BI (Contracting) Pty Ltd v The Public Trustee Of South Australia and ANORCSR Limited v The Public Trustee Of South Australia and ANOR

[2005] NSWCA 306

CITATION:	BI (CONTRACTING) PTY LTD v THE PUBLIC TRUSTEE OF SOUTH AUSTRALIA & ANORCSR LIMITED v THE PUBLIC TRUSTEE OF SOUTH AUSTRALIA & ANOR [2005] NSWCA 306
HEARING DATE(S):	10 August 2005
JUDGMENT DATE:	9 September 2005
JUDGMENT OF:	Mason P at 1; Handley JA at 63; Beazley JA at 64
DECISION:	Four appeals dismissed with costs.

CATCHWORDS:	NEGLIGENCE - death as a result of a dust-related condition - mesothelioma - duty of care - foreseeability - whether nature and level of exposure to asbestos-dust was foreseeable - foreseeability of the precise risk of injury suffered not required - reasoning in CSR v Wren (1997) 44 NSWLR 463 - breach of duty - failure to warn - contribution between tortfeasors - apportionment of liability - moral culpability or blameworthiness. (ND)
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989
CASES CITED:	Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Chapman v Hearse (1961) 106 CLR 112 Commonwealth v McLean (1996) 41 NSWLR 389 CSR Ltd v Wren (1997) 44 NSWLR 463, 15 NSWCCR 650 Downs v Chappell [1997] 1 WLR 426 Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 Julia Farr Services Inc v Hayes (2003) 24 NSWCCR 138 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (1999) 18 NSWCCR 385 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie and Co Pty Ltd (2001) 53 NSWLR 626 Watt v Bretag (1982) 56 ALJR 760 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44
PARTIES:	BI (CONTRACTING) PTY LTD v THE PUBLIC TRUSTEE OF SOUTH AUSTRALIA & ANOR CSR LIMITED v THE PUBLIC TRUSTEE OF SOUTH AUSTRALIA & ANOR
FILE NUMBER(S):	CA 40836/2004; 40837/2004; 40838/2004; 40839/2004
COUNSEL:	Appellant in each matter: J Fernon SC For Public Trustee in each matter: D Letcher QC For Clifton Financial Services: J Poulos QC
SOLICITORS:	Appellant in each matter: Makinson & d'Apice For Public Trustee: Turner Freeman For Clifton Financial Services: Hicksons

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S):	DDT 400/2002 DDT 221/2003
LOWER COURT JUDICIAL OFFICER:	Duck J

CA 40836/2004
CA 40837/2004
CA 40838/2004
CA 40839/2004

DDT 400/2002
DDT 221/2003

MASON P
HANDLEY JA
BEAZLEY JA

Friday 9 September 2005

BI (CONTRACTING) PTY LIMITED v THE PUBLIC TRUSTEE OF SOUTH AUSTRALIA & ANOR

CSR LIMITED v THE PUBLIC TRUSTEE OF SOUTH AUSTRALIA & ANOR

JUDGMENT

1 MASON P: The late Alfred John Richardson (the deceased) was employed in 1974 by the second respondent, Clifton Financial Services Pty Ltd, then named John Martin & Co Limited. The deceased was engaged as a temporary maintenance painter at the John Martin store in Elizabeth, South Australia.

2 The store had been constructed in 1964. Its steel framework was then sprayed with an asbestos insulation designed to function as a fire retardant. The spraying had been done by the appellant (“BI”), then named Bradford Insulation (Contracting) Pty Ltd, now named BI (Contracting) Pty Ltd.

3 The insulation material contained crocidolite supplied to BI by one of two “Ingham Companies” each of which was a wholly owned subsidiary of the appellant CSR Ltd (“CSR”).

