Zwiersen v Field & Hall Ltd
[2016] VSC 16
•29 January 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
DUST DISEASES LIST
S CI 2015 03848
| MAARTEN ZWIERSEN | Plaintiff |
| v | |
| FIELD & HALL PTY LIMITED AEC CONTRACTING (VIC) PTY LTD AMACA PTY LIMITED CSR LIMITED | First Defendant Second Defendant Third Defendant Fourth Defendant |
---
JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10, 11 and 14 December 2015 and 25 January 2016 |
DATE OF JUDGMENT: | 29 January 2016 |
CASE MAY BE CITED AS: | Zwiersen v Field & Hall Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 16 |
---
NEGLIGENCE – Plaintiff contracted mesothelioma – Exposure to asbestos dust and fibre in the course of employment – Each of the first, third and fourth defendants seek contribution against the other – Principles of contribution and apportionment between the employer and the manufacturer/supplier of asbestos products – Wrongs Act 1958 pt IV – Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 – Jones v Southern Grampians Shire Council & Anor [2012] VSC 485 – Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the First Defendant For the Second Defendant For the Third Defendant For the Fourth Defendant | Mr N Murdoch QC with No appearance Mr J Ruskin QC with Mr C J Blanden QC with | Minter Ellison DLA Piper Australia Colin Biggers & Paisley |
HIS HONOUR:
Introduction
Maarten Zwiersen (the ‘plaintiff’) claimed damages for the contraction of mesothelioma due to asbestos exposure in the course of his employment. The plaintiff was an electrician and he claimed he was negligently exposed to asbestos dust and fibre in the course of his employment as a consequence of working in areas such as boiler rooms and service tunnels where other workers with different employers, pipe laggers, were working with asbestos lagging including sectional lagging material. The plaintiff described the conditions created by the lagging work that would go on for weeks at a time as follows:[1]
It was everywhere, floating around like snow. A lot of the work was done overhead, if they cut overhead to try and make things all the dust and stuff would fall to the ground.
[1]Zwiersen, Transcript 38.23 - 38.30.
In his Statement of Claim, the plaintiff alleged he worked with and was exposed to asbestos as described above when employed with Field and Hall Pty Limited (the ‘first defendant’) from 1964 to 1971 and again from 1976 to 1981, and with AEC Contracting (Vic) Pty Ltd (the ‘second defendant’) from 1972 to 1976.[2]
[2]The second defendant took no part in the trial. I informed the jury prior to the commencement of the plaintiff’s trial that the second defendant is no longer registered.
The plaintiff claims against Amaca Pty Limited (formerly known as James Hardie and Coy Pty Ltd) (the ‘third defendant’) and CSR Limited (the ‘fourth defendant’) that the asbestos insulation used by the laggers that created the dusty conditions described above was either James Hardie asbestos insulation manufactured prior to 1964 or asbestos insulation manufactured by a partnership between James Hardie and CSR that existed between 1964 and 1974.
The plaintiff claimed that the third, and third and fourth defendant, when in partnership, were negligent as a consequence of failing to warn users of their insulation product, of the serious risk to health as a consequence of the inhalation of asbestos dust and fibre emanating from the use of their products. There is no evidence that the third or fourth defendants placed any form of warning on their insulation products.
All defendants conceded a breach of duty of care to the plaintiff upon the plaintiff establishing he was exposed to asbestos in the course of his employment. It is now not contested that during the various periods of employment outlined above, the plaintiff was exposed to asbestos dust and fibre in the course of his employment.
The plaintiff settled his claim against the first, third and fourth defendants on 11 December 2015, the second day of trial, which left these contribution proceedings. Each of the first, third and fourth defendants seeks contribution against the other pursuant to Part IV of the Wrongs Act 1958.
