Bitupave Ltd v McMahon - [1999] NSWCA 330

CITATION: BITUPAVE LTD v McMAHON & ORS [1999] NSWCA 330

FILE NUMBER(S): CA 40387/97

HEARING DATE(S): 25 June 1999

JUDGMENT DATE:
13 September 1999

PARTIES :

BITUPAVE LTD v GRAHAME LYLE McMAHON & ORS

JUDGMENT OF: Mason P at 1; Meagher JA at 54; Cole AJA at 66

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S) : DDT 145/96

LOWER COURT JUDICIAL OFFICER: Curtis J

COUNSEL: J D Hislop QC and D Miller (Appellant)
G Little (2nd and 3rd Respondents)

SOLICITORS: Moray & Agnew (Appellant)
McCulloch & Buggy (Respondents)

CATCHWORDS: DUST DISEASES - Exposure of respondent to asbestos by successive employers - respondent contracted mesothelioma ; APPORTIONMENT OF LIABILITY - s5(2) Law Reform (Miscellaneous Provisions) Act 1946 - Comparison of parties’ relative culpability - Consideration of relative blameworthiness and relevant causal potency - No medical basis to determine other than that all exposure was equally relevant - Exercise of apportionment task by trial judge - Whether entitled to have regard to factors indicating varying lengths, degree and knowledge of exposure by employers; Discussion of apportionment proposition in E M Baldwin & Son Pty Ltd v Plane (1999) Aust Torts Reports 91-499

DECISION: Dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40387/97
DDT 145/96

MASON P
MEAGHER JA
COLE AJA
Monday 13 September 1999

BITUPAVE LIMITED v GRAHAM LYLE McMAHON & ORS
JUDGMENT

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

• between 1962 and 1964 as a storeman. In this work, the deceased was exposed very occasionally to asbestos dust in the reception and distribution of stores containing asbestos material. In the judgment as to contribution issues it was held that, although in retrospect this period of employment was causally relevant, this exposure was not by the standards of the time associated with a foreseeable risk of injury. In that sense, the exposure was not tortious and Quarries was not, in respect of that period, “liable for the same damage” in the sense that for the purposes of s5 of the Law Reform (Miscellaneous Provisions) Act 1946 ;
• between 1964 and 1969 the deceased was employed as a fitter. He was exposed to and inhaled visibly high concentrations of asbestos dust while changing clutches and brake shoes on trucks and heavy quarrying machinery. This dust was generated in part by the assembly of replacement brake shoes in the workshop and in part by the process of removing worn shoes and clutches. Other work of a more occasional nature involved use by the deceased of asbestos rope and mittens. In the last two years of this period (1967-1969), the deceased specialised in maintaining the face machinery and was exposed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bitupave Ltd v McMahon

Details

AGLC: Bitupave Ltd v McMahon [1999] NSWCA 330
Case: [1999] NSWCA 330
Decision Date: 13 September 1999

CaseChat Overview and Summary

Bitupave Ltd appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales. The respondent, Mr. McMahon, had contracted mesothelioma as a result of exposure to asbestos during his employment with successive employers, including the appellant. The primary dispute concerned the apportionment of liability between the employers for the respondent's illness.

The central legal issue before the Court of Appeal was whether the trial judge had erred in apportioning liability under section 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). Specifically, the court had to determine whether the trial judge was entitled to consider factors indicating varying lengths, degrees, and knowledge of exposure by the different employers when undertaking the apportionment exercise, or whether the apportionment should have been based solely on the equal causal potency of all asbestos exposure.

The Court of Appeal, comprising Mason P, Meagher JA, and Cole AJA, dismissed the appeal. The court reasoned that the apportionment under section 5(2) requires a comparison of the parties' relative culpability, which involves considering both their blameworthiness and the relevant causal potency of their conduct. The court found no medical basis to conclude that all exposure was not equally relevant, and therefore, the trial judge was entitled to have regard to the varying factors of exposure presented by each employer. The court affirmed the principles of apportionment as discussed in cases such as *E M Baldwin & Son Pty Ltd v Plane*.

The appeal was dismissed with costs.

Orders

Orders of the court

Dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	BITUPAVE LTD v McMAHON & ORS [1999] NSWCA 330
FILE NUMBER(S):	CA 40387/97
HEARING DATE(S):	25 June 1999
JUDGMENT DATE:	13 September 1999
PARTIES :	BITUPAVE LTD v GRAHAME LYLE McMAHON & ORS
JUDGMENT OF:	Mason P at 1; Meagher JA at 54; Cole AJA at 66

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S) :	DDT 145/96
LOWER COURT JUDICIAL OFFICER:	Curtis J

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