Dust Diseases Tribunal of New South Wales CITATION : Comcare v Amaca Pty Limited [2009] NSWDDT 17 PARTIES : Comcare Amaca Pty Limited MATTER NUMBER(S) : 8088 of 2008 JUDGMENT OF: Curtis J at 1 DUST DISEASES TRIBUNAL :- Mesothelioma CATCHWORDS: Peto Formula Apportionment LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 DATES OF HEARING: 17/6/09-18/6/09 DATE OF JUDGMENT: 23 June 2009 Mr G F Little SC instructed by Clayton Utz appeared for the plaintiff Comcare LEGAL REPRESENTATIVES: Mr D J Russell SC instructed by DLA Phillips Fox appeared for the first defendant Amaca Pty Ltd JUDGMENT: Dust Diseases Tribunal of New South Wales Matter Number 8088 of 2008 Comcare v Amaca Pty Limited 23 June 2009 JUDGMENT CURTIS J Introduction 1. A plaintiff, Craig John Butler, contracted mesothelioma as a result of exposure to asbestos dust and fibre and sued Amaca Pty Limited (Amaca) for damages. Amaca claimed contribution from TAFE Commission of New South Wales, New South Wales Fire Brigades and Comcare. 2. On 25 September 2007, Mr Butler, Amaca, and the cross defendants agreed that judgment be entered against Amaca in a sum of $3,200,000 inclusive of costs, and that judgment be satisfied by the following payments: Amaca to pay $1,354,240. TAFE Commission to pay $75,200. NSW Fire Brigades to pay $75,200. Comcare to pay $1,695,360. 3. The parties liable agreed that the issue of contribution should be finally resolved by the hearing of cross claims. 4. Thereafter Comcare claimed contribution from Amaca, TAFE, and NSW Fire Brigades pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. 5. Comcare has since resolved proceedings against TAFE and NSW Fire Brigades, in consequence of which the sum to be apportioned between Comcare and Amaca in accordance with s5(2) of the Act, having regard to the extent of their causal contribution and culpability, is $2,889,600. Causal contribution of Amaca Visits to the factory 6. Mr Butler was born on 29 December 1965. For three years between 1979 and 1982, both of his parents were employed in administrative roles by Amaca at its Moss Vale factory, where asbestos cement pipes were manufactured. On occasions Mr Butler visited the factory, and, while waiting for his parents, amused himself by playing in and around asbestos cement pipes that were stored in the yard. Mr Butler said in evidence before the mediator that he probably visited the factory 10 or 12 times, that he played on the pipes on one third of these occasions for over an hour, and that his clothing became dusty. 7. Mr Malcom Butler, the plaintiff's father, said that the only time his son came to the factory to visit was on the odd occasion during school holidays or on a Saturday if the father's presence was required for a stock-take. He said that the visits occurred only "a handful of times". Although that phrase is inexact, it is more consistent with a number of 6 rather than 12. 8. I tend to discount somewhat Mr Butler's account of this exposure. He said that each time he visited the factory premises he saw "dust in the air from the asbestos cement pipes when he walked around the factory". 9. This evidence cannot stand with that of Mr Neil Hooke, who was Project Engineer and Safety Superintendent at the factory during the relevant period. Mr Hooke says that the factory was clean and relatively dust free, dust levels were constantly tested and monitored, and dust could not be seen in the air. 10. Further evidence indicates that at no time did any employee at the factory claim compensation in respect of any asbestos-related condition. 11. I think it probable that over these three years Mr Butler was exposed for a total of three hours to moderate concentrations of asbestos dust when clambering over and through asbestos cement pipes. Assisting with deliveries 12. On six occasions Mr Butler assisted a delivery contractor, Mr Rob Robinson, in loading and unloading asbestos cement pipes. Forklifts lifted the palletised pipes onto the truck and cranes lifted them off. Mr Butler said he slid ropes over or under the pallets. These ropes may have been contaminated with asbestos fibre. If he handled the ropes for two minutes on each occasion of loading and unloading, the total exposure to a trivial amount of dust amounts to 12 minutes over three years. I regard this as de minimis. Offcuts from the factory 13. Mr Butler senior took home discarded cylindrical asbestos cement pipe joiners for use as shrub surrounds in his garden. There is no evidence that these surrounds gave off respirable asbestos dust Recladding his uncle's home 14. In about 1980 Mr Butler helped his uncle and his father re-clad the uncle's home at Moss Vale with asbestos cement sheeting supplied by Amaca. The work took place on weekends over several months, although Mr Butler was not present on every day that work took place. He helped to unload the sheets from the delivery truck, which task Mr Butler senior says occupied one hour, and on some occasions handed up sheets to his father or uncle. He was mostly playing in the yard. The sheets were cut by the score and snap method, although some may have been cut by an angle grinder. There is no evidence that the plaintiff stood in close proximity when cutting took place. 15. It is very difficult to determine the duration and concentration of asbestos exposure during this work, however it is probably reasonable to allow a total of one hour moderate exposure during unloading, and four hours light exposure when handing up sheets. Building a fence at the grandparents' home 16. Also in about 1980, Mr Butler and his father built a fence, about 50 or 60 m long, at the home of the grandparents. They used asbestos cement sheets supplied by Amaca, and the work occupied one weekend. The work unloading the sheets from the delivery truck again occupied about one hour. Although the plaintiff in his particulars said that the sheets were cut with both power tools and the score and snap method, Mr Butler senior said in evidence that the sheets did not require cutting because the fence posts were erected at suitable lengths to accommodate their unbroken length. He also said that if there was cutting, he would have used fibro cutters. 