On the contribution proceedings, the first defendant called a Ms Anne Robinson, who had been employed by the first defendant as a bookkeeper. Ms Robinson stated that during the course of her employment in 1976, a company Field & Hall Contractors Pty Ltd was incorporated and this company took over the operational side of the business, including all employment, including the employment of the plaintiff. The first defendant remained ‘only on the building side of the business’.[3] As I understand it the first defendant thereafter owned the premises and buildings of the business. Ms Robinson was not cross-examined.
[3]Robinson, Transcript 104.1 - 104.7.
The first defendant contends, and it was not disputed in the contribution proceedings, that its responsibility in terms of employment of the plaintiff was for the period from mid-1964 until January or early 1972.
Use of product
The plaintiff described laggers using sectional lagging in his workplace at various construction sites. He identified from a photo in a Hardie-BI Insulating Materials brochure K-Lite pipe and block insulation.[4] The plaintiff stated that this was the material used ‘all the time’ when he was working at various sites.[5] Laggers also used asbestos powder that was mixed with water in drums and then this mix was applied to wet canvass that had been placed over sectional lagging.[6] The powdered material was delivered to building sites in the same delivery as the sectional lagging.[7]
[4]See PX-1, 13094.
[5]Zwiersen, Transcript 36.17.
[6]Zwiersen, Transcript 44.6 - 44.7.
[7]Zwiersen, Transcript 65.17 - 65.21.
When cross-examined by Mr C J Blanden QC, senior counsel for the fourth defendant, the plaintiff said that the product depicted in the Hardie-BI brochure ‘was the product’[8] that was used on the sites where he worked. When shown a photograph of sectional lagging from a Bradford Insulation brochure,[9] the plaintiff stated that what was depicted in that brochure was not the same lagging as the Hardie-BI insulation lagging that was used when he was working in boiler rooms. The plaintiff was definite in his evidence that he could tell the difference, noting that the Bradford sectional lagging depicted in the Bradford Insulation brochure did not contain asbestos; he said this type of insulation might have been used in the last plant room that he worked in, but it was the Hardie-BI material that he primarily worked with.[10]
[8]Zwiersen, Transcript 67.12.
[9]DX4-1.
[10]Zwiersen, Transcript 68.2 - 68.21; 69.20 - 69.25 and 70.3 - 70.4.
Mr Blanden also cross-examined the plaintiff concerning his work constructing switchboards. This work involved drilling through asbestos already in place, and as I understand it, drilling asbestos backing board. Materials including zelemite were provided to the plaintiff by the first defendant for this work. The plaintiff stated this type of construction was ‘mainly undertaken in the early days of employment’.[11]
[11]Zwiersen, Transcript 73.3.
The partnership
In September 1964, the third defendant entered into an agreement with the fourth defendant to manufacture and distribute thermal insulation products, including K-Lite (the ‘Hardie-BI Partnership’).[12]
[12]DX4-3, Partnership Deed for the Hardie-BI Partnership. ‘Bradford Insulation’ formed part of the Building Materials Division of CSR, see DX4-1, 16.
In a statement tendered by the first defendant,[13] Mr Ron Hinton states that he was appointed Factory Manager of the Camellia factory in New South Wales of the third defendant in 1963 and that in 1964 he was appointed Manager of the Hardie-BI plant in Sydney and worked in that capacity until 1972. Mr Hinton says that the Camellia factory was ‘the only factory in Australia that manufactured Hardie-BI products’.[14] K-Lite insulation, by the mid-1960s, became the major product of the partnership.[15] Mr Hinton, over the period of his tenure as Manager, travelled to Victoria to provide technical assistance concerning the Hardie-BI asbestos insulation products to Victorian customers, including power stations which provides an indication of the size of the production process. Mr Hinton states that ‘when the Hardie-BI partnership ended in 1974, the Hardie-BI factory was also closed. This meant that James Hardie insulation also ceased production’.[16]
[13]DX1-5, Witness Statement of Ron Hinton, 2 June 2014.
[14]DX1-5, 2.
