Zanetic v Amaca Pty Limited [2017] NSWDDT 5

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Zanetic v Amaca Pty Limited [2017] NSWDDT 5 Hearing dates: 21 June 2017, 5 and 6 July 2017 Date of orders: 07 July 2017 Decision date: 07 July 2017 Before: Judge D. Russell Decision: 1 Judgment for the plaintiff for $455,007.54 2 Order the defendant to pay the plaintiff's costs Catchwords: DUST DISEASES – exposure - damages Legislation Cited: Dust Diseases Tribunal Act 1989 Civil Liability Act 2002 Workers Compensation (Dust Diseases) Act 1942 Cases Cited: Amaca Pty limited v Hicks [2011] NSWCA 295 Amaca Pty limited v Novek [2009] NSWCA 50 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Category: Principal judgment Parties: Marko Zanetic (plaintiff) Amaca Pty Limited (defendant) Representation: Counsel: Mr P. Semmler QC on 21 June 2017 (plaintiff) Mr J. McIntyre SC on 5 and 6 July 2017 (plaintiff) Mr J. Sheller (defendant)

Solicitors: Turner Freeman (plaintiff) Mills Oakley (defendant) File Number(s): DDT 9/2017

Judgment 1. Mr Marko Zanetic has sued Amaca Pty Limited seeking damages for the disease of mesothelioma. 2. The issues in the case are: 1. Exposure to James Hardie asbestos cement building products; 2. Damages;

Employment and Exposure 1. The plaintiff was born on 29 May 1939 in Croatia and is 78 years of age. He came to Australia at the age of 22 in June 1962. The plaintiff obtained work as a self-employed carpenter shortly after coming to Australia in 1962. He worked as a sole trader until 1970 doing renovation work all over Sydney. There was cottage work, factory work and commercial work. He also did some demolition work before starting renovations. 2. Between 1970 and 1972 the plaintiff worked with Mr Joe Protich in partnership. They worked extensively for one builder Mr Dick Jones in the Padstow area building a lot of fibro cottages. 3. The plaintiff and Mr Protich changed the structure of their business from a partnership to a company. The original name was Foxden Pty Limited, which later changed to Foxden Constructions Pty Limited. From 1972 onwards they did work for Mirvac on new houses and apartment projects. The work performed was carpentry including skirtings, architraves, doors, walls and ceiling linings as required. Mr Zanetic did that work until he retired in 2003. 4. Mr Zanetic gave evidence by an affidavit sworn on 20 June 2017. The Tribunal sat at the palliative care ward of Greenwich Hospital on 21 June 2017 to take the plaintiff's evidence. 5. From 1962 onwards the plaintiff worked with a lot of fibro asbestos cement building products. He nominated working with Hardiflex, Hardies compressed sheets, Hardiplank, Hardies Log Cabin, Tilux, Super Six corrugated sheets and Villaboard. He said that he had exposure from 1962 onwards, including from 1972 with Mirvac, right up until asbestos was taken out of building products. 6. His heaviest exposure to asbestos dust occurred when he was cutting compressed asbestos cement sheets. He identified all of the products he used from a James Hardie brochure which was annexed to his affidavit. 7. The plaintiff was never warned about the dangers of asbestos and saw no warnings on the products. No-one ever came to job sites and told him that fibro sheets were dangerous. He said that he would not have worked with products containing asbestos, if he had been warned that asbestos dust could kill him. 8. I accept the plaintiff as a witness of truth in relation to his exposure to James Hardie asbestos cement building products. He had extensive exposure to products for which Amaca is responsible and I find that that exposure has caused his disease of mesothelioma.