Dust Diseases Tribunal of New South Wales CITATION : Amaca v Wallaby Grip [2005] NSWDDT 31 Amaca Pty Ltd: Main Cross Claimant PARTIES : Wallaby Grip: Second Defendant MATTER NUMBER(S) : 334 of 01/ 1 JUDGMENT OF: Walker J at 1 :- K-Lite Asbestos CATCHWORDS: Asbestos Insulation LEGISLATION CITED: Queensland Law Reform Act 1995, s 5 & 6, Amaca Pty Ltd v Wallaby Grip (BAE) Pty Ltd DDT NO 37 of 2001; CASES CITED: James Hardie v Roberts (1999) 18 NSWCCR 500 DATES OF HEARING: 13 14 December 2004 DATE OF JUDGMENT: 07/21/2005 Cross Claimant: G.J PARKER LEGAL REPRESENTATIVES: Second Cross Defendant: D.J.RUSSEL SC JUDGMENT: 1 Background To Claim 1. Barry Kenneth Caldwell by amended statement of claim issued on 1 July 2003 sued SC Energy Limited; Amaca Pty Limited; Wallaby Grip (NSW) Pty Ltd and Wallaby Grip (BAE) Pty Ltd for damages for negligence alleging that as a consequence of inhaling asbestos dust and fibre at the Swanbank Power Station Queensland between 1970 and 1972 he contracted asbestos related pleural disease, pleural plaque, asbestosis and benign asbestos pleural plaques. 2. The basis of the claim against CS Energy Limited was that it employed the plaintiff as a trades assistant and later an administrator at the Power Station and failed to provide him with a safe system of work. 3. The basis of the claim against Amaca Pty Ltd was it was the manufacturer and supplier of asbestos insulations products to the Power Station to which the plaintiff was exposed causing him damage. 4. The basis of the claim against Wallaby Grip (NSW) Pty Ltd was that it was responsible of asbestos lagging work at the Power Station between 1970 and 1972 using insulation products manufactured by Amaca Pty Ltd and Wallaby Grip (BAE Pty Ltd to which the plaintiff was exposed as a bystander causing him damage. 5. The basis of the claim against Wallaby Grip (BAE) Pty Ltd was that it manufactured and supplied asbestos insulation products used at the Power Station to which the plaintiff was exposed causing him damage. 6. On the 1 July 2003 judgment was entered against all four defendants. 7. Prior to judgment Amaca Pty Ltd issued a cross claim against CSR Limited and Wallaby Grip (NSW) Pty Ltd. That cross claim was amended on the 29 July 2003. 8. The claim against CSR Limited was severed from these proceedings. 9. The basis of the cross claim against Wallaby Grip (NSW) Pty Ltd was that it supplied to the Power Station products manufactured by Amaca to which the plaintiff was exposed and were causative of his disease. The allegation pleaded was that 95% of the Amaca products to which the plaintiff was exposed were supplied by Wallaby Grip (NSW) Pty Ltd. The Defence 10. Russell SC with Mr Scotting of Counsel appeared on behalf of Wallaby Grip (NSW) Pty Ltd. The defences pleaded were: (a) The allegation of negligence was denied but this defence was not pursued. (b) Contribution pursuant to the Queensland Law Reform Act 1995, ss 5 & 6 was denied on the basis that Wallaby Grip did not supply Amaca asbestos products to the Swanbank Power Station. The Cross Claimants Case 11. Briefly stated, the cross claimants case is that Mr Caldwell worked at the Swanbank Power Station near Ipswich Queensland as an engine driver/cleaner for C.S. Energy Limited between 19 June 1970 and the end of 1972. Despite his job classification, for the greatest part of the time he was employed with a bricklayer's gang removing and replacing K Lite asbestos (a Hardies Product) on the A and B power stations at Swanbank. He worked for 6 months on the A station and the rest of the time on the B station. In addition to exposure to asbestos dust removing and restoring K Lite he was also a bystander to new insulation work with K Lite being carried out by laggers in the employ of Wallaby Grip on the B power station. 12. Consent judgment was entered against both Amaca and Wallaby Grip on the 1 July 2003 imposing liability for each defendant company to pay Mr Caldwell the sum of $82,500 inclusive of costs. 13. It is the cross claimants contention that having been sued as the manufacturer of the K Lite it was liable for all the damage sustained by Mr Caldwell as a result of his exposure to K Lite including that supplied by Wallaby Grip. 14. Because Mr Caldwell's asbestos related diseases are divisible in law, Amaca asserts it is entitled to a contribution pursuant to the Queensland Law Reform Act 1995, ss 5 & 6 from the joint tortfeasor Wallaby Grip who supplied some of the K Lite to which Mr Caldwell was exposed. 