BITUPAVE LTD v McMAHON & ORS

COUNSEL : J D Hislop QC and D Miller (Appellant) G Little (2nd and 3rd Respondents) SOLICITORS : Moray & Agnew (Appellant) McCulloch & Buggy (Respondents) CATCHWORDS : DUST DISEASES - Exposure of respondent to asbestos by successive employers - respondent contracted mesothelioma ; APPORTIONMENT OF LIABILITY - s5(2) Law Reform (Miscellaneous Provisions) Act 1946 - Comparison of parties' relative culpability - Consideration of relative blameworthiness and relevant causal potency - No medical basis to determine other than that all exposure was equally relevant - Exercise of apportionment task by trial judge - Whether entitled to have regard to factors indicating varying lengths, degree and knowledge of exposure by employers; Discussion of apportionment proposition in E M Baldwin & Son Pty Ltd v Plane (1999) Aust Torts Reports 91-499 DECISION : Dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40387/97 DDT 145/96 MASON P MEAGHER JA COLE AJA

JUDGMENT 1 MASON P: Mr Graham McMahon (the deceased) died on 3 November 1996 from mesothelioma. For much of his working life he had been exposed to asbestos. 2 Proceedings were commenced by the deceased in the Dust Diseases Tribunal against three employers. 3 The first defendant was NSW Associated Blue Metal Quarries Pty Limited (In Liquidation) ("Quarries"). Quarries employed the deceased:

• between 1962 and 1964 as a storeman. In this work, the deceased was exposed very occasionally to asbestos dust in the reception and distribution of stores containing asbestos material. In the judgment as to contribution issues it was held that, although in retrospect this period of employment was causally relevant, this exposure was not by the standards of the time associated with a foreseeable risk of injury. In that sense, the exposure was not tortious and Quarries was not, in respect of that period, "liable for the same damage" in the sense that for the purposes of s5 of the Law Reform (Miscellaneous Provisions) Act 1946 ;

• between 1964 and 1969 the deceased was employed as a fitter. He was exposed to and inhaled visibly high concentrations of asbestos dust while changing clutches and brake shoes on trucks and heavy quarrying machinery. This dust was generated in part by the assembly of replacement brake shoes in the workshop and in part by the process of removing worn shoes and clutches. Other work of a more occasional nature involved use by the deceased of asbestos rope and mittens. In the last two years of this period (1967-1969), the deceased specialised in maintaining the face machinery and was exposed to asbestos about once each month or so. 4 The third defendant was Boral Resources (Tasmania) Limited ("Boral"). That corporation employed the deceased as a fitter/welder between December 1971 and December 1972. For the first month, the deceased was regularly engaged in work with an asbestos powder he described as "bluey grey fibrous material". However this material was found, on the probabilities, not to be "blue asbestos". After this period the deceased's exposure to asbestos was very occasional. 5 The second defendant was the appellant Bitupave Limited ("Bitupave"). That corporation employed the deceased in various roles between December 1972 and April 1984, save for a period of two or three years in the early 1980s. It was found that:

• between 1972 and 1980 the deceased was employed as a fitter, mostly within a workshop containing six vehicle bays in which 20 men maintained various machines. Twenty percent of the work involved work upon asbestos clutches and brakes and during much of the time asbestos dust and fibre was generated. The deceased said in his evidence: "There would be some friction materials dealt with very, very regularly" . The fibrous remains of the old asbestos linings were removed by compressed air hoses and the workshop atmosphere was then quite dusty with asbestos fibre. In comparison with his exposure to asbestos as a fitter with Quarries, the deceased described this work as "not as big, but more frequent" . The work with Quarries was mostly outdoors whereas, with Bitupave, it was mostly within the confines of the workshop.

