Dust Diseases Tribunal of New South Wales CITATION : (Re Limpus) Seltsam Pty Ltd v Amaca Pty Ltd [2006] NSWDDT 2 (Re: Cathryn Anne Limpus) PARTIES : Seltsam Pty Ltd Amaca Pty Ltd MATTER NUMBER(S) : DDT250 of 2002/1 JUDGMENT OF: Duck J CATCHWORDS: Miscellaneous Matters :- DATES OF HEARING: 21 February 2006 EX TEMPORE JUDGMENT DATE : 02/21/2006 FOR CROSS-CLAIMANT: Mr W Austron instructed by Makinson & D'Apice appeared for the cross-claimant LEGAL REPRESENTATIVES: FOR CROSS-DEFENDANT: Mr G Watson, SC instructed by Holman Webb appeared for the cross defendant JUDGMENT: 3 Dust Diseases Tribunal of New South Wales Matter Number DDT250 of 2002/1 (Re: Cathryn Anne Limpus) C.C.: Seltsam Pty Ltd v C.D.: Amaca Pty Ltd 21 February 2006 DUCK J RULING 1. The cross-claimant seeks to tender an expert report with a letter from Mr Pickford about the testing he carried out on a couple of samples produced to him for testing. It is to be remembered that Mr Hill, the plaintiff's father, built the house at Golflinks Road, Bowen completing it somewhere around 1964, that is 42 years ago. He was asked about it towards the end of his evidence in chief, see transcript p 23 commencing at line 39. This question was put to him: Question - You refer to the manhole cover being made of Asbestolux. That is the one in Golflinks Road I take it. Answer - Golflinks Road, yes. Question - What are the characteristics of Asbestolux. Answer - Just normal flat plain fibrolite sheeting. A little later: Question - Would you have cut and otherwise altered and used to fit in that Golflinks Road house. Answer - Yes, I cut the corner out of the full sheet. 2. What Mr Pickford has purported to test is a ceiling tile product named Asbestolux. Mr Hill did not speak of a ceiling tile product but rather of a normal flat plain fibrolite sheeting. That there is a difference between the two is spoken of by Mr Pickford in his report. The tile is softer and easier to break than normal asbestos cement. Further, he said, it is different because it does not appear to have cement as the matrix. RULING SUSPENDED 3. Before lunch I started to give a ruling about the admissibility of reports prepared by Mr Pickford relating to an analysis he undertook of two asbestos cement samples. I was setting off with a misapprehension of what his report was saying. Concerns have been raised, firstly, about the provenance of the materials he ended up considering. It seems to me on reflection that at least on the balance of probabilities what he tested was the manhole cover from 31 Golflinks Drive, Bowen, and a piece of material taken from the front of the house. Letters from solicitors describing the sending off of the samples to various people have been made available. Ultimately I think it more probable than not that that is what the witness tested. 4. It is submitted that there has been insufficient regard had to the principles of Makita (Australia) Pty Limited v Sproules (2001) 52 NSW LR 705 in the preparation of the report. What was done was that Mr Pickford, whom I have had occasion to criticise in the recent past in a different case, conducted a polarised light microscopy analysis of the material, a laboratory method he employed as described. Sample 1 consisted of a sheet with the dimensions 44 by 44 centimetres, about the size of a manhole cover. So as far as that analysis goes his credentials having been set out at the back of the report. I think that the analysis is sufficiently explained. What he attempted to do is set out clearly enough, and his conclusions in relation to those materials may be well understood. 5. For those who may come to read these papers later I ought to indicate that the witness has a degree of Bachelor of Engineering, and a subsequent degree of Master of Engineering Science. He has been an industrial hygienist certified to the American Board of Industrial Hygiene Standards since 1984. He has been employed by the major players in the asbestos industry in Australia in that he worked for CSR Ltd from 1959 until 1972. From 1972 to 1977 he worked for Wunderlich Ltd. From 1977 to 1983 he worked for James Hardie Industries Ltd as the chief industrial hygiene engineer and from 1983 to 1988 he had a similar position in the Corporate Environment Department for that company. I accept that he has the expertise to conduct the analysis that he did. 6. The additional material contained in his letter of 15 October 2002 amounts to comment about the samples that he tested and the test results. In all of the circumstances I propose to admit the reports. In doing so I acknowledge the force of the submission advanced on behalf of the cross-defendant to the effect that the witness Mr Hill put in place a manhole cover 38 years prior to the tests. Common experience suggests that manhole covers are not the sort of things to be removed and replaced or likely to get damaged in the ordinary course of things. As I say I propose to admit the reports. Mr W Austron instructed by Makinson & D'Apice appeared for the Cross-Claimant Mr G Watson, SC instructed by Holman Webb appeared for the Cross-Defendant 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.