(Re: McCullagh) Seltsam Pty Ltd v The State of Queensland [2003] NSWDDT 3

Dust Diseases Tribunal of New South Wales

CITATION : (Re: McCullagh) Seltsam Pty Ltd v The State of Queensland [2003] NSWDDT 3 PARTIES : Seltsam Pty Ltd (cross-claimant) The State of Queensland (cross-defendant) MATTER NUMBER(S) : 181 of 2002 CC1 JUDGMENT OF: O'Meally P at 1 CATCHWORDS: :- Cross-claim - mesothelioma - plaintiff sued two defendants - products of each had a causative role - action settled - contribution by each defendant in different amounts - cross-claim against employer by one defendant only - no evidence of extent of causal potency of products of each defendant - impossible to determine contribution to be made by cross-defendant - verdict for cross-defendant LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 s 5 Dust Diseases Tribunal Act 1989 s 25(3) CASES CITED: DATES OF HEARING: 11/02/2003 EX TEMPORE JUDGMENT DATE : 02/11/2003

FOR CROSS-CLAIMANT: Mr S M Kettle instructed by Holman Webb LEGAL REPRESENTATIVES: FOR CROSS- DEFENDANT: Mr B R Ferrari instructed by Ferguson Holz.

JUDGMENT:

1. This is a cross-claim by Seltsam Pty Ltd (Seltsam) against the State of Queensland. 2. By statement of claim issued on 22 May 2002 Arthur Douglas McCullagh (the plaintiff) sued Amaca Pty Ltd (Amaca) and Seltsam alleging that in the course of his employment by the State of Queensland between 1954 and 1960 as an apprentice carpenter, and subsequently as a self employed carpenter, he was exposed to asbestos dust and fibre which emanated from products made by James Hardie & Coy Pty Ltd (JHC) and Wunderlich Ltd (Wunderlich) in whose shoes Amaca and Seltsam now stand. 3. The plaintiff alleged, and it is the case, that as a result of negligent asbestos exposure he contracted malignant mesothelioma. On 12 August 2002 I directed that the plaintiff's action be heard in Maroochydore in Queensland on 12 and 13 September 2002. Before then, that is to say on 9 July 2002, Seltsam issued a cross-claim against the State of Queensland alleging that if it were liable to the plaintiff so also would Queensland be, because it is a person who, if sued by the plaintiff, would have been liable for the same damage. (S 5 Law Reform (Miscellaneous Provisions) Act, 1946). 4. The evidence in this cross claim includes the evidence in the plaintiff's action. Relevantly, that evidence is the plaintiff's affidavit, sworn 12 September 2002, which was PX1; PX5, which was the report of Professor D.W. Henderson, bearing date 2 July 2002 and the transcript of evidence, to which I have not been taken by counsel. Additionally, I have a Notice to Admit Facts served by the solicitors for Seltsam, bearing date 7 January 2003 and a response, described as a Notice Disputing Facts, issued by the solicitor for the State of Queensland. I have also a Notice of Admissions, filed by Seltsam in the plaintiff's action. Other filed documents have been referred to, but I have taken the view that it was not necessary to place them into evidence as exhibits because the Tribunal is a court of record and those documents are part of the court record. 5. Before the plaintiff's evidence was taken, counsel for the State of Queensland sought leave to appear to cross-examine the plaintiff. I indicated that if his client submitted to the jurisdiction of the Tribunal leave to cross-examine the plaintiff would be granted, but if it did not submit to the jurisdiction leave would be refused. He then informed me that advice had been sought on the question whether his client was amenable to the Tribunal's jurisdiction, but that advice had not yet been received. The State of Queensland declined to submit to the jurisdiction. After leave was refused and upon a further application for leave to cross-examine also being refused counsel briefed for the State of Queensland withdrew from the proceedings. Following the plaintiff's evidence the case was settled for a total sum of $380,000, contributions being made by each of Amaca and Seltsam in different amounts. 6. Counsel have agreed that the questions for my consideration in this cross-claim are two. Firstly, whether between 1954 and 1960 an apprentice carpenter exposed to asbestos dust and fibre from asbestos cement sheeting was subjected to a foreseeable risk of injury. Secondly, and if so, and accepting that the plaintiff was exposed to Wunderlich's asbestos, what was the causative potency of each exposure and what was the culpability of each tortfeasor. 