DUST DISEASES TRIBUNAL AMENDMENT (CLAIMS RESOLUTION )ACT 2005 section 42 DDT No 320 of 2010 Between JOHN CHARLES CRIMMINGS Plaintiff DELTA ELECTRICITY Defendant/ First Cross Claimant COCKATOO DOCKYARD PTY LIMITED First Cross Defendant to First Cross Claim BABCOCK INTERNATIONAL LIMITED Second Cross Defendant to First Cross Claim BABCOCK AUSTRALIA PTY LIMITED Third Cross Defendant to First Cross Claim AMACA PTY LIMITED ( formerly known as James Hardie & Coy Pty Limited) Fourth Cross Defendant /Second Cross Claimant CSR LIMITED First Cross Defendant to Second Cross Claim DETERMINATION OF APPORTIONMENT The proceedings which have been referred to me for a determination of apportionment as between the defendant and cross defendants, Delta Electreicity[“Delta”] , Cockatoo Dockyard Pty Limited [“Codock”], Babcock International Limited [“BIL”], Babcock Australia Pty Limited [“BAL”], Amaca Pty Limited [“Amaca”] and CSR Limited [“CSR”] arises from a claim for compensation brought by John Charles Crimmings [“the Plaintiff”] . The defendant and cross defendants were unable to agree as to apportionment of liability and the matter was referred to me by the Registrar on 3 February 2011 but received by me on 8 February 2011 pursuant to Clause 49(1) of the Dust Diseases Tribunal Regulation 2007 (“the Regulations”). I have received the Tribunal file and have had regard to the Form 1 filed by the Plaintiff and the Reply’s filed by the defendant and the cross defendants. The determination I am required to make under Section 49(4) of the Regulations is made on the assumption that all of the defendants and cross-defendants are liable. It is also solely on the basis of: “ (a) the plaintiff’s statement of particulars and the defendants’ replies on the claim, and (b) standard presumptions as to apportionment determined by the Minister for the purposes of this clause by order published in the Gazette." The standard presumptions are pursuant to the Dust Diseases Tribunal (Standard Presumptions – Apportionment) Order 2007 (‘the Order”) which provides that the legal basis for the apportionment between joint tort-feasors is governed by section 5 of the Law Reform (Miscellaneous Provisions) Act 1946. I have had regard to the Standard Presumptions contained in section 5 of the Order and the Factual Considerations contained in section 3 of the Order. In assessing the appropriate contributions I have considered the submissions contained in the replies by the cross-claimant and the cross-defendants in the context of section 3 of the Order. The Plaintiff was born on 10 June, 1938, and alleges in a Statement of Claim filed in the Tribunal on 30 November 2010 that he was exposed to asbestos dust and fibre in the course of his employment with Delta Electricity. There is only one named defendant in the Statement of Claim The Plaintiff filed a Form 1 Statement of Particulars on 30 November 2011 which sets out his employment history detailing his work at Cockatoo Dockyard as an apprentice fitter and machinist between about 1955 and late 1959. Such exposure is detailed in the Form 1 as occurring from time to time as a consequence of the Plaintiff being in places where asbestos insulation was removed from ships boilers and turbines to allow inspection. At paragraph 4.6 the Plaintiff describes the intensity of the exposure as follows: “Low to high, depending on the nature of the activity that was being performed around me at the time .“ And at paragraph 4.7 states that whilst it is difficult for him to provide a reliable estimate, “I estimate that my exposure to asbestos during the course of my employment with Cockatoo Dockyard is responsible for 20% of my total exposure and that my exposure to asbestos during the course of my employment with the Electricity Commission of NSW is responsible for 80% of my exposure. The work performed with the Electricity Commission between late 1971 and 1998 is described at page 17-20 of the Form 1 and relates to various power stations at which the Plaintiff had worked, and he reiterates the percentages of exposure as quoted above. Delta filed a cross claim on 3 December 2010 seeking indemnity and/or contribution from Codock, BIL, BAL and Amaca, on the basis that Cocdock was the employer of the Plaintiff when he was exposed to asbestos dust and fiobre in the course of the employment between 1955 and 1959, that BIl as the designers of the boliers and associated plant upon which the Plaintiff worked at the Power Stations, Bal on the basis that it was the occupier of Bunnerong Power Station whilst the Plaintiff worked there and also as the subsidiary of BIL, and against Amaca as the manufacturer and/or supplier of the asbestos containing products with which the Plaintiff worked at the Bunnerong, Pyrmont and Wallerawang Power Stations. On 14 December 2010 Amaca filed a cross claim against CSR seeking indemnity and/or contribution on the basis of the partnership that Amaca and CSR had entered into in 1964. Delta filed an amended Reply on 3 February 2011 making detailed and comprehensive submissions which can be summarized as submitting that Delta is a category 1 defendant only and not category 2. They submit that can not be an installer under the Standard Presumptions as they contracted with BIL and BAL to design, manufacture and maintain the power stations. In my view as BIL and Bal are parties to this assessment, and will be apportioned their own share of the liability on the basis that they did design, manufacture or maintain the boilers, it would not do justice to the parties to assign Delta a classification of Category 1 and 2. They further submit that Codock ought be category 2, BIL category 1, Bal category 1, Amaca category 1 and CSR category 1. Delta further submits that a variation of the