Seltsam Pty Ltd v Ghaleb - [2005] NSWCA 208

No judgment structure available for this case.

CITATION:
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
17/06/05

JUDGMENT DATE:

1 September 2005

JUDGMENT OF:
Mason P at 1; Ipp JA at 18; Basten JA at 144

DECISION:
(1) Appeal upheld (2) Set aside the judgment and verdict granted by Walker J (3) Case to be remitted to the Dust Diseases Tribunal to be heard afresh by a different judge (4) Respondent to pay the costs of the appeal (5) The judge hearing the new trial should determine the costs of the trial before Walker J (6) As regards the costs of the appeal the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

CATCHWORDS:
PROCEDURAL FAIRNESS - Judge, without stating notice of his intention to do so, determining the case on a basis different to that put forward by the parties throughout the trial - Whether necessary to lead evidence to show that appellant would have conducted its case differently - DAMAGES - Personal injury - Plaintiff with a pre-existing condition - Whether plaintiff's pr-existing condition was a contributing factor to his or her injury - Watts v Rake (1960) 180 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 apply subject to the principles expressed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 - APPEAL - Decision of Dust Diseases Tribunal - Jurisdiction of appellate court - s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW) - Existence of an error "in point of law" - Lack of procedural fairness - Finding of fact in the absence of evidence - Whether appellate court should make order as to constitution of the tribunal upon a re-hearing. D

LEGISLATION CITED:
Administrative Appeals Tribunal Act 1975 (Cth), s 44(1)
Commercial Arbitration Act 1984 (NSW), ss 38, 42
Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA)
Compensation Court Act 1984 (NSW), s 32
Dust Diseases Tribunal Act (1989), ss 4, 11A, 13(2), 32 (1), 32(2), 43(3)(c)
Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 54
Income Tax Assessment Act 1936-1969 (Cth), ss 196, 199
Land and Environment Court Act 1979 (NSW), s 57
Supreme Court Act 1970, s 48
Supreme Court Rules 1970 (NSW), Pt 51, r 23
Workers Compensation Act 1987 (NSW), s 10(2)

CASES CITED:
Attorney-General (NSW) v X (2000) 49 NSWLR 653
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gaslight Co v Valuer General (1940) 40 SR(NSW) 126
Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411
Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Balenzuela v De Gail (1958-9) 101 CLR 226
Barnes v Hay (1988) 12 NSWLR 337
Brear v Commonwealth [1999] 18 NSWCCR 637
Bruce v Cole (1998) 45 NSWLR 163
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Commercial Minerals Ltd & Auqual Pty Ltd v Hollins (unreported, NSWCA, 22 December 1993)
Commonwealth of Australia v Elliott [2004] NSWCA 360
Conway v The Queen (2002) 209 CLR 203
Curnuck v Nitschke [2001] NSWCA 176
Director of Public Prosecutions v Parker (1992) 28 NSWLR 282
Edwards (Inspector of Taxes) v Bairstow [1956] AC 14
Escobar v Spindaleri (1986) 7 NSWLR 51
Fairmount Ltd v Environment Secretary (1976) 1 WLR 1255
Frost v Amaca Pty Ltd (2004) 61 NSWLR 159
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Grygiel v Baine & Ors [2005] NSWCA 218
Henville v Walker (2001) 206 CLR 459
Hill v Green (1999) 48 NSWLR 161
John v Rees [1970] Ch 354
Jones v National Coal Board [1957] 2 QB 55
Kanda v Government of Malaya [1962] AC 322
Krew v Commissioner of Taxation (1971) 45 ALJR 324
Mahony v Watson [2003] NSWCA 259
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Mkari v Meza [2005] NSWCA 136
Monaco v Arnedo Pty Ltd (unreported, Full Court, SCt of WA, 6 September 1994)
Muin v Refugee Review Tribunal (2003) 76 ALJR 966
Newell v Lucas [1964-5] NSWR 1597
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116
Pantorno v The Queen (1989) 166 CLR 466
Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74
Purkess v Crittenden (1965) 114 CLR 164
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
Road Traffic Authority of NSW v Perry (201) 52 NSWLR 222
Rosenberg v Percival (2001) 205 CLR 434
Touma v Saparas [2000] NSWCA 11
Ruddock v Taylor (2003) 58 NSWLR 269
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Shorey v PT Pty Ltd (2003) ATR 81-701
Sinha v Health Care Complaints [Commission] [2001] NSWCA 206
Smith v NSW Bar Association (1992) 176 CLR 256
Solution 6 Holdings Ltd v Industrial Relations Commission of NSW & Ors (2004) 60 NSWLR 558
Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247
Stead v State Government Insurance Commission (1986) 161 CLR 141
Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 QB 405
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Watts v Rake (1960) 108 CLR 158
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
Winston v Roach [2003] NSWCA 310
Wintle v Nye [1959] 1 All ER 552
Wrigley Company Pty Ltd v Hollands (2002) 23 NSWCCR 463
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
Wyoming Nursing Home Pty Ltd v Palazzotto (unreported, NSWCA, 11 October 1995)
Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156

PARTIES:
Seltsam Pty Limited (Appellant)
Ibrahim Ghaleb (Respondent)

FILE NUMBER(S):
CA 40649/04

COUNSEL:
G Watson SC/A Ventura (Appellant)
M Joseph SC/M Cahill (Respondent)

SOLICITORS:
Makinson & D'Apice (Appellant)
Slater & Gordon (Respondent)

LOWER COURT JURISDICTION:
Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S):
DDT 107/03

LOWER COURT JUDICIAL OFFICER:
Walker J

CA 40649/04
DDT 107/03

MASON P
IPP JA
BASTEN JA
Thursday, 1 September 2005

SELTSAM PTY LTD v IBRAHIM GHALEB

FACTS

Seltsam Pty Ltd was a manufacturer of asbestos-cement products and employed Mr Ghaleb, between April 1971 and July 1977, as a worker in its factory. Seltsam’s business was thereafter bought by Amaca Pty Ltd and Mr Ghaleb was in Amaca’s employ from July 1977 until November 1986.

Mr Ghaleb brought proceedings against Seltsam and Amaca in the Dust Diseases Tribunal. He alleged, before Walker J, that Seltsam and Amaca had negligently caused him to be exposed to asbestos in the course of his employment in their factories and that they had thereby caused him to suffer injury in the form of asbestos-related pleural disease (“ARPD”).

On 24 May 2004, after the trial before Walker J had commenced, the proceedings between Mr Ghaleb and Amaca were settled.

Walker J, having found that Mr Ghaleb suffered from ARPD, considered whether that illness was caused by Seltsam alone or Amaca as well. His Honour concluded that the illness had, in its entirety, been caused by Seltsam and entered a verdict and judgment for provisional damages of $314,594 against it in favour of Mr Ghaleb.

Seltsam now appeals, purportedly in accordance with s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW), against Walker J’s decision.

HELD per Ipp JA (Mason P agreeing):

Denial of Procedural Fairness

1. Mr Ghaleb, during the trial before Walker J, conceded that Amaca had, in part, caused him to suffer from ARPD and was partly liable for the damages caused by the ARPD. Seltsam conducted its case on this basis. Walker J did not inform the parties of his intention to depart from the way in which the case had been so conducted and to make findings contrary to the concessions that Mr Ghaleb had made.

2. The basis on which parties conduct a trial does not bind the judge but he or she must, if contemplating determining the case on a different basis, inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise. A failure to inform the parties of this will ordinarily result in a denial of procedural fairness.

3. A new trial will, when a party has not been afforded a fair trial, only be ordered when a properly conducted trial might possibly have produced a different outcome. It will not, however, ordinarily be necessary to lead evidence to prove that the denial of procedural fairness such as that which occurred in this case had the potential to affect the manner in which a party conducted the proceedings and, therefore, the outcome of the trial; in most cases the facts will speak for themselves.

4. Walker J did not only go beyond the case as conducted by the parties, he ignored the concessions of Mr Ghaleb and, on material issues, made findings contrary to those concessions. There has, in consequence, been a denial of procedural fairness to Seltsam. It is self-evident that this has led to a serious miscarriage of justice; on the facts of this case no evidence is required to establish this conclusion.

Proof of Pre-Existing Condition

5. ARPD is a restrictive illness and Seltsam contended, at the trial, that Mr Ghaleb suffered from another restrictive condition, this one pre-existing, that affected his lung functioning (namely, obesity).

6. The onus of proof that a defendant must discharge when alleging that a plaintiff’s pre-existing condition was a contributing factor to his or her injury arising from the negligent act or omission in question is that explained in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. Nothing in those cases imposes an onus on the defendant to prove that a pre-existing condition had made a material contribution to the plaintiff’s injury.

7. The onus of proof a defendant has to discharge according to Watts v Rake and Purkess v Crittenden is subject to the principles expressed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 when the circumstances involved include hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. Malec v JC Hutton Pty Ltd indicates that the court is required to evaluate possibilities in these circumstances and is not concerned with proof on a balance of probabilities. This means that a pre-existing condition proved to have possible, not probable, on-going harmful consequences to a plaintiff cannot be disregarded by the court.

8. Walker J erred in stating that there was an onus on Seltsam to prove that obesity made a material contribution to Mr Ghaleb’s restrictive lung condition. His Honour also erred in failing to assess the possible on-going harmful consequences caused by Mr Ghaleb’s obesity to his restrictive lung condition.