4 For about 12 months in 1974 the deceased’s principal task at the store was to remove and clean the panels that formed a false ceiling beneath the cement slab that was the first floor of the building. He was required to take down, clean, repaint if necessary, and reinstall the ceiling tiles. Dusty material that had accumulated in the ceiling space came out all over him constantly and repeatedly. It was commonplace for him to go home with dust in his hair. He received no warning about any risk associated with the asbestos-laden dust, nor was he supplied with any protective equipment.

5 The asbestos product inhaled by the deceased in 1974 led to him contracting mesothelioma that caused his death in 2002.

6 Proceedings brought in the Dust Diseases Tribunal of New South Wales resulted in the judgments now under appeal. Initially the deceased was the plaintiff was the deceased. Following his death the proceedings were amended by substitution of the Public Trustee of South Australia as legal personal representative of his estate. Separate proceedings were also commenced by the Public Trustee on behalf of the deceased’s dependants under the South Australian legislation deriving from Lord Campbell’s Act.

7 There were three defendants in each proceeding in the Tribunal: Clifton Financial Services Pty Ltd (formerly John Martin & Co Ltd), the deceased’s employer; BI, the firm that sprayed the asbestos in 1964; and CSR, the product supplier.

8 The proceedings culminated in a reserved judgment of Duck J (The Public Trustee of South Australia (as Legal Personal Representative of the Estate of the late John Alfred Richardson) v Clifton Financial Services Pty Ltd & Ors (No 3) [2004] NSWDDT 40)) (References to paragraphs in this judgment appear hereafter as J1, J2 etc).

9 Each defendant was found liable in negligence; damages were assessed; and the burden of damages apportioned as between the defendant tortfeasors.

10 Four appeals were heard concurrently. Two are appeals by BI contesting the separate judgments entered against it in the two proceedings. Two are brought by CSR on a similar basis. At issue are the findings of liability against BI and CSR and the apportionment as between those two companies on the one hand and Clifton on the other.

11 The appeal is governed by s32 of the Dust Diseases Tribunal Act 1989 (the Act). Relevantly, it is limited to the decision of the Tribunal “in point of law”.

Duty of care

12 BI and CSR each contend that the judge erred in law in concluding that they owed a duty of care to the deceased. It is said that the facts found were in some cases unsupported by evidence, but in any event were incapable of giving rise to a duty of care. There is an associated complaint as to absence of reasons.

13 One theme common to the appellants is the submission that the primary judge failed to consider or identify the particular risk to which the deceased was exposed. His Honour is said to have failed to ask whether in 1964 the appellants foresaw or ought reasonably to have foreseen that a person such as the deceased would thereafter be exposed to the levels of asbestos-dust exposure that the deceased encountered.

14 It is convenient to deal first with BI, because the facts are in narrow compass.

15 Most of the evidence about BI’s activities was given by Mr P J Snelling, a civil engineer who was the contracts manager for BI between 1959 and 1962. [Mr Snelling’s evidence had been given in other proceedings and it was tendered in the present case pursuant to s25(3) of the Act.] Mr Snelling had to supervise the spraying of asbestos as a fireproofing material. Blue asbestos was mixed with cement and bagged at the Inghams premises. It was then picked up by a BI employee and taken either to BI’s premises or to a job site (J8).

16 Mr Snelling made it clear that he understood that asbestos was dangerous and that BI’s workmen should wear masks, although as a practical matter the masks were fairly useless (J9). This evidence showed that BI had actual knowledge of the dangers of asbestos products (J10).

17 Judge Duck found that BI knew that the material it was spraying was injurious to health; it knew that its own workers should have been protected; and it knew that the material was not capable of being sprayed accurately in that 25% of it, or thereabouts, went anywhere (J12).

18 BI also knew that the area above the false ceiling was one to which tradesmen would have access from time to time. It was also found that BI would have known in 1964 that the material it sprayed became friable (J12-13).

