Amaca Pty Ltd v State of New South Wales

Amaca Pty Ltd v State of New South Wales - [2003] HCA 44 - HCA 2003 case summary — Zoe

[14]

Rolls Royce and the Electricity Commission, defendants to the injured plaintiff's action, each sought contribution from the appellant ("James Hardie"). Those claims, so far as now relevant, were based on the contention that James Hardie, if sued by the injured plaintiff, would have been liable to him in respect of the damage for which the party claiming contribution was liable. It was alleged that the asbestos products to which the injured plaintiff had been exposed were manufactured, sold and supplied by James Hardie.
The Electricity Commission's claim for contribution against James Hardie was settled. Judgment was entered on the Electricity Commission's cross‑claim against James Hardie for $129,500: 70 per cent of the amount for which the injured plaintiff had judgment against the Electricity Commission.
James Hardie, being liable to make contribution to the Electricity Commission and potentially liable to make contribution to Rolls Royce, claimed contribution from the State of New South Wales. James Hardie alleged that the State was liable to the injured plaintiff, either vicariously for the acts and omissions of others, or directly for breach of a duty of care which the State allegedly owed the injured plaintiff.
The various contribution claims that had not been settled, including James Hardie's claim to contribution from the State, were tried in the Dust Diseases Tribunal. James Hardie's allegation that the State was vicariously liable to the injured plaintiff centred on a contention that the State was responsible for the acts or omissions of inspectors appointed under the Scaffolding and Lifts Act 1912 (NSW). (Allegations that the State was vicariously liable for the acts or omissions of the Electricity Commission were not pursued at trial.) The trial judge (Judge Curtis) rejected the contention that the State was vicariously liable for the acts or omissions of the inspectors[3] and that contention, although maintained in the Court of Appeal, was not dealt with by that Court. It may be put aside.
Both at trial and in the Court of Appeal, James Hardie contended that the State owed the injured plaintiff a duty of care. In its written submissions to the Court of Appeal, James Hardie said that its case was:

[24]

Those three outcomes of proceedings for contribution are predicated upon the claimant being entitled to recover contribution. The circumstances in which that entitlement arises are specified in s 5(1)(c). Two matters must be established: (i) that the claimant is a tortfeasor liable in respect of particular damage; and (ii) that the person against whom the claim is made is another tortfeasor "who is, or would if sued have been, liable in respect of the same damage".
As was pointed out in James Hardie & Coy Pty Ltd v Seltsam Pty Ltd[7], the contribution provisions of the Miscellaneous Provisions Act have become notorious for the conceptual and practical difficulties they engender. Some of those difficulties stem from the fact that it is possible to bring proceedings for contribution that are heard and determined separately from proceedings establishing the liability in respect of which contribution is sought. It was the separation between hearing the proceedings brought by an injured plaintiff and hearing proceedings for contribution which gave rise to the issue decided by this Court in James Hardie & Coy Pty Ltd v Seltsam Pty Ltd. In that case, contribution proceedings were brought against a defendant sued by the injured plaintiff. By consent, however, the defendant had obtained judgment dismissing the injured plaintiff's claim against it. This Court held that the consent judgment in favour of that defendant absolved it from liability to make contribution to another defendant that had been found liable to the plaintiff. The Court also held, however, that a person who wished to seek contribution from a defendant against whom the plaintiff was content not to pursue a claim was entitled to be heard in opposition to the entry of judgment for that defendant by consent[8].
Like James Hardie & Coy Pty Ltd v Seltsam Pty Ltd, the principal proceedings brought by the injured plaintiff in this case were determined separately from the contribution claims. Unlike James Hardie & Coy Pty Ltd v Seltsam Pty Ltd, however, in the present case there has been no judicial determination (whether by consent or otherwise) that the person from whom contribution is sought (the State) is or would, if sued, have been liable to the injured plaintiff. Nor did the State admit that liability. Accordingly, the premise for making any of the orders specified in s 5(2) was neither established nor admitted, whether in the contribution proceedings or in the principal proceedings instituted by the injured plaintiff.