7. Following discussions between myself and counsel I indicated as a preliminary view that I would find that by exposing the plaintiff to asbestos in the course of his apprenticeship as a carpenter the State of Queensland was in breach of its duty by exposing him to a risk of foreseeable injury. I indicated also, that on the material placed before me by Seltsam it would be difficult to determine the causative potency and the relative culpability of each tortfeasor. 8. I have not heard evidence nor has documentary evidence been tendered on the first of these issues. Mr Ferrari was content that it should be recorded that he had taken the point, but it was not argued. This was to protect his position, he said, in the event there was to be an appeal and it became a relevant matter. Seltsam did serve a notice indicating that pursuant to s 25(3) of the Dust Diseases Tribunal Act, it intended to rely upon material admitted into evidence in other cases. No such evidence was, however, placed before me. I think it is sufficient to say that the material identified in that notice, if placed into evidence, would be sufficient to justify a finding that an employer in the years between 1954 and 1960 ought to have been aware of the dangers of exposing employees to asbestos. I say again, however, that no such evidence is before me, but it would be surprising that any employer of substance, let alone a State of the Commonwealth, which legislated for the safety of its inhabitants and employed many people, could not reasonably be said to have been aware, actually or constructively, of the dangers of asbestos between 1954 and 1960. 9. The principal task is to determine what was the causative potency of each exposure and what was the culpability of each tortfeasor. The relevant evidence comes from the affidavit of the plaintiff. That evidence is contained in pars 7 to 16 and it is appropriate to recite them. 7. I remained employed with the Department of Public Works for a period of five years, during which time I completed my apprenticeship. 8. During my employment with the Public Works Department I mainly worked on the construction of many schools in the Brisbane area. This was all new work as we were building new schools in the growing areas of Brisbane. 9. Some of the schools I worked on included Zillmere State School, Newmarket High School, Queensland University of Technology (QUT) in Brisbane, Banyo High School, and Stafford State School. On average I would have spent about three months on site at each school, before moving on to the next school. 10. I undertook general carpentry work at these schools, including the building of the sub-floors and frames. I did not carry out any roofing work as this was left to the plumbers. 11. During the course of undertaking such work, I cut, handled and drilled flat asbestos cement sheets. These flat sheets were used for lining the eaves, and in lining the ceilings of the classrooms. Further, some of the internal walls were lined with asbestos cement flat sheets. 12. The asbestos cement flat sheets were delivered to the building site and I would then cut them to size. Most of the cutting was done using a power saw with a grinding disc attached. 13. As a result of the cutting of asbestos cement flat sheets with a power saw, large amounts of dust and fibre was created. This dust got all over my skin, in my hair, and on my clothes. I would have to blow my nose to get rid of the dust that would gather during the course of a day. I would also have to wash my face at lunchtime to get rid of the build up of dust and fibre. It was impossible to avoid inhaling this dust and fibre. 14. I estimate that on each school site, I cut and installed asbestos cement flat sheets over a four or five day period. 15. At this time, I was aware that there were two manufacturers of asbestos cement flat sheets, namely, James Hardie and Wunderlich. 16. I recall using James Hardie products on a much more regular basis than those manufactured by Wunderlich. 10. After 1960 the plaintiff, as a contract carpenter, continued to be exposed to asbestos dust and fibre from products manufactured by JHC and Wunderlich. It is the case that his exposure to asbestos after 1960 was greater than it was before 1960. As well as using a power saw he used a grinding wheel to cut compressed sheeting. Compressed sheeting is much thicker than flat asbestos sheeting and undoubtedly a greater quantity of dust would be liberated in the process of cutting it with a grinder than in cutting flat sheets. 11. Mr Ferrari of counsel for the State of Queensland submits that the plaintiff's evidence should be looked at with particular scrutiny because, on matters relevant to the issues in the cross-claim, the plaintiff was not cross-examined. He submits that it is unlikely that the plaintiff did use a power saw before 1960, because power saws did not come into general use in the building industry until after 1960. The evidence, however, is that the plaintiff did use a power saw, but there is substance in Mr Ferrari's submission that the plaintiff's assertions should be looked at with scrutiny. 