HELD per Mason P (Ipp JA agreeing):

Constitution of the Tribunal

1. The Supreme Court of NSW has the power, under s 32(2) of the Dust Diseases Tribunal Act, to make an order as to the constitution of the Tribunal when it re-hears a case but should only use that power sparingly and when it is appropriate in the interests of justice.

2. Where the first trial has been conducted in such a manner as to give rise to a reasonable apprehension of bias this will usually ground an order as to the constitution of Tribunal for the new trial. But the power of the Supreme Court of NSW to make such an order is not limited to that situation. There can be cases where a complicated process of fact-finding has miscarried through a combination of factors and the interests of justice, including its appearance, require that the new trial take place before a differently constituted Tribunal. This is particularly so where the first trial resulted in a judgment turning upon credibility-based findings.

3. The trial before Walker J, whose judgment did turn on credibility-based findings, miscarried through a combination of factors. There needs to be a new trial on all issues and the parties should be offered a fresh start before a fresh fact-finder. An order, therefore, is made as to the constitution of the Tribunal for the new trial.

Per Basten JA (dissenting):

(1) In relation to the three matters said not to be supported by evidence:

(a) there was evidence sufficient to allow the Tribunal to find that there was a second pleural effusion in 1979;

(b) there was no error of law in finding there was no pleural effusion in 1985, and

(2) The Tribunal having correctly identified the legal principles derived from Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, the complaint that it misapplied those principles did not constitute an error in point of law because the application involved findings of primary fact and inferences drawn from them.

(3) It was not argued by the Appellant that the principles derived from Watts and Purkess were wrongly identified because the Tribunal did not follow the approach required by Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

(4) The departure of the Tribunal from two “concessions” made by the Respondent during the hearing, and particularly the “concession” as to the liability of Amaca Pty Ltd for part of his disability, did not constitute breaches of procedural fairness because the Appellant failed to demonstrate that it was deprived of or deflected from an opportunity to tender any evidence or present any submissions which it might otherwise have taken.

(5) In remitting a matter for further consideration by the Tribunal, the Court should not give directions as to the constitution of the Tribunal unless such a direction is appropriate and necessary in the interests of justice and has been sought by a party.

(6) (a) Discussion of the nature of an appeal by a party who is “dissatisfied with the decision … in point of law”: [148]-[168].

Vetter v Lake Macquarie City Council

Azzpoardi v Tasman UEB Industries Ltd

Krew v Commissioner of Taxation

Vetter v Lake Macquarie City Council

Orders

The following are the orders of the court:

(a) The appeal is upheld and the judgment and verdict granted by Walker J is set aside.

(b) The case is to be remitted to the Dust Diseases Tribunal to be heard afresh by a different judge.

(c) The respondent is to pay the costs of the appeal.

(d) The judge hearing the new trial is to determine the costs of the trial before Walker J.

(e) As regards the costs of the appeal, the respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.

CA 40649/04
DDT 107/03

MASON P
IPP JA
BASTEN JA
Thursday, 1 September 2005

SELTSAM PTY LTD v IBRAHIM GHALEB

Judgment

1 MASON P: I have had the benefit of reading in draft the judgments of Ipp JA and Basten JA.

2 I agree with Ipp JA, adding the following.

3 As to the question about misapplication of the principles in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, I acknowledge this to be a case where the learned primary judge acknowledged the distinction between evidentiary and persuasive onus in some of his statements of general principle. However, for the reasons given by Ipp JA, the method of application to the facts demonstrates to my satisfaction that his Honour did not give effect to the distinction and in so doing erred in law (cf Wintle v Nye [1959] 1 All ER 552 at 559).

4 As to procedural fairness, this judicial obligation is relevantly concerned with affording a reasonable opportunity to present or meet a case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611[40]). That opportunity is vital both to the reality and the appearance of justice. Just outcomes are grounded upon the court or tribunal addressing the issues presented, particularly where litigation proceeds according to the adversary principle.

5 Where an adjudicator hears evidence or receives argument from one side behind the back of another there will be want of procedural fairness without inquiring into the probative impact of that evidence or representation. The same goes for a refusal to entertain a relevant argument that one party wishes to put, is stopped from putting, and later turns out to have been rejected.

6 The reasons are twofold, tracking the twofold function of the doctrine as identified above. First, the appearance of fairness has been shattered in a material respect. As Lord Denning put it on behalf of the Judicial Committee of the Privy Council in Kanda v Government of Malaya [1962] AC 322 at 337-8:

The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing.

7 Secondly, there is virtually no means of discovering the impact of the secret material upon the mind of the adjudicator without transgressing the very assumptions underlying the doctrines of procedural fairness and of judicial (or limited appellate) review. I agree with Professor D J Galligan who wrote (“Procedural Fairness” in Peter Birks ed, The Frontiers of Liability vol 1, 1994):

[

John v Rees

[1970] Ch 354 at 402]

The difficulty is compounded when we take into account the special position of the courts in exercising judicial review; their task is to decide matters of legality and procedure, not to assess the merits. The court faces a dilemma: to judge that a procedure would have made no difference to the original decision, the court has to put itself in the place of the decision-maker; but the more it does that, the closer it comes to an assessment of the merits. This difficulty points to an approach which, in most cases, is the most sensible: since they cannot know with any certainty the effects of the procedural defect, the courts would be wise to order that the procedural requirements be upheld. This need not be inflexible, and there may be exceptions; but exceptions should need to pass a clear and compelling test, and rarely be allowed.

8 These principles apply with equal force to appellate review limited to questions of law in relation to a trial that proceeded on a concession as to an important issue of fact which was ignored or departed from for the first time in the reasons for judgment. The law should not countenance a purely speculative argument that it would have made no difference had the departure been signalled earlier. In a case such as the present, where there was a firm body of evidence supporting Amaca’s liability, not to mention the settlement with Amaca itself, it is theoretically and practically inconceivable that argument might not have swayed the Tribunal’s mind in that direction. Such argument was not advanced, but obviously for no reason other than that counsel perceived that the Tribunal would treat the matter in accordance with the concession, or at least signal its intention to depart from it before doing so.

9 Accordingly, I agree with Ipp JA that there was a breach of procedural fairness in the present case, flowing from the very fact that both sides proceeded on the basis of it being common ground that Amaca should bear some proportion of the damages. We do not know and we should not assume that Walker J might not have been swayed by argument that was never put in opposition to a signalled intention to depart from this common ground.

10 If, contrary to my preferred categorical stance, it is necessary to proceed on the basis of inference as to detrimental reliance on the part of the appellant’s counsel at trial, I would readily do so.

11 The third matter I wish to address is the question of the constitution of the Tribunal in the rehearing directed by this Court. Section 32(2) of the Dust Diseases Tribunal Act 1989 is a source of this Court’s power, in a proper case, to give a direction as to the constitution of the Tribunal in a matter remitted following a successful appeal.

12 The power to direct a hearing by other than the original judicial officer is used sparingly and only when it appears to the appellate court that it is appropriate in the interests of justice (see Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 538[62], 556[123] and authorities there cited). Something more than error, to which all are prone, must be demonstrated. Where the proceedings below have been conducted in such a manner as to give rise to a reasonable apprehension of bias this will usually ground such an order. But the power is not limited to such a situation.

13 There can be cases where a complicated process of fact-finding has miscarried through a combination of factors. The interests of justice, including its appearance, may require that the new trial take place before a differently constituted court or tribunal. This is particularly so where, as in the present case, the first trial resulted in a judgment turning upon credibility-based findings. To remit the matter for a new trial before a similarly constituted tribunal of fact would almost inevitably trigger an application that the judge recuse in light of the principles in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. Instances where this Court has given a direction designed to avoid this possibility include Curnuck v Nitschke [2001] NSWCA 176 and Mkari v Meza [2005] NSWCA 136.

14 This is not to imply that the former decision-maker might start the new trial with the disposition in favour of the party originally successful. Indeed, there may be risks of compensatory bias or its appearance (cf my paper on “Unconscious Judicial Prejudice” published in (2001) 75 ALJ 676) that may properly be taken into account. This Court’s concern lies with avoiding the appearance of pre-judgment.

15 I agree with Basten JA that the power should be exercised with caution and with respect for the authority of the judicial officer or officers in the court or tribunal below who have authority to assign cases. But where this Court is seized of a matter that persuades it as to the propriety of making a direction of this nature, the power should be used. It should not be left to the President, Chief Judge or List Judge of the court or tribunal below to have to make enquiries and form a judgment on such matters. Rather, absence of a direction should be read as a signal that it is open (but not obligatory) to assign the new trial to the original judicial or other officer.

16 In the present case there needs to be a new trial on all issues. In my view, the parties should be offered a fresh start before a fresh fact-finder.

17 In Escobar v Spindaleri (1986) 7 NSWLR 51 an award of the Compensation Court was set aside because of a denial of natural justice based upon a decision made without affording counsel an opportunity to address the Court. This Court ordered a new trial before a differently-constituted Compensation Court. Kirby P said (at 58) that the “appearance of justice makes it preferable that there should be a fresh trial before the Compensation Court, differently constituted”. I adopt this reasoning to the present situation.