15. The apportionment should be substantial because the evidence before the Court namely that of Mr Caldwell and invoices from the Hardies B1 Company to Bells Thermalag Pty Ltd (the corporate predecessor of Wallaby Grip) reveal that 95 per cent of the asbestos to which Mr Caldwell was exposed was supplied by Wallaby Grip. The Law 16. This case was heard contemporaneously with (Re Robert Leslie McKee) Amaca Pty Ltd v Wallaby Grip (BAE) Pty Ltd DDT NO 37 of 2001. In my judgment in that case I reviewed the relevant law applicable in apportionment cases and dealt with various preliminary points of law some of which were argued in common with this cross claim. I do not propose to restate that law in this judgment but intend to apply the law as found in McKee. 17. In common with McKee this case ultimately needs to be resolved by addressing the factual issues raised by the cross defendant. The Evidence 18. The cross defence firstly alleges that the cross defendant has failed to prove that Wallaby Grip supplied at the relevant times asbestos product manufactured by Amaca to the Swanbank Power Station for use on the A or B Power Stations. 19. The evidence tendered that goes to this issue is to be found in: (a) The affidavit of Barry Caldwell dated 5 June 2003; (b) Exhibit CCX3 which consists of; (i) 5 documents described as "Factory Order" being "HB1 invoices Nos 19830, 19873, 20063, 20064 and 20155. All 5 documents indicate that quantities of the product K Lite were sold to Bradford Insulation (QLD) Pty Ltd and delivered to Bells Thermalag Pty Ltd c/- Swanbank Power Station Ipswich Qld between 24 November 1979 and 17 December 1979. (ii) Five documents described as " Office Copy Hardie BI" being order Nos Q1484, Q1531 and Q1531 on the HBI invoices numbered 23064, 23857, 23922, 23932 and 24543 dated between 23 October 1971 and 7 march 1972 again for quantities of K Lite product. (iii) Eight documents on Hardie-Bi Company letterhead (with logo) designated "Factory Order" in respect of orders Q1664 and Q1665 with "HBI" invoice numbers 27722, 27723, 27814, 27827, 27832, 27833, 27871 and 27872 again for quantities of K Lite product. Barry Caldwell's Evidence 20. Barry Caldwell's evidence relevantly state: ·He commenced work at the Swanbank Power Station on 19 June 1970 as a cleaner [4]. ·Only the "A" station was operational when he started. The "B" station was under construction and between 1970 and 1972 its 4 turbines progressively came on line [5]. ·He worked initially for 6 months in the "A" station [6]. However during those 6 months he was seconded for 2 days per week to a bricklayers gang which worked primarily on the " A" station but also on the "B" station. The gang removed, repaired and replaced asbestos insulations on steam pipes, boilers and turbines [6]. ·He was exposed to floating asbestos dust in the air of "A" station but it was the work on the bricklayers gang that most exposed him to asbestos dust [7]. ·From the beginning of 1971 to the end of 1972 he worked full time on the bricklayers gang and was exposed to asbestos dust on a daily basis both in removing and replacing asbestos and as a bystander to laggers working on the "B" station [9]. ·As his employment went on he spent more time in the "B" station [10]. ·His work involved the removal of "a large amount of pipe sections and blocks which were made of K Lite [13]. ·Apart from the pipe sections he also handled asbestos blankets, asbestos rope and asbestos powder used on the turbines. These products were made by Bestobel [15] ·During construction of the "B" station he worked near teams of Bells baggers using the same products as himself namely pipe sections, rope and powder composition [16]. He estimated his exposure to asbestos dust was 50% from the K Lite and 50 from Bells laggers and products. 