19 Duck J summarised his conclusions referable to BI as to duty and breach as follows (J15, 34):

15. Insofar as the second defendant is concerned, it knew that it was spraying blue asbestos on the area; it knew it was dangerous material so that its own workmen should be protected, although that obligation was honoured more in the breach than the observance. It knew that the material was likely to need repair, it knew that the area in which the spraying had been undertaken was an area through which the store’s services or many of them had to pass so that tradesmen would need access to it and yet having sprayed the material it did nothing to warn either the store or the maintenance supervisor that the inhalation of asbestos dust was dangerous, something it well knew. The duty it owed to warn it seems to me was owed to those people who might reasonably be in contemplation of being at risk from the substance which they had supplied and applied. Whoever else is in that class it must surely include employees of the store whose duties required them to get into the ceiling space to carry out their work. The failure to warn and/or the failure to take some step to seal off the fire retardant material so that it could not be breathed in showed a want of reasonable care towards those persons who the second defendant should have had in contemplation as being at risk of injury from inhaling asbestos dust and fibre. That included the plaintiff. I conclude that the second defendant was negligent and that the plaintiff’s mesothelioma resulted from the negligence.
34. …A submission was made seeking to excuse the second defendant on the ground that it was really the duty of the employer to protect its worker and that somehow exculpates the second defendant. I do not accept that submission. If the second defendant had conveyed warnings to those likely to be affected by the material it was spraying about, including to the first defendant, the plaintiff’s illness may well have been prevented.

20 In my view, the primary facts as found were open on the evidence and they amply supported the conclusions that BI owed a duty of care to persons such as the deceased and breached that duty. There was no basis for distinguishing between BI’s own employees and tradesmen employed by others coming later to the site, such as the deceased. The facts showed that there was actual knowledge of a risk of injury that was neither far-fetched nor fanciful.

21 In this Court, BI submitted that Mr Snelling’s evidence shows that he did not foresee the risk that mesothelioma (as distinct from other asbestos-related illnesses) might be contracted in consequence of exposure to the BI product. When asked what he believed might occur to a man who was inhaling asbestos, he had said (Blue 106):

Well, at that stage I believed that mesothelioma, as I know it today, I believed then that it was caused by the long asbestos fibres. I had no idea it was the dust that caused the problem. So I didn’t really appreciate the real dangers and I certainly wasn’t told that death was inevitable, as I now believe.

22 Senior counsel for BI submitted that this shows that the particular risk to which the deceased was exposed was neither foreseen nor foreseeable. But this is to commit the fallacy of requiring foreseeability of the precise risk of injury suffered. Such particularity of foresight is not required. It is sufficient that the defendant foresaw or ought to have foreseen harm of a like kind (see Chapman v Hearse (1961) 106 CLR 112; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402; Commonwealth v McLean (1996) 41 NSWLR 389). Identical arguments with reference to different types of asbestos-related diseases were rejected by this Court in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 and Julia Farr Services Inc v Hayes (2003) 24 NSWCCR 138.

23 Duck J amply disclosed his reasoning process in the passages that I have cited. His findings as to duty, breach and causation were supported in the evidence and correct in law.

24 CSR was sued as the manufacturer and supplier of the insulation product that was sprayed in 1964. It is unclear (cf Black 75, J52) whether the case was run on the basis that it had a duty of “after care” requiring it to give warnings later as its knowledge about the risks increased. For my purposes it is sufficient to examine its position as at 1964.

25 Since 1943, CSR had been the managing agent of Australian Blue Asbestos Ltd and the sole distributor of blue asbestos mined at Wittenoom (J17). At the relevant time CSR was supplying blue asbestos in Adelaide to its wholly owned Ingham Companies, which in turn mixed it into the product used as a fire retardant in the store at Elizabeth. By 1961 CSR controlled the two Ingham Companies as wholly owned subsidiaries (J18-25).

26 CSR does not dispute the finding (J16) that it was so involved in the distribution and marketing of the blue asbestos in the business conducted by the Ingham Companies as to place it in the position of a manufacturer and supplier of the product sprayed (see also CSR Ltd v Wren (1997) 44 NSWLR 463, 15 NSWCCR 650). Nor does it dispute that its duty to warn of known dangers could extend in a proper case to the employees of likely recipients of its product (see the discussion in Wren at 689-94 (NSWCCR), a portion of the judgment not reported in the NSWLR).