18 IPP JA:

The verdict and judgment for provisional damages

Dust Diseases Tribunal Act

Watts

v Rake

Purkess v Crittenden

19 The appellant seeks a new trial on the ground that the trial judge made errors “in point of law” which resulted in a “substantial wrong or miscarriage” within the meaning of Pt 51, r 23 of the Supreme Court Rules 1970 (NSW) (see Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478).

20 Between April 1971 and July 1977 the appellant was a manufacturer of asbestos-cement products and employed the respondent as a worker in its factory. Thereafter, Amaca Pty Ltd, another manufacturer of asbestos-cement products, purchased the appellant’s business and employed the respondent from July 1977 to November 1986. During both periods of employment the respondent was exposed to asbestos dust and fibre.

21 In 2000 the respondent brought proceedings against the appellant on the ground that it had negligently caused him to be exposed to asbestos in the course of his employment as a worker in its factory. The respondent also sued Amaca on the same basis. He asserted that both the appellant and Amaca had caused him to suffer injury in the form of asbestos-related pleural disease (“ARPD”).

22 On 24 May 2004, after the trial had commenced, the proceedings between the respondent and Amaca were settled on the basis that Amaca paid the respondent $50,000 plus costs.

23 Before Walker J the appellant did not deny that it owed a duty of care to the respondent and that it had breached that duty. It denied, however, that the respondent was suffering from ARPD and joined issue with the respondent as to the damages he had incurred.

24 At trial the appellant contended that, were it to be found that the respondent suffered from APRD, the ARPD had been caused partially by the appellant’s breach of duty and partially by breach of duty on the part of Amaca. As part of this contention, the appellant submitted that ARPD is not an “indivisible” injury but the “cumulative” result of an ongoing process of inhaling asbestos fibre. Cumulative in this sense means that, each time an asbestos fibre is inhaled, potentially more harm is inflicted. As a cumulative, or “divisible”, injury, part of a person’s ARPD might be caused by one party and another part of the disease might be caused, separately, by another party.

25 Walker J found that the respondent, as he contended, was suffering from ARPD. The extent of the ARPD caused by the appellant and the extent (if any) caused by Amaca therefore became an issue for his Honour to determine.

26 The appellant also contended that the respondent suffered from restrictive and obstructive illnesses that contributed to his disability. Restrictive illnesses impair the capacity of the lungs to act in accordance with their normal function while obstructive illnesses stop air getting into the lungs. The principal restrictive illnesses from which the respondent was said to suffer were ARPD (which he alleged) and obesity (alleged by the appellant). The obstructive illnesses that were raised (by the appellant) included asthma. Obesity is not caused by exposure to asbestos and nor are obstructive illnesses. The extent (if any) to which any allowance was to be made for these illnesses that were not asbestos-related also fell for determination by the trial judge.

27 In entering a verdict and judgment for provisional damages of $314,594 against the appellant in favour of the respondent, Walker J attributed liability to the appellant for all the injuries suffered by the respondent. He held against the appellant’s contentions relating to the divisible nature of ARPD, the liability of Amaca and the illnesses that were not caused by exposure to asbestos. He made no allowances for the obesity and the asthma.

The amended notice of appeal

28 The appellant appeals against the verdict and judgment. During the course of argument it amended its notice of appeal. By the amended notice of appeal, the appellant challenged the finding that it was liable for all the respondent’s ARPD as well as his Honour’s assessment of damages.

29 The amended grounds of appeal asserted that the trial judge erred in point of law:

(i) The respondent’s injury was “divisible” or “cumulative”.

(ii) The appellant was not liable to the respondent for damages for any disability caused by an obstructive airways disease.

(iii) Amaca, as a subsequent tortfeasor, was liable to the respondent for at least part of the damage he had sustained.

(iv) The respondent suffered a pleural effusion in 1985.

(i) The respondent experienced a second pleural effusion in 1979.

(ii) The respondent’s chronic obstructive airways diseases combined in a synergistic relationship with his restrictive airways diseases, thereby aggravating them.

Watts

v Rake

Purkess v Crittenden

30 The amended notice also asserted that the judge denied the appellant procedural fairness in making findings adverse to the credibility of an expert, Dr Gardiner, called on its behalf.

The “divisible” nature of ARPD

31 Underlying the appellant’s principal argument in the appeal is the proposition that ARPD is a divisible disease. This does not appear to have been in contention at the trial and, indeed, in parts of his reasons Walker J accepted this proposition. On appeal, the respondent did not dispute that ARPD was a divisible disease.

32 The essence of the term “divisible disease” is that it connotes a disease that increases in severity through an ongoing process of successive events that inflict harm on the victim. Each infliction of harm is separate and independent of the harm that has gone before.

33 A well-known example of a divisible disease is a hearing impediment caused by exposure to excessive noise over a lengthy, continuous period where each successive exposure to noise separately increases the hearing loss.

34 In the case of ARPD, the disease is the consequence of inhaling asbestos fibre in circumstances where each successive inhalation of asbestos inflicts a further and separate form of harm on the victim. As each infliction of harm is an independent event, where ARPD has cumulatively been brought about by different tortfeasors over different periods, each tortfeasor is separately liable for the separate damage each has caused. Such tortfeasors are not jointly, concurrently or severally liable to the victim. The damage for which each is liable has to be separately proved and separately assessed.

35 The legal principles to be applied in regard to the inflicting of a divisible disease on a plaintiff were discussed by Mustill J in Thompson v Smiths Shiprepairers(North Shields) Ltd [1984] 1 QB 405, a hearing impairment case referred to with approval in Commercial Minerals Ltd & Auqual Pty Ltd v Hollins (unreported, NSWCA, 22 December 1993) at 12 and Mahony v Watson [2003] NSWCA 259 at [35]. Mustill J held that the plaintiffs in Thompson were not entitled to recover their loss in full because a substantial part of the impairment of their hearing took place before any breach of duty by the defendants had occurred. Although precise quantification was impossible, the Court had to apportion the loss and make the best estimate it could in the light of the evidence. Mustill J said at 437 to 438:

“The starting point for any enquiry into the measure of damages is the principle that the court should so far as possible endeavour to restore the plaintiff to the position in which he would have found himself but for the defendant’s wrongful act. The impracticability of giving full effect to this principle must be recognised at every stage of the process … Complete logical rigour cannot be attained.

… The first step is to consider the case of a worker, whose hearing has been impaired by excessive noise wrongfully suffered whilst in the service of successive employers A and B. The basic principle suggests that A should be liable in full, but not more than in full, for the impairment existing when the worker leaves his employment. …

The intermediate step is the ascertainment of symptoms: for it is the symptoms which are the immediate cause of loss. It is, however, essential to recognise that symptoms are of two kinds. First, those (if any) which the plaintiff has already suffered and is suffering at the date of the trial. Second, those symptoms which, because of damage to bodily structure suffered through breach, are definitely going to happen, or may happen, at a future date. … A proper award of damages against employer A will recognise the existence of both current and potential symptoms.

What of employer B? Principle and common sense demand a recognition of the fact that he has ‘taken over’ the plaintiff in a condition where his organs of hearing are already damaged, and where is already subject to actual and potential symptoms. It would be an injustice to employer B to make him liable for damage already done before he had any connection with the plaintiff. His liability, first principles suggest, should be limited to compensation for (a) the perpetuation and amplification of the handicaps already being suffered at the moment when the employment changed hands, and (b) the bringing to fruit in the shape of current hardship those symptoms which had previously been no more than potential.

If this reasoning is followed, the result should be that the recoveries against A and B will amount in total to the award which would have been made if the damage had all been caused by the wrongs of a single employer; and, equally, that the assessment of such an award could form at least a starting point of any quantification of the individual liability of employers A and B.”

The trial judge’s findings that the appellant was liable for all the respondent’s ARPD

36 Walker J noted that the respondent had worked for the appellant and Amaca at different times. He said, expressly, that the damage the respondent had sustained was “caused by the exposure to different asbestos dust and fibre at different times” and, therefore, “[i]t cannot be said to be the same damage”. His Honour reminded himself that he was concerned with the award of damages for damage sustained by the respondent solely as a result of the appellant’s breaches of duty. He said that he was required to determine the cause of the respondent’s asbestos-related damages “to ensure that that [sic] damages are not sheeted home to the [appellant] for damage caused by [Amaca’s] tort”.

37 In determining this issue the judge said that he was concerned “firstly, with the issue of latency periods and secondly with the issue of exposure to asbestos including arguments about the relative times of exposure and the nature of the asbestos to which the [respondent] was exposed in each employment”.

38 The only evidence adduced about the latency period was that, in general, pleural effusion occurs “five or six years after exposure up to about 20 to 25 years”. In addition, Walker J referred to and took into account the acceptance of evidence by O’Meally P in Brear v Commonwealth [1999] 18 NSWCCR 637 at 645 to the effect that:

“[B]enign pleural effusion occurs sometimes within 10 years but a latency of less than 20 years is rare”.

“[I]t is more likely that early exposure would be the cause of the condition”.

39 Walker J concluded that, on the evidence adduced before him, the earliest that pleural damage could have resulted from the respondent’s employment with the appellant was in about mid-1978 and the earliest from the respondent’s employment with Amaca was in late 1982 or early 1983. His Honour noted that counsel for both the appellant and the respondent had suggested that the damage occurred consequent to two pleural effusions in about 1979 and 1985. His Honour expressed his conclusion on this issue as follows:

“Taking all this evidence into consideration on the balance of probabilities I find that pleural effusion of both the [respondent’s] lungs occurred between 1978 and December 1979 with consequential pleural thickening developing in both lungs.”

