Dust Diseases Tribunal of New South Wales Eraring Energy v SC Cheadle Hulme Ltd [2005] NSWDDT 46 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. Eraring Energy PARTIES : SC Cheadle Hulme Limited ( Formerly sued as Simon Carves) MATTER NUMBER(S) : 85 of 2000 JUDGMENT OF: Walker J at 1 :- LEGISLATION CITED: s 5 and s 6 of the Law Reform ( Miscellaneous Provisions) Act 1946 (Re Gynes) Eraring Energy v Cheadle Hulme Ltd & Ors (unreported 24 September 2004 Matter No DDT 70 of 2001); Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16; Donnelly v Edelsten (1994) 49 FCR 384); James Hardie & Co Pty Limited v Hall (Putt) (1998) 16 NSWCCR 289 ; CSR Limited v Wren (1998) 15 NSWCCR 650; CASES CITED: Voli v Inglewood Shire Council (1963) 110 CLR 74; (Re Hunt) Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 ; Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 ; Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 60 at 66 Macquarie Pathology Services Pty Ltd v Sullivan NSWCA No:40313/94 28 March 1995 ; James Hardie Pty Limited v Roberts (1999) 18 NSWCCR 500 DATE OF JUDGMENT: 08/05/2005 Cross Claimant: Wendy S. Strathdee JUDGMENT: Judgment Walker J Background To Litigation A brief history of these proceedings is as follows: 1. Pat Hood contracted asbestosis, pleural thickening and pleural plaques whilst employed by JR Pillars Pty Ltd as a rigger\scaffolder at the Tallawarra Power Station between 1952 and 1959. During his employment which involved building and construction work upon a new power station he was exposed to and inhaled asbestos dust and fibre as a bystander working in the vicinity of laggers applying asbestos insulation to the boilers plant and equipment a task which involved sawing, drilling and culting of asbestos material. 2. Pat Hood sued:- (i) The owner\occupier of the power station Eraring Energy (successor in title to the Electricity Commission of NSW) for damages for negligence for failing to ensure he had a safe system of work. (ii) Babcock Australia Limited, a subsequent employer who had exposed him to asbestos dust and fibre between 1965 and 1966 for negligence for failure to provide him with a safe system of work (iii) BHP Steel (AIS) Pty Ltd, another subsequent employer, who employed the plaintiff at its Port Kembla Steelworks exposing him to asbestos dust and fibre. (iv) TGI Australia Limited, the insurers of his employer JR Pillars Pty Limited, for damages for negligence in failing to provide him with a safe system of work as well as breach of statutory duties. 3. On 24 September 2001 the parties settled the primary claim filing terms of settlement and an order for judgment whereby the plaintiff received: (i) a verdict against Eraring Energy for $74 166.70 inclusive of costs (ii) a verdict against Babcock Australia Limited for $27,500 inclusive of costs (iii) a verdict in favour of BHP Steel (AIS) Pty Ltd (iv) a verdict against TGI (Australia) Pty Ltd for $ 148,333.30 inclusive of costs. 4. On the 19 th October 2001 Eraring Energy filed cross claims against Simon Carves Limited, Wallaby Grip Limited and Amaca Pty Limited. 5. The cross claim against the third cross defendant was settled on 30 June 2003 when a verdict and judgment was entered against Amaca Pty Ltd in the sum of $17,500. (including costs) 6. The cross claim against the second cross defendant was settled on 1 st December 2003 when a verdict and judgment was entered against Wallaby Grip limited in the sum of $28,000. (including costs) 7. The cross claim was duly served upon the first cross defendant at its registered address, viz; Sim Chem House, Warren Road Cheadle Hulme, Cheadle, Cheshire SK8 5 BR United Kingdom. Clayton Utz solicitors were then instructed by the 1 st cross defendant and wrote to the cross claimants solicitors on 26 November 2001 advising that their client would not be entering an appearance in any matter commenced in this Tribunal. 8. The matter against the third cross defendant was listed for hearing of default judgment and assessment of damages before this Tribunal on 25 June 2004 and subsequently adjourned to 1 st February 2005. 9. On the 1 st February 2005 default judgment was entered pursuant to Part 17(5) of the Supreme Court Rules for unliquidated damages and costs. The Tribunal then proceeded to hear, ex parte the question of assessment of damages. Introduction 10. Eraring Energy, having had its payment to the plaintiff partly indemnified by contributions from the 2 nd and 3 rd cross defendants, now seeks orders pursuant to the provisions of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 apportioning as against the 1 st Cross Defendant the remainder of its liability to Mr Hood ($39,166.70). It also claims costs and interest. 