Amaca Pty Ltd (Under NSW Administered Winding Up) (ACN 000 035 512) v Pfeiffer - [2017] SASCFC 157

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) (ACN 000 035 512) v PFEIFFER & ORS
[2017] SASCFC 157
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)
28 November 2017
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
The appellant, third respondent and fifth respondent appeal from a judge of the District Court on issues concerning the apportionment of liability for damages between several tortfeasors in a dust disease case.
The first respondent, Mr Pfeiffer, was exposed to asbestos over two separate periods in the 1970s. Mr Pfeiffer subsequently contracted mesothelioma before passing away. Exposure period 1 occurred in the early 1970s while the first respondent was using asbestos sheets manufactured by the appellant (formerly James Hardie & Coy Pty Ltd), for construction of a house in Katherine. Period 2 occurred between 1977 and 1978 while the first respondent was employed by the second respondent (formerly World Services). Mr Pfeiffer sought damages from the appellant for his exposure in period 1, and from the second respondent for his exposure in period 2.
In the District Court the appellant and the second respondent filed several third party contribution notices, seeking contribution from other parties. Such contribution was limited to the plaintiff’s exposure in period 2, as it was agreed that the only tortfeasor in period 1 was the appellant. The fourth respondent owned the premises where the appellant worked during period 2. The appellant and the fifth respondent, in partnership, manufactured pre-formed asbestos insulation sections. The third respondent supplied this partnership product, as well as other asbestos products such as rope, tape and paste, to the fourth respondent for installation at their plant where the appellant worked.
The appellant appeals on the basis that the judge erred in rejecting the evidence of Mr Kottek concerning the causal potency of the two periods of exposure and further that the judge erred in failing to take into account the culpability of the third parties in relation to the period 2 exposure, when determining apportionment between the appellant and second respondent.
The third respondent cross appeals on the ground that the judge erred in finding that the plaintiff was exposed to less asbestos products than the products manufactured and supplied by the partnership.
The fifth respondent cross appeals on the grounds that firstly, the evidence did not permit a finding of a causal relationship between exposure to the partnership product and Mr Pfeiffer’s contraction of mesothelioma. Secondly, that the judge erred in assessing the respective culpabilities of the parties responsible for the period 2 exposure, pursuant to an improper construction of s 8(2) of the Dust Diseases Act 2005 (SA).
Whether upon the proper construction of section 8(2) of the Dust Diseases Act, the imputed knowledge referred to therein applies to actions seeking contribution from co-tortfeasors.
The net result was that the apportionment of liability was:
1. 62.5% - appellant
2. 10% - second respondent
3. 17.5% - third respondent
4. 7.5% - fourth respondent
5. 2.5% - fifth respondent
Held, per Stanley J (Kourakis CJ and Peek J agreeing):
1. The learned trial judge erred in his construction and application of section 8(2) of the Dust Diseases Act 2005 (SA). The section should apply so as to impute co-tortfeasors with the knowledge described in the section, even in proceedings seeking contribution. Nonetheless in exercising the discretion afresh, and imputing SFS and Orica with the presumption of knowledge set out in section 8(2), I would not interfere with the judge’s ultimate conclusion (at [84], [87]).
2. Appeal dismissed (at [90]).
3. Cross-appeals dismissed (at [90]).
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6, s 6(5); Dust Diseases Act 2005 (SA) s 3, s 4, s 8, s 8(2), s 9; Wrongs Act 1936 (SA) s 25, s 26, referred to.
Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Joslyn v Berryman [2003] HCA 34; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, discussed.
Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65; Gett v Tabet [2009] NSWCA 76; Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Pty Ltd [2001] NSWCA 461; Merryweather v Nixan (1799) 101 ER 1337; Genders v Government Insurance Office of New South Wales (1959) 102 CLR 363; Hahn v Conley (1971) 126 CLR 276; Robinson Helicopter Company Inc v McDermott & Ors [2016] HCA 22; IW v City of Perth (1997) 191 CLR 1; Commissioner of Taxation v Comber (1986) 10 FCR 88; R v Young [1999] NSWCCA 166; Henderson v Amadio (No. 1) (1995) 62 FCR 1, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"in relation to"

AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) (ACN 000 035 512) v PFEIFFER & ORS
[2017] SASCFC 157
Full Court: Kourakis CJ, Peek and Stanley JJ

KOURAKIS CJ: I gratefully adopt Stanley J’s summary of the facts, the findings of the Judge and the arguments of the parties.
I would dismiss ground 1 of Amaca’s appeal for the reasons given by Stanley J. The Judge did not err in rejecting the evidence of Mr Kottek in the sense of declining to accept his opinion on the relative causal responsibility of the two periods of exposure. I mention, however, that the evidence of Professor Reynolds referred to at [37] of the Judge’s reasons is not an opinion on the relative causal potency of the exposures; it is evidence only that both exposures made a material contribution to the contraction of mesothelioma by Mr Pfeiffer. Be that as it may, Amaca has not complained that the Judge erred in assessing the relative causal potency of the two periods other than by rejecting Mr Kottek. Moreover, I am not persuaded that the Judge’s attribution of responsibility was wrong despite what appears to be a misunderstanding of Professor Reynolds’ evidence.
I would dismiss ground 2 of Amaca’s appeal. Amaca did not claim contribution against BAE. Amaca’s submissions ignore the fundamental point that adjudications are made as between the parties to an action on their respective claims and defences, and in this case for their respective contributions to the contraction of mesothelioma by Mr Pfeiffer. Instead, Amaca argued that the contribution of SFS as against Amaca should have been greater because SFS’s wrongdoing was contributed to by BAE and Orica. Having failed to make a contribution claim against BAE, Amaca cannot claim a level of contribution from SFS on the basis that it should be fixed according to the relatively greater culpability of BAE.
I would dismiss the cross appeal brought by BAE who, by reason of their knowledge of the risks of asbestos, bore a greater culpability than SFS, for the reasons given by Stanley J. I would also dismiss CSR’s complaint that the Judge erred in his finding of fact that that CSR’s products had materially contributed to Mr Pfeiffer’s contraction of mesothelioma.
The other aspect of CSR’s cross-appeal, the proper construction of s 8(2) of the Dust Diseases Act 2005 (SA) (the DDA) is more difficult. It is not immediately obvious why Parliament should limit the presumption in s 8(1) of the DDA to dust disease actions brought by a plaintiff in a personal injury action but enact s 8(2) of the DDA more widely so that it would apply to the parties to related contribution claims and perhaps even to other actions, such as in nuisance or other claims for property damages. If words limiting the operation of s 8(2) of the DDA to dust disease claims are implied because of that section’s context, then it is not a big step to limit that section to actions by a plaintiff in the same way that s 8(1) of the DDA is limited. On reflection, however, the statutory intention appears to be that as between defendants on contribution claims causation must be proved, hence s 8(1) of the DDA limits the presumption as to causation to actions by a plaintiff. However, once causation is proved, s 8(2) of the DDA places defendants on a playing field levelled by statute as to their respective knowledge. If a higher degree of actual knowledge is proved that will have some effect on the extent of a defendant’s relative responsibility for the injury. However, a defendant’s relative capacity to avert the risk and the steps it did or did not take will generally have a greater effect. The Judge was therefore wrong not to apply s 8(2) of the DDA. Having erred in law, the Judge’s exercise of his discretion has miscarried. However, in reassessing CSR’s contribution and applying the statutory presumption, I would not make any lesser apportionment than the Judge for the reasons given by Stanley J at [86]-[88].