40 His Honour, accordingly, found that there had not been a pleural effusion in 1985 (or in late 1982 or early 1983) and said:

“The conclusion I draw from the available evidence is the only pleural effusions occurring in this case fell within the latency period of the [appellant] not [Amaca]”.

41 The judge then commented:

Brear’s

42 His Honour had previously accepted that all exposure was relevant to the causation of ARPD. Nevertheless, he reasoned that, because the respondent had not had pleural effusions after the latency period relative to the date his employment with Amaca had commenced, the respondent’s exposure to asbestos while in the employ of Amaca was not the cause of his ARPD. His Honour said:

“Accordingly I do not propose to make any deduction in this case to take into account damage allegedly sustained by any tort of [Amaca]”.

The way in which the parties, by their conduct of the trial, treated the liability of Amaca

43 His Honour’s reasoning in finding that the respondent’s exposure to asbestos while in the employ of Amaca was not the cause of his ARPD was a major source of complaint by the appellant. The appellant contended that this finding and the reasoning that led to it was contrary to the way in which both parties had conducted the trial and to relevant concessions the respondent had made. It is necessary to examine the relevant material relied on by the appellant in this regard.

44 In opening the respondent’s case Mr Cahill, who appeared for the respondent at the trial, stated that in 1985 the respondent was diagnosed with a second pleural effusion. Mr Cahill informed the judge that “this is a divisible condition” and that, in consequence, despite the settlement with Amaca, the respondent was continuing with his case against the appellant. He foreshadowed that, in due course, there would be “some debate about the comparative levels of exposure as between the [appellant and Amaca].”

45 Before the parties had closed their respective cases, Mr Cahill sought to tender a document that dealt with dust exposure at the appellant’s premises caused by handling shipments of asbestos. The judge asked how the document was relevant. Mr Cahill replied that it related to the levels of exposure involved in the handling of asbestos at the appellant’s premises. The judge asked whether that was an issue and Mr Cahill replied:

“Your Honour, part of the problem with this case is of course that there are two periods of exposure, one involving the [appellant] one involving [Amaca], and there is going to be a question of apportionment as between the two, keeping in mind, your Honour, the evidence of Dr Gardiner regarding the characteristics of pleural effusions and the fact that time [lags are] involved and so forth and the relevance of the level of exposure of the [respondent] during the period of employment with the [appellant] as opposed to [Amaca].”

46 In written submissions, forming part of Mr Cahill’s closing address at the trial, the following was stated:

“All exposure is relevant to the causation of asbestos-related pleural disease.”

Brear v Commonwealth.

47 Thus, the respondent submitted that the court should find that any exposure to asbestos was a cause of ARPD. This was of particular relevance in the light of the respondent’s acceptance that he had been exposed to asbestos while in the employ of Amaca and that the pleural effusion in 1985 was asbestos-related.

48 In written submissions, forming part of Mr Cahill’s closing address at the trial, the following was recorded:

“Date of Onset of Symptoms

Early to mid-1979
17 July 1979 – X-ray disclosing left sided asbestos-related pleural effusion with pleural thickening
23 May 1985 – X-ray indicates right sided asbestos pleural effusion with pleural thickening”

49 Indeed the respondent’s written submissions stated:

“[I]t is common ground between the [appellant] and the [respondent] that the conditions about which the [respondent] makes complaint, namely two benign asbestos-related pleural effusions, which occurred in 1979 and about 1985, respectively, and asbestos-related pleural disease, are divisible injuries or ‘conditions’.”

50 These important points were emphasised more than once in the respondent’s written submissions. After submitting that “the preponderance of the evidence clearly favours the conclusion that the effusion suffered by the [respondent] in 1979 was asbestos-related”, the written submissions asserted:

“Further, the same observations are applicable to the evidence regarding the occurrence of a second pleural effusion in about 1985, together with the increased pleural thickening and consequent increase in the [respondent’s] restrictive lung disorder.”

“The second effusion was less dramatic in its clinical presentation. But, on the basis of the lung function studies, it resulted in the [respondent’s] restrictive airways disease becoming more pronounced.”

51 Thus, the written submissions indicate, clearly, that the respondent accepted that ARPD was a divisible disease, that he had been exposed to asbestos while employed by Amaca, that he had suffered a pleural effusion in 1985 (a time falling within the latency period relating to his employment with Amaca), that the 1985 pleural effusion had been caused by exposure to asbestos, and that all exposure to asbestos was causative of ARPD. In these respects, the written submissions cannot be reconciled with the judge’s findings that “the only pleural effusions occurring in this case fell within the latency period of the [appellant] not [Amaca]” (that is, between 1978 and December 1979) and, for that reason, despite the accepted proposition that all exposure to asbestos was causative of ARPD, the respondent’s employment with Amaca did not cause any part of his ARPD.

52 The respondent’s written submissions accepted that Amaca was liable for part of the damage sustained by him. The submissions argued:

successive torts

joint

concurrent torts

53 The written submissions went on to point out that the respondent’s exposure to asbestos whilst in the employ of Amaca (from 1 August 1977 to 7 November 1986) effectively ceased on 28 May 1985. The submissions noted that it was not put to the respondent that he was exposed to asbestos after he broke his leg in an accident on 28 May 1985. The respondent was attempting thereby to reduce, as far as possible, the degree of exposure to asbestos he had had while in the employ of Amaca, but did not argue that he was not exposed to asbestos at all while in the employ of Amaca (and that, therefore, no liability should attach to Amaca). The submissions proceeded on this point to say:

“If the Tribunal is not so satisfied, any allowance for exposure after 28 May 1985 should be minimal on the basis that the [respondent] only returned to work on light duties for very short periods of time after he broke his leg.”

54 Towards the end of the written submissions (under the heading “'Divisibility' of the damages as between the [appellant] and [Amaca]”, Mr Cahill dealt expressly with the apportionment of responsibility for the respondent’s damages as between the appellant and Amaca. The following was said:

“The final matter for consideration is the proper ‘apportionment’ or division of damages as between the [appellant] and [Amaca].

As discussed earlier in these submissions, this is not [sic] case to which the principles relating to joint and/or concurrent tortfeasors apply. Nonetheless, the [respondent] may only recover as against the [appellant] that which accords with the loss and damage caused by the tortuous [sic] acts and omissions of the [respondent].”

55 When discussing the relative degrees of exposure to asbestos brought about by the appellant and Amaca, the written submissions asserted:

“As noted above, earlier exposure is considered to play a greater role in causation than later exposure. It follows that with respect to both of the effusions identified in the medical evidence, but more particularly, the first effusion, the [respondent’s] exposure with the [appellant] should be given greater weight in determining the levels of contribution to be assigned to the two periods of exposure.

Even if the court is satisfied that the levels of exposure as between the two periods of employment are roughly equal, the appropriate course would be to assign the [appellant] 60% to 70% of the overall liability on the basis that the [respondent’s] exposure with the [appellant] occurred first in time.”

56 The written submissions argued that there were “solid reasons for attributing significant responsibility for the second effusion to the [respondent’s] exposure whilst working for the [appellant], as well.” Although the respondent asserted that “significant responsibility” should be attributed for the second effusion to the appellant, he did not submit that complete responsibility should be attributed to the appellant. Hence, the submission that 60 to 70 per cent of the overall liability (for damage caused by ARPD) should be attributed to the appellant (and, by implication, the balance to Amaca).

57 It is necessary to comment upon a table of damages forming part of the written submissions in which the respondent asserted that “41% to 100%” was the range of damages applicable for gratuitous care.

58 The approach adopted in the written submissions was, first, to attempt to quantify that portion of the respondent’s overall loss of lung function attributable to his ARPD (as opposed to his obstructive illnesses), secondly, to make submissions as to what damages should flow from that loss of lung function, thirdly, to make submissions as to how those damages should be apportioned between the appellant and Amaca.

59 In undertaking the second stage, the respondent made no distinction between the appellant and Amaca; that was an issue that the respondent addressed when dealing with the third stage. The submission that the range of damages applicable for gratuitous care was “41% to 100%” was made in the course of the second stage. In other words, it was a submission that the judge should assess damages for gratuitous care by reference to that range – without, at that stage, having regard to any apportionment of responsibility for such damage between the appellant and Amaca. That issue was discussed later in the written submissions.

60 I turn now to Mr Cahill’s oral closing address.

“[I]t was common ground between the parties that this case involved a tort or series of torts committed by the [appellant] resulting in damage and a tort of series of torts separately committed by [Amaca] resulting in different damage.”

Brear

61 Mr Cahill pointed out that the appellant had understood that the decision in Brear v Commonwealth “was the common basis on which the case was being conducted”. The “basis” of Brear (to which Mr Cahill was referring) was that the injuries resulting from ARPD were divisible and all exposure to asbestos was causative.

62 Mr Cahill orally submitted that, having regard to Brear, the damage caused to the respondent by Amaca “includes no aggravation of the original damage, what it does is it has cumulative damage on top of that, but it is not an aggravation of the existing damage on the basis of the decision in Brear”. He said:

Brear

63 These oral submissions make it perfectly clear that the respondent conceded that Amaca was partly responsible (to a degree to be quantified by the trial judge) for the damage flowing from the respondent’s ARPD.

