Amaca Pty Limited v The University of Sydney;

Court of Appeal (NSW)|2020-02-13

/Cross-Claimant) [The University of Sydney] Solicitors: Mills Oakley (Cross-Claimant/Cross-Defendant) [Amaca Pty Ltd] Rankin Ellison (Cross-Defendant/Cross-Claimant) [The University of Sydney] File Number(s): DDT 253/18/1DDT 253/18/2

Background

By a Statement of Claim filed on 16 August 2018 the plaintiff Mr John William Starr sought damages for his fatal disease of mesothelioma. He sued The University of Sydney (University) as first defendant and Amaca Pty Limited (Amaca) as second defendant.
Mr Starr alleged that between May 1981 and February 1984 he was employed by Sydney Teachers College and that in the course of that employment he was exposed to asbestos dust and fibre while working with asbestos cement building products. The legal obligations of Sydney Teachers College are now the responsibility of the University. At the time Mr Starr was employed by Sydney Teachers College, that institution was not part of the University.
Mr Starr alleged that the asbestos cement building products to which he was exposed were manufactured and supplied by Amaca.

The Issue

Both Amaca and the University are tortfeasors found liable by judgment to Mr Starr. The sole issue for determination is apportionment of the damages and costs paid by Amaca and the University to Mr Starr.
Such an apportionment is made pursuant to s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946, which provides: "In any proceedings for contribution under this section the amount of the contribution recoverable from a 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."

The Law

The test for apportioning contribution under s 5(2) is in substance the same as that applied in apportionment for contributory negligence. In Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492, the High Court said at [10]: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
In Macquarie Pathology Services Pty Limited v Sullivan (NSW Court of Appeal, Unreported, 28 March 1995) Justice Clarke described the apportionment exercise in the following terms: "The making of an apportionment involved a comparison of both culpability and of the relative importance of the acts of the parties in causing the damage. To put it another way the court is concerned with considering relative blameworthiness and the relative causal potency of the negligence of each party."

