{"id":"nsw:sl-2007-0142","name":"Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2007","slug":"dust-diseases-tribunal-standard-presumptions-apportionment-order-2007","collection":"regulation","jurisdiction":"nsw","status":"in_force","isInForce":true,"actNumber":"142 of 2007","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":178424,"registerId":"nsw-nsw:sl-2007-0142-current","compilationNumber":null,"startDate":"2026-04-05","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Name of Order","content":"#### 1 Name of Order\n\n1 Name of Order\n\n> This Order is the [Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2007](/view/html/inforce/current/sl-2007-0142).","sortOrder":0},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n2 Commencement\n\n> This Order commences on the date it is published in the Gazette.","sortOrder":1},{"sectionNumber":"3","sectionType":"section","heading":"Adoption of standard presumptions on apportionment","content":"#### 3 Adoption of standard presumptions on apportionment\n\n3 Adoption of standard presumptions on apportionment\n\n> The presumptions set out in Schedule 1 are the standard presumptions as to apportionment for the purposes of clause 49 of the [Dust Diseases Tribunal Regulation 2007](/view/html/repealed/current/sl-2007-0113).","sortOrder":2},{"sectionNumber":"4","sectionType":"section","heading":"Repeal of Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2005","content":"#### 4 Repeal of Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2005\n\n4 Repeal of [Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2005](/view/html/repealed/current/sl-2005-0201)\n\n> The [Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2005](/view/html/repealed/current/sl-2005-0201) is repealed.","sortOrder":3},{"sectionNumber":"Schedule 1","sectionType":"schedule","heading":"Standard apportionment—process and presumptions","content":"# Schedule 1 Standard apportionment—process and presumptions\n\nSchedule 1 Standard apportionment—process and presumptions\n\n(Clause 3)","sortOrder":4},{"sectionNumber":"5","sectionType":"section","heading":"Proceedings against and contribution between joint and several tortfeasors","content":"#### 5 Proceedings against and contribution between joint and several tortfeasors\n\n5 Proceedings against and contribution between joint and several tortfeasors\n\n> > (1) Where damage is suffered by any person as a result of a tort (whether a crime or not):\n> > \n> > > …\n> > \n> > > (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.\n> \n> > (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.","sortOrder":7},{"sectionNumber":"6","sectionType":"section","heading":null,"content":"#### 6\n\n6\n\nThe standard presumptions are designed, principally, to take account of the relative state of knowledge that can be attributed to the broad categories of defendants in each period. In Period A, for example, the standard presumption is designed to reflect actual knowledge of the dangers of asbestos for Category 1 defendants and an absence of actual or constructive knowledge for Category 2 defendants. In moving from Period A through to Period D, the standard presumptions are designed to reflect the increasing level of knowledge of Category 2 defendants, to the point that, in Period D, it can be assumed that all defendants (and the community generally) have actual knowledge of the dangers of asbestos.","sortOrder":16},{"sectionNumber":"7","sectionType":"section","heading":null,"content":"#### 7\n\n7\n\nThis date reflects the established link between asbestos exposure and mesothelioma set out in the article by Wagner & ors in the British Journal of Industrial Medicine: see Bendix Mintex P/L v Barnes(1997) 42 NSWLR 307 at 329G.","sortOrder":17},{"sectionNumber":"8","sectionType":"section","heading":null,"content":"#### 8\n\n8\n\nThis date reflects the fact that in 1978, James Hardie & Co Pty Ltd first displayed warnings on their products containing asbestos, and the advice of the Australian National Health & Medical Research Council about reduction of exposure to asbestos to a minimum: see *Bendix* at 331 B–C.","sortOrder":18},{"sectionNumber":"9","sectionType":"section","heading":null,"content":"#### 9\n\n9\n\nThis date reflects the conclusion of the first calendar year of operation of the DDT, by which time it can be confidently asserted that there was not, or ought not to have been, any knowledge differential within the community.","sortOrder":19},{"sectionNumber":"10","sectionType":"section","heading":null,"content":"#### 10\n\n10\n\nIt is not intended to include retail shops or outlets within the meaning of the term Supplier in Category 1. Retail shops or outlets are included in Category 2. Similarly, it is not intended to include a user of asbestos products, such as a small building company, which uses bonded asbestos sheeting in building works.","sortOrder":20},{"sectionNumber":"11","sectionType":"section","heading":null,"content":"#### 11\n\n11\n\nFor example, the category of installer would include the designer and manufacturer of particular plant or equipment which included asbestos as part of its design, as well as a company which is engaged to install the plant in accordance with the manufacturer’s instructions.","sortOrder":21},{"sectionNumber":"12","sectionType":"section","heading":null,"content":"#### 12\n\n12\n\nFor example, a case might arise where the Contributions Assessor considers that the apportionment between an employer and supplier should be adjusted because the employer is considered particularly culpable in