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Makrogelidis A - Dust Diseases Tribunal

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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.




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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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