Bitupave Ltd v McMahon

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.