State of New South Wales v Amaca Pty Limited; Amaca Pty Limited v CSR Limited [2007] NSWCA 220 | Case summary

State of New South Wales v Amaca Pty Limited; Amaca Pty Limited v CSR Limited [2007] NSWCA 220 | Case summary | Zoe

Outline and claim

The events underlying this litigation occurred over a period from 1953 to 1980 at the Dockyard at Newcastle. There, ships were built and repaired. The Dockyard had a number of employees undertaking these tasks.
The proceedings arise from claims brought by eight of the employees at the Dockyard who contracted asbestos related diseases as a result of their employment at the Dockyard. For convenience, I shall refer to them, as they were during the hearing, as the underlying plaintiffs.
Each underlying plaintiff sued the State of New South Wales, responsible for the liabilities of the employer. For convenience, I shall refer to the employer as the Newcastle Dockyard. The State accepted liability and each of the claims was settled.
The State now seeks contribution, in respect of each of the claims, from Amaca Pty Limited (Amaca), pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Its case, in brief, is that James Hardie & Coy. Pty. Limited (James Hardie), for whose liabilities Amaca is responsible, was negligent in the manufacture and supply of asbestos product to the Dockyard where the underlying plaintiffs worked. It claims that James Hardie owed a duty of care to each of the underlying plaintiffs and that it breached that duty of care and that the breach was causative of injury to the underlying plaintiffs. Accordingly, it claims contribution from Amaca on the basis that Amaca, if sued by the underlying plaintiffs, would be liable to them in negligence.
For part of the period under consideration, being 28 September 1964 to 30 June 1974, James Hardie was in partnership with The Colonial Sugar Refining Company Limited (CSR). Amaca claims that if it is found liable to contribute to the State in respect of any product of the partnership, then it is entitled to a contribution from CSR. For convenience, I shall refer to the partnership as "Hardie-B.I.".
Where it is not critical to distinguish between James Hardie and Hardie-B.I., I shall, at times, for convenience simply refer to Hardie.

[4]

Some procedural and ancillary matters

The proceedings commenced in Toronto, New South Wales, on 9 February 2015 and evidence was then taken over four days. Of the parties remaining in the proceedings, Mr Sharpe appeared for the State, Mr T G R Parker SC appeared for Amaca and Mr Miller, solicitor, appeared for CSR. The matter did not resume until 2 November 2015 when Mr Maconachie QC appeared with Mr Sharpe for the State and the appearances were otherwise the same.
The reason the matter proceeded in Toronto much earlier than the rest of the proceedings was that it was important to take the evidence of witnesses, nearly all of whom were elderly and lived in the Newcastle area.
Several of the witnesses who gave evidence in Toronto had prepared statements in the claims of all or many of the underlying plaintiffs. They were Messrs McDonald, Budden and Searle. In dealing with objections to matters in their statements, the only statement dealt with in each case was the statement in the matter of the underlying plaintiff, Mr Allars. The intent was that the statements in the cases of the other underlying plaintiffs would be dealt with in a manner similar to Allars, though formally the process was not undertaken. Later in these reasons where I refer to the evidence in the statements of these witnesses, my references are to statements they made in the matter of Allars. In the result it will not matter as, whilst I have not examined their statements in all matters carefully, it is evident from a quick look that the statements are almost word for word identical.
After the partnership was formed in 1964, James Hardie ceased to be the sole manufacturer of asbestos product. It and CSR were then joint manufacturers and the partnership was known as "Hardie-B.I. Company". The partnership sold its product to Bradford Insulation Industries Pty. Limited (BI) which then supplied it to the Dockyard and other users. Whether the product after 1964 was manufactured by James Hardie or by Hardie-B.I. and whether it was distributed by James Hardie or BI are distinctions that did not concern most of the witnesses and frequently they referred to James Hardie at a time when products were being manufactured by Hardie-B.I. and sold to BI for distribution. It is a matter that is of no moment in understanding their evidence or, in my view, reflecting on the reliability of their evidence.
The eight cross claims were heard together. Many periods of employment of the underlying plaintiffs overlapped. Accordingly, an amount of evidence was common to the cross claims. To the extent that evidence given in one case was applicable and relevant in other cases, that evidence was taken to be evidence in the other cases.
The volume of material tendered in the case was vast. It was plain on the tender of some of the material that large parts of it had no relevance or were otherwise inadmissible. I indicated that I would not be taking up time reading all the material admitted into evidence and that I would determine the case on the basis of material to which my attention was specifically directed.
There is at least one other party liable to contribute to the State in respect of the State's liability to the underlying plaintiffs. The amount of that contribution in each case is not known, at least to the Tribunal. It has been agreed, that should I determine that Amaca is liable to contribute to the State, I shall not, at this stage, make an order in any case for a monetary amount. Rather, I shall determine, on a proportionate or percentage basis, how the totality of the burden of the liability between the State and Amaca should be apportioned.
In submissions in reply, Mr Parker SC provided me with a document going into nine numbered pages setting out a summary of findings sought by Amaca. There are 66 items or sub-items. I do not find it necessary to deal with the document in its form or address every one of the items. My endeavour has been to make such findings as I consider necessary to dispose of these cases.
My reasons are set out in the following order:

a statement of the issues;
a consideration of the evidence of the witnesses called by the State and of two witnesses, both deceased, whose statements were in evidence;
a consideration of documentary evidence going to different types of asbestos and the identity of the manufacturer;
a consideration of the supply of the James Hardie and Hardie-B.I. product to the Dockyard;
the exposure of each of the underlying plaintiffs;
knowledge of the Newcastle Dockyard and James Hardie as to the health risks associated with the use of asbestos;
Hardie's duty of care to the underlying plaintiffs;
breach of duty;
causation;
contribution by Amaca to the State in respect of each of the claims of the underlying plaintiffs;
Amaca's cross-claims against CSR;
rulings and directions.

[6]

The State's evidence - testimonial

The State called: 1. Mr John Alexander Cameron McMillan; 2. Mr Kasper Stanley Beker; 3. Mr William Albert Corbett; 4. Mr Robert Ross McDonald; 5. Mr Kenneth William Searle; 6. Mr Ronald Budden; 7. Mr Raymond Francis Payne; 8. Mr Lawrence Leslie Jenner; 9. Mr Robert Brian Cox; 10. Mr Warwick Henry Gazzard. 11. The State tendered an affidavit and statement of Mr Foxford and a statement of Mr Hinton, both of whom were deceased.
Before embarking on a consideration of this evidence, I make a brief observation about the partnership between James Hardie and CSR. It was current from 28 September 1964 to 30 June 1974. The partnership, in effect, took over the operation of the business that up until September 1964 had been operated by James Hardie. The agreement appointed BI as the selling agent of its product.
Before dealing with the evidence of these witnesses individually, I make some general observations.
In referring to the evidence hereafter, I find it convenient at times to express views that I have formed relating to that evidence rather than setting out the evidence without comment in the first instance.
The evidence of many of the witnesses identifying asbestos was allowed though limited to their understanding and belief that that was the product. For reasons which I explain, the belief was well-founded. In short, the evidence supporting the use of asbestos is not limited to, but includes: 1. Mr Jenner's evidence. He was a purchasing officer for the Dockyard and purchased the product; 2. Mr Cox was a person of considerable responsibility at the Dockyard and thoroughly familiar with its operations and in a position to know if asbestos products were being used. He said they were; 3. the Dockyard sought to introduce asbestos-free products. The extent and timing of that is in dispute, but unquestionably before that occurred, there was considerable use of asbestos; 4. there is some documentary material supporting the use of asbestos even as late as 1973 - see [177] below.
The effect of the evidence of the witnesses as to the nature and identity of the products used is as follows:

insulation materials were used both in ship building and repair work;
many of these products were identified as emanating from James Hardie;
insulation products from other sources were also used;
there was a time when a change to asbestos-free products was introduced or started to be introduced. When this change commenced and the extent to which it was undertaken are matters that need to be resolved by reference to other evidence;
the insulation products that were used included: 1. as to Hardie product - lagging blocks bulkhead sheets half pipe sections loose asbestos compressed sheets millboard 1. as to non-Hardie product - rope blocks mattresses Super heat and section Bulldog blankets limpet cloth cord loose asbestos.

As to loose asbestos, much was made throughout the case as to the packaging in which it came. I found most of this evidence of little use. I am satisfied that Hardie's loose asbestos came in a paper bag like a cement bag and non-Hardie's loose asbestos came in a hessian bag. Whether the witnesses could recall if there was a name or logo on the bags and, if so, what their content was and what colour they were, I consider to be matters of very little importance, if not matters of insignificance. This observation applies also to names and logos on cartons.

[7]

Mr McMillan

Mr McMillan affirmed an affidavit on 31 July 2012 in other proceedings in the Tribunal - van Akker v State of New South Wales (the van Akker proceedings). The affidavit became Exhibit CC 5. He also gave evidence.
Mr McMillan worked for the Australian Ship Building Board from 1964 to 1973. In that time, he worked at the Dockyard. His duties then included ensuring that ships were built according to specification. Following that, he was employed by the Newcastle Dockyard from 1973 as Outfit Superintendent. He used to go down to the ships when they were being built. He did this for four years. He then became Superintendent of Ship Repair for the next nine years. In his time at the Dockyard, he became fully conversant with all aspects of ship building and repair.
Mr McMillan identified Hardie products and products that were not Hardie products in use at the Dockyard. He described the bulkhead sheets as being James Hardie exclusively (Exhibit CC 5 [20]). He described the loose asbestos being for slurry. He described the most commonly used asbestos being that of James Hardie.
From brochures, Mr McMillan identified different products that were used. Some were James Hardie products. They were half pipe sections and blocks (T39.34). Other products were Bell's products. Bell's supplied rope for insulation around small pipes and blankets for hot areas. Asbestos blocks, similar to those in a Hardies brochure, were fitted around exhaust pipes. James Hardie sheets were the only ones that satisfied the requirements for the bulkheads. Half pipe sections came from James Hardie. The slurry powder was a James Hardie product. Limpet asbestos was sprayed on the deck heads and bulkheads, but this was later replaced by fibreglass. The brand of asbestos most commonly used was James Hardie.
In his oral evidence, Mr McMillan said that Hardie's was the only supplier of materials being the pipe sections (T45.19). He saw "Hardies'" bags (T45.24). He also saw bags of other supplies. He recalled "manganese" blocks (T45.31). "Hardies'" product was used when he was on ship repair which was from 1977. It was used on the bulkheads (T48.30). The spraying of asbestos was one of the dustiest processes (T49.33).
Mr McMillan stated that prior to about 1975, asbestos products were used almost exclusively for insulation and thereafter fibreglass and Rockwool were used. In cross-examination, he could not be certain of the timing of that. His timing, however, is compatible with other evidence. His commencement of work in the repair section may be fixed at about 1977. He observed product marked "Hardie's" then being used. I accept that it was not until the mid-1970s that asbestos-free products were used and it took a few years after that before they replaced asbestos products.

[8]

Mr Beker

Mr Beker swore an affidavit of 24 July 2012 in the van Akker proceedings. It became Exhibit CC 6. He also gave evidence.
Mr Beker worked at the Dockyard from 1969 to 1977. His job was mainly clerical.
Mr Beker started as a Works Junior and ended up as the Records Clerk and Assistant Publicity Officer. His job included touring the whole of the Dockyard and copying the specifications for the ships. Mostly his duties were in the ship building area. To get from his office to the ship building area, he walked through the whole of the Dockyard. He did so at least two to three times per day. He observed half pipe sections used to lag the pipes on ships being built or under repair. They were in James Hardie boxes. The asbestos products that were stacked throughout the premises came from James Hardie and had "Hardies" written on them. The products included sheeting. This was in the area of ship construction and the area of repair.
Mr Beker's memory of James Hardie is aided by his wondering, when he saw it at the start of his employment, whether it was related to Hardie-Ferodo Bathurst car racing. That is a useful circumstantial detail aiding recall. He also recalls James Hardie letterhead and his use of the James Hardie catalogue.
Around 1975 or 1976, the name on the products changed to the letters "JH". The asbestos supplies that were in stacks around the area where he worked came from "James Hardie" (Exhibit CC 6 [9]). In the Records Department, letters regularly went to James Hardie and letters came from James Hardie on its letterhead. Mr Beker used the Hardie catalogue and referred to products by name. Mr Beker also identified suppliers of non-asbestos products. Mr Beker did not work in the repair section, but he did tour through that section occasionally. When he did, he noticed stacks of products the same as in the other departments. All the products had "Hardies" or, later, "JH" stamped on them.
I do not consider the cross-examination diminished the effect of Mr Beker's evidence. One point established by the cross-examination was that Mr Beker said he had never seen packaging as shown in MFI 2 which became Exhibit JH 7 and that he would remember it if he had. I consider he is mistaken in that. Clearly, he saw Hardie's branding before around 1975 or 1976 and Hardie's branding after that, but they were not the same. The fact is, there was Hardie's branding before. It was the Hardie-B.I. branding. The fact that Mr Beker said he had not seen the branding shown to him and he would remember it if he had does not mean it was not at the Dockyard. It was and that is well supported by other evidence.
In further cross-examination, Mr Beker agreed that the products with "Hardies" on them were building products, not the products on the ships (T58.45). That left that part of the evidence in a state of some uncertainty. That cross-examination started off on the specific subject of Mr Beker identifying product as asbestos by opening crates of it. It is clear that what he opened was crates of building products, not insulation products. When he agreed as to the products he had been talking about with the name "Hardies" on them being building products, his attention had not been drawn to relevant parts of his affidavit. In [5] for example, he spoke very specifically of half pipe sections used for lagging and in that context spoke of boxes being marked as containing Hardie product. As a specific piece of evidence that was not challenged and, in my view, it stands.
Mr Beker's evidence is significant and I accept it. It is significant in a number of ways. It is corroborative of other evidence supporting the preponderance of James Hardie material. It is significant also in that it notes the change from Hardie's to James Hardie in around 1975 or 1976 being approximately the time the partnership ceased. It is significant also in that Mr Beker was a relatively late starter at the Dockyard - 1969. His mind cannot have been impressed by a preponderance or even the existence of James Hardie product throughout the 1950s and 1960s. His evidence supports a preponderance of Hardie-B.I. product from when he commenced in 1969 which is when he noticed it and wondered about whether there was a connection to Hardie-Ferodo. It was then unquestionably asbestos.

