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IN THE DUST DISEASES TRIBUNAL OF NEW SOUTH WALES DDT NO. 204 of 2011 and 204 of 2011 CC1 ANTONIOUS MAKROGELIDIS (aka TONY MAKRIS Plaintiff THE STATE OF NEW SOUTH WALES Defendant AMACA PTY LTD First Cross Defendant WALLABY GRIP LTD Second Cross Defendant CONTRIBUTIONS ASSESSMENT DETERMINATION I have been appointed as a Contributions Assessor pursuant to clause 49(1) of the Dust Diseases Tribunal Regulation 2007. 1. The plaintiff commenced proceedings in the Tribunal on 29 July 2011 alleging exposure to asbestos in the course of his employment as a labourer with the Department of Public Works between 1968 and 1997. As a result of that exposure he alleges that he has contracted inter alia asbestos-related pleural disease. 2. As a Contributions Assessor, I am constrained by the material that is placed before me and in particular the plaintiff’s statement of particulars from the defendant and the first and second cross defendants’ replies thereto. 2fdd99e8-2fbd-4efc-b497-ae605eca7d7b.doc 8/02/2013 6:46:00 PM PAGE 2 3. The plaintiff’s evidence is not particularly comprehensive and from the point of view of apportioning responsibility and causal potency throughout the relevant period, not very helpful at all. 4. The plaintiff, according to his summary of work and exposure history, commenced working in 1949 in the fishing industry and also as a mechanic in the workshop. He worked at Australian Glass Manufacturers for approximately one year and says he was exposed to asbestos at that time. In 1968 following work as a builder’s labourer with other private employers he obtained employment with the Department of Public Works as a builder’s labourer full time. He remained in that employment until 1997. His work involved work in a wide range of public buildings located all over Sydney. He alleges many of the buildings were old and the work involved demolition including demolition of old fibro sheeting, demolishing partition walls and internal linings that were made from fibro. The buildings included many well known public buildings including the old Divorce Courts in Macquarie Street, the Powerhouse Museum site at Ultimo, the Conservatorium of Music, the Australian Museum, Callum [sic] Park, Sydney Hospital, the Old Mint, Sydney Technical College, the Art Gallery, the Education Department (which I take to mean the one in Bridge Street, Sydney), the Registrar-General’s Office, the Downing Centre, the Mitchell Library, and the former MSB Building at Circular Quay, now the Museum of Contemporary Art. 5. He also worked at a number of high schools which I will not enumerate in and around Sydney performing demolition work. He also assisted carpenters to do new building work on many of the sites after demolition was finished, including the court building in the Hospital Road complex and the Old Mint building. PAGE 3 6. The plaintiff has not sued Australian Glass Manufacturers nor a subsequent employer Coordinated Constructions Pty Ltd, where he performed work in relation to the Gazebo Hotel at Kings Cross. 7. He describes his exposure as daily for the first two years of his employment and frequent exposure thereafter. I am somewhat concerned about this but as a Contributions Assessor there is little that I can say. I have some difficulty accepting that he was exposed to asbestos, particularly in what I will describe as Period B between 1 January 1990 and 1997, as by that time knowledge and awareness of asbestos and its dangers in the building industry were high and many of the products, in particular manufactured by Amaca, by that stage did not contain asbestos material. To the extent that he was doing demolition work he may well have continued to be exposed to asbestos. His statement of particulars makes no distinction about level and intensity of exposure at the Department of Public Works. When invited in paragraph 4.6 of his particulars to indicate level and intensity of exposure across sites and whether that changed he merely comments “high during the period of exposure”. 