PEEK J: I would dismiss the appeal and the cross-appeals. I agree with the reasons of Stanley J.
STANLEY J.
Introduction
Desmond Arthur Pfeiffer contracted asbestos induced mesothelioma as a result of two separate periods of exposure to asbestos. He was first exposed to asbestos cement products, manufactured by James Hardie & Coy Pty Ltd (Amaca), while undertaking construction work at his residence in Katherine, Northern Territory, in the early 1970s (period 1). He was subsequently exposed to asbestos insulation products while working for World Services Pty Ltd (SFS) at Osborne between 1977 and 1978 (period 2).
In proceedings in the District Court Mr Pfeiffer sued Amaca for his exposure in period 1. He sued SFS for his exposure in period 2. Mr Pfeiffer obtained judgment against Amaca and SFS in an amount of $630,000 plus costs in respect of both periods of exposure.
In the District Court proceedings both Amaca and SFS made claims against each other for contribution. SFS sought contribution from Wallaby Grip (BAE) Pty Ltd (In Liq) (BAE) and Orica Ltd (Orica). Orica owned and occupied the premises in which Mr Pfeiffer was working for SFS. The insulation products used by Mr Pfeiffer included asbestos pipe sections manufactured by James Hardie in partnership with CSR Ltd (CSR). The pipe sections were supplied by the partnership to BAE. BAE in turn supplied the pipe sections to Orica for installation at its premises at Osborne.
Orica issued claims for contribution against BAE and SFS. BAE made claims for contribution against Orica and Amaca. Amaca claimed contribution against CSR in respect of the insulation products they manufactured in partnership which were supplied to BAE and ultimately were installed by BAE at Orica’s premises at Osborne. Amaca and Orica also made claims for contribution against each other in respect of period 2.
A Judge of the District Court determined Amaca’s liability for the exposure in period 1 was 60 per cent and SFS’s liability in respect of period 2 was 40 per cent. The Judge determined contribution in respect of period 2: 10 per cent to SFS, 17.5 per cent to BAE, 7.5 per cent to Orica, 2.5 per cent to Amaca and 2.5 per cent to CSR.
That resulted in an overall apportionment of liability between the respective parties for the judgment sum as follows:
Amaca 62.5 per cent;
BAE 17.5 per cent;
SFS 10 per cent;
Orica 7.5 per cent;
CSR 2.5 per cent.
Amaca appeals the apportionment. There are cross-appeals from BAE and CSR.
The judge’s findings and reasons
The judge held that the claims for contributions were to be decided by applying s 6 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) (Law Reform Act).
The judge made the following undisputed findings of fact:
·Mr Pfeiffer built a house in Katherine using James Hardie asbestos cement products in the early 1970s. The products were cut manually using asbestos cement cutters and an angle grinder. This caused the release of significant amounts of dust which Mr Pfeiffer inhaled because he was not wearing a mask;[1]
[1]    Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [12]–[17].
·Mr Pfeiffer was employed by SFS to work at Orica’s plant at Osborne for 10 months in 1977 and 1978. At the plant was a network of pipes including steam pipes which were insulated with asbestos lagging which Mr Pfeiffer removed. The lagging was both curved halves as well as asbestos rope, tape and paste. Removing the lagging was very dusty work. The rope was unwound at a point when it was in poor condition being brittle and emitting a lot of dust;[2]
[2]    Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [19]–[31].
·James Hardie was the sole supplier of asbestos cement products used in the Northern Territory at the time of Mr Pfeiffer’s use of the products and at that time was aware that the inhalation of asbestos could cause lung cancer and mesothelioma;[3]
[3]    Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [51]–[54].
·The asbestos cement sheets used in the Northern Territory were manufactured in Western Australia and details of the product profile at the time of Mr Pfeiffer’s exposure revealed the presence of 11 per cent or 12 per cent asbestos within the sheets of which approximately 20 per cent was a particular type of asbestos, amosite;[4]
·The asbestos insulation products used by Orica at Osborne included pipe sections manufactured and supplied by James Hardie and CSR in partnership and contained amosite;[5]
·BAE supplied Orica with asbestos rope, asbestos tape, asbestos cloth, pre-formed asbestos lagging and asbestos pipe[6] at a time when it knew that asbestos inhalation could cause diseases including terminal cancer;[7] and
·The duration of the exposure in period 2 was slightly longer than the duration of the exposure in period 1.[8]
[4]    Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [54]–[58].
[5]    Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [60] and [62].
[6]    It is presumed that asbestos pipe refers to the pre-formed sectional asbestos insulation pipe. BAE also aupplied asbestos paste.
[7]    Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [63]–[64].
[8]    Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [81]–[82].
The judge made no finding concerning intensity of exposure.
The judge heard evidence from an occupational and environmental health consultant, Mr Michael Kottek, who was called by the plaintiff. Mr Kottek gave evidence that in his opinion the majority of Mr Pfeiffer’s exposure to asbestos occurred when he was working for SFS. He considered that about 10 per cent of Mr Pfeiffer’s exposure occurred at Katherine and the balance was attributable to his exposure at Orica’s plant at Osborne. In making that assessment he was influenced by his view that Mr Pfeiffer’s exposure in Katherine was primarily or entirely to chrysotile asbestos, while the bulk of his exposure in period 2 was to amosite asbestos. The toxicity of amosite is about 40 times greater than chrysotile in causing mesothelioma.
The judge also heard evidence from Professor Paul Reynolds, a senior consultant physician specialising in respiratory medicine. He had examined Mr Pfeiffer. He considered that on each occasion Mr Pfeiffer inhaled asbestos dust, that inhalation made a material contribution to his development of mesothelioma. He agreed that if the asbestos to which Mr Pfeiffer was exposed at Katherine and at Osborne both contained amosite, the development of mesothelioma would have been attributable to both exposures. Professor Reynolds’ evidence did not address toxicity.
The judge did not find Mr Kottek’s evidence of attribution persuasive. He considered it amounted to little more than a calculated guess based on erroneous assumptions about the composition of the asbestos to which Mr Pfeiffer was exposed.[9] He found that the asbestos with which Mr Pfeiffer worked at Katherine contained amosite. He held that the asbestos to which Mr Pfeiffer was exposed while working for SFS also contained amosite. The judge accepted the evidence of Professor Reynolds in respect of attribution. On that basis, he concluded that the exposures in periods 1 and 2 were almost equally to blame causally for the contraction of mesothelioma by Mr Pfeiffer, with perhaps period 2 being the greater contributor by a small margin.
[9] Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [83].
The judge turned to an assessment of the respective culpability of Amaca and SFS. He found the culpability of Amaca was worse. Comparing Amaca to SFS, he said of the latter entity:[10]
On the other, I have an entity that had [sic] duty of care as an employer to provide the plaintiff with a safe working environment. Whilst there is no evidence that establishes that it knew about the dangers of exposure to asbestos, given the state of knowledge in the 1970s about those dangers, it could have and should have made enquiries about the risks that working with asbestos entailed. It was a sophisticated, well-resourced entity such that its lack of knowledge about the danger of asbestos was inexcusable. It should have taken appropriate protective measures to minimise the harm to which its employees were exposed. Its departure from the standard of care that would be expected of the reasonable person was very significant.