[9]

Mr Corbett

Mr Corbett provided an affidavit in the van Akker proceedings. It became Exhibit CC 7. He also gave oral evidence.
Mr Corbett worked at the Dockyard from 1947 to 1953 and from 1958/9 to 1987.
As to ship construction, he identified asbestos compressed sheets made by James Hardie for use in the bulkheads. Other tradesmen and supervisors told him they were from James Hardie. They were cut with a jig saw. He also identified laminated asbestos sheets for lining the control room. He also identified blocks of asbestos used to lag around boilers. He identified the blocks from a brochure as James Hardie product.
James Hardie millboard was used to protect timber. He identified it from a brochure as James Hardie product. It was put that the State could not rely on millboard, because none of the underlying plaintiffs claimed it as a form of asbestos to which they were exposed. That cannot stand as a proposition of law. In all likelihood, many would not have been able to recall all the forms of asbestos to which they were exposed. It was put that no witnesses claimed or identified millboard as a product (T507.25). Mr Corbett did and used it (Exhibit CC 7, [13]). Mr Jenner, purchasing officer, did (Exhibit CC 12 [14]). He recalled "the name 'Hardies'" being branded onto sheets of asbestos. He identified half pipe sections. They were wrapped around pipes if rope was not used. He identified those as James Hardie or Hardie-B.I. product from a brochure.
Bell's rope was used for lagging of steam pipes. Cloth was placed around the rope lagging. If rope was not used to lag steam pipes, James Hardie asbestos half pipe sections were used. That was covered with a slurry. Bell's blankets were used. Limpet spray was used. To Mr Corbett's observation, the spray process was probably the dustiest process as he described it as being "like a snow storm" [20].
I do not consider that cross-examination on the packaging or the brochures detracted from his evidence. In cross-examination by Mr Miller, he agreed that slag wool and Rockwool were used. This was undoubtedly the case during his employment, but as his employment went up to 1987 that evidence does not assist. Tombo board was also used, but that was after asbestos was phased out.

[13]

Mr Payne

Mr Payne was one of the underlying plaintiffs. He provided an affidavit of 15 December 2015 (Exhibit CC 33). He also provided particulars in his claim against the State (Exhibit CC 35). He also gave oral evidence.
He had two periods of employment with the Dockyard. They were from 7 August 1972 to 24 August 1977 and 8 April 1980 to 14 August 1980. He was employed as an electrician.
There is a significance in Mr Payne's exposure and its timing. He has asbestos related pleural disease (ARPD). Unlike mesothelioma which may be contracted on relatively slight exposure, ARPD is a dose-related condition. Mr Payne had some slight exposure to asbestos before he started work at the Dockyard. His exposure at the Dockyard had to be of sufficient intensity and duration to cause his ARPD. This, in itself, is a potent factor as to the presence of a substantial quantity of asbestos at the Dockyard, especially in his first period of work. I say especially in the first period because the second period was only a short period and the exposure was relatively modest. It may be inferred, and I do infer, that there was a substantial amount of asbestos in Mr Payne's working environment at the Dockyard in the period 1972 to 1977.
In the first 12 months he worked on the construction of new ships. Then until the end of his first period of employment, he worked on new construction about forty percent (40%) of the time and repairs about sixty percent (60%) of the time.
On construction he recalls working on the Express, the John Hunter and the Dredge Endeavour and also other vessels. Mr Payne then named other ships he may have worked on. During his first period of employment, there were eight vessels under construction according to a list of ships (Exhibit CC 13, pp 321-331).
Mr Payne estimates that of his time on new ships at least forty percent (40%) of his time was spent in the engine room and the balance in accommodation areas.
In his affidavit, Mr Payne describes being present in the engine rooms when pipes and hot areas were lagged. The pipes were lagged with half pipe sections. They were cut as necessary. Powder was formed into a slurry and applied to the half pipe sections. The half pipe sections came in cardboard boxes and the powder in bags like cement bags. I accept that and, accordingly, the powder was a Hardie-B.I. product. The half pipe sections were identical to those shown in Exhibit CC 17B, a Hardie-B.I. brochure. The bags were those that are depicted in Exhibit CC 17A, a Hardie-B.I. brochure. He spoke of the application of spray. He spoke of cutting through bulkheads and walls in the accommodation areas. He also identified mats, rope and blankets.
Mr Payne agreed in cross-examination that, on new construction work, he could not recall working alongside laggers working with asbestos materials (T269.18, T271.09). This was in the context of lagging being carried out in an area that was isolated from other employees, no doubt a reference to the lagging being done off the ship. Mr Payne was hesitant and qualified in giving those answers. There are two things left open by that evidence. One is the adjusting and cutting that needed to be done when the lagged pipes were brought on board. In the course of this evidence, Mr Payne mentioned that (T269.39) and it was not taken up in the cross-examination. Mr Cox had described that as the dustiest process. The other matter not touched by this cross-examination was the use of powder to form a slurry.
Mr Payne was also challenged as to his recall or lack of recall in relation to drilling into Tilux in his second period of employment. In the end, Mr Payne could not recall any particular work with Tilux (T280.19). What he was really saying was that he was unable to recall or identify any one particular task. That is not to deny that he worked with Tilux or that he had a recall generally of doing so. I accept that he did, but he could not be expected to isolate and recall any one particular job on which he did.
Limpet spray was applied on new construction work. He was not present when spray was applied, but was present in areas after it had been applied. To that extent, there was exposure to the spray. There was also possibly exposure from drilling into it.
In the accommodation areas, he had to install power points and cables through the bulkheads, ceilings and walls and he had to mount switches and other equipment. He worked in close proximity to carpenters and joiners. He needed power saw or jig saw to cut through bulkheads and walls. The work in the accommodation areas was dusty.
On repairs, he had to provide power to the ships. He worked on those ships before, during and after the repair work, depending on the work to be done. He was present when painters and dockers and joiners and carpenters were doing their tasks. Over forty percent (40%) of his time on repairs was spent in the engine rooms and the balance in accommodation areas.
In the engine rooms, the half pipe section lagging was removed and then fresh half pipe sections applied. It was cut as necessary. Asbestos powder in the form of a slurry was then applied over the pipes. It was dusty work. Mr Payne identified the half pipe sections in a brochure (Exhibit CC 33 [44]). The brochure was not there identified, but it is tolerably clear that it is the brochure referred to earlier, being the Hardie-B.I. brochure (Exhibit CC 17B).
His work and the working conditions in the accommodation areas were the same as described in relation to ship construction - see [56].
His exposure to spray was as per new ship construction, that is, not directly exposed but present in areas after they had been sprayed. Apart from spray, Mr Payne identified other non-Hardie product, for example, mats and rope and blankets.
In this first period of employment, the main concentration of Mr Payne's exposure rests with his working conditions in the engine rooms and accommodation areas. The asbestos products providing the bulk of his exposure in the engine rooms were old lagging, half pipe sections and slurry powder. The half pipe sections and slurry powder were Hardie-B.I. products. On repair, some part of the old lagging was Hardie-B.I. product - see [206-208] and the rest that of a manufacturer whose identity was not established on the evidence. There was also exposure to other products. I find also that the bulkheads, ceilings and walls in the accommodation areas were Hardie-B.I. products.
In his second period, Mr Payne worked on demountables. Some were new and some were for repair or re-fit. Approximately half of them were new. Who constructed the demountables that came in for repair or refit was not the subject of evidence. If there was any James Hardie product in the demountables in for repair or refit, it was not the subject of evidence. Nor was there any evidence from which an inference could be drawn. Nor was there any evidence of fresh James Hardie product being used in the repair or refit of demountables. Mr Payne installed light fittings, power points, other electrical fittings and conduits for the wires. The demountables had ceiling panels and wall panels. He drilled into them. These were fibro. He drilled into these to install light fittings and switches. Dust was given off in this work. He identified the ceilings from a brochure as being Hardie's Asbestos Sheets (Exhibit CC 33 [63], Annexure A).
At the same time, other workers did their work around him and this involved cutting, sawing and otherwise working with or on the ceilings and walls. Mr Payne was cross-examined on his evidence that he worked on walls on the basis that in earlier documents he referred to ceilings only. Whilst he did not mention walls expressly, it is plain that his earlier documents covered walls. The references, in those documents, to installing light switches otherwise makes no sense. The fact that walls were not expressly mentioned might say more about the person who prepared the document for Mr Payne than it does about Mr Payne. The same might be said about Tilux. It is plain that some demountables had wet areas and Tilux or a product like it was used. It is inevitable that electrical work would be undertaken in some of those wet areas.
Mr Payne drilled into Tilux. Whilst Tilux was used, Mr Payne did not identify it as such at the time. He became aware of it after he left the Dockyard and worked as an electrician (Exhibit CC 33 [62]). The cross-examination based on the Duradec brochure does not undermine Mr Payne's identification of the product. He maintained a difference between the product used and the product in the brochure. Further, his identification of the product was not based on the brochure. It was based on his familiarity with the product as an electrician and his comparison of that with the product he had earlier used at the Dockyard. I find that the walls and ceilings of the demountables and the Tilux were James Hardie products.
During this period, he also did some work in the cabins of ships as described before. He does not give any detail about exposure to asbestos doing that work, even by reference or comparison to his earlier period of employment. Cross-examination touched on this, but the matter was not further developed.
In the second period of employment, the exposure to building products on new demountables was exposure exclusively to James Hardie product. On ship repair work, there was likely some exposure to products of Hardie and others in the cabins of ships, but there was no evidence of the extent of this exposure. The second period of employment was only a short period of relatively modest exposure compared to the first period.

[14]

Mr Jenner

Mr Jenner started at the Dockyard in 1960 and was a purchasing officer from about the mid-1960s. He worked at the Dockyard until 1987.
Mr Jenner gave evidence of regular purchases of asbestos products. It included bulkhead asbestos sheets and millboard in the form of sheets from James Hardie (Exhibit CC 12 [9]). By the mid-1960s, all the fire rated sheets came from James Hardie (Exhibit CC 12 [10]). Wall sheets, for buildings, came from James Hardie with a small percentage from Wunderlich (Exhibit CC 12 [12]). A James Hardie brochure depicted the asbestos millboard used by the Dockyard (Exhibit CC 12 [14]). It also depicted lagging (Exhibit CC 12 [16]) and cartons in which the blocks were delivered (Exhibit CC 12 [17]). It also depicted half pipe section that was ordered by Mr Jenner and the carton in which it was delivered (Exhibit CC 12 [18]). Mr Jenner's evidence also covered asbestos that was ordered from other suppliers including Bell's, Blake & Cement, Hill Bros, Associated Gaskets and James Walker. In addition to ordering James Hardie or Hardie-B.I. product, Mr Jenner also saw the product in the yard and on ships. Mr Jenner acknowledged that the product which he ordered and which he saw in place on the ships could have been from some other manufacturer and not James Hardie (T92.01). Amaca's case took on an air of unreality at this point. It is stretching belief to consider that the product Mr Jenner saw on the ships was not from Hardie, yet he kept ordering Hardie-B.I. product, and a product from some other manufacturer kept turning up in a Hardie carton.
Mr Jenner's evidence was not seriously, or at least successfully, challenged on these matters. He did say that he ordered a considerable amount of Rockwool after a period of time (T93.07). That piece of evidence is of limited value as it does not identify any time, let alone a time from which a considerable amount of Rockwool was ordered. That is significant because the changeover from asbestos-containing products to asbestos-free products did not suddenly happen. It was a gradual process and it took time in each instance to ensure that the replacement product was satisfactory. The first items that allowed a satisfactory replacement were the pipes. It is plain from Exhibit JH 12, p113, item 4 that a satisfactory substitute for asbestos had not been found for the pipes by 4 August 1972. It is plain also from Exhibit JH 12, p143, that the substitute had not been found by 27 March 1973 (see [177]) Further, when it was found, Mr Cox said it was "around for a while, but we never bothered using them" (T25.07).
Mr Jenner said there was a tremendous amount of asbestos pipe sections from Hardie-B.I. - "there were so many of them and there was a tremendous amount, and obviously as you know, a ship has got a lot of pipes in, and they were all throughout the shipyard" (T92.06-.08). I accept that evidence.
Amaca relied heavily on the evidence of Mr Foxford and submitted it should be preferred to the evidence of Mr Cox. Even if that submission is good, and I do not think it is, it does not deal with Mr Jenner's evidence.

[15]

Mr Foxford

The State tendered a statement (Exhibit CC 13, p290) and an affidavit of Mr Foxford (Exhibit CC 13, p315). Their contents are much the same, though there are some differences.
Mr Foxford was employed by the Dockyard from 1944 to 1986. He worked in the storeroom until 1951/2. There, he accepted and distributed supplies including asbestos products (Exhibit CC 13, p311 [3]). Asbestos products were moved to Store No. 2 in about 1964 (Exhibit CC 13, p311 [5]). From 1951/2, he became a purchasing clerk until 1958, then purchasing officer until 1986 (Exhibit CC 13, p311 [6]).
Mr Foxford was required to purchase in accordance with State Government supply contracts, although there was a discretion to purchase outside that in certain circumstances (Exhibit CC 13, p312 [8]).
I make some brief observations about the State Government supply contracts later [152-155]. The Government started negotiating two year period contracts in the 1960s (Exhibit CC 13, p312 [8]).
Mr Foxford identified the following asbestos-containing products purchased at the Dockyard (Exhibit CC 13):

insulation blocks "Magnesia" (p313) or "85% Magnesia" (p314);
plastic covering/composition (pp 313, 316);
asbestos cloth (p313);
asbestos cord (p314);
composition filled mattresses (p314);
K-lite - used for refrigeration (p315);
limpet sprayed asbestos (p316);
asbestos rope (p316);
Klingerite (p317);
Turnal or Tombo board (p317).

Mr Foxford said he would have been involved in the purchase of the lagging for the "Moresby". According to a list of ships, Exhibit CC 13 p321, the Moresby was ship No. 73. Its keel was laid on 23 June 1964 and it was handed over on 18 July 1965. I say more about this list of ships later [158-160].
Mr Foxford annexed to his affidavit what he believed was "a typical lagging specification for ships constructed in the 1960s" (Exhibit CC 13, p313). The annexure is just one page (Exhibit CC 13, p320). Under the heading "EXHAUST PIPES" is a reference to "insulation blocks". This was a reference to 2" to 2½" magnesia slabs. Under the heading "LAGGING", is a reference to 2" magnesia blocks. That was also a reference to 2 to 2½" magnesia slabs. Reference to 1" thick plastic covering was a reference to fibre purchased in hessian bags. It was high temperature plastic composition (HTPC), (Exhibit CC 13, p314, cl15(b)). It was made into a slurry (Exhibit CC 13, p313 [9-12]). There was no evidence that Hardie packaged its product in hessian bags. The evidence was its product was packaged in paper or bags like cement bags. It was submitted that Mr Foxford was mistaken in his reference to hessian bags. I do not accept that submission. The reference to hessian bags obtains support elsewhere, for example, from Mr Smith.
Mr Foxford was shown specifications said to be for the Henry Bolte and the Murray Porter - ship Nos 74 and 75. Keels were laid on 23 February 1965. They were handed over on 28 January 1966. The specifications had:

High Temperature resisting insulating slabs, that is 2 to 2½" 85% Magnesia slabs;
High Temperature plastic composition, this was fibre in hessian sacks;
asbestos cloth, this was in rolls;
High Temperature composition filled mattresses 2 to 2½" thick, these were made up by painters and dockers out of asbestos cloth. The cloth was sewn into pillows. The pillows were filled with fibre. They were placed around flanges between pipes (Exhibit CC 13, p314 [15]; p332)).

