the parties.
The plaintiff
On a Melways map of North Sunshine tendered into evidence, Mr Swiatek identified the Wunderlich factory, which runs west from McIntyre Road to a railway line, and Clayton Street, which is located a short distance north of the Wunderlich factory on the west side of the railway line. Mr Swiatek said that he lived at 45 Clayton Street from 1960 to 1985. North of Clayton Street was Albion North Primary School, which Mr Swiatek said he attended from 1965. He said that he attended Sunshine High School, which is located to the east of the Wunderlich factory, from 1973 to 1977. There was an underpass at the east end of Clayton Street, leading under the railway line to Barwon Avenue, then to McIntyre Road. Mr Swiatek walked this way to go to Sunshine High School. McIntyre Road had a number of shops that he would visit quite regularly while in primary school.
In respect of his actually having gone onto the site of the Wunderlich factory, Mr Swiatek said:
The actual factory site, we discovered there was a pond there. I say we, meaning the local kids, and the pond was a fascination because it had frogs and tadpoles, and for a young fellow, that’s just marvellous.
He said that this area was easily accessible by just walking through two of the fence uprights. The pond seemed to be full of offcuts of cement sheet. He recalled the ground being all white with tyre marks in it, and that the white stuff was piled up in mounds, and extended as far as he could see. What was lying flat on the ground seemed very loose. The mounds appeared to have been wet at some time and they were more compact. He said that on weekends they would encounter the bigger kids who were riding their bikes on the white stuff, using the mounds as jumps. Mr Swiatek said he was probably about seven when he first visited the pond. He said that initially, after they found the pond, he and other kids would be there on a regular basis, probably about three nights a week or so. They continued going to the pond probably for three or four years. He said that the last time he went onto the site looking for tadpoles was probably towards the end of primary school or the beginning of high school, so 1972 or 1973.
Mr Swiatek identified a paddock across the railway line from the rear of the Wunderlich factory, and said that between 1965 and 1975 he would go there maybe twice a week to play soccer with other children, and that he would go for an entire afternoon. He continued having the odd game of soccer there until 1979.
In cross-examination, Mr Swiatek confirmed that in his primary school years he stayed in the neighbourhood, relatively close to home. He also played along the railway tracks, and on occasion rode his bike on the paddock where he played soccer and along Gilmour Road, which runs just to the west along the railway line. He remembered dust being stirred up, in the paddock and along Gilmour Road, with a south-westerly change. It was visible dust, he said, and you would get grit in your eyes and on your clothes. When asked whether there was waste on the paddock or only at the rear of the Wunderlich factory site, Mr Swiatek said his recollection was just of seeing waste around the pond area on the Wunderlich site.
During his high school years he went close to the Wunderlich factory walking to and from school, and when running, which he did regularly. He continued playing soccer in the paddock on the odd occasion but less frequently than when in primary school. He agreed that in his primary school years he spent far more time at and around the area of the factory than in his high school years.
Mr Swiatek said that after he left school his first job was for Prestige Dyecraft, which was located in Ballarat Road, Braybrook, a few kilometres away from Clayton Street and the Wunderlich factory. He worked there for about six months. Next he worked for a short time at Worsted Finishers, which was located on the same block as Prestige Dyecraft. He said that from the time he started working he was spending less time in the area around Clayton Street and the Wunderlich factory.
Silvio Comin
Mr Comin said that he started working at the Wunderlich factory in around 1961 or 1962, and worked there as a maintenance fitter until the factory closed down in 1982. He maintained three machines, two of which made flat cement sheets, and one of which made corrugated cement sheets. There were two other machines, a ‘panel sizer’ which cut the cement sheets to a particular size, and a ‘cover strip machine’ which put a bevel on the sheets. The latter was a very dusty machine. Near the panel sizer and cover strip machines there was an extractor to extract the dust coming from those two machines. It had a large fan and a water spray so that the extracted dust would become a sludge which ran down the bottom to the scrubber and would then go into a big bin. Mr Comin said that when the water spray jets were working there was no dust going out. On occasion, the jets would get blocked. If this occurred in the afternoon or at night, the machines would keep working and nobody would notice the dust going straight outside to the atmosphere. If you were running three shifts, the spray jets probably got blocked once or twice every couple of months, he said.