In my view the culpability of James Hardie is worse. It created the product. It supplied the product to consumers of all levels of sophistication including individuals, like the plaintiff, knowing that it was hazardous. Yet it did not provide any information about the hazards that it presented. Its indifference to the health and safety of those who it knew would be using products that it manufactured and supplied and which it knew were dangerous was an extreme departure from the standard of care that would be expected of the reasonable person.
[10] Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [93]-[94].
For these reasons, the judge apportioned liability as between Amaca and SFS at 60 per cent to Amaca and 40 per cent to SFS.
The judge next turned to an assessment of the respective contributions of the third parties, BAE, Orica and CSR as well as Amaca, for the 40 per cent apportionment imposed upon SFS for period 2.
The judge found that between September 1964 and June 1974 a partnership between James Hardie and CSR had manufactured sections of insulation pipe that contained asbestos referred to as pre-formed sectional lagging. They were described by the judge as “rigid sections of insulation that comprised of curved halves that were tied or strapped into place”. They were procured by BAE and supplied to Orica to be used in its Osborne plant. In addition to the pre-formed sectional lagging, other products containing asbestos, such as asbestos ropes and tape which were wrapped around pipes and valves, as well as asbestos paste, were used to lag pipes at the Osborne plant. The judge found that BAE was a major supplier of the asbestos products used in the Osborne plant in the period 1966 to 1978 and that the partnership was a substantial supplier of the insulation pipes that contained asbestos used in the Osborne plant in the same period. The judge found that, while employed by SFS at Osborne, Mr Pfeiffer was exposed to asbestos products manufactured and supplied by both the James Hardie / CSR partnership and BAE. He found that, as BAE had manufactured and supplied more of the asbestos products than the partnership, Mr Pfeiffer’s exposure to BAE asbestos products was greater than his exposure to partnership products.

The judge found that Mr Pfeiffer was exposed to asbestos dust as a result of using asbestos blankets that SFS provided to him while working at the Osborne plant. He found that exposure was causally related to his contraction of mesothelioma. The judge found SFS was responsible for all of Mr Pfeiffer’s exposure to asbestos when working for it at the Osborne plant and Orica was responsible for nearly all of it.[11]
[11] Pfeiffer v Amaca P/L (Under New Administered Winding up) & Ors [2016] SADC 101 at [115].
When he turned to consider the culpability of the respective parties concerned with period 2, notwithstanding the finding that SFS and Orica had the greater causal responsibility, the judge considered the respective departures by the James Hardie / CSR Partnership and BAE from the standard of care to be expected of a reasonable person were greater than the departures of SFS and Orica. The judge made this finding rejecting the submission that SFS and Orica were to be imputed with knowledge that the exposure of Mr Pfeiffer to asbestos dust could result in a dust disease pursuant to s 8(2) of the Dust Diseases Act 2005 (SA) (the DDA). Given that the James Hardie / CSR partnership supplied less of the asbestos product to which Mr Pfeiffer was exposed than BAE, and that the additional asbestos to which he was exposed supplied by BAE, included asbestos rope, tape and paste, BAE had to bear a greater apportionment of liability.
The judge also found that by reason of the partnership, Amaca and CSR were equally responsible for the manufacture and supply of the relevant asbestos.
However, the judge considered that SFS as a large employer with particular expertise in working in plant maintenance and pipe work, being ultimately responsible for assigning duties to Mr Pfeiffer, and being solely responsible for his exposure by the use of asbestos blankets, resulted in SFS bearing a greater responsibility than Orica in the apportionment.
Grounds of appeal
There are two grounds of appeal by Amaca.
First, Amaca submits that the judge erred in rejecting the evidence of Mr Kottek concerning the causal potency of the two periods of exposure.
Second, Amaca submits the judge erred in adjusting the liabilities between periods 1 and 2 solely on the basis of Amaca’s culpability compared to SFS. In doing so the judge disregarded the culpability of all of the parties responsible for the exposure in period 2.
Grounds of cross-appeal
BAE
BAE submits that the judge erred in finding that Mr Pfeiffer was exposed to less asbestos products manufactured and supplied by the James Hardie / CSR partnership than asbestos products manufactured and supplied by BAE.
CSR
CSR submits that the evidence did not permit a finding that Mr Pfeiffer was exposed to asbestos products produced by the James Hardie / CSR partnership during his employment with SFS at the Osborne plant. If the Court upholds that finding, CSR submits that the evidence did not establish any causal relationship between such exposure and the contraction of mesothelioma by Mr Pfeiffer. In the further alternative, CSR submits that the Judge erred in assessing the respective culpabilities of the parties responsible in period 2 for the purposes of apportionment, by failing to apply the presumption of knowledge that the exposure of Mr Pfeiffer to asbestos dust could result in a dust disease pursuant to s 8(2) of the DDA.
Approach on appeal from an apportionment of liability
Section 6(5) of the Law Reform Act provides that in determining a claim for contribution against a third party who is also liable in damages for the same harm as the claimant, the contribution is to be an amount that is fair and equitable having regard to the extent of each contributory’s responsibility for the harm. The statutory test reflects the terms of the test enshrined in the predecessor provision, namely, s 26 of the Wrongs Act 1936 (SA) (the Wrongs Act) which provided that, in proceedings for contribution, the amount of the contribution recoverable 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” in respect of which the contribution is claimed.[12]
[12] There was a question of whether the applicable legislation was the Wrongs Act or the Law Reform Act. However, as the relevant terms of the applicable provisions are substantially the same, it is unnecessary to decide this question.
In Podrebersek v Australian Iron & Steel Pty Ltd,[13] the High Court said:[14]
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
[citations omitted.]
[13] [1985] HCA 34, (1985) 59 ALJR 492.
[14] [1985] HCA 34 at [10], (1985) 59 ALJR 492 at 494.
These principles were reaffirmed in Wynbergen v Hoyts Corporation Pty Ltd.[15]
[15] (1997) 72 ALJR 65 at 68.
In considering the approach to be taken on appellate review of such a finding, the High Court in Podrebersek said:[16]
A finding on a question of apportionment is a finding upon a “question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds”: British Fame (Owners) v Macgregor (Owners) (1943) AC 197, at p 201. Such a finding, if made by a judge, is not lightly reviewed.
[citation omitted.]
[16] [1985] HCA 34 at [8], (1985) 59 ALJR 492 at 493-494.
The reason why such a finding is not lightly reviewed was explained by Kirby J in Joslyn v Berryman,[17] who identified three factors which justify restraint in disturbing decisions on, inter alia, apportionment, namely:[18]
(1)the issue of apportionment is essentially a factual question and therefore the primary judge will have relevant advantages over an appellate court that will often be critical for the determination of the issue;[19]
(2)the apportionment legislation confers upon the court a power to apportion the recoverable damages “to such extent” as the court determines “having regard to” a consideration expressed in very general language (“the extent of each contributory’s responsibility for the harm”) that evokes the exercise of a quasi-discretionary judgment upon which different minds may readily come to different conclusions; and
(3)the broad criteria by which such decisions are made at trial (including by reference to what the court thinks “fair and equitable” in the case) make it difficult, absent a demonstrated mistake of law or fact to establish the kind of error that, alone, will authorise an appellate court to set aside the decision and any apportionment of the trial judge and to substitute a different decision or apportionment on appeal.
