A recent decision of Judge Kearns of the Dust Diseases Tribunal of NSW concerning the State Dockyard at Newcastle is a timely reminder of the heavy price that workers in Newcastle and the Hunter Valley have paid for the use of asbestos insulation materials in industry.
The State Dockyard was operated by the NSW Government from the mid 1940s until it closed in March 1987.
Asbestos insulation material
The State Dockyard both built ships and repaired ships. Asbestos insulation material was used on the ships built and repaired at the Dockyard. It was commonly used in the engine rooms and boiler rooms of ships as an insulating agent on steam pipes, other hot pipes, boilers and exhausts. It was used in the form of asbestos sheeting in the accommodation areas and asbestos spray was also applied to the bulkheads of ships as a fire retardant. Asbestos insulation materials were installed during ship construction and removed and installed during ship repair. The installation and removal was generally performed by the painters and dockers. At the same time, other tradesmen including boilermakers, fitters and electricians worked in areas where asbestos insulation was being installed or removed.
Any man who worked at the State Dockyard on board a ship where asbestos insulation material was being installed or removed will tell you that the air was thick with asbestos dust.
Compensation for asbestos related disease
As a consequence, a number of former State Dockyard workers have claimed compensation from the State of NSW for asbestos related disease over the years. The State of NSW has in turn made a claim for contribution from the suppliers of asbestos insulation materials to the Dockyard. The major supplier was James Hardie & Coy Pty Limited (“Hardie”). Although the State of NSW was the employer of the Dockyard workforce and therefore primarily responsible for their safety, the law allows the State of New South Wales to make a claim for contribution to any compensation payable to a Dockyard worker with asbestos disease from Hardie on the basis that it was also responsible for the Dockyard worker’s disease.
Dust Diseases Tribunal of NSW
Over the past several years, Hardie and the State of NSW have been unable to agree in some cases as to the contribution that Hardie should make to settlements paid by the State of New South Wales to Dockyard workers who had asbestos related disease. As a consequence, Judge Kearns of the Dust Diseases Tribunal of NSW heard eight cross-claims by the State of NSW against Hardie where the State of New South Wales had paid settlements to Dockyard workers. Judge Kearns heard evidence from former Dockyard employees and read a number of documents over a number of days. In the end, he decided Hardie was culpable to an extent. In one case, Hardie was ordered to pay 10% of the settlement paid to the Dockyard worker, in another case 40%. He found that the State of New South Wales, being the employer, should shoulder the majority of the responsibility.
Dockyard knew about the dangers
The extraordinary thing about Judge Kearns’ decision is that he found that the Dockyard had actual knowledge of the dangers of asbestos in 1962. He made that finding because on 1962, the Dockyard was a party to proceedings in the Industrial Relations Commission in which evidence was given concerning the risks to health of those either working with asbestos or working in the vicinity of those working with it. Despite that, the Dockyard took no real or effective measures to protect Dockyard workers from inhaling asbestos dust and fibre. Further, despite its actual knowledge, the Dockyard took some comfort from the fact that Hardie continued to represent throughout the 1960s that there were no health risks associated with the use of its asbestos insulation products. Even more extraordinary is the fact that the use of asbestos insulation continued at the Dockyard for at least another 15 years.
The real tragedy is that there was enough information available to the Dockyard and the State of New South Wales well prior to 1962 that would lead Dockyard management to the conclusion that the use of asbestos insulation materials was a danger to health. The reality is that the search for alternative insulation materials was prompted by the fact that Hardie stopped manufacturing asbestos insulation materials in 1974. This is despite the fact that asbestos free alternatives were available all along.
The fact is that asbestos insulation was used because it was very effective and relatively cheap. It kept production costs down. Unfortunately, decisions made concerning the use of asbestos insulation over 40 to 70 years ago are still having an impact today. That impact is manifested in the death of Dockyard workers from mesothelioma, lung cancer or severe breathing difficulties due to other asbestos related diseases.
If you believe you might have been exposed to asbestos or contracted an asbestos related disease such as mesothelioma, call our asbestos lawyers on 13 43 63 or visit one of our offices.Our NSW offices are in Sydney, Parramatta, Campbelltown, Newcastle, Penrith, Wollongong and Gloucester.