• for about one or two years before April 1984 the deceased had a collar and tie job. He performed administrative duties and supervised the work of the fitters. The exposure to asbestos was on those occasions when he was required to inspect and advise on complex work of the fitters and for that reason enter the workshop. It was found that, by 1980, Bitupave ought to have been aware of the risks associated with even very small concentrations of asbestos dust and fibre. Accordingly this exposure was held to be tortious. 6 The proceedings in the Tribunal were conducted before Judge Curtis in two stages. 7 The first stage was concerned solely with the liability of the defendants to the deceased. It does not appear to have been seriously in issue, save for a contention about foreseeability of harm prior to 1972. This contention was rejected. On 11 October 1996 a verdict was found against each defendant. Judge Curtis assessed damages in the sum of $450,190. 8 It was held that at the time the deceased entered the employ of the various defendants sufficient material was available to that defendant placing it on notice that exposure to asbestos dust per se was associated with a risk of damage to health. Since none of the defendants took any steps in response to that risk, liability was established. Judge Curtis concluded his judgment on liability in the following terms: I find that the plaintiff was exposed to a foreseeable risk of harm, that the defendants have each failed to obviate such risk, and that the plaintiff's injuries result from that exposure and the failure of the defendants to obviate the risk by practical means available to each defendant. The medical evidence indicates that it is not possible to determine which period of employment was the "causative" exposure, and in these circumstances, each of the three defendants must be held liable (see McGhee v National Coal Board (1973) 1 WLR 1, Minehan v Seltsam Ltd CA unreported 20 March 1996 and Wardlaw v Bonnington Castings Ltd [1956] AC 613. 9 The fact that the decision was handed down before this Court decided Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 ("Barnes") may explain the manner of expression of the ultimate determination. The verdict has never been challenged. It must therefore be taken to have established conclusively that each of the defendants was liable to the deceased. In stating the matter this way, I am not suggesting that it was not open to the learned primary judge to have reached this conclusion on the material before him. 10 The issue of contribution between the defendants pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946 was determined in the second stage and in the light of the evidence adduced in the earlier proceedings. On 1 November 1996 liability was apportioned among the defendants as to 20% by Quarries, 5% by Boral and 75% by Bitupave. 11 Bitupave appealed to this Court joining the deceased's executor as first respondent, Quarries as second respondent and Boral as third respondent. The liability of the respective defendants was not put in issue. Rather, the appeal challenged (1) the quantum of damages awarded to the deceased, and (2) the apportionment of 75% against Bitupave. 12 The appeal as to quantum was settled by consent order which reduced the damages awarded against the three defendants to $418,000. 13 These proceedings relate to Bitupave's challenge on the issue of apportionment. The first respondent was not represented and the second and third respondents had common representation. 14 In his judgment dealing with the cross claims Judge Curtis observed that, upon the medical evidence, it was not possible to determine which period of employment was the "causative" exposure and that all exposure comprised a material contribution to the disease. He found the facts relevant to the deceased's successive periods of employment as I have recounted them above. 15 His Honour referred to s5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 which relevantly provides that: In any proceedings for contribution under this section, the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage.

16 His Honour observed that the phrase "responsibility for the damage" requires a comparison of the parties' relative culpability in causing the damage. His Honour adopted the words of Clarke JA in Macquarie Pathology Service Pty Limited v Sullivan Court of Appeal unreported, 28 March 1995: The making of an apportionment (involves) a comparison of culpability and of the acts of the parties causing damage. To put it another way, the court is concerned with considering relative blameworthiness and the relevant causal potency of the negligence of each party.

Judge Curtis added that he understood Clarke JA to be using the word "blameworthiness" to refer to the extent of departure from a reasonable standard of care. 17 The primary submission of Bitupave at first instance and in this appeal was that liability should be apportioned equally between the defendants because there was no medical basis to determine other than that all exposure was equally relevant. 18 His Honour expressed his reasons for apportioning liability in the percentages indicated in the following terms: In a case such as the present relevant factors in relation to causal potency are: the concentration of asbestos particles; the nature of the asbestos material; the duration of exposure. Expectations generated by epidemiological studies of the latency period between the first exposure and emergence of the disease are, it seems to me, speculative in any instant case. Such studies do not assist in any understanding of the effect of further exposure upon the initial fibre burden. It may be the later exposure operates as the final straw. In relation to blameworthiness, such factors must include the extent of the departure from reasonable care in the light of the relative size of the defendant's business (as a measure of the resources and information available to each defendant) and the steadily increasing amount of knowledge in the public domain relating to the dangers of asbestos. … CONCLUSIONS The plaintiff was between 1964 and 1969 exposed to a modest concentration of asbestos fibre. During 1971 his exposure was, taking into account the gross exposure in the first month and the limited amount of subsequent exposure approximately equal in concentration to the period 1964 to 1969 on an annual basis. Between 1972 and 1980 the concentration of exposure again on an annual basis was twice that of either the first two periods. From 1980 to 1984 the concentration on an annual basis was perhaps half that of the periods 1964 to 1969 and 1971. On a concentration/duration basis it is convenient to weigh the exposures as follows: 1964 to 1969 seven parts 1971 one part 1972 to 1980 sixteen parts 1980 to 1984 one part On a reasonable measure of culpability it does seem apparent that between 1972 to 1984, the defendant Bitupave ignored more warnings than were offered to either of the earlier defendants and its culpability was therefore greater. As Mr Bartley has correctly submitted, the issues do not admit of a calculus of measurement and a broad brush is required to do justice between the parties. Doing the best I can I apportion liability as follows: 20 per cent Quarries Pty Limited 5 per cent Boral Resources (Tasmania) 75 per cent Bitupave Limited