Evidence of Mr Starr

Mr Starr swore an affidavit on 20 December 2018. He left high school aged 16 and worked in a number of jobs before commencing work with the Sydney Teachers College on 18 May 1981. He was required to do repairs and maintenance on various properties that the College owned including buildings at Yarramundi, Newtown, Paddington and Oatley. He was part of the maintenance team which did repairs and refurbishment at all of the College properties. There was a large workshop on the College's main campus in Newtown where carpenters repaired and built things needed at other College properties. Throughout his employment he made regular use of asbestos cement building products for repairs and maintenance.
His most significant exposure to asbestos products occurred while doing refurbishment work at the Yarrawood Conference Centre at Yarramundi, near Windsor. He worked on five dilapidated cottages at Yarrawood between July and September 1981. These cottages were constructed of timber frames with asbestos cement fibro sheets constituting the external cladding and the eaves. The internal cladding was non-asbestos fibrous plaster. In the wet areas there were asbestos cement fibro sheets.
The cottages had been severely damaged by a white ant infestation. Mr Starr removed the flat asbestos cement sheeting from the exterior of all of the cottages. In his affidavit he said that he used a hammer and his hands and broke up the asbestos cement fibro sheets. He described the work as extremely dusty. The dust from the fibro got under his clothes, on his hands, in his hair and in his face. He inhaled it every day he worked in the job. Because he was the youngest person in the crew he did most of this dusty work. He removed the old fibro from the internal wet areas of each cottage and this was also very dusty work. He used a broom to clean up the dust and the offcuts, which created more dust in the air around him.
The two carpenters in his crew repaired and rebuilt the timber framework of the cottages. When the framework was complete Mr Starr relined the exterior of all of the cottages by installing new asbestos cement fibro sheeting. This material was labelled Hardiflex. He used an electric angle grinder to cut the fibro sheets to size. He used an electric drill with a hole saw, to ensure the sheets fitted properly around pipework. He described this as extremely dusty work. Every time he cut the sheets with the angle grinder clouds of dust were released all around him. He nailed the asbestos cement fibro sheets into place, which created more dust. When working on the eaves he drilled vent holes above his head which caused dust to fall upon him.
The internal wet areas were re-clad with asbestos cement sheeting. He cut these sheets with an angle grinder. Compressed asbestos cement sheets were used as the flooring in the wet areas. He had removed the old compressed asbestos cement sheets by cutting into them with an angle grinder and pulling them out with his hands. This was extremely dusty work. He cut the three-quarter inch compressed asbestos cement fibro sheets, which were laid to replace the old sheets in the wet areas. The grinder threw up clouds of dust in the area around him. He had to drill the compressed sheets to fix them to the floor with screws. This meant that he was on his hands and knees with his face very close to the drill bit, inhaling the dust that flew back towards him.
Each of the five cottages had a tin roof. There was some Super Six corrugated asbestos roof sheeting on the main kitchen and the conference building. He did some repair work on this roof, which required drilling and nailing.
Mr Starr worked on other buildings when employed by Sydney Teachers College, where he had to remove existing asbestos cement materials and replace them with Hardiflex. He was not given any induction or training and was never told about any of the dangers of asbestos cement building products. He did not see any warnings on the fibro sheets which he was required to use. He had no idea that there was danger in breathing the asbestos dust.
Mr Starr swore a second affidavit on 26 February 2019. He said that he had given further thought to his exposure and recalled further details regarding the work at Yarramundi. Removing the linings from the timber frames was a pretty quick and simple task. He tried to remove each sheet intact. This meant that it could be used as a template for cutting the replacement sheet. It was also easier to dispose of an intact sheet rather than clean up pieces of broken fibro. A length of timber was pressed against the edges of the lining which popped the lining off the timber. Mr Starr estimated that removing the existing linings accounted for about 10% of his time at Yarramundi and the remaining 90% of his time was spent working with new asbestos cement fibro products, being Hardiflex and compressed asbestos cement sheets.