64 Later, in his oral submissions, Mr Cahill pointed out that the first pleural effusion diagnosed (in 1978 or 1979) must have been caused when the respondent was employed with the appellant. He said that his submissions were subject to the observation that “all exposure is causative”. He then submitted:

“What I am suggesting to your Honour is that your Honour would in those circumstances apportion if not all certainly the vast majority, the lion’s share of the first exposure to the [appellant].”

65 Mr Cahill then came to the second pleural effusion. He said:

“Insofar as the second effusion is concerned – 1986 – 1986 I think on the evidence, your Honour. Clearly, your Honour, in those circumstances [Amaca’s] exposure period includes exposure that falls within the 5 to 10 year window period.”

66 He repeated in fair – and unequivocal - terms the concession that Amaca had to bear some liability for the respondent’s damages:

“[T]he vast bulk of the second effusion can be attributed to exposure with the [appellant], and that, your Honour, is a starting point, but keeping in mind, your Honour, that we are dealing with questions of common sense and the fact that all exposure is said to be causative in my submission your Honour would make an allowance, and indeed a not insubstantial allowance, insofar as the second effusion is concerned for the contribution that is made by exposure with [Amaca]”.

67 Walker J then asked:

“What are we saying, 50/50, 25/75, what are we talking?”

“50-50, your Honour, and indeed your Honour might take the view, keeping in mind that the [respondent] gave evidence of not insubstantial exposure when he was handling bags, that it could be 60/40 in favour of the [appellant], but that, in my submission, would be the upper limit of the extent to which your Honour would find that the second effusion is attributable to exposure. After that time, your Honour, insofar as there is deterioration, in my submission, the evidence is that all exposure was causative and to the extent that your Honour has to make an allowance for contribution over time that your Honour would find that the relative figures between the two, keeping in mind that we still have early exposure as exposed to late exposure, a 60/40, 60 to the [appellant] and 40 at best to [Amaca]. And the reason I say that is this, your Honour, [Amaca] appears to have employed the [respondent] for a longer period of time.”

68 Mr Cahill’s reply gave further explicit reinforcement to his concession and acceptance that a significant proportion of responsibility (albeit not more than 50 or 40 per cent) was to be attributed to Amaca.

Denial of procedural fairness in curial proceedings: the law

69 In Stead v State Government InsuranceCommission (1986) 161 CLR 141 the High Court set out the principles to be applied when, in curial proceedings, a judge denies a party procedural fairness. The plaintiff in that case claimed damages for personal injury arising out of a motor vehicle accident. One of his claims was that the accident had caused a neurotic condition that had rendered him totally incapacitated for work. A Dr Scanlon had given evidence on behalf of the defendant that there was no connection between the accident and the neurotic condition. In his closing address, the plaintiff’s counsel submitted that the trial judge should not accept the doctor’s evidence, whereupon the judge said:

“I don’t accept Dr Scanlon on that. You needn’t go on as to that”.

70 The High Court said (at 145):

Jones v

National Coal Board

‘There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.’”

“[A]n appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.”

71 The High Court pointed out that where the denial of justice affects the entitlement of a party to make submissions on an issue of fact, it is more difficult for a Court of Appeal to conclude that compliance with the requirements of natural justice could have made no difference. Their Honours said (at 145 to146) that where there had been a denial of natural justice relevant to a finding of fact an appellate court should proceed with caution:

“It is no easy task for a Court of Appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”

72 The High Court observed (at 146):

“At the trial the critical question on the issue of causation was whether Dr Scanlon’s testimony should have been accepted in preference to the appellant’s expert witnesses … It was an issue pre-eminently suitable for determination by the primary judge who had an advantage over the Full Court in seeing and assessing the witnesses. We do not see how the Full Court, denied the important advantage of seeing and assessing the witnesses, could satisfactorily conclude that had the appellant’s counsel been given a reasonable opportunity to prevent submissions on the issue, it could have made no possible difference to the result.”

73 The High Court said that if the Full Court was to be understood as saying no more than that a new trial would probably make no difference to the result “their Honours failed to apply the correct criterion”. The correct principle, as expressed by the High Court (at 147), was:

“All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”

74 Stead has been applied many times at intermediate appellate level. Many of the cases involve trial judges who made findings contrary to the submissions of counsel whom they had earlier stopped. In none of the cases was evidence required to establish that the denial of procedural fairness involved caused an independent miscarriage of justice. Examples of cases where counsel were stopped in the circumstances I have described are Escobar v Spindaleri (1986) 7 NSWLR 51, Wyoming Nursing Home Pty Ltd v Palazzotto (unreported, NSWCA, 11 October 1995) and Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74. In Peakhurst Inn Pty Ltd v Fox the respondent conceded that the trial judge had denied procedural fairness to the appellant but submitted that no substantial prejudice or miscarriage of justice had occurred. Tobias JA, with whom Sheller JA and Pearlman AJA agreed, said:

“It would be pure speculation to assert that his Honour would have come to the same factual conclusion even if he had ignored the … credit issue. I would not be prepared to find that a properly conducted trial could not possibly have produced a different result …”

75 In Pantorno v The Queen (1989) 166 CLR 466 at 473 Mason CJ and Brennan J said:

Fairmount Ltd v Environment Secretary

76 Pantorno was followed in Monaco v Arnedo Pty Ltd (unreported, Full Court, SCt of WA, 6 September 1994). The latter case involved the construction of the phrase “floor area” in the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). The parties conducted the trial on the basis that floor area was to be construed in accordance with a certain formula outside the Act and the evidence led by them was designed to support only their respective contentions in that regard. The Commissioner, who presided over the trial, without informing the parties of his intention to do so, held that the formula was inappropriate and determined the floor area in accordance with a different construction based on the ordinary meaning of the words in the Act. Neither party was given an opportunity to lead new evidence in accordance with the construction held by the Commissioner to be correct, or to recall for cross-examination witnesses who had already testified, so as to clarify the issues that were relevant to the Commissioner’s construction. The Court (Malcolm CJ, Kennedy and Ipp JJ) held that the Commissioner should have informed the parties of his decision to decide the case upon a concept fundamentally different to the submissions advanced by the parties, on which they had based their evidence, cross-examination and conduct of the case, generally. The Court considered that, on that basis alone (that is, without hearing evidence), a substantial injustice had occurred, set aside the judgment and ordered a retrial.

77 Wrigley Company Pty Ltd v Hollands (2002) 23 NSWCCR 463 is a case not dissimilar to Monaco v Arnedo Pty Ltd. In the former case counsel representing the employer submitted that an amount of $50 should be awarded to the worker as weekly compensation. The worker’s counsel submitted that an amount of $100 per week (at least) should be awarded. The judge awarded nearly $400 per week. He said nothing during argument to indicate that he was considering going outside the submissions by counsel for the parties, nor were reasons given for doing so. Handley JA (with whom Hodgson JA and Ipp AJA agreed) said (at 468):

Australian Wire Industries Pty Ltd v Nicholson

Stead v State Government Insurance Commission

78 These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.

79 A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves.

Amaca’s partial responsibility for the respondent’s ARPD

80 Walker J found:

(a) There had not been a pleural effusion in 1985.

(b) There had been at least two pleural effusions between 1978 and December 1979.

(c) The respondent’s exposure to asbestos while being employed by Amaca was not causative of his ARPD.

81 Throughout the trial the respondent, on the other hand, had conceded or accepted that:

(a) ARPD was a divisible disease.

(b) He had been exposed to asbestos while in the employ of Amaca.

(c) All exposure to asbestos was causative of ARPD.

(d) He had suffered a pleural effusion in 1985 (that is, within the latency period relating to his employment with Amaca)

(e) Amaca was at least partly liable for the damages caused by the respondent’s ARPD.

82 The judge’s findings, accordingly, are fundamentally inconsistent with the respondent’s concessions and the way in which the trial was run.

83 Mr Joseph SC, who, together with Mr Cahill, appeared for the respondent on appeal, accepted that at the trial the respondent conceded that there had been a pleural effusion in 1985 and that Amaca had negligently exposed the respondent to asbestos and had thereby partly caused the respondent to suffer from ARPD. He also accepted that, as regards the involvement of Amaca, the sole issue for the judge at the trial was the degree to which Amaca was liable. In my opinion, Mr Joseph was entirely correct in this approach. The material to which I have referred is overwhelmingly to this effect.

84 His Honour did not inform the parties of his intention to depart from the way in which the case had so been conducted and to make findings contrary to these concessions that the respondent had made.

85 Mr Joseph submitted that there was evidence that could support the findings the judge made and, moreover, the evidence as to the 1985 pleural effusion was sparse. He submitted that the appellant’s argument at trial was that it had not caused the ARPD at all. He argued that the appellant had not focused on whether part of the damage caused by the respondent’s ARPD had to be paid by Amaca and, if so, the extent to which Amaca was liable. His basic contention was that the denial of procedural fairness to the appellant had no bearing on the result of the case. He submitted that there had been no miscarriage of justice.

86 In my view, it is not to the point that there was evidence that could support the findings the judge made. The appellant did not conduct its case knowing that the judge contemplated making findings relating to Amaca based on that evidence. This ignorance on the part of the appellant must inevitably have coloured its approach to the cross-examination of witnesses, the adducing of evidence and the making of submissions. Thus, there is a serious danger that the judge’s findings were based on evidence that was not properly tested, or not admitted when it might have been.