19 This passage reveals his Honour assessing two separate factors: "causal potency" expressed on a "concentration/duration basis" and "blameworthiness" or "culpability". The conclusion on the first matter was expressed as a fraction of 25. The conclusion on the blameworthiness/culpability issue was expressed more broadly in the statement that Bitupave ignored more warnings than were offered to either of the earlier defendants with the result that its culpability was greater. 20 These two sets of findings were then taken into account in the final apportionment. The task is necessarily impressionistic. 21 Bitupave seeks to raise what I shall term various technical or mathematical challenges to the determination. It is convenient to address these first, before turning to the matter of principle.

(i) Failure to have regard to the 1962-1964 period of employment with Quarries. 22 The appellant submits that the apportionment of "seven parts" in the concentration/duration calculus is affected by error as to the period of Quarries' involvement, namely reference to the period commencing 1964, and not 1962. Bitupave points out that, in the earlier judgment dealing with the liability of the defendants (that given on 11 October 1996), his Honour mentioned 1962 as the starting period within which the deceased's exposure exceeded the "Dreesen standard" and the period during which the deceased was exposed to a foreseeable risk of harm. 23 The findings in the first judgment do not lie easily with the finding in the contribution judgment (on 1 November 1996) that the exposure between 1962 and 1964 was "not by the standards of the time associated with a foreseeable risk of injury". Nevertheless, his Honour was in my view entitled to revise his position and it is clear that he did so deliberately in the later judgment. The precise starting point was strictly irrelevant to the issues resolved as between the deceased on the one hand and the three defendants on the other in the first judgment. 24 By contrast, the CONCLUSIONS portion of the second judgment confines itself to exposure from 1964 onwards. That date, and not 1962, is mentioned twice. 25 As I have indicated above (par 3), the deceased's period of employment with Quarries was divided by his Honour into two phases: 1962-1964 and 1964-1969. And a reason was given for the distinction. Accordingly it is tolerably clear that his Honour deliberately chose the later date of 1964 as the starting period within which to apportion liability amongst the defendants on the concentration/duration basis. I do not consider this to be inconsistent with the acknowledgement that the exposure between 1962 and 1964 was "in retrospect, causally relevant", because, as his Honour explained, the exposure during this period was not tortious, with the consequence that Quarries was not, in respect of this period, "liable for the same damage".

(ii) Errors in relation to finding of employment by Bitupave between 1980 and 1984. 26 The facts were clear and undisputed. The deceased ceased employment with Bitupave on 31 December 1980. He rejoined the employ of Bitupave in a period described in the evidence as during the 1982-1983 financial year to 24 April 1984 (see AB 169). 27 Bitupave complains of two matters. 28 First, it is said that the case as pleaded confined the deceased's employment with Bitupave to the period ending 31 December 1980. This is undoubtedly correct, but there is every indication that the case was fought on the basis of the deceased's evidence, which was to the effect that there was a period of employment with Bitupave after 1980 (see eg AB 169). In these circumstances his Honour was not confined to the pleadings which could, if necessary, be amended in the Court of Appeal. 29 The second contention is that the allocation of "one part" for the measure of causal potency in relation to concentration/duration basis for the period 1980 to 1984 was in error because the evidence established that the deceased was not employed by Bitupave throughout the totality of this period. 30 I am not persuaded that this error crept into his Honour's reasoning. The mere fact that "one part" was allocated to the period described as "1980 to 1984" does not establish it, when it is remembered that the 25 part division is not based upon treating one year as the equivalent of one part. The real reason why only one part seems to have been allocated for this period appears to have been the finding that this was the time when the deceased was acting in the "collar and tie job" in which his exposure to asbestos was considerably less than it was when he had been a fitter on the shop floor.