27 CSR’s argument was that it should not have been found under a duty to the deceased having regard to the foreseeability in 1964 of injury stemming from the nature and level of the deceased’s exposure (in 1974).

28 In 1959 CSR acquired the controlling interest in BI Holdings Pty Ltd, the holding company of the Bradford family (J26). Through this acquisition CSR acquired a 25% share of BI (Contracting) Pty Ltd, the present appellant. This acquisition and other evidence (see J27) were the basis of the primary judge’s finding (J28) that:

CSR Limited… was intimately involved in the business undertaking of [BI]. The evidence adduced may not permit the conclusion that it had a controlling share interest in the South Australian company, but it does permit the conclusion that it was actively involved in its undertaking … [It] was actively engaged in the business of [BI], the spraying company ….

29 The findings of primary fact and the conclusion that CSR was actively involved in BI’s undertaking are not in dispute. Since, however, the findings stop short of completely equating the businesses of CSR and BI, the appellants are correct in their submission that the reasoning in CSR Ltd v Wren cannot be used as the basis of treating the knowledge of BI as the knowledge of CSR.

30 Contrary to the appellant’s submission, the primary judge made no such elision. He dealt with the appellants separately in considering what each company knew or ought to have known in 1964 about the dangers of crocidolite, relevant to the foreseeability component to the duty of care.

31 As to CSR, his Honour made plain his intention to incorporate by reference the reasons of Beazley JA and Stein JA (with whom Powell JA generally agreed) in CSR Ltd v Wren. The joint judgment in Wren contains an extended discussion about the matters of which CSR was or ought to have been on notice in consequence of literature available to it in 1950-51. CSR’s access to the same literature was proved in the instant case.

32 According to the facts found in the present case, CSR knew that its crocidolite was being used in the products distributed from the Ingham premises at Dudley Park in 1963-64 (J11). The material referable to the relationship between CSR, Inghams and BI has already been referred to. CSR may not have controlled BI, but it was actively engaged in its business (J28). It and its Ingham Companies knew the general type of work being done with its product by BI.

33 CSR was found to have known of the dangers of asbestos in 1963-64. Duck J made general reference to the information discussed in Wren’s Case as part of the knowledge available to CSR through its library at the relevant time (J28-29). There was material additional to that discussed in Wren in the form of an article published in the British Medical Journal in 1960 which was proved to have been brought that year to the attention of Mr Brown who was head of the building materials division of CSR (Blue 12, Black 56). The article referred to carcinoma of the lung as a serious and well-recognised complication in asbestosis. It also referred to asbestos dust as “most toxic”, stating that:

… The amount needed to cause asbestosis is not known so constant vigilance and new preventive methods are needed if this disease is to be abolished. (J29)

34 There was also an article by Margaret Becklake (Blue 38) that demonstrated that the association between asbestos and mesothelioma was known to be probable in the 1950s and definitely established by the early 1960s. This and other evidence negates the argument that exposure to the levels that the deceased was exposed to involved no foreseeable risk of injury according to the law’s “undemanding test of foreseeability” qua duty (cf Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44).

35 His Honour summarised his findings against CSR as to duty and breach at J30:

I find that in the circumstances in which CSR controlled the distribution of the product from Australian Blue Asbestos Ltd, had control by the relevant time of the Ingham companies and was actively involved in the business of the second defendant and in the circumstance where it had actual knowledge of the dangers of asbestos that it owed a duty of care to take reasonable steps to prevent harm arising from the distribution of its products which distribution entailed a foreseeable risk of injury. The duty was at least to warn of the dangers associated with the breathing in of asbestos dust. In fact it did nothing. The deceased was clearly a member of a class who ought to have been in mind if anyone had turned their minds to the risk of using the asbestos products as they were intended to be used, that is he, the deceased, was a man whose work took him into the ceiling space area in which the blue asbestos had been sprayed as a fire retardant. It was readily foreseeable that workmen would have to move in such a space from time to time and the deceased was one of them. At the very least CSR should have warned those such as the plaintiff and the first defendant of the risks associated with inhaling asbestos dust and fibre. In fact it did nothing. That failure constitutes negligence and is sufficient to permit the present proceedings to succeed against the third defendant as well.