87 The same applies to the sparseness of the evidence as to the 1985 pleural effusion. Once the respondent had accepted that there was pleural effusion in 1985, there was no need for the appellant to have led any more evidence relating to that issue than it did.

88 As regards the submission that the appellant’s argument at trial was directed solely or principally at the issue whether the respondent was suffering from ARPD or some other disease, the written submissions provided by the appellant to the trial judge stated expressly that an issue before the Court was “the proportion of any asbestos-related condition caused by the [appellant] and/or [Amaca]”. The appellant’s written submissions asserted:

“Any entitlement of the [respondent] to damages must be apportioned between the [appellant and Amaca].”

“The evidence of the [appellant] is strongly supportive of the proposition that the exposure with [Amaca] was greater than with the [appellant].”

89 The appellant made other submissions regarding the intensity of the respondent’s exposure to asbestos while working for Amaca. Those submissions included the argument that that intensity was greater than that experienced by the respondent during the course of his employment with the appellant.

90 In the circumstances, I do not accept Mr Joseph’s submission in this respect.

91 There has been a clear and serious denial of procedural fairness to the appellant. The judge did not only go beyond the case as conducted by the parties. He ignored what in effect were concessions by the respondent and, on material issues, made findings contrary to those concessions. In consequence, there has not been a fair trial. In my view, it is self-evident that this has led to a serious miscarriage of justice; on the facts of this case no evidence is required to establish this conclusion.

92 Accordingly, I would uphold the appeal on this ground alone.

The misapplication of

Watts

v Rake

and

Purkess v Crittenden

93 As mentioned, ARPD is a restrictive illness. The appellant contended at the trial that the respondent suffered from at least one other restrictive condition that contributed to his lung function, namely obesity. Obesity is unrelated to asbestos exposure.

94 There was a considerable body of evidence to the effect that obesity contributed to the respondent’s breathing difficulties. At trial, the respondent did not contend that obesity was not a contributing factor. The argument advanced on his behalf was that, in accordance with the principles in Watts v Rake and Purkess v Crittenden, the appellant bore the evidentiary onus to establish “with some reasonable particularity” the extent to which the obesity contributed to the respondent’s disability. The respondent submitted that the appellant did not lead any specific evidence to identify the proportion of the respondent’s restrictive lung disorder that should be attributed to the respondent’s obesity; therefore the obesity should be ignored.

95 The trial judge dealt with obesity as follows:

“Taking all the evidence into consideration on the balance of probabilities I determine that the [appellant] has failed to discharge its evidentiary onus to disentangle the obesity [condition] and to prove either that it is making a material contribution to the [respondent’s] restrictive lung condition or with any precision prove the extent of that contribution.”

96 His Honour’s reference to the “evidentiary onus to disentangle the obesity” was based on the remarks of Dixon CJ in Watts v Rake at 160 where the Chief Justice was dealing with the defendant’s contentions, firstly, that the plaintiff was predisposed to the conditions that developed as a consequence of the accident, secondly, that part of the plaintiff’s condition was traceable to causes other than the accident and, thirdly, that had their been no accident the plaintiff would have been incapacitated by his pre-existing condition. Dixon CJ said that, in regard to the second and third contentions, there was a presumptio hominis in the plaintiff’s favour that the defendant should overcome. It was for the defendant to do the disentangling and to exclude the operation of the accident as a contributory cause.

97 Walker J’s reference to the need for the appellant to prove, with “precision”, the extent of the contribution made by obesity to the respondent’s restrictive lung condition appears to have been derived from the following remarks of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (at 168):

Watts v Rake

98 In Purkess v Crittenden the negligence of the defendant caused the plaintiff to suffer injuries resulting in constant severe and disabling pain in the cervical region. The plaintiff had pre-existing degenerative changes in the spine which were most marked in the cervical region. The only evidence of the likely consequences of the pre-existing condition was that the plaintiff “would be in some trouble” when she reached an age within a range of between 50 to 60 years and that she was “of such an age when she would be likely to expect trouble from her degenerative spine.” There was, thus, no evidence before the trial judge that explained in any detail –at all - what impact the pre-existing injury, in any event, would have had on the plaintiff’s cervical spine. The word “trouble”, being the sole description of the consequences of the pre-existing condition, was so vague as to be meaningless.

99 Barwick CJ, Kitto and Taylor JJ pointed out that the evidence did not define what “trouble” might have been expected and “not unreasonably” the trial judge assessed damages on the basis that her then present condition and resulting permanent disability were the result of the accident. Windeyer J (at 171) observed that there was no evidence to sustain the proposition that part of the chronic pain and restricted movement from which the plaintiff now suffered could be attributed to other factors.

100 The word “precision” used by Barwick CJ, Kitto and Taylor JJ must be seen in the context described. In my view, it was intended by that word to contrast the evidence required to discharge the evidentiary onus on a defendant with the hopelessly inadequate evidence actually adduced; not to connote that more was required than “evidence sufficiently precise and definite to displace the inference that the disabling pain from which the plaintiff suffered after the accident was caused by the hurt she then received” (being the words used by Windeyer J at 171).

101 Walker J made no reference to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 when discussing the onus of proof that a defendant has to discharge in circumstances of the kind the subject of Watts v Rake and Purkess v Crittenden.

102 In Malec Deane, Gaudron and McHugh JJ said at 643:

"[I]n respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. "

"The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the [plaintiff] had not been working for some time before the trial and an evaluation of the [plaintiff’s] earning capacity which was destroyed in consequence of the [defendant’s] negligence. The fact that the [plaintiff] did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the [plaintiff] had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the [plaintiff] has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past."

"In assessing the [plaintiff’s] earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation."

103 Therefore, according to Malec:

(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.

104 What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the “disentangling” evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.

105 Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of “disentanglement” discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.

209 The other condition in question was obesity, which is another “restrictive condition” which the Appellant said contributed to the Respondent’s diminished lung function. It is true, as Ipp JA notes at [95] that the Tribunal did not make a reduction for obesity, but that fact does not demonstrate that the Tribunal was not fully apprised of the need to identify the consequences of pre-existing conditions and to undertake the speculative task identified in Malec, in order to reduce the extent of the Appellant’s liability on account of relevant contingencies. Rather, the Tribunal found that the defendant had not demonstrated that obesity “is making a material contribution to the plaintiff’s restrictive lung condition”. Indeed, the reference to “disentanglement” demonstrates that the Tribunal had in mind the exercise described in Malec, a case which did not establish any novel principle in this respect.

210 The reason why the High Court in Malec overruled the assessment of damages made by the Full Court of the Supreme Court of Queensland was that the majority in the Full Court had found that the plaintiff’s entitlement to damages for economic loss ceased on a particular date, because by that time it was “likely” that he would have become unemployable for other reasons. The High Court held that the proper approach was to assess the chance that factors unconnected with the defendant’s negligence might have brought about the on-set of a similar neurotic condition to that from which the plaintiff suffered, and to reduce the on-going damages according to that assessment, but not to stop the flow of damages immediately the assessment reached 51%. It is unlikely that the Court thought that it was interfering with the principles established by Watts v Rake and Purkess v Crittenden, both of which were referred to in the course of argument for the respondent (see p 639) but neither of which was referred to in either of the joint judgments. However, there are, no doubt, aspects of the respective judgments in Watts v Rake and Purkess v Crittenden in relation to which care must now be taken. Thus, in Watts v Rake (1960) 108 CLR 158 at 160, Dixon CJ stated:

“If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred.”

Malec

211 Similarly, in Purkess v Crittenden (1965) 114 CLR 164 at 168, there is reference to the onus of adducing evidence that the plaintiff’s “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”. Again, the reference to that which would “in any event” have caused incapacity may suggest that it is appropriate to assess a date after which no liability continues to operate. These related qualifications to the principles thus established, flowing from Malec, would appear to be the kind of reconciliation referred to by this Court in Commonwealth v Elliott [2004] NSWCA 360 at [79]-[81], noted above at [104]. The qualification so suggested would tend to favour a plaintiff, rather than a defendant.

212 Reference is also made above at [111] to the judgment of the President in Winston v Roach [2003] NSWCA 310 at [74]. In that paragraph, the President stated:

evidentiary

213 In the passage from the judgment of the Tribunal, with which the Appellant took issue in its written submissions (being the second part of that set out at [203] above), his Honour expressly referred to the “evidentiary onus to disentangle the obesity confounder”. There is no separate ground suggesting that there was “no evidence” to support the Tribunal’s conclusion that it was not satisfied that obesity can restrict a patient’s lung function, nor, although reference was made to a “concession”, was there any separate ground of appeal based on a concession. That is no doubt because the “concession” identified in the plaintiff’s written submissions at trial was in the following form:

“Therefore, the plaintiff submits that on the balance of the evidence, the appropriate course is to award the plaintiff damages with respect to the whole of the restrictive element of his lung dysfunction, subject only to a small discount that properly reflects the plaintiff’s age and general health.”

