Dust Diseases Tribunal of New South Wales CITATION : ICI Australia v Workcover and Ors [2002] NSWDDT 6 ICI Operations Australia Pty Ltd PARTIES : Workcover Authority of New South Wales FAI Traders Insurance Company Ltd FAI Workers' Compensation (New South Wales) Ltd MATTER NUMBER(S) : 169 of 1997 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: S 151AB Workers' Compensation Act 1987 CASES CITED: DATES OF HEARING: 16 April 2002 EX TEMPORE JUDGMENT DATE : 04/16/2002 Mr G P F Rundle instructed by Phillips Fox appeared for the cross claimant LEGAL REPRESENTATIVES: Mr G Little with Mr G J Parker appeared for the Workcover Authority of New South Wales Mr N E Chen instructed by Sparke Helmore appeared for FAI Traders Insurance Company Ltd Mr G M Watson instructed by Moray and Agnew appeared for FAI Workers' Compensation(New South Wales) Ltd JUDGMENT: 1. CGU Insurance Ltd (CGU) having been appointed pursuant to s 151AC of the Workers' Compensation Act 1987 as the designated insurer, responded to a claim for damages brought by George Ronald Brazier against his employer ICI Operations Pty Limited (ICI). Mr Brazier's claim was settled by agreement on 14 August 2000 and CGU has paid to him damages in the sum of $100,000 and paid his costs in the sum of $56,103. 2. CGU asserts that it is not the insurer of the employer at a time when Mr Brazier was last employed in employment to the nature of which his disease was due and that, in the alternative, Workcover Authority of New South Wales (NEM), FAI Traders Insurance Company Limited or FAI Workers Compensation (New South Wales) Limited was the insurer liable pursuant to s 151AB to indemnify ICI in relation to Mr Brazier's claim. 3. In order that that dispute may be resolved it is necessary to determine when it was that Mr Brazier was last employed by ICI in employment to the nature of which his disease was due. The disease from which he suffered was asbestos related pleural disease and asbestosis. Those diseases are caused by the inhalation of significant quantities of asbestos fibre, unlike the disease of mesothelioma which may be due to relatively trifling exposure to asbestos. 4. Mr Brazier was employed by ICI between 1950 and 8 July 1988. In his affidavit of 25 May 2000 he gave evidence of substantial exposure to asbestos dust and fibre in the employ of the respondent prior to 1982. In his affidavit he said this: Par 58:In or about 1982 the company started to phase out asbestos lagging. As it took out old asbestos lagging the new lagging was a new product that did not contain asbestos. From then on the company stopped using asbestos materials. Paragraph 59: There was asbestos dust on the walls, on the girders and I would say that when the wind blew the dust was blown around in the factory. I would say there was a possibility that I would have been exposed to asbestos right up to the last day that I worked for ICI on 8 July 1988. I just don't know. I doubt that I was exposed to asbestos after 1982 but I just don't know. Paragraph 60: I remember that in about 1982 contractors came out to the plant to remove the asbestos lagging. It was at about this time that I remember that the company started to speak about the dangers of asbestos. I think it was in about 1982 that the sort of exposure that I had had to asbestos throughout my working life with ICI. 5. I have before me a statement from Mr Arnold John Forbes who also worked at ICI. In par 13 of this statement Mr Forbes says this: George Brazier was employed as a chargehand until his hearing loss prevented him being able to do all that work, so he went back to a maintenance fitter grade. I would say by September 1985 and after that George would have had very limited, if any, exposure to inhaling asbestos but I could not say none. I suspect there could have been tiny hidden amounts here and there . . . Paragraph 14: Prior to 1985, nearly or all the asbestos had been removed. This involved small amounts of lagging around the machines from when they were first installed. There was a date when all the maintenance asbestos material on site was thrown out . . . 6. Steve Adis who also worked with the respondent said in his statement: I could not say he never came in contact with asbestos in the factory right up to the time he left. There was little remaining by the late eighties but I cannot say there was none. 7. A memorandum of 15 August 1984 on the subject of asbestos removal from the records of ICI Australia Pty Limited is in these terms. The following outlines some information that may be relative when reporting on the program for asbestos removal on the Visqueen site at Chester Hill. (1) Condition and location of all asbestos on this plant has been identified and recorded. (2) All low level (up to 5 metres above the ground) asbestos has been removed and replaced by acceptable insulating material. The above operation was done utilising recognised asbestos removal