12. In the present state of the evidence the difficulty is determining the causal potency of each exposure. Counsel for Seltsam submits that the proportions which the judgment sums contributed by each defendant bear to the total should be taken as the contribution to culpability and causal potency made by each. Mr Ferrari, while not disputing the reasonableness of the total judgment sum, says that it would not be appropriate to draw such a conclusion from the sums contributed and points out that it may well be because of some commercial arrangement, rather than the facts of this case, that led to the agreement on sharing. It frequently happens that Amaca and Seltsam are defendants in proceedings in the Tribunal and it frequently happens that their cases are settled. I do not know whether the same or other proportions of contribution usually apply, nor whether in any one case it would be appropriate to have regard to agreements in this or other cases. 13. Mr Kettle submits that, because of par 22 of the plaintiff's affidavit in which he said that his exposure to asbestos from 1961 until the early 1980s has been consistent, I should be able to come to a conclusion as to the causal potency of each of JHC's and Wunderlich's products. In respect of exposure until 1960 I doubt that this is possible. Moreover, in saying that his exposure was consistent, the plaintiff did not say as to what it was consistent; that is, whether it was consistent as to products or to duration or to intensity of exposure. Certainly, the plaintiff was exposed to more of JHC's product than Wunderlich's, but the Wunderlich products which the plaintiff used until 1960 seem not to have contained other than chrysotile. In CCX2, that is the admissions of Seltsam, it is recorded that Seltsam (presumably Wunderlich) manufactured and supplied Durabestos asbestos cement flat sheets, and that from 1954 (to July, 1977) they contained chrysotile. The capacity of amphibole asbestos to cause mesothelioma is much greater than the capacity of chrysotile asbestos. I do not know whether the plaintiff was exposed to amphibole asbestos before 1960; neither do I know the composition of JHC's products used by the plaintiff. 14. Mr Kettle has drawn attention to the report of Professor D.W. Henderson, in which his expectation that the plaintiff's exposure included amphibole asbestos, in addition to chrysotile, is recorded. However, that is not evidence that during the course of the plaintiff's employment by the State of Queensland he was exposed to amphibole asbestos. Professor Henderson has recited his opinion that the plaintiff's mesothelioma was attributable to his total cumulative asbestos exposure and that the relationship between that exposure and his mesothelioma is causal. That is not in dispute, but Mr Ferrari says that there is a difference between the causative nature of cumulative asbestos exposure and exposure during the course of the plaintiff's employment by the State of Queensland. 15. Relying upon the knowledge that I have acquired in hearing this type of case since 1989 and in regularly attending scientific conferences of the Thoracic Society, and accepting Professor Henderson's opinion in this regard, I am satisfied that all asbestos exposure is causative of mesothelioma. I am satisfied that the plaintiff's exposure to asbestos while employed by the State of Queensland had a causative role. The difficulty I have, however, is determining the causative potency and culpability of exposure to JHC's products and thus also to Wunderlich's, and this is so in respect of exposure occurring both before and after 1960. 16. Before I can make an assessment of any contribution which should be made to the judgment sum by the State of Queensland I must be able to find the causative potency and culpability of exposure to the products of each of JHC and Wunderlich. I am, in effect, invited to determine a proportion of an unknown proportion, and this I am unable to do. I say this with some regret, because it would have been easy enough to have obtained evidence from the plaintiff on matters now relevant. Questions relevant to this matter, legitimately, could have been directed to the plaintiff in the principal proceedings. This was not done and in the result I am unable to assess what contribution should be made by the State of Queensland. 17. Accordingly, there will be a verdict on the cross-claim for the cross-defendant. 18. The cross-claimant will pay cross-defendant's costs as agreed or assessed.