The only product which was subject to a State Government contract was the 85% Magnesia slabs 2 to 2½" thick. They were straight slabs and slabs with bends (Exhibit CC 13, p314 [16]).
Bell's supplied the insulating blocks in the early 1960s. BI took over supply during the 1960s (Exhibit CC 13, p314 [18]). Mr Foxford, here, is fairly clearly referring to the time of the commencement of the partnership between James Hardie and CSR. It is likely that what he is referring to is a takeover of supply from James Hardie. Certainly, BI took over supply of insulating blocks during the 1960s. It took over from James Hardie. If Mr Foxford is in fact saying that BI took over supply from Bell's, then the product Bell's was supplying to the Dockyard before BI took over was a James Hardie product. The insulation slabs referred to by Mr Foxford (Exhibit CC 13, p313-314, cl 11, 12, 15(a)) were known by the name K-Lite (Exhibit CC 13, p315, cl 18). Accordingly, they were a Hardie-B.I. product.
There were three suppliers of cloth - Hills Bros, Australian Asbestos and Bell's. A product known as BI or Bulldog was supplied in hessian bags by Bell's (Exhibit CC 13, p293 [21]). Bell's supplied limpet asbestos. Employees of the Dockyard mixed and sprayed it. In the 1960s, contractors began spraying. At this point, I note a submission by the State that Hardie undertook spraying. I reject that submission.
The painters and dockers were the ones who had the most direct contact with asbestos.

[16]

Mr Cox

I said earlier that I did not accept the submission that, to the extent that the evidence of Mr Foxford and Mr Cox were inconsistent, the evidence of Mr Foxford should prevail. I am mindful of the fact that the benefit a trial judge has in assessing a witness can be lost or diminished by the passage of time and Mr Cox gave his evidence in February 2015. Nevertheless, my very firm impression of Mr Cox was that he was a most impressive witness. He impressed as a person with a thorough understanding of his duties from time to time and a very good and clear understanding of the operation of the Dockyard. I have confidence in accepting his evidence.
Mr Cox started at the Dockyard in 1960. Over many years, Mr Cox held several positions of responsibility culminating in his being Acting General Manager from 1985 to 1987. In fact, he fulfilled the general manager's role over a considerable period when the general manager was absent on secondment and later for several months after the general manager retired.
Mr Cox's duties covered both ship building and repair. Mr Cox said that ship building involving the use of asbestos continued up until about the mid-1970s and then an alternative was used (Exhibit CC 4 [5]). The repair section of the Dockyard continued up until it closed in 1987.
The first ship that Mr Cox supervised the construction of was Cape Pillar, ship No. 70 in the list of ships (Exhibit CC13, p327). Its keel was laid in September 1963. It was launched on 26 September 1964 and handed over on 13 November 1964. Mr Cox was in charge of the whole of the construction (T18.05). Also, at the same time he was Ship Supervisor (1964-1966), three other ships, at least, were being built - the Kooringa, the Moresby and the Henry Bolte. Overlapping that period were two other ships, HMAS Moresby and the Murray Porter. Mr Cox had ample opportunity to observe and become acquainted with the intricacies of ship building.
Over time, during his working life, Mr Cox became fully aware of the material used in ship building and repair including insulating products and including asbestos. Considering the different roles he had and his mastery of them that is not surprising.
Confirmatory of this are the functions Mr Cox undertook in his work and his interest in processes quite apart from the responsibility of his roles from time to time. One example of this is an occasion that caused him to notice the words "James Hardie". This was at a time when he was visiting a shed to check progress on the insulation of exhaust pipes. There he noticed boxes with the words "James Hardie" on them. He noticed this until about the mid-1970s (T12.01). Another example is in the period 1960 to 1964 when he was a draftsman in the office. During that time, he made observations of what was happening on the ships even though it was not then within his area of responsibility. It was a matter of personal interest to him (T17.21).
Cross-examination sought to confine Mr Cox's responsibility for inspection and regular inspection to a two year period when he was Project Superintendent from 1969 to 1971. At one point he agreed with the cross-examiner that his responsibility for inspection and his regular inspection ceased when he ceased to be project superintendent. That piece of evidence, taken alone, does not do justice to his evidence. Later evidence disclosed that when he became Assistant Production Manager in 1973, a job that was classed as an office job, "you had to be around the plant all day because you were responsible for production" (T23.40) and "We had to inspect the ships, whatever, every day" (T23.43). Also there was the following evidence at T28.32-28.47: Q. Can I just go back to the evidence you gave about the shed. A‑‑‑Yes. Q. And about seeing work being done there involving the pipe sections. A‑‑‑Yes. Q. Also the slurry. A‑‑‑Yes. Q. Would it be fair to say that that is the only insulation work that you can say that you actually inspected in the sense that it was part of your job to inspect that work. A‑‑‑Me personally? Q. Yes. A‑‑‑To inspect it? Q. Yes. A‑‑‑No just that I inspected all areas, I had to inspect the exhaust pipes because they were critical in the installation of the engine room. Q. What I am getting at is that that was part of the time that you were at the dockyard that you were inspecting that work among others, correct. A‑‑‑Yes. Q. Purely to say two years or so. A‑‑‑Yes I suppose. Q. Something like that. A‑‑‑Yes. Q. The rest of your time at the dockyard, it was not your job to actually inspect insulation work in that way. A‑‑‑Well, if you were in charge of the whole project you had to inspect every bit of the work and just whatever's on the critical path in the construction period, you zeroed in on that. The insulation as I said before was on the critical path, so you always looked to see how far they'd got. (emphasis added)
Mr Cox observed asbestos being used over the years he worked at the Dockyard (Exhibit CC 4 [83]).
Mr Cox gave evidence that by the mid-1970s, one of his projects was to find an alternative to asbestos. He said looking for alternative products did not happen until the mid-1970s (T19.01). That is wrong, but it may not have fallen to him to be involved until then. He said that unions were complaining. He said there was always industrial action (T28.02). Amaca relied on some records relating to industrial action, but that evidence of Mr Cox raises a question as to how comprehensive that documentary material is. In any event, I find that material of limited value. At the time the unions were complaining, the Newcastle Dockyard was telling the unions that there was "not a problem with it" (T26.24).
Mr Cox agreed that the Dockyard was trying to phase out asbestos from about 1971 but that it took time (T24.45). Mr Cox was involved in the process of trying to find replacement products (T25.19). The process of replacement took some years (T27.27). This is consistent with his evidence that the suppliers were giving conflicting information as to whether there was a problem with asbestos (T26.37). The pipe insulation changeover was the easiest and that took over 12 months (T27.45). That needs to be read with his earlier evidence that the pipe sections were around for a time, "but we never bothered using them" (T25.08). The accommodation areas and bulkheads took two to three years (T27.49). He thought the first vessel that was completely asbestos free was the Lysaght Endeavour, ship No. 91 (T32.25). Its keel was laid in May 1971. It was launched in April 1973 and handed over in September 1973 (Exhibit CC 13, p 329). Mr Cox was mistaken in identifying that as the first ship to be asbestos free as there is evidence of asbestos being used in that ship (Exhibit CC 13, pp8-12). There is also evidence of asbestos being used in ships constructed later - see, for example [177] below.
Mr Cox gave evidence of different suppliers of asbestos product to the Dockyard for the purpose of ship building. In the early days of Mr Cox's observations, there can be no doubt about supply by James Hardie, or Hardie-B.I. from September 1964, and there can be no doubt that it was a significant supplier. Mr Cox gave evidence of boxes in the insulation shed with "James Hardie" on them. He gave evidence also of certificates from James Hardie for rating for fire protection (T30.20). "James Hardie" was the name "we were using at the time, the product we were using at the time" (T30.30). He did not remember much of the precise detail about the packaging, but I think that is of little, if any, significance. It was put into its context by Mr Cox, "I was interested in the product going on the pipes. I wasn't really worried about their insignia." (T31.38)
Mr Cox's evidence could not extend to the identity of the supplier of the product for the bulkhead sheets (T13.05). That, however, is covered by other evidence which I accept, for example, that of Mr Jenner and Mr McMillan. The supplier was James Hardie. Mr Cox identified the loose asbestos as being in paper cement bags (Exhibit CC 4, p4 [22]). That identifies it as a James Hardie or Hardie-B.I. product. All the flat sheets were supplied by James Hardie (Exhibit CC 4, p4 [24]).
Mr Cox was criticised in respect of his identification of James Hardie product (T490.24). He tied the identification to his seeing James Hardie packaging in the shed, but the shed did not come into existence until 1969/70. Before the shed, the work had been done outside on the wharf (T29.05). I think it is likely Mr Cox is mistaken in a detail here and he probably saw the James Hardie packaging before the construction of the shed. There is certainly objective evidence of Hardie-B.I. asbestos product destined for the Dockyard and almost certainly delivered to it in 1967 and 1968 before the construction of the shed. It was delivered in cartons, crates and bags (Exhibit CC 13, p97-112).
It was submitted that the basis for Mr Cox's evidence about James Hardie product was that he saw it in the shed. What he saw in the shed was undoubtedly Hardie-B.I. product. This is because the shed was established in 1969 and Hardie-B.I. product was being delivered then. It was submitted it is wrong to extrapolate from that and say that James Hardie product was at the Dockyard from 1960 onwards. There is no need to extrapolate. Mr Jenner's evidence takes the supply of the product from Hardie-B.I. back to the mid 1960s and there is other evidence, which I accept, establishing the use of James Hardie product at the Dockyard before the commencement of the partnership in 1964, for example, Mr Corbett's evidence. There is also the evidence of Messrs McDonald, Searle and Budden, though, because of its generality, it is of limited use. It does establish, however, at a general level, the use of James Hardie product at the Dockyard before the commencement of the partnership and the use of Hardie-B.I. product after the commencement of the partnership.
Mr Cox's affidavit (Exhibit CC4) annexed a copy of a James Hardie brochure from the 1950s. Back then, James Hardie was producing 85% Magnesia, High Temperature and Asbestos Millboard. They were all asbestos products. The brochure describes 85% Magnesia in Pipe Sections and in Blocks, flat or curved. It refers also to 85% Magnesia Plastic Composition supplied in 40 lb. bags. High Temperature Insulation is described as supplied in blocks. Asbestos Millboard is described as a strong, light and flexible sheet. It was packed in crates. 85% Magnesia Pipe Sections and Blocks and High Temperature Blocks were packed in crates. Technical advice to consumers was available on application to James Hardie.
The affidavit also identified product that was not Hardie product and annexed a copy of a Bell's brochure. It identified Millboard (Exhibit CC 4, p50) and 85% Magnesia Composition (Exhibit CC 4, p81). It also identified Bestobell Magnesia Sectional Pipe Covering (Exhibit CC4, p83).
The predominance of James Hardie or Hardie-B.I. product impressed Mr Cox so much that he estimated it was used ninety percent (90%) of the time and Bell's product ten percent (10%) of the time (Exhibit CC 4 [28]). I have come to a different view about that, but the point is the James Hardie or Hardie-B.I. product was dominant.
Mr Cox described the dustiest process as being insulating the exhaust pipes on board the ship (T12.23) and that included the occasions when the insulation was done off the ship. This is because of the fitting process in putting it on the ships. Other witnesses had different views about what the dustiest process was. Mr Corbett thought it was the spraying process. Item 6 of Exhibit JH 12, p108, refers to rope as the dustiest process. Mr Foxford's evidence might suggest the painters and dockers were the most exposed of the workers (Exhibit CC 13, p311, cl 5). Mr Bennett's evidence would suggest that removal of old lagging was the dustiest work as it was difficult to see from one end of the engine or boiler room to the other when this was done (Exhibit CC 23). That demonstrates the difficulty, even impossibility, of being able to determine how much James Hardie or Hardie-B.I. product was used compared to other products, what the relative dustiness of each process was and how long any of the underlying plaintiffs were exposed on each occasion they were exposed.
I am satisfied that in ship construction to the extent asbestos product was used, the majority of it was James Hardie or Hardie-B.I. product.
A Browne v Dunn (1893) 6 R. 67 submission was made to the effect that Amaca was not entitled to challenge Mr Cox's estimate of the extent of the use of James Hardie or Hardie-B.I. product because he was not cross-examined on it. I do not accept that submission. It is sufficient to note that the basis for Mr Cox's estimate was challenged in cross-examination. It must have been clear to everybody that the assessment of Mr Cox was being challenged.

[17]

Mr Hinton

Mr Hinton's statement (Exhibit CC 43) was prepared for litigation in Victoria arising out of the use of asbestos at power stations in Victoria.
Mr Hinton was employed by James Hardie from 1945 to 1987. In 1957 or 1958, he became factory superintendent of insulation. In 1963, he became Factory Manager. At the time, James Hardie considered its thermal insulation products to be the future of the business and that was the driver behind its partnership with CSR the following year.
In 1964, Mr Hinton was appointed Manager of the Hardie-B.I. Plant in Sydney until 1972. He then became Technical Assistant to the production director at the head office in Sydney until 1978. Thereafter, his work was in Indonesia then New Zealand.
Upon the formation of the partnership, the Camellia factory continued to manufacture the same products that had been manufactured by James Hardie at that factory. It was the only factory in Australia that manufactured Hardie-B.I. product. It manufactured High Temperature insulation products. The basic products were called 85% Magnesia, K-Lite and Caposite. The statement continues as follows: Initially 85% Magnesia was not suitable for extremely high temperature insulation. After further development, the product was made more heat resistant and it became known as "high Temp Insulation" or "High Temperature Insulation". Hardie-BI also manufactured another variant of 85% Magnesium called "Super High Temp" although this product was essentially the same as "High Temp Insulation"… The Hardie-BI partnership's most successful high temperature insulation product was K-Lite. It was technically superior to High Temp Insulation and once K-Lite was released onto the market, the High Temp Insulation product virtually disappeared. K-Lite was very versatile. It could be manufactured in blocks, in pipe sections of varying sizes and designed to fit whatever structure was required. In the first few years of the Hardie-BI partnership, our most ordered product was 85% Magnesia. However, after the introduction of K-Lite in the mid-1960s, K-Lite became our major product until the end of the Hardie-Bi partnership. 85% Magnesia was also manufactured up until the end of the Hardie-BI partnership. Each of these high temperature insulation products contained asbestos. They were specifically manufactured for use in power stations and oil refineries which generated high temperatures. At the extreme end, these temperatures were often in excess of 1000 degrees Celsius. K-Lite was a particularly successful and popular product as it could withstand temperatures of up to 1200 degrees Celsius. (Exhibit CC 43 [13] - [16])
Hardie-B.I. was the only Australian manufacturer of high temperature asbestos insulation (Exhibit CC 43 [19]. Hardie-B.I. product accounted for ninety-five percent (95%) of high temperature insulation sales. "There was no other competition within Australia and, to my knowledge, no other company importing the quantity of high temperature insulation that was required on major projects such as power stations and oil refineries" (Exhibit CC 43 [19]).
Approximately five percent (5%) of high temperature insulation product was imported from the United Kingdom. Towards the end of the partnership, the Japanese were beginning to supply some high temperature products, but in very small quantities. Hardie-B.I. remained the dominant market force in high temperature insulation products until it ceased production in 1974. Mr Hinton added, In general terms, if high temperature insulation was used at the SECV power stations then the chances of that high temperature insulation being Hardie BI products would be somewhere around 95%. Hardie BI had a real market dominance and we were pretty much the only manufacturers of high temperature insulation in Australia. (Exhibit CC 43 [23]) When the Hardie-BI partnership ended in 1974, the Hardie-BI factory was also closed. This meant that James Hardie insulation also ceased production although there would have been a lot of in situ insulation present at the various sites in which it was used. (Exhibit CC 43 [28])

