Krobar Investments Pty Ltd v Wallaby Grip (BAE) Pty Ltd; (in liquidation) (Re Daniels) [2005] NSWDDT 58

Dust Diseases Tribunal of New South Wales

CITATION : Krobar Investments Pty Ltd v Wallaby Grip (BAE) Pty Ltd; (in liquidation) (Re Daniels) [2005] NSWDDT 58

Krobar Investments Pty Ltd (cross-claimant) PARTIES : Wallaby Grip (BAE) Pty Ltd (in liquidation) (cross-defendant)

MATTER NUMBER(S) : 452 of 2003/3

JUDGMENT OF: Curtis J at 1

CATCHWORDS: :- cross-claim

LEGISLATION CITED: s5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946

Rolls Royce Industrial Power (Pacific) Ltdv James Hardie & Co Pty Ltd (no 4) 18 NSWCCR 653; Re Hunt: ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; James Hardie & Co Pty Ltd v Roberts (1998) 47 NSWLR 425; CASES CITED: Wallaby Grip Ltd v State Rail Authority (NSW) &Ors (2001) 21 NSWCCR 650; Rolls Royce Industrial Power (Pacific) Ltd v James Hardie &Coy Pty Ltd [2001] NSWCA 461; Maxfield v Llewellyn [1961] 1 WLR 1119

DATES OF HEARING: 31 October 2005

DATE OF JUDGMENT: 11/09/2005

FOR CROSS-CLAIMANT: Mr DRJ Toomey instructed by Hicksons LEGAL REPRESENTATIVES: FOR CROSS- DEFENDANT: Mr DJ Russell SC instructed by Middletons Lawyers

JUDGMENT:

Dust Diseases Tribunal of New South Wales Matter Number DDT 452 of 2003/3 (Re: David Charles Clifford Daniels) Krobar Investments Pty Limited (Cross-Claimant) v Wallaby Grip (BAE) Pty Ltd (in liquidation) (Cross-Defendant) 9 November 2005

JUDGMENT CURTIS J The claim 1. Pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946, Krobar Investments Pty Limited (Krobar) claims from Wallaby Grip (BAE) Pty Ltd (in liquidation) (BAE), a supplier of asbestos products, contribution to a judgment entered against Krobar in favour of a former employee, David Charles Clifford Daniels, in the sum of $100,000. 2. Mr Daniels sued both Krobar and another employer, Bluescope Steel (AIS) Pty Limited (Bluescope), for damages, after contracting the disease of mesothelioma in consequence of exposure to asbestos dust and fibre in the course of his employment with each of them. This litigation was concluded by the entry of separate judgments against each defendant, that against Bluescope being in the sum of $250,000. Agreed facts 3. During his employment with Krobar, Mr Daniels was not exposed to asbestos fibre liberated from BAE's products, however the asbestos products to which he was exposed in his employment with Bluescope were as to 60 per cent supplied by Amaca Pty Limited (formerly James Hardie and Co Pty Limited), and as to 40 per cent supplied by BAE. In consequence, conceding breach of duty, BAE accepts that, if sued, it would have been held liable to Mr Daniels for the same damage the subject of the judgment against Krobar. Earlier proceedings 4. Cross claims between Bluescope and Krobar were, after the entry of the separate judgments, dismissed by consent. 5. Cross claims by both Bluescope and Krobar against Amaca and BAE have resulted in Bluescope's recovering $90,000 from Amaca and $50,000 from BAE. Krobar has recovered $45,000 from Amaca. In the result Krobar presently bears a net liability of $55,000 in respect of the plaintiff's total damages of $350,000. The issue 6. Should BAE contribute further to Krobar although Mr Daniels was not exposed to any of BAE's products when he was employed by Krobar? Relative contributions to the plaintiff's fibre burden 7. Mr Daniels was employed by Bluescope as a labourer to work at its Port Kembla premises between 21 September 1970 and 7 April 1971. He was, between some later day in April 1971 and about November 1972, employed by Krobar as a painter, 95 per cent of his work being performed at the Port Kembla premises of Bluescope. 8. While in the employment of Bluescope, Mr Daniels was exposed to asbestos in the maintenance and repair of furnaces and coke ovens. With Krobar he was exposed when he scraped and sanded asbestos cement sheets in preparation for painting. Thirty per cent of his time was spent painting asbestos cement sheets and 50 per cent of that time was spent in the preparatory work. In addition to this exposure, Mr Daniels was exposed in the course of his employment with Krobar to asbestos fibre liberated by the activities of carpenters and laggers who worked at times in his vicinity. 9. Mr Daniels estimated that 60 per cent of his exposure to asbestos occurred during his employment with Bluescope and 40 per cent during his employment with Krobar. This assessment is consistent with the balance of the evidence given in his trial and I accept it as a reasonable apportionment of the causal contributions made to his disease in the respective periods of employment. 10. By deduction, the breach of duty by BAE contributed 24 per cent (40 per cent of 60 per cent) to the plaintiff's total fibre burden. The breach of duty by Krobar contributed 40 per cent. The primary question 11. To what matters may I have regard in assessing contribution pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946? Section 5(2) of the Act provides: In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; ….