(iii) No evidence to support finding that later exposure was the "final straw" 31 It was common ground that the statistical mean period for the latency of the disease was 37½ years. Before us, Bitupave argued that this matter had been overlooked by the trial judge. It was submitted that, had it been taken into account, then Bitupave would have received considerable credit in the apportionment exercise by reason of the fact that its period of employment of the deceased only commenced 16 years before the diagnosis of mesothelioma. I would reject this submission. His Honour adverts to the latency issue. It is a matter constantly raised in the Tribunal. 32 In the course of developing this submission, senior counsel for Bitupave argued that there was no evidence to support the following findings which are to be found within the first passage of his Honour's decision that has been set out above: Expectations generated by epidemiological studies of the latency period between the first exposure and emergence of the disease are, it seems to me, speculative in any instant case. Such studies do not assist in any understanding of the effect of further exposure upon the initial fibre burden. It may be the later exposure operates as the final straw.

33 I cannot accept this submission. In the first place it is not within the notice of appeal. Secondly, it is said to be based upon the oral evidence given in the instant proceedings and reproduced in the Appeal Book, overlooking the fact that the deceased tendered substantial swathes of expert evidence given in earlier proceedings (identified at AB 203-4), relying upon s25(3) of the Dust Diseases Tribunal Act 1989. None of that material was placed before us. Thirdly, the submission overlooks the fact that there was expert evidence, which his Honour was clearly entitled to accept. which supported the relevant findings (see AB 80-82).

(iv) No evidence to support finding that Bitupave ignored more warnings than the other defendants. 34 On the issue of comparable culpability, his Honour found that Bitupave ignored more warnings than were offered to either of the earlier defendant employers with the consequence that its culpability was therefore greater. It was submitted that this finding was unsupported by evidence. 35 Once again this submission is outside the notice of appeal. Furthermore, it misunderstands what I perceive to have been the clear intent of the primary judge in making this finding. The judge was not referring to specific warnings sheeted home to Bitupave. Rather, he was dealing with the state of information generally available and of which an employer knew or ought to have known. The initial judgment as to liability found that, at the time the deceased entered the employ of the various defendants from March 1962 onwards, sufficient material was available to each defendant placing it on notice that exposure to asbestos dust per se was associated with a risk of damage to health. As senior counsel for Bitupave accepted in argument before us, it would have been a notorious fact, undoubtedly established within the s25(3) materials, that a trickle of warnings had become something of a torrent during the later period of the deceased's "tortious employment" in the present case. This was the period in which the deceased was employed by Bitupave.

Was equal apportionment compelled by inability to identify the precise cause of the disease? 36 As indicated, Bitupave's principal submission was that his Honour ought to have apportioned liability equally because the medical evidence did not permit a finding that any one of the three defendant employers was more likely to have caused the disease than any other. Judge Curtis said at the beginning of the judgment on contribution that: Upon the medical evidence it was not possible to determine which period of employment was the "causative" exposure and all exposure comprised a material contribution to the disease. (AB 215. See also AB 217K-M)

37 None of the parties represented before us suggested that the logical consequence of this finding was that none of the defendants was liable to the deceased. The contrary had been found in the first judgment; and, as I have already indicated, the verdict effectively estops each employer from denying that it had materially contributed to the disease by its negligence. 38 Bitupave nevertheless submitted that his Honour's agnosticism as to causation required a conclusion that liability had to be apportioned equally. It was submitted that this Court's decision in E M Baldwin & Son Pty Ltd v Plane (1999) Aust Torts Reports ¶91-499 ("Plane") established this proposition. 39 I disagree. 40 There is a long stream of unchallenged authority which establishes, in the words of Hayne J in Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 at 29, that: No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of both parties ie, the degree to which each has departed from the standard of what is reasonable ( Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532), but that is not the only element to be considered. Regard must be had to the "relative importance of the acts of the parties in causing the damage" ( Podrebersek (1985) 59 ALR 529, at 533; 59 ALR 492 at 494), and it is "the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination".

