BI (CONTRACTING) PTY LTD v THE MYER EMPORIUM LIMITED [2005] NSWCA 305 | Case summary

BI (CONTRACTING) PTY LIMITED v THE MYER EMPORIUM LIMITED JUDGMENT 1 MASON P: This appeal from the Dust Diseases Tribunal on point of law challenges the apportionment of liability as between two tortfeasors. 2 The plaintiff, Mr Jantzen, contracted mesothelioma in consequence of exposure to asbestos dust when employed as an apprentice carpenter between January 1960 and May 1965 by the respondent Myer at its store in Rundell Street, Adelaide. During that employment the store was being rebuilt and renovated. The plaintiff spent 80% of his working time there. He was frequently required to erect and dismantle temporary walls of timber and masonite used to separate the construction site from the rest of the store. He was present while asbestos insulation was sprayed onto steel structured beams that formed part of the buildings. 3 The spraying went on in different areas as the work progressed. The plaintiff moved with the work, erecting and taking down the walls and cleaning up, including sweeping the asbestos dust and fibre left on the floor. He was not warned of the risk of inhaling asbestos dust or given any protective equipment. He was continually breathing in asbestos dust that was visible in the air. The asbestos was crocidolite. 4 The asbestos-spraying work was done by the appellant, BI. The appellant took no steps to warn or protect Myer's employees such as the plaintiff who were working in the vicinity of its activities. 5 During his employment with Myer the plaintiff also worked at times on building extensions and renovations at Myer's directors' homes. He had to cut asbestos sheets with a power saw and nail them under eaves. Dust flew up and fell down onto his face. 6 The hearing spanned six days and resulted in an award of damages of $755,656.00 against each of the appellant and the respondent (Jantzen v Myer Emporium & Anor, unreported, 8 December 2004). 7 The dispute as to apportionment proceeded (correctly) on the basis that the South Australian and New South Wales legislation was identical in substance. 8 The employer claimed indemnity from BI, alternatively substantial contribution, on the basis that the asbestos-spraying company knew of the dangers of exposure to asbestos, yet it failed to warn the plaintiff or his employer. There was evidence that, had warning been given, steps would have been taken by Myer to protect employees and others. 9 Liability was found against Myer on the basis that it ought to have known between 1963 and 1966 that the spraying of asbestos insulation in close proximity to workers was likely to be injurious to their health and included the possibility that they would contract mesothelioma (J40). The employer had actual knowledge that the plaintiff's working environment at the store was polluted by clouds of visible asbestos dust and that the work he was performing on Myer's directors' homes involved handling asbestos products in a manner that allowed inhaling of asbestos dust and fibre (J40). The failure to warn or protect constituted a breach of the employer's non-delegable duty of care to its apprentice. 10 As against the appellant BI, it was found that the plaintiff's total cumulative exposure both as a bystander and as a worker at the store was substantial, involved potent amphibole asbestos and was causally linked the development of his mesothelioma (J47, 49). BI had admitted both duty of care and breach. Indeed, it had admitted that it was aware prior to 1965 that there was medical opinion that the inhalation of asbestos fibre in respirable form in sufficient quantities in "predisposed people" could cause mesothelioma (CB 202). 11 The learned trial judge commenced addressing the apportionment issues by citing Clarke JA in Macquarie Pathology Services Pty Ltd v Sullivan (NSWCA, unreported, 28 March 1995) where (at p9, after citing Podrebersek v Australian Iron & Steel (1985) 59 ALJR 492 at 494) he said that: … the making of an apportionment involved a comparison both of culpability and of the relevant importance of the acts of the parties in causing the damage. To put it another way the court is concerned with considering relative blame-worthiness and the relevant causal potency of the negligence of each party. 12 The appellant accepts this as a correct statement of principle. 13 Walker J proceeded to address the issues of "Culpability Generally" (J239-40) and "The Culpability of the Defendants" (J241-247). 14 The submissions of the parties were summarised J242-245. They dealt almost exclusively with the "culpability" calculus. 15 Neither party suggested that the other had a greater responsibility for warning or protecting the plaintiff, except so far as it stemmed from what was said to be the appellant's greater knowledge of the dangers involved. This matter was addressed under the "culpability" heading. 16 The only specific submission as to "causal potency" was that raised by the employer, summarised by his Honour as follows (J243): So far as causal potency is concerned it relies on Professor Henderson's evidence that: (a) During the years in question sprayed asbestos insulation typically contained amphibole asbestos (crocidolite to about 1966). (b) Spraying is an extremely hazardous type of insulation work generating high concentrations of airborne respirable asbestos fibres (up to 400 fibre/M). In comparison a few days spent cutting asbestos cement sheets would have been causally inconsequential. 