214 In it conclusions in relation to damages, the Tribunal stated:

“The first defendant has been unable to disentangle the major confounders, namely, obstructive airways disease and obesity and has failed to prove that the minor ones other than aging has [sic] made a significant contribution to the breathlessness. There will have to be a small deduction in the future for the age-related condition and I have determined to discount any awards for economic loss by the usual 15% for vicissitudes.”

215 In these circumstances, I remain unpersuaded that a ground formulated in terms of misapplication of the principle stated in Watts v Rake and Purkess v Crittenden demonstrates an error of law in the reasoning of the Tribunal, even accepting that the judgments in those cases may properly be understood as qualified in certain respects by the later judgment of the High Court in Malec v JC Hutton Pty Ltd.

216 The second limb to this ground asserted a misapplication of principle applicable to determining either liability or damages in cases of successive torts.

217 This ground depends on an assumption that the Tribunal found that the Respondent had suffered as a result of successive torts: this premise is, however, incorrect. The thrust of the primary ground relied upon by the Appellant is directed at the Tribunal’s failure to find that there was a subsequent tort on the part of Amaca. Because the premise is not made out, the ground is hypothetical. If the Tribunal erred in law in failing to make that finding, this ground would be otiose.

Breach of procedural fairness: concession – liability of Amaca

218 The concept of a “concession” must be addressed with care. A concession may be made by way of admission in pleadings, by a statement in opening a case, by an answer given by a witness in evidence or by a statement in final submissions: other possibilities are open. However, failure by the Tribunal to act on the basis of a concession does not necessarily involve error of law: the way in which it is put in the present case is that the departure involved a breach of procedural fairness, in that the Tribunal should not have reached a particular finding, inconsistent with a concession, without giving the other party an opportunity to deal with it.

219 The present case was pleaded as involving liability on the part of both the Appellant and Amaca, the latter being the successor to the former, in employment of the Respondent. Understandably in those circumstances, the Respondent’s case was prepared by pleading liability on the part of each and by preparing evidence, primarily in the form of medical reports, which sought to sheet home responsibility to each. Further, the case was conducted on the basis that each exposure to asbestos particles potentially gave rise to a separate instance of harm, for which there must be several liability.

220 A settlement was reached with Amaca on the first day of the hearing, by which it agreed to a verdict in an amount of $50,000 plus costs. The Tribunal was aware of the terms of the settlement: Judgment, p 1. Whether that material was put before the Tribunal for the purposes of the trial involving the Appellant and Respondent, is unclear. On one view, that course could have been taken on the basis that, if liability were established, the Tribunal would assess the loss attributable to ARPD, by reference to the Respondent’s present state of disability, and deduct from the overall calculation the amount agreed as the liability attributable to Amaca. In any event, it is clear from the manner in which the trial was conducted that an overall assessment of loss would made and apportioned between the two employers.

221 The precise nature of the concession and how, in the circumstances of the case, it affected the fairness of the trial from the point of view of the Appellant, is a nice question. The Appellant’s position at trial was to concede exposure to asbestos, but deny that the Respondent suffered from ARPD. If he did suffer from ARPD, the Appellant sought to minimise the extent to which ARPD was responsible for his current state of health and to minimise that part of the liability which could be attributed to it. In these circumstances, the details of which are fully set out by Ipp JA at [43]-[67] and [80]-[88] above, the question is what follows from the conclusion that his Honour departed from the approach adopted by the Respondent at the hearing. As is noted below, specific grounds challenging the assessment of total damages in this matter have not been pressed. Accordingly, there is no challenge to the assessment of the quantum of damages made by the Tribunal. Subject to one qualification referred to below, it is difficult to see why the conduct of the trial itself was in any way affected by the concession that Amaca bore responsibility for part of the Respondent’s disability. Nor does it appear that the Appellant argued before his Honour that the settlement with Amaca in some way affected the assessment of the damages as between the Appellant and the Respondent. If that had been the concern, effect may have been given to the concession by reducing the damages payable to the Respondent to the amount assessed less the contribution made by Amaca.

222 The qualification arises from the argument that the “concession” included an acceptance that “the” second pleural effusion took place in 1985 and was attributable to asbestos exposure during the Respondent’s employment with Amaca.

223 Because this evidence (flimsy though it appears to have been) was the basis for attributing a significant proportion of the responsibility to Amaca, it must be accepted that the concession was based upon that view of the evidence. It may not follow that a finding that there was no pleural effusion in 1985 would be inconsistent with attribution of some part of the responsibility for the Respondent’s current condition to Amaca: however, that is not a matter which can be resolved in this Court.

224 The breach of procedural fairness relied on in the present case flows from the fact that the trial judge departed from the common approach adopted by the parties. The argument is that the Appellant relied upon its reasonable expectation that it would not need to present argument against a proposition which had not been run by the Respondent, at least unless alerted to the possibility of an adverse finding in that respect being considered by the trial judge. However, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 a case where the complaint was that an officer of the Minister had lulled the party adversely affected into a false sense of security, Gleeson CJ noted at [37]:

“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. … A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

Director of Public Prosecutions v Parker

225 In some cases the consequences of conducting a hearing in a particular way may give rise to self-evident unfairness to one party. In other cases, where an expectation has arisen, and the unfairness results from one party conducting itself upon a particular assumption as to the validity of the expectation, no unfairness will follow unless it can reasonably be assumed, or is established on the facts, that the party adversely affected would have conducted itself differently had it not been for the expectation so raised. Where a trial by ambush has resulted from one party not putting forward evidence which would have been available had he realised that a particular point was being taken by the other party, the Court would not expect to be informed of the evidence thus not presented and possibly to hear an application that this Court admit such further evidence; c.f. Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116. Similarly, as the summary of the proceedings in the High Court in Ex parte Aala noted at page 84:

”In support of the applications, he gave affidavit evidence of what he would have done if he had known that the Tribunal did not have the four statements. He asserted that he had been denied a fair hearing because the Tribunal represented to him that it would take the new explanations into account and it did not. The Minister conceded that none of those statements [was] before the Tribunal.”

Muin v Refugee Review Tribunal

Touma v Saparas

226 That is not to say anything inconsistent with Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. The principle in Stead is that a person who has been denied a fair trial is entitled to a retrial unless it is established to the satisfaction of the Court that a new trial would be a futility. That analysis only arises when the unfairness of the first trial has been established. The present issue concerns the anterior question, namely whether the Appellant lost an opportunity to do something which it would otherwise have done, because of the way the Respondent conducted his case. At [86] Ipp JA says that, had the Appellant been aware that the trial judge might approach the question of apportionment on a different basis from that contemplated by the Respondent, that “must inevitability have coloured its approach to the cross-examination of witnesses, the adducing of evidence and the making of submissions”. However, there was no evidence to suggest how the approach might have varied, nor did counsel for the Appellant identify particular questions which might have been asked or particular submissions which might have been made, but which were not asked or made because of the manner in which the trial was conducted. The prejudice suffered by the Appellant was certainly not proved, and is not, in my view, self-evident.

227 The Appellant placed reliance on the approach adopted by this Court in Wrigley Co Pty Ltd v Hollands (2002) 23 NSWCCR 463. In that case the worker had put to the Compensation Court “that the award should be $100 per week, or at least $100 per week”: at [15]. In that circumstance, Handley JA (with whom Hodgson JA and Ipp A-JA agreed) stated that the judge “was not bound by this figure, but he said nothing during argument to indicate that he was considering going outside this claim and making awards, initially 150% more than asked for, and in the final result for nearly 300% more”. The Court held that the submission was either a matter which was required to be taken into account, or it was necessary to give reasons for disregarding the submission. On either view, the Court held that the trial judge erred in law: at [16]. There may be some doubt as to whether a submission is a ‘mandatory consideration’, or that the Court did not take it into account. The present case was not put on that basis, nor was it suggested in the present case that there was a failure to give reasons for the conclusion reached. Rather, it was put on the alternative basis, accepted in Wrigley at [17], that the employer had been denied procedural fairness because its counsel “had no opportunity to deal in address with the judge’s reasons for disregarding the submission for counsel for the worker and awarding so much more than had been sought on her behalf”. That case was treated as on all fours with Stead, in which, as noted above, the trial judge stopped counsel from addressing further on a critical question, decided adversely to that party. However, the facts of the present case are different: to make an award grossly in excess of that sought is analogous to Parker, where, without warning, a District Court judge, on an appeal against the severity of sentence, increased the sentence. In such cases the prejudice is obvious in a way that it is not where a party failed to address the possibility that its share of responsibility was at risk of being assessed as 100%, rather than 60%.

228 If the proceedings against Amaca had been settled on the basis of a nominal payment, or on a basis which was not disclosed, the sting of the present argument would be absent: the appearance of prejudice arises from the fact that the Respondent may be seen to be “double-dipping”, because he not only recovered part of his damage from Amaca, but also the whole from the Appellant. That, however, is not a ground of appeal. It if were, the situation could readily be rectified by reducing the judgment in the Tribunal by the amount of the settlement with Amaca.