17. Much of the work required to build a fence involves digging holes and setting posts. In respect of this work it is reasonable to allow one hour of light to moderate exposure, and eight hours of light exposure. Building a shed at the parents' home 18. Sometime in 1980 Mr Butler helped his father built a chook shed at their family home. They used half-inch thick compressed asbestos cement sheets for floor and roof. The sheets were cut by Mr Butler senior with an angle grinder, although he arranged to have running water play upon the blade during this process. No dust was produced. 19. I discount this incident entirely. Summary of exposure 20. Visits to the factory: 3 hours moderate exposure. Recladding the uncle's home: 1 hour moderate exposure, 4 hours light exposure. Building the grandparents' fence: 1 hour moderate exposure, 8 hours light exposure. Total: 5 hours moderate exposure, 12 hours light exposure, commencing in 1979 Causal contribution of Comcare 21. Mr Butler joined the Australian Army in 1986. Between 1988 and mid-1991 he served as an apprentice carpenter in Perth at the Karrakatta base. In the course of his training, his work at the base involved doing maintenance and upgrades, for example knocking out walls, and putting in doors. In the course of this work his contact with asbestos was "ripping out old material". 22. In a report to the Department of Veterans Affairs, Mr Butler identified the sites of five renovations in which he was exposed to respirable asbestos fibre. In evidence before the mediator Mr Butler said that each project involved a couple of days' work and that the dust was still around until the end of the job. 23. After 1991 Mr Butler was also exposed to small amounts of asbestos fibre, but he was protected by wearing an appropriate mask. It is convenient to disregard this later exposure which is statistically insignificant. 24. It is reasonable to suppose that in respect of the work which involved demolition of old fibro, Mr Butler was exposed to heavy concentrations of asbestos dust for at least one hour on each occasion, giving a total of 5 hours heavy exposure. 25. It is also reasonable to suppose that he was exposed, on each of the 5 days on which demolition took place, to a further six hours of moderate concentration, while working in the residual dust. This gives a total of 30 hours moderate exposure. Summary of exposure 26. Five hours of heavy concentration and 30 hours of moderate concentration, commencing in 1988. Application of the Peto formula 27. The mesothelioma rate increases according to time since first exposure, and the concentration of that exposure. 28. Sir Richard Peto devised a generally accepted formula which gives a mathematical measure to the causal potency of particular exposures in the aetiology of mesothelioma. The formula is rate=ctk, where c is proportional to the product of concentration and duration of exposure, t is the time since first exposure, and k is a variable power. For short periods k may be taken as 3. The parties are agreed that I may apply this formula to such facts as I may find. 29. In applying the formula I have assigned a weighting of 1 to light exposure, 5 to moderate exposure, and 10 to heavy exposure. These weightings are consistent with descriptions and measurements of exposure given in previous cases in the Tribunal, and with everyday experience. Mr Butler's mesothelioma was diagnosed in 2006, 27 years since his first exposure in 1979 Amaca's responsibility 30. Five hours moderate exposure commencing in 1979 is represented in the following calculation: Rate= (5x5 hours) x (27 years) 3 =492,075. 12 hours light exposure commencing in 1979 is represented by: Rate= (1 x 12 hours) x (27 years)3=236,196. Total: 728,271. Comcare's responsibility 31. 5 hours heavy exposure commencing in 1988 is represented by: Rate= (10 x five hours) x (18 years) 3 = 291,600. 30 hours moderate exposure commencing in 1988 is represented by: Rate= (5 x 30 hours) x (18 years)3= 874,800. Total: 1,166,400. Conclusion 32. The causal contributions of Amaca and Comcare are in the proportion 728,271 to 1,166,400, or approximately 38.4 per cent to 61.6 per cent. Although any errors in the assumptions made as to concentration and duration of exposure have been magnified in applying the formula, this uncertainty probably affects both parties in equal measure. Culpability 33. Neither party has led evidence or made submissions in relation to culpability. In the circumstances of the case, where Amaca may have had greater cause to appreciate the risk, but Comcare had greater control of the conditions of exposure, I think it appropriate to find them equally culpable. Result 34. Amaca is responsible for 38.4 per cent of the net amount of damages which are agreed at $2,889,600. That is $1,109,606.40. Amaca has already paid $1,354,240. Comcare is not entitled to further contribution. Orders 35. Judgment for Amaca. Comcare to pay the costs of Amaca. Liberty to apply in relation to errors of calculation and/or special costs orders. Mr G F Little SC instructed by Clayton Utz appeared for the plaintiff Comcare Mr D J Russell SC instructed by DLA Phillips Fox appeared for the first defendant Amaca Pty 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.