The appeals
30 Both Hardie and WG filed notices of appeal against the judgments against them. In their written and oral submissions in the appeals a number of the grounds of appeal in their notices of appeal were abandoned.
31 I will deal first with the grounds of appeal relied on by Hardie against the judgments obtained against it by Ampol and SRA.
32 Hardie's appeals; (i), against Ampol's judgment against it. Hardie had two separate arguments against its liability for contribution to Ampol.
33 The first argument was that since Curtis J had found that it was the plaintiff's exposure to asbestos fibre and dust while employed by SRA that caused him to contract mesothelioma and since Curtis J had made it clear in various places in his reasons that he did not consider that the plaintiff's employment with Ampol had been causative of the plaintiff's mesothelioma, therefore, to quote Hardie's written submission on this point, which it called the "the same damage" submission "the claim made by Ampol against ... Hardie could not succeed because ... Hardie could never have been held to be 'liable in respect of the same damage as Ampol, as ... required by s 5(1)(c) of the LRMP Act". It was said that the "damage" suffered by the plaintiff was caused by the SRA.
34 I do not think this argument can succeed in face of the two facts that (a) Ampol, on my reading of s 5, having been one of two tortfeasors against whom judgment had been recovered in respect of the same damage, was by the words of s 5 liable to the plaintiff in respect of the same damage as that for which SRA (the other tortfeasor) was liable to the plaintiff and (b) Curtis J held that both Hardie and WG would if sued by the plaintiff have been liable in respect of that damage. Since judgment was recovered by the plaintiff against Ampol in respect of that damage Ampol in my opinion was entitled to claim contribution from Hardie who would if sued have been liable in respect of that same damage.
35 The second argument was a repetition of the one put to Curtis J which had relied on observations in the passage set out above from the Bitumen and Oil Refineries case. The first proposition in this argument was that Curtis J had the power under s 5 in deciding what was just and equitable between the tortfeasors to examine the question whether Ampol had by unreasonably or negligently conducting itself in its defence of the plaintiff's claim incurred an excessive verdict. I think this proposition must be accepted. There was some discussion in the course of the oral submissions about whether the passage from Bitumen and Oil Refineries relied on for the proposition was part of the ratio of that case or had the lesser status of obiter dictum. I do not think it necessary to explore that question, because whatever its precedential status may be on strict analysis, the passage has been acted on by courts throughout Australia for so long now that if what it says is to be re-examined, that re-examination seems to me to be appropriately done only by the High Court. (In James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 Gaudron and Gummow JJ wrote joint reasons in which they appear to have accepted the passage as correct; they, with Callinan J, were of the majority in the decision; McHugh J agreed with Kirby J, they comprising the minority, with Kirby J also referring to the relevant passage without any apparent criticism.)
36 Hardie, after stating the mentioned first proposition, then submitted that (i) Ampol's concession before Maguire J that it had been the plaintiff's employer at relevant times and that it was in breach of its duty of care, were mistaken; as to employment because there was material before Curtis J, which, it was said, showed that another company than the defendant Ampol was the plaintiff's employer; (ii) that Ampol had been unreasonable or negligent in not contesting the medical case against it because had it done so it would have been found, as Curtis J found that the plaintiff's mesothelioma was not caused by Ampol and; (iii) it was therefore also improvident of Ampol to agree to share liability with SRA.
37 The argument that Ampol's concession of employment had been wrongly made was put in Hardie's written submissions; at first sight I found it hard to accept because it seemed very difficult to suppose that such a concession was made without careful consideration and without good reason by Ampol. However, Hardie pressed the submission, arguing that two questions and answers extracted from a set of interrogatories directed to and answered by Ampol and tendered in evidence, showed that the concession was wrong. Ampol took the submissions sufficiently seriously in its own written submissions to foreshadow an application to put further evidence before the court in the appeal to show that the company which employed the plaintiff had changed its name on a number of occasions but was the same company as Ampol the second defendant in the plaintiff's proceedings, under the name it bore at the time the proceedings began.
