Dust Diseases Tribunal of New South Wales CITATION : Eraring Energy v S.C Cheadle Hulme [2005] NSWDDT 45 Eraring Energy ( formerly sued as Pacific Power) PARTIES : S.C.Cheadle Hulme Limited ( formerly sued as Simon Carves Limited) MATTER NUMBER(S) : 112 of 1998 JUDGMENT OF: Walker J at 1 :- LEGISLATION CITED: Law Reform ( Miscellaneous Provisions) Act 1946 s5 & 6 Eraring Energy v Simon Carves Limited (Matter No DDT 85 of 2000). ; Eraring Energy v Cheadle Hulme Limited and Ors (Unreported 24 September 2004 Matter No DDT 70 of 2001; Stevens v Brodribb Sawmilling Co. Pty Limited 1986 160 CLR 16. CSR Limited v Wren (1998) 15 NSWCCR 650); CASES CITED: Voli v Inglewood & Shire Council (1963) 110 CLR 74, Florida Hotels v Mayo (1965) 113 CLR 588.; Wyong Shire v Shirt (1980- CLR 40 at 48) ; Ross v Meggitt Overseas Limited (1999) 18 NSWCCR 324 DATES OF HEARING: 03/02/2005 DATE OF JUDGMENT: 08/29/2005 Cross Claimant: W.Strathdee JUDGMENT: Judgment Walker J Background To Litigation. A brief history of these proceedings is as follows: 1. Giovanni Slaviero contracted mesothelioma after being employed by Concrete Constructions Pty Ltd between 1952 and 1954 and Stockton's Pty Limited between 1954 and 1957 during the construction of the Tallawarra Power Station. During that employment he was exposed to and inhaled asbestos dust and fibre used in the construction and maintenance of the Power Stations boilers and associated plant and equipment. 2. Mr Slaviero sued in June 1988: (i) Pacific Power (now Eraring Energy) who was the owner occupier of the Tallawarra Power Station for damages for negligence for breach of duty of care. (ii) Concrete Constructions Pty Limited as his employer between 1952 and 1954 for damages for negligence for breach of duty of care in failing to provide a safe system of work. (iii) Stocktons Pty Limited was deregistered by the time the suit and was not joined. (iv) On 22 February 1999 terms of settlement were filed in respect of the suit against Concrete Constructions Pty Ltd on the basis of a verdict in the defendants favour each party to pay their own costs. (v) An amended statement of claim was issued against Pacific Power on 12 February 1999. (vi) On 21 December 1999 terms of settlement were filed and an order for judgment made against Pacific Power in the sum of $140,000 plus costs of $30,000. (vii) On the 29 June 2000 Pacific Power issued cross claims against the asbestos manufacturers James Hardie Co Pty Ltd and Wallaby Grip Limited and the United Kingdom designer of the Tallawarra boilers Simon Carves Limited. (viii) On the 20 October consent judgment was entered against James Hardie & Co Pty Ltd ( now sued as Amaca Pty Limited) in the sum of $77,500 ( including interest and costs in the sum of $7,800). (ix) On 17 November 2003 consent judgment was entered against Wallaby Grip Limited in the sum of $70,000 ( including interest and costs in the sum of $10,500) (x) Default Judgment was entered against S.C Cheadle Hulme Limited ( following a name change by Simon Carves Limited) on 1 February 2005 pursuant to Part 17(5) of the Supreme Court Rules for unliquidated damages and costs. This Tribunal then proceeded to hear, ex parte, the question of assessment of damages and apportionment pusuant to s5 & 6 of the Law Reform ( Miscellaneous Provisions) Act 1946. ( In Re Hood). Eraring Energy v Simon Carves Limited. . The assessment of damages and apportionment issues were heard together with the cross claim by Eraring Energy v Simon Carves Limited (Matter No DDT 85 of 2000). I mention this because I dealt at length with the relevant legal principles involved in the law of toxic torts and apportionment of liability between tortfeasors in Hoods case and propose to apply those principles there enunciated in this case. Introduction. 4. Eraring Energy, having had its payment to the plaintiff's estate partly indemnified by contributions from Amaca and Wallaby Grip, now seeks a finding of liability against the cross defendant and orders pursuant to the provisions of s5 of the Law Reform (Miscellaneous Provisions) Act 1946 apportioning the remainder of its liability of $40,800. It also claims costs and interest. 5. In (Re Gynes) Eraring Energy v Cheadle Hulme Limited and 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 s25(3) and 25B of the Dust Diseases Tribunal Act 1989 historical evidence admitted in any 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 on Liability. 