Representative of the Estate of the Late Bruce

Transcription

1 DUST DISEASES TRIBUNAL 58 of 2015 JUDITH HEATHER FRENCH (as Legal Representative of the Estate of the Late Bruce Ernest EVANS) Plaintiff AMACA PTY LIMITED First Defendant SELTSAM PTY LIMITED Second Defendant 1

2 INTRODUCTION By letter dated 27 July 2015 bearing the signature of the Registrar of the Dust Diseases Tribunal I am appointed Contributions Assessor under the Dust Diseases Tribunal Regulation 2007 in these proceedings. I have been provided with the file of the Dust Diseases Tribunal in these proceedings. The file in these proceedings contains the following material upon which I rely in making this determination: 1. Plaintiff s Statement of Particulars filed 1 June Reply filed by Amaca Pty Limited ( Amaca ) on 1 July Reply filed by Seltsam Pty Limited ( Seltsam ) on 13 July In addition to the material described at 1 to 3 above I rely on the Standard Presumptions set out in Dust Diseases Tribunal (Standard Presumptions Apportionment) Order Where I refer to exposure or its derivation this is to be taken to mean exposure to and inhalation into the deceased s respiratory system of asbestos dust and fibre. Plaintiff's allegations The plaintiff is the legal personal representative of the estate of the late Bruce Ernest Evans. Mr Evans was diagnosed with mesothelioma in January 2015 and died on 5 March

3 Mr Evans was a builder and carpenter in his lifetime. He was employed by his father from 1950 until 1959 as an apprentice carpenter and subsequently a carpenter. Mr Evans was then self employed as a builder and carpenter from 1959 until 1969 and then again from 1971 until From 1979 until 1985 Mr Evans was employed as a handyman at Ravenswood Girls school. During his lifetime Mr Evans signed a statement and this was dated 26 February Mr Evans left school at the age of 15 and commenced work with his father. He and his father would build approximately 8 houses per year in and around Sydney and particularly in the suburbs of Ryde and Eastwood. Asbestos cement flat sheets and Tilux would be used. These products would be purchased from the Complete Hardware store at Eastwood. During the time he worked for his father Mr Evans estimates that he used 95% James Hardie products and 5% Wunderlich products. In 1959 Mr Evans went out on his own and continued to work as a builder. He operated out of his home at Ryde. He built this home himself. He used James Hardie flat asbestos cement sheets. He worked for himself from 1959 to about 1969 and again from 1971 to about

4 When he was self-employed he built a lot of fibro homes. He purchased his products from Complete Hardware at Eastwood. His statement records that he recalls using mostly Hardies products including Super Six corrugated sheeting, Fibrolite, Hardiplank, Hardiflex, Shadowline, weatherboard, Log Cabin, Tilux and compressed fibro. His statement then records that he would use only James Hardie products because it was too difficult to purchase Wunderlich products. He was exposed on a daily basis. From 1979 until 1985 Mr Evans he worked for Ravenswood girls school. At some point he was required to remove asbestos cement ceilings in the classrooms and walls. He was exposed when performing this task. In 1974 Mr Evans assisted in the clean up operation following Cyclone Tracey in Darwin. He refers to seeing a lot of damaged fibro houses. The plaintiff is unable to provide any particulars over and above the matters contained in the statement of Mr Evans. Amaca Reply Log Cabin was a product manufactured by Amaca and by Seltsam. The standard presumptions do not apply. 4

5 Liability should be apportioned equally between Amaca and Seltsam on the basis that mesothelioma is an indivisible condition. Seltsam Reply It does not admit that it manufactured or supplied any of the products to which Mr Evans was allegedly exposed. Seltsam notes that Mr Evans alleges four separate periods of exposure. It submits that in relation to the period of alleged exposure at Ravenswood Girls School neither Amaca or Seltsam are implicated. Seltsam submits that the only period of exposure in which it is implicated is the period when Mr Evans was employed by his father. Seltsam notes the statement of Mr Evans referring to the use of 95% James Hardie products, 5% Wunderlich products. Seltsam submits that during the two periods that Mr Evans was self-employed there is no reference to the Seltsam products. 5

6 Contribution The submission by Amaca that the standard presumptions do not apply seems to be inconsistent with the submission that apportionment should be equal between Amaca and Seltsam. It seems abundantly clear that based on the evidence of Mr Evans in his statement that he was overwhelmingly exposed to James Hardie products and that the exposure to Seltsam products was minimal. I do note the submission by Amaca that Seltsam manufactured log cabin. Seltsam denies the manufacture of Log Cabin. It is not possible for me to reconcile this situation on the material is available to me. Mr Evans was exposed for a total period of approximately 27 years. The exposure when he was employed by his father was nine years. This is one third of the total exposure. I accept the evidence of Mr Evans in his statement that he was exposed to Seltsam products 5% of this time. 5% of 33.33% is 1.67%. I note the inconsistent evidence in the statement of Mr Evans. think it is likely that Mr Evans would have had some minor exposure to Seltsam products during his periods of self 6

7 employment because of the evidence that there was use of Seltsam products when he worked for his father. He says that he continued to purchase products from Complete Hardware at Eastwood which is where his father purchased his products. On this basis I will increase the contribution of Seltsam slightly above the figure that is produce by the above calculation. I determine contribution to be: Abaca 95% Seltsam 5% I appoint Amaca to be Single Claims Manager Toby Tancred 29 July