FAI Workers Compensation (New South Wales) Ltd v ICI Australia Operations Pty Ltd [2001] NSWDDT 3

Reported Decision (2001) 21 NSWCCR 465

Dust Diseases Tribunal of New South Wales

CITATION : FAI Workers Compensation (New South Wales) Ltd v ICI Australia Operations Pty Ltd [2001] NSWDDT 3 FAI Workers Compensation (New South Wales) Ltd PARTIES : ICI Australia Operations Australia Pty Ltd Workcover Authority of New South Wales FAI Traders Insurance Company Ltd MATTER NUMBER(S) : 169 of 1997/1 JUDGMENT OF: Curtis J at 1 CATCHWORDS: :- Cross Claims s 151AB LEGISLATION CITED: CASES CITED: DATES OF HEARING: 26th February 2001 EX TEMPORE JUDGMENT DATE : 02/26/2001

Mr A J Grant instructed by Moray & Agnew appeared for FAI Workers Compensation (NSW) Ltd (Cross Defendant/Applicant on the Motion) Mr S G Campbell instructed by Phillips Fox appeared for ICI Operations (Cross Claimant/Respondent to the Motion) LEGAL REPRESENTATIVES: Ms Crookes of P W Turk & Assocs appeared for Workcover Authority of NSW Mr N Chen instructed by Sparke Helmore appeared for FAI Traders Insurance Company Ltd (Cross Defendant)

