Dust Diseases Tribunal New South Wales Medium Neutral Citation: (Re: Norman Greensitt) Jengro Limited v Seltsam Limited [2013] NSWDDT 2 Hearing dates: 18,19 February 2013 Decision date: 20 February 2013 Before: Judge MJ Finnane QC Decision: See Paragraph 15 Catchwords: DUST DISEASES - asbestos - mesothelioma - dust CROSS-CLAIM - evidence of supply of products containing asbestos - exposure during employment with cross-claimant EVIDENCE - use of expert opinion to establish identification of products containing asbestos Category: Principal judgment Parties: Jengro Ltd (Cross-Claimant) Seltsam Ltd (Cross-Defendant) Representation: GJ Parker SC (Cross-Claimant) TGR Parker SC (Cross-Defendant) Moray Agnew (Cross-Claimant) Leigh Virtue & Associates (Cross-Defendant) File Number(s): 99/03/1 Judgment 1The current proceedings arise out of a case brought originally by Norman Greensitt as the plaintiff against the current cross-claimant as the defendant. That statement of claim was filed on 21 March 2003. The statement of claim alleged that Mr Greensitt was employed by the current cross-claimant in two particular periods between 1969 to 76 and from July 77 to February 1984 as a carpenter and he alleged that he was exposed to asbestos during the period of his employment and as a result, contracted mesothelioma. A defence was filed on 29 May 2003. 2An affidavit in support of the plaintiff's case was filed on 26 June 2003 and on 30 June 2003, the cross-claimant consented to a verdict in favour of the plaintiff for $410,000 inclusive of costs. 3The plaintiff gave evidence on 30 June 2003 before his Honour Curtis J. It follows that the cross-claimant consented to judgment against it on the same day as the plaintiff gave evidence. The evidence given by the plaintiff in the affidavit set out in a fair amount of detail, the exposure he had to asbestos and the type of work that he was doing as well as his experience and a series of other occupations with other employers in which he was not exposed to asbestos. In para 11 of the affidavit he claimed that he was exposed to asbestos dust for two to three full days each month during his employment in each seven year period with the cross-claimant and the materials to which he was exposed were known as AC flat sheets, AC pipes, standard corrugated AC sheets and thick or compressed AC sheets. He claimed in para 13 that the dustiest asbestos cement product was the thick compressed asbestos cement sheets and he detailed how he had to cut them and use power saws and angle grinders when dealing with the standard corrugated asbestos cement sheets. 4There were no cross-claims at that particular time and the plaintiff did not in his affidavit nominate any manufacturers of asbestos, nor did he indicate the companies that might have supplied asbestos to the cross-claimant. 5On 30 June 2003, when he gave evidence, he was cross-examined by Mr McIntyre for the cross-claimant. The cross-examination was not very lengthy. He said at line 25 on p 2 of that transcript that he recalled James Hardies' logos on some of the asbestos cement products and he said that he could recollect them being stamped but could not swear to which ones were there. When asked this question: Question - Do you recall ever seeing a product identification mark or label by the name of Wunderlich on any of the asbestos cement products. Answer - I believe so. Question - Do you recall what sort of products had the name Wunderlich on them. I am sorry you shake your head, this has to be recorded, you say you do not recall that. Answer - don't. 6That particular evidence is, as far as I can see, the only evidence given by the plaintiff that Wunderlich may have been involved in some way in providing asbestos. 7The current proceedings were brought by the cross-claimant against the cross-defendant, it would appear to me, although entitled as being a 2003 action, substantially only in 2011. The defence to the cross-claim was filed on 28 June 2011. It refers to a cross-claim being filed on 10 September 2003. The delay in the case, to say the least, is somewhat extraordinary. It came for hearing before me on 18 February 2013. 8The cross-claimant, as the employer of the plaintiff Mr Greensitt, was a company which, when it employed Mr Greensitt, was well known as a very large building and construction company. Any materials used by it on its sites would have been ordered by it and paid for by it in the normal course of business. There would have been orders sent to the suppliers, there would have been invoices and there would have been material indicating payment. The company itself was a very large one and employed many people. Mr Greensitt at the relevant time, according to his evidence, was a foreman. It is clear from his evidence in 2003 that he could not remember very much about what it was that was being used, other than to identify the particular types of asbestos cement products. 