41 The leading decision in this Court is the one relied upon by Judge Curtis, Macquarie Pathology Service Pty Ltd v Sullivan. See also Commercial Minerals Ltd v Harris [1999] NSWCA 94 at 38. These and other authorities establish that relative blameworthiness and relevant causal potency of the negligence of the various parties must be considered. This is exactly what the learned primary judge did. 42 In Plane the plaintiff was awarded damages for having contracted mesothelioma. Liability was apportioned 95% against his employer (Baldwin) and 5% against Jsekarb Pty Ltd, the company which supplied brake blocks containing asbestos to the employer during the latter period of the plaintiff's employment. The asbestos contained chrysotile which was contaminated by a form of asbestos known as tremolite. Expert evidence established that this was many times less potent than crocidolite asbestos which was a significant aspect of the plaintiff's work environment in his employment by Baldwin during the early phase of that employment. The findings of liability against each defendant were undisturbed on appeal to this Court. However, the apportionment was overturned by the majority (Beazley JA and Fitzgerald AJA). Equal apportionment was substituted. 43 Fitzgerald AJA (with whose reasons Beazley JA agreed) concluded that the evidence provided no rational basis for the division of causation between the earlier and later periods of the plaintiff's employment by Baldwin. He concluded (at 65, 650): Axiomatically, causation therefore cannot be proportionally allocated between his different work activities or the different amphibole asbestos fibres to which he was exposed. In these circumstances, I consider it impossible to establish that any apportionment is "just and equitable" other than an equal apportionment of responsibility for Mr Plane's damage between Baldwin and Jsekarb.

44 Meagher JA dissented on the apportionment issue. He noted the limited grounds upon which an apportionment order may be disturbed, and continued (at 65,622): His Honour the trial judge gave reasons for his apportionment, and these reasons seem to me far from unjustified. For example, his principal reason: "Firstly (sic), it is established by the consensus of expert evidence on both sides of the record that chrysotile asbestos is many times less potent than crocidolite asbestos." Indeed it is. Baldwins for many decades had exposed Mr Plane to the latter, more deadly, asbestos, whilst Jsekarb had at worst exposed Mr Plane to the second milder non-amphibolic form of asbestos, chrysotile, for a period of no more than 10-15 years. This reason alone should justify his Honour's order.

45 The appellant submits that Plane establishes, in effect, that so long as scientific knowledge cannot establish the aetiology of mesothelioma, liability must be apportioned equally amongst such defendants as have been found liable. 46 I do not accept that this proportion is correct, either in principle or as a description of the essential reasoning of the majority in Plane. 47 Nothing in Plane suggests any disagreement with well-established legal principle. As indicated, Wynbergen was cited as to the factors relevant to determining what apportionment is "just and equitable". 48 Fitzgerald AJA then proceeded to consider the issues of "relative culpabilities" and "causation" (at 65,649-50). It is clear that each factor was considered separately in the light of the specific facts of that case. The relative culpability of the two defendants was obviously regarded as roughly equal, taking all things into consideration. 49 In my view Plane should be read as turning upon its own facts, being facts which are distinguishable from the present case in two important respects. First, it would appear that Fitzgerald AJA was unable to find that there was any greater level of culpability as between the two defendants (the employer and the manufacturer). By contrast Judge Curtis made a finding (with which I agree) that Bitupave bore a higher level of culpability. 50 Secondly, Fitzgerald AJA made a finding of fact in Plane relevant to causation which was based upon the evidence of Professor Henderson given in that case (see at 65,649-65,650). It has not been suggested that there was any similar evidence in the present case. 51 Bitupave relied upon Broken Hill Pty Co Ltd v Duffy (1943) 16 ALJ. That decision also turns upon its own facts. Liability was apportioned equally because there was nothing to distinguish levels of responsibility or comparable fault. 52 Here the three defendants were found to have contributed materially to the disease in circumstances involving tortious responsibility. Non sequitur that the contribution was equal. The evidence showed that there were differences as to length of exposure, the nature of the employment and the state of knowledge about the dangers of asbestos. The primary judge was entitled to have regard to these factors in the "rough and ready" apportionment exercise (cf Duffy at 376 per Latham CJ). The manner in which he exercised the task has not been shown to have involved error. 53 The appeal should be dismissed with costs.