contractors under proper supervision and asbestos handling techniques. This work was carried out during the early part of this year costing $4,000. (3) It has been agreed by local management that all other asbestos removal, is to be undertaken as part of a series of expansion project on this site that shall result in the dispensing of steam as a heating medium. These projects are expected to be undertaken during the following three years. (4) Costs to remove and replace with acceptable insulating material the existing high level asbestos lagging would cost approximately $20,000 with a higher cost to production due to the disruption effect. If removed as part of the anticipated series of projects mentioned in (3) above then the cost and disruption would be minimal. (5) There has been no friction between management and employees on the above subject. Employees have been sheltered from any contact with this insulating material. 8. Mr Brazier gave evidence before me today. Although patently honest, I find that his limited recollection does not assist in determining whether after 1984 he was subjected to conditions in which asbestos fibre may have been present and inhaled in any quantity or at all. 9. Notwithstanding the terms of the memorandum of ICI quoted above concerning the removal of asbestos up to five metres above the ground, an asbestos survey conducted by Dames and Moore Pty Limited on 11 June 1997 indicated that there was corrugated asbestos cement sheeting comprising walls of the ICI factory present even to that date and that those walls had been subject to damage in the years after installation. One photograph, photograph number 9, reproduced within that report, shows broken asbestos cement sheeting on the ground at a place where an aperture appears to have been punched into the wall permitting the passage of two pieces of cabling. It is because of that report that I believe I cannot rely upon the memorandum of ICI that all asbestos up to five metres had been removed and replaced as at August 1984. 10. Nevertheless the authors of the Dames and Moore report concluded that the risk to the health of building occupants was low. The asbestos present within the plant was uniformly classified as "hard" in that "the asbestos fibre is not released when rubbed between the fingers but the structure of the matrix is destroyed by mechanical abrading such as cutting or hammering". 11. The evidence demonstrates that it is probable that between 1973 and 1984 Mr Brazier was employed by ICI in employment to the nature of which his diseases were due because he was exposed to the probable inhalation in that period of substantial quantities of asbestos dust and fibre. After 1984 there remains the possibility that he was exposed to the inhalation of asbestos fibre but the evidence does not lead me to the point of actual persuasion that he did at any time after that date inhale asbestos fibre. 12. I conclude that more probably than not after 1984 Mr Brazier inhaled no asbestos dust or fibre, although I do record the possibility that until 1988 when he last worked for ICI he may have inhaled asbestos fibre if asbestos sheeting suffered damage at a time when he was working nearby. To my mind this possibility would have exposed him to the risk of contracting the disease of mesothelioma but not to the risk of contracting the diseases which in fact afflict him. 13. In CIC and Workers Compensation New South Wales v Alcan Australia1994) 35 NSWLR at 169 Mahony JA at 170 said: . . . The employment referred to is . . . engagement in a form of activity which exposes him to a risk of a disease of such a nature as to be contracted by a gradual process. 14. To my mind the inquiry mandated by s 151AB is into the question of whether the employment exposed the worker to a risk of contracting the actual disease from which he suffers. He is only exposed to the risk of asbestosis if he inhales fibre in substantial quantities. Proof of a possibility, that possibility being less than 50 per cent, that the worker may, during a particular period, have inhaled some asbestos fibre, to my mind does not satisfy proof that upon the probabilities that employment in that period was of the nature to which a disease is due. 15. I find that the plaintiff, George Ronald Brazier, was last employed by ICI in employment to the nature of which his occupational disease was due on 15 August 1984 when the asbestos removal program of ICI had been substantially completed. Mr G P F Rundle instructed by Phillips Fox appeared for the cross-claimant. Mr G Little SC with Mr G J Parker instructed by P W Turk and Associates appeared for the Workcover Authority of New South Wales. Mr N E Chen instructed by Sparke Helmore appeared for FAI Traders Insurance Company Ltd. Mr G M Watson instructed by Moray and Agnew appeared for FAI Workers' Compensation (New South Wales) Ltd. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.