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[2005] NSWDDT 13
mixed. Verdict and judgment for the plaintiff jointly and severally against both defendants in the sum of $440,000. First defendant liable for 10 per cent and second defendant for 90 per cent of the judgment...
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Anita Micallef developed mesothelioma from asbestos dust that drifted into her workplace at Myer in Adelaide while BI Contracting sprayed ceilings during a 1963 shop refurbishment. Dust escaped poor canvas barriers and settled on stock and surfaces; she inhaled it daily while working with wallpaper, fetching stock and using the toilet behind the barrier. Both her employer (Myer) and the spraying company were negligent. Damages were agreed at $440,000. The Tribunal held both liable but apportioned 10 per cent to Myer (which should have known the risks but was only a retailer) and 90 per cent to BI (which actually knew the dangers before 1963, specialised in asbestos spraying, and had a heavier duty to check the literature).
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2,202 words · generated 24/04/2026
Anita Micallef worked in the wallpaper department of The Myer Emporium Limited's retail store in Rundle Street, Adelaide. In 1963 the store underwent renovation during which BI (Contracting) Pty Ltd was engaged to spray limpet asbestos onto ceilings and structural steelwork. The judgment records that upwards of 25 per cent of the sprayed asbestos failed to adhere and fell to the floor or was carried through the air to settle on flat surfaces ([2]). The spraying area was isolated from the retail floor only by canvas attached to a wooden frame. That barrier proved insufficient to prevent asbestos dust and fibre from escaping into the retail section where the plaintiff worked ([3]).
The plaintiff did not see the actual spraying, which appears to have occurred outside ordinary retail hours, but she observed workers associated with the process behind the canvas. Each morning after spraying, dust had settled on dust covers and other surfaces. When the plaintiff removed those covers the asbestos was disturbed and inhaled. She was also required from time to time to go behind the barrier to the storeroom to collect stock; the rolls of wallpaper themselves became contaminated and she tapped them to dislodge dust, causing particles to fall and linger in the air. The ladies' toilet used by staff was likewise located behind the barrier, so journeys to and from it exposed her to further dust ([4]).
As a result of this repeated exposure the plaintiff contracted malignant mesothelioma. Proceedings were commenced in the Dust Diseases Tribunal of New South Wales (matter number 376/2004). By the time of hearing the parties had agreed damages at $440,000 and neither defendant contested the plaintiff's entitlement to a verdict, though formal liability was not admitted ([5]). The hearing therefore concerned only the cross-claims between the two defendants for contribution. Evidence from Mr P J Snelling given in Williams v BI Contracting Pty Ltd & Anor [2004] DDT 19 was admitted under s 25(3) of the Dust Diseases Tribunal Act 1989. That evidence established that BI's predecessor had actual knowledge before 1963 of the dangers of asbestos, derived from material supplied by Johns Manville, although Mr Snelling did not know that even small quantities could cause mesothelioma ([9]).
O'Meally P found that both defendants owed and breached duties of care to the plaintiff. The first defendant, as employer, failed in its non-delegable obligation to safeguard the plaintiff from reasonably foreseeable injury. The second defendant, by spraying asbestos without adequate containment, created and allowed the escape of a reasonably foreseeable risk of injury ([6]-[7]). On the cross-claims his Honour apportioned liability 10 per cent to the first defendant and 90 per cent to the second defendant on the basis of moral culpability rather than causative potency, the latter factor being irrelevant because only the second defendant had introduced the asbestos into the premises ([10], [13]).
The Tribunal's reasoning proceeds in two distinct stages: first, establishing joint and several liability to the plaintiff; second, apportioning that liability between the defendants. On liability, O'Meally P applied uncontroversial principles. An employer owes a duty to protect employees from risks of injury that are reasonably foreseeable and which could be obviated or minimised by available means ([6]). The first defendant knew or ought to have known that asbestos was being sprayed in its store and that dust was escaping into retail areas. It took no steps to prevent the plaintiff's exposure. The second defendant was in the business of spraying limpet asbestos. The process itself released large quantities of dust and fibre, creating a reasonably foreseeable risk. Each therefore owed the plaintiff a duty of care and each breached it ([7]).