[15]Ibid, 3.
[16]Ibid, 5.
The deed of dissolution of the Hardie-BI Partnership was tendered by the fourth defendant.[17] It is dated 26 June 1974.
[17]DX4-4, Deed of Dissolution for the Hardie-BI Partnership.
Legal principles
Each of the defendants in their submissions referred me to the High Court decision of Podrebersek v Australian Iron and Steel Pty Ltd.[18] Although the judgment concerned the question of contributory negligence, it is apparent the principles involved in the apportionment exercise in such a case are applicable to apportionment of contribution between joint tort feasors. The High Court observed:[19]
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”
…
The making of an apportionment between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
[18](1985) 59 ALR 529.
[19]Ibid, [532]-[533] (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ).
In Jones v Southern Grampians Shire Council & Anor,[20] J Forrest J, in considering the issue of contribution, referred to the judgment of Clarke JA in Macquarie Pathology Services Pty Ltd v Sullivan:[21]
[T]he making of an apportionment involved a comparison of both culpability and of the relative importance of the acts of the parties in causing the damage. To put it another way the court is concerned with considering relative blameworthiness and the relative causal potency of the negligence of each party.
[20][2012] VSC 485.
[21]Ibid, [52] quoting (Unreported, New South Wales Court of Appeal, 28 March 1995), 19.
Responsibility of parties
The first defendant, as employer of the plaintiff, admits it breached the non-delegable duty of care it owed to the plaintiff by its negligence in failing to take reasonable care to prevent the plaintiff being exposed to asbestos dust and fibre during the course of his employment with the plaintiff.
It is important to understand that the term ‘non-delegable’ duty of care does not mean that the content of the duty owed by the employer to the employee is in some way changed or different. In Roads and Traffic Authority of NSW v Dederer,[22] Gummow J stated:
Although the existence of a duty of care owed by the RTA to Mr Dederer was not in dispute, two points must be made about the nature and extent of that obligation. First, duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.
[22](2007) 234 CLR 330, 345 [43].
In the context of this particular case, the non-delegable duty of care owed by the first defendant means that it cannot be relieved of its obligation to take reasonable care of the plaintiff even though the plaintiff’s work was being undertaken in workplaces the first defendant did not control.[23]
[23]See Kondis v State Transport Authority (1984) 154 CLR 672, [694] (Deane J).
There is no evidence in this proceeding to demonstrate that the first defendant carried out any assessment of the risk or considered the risk of its employees, including the plaintiff, being exposed to asbestos in the workplace. There is no evidence of the first defendant’s knowledge of the dangers of inhalation of asbestos dust and fibre during the relevant period 1964 to 1972,[24] or making an inquiry or assessment of the risk over that period. It is relevant to the assessment of the first defendant’s responsibility that the plaintiff’s employment extended over a period of time when the knowledge concerning the dangers of exposure to asbestos was rapidly increasing. As I refer to later in these reasons, Dr James Leigh in his report stated that by 1970 the dangers of asbestos causing mesothelioma was well known in Australia.[25]
[24]Ms Robinson, an office bearer of the first defendant, was called by the first defendant but not asked the question as to the first defendant’s knowledge of the potential dangers of asbestos; Robinson, Transcript 103.16 - 103.17. Nor was she cross-examined on this issue.
[25]See DX1-1 and reasons, [28].
The first defendant was not a ‘small’ employer. Its workforce varied ‘… sometimes it’s down to about a dozen people, and at one stage we had 100 men working there, so it varied all the time’.[26]
[26]Zwiersen, Transcript 60.13 - 60.18.
