IN THE DUST DISEASES TRIBUNAL
OF NEW SOUTH WALES
DDT NO. 7042/2007
ADRIANUS GREGORIUS BAKKER
Plaintiff
WORKCOVER QUEENSLAND & ORS
Defendants
CONTRIBUTIONS ASSESSMENT
DETERMINATION
On 19 September 2007 the Registrar referred this matter to me pursuant to clause
49(1) of the Dust Diseases Tribunal Regulation 2007 (“the Regulations”) for a
determination of apportionment as between the defendants.
The plaintiff sues four defendants as follows:
First Defendant WorkCover Queensland
Second Defendant Amaca Pty Limited
Third Defendant Wallaby Grip Limited
Fourth Defendant Wallaby Grip (BAE) Pty Limited
Amaca, formerly James Hardie & Co Pty Limited, has brought a cross claim against
CSR seeking equal contribution or alternatively contribution or indemnity pursuant
to a partnership agreement which operated between 1964 and 1974.
The Statement of Claim, as subsequently varied by Plaintiff’s solicitor’s letter of 29
June 2007, alleges that the plaintiff was employed by Barker & Co Pty Limited in
Queensland as a lagger between 1961 and 1971 and by ISA Insulations Pty Limited
in Queensland as a lagger between 1971 and 1977. He alleges that the work which he
did in each employment was virtually the same. He also claims that for about 5% of
the time of his employment with Barker the work was in New South Wales.
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The first defendant, WorkCover Queensland, is sued pursuant to s.306(2)(b) of the
WorkCover Queensland Act 1996 in respect of the employment with Barker and ISA
both of which have been deregistered.
The plaintiff claims that during the Barker period he was exposed to asbestos from
material manufactured and/or supplied by the second, third and fourth defendants
and during the ISA period by the second and fourth defendants.
Various defendants claim that certain products were manufactured and/or supplied
by them but not others. In my opinion the differences are not material in all the
circumstances of this case. The Wallaby Grip companies claim to be exempt from
1974 on the basis of cessation of trading. The first defendant claims it is not
responsible for any work conducted in the employ of Barker in New South Wales.
Both the second defendant and the cross-defendant claim to be exempt from the end
of the partnership agreement in 1974.
The plaintiff claims he was diagnosed with asbestosis on or after 23 February 2006
and that he also suffers from asbestos related pleural disease, pleural plaques and
asbestos related pleurisy. He says he may claim further damages if he should develop
cancer or mesothelioma.
An allegation is made that Barker and ISA were also in the business of
manufacturing and they should be declared Category 1 defendants as well as
Category 2.
My determination is to be made on the basis of the papers, assuming the defendants
are liable and applying the standard presumptions within such variations as
appropriate for the particular case but within the permitted range.
There may be certain matters ultimately relevant to the assessment of contributions
which I cannot resolve as I am directed to make the determination on the basis that
the defendants are liable and on the specific materials to which I may have recourse.
As to various categories I am of the opinion that Barker and ISA were Category 2
and not Category 1. In my opinion their activities cannot be said to come within
either a textual or purposive construction of clause 5(2)(a) of the Dust Diseases
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Tribunal (Standard Presumptions – Apportionment) Order 2007. I therefore find
categories as follows:
First Defendant Category 2
All other Defendants Category 1
and Cross Defendant
As to time periods, the material before me generally refers to calendar years without
dividing into sub-periods with some variation for the partnership agreement. I
propose to assign calendar years to the periods. As to the period between 1974 and
1977, relevant to the Wallaby Grip companies and Amaca, in all the circumstances I
do not consider that there should be a cut off. The period was sufficiently substantial
for liability to arise and, of course, it is not possible to know precisely at what time
any condition from which the plaintiff suffers was initiated.
For similar practical reasons I do not propose to try to separate the 5% estimate of
the amount of work conducted at Barkers in New South Wales from the Barker
period as a whole. The information does not disclose particular times and I assume
they were varying different occasions. Once again the overall employment at Barkers
would have been sufficient for relevant purposes.
Questions arise as to how to deal with the sequential aspects of the Barker/ISA
companies, the Wallaby Grip companies and the relationship between Amaca and
CSR.