Mr Starr said that whenever he cut or drilled the compressed asbestos cement sheets "it was like a blizzard". This work created thick clouds of dust all around him which hung in the air. This was the dustiest work he did, by far. Cutting the fibro sheets for the external cladding created "billows of dust". This dust also hung in the air and fell on every surface while he worked.
Mr Starr said in par 21 of his second affidavit: "When I compare the level and intensity of dust created by working with the new asbestos cement sheets as opposed to removing the old linings, I would say that it was a ratio of more than 10 to 1. That is, the level and intensity of dust created by working with the new asbestos cement sheets as opposed to removing the old linings, I would say that it was a ratio of more than 10 to 1. That is, the level and intensity of dust created by working with the new asbestos cement sheets was more than ten times worse than the dust created in the removal and disposal of the old linings."
Mr Starr said that once the new asbestos sheets were installed, he sanded them down and painted them. Sanding the sheets created more clouds of dust around him while he worked, similar to the dust which arose from cutting and drilling the new sheets, but it was not quite as dusty.
In his second affidavit Mr Starr recalled another job where there was significant exposure to asbestos. Soon after finishing the work at Yarramundi, he was sent to work on a two-storey building in Missenden Road in Camperdown, right on the boundary of the Sydney Teachers College main campus. He stripped out the internal walls of the top floor of the building, but cannot say what material was removed. He built totally new internal walls using plasterboard in the dry areas and asbestos cement sheets in the wet areas. He also used compressed asbestos cement sheets on the floor of the wet areas. Again he used an angle grinder and an electric drill to cut and drill these sheets. This work created the same level of dust which he described at Yarramundi, both in the air and on all surfaces. Because the work at Missenden Road was enclosed, the intensity of the dust was worse than that at Yarramundi.
Not long after he finished the rebuilding work on the upper floor at Missenden Road, the decision was made to turn that floor into an open plan layout. He was sent back to the site and demolished all of the internal walls and linings which he had just built. The dust created was greater than at Yarramundi. There was no need to preserve the sheets and he broke them down to remove them from the building. This created more dust.
Mr Starr said that in early 1982 he was working in the workshop and cutting an asbestos cement sheet. A senior carpenter chastised him and told him that the dust created by cutting the new sheet was dangerous. This was the first time that he became aware of any danger associated with cutting or drilling asbestos cement sheets. After this incident he tried to avoid working with such sheets, and if he did, he wore a dust mask.
After his case had settled, Mr Starr attended the Tribunal on 4 March 2019 to give oral evidence. Senior counsel for both parties cross-examined him.
Mr Starr said that because he was the youngest person on the team at Yarramundi, he was given the more labour-intensive jobs. He was the person who did most of the demolition. Each cottage had a bathroom as its wet area, but there were no kitchens in the cottages. The main kitchen was up at the entrance to the site. There were three employees working at Yarramundi; two carpenters plus Mr Starr as the junior employee.
Mr Starr was cross-examined about the difference in his recollection between his first affidavit regarding removal of the existing external sheeting, as opposed to the second affidavit where he said that it was popped off in one piece.
Mr Starr was in reasonable health when he gave his oral evidence. I observed him to listen carefully to each question, and to give precise answers to the questions asked. It is entirely acceptable that, having given the matter further thought between his two affidavits, he came up with a more detailed and different recollection in his second affidavit. I accept him as a witness of truth and I find his evidence to be reliable. I find that the demolition work at Yarramundi was done in the way described in Mr Starr's second affidavit and in his oral evidence.
Mr Starr was cross-examined as to how many asbestos cement sheets were required for each cottage, and how long the demolition and then the renovation took. He was on site for about eight weeks, and total work on each cottage took about a week and a half. The actual demolition work was about a day for each cottage. He was cross-examined about his apportionment between demolition and construction (10:90) and he adhered to that estimate.
Cross-examination confirmed that by far the dustiest process was cutting the new sheets with an angle grinder.
Mr Starr agreed with the proposition that all of the cottages were in a dusty state, and that some of the dust to which he was exposed was non-asbestos dust. Again he confirmed his estimate of 10% demolition and 90% new work. Mr Starr confirmed that his present recollection was the same as his second affidavit.