The Harmful Gases, Vapours, Fumes, Mists, Smokes and Dust Regulations 1945 (the ‘Harmful Gases Regulations’) were tendered in evidence by the fourth defendant.[27] These Regulations cast a statutory obligation on employers to provide a respirator or like respiratory protection apparatus to employees where the concentration of asbestos particles in the atmosphere of a workplace exceeded 5 million particles per cubic foot of air. The fourth defendant also tendered the Regulations Relating to the Precautions to be Taken in Entering into Confined Spaces 1954.[28] These regulations set a similar standard to the Harmful Gases Regulations, but it is unclear whether the definition of ‘confined spaces’ contained in these regulations is applicable to the places of work where the plaintiff worked during his employment with the first defendant. Nevertheless, these regulations, along with the Harmful Gases Regulations, can be said to be part of the regulatory framework highlighting precautions to be taken in the workplace where excessive levels of asbestos dust and fibre were generated. They are regulations of which employees, such as the first defendant, should have been aware. Further, the Victorian Government Gazette of Wednesday 11 July 1956, which declared ‘… asbestos lagging or spraying, asbestos works or factories in which asbestos is used, manipulated, crushed or pulverised’[29] a dangerous trade under the Health Act 1928, are also part of the regulatory framework of which employers in the circumstances of the first defendant should have been aware.
[27]DX4-5.
[28]DX4-6.
[29]DX4-7.
The third defendant and fourth defendant both manufactured and distributed asbestos insulation products. It is apparent from the Hardie-BI brochure tendered in evidence[30] that the manufacturing and distribution process concerning the insulating materials was vast, with technical advice being offered to customers across the country and a ‘continuous research programme’[31] in operation.
[30]PX-1.
[31]Ibid, 13113.
I was invited by Mr N Murdoch QC, senior counsel for the first defendant, to inspect headings on the Third Defendant’s Affidavit of Documents filed 7 December 2015 which demonstrated, he submitted, that the third defendant ‘had access to an enormous amount of material and it employed people like Dr McCullagh, who was the company doctor … It had a library. It was actively engaged in research into the properties of asbestos …’.[32]
[32]Murdoch, Transcript 113.15 - 113.19.
I am wary of relying on headings in the Affidavit of Documents as evidence of knowledge of the dangers of the inhalation of asbestos on the part of the third defendant concerning persons that were not direct end users of the third defendant’s product. This caution is underscored by the failure of the first defendant to tender any document outlined in the Affidavit.
The written submissions on behalf of the third defendant stated:[33]
[33]Written submissions on behalf of the third defendant, 21 January 2016.
17.Each of the third and fourth defendants is a manufacturer/supplier of asbestos and it is fair to conclude, as J Forrest J did in Jones v Southern Grampian Shire Council & Anor,[34] that:
“… the repository of knowledge concerning the dangers of asbestos dust … lay with the manufacturer and distributor of the product. It had actual knowledge of the prospective dangers … a dissemination of the information by [the manufacturer] … would have alerted the [employer] to the problem.”[35]
18.In the circumstances of this case, where the plaintiff’s exposure to asbestos was significantly contributed to by two manufacturers/suppliers of the product in partnership – the Hardie-BI partnership - the responsibility of the employer may not be equal to that of the third and fourth defendants.
[34][2012] VSC 485.
[35]Ibid, [68].
I think this submission realistically sums up the knowledge and responsibility of the defendant manufacturers against that of the defendant employer. The defendant manufacturers relied upon asbestos for the effectiveness of their products. They used massive quantities of it and could indeed be expected to be ‘the repository of knowledge concerning the dangers of asbestos dust’.
The first defendant tendered the report of consultant occupational physician Dr Leigh dated 7 December 2015.[36] Dr Leigh sets out in his curriculum vitae an impressive and lengthy history of his specialist involvement in occupational diseases and public health, with a particular interest in asbestos-related disease. His report details a chronological record of medical and scientific articles detailing the developing recognition of the hazards of asbestos in causing lung disease. I set out his references and commentary concerning some of the articles:
[36]DX1-1.