11. In (Re Gynes) Eraring Energy v Cheadle Hulme Ltd & Ors (unreported 24 September 2004 Matter No DDT 70 of 2001) I made a series of findings of fact and law that are relevant to the assessment of damages in this case. Pursuant to the provisions of s 25(3) and s 25B of the Dust Diseases Tribunal Act 1989 historical evidence admitted in any proceedings before the Tribunal may be received in any other proceedings before the Tribunal whether or not the proceedings are between the same parties and issues of a general nature previously determined may not be relitigated or reargued in other proceedings before the Tribunal without leave. Preliminary Findings 12. I should first make the following preliminary findings necessary to the support of any ultimate decision on the appropriate apportionment of damages Plaintiffs Employment With J R Pillars Pty Limited 13. The plaintiff has received judgment on the 24 September 2001 against the insurers of his employer J R Pillars Pty Limited. The statement of claim upon which that judgment was based alleges he was employed by J R Pillars from 1952 to 1959 as a rigger/scaffolder at the Tallawarra Power Station owned by Eraring Energy. I find for the purposes of this apportionment of liability that he was so employed. Cross Claimant is a Continuation of Pacific Power 14. Eraring Energy is a state corporation which has undergone a number of name changes since 1952 as the NSW power industry has been restructured by the Legislature. By operation of the provisions of Sch 7 Pt 2(3) of the Energy Services Corporations Act 1995, Eraring Energy is deemed to have been the occupier of and to have assumed all liabilities relating to Tallawarra power Station between November 1952 and 1960. I find accordingly. Change of Name Simon Carves Pty Limited 15.The affidavit of Vincent John Goldrick dated 25 January 2005 and tendered in evidence attests to company searches revealing that Simon Carves Limited has changed its name to S.C. Cheadle Hulme Limited. Legal Relationship Between J R Pillars Limited, Elcom and Simon Carves Limited 16. In re Gynes I considered, at some length, the history of Simon Carves Limited presence in the Australian and NSW boiler construction markets since World War II and in particular its contractual relationship with the NSW Department of Public Works and the Electricity Commission of NSW (Elcom) concerning the construction of the Tallawarra Power Station. I also considered the history of the incorporation of the wholly owned subsidiary Simon Carves (Australia) Limited, a company to which the original contracts between the NSW Government and Simon Carves Limited were assigned. A brief summary of that history is as follows: 17. On 16 August 1948 the NSW Government approved its Department of Public Works entering into negotiations with Simon Carves Limited of Stockport England to supply 2 boilers complete with ancillary plant and equipment. · On 4 April 1949 Simon Carves Limited tendered to NSW Public Works for the contract. · On 26 July 1949 Simon Carves Limited requested that the formal contract be made with its Australian subsidiary. Elcom approved the execution of the contract on 7 February 1952. · On 15 October 1953 Elcom approved further contracts. All contracts were subject to the parent company guaranteeing the due and faithful performance by this Australian subsidiary of the obligations under the contracts. 18. In Gynes case I considered voluminous documentary evidence which went to the control exercised by Simon Carves Limited over its Australian subsidiary notably the appointment of its employee H J Morrison to direct the affairs of the Australian company and control over plans specification materials, spare parts and testing processes. That control was so significant that the plaintiffs employer J R Pillars Pty Limited a subcontractor of the Australian subsidiary (see tab 16) had a resident engineer holding joint positions with Simon Carves and J R Pillars (see tab 18 letters dated 15.6.55, 15.8.56 and 6.11.56) 19. In Gynes I found that a principal and agent relationship existed between Simon Carves Limited and its wholly owned Australian subsidiary sufficient to establish the duty of care enunciated in Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16. (see also decision of the Full Federal Court in Donnelly v Edelsten (1994) 49 FCR 384) 20. Having accepted that it is appropriate to treat Simon Carves (Australia) Limited and its subcontractor J R Pillars Limited as agents of Simon Carves Limited I find: (i) a direct liability of Simon Carves Limited to the plaintiff Mr Hood by reason of its own activities and (ii) a further liability by virtue of the degree and manner of control or influence it exerted over both its Australian subsidiary and Mr Hoods' employer J R Pillars Pty Limited. Evidence Going To Liability 21. In Gynes case I considered at length the voluminous documentary evidence also tendered in this case. I summarise that evidence as follows: ( Reference to Tabs in this recital refers to Tab numbers in the Cross Claimants volumes of tendered evidence.) A. Evidence going to contractual matters between Simon Carves Limited and NSW government for the construction of the Tallawarra Power Station ( Reference to Tabs in this recital refers to Tab numbers in the cross claimants volumes of tendered evidence). (a) Tab 6 Evidence under this tab recites tendering process and negotiations for construction of the 2 boilers at Tallawarra (b) Tabs 6, 7 and 8 Evidence concerning the signing of contracts with the Australian subsidiary and the guarantee of the work by Simon Carves Limited (c) Tab 9 Elcom approval of contracts with subsidiary "subject to Simon Carves Limited of Stockport, England, guaranteeing the due and faithful performance by the Australian Company of its obligations under those contracts". 