Additional evidence for Amaca

Amaca tendered a folder of material pursuant to s 25(3) of the Dust Diseases Tribunal Act 1989 (NSW). This material had been tendered in the earlier case of (Re Lorizio) AB & P Constructions Pty Limited v Amaca Pty Limited [2006] NSWDDT 19; (2006) 3 DDCR 671. The material concerned labels said to have been affixed to Amaca's asbestos cement sheets at various times. I admitted this folder of material and indicated that I would give my reasons for its admission, over the objection of senior counsel for the University, in this judgment.
Amaca submitted that the Lorizio material regarding warnings on the product was relevant on the question of relative blameworthiness. Amaca did not seek to go behind the findings made by Judge Duck in Lorizio and accepted that such warnings were insufficient to discharge its duty of care. However, Amaca submitted that the warnings were of such a nature that relevant precautions could have been taken, if the warnings were heeded by the employer.
I find that the material from Lorizio (Exhibit XCC4) is relevant on the question of relative blameworthiness. Whether the quality and effect of the warning rises as high as was put by Amaca is a matter to be dealt with below.

Additional evidence for the University

The University relied upon two notices pursuant to s 25B of the Dust Diseases Tribunal Act 1989 (Exhibits XCC5 and XCC6). I admitted some of the paragraphs of those notices and rejected others, by an ex tempore ruling delivered on 13 February 2020.
The matters admitted into evidence from the first s 25B notice are as follows: 1. In July 1977 James Hardie & Coy Pty Limited (James Hardie) bought the asbestos cement business of Wunderlich, and from July 1977 onwards James Hardie was the sole supplier of asbestos cement flat sheet product in Australia. 2. James Hardie was the sole manufacturer of asbestos cement building products in Australia after 1977. 3. From 1938, James Hardie had actual knowledge of the dangers to health posed by visible clouds of asbestos dust and that where workers were exposed to visible clouds of asbestos dust, even intermittently, they should wear suitable dust respirators. 4. James Hardie occupied a pre-eminent position in the asbestos industry and professed unique knowledge in relation to its products. 5. From 1935 James Hardie maintained an extensive research establishment and laboratory at Camellia where, it later claimed in an advertising brochure, "Unceasing research and experimentation continues into the manufacturing processes and applications of all the company's products". 6. By 18 March 1957, James Hardie had in its possession an article by Dr DL Gordon Thomas entitled "Pneumonokoniosis in Victorian Industry", published in the Medical Journal of Australia in January 1957, which pointed out that it was not only persons handling asbestos in its raw state who were at risk of contracting asbestos but also those engaged in "sawing, cutting and finishing any product containing asbestos - for example brake linings, asbestos sheeting and various insulating materials". In response to this article, an officer of James Hardie wrote "I do not think there is anything in this which we do not already know".
On further reflection, I am uncertain whether that last matter is properly a s 25B finding, although the material would be admissible anyway as evidence under s 25(3) of the Dust Diseases Tribunal Act 1989. However, such evidence could be re-stated as the following issue of a general nature: "By 1957 James Hardie knew that persons engaged in sawing, cutting and finishing any product containing asbestos were at risk of contracting asbestosis."
In this case it is probably a distinction without a difference, but a s 25B issue of a general nature should be stated as an issue rather than as a recitation of the evidence in a particular case.
In relation to the second s 25B notice, the following issues of a general nature were admitted as evidence in this case: "(1) Compressed asbestos cement fibro sheets were a James Hardie product. James Hardie was the only manufacturer of this product. (2) Durasbestos thick sheet was a Wunderlich product which was simply two Durasbestos flat sheets bonded together."

Relative Causal Potency

Senior counsel for both parties submitted that relative causal potency is to be determined by assessing the exposure to asbestos dust caused by each defendant. This accords with the approach of President O'Meally in Amaca Pty Limited v Wallaby Grip Limited & Ors; Re Eaton [2006] NSWDDT 13; (2006) 3 DDCR 573 at [9] where his Honour said: "In determining contribution in a case such as this, two factors ordinarily arise for consideration. The first is the relative culpability of the parties; and the second is the causative contribution made by each. Counsel for each of the parties agreed that relative culpability is equal in this case, and thus the only matter to be considered is the causal contribution to the late Mr Eaton's mesothelioma made by the products manufactured or supplied by each. This will depend on the extent of the exposure from the products of each."
At Yarramundi Mr Starr was exposed to in situ asbestos cement building products when he removed the external flat sheet cladding. There is no evidence that these products were James Hardie products. Thus the exposure to the in situ flat sheets at Yarramundi falls at the feet only of the University. Cutting and removing the in situ compressed fibro sheets exposed Mr Starr to dust from a James Hardie product.
The exposure to new product installed at Yarramundi falls equally upon Amaca and the University. So does the exposure at Missenden Road, both in relation to construction of the new partitioning, and its later demolition. Since all of this work was done in 1981, which is four years after James Hardie became the sole supplier of asbestos cement building products, Amaca is responsible for the supply of the products installed at Yarramundi and at Missenden Road.
I have already accepted the evidence of Mr Starr when he made an apportionment between time spent on demolition work at Yarramundi and construction work of 10% demolition and 90% construction. I also accept his evidence that the intensity of exposure was that the dust was ten times as intense during construction as it was during demolition. Cases such as this should not be determined with fine mathematical precision, particularly when these estimates are made decades after the event, and they are only estimates, not precise measurements.
I find that at least 95% of the exposure to asbestos dust at Yarramundi was exposure to Amaca products.
I find that all of the exposure to asbestos dust at Missenden Road was exposure to Amaca products.
Thus the causal potency factor, which depends on the extent of the exposure created by each defendant, is almost evenly balanced. The scales weigh slightly against the University, as it is the sole identifiable cause of the exposure to in situ flat sheet products at Yarramundi.