Mr Comin said that a forklift was used to empty the bins of sludge from the extractor to a big area down at the back of the premises. The sludge dumped at the back of the factory would then dry out. You had to wear sunglasses because the waste was white and very glary. When the wind blew, the dust blew everywhere. At one point, the waste was levelled off, and part of the back area was covered with six inches of topsoil and planted grass. Mr Comin was shown aerial photographs from 1974 and 1979, and said that in the later photograph you could see where the topsoil and grass were put in.
Mr Comin said there was a dam at the rear of the premises. He was shown a photograph of the Wunderlich factory and he identified the dam. It was clear that he was talking about the same feature identified by the plaintiff as the tadpole pond. There was a lot of water running from the factory through an open channel which would run back to the dam, then some of the water would be pumped back into the factory for reuse. He recalled occasions when the dam was dredged and sludge was taken away in trucks. The sludge from the bins was dumped on the ground, not into the dam. The sludge in the dam came from the water from the machines, which carried in it sand, cement and asbestos. He thought that carting sludge away in trucks started a couple of years before James Hardie took over, in the mid-1970s, and continued thereafter. It was done every couple of months.
Mr Comin said there were also offcuts or seconds, bits and pieces of dry cement sheeting, that were dumped out the back of the factory. He said that there was originally a quarry at the back which was filled up with offcuts. The offcuts were just dumped in the area which was lower and then run over by a dozer to level it off.
Michael Harvey Kottek
Mr Kottek is an occupational and environmental health consultant. He gave evidence that he had undertaken some study of asbestos in the McIntyre Road and Clayton Street area of Sunshine North. He collected dust from the ceiling spaces of houses in Barwon Avenue and Cranbourne Avenue. The Melways map of Sunshine North demonstrates that Barwon Avenue and Cranbourne Avenue are both located approximately the same distance from the Wunderlich factory as Clayton Street. In each case, asbestos was detected at non-trivial levels once the dust was analysed. He said that this was likely to be asbestos disbursed from the Wunderlich factory.
Mr Kottek said that he had been given the transcript of the plaintiff’s evidence. He said that in his primary school years the plaintiff had been exposed:
When he is on the site around the tadpole area, where these bigger kids are kicking up dust with their bikes and when he is kicking a football around on the reserve.
He said that when the plaintiff was on the Wunderlich factory site around the tadpole pond, with dust being kicked up, there were going to be far more asbestos fibres in the air in his breathing zone than when he was at home or somewhere else more remote from the site. There would have been some exposure when Mr Swiatek was a little boy being pushed around in his pusher right through to when he was walking to high school, but this exposure to inhalation of asbestos fibres would have been far less than his exposure when he was on site at the tadpole pond. Mr Kottek’s understanding was that during his high school years, Mr Swiatek was spending less time in close proximity to the Wunderlich factory than during his primary school years.
Mr Kottek gave evidence about the extractor fan described by Mr Comin as being used to collect the dust from the ‘panel sizer’ and ‘cover strip’ machines. He said that when the extractor was working, there would still have been non-trivial numbers of asbestos fibres dispersed into the atmosphere. He said that, whilst he was not certain about which was the most prominent source of asbestos emissions from the Wunderlich factory, he suspected that the emissions from the extractor were ‘probably more significant’ than emissions by wind erosion raising airborne fibres from the waste area at the rear of the factory. The extractor emissions stopped in 1982, when the factory closed down. The emissions from the asbestos dumped at the rear of the factory would have reduced as the waste area was capped and vegetated. Mr Kottek said that while production was still going on at the Wunderlich factory, Mr Swiatek would have been exposed to asbestos fibres emanating from the factory, but it would have been less in later years when he was off working.
Mr Kottek was taken to extracts of James Hardie & Coy minutes of meetings dated 1 March and 3 May 1979 that related to covering part of the area at the rear of the Wunderlich factory with topsoil and grass. He said that comparing aerial photographs from 1974 to 1979, one could see in the later photograph that there was a lot more vegetation, particularly in the northern area of the site, and it looked a lot more orderly. The 1982 photograph showed that the site was almost completely vegetated. The 1986 photograph showed that some other sort of work had been going on and that the area was more or less completely vegetated. Mr Kottek said that in 1984 there was an environmental audit carried out at the site which showed that there had been capping of the asbestos waste with soil and grass which covered pretty much all of the site. He said that as these changes occurred there would have been, over time, a significant reduction in the amount of airborne asbestos fibres raised from the site by wind erosion, and that by 1983 or 1984 the emission of asbestos fibres into the atmosphere from that source was ‘trivial’ compared to earlier periods.