6. Taking into consideration my relevant previous findings of fact and law in Gynes and Hoods cases I propose to make the following preliminary findings necessary to support any ultimate decision on apportionment of damages: 1. Cross Claimant is a continuation of Pacific Power. 7. By virtue 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 and to have assumed all liabilities relating to Tallawarra Power Station during the period relevant to these proceedings. 2. Change of Name: Simon Carves Limited. 8. The affidavit of Vincent John Goldrick dated 25 January 2005 and tendered in evidence attests to company searches revealing Simon Carves Limited changed its name to S.C Cheadle Hulme Limited. 3. Legal Relationship: Simon Carves Limited and Elcom. 9. In Re Gynes I considered, at length, evidence of the history of Simon Carves Limited, in regard to its presence in Australia and the NSW boiler construction market since World War II and in particular its contractual relationship with the NSW Department of Public Works and Elcom concerning the construction of the Tallawarra Power Station. I also considered the history of the incorporation of the wholly owned Australian subsidiary of Simon Carves Limited- Simon Carves (Australia) Pty Ltd. I further considered the novation of Simon Carves Limited's contracts to build the boilers at the Tallawarra Power Station to its Australian subsidiary. I reconsidered the same evidence in Re Hood and have the same evidence before me in this case. Ultimately I found that a principal and agent relationship existed between Simon Carves limited and its Australian subsidiary sufficient to establish the duty of care enunciated in Stevens v Brodribb Sawmilling Co. Pty Limited 1986 160 CLR 16. 4. Duty of Care. 10. I have further considered the voluminous evidence tendered in this case. I find on the balance of probabilities that Simon Carves Limited owed the following duties of care to the plaintiff Mr Slaviero: (a) As a manufacturer of boilers containing the dangerous substance asbestos (see CSR Limited v Wren (1998) 15 NSWCCR 650) (b) As the designer of the boilers ( see Voli v Inglewood & Shire Council (1963) 110 CLR 74, Florida Hotels v Mayo (1965) 113 CLR 588. (c) As the supplier of boiler parts containing asbestos with instructions and specification requiring large quantities of asbestos of various types to insulate both the boilers and their associated plant and equipment (see Wrens Case (supra). (d) As controller of the system of work under which Mr Slaverio was employed (see Stevens v Brodribb Sawmilling Co Pty Limited (Supra). 5. Knowledge of Dangers of Asbestos. 11. I have previously found in Gynes and Hood that Simon Carves Limited had actual knowledge of the dangers of exposure of workers such as Mr Slaverio to the asbestos used to insulate the boilers, it manufactured and supplied to the Tallawarra Power Station. Considering the evidence in this case I find on the balance or probabilities that the cross defendant had actual knowledge of the system of work at the power station and the environment of that work place and knew at the relevant times that workers such as Mr Slaviero would be exposed to inhaling asbestos dust as fibre which were very dangerous to his health and likely to cause the medical condition which he developed. 6. Breach of Duty of Care. 12. The Cross Claimant alleges that the cross defendants breaches of its duties of care can be found from the following matters:- · Failure to warn users by labelling its products · Failure to include in the specifications or drawings a health warning or advice as to reasonable measures that could be taken to protect Mr Slaverio from exposure to asbestos dust or fibres. · Failure to include warnings in erection instructions. · Failure to warn Eraring Energy Simon Carves (Australia) Pty Ltd Concrete Constructions Pty Ltd and Stocktons Pty Ltd either verbally or by correspondence. · Failure to give directions to those responsible for the installation or removal of the asbestos as to its safe use 13. The voluminous documentary evidence in this case including affidavits by workers plans specifications and correspondence reveals no warnings either verbally or in writing as to the known dangerous of asbestos. I find on the balance or probabilities that Simon Carves Limited breached its duties of care to Mr Slaverio. 7. Forseeability and Proximity. 14. For the reasons enunciated in Mr Hoods Case and relying upon the decisions of Wyong Shire v Shirt (1980- CLR 40 at 48) and Wren v CSR Limited (supra) after considering the evidence I find that the cross defendant had foresight of the particular course of events causing harm and that between 1952 and 1957 there was a foreseeable risk of injury to a person exposed to inhalation of asbestos at the Tallawarra Power Station. 