Relative blameworthiness

The authorities point to the key factor in determining relative blameworthiness being the degree of knowledge of the risks of asbestos which is attributable to the parties seeking contribution.
For example, in State Rail Authority (NSW) v Wallaby Grip & Anor; Re Raynor [1999] NSWDDT 12; (1999) 18 NSWCCR 193, Judge Curtis said at [112]: "In apportioning liability I take into account the pre-eminent position of each of the cross-defendants in the industry, their actual knowledge of the danger, and the commercial nature of their operations contrasting as it does with the operation of a public railway service by the SRA. I also take into account the unique knowledge professed by each cross-defendant…".
In that case, which concerned exposure of a worker employed by the railways between 1938 and 1950, Judge Curtis apportioned responsibility 20% to the employer and 80% split equally between suppliers of asbestos insulation.
In BI (Contracting) Pty Limited v Myer Emporium Limited [2005] NSWCA 305; (2005) 3 DDCR 142, the Court of Appeal considered apportionment when the exposure was between 1960 and 1965 in the course of employment as an apprentice carpenter. The asbestos supplier in that case (a spraying company) had actual knowledge of the dangers of exposure to asbestos dust whereas the employer, even though it bore a non-delegable duty of care to its employee, had only a constructive knowledge of such danger. The spraying company was the more culpable of the two tortfeasors. Liability was apportioned 10% to the employer and 90% to the asbestos contractor.
In BI (Contracting) Pty Limited v University of Adelaide [2008] NSWCA 210; (2008) 6 DDCR 382, an apportionment of damages for an exposure in 1961 was made of 65% to the employer with constructive knowledge and 35% to the contractor with actual knowledge. That apportionment was not disturbed on appeal.
In BI (Contracting) Pty Limited v AW Baulderstone Holdings Pty Limited [2007] NSWCA 173; (2007) 9 DDCR 148, the exposure occurred in 1963. Liability was apportioned 20% against the employer and 80% against the asbestos contractor. The appeal concerned an indemnity clause in the contract and thus the Court of Appeal did not have to consider the correctness of the apportionment by the trial judge.
The case of BI (Contracting) Pty Limited v The Public Trustee of South Australia & Anor [2005] NSWCA 306; (2005) 3 DDCR 161 concerned exposure in 1974. The trial judge apportioned 25% to the employer and 75% to the asbestos suppliers. An appeal against this finding was dismissed.
In Zwiersen v Field & Hall Pty Limited & Ors [2016] VSC 16 Justice Rush of the Supreme Court of Victoria considered the exposure of an electrician to asbestos in the course of his employment from mid-1964 until early 1972. The original allegation made by the plaintiff also included a period of exposure from 1976 to 1981, but on the facts as found this exposure occurred when the plaintiff was employed by a different company - see par [7] of the judgment.
Justice Rush was apportioning damages between the employer and two asbestos suppliers who were in partnership. His Honour said at [32]: "In weighing up the conduct of each defendant, I am satisfied the circumstances of this case are such to justify a finding that the third and fourth defendants have a higher level of responsibility and culpability for their breach of the standard of care than the first defendant. In making such a finding, I do not overlook the importance of the duty of care to the plaintiff that was breached by the first defendant as the plaintiff's employer. The first defendant directed the plaintiff to his place of work and the dusty conditions described by the plaintiff."
His Honour held that the manufacturer and distributor of the insulation product had actual knowledge of the prospective dangers. He found that the employer had constructive knowledge. There was evidence placed before the Supreme Court, in the form of an expert report, to show that by 1970 the dangers of asbestos causing mesothelioma were well-known in Australia. His Honour said at [20] that: "It is relevant to the assessment of the first defendant's responsibility that the plaintiff's employment extended over a period of time when the knowledge concerning the dangers of exposure to asbestos was rapidly increasing."
In apportioning damages 20% against the employer and 80% against the asbestos producers who supplied the insulation material to which the plaintiff was exposed, Justice Rush referred to: 1. the obligations of the employer and employee relationship; 2. the inertia on the part of the employer in failing to make any enquiry as to the conditions it directed the plaintiff to work in; 3. the resources of the two large companies involved in large scale production of asbestos insulation, who were the repositories of knowledge concerning the dangers of asbestos and who could have, by warning, alerted the employer to the problem.
There is no evidence of actual knowledge on the part of the Sydney Teachers College, as at 1981. However by early 1982 a senior employee in the workshop was warning the plaintiff that asbestos was dangerous and that he should take precautions against inhaling the dust. This knowledge did not emerge for the first time in early 1982. As Justice Rush said in Zwiersen, such knowledge was emerging over quite a period of time. However, in the absence of any expert evidence about what level of knowledge an employer should have had in 1981, when Mr Starr was exposed, all I can find is that the employer ought to have known of the dangers of asbestos dust and fibre when Mr Starr was exposed in the course of his employment.