[17] [2003] HCA 34.
[18] [2003] HCA 34 at [119].
[19] For a consideration of the advantages a trial judge enjoys over an appellate court, see the analysis in Gett v Tabet [2009] NSWCA 76 at [10]-[23] in the joint reasons of Allsop P, Beazley and Basten JJA.
Accordingly, to set aside an apportionment of liability made under s 6 or s 26, it must be shown that the failure to properly exercise the discretion involved an apportionment which was unreasonable or unjust.[20]
[20] Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Pty Ltd [2001] NSWCA 461 at [60] and [172].
Amaca’s appeal
Ground 1 is based on the judge’s rejection of the evidence of Mr Kottek concerning the respective contributions each period made to Mr Pfeiffer’s contraction of mesothelioma. Mr Kottek considered that the great bulk of Mr Pfeiffer’s exposure to asbestos occurred in period 2. The judge also found that Mr Kottek’s opinion on attribution was founded upon an assumption as to the composition of the asbestos to which Mr Pfeiffer had been exposed in each period. Mr Kottek understood that Mr Pfeiffer’s exposure when cutting asbestos sheets in Katherine during period 1 was either entirely or primarily to chrysotile asbestos while his exposure in period 2 was to amosite asbestos. The significance of this assumption is that amosite is a much more toxic form of asbestos than chrysotile.
Mr Kottek’s opinion that the great bulk of Mr Pfeiffer’s exposure to asbestos occurred in period 2 is contrary to the judge’s express finding that Mr Pfeiffer was exposed to asbestos dust for between 40 to 60 hours during period 1 and between 45 and 65 hours in period 2.[21] There is no challenge to this finding on appeal.
[21] Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [81]–[82].
In any event, in relation to the assumption made by Mr Kottek concerning the composition of the sheeting used by Mr Pfeiffer during period 1, Mr Kottek said in cross‑examination that compressed sheeting of the kind used by him in Katherine during period 1 would only have contained chrysotile asbestos.[22] Yet the evidence demonstrates that the compressed sheeting manufactured by James Hardie at its Welshpool plant, which was being used by Mr Pfeiffer at Katherine, comprised a mixture of materials which included amosite asbestos.[23] On the other hand, as the judge recognised, the evidence in relation to the amount of amosite asbestos to which Mr Pfeiffer was exposed during period 2 is imprecise. Further, in cross-examination Mr Kottek accepted that his assessment of causative potency between the two periods of exposure would be substantially affected if there was amosite in the compressed sheeting used by Mr Pfeiffer in period 1.[24]
[22] Case Book p 192, line 46.
[23] Exhibit D21 Case Book p 357.
[24] Case Book p 194, lines 30 – 39.
Fundamentally, it is important to recognise that the opinion expressed by Mr Kottek in his report was an opinion about the extent of Mr Pfeiffer’s overall cumulative exposure between the two periods, not an opinion concerned with the extent to which any period of exposure was causative of Mr Pfeiffer’s contraction of mesothelioma.[25] If in his oral evidence he went further than his report, so as to express an opinion as to the causal attribution of each period to the contraction of Mr Pfeiffer’s mesothelioma, that is an opinion outside Mr Kottek’s field of expertise as an occupational and environmental health consultant, a matter he conceded in cross‑examination.[26]
[25] Case Book p 190 – 191.
[26] Case Book p 190, lines 31 – 35.
Accordingly, in my view there was no error in the judge rejecting Mr Kottek’s evidence to the extent that he expressed a view as to the respective causal relationship between each period of exposure and the contraction of mesothelioma by Mr Pfeiffer. To the extent that his evidence was confined to the extent of exposure between each period, his opinion is contrary to an unchallenged finding of the trial judge. In any event, it was open to the judge to accept the evidence of Professor Reynolds that each period of exposure was likely to have contributed to the contraction of mesothelioma by Mr Pfeiffer and there was no basis for him to discriminate between each period.[27]
[27] Case Book p 184, line 31.
For these reasons, I would dismiss ground 1 of Amaca’s appeal.
Ground 2 complains that the judge erred in adjusting the liability between periods 1 and 2 solely on the basis of the culpability of SFS vis-à-vis Amaca without regard to the culpability of the other tortfeasors involved in the period to exposure. Amaca submits that this had the consequence that ultimately contributions of BAE and CSR were less than they should have been, notwithstanding the judge’s finding that BAE, CSR and Amaca were all equally culpable,[28] because the culpability of BAE and CSR was not considered in the judge’s determination of Amaca’s claim for contribution against SFS. In effect, Amaca submits that the ultimate apportionment of responsibility between period 1 and period 2 is unjust and unreasonable because, in assessing Amaca’s responsibility for period 1, the judge failed to have regard to the culpability of BAE and CSR (and presumably to some extent Orica) for the contraction of mesothelioma by Mr Pfeiffer. In effect, Amaca submits that the judge erred in determining the apportionment between Amaca and SFS and submits the judge ought to have determined apportionment between Amaca for the period 1 exposure on the one hand, and SFS and all of the other tortfeasors held liable to contribute for the period 2 exposure, on the other hand.
[28] Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [120] and [132]–[133].
I do not accept this submission for two reasons.
First, the submission is contrary to the conduct of Amaca’s case at trial. Mr Pfeiffer sued Amaca and SFS for damages resulting from his contraction of mesothelioma by reason of his exposure to asbestos dust during period 1 and period 2. He claimed that Amaca was liable for his exposure in period 1 and SFS was liable for his exposure in period 2. Amaca brought a claim for contribution against SFS on the basis that if it was liable to Mr Pfeiffer as alleged, then SFS was also liable as it had caused or contributed to his contraction of mesothelioma by exposing Mr Pfeiffer to asbestos during his employment with SFS at the Osborne plant. In these circumstances, Amaca submitted before the trial judge that the logical way to determine the contribution claim was to determine the apportionment between the defendants to Mr Pfeiffer’s action before determining the apportionment between SFS and the other tortfeasors liable for the damage suffered as a result of Mr Pfeiffer’s exposure to asbestos in period 2. This is the way in which the judge proceeded. Amaca did not submit to the trial judge that the apportionment between Amaca and SFS should take into account the culpability of those other tortfeasors joined as third parties who might be held liable to contribute to the liability arising as a result of the exposure to asbestos in period 2.
Amaca is bound by the conduct of its case at trial.[29] This is not a case that falls within the exceptional circumstances the Court considered would on appeal permit a party to conduct a new case that was not put at trial.
[29] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483.
Second, the approach adopted by the judge accords with the statutory scheme enshrined in both the Wrongs Act and the Law Reform Act.
