(Re: Dankworth) Stevedoring Industry Finance Committee v Patrick Operations Pty Ltd [2005] NSWDDT 33

Dust Diseases Tribunal of New South Wales

CITATION : (Re: Dankworth) Stevedoring Industry Finance Committee v Patrick Operations Pty Ltd [2005] NSWDDT 33

Stevedoring Industry Finance Committee PARTIES : Patrick Operations Pty Ltd

MATTER NUMBER(S) : DDT209/00/1

JUDGMENT OF: Duck J

Miscellaneous Matters :- Dust Diseases Tribunal Cross claims between defendants CATCHWORDS: Contribution Indemnity costs

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 s 5

Ronald John Gibson v SIFIC and Ors DDT89 of 1996; Cassar v Stevedoring Industry Finance Committee DDT440 of 2002 cross claim; Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALR 1; CASES CITED: TNT Australia Pty Limited v Christie and Ors [2003] NSW CA 47; Oshlack v Richmond River Council 1998 193 CLR 72 at 89; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors 81 ALR 397 at 401; Milosevic v GIO of NSW (193) 31 NSW LR 323 at 348

DATES OF HEARING: 4 and 5 April 2005

EX TEMPORE JUDGMENT DATE : 04/06/2005

FOR CROSS CLAIMANT: Mr A Scotting instructed by Blake Dawson Waldron LEGAL REPRESENTATIVES: FOR CROSS DEFENDANT Mr J de Greenlaw instructed by McCulloch and Buggy