On the material before me the reality is that ISA followed Barker with the same work
involved, Wallaby Grip BAE followed Wallaby Grip Ltd and Amaca and CSR were
a partnership from 1964 to 1974.
The Wallaby Grip companies have provided information as to when one company
ceased operation and another commenced and appear to seek a sequential division. In
the circumstances I propose to treat them as one entity. I note that in a decision dated
29 May 2006 Contributions Assessor McHardy was prepared to treat both as one
entity and I did the same in my decision in Woodham v Wallaby Grip Limited & Ors
DDT No. 06318/2006 dated 11 May 2007. It seems to me that this is a practical and
fair and reasonable course in the circumstances.
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To treat Amaca and CSR as separate entities between 1964 and 1974 would result in
an unrealistic distribution of liability. I consider that the practical and fair and
reasonable course is to initially treat them as one entity from 1964 to 1974, but then
to divide their responsibility for that period equally for the purposes of final
determination.
I find that the relevant periods are as follows:
(a) Period A (1 January 1961 to 30 June 1964) 3 years 6 months
(b) Period B (30 June 1964 to 30 June 1974) 10 years
(c) Period C (30 June 1974 to 31 December 1977) 3 years 6 months
I find that the following defendants are to be assigned to the following periods.
Period A
WorkCover, Amaca, Wallaby Grip Ltd/BAE
Period B
WorkCover, Amaca/CSR, Wallaby Grip Ltd/BAE
Period C
WorkCover, Amaca, Wallaby Grip Ltd/BAE
Taking into account the material before me I am not persuaded that it warrants a
variation from the standard presumptions as between categories of defendants.
Clause 5(4) of the DDT (SP-A) Order 2007 states that if there is more than one
defendant in either of Category 1 or Category 2, then the Contributions Assessor is to
treat each defendant as equal in contribution to the percent share of that Category
unless satisfied that a variable contribution ought apply. Clause 3 sets out factors
which may be included in the considerations. For present purposes I consider that the
material does not warrant a departure from the terms of Clause 5(4) requiring each
defendant in the same category to be treated as equal in contribution.
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As to the periods, based on the years set out above the percentages are as follows
(rounded out):-
Period A – 20%
Period B – 60%
Period D – 20%
In those circumstances the contributions when initially expressed as totals for the
relevant periods are as follows:
Period A
Total %
WorkCover 35.00 20 7.0
Amaca 32.50 20 6.5
Wallaby Grip 32.50 20 6.5
Ltd/BAE
Totals 100.00 20%
Period B:
Total %
WorkCover 35.00 60 21.0
Amaca/CSR 32.50 60 19.5
Wallaby Grip 32.50 60 19.5
Ltd/BAE
Totals 100.00 60%
Period C:
Total %
WorkCover 35.00 20 7.0
Amaca 32.50 20 6.5
Wallaby Grip 32.50 20 6.5
Ltd/BAE
Totals 100.00 20%
On these assumptions when the contributions for each party are added together for
Periods A, B and C the following result is achieved.
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Period A Period B Period C Total %
WorkCover 7.0 21.0 7.0 35.0
Amaca 6.5 - 6.5 13.0
Amaca/CSR - 19.5 - 19.5
Wallaby Grip 6.5 19.5 6.5 32.5
Ltd/BAE
Totals 20 60 20 100%
When the Amaca/CSR liability is divided equally the following result is achieved
and represents my determination.
Period A Period B Period C Total %
WorkCover 7.0 21.00 7.0 35.00
Amaca 6.5 9.75 6.5 22.75
CSR - 9.75 - 9.75
Wallaby Grip 6.5 19.50 6.5 32.50
Ltd/BAE
Totals 20 60 20 100%
I therefore make an apportionment order in accordance with the immediately above
schedule.
There does not appear to be an agreement on the selection of an SCM. Therefore in
accordance with s.61(3)(b) of the Regulations, and in view of my determination of
the apportionment of liability, I appoint the Claims Manager of WorkCover
Queensland as the SCM.
Dated: 11 October 2007
.................................................................
MAURICE NEIL QC
Contributions Assessor
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