Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd

Rolls Royce Industrial Power (Pacific) Ltd (Rolls Royce) and James Hardie & Co Pty Ltd (James Hardie) were parties in a dispute concerning contribution claims arising from negligence leading to mesothelioma. The case was heard by Curtis J in the Dust Diseases Tribunal. Rolls Royce had brought contract claims against James Hardie, which were dismissed. Both Rolls Royce and James Hardie were found to have breached their duty of care to the plaintiff, with James Hardie's breach described as gross. James Hardie also sought contribution from the State of New South Wales (NSW), alleging NSW's negligence in failing to protect workers from known dangers.

The court was required to determine the extent of contribution between Rolls Royce and James Hardie, the apportionment of liability between them, and whether James Hardie was entitled to contribution from NSW. Specifically, the court had to consider if NSW had a duty of care to the plaintiff, whether it breached that duty, and if so, whether it was just and equitable for NSW to contribute to James Hardie's liability, given James Hardie's own significant culpability. The court also had to address disputes regarding costs, including the effect of a Calderbank letter and the allocation of costs for the contract claim.

Curtis J found that James Hardie was in breach of its duty of care to the plaintiff, and this breach was gross. Rolls Royce was also found to be in breach of its duty of care. The judge apportioned responsibility equally between James Hardie and Rolls Royce, meaning each was liable for 39.8% of the plaintiff's total judgment. Rolls Royce was awarded a verdict of $37,750 against James Hardie. Regarding the claim against NSW, Curtis J found that the relevant legislation did not grant NSW the power to control the risk-producing activity at the site. While acknowledging that a general law duty of care might exist for the State, the judge ultimately concluded that it was not just and equitable for NSW to contribute to James Hardie's liability, reasoning that James Hardie created the danger while the State merely failed to avoid it, and that the loss should not be borne by taxpayers when James Hardie profited from its dangerous products.