Had there been such evidence in this case, it could have resulted in a higher percentage of liability being found against the employer for a 1981 exposure. It is up to the parties to call evidence or use provisions such as s 25(3) and s 25B. The High Court has plainly stated that in the absence of such evidence a judge of the Dust Diseases Tribunal cannot take into account knowledge gained from hearing other cases - Dasreef Pty Limited v Hawcher [2011] HCA 21; (2011) 243 CLR 588.
Every case concerning contribution must be determined on its own facts. However, it can be seen from the review of the cases cited above that the attribution of a 20% liability to an employer has usually occurred when the exposure is in the 1960s or 1970s. This case concerns exposure in 1981. In my view there has to be a higher proportion of responsibility imposed upon the University than 20%. That having been said, Mr Starr was employed by an educational institution, which had a workshop and which employed tradesmen. He was not employed by an industrial undertaking or by an organisation which had any scientific or industrial research capabilities. On the question of relative blameworthiness, Amaca is more responsible than the University.
The decision of Judge Kearns of this Tribunal in the State Dockyard cases is also instructive. These cases are reported as State of NSW v Amaca Pty Limited; Amaca Pty Limited v CSR Limited [2016] NSWDDT 2. The hearing involved apportionment between Amaca and CSR in relation to eight workers at the State Dockyard in Newcastle who had contracted an asbestos-related illness. There was evidence in the case that the State Dockyard had actual knowledge of the dangers of asbestos as at 1962. The Dockyard, for which the State of NSW was responsible, was a very large industrial organisation.
The original plaintiffs were exposed at different times and the findings of Judge Kearns reflect this. The proportion of responsibility found against the State varied from a low of 60% to a high of 90%. The State Dockyard case can be distinguished from the present proceedings on several grounds. Firstly, the employer had actual knowledge at the time the workers were exposed. Secondly, the employer was a large industrial organisation. I have considered the judgment in the State Dockyard case and the results reached by Judge Kearns, but because the facts in those eight claims are in no way comparable to the present, I remain of the view that liability must fall more on Amaca than on the University.
Senior counsel for Amaca submitted that the placing of warning labels on the asbestos cement building products reduced the relative blameworthiness of Amaca. I reject this submission. Firstly, Mr Starr said that he saw no warnings on any of the asbestos cement building products. Secondly, it was not put to Mr Starr that he might have seen such warnings but forgotten about them. Thirdly, the warnings themselves would not have told a person in the position of Mr Starr of the risks he faced in using the Amaca product. The 1981 version of the warning label said by Amaca to be placed upon asbestos cement building products is to be found at p 3 of Exhibit XCC4. That label is headed "Caution" and says: "This product contains asbestos. Breathing asbestos dust can damage health. Keep dust down."
By contrast, the warning label issued in the next year (the year after Mr Starr was exposed) is to be found at p 2 and says "Breathing asbestos dust may cause serious damage to health including cancer." Of course, that fact was known to James Hardie long before these warning labels were created. Even if the 1981 version of the label was on the product, and was seen by a person such as Mr Starr, that label was not one designed to bring home to the reader the very real and serious dangers faced by a person who breathed asbestos dust. One reading of the label would be that it was vaguely reassuring and it most certainly did not warn a user that they could be facing a fatal illness from a relatively small level of exposure. This was a fact known to James Hardie long before the creation of those labels. I find that even if the labels were on the asbestos cement sheets used by Mr Starr, that would not have reduced the relative blameworthiness of Amaca.

Conclusion and Orders

Taking into account the relative causal potency of the negligence of Amaca and the University, and the relative blameworthiness of each party, I find that the appropriate apportionment of the damages and costs paid to Mr Starr is 60% to Amaca and 40% to the University.
My orders in the matters of DDT 253/18/1 and DDT 253/18/2 are: 1. Order Amaca Pty Limited to pay 60% of the damages and costs paid by the defendants to the plaintiff. 2. Order The University of Sydney to pay 40% of the damages and costs paid by the defendants to the plaintiff. 3. Reserve the question of the costs of the cross-claims for further determination.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2020

(1999) 18 NSWCCR 193

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