Mr Kottek gave evidence about the use of amosite and chrysotile asbestos at the Wunderlich factory over the relevant years. He stated that amosite is approximately 100 times more potent than chrysotile. During the whole of the period from 1960 to 1982, the Wunderlich factory produced both profile sheets and flat sheets. Mr Kottek said he had seen some of the product information sheets for the Wunderlich factory. Amosite was used in the production of profile sheets from 1960 to 1982. According to a product sheet from 1977, amosite was used in the production of the flat sheets produced by Seltsam/CSR (known as ‘Wunderflex’). After Amaca took over the factory in August 1977, the flat sheet product was named ‘Hardiflex’. The product information sheets showed that amosite was not used in the production of Hardiflex.
Mr Kottek said that he took into account factors such as direct exposure from the plaintiff going onto the site, periods when he was more remote from the site, the work undertaken to cover and vegetate the site, and the effect of the reduced use of amosite, to conclude that in each of the Amaca years from 1977 to 1982 the intensity of the plaintiff’s exposure was about a quarter of what it had been in each of the Seltsam/CSR years from 1960 to 1977. Mr Kottek allowed one unit of exposure for each of the seventeen Seltsam/CSR years, and one quarter of a unit for each of the Amaca years. On this basis, Amaca was responsible for 1.25 units of total exposure out of 18.25 units. Mr Kottek said that based on these assumptions, around seven per cent of Mr Swiatek’s exposure would have been attributable to the Amaca years.
In cross-examination, Mr Kottek was challenged on the basis of the limited history of attendance at the tadpole pond which he had obtained from Mr Swiatek. He said he had interviewed Mr Swiatek for the purpose of the preparation of his first report. He agreed that it was important that he obtain from Mr Swiatek an accurate and detailed history of his exposure. He confirmed that the notes of that interview did not record the history obtained from Mr Swiatek of going to the tadpole pond at the Wunderlich factory. However, Mr Kottek’s first report did include a history that on at least one occasion, Mr Swiatek went to the tadpole pond, but that Mr Swiatek did not otherwise recall playing in the area. Mr Kottek said that he accepted, because he had no reason not to, Mr Swiatek’s later recollections that he went to the tadpole pond regularly (which Mr Kottek learned about after having read the transcript of Mr Swiatek’s evidence).
Mr Kottek agreed that he had no direct figures as to the production of the flat and profile product at the Wunderlich factory. In relation to the proportion of product which was flat sheeting and the proportion that was profile, Mr Kottek noted Mr Comin’s evidence that there were two machines producing flat sheets and one producing profile/corrugated sheeting.
Mr Kottek said he was not exactly sure of the time period during which James Hardie was involved in reconditioning the factory site for sale, though he believed it would have been from the time production stopped until it was sold, that is, 1982 to 1984. All the plant and equipment was stripped out of the factory and he believed that there was some ‘sandblasting’ of the interior of the factory to remove any residual dust. There would have been some emissions during the clean-up process, which he imagined would have gone on for months at least. Mr Kottek said that there was no reason to think that the emissions in this period would have been at anywhere near the level they were at when the factory was in operation.
Mr Kottek was asked about emissions resulting from the removal of asbestos waste from the rear of the Wunderlich factory. He said that the quantity of emissions from the removal of waste would depend on whether the sludge was still reasonably wet or whether it was dry. He agreed that the waste removal process would have resulted in some emissions from the Wunderlich factory. The process commenced with the removal of production waste from around January 1978, and then continued with tidying up the Wunderlich factory after production ceased. He said that while the process of depositing waste at the tip can be dusty, it was just a short-term process and occurred around 1 km ‘as the crow flies’ away from the site, and you would expect there would be much more exposure from the extractor and from the bare ground at the back of the factory site with wind blowing on it. Mr Kottek said that the clean-up work occurred during standard working hours when the plaintiff was at work.
