Zwiersen v Field & Hall Ltd

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
(ACN 004 391 324)

AEC CONTRACTING (VIC) PTY LTD
(ACN 004 522 650)

AMACA PTY LIMITED
(ACN 000 035 512)
(FORMERLY JAMES HARDIE & COY PTY LTD)

CSR LIMITED
(ACN 00 001 276)

First Defendant

Second Defendant

Third Defendant

Fourth Defendant

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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

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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.

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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 Mr D C Oldfield No appearance Mr J Ruskin QC with Mr M K Clarke Mr C J Blanden QC with Mr J D Armstrong	Minter Ellison DLA Piper Australia Colin Biggers & Paisley

HIS HONOUR:

Introduction

1. 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.

1. 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.

1. The plaintiff claims against Amaca Pty Limited (formerly…