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.