[18]

Mr Gazzard

Mr Gazzard was employed by James Hardie from 1953 to 1981. He started as a junior clerk. In 1954, he was a sales clerk in the insulation materials department. In 1955, he went to the building materials division. He was at Newcastle from 1967 to 1969.
James Hardie manufactured 85% Magnesia in sectional pipe segments, flat and radiused blocks which were supplied in cardboard cartons, 85% Insulating Cement supplied in bags, Hardie's High Temperature sectional pipe segments, flat and radiused blocks supplied in cardboard cartons, High Temperature insulating cement supplied in bags, Hardie's asbestos millboard sheets in 1/8, 3/16, 1/4, 3/8 and ½ inch thickness, ¾ and 1 inch thickness also available to order (Exhibit CC 16).
Thick compressed asbestos cement sheets were manufactured extensively by James Hardie. During the mid-1950s to about 1975, James Hardie held a NSW contract to supply its building products to NSW government departments (Exhibit CC 16).
Mr Gazzard went to the Newcastle Dockyard on occasions, particularly if the Dockyard required compressed sheeting or roofing material, but not insulation material (T173.33).
Compressed sheeting was mostly 3/16", sometimes thicker (T173.45). It was normally cut to size at the James Hardie factory (T182.50). Diamond wheels were used to cut it at the factory. It could not be cut with a jigsaw or bandsaw, but it could be cut on site with a rotary saw with a diamond blade or an angle grinder (T187.20-.30; T189.24).
The insulation products division and the building products divisions were two separate divisions of James Hardie, as to location, manufacturing processes and storage of product. Mr Gazzard did not work in the insulation products section after 1955. He did, however, sell millboard in his time at Newcastle from 1967 to 1969 (T184.30). He could have sold it to the Dockyard (T184.36).
Mr Gazzard was aware of imported alternative insulation products in competition with James Hardie in 1954 to 1955 (T188.45). Millboard, 85% Magnesia could have been imported from Turner & Newell or Bell's Asbestos in the United Kingdom. He was aware of slag wool as an asbestos-free product. This was manufactured by Bradford in batts (T189.14).

[19]

Documentary evidence - The products of James Hardie, Hardie-B.I. and others

The first evidence chronologically is a James Hardie brochure from 1950 or thereabouts (Exhibit CC4, p6). It contains reference to:

85% Magnesia;
High Temperature Insulation; and
Asbestos Millboard.

There is also reference to Hardie's 85% Magnesia Plastic Composition supplied in bags (Exhibit CC4, p23). These were insulating materials and, in the case of Millboard, for protection against fire also (Exhibit CC 4, p25). 85% Magnesia came in pipe sections and blocks. It was flat or curved. It was supplied in cartons. High Temperature Insulation came in blocks. Millboard came in crates.
The brochure specifically cites marine engines as items suitable for the use of 85% Magnesia. At the time, 1950, James Hardie was the only manufacturer in Australia of 85% Magnesia.
Next in time is an undated James Hardie brochure (Exhibit CC 16). It predates the partnership. It was assumed this brochure was probably current in the 1950s. It covers the above products and also:

K-Lite;
Combination Insulation;
Super High Temperature Insulation;
Insulating Cements;
Caposite.
Again, James Hardie was the only manufacturer in Australia of 85% Magnesia and also of K-Lite.

There is then an undated Bell's brochure (Exhibit JH 3A). It is in several sections. Sections A to D and F deal with products that are not Hardie products, and there are many. Section 'E' deals with thermal insulation. In this section are included K-Lite Pipe Insulation, 85% Magnesia and High Temperature Insulation. These products were, in fact, Hardie products (pp41 and 42). Marinite was also included. It was an asbestos sheet material (p44). Rockwool was also included (p45). The brochure describes the K-Lite, 85% Magnesia and High Temperature as "Hardie's" products. That helps fix the time of this brochure as being before formation of the partnership in 1964.
Another undated brochure is a Bell's brochure (Exhibit JH 3A, p57). It covers "Tombo", a board containing asbestos.
A further undated Bell's brochure is at Exhibit JH 3A, p61. It refers to "Hardie-B.I. K-Lite". It, therefore postdates the beginning of the partnership in 1964. It also covers Rockwool (p63). It also refers to asbestos rope lagging (p67).
There are then six brochures of different overseas suppliers (Exhibit JH 3B, p1, p4, p20; p57; JH 3C and JH 3D). To the extent that they are dated or dates can be estimated, they date from 1960 to 1981. I put to one side this evidence. The share of the market in New South Wales by these suppliers was so small it could hardly impact at all. This is supported by Mr Hinton's evidence (Exhibit CC 43 [19]-[20], [23]). Further, despite several overseas suppliers being named, there was no suggestion in the evidence of the witnesses that relevant materials were being supplied to the Dockyard from overseas sources. Mr Gazzard's evidence does not alter this. His evidence does not suggest that in 1954 to 1955 overseas suppliers had any significant impact in the market. Much less does it suggest that overseas supplies found their way to the Dockyard.
James Hardie was the only manufacturer of 85% Magnesia and K-Lite in Australia (T357.03). These products were provided to Bell's after 1964 (T357.11). It was submitted that did not establish that every single pipe section that was used anywhere in Australia at the relevant time came from the James Hardie factory because of the potential for imports. That may be right, but it is not to the point. The point is whether, on the probabilities, the State has established that the 85% Magnesia and K-Lite products used at the Dockyard came from James Hardie or Hardie-B.I. Significant in assessing the probabilities are James Hardie or Hardie-B.I. being the exclusive manufacturer in Australia, the Dockyard having contracts for supply with James Hardie, the dominance of James Hardie and Hardie-B.I. in the market with these products, with imports being limited to about five percent (5%) of the market and no suggestion in the evidence that for any reason the Dockyard had to go to imports for these products. The probabilities are so overwhelming as to border on certainty that every single pipe section at the Dockyard came from the James Hardie factory.
A CSR brochure dated February 1964 reveals that BI produced Rockwool (JH 2, p16).
All these brochures show that there were different insulation products in the market, some containing asbestos and some not, and there were different suppliers of products. Like the State government supply contracts, they do not show where in the market place the products finished up. The evidence of the witnesses at the Dockyard is helpful here.
The partnership agreement between Hardie and CSR was dated 21 September 1964 (Exhibit JH 10, p1). The partnership operated from 28 September 1964. The partnership was essentially between Hardie and CSR, but BI was a party to part of it. The partnership business was to manufacture and distribute products that were listed (Exhibit JH 10, pp3-4). They were:

85% Magnesia Sections, Blocks and Plastic;
High Temperature Magnesia Sections, Blocks and Plastic;
Super High Temperature Magnesia Sections, Blocks and Plastic;
K-lite - Calcium Silicate Sections and Blocks;
Asbestos Millboard;
Fibrefil;
Caposite; and
"such other thermal insulating materials as may be developed from time to time for use on or in association with heating equipment or vessels".

BI was appointed "as sole selling and distributing agent" (Exhibit JH 10, p13). The partnership was to sell to BI the products for resale (Exhibit JH 10, p15, clause 3.(a)). BI was to confine its purchases of the products to the partnership with some expressed exceptions (Exhibit JH 10, p15, clause 3.(b)). The partnership was to carry adequate stocks (Exhibit JH 10, p15, clause 4(b)).
Division 7, clause 4(c) provided: Bradford Insulation shall and shall always be deemed to be principals in respect of all dealings with the products and shall not have power to bind the partnership whether by way of guarantee or otherwise or with regard to the sale or delivery of products by any specified date unless and so far only as authorised in writing by the partnership or by the Partnership Committee and shall not impose or have the power of imposing any liabilities on the partnership in any manner whatsoever unless and so far only as authorised, by the partners in writing. (Exhibit JH 10, p16)
Division 7, clause 16 provided: For an initial period of five years from the 28th day of September 1964 and provided Bells Asbestos & Engineering (Aust.) Limited (hereinafter called "Bells Asbestos") purchases the whole of its requirements of the products solely from Bradford Insulation, the partnership will provide and allow to Bells Asbestos a discount on all purchases by Bells Asbestos for delivery directly by the partnership to Bells Asbestos stores or nominated job sites of minimum quantities specified in Clause 9 of this Division such discount to be five per centum (5%) of the net purchase price (excluding all invoiced charges) paid by Bells Asbestos for the products purchased by Bells Asbestos from Bradford Insulation in addition to any general discount provided and allowed by this Agreement. In this clause the expression "invoiced charges" shall include but not be limited to freight insurance and crating. (Exhibit JH 10, p20)
In relation to this clause, Amaca submitted that it could not be assumed that the product sold by Bell's was manufactured by the partners. Bell's may have imported some product (T361.07). Again this misses the point and I have already dealt with it [129].
The State submitted that if product was supplied by BI, it was Hardie-B.I. product. I do not accept that necessarily follows. BI was free to obtain product from sources other than Hardie-B.I. The partnership agreement, clause 3(b) in Division 7 in particular, did not tie BI to partnership product. The clause relevantly provided, " Bradford Insulation covenants to confine its purchases of the products to the partnership except as may otherwise be agreed … or in the event of inability of the partnership to supply the product …" All that did was tie BI to the products described in clause 1 of Division 3 (Exhibit JH 10, pp3-4) except as otherwise agreed or in the event that the partnership could not supply. There was no restriction on BI purchasing other products such as rope and Bulldog and supplying it to others. That did not make such other product Hardie-B.I. product.

the business of High Temperature insulation was only moderately profitable;
there was little likelihood of long term growth of calcium silicate (the K-Lite);
further capital expenditure could not be justified to continue the business;
he recommended closing down the operation in June 1974. This was agreed to at a meeting on 30 November 1973.

A Deed of Dissolution of the partnership was entered into on 26 June 1974 with the dissolution to be effective on 30 June 1974 (Exhibit JH 10, p151).
A meeting of 8 July 1974 recorded that unwanted stock was to be dumped (Exhibit JH 10, p146).
Exhibit CC 17B noted that James Hardie was available for technical advice. That was changed to BI in Exhibit CC 17A. For reasons which I express in [295], this was not a matter relieving James Hardie in any way.
Amaca submitted that the production of thermal insulation products ceased by the end of June 1974. I accept that is so.
There is then the matter of building products. Brochures for these are in Exhibit JH 4. There are four brochures. One is for Tilux, p1. Another is for Interior Linings, p5. Both of these are dated late in 1979 and contain cautionary notes about health risks associated with asbestos. The other two brochures are dated August 1980 and September 1980. They are dated after Mr Payne, chronologically the last of the underlying plaintiffs, ceased employment at the Dockyard. That does not make them irrelevant. They are sufficiently contemporaneous with his time there to be relevant and refer to materials he worked on.

[20]

Documentary evidence - The supply of James Hardie and Hardie-B.I. product to the Dockyard