2. Evidence of Control over Subsidiary (a) Tab 10 Evidences formation of subsidiary and appointment of Simon Carves Limited director H J Morrison (b) Tab 11 Evidences use of Simon Carves Limited catalogues, pamphlets etc. for construction of power stations. (c) Tab 12 Evidences manufacture of spare parts for power station by parent company . (d) Tab 13 Evidences Simon Carves Limited direct involvent in resolving problems with plans specifications and interchangeability of mill parts." (e) Tab 14 Evidence that Simon Carves Limited carried out the acceptance tests on No 4 boiler and its engineer was present to carry out tests 3. Evidence of relationship between J R Pillars and Simon Carves (Australia) Limited (a) Tab 15 Admission that Mr Hood was employed by J R Pillars Limited at Tallawara Power Station between November 1952 and April 1960 (b) Tab 16 Evidence that J R Pillars Limited was subcontractor of Simon Carves (Australia) Limited (c) Tab 17 Evidence of Walter Wilcockson concerning association of J R Pillars Limited and Simon Carves in other Australian power stations. (d) Tabs 18 & 19 Evidence of control by Australian subsidiary over J R Pillars Limited including appointment of joint resident engineer and discussions about award rates of pay. (e) Tab 20 Photographic evidence of presence side by side on construction site of J R Pillars and Simon Carves (Australia) Limited. 4. Evidence of Simon Carves Limited specifying use of asbestos on construction of Power Station boilers . (a) Tabs 21 to 26 Evidence of requirements by Simon Carves Limited to use asbestos in quotations concerning feed suction and delivery range, blowdown piping, work on boilers, steam mains etc. (b) Contract Drawings (1-154 and 1-159 to 161) Evidence specifying use of asbestos insulation jointing and millboard in construction of boilers and associated equipment. (c) Affidavits Evidence in affidavits of plaintiff, Henry Pennell, James Rogers and Donald Shead showing extensive use of asbestos by employees of J R Pillars at Tallawarra Power Station 5. Evidence concerning actual knowledge of the dangers of Asbestos by Simon Carves Limited 22. In Gynes case I canvassed, in detail, the history of Simon Caves Limited sourced by a range of documents in evidence concluding that it was more probable than not that Simon Carves Limited had actual knowledge in 1931 that exposure to asbestos was extremely dangerous to workers and was likely to cause partial disablement and or death. 23. I further found that Simon Carves Limited knew of the existence of the disease asbestosis and of the advice of the Home Office that exposure to asbestos products could cause that disease. I also found actual knowledge that : (i) The mixing and manipulation of asbestos could cause asbestosis. (ii) The U.K. Government had implemented a scheme to protect workers in engineering companys which used asbestos products from contracting asbestosis. (iii) The U.K. Government regulations required the use of protective masks and other safe systems of work such as dust extractors and dampening in work places where asbestos dust and fibre was being generated. Case Law On Liability Of Manufacturers & Suppliers Of Asbestos Products 24. It is the cross claimants submission that Simon Carves Limited has been proved to be a tortfeasor which would, if sued, have been liable to the plaintiff Mr Hood, either on the basis of its direct relationship with the manufacture and supply and design of asbestos product for use on the power station during the period Mr Hood was employed or alternatively as the controlling principal of Simon Carves (Australia) Pty Limited and J R Pillars Pty Limited. 25. In James Hardie & Co Pty Limited v Hall (Putt) (1998) 16 NSWCCR 289 the Court of Appeal held that it is of the nature of a parent company/subsidiary relationship that the parent company is in a position to exercise overall control over the policy of the subsidiary. The question was whether the control or influence over the plaintiffs employer (James Hardie New Zealand) was such as to impose a duty in the parent company James Hardie & Co Pty Ltd to the plaintiff of which there was a breach. Because the subsidiary was a separate legal entity the Court of Appeal found the case not made out. However in CSR Limited v Wren (1998) 15 NSWCCR 650 the Court of Appeal held: (i) There can be no dispute that a manufacturer may owe a duty of care beyond that owed to the direct purchaser. (ii) A supplier of goods known to be dangerous if precautions as to their use are not observed owes a duty to both an employer using those goods and its employees in situations where the supplier has knowledge that it is obvious from the nature of the goods and their intended use that employees would be handling the product in either its processed or unprocessed form. (iii) The Court of Appeal also relied upon the decision of the High Court in Stevens v Brodribb Sawmilling Co (supra) and in particular the principle stated by Brennan J at 47 that : "An entrepeneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepeneur is under a further duty to carry out that activity. The entrepreneurs duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risk of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepeneur". 