Documents
A series of three aerial photographs of the Wunderlich factory, taken in 1964, 1968 and 1979, depict the very large white area at the back of the factory where asbestos was dumped. The pond/dam is shown at the very rear of the premises, close to the railway line. The paddock on which the plaintiff played soccer and occasionally rode his bike is seen across the railway line to the west and north. In the 1979 photograph, part of the asbestos waste has been covered with topsoil and grass. There are two relevant entries in the James Hardie & Coy minutes of meetings:
1/3/1979Approved laying of 6 inches of top soil and grassing 1.5 acres of AC fill area at back of Sunshine property, to conform with requirements of Commission of Public Health and to enhance existing 6.3 acres grassed area.
3/5/1979Approved levelling and covering of 10,000 sq metres of factory waste dump area at Sunshine. Current government regulations require that all asbestos bearing wastes be covered with not less than 10 centimetres of earth.
Photographs from the Crown Lands Department taken on various dates from 1951 to 1989 depict incremental covering of the site with topsoil and grass from 1979.
Product information sheets show that Hardiflex, the flat sheet product produced by Amaca after it took over the factory in 1977, contained no amosite, but that amosite continued to be used in the production of profile products and Telecom pits. Product information sheets for the Seltsam/CSR years show that Amosite was also used in Wunderflex (the flat sheets produced by Seltsam/CSR during the period of its operation of the factory).
Submissions of the parties
First defendant
Counsel submitted that the attack made on Mr Kottek on the basis of the limited history he initially obtained of the attendance by Mr Swiatek at the tadpole pond was misplaced for three reasons:
a)At the time he was preparing his first report, Mr Kottek was not concentrating on the differing exposures between defendants;
b)The plaintiff was not challenged about the tadpole pond evidence, even though at that time the second defendant had the report of Mr Kottek which contained the different history;
c)Mr Kottek’s opinion as to the share of responsibility of Amaca for the plaintiff’s exposure to asbestos fibres was based on the history of Mr Kottek’s first report of attendance by Mr Swiatek at the tadpole pond ‘on at least one occasion’. The history of more frequent attendance given by Mr Swiatek in his evidence would strengthen Mr Kottek’s opinion as to the limited responsibility of Amaca.
Counsel for the first defendant noted that Mr Swiatek was cross-examined by counsel for each defendant, and his evidence as to the pattern of his activities during the period 1960 to 1984 was largely unchallenged. This included Mr Swiatek’s evidence as to the frequency of his attendance at the tadpole pond at the Wunderlich factory. The unchallenged evidence of the plaintiff should be accepted.
Counsel for the first defendant submitted that the extent and potency of exposure to asbestos dust was less during the Amaca years than the Seltsam/CSR years for the following reasons:
(a)during his primary school years the plaintiff was regularly on site at the factory premises playing with friends, during which time he would have had direct and high-potency exposure to inhalation of asbestos fibres;
(b)Amosite was used in the production of flat sheets at the Wunderlich factory during the Seltsam/CSR years, but not during the Amaca years. This meant that there was a significant reduction in the use of amosite at the Wunderlich factory in the Amaca years. The other form of asbestos used at the Wunderlich factor was chrysotile. Amosite is approximately 100 times more potent than chrysotile;
(c)from about 1978 steps were taken to cover asbestos waste dumped behind the factory at the rear of the premises with topsoil and vegetation. As a result, dispersal of asbestos fibres to surrounding areas would have been reduced;
(d)from his eighteenth birthday the plaintiff was working at TAA in Tullamarine. His indirect exposure was reduced because he was spending less time in Sunshine North in the vicinity of the Wunderlich factory; and
(e)production ceased at the Wunderlich factory in late 1982. There would have been minimal dispersal of asbestos fibres from that time until the sale of the premises in 1984.
Counsel for the first defendant submitted that the evidence established that the exposure of the plaintiff to inhalation of asbestos fibres at or emanating from the Wunderlich factory was much less in the years 1977 to 1982, and immaterial after the cessation of production in 1982. An additional factor was that after Amaca took over the factory in August 1977, the use of amosite, a far more potent form of asbestos, was reduced. On the basis of that evidence and the opinion of Mr Kottek, it was submitted that the first defendant should be responsible for between 7.5 per cent and 12.5 per cent of the total settlement.