54 MEAGHER JA: In this matter I have had the advantage of reading in draft the judgments of the President and Cole AJA. Like them, I think the appeal should be dismissed with costs. 55 However, I do wish to say something about Jsekarb v Plane (1999) Aust TortsR 81-499. On the question of contribution between co-tortfeasors, that case bears a similarity to this case. In each case all defendants were liable to the plaintiff. That is, in each case, there was a joint judgment in the plaintiff's favour against all defendants (notwithstanding that they were several tortfeasors). That is, in each case, in contribution proceedings between the tortfeasors, the trial judge apportioned liability in different proportions, in Plane's Case, 95% against one defendant and 5% against the other, in the present case 20%, 5% and 75% against the three employers. In Plane's Case the trial judge's apportionment was set aside, in this case it will not be. 56 In the present case, the appellant relied strongly on Plane's Case in the Court of Appeal. If it were correctly decided, so the argument ran, this appeal must succeed. That is so. But Plane's Case is not correct. 57 No leave to re-argue it was formally sought, but the appeal was argued on the basis that its correctness was in issue. 58 That case was one in which the leading judgment was delivered by Fitzgerald JA, with whom unfortunately Beazley JA concurred. On the issue of contribution, I dissented. Without, I hope, being obdurate, I do not repent of my dissent. 59 Plane's Case was another mesothelioma case. There were two defendants, each of whom supplied the plaintiff with asbestos fibre. One of the defendants, Jsekarb Pty Limited, supplied material which was much more innocuous than that supplied by the other defendant, E. M. Baldwin & Sons Pty Limited. Almost the whole of the case at first instance, and most of the appeal, was taken up with a contention made on behalf of Jsekarb Pty Limited that it could not have caused the disease. This contribution was rejected by the trial judge, whose decision in that regard was affirmed unanimously on appeal. 60 In Plane's Case the trial judge, having accepted Professor Henderson's evidence as determinative of the liability of each of the defendants to the plaintiff, proceeded to examine the question of contribution between the defendants, ultimately deciding that Baldwin should bear 95% of the verdict and Jsekarb 5%. In reaching this conclusion his Honour was moved by a number of circumstances, principal amongst which were (a) that Baldwin's material was highly noxious, whereas Jsekarb's was as close to being innocuous as such material can be, and (b) the duration of Mr Plane's exposure to Baldwin's material was nearly 40 years, whereas the duration of this exposure to Jsekarb's material was only 10-15 years. It was this finding which the majority on appeal upset, and I still feel unable to see how they were justified in doing so. 61 Their reason for doing so is stated in two paragraphs of the judgment of Fitzgerald JA, which are as follows: In my opinion, the evidence provides no rational basis for the division of causation between the earlier and later periods of Mr Plane's employment by Baldwin, especially when regard is paid to the complex pathogenesis of mesothelioma explained by Professor Henderson. Axiomatically, causation therefore cannot be proportionally allocated between his different work activities or the different amphibole asbestos fibres to which he was exposed. In these circumstances, I consider it impossible to establish that any apportionment is "just and equitable" other than an equal apportionment of responsibility for mr Plane's damage between Baldwin and Jsekarb. 62 If words have meanings, there cannot be any doubt what his Honour meant viz. in that case no apportionment other than a 50%-50% apportionment was possible because the defendants were equally liable to the plaintiff. If that be correct, it must be a rule applicable to all cases when a plaintiff succeeds against two or more defendants, and there are many such cases. In other words, Fitzgerald JA was enunciating a supposed rule of law. 63 But this is to misconstrue the words of s.5(2) of the Law Reform (Miscellaneous Provisions Act) 1946, which is in the following terms: In any proceeding for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage.

