Gates v Howard Rotavator Pty Ltd - [2000] NSWDDT 14

(2000) 20 NSWCCR 7

GATES v HOWARD ROTAVATOR PTY LTD
[2000] NSWDDT 14

Dust Diseases Tribunal of New South Wales: Curtis J

19 May 2000

Dust Diseases Tribunal - Damages - Multiple tortfeasors causing the same damage - Liability of tortfeasors solidary rather than proportionate to responsibility for loss - Plaintiff entitled to judgment for full amount of damages awarded against any defendant tortfeasor found liable

A.J. Leslie QC and A.O. Leslie, for the plaintiff
L.J. Ellison, for the defendant

Ex tempore

CURTIS J: The plaintiff on 3 August 1937 at the age of 15 commenced work as an apprentice blacksmith in a factory in Boundary Road, Northmead, making agricultural machinery. With the exception of 3 years war service from 1943 to 1946 he worked as a blacksmith in that factory until his retirement on 3 April 1982 at the age of 60. In the course of this work Mr Gates inhaled asbestos dust and fibre which has caused in him the disease of mesothelioma.

The factory was owned and operated between 1937 and 1 March 1953 by a company known as Howard Cultivators Pty Ltd and from 2 March 1953 by the defendant, Howard Rotavator Pty Ltd, which then employed the plaintiff until his retirement.

The defendant admits that as a result of breach by it of the duty of care owed to the plaintiff, the plaintiff inhaled asbestos dust and fibre from which he contracted his disease. It does not dispute the opinion of Dr Henderson that the plaintiff’s mesothelioma was caused by his total cumulative exposure to asbestos at the Boundary Road factory, admitting that the plaintiff’s damage is one and indivisible and that the plaintiff’s exposure to asbestos dust and fibre in the service of the defendant was a necessary condition of his contracting his disease. The defendant further concedes that if the earlier employer were also before the court as a defendant, each defendant would be liable as a several concurrent tort feasor for the whole of the plaintiff’s damage.

The defendant submits, however, that it should pay a portion only of the plaintiff’s damages proportionately related to the plaintiff’s asbestos exposure during his employment by the defendant. The submission made by counsel for the defendant, as best I understand it, is that where a plaintiff can identify all tort feasors who have materially contributed to his damage and he sues only one of them, he may not recover from that defendant more than a sum which represents the contribution of that defendant to his damages. It is unfair to a defendant, the argument runs, that it should be liable for the whole of the plaintiff’s damage when its was but a contributing part and the other defendants are available for suit. The purpose of the legal rules mandating such a result is said to be sympathy to difficulties faced by plaintiffs in proving causation. Where the difficulties do not arise, as I understand the submission, the rules should be relaxed.

I am…

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 Gates v Howard Rotavator Pty Ltd

Details

AGLC: Gates v Howard Rotavator Pty Ltd [2000] NSWDDT 14
Case: [2000] NSWDDT 14
Decision Date: 19 May 2000

CaseChat Overview and Summary

The case of Gates v Howard Rotavator Pty Ltd was heard by the Dust Diseases Tribunal. The plaintiff, Gates, brought an action against the defendant, Howard Rotavator Pty Ltd, alleging damages for exposure to asbestos. The dispute centred on the quantum of damages awarded and the nature of liability when multiple parties are responsible for the same harm. The court had to determine the extent to which the defendant was liable for the plaintiff's injuries.

The primary legal issue before the tribunal was the allocation of liability among multiple tortfeasors who have caused the same harm. Specifically, the tribunal needed to decide whether the defendant's liability was solidary or proportionate to the extent of their responsibility for the plaintiff's injuries. This issue hinged on whether the plaintiff was entitled to full recovery against any one of the multiple tortfeasors found liable. The tribunal also considered the principle of full compensation in tort law, ensuring that the plaintiff does not suffer a loss due to the financial capacity of any one defendant.

In its reasoning, the tribunal emphasised that in cases involving multiple tortfeasors, the law imposes solidary liability. This means that each defendant is liable for the entire amount of damages, and the plaintiff can recover the full amount from any one defendant. This principle ensures that the plaintiff does not suffer due to the financial limitations of any one defendant. The tribunal found that the defendant was indeed liable for the full amount of damages awarded, aligning with the principle of full compensation in tort law. The tribunal rejected any argument for apportionment of damages among the tortfeasors.

Consequently, the tribunal ordered that the defendant, Howard Rotavator Pty Ltd, was liable to pay the full amount of damages awarded against any of the tortfeasors found liable. This decision ensured that the plaintiff would receive full compensation for their injuries, irrespective of the financial capacity of any one defendant.

Orders