15. I also find on the balance of probabilities that given Simon Carves Limited's involvement throughout design manufacture supply and supervision of the work on site that the element of proximity has been established. 8. Damage. 16. In Ross v Meggitt Overseas Limited (1999) 18 NSWCCR 324 the Tribunal found that mesothelioma was an indivisible disease. Concurrent tortfeasors are jointly and severally liable where their causal interaction produces a single indivisible damage. Mr Slaverio's damage, namely the contraction of the lethal disease mesothelioma has been found by this Tribunal to have been caused by his exposure to asbestos dust and fibre during the construction of the boilers at the Tallawarra Power Station between 1952 and 1957. 17. I have found that Simon Carves was the designer of those boilers, the specifier that asbestos be used in their construction, the supplier of some of that asbestos ( in parts supplied directly from the United Kingdom) and the controller of the system of work which exposed Mr Slaviero to the asbestos dust and fibre. Any exposure to asbestos is capable of causing mesothelioma. Liability. 18. Taking all the evidence into consideration I find on the balance of probabilities that Simon Carves Limited was a concurrent tortfeasor who if sued would have been liable for damages. Apportionment. 19. I rely upon my summary of the relevant law in Hoods Case. Factual Considerations. (a) State of Knowledge. 20. In Gynes case I determined that Simon Carves Limited had actual knowledge of the dangers of workers inhaling asbestos dust and fibres since 1931. I also determined that Elcom had constructive but not actual knowledge up 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. 21. Moreover Simon Carves Limited in meeting its contractual obligations under the British Boilermakers Cartel to control quality of workmanship of its subsidiaries, to my mind, departed further from the standard of care imposed upon it by the law. I say that not only because of the rigid control exercised by the parent company over its subsidiary and hence its full understanding of the dangerous system of work in which Mr Slaverio was employed but because Simon Carves was a world expert in power station boiler making and boiler insulation. Consequently it was well aware of the manner in which the asbestos products it recommended in its specifications were used and the effect they had on the working environment both during construction and maintenance of the boilers. 22. As designer, manufacturer, supplier and controller of its subsidiary, Simon Carves Limited involvement in the chain of events that exposed Mr Slaverio to asbestos dust and fibre was much greater than Elcom yet it failed to warn the NSW Government, Elcom Mr Slavieros employers or Mr Slaviero of the great dangers involved and failed to take reasonable measures to protect him from those dangers. 23. Calculating relative blameworthiness is not a mathematical exercise but rather an overall assessment of all the circumstances 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) Causal Potency. 24. Only Simon Carves Limited actually supplied asbestos and then only a relatively small amount contained in special components sent directly from England. However Simon Carves did specify the 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 its role in respect of causal potency was much greater than Elcom who was only the owner occupier of the site of the power station. (c) Apportionments of Liability. 25. 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 s5 & 6 of the Law Reform (Miscellaneous Provisions) Act 1946 would be 75 per cent to S.C Cheadle Hulme Limited and 25 per cent to Eraring Energy. Calculation of Liability. 26. The cross claimants residual liability under the verdict after payments from other tortfeasors is $40,800. That sum should be apportioned: Eraring Energy (25%) $ 10,200 S.C Cheadle Hulme Ltd (75%) $ 30,600 Interest Calculation 27. Simon Carves Limited should pay interest on the $30,600 from the date of payment of the verdict to judgment at the rate of 9% per annum. Orders 28. I make the following orders: 1. S.C Cheadle Hulme Limited pay Eraring Energy $ 30,600 plus interest of $15,678.94. 2. S.C Cheadle Hulme Limited pay the cross claimants costs. M\s W.Strathdee of counsel instructed by Goldrick Farrell Mullan Solicitors appeared for the cross claimant. 1 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.