JUDGMENT: JUDGMENT DUCK J 1. On Monday this week there was listed for hearing a claim by Donald Lonsdale Dankworth, plaintiff against two defendants. The first defendant was the Stevedoring Industry Finance Committee the second defendant was Patrick Operations Pty Ltd, relevantly a stevedoring company. The proceedings were settled. Orders were made to give effect to the settlement and a minute of judgment was executed recording the fact of the judgment. Prior to the entry of judgment leave was sought by the second defendant, Patrick Operations Pty Ltd to issue a cross-claim against the first defendant, Stevedoring Industry Finance Committee. Hereafter I shall refer to those parties as Patricks and SIFC respectively. 2. The judgment recorded in the minute was simple enough. It is in the following terms: that the defendants pay to the plaintiff $200,000 inclusive of costs. The judgment took effect on 4 April 2005, that is Monday. What is now before the Court is a cross-claim brought by SIFC against Patricks seeking contribution or indemnity pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 s 5. 3. The matter has been argued against the background of the grant of leave to Patricks to make a similar claim against SIFC. The matter has proceeded as though that cross claim is on foot. 4. The way in which the cross-claim has been conducted is that the affidavit of the plaintiff Donald Lonsdale Dankworth filed on 31 January 2005 but otherwise apparently undated was tendered. The terms of settlement and the minute of judgment about which I have spoken were also tendered. Thereafter the matter was argued by reference to findings of fact set out in the matter of Ronald John Gibson v SIFC and Ors DDT89 of 1996 in which his Honour Judge Curtis gave judgment on 2 June 1998. I am told that the proceedings lasted for many weeks. If I may say so the judgment is a tour de force. There was an appeal from that judgment to the Court of Appeal inter alia in respect of the issue of the proper contribution to be made between SIFC, who was found liable, and Patricks, who were also found liable, to the plaintiff. The proceedings in the Court of Appeal lasted for three days. 5. The parties have sought, by reference to the material in Gibson, to either vary the approach taken to contribution in that case (Patricks), or (SIFC) to at least maintain the approach to contribution which the judgments in that case took. One may observe at the outset, bearing in mind the way in which the matter has been conducted, it would be surprising, unless the facts in Mr Dankworth's case were considerably different, if a different approach was called for to determine the rights as to contribution in this case. 6. As it happens there is an eerie parallel in the facts between Mr Dankworth's claim and Mr Gibson's. Mr Gibson was employed as a waterside worker in the Port of Sydney between 1956 and 1991. As the introductory parts of Judge Curtis' judgment make clear, between 1956 and 1967 before permanent employment became a feature of life on the waterfront Mr Gibson's work as a waterside worker exposed him to the inhalation of asbestos dust and fibre. Permanency became available in 1967. Thereafter Mr Gibson was allocated to the SEAL pool and worked being similarly exposed, although perhaps with some reduction in intensity of exposure, until June 1974. Mr Gibson's exposure was further ameliorated in that in June 1970 he became a crane and forklift driver. No exposure occurred after 1974. 7. Mr Dankworth commenced employment as a waterside worker on 23 May 1956. He continued in that work until permanency occurred in 1967. He and his gang were then assigned to Patricks as permanent employees of Patricks. His affidavit deposes to the fact that he continued to be exposed to asbestos in the same way until "about 1977" (par 19 CCX1). It will be seen then that Mr Dankworth had an almost identical period pre-permanency of employment as a wharf labourer as Mr Gibson did, and post-permanency he had a few years longer in Patrick's employment than did Mr Gibson in the SEAL pool. Importantly it is to be noted from Mr Dankworth's affidavit, CCX1 par 16, he said that, following the introduction of permanency: "I continued to unload asbestos in the same conditions and with the same regularity until about 1977, when containers were introduced." 8. In Gibson's case SIFC and Patricks each claimed contribution from the other pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 s 5. His Honour Judge Curtis, considering the respective blame and causal potency of the conduct of each of the parties, apportioned liability 75 per cent to Patricks and 25 per cent to SIFC. It is those proportions that in this case SIFC seeks to maintain and which Patricks seek to disturb. The matter went to the Court of Appeal in proceedings in which there were multiple grounds of appeal including an appeal dealing with apportionment. The principal judgment was given by Mason P who at par 110 of the judgment described what Judge Curtis had done qua contribution. He recorded some respects in which it had been submitted by SIFC that the judge had given inadequate weight to certain matters. There was a remark made by the judge in the course of giving judgment which was seized upon by the appellants as to which the learned President said: The remark is unfortunate but it does not persuade me to interfere, because (if it betokens the introduction of an irrelevant factor) I would reassess apportionment as between SIFC and Patrick in the same percentages. 9. The other two members of the Court of Appeal Stein and Heydon JJA agreed with the judgment of the learned President. 10. I turn then to look at the facts about Mr Dankworth's case. It will be convenient to divide his employment on the wharves into two periods, pre-permanency and post-permanency. The pre-permanency period extended from May 1956 to November 1967, that is eleven and a half years. In respect of that period he said at par 17 of CCX1: Prior to permanency on asbestos jobs I worked for Patricks (about 50 per cent), Macquarie Stevedoring (about 30 per cent), and Browns, Burns Philp and Hogans (about 20 per cent all up). 11. The post-permanency period of employment, according to the evidence, is from November 1967 until an unspecified date in 1977. That might be ten years or it might be nine years, it is difficult to know. Allowing for the 50 per cent of the time pre-permanency in which Mr Dankworth did not work for Patricks he was in effect employed by them for 73.25 per cent of the time if ten years post permanency be right or for 71.95 per cent of the time if the post-permanency period is nine years. Either way the post-permanency period in the employment of Patricks is a little longer than Mr Gibson's employment with the SEAL pool following his permanent employment on the wharves. 12. The nature of the duties of the respective defendants is different The Australian Stevedoring Industry Authority whose liabilities SIFC inherited, had duties which stemmed from its statutory powers and functions related to the risks faced by wharf labourers who were relatively defenceless in respect of dealing with those risks. Patrick's duty when the plaintiff Mr Dankworth was working for them was an employer's duty to provide reasonably safe systems of work and places of work. The day to day control of the men was in the hands of Patricks. They had a foreman stevedore present daily, they had a cargo supervisor present. Through these men they had direct knowledge daily of the loads the men had to unload from ships, the nature of the cargo, the way it was stacked, the difficulties associated with its unloading. If materials were being removed from hulls of ships in slings these men were there daily to observe any difficulties that might arise in connection with that work, with the damage to bags of asbestos, if that is what happened. They had the ability daily to provide masks if ever they thought of it, and as they did for those unloading wheat cargoes. They had the ability to wet down to prevent dust if that was thought to be appropriate. The Australian Stevedoring Industry Authority had an over arching duty but ultimately its powers were, by comparison with Patricks, restricted. Before permanency it could withdraw labour from a stevedore, although one imagines that such a move would cause a furore at the time, it could prosecute for offences, it could seek the deregistration of a stevedore and prior to either deregistration or prosecution it could give directions to stevedores about safety matters. 