21. In his oral evidence given on 13 December 2004 he essentially confirmed his affidavit evidence and was not cross-examined. Cross Defendants Submissions on Evidence 22. Russell SC firstly asked the Tribunal to reject the evidence of the invoices and Mr Caldwell that may have gone to the issue of supply on the basis that the word "supply" in context of the law of toxic torts has the narrow meaning of "where the person who either manufactures or sells the product to somebody else". In other words just because a product manufactured by the cross defendant eventually came to be used in the power station does not constitute "supply". I considered that point of law at some length in McKee's case and rejected Russell SC's narrow interpretation of the word "supply". I rely on those reasons in this case. 23. Russell SC next relied upon searches that allegedly showed that there was not at the relevant time (or indeed at any time) a corporation registered with ASIC under the name "Bradford Insulation (Queensland) Pty Ltd. There are two difficulties with that proposition. Firstly, in 1979 State Governments exercised corporation powers and a search of the Federal entity ASIC may not necessarily reveal a business operating prior to the time Queensland entered into the national companies scheme. Moreover, the searches reveal the business name "Bradford Insulation" was previously registered in Queensland but that the records are no longer available. When these facts are taken together with the evidence on the invoices which indicates sales by the Hardie-BI Company to "Bradford Insulation (Qld) Pty Ltd at Salisbury North Queensland I can only draw the inference on the balance of probabilities that there was indeed a corporation operating in Queensland called "Bradford Insulation (Qld) Pty Ltd at the relevant time. 24. Russell SC's ultimate submissions on the state of the evidence is the invoices tendered show supply by Hardies BI not to Bells Thermalag (now known as Wallaby Grip NSW) but to Bradford Insulations. Whilst the invoices indicate delivery to Bells Thermalag at the Swanbank Power Station they were in fact sold to Bradford Insulations at Salisbury. 25. The allegations in the original statement of claim filed on 22 December 2000 [7] pleads that Wallaby Grip NSW undertook lagging work at the Power Station with asbestos products manufactured by Amaca. In other words, the allegation is one of supply of Amaca products to which Mr Caldwell was exposed. 26. This argument again relies on the narrow definition of supply. The invoices clearly show that a huge quantity of K Lite blocks and sections was ordered by Bradford Insulation (Qld) Pty Ltd but delivered directly to the Swanbank Power Station into the hands of the company performing the lagging work, Bells Thermalag Pty Ltd. Hardies BI has, in my opinion by delivering Bradford Insulation's order direct to the company conducting the lagging of the power station physically supplied the K-Lite to Bells. 27. Rejecting the narrow definition of supply, as I do, I take the view that an unbroken chain of supply of the Amaca product K-Lite has been proven from Hardie BI to Bells Thermalag. 28. In those circumstances I find that the cross claimant has proved supply of the K Lite manufactured by Amaca to the cross defendants predecessor in corporate title and hence proved supply by the third cross defendant. 29. For reasons explained in McKee's case the supply of the K Lite constitutes an actionable act of negligence and Amaca having been determined liable to the plaintiff for the manufacture and supply of all the K Lite to which Mr Caldwell was exposed is entitled to seek a contribution (pursuant to sections 5 and 6 to the Queensland Law Reform Act 1995. Apportionment of Liability (1) Ascertaining degree of exposure to K.Lite supplied by Cross Defendant. 30. The allegation in the particulars to the cross claim was: "approximately 95% of Amaca Products to which the plaintiff was exposed were supplied by Wallaby Grip." The only evidence before me that goes the relative quantities of K-Lite asbestos to which Mr Caldwell was exposed come from the evidence of Mr Caldwell and the invoices. 31. Mr Caldwells evidence reveals that he was exposed to K-Lite in the following circumstances: (a) In the first 6 months of his 24 months employment he worked 2 days per week on a gang which was replacing used asbestos around the boilers and plant of the A station at Swanbank. This involved removing old asbestos sections and blocks made from K Lite (a Hardies Product.) He also worked with Bells Asbestos product in the form of blankets and ropes but these products are not relevant to the cross claim which is concerned only with Mr Caldwells exposure to Hardies K.Lite supplied by Wallaby Grip. (b) From mid 1971 to the end of 1972 ( some 18 months) he worked full time on the gang removing and replacing pipe sections and blocks made of K-Lite. This work was initially in the station but then gradually he began to work more in the B station until that was his only place of employment. (c) For the time he was working in the B station in addition to his work removing and replacing K-Lite sections and blocks he was also exposed to heavy dust caused by laggers employed by the cross defendant who were insulating the new boiler turbines plant and equipment associates with the construction of the B Station. The evidence from which the cross claimant asks the Tribunal to infer the laggers were using K.Lite product supplied by Wallaby Grip are the invoices. 