There are some contractual related records bearing on supply of asbestos. Before turning to them, it is to be noted that the State had standard contracts for the supply of materials. This related to the State's activities and needs as a whole. The documents of themselves do not reveal what material the State bought or where it was used. Other evidence is required for that.
Product bought specifically for the Dockyard would not necessarily go through the contracting system, for example, spray material and partitions. Marine board, Marinite and Tombo were not in the contract ordering system. They were specialised products bought directly by the Newcastle Dockyard.
The first of the contractual related records is a tender document for the years 1958/59 (Exhibit CC 13, p14). The document reveals a number of tenderers for different products. James Hardie is one of a number of tenderers. The James Hardie product covered by the document comprised Millboard, Boiler and Pipe Covering 85% Plastic Magnesia, 15% Long Fibre Asbestos and Sectional Pipe Covering - Magnesia. James Hardie was identified as the current contractor in respect of Millboard (crates only) and the Sectional Pipe Covering. James Hardie's tender for the Millboard (in 5 cwt. crates) was recommended (Exhibit CC 13, p224) and presumably accepted; likewise for the Sectional Pipe Covering (Exhibit CC13, p230). The Boiler and Pipe Covering does not appear to have been covered by the recommendation documents. It really does not matter. There were two tenderers - James Hardie and Bell's. In either event, the product was manufactured by James Hardie.
That pattern continued for the years 1959/61 and 1961/63 (Exhibit CC13, pp254-266; 212-221; 232-244). There are no documents for the following years.
A record in the Minutes of a meeting of the Partnership Committee on 21 December 1964 notes, for the purpose of allowing discounts on price, that the Dockyard was a major user of block insulation (Exhibit CC 42, p8). Being a major user of a product in which Hardie-B.I. was as dominant as it was in a market as large as it was is indicative of the fact that the Dockyard used vast quantities of Hardie-B.I. product.
So far as ship construction is concerned, the period under consideration covers ships numbered 46 (or possibly 45) to ship No. 101 (or possibly 102) in the list of ships (Exhibit CC 13, pp321-331).
There are some observations to be made about that list. Some care needs to be taken with the information in it. It is plainly not a source document. It is a summary of events sourced from other materials and covering a period from 3 June 1943 to 19 December 1980. It is missing numerous dates. There are numerous incidents of ships being out of chronological sequence whether by reference to the date the keel was laid, the date it was launched or the date it was handed over. If it is meant to be a chronological list of ships constructed at the Dockyard from 1943 to 1980, then there is no explanation as to why there are numerous instances of ships listed in the document having their keels laid, being launched, being handed over or some combination of these matters, before ships listed earlier in the document. There are approximately 50 such instances. One example suffices to explain. According to the document, ship No. 55 had its keel laid on 4 September 1956, it was launched on 25 October 1957 and was handed over on 23 December 1957. The following ship, ship No. 56, had its keel laid about two and a half years before Ship No. 55, was launched three years before ship No.55 and was handed over about two and a half years before No.55. In fact, ship No. 56 was handed over even before the keel was laid for ship No.55.
This raises questions about the accuracy of the information the document contains. This is highlighted also by what appears to be an error on the face of the document. The John Hunter was handed over on 12 September 1975 before it was launched on 16 October 1975 (Exhibit CC 13, p329). This seems unlikely and it is the only ship on the list where the handover occurred before the launch.
Also, it is likely the document is not a comprehensive record of all ships constructed at the Dockyard over the period it covers. In the period 1 April 1953 to 31 March 1954, the list shows four vessels under construction, ships numbered 44, 45, 46 and 49. The Director's report to the Minister for the same period specifies nine vessels under construction in that period - Exhibit CC 41, Tab 1, pp3-4. There is no reason why the information in the Director's report to the Minister should have a discrepancy of that nature.
Of all the ships on the list, there are specifications (or, more accurately, part thereof) for three ships only. One only expressly specifies asbestos. Not much is to be drawn from that observation. There is ample evidence of James Hardie product used in ship construction from the 1950s. That product had to be asbestos product at least until James Hardie was considering asbestos-free product. That consideration did not occur before 27 May 1969 and did not, in fact, occur at the Dockyard before about the mid-1970s.
There is ample evidence supporting that the changeover did not occur until about the mid-1970s. It is to be found in the oral evidence of Mr McMillan [31], Mr Cox [96-97] and Mr Daly [241]. It is to be found in documentary evidence - see [169-173] and [175-177]. I find that asbestos-free products did not replace asbestos-containing products until 1975. I accept the evidence that the pipes were the first to be changed and other applications took another two to three years. I further find that in those other applications asbestos-free products did not replace asbestos-containing products before 1977.
The specification in the evidence that identifies asbestos relates to a 1968 contract (Exhibit CC 13, pp 4, 7). The point is made that there is no other written evidence for any vessel constructed after that date.
Whilst a Jones v Dunkel (1959) 101 CLR 298 submission was not put, my attention was drawn to the fact that there was no evidence as to why the material put forward was but a small amount of a larger volume of material. I do not find this observation particularly helpful. If there was a larger volume of material, it was available to all parties to tender. In making that observation I remain mindful of the onus of proof. This is a case I think should be decided on the evidence I do have, with such inferences as that evidence will permit. This observation applies generally so that it applies also to the Jones v Dunkel submissions that were put by Mr Maconachie QC. I do not draw inferences against any party based on the absence of witnesses or documents. I am mindful that the absence of documents may be weighed in considering whether the onus has been satisfied.
The specification that was in evidence specified asbestos in different forms. They included spray, magnesia, cloth, blanket and rope. Not all of this was Hardie-B.I. product.
There are Direct Materials Schedules (Exhibit CC 13, pp 8-12) for ships Nos 90 and 91 (the Lysaght Enterprise and the Lysaght Endeavour). The list of ships reveals that the keel for the Lysaght Enterprise was laid on 7 October 1971, that it was launched on 10 October 1972 and that it was handed over on 30 May 1973. The list reveals that the keel for the Lysaght Endeavour was laid on 4 May 1972, that it was launched on 16 April 1973 and that it was handed over on 17 September 1973. The Direct Materials Schedules show a number of different insulation products. They are not all asbestos. They do not show any Hardie product.
The last documentary evidence of K-Lite going to the Dockyard put it in early 1969 (Exhibit CC 13, pp118-120). I am satisfied, however, that K-Lite was used at the Dockyard after 1969 - see [168] and [175] below. There is documentary evidence of other Hardie-B.I. product going to the Dockyard after 1969.
In May 1972, there is a handwritten note referring to "Kalite" (Exhibit JH 12, p104). K-Lite was a Hardie-B.I. product. I was asked to take note of the spelling and that the spelling was not in conformity with Hardie-B.I.'s "K-Lite". The point goes nowhere. It might if "Kalite" were another known product. It was not. The most I draw from this is that the handwritten note contained a spelling error. It would not be the only spelling error of Hardie-B.I. product. "Fibrefil" is another example. That is a product mentioned in the partnership agreement. There is no doubt that was the product despatched to the Dockyard in September 1972 and March 1973 where, in the former instance, it is spelled "Fiberfil" - Exhibit CC 13, p124.
Another document, undated, but said to be a document of May 1972 is headed "LAGGING". It is evident from this document that lagging, including lagging of pipes, was still being undertaken at that time and that it would continue - Exhibit JH 12, p108.
A note of 29 June 1972 (Exhibit JH 12, p110) names four people to be classified as laggers. I do not accept that it shows the number of people who were doing the work as asbestos laggers was very confined. I read that as adding four more laggers to the already existing number, whatever that may have been. Otherwise before that classification of the four, there would have been no laggers. Further, a note of 18 December 1972 reveals 13 persons employed on lagging work at the Dockyard - Exhibit JH 12, p132.
There is a note of 4 August 1972 of the Industrial Officer (Exhibit JH 23, p113) re "ASBESTOS LAGGERS". I do not accept that this note establishes that asbestos was to be used only as a last resort. The document was prepared on the basis of continued use of asbestos. Pipe lagging, asbestos cloth, asbestos rope, limpet spray and de-lagging are referred to. Plainly at that time asbestos lagging was still occurring on new ship construction - item (4). Furthermore, just because work practices were set out in the note, it does not mean that the note can be relied on as proving that the practices were implemented, for example, there was considerable evidence of failure to clean up after limpet spraying - item (8).
On 14 August 1972, Minutes of a meeting of the Executive Council of the Dockyard (Exhibit JH 12, p116) record continued use of asbestos. They refer to the installation of asbestos board and the lagging of pipes with asbestos batts. Clearly asbestos-free products had not been found for these items at this stage and if they had been found, they were not being used.
Hardie-B.I. asbestos "Fiberfil" was despatched to the Dockyard in September 1972 (Exhibit CC 13, p124).
Minutes of a meeting of the Executive Committee of the Newcastle Dockyard on 26 September 1972 record that asbestos material was specified for current ships and that there were no approved substitutes (Exhibit JH 12, p125). Current ships then, according to the list, were numbered 89, 90 and 91. That included the two Lysaght ships. Very soon following that meeting, on 23 October 1972, the keel was laid of the Express (ship No. 92). The context in relation to those Minutes is that the discussion centred on a report of Dr Danger (Exhibit JH 12, p123) dealing with limpet spray. Accordingly, the Minutes do not go to Hardie-B.I. product.
On 31 October 1972, a note of an inspection by the Workers' Compensation (Dust Diseases) Board (DDB) records recommendations in relation to the asbestos lagging section of the plant and on board vessels (Exhibit JH 12, p128). Asbestos sheets were cut on board. It was noted that "kalite" sheets were being used. It was submitted I should not draw any inference in relation to this use of "kalite". I disagree. It is odd that the DDB inspector would pick this out unless it was used. I accept that at that time K-Lite was being used.
On 16 March 1973, Hardie-B.I. asbestos "Fibrefil" was despatched to the Dockyard (Exhibit CC 13, p125).
There is a note by the Personnel Manager of 27 March 1973 on the subject "Ship Painters and Dockers working on Asbestos lagging." (Exhibit JH 12, p143). It may be taken that painters and dockers were still undertaking lagging work with asbestos materials. The note goes on to record that the Dockyard was still dependent on the "acceptability of asbestos free material shortly to be presented to the Dockyard". Accordingly, new ships were still being constructed using asbestos materials for lagging.
There are some, but not many, documents in the documentary bundle (Exhibit JH 12) following the last mentioned note. None is relevant to the continued use of or replacement of asbestos products.

[21]

The exposure of each of the underlying plaintiffs

The first observation I make is that in undertaking this analysis, I shall not be attempting any mathematical exercise with a view to quantifying the extent of exposure of the underlying plaintiffs to Hardie or other asbestos product.
I propose to set out the working conditions of each of the underlying plaintiffs. I shall not dwell at length on this. The evidence is overwhelming from the underlying plaintiffs and from witnesses called as to the working conditions. The more significant feature of the evidence of the witnesses called is as to the identity of the manufacturer of the products to which the underlying plaintiffs were exposed. I now deal with that evidence. Before doing so, I note that none of the underlying plaintiffs, Mr Payne excepted, provided evidence as to the identity of the manufacturer of the products to which they were exposed.
I note Mr Hinton's evidence, which I accept. The significant aspects of it for present purposes are:

Hardie-B.I. continued to manufacture 85% Magnesia until the end of the partnership;
Hardie-B.I. was the only Australian manufacturer of High Temperature asbestos insulation;
Hardie-B.I. accounted for ninety-five percent (95%) of High Temperature insulation sales;
Hardie-B.I. remained the dominant force in High Temperature insulation products until it ceased production in 1974;
Hardie-B.I. ceased production of insulation products in 1974.

Though Hardie-B.I. ceased the manufacture and supply of asbestos insulation products at the cessation of the partnership on 30 June 1974, that does not mean that the underlying plaintiffs were not exposed to asbestos, being Hardie-B.I. product, after that date. To the extent that, as at that date, the Dockyard had a store or stockpile of Hardie-B.I. product and thereafter used it, it is likely the underlying plaintiffs were exposed. It is likely that the Dockyard kept a store of the product. It required it not just for the construction of new ships, but also for repair work. The Dockyard used vast amounts of asbestos, including Hardie asbestos. One illustration of this has been noted in [156]. I think it is likely that the Dockyard kept a large amount of supplies. This conclusion is fortified by the size of the Dockyard's business. It had a workforce that changed frequently in numbers and identities of workers, however it maintained approximately 2000 workers throughout the relevant times. It had ships under construction and repair at all relevant times. The Directors' annual reports to the Minister reveal there were always many ships under construction and repair.
The volume of Hardie asbestos product supplied to and used at the Dockyard was considerable. The preponderance of asbestos material was Hardie product. Both the State and Amaca directed me to different pieces of evidence identifying quantities of asbestos material. Some of it was Hardie asbestos and some of it was non-Hardie asbestos. I do not find this evidence particularly useful, except to reveal that there was a lot of asbestos used at the Dockyard. These isolated documents covering only a few days can offer no assistance in attempting to apply, or even consider applying, any mathematical approach to the assessment of the quantity of asbestos used.
I am satisfied on the totality of the evidence, and especially that set out or referred to in [162] that asbestos continued to be used on pipes for lagging after 27 March 1973 and up to 1975. As pipes were the first items on ships to have satisfactory asbestos-free insulation, asbestos products must have been used on other areas of ships even after it ceased to be used on pipes. I find that was so up to 1977.
There is an amount of evidence common to the cases concerning all of the underlying plaintiffs. Much of this evidence goes through into the 1970s and 1980s. With the exception of Mr Derepas, I propose dealing with that evidence before dealing with the cases in respect of the underlying plaintiffs. Mr Derepas is excepted because his employment ceased in late 1956/early 1957.

[22]

Mr Derepas

Mr Derepas worked at the Dockyard from late 1953 to late 1956/early 1957. He swore an affidavit on 31 August 1974, Exhibit CC 28, and provided Particulars, Exhibit CC 27. He was employed as a fitter and turner.
In his Particulars (Exhibit CC 27, p18), Mr Derepas alleged exposure in the construction of the Dredge Townsville. According to the list of ships, it was ship No. 42. Its keel was laid in December 1949. It was launched in January 1952. It was handed over in November 1952. (Exhibit CC 13, p324)
Mr Derepas's dates regarding work on the Townsville are out of kilter with the list of ships. According to the list, the Townsville was handed over before he started. I have already indicated some care needs to be taken with the information in the list of ships. It is clear that Mr Derepas worked on ship construction. I also think it is likely he worked on the Townsville. The alternative is that he has the name of the ship wrong. He may have mistaken it as a result of having spent some time in Townsville. I do not think it matters.
On construction work generally, Mr Derepas's exposure was in applying rope as well as bystander exposure when others worked with insulation materials. (Exhibit CC 27, p19)
He also alleged exposure in ship repair work. This involved working on steam pipes running to the steam engines, removal and replacement of rope, removal of blankets, working with gasket sheets and work in areas where sheeting had been installed. He worked in confined spaces.
Witnesses who gave evidence around this period were Mr Corbett (employed 1947 to 1953 and 1958/9 to 1987), Mr McDonald (employed 1954 to 1987) and Mr Budden (employed 1952 to 1987).
Their evidence is corroborative of the nature of the work Mr Derepas did.
Mr Derepas did not expressly identify any James Hardie product. On ship construction, much of the product is not James Hardie product. The only work he spoke about on ship construction where James Hardie product may have been used was when others worked with insulation materials.
There is no documentary evidence identifying who supplied those materials in this period. I find, however, that James Hardie product was used in this period. It is clear that asbestos insulation was used in ship construction in this period. It is clear also, from documentary material, that James Hardie product was used at least from 1957. James Hardie was the sole supplier of 85% Magnesia and K-Lite at this time.
The 1950s brochure establishes that James Hardie was producing 85% Magnesia in Pipe Sections and Blocks, 85% Magnesia Plastic Composition in bags and High Temperature Insulation in blocks and millboard. For none of that material to have been applied to a ship under construction in the period from late 1953 to late 1956/early 1957, it would require the Dockyard to have changed its supplier at some time between this period and 1957. That is possible, but I think it is not likely. It is not likely because before 1958, James Hardie had market dominance with insulation products, was a current contractor with the State in respect of some of the product and witnesses identified product either expressly as James Hardie product or product associated with James Hardie.
In this period, the witnesses identify the following James Hardie products: 1. asbestos sheets for the bulkheads (Mr Corbett); 2. blocks of asbestos to lag around boilers (Mr Corbett); 3. millboard to protect timber (Mr Corbett); 4. asbestos half pipe sections and the slurry powder to lag steam pipes and on repair work (Mr Corbett).
Mr Corbett's evidence is not simply a blind or global assessment of all the product being James Hardie product. He also recalled Bell's product and distinguished the two. I accept his evidence. His evidence as to the non James Hardie product suggests its use was fairly extensive and he described the limpet spray process as "like a snow storm".
Mr Budden and Mr McDonald provided evidence supporting the use of James Hardie product, but because of the generality of that evidence, it does not have the same force as Mr Corbett's evidence.
In the repair work, Mr Derepas does not expressly identify any James Hardie product. However, he does refer to asbestos sheets and powder.
The products Mr Derepas specifically identified being exposed to were rope, blankets, powder, packing and gaskets. He also referred to sheets (Exhibit CC 27, p23), but did not include them in his break down of the materials at p24. He estimated that about fifteen percent (15%) of his exposure was to powder. The balance was to the other products, mainly rope (Exhibit CC 27, p24). His list may not be exhaustive of the asbestos material he was exposed to, but there is no other evidence that enables me to make any better assessment of his exposure than that expressed by him. There may have been other product that he was exposed to, but if so, it is likely to have been both James Hardie and non James Hardie product. I find the powder to which he was exposed was James Hardie product. This is supported by Mr Corbett's evidence.
The list of ships reveals that there were nine ships under construction over the period Mr Derepas was employed at the Dockyard.
As to repair work, apart from powder, there was no evidence specifically identifying James Hardie product, but for reasons expressed in [206-208], I think there probably was some exposure to James Hardie product.
I find that Mr Derepas was exposed to James Hardie product in the course of his work at the Dockyard and the extent to which he was so exposed was relatively light compared to his overall exposure at the Dockyard.