The more substantial analysis concerns apportionment. The President began by noting that contribution is ordinarily fixed by reference to both moral culpability and causative potency (Macquarie Pathology Service Pty Ltd v Sullivan (NSWCA unreported, 28 March 2005) per Clarke JA, cited at [10]). In this case causative potency could not differentiate the parties because the first defendant "did not itself introduce matter which made a material contribution to the plaintiff's disease" ([10]). The inquiry therefore narrowed to moral culpability.
Moral culpability was assessed by comparing each party's knowledge of the risk and the degree of departure from the standard of the reasonable person. The first defendant accepted it ought to have known of asbestos dangers; ample medical, scientific and industrial literature existed ([12]). However, it was a retailer of consumer goods, not an entity whose ordinary business exposed it to asbestos hazards. By contrast, the second defendant had actual knowledge before 1963, admitted through Mr Snelling's evidence that its predecessor received Johns Manville material warning of the dangers of exposure ([9]). Moreover, because it was in the business of spraying asbestos, its obligation "to acquaint itself with the contents of scientific, industrial and medical literature were greater than the first defendant's obligation to do so" ([13]). The President concluded that the second defendant's culpability was "much greater" and fixed its share at 90 per cent, leaving the first defendant with 10 per cent ([13]).
The second defendant argued that the Podrebersek formulation required a broader comparison of "the whole conduct of each negligent party" (Podrebersek v Australian Iron and Steel [1985] HCA 34 at 494, extracted at [11]). O'Meally P rejected any distinction, observing that the High Court's test was "identical in nature" to Clarke JA's approach in Macquarie Pathology ([11]). The decision therefore rests squarely on the differential in actual versus constructive knowledge and the specialist character of the second defendant's operations.
Prior to this judgment the applicable principles were those stated in Podrebersek v Australian Iron and Steel [1985] HCA 34; (1985) 59 ALJR 492 and the New South Wales Court of Appeal decision in Macquarie Pathology Service Pty Ltd v Sullivan (unreported, 28 March 2005). Podrebersek required a comparison of both culpability (departure from the standard of the reasonable person) and the relative importance of each party's acts in causing the damage, examining "the whole conduct of each negligent party in relation to the circumstances of the accident" (extracted at [11]). Clarke JA in Macquarie Pathology expressed the task as having regard to "the moral culpability and causative potency of the act or neglect of each" ([10]). O'Meally P treated the two formulations as interchangeable.
The Dust Diseases Tribunal Act 1989 supplied the procedural mechanism, in particular s 25(3) which permitted the admission of Mr Snelling's evidence from the earlier Williams proceeding. No statutory modification of common-law contribution principles appears to have been engaged; the Tribunal applied ordinary tort doctrine to asbestos-related disease.
After the decision, the 10/90 apportionment stands as an illustration of how actual knowledge and specialist expertise markedly increase moral culpability in asbestos cases. The judgment confirms that where only one tortfeasor introduces the hazardous fibre, causative potency drops out of the analysis, leaving moral culpability (informed by actual versus constructive knowledge and the nature of each defendant's business) as the decisive criterion. The ex tempore nature of the judgment and its relatively concise reasoning ([1]-[16]) suggest it was not intended to announce new doctrine but to apply existing principles to a common fact pattern in the Tribunal's jurisdiction: employer liability for exposure caused by an independent asbestos contractor.
Paragraph [6] states: "It is uncontroversial that the first defendant had an obligation as the plaintiff's employer to safeguard her from risks of reasonably foreseeable injury in respect of which means were available to obviate or minimise that risk. It failed to fulfil that obligation." In plain English: employers must protect staff from dangers they should see coming if there is a practical way to stop or reduce the danger. Myer did not do so.