this particular instance. The Contributions Assessor could adjust the apportionment in the first index period by up to 20 percentage points, that is from 25 percent to 45 percent, but no higher.","sortOrder":22},{"sectionNumber":"13","sectionType":"section","heading":null,"content":"#### 13\n\n13\n\nFor example, if there is more than one Category 1 defendant in periods B or C, and only one Category 2 defendant, the Contributions Assessor might wish to increase the collective share of the Category 1 defendants so that their individual shares are larger than the share of the one Category 2 defendant to reflect their greater culpability, if appropriate.","sortOrder":23},{"sectionNumber":"14","sectionType":"section","heading":null,"content":"#### 14\n\n14\n\nAn example of one method of such an apportionment is to be found in Bitupave Ltd v NSW Associated Blue Metal Quarries Pty Ltd (In Liquidation) & Anor\\[1996\\] NSWDDT 7 (1 November 1996); (1996) 13 NSWCCR 634.","sortOrder":24},{"sectionNumber":"15","sectionType":"section","heading":null,"content":"#### 15\n\n15\n\nThe Contributions Assessor could decide that an index period is so immaterial that it does not warrant any adjustment. For example, where an exposure occurred for equal periods in index period A and index period B, then the Contributions Assessor ordinarily would adjust the standard presumption accordingly. Where, however, only a small part of the exposure occurred in Period B, the Contributions Assessor might decide to make no adjustment.","sortOrder":25},{"sectionNumber":"16","sectionType":"section","heading":null,"content":"#### 16\n\n16\n\nAn example of one method of such an apportionment is to be found in Bitupave Ltd v NSW Associated Blue Metal Quarries Pty Ltd (In Liquidation) & Anor\\[1996\\] NSWDDT 7 (1 November 1996); (1996) 13 NSWCCR 634.","sortOrder":26},{"sectionNumber":"17","sectionType":"section","heading":null,"content":"#### 17\n\n17\n\nSee note 15.","sortOrder":27}],"analysis":{"issue_detection":{"absurdities":[],"contradictions":[]},"kimi_summary":{"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The legislation remains tightly focused on its original purpose: establishing standard presumptions for apportionment of liability in dust diseases claims. The Schedule includes explanatory material about the 2005 Review that led to these reforms, but this context supports rather than expands the core function. The Order directly implements the specific reform recommendation quoted in clause 1(4) of Schedule 1 regarding independent third-party determination using standard presumptions."},"complexity_factors":["Multiple cross-references to the Dust Diseases Tribunal Regulation 2007 and Dust Diseases Tribunal Act 1989 (at least 8 distinct references)","Nested conditional logic: different rules apply depending on disease type (divisible vs indivisible), time periods (4 distinct date ranges), and defendant categories","Dual categorisation system with exceptions for defendants falling into both categories","Variable adjustment bands (20 percentage points for periods A-C, 30 percentage points for period D)","Special rules for cross-claims commenced after claimant proceedings settle","Extensive footnotes (17 numbered notes) providing legal and factual context that modify interpretation","Requires understanding of tort law concepts including 'joint tortfeasors', 'contribution', 'indemnity', and 'causal potency'"],"plain_english_summary":"This legislation sets out a standard method for dividing up financial responsibility (called 'apportionment') between multiple companies or parties being sued for asbestos-related diseases in New South Wales.\n\n**What it does:**\nWhen someone gets sick from asbestos exposure (like mesothelioma or asbestosis), they often sue multiple defendants—perhaps their employer, the manufacturer of the asbestos product, and the building owner. This Order creates a formula to determine how much each defendant should pay, so they don't fight amongst themselves and delay compensation to the sick person.\n\n**Who it affects:**\n- **People with dust diseases** (asbestos-related illnesses) and their families—because faster resolution means quicker compensation\n- **Defendants** being sued—companies, manufacturers, suppliers, employers, and property owners\n- **Contributions Assessors**—independent experts who apply these rules when defendants can't agree\n\n**How it works:**\nThe Order splits defendants into two categories:\n- **Category 1:** Miners, manufacturers, suppliers, and installers of asbestos (considered more knowledgeable about risks)\n- **Category 2:** Employers, building owners, and users of asbestos products (considered less knowledgeable, especially in earlier decades)\n\nDepending on **when** the asbestos exposure happened, standard percentages apply:\n- **Before 1961:** Category 1 pays 75%, Category 2 pays 25%\n- **1961–1978:** Category 1 pays 65%, Category 2 pays 35%\n- **1979–1989:** Category 1 pays 60%, Category 2 pays 40%\n- **After 1990:** Category 1 pays 40%, Category 2 pays 60%\n\nThese percentages can be adjusted up or down (within limits) based on specific circumstances—like how much a defendant actually knew about risks, or what safety steps they took.\n\n**Why it matters:**\nBefore this system, defendants would often spend years arguing about who should pay what, delaying compensation to dying claimants. This creates a 'default position' that encourages early settlement and ensures claimants aren't caught in the middle of disputes between defendants."