Clark ES - Dust Diseases Tribunal

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					IN THE DUST DISEASES TRIBUNAL
OF NEW SOUTH WALES

                                                                   DDT No. 269 of 2011


                                       EDWARD STEPHEN CLARK (as legal
                                       personal representative of the Estate of the
                                       Late Glenda Myrtle Clark)
                                                                               Plaintiff

                                       ANTHONY SQUIRES PTY. LIMITED
                                                        First Cross-Defendant

                                       WALLABY GRIP (BAE) PTY. LIMITED (IN
                                       LIQUIDATION)
                                                            Second Defendant

                                       AMACA PTY. LIMITED (formerly James
                                       Hardie & Coy. Pty. Limited)
                                                                   Third Defendant



                         CONTRIBUTIONS ASSESSMENT

                                 DETERMINATION


The Registrar referred this matter to me pursuant to Clause 49 (1) of the Dust Diseases
Tribunal Regulation 2007 (“the Regulation”) for a determination of apportionment as
between the Defendants.

My determination is to be made on the papers, on the assumption that the Defendants
are liable, and applying the Dust Diseases Tribunal (Standard Presumptions – Apportionment)
Order 2007 (“the Standard Presumptions”).

I have the Tribunal file which includes:

(a)    the plaintiff’s Further Amended Statement of Claim and Statement of Particulars;

(b)    Replies from the each defendant.

The Plaintiff’s History of Exposure

The plaintiff was born on 15 January 1942 and died of mesothelioma on 3 November
2011 at the age of 69 years. Proceedings were commenced in her own name but since her
death, her husband has been substituted as plaintiff.

The plaintiff alleges just one period of exposure from 4 July 1966 until September 1982
when she was employed by Anthony Squires Pty. Limited (“Anthony Squires”) (its
Reply says it is now known as Silkers (Sales) Pty. Limited (In Liquidation)). I take it that
two of the defendants being in liquidation does not present a legal impediment. None
has been alleged.

The Plaintiff’s Statement of Claim alleges that the plaintiff was employed by the first
defendant during that period. It alleges she was exposed to asbestos insulation materials
manufactured by the third defendant and supplied to her employer by the second
defendant. She was also exposed to asbestos rope manufactured and supplied by the
second defendant. Amaca is alleged to be the manufacturer of the compound and half
pipe sections.

Anthony Squires was a manufacturer of clothing. The plaintiff was employed as a clerk at
their St. Mary’s factory. There were about 5 buildings. The plaintiff said she had to visit
the different departments of the factory as part of her job. This continued throughout
her employment. Steam pipes ran throughout some areas of the factory particularly
where there were steam presses. The plaintiff also had to visit the boiler room. She
observed workmen carrying out repairs in the factory. She says the factory was
constructed at least in part of “fibro” with a corrugated asbestos roof. Further details
appear in the history given to Prof. A.B.X. Breslin who the plaintiff saw about a month
before her death. Prof. Breslin records that the plaintiff did not ever personally use
asbestos at any time, nor did she ever wear a mask.

It appears Prof. Breslin was provided with some information from a Mr. Rowan Oxley
who was in charge of maintenance at the factory during the plaintiff’s employment. He
confirms that the steam pipes had asbestos lagging which were mostly half pipe sections
and asbestos composition. Mr. Oxley said the asbestos insulation came from “Bells”
which is a trading name of the second defendant.

There does not appear to be any or any significant domestic exposure or other
employment-related exposure.

As Prof. Breslin describes it, the plaintiff’s exposure was passive and “reasonably light”.

Replies of the Defendants

The First Defendant

The Anthony Squires admits employment and occupation of the premises. It says that
investigations are continuing regarding other relevant matters. It says (and the other
defendants agree) that it should be classed as Category 2 while the second and the third
defendants are Category 1. The Standard Presumptions should not be varied.

It says that the period of exposure straddles Index Periods B and C, and it should only be
liable for 36.25% of the overall liability. The balance should be apportioned between the
second and third defendants.

The Second Defendant

BAE commenced operations on 1 October 1966 and ceased operations on 31 December
1979. Accordingly, I will exclude it from apportionment outside that period. BAE says at
the relevant time it was one of a number of suppliers of asbestos rope, that it did supply


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half pipe sections, but Amaca was the manufacturer from whom BAE purchased all of
its pipe sections (refer Statement of John Hayer, Annexure B, paragraph 14).