36 This finding as to what was reasonably foreseeable by CSR is challenged. It is submitted that there was no evidence that CSR was aware or ought to have been aware of the layout of the Elizabeth store or the location of the services in that building. In my opinion, this postulates an unduly specific test of foreseeability, contrary to the principles referred to at par 22 above. CSR and the Ingham companies knew the general uses to which the asbestos fire retardant would be put. There is nothing to suggest that BI’s spraying techniques were unforeseeable or that the leaving behind of a substantial residue of asbestos that missed its primary target was an unexpected consequence of the application process. Since there was no warning issued by CSR as to the safe use of its product, CSR must be taken to have been on notice that it could be applied in places such as where it was encountered by the deceased. The trial judge’s findings referable to BI at J34 (set out above) are capable of application to the manufacturer as well.

37 The judge addressed foreseeability touching CSR as at 1964 at J33. He rejected the submission that the risk that came home against the deceased may not have been of a kind that was then foreseeable. In doing so he relied upon the reasoning in this Court’s judgment in Wren and upon the specific evidence that a warning about the dangers was communicated to Mr Brown of CSR (J33). The judge continued:

It was submitted that while it may be accepted that heavy exposure was known to cause sickness it was not known in 1964 that lighter exposure might produce sickness in the same way. I reject that submission for the same reasons. It has been stated repeatedly that there is no known safe dose for asbestos.

38 In this Court senior counsel for CSR repeated this particular submission. Mr Fernon also contended that the reference to there being no known safe dose for asbestos did not represent the state of knowledge in 1964.

39 I do not find it productive to dwell on the final sentence of J33. His Honour’s remark about there being no known safe dose for asbestos strikes me as something of a flourish. It may have been mistakenly taken from the evidence of Professor Henderson (Blue 82) which spoke of the state of scientific knowledge in 2000 relevant to the issue of causation of mesothelioma. It may however have been based on a 1947 Report (Blue 9, 11) that shows low exposure ranges contributing to carcinoma of the lung (cf Wren at 475). A better way of putting the point might have been that the state of knowledge in the early years did not permit one to say that low doses were safe. The broad thrust of the reasoning remains clear and sound.

40 Leaving the last sentence of J33 aside, the finding of duty on CSR’s part was amply supported both in the evidence and in the findings of primary fact elsewhere in the reasons. It is unnecessary to repeat the legal analysis by this Court in Wren and Julia Farr.

41 The 1960 British Medical Journal (Blue 23) gave no comfort to the proposition that a risk of contracting mesothelioma from even slight exposure was far-fetched or fanciful. The article speaks of asbestosis (not mesothelioma) as a “disappearing disease”; and even that confident assertion is based upon “utmost precautions” being taken. To the extent that CSR sought to distinguish between asbestosis and mesothelioma there is the difficulty of the article having dealt separately with the latter disease, without suggesting that dosage was significant. I also repeat my remarks about particularity of foreseeability (par 22 above).

42 Senior counsel endeavoured to distinguish Wren’s Case from the present one in submitting that the nature, duration and intensity of exposure of the deceased was materially different to that of Mr Wren. I do not agree. The facts properly found in the present case supported the conclusion as to duty. The essential reasoning of the primary judge is clearly exposed.

Breach of duty and causation

43 The appellants also sought to challenge the findings of breach and causation. Each related to the absence of warning via the deceased’s employer in relation to the risk of unprotected exposure to asbestos dust.