8. He attributes less than 10% of his exposure to the Australian Glass Manufacturers. I note however that he only performed lagging work three times while working at the glass works over a two to three day period. His exposure at Coordinated Constructions over a year was most days he worked there. Both these employments would have contributed to the development of any asbestos condition suffered by the plaintiff as his allegations suggest that he has a divisible disease. In accordance with Note 8 to Schedule 1 of the Standard Presumptions Order, I am required to treat each separate period as equal in contribution to the disease PAGE 4 unless satisfied that the variable weighting ought to apply. In terms of weighting based on duration and intensity of exposure to asbestos within each period, I have very little material anywhere to assist me. 9. I therefore propose to accept the plaintiff’s assessment that 90% of his exposure was during his period of employment with the Department of Public Works. 10. I am not persuaded that the State of New South Wales was not a Category 2 employer. In particular, I do not accept that the Department of Public Works were engaged in a business which relates to the period of exposure and which can be described as installer of asbestos or of product, plant and equipment which contained asbestos. I note that Wallaby Grip (BAE) Pty Ltd (In Liquidation) (hereafter called “BAE”) relies on my Contributions Assessment in the matter of William John Harvey (DDT No 8296 of 2008). Whilst Mr Makris was employed by the New South Wales Department of Public Works to assist in the installation of asbestos products, the Department was not in the business of installation. 11. I am of the view that Amaca and BAE are both Category 1 defendants or cross defendant and the State of New South Wales is a Category 2 defendant. 12. Having regard to the nature of the plaintiff’s alleged condition, this is a disease of gradual onset and is divisible. Knowledge of the hazards of exposure to asbestos were well known for some decades prior to the plaintiff’s exposure from 1968 onwards. The view I have taken in this matter is that the Standard Presumptions should be varied to reflect the cross defendant’s submissions about the size, nature and knowledge of the State of New South Wales which by 1968 in my view was PAGE 5 comprehensive as regards asbestos-related conditions. I propose to vary the Standard Presumptions by 15% up until the end of Period C. Thereafter the Presumptions themselves reflect an appropriate percentage, 60%, for the Category 2 defendants and 40% for the Category 1 defendants. 13. Contrary to the submissions by the State of New South Wales, this claim seems to encompass four periods which are as follows: 30/6/1968 to 31/12/1978 (Period B1) 1/1/1979 to 31/12/1979 (Period B2). This was when BAE went into liquidation. I have not made any allowance for the possibility that thereafter there may have been exposure by the plaintiff to its products but it seems to me that this is speculative. Period C is from 1/1/1980 to 31/12/1989 Period D is from 1/1/1990 to 30/6/1997. 14. You will note that I have slightly adapted the table contained in the second cross defendant’s Reply. 15. I have to assume that the plaintiff was relevantly exposed to the cross defendant’s products at all material times. That results in the following table. Period Date Months Calculation Total B(1) 30/6/68 to 126 126/348 x 90% 32.6% 30/7/78 PAGE 6 B(2) 31/7/78 to 12 12/348 x 90% 3% 31/12/79 C 1/1/80 to 120 120/348 x 90% 31.3% 31/12/89 D 1/1/90 to 90 90/348 x 90% 23.2% 30/6/97 Total 348 90% Period B(1) apportionment 30/6/68 to 31/12/78 Party Calculation Total State of NSW as employer (Category 2) 50 x 32.6% 16.3% BAE (Supplier, Category 1) 50% x 32.6% ÷ 2 8.15% Amaca (Supplier, Category 1) 50% x 32.6% ÷ 2 8.15% Total 3.26% Period B(2) apportionment 1/1/79 to 31/12/79 Party Calculation Total State of NSW as employer (Category 2) 3% x 50% 1.5% BAE (Supplier, Category 1) 3% x 50% ÷ 2 0.75% Amaca (Supplier, Category 1) 3% x 50% ÷ 2 0.75% Total 3% PAGE 7 Period C apportionment 1/1/80 to 31/12/89 Party Calculation Total State of NSW as employer (Category 2) 50% x 31.3 15.65% BAE (Supplier, Category 1) Nil 0 Amaca (Supplier, Category 1) 50% x 31.3% 15.65% Total 31.30% Period D apportionment 1/1/90 to 30/6/97 In this period, as I have indicated above, I decline to vary the Standard Presumptions. Party Calculation Total State of NSW as employer (Category 2) 60% x 23.2 13.92% BAE (Supplier, Category 1) 0 0 Amaca (Supplier, Category 1) 40% x 23.2 9.28% Total 23.20% Final Apportionment Party Calculation Total (rounded) State of New South Wales 16.3% + 1.5% + 15.65% 47.37% + 13.92% BAE 8.15% + 0.75% 8.90% PAGE 8 Amaca 8.15% + 0.75% + 15.65% 33.73% + 9.28% Empty chairs 5% + 5% 10% Total 100% 16. I appoint the State of New South Wales by its Proper Officer as the Single Claims Manager. Dated the 30th day of May 2012 PAUL BLACKET SC CONTRIBUTIONS ASSESSOR.
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