Second and third defendants
Counsel for the second and third defendants submitted that the calculation of exposure performed by occupational hygienist Mr Kottek, on which the first defendant relied, was flawed for the following reasons:
(a)the frequency of attendance by the plaintiff at the tadpole pond at the Wunderlich factory is likely to have been overstated in the plaintiff’s evidence. Mr Kottek placed substantial reliance on this evidence to calculate the proportion of exposure during the Seltsam/CSR years and the Amaca years;
(b)Mr Kottek did not take proper account of the pattern of exposure over time - for instance, reduced exposure during preschool years and high school years. Rather, Mr Kottek assumed an even pattern of exposure over the whole of the Seltsam/CSR years;
(c)Mr Kottek assumed that there was no further relevant exposure once production ceased in late 1982. The evidence establishes the likelihood of continued exposure until the factory premises was sold in 1984;
(d)Mr Kottek reported a reduced output of product containing amosite during the Amaca years. However, the evidence did not satisfactorily establish a reduced or relevantly reduced use of amosite in the Amaca years by comparison to the Seltsam/CSR years.
Counsel for the second and third defendants accepted that there was more significant exposure of the plaintiff to inhalation of asbestos fibres in the Seltsam/CSR years than in the Amaca years. It was submitted, however, that the environmental exposure in many of the Seltsam/CSR years would have been much the same as in the Amaca years given that they kept the same machines, the process of producing the asbestos products remained the same, and the practice of extracting the dust through the extractor and converting it to sludge which was later dumped also remained the same; that the plaintiff attended less frequently at the tadpole pond at the Wunderlich factory than Mr Kottek ultimately assumed; that there was no rational analysis by Mr Kottek to support his percentage apportionment between the Seltsam/CSR years and the Amaca years; and that there should be some allowance for exposure which continued after the cessation of production at the factory in 1982 through until at least 1984.
It was submitted that exposure caused by the first defendant was likely to be at least double that caused by the fourth defendant, and on that basis the contribution of the first defendant to the plaintiff’s damages should be at least 25 per cent. This would leave the second and third defendants to contribute 62.5 per cent, which was greater than the Amaca contribution by a factor of 2.5, and greater than the fourth defendant’s contribution by a factor of 5.
Analysis
The first, second and third defendants agree that contribution should be assessed on the basis of the quantum of exposure of the plaintiff to the inhalation of asbestos fibres, taking account of the fact that amosite is approximately 100 times more potent than other asbestos.
The relevant period is agreed to be from the plaintiff’s birth on 28 July 1960 to at least the date on which production was ceased at the Wunderlich factory in November 1982. Counsel for the second and third defendants submit that the period should extend to about early to mid-1984 to take into account the dispersal of asbestos fibres into the atmosphere associated with rehabilitation and clean up at the Wunderlich factory after production ceased.
There was no real challenge to the plaintiff when he gave evidence about his activities in the years 1960 to 1984, and his attendance at the tadpole pond from about age seven. I conclude that I should accept the evidence given by the plaintiff. Mr Kottek took that evidence into account in expressing his view as to the proportionate responsibility of the defendants for inhalation of asbestos fibres by the plaintiff.
During the whole of the relevant period, the plaintiff lived in Clayton Street, North Sunshine, approximately 300 metres north of the Wunderlich factory. The inhalation by the plaintiff of asbestos fibres at or emanating from the Wunderlich factory from time to time will have depended upon numerous variables and is not capable of precise calculation. There are a number of factors which I conclude are likely to have impacted the extent of the exposure of the plaintiff to the inhalation of asbestos fibres during the period 1960 to 1984:
(a) I accept the evidence of Mr Kottek as to the analysis he performed of dust from ceiling spaces of houses in Cranbourne Avenue and Barwon Avenue. Asbestos fibres from the Wunderlich factory were disbursed into the atmosphere at least as far as those houses and the exposure of the plaintiff while at home in Clayton Street was more than trivial.
