Gates v Howard Rotavator Pty Ltd
[2000] NSWDDT 14
•19 May 2000
(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 told that the relevant rules appear in the following passage in the judgment of Mason P in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 317 (omitting citations) where his Honour states:
It can be demonstrated that the common law is not unsympathetic to the plight of plaintiffs who are faced with multiple defendants yet uncertain as to which of them was legally responsible, where it appears that not all of them were. First, proof that any defendant caused or contributed to injury or damage by negligent breach of duty of care will suffice to impose liability on that defendant. In other words, the law readily embraces the notion that several persons may bear legal responsibility for the one injury. Secondly, the trier of fact is entitled (indeed encouraged) to take a “robust and pragmatic approach” to proof of causation. The inability to call lay or expert evidence that shows the precise way in which something has happened is not fatal. Thirdly, slight evidence may suffice to persuade the trier of fact that liability has been sheeted home to a defendant where the facts are particularly within the knowledge of that party. Fourthly, a plaintiff who has sued multiple defendants, one or more of whom may be liable, is entitled, upon showing prima facie that at least one defendant may be responsible, to insist that the court hear the whole of the evidence before entertaining submissions by any other defendant that no case has been established against that defendant. Fifthly, there is a special rule relating to pre-existing medical conditions that ... where a plaintiff ... made out a prima facie case that incapacity has resulted from the defendant’s negligence the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would in any event have resulted from a pre-existing condition rests upon the defendant.
Counsel for the defendant concedes that his is a novel proposition. He says he takes comfort from a description by Beazley JA in EM Baldwin & Son v Plane (1998) 17 NSWCCR 434 at [6] of the “evolutionary” stages presenting in “the legal battle between employers and employees in mesothelioma cases”.
The submissions are misconceived. They ignore the statement in the same paragraph of her Honour’s reasons that “such cases must be brought within the normative rules of negligence”.
This defendant and the earlier employer are several concurrent tortfeasors whose omissions have concurred to produce a single damage in the plaintiff. The normative rules of liability in such cases are succinctly presented in Trindade F and Cane P The Law of Torts in Australia (1999) 3rd ed, Oxford University Press, where at 746 the authors write:
Sometimes the same damage to the plaintiff may be the result of tortious conduct by more than one person. The plaintiff is free to choose which of such persons to sue and if the plaintiff chooses to sue only one of them the plaintiff is entitled to judgment against that person for the full amount of any damages awarded. Where a plaintiff sues more than one defendant in tort in respect of the same damage and more than one are held liable the plaintiff is entitled to judgment against each and every one for the full amount of the damages awarded whether their liability is joint or several and concurrent. This is sometimes expressed by saying that the liability of multiple tortfeasors is “solidary” rather than “proportionate” to their “responsibility” for the loss suffered. It is not open to any of the defendants to argue, as against the plaintiff, that their contribution to the damage was smaller than that of others or that they were only partly responsible. Such arguments can only be put in contribution proceedings against the other defendants, the aim of which is to apportion the liability amongst tortfeasors according to their relative responsibility. The plaintiff is entitled to recover the whole amount of the loss against any one or a combination of the defendants but may of course only recover in total the full amount of the loss.
These rules in no way concern difficulties of proof which may confront plaintiffs. The rules to which Mason P referred in Bendix Mintex do not ordain the result that this defendant is liable to pay the whole of the plaintiff’s damage. In any event once the sympathetic purpose of the rules to which Mason P refers is discharged by a finding of causation, they are irrelevant to the consequence of that finding. Upon the admissions made by this defendant, rules assisting a finding of causation are irrelevant to the determination of this case.
What this defendant attempts is an attack upon the principle that the liability of tortfeasors causing the same damage is in solidum. I commend to its legal advisers the discussion by the learned authors of The Law of Torts in Australia (at 747 – 749) in which they conclude that:
Solidary liability coupled with rights of contribution would seem preferable to proportionate liability and this was the main consideration that led the New South Wales Law Reform Commission in 1990 and again in 1997 to reject calls for proportionate liability.
There will be a verdict for the plaintiff for the whole of his damages.
[At [12] to [17] his Honour considered the appropriate assessment of damages and ordered a verdict and judgment for the plaintiff not calling for report - Ed]
Solicitors for the plaintiff: Turner Freeman
Solicitors for the defendant: Hunt & Hunt
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