BAE submits that the compound and corrugated fibro sheeting were manufactured by
Hardies. BAE says that it does not know if the plaintiff was exposed to products
manufactured or supplied by it. It says that at least assumed knowledge should be
attributed to Anthony Squires, and that the Standard Presumptions ought to be varied by
the maximum allowable amount on the basis of the size and sophistication of Anthony
Squires. The Standard Presumptions should also be varied because of the superior
control which an employer has over its employees in order to protect their health.

BAE then suggests an apportionment of liability but says:

        “BAE is currently unsure whether indemnity will be extended for any liability arising
        from exposure after 30 July 1976.

        Accordingly, BAE will not contribute to any liability apportioned to it after this
        date.”

BAE submits that I should take into account the plaintiff has not served any evidence of
the asbestos products to which the plaintiff was exposed were manufactured and/or
supplied by BAE. BAE refers to and attaches a Contributions Assessment Determination
in the matter of Garnham (DDT NO. 64/12). In that case, the contributions assessor
referred to a lack of evidence “… of exposure of any products manufactured or supplied by Amaca
… or BAE”. The contributions assessor then apportioned 75% to the employer.

The present situation is different. There is evidence that Bells supplied asbestos to the
employer (refer history of Prof. Breslin). BAE says it supplied half pipe sections which in
turn implicates Hardies.

While the level of exposure in this matter is fairly light, I find that there is evidence that
BAE supplied asbestos products to the employer, and that at least some of these
products were manufactured by Amaca.

Apportionment

Initially, I must determine the existence, if any, of any separate periods of exposure,
pursuant to Clause 5 (8) of the Standard Presumptions. In the present case there is only
one period of exposure, namely, 4 July 1966 to September 1982 (less 12 months in 1969-
1970). Exposure was continuous with the exception of a period away from employment
in 1969 to 1970 during pregnancy. I assume this was about 12 months. The whole period
is about 194 months less 12 months in 1969 and 1970 resulting in a total period of
exposure of 182 months.

The period of exposure straddles Index Periods B and C (refer Clause 5 (1) of the
Standard Presumptions). Period B ceases on 31 December 1978. In Period B, a Category
1 defendant is liable for 65%, while a Category 2 defendant is liable for 35%. In Period
C, the apportionment is that a Category 1 Defendant is liable for 60%, while a Category 2
defendant is liable for 40%.




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Anthony Squires falls into Category 2, and BAE and Amaca are Category 1. In
accordance with Clause 5 (4) of the Standard Presumptions, I will treat Amaca and BAE
as equal in contribution as I am not satisfied that a variable contribution ought to apply.

The plaintiff suffers an indivisible disease (refer Clause 5 (7) of the Standard
Presumptions). I will apportion on a time-on-risk basis as it appears the Plaintiff’s
exposure was relatively even throughout the period.

I will not vary the Standard Presumptions between Category 1 and Category 2 because
the matters raised by the parties in this regard are dealt with, in my view, as part of the
Standard Presumptions.

The calculation for apportionment is as follows:

Period     Date                 Months                    Calculation         Total

B (1)         4.7.66-30.9.66                         3        (3/182) x 100           1.65%

B (2)      1.10.66-31.12.78      147 (less 12 months in    (135/182) x 100            74.15%
                                   1969 – 1970) = 135
C (1)       1.1.79-31.12.79                         12      (12/182) x 100             6.6%

C (2)          1.1.80-1.9.82                        32      (32/182) x 100            17.6%

                                                                                 100%


Party              Period Calculation                Result     Totals

Anthony Squires B (1)          1.65% x 35%        0.58%
                B (2)          74.15% x 35%       25.95%
                C (1)          6.6% x 40%         2.64%
                C (2)          17.6% x 40%        7.04% 36.21%
BAE             B (1)                             nil
                B (2)          74.15% x 65% x 50% 24.1%
                C (1)          6.6% x 60% x 50%   1.98%
                C (2)                             nil    26.08
Amaca              B (1)       1.65% x 65%           1.07%
                   B (2)       74.15% x 65% 50%      24.1%
                   C (1)       6.6% x 60% x 50%      1.98%
                   C (2)       17.6% x 60%           10.56% 37.71%




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Final Apportionment

Party                             Apportionment after rounding

Anthony Squires Pty. Limited                  36.2%

Wallaby Grip (BAE) Pty. Limited               26.1%

Amaca Pty. Limited                            37.7%


Single Claims Manager

I have been asked to appoint a Single Claims Manager. Pursuant to Clause 61, I select
Anthony Squires Pty Ltd as the Single Claims Manager.




DATED 10 December 2012




                                                        JAMES T. KEARNEY
                                                  CONTRIBUTIONS ASSESSOR




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