(b) Up to the end of his school years the plaintiff spent most of his time in Sunshine North. During his primary school years he spent a lot of time playing in the paddock over the railway line to the west and north of the Wunderlich factory premises. When at high school he walked or ran to school from Clayton Street and for that purpose went very close to the Wunderlich factory. After school he regularly ran around Sunshine North. He lived at 45 Clayton Street until 1985. I conclude that from the date of his birth in 1960, the plaintiff was exposed to inhalation of asbestos fibres as a consequence of being in Sunshine North in close proximity to the Wunderlich factory.
(c) I accept the evidence of Mr Kottek that the level of exposure of the plaintiff to inhalation of asbestos fibres was significantly greater on the occasions he attended at the tadpole pond at the Wunderlich factory. I conclude that Mr Swiatek first went to the tadpole pond when he was about seven years old, that initially he went to the pond approximately three times per week, that he continued going to the pond for about three or four years, and that the frequency of attendance at the pond probably fluctuated and gradually reduced over that period.
(d) The use of amosite at the Wunderlich factory reduced from August 1977 when Amaca took over the factory. From that time, amosite was no longer used in the production of the flat sheets. The most significant aspect of this change in terms of exposure of the plaintiff was that the panel sizer and cover strip machines were only used to cut the flat sheets. From August 1977, fibres expelled to the atmosphere from the extractor servicing the panel sizer and cover strip machines did not include amosite. I conclude that the plaintiff was less exposed to inhalation of amosite asbestos fibres emanating from the Wunderlich factory after 1977 because of this change. However, some level of exposure to amosite continued from asbestos waste dumped to the rear of the Wunderlich factory.
(e) I conclude that dispersal of asbestos fibres from dumped waste at the rear of the factory premises reduced from 1979 because areas of waste were covered with topsoil and grass, and that this led to some reduction in exposure of the plaintiff to inhalation of asbestos fibres.
(f) I conclude that there continued to be some relevant exposure of the plaintiff to inhalation of asbestos fibres emanating from the Wunderlich factory as a consequence of clean-up work and removal of waste after production ceased in 1982 through to early 1984, but that this was at a significantly lower level than in earlier years.
(g) I conclude that from the time he commenced employment in late 1977, the level of exposure of the plaintiff from the Wunderlich factory was reduced because of the amount of time he spent working at places more remote from the Wunderlich factory.
I accept the submission of counsel for the second and third defendants that there is no process of reasoning in the evidence of Mr Kottek which supports the precise mathematical calculation undertaken by him as to the extent of exposure in the Seltsam/CSR years by comparison to the extent of exposure in the Amaca years. Mr Kottek’s evidence is relevant as a guide, but not as a mathematical calculation.
There was a seventeen year period of asbestos exposure during the Seltsam/CSR years from 1960 to August 1977. Taking some account of continued exposure at a significantly reduced level after production ceased in November 1982, it is reasonable to allow an Amaca exposure period of six years. Simply on a time-of-exposure basis, that would result in a contribution by Amaca of 26 per cent.
The most significant factor which reduces Amaca’s relative contribution is the direct exposure of the plaintiff when at the tadpole pond. There should also be some account taken of the decreased use of amosite, though this cannot be quantified; the covering of waste at the rear of the factory premises; the transfer of waste from the factory premises in the period from about 1978 to 1984; and the increased time spent by the plaintiff at places more remote from the Wunderlich factory from 1977. The result is that Mr Swiatek’s exposure was at its greatest in the three or four year period of attendance at the tadpole pond, somewhat greater in the other years between 1960 and 1977, and somewhat less and gradually decreasing in the years 1977 to 1984.
The approach to the task of apportionment is described in Podrebersek by Gibbs CJ, Mason, Wilson, Brennan and Deane JJ as follows:
A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’.[2]
Applying this approach and taking account of these factors, I conclude that Amaca’s contribution to the exposure of the plaintiff to asbestos fibres at or emanating from the Wunderlich factory was 12 per cent. The separate exposure of the plaintiff in his employment with the fourth defendant has been settled at 12.5 per cent. Twelve per cent of the balance of 87.5 per cent is 10.5 per cent.
[2](1985) 59 ALR 529, 532, quoting British Fame (Owners) v Macgregor (Owners) [1943] AC 197, 201.
I will therefore order that the contribution of each of Amaca and Seltsam/CSR is:
Amaca10.5 per cent
Seltsam/CSR 77 per cent
Total87.5 per cent
I will hear from the parties as to costs and the appropriate form of orders.
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