26. It is the cross claimants case that the evidence supports the conclusion that neither Simon Carves (Australia) Pty Limited or J R Pillars Pty Limited were independent of the cross defendant who rigidly controlled all aspects of the construction of the boilers and associated plant and equipment including the design, specifications use of particular asbestos products, appointment of managing directors and even management of industrial relations. 27. I make this last point to distinguish the decision in Putts case which determined the issue of liability of the subsidiary company on the basis of the doctrine of the corporate veil as opposed to Wrens case where a separate duty of care was found under the law of tort. 28. In CSR v Young (1998) 16 NSWCCR 56 the Court of Appeal reached the same conclusion as Wren in circumstances where CSR managed and controlled the Wittenoom mine and business undertaking of its wholly owned subsidiary Australian Blue Asbestos Ltd. The Court found ABA, as agent, owed a duty of care to the residents of Wittenoom which was coextensive with that owed by the subsidiary as principal. 29. In Wren's case (supra) Justice Powell stated (at page 655E): " I accept that, as a general rule, the manufacturers of a product which is known, or believed, or suspected, to be hazardous owes a duty to a prospective user of the product, at the least, to make that user aware of the hazardous, or potentially hazardous, nature of the product, and to advise such a potential user of the precautions which ought to have been taken to avoid, or, at least to reduce the risks to which a potential user might be exposed by the use of the product, as also do I accept that that duty extends to warning potential purchasers of the product of the risks to which potential users of the product – such as employees of such a purchaser – if using the product in such a manner might be known, or might reasonably be expected as normal and proper, to be used". 30. The Cross defendant was the designer as well as the manufacturer and supplier of the boilers to the Tallawarra Power Station. In Voli v Inglewood Shire Council (1963) 110 CLR 74, the High Court found a duty of care existed in the case of designer (architect) whose faulty design resulted in injury to a third party on the premises of the architects customer (the Shire Council). Resolving the liability issue. (a) Duty of Care 31. The cross claimant alleges breach of the following duties of care owed by the cross defendant to 32. Mr Hood and his employer J R Pillars Pty Limited. 1. A duty of care as a manufacturer of the boilers which contained asbestos products. 2. A duty of care as the supplier of the boilers and associated plant and equipment which Simon Carves Limited specified the use of a range of asbestos products. 3. A duty of care as the designer of the boilers. 4. A duty of care as the controller of the system of work under which Mr Hood was employed 33. The law I have just reviewed leaves no doubt in my mind that all four duties of care exist in law. The evidence before me establishes on the balance of probabilities that Simon Carves Limited was the designer, manufacturer, supplier and controller of the system of work involved in the construction of the boilers at the Tallawarra Power Station. Those boilers and their associated plant and equipment contained huge quantities of dangerous asbestos products which were either directly supplied or specified to be used by Simon Carves Limited. (b) Knowledge of Dangers of Asbestos 34. I have previously found in Gynes case that at the relevant time Simon Carves Limited had actual knowledge of the dangers of exposure of workers such as Mr Hood to the asbestos used to insulate its boilers at the Tallawarra Power Station. On the balance of probabilities I find that the cross defendant had actual knowledge of the system of work at the power station and that the environment of that workplace would expose workers such as Mr Hood to inhaling asbestos dust and fibres which it also knew were very dangerous to his health and likely to cause the medical conditions he developed. (c ) Breach of Duty of Care 35. The cross claim alleges that the cross defendants breach of the various duties of care can be found from the following matters · Failure to warn users by labelling the product · Failure to include in the specifications a health warning or advice as reasonable measures that could be taken to protect those exposed to asbestos dust or fibres. · Failure to include warnings in specifications and building instructions. · Failure to warn Eraring Energy or J P pillars Pty Limited in its correspondence. · Failure to give directions to those responsible for the installation of the asbestos as to its safe use. · Failure to warn on erecting instructions. · Failure to warn on diagrams and drawings · Failure to warn in specifications · Failure to inform Simon Carves (Australia) Pty Limited, J R Pillars Pty Limited or Mr Hood verbally of the dangers. 