The right to contribution is a statutory right. There was no right to contribution between tortfeasors at common law.[30] The statutory right to contribution is found in s 25(1)(c) of the Wrongs Act or s 6(1) of the Law Reform Act. Section 25 of the Wrongs Act provides:
[30] Merryweather v Nixan (1799) 8 Term R 186, 101 ER 1337. Genders v Government Insurance Office of New South Wales (1959) 102 CLR 363 at 376-377; Hahn v Conley (1971) 126 CLR 276 at 290.
Proceedings against and contribution between joint and several tort-feasors
25. (1) Where damage is suffered by any person as a result of a tort (whether a crime or not)—
...
(c)any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would at any time have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought:
…
(3)Any proceedings by a tort-feasor for the recovery of contribution from a third-party under this section must be instituted before the expiration of two years from the day on which the amount of damages or other compensation payable by the tort-feasor to the plaintiff is determined by the judgment of a court of competent jurisdiction, or by agreement between the plaintiff and the tort-feasor.
Section 6 of the Law Reform Act provides:
(1)A person who is liable in damages for harm suffered by another may recover contribution from a third person who is also liable in damages for the same harm.
…
(3) An action for contribution may be brought—
(a)     by way of third party proceedings, or proceedings between the parties, in an action in which damages are sought from the person entitled to contribution; or
(b)     by way of a separate action brought within the relevant time limit against the person from whom contribution is sought.
(4) The relevant time limit is the longer of the following—
(a)     the period within which the person who suffered the harm could have brought an action against the person from whom contribution is sought;
(b)     2 years after the damages payable by the person entitled to contribution are finally determined.
(5) The contribution is to be an amount that is fair and equitable having regard to the extent of each contributory's responsibility for the harm.
…
A consideration of s 25(1)(c) and s 6(1) identify that the condition for the recovery of contribution from another “tortfeasor” or a “third person” is that the tortfeasor or third person “is, or would at any time have been, liable in respect of the same damage” or “is also liable in damages for the same harm”. The right to contribution is conferred on “any tortfeasor liable in respect of the damage suffered by any person as a result of a tort” or a “person who is liable in damages for harm suffered by another”. The right to contribution conferred by s 25(1)(c) is confined by s 26 to the amount of the contribution recoverable from any person, found by the Court to be just and equitable, having regard to the extent of that person’s responsibility for the damage. Likewise, s 6(1) confines the right to contribution to the liability of the person who is liable in damages. There is no reason to think the statutory test of fair and equitable in s 6(5) of the Law Reform Act signifies a different approach to be taken from the position under s 25(1)(c) of the Wrongs Act with its test of just and equitable.
In other words, a defendant cannot recover more from a third party than the amount of that defendant’s liability. It follows that if a plaintiff sues a single defendant and establishes only that the defendant is liable for some of the harm suffered, then the defendant may in turn seek contribution in respect of that defendant’s liability to the plaintiff. The defendant cannot seek contribution for harm beyond that for which the defendant is liable to the plaintiff. So, where a plaintiff sues two defendants, and each is found liable to the plaintiff in a defined proportion, and each defendant has sued different third parties, then each defendant is only entitled to contribution from the third parties it sued to the extent of that defendant’s defined proportion. That the contribution with which s 25(1)(c) and s 6 is concerned is contribution only to the liability of the tortfeasor seeking contribution is confirmed by s 25(3) of the Wrongs Act and s 6(3)(b) of the Law Reform Act.
Accordingly, if the third parties had not been joined in the original action, the trial judge would simply have been required to decide whether Amaca and SFS were liable for the loss suffered by Mr Pfeiffer and the contribution claims between them. That would have resulted in the determination of a defined proportion of responsibility as between each of Amaca and SFS to Mr Pfeiffer. Each of Amaca and SFS could then seek contribution towards that proportion. Effectively, that is what the judge did. Section 25(3) of the Wrongs Act or s 6(3)(b) of the Law Reform Act would have entitled SFS to bring a separate action against each of Amaca, CSR, BAE and Orica for contribution in respect of SFS’s liability to Mr Pfeiffer. In that separate action, the liability in respect of which SFS could seek contribution would necessarily be limited to the amount it was held liable to pay in the proceedings brought by Mr Pfeiffer. The assessment of the defendants’ respective contributions vis-à-vis each other necessarily required that the judge focus on the respective conduct of James Hardie in relation to the period 1 exposure and the conduct of SFS as to the period 2 exposure. That either of them might have sought contribution to their respective liabilities from the third parties was irrelevant to that assessment.

Mr Pfeiffer sued Amaca for his exposure in period 1 and SFS for his exposure in period 2. Amaca claimed contribution from SFS in respect of the conduct of SFS during period 2. SFS claimed contribution from Amaca for Mr Pfeiffer’s exposure during period 1, and a contribution from Amaca for the manufacture and supply of the partnership product during period 2. Amaca did not claim contribution from any of the third parties for the damages it was liable to pay to Mr Pfeiffer in respect of his exposure in period 1. Amaca only claimed contribution from the third parties for damages it was liable to pay to Mr Pfieffer in respect of his exposure in period 2. In these circumstances the judge was not required to have regard to the culpability of the third parties when determining the apportionment of liability between the defendants, Amaca and SFS, for Mr Pfeiffer’s damages.
For these reasons, I would dismiss ground 2 of Amaca’s appeal.
Finally, even if I was satisfied the judge erred either in his assessment of Mr Kottek’s evidence as to the contribution each period of exposure made to the contraction of mesothelioma by Mr Pfeiffer, or in the approach the judge took to apportioning liability between periods 1 and 2, it does not follow that this Court should interfere with the judge’s ultimate conclusion as to contribution. If the judge erred, this Court would be required to undertake its own evaluation of contribution having regard to issues of culpability and the relative importance of the acts of the parties in causing Mr Pfeiffer’s contraction of mesothelioma. Given the judge’s unchallenged findings, amply supported by the evidence, that Amaca’s culpability was to be assessed on the basis that James Hardie knowingly manufactured and supplied a “toxic and dangerous substance”, its contribution to Mr Pfeiffer’s contraction of mesothelioma must be greater than the other tortfeasors, either alone or in combination. By the time Mr Pfeiffer was cutting James Hardie’s sheeting in Katherine, James Hardie knew that the inhalation of asbestos fibres could cause mesothelioma and lung cancer. Nonetheless, James Hardie manufactured and supplied asbestos products to consumers of all levels of sophistication, including individuals like Mr Pfeiffer, knowing it was extremely hazardous. It did not provide any information concerning those hazards. As the judge found, James Hardie’s indifference to the health and safety of those it knew would be using those highly dangerous products was an extreme departure from the standard of care that would be expected of a reasonable person.[31] In these circumstances, the culpability of Amaca is greater than the other tortfeasors.
[31] Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [94].
The assessment of contribution is an evaluative judgment which is not susceptible to arithmetic precision, involving questions of proportion, balance and relative emphasis, and the weighing of different considerations.[32] Like any evaluative judgment, a decision on apportionment can be made within a range of judgments. It is inherent in the evaluative judgment that is required in assessing contribution that different judges will evaluate considerations relevant to the assessment of contribution in different ways. If I was exercising the assessment of contribution afresh, I would not interfere with the judge’s ultimate conclusion. It was not unreasonable or unjust.
[32] Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 at [8], (1985) 59 ALJR 492 at 493–494.