44 The development of the submission at the hearing demonstrated convincingly that the complaints contest findings of fact without exposing questions of law. In truth, the findings were well open to the judge on the evidence and the essential reasoning is amply disclosed.

45 It was found that the several duties of care generated, at the very least, an obligation to warn of the dangers associated with breathing in of asbestos dust. No such warning was given, nor were any steps taken to alert or protect tradesmen such as the deceased who would come into contact with the asbestos-laden dust from the area between the false ceiling and the concrete slab. The dust being spoken of was blue in parts (Black 17, Blue 97-8), corroborating Mr Snelling’s evidence that about up to 25% of what was sprayed missed its mark (J12, Blue 105).

46 At one stage the appellants submitted that there would have been no effective way whereby they could have warned tradesmen like the deceased who came to the site years after the product was supplied and installed. This submission contained distant echoes of the argument about duty of care and it ignored the likely impact of a warning given to the deceased’s employer. The answer was given convincingly by Duck J when rejecting a particular argument advanced at trial. His Honour said (J34):

A submission was made seeking to excuse the second defendant [BI] on the ground that it was really the duty of the employer to protect its worker and that somehow exculpates the second defendant. I do not accept that submission. If the second defendant had conveyed warnings to those likely to be affected by the material it was spraying about, including to the first defendant [the deceased’s employer], the plaintiff's illness may well have been prevented.

See also J15. Likewise, for CSR (see J30, 36).

47 At J36, it was pointed out that warnings could have been included in the consignment notes for the delivery of the raw asbestos.

Admission of evidence

48 Each appellant submitted that the judge erred in granting leave pursuant to s25(3) of the Act to tender the transcript of evidence given by Mr Snelling in the Williams proceedings. It was contended that his Honour ought then to have directed himself that such evidence be confined to “evidence of the history of dust exposure as contemplated by that section” (Orange 136, 143). This is the form of the complaint in the notices of appeal.

49 In written submissions, CSR pressed the point in complaining about Mr Snelling’s evidence concerning the extent of CSR’s ownership of BI (Orange 74, Blue 103U-W). It is unclear whether this argument was pressed. But it goes nowhere, because the judge relied upon an alternative source for his findings concerning the relationship between CSR and BI (see J26).

50 BI submitted that Mr Snelling’s evidence about BI’s actual knowledge of the risks of asbestos in 1959-62 is not “historical evidence … concerning dust exposure and dust diseases” within s25(3). In my opinion, it was (see Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (1999) 18 NSWCCR 385).

Contribution between tortfeasors

51 The three defendants claimed contribution or indemnity under the South Australian legislation that is equivalent to s5 of the Law Reform (Miscellaneous Provisions) Act 1946.

52 Judge Duck concluded:

51. Submissions have been addressed to the Court about the relative share of the blame, if I may so describe it, which the defendants should bear. The submissions have been made on the footing that the second and third defendant, who were represented by the same counsel, can be considered on the one hand in this regard and the first defendant's responsibility assessed on the other hand. The guiding principle to be applied in such matters requires that the court consider causal potency of the conduct of the tort feasors and their moral culpability. See Macquarie Pathology Service Pty Limited v Sullivan NSWCA 28 March 1995; James Hardie & Co Pty Limited v Roberts (1999) [47 NSWLR 425]. As to causal potency nobody has said much. That is understandable because the failure has been really a failure to warn.
52. As regards moral culpability submissions have been made to the effect that the second and third defendants had actual knowledge of the risks at all relevant times, that is in 1974, which I am satisfied is when the principal exposure of the deceased occurred. Evidence from the person in charge of maintenance at the store was to the effect that he had no idea of the dangers associated with asbestos then. Submissions have been made about whether deemed knowledge, and actual knowledge should be equated. I do not know that to pursue the matter in those terms helps particularly.
53. I accept the submission that the second and third defendants knew relevantly of the risks and that the first defendant, who was their customer, did not. In the light of that fact I conclude that the second and third defendants should bear three-quarters of the responsibility for the verdicts and the first defendant should bear one quarter.