17 The crux of his Honour's reasoning about apportionment appears in the following paragraphs: 244. The first defendant characterises the culpability of the second defendant as a specialist firm spraying asbestos for commercial gain who at all relevant times knew that asbestos inhalation could cause mesothelioma but did nothing to inform either the first defendant or the plaintiff and nothing to protect the plaintiff. 245. As Watson SC points out the case for the culpability of BI (Contracting) is overwhelming. I have no difficulty in the light of all the evidence of adopting his description of its conduct as "callous and indifferent to the rights of others" and that it "simply ignored questions of safety when promoting its commercial interests". There is no doubt in my mind from the point of relative blameworthiness or indeed the potency of its asbestos products that BI (Contracting) must bear the lions share of the apportionment of liability. 246. The difficult question is to put a figure on the contribution Myers should make for its tort. On the one hand, as an employer, Myers bears an onerous duty of care and Mr Walker's evidence made it crystal clear that Myers did nothing to discharge its duty to protect workers such as Mr Janzten from asbestos exposure. 247. Myers was a huge employer in Adelaide second in size only to General Motors Holden. It was much larger employer of labour Australia wide. A Corporation of such size and power had the resources to research concerns and take precautions to protect workers but took no interest in the matter. On the other hand Myers was a Department Store only peripherally concerned with the building industry as a consumer of its services and a retailer of hardware products. It did not receive any advice from its architects or builder about the dangers of asbestos. The asbestos products it required the plaintiff to use were of the same potency of[sic] the insulation spray but involved only a relatively brief period of work of a week or so as compared to some 3 years exposure at the store. Myers were not directly in control of the building operations and the primary responsibility to institute a safe system of work rested with BI (Contracting). 248. Taking all the evidence into consideration I apportion liability between Myers and BI Contracting in the ratio of 10 percent to the Myer Emporium and 90 percent to BI(Contracting) Pty Ltd. 18 Initially the appellant submitted (without citation of authority) that this passage disclosed error of law in that his Honour gave weight to the fact that the appellant had actual knowledge of the dangers involved compared to the respondent that merely ought to have known of them. This submission was not pressed after the Court drew the parties' attention to Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649; Downs v Chappell [1997] 1 WLR 426 and Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Pty Ltd (2001) 53 NSWLR 626. 19 The remaining grounds proved, on analysis, to be complaints as to the facts and/or the discretionary conclusions involved in the apportionment itself. These are not matters that fall within this Court's limited appellate jurisdiction in the present matter. 20 It was submitted that the judge failed to address the "causal potency" issue. This must be rejected. The relevance of causal potency was recognised in his Honour's general remarks about the legal principles (J237). The only such issue raised in submissions at trial under this rubric concerned the fact that the appellant bore no responsibility for the consequences of the work done away from the store at the directors' houses. This issue was recognised at J243 and disposed of at J247. His Honour formed the view that such exposure was brief and of little likely consequence. This conclusion was well open on the facts and the law (cf James Hardie & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425 at 448[100]). 21 Next it was submitted that the judge failed to give effect to the non-delegable nature of the employer's duty. The stringent remarks at J246-7 indicate otherwise. But, in any event, the argument is misconceived when it is recognised that the labelling of a duty of care as non-delegable says nothing about the content of the duty, beyond making the point that it cannot be sloughed off by the engagement of an independent contractor (see New South Wales v Lepore (2003) 212 CLR 511 at 530[26]). 22 His Honour's reference to BI's "primary responsibility to institute a safe system of work" (J247) is either temporal or conclusory. He did not overlook or downplay the employer's duty of care - it was the reverse (see J246). 23 Finally, it was submitted that the primary judge paid no regard to the fact that the employer was better placed to give warnings and provide equipment to the deceased. This submission should be rejected. The particular matter was dealt with implicitly in the analysis of the comparable culpability of the two defendants. Myer did not know of the danger, unlike BI. Had it known it would have used its authority as employer to take steps in protection of the deceased's health. 24 The appeal should be dismissed with costs. 25 HANDLEY JA: I agree with Mason P. 26 WINDEYER J: I agree with Mason P. **********

BI (CONTRACTING) PTY LTD v THE MYER EMPORIUM LIMITED

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