[23]

The common evidence

I deal now with evidence common to the claims of the remaining underlying plaintiffs.
I have already noted the evidence of witnesses. For present purposes, the relevant evidence is as follows:

Mr McMillan [27-31];
Mr Beker [34-39];
Mr Corbett [41-45];
Messrs McDonald, Budden and Searle [46-49];
Mr Payne [51-65];
Mr Jenner [72-74];
Mr Cox [90], [93-106]. In addition, there is Mr Hinton's evidence. It is not specific to the working conditions of the underlying plaintiffs. Its relevance is really confined to the likely identity of the manufacturer of the product used.

As to repair work, a submission was made that there was no evidence as to the identity of the manufacturer of the old lagging that was removed on ships. That is true in the sense that there was no express evidence to that effect. There is, however, evidence from which it may be concluded that James Hardie or Hardie-B.I. was the manufacturer of some of the old asbestos lagging that was removed in the repair process. It is likely that the ships that were coming in for repair included ships on the list. It is inconceivable that those ships could have proceeded without any repair for the working periods of the underlying plaintiffs in these claims. There was specific evidence that supports repair of ships on the list in that the John Hunter was one ship named by Mr Bennett as being a ship he worked on, on repair. It is likely that these ships needed repair work more than once over the time span over which the underlying plaintiffs worked. Next, there is evidence of the underlying plaintiffs having worked on hundreds of ships during their time at the Dockyard. That can only make sense in the context of repair work being part of that. On the other hand, it is also likely that ships other than those built at the Dockyard were repaired and the manufacturer of asbestos on those ships was not established by the evidence. I am satisfied that ships that were constructed at the Dockyard were repaired at the Dockyard and, considering the preponderance of Hardie product on ship construction, I consider it is appropriate to determine that the ships that came in for repair included ships that had Hardie insulation product.
To the extent that repair work involved handling old asbestos, it needs to be borne in mind that not all ships that were repaired were necessarily ships on the list of ships. There was no evidence as to those ships. It is not known where they were constructed and it is not known if they contained any Hardie asbestos. To the extent that ships on the list were repaired, the handling of old asbestos involved handling both Hardie asbestos and non-Hardie asbestos.
The effect of all this is that the handling of old asbestos on ships being repaired involved handling Hardie asbestos to a relatively slight extent compared to the overall handling of old asbestos.
I return now to the cases of the remaining underlying plaintiffs.

[24]

Mr Lewis

Mr Lewis provided particulars in his claim against the Newcastle Dockyard (Exhibit CC 14).
Mr Lewis was employed at the Dockyard from 4 January 1955 to 29 November 1960 and from 9 July 1962 to 10 January 1977.
His first 12 months was as an apprentice fitter and machinist in the machine shop. The roof was corrugated asbestos fibro and vibrations in the workshop caused dust to fall from it (Exhibit CC 14, p13). This does not identify the manufacturer of that product or the extent of possible exposure.
He then worked in ship repair. He had to break asbestos insulation away from the steam pipes every second day. The painters and dockers did the new lagging. Several trades worked near one another. He worked close to the painters and dockers. They mixed powder into a slurry and used asbestos blocks and asbestos pipe sections.
Mr Lewis used asbestos gear to protect himself from heat when welding. This was non James Hardie product. He identified a number of products from a brochure as Bell's products.
From July 1962 to July 1965, Mr Lewis worked as a fitter. He worked on ship building carrying on similar tasks to those he had before. He was similarly exposed with the exception of the protective gear which he did not require. Another exception must have been that he was not exposed in this work to the removal of old lagging. (Exhibit CC 14, pp14-15)
In July 1965, he went to the drawing office. He worked on 19 named ships. He visited one of these ships every three to four days, spending three to four hours at a time on them. He often spent time in the engine rooms and other parts of the ships where new asbestos insulation was being applied. This insulation was similar to lagging that was applied in the period 1956 to 1960. He was in close proximity to it. (Exhibit CC 14, pp15-16)
He was retrenched in 1977 when the Dockyard stopped building ships.
Mr Lewis identified the following as asbestos products to which he was exposed:

corrugated fibro;
slurry that looked like plaster of Paris;
pipe sections;
blocks;
screens;
aprons;
jacket;
gauntlet;
spats. (Exhibit CC 14 at p17)

The majority of Mr Lewis's exposure was from the slurry, pipe sections and blocks.
The list of ships reveals that there were forty ships under construction over the periods Mr Lewis was employed at the Dockyard.
Witnesses corroborated working conditions that support Mr Lewis's exposure.
Mr Lewis described products that may be identified as James Hardie or Hardie-B.I. product. His evidence as to his working conditions and identifying those products as comprising the majority of his exposure, together with the evidence of Mr Jenner and Mr Cox and the other witnesses as to the preponderance of James Hardie or Hardie-B.I. product satisfies me that the bulk of Mr Lewis's exposure to asbestos at the Dockyard was to product of James Hardie or Hardie-B.I.

[25]

Mr Pajkovic

Mr Pajkovic provided particulars of his claim against the State (Exhibit CC 25).
He was employed by the Dockyard from 1965 to 1977. He was a shipwright. His duties included: 1. connecting units to hulls on the slipway; 2. installing timberwork on the decks of ships; 3. corking the decks of ships, which involved installing cork in between the timber on the decks; 4. assisting with the manufacture of units; 5. a number of other small jobs in the shed, including preparing timber to go onto the decks of the ships. (Exhibit CC 25, 4.1(a)-(e))
Mr Pajkovic worked on the decks of ships every day. Seventy percent of his time was working thus. He was on ships from a minimum of three hours a day up to a whole day. There were always two or more ships being constructed at the one time. He moved from one ship to another.
There was almost always a large number of steam pipes around where Mr Pajkovic worked. Other workers placed lagging on these pipes. Numerous bags of raw asbestos were used. It was used to make a slurry. It was dusty. He worked near workers carrying out lagging work nearly every time he was on a ship. He also worked near other workers who were sawing and working with sheets of asbestos. This was dusty.
Mr Pajkovic also worked on ships undergoing re-fit or refurbishment. He worked in the engine rooms. This was dusty. He worked near other workers who removed old lagging off steam pipes or installed it onto pipes. This was in engine rooms or confined spaces below decks. This was dusty.
He also worked on the repair of ships. This was every couple of months. He worked near other workers removing and replacing asbestos lagging on steam pipes. This was dusty.
In an earlier statement obtained by the DDB, he gave some detail of his work and his exposure (Exhibit CC 26). He described work on construction that was generally very dusty work with the asbestos dust emanating from a variety of sources. On re-fits, he worked in conditions that were very dusty. The dust emanated from different asbestos products. It was from old and new lagging, gasket removal and replacement, removal and replacement of gland packing. The work the laggers did included:

removing existing asbestos insulation from steam pipes or ventilator trunking;
the application of asbestos lagging to steam pipes, boilers and valves;
mixing asbestos powder in drums or suitable containers to form the compound to insulate pipes or ducting;
cutting and fitting pre-formed asbestos block material to steam pipes and fittings;
wrapping chicken wire around pipes on occasions prior to applying the asbestos compound;
applying the mixed asbestos compound around the pipe (or ducting) generally by hand and/or trowel to a suitable thickness to effectively insulate the pipe with an even application;
cover the asbestos insulation (applied around the pipe) with a calico bandage or other protective material.
(Exhibit CC 26, p5) Asbestos products Mr Pajkovic identified were gloves/gauntlets, hoods, blankets (apron or leg protection), rope, sheeting of various sizes, tape, lagging on steam lines, gaskets, pre-moulded pipe sections, powder (in bagged form) - Exhibit CC 26, p6. Some of this was non-Hardie product.

Over Mr Pajkovic's period of employment, there were 22 ships under construction.
Witnesses gave evidence of working conditions that corroborated his exposure.
Mr Pajkovic was exposed to asbestos in a variety of circumstances. The dust was created by different trades and it emanated from different sources. The main burden of exposure was the work undertaken by the laggers. In the main, this involved the use of Hardie or Hardie-B.I. product. There was also considerable exposure to non-Hardie product. I consider that, compared to his overall exposure, Mr Pajkovic's exposure to Hardie-B.I. product would be classed as towards the upper end of moderate.

[26]

Mr Daly

Mr Daly provided particulars in respect of his claim against the State (Exhibit CC 21).
Mr Daly had two periods of employment being 9 October 1968 to 20 March 1970 and 14 August 1972 to 9 February 1979. He was a joiner. He worked on ships in Scotland and was exposed to asbestos from the mid-1960s.
In his Particulars, he says in the first period he worked on ships being built and repaired. About ninety percent (90%) of his time was spent on board doing fit-outs, installing furniture, asbestos bulkheads, ceilings and walls. Mostly the work was on ship construction. The walls were asbestos product. He installed asbestos bulkheads in the accommodation areas. He cut the asbestos board for the walls and the bulkheads with a jig saw. These were dusty jobs.
Mr Daly worked in close proximity to other trades. This included sprayers. This was dusty. About half his time on board new ships involved working while spraying took place.
For fit-outs of furniture he had to scrape away sprayed asbestos.
He also worked near those lagging steam pipes. They mixed raw asbestos with water to make a slurry. This was dusty. Sometimes they used tape or rope or pre-cut asbestos sections. This too was dusty.
On repair work, he had to remove sprayed material. He also worked near others removing and re-applying lagging. This was dusty.
In this first period of employment, he was exposed daily.
His second period started in August 1972 up until 1979. The duties were the same and so was the exposure, with some exceptions. One exception was the spraying was done on the night shift and he was not present when it was done. Nevertheless, he was exposed the next day from remnants of the spraying process left behind. Another exception was that around 1975/6, the Dockyard stopped using asbestos for the bulkheads and walls. I have already referred to this and made findings at [31] and [162]. Mr Daly kept being exposed to asbestos in undertaking repair work.
Over Mr Daly's periods of employment, there were 16 ships under construction.
As with other underlying plaintiffs already dealt with, witnesses provided evidence that corroborated Mr Daly's exposure.
The main burden of Mr Daly's exposure in the first period of employment was to the spraying process. That involved a non-Hardie product. The balance of his exposure in that period was to processes that involved sometimes Hardie-B.I. product and sometimes non Hardie-B.I. product. In the second period of employment, the exposure was to processes involving products from Hardie-B.I. and other suppliers.
I consider that, compared to his overall exposure to asbestos, Mr Daly's exposure to Hardie-B.I. product may be classed as being towards the lower end of moderate.

[27]

Mr Allars

Mr Allars provided particulars in his claim against the State (Exhibit CC 18).
Mr Allars was employed by the Newcastle Dockyard in three periods being 25 June 1969 to 22 September 1970, 8 February 1971 to 10 July 1973 and 24 April 1974 to 6 March 1987.
His exposure is set out in his Particulars, Exhibit CC 18, pp8-17.
The evidence of that exposure does not match the periods of employment. That is because the Particulars were prepared without the benefit of employment records which have been used to fix the dates and the periods of employment.
He started as a casual painter and docker. After about three months, he became a trade's assistant to an iron worker. He says he worked in that position for about three and a half years. He says he left and returned to the Dockyard in about 1973 where he continued as a painter and docker until 1987.
He worked on over 100 ships in his time there either on new construction or on repair.
In the period up to 1972, his work as a trade's assistant was mainly repair work. All the ships had insulation in the engine rooms and elsewhere. He worked near workers removing or applying insulation.
In the engine rooms, laggers removed and replaced insulation materials. Mostly it was in powder form used to make a slurry. These processes were dusty.
Laggers also worked with half pipe sections, rope and blocks. The half pipe sections and blocks came in cartons. The powder came in bags. The half pipe sections or blocks were put on pipes and boilers with a slurry or cloth over the top.
Exposure to these processes could be for up to a week at a time or not at all for several months.
After he returned to the Dockyard in 1973, he returned as a painter and docker. When one goes to the employment records, this return to the Dockyard is probably to be fixed at 24 April 1974. Until about 1977, he worked on new ships. He named several from the Express (ship No.92) through to the Lady Street (ship No. 98). The Express was the ship immediately after the Lysaght Enterprise. In that period he says he was exposed to dust from the work of laggers as before. Also "insulation in spray form was applied to the bulk heads of ships that I worked on at night" (Exhibit CC 18, p13). I think in context, to be gathered from what follows in the exhibit, that means that the ship was sprayed at night, rather than he worked on it at night.
He did rigging work including erecting and taking down staging. Lagging was left on planks. He banged the planks to get rid of it. He cleaned up after the laggers.
In about 1977, he went to repair work. Until about 1979, he worked in engine rooms where lagging was removed and replaced. He cleaned up the discarded insulation material.
When later in his work at the Dockyard he became aware that asbestos was dangerous, he refused to work with it or in areas where others were working with it. From 1979, he refused to do work that exposed him to asbestos.
Over the three periods of employment, with the last being confined to 1979, there were 19 ships under construction.
Mr Allars's exposure is corroborated by other witnesses as before.
Mr Allars does not distinguish between different processes or products as to intensity of exposure. He describes product, some of which is Hardie-B.I. product and some of which is not. The product that is not Hardie-B.I. product includes rope and spray. Other product, particularly half pipe section, blocks and powder is Hardie-B.I. product or consistent with it being so. Considering the preponderance of Hardie-B.I. material at the Dockyard and the evidence of witnesses I have referred to, I find that it was Hardie-B.I. product.
Compared to his overall exposure to asbestos, I would class Mr Allars's exposure to Hardie-B.I. asbestos as moderate.

[28]

Mr Bennett

Mr Bennett provided particulars in respect of his claim against the State (Exhibit CC 23).
Mr Bennett was employed by the Dockyard as an electrical fitter from 14 December 1970 to 11 August 1977.
His exposure is set out in his Particulars, Exhibit CC 23, pp8-12.
He started on repair work. The first ship he recalled working on was the John Hunter. That is unlikely to be the first one as, according to the list of ships, its keel was laid on 6 September 1973, nearly three years after he started. This may be a case of error in the list of ships. Assuming he had the name of the ship wrong but the description of work right, he worked in the boiler and engine rooms for about six months. Laggers removed old asbestos insulation and installed new lagging. The new lagging included asbestos half pipe sections, asbestos composition and asbestos rope. I find, with the exception of rope, this was Hardie-B.I. asbestos product. The new insulation work was dusty. Removal of old lagging was extremely dusty work. It was difficult to see from one end of the engine or boiler room to the other.
Thereafter, most of the work, about eighty-five percent (85%), he did was in the boiler and engine rooms of ships under repair or construction. This was work similar to that expressed in working on the John Hunter. It was dusty. He also had to climb over asbestos lagging to perform his work. He had to strip asbestos lagging off cables. He worked on switchboards with asbestos backing, cutting and drilling into that. These processes were dusty. The manufacturer of this asbestos was not proven.
As before, witnesses corroborated exposure conditions. Mr Bennett identified product that could be Hardie-B.I. product, for example, half pipe sections, composition and powder and I find it was Hardie-B.I. product. I accept the evidence of the witnesses as to the preponderance and use of the Hardie-B.I. product. He also identified non-Hardie product.
Compared to his overall exposure to asbestos, I estimate that his exposure to Hardie-B.I. product to be in the lower half of moderate.