},"flash_summary_failed":{"failed":true,"reason":"Unauthenticated. Configure AI_GATEWAY_API_KEY or use a provider module. Learn more: https://ai-sdk.dev/unauthenticated-ai-gateway","source":"analysis-cron"},"summary":{"complexity_score":5,"scope_assessment":{"changed":false,"description":"Based on the available metadata, the order appears to remain focused on its original narrow purpose of setting standard presumptions for apportionment in dust disease cases. It has been in force unchanged since 23 March 2007, suggesting no scope creep or amendment. However, the absence of the actual order content limits certainty in this assessment."},"complexity_factors":["Involves specialised legal tribunal proceedings not familiar to most Australians","The concept of apportionment across multiple defendants requires understanding of tort law (civil law about harm and compensation)","Standard presumptions involve implicit scientific and medical assumptions about dust exposure that are not self-explanatory","Operates as subordinate/delegated legislation requiring knowledge of the parent Act (Dust Diseases Tribunal Act 1989) for full context","The actual substantive provisions of the order were not included in the provided text, preventing full complexity assessment","Intersection of medical evidence, occupational history, and legal liability creates inherent complexity for affected individuals"],"plain_english_summary":"This NSW government order sets out standard presumptions for apportioning responsibility in Dust Diseases Tribunal claims, so when victims developed disease from multiple workplace exposures the Tribunal can allocate blame more efficiently. It affects dust-disease sufferers seeking compensation and the employers/insurers sued.\n\nNote: the specific presumptions and percentages were not included in the provided text."},"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":false,"description":"The Order implements the reform recommended in the Review by adopting standard presumptions and an independent Contributions Assessor process to speed resolution and reduce contribution disputes (Schedule 1, cl 1 and Methodology cl 4). Mechanically it replaces the 2005 Order (cl 4) but preserves the Review’s core approach: defendants first try to agree, then the Assessor applies timed, period-based presumptions with set variation bands (Schedule 1, cl 5). The instrument therefore aligns with, rather than departs from, the stated original intent."},"complexity_factors":["Multiple index exposure periods with different baseline splits and differing allowable variation bands (Schedule 1, cl 5(1) Table).","Binary categorisation of defendants (Category 1: miners/manufacturers/suppliers/installers; Category 2: users/occupiers/employers) requiring factual classification by the Assessor (Schedule 1, cl 5(2)).","Contributions Assessor discretion to vary standard percentages within set bands only if satisfied appropriate; may treat multiple defendants within a category as equal unless satisfied otherwise (Schedule 1, cl 5(4)–(6)).","Assumption that each defendant is liable unless defendants agree to exclude one—shifts initial risk allocation to defendants (Methodology, cl 4(4)).","Different procedures for indivisible diseases (single apportionment with possible period splits) versus divisible diseases (period-by-period weighting) adding calculation complexity (Schedule 1, cl 5(7)–(8)).","Timing and process constraints: defendants must identify matters in replies and attempt agreement during a claims-resolution period that varies with claimant health; failure leads to referral to Assessor (Methodology, cl 4(2)–(4)).","Right to judicial review of Assessor’s apportionment exists but is delayed until after claimant’s proceedings conclude, creating strategic sequencing and potential settlement incentives (Methodology, cl 4(5)).","Cross-claim complexity where additional defendants are joined after settlement or determination requires modified apportionment procedures (Methodology, cl 4(1) and notes).","Automatic entry of judgments following Assessor determinations while proceedings are pending or after settlement ties apportionment determinations to final case outcomes (Methodology, cl 4(5)).","Replaces the 2005 Order and commences on Gazette publication, which affects transitional and administrative steps for parties (cl 2; cl 4)."],"plain_english_summary":"This Order establishes fixed “standard presumptions” for dividing liability between two categories of defendants in asbestos-related claims before the Dust Diseases Tribunal, replacing the 2005 Order. It sets index exposure periods with default percentage splits and allowable variation bands, requires defendants to try to agree, and empowers an independent Contributions Assessor to apply the presumptions (assuming defendants liable). Defendants may challenge the assessor’s apportionment, but review is deferred until after the claimant’s case is settled or decided."}},"importantCases":[],"_links":{"self":"/api/acts/dust-diseases-tribunal-standard-presumptions-apportionment-order-2007","history":"/api/acts/dust-diseases-tribunal-standard-presumptions-apportionment-order-2007/history","analysis":"/api/acts/dust-diseases-tribunal-standard-presumptions-apportionment-order-2007/analysis","conflicts":"/api/acts/dust-diseases-tribunal-standard-presumptions-apportionment-order-2007/conflicts","importantCases":"/api/acts/dust-diseases-tribunal-standard-presumptions-apportionment-order-2007/important-cases","documents":"/api/acts/dust-diseases-tribunal-standard-presumptions-apportionment-order-2007/documents"}}