[25]

The trial judge made two errors in dealing with James Hardie's claim for contribution from the State. First, the reasons given for concluding that it was not just and equitable that the State should contribute to the liability of James Hardie were irrelevant. That James Hardie was a commercial enterprise pursuing profit and the State a polity raising revenue by taxation are not considerations relevant to their respective responsibilities to contribute to the damage sustained by the injured plaintiff.
Secondly, and no less fundamentally, the assumption which the trial judge made about the State's liability was an insufficient basis for deciding what order should be made in the contribution claim against the State. The making of assumptions and the acceptance of concessions for the purpose of litigation is sometimes an appropriate and efficient way to proceed. It may allow a court to sever irrelevant or immaterial questions to permit it to concentrate on those issues that are legally essential to the decision. However, this was not a case where such a shortcut could be taken. What was assumed was that the State had breached a duty of care which it owed the injured plaintiff. But neither the duty nor the breach was identified with any particularity. Without identifying the duty owed, and the breach or breaches committed, it was not, and is not, possible to identify the extent of that party's responsibility for the damage. Nor is it possible to say that that party should be exempted from liability despite it having breached a duty which it owed the plaintiff. (It is unnecessary to consider whether, or in what circumstances, it would be proper to exempt a negligent party from liability to contribute. It may be that the power to exempt is engaged only where the party to be exempted was not at fault but found liable for some form of strict liability. That question was not argued and need not be decided.)
The trial judge, therefore, made errors of law in concluding that James Hardie's claim for contribution from the State should be dismissed. Unless the order dismissing the claim for contribution could be supported on some other basis, James Hardie's appeal to the Court of Appeal should have been allowed. What orders should the Court of Appeal have made?
The appeal to the Court of Appeal was brought pursuant to s 32 of the Dust Diseases Tribunal Act 1989 (NSW)[9]. So far as is now relevant, s 32 then provided[10]:

[29]

The trial judge came to no final conclusion about whether the State owed a duty of care to the injured plaintiff and he did not decide what the scope or content of any such duty might be. Accordingly, it may be said that such findings of fact as he made about what the State did or did not do were not made with any definition of duty in mind. It follows that it may not be clear whether all the findings of fact that might bear upon any question of breach of duty were made at trial. If not all necessary findings about breach were made at trial, and if it became necessary to compare the respective degrees of responsibility of James Hardie and the State for the damage suffered by the injured plaintiff, the trial judge's reasons would have provided an insufficient factual platform for doing so. In those circumstances it may well have been appropriate for the Court of Appeal to allow the appeal and remit the matter to the Dust Diseases Tribunal for determination in accordance with the Court of Appeal's decision.
But the question whether the State owed a duty of care to the injured plaintiff is logically anterior to any question of apportionment of responsibility. As these reasons have sought to demonstrate, deciding whether the State was a tortfeasor, which if sued would have been liable to the injured plaintiff, precedes any decision about the kind of order to be made under s 5(2) of the Miscellaneous Provisions Act.
The State sought leave to file at the hearing of the appeal to this Court a notice of contention alleging, first, that the State had owed no duty of care to the injured plaintiff and, secondly, that the State had not breached any duty. Leave to rely on that notice was refused. Consideration of those contentions in this Court would have required extensive reference to a very large factual record. That is a task which, not having been performed in either of the courts below, it is not appropriate that this Court should undertake.
For the reasons given earlier, there may be some question about whether the Court of Appeal, and therefore this Court, could undertake a review of the factual question of breach. But it is clear that the Court of Appeal did have power to determine whether, on the facts found at trial, the State did owe the injured plaintiff a duty of care. That was a question of law. If the Court of Appeal had identified the errors of law which the trial judge made, it would then have been appropriate, and in this case necessary, for the Court of Appeal to go on to consider whether the claim for contribution should have failed on the ground, urged by the State, that the State owed no duty of care to the injured plaintiff. The Court of Appeal should now consider that question.
The appeal to this Court should be allowed with costs. The orders of the Court of Appeal made on 12 December 2001 should be set aside and the matter remitted to that Court for further hearing and determination.

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