Cross-appeal by BAE
BAE submits that the judge erred in failing to find that Mr Pfeiffer was exposed to more of the James Hardie / CSR partnership’s asbestos products than BAE’s products during period 2.
BAE submits the judge’s findings were flawed in two significant respects. First, BAE submits that the judge erred in his identification of the asbestos products that were supplied by it, by attributing the supply of “asbestos pipes” to BAE as though this identified a product separate and additional to pre-formed sectional lagging. Second, BAE submits the trial judge erred in apportioning liability between it and James Hardie / CSR, primarily by reference to the categories of different products for which each was responsible, without addressing the evidence bearing upon the extent to which those products contributed to the contraction of mesothelioma by Mr Pfeiffer. BAE submits that the judge fell into error in concentrating on the supply of asbestos products rather than what likely produced Mr Pfeiffer’s asbestos dust exposure.
The judge found that between 19 September 1966 and 31 July 1978 BAE supplied asbestos rope, asbestos tape, asbestos cloth, pre-formed asbestos sectional lagging and asbestos pipe to the Orica plant at Osborne.[33] The judge accepted the evidence of Mr Pfeiffer that he inhaled dust generated while he was removing these products during the course of his employment with SFS. The judge was not prepared to find that BAE was the only supplier of these products during this time, although he did accept that they were a major supplier of these products to Orica. Accordingly, the judge found BAE was more responsible for Mr Pfeiffer’s exposure to asbestos during the course of his employment at the Orica plant than was the James Hardie / CSR partnership. The judge dealt with their respective culpability as follows:[34]
Given my finding that the James Hardie and CSR partnership relevantly supplied less of the asbestos product that the plaintiff was exposed to at the ICI plant than [BAE] did, and that the additional asbestos that the plaintiff was exposed to there that was supplied by [BAE] included asbestos rope, tape and paste, that the plaintiff described as particularly dusty, their respective contributions must be adjusted to reflect this.
[33] Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [63].
[34] Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [136].
Central to BAE’s cross-appeal is the proposition that more of Mr Pfeiffer’s exposure to asbestos dust was caused by his cutting of pre-formed asbestos sectional lagging manufactured by the James Hardie / CSR partnership rather than asbestos rope, tape or paste for which BAE was responsible.
In my view, this is a sterile argument. The judge found that the sectional lagging manufactured by the partnership was supplied to the Orica plant by BAE.[35] There is no challenge to that finding. BAE’s cross-appeal seeks to reduce its liability vis-à-vis the partnership. In my view, there is no proper basis to interfere with the apportionment made by the judge. The judge found that by reason of their knowledge of the potentially lethal danger the asbestos products they supplied posed to those exposed to them, the partnership and BAE were each engaged in an extreme departure from the standard of care expected of a reasonable person. By reason of its supply to the Orica plant of the asbestos products manufactured by the partnership, BAE must be at least equally responsible with the partnership for Mr Pfeiffer’s exposure to those products. In addition, BAE supplied further asbestos products to the Orica plant, being asbestos rope, tape, cloth and paste.[36] The evidence of Mr Pfeiffer was that he inhaled dust produced by him removing such products.[37] It was open to the judge to conclude that BAE should bear a greater liability for Mr Pfeiffer’s exposure during period 2 than the partnership. No error has been demonstrated.
[35] Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [106].
[36] Case Book p 330.
[37] Affidavit of Mr Pfeiffer sworn 18 May 2016 at [42] and [45], Case Book pp 206-207; Transcript of Evidence of Mr Pfeiffer p 36, Case Book p 154.
I would dismiss BAE’s cross-appeal.
Cross-appeal by CSR
CSR cross-appeals against the finding on apportionment against it in respect of period 2. It submits that the foundational findings by the judge for an apportionment against it are in error. It submits that the evidence does not establish that Mr Pfeiffer was exposed to asbestos dust from product manufactured by the James Hardie / CSR partnership, which operated between 1964 and 1974. In addition, it submits that the evidence does not establish that, if Mr Pfeiffer was exposed to partnership product during period 2, that he inhaled asbestos dust that came from that product which caused or contributed to his contraction of mesothelioma. CSR also submits that the judge erred in finding that its breach of duty in failing to warn Orica and SFS of the danger inherent in the asbestos products it manufactured was causative because, had the warning been provided, Orica and SFS would have acted on it. CSR submits that the judge’s finding in this regard was made in the absence of any supportive evidence relating to how Orica or SFS would have responded to such a warning. In the alternative, CSR submits that if it was liable in damages for the harm suffered by Mr Pfeiffer, the apportionment made by the judge against it is unjust and unreasonable having regard to the culpability of SFS and Orica given the presumption established by s 8(2) of the DDA, that they knew at the relevant time that Mr Pfeiffer’s exposure to asbestos dust could result in a dust disease.
The relevant findings by the judge are:[38]
Whilst the evidence of the others who worked at the ICI plant suggests that the maintenance of the pipes in the plant and the removal and replacement of asbestos lagging was a regular and ongoing process and a number spoke of the heat of the pipes and the effect that that had on their degradation, it seems to me to be inherently unlikely that none of the asbestos that the plaintiff was exposed to at the ICI plant was more than three years old. Moreover, although there is no evidence that would establish that the plaintiff had any expertise in determining the age of asbestos products, I cannot ignore the fact that he had extensive experience working in factories, demolition work, boiler making and welding. His evidence of some of the outside of the pipes being rusty and his impression that they had been there for a while is telling. Whilst it does not establish the exact age of the asbestos it does persuade me that at least some of it was three years old. As to the proposition that all of it was at least thirteen years old, the evidence of the regular renewal of pipes suggests that that is unlikely and I so find.
Amaca accepts that in the period between September 1964 and June 1974, the James Hardie and CSR partnership manufactured insulation pipe sections that contained asbestos. I think it is likely that they supplied these pipe sections to Wallaby Grip (BAE) Pty Ltd which it in turn supplied and installed them at the ICI plant. I think it is likely that the plaintiff was involved in the removal of some of the pipes that had been insulated with that product. I accepted his evidence that on occasions he would cut the sections of insulation pipe with a knife and would then pull them away and that the process produced dust that he inhaled. I think it is likely that at least some of the pipes that the Plaintiff worked on in this way were insulation pipe sections that contained asbestos that had been supplied by the James Hardie and CSR partnership. I think it is likely that the dust produced by that work included asbestos dust. Having accepted Professor Reynolds’ opinion that on each occasion the plaintiff inhaled asbestos dust, the inhalation made a material contribution to his developing mesothelioma, I find that the plaintiff inhaled asbestos dust that came from product supplied by the James Hardie and CSR partnership that caused or contributed to his mesothelioma.
[38] Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [105]-[106].
The evidence of the age of the asbestos products installed in Orica’s plant at Osborne was vague. Nonetheless, on the basis of the evidence the judge was prepared to infer that some of the sectional lagging had been installed between 1964 and 1974. On that basis he found that it was likely that Mr Pfeiffer had been exposed to partnership product during the course of his employment at the Osborne plant in 1977 and 1978.
I am not persuaded the finding by the judge is in error. His reasoning is inherently plausible.