Paragraph [9] records the admission of Mr Snelling's evidence: "The evidence of Mr Snelling discloses that before 1963, BI had actual knowledge of the dangers of asbestos... he did know from material provided by Johns Manville... that exposure to asbestos was dangerous and constituted a risk of injury." Translation: the spraying company actually knew asbestos was hazardous years before the work was done, because its predecessor had been told so by a major American supplier. This is far stronger than merely "should have known".
Paragraph [10] contains the pivotal legal direction: "In determining what proportion of a judgment sum should be paid by each of a number of tortfeasors, one is usually required to have regard to the moral culpability and causative potency of the act or neglect of each... In this case, causative potency is not a matter for consideration because the first defendant did not itself introduce matter which made a material contribution to the plaintiff's disease. Therefore, the question to be considered is moral culpability." Plain English: when splitting the bill between wrongdoers, judges look at how blameworthy each was and how much each actually caused the harm. Here only BI brought the asbestos in, so we ignore "who caused how much" and look only at how far short of reasonable behaviour each fell.
Paragraph [13] delivers the result: "Taken with the fact that it had actual knowledge of the dangers of asbestos, its culpability is much greater. It is my view that the first defendant should pay 10 per cent of the plaintiff's damages and the second defendant 90 per cent." Translation: because BI actually knew the risks, specialised in the dangerous work, and had a greater duty to research the hazards, it is nine times more blameworthy than the shop owner who merely ought to have known.
This decision is triggered by asbestos exposure claims in which (1) an employer permits an independent contractor to spray or apply asbestos-containing material on its premises, (2) inadequate containment allows dust to reach employees in ordinary work areas, (3) the employee develops mesothelioma, and (4) both the employer and the applicator are sued. The precedent is engaged whenever the court must apportion between a party with only constructive knowledge (the typical retailer or premises owner) and a party with actual pre-exposure knowledge who carries on the business of asbestos application.
The judgment emphasises two further factual markers: the presence of evidence (often admitted under s 25(3)) proving the applicator's actual knowledge before the relevant date, and the absence of any material contribution by the premises owner to the fibre burden. Where those conditions exist, causative potency is sidelined and moral culpability becomes the sole metric. The 10/90 split illustrates the weight given to the specialist contractor's actual knowledge and its heavier obligation to consult scientific literature. Fact patterns lacking actual knowledge on the contractor's part, or in which the premises owner actively participated in the works or gave specific instructions, would fall outside the direct ratio.
The judgment itself treats Macquarie Pathology as authoritative on the relevance of moral culpability and causative potency ([10]) and treats Podrebersek as stating an identical test ([11]). It cites Williams v BI Contracting Pty Ltd & Anor [2004] DDT 19 solely as the vehicle for admitting Mr Snelling's evidence of actual knowledge; no criticism or qualification of that earlier DDT decision appears. The President applies rather than distinguishes the Court of Appeal's reasoning in Macquarie Pathology, expressly adopting Clarke JA's language as the framework for analysis.
Within the Dust Diseases Tribunal the decision stands as an application of the Podrebersek and Macquarie Pathology principles to a classic employer-versus-asbestos-sprayer fact matrix. The 10/90 apportionment reflects a consistent judicial view that actual knowledge plus specialist expertise produces significantly higher moral culpability than constructive knowledge plus ordinary retail or premises ownership. No part of the reasoning suggests any departure from the High Court or Court of Appeal authorities; the ex tempore character and concise citation style indicate the President regarded the law as settled and the outcome as a straightforward application of existing doctrine to the admitted facts.
The judgment leaves open the precise weight to be given to the size of the employer. Paragraph [8] notes that the first defendant "was a large employer, that is, it employed a large number of people", yet this fact is not expressly weighed in the apportionment. Whether a larger workforce increases or decreases moral culpability when only constructive knowledge is shown therefore remains unanswered on the face of the reasons.