Standard Presumptions ought be made against Amaca due to the factors detailed at paragraph 8 of their Reply. Codock filed a Reply on 31 January 2011 which makes a submission that Delta ought be categorized as Category 1 and 2 , but that it should only be categorized as Category 2, and that BIL and Bal ought be found to be Category 2 defendants and Amaca and CSR ought be found to be Category 1 defendants. It seeks no variation of the Standard Presumptions. BIL filed an amended Reply dated 18 January 2011 which makes extensive and detailed submissions. They submit that BIL ought be apportioned nil, but then make alternative submissions and submit that the period of employment at Bunnerong cannot be discounted as submitted by Delta , based on the Plaintiff’s evidence and the indivisibility of his condition. They submit that Delta ought be placed in Category 1 and 2 on the basis that they were an installer of asbestos, and Codock in category 1 and 2 for the same reason. They submit that BIL BAL, Amaca and CSR ought all be placed in category 1. They further submit that a variation to the maximum amount of the Standard Presumptions ought be made as between category 1 and 2 defendants based on the reasons outlined on pages 25-45 of their Amended Reply BAL filed a Reply on 25 January 2011 submitting that Delta ought be viewed as a Category 1 and 2 defendant and that a variation of the Standard Presumptions ought be made against BIL on the basis of their size and market position at the relevant times and their knowledge, Amaca on the basis of their knowledge market position and conduct at the relevant time, and Delta due to their knowledge. Amaca filed a Reply on 25 January 2011 submitting that the Category 1 defendants are BIL, Amaca and CSR and the Category 2 defendants are Codock, Delta and BIL, and further that the maximum variation of the Standard Presumptions ought be applied against Delta and BAL. The Reply contains detailed reasons as to why this ought be done. It also makes detailed submissions as to the respective liabilities of Amaca and CSR for that period on the basis of the partnership agreement. It submits that the only evidence available of the claimants exposure is that provided by him in the Form 1 and that I ought accept those estimates, and that having done that codock ought be responsible for 20% of the liability, and then provides detailed submissions as to how the remaining liability ought be apportioned as it covers two separate index periods. CSR has not filed a Reply. I have had regard to all of the submissions made by the parties in coming to my determination. STANDARD PRESUMPTIONS In accordance with the standard presumptions, it is common amongst the parties that the relevant period in the index contained within Section 5 of the Order that the Plaintiff’s period of exposure falls within Index Periods B and C. The Dust Diseases Tribunal (Standard Presumptions – Apportionment) Order 2005, Schedule 1, Clause 2 quotes from section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 as the legal basis for the approach to apportionment. Clause 2(2) of Schedule 1 of the Order is as follows: (2) The phrase “responsibility for the damage” in section 5 (2) requires a comparison of the relative culpability of each tortfeasor in causing the damage. Alternatively put, the Court in making an apportionment is engaged in a consideration of the relative blameworthiness and causal potency of the negligence of each party. These contribution provisions have become notorious for the conceptual and practical difficulties they engender. In practical terms, in most cases a broad-brush approach is undertaken. The aim is to arrive at an apportionment which is “…just and equitable…”.” In my view the best estimate of the Plaintiff’s relative exposures comes from the Plaintiff himself and on that basis I propose to apportion 20% to the period of work at Codock and 80% to the period of work for Delta. Thus Codock’s liability is 20%, as I do not accept the submission that they ought be places in both category 1 and 2 as to do so would not reflect a reasonable balance between their culpability and that of the other defendants. In respect of the period of employment at the power stations, having had regard to all the submissions I do not propose to vary the Standard Presumptions. In my view these presumptions are based on the proposition that the various submissions that have been made have been accounted for in the Presumptions, and in my view ought not be varied in these proceedings. The evidence is sufficiently vague as to where and when the Plaintiff was performing his tasks, and in what environment to cause me to believe that to try and vary the Standard Presumptions would not do justice between the parties. The period of the Plaintiff’s employment with the power stations is from 1971 to 1998 and falls within Index Periods B,C and D, however doing the best I can, in my view the most appropriate index period to be used to determine apportionment is Period C . Category 1 : 60 percent Category 2 : 40 percent. APPORTIONMENT AS BETWEEN DEFENDANTS Codock is the only defendant for the period of the Plaintiff’s employment there and is therefore apportioned 20%. For the period at the power stations, Delta is only Category 2 defendant, and BIL, BAL Amaca and CSR are Category 1 defendants. I therefore calculate the apportionment as follows: Power station period (80%) Delta 80% x 40% = 32% BIL 80% x 60% x 1/4 = 12% BAL 80% x 60% x ¼ = 12% Amaca 80% x 60% x ¼ = 12% CSR 80% x 60% x 1/4 = 12% And Codock 20% ---------- 100% I have been asked to determine a single claims manager, therefore pursuant to s.61(3)(b) of the Regulations, I appoint Delta as single claims manager. Dated : 11 February, 2011 WENDY STRATHDEE