36. The voluminous documentary evidence reveals no warnings in correspondence plans specifications of the known dangers of exposure to asbestos. The affidavit evidence of Mr Hood and other workers attests to the fact that no warnings were given. 37. I find on the balance of probabilities that Simon Carves Limited breached all four duties of care to Mr Hood. (d) Foreseeability & Proximity 38. The cross claimant has an onus of proving in determining the existence of a duty of care both foreseeability and proximity. 39. The test of foreseeability as described by Mason J in Wyong Shire Council v Shirt (1980) CLR 40 at 48 is a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. 40. I found in Gynes case that Simon Carves Limited had actual knowledge of the dangers of exposing workers to inhaling asbestos dust and fibres since 1931. This is one of those cases where the defendant had foresight of the particular course of events causing harm. As a leading international manufacturer of power station boilers and as a corporation who had designed the particular boilers at the Tallawarra Power Station as well a s specifying the use of asbestos in them and controlling the work environment at the power station through its wholly owned subsidiary and director supervising on site the construction Simon Carves had full knowledge that workers such as Mr Hood would be exposed to inhaling large quantities of asbestos dust and fibre. 41. As a corporation operating in Britain under statutes and regulations providing protection to workers exposed to asbestos it knew and could foresee the risk of Mr Hood developing lung disease. Having read all the evidence tendered concerning Simon Carves knowledge of asbestos and the work at the Tallawarra Power Station I find on the balance of probabilities that that evidence clearly establishes that between 1952 and 1959 there was a foreseeable risk of injury to a person exposed to inhalation of asbestos. 42. The notion of proximity remains controversial in the law of tort. However there is no suggestion that there is anything new about the applicability of the law of tort to designers, manufacturers and suppliers of products containing asbestos. Wren's case emphasises that duty where a corporation has exercised control over working systems, as Simon Carves did. Having regard to all the evidence and the law concerning Simon Carves Limited's duty of care and its failure to act, at any stage, to warn Elcom, their Australian subsidiary J R Pillars Pty Limited or Mr Hood of the dangers I take the view that the element of proximity has been established. (e) Damage 43. Judgments of this Tribunal previously noted have found that Mr Hood suffered the requisite damage as a result of his exposure to asbestos dust and fibre in his work at the Tallawarra Power Station between 1952 and 1959. (f) Liability 44. Taking all the evidence into consideration I find on the balance of probabilities that Simon Carves Limited was a joint tortfeasor who if sued by Mr Hood would have been liable for damages. Apportionment 45. The legal principles under which liability between tortfeasors is well established and may be conveniently summarised as follows: 1. In (Re Hunt) Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 the High Court held that s 5(2) of the NSW Law Reform (Miscellaneous Provisions ) Act 1946 provides that in any proceedings for contribution the amount of 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 persons responsibility for the damage.The direction to "have regard to" requires the tortfeasors responsibility for the damage to be taken into account and given weight to "as a fundamental element" in making the finding by the Court of what is just and equitable. 2. In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 the Court held that the makings of an apportionment between parties of their respective shares of the responsibility for the damage involves a comparison both of culpability ie of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties causing the damage. 3. In Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 60 at 66 the Court held that it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subject to comparative examination. 4. In Macquarie Pathology Services Pty Ltd v Sullivan NSWCA No:40313/94 28 March 1995 the Court held that the making of an apportionment involves a comparison of culpability and of the acts of the parties causing damage. The Court is concerned with considering the relative blameworthiness and the relative causal potency of the negligent party. 