A further open question is the position where both tortfeasors possess actual knowledge. The President contrasts actual knowledge on BI's part with the absence of actual knowledge on Myer's part ([12]-[13]). The decision does not address how apportionment would be approached if the premises owner had also received specific warnings yet still engaged an asbestos sprayer without adequate safeguards.
Finally, the judgment assumes the canvas barrier represented the only practicable control measure available to either defendant. It does not explore whether additional controls (wet methods, respirators, or complete site closure) were reasonably available in 1963 and, if so, how the failure to adopt them would affect the moral-culpability calculus. These issues, while not arising on the facts before O'Meally P, remain live in later cases raising different evidence of contemporaneous industry practice.
CITATION : Micallef v The Myer Emporium Ltd [2005] NSWDDT 13
Anita Micallef (Plaintiff) PARTIES : The Myer Emporium Limited (First Defendant) BI (Contracting) Pty Ltd (Second Defendant)
CATCHWORDS: DUST DISEASES TRIBUNAL - Miscellaneous Matters :- damages agreed - cross claims between defendants - first defendant has constructive knowledge of dangers of asbestos - retailing business - second defendant had actual knowledge of dangers of asbestos - asbestos spraying business - first defendant to contribute ten per cent - second defendant to contribute twenty percent
LEGISLATION CITED: Dust Diseases Tribunal Act 1989
Williams v BI Contracting Pty Ltd & Anor [2004] DDT 19; CASES CITED: Macquarie Pathology Service Pty Ltd v Sullivan (NSWCA unreported, 28 March 2005) per Clarke JA); Podrebersek v Australian Iron and Steel [1985] HCA 34; (1985) 59 ALJR 492
D Letcher QC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: G M Watson SC instructed by Lander & Rogers appeared for the First Defendant A Ventura instructed by Makinson & D'Apice appeared for the Second Defendant
O'MEALLY P
In 1963 and subsequently, the store underwent renovation or refurbishment; certainly building alterations were carried out. As part of these alterations, the second defendant was engaged to spray limpet asbestos onto ceilings and structural steel work inside the store. In this process, upwards of 25 per cent sprayed asbestos failed to adhere to the surfaces to which it was applied, and fell to the floor or was carried through the air and settled upon flat surfaces.
The area of the store in which spraying was carried out by the second defendant was isolated from retail areas by canvas attached to a wooden frame. It was, however, insufficient to prevent the escape of asbestos dust and fibre into the retail section, and, in particular, to the area where the plaintiff was employed to work. That was an area in which wallpaper was sold, and the plaintiff had particular knowledge, experience and expertise in the use of wallpaper and the means of hanging it. The first defendant in its media advertisements paid particular attention to her skill, experience and expertise in the field.
The plaintiff did not witness the process of spraying and it seems appropriate to infer that it was done outside ordinary working hours. The plaintiff did see people who appeared to be associated with the process from time to time; these were men whom she saw behind the canvas barrier to which reference earlier was made. Each morning, following spraying processes, asbestos dust and fibre settled upon dust covers and other flat surfaces. The plaintiff removed dust covers, and in the process asbestos was excited into the atmosphere and inhaled by her. A greater proportion of asbestos dust and fibre accumulated behind the canvas barrier. The plaintiff was from time to time required to proceed beyond the barrier to the area where spraying had taken place in order to obtain stock from the storeroom. During the process of spraying, the stock itself was frequently contaminated by asbestos dust. In order to remove it, she tapped the roll with the object, causing the adhering asbestos dust to fall to the floor. Some of it fell to the floor and some lingered in the atmosphere and was inhaled by the plaintiff. The ladies' toilet, which she and other members of the staff would use, was also located behind the barrier. In walking to the toilet, she was exposed to and inhaled asbestos dust.