In Transport Industries Insurance Co Ltd v Longmuir[39] Tadgell JA, with whom Winneke P and Phillips JA agreed, explained the correct approach to making findings of fact on the basis of inferences drawn from circumstantial evidence, as follows:[40]
[I]t should be said that, to assess the evidence in a case like this by reference to various individually-pleaded particulars, as though running through items on a check list, is apt to mislead. The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.
In a civil case like this, where there is no direct evidence of a fact that a party bearing the onus of proof seeks to prove, “it is not possible to attain entire satisfaction as to the true state of affairs”: Girlock (Sales) Pty. Ltd. v Hurrell, per Mason J. In such a case, however, the law does not require proof to the “entire satisfaction” of the tribunal of fact. A definition of the sufficiency of circumstantial evidence in a civil case to support proof by inference from the directly proved facts was given by the High Court in the unreported case of Bradshaw v McEwans Pty. Ltd. in a passage since repeatedly adopted. The relevant passage in Bradshaw's case is this:
“Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise …”
[citations omitted.]
[39] [1997] 1 VR 125.
[40] [1997] 1 VR 125 at 141.
In his evidence Mr Pfeiffer described rigid sections of insulation being strapped over the extensive lengths of pipes installed in Orica’s plant at Osborne. Those sections were shaped and curved halves to fit the diameter of the pipes and the halves were married around the pipes. They were tied or strapped into place. Where the sections had been applied around bends they had been cut into numerous small sections. Asbestos rope and tape were wrapped around the pipes including around the valves. Asbestos paste was also used on the pipes. He described how when working on the pipes he removed the insulation half pipe sections by untying or unstrapping them or cutting them and pulling them away. He cut them with a knife. This was very dusty work and there was lots of dust in the air as a result. He could not avoid breathing it in as he worked. In addition when he was not personally undertaking this work he often worked near fellow employees who were working on the lag pipes and disturbing the lagging. That also created dust that spread into the air around him.[41] There was evidence that the moulded half‑sections of asbestos insulation which surrounded the water pipes were produced by the partnership.[42] Mr Pfeiffer identified those moulded half-sections from a BAE brochure which referred to them as ‘Hardie’s’ product, and from a photograph of insulation admitted into evidence.[43] There was no evidence of James Hardie supplying asbestos products to BAE during the period from 1966, when BAE commenced supplying sectional lagging,[44] to 1974 for use at the Osborne plant that was not partnership product. The evidence of rust relied on by the judge to infer that the sectional lagging was more than three years old supported the inference drawn by the judge. Likewise, there can be no criticism of the judge’s inference that the regular maintenance and renewal of the pipes makes it implausible that all of the moulded half-sections were installed before 1966. While somewhat imprecise, the effect of Mr Pfeiffer’s evidence appears to be that the cutting of all of these asbestos products produced much dust. It was open on the evidence for the judge to find that partnership product was used in Orica’s Osborne plant. The inference was open to the judge that the sectional mouldings produced by the partnership between 1964 and 1974 were installed in the plant during that period. Once that is accepted, it is a small step to draw an inference that, based on Mr Pfeiffer’s evidence, he had been exposed to dust produced by the cutting of those products in the course of his employment at the Orica plant. That is not mere conjecture.
[41] Case Book p 206-207, Affidavit of Mr Pfeiffer sworn 18 May 2016, pp 7-8.
[42] Case Book p 226 and 228.
[43] Case Book p 122-124, Exhibits P3 and P4 at trial.
[44] Case Book p 330.
There is no complaint about the reliance placed by the judge on the evidence of Professor Reynolds that on each occasion the plaintiff inhaled asbestos dust, that inhalation made a material contribution to his development of mesothelioma.
I reject CSR’s submission that causation was not established because it was not open to the judge to find that had the partnership warned Orica and SFS about the danger posed by its product, they would have taken steps to provide ventilation masks to safeguard persons working in the Orica plant. While proof of causation requires proof on the balance of probabilities that the breach of duty was the cause of the damage suffered, such proof can be established by the robust, pragmatic drawing of inferences.[45] There was no error in the judge finding that had a warning been provided, Orica and SFS would have acted on it. They were substantial, well-resourced corporations, particularly Orica (ICI) which was a large multi-national corporation in the 70s. Common sense permits the drawing of the inference made by the judge.
[45] Robinson Helicopter Company Inc v McDermott & Ors [2016] HCA 22 at [86].
No error has been demonstrated in the judge’s finding that Mr Pfeiffer’s mesothelioma was caused or contributed to by his exposure to partnership asbestos products. It follows that CSR, and Amaca, are liable to contribute to the damages to which Mr Pfeiffer is entitled due to his exposure in period 2.
Accordingly it is necessary to consider CSR’s alternative ground of appeal regarding the extent of the apportionment awarded against it. That involves a question of statutory construction. The judge refused to invoke the statutory presumption of knowledge of the risk of asbestos causing dust disease in s 8(2) of the DDA. The judge held that as a matter of interpretation the statutory presumption did not apply to contribution proceedings. CSR submits that the judge erred in doing so and, accordingly, the assessment of the culpability of Orica and SFS was less than it should have been.

The principles of statutory construction were considered in the joint reasons of French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross[46] who said:[47]
[46] [2012] HCA 56, (2012) 248 CLR 378.
[47] [2012] HCA 56 at [23]-[26], (2012) 248 CLR 378 at 388-389.
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole", and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.”
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.” (emphasis added)
And as the plurality said in Australian Education Union v Department of Education and Children's Services:
“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.”
[citations omitted.]
At the relevant time, s 8 of the DDA provided:
8—Evidentiary presumptions and special rules of evidence and procedure
(1) If it is established in a dust disease action that a person (the injured person)—
(a)     suffers or suffered from a dust disease; and
(b)     was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease,
it will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person's dust disease.
(2) A person who, at a particular time, carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust will be presumed, in the absence of proof to the contrary, to have known at the relevant time that exposure to asbestos dust could result in a dust disease.
(3) The following rules apply in a dust disease action before the Court:
(a)     the Court may admit evidence admitted in an earlier dust disease action against the same defendant (including in a dust disease action brought in a court or tribunal of the Commonwealth or another State or Territory);
(b)     the Court may dispense with proof of any matter that appears to the Court to be not seriously in dispute;
(c)     the Court may invite a party to admit facts of a formal nature, or facts that are peripheral to the major issues in dispute, and may, if the party declines to do so, award the costs of proving those facts against the party.
(4) If—
(a)     a finding of fact has been made in a dust disease action by a court of this State, or a court or tribunal of the Commonwealth or another State or Territory; and
(b)     the finding is, in the Court's opinion, of relevance to an action before the Court,
the Court may admit the finding into evidence and indicate to the parties that it proposes to make a corresponding finding in the case presently before the Court unless the party who would be adversely affected satisfies the Court that such a finding is inappropriate to the circumstances of the present case.
Section 3 of the DDA defines a “dust disease action” to mean a civil action in which the plaintiff:
(a)claims damages for or in relation to a dust disease or the death of a person as a result of a dust disease; and
(b)asserts that the dust disease was wholly or partly attributable to a breach of duty owed to the person who suffered the disease by another person.