229 Accordingly, whilst it is undoubtedly true that the Respondent conducted its case on a basis which conceded that the liability of the Appellant was less than 100%, the evidence on which that concession was based was, as the Respondent put it on the appeal, “sparse” and likely to be treated as of little weight. That fact must have been known to the Appellant at the hearing: it did not deny that inference. It was also readily apparent that if that sparse evidence were not accepted by the Tribunal, there was a significant risk that the Tribunal might well be satisfied that, if ARPD were proved, liability for that condition should be sheeted home solely to the Appellant. For strategic reasons, the Appellant was no doubt happy to focus on an absolute denial of liability and assume that, if unsuccessful on that ground, it might yet escape with a reduced liability, because of the way the Respondent had presented his case. In other words, the Appellant may have accepted the submissions made by the Respondent, perhaps because it could not improve on them. That does not mean that it had anything else or anything better to say which it desisted from saying. If there had been anything, it should have been identified to the Court: that was not done. This ground of appeal should be rejected.

Breach of procedural fairness – synergistic relationship

230 The care which is required in identifying how a “concession” may have resulted in procedural unfairness is starkly demonstrated by the complaint in relation to the use of the phrase “synergistic relationship”. As noted above at [196]-[197], the Respondent expressly elicited evidence from both its own medical expert, Dr Johnson and from the expert for the Appellant, Dr Gardiner, as to the manner in which lung conditions might act synergistically. The concession noted by Ipp JA at [122] was that ARPD was a “divisible disease”. I understand that concession to relate to the sequential exposure to asbestos particles, and not to the synergistic relationship between other conditions and ARPD.

231 In circumstances where a right of appeal is limited to errors “in point of law”, there are substantial difficulties in seeking to comb through the transcript of argument to identify so-called “concessions”. Further, if those concessions can properly be identified, it is then necessary to demonstrate that the other party relied upon the concession in such a manner as to cause it procedural unfairness where the effect of the concession is departed from in the judgment of the Tribunal. In my view, neither element of this ground has been established in the present case.

Conclusions and relief

232 Each of the grounds relied upon above, which went to both liability and damages, has not, in my view, been established. The original notice of appeal contained numerous separate challenges to the assessment of damages, but all of these were abandoned. Accordingly, in my view, the appeal should be dismissed.

233 On the evidence presented to the Tribunal, it was reasonably open to the Tribunal to determine that the whole of the responsibility for the Respondent’s ARPD was that of the Appellant. It was well open to the Tribunal to reject the suggestion that any particular exposure which may have occurred during the Appellant’s employment with Amaca had caused the existing disability. Even if the ground of appeal based on the concession made by the Respondent at trial in relation to the apportionment of responsibility were upheld, that would not, in my view, be because the Tribunal had made factual findings which were manifestly unreasonable, or not open on the evidence. Nor were the actual findings made without explanation as to their basis. If the conclusion were reached that, because of the concessions, the Tribunal should have apportioned liability, in the absence of any challenge to the quantum of liability, the proper course would, in my view, be to remit the matter to the Tribunal for apportionment in accordance with the findings of the Court and on the basis on which the case was presented below. On this approach, there would not be any proper basis for ordering that the Tribunal be differently constituted.

234 Section 32(2) of the Act provides for the powers of the Court in disposing of an appeal.

32(2) The Supreme Court may, on the hearing of any appeal under this section, remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court sees fit.

235 If there is some particular reason why one member of the Tribunal should not sit there is no reason for this Court to assume that the President will assign, or continue to assign the same member to the proceeding, at least in the absence of some suggestion to the contrary. Similarly, if one of the parties has reason to request that a particular member disqualify himself or herself, that application should be made in proceedings before the Tribunal and should be dealt with by the member. If such an application is not properly dealt with, that party may seek to challenge any operative decision of the Tribunal as one with which it is dissatisfied in point of law.

236 In Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [3] Gleeson CJ stated in relation to similar provisions in the Migration Act with respect to the Refugee Review Tribunal:

“It was the Principal Member who had the primary responsibility of deciding what was in the interests of the efficient conduct of the review. In the ordinary case, it would be the Principal Member who would be in possession of the information necessary for a proper discharge of that responsibility. The Principal Member allocates work among Tribunal members, is aware of their commitments and availability and makes administrative arrangements within the Tribunal.”

237 In some circumstances it will undoubtedly be appropriate for a direction to be given as to the constitution of a tribunal, especially in circumstances where it would seem to the court that justice might not appear to be done if the matter were remitted to the tribunal, which might then be constituted as for the original hearing. Thus, in Smith v NSW Bar Association (1992) 176 CLR 256 at 269 the joint judgment of four members of the High Court stated:

“As the members of the Court of Appeal have twice made a voidable finding on the issue of truthfulness of the appellant, and as the matter must be heard afresh by the Court of Appeal, it would be inappropriate to ask the judges who had constituted that Court to re-assess de novo the appellant’s truthfulness. The matter must therefore be remitted for hearing by a Court differently constituted.”

Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal

Wang

238 It may be accepted that s 32(2) of the Act extends to an order with respect to the constitution of the Tribunal. As noted by the Chief Justice in Wang, the existence of such a power was conceded in that case: at [4]. McHugh J expressly held that the power did extend so far, although noting that it was statutorily limited to an order which the Court considered “necessary to do justice between the parties”. Gummow and Hayne JJ on the question of power accepted that the power extended to directing that a tribunal be differently constituted: at [62]. Kirby J, dissenting in other respects, agreed at [113] on the question of power.

239 Although it is no doubt true that orders as to the constitution of administrative tribunals have often been made in the past, in my view a court should be slow to make such an order, in the absence of circumstances which clearly demonstrate that such an order is appropriate and necessary, in the interests of justice. That reticence should increase in relation to the constitution of a statutory tribunal created as a court of record. Such orders demonstrate a lack of confidence on the part of the Court in the ability of the Tribunal properly to organise its own affairs. Such an approach requires the articulation of sufficient reasons. If the test of the appropriateness of such an order is the need to do justice between the parties, it is also relevant that neither party sought such an order. To make such an order where the significant error on the part of the Tribunal was its failure to accord procedural fairness, is not without irony.

240 In the present case, I would dismiss the appeal with costs.

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05/07/2007 - The word 'miscarried' deleted and 'miscarriage' inserted in lieu. - Paragraph(s) 167

16/07/2007 - - Paragraph(s)

29/10/2007 - - Paragraph(s)

27/11/2007 - - Paragraph(s)

Citations

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Most Recent Citation

Cases Citing This Decision

482

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22

Bennett v Minister of Community Welfare [1992] HCA 27

Cases Cited

57

Statutory Material Cited

11

Watts v Rake [1960] HCA 58

Purkess v Crittenden [1965] HCA 34

Malec v JC Hutton Pty Ltd [1990] HCA 20

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CITATION:	Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17/06/05
JUDGMENT DATE:	1 September 2005
JUDGMENT OF:	Mason P at 1; Ipp JA at 18; Basten JA at 144
DECISION:	(1) Appeal upheld (2) Set aside the judgment and verdict granted by Walker J (3) Case to be remitted to the Dust Diseases Tribunal to be heard afresh by a different judge (4) Respondent to pay the costs of the appeal (5) The judge hearing the new trial should determine the costs of the trial before Walker J (6) As regards the costs of the appeal the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

CATCHWORDS:	PROCEDURAL FAIRNESS - Judge, without stating notice of his intention to do so, determining the case on a basis different to that put forward by the parties throughout the trial - Whether necessary to lead evidence to show that appellant would have conducted its case differently - DAMAGES - Personal injury - Plaintiff with a pre-existing condition - Whether plaintiff's pr-existing condition was a contributing factor to his or her injury - Watts v Rake (1960) 180 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 apply subject to the principles expressed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 - APPEAL - Decision of Dust Diseases Tribunal - Jurisdiction of appellate court - s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW) - Existence of an error "in point of law" - Lack of procedural fairness - Finding of fact in the absence of evidence - Whether appellate court should make order as to constitution of the tribunal upon a re-hearing. D
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) Commercial Arbitration Act 1984 (NSW), ss 38, 42 Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA) Compensation Court Act 1984 (NSW), s 32 Dust Diseases Tribunal Act (1989), ss 4, 11A, 13(2), 32 (1), 32(2), 43(3)(c) Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 54 Income Tax Assessment Act 1936-1969 (Cth), ss 196, 199 Land and Environment Court Act 1979 (NSW), s 57 Supreme Court Act 1970, s 48 Supreme Court Rules 1970 (NSW), Pt 51, r 23 Workers Compensation Act 1987 (NSW), s 10(2)
CASES CITED:	Attorney-General (NSW) v X (2000) 49 NSWLR 653 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Gaslight Co v Valuer General (1940) 40 SR(NSW) 126 Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Balenzuela v De Gail (1958-9) 101 CLR 226 Barnes v Hay (1988) 12 NSWLR 337 Brear v Commonwealth [1999] 18 NSWCCR 637 Bruce v Cole (1998) 45 NSWLR 163 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Commercial Minerals Ltd & Auqual Pty Ltd v Hollins (unreported, NSWCA, 22 December 1993) Commonwealth of Australia v Elliott [2004] NSWCA 360 Conway v The Queen (2002) 209 CLR 203 Curnuck v Nitschke [2001] NSWCA 176 Director of Public Prosecutions v Parker (1992) 28 NSWLR 282 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 Escobar v Spindaleri (1986) 7 NSWLR 51 Fairmount Ltd v Environment Secretary (1976) 1 WLR 1255 Frost v Amaca Pty Ltd (2004) 61 NSWLR 159 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Grygiel v Baine & Ors [2005] NSWCA 218 Henville v Walker (2001) 206 CLR 459 Hill v Green (1999) 48 