38 When the question first came up in the beginning of the appeal the court was inclined to think there was no need for the further evidence foreshadowed on behalf of Ampol. Both questions extracted from the interrogatories were limited to a period, called in the questions "the period", the meaning of which was undefined in and unascertainable from the questions. Presumably it was defined elsewhere in the set of interrogatories, but these were not in evidence. This court could not know what "the period" was about which questions were being asked. (As mentioned earlier, the plaintiff's claim against Ampol alleged two relevant periods, the earlier, when employed by a construction company engaged in building the Kurnell Oil Refinery and the later while he was employed by Ampol at that refinery.) Without any definition of "the period", the answers to the questions seemed to the court to be relevantly unintelligible and unable to carry any weight against the otherwise obvious inference from all the circumstances of the trial before Maguire J that Ampol's concession about the employment of the plaintiff was properly made.
39 Later in the hearing it was submitted for Hardie that it would be unfair for the court to act on the foregoing basis, as it had indicated it was proposing to do, because the question of employment, it was submitted, had been a real issue before Curtis J, and when the interrogatories were tendered, the judge and all counsel understood what the "period" was that was being spoken of, so that what seemed to this court to be unintelligible, was perfectly understood in the court below. Reference was made to discussion of the matter at Black Appeal Book 213 and following.
40 The court therefore heard the application by Ampol for the further evidence to be put before the court. This evidence showed, beyond any doubt whatsoever, that Ampol had been the employer of the plaintiff from 1955 until 1985. Hardie did not attempt to gainsay that position, but submitted that the evidence was of the kind that the court should not receive on appeal except on special grounds, and that no special grounds had been shown: cf s 75A(8) of the Supreme Court Act.
41 Counsel for Hardie was asked what prejudice would be suffered by his client if the evidence were admitted. He submitted that some expense had been incurred at the trial because the issue had not there been conclusively dealt with and matters had apparently been left on the basis of the intended interrogatories and further that Hardie might have conducted its case differently in respect of settlement. Having looked through, without trying to absorb in full, the transcript that followed the specific pages to which the court was referred at 213 and following, (it ran for another 483 pages) I cannot see that any real prejudice would be suffered.
42 So far as I can make out, and I repeat that I have not taken in every page, counsel for Ampol at the trial had responded to the tender of the interrogatories by saying that he would see to it that evidence was put before the court showing the identity of the plaintiff's employer with the company (Ampol) named as defendant in the plaintiff's proceedings. That is he was asserting that the position was as it later turned out to be when the appropriate evidence was put before this court in the application for reception of further evidence. I have not seen any further reference in the appeal papers to the matter after that stage of the hearing. My impression, which may be wrong, is that the hearing proceeded without any particular attention later being paid to the issue and with all counsel dealing with the case as if the right party were before the court. As well as the very lengthy oral submissions the transcription of which was in the appeal papers, written submissions were made available to the trial judge, but not to this court. In this court counsel told us that they did not think the written submissions would advance matters any further.
43 By the ordinary rules, which are well known, and the references to which appear in Ritchie's Supreme Court Procedure at pp 3068.44 and 3068.45, the evidence is not admissible but, as is noted at 3068.45 the ordinary rules are "merely guides". The rules guide but do not imprison the court. They will usually be followed unless there is very good reason against it, which Dixon CJ described as "some insistent demand of justice" (Wollongong Corporation v Cowan (1954) 93 CLR 435 at 444. In the circumstances of the present case it would seem quite unjust to me to permit this appeal to be decided on a factual basis known to everybody connected with the case to be false. I would therefore allow the further evidence.
44 That evidence being admitted, Hardie's point disappears. A further reason for finding against Hardie on the point is probably available even in the absence of the further evidence. It seems to me to be likely that it follows from the passage in the Bitumen and Oil Refineries case earlier set out that since the court hearing the contribution claim must accept as conclusive "the existence and the amount of the liability of the plaintiff claiming contribution" it must accept also matters which were essential to that liability. One of the matters essential to Ampol's liability was its employment of Mr Raynor.
45 As to the concession concerning breach of duty of care, Hardie's original criticism of this was contained in its written submissions and I am not sure whether it was relied on in the oral argument. In any event, it seems to me to have no substance. There has been a long and melancholy sequence of cases before the courts concerning asbestos, asbestosis and mesothelioma. The plaintiffs in many of these cases have been employees of large corporations. The sequence of cases has contributed to a continually growing accumulation of materials, in the early days of the litigation not so readily available or well understood as later, about both the dangers of asbestos and the extent of the knowledge of its distributors and of the manufacturers who used it, which makes readily understandable the decision of such a company as Ampol not to contest the breach of duty question. This is said not in criticism of Ampol, but in recognition of its good sense at the litigation stage. The concession seems to me to be completely justifiable and for Hardie to describe it as "unreasonable", "negligent" and "improvident" seems to me to be quite unwarranted.