JUDGMENT: 1. This is an application by FAI Workers Compensation (New South Wales) that a 151AB cross-claim issued against that insurer be dismissed as untenable. The relief is available pursuant to Pt 13 r 5 and Pt 15 r 26 of the Rules if the claim is seen to be hopeless. 2. The plaintiff, George Roland Brazier, was employed by ICI Operations Pty Limited between 1950 and 8 July 1988, with the exception of short periods when he worked elsewhere. The workers' compensation insurers of ICI were as follows: 1950 to 30 September 1973 CGU From 30 September 1973 to 30 September 1985 NEM (now WorkCover) From 30 September 1985 to 30 September 1987 FAI Traders Insurance Company Ltd From 30 September 1987 to 8 July 1988 the present applicant FAI Workers Compensation (New South Wales) Ltd 3. The plaintiff in his statement of claim asserted that he had contracted the disease of mesothelioma and that this disease was caused by exposure to asbestos dust and fibre between 1950 and 1982. The cross-claim issued by ICI repeats the plaintiff's allegations of fact. The claim of the plaintiff was settled by agreement on 14 August 2000. 4. The cross-claimant in asserting that the plaintiff was last employed in employment to the nature of which his disease was due relies upon the plaintiff's affidavit in which he says in par 58: In or about 1982 the company started to phase out asbestos lagging as it took out old asbestos lagging. The new lagging was a new product that did not contain asbestos. From then on the company stopped using asbestos materials. Par 59: There was asbestos dust on the walls, on the girders and I would say that when the wind blew the dust was blown around in the factory. I would say there was a possibility that I would have been exposed to asbestos right up to the last day that I worked for ICI on 8 July 1988. I just don't know. I doubt that I was exposed to asbestos after 1982 but I just don't know. 5. I have before me a statement by a co-worker Mr Arnold John Forbes, being Exhibit A in the affidavit of Gavin Scott Stewart sworn 23 February 2001. In par 13 of that affidavit Mr Forbes asserts: George Brazier was employed as a charge-hand until his hearing loss prevented him being able to do all that work, so he went back to maintenance fitter grade. I would say by September 1985 and after that George Brazier would have had very limited, if any, exposure to inhaling asbestos but I could not say none. I suspect there could have been tiny amounts here and there. 6. In a statement, annexure B to the same affidavit, another co-worker, Mr Steve Adis says: I could not say he [Mr Brazier] never came in contact with asbestos in the factory right up to the time he left. There was little remaining by the late 1980s but I can't say there was none. 7. Mr Grant, for the cross-defendant (the applicant on the Motion), asserts that there are two reasons why this claim should be struck out. First, pointing out that the plaintiff recovered damages in respect of exposure between 1950 and 1973 he asserts that s 151AB cannot apply to inculpate an insurer who did not extend cover in the period in respect of which the plaintiff recovers damages. This I found to be an attractive proposition when I said as much in the matter of Government Insurance Office of New South Wales v Colgate Palmolive Limited. In the light of the decision of the Court of Appeal in this matter delivered on 22 February 2001 (Government Insurance Office of New South Wales v Colgate Palmolive Pty Limited 2001 NSWCA 24 )I do not believe that that contention is available. 8. The words of s 151AB do not themselves contain an express limitation upon the operation of the section and it cannot be implied from the many statements which have fallen from the members of the Court of Appeal since the simple solution proposed by Judge O'Meally in Cinzano was not preferred to the competing decision of Rolfe J in Wellcombe. 9. The second reason advanced by Mr Grant why the relief should be granted is that the application of s 151AB is contingent not upon the risk of a risk that the plaintiff may inhale asbestos fibres but upon proof upon the probabilities that the worker actually inhaled asbestos particles which inhalation created the risk of a disease. There is within the various judgments room for this construction. For instance, in CIC Workers Compensation New South Wales Limited v Kellogg Australia Pty Limited ((1996) 40 NSWLR 422 at 427) Priestley J said: ... an employee was within the requirements of the subsection if in the course of carrying out the employment the employee was ... exposed .. to risk of inhalation of asbestos particles. 10. In Tame v Commonwealth Collieries Pty Limited ((1947) 47 SR NSW 269) Jordan CJ said at 272: I think that `employment to the nature of which the disease was due' means an employment of such a kind as to involve a risk to the employee contracting the gradual process disease. It could not upon that statement of authority be contended that the section would apply when the inhalation was so slight, transitory and discretely removed from other inhalations as to connote a risk of "contracting the disease." 11. In CIC Workers Compensation (NSW) v Alcan Australia Mahoney J said at 177: ... the employment referred to is ... the engagement in a form of activity which exposes him to a risk of disease of such a nature as to be contracted by a gradual process. 12. It may be necessary at some time to have some authoritative guidance upon whether a risk of a risk is sufficient, but in the present case it is unnecessary for me to so decide. I accept that upon the present evidence available to the cross-claimant, the cross-claimant in the proceedings will establish that the plaintiff was exposed to a risk of inhaling asbestos fibres if the asbestos fibres in the roof were disturbed by some work there being carried out. However, it has not established on the probabilities that the worker during the period of risk of the present cross-defendant actually inhaled any fibres which may have been so dislodged. 13. Accepting again for the purpose of this determination that the risk of a risk may not be sufficient the second contention of Mr Grant is disposed of by the decision of the Court of Appeal in Wickstead and Ors v Brown((1992) 30 NSWLR 1 at 11) where their Honours said this: However, for another reason which was first raised by the court the respondent as one of a number of defendants cannot be entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff's case. If at the close of the plaintiff's case at the trial there was no evidence against this respondent he would not be entitled at that stage to judgment if any of the other defendants intended to go into evidence.[see Menzies v Australian Iron and Steel Limited 1952 52 SR NSW 62] The effect of this rule is now ........ Supreme Court Rules Pt 34 r (6) and r 8(5). The reasons for the rules is clear and was explained in the decision referred to. At the close of a plaintiff's case there may be evidence against some defendants but not against others. The Court will not entertain a motion for judgment by some only of the defendants because any gaps in the plaintiff's case against those defendants may be filled when the other defendants go into evidence. In particular one or more of the defendants who go into evidence may seek to exculpate themselves by implicating defendants against whom the plaintiff has no admissible evidence at the close of his case. The respondent would not be entitled to succeed on an evidence point at the trial until all evidence had been called including that from other defendants. It is clear there can be no such entitlement on an application by one of several defendants for summary dismissal. 14. In the present case the cross-claimant also seeks relief against NEM and against FAI Traders, the earlier insurers on risk. It may be that either of those cross-defendants has access to evidence, or at a time prior to the trial finds evidence, which inculpates the present cross-defendant. In that circumstance the present cross-defendant is not entitled to the relief and the motion is dismissed. 15. I reserve costs of the motion pending the final orders in the trial. Mr S G Campbell instructed by Phillips Fox appeared for ICI Australia Operations Ms Crookes of P W Turk & Assocs appeared for Workcover Authority of NSW Mr N Chen instructed by Sparke Helmore appeared for FAI Traders Inssurance Company Ltd Mr A J Grant instructed by instructed by Moray & Agnew appeared for FAI Workers Compensation (NSW) Ltd