9The cross-claimant in this case relies on the evidence of Mr Greensitt and his affidavit as evidence that the cross-defendant exposed the plaintiff to asbestos supplied by it and has sought to supplement the evidence of Mr Greensitt with evidence showing that Wunderlich manufactured asbestos, that coming in annual reports of that company between 1963 and 1969. A document is supplied by Wunderlich setting out some information about its materials, that document apparently being dated 5 February 1971; a Wunderlich brochure dealing with the designs of homes and the types of products that Wunderlich supplied. That particular brochure, incidentally, indicates that Wunderlich supplied not only asbestos products, but all types of other products, including kitchen cabinets, fireplace surrounds and non-asbestos products that could be used in a home. 10There is then a Wunderlich brochure of 19 November 1963 describing new deep or standard corrugated asbestos, and that particular document sets out the types of corrugations, the depths of them and the dimensions of sheets; another brochure of 1967 setting out Wunderlich materials; another one of 1969; another one of 1972. All those documents can be used and were used by the cross-claimant to show that Wunderlich at relevant times during the course of the employment of the plaintiff supplied to the building industry asbestos sheets, some of which were described as standard corrugated. There were then a series of transcripts of evidence given in other proceedings, one in 1967 before McClemens J in the Supreme Court. In this transcript an employee described how he stamped a Wunderlich stamp on asbestos products. 11There were then a series of other transcripts of cases in the Dust Diseases Tribunal, none of them connected with the present plaintiff, showing Wunderlich products being used which had asbestos in them. The cross-claimant also relied on the report of Mr Alan Rogers, a very well-qualified industrial hygienist. He also gave evidence, was examined and cross-examined. The cross-claimant sought to get from Mr Rogers evidence that the description of the material given by Mr Greensitt in his oral evidence was such that Mr Rogers could identify that as Wunderlich products. When he was cross-examined he conceded that James Hardie had made similar products, also described as standard. James Hardie, through its company Amaca, was sued as a cross-defendant earlier in the piece and consented to a judgment against it. 12James Hardie, of course, is specifically mentioned by the plaintiff in his affidavit. I have no idea what evidence may have additionally been available to the cross-claimant to prove the case by the cross-claimant against James Hardie. It may be that Amaca Limited decided it would not contest the case because of information it had. I have no idea. Submissions have been made about liability in this case and submissions have been made about damages in the event that I should find the cross-defendant liable. It is not necessary that I should go into the question of damages, because, in my opinion, there is not sufficient evidence to enable the cross-claimant to succeed in its claim against the cross-defendant. 13The only evidence that Wunderlich supplied products to this building site came from a statement by the plaintiff as to his belief, but he could not identify any particular products nor what he used. He could not identify any brand names; he could merely describe the types of products that were used. Saying that something is standard is far removed from saying that it is definitely manufactured by anybody in particular. It is merely a description of a type of product that is manufactured. In this case there is evidence that there was a standard corrugated sheet which had certain dimensions, and Wunderlich produced another one which was larger than that and Hardies produced one that was standard and another one that was larger than that. 14What I find surprising is that the cross-claimant, which is the employer, and must have been in a position to establish what companies supply what and in what amounts, did not seek to put any evidence forward to show that. No explanation has been given as to why that would be so, that the company in the best position to know what it was supplied with did not seek to establish that in fact Wunderlich supplied it with materials for particular building sites or generally. I can only conclude that it did not have any evidence, or the evidence that it had would not have assisted it in any way in establishing its case. The evidence that it did produce, in my opinion, was insufficient. Mr Rogers could not, by using his expertise, make that better. His evidence, in any event, did not do so. 15The cross-claimant failed to satisfy me that there was evidence that the cross-defendant supplied it with material that caused in any way the mesothelioma suffered by the plaintiff and I find a verdict 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. Decision last updated: 19 March 2013