46 Submission (ii) (see par 36 above), that Ampol could have defended the medical case against it so that it would have been held that Ampol did not cause the plaintiff's mesothelioma, was based upon Curtis J's causality finding to that effect.
47 There are several answers to Hardie's contention. One is that to me at any rate it is by no means obvious that it is right as a matter of fact. Curtis J rejected the same submission on the ground that there was strong authority supporting the position adopted by Ampol at the time of the hearing. I agree. Curtis J also referred to the continuing growth of medical expertise since the decision of Maguire J. This may have meant that judges had a somewhat different understanding of causality questions in mesothelioma cases in 1999 from their understanding in 1996, but that does not affect the soundness of Ampol's approach in 1996.
48 A more important answer for purposes of this appeal is that Curtis J was, in my respectful opinion, embarking upon an issue not open to him when he expressed and acted on the opinion that Ampol had not caused the plaintiff's mesothelioma. I refer again to the passage previously cited from Bitumen and Oil Refineries which, as I have indicated, should, in my opinion, be treated by this court as authoritative. I repeat that this passage makes it clear that under subs (2) of s 5 of the LRMPA the court deciding the application for contribution must accept an earlier judgment against the now plaintiff tortfeasor "as conclusive as to the existence and the amount of the liability of the plaintiff claiming contribution". In the remainder of the passage, following that observation, it was made equally clear that the court could investigate whether the amount for which the party claiming contribution had been made liable was excessive due to some default on that party's part. That investigation would be permissible, and, if required by the party resisting contribution, no doubt obligatory, because of the court's duty to decide upon what would "be just and equitable having regard to the extent of that person's responsibility for the damage".
49 It follows that although Curtis J was bound to consider the question whether Ampol had incurred an excessive judgment, he was also bound to do so on the footing that it had been adjudged liable for negligence against the plaintiff, which necessarily involved that the plaintiff Mr Raynor had suffered damage caused by Ampol's breach of duty.
50 This means that the only foothold that Hardie might have had, in my opinion, in this appeal, for arguing against the order that it contribute to Ampol, namely Curtis J's apparent finding that Ampol did not cause the plaintiff's damage, was not open to Curtis J to find, with the result that Hardie cannot base its argument upon that finding.
51 Submission (iii) (see par 36 above) must also fail for the same reasons as submission (ii).
52 Although therefore in my view Hardie's arguments in one sense all fail, they nevertheless also show, in my respectful opinion, that Curtis J in one respect approached the question of Ampol's contribution claim on a wrong footing: he dealt with it on the basis that Ampol had not caused the plaintiff's damage, when, in my opinion, he should have approached it on the basis that Ampol did cause, in the sense of materially contribute to, the plaintiff's damage. It was against that background that he had to consider Ampol's contribution claim against Hardie and WG, each of whom he had found, in my opinion correctly, was an "other tortfeasor" within par (c) of s 5(1). In considering the comparative responsibility of the three tortfeasors, Ampol, Hardie and WG for the same damage and then deciding what amount it would be just and equitable for Hardie and WG to contribute to Ampol, it was then open to the trial judge to take into account his view of the extent of Ampol's material contribution to Mr Raynor's mesothelioma in comparison to that of the other tortfeasors. This is what Curtis J did in James Hardie & Coy Pty Ltd v Roberts and which this court approved of on appeal: (1999) 47 NSWLR 425. In my respectful opinion Curtis J should have done the same in the present case.
53 I will consider the consequences of my conclusion later in these reasons.
54 Hardie's appeals; (ii) against SRA's judgment against it. The only ground relied on by Hardie against SRA's judgment against it was the first ground in its notice of appeal. This had two parts. The first said that the trial judge erred in finding that any conduct by Hardie caused the mesothelioma suffered by the plaintiff while he was employed at the SRA and that the error consisted in the misapplication of the legal principles established in a number of cases. The second said that the trial judge failed to consider certain evidence in the case.
55 The only rights of appeal against decisions of the Dust Diseases Tribunal are those permitted by s 32 of its Act. The only presently relevant ground in that section is dissatisfaction in point of law. Thus the ground of appeal that the judge's method of deciding the causation question was wrong, is only available if it means that his method was wrong in point of law.