13. In comparing the duties, which, as I say, arise from their different sources, it is permissible to observe the comment of McHugh J in the matter of Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALR 1 at 13 par 60 (made about the Melbourne waterfront): Although the authority had an over arching supervisory and regulatory role with respect to safety on the waterfront, it is clear that the primary responsibility fell on the employers. The award placed a number of very specific safety responsibilities upon the employers (and not the authority) including an obligation to provide safety equipment where it was needed. 14. Bearing those matters in mind it is reasonably clear why the apportionment which Judge Curtis arrived at, and which was reinforced on appeal, was appropriate in Gibson's case. Mr Dankworth's case resembles Mr Gibson's closely enough to warrant no departure from the approach taken in those cases. Those considerations induce me to approach the question of contribution in the same way, that is in Mr Dankworth's case Patricks should bear 75 per cent of the burden of the verdict and SIFC 25 per cent. 15. Gibson was decided in the face of competing cross-claims. Although the second cross-claim has not yet been filed, this matter has been argued on the footing that both parties were interested in cross-claiming against the other. It was not attempted to distinguish this claim from Gibson at any stage of the argument simply because one of the cross-claims had not yet been formally commenced. The intention of this judgment is to say that the burden of the plaintiff's judgment ought to be borne by the defendants in the proportion three-quarters by Patricks and one-quarter by SIFC. 16. I turn to a couple of submissions for completeness sake. Reference had been made in addresses to an apportionment undertaken in the matter of Cassar DDT440 of 2002 cross-claim 1. The same parties, that is SIFC and Patricks, were engaged in the cross-claim. It was a matter in which the plaintiff spent 90 per cent of his time when exposed to asbestos in the employ of Patricks. The learned judge purported to act consistently with the apportionment in Gibson and ordered Patricks to bear 90 per cent of the plaintiff's damage and SIFC 10 per cent. Judgment was given on 26 June 2003 in the cross-claim. It was sought to distinguish that case on the ground that Cassar was a lung cancer case, that is the injury was indivisible, the present case is an asbestosis case in which the injury is divisible. I do not think the matter can be distinguished on a ground as simple as that. In the present case the tortious acts of the defendants were undertaken concurrently and they contributed to the same damage. In that circumstance the mere fact that asbestosis is a divisible condition does not provide ground for distinguishing Cassar. It may be otherwise if the present parties were successive tortfeasors. 17. Reliance was placed also by Patricks on some body hire cases. Reference was made to a case of TNT Australia Pty Limited v Christie and Ors [2003] NSW CA 47. It was submitted that in that case 75 per cent of the burden of responsibility was borne by the party with the day to day power to direct the worker and 25 per cent was directed to the body hire company. The matter was referred to in connection with a submission which fell out of consideration, namely, whether or not indemnity was appropriate. That case turned on a contractual indemnity which is not a feature of this case. It otherwise does not cause me to reconsider the apportionment which otherwise would appear appropriate. 18. It was submitted that as both defendants had a non delegable duty to provide a safe system of work they are to be regarded as equals when considering culpability of conduct. As to that submission two matters may be observed. Firstly, having regard to the way in which the duties of the Australian Stevedoring Industry Authority arose from the statute which created it, it does not help to simply lump the two together and describe them as non delegable duties. Secondly, the remarks in Crimmins would seem to suggest that the submission is not correct. Thirdly, the attitude of the Court of Appeal in Gibson would suggest the submission is not correct. 19. A submission was made that in considering culpability it ought be borne in mind that there was no evidence, so it was submitted, that Patricks knew about the effects of asbestos. I regard that submission as without merit in light of what the Court of Appeal has said repeatedly about foreseeability of the risk of injury from asbestos. There were other submissions made about the duties of port authority inspectors but I do not think it necessary to go through each of them in the circumstances. 20. Finally, it was submitted that Mr Gibson's exposure ended in about 1974, that is to say on 24 June 1974, and Mr Dankworth's case ought to be approached on a similar footing. It seems to me, with respect, that Mr Dankworth's affidavit about his exposure, which is uncontroverted, requires a slightly different approach, but in the end, for the reasons that I have already given, I do not think it matters much. 21. The time during which the plaintiff was employed by Patricks may be 73.25 per cent of his time on the waterfront or it may be a little less than 72 per cent ie 71.95 per cent. The mathematics reduced to such particularity give a spurious air of accuracy when determining matters of contribution. The circumstances of Mr Dankworth are sufficiently close to those of Mr Gibson to require no different apportionment of the plaintiff's verdict than was undertaken in Gibson. 22. I enter a verdict and judgment for the cross-claimant against the cross-defendant in the sum of $150,000 plus costs. 23. The cross-claimant seeks indemnity costs. The order is sought on two bases which are related but which are different. The first of the bases stems from an offer of compromise sent with a letter of 11 February 2005 by the cross-claimant's solicitors to the cross-defendant's solicitors. The formal offer was expressed as follows: Pursuant to Pt 22 r 12 of the Supreme Court Rules the first defendant offers to the second defendant to contribute 26 per cent to any damages and costs awarded to the plaintiff in these proceedings. 24. The cross-claimant has done minimally better than that. The cross-defendant submits that there is so little in it that really indemnity costs should not follow. With respect I do not see it that way. The offer was made, the offer has been beaten and the fact that the cross-defendant nearly got there but did not does not seem to work to deprive the successful party of the costs it seeks. 25. The second basis upon which indemnity costs are sought is that the matters the subject of the present cross-claim have been sufficiently clearly determined that to run it again amounted to a form of delinquency which the Court should not tolerate. Having regard to the formal offer which was made and bettered I do not believe it is necessary to consider the second limb. There will come a time when it is necessary to decide it, it is not necessary in this case. 26. The costs payable by the cross defendant should include indemnity costs, having regard to the offer to settle which was made and bettered, from 11 February 2005. 27. I wish to add for the convenience of those who might come later the following: the authorities upon which the applicant for indemnity costs moved were Oshlack v Richmond River Council 1998 193 CLR 72 at 89, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors 81 ALR 397 at 401 and Milosevic v GIO of NSW (1993) 31 NSWLR 323 at 348. I record those matters because they may be of assistance to people reading this judgment later. 28. I direct the return of CCX3 on the undertaking of the solicitor for the cross-claimant to return the folders of documents if they are needed further. Mr A Scotting instructed by Blake Dawson Waldron appeared for the Cross-Claimant Mr J de Greenlaw instructed by McCulloch & Buggy appeared for the Cross-Defendant