As a result of exposure to asbestos, the plaintiff has contracted malignant mesothelioma. The parties have agreed that damages should be assessed at $440,000. Though not admitting liability, counsel for neither defendant has submitted that the plaintiff is not entitled to a verdict.
It is uncontroversial that the first defendant had an obligation as the plaintiff's employer to safeguard her from risks of reasonably foreseeable injury in respect of which means were available to obviate or minimise that risk. It failed to fulfil that obligation. The plaintiff is entitled to a verdict against the first defendant.
The evidence establishes that the second defendant was in the business of asbestos spraying and was engaged to spray limpet asbestos onto ceilings and steel structures within the premises at which the plaintiff worked. The spraying of asbestos released large amounts of asbestos dust and fibre into the atmosphere and also constituted a reasonably foreseeable risk of injury. Each defendant owed a duty of care to the plaintiff; each defendant failed to comply with its duty. The plaintiff is therefore entitled to a verdict against each defendant, and judgment in the sum of $440,000.
Each defendant has cross-claimed against the other. It is not disputed that the first defendant ought to have had knowledge of the dangers of asbestos. The evidence demonstrates it was a large employer, that is, it employed a large number of people. The second defendant was, as is well known, in the business of spraying limpet asbestos.
Admitted pursuant to s 25(3) of the Dust Diseases Tribunal Act, 1989, is the evidence of Mr P J Snelling given in the case of Williams v BI Contracting Pty Ltd & Anor [2004] DDT 19. The evidence of Mr Snelling discloses that before 1963, BI had actual knowledge of the dangers of asbestos. Mr Snelling held an executive position with the predecessor of the second defendant. Though he did not have knowledge that a small amount of asbestos was capable of causing mesothelioma, he did know from material provided by Johns Manville, and provided before 1963, that exposure to asbestos was dangerous and constituted a risk of injury. Johns Manville was a large-scale producer of asbestos products in the United States of America. The plaintiff was a member of a class exposed to the risk of avoidable and reasonably foreseeable injury.
In determining what proportion of a judgment sum should be paid by each of a number of tortfeasors, one is usually required to have regard to the moral culpability and causative potency of the act or neglect of each; (see Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 2005) per Clarke JA). In this case, causative potency is not a matter for consideration because the first defendant did not itself introduce matter which made a material contribution to the plaintiff's disease. Therefore, the question to be considered is moral culpability.
Mr Ventura, who has put everything he could possibly put on behalf of his client and more, submits that that approach is not appropriate. He had referred me to the decision of the High Court of Australia in Podrebersek v Australian Iron and Steel (1985) 59 ALJR 492. He cited from the joint judgment of the Chief Justice and Mason, Wilson, Brennan and Deane JJ at 494: 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) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682 … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. With all respect to Mr Ventura, that test seems to be identical in nature to that propounded by Clarke JA in Macquarie Pathology . 12. There is no evidence that the first defendant had actual knowledge of the dangers of asbestos, but, as it accepts, it ought to have known of the dangers of asbestos. There was ample material available in the medical, scientific and industrial literature, as is well known, which spoke of the dangers of asbestos. The first defendant was, however, a retailer of consumer goods. The obligations of the second defendant were not its.
Mr D Letcher, QC instructed by Turner Freeman appeared for the Plaintiff Mr G M Watson, SC instructed by Lander & Rogers appeared for the First Defendant Mr A Ventura instructed by Makinson & D'Apice appeared for the Second Defendant
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.
Micallef
The Myer Emporium Ltd
(1985) 59 ALJR 492
(1956) 96 CLR 10
Verdict and judgment for the plaintiff jointly and severally against both defendants in the sum of $440,000. First defendant liable for 10 per cent and second defendant for 90 per cent of the judgment sum and plaintiff's costs (with second defendant to pay first defendant's costs from 7 March 2005). Leave granted to issue further cross-claims on or before 30 April 2005.