64 Reference was made to a statement concerning the sub-section made by Clarke JA in Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 1995): The making of an apportionment (involves) a comparison of culpability and of the acts of the parties causing damage. To put it another way, the Court is concerned with considering relative blame worthiness and the relevant causal potency of the negligence of each party. 65 I am unable to think Clarke JA was intending to state that there were two distinct limbs or tests to the operation of the sub-section, or to deny the High Court injunction that all relevant circumstances are to be taken into consideration when adjudicating upon a claim for contribution. But even if he did, an enquiry into "relevant causal potency" is not concluded by a finding that each defendant is equally liable to the plaintiff. Different defendants may still have exposed the plaintiff to increased risks of exposure, and that is what happened both in Plane's Case and in the present case. The apportionment chosen by the trial judge in each case simply reflects that differentiation of risk. 66 COLE AJA: I have had the advantage of reading in draft the judgment of Mason P. I agree with his Honour's reasons for judgment and with the orders proposed, subject to the remarks below concerning E.M. Baldwin & Son Pty Ltd v Plane. 1999 Aust Torts Reports 81/499 67 Interpretations have been advanced regarding that portion of the judgment of Fitzgerald AJA in Plane, dealing with apportionment with which Beazley JA agreed, In Plane, as in this case, the primary judge apportioned damages otherwise than equally between multiple defendants each held to be liable to the plaintiff. In both Plane and this case, the primary judges had regard to the duration of exposure, the potency of the asbestos to which there was exposure and the intensity or burden of dust to which the plaintiffs were exposed in different periods of employment. To have regard to such matters is, in my view, consistent with established principles in determining apportionment amongst joint tortfeasors pursuant to s5(1) of the Law Reform (Miscellaneous Provisions) Act 1946. So much was established by the decision of this Court in Macquarie Pathology Services Pty Limited v Sutherland. Unreported CA 25 March 1995. The applicable principles were recently stated by Hayne J in Wynbergen v Hoyts Corporation Pty Limited 149 ALR at 29 where his Honour said: No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of both parties ie, the degree to which each has departed from the standard of what is reasonable ( Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529 at 532), but that is not the only element to be considered. Regard must be had to the 'relative importance of the act of the parties in causing the damage' ( Podrebersek ) (1985) 59 ALR 529, at 533) and it is 'the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination'.

68 In Plane, the majority set aside the apportionment made by the primary judge, Fitzgerald AJA having difficulty in understanding how the trial judge's apportionment "was, or could have been, arrived at". His Honour said: In my opinion, the evidence provides no rational basis for the division of causation between the earlier and later periods of Mr Plane's employment by Baldwin, especially when regard is paid to the complex pathogenesis of mesothelioma explained by Professor Henderson. Axiomatically, causation therefore cannot be proportionally allocated between his different work activities or the different amphibole asbestos fibres to which he was exposed. In these circumstances, I consider it impossible to establish that any apportionment is 'just and equitable' other than an equal apportionment of responsibility for Mr Plane's damage between Baldwin and Jsekarb.

69 The passage quoted was supported by a reference to Broken Hill Pty Limited v Duffy (1943) 16 ALJ 374 where the reporter noted Latham CJ as stating : It was impossible to reach any solution of the problem of contribution by reasoning of the degree of precision ordinarily associated with mathematical subjects. The Court had to determine, though in a rough and ready manner, whether one party was more responsible than the other for the damage, and, if so, to what extent. It as very difficult to say that either party was more responsible than the other for the accident, and, that being so, there was no reason why the rule contained in s1 of the Maritime Conventions Act, 1911 (Imp), that where it is impossible to assign the precise degree of fault the responsibility shall be apportioned equally, should not be applied to the similar provision of the Wrongs Act (SA) .

70 Mason P favours the view that Plane is to be read as indicating the view of Fitzgerald AJA that "the relative culpability of the two defendants was obviously regarded as roughly equal, taking all things into consideration." If Plane is so understood as being a factual determination by the Court of Appeal of approximate equality of culpability, the Court being entitled to reassess that culpability because the primary judge's assessment was plainly wrong, nothing more needs to be said regarding the decision. It is to be interpreted as being restricted to its particular facts. 71 However, in this and other cases before this Court, it has been submitted that the passage from Plane which I have quoted constitutes a statement of legal principle that in circumstances where successive employers have exposed a worker to asbestos over varying durations, with varying intensities of exposure, and with the asbestos being of varying degrees of toxicity so far as the advent of mesothelioma is concerned, and it being the present state of medical knowledge that it is not possible to determine as a matter of probability which exposure was the cause of the subsequent mesothelioma with the consequence that each exposure is regarded as a cause of the disease resulting in a judgment against each employer, on apportionment of liability as between successive employers such apportionment must be equal. If that were the correct interpretation of the passage from Plane that I have quoted, in my view it would not be a correct statement of law because it does not take into account either a comparison of the culpability "of the successive employers" or of the "relative importance of the acts of the successive employers causing the damage". It would not have regard to the length of exposure , the dust burden to which the plaintiff was exposed or the toxicity of the substance to which the plaintiff was exposed under differing employers. 72 Whilst there is much to be said in support of the view that the passage quoted does bear this interpretation, I am content to adopt the view of Mason P which limits Plane to a factual determination of apportionment by the Court of Appeal limited to the facts of the particular case, and not expressing any general principle of law. 73 I agree with the orders proposed by Mason P. * * * * * * * * *

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