53 BI and CSR were content to stand shoulder to shoulder as regards contribution. They submitted that legal error affected the determination that they should bear 75% of the damages compared to the 25% apportioned to the employer.

54 The appellants submitted that the reasoning in the passage set out above disclosed legal error in its reference to “moral culpability”. It was also submitted that the judge had failed to compare the relative importance of the whole conduct of the various defendants.

55 In Macquarie Pathology Clarke JA said that:

… the court is concerned with considering relative blameworthiness and the relevant causal potency of the negligence of each party.

See also Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494, James Hardie & Co Pty Ltd v Roberts at 446-8.

56 Several of the apportionment cases have observed the close analogy between reduction of damages for contributory negligence and apportioning as between tortfeasors. A leading case on contributory negligence that was cited by Clarke JA in Macquarie Pathology is Pennington v Norris (1956) 96 CLR 10. In Pennington, the High Court held (at 16):

The only guide which the statute provides is that it requires regard to be had to “the claimant’s share in the responsibility for the damage”. … What has to be done is to arrive at a “just and equitable” apportionment as between the plaintiff and the defendant of the “responsibility” for the damage. It seems clear that this must of necessity involve a comparison of culpability. By “culpability” we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man. To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable, because, while the defendant’s negligence is a breach of duty owed to other persons and therefore blameworthy, the plaintiff’s “contributory” negligence is not a breach of any duty at all, and it is difficult to impute “moral” blame to one who is careless merely of his own safety.

57 The last sentence of this passage suggests the need for caution in pressing too far the analogy between contributory negligence and apportionment between tortfeasors. Nevertheless, there is no basis for doubting the proposition that moral blameworthiness per se is irrelevant to the apportionment calculus.

58 In my opinion, Duck J did not fall into the error of applying any such extra-legal criterion. “Moral culpability” was an expression used during argument at trial by then counsel for the appellants (Black 121). The use of “moral culpability” is an infelicitous shorthand, but the meaning is plain enough and it is borne out by the reasoning in J52 which addressed comparable “degrees of fault” (cf Watt v Bretag (1982) 56 ALJR 760 at 761) or comparable “blameworthiness” (Macquarie Pathology). There are vital differences between negligence and moral blameworthiness, but the conventional analysis of the tort is by no means divorced from considerations of moral blameworthiness or the language of ethics (see generally James Goudkamp, “The Spurious Relationship between Moral Blameworthiness and Liability for Neligence” [2004] MULR 11).

59 The second attack on the judgment was directed at the reasoning that gave weight to the fact that the appellants had actual knowledge of the risks of supplying the asbestos product without warning as to unprotected exposure, compared to the situation of the deceased’s employer. It was found that the employer ought to have known of the danger to which it was exposing the deceased and that, had it learnt of the danger from either of the appellants, it would have taken steps to protect its employee.

60 These appeals were heard on 10 August 2005. On the following day the Court, differently constituted, heard two further appeals by BI (Contracting) Pty Ltd. A central issue in those appeals was the one currently under consideration. At the start of the hearing of those appeals the Court drew the attention of the parties to Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649, Downs v Chappell [1997] 1 WLR 426 at 445 and Rolls Royce Industrial Power (Pacific) Ltd v James Hardie and Co Pty Ltd (2001) 53 NSWLR 626 at 647[136]-[137], 648[144]. In light of those authorities, Mr Fernon SC for BI withdrew the submission that it was irrelevant to give weight to the fact that a defendant has actual knowledge of the risk attending its conduct when considering apportionment vis-à-vis another defendant whose negligence stems from unreasonable failure to respond to what it ought to have known. That concession was properly made. There is no merit in the second basis of attack on the apportionment.

61 If there were remaining complaints they went no further than cavilling at the particular apportionment awarded.

62 Accordingly, the four appeals should be dismissed with costs.

63 HANDLEY JA: I agree with Mason P.

64 BEAZLEY JA: I agree with Mason P.

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