[29]

Mr Smith

Mr Smith provided an affidavit in his proceedings (Exhibit CC 30). It was undated, but affirmed apparently on 18 March 2011. In his proceedings, he filed a Statement of Particulars (Exhibit CC 29). The information he set out there is more or less in accord with his affidavit. Mr Smith gave some short evidence on 21 March 2011. He was barely well enough to answer a few questions in chief.
Mr Smith was employed by the Dockyard from 5 December 1973 to 16 November 1977. He was an apprentice sheet metal worker.
Mr Smith had no exposure other than at the Dockyard. His exposure to cause his asbestos related disease, mesothelioma, had to be between December 1973 and November 1977. There must have been exposure to asbestos in the ships he worked on in that period. It is probable that his exposure was both in construction work and repair work as set out in his affidavit and particulars.
At the Dockyard, he spent about seventy-five percent (75%) of his time on ship construction and about twenty-five percent (25%) on repair. He worked in the workshop or on board ships. He worked on board ships at least a few hours per day.
On board, he worked near other workers. This included laggers. They mixed up a slurry made from raw asbestos in a hessian bag. I accept this evidence and Mr Foxford's evidence that he purchased asbestos fibre in hessian bags. This product, accordingly, was not Hardie-B.I. product. The laggers also used rope, tape and blankets. In context, that work appears to be a description of his work on ship construction (Exhibit CC 30 [10]; CC 29, p8). This was very dusty work.
On repair work, he worked near laggers. They stripped old lagging from pipes and other surfaces. That was very dusty.
Clearly Mr Smith was exposed to asbestos. He was exposed to non-Hardie product. There is no evidence from Mr Smith of his exposure to Hardie product in new construction work. I do not think that position is improved by the evidence of the other witnesses. The main ones to turn to at this point are Messrs McDonald, Searle and Budden as they provided statements in the matter of Smith. The problem is none of them could recall him and, accordingly, their evidence is of a general nature. In addition to the slurry powder, I have no reason not to accept Mr Smith's evidence of exposure to rope, tape and blankets. With the amount of Hardie asbestos in use at the Dockyard, it is difficult to believe Mr Smith was not exposed to Hardie asbestos in new ship construction. However, the issues must be decided on evidence and justifiable inferences and not on belief. The evidence is lacking. Accordingly, the case of exposure to Hardie product on new ship construction is not made out.
On repair work, however, there was some exposure to Hardie product.
Compared to his overall exposure to asbestos, I would assess Mr Smith's exposure to Hardie-B.I. product as slight.

[31]

Knowledge of the Newcastle Dockyard and James Hardie of the health risks of asbestos

Both the State and Amaca tendered copious material on this issue. I do not find it useful to analyse it all. This is really a matter in which there could have been agreement between these two litigants.
As to Amaca, in Zwiersen v Field & Hall Ltd & Ors [2016] VSC 16, Rush J said, "26. The written submissions on behalf of the third defendant stated: '17. Each of the third and fourth defendants is a manufacturer / supplier of asbestos and it is fair to conclude, as J Forrest J did in Jones v Southern Grampian Shire Council & Anor [[2012] VSC 485], that: '… the repository of knowledge concerning the dangers of asbestos dust … lay with the manufacturer and distributor of the product. It had actual knowledge of the prospective dangers … a dissemination of the information by [the manufacturer] … would have alerted the [employer] to the problem.' … 27. I think this submission realistically sums up the knowledge and responsibility of the defendant manufacturers against that of the defendant employer. The defendant manufacturers relied upon asbestos for the effectiveness of their products. They used massive quantities of it and could indeed be expected to be 'the repository of knowledge concerning the dangers of asbestos dust'."
Those findings are not to be brushed off as being findings on the evidence in that case. They are findings supported by a body of documentary material. The findings are consistent with the history of litigation in this Tribunal since 1989.
At [30], Rush J added, "Although the material tendered before me concerning the actual knowledge of the third and fourth defendant's is limited, I am struck by the magnitude of the Hardie-BI partnership demonstrated by its brochure tendered by the plaintiff. On re-reading the brochure, one gains an understanding that this partnership conducted an industrial business of enormous capacity. A variety of asbestos insulation products were produced for industry, photographs and commentary in the brochure concerning the production process at the Camellia factory in New South Wales demonstrate a factory of very large size and capacity. The marketing of the various products was across the nation, and the industries using the product again provide an insight into the magnitude of the production, oil refineries, power houses, furnace walls and many types of industrial equipment operating at high and low temperatures."
At [33], he added, "The submission of the third defendant that I have previously referred to as realistic recognises the knowledge concerning the dangers of asbestos lay with the manufacturer and distributor of the product, that the manufacturer and distributor 'had actual knowledge of the prospective dangers'. In my opinion, one can add to this concession made by the third defendant in submissions by stating the ability to research and warn of the dangers of asbestos lay with the third and fourth defendants."
What Rush J said of Amaca in Zwiersen is true in this case for the whole of the relevant periods of exposure of the underlying plaintiffs. Matters I mention in this paragraph are taken, in part, from Zwiersen. James Hardie manufactured asbestos products throughout the periods. It distributed the products throughout the periods, though in the partnership period the distribution was by Hardie-B.I. direct to BI, but it knew in that period that the products were then to be distributed to customers as they had been before. The manufacturing and distribution process was vast. Technical advice was available to customers across the country. A continuous renewal programme was in operation. James Hardie used massive quantities of asbestos and could be expected to be the repository of knowledge concerning the dangers of asbestos dust. The ability to research and warn of the dangers of asbestos lay with James Hardie.
As to the knowledge of the Dockyard, I was taken at length through reports of the National Health and Medical Research Council (NHMRC). It is not useful to analyse that. It reveals that over the relevant period, there was a developing body of knowledge as to the risks to health associated with asbestos. That body of knowledge rested in various places including the NSW Department of Public Health. It is not shown on the evidence that this material came to the knowledge of the Dockyard, but it was a resource the Dockyard had available to it and could have and, as a reasonably responsible employer, should have tapped.
Actual knowledge of the dangers of asbestos can be fixed on the Newcastle Dockyard by 1962. It was then a party to proceedings in the Industrial Relations Commission (IRC). It was represented by Mr Carney and it took part in the proceedings. The detail of the proceedings does not matter. What matters is that there was evidence in the proceedings about the risks to health of those using asbestos and those working in the vicinity of those using it. That was raised by Mr Carney in submissions (Exhibit JH 15, p139). The proceedings included an inspection at the Dockyard and included documentary material about the risks associated with asbestos.
Following the IRC proceedings, there was other material provided to Mr Carney and others in management at the Dockyard. I need not analyse them in light of my finding that the Dockyard was aware of the dangers associated with asbestos from 1962.
After that, there is a puzzling letter of 14 May 1968 from BI to the Dockyard, Exhibit JH 12, p9. It was a letter effectively denying any health risks associated with the use of K-Lite calcium silicate and 85% Magnesia. This letter does not affect the Newcastle Dockyard's state of knowledge. As it was seized of information about the risks of asbestos before then, it would have been cavalier of the Newcastle Dockyard to take that letter at face value and ignore all the other information it had. There is no suggestion it did so. The letter, however, may be factored into James Hardie's moral culpability on the contribution issue. At this stage, Hardie-B.I. had sought to disengage itself from providing advice about its product. It sought to do so through the partnership agreement and the brochure, Exhibit CC 17A. It was, however, through the brochure, holding BI out as the body to contact for advice. Advice sought from the Newcastle Dockyard elicited the above referred to letter. It was false and it was false in a dangerous way in that it had the potential to lead to serious health problems including fatal consequences. It is to be factored into James Hardie's moral culpability on the contribution issue.

[32]

Duty of care

I do not accept that the duty question is determined in favour of Amaca by Norton Australia Pty Limited v Streets Ice Cream Pty Limited (1968) 120 CLR 635. Duty was conceded in Norton and that was said to be correct (p642). Nor is the duty question determined in Amaca's favour by McPherson's Limited v Eaton [2005] NSWCA 435. The issue there was whether a retailer of product owed a duty to an employee of a purchaser of the product.
Here, the question is whether James Hardie owed a duty of care to each of the underlying plaintiffs. The relationship between James Hardie and each underlying plaintiff is one well recognised by law and one in which time and again a duty has been held to exist. As Giles JA said in Amaca Pty Ltd v A B & P Constructions [2007] NSWCA 220 at [52], The relationship between the appellant and Mr Lorizio was that of manufacturer of a product and user of the product. That is a well established area of litigation, not at the boundaries of the law of negligence. The content of the appellant's duty of care was at the general level of a duty to take reasonable care to avoid physical injury.
In Norton, Barwick CJ said at p642, No doubt because of the dangerous quality of the adhesive and the great risk of injury or damage if it were used in ignorance of its qualities, the duty of care resting on the appellant was high but it was not absolute ; the appellant was in no sense an insurer. Its duty was yet a duty to take reasonable care in the circumstances which, of course, included the nature of the adhesive, the identity of the purchaser and the range of its use which might fairly be in contemplation when the sale was made.
I was asked to find that during the partnership, James Hardie had no role in distributing the products. It was a manufacturer only with BI being the distributor. I am not impressed by that submission. Up until 1964, James Hardie was the sole manufacturer and distributor of the asbestos products it manufactured. It knew to whom its products were being distributed. It knew that its products would be used by end users who would work with the products cutting, sawing, drilling and otherwise working on them in a way that liberated dust. When it went into partnership with CSR and BI was appointed distributor, nothing changed. When the products were manufactured and sold to BI, James Hardie knew to whom the products were being distributed and how the products were going to be used. It intended BI to place the products with customers as it had before and it intended the products to be worked on as they had been before. Nor am I impressed by the submission that it was not James Hardie, but BI to whom customers were to turn for technical advice as stated in the brochure, Exhibit CC 17A. For a period of the partnership that, in fact, was not the case and James Hardie was nominated as the one to turn to for such advice, Exhibit CC 17B, and this had been the case for many years, even decades. When the partnership issued its brochure, Exhibit CC 17A, James Hardie did not suddenly or even gradually come to a point where it lacked the expertise it had up until then. Nothing had changed. One may speculate as to the reason for this change in the brochures. Whatever the reason, James Hardie remained under the duty of care it owed to the underlying plaintiffs.

[33]