Merewether and Price (HMSO 1930) clearly showed the dose relationship between risk of asbestosis and asbestos dust exposure and recommended primary dose suppression with use of respirators as a second line defence only. This definitive report was widely reviewed in the early 1930s in various journals, including engineering journals … The report dealt with asbestos insulation products and other asbestos containing products as well as raw asbestos.[37]
An article in Industrial Medicine (Cook, Ind Med 1942;11:193) pointed out the necessity of making physical measurements of dust concentrations of asbestos, rather than relying on sight only, for the 5 million particles per cubic foot level would not necessarily be visible to the naked eye.[38]
…it is probably reasonable to regard the first definitive association of mesothelioma with asbestos as dating from reports in 1959-60 (Wagner … ). These workers reported 33 cases of mesothelioma collected between 1956-1959, all but one with a probable crocidolite exposure. Many had exposure from living near mines rather than working in them. Long latency was recognized.[39]
In 1964 an editorial in the British Medical Journal (25 July 1964) drew attention to the occurrence of mesothelioma at low exposures and did not distinguish between the hazards of different fibre types. It concluded that “all exposure to asbestos dust should be considered as hazardous, and supervision should be extended to insulation workers in ships, factories, and domestic buildings who may be intermittently but nevertheless heavily exposed to asbestos dust”.[40]
In 1965 Newhouse and Thompson (British Journal Industrial Medicine 1965;22:261-268) described 83 mesothelioma cases. Of 76 with history available, 40 gave a history of occupational or domestic exposure. Nine had domestic exposure only from living with and/or washing clothes of asbestos workers in the household. Among those with no occupation or domestic exposure, 30% lived within half a mile of an asbestos factory. This study drew attention to the risk of mesothelioma from environmental levels of exposure …”.[41]
In the USA warnings were placed on asbestos products by Johns Manville 1964.[42]
Certainly, by 1970, the dangers of asbestos in causing mesothelioma were well known in Australia. … Since 1968 all types of asbestos were generally thought to cause mesothelioma.[43]
[37]DX1-1, 14.
[38]Ibid, 16.
[39]Ibid, 18.
[40]Ibid, 19.
[41]Ibid, 20.
[42]Ibid, 22.
[43]Ibid.
The Third Defendant’s Answer to the Plaintiff’s Interrogatory 16 was tendered in evidence by the first defendant.[44] The interrogatory asked of the third defendant’s knowledge, belief or suspicion (stating which) as to whether exposure to asbestos created a risk of serious injury, disease or death during the relevant exposures alleged by the plaintiff in his Statement of Claim. The interrogatory was answered on behalf of the third defendant as follows:[45]
… I believe that the third defendant first became alerted during the mid-1940s to the suggestion that the inhalation of asbestos fibres could cause asbestosis, but only in circumstances involving inhalation over a sufficiently lengthy period of time of considerable quantities of asbestos fibres contained in visible clouds of dust emanating from the handling of raw asbestos in a factory manufacturing asbestos containing products.
I believe that the third defendant first became aware in the late 1950s of the suggestion that inhalation of asbestos fibres could cause lung cancer, but only as a rare complication of asbestosis in circumstances involving inhalation over a sufficiently lengthy period of time of considerable quantities of asbestos fibres contained in visible clouds of dust emanating from the handling of raw asbestos in a factory manufacturing asbestos containing products.
I believe that the third defendant first became aware in the mid 1960s that the inhalation of asbestos fibres could cause mesothelioma, but only in circumstances involving the inhalation of crocidolite in a factory manufacturing asbestos containing products, or crocidolite mine or mill.
[44]DX1-11.
[45]DX1-11, 2.
Although the material tendered before me concerning the actual knowledge of the third and fourth defendant’s is limited, I am struck by the magnitude of the Hardie-BI partnership demonstrated by its brochure[46] tendered by the plaintiff. On re-reading the brochure, one gains an understanding that this partnership conducted an industrial business of enormous capacity. A variety of asbestos insulation products were produced for industry, photographs and commentary in the brochure concerning the production process at the Camellia factory in New South Wales demonstrate a factory of very large size and capacity. The marketing of the various products was across the nation, and the industries using the product again provide an insight into the magnitude of the production; oil refineries, power houses, furnace walls and many types of industrial equipment operating at high and low temperatures.