5. In James Hardie Pty Limited v Roberts (1999) 18 NSWCCR 500 the Court of Appeal upheld a decision by Judge Curtis of this Tribunal that in the circumstances of determining the relative blameworthiness of two large corporations who both had actual knowledge of the dangers of asbestos and failed to warn occupiers, employers, subcontractors and workers of those dangers to be equally blameworthy. Factual Considerations (a) State of Knowledge 46. In Gynes case I determined that Simon Carves Limited had actual knowledge of the dangers to workers inhaling asbestos dust and fibres since 1931. I also determined that Elcom had constructive but not actual knowledge until 1969. Given its greater knowledge not only of the dangers but of the measures that could be taken to protect workers from contracting asbestos related disease Simon Carves Limited's relative blameworthiness is to my mind greater than that of Elcom. 47. Moreover, because Simon Carves Limited pursuant to its obligations under the British Boilermakers Cartel to control the quality of workmanship of its subsidiaries departed further from its standard of care and because, unlike Elcom who was the client and occupier, Simon Carves through its appointed director was very familiar with the conditions and systems of work involved in the construction of the boilers at Tallawarra and because Simon Carvesis a world expert in power station boilers and their insulation and was familiar with the manner with which asbestos products it had specified would affect the workers environment. I also take the view that its relative blameworthiness was greater than that of Elcom. 48. To summarise: as designer, manufacturer, supplier and controller of both its subsidiary and Mr Hood's employer, the involvement of Simon Carves Limited was much greater than Elcoms and given its greater knowledge of the dangers, its failure to warn and protect represented a greater departure from the standard of care required by the law. 49. The NSW Court of Appeal makes it clear that calculating relative blameworthiness is not a mathematical exercise but an overall assessment by the judicial officer. Taking all the evidence into consideration concerning relative blameworthiness I would apportion liability between Simon Carves Limited and Elcom in the ratio 75:25 (b) Casual Potency 50. The other important factor going to apportionment of culpability in this case is the issue of causal potency. This is not the common case where the joint tortfeasors have supplied different amounts or different types of asbestos. Only Simon Carves Limited has actually supplied asbestos (and then only a relatively small amounts contained in special components directly sent out from England.) The bulk of the asbestos was supplied by the Australian manufacturers, Wallaby Grip Limited and James Hardie & Co. Pty Limited. However Simon Carves Limited did specify the various types and quantities of asbestos to be used in the construction and maintenance of the boilers and associated plant and equipment. In all respects therefore their role in respect of causal potency was much greater than Elcom. 51. Mr Hood was not suffering from mesothelioma and the asbestosis related diseases for which he was compensated caused damage which is legally divisible. There was a claim for risk of developing lung cancer and mesothelioma but given there is no evidence before me concerning such a risk I do not propose to take it into consideration. 52. In making this assessment relating to causal potency I therefore take the view that Mr Hood's asbestosis and pleural thickening and plaques was damage for which Simon Carves Limited must shoulder the lions share of the blame for Elcoms liability was only that of an occupier. (c) Apportioning Liability 53. It is the cross claimants submission that having regard to the fact that 47 per cent of the total liability to Mr Hood has already been paid by the cross claimant by the two asbestos suppliers (Hardies and Wallaby Grip) there remains 53 per cent or $39,166.70 to apportion in this case. The cross claimant submits that Simon Carves Limited should be liable for 75 per cent of the damages paid by the cross claimant to the plaintiff. 54. That submission is consistent with my findings going to relative blameworthiness and causal potency. Taking all the evidence into consideration concerning the justice and equity of the circumstances of this case I have formed the opinion that a fair contribution, pursuant to s 5 and s 6 of the Law Reform ( Miscellaneous Provisions) Act 1946, would be 75 per cent by S.C. Cheadle Hulme Limited and 25 per cent by Eraring Energy. Calculation Of Liability 55. The cross claimants residual liability under the verdict after payments from the asbestos manufacturer is $ 39,166.70 That sum should be apportioned: Eraring Energy: $ 9,791.67 S C Cheadle Hulme Limited: $ 29,375.03 $ 39,166.70 Interest 56. The cross claimant is entitles to interest on $ 29.375.03 at the rate of nine per cent over 1444 days or $ 10.459.12 and continuing at $7.24 per day. Orders 57. I make the following orders 1. S C Cheadle Hulme Limited pay Eraring Energy $ 29.375.03 plus interest of $ 10.459.12 and continuing). 2. S C Cheadle Hulme Limited pay the cross claimants costs. M/s W S Strathdee of counsel instructed by Goldrick Farrell Mullan Solicitors appeared for the cross claimant 04/10/2005 - Error in Judgment date. - Paragraph(s) Cover Sheet 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.