32. It is clear from Mr Caldwell's affidavit that his work on the bricklay gang mostly involved the use of K-Lite sections and blocks although he also had to remove Bells mattresses and ropes and bags of asbestos powder. He notes at [13] that the work "predominately" involved removal of half pipe K-Lite sections. Mr Caldwell at [16] estimates that 50% of his exposure to asbestos came from K-Lite and 50% from the Bells Laggers and products. He asserts the estimate to be rough but reasonably accurate. 33. The first difficult question for the Tribunal is to ascertain from the evidence whether the 95% exposure to K-Lite alleged in the cross claim has any basis in fact. I am asked to infer from the large amounts of K-Lite being supplied to Bells Thermalag at the time that those products were being used by the laggers as well as Bells Products. Unfortunately Mr Caldwell's affidavit evidence only states that the laggers were using the same types of products as himself. There is no breakdown of the relative amount of K-Lite being used by the laggers. Mr Caldwell's evidence is that it was his work on the bricklayers gang that most exposed him to asbestos dust but he gives no estimate of the relative proportion of dust inhaled carrying out the removal and replacement of K-Lite pipes and blocks as opposed to inhaling dust generated by the laggers. Even if there had been such an estimate the exposure as a bystander may well have been less potent than the direct work on the plant and equipment described by Mr Caldwell where his face was very close indeed to large quantities of asbestos dust. 34. The second difficult question for the Tribunal is to ascertain how much of the K Lite that Mr Caldwell either worked with or was exposed to as a bystander was actually supplied by Bradford Insulation Qld Pty Ltd. It would appear from the particulars and Mr Parkers submissions that the Tribunal is being asked to assume that all the K-Lite used the at the power station was supplied by the Hardie BI Company to Bradford Insulation (Qld) Pty Ltd who then supplied Bells Thermalag Pty Ltd. Mr Parker asks the Court to make this assumption firstly by examining the invoices and noting the substantial amount of K.Lite being supplied to the station between 19.11.70 and 1.11.72 and secondly by reading the Hardies BI partnership agreement which gives exclusive retail rights for K-Lite in Queensland to Bradford Insulations. 35. My difficulty with those proposition is not only with the lack of evidence about other suppliers of K Lite but the specialist knowledge of this Tribunal concerning the huge quantities of asbestos necessary to insulate massive power station boilers and turbines as well as the extensive piping associated with the generation of power. While a great deal of K-Lite was being sold in the invoices, without evidence that would indicate the total amount of K-Lite used on the A&B stations during the relevant period it is impossible to precisely estimate what percentage of the K Lite used might have come from Bells Thermalag laggers. There is also no evidence as to who supplied the bricklayers gang with K Lite or whether Bells Thermalag was exclusively using Bradford Insulations as its supplier at the time. 36. Notwithstanding those evidentiary difficulties this is not a case, like Mr McKee's, where there was no evidence from the invoices at all during the relevant period that the cross defendant was supplying K-Lite. On the Contrary there is evidence that Bradford's supplied large amounts of K-Lite to Bells Thermalag who was performing the lagging on the B Station. I take the view therefore that in this instance the Court is entitled to find the facts by an intuitive rather than a conscious rational process without indulging in pure speculation. 