Patrick Operations Pty Ltd v Comcare

Patrick Operations Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the Dust Diseases Tribunal, which had ordered Patrick Operations to contribute to damages awarded to an employee who had contracted a dust-related disease. The dispute concerned the extent of Patrick Operations' liability for the employee's condition, given that the employee had also been exposed to asbestos during prior employment with another entity.

The Court of Appeal was required to determine whether the Dust Diseases Tribunal had erred in law by apportioning the whole of the damages payable to the employee between Patrick Operations and the prior employer, despite the divisible nature of the damage. A further issue was whether the Court of Appeal had the power to make a fresh apportionment of damages itself, or if the matter should be remitted back to the Tribunal for redetermination.

The Court of Appeal found that the Tribunal had made an error of law in its apportionment of damages. The Court reasoned that where damage is divisible, as in this case of progressive occupational disease, the apportionment should reflect the contribution of each employer to the overall harm. The Court concluded that it did not have the necessary factual material to make a fresh apportionment and that the appropriate course was to remit the proceedings to the Dust Diseases Tribunal for further determination according to law.

Consequently, the Court of Appeal set aside the verdict and judgment of the Dust Diseases Tribunal and remitted the proceedings for redetermination. Costs in the Tribunal were left to the discretion of the judge conducting the further determination, and Patrick Operations was ordered to pay the respondent's costs of the appeal.