Breach

Again, I do not accept that the breach question is determined in favour of Amaca by Norton. It is to be noted that in Norton, a warning was given and it was found to be sufficient to discharge the duty of care. McPherson's can hardly govern this case when there was not even a duty in that case and, as to breach, it was necessary to look at the reasonable response of a retailer, not a manufacturer and distributor.
A submission was made that no duty arose on James Hardie to warn the Newcastle Dockyard. This poses the wrong question. For a start, it is a breach question. The question is not whether James Hardie was required to warn the Newcastle Dockyard. James Hardie and the Newcastle Dockyard are not the parties to the duty question or the parties to the hypothetical suit to determine whether James Hardie would have been liable to the underlying plaintiffs if sued by them. The parties to that question are James Hardie and each of the underlying plaintiffs.
Further, James Hardie cannot make the case that, with the knowledge the Newcastle Dockyard had, it was reasonable for James Hardie to proceed on that knowledge and that the reasonable response was for it to do nothing. This is because James Hardie was not aware of the Newcastle Dockyard's state of knowledge of the risks of exposure to asbestos. More to the point, even if it was aware, it did not rely on this. Further, James Hardie was not aware of the working conditions of the underlying plaintiffs. It did not rely on assumptions that the working conditions were safe. James Hardie released its product onto the market to anybody who would take it, whatever those consumers' circumstances. It did not consider in any case what the consumer's state of knowledge was or the circumstances in which the product was going to be used. It simply sold it for use. If Amaca's point on this is good, one would expect to see warnings issued by James Hardie in cases where it was aware of unsafe working conditions or where it was unaware of what the working conditions were. This did not happen. It is well known that James Hardie did not issue any warning as to its products before about 1978 and then that warning was on building products.
Following the passage of Giles JA cited above, his Honour continued as follows from [52]: …The reasonableness of the appellant's conduct was then to be assessed by regard to the risk of injury and the response of a reasonable man to the risk, in accordance with the balancing described by Mason J in Wyong Shire Council v Shirt. 53 In Graham Barclay Oysters Pty Ltd v Ryan McHugh J said - " 106 The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred). If the duty is formulated in specific terms, the issue on breach is whether the duty has been performed in accordance with the terms of the duty as formulated. … " 54 Graham Barclay Oysters Pty Ltd v Ryan had many parties, but the oyster grower and the consumer of oysters were in the relationship of manufacturer and user. It was accepted that a general duty of care was owed, and the contest was over breach of duty, see at [41]-[42] per Gleeson CJ. [187] per Gummow and Hayne JJ, [253] per Kirby J. McHugh J at [101] referred to the scope of the duty owed, but by his [106] determined the scope as the general duty of care. … 56 In Grant v Australian Knitting Mills Ltd (1933) 50 CLR 387 (HC); (1935) 54 CLR 49 (PC) the duty of care of the manufacturer of underpants, founded on Donoghue v Stevenson, was to take reasonable care to avoid injury (per Starke J at 409) or to take care in its manufacturing process so as to avoid injury (per Evatt J at 439-41 and in the Privy Council at 63). In Norton Australia Pty Ltd v Streets Ice Cream Pty Ltd (1968) 120 CLR 635, which concerned an inflammable adhesive, Barwick CJ at 642-3 described the manufacturer's duty as a duty to take reasonable care, the parties accepting that "the relevant act in performance of [the manufacturer's] duty" was giving an adequate warning of the dangerous qualities of the adhesive. In Vairy v Wyong Shire Council Gummow J observed at [63] that in many well-settled areas of the law of negligence the existence of a duty of care "presents no challenge", and that after Donoghue v Stevenson "it was accepted that manufacturers of mass produced goods intended for human consumption owed a duty of care to ultimate consumers". 57 The correct approach in the present case, then, was that the appellant owed to Mr Lorizio a duty to take reasonable care avoid risk of physical injury; and whether it was in breach of that duty involved determining the reasonable response to the risk of injury and any failure in that reasonable response. Giving a warning was not necessarily the reasonable response. The reasonable response of the manufacturer of a product may be to warn of the risks in its use, it may be to cease manufacturing the product (as was found in Wright v Dunlop Rubber Co Ltd), it may be to manufacture with different materials, or it may be to manufacture with greater care (as could have been the case in Grant v Australian Knitting Mills Ltd, although negligence was not found).
It is necessary then to determine the reasonable response to the risk of injury bearing all the circumstances in mind and particularly those specified by Mason J in The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40.
The State's case was that James Hardie should have withdrawn the product or issued a warning. I do not accept the case that the product should have been withdrawn. There was no evidence that that was a viable option before asbestos-free product was available. With no viable option, withdrawal of product may have led to the closure of the Dockyard. Further, the issue was not confined to the Dockyard. Every industry in the country that was dependent on the product may have needed to close. There was evidence of the replacement of asbestos products with asbestos-free products. No evidence suggested that it was available or practical to have been undertaken before it was.
I think the case as to warning is made out in respect of the claims of each of the underlying plaintiffs.
The warning case was limited to new product. It did not extend to a case of failure to warn in respect of product that had already been installed before the various dates on which the underlying plaintiffs commenced their employment at the Dockyard.
In the chain of people dealing with the asbestos products, the underlying plaintiffs were the most vulnerable. They were the people to whom the asbestos posed the greatest risk. They were known to James Hardie to be end users. James Hardie knew, or at least ought to have known, that they would use it in a way that would release respirable amounts of dust and fibre. That was obvious. The release of respirable dust and fibre posed health risks and risks of the most catastrophic kind to the underlying plaintiffs if proper precautions were not taken. The underlying plaintiffs were the most uninformed of all people dealing with the product between distribution and use. It is true that proper precautions could have been taken by the Newcastle Dockyard to protect the underlying plaintiffs. The fact that precautions could have been taken by the Newcastle Dockyard, especially as employer with its body of knowledge is not a matter that warrants doing nothing as the reasonable response of James Hardie.
Warnings could have been issued. The nature of the warnings would need to change to meet developing knowledge about the dangers of asbestos.
There can have been no practical difficulty in getting a warning to end users such as the underlying plaintiffs. Any number of means would have been available to James Hardie. Mr Cox's evidence demonstrated that a message could get to the end users - "… we were getting conflicting stories from the suppliers there was no problem with it" (T26.37).
I do not think Norton stands in the way of the State's case on warning. In that case, the use of flammable adhesive in a closed atmosphere in which there was a naked flame could not have been contemplated (p642). Here, asbestos was used in a way in which it was contemplated it would be used. Further, the dangers associated with flammable material are obvious to all. It might reasonably be contemplated by the manufacturer and distributor that simple and obvious precautions would be taken. The dangers associated with the use of asbestos were not at all obvious especially to tradesmen who worked with and around it. The need for warning and its content must accommodate the fact that numerous end users of asbestos at different times would be ignorant of the dangers associated with its use.
CSR Limited v Wren (1998) Aust Torts Reports 81-461 noted that fulfilment of the duty of care owed to a person beyond the immediate purchaser may, in a particular case, only be fulfilled by taking steps specifically directed to the end user - at 64,828-9. In that case, the supplier of asbestos product to the plaintiff's employer was so closely related to the employer that it knew the working conditions in which the plaintiff worked and that no precautions were taken against the known dangers of asbestos. That was a sufficient, but not necessary, fact to found liability. It is sufficient if the manufacturer or supplier of product ought reasonably have within his contemplation that end users might work with the product in a way that could release asbestos dust and fibre into the breathing zone of those end users or those working sufficiently adjacent to them. James Hardie ought reasonably have had that contemplation in these cases. It knew the product wherever it went would be cut, drilled, rasped and otherwise handled in ways that would liberate dust into the atmosphere. It knew at all relevant times the dangers associated with the use of asbestos. It knew that the harmful results of exposure to asbestos would not take effect for a very long time. It must have known that, unlike flammable material, asbestos was a product whose dangerous properties were not universally known. It must have known that those dangerous properties would not be known to a workforce that manually worked with asbestos. It ought to have been within its reasonable contemplation that members of such a workforce would be working with the product in a variety of conditions including, in many instances, without protection. In its supply of product, it did not pay attention to what those conditions were. This is supported by the fact that in no instance, even when it actually knew of the dangerous conditions in which end users were working did it issue any warning. It did not rely on steps taken by its purchasers to protect end users. By and large, it would not have known in any given instance what the working conditions of those end users were. These matters support the view that the reasonable response required it to warn end users.
From 1978, James Hardie started placing notices on its building products. They were in a form shown in the last three pages of Exhibit JH 9. It is sufficient to note the wording of one of them. It was as follows: "a Caution This product contains asbestos. Breathing asbestos dust can damage health. Keep dust down. This product contains a small percentage of asbestos bound firmly into it by cement and other materials. Asbestos dust can damage health. Keep dust down by following these simple safety rules…"
Then some "rules" were set out: When sawing, drilling, etc. work in a well ventilated space, preferably outdoors. Use hand tools designed for cutting asbestos-cement sheets such as fibro cutters or a score and snap knife - or use an old hand saw. If cutting by power saw use one which has a dust suppression attachment. Avoid drilling overhead where possible by pre-drilling before fixing. Damp down waste dust and dispose of it in a sealed bag. NOTE: When fixed in position, asbestos cement sheets present no known risk to health.
This was not truly a warning. It was a notice more in the nature of a reassurance in use of the product.
The warning that should have been given in each instance depended on the state of knowledge known to James Hardie when each of the underlying plaintiffs was employed by the Newcastle Dockyard. The warning should have been in such a manner and of such form and content as to inform each underlying plaintiff of the real risks then known to be associated with being exposed to asbestos. The content of the warnings would need to vary to accommodate advances in the developing state of knowledge. It is convenient here simply to refer to the information contained in the article by Margaret Becklake, referred to in [319(7)]. In brief, warning should have been issued from:

in or soon after 1953 to the effect that exposure to asbestos was harmful to health, that it caused asbestosis and could cause lung cancer and mesothelioma and lead to death;
in or soon after 1955, to the effect that exposure to asbestos was harmful to health, that it caused asbestosis and lung cancer and could cause mesothelioma and lead to death;
in the early 1960s, to the effect that exposure to asbestos was harmful to health, that it caused asbestosis, lung cancer and, even with light exposure, mesothelioma, and could lead to death.

[34]

Causation

Not all the underlying plaintiffs stated what they would have done had they been warned of the dangers of asbestos. Evidence to that effect in any event needs to be treated with care.
In each case, however, I accept that an appropriate warning would likely have led to each underlying plaintiff taking appropriate steps to protect his health including, if need be, seeking and obtaining alternative employment. This is supported by a number of factors. It is the sort of response one would expect of a person particularly if he was told that the exposure could kill him. Further, employment opportunity in the Newcastle and surrounding areas, it may be inferred, was plentiful. It is notorious that the area was a very big industrial hub throughout the whole of the period the subject of the claims. The likelihood is that each underlying plaintiff could have readily obtained other employment. This is illustrated by the fact that each of them did.

Mr Derepas apparently had no difficulty in obtaining employment in Townsville when he ceased at the Dockyard (Exhibit CC 27, p12).
Mr Lewis had two periods of employment at the Dockyard and he apparently had no difficulty in obtaining other employment at the end of both (Exhibit CC 14, p11).
Mr Pajkovic apparently had no difficulty in obtaining employment when he ceased at the Dockyard (Exhibit CC 25 [3.1]).
Mr Daly wore protective gear when told to (Exhibit CC 21, p13). His employment position after the Dockyard was not as clear as the others, but it seems likely he was able to obtain work (Exhibit CC 21, p7).
Mr Allars, when he learned of the dangers of asbestos, refused to work in conditions that would expose him. The Newcastle Dockyard accommodated him in that regard and kept him employed.
Mr Bennett specifically said that if he had been warned, he would have worn appropriate protective clothing (Exhibit CC 23, p10). He apparently had no difficulty in obtaining employment when he left the Dockyard (Exhibit CC 23, p8).
Mr Smith stated that had he been warned he would have taken protective measures. He apparently had no difficulty obtaining employment when he left the Dockyard (Exhibit CC 29, p6).
Mr Payne had two periods of employment and apparently had no difficulty in obtaining other employment at the end of both (Exhibit CC 35, p9).

I do not consider the fact that there was some information in the public domain about the dangers of asbestos is sufficient to come to a contrary view. Most of the underlying plaintiffs were deceased so it was not possible to ascertain their state of knowledge of the dangers of asbestos. Further, they were entitled to rely on their employer providing them with a safe working environment and would be entitled to assume that they had one. As to Mr Allars, he did learn of the dangers of asbestos and when he did he demanded and obtained other work at the Dockyard.

[36]

The claims relating to each of the underlying plaintiffs

To save repetition, it is convenient to set out factors that are common to all or many of the claims relating to the underlying plaintiffs. These facts I take into account in assessing contribution between the State and Amaca. 1. At all relevant times, James Hardie or Hardie-B.I. carried on a most substantial business throughout Australia in the production and distribution of asbestos insulation and building products. To some extent, this was referred to by Rush J in Zwiersen. It was more fully detailed by Curtis J in Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd; re Hay (No 4) (1999) 18 NSW CCR 653 from [126] when the period of exposure was from 1958 to 1961. 2. There was some evidence about the size and extent of the Newcastle Dockyard. A map was tendered. It reveals the Dockyard was located on a substantial portion of land and water. There was an extensive workforce. The Newcastle Dockyard must have had readily available to it resources for advice on all types of matters, including engineering, medical, industrial, legal. 3. At all relevant times, James Hardie had actual knowledge of the health risks associated with exposure to asbestos. Matters discussed at [283-287] are pertinent here. 4. At all times from 1962, the Newcastle Dockyard had actual knowledge of the health risks associated with exposure to asbestos. Matters discussed at [288-290] are pertinent here. 5. At all times up to 1962, the Newcastle Dockyard did not have actual knowledge of the health risks associated with exposure to asbestos. 6. At all times up to 1962, it was available to the Newcastle Dockyard to ascertain the then state of knowledge of the health risks associated with exposure to asbestos and, as a reasonable employer, it ought to have done so. 7. The developing state of knowledge as to the health risks associated with exposure to asbestos is conveniently represented in a graph in an article by Margaret Becklake (Exhibit CC 44, Tab 76, p189). It may be summarised as follows. 1. As at 1953, when Mr Derepas started at the Dockyard, there was an established association between asbestos and asbestosis, a probable association with lung cancer and a suspected association with mesothelioma. 2. As at 1955, when Mr Lewis started at the Dockyard, the association between asbestos and lung cancer had moved from being probable to being established. 3. By the early 1960s, recognition of the association between asbestos exposure and mesothelioma was established. It might be noted here that in 1960, the Wagner article (Exhibit CC 44, Tab 66) noting the link between mesothelioma and asbestos, even light exposure, had been published. 1. The Newcastle Dockyard, as employer of each underlying plaintiff, was in a position to determine and fix the working conditions in which each of them worked. It had direct control over each of them. Its culpability lay with the knowledge it had, or ought to have had, of risks associated with asbestos use, in exposing them to conditions of work without proper safeguards for their protection, and without warnings as to the dangers to which they were being exposed. 2. The moral culpability of James Hardie lies in its distribution of product known to it to be dangerous without, until 1978, issuing any notice to persons it knew or ought to have known to be working with the product in various different ways that liberated the dangerous dust into their working environment. If anything, the notice issued by James Hardie on its building product in 1978 enhances its moral culpability. It highlights its decades of silence and aggravates that with a notice that could be interpreted more as a comforting reassurance rather than a warning. The notice was deficient in many respects. It was deficient as to its manner of circulation or publication. It was attached to large sheets that could be seen, at best, only by some end users. It might have been seen by carpenters and joiners who directly handled the product. It would not have been seen by workers in ancillary trades such as electricians and plumbers. It was deficient as to form. It was a small sticker on a large sheet. It was deficient as to content. It said nothing about cancer or mesothelioma or any threat to life. Also, the letter from BI to the Newcastle Dockyard on 14 May 1968 advising there were no health risks associated with the use of K-Lite calcium silicate and 85% Magnesia can only add to the moral culpability of James Hardie. However, that letter does nothing to reduce the moral culpability of the Newcastle Dockyard. 3. The warning that should have been given in each instance depended on the state of knowledge known to James Hardie when each of the underlying plaintiffs was employed by the Newcastle Dockyard. The warning should have been in such a manner and of such form and content as to inform each underlying plaintiff of the real risks then known of being exposed to asbestos. 4. The contribution exercise is to take into account a comparison of the relative causal potency of the negligent acts of the Newcastle Dockyard and James Hardie and a comparison also of their moral culpability - Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529. 5. I bear in mind also in respect of each claim the circumstances I have set out earlier regarding each of the underlying plaintiffs culminating in the views I have expressed as to the exposure of each of them to Hardie product and non-Hardie product. My references to non-Hardie product have encompassed product where the identity of the manufacturer is not known as well as where it is known.
With those matters expressed, I can deal with the contributions in respect of each claim very briefly.

[45]

Amaca's cross claim against CSR

Amaca cross-claims against CSR. In brief, the claim is for an equal contribution from CSR or alternatively contribution or indemnity to the extent that it is just and equitable having regard to the extent of CSR's responsibility for the loss, injury and damage to each of the underlying plaintiffs.
The claim is limited to partnership product.
That creates a problem in that exposure of some of the underlying plaintiffs in ship construction and repair was to Hardie-B.I. product and some of it was to James Hardie product. Amaca would not be able to recover in respect of the latter product. As the submissions did not deal with this, I do not deal with it except in some cases to make some adjustment. This will not matter much in the result as the bulk of Hardie product to which the underlying plaintiffs were exposed was insulation product.
Normally, liabilities of a partnership would be borne equally between the partners. My attention was not directed to anything in the partnership agreement or deed of dissolution that provides otherwise and it was not argued to the contrary. Accordingly, I am of the view that CSR is bound to contribute 50% of any liability of Amaca in respect of partnership product.
There is no claim made in respect of Mr Derepas's case. He was not exposed to Hardie-B.I. product.
In the case of Mr Lewis, he was not exposed to Hardie-B.I. product before the partnership was formed. Amaca will not be entitled to any recovery in respect of that period.
In the cases of Mr Lewis and the remaining underlying plaintiffs, they were all exposed after the partnership ceased. To the extent that it was asbestos insulation product sourced from Hardie, that was Hardie-B.I. product. To the extent that the exposure to Hardie sourced asbestos product was to building product, that exposure was to James Hardie and not Hardie-B.I. asbestos. To the extent that exposure to Hardie product diminished after the dissolution of the partnership, that has already been factored in in my assessment of the relative extent of exposure as between James Hardie and the Dockyard.
I deal with the individual cases.

State of New South Wales v Amaca Pty Limited; Amaca Pty Limited v CSR Limited

At a glance

Court

Decision date

Before

Source

Judgment (55 paragraphs)

Cases Cited (10)

Cited By (11)