37. Taking all the evidence into consideration concerning the relative proportion of K.Lite asbestos product to which Mr Caldwell was exposed to on the one hand from his work on the bricklaying gang for CS Energy Limited as opposed to his bystander exposure from laggers working for Bells Thermalag. I determine on the balance of probabilities that ratio was 60:40. Apportionment. 38. I am obliged pursuant to the Queensland Law Reform Act 1995, ss 5 & 6 to have regard to the extent to which the cross claimant and the third cross defendant are responsible for the damage to Mr Caldwell caused by his exposure to K Lite asbestos products. The whole of the conduct of both parties is relevant in this apportionment. In practical terms I need to consider the relative blameworthiness or culpability of each party and also the relevant causal potency of the negligence of each party. Blameworthiness 39. In Mckees case I distinguished the findings of Judge Curtis in James Hardie v Roberts (1999) 18 NSWCCR 500 on relative blameworthiness on the basis that although both parties had at the relevant time actual knowledge of the dangers of asbestos to the plaintiffs health (and to that extent were equally blameworthy) Amaca by it multiple involvements in the chain of supply firstly as the manufacturer, secondly as the distributor to the Hardies BI Company (i.e. partnership with CSR) and thirdly as a partner in the supply to the Queensland retailer Bradford's had in my opinion, in failing to warn any of their suppliers, end users or workers of the danger departed much further than the retailer Wallaby Grip from the reasonable standard of care imposed by the law of torts and was consequently more blameworthy. 40. In this context I note from Exhibit CCX 2.1 which is the deed of partnership for the "Hardie BI Company" that in addition to CSR Limited Bradford Insulation Industries Pty Limited was a party to the deed and was appointed by the partners as sole selling and distribution agent of K-Lite products. Pursuant to Cl 3(a) of Division 7 of that document Bradfords was appointed by the partners as sole selling and distribution agent of K-Lite products. Further pursuant to Cl 3 (a) of Division 7. Amaca well knew that its K-Lite that was for sale in Queensland was exclusively being retailed by Bradford Insulations. As in McKee's Case, this is another instance of Amaca being involved right along the chain of manufacture and supply up to the ultimate retailer to the end user. Wallaby Grips involvement on the other hand was only as a purchaser from Bradford's. Therefore, when it comes to making a comparison of the relative culpability of the parties, I would apportion the element of blameworthiness in the ratio of Amaca 70 per cent: Wallaby Grip 30 per cent. Causal Potency 41. I have determined that Mr Caldwell was exposed to K Lite from Wallaby Grip as opposed to other sources in the ratio of 40:60. However I have also noted, relying on the evidence of Mr Caldwell and the expertise of this expert tribunal, that the work described by Mr Caldwell on the bricklayers gang involved him inhaling asbestos dust directly in hi face whereas the dust he inhaled as a bystander came from a greater distance and was potentially less potent. Appreciating this is not a mathematical exercise I have reached the conclusion on the probabilities from this evidence that liability based on causal potency should be assessed Amaca 70%: Wallaby Grip 30%. 42. Taking all the evidence into consideration concerning both relative blameworthiness and causal potency I determine that liability for the supply of the K-Lite should be apportioned Amaca 75%: Wallaby Grip 25%. 43. In other words there should be a verdict in favour of the cross claimant for an amount equal to 25 per cent of the verdict against Amaca of $82,500 or $20,625. Costs. 44. While costs normally follow the event this is a case where the cross claimant has secured a much smaller contribution than the 95 per cent claimed. I am not aware of settlement negotiations but anticipate the possibility that the cross defendant may wish to argue costs. In the circumstances I propose to order that the parties endeavour to negotiate a settlement of the costs. Failing that I grant liberty to apply to have the Tribunal resolve the matter. Orders 45. I make the following orders: (a) Verdict for the cross claimant for $20,625 (b) Liberty to apply if the parties cannot resolve the question of costs. ********** 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.