Section 9(2) of the DDA, at the relevant time, provided:
(2) The Court should make an award of exemplary damages in each case against a defendant if it is satisfied that the defendant—
(a) knew that the injured person was at risk of exposure to asbestos dust, or carried on a prescribed industrial or commercial process that resulted in the injured person's exposure to asbestos dust; and
(b) knew, at the time of the injured person's exposure to asbestos dust, that exposure to asbestos dust could result in a dust disease.
Pursuant to s 10 the court is to determine questions of liability to the plaintiff before dealing with questions of contribution between defendants or insurers, unless any resulting delay is inconsequential in the circumstances.
Statutory presumptions are usually strictly construed.[48] However, s 8(2) is a remedial provision and should be construed liberally.[49] SFS and Orica submit that s 8(2) was not intended to affect the issue of culpability between co-tortfeasors. They point out that the object of the DDA is to provide for the swift, fair and expeditious determination of claims by those who suffer from dust diseases or their dependents, unencumbered by unnecessary formalities of an evidentiary or procedural kind.[50] They submit that claims for contribution fall to be decided not under the DDA but under the Law Reform Act. They seek to uphold the judge’s approach.
[48] Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96.
[49] IW v City of Perth (1997) 191 CLR 1 at 12.
[50] Section 4 DDA.
The judge said:[51]
[T]he effect of s 8(2) of the DDA is that a tortfeasor may be found to have had knowledge that exposure to asbestos dust could result in a dust disease, even though it did not have actual knowledge, simply because it is unable to discharge the evidentiary burden that the provision creates… [While] this might be appropriate in connection with matters of proof as between a plaintiff, suffering from a dust disease, and a tortfeasor, it is difficult to see how it could be regarded as appropriate in connection with a determination of the culpability of multiple tortfeasors. This leads me to conclude that the reach of the presumption created by s 8(2) of the DDA is limited to assisting a plaintiff in establishing liability for a dust disease covered by that Act. It has no role to play in making a comparison of culpability as between multiple tortfeasors on contribution and third party claims.
[51] Pfeiffer v Amaca P/L (Under New Administered Winding Up) & Ors [2016] SADC 101 at [91].
In my view the reasons of the judge disclose error. The task of statutory construction begins with an analysis of the statutory text. The court must read the text of the provision falling for interpretation in the context of the Act as a whole. In that context it seems to me that s 4, which enshrines the object of the Act, provides that it is to ensure that residents of South Australia who claim rights of action for, or in relation to, dust diseases, have access to procedures that are expeditious and unencumbered by unnecessary formalities of an evidentiary or procedural kind. The phrase “in relation to” is a phrase of broad import.[52] Unless the context requires otherwise, it indicates a relationship, whether direct or indirect, between two subject matters.[53] In my view it is capable of extending to claims for contribution between tortfeasors who are liable to contribute to an award of damages to a plaintiff under the DDA. I am reinforced in this view by the provisions of s 10 which expressly contemplate that the DDA does apply to questions of contribution between defendants or insurers, notwithstanding that such claims are to be determined pursuant to the Wrongs Act or the Law Reform Act. It follows that that must extend to the evidentiary aid enshrined in s 8(2). I also consider there is some significance to the text of s 8 itself. Each of subsections 8(1), (3) and (4) are conditioned by the existence of a dust disease action. In this case the claim for contribution was made in a dust disease action. However, it need not have been having regard to the terms of s 6(3) of the Law Reform Act. Section 8(2) is not confined in its operation to a dust disease action. That would permit the statutory presumption to operate in a separate action brought for contribution pursuant to s 6(3)(b) of the Law Reform Act. It can be seen that the text does not confine the operation of s 8(2) to a dust disease action. Finally, the injunction against s 8(2) applying to contribution proceedings does not find any support from the text of the DDA.
[52] O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374.
[53] O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 376.
A textual analysis contraindicates the construction of s 8(2) adopted by the judge. That construction involves two vices. First, reading words into the Act where it is unnecessary to do so.[54] Second, it involves the judge making an a priori assumption about its purpose that is inconsistent with the text. The purpose of legislation must be derived from what the Act says, and not from any assumption about the desired or desirable reach or operation of the relevant provision.
[54] R v Young [1999] NSWCCA 166 at [15]-[37].
For these reasons I consider that s 8(2) does apply to a claim for contribution in relation to a dust disease.
As a result, in assessing the respective culpabilities of the various tortfeasors liable in respect of period 2, the judge has failed to impute to Orica and SFS knowledge that, at the relevant time that Mr Pfeiffer was exposed to asbestos dust at the Osborne plant, that exposure could result in in a dust disease.
As the judge fell into error in assessing the contribution to be made by CSR in respect of period 2, it is necessary that this Court undertakes that assessment afresh. However, it does not follow that this Court should interfere with the apportionment made in respect of the tortfeasors liable in respect of period 2. As I noted earlier in these reasons, the assessment of contribution is an evaluative judgment which is not susceptible to arithmetic precision; involving questions of proportion, balance, relative emphasis and weighing different considerations. The assessment of contribution is an exercise in apportionment of liability between various tortfeasors. It is a relative exercise weighing each tortfeasors respective responsibility and culpability. It is to be dealt with broadly and in accordance with principles of common sense.[55] Like any evaluative judgment, a decision on apportionment can be made within a range of judgments. It is inherent in the evaluative judgment that is required in assessing contribution that different judges will evaluate considerations relevant to the assessment of contribution in different ways.
[55] Henderson v Amadio (No. 1) (1995) 62 FCR 1 at 202.
In exercising the assessment afresh, I would not interfere with the judge’s ultimate conclusion. It is not unreasonable or unjust.
CSR was found liable to contribute 2.5 per cent of $630,000. That is an amount of $15,750. This is an insignificant sum in the context of the overall award. When having regard to the culpability of SFS and Orica vis a vis the other tortfeasors responsible for the exposure in period 2 including, in particular, CSR, I do not consider that the Court should interfere, even allowing for the presumption of knowledge on the part of each of Orica and SFS that Mr Pfeiffer’s exposure to asbestos dust could result in a dust disease. While contribution is to be assessed on the basis that all parties had knowledge of the risk that Mr Pfeiffer’s exposure to asbestos dust could result in a dust disease, the actual knowledge of James Hardie and CSR, the manufacturers of some of the asbestos products to which Mr Pfeiffer was exposed and which the judge found caused or contributed to his contraction of mesothelioma, was not only that their asbestos products were hazardous, but they were indifferent to the health and safety of those they knew would be using their products. That actual knowledge involves a more serious departure from the standard of care that would be expected of a reasonable person than would be the case with Orica and SFS. The qualitative nature of CSR and James Hardie’s actual knowledge of the dangers of exposure to asbestos dust was greater than the presumed knowledge of Orica and SFS. In my view, in exercising the assessment afresh, no proper basis exists to readjust the relative apportionments between Amaca and CSR on the one hand, and Orica and SFS on the other hand, on the basis of the presumed knowledge of Orica and SFS. There is no justification for increasing the contributions of Orica and SFS to the benefit of CSR and Amaca merely because of their presumed knowledge. In these circumstances I would not interfere with the assessment of contribution made by the judge against CSR.
For these reasons I would dismiss CSR’s cross-appeal.
Conclusion
I would dismiss the appeal and the cross-appeals. I would hear the parties as to costs.