56 I sought to explain my understanding of the way in which this court approaches appeals limited to error in point of law in Wallaby Grip Ltd v Peirce [2000] NSWCA 299, 27 October 2000, pars 6-10. In the present case I adopt the same approach.
57 In my opinion, there was ample evidence before Curtis J upon which to find, on the probabilities, that Hardie had materially contributed to the plaintiff's contraction of mesothelioma. That part of Hardie's submission which criticised the method by which the trial judge arrived at his conclusion analysed the method which the trial judge said he had used in reaching that conclusion. In this particular case any normative factor in reaching that conclusion was of little significance. No argument concerning such a factor was put to the court. Hardie's analysis of the trial judge's method did not, so far as I could see, show any error in point of law or misunderstanding of any legal rule by the trial judge. In other words, the argument on this point seems to be of a factual kind in the sense in which "factual" is used in contrast to arguments involving a "point of law".
58 The other branch of the present argument, that the trial judge failed to consider certain evidence in the case, in my opinion fails for the same reason, once it is accepted that there was evidence upon which the trial judge could reach the conclusion that he did. Further, I do not accept that the trial judge failed to consider the evidence to which Hardie referred. It seems to me that a better way of describing what the trial judge did was that he took a different view of the evidence from that which Hardie was submitting he should take.
59 Finally, in regard to this argument, it was submitted by SRA that the method used by Curtis J was substantially the same as that approved by this court in James Hardie & Coy Pty Ltd v Roberts. This seems to me to be a sound submission.
60 WG's appeals. WG's appeals against the judgments for SRA and Ampol against it raised the same points as Hardie's appeals had done, and my conclusions are the same.
61 The judgments in favour of Ampol. The only point of the many decided by Curtis J in which legal error has in my opinion been shown is his assessment of Ampol's culpability, compared with that of Hardie and WG, on the basis that Ampol had not caused (materially contributed to) the plaintiff's contraction of mesothelioma when, in my opinion, he was bound to make the assessment on the footing that Ampol had materially contributed to it.
62 Consequences of my opinion. Section 75A of the Supreme Court Act applies to an appeal to this court, subject to subss (2) and (3), which are not relevant to an appeal from the Dust Diseases Tribunal. Section 75A(10) empowers the court to "make any finding ..., give any judgment, make any order ... which ought to have been given or made or which the nature of the case requires". Section 32(2) of the Dust Diseases Tribunal Act says that the Supreme Court, on the hearing of an appeal under s 32 "may ... remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court sees fit".
63 If s 32(2) were looked at by itself, it might be arguable that the Supreme Court's power to "make such other order" was ancillary to the power to remit the matter the subject of the appeal to the Tribunal, so that the "make such other order" power was not free standing. However, I know of no reason why s 75A(10) of the Supreme Court Act and s 32(2) of the Dust Diseases Tribunal Act should not be read together, and doing that, it seems to me that this court is empowered to make the orders that should have been made below, using substantially the same premises as Curtis J arrived at on the facts, but against the necessary background I have spoken of, and should exercise that power, if the case seems sufficiently clear, as to me it does, in order to avoid sending this matter back for what might turn out to be another inordinately lengthy hearing at first instance.
64 In my opinion in view of the way the separate cases were conducted before Curtis J, and in light of the facts found by him, his finding that in SRA's case against Hardie and WG one-fifth of the liability should be apportioned to SRA and two-fifths to each of Hardie and WG was sound, and should not be interfered with; further, it seems to me that this apportionment should be made in respect of the $77,250 which SRA paid to Mr Raynor so that SRA should have judgment in its action against Hardie in the sum of $30,900 and in its action against WG for the same amount.
65 In regard to Ampol's actions, once the basic background fact is taken into account that Ampol caused (materially contributed to) Mr Raynor's mesothelioma, the further fact that SRA and Ampol agreed between themselves to share equally their liability to pay damages to Mr Raynor assumes greater importance than Curtis J was able to give it on the basis of his finding about causality. It is true that the agreement between SRA and Ampol has no binding or conclusive force so far as the other tortfeasors are concerned, but it seems to me to be an evidentiary fact of considerable weight. These after all were the two parties most concerned with the apportionment of responsibility between themselves. No reason was suggested why either of them would make other than a practicable assessment of its situation as against the other.
66 In the circumstances it seems to me that the same general factors that led Curtis J to apportion one-fifth of the liability to SRA as against Hardie and WG lead to the conclusion that the position must be much the same in regard to Ampol.