[46]PX-1.
It was not contested that through the period of the Hardie-BI partnership the knowledge of one partner is to be seen as the knowledge of the other.[47] In their submissions, both the third and fourth defendants, contended that their individual percentage to the contribution proceedings should be equal.
[47]See s 16 Partnership Act 1892 (NSW).
In weighing up the conduct of each defendant, I am satisfied the circumstances of this case are such to justify a finding that the third and fourth defendants have a higher level of responsibility and culpability for their breach of the standard of care than the first defendant. In making such finding, I do not overlook the importance of the duty of care to the plaintiff that was breached by the first defendant as the plaintiff’s employer. The first defendant directed the plaintiff to his place of work and the dusty conditions described by the plaintiff. Further, the statutory requirements I have referred to above, including the Harmful Gases Regulations, have arguably been breached by the first defendant – those regulations placed a legal obligation on the first defendant to provide respiratory protection where the level of dust containing asbestos in the workplace proceeded 5 million particles per cubic foot; thus, those regulations required testing of the work environment. As was said by Dr Cook in 1942 in the Industrial Medicine Journal which I have set out above, ‘for the 5 million particles per cubic foot level would not necessary be visible to the naked eye’.[48] The plaintiff described conditions where he worked were like ‘snow’ which would on this material suggest asbestos in the atmosphere in excess of this standard.
[48]See reasons, [28].
The submission of the third defendant that I have previously referred to as realistic recognises the knowledge concerning the dangers of asbestos lay with the manufacturer and distributor of the product, that the manufacturer and distributor ‘had actual knowledge of the prospective dangers’. In my opinion, one can add to this concession made by the third defendant in submissions by stating the ability to research and warn of the dangers of asbestos lay with the third and fourth defendants. I note the report of Dr Leigh refers to US asbestos product manufacturer, Johns Manville, placing a warning concerning asbestos on its asbestos products in 1964. There is no evidence of any form of warning on the Hardie-BI product at any time during the relevant period. Further, the regulatory regime referred to, the Harmful Gases Regulations and the Victorian Government Gazette – Dangerous Trades, should have put the third and fourth defendants on notice as such regulations should have put the first defendant on notice.
Apportionment/contribution
These matters lead me to conclude that the third and fourth defendants have, when comparing culpability against the first defendant, significantly departed from the standard such that they should share the more significant contribution on apportionment.
As I understand the position of the parties, it is accepted mesothelioma is an indivisible injury and the apportionment is to be made between those tort feasors who are parties to the contribution proceedings.[49]
[49]See Amaca Pty Ltd v CSR Ltd & Anor [2015] VSC 582, [261]-[275] (Macaulay J).
Mr Murdoch submitted that I should use the Plaintiff’s Answer to the Third Defendant’s Interrogatory 26 as a basis for apportionment between defendants.[50] That interrogatory asks the plaintiff to ‘break down your overall exposure to asbestos containing products, what percentage would you give each of the following periods, 26.1 the First Field & Hall work; 26.2 the AEC Contracting work; 26.3 the Second Field & Hall work?’[51] The plaintiff answered under objection that the interrogatory required him to express an opinion he is not qualified to give, but he answered:[52]
[50]See DX1-12.
[51]Ibid, 2.
[52]Ibid.
… I estimate that I was exposed to asbestos dust and fibres as follows:
(a)about 50% in the Field & Hall work with about 2/3 in the first period of employment and about 1/3 in the second period of employment;
(b)about 40% in the AEC work;
(c)about 10% in work other that [sic] with Field & Hall and AEC.
The first defendant contends ‘[t]he effect of this apportionment is that the percentage of his total exposure to asbestos that occurred in the course of his employment with the first defendant was 33.33% and his exposure with Field & Hall Contractors Pty Ltd was 16.67%’.[53]
[53]See written submissions on behalf of the first defendant, 21 January 2016, [6].
Mr J Ruskin QC, senior counsel who appeared on behalf of the third defendant, submitted the plaintiff’s answer to interrogatory 26 should not be given ‘the joyous weight that the first defendant would like’.[54] In written submissions it was contended on behalf of the third defendant:
It would not be appropriate for the court to engage in a literal mathematical valuation of the time on risk exposure by reference to this answer. Not only was the plaintiff not tested, but the answer was prefaced with both an objection and the expression “doing the best I can”.[55]
[54]Ruskin, Transcript 124.30 - 124.31.
[55]See written submissions on behalf of the third defendant, 21 January 2016, [20].
I have limited evidence before me as to the pathogenesis of mesothelioma. Dr Leigh states in his report that all of the plaintiff’s exposures to asbestos ‘would have contributed cumulatively to the risk and cause of mesothelioma. The detail provided is insufficient to make any reliable quantitative estimate of exposure. It is impossible to know with any accuracy what the exposure intensities were, what the fibre types were, and what the durations of exposure were’.[56]
[56]DX1-1, 3.
In light of this evidence of Dr Leigh, it is my opinion the submissions of the first defendant cannot be sustained. The percentage estimates of the plaintiff’s exposure do not provide a proper premise for a ‘literal mathematical valuation’.
I consider it appropriate to adopt a common sense approach, weighing up obligations of the employer and the employee relationship including what I perceive to be because of the absence of evidence an element of inertia on the part of the first defendant in failing to make any inquiry as to the conditions it directed the plaintiff to work in, against the resources of the large companies involved in large scale production of asbestos insulation who were the repositories of knowledge concerning the dangers of asbestos and could have, by warning, alerted the employer to the problem.
I consider the appropriate apportionment against the first defendant is 20%. In reaching this percentage figure, I have taken into account evidence of the plaintiff of being exposed to asbestos dust in making up and installing telephone switchboards primarily in the first period of employment with the first defendant. That exposure in the context of the overall heavy exposure to the Hardie-BI product in the first period of employment is close to insignificant.
I see no basis to distinguish between the culpability and relevant importance of the acts of the third and fourth defendant. They were in partnership at the time, both were large Australian companies with very significant resources, including the ability to research. The knowledge of one is to be considered the knowledge of the other. I consider it appropriate to apportion 40% to the third defendant and 40% to the fourth defendant.
There is evidence to suggest the plaintiff was exposed to James Hardie product only for a period of months up until the formation of the Hardie-BI partnership in 1964. I consider such exposure in the overall context is insignificant and impossible to quantify in terms of a percentage.[57]
[57]See reasons, [38], concerning the opinion of Dr Leigh.
As stated, the Hardie-BI Partnership was dissolved on 26 June 1974. Any exposure of the plaintiff to Hardie-BI product after that date is likely to be only for a very short period of time. James Hardie did not continue production after this date. In terms of apportionment, this short period of time again, in my opinion, is incapable of being quantified as a percentage and again borders on the insignificant in the overall context of the plaintiff’s total relevant exposure.
Conclusion
Field & Hall Pty Limited, the first defendant, Amaca Pty Limited (James Hardie), the third defendant, and CSR Limited, the fourth defendant, are liable for the contraction of Mr Zwiersen’s, the plaintiff, contraction of mesothelioma. The apportionment made under the Wrongs Act is as follows:
First defendant, Field & Hall Pty Limited - 20%
Third defendant, Amaca Pty Limited (James Hardie) - 40%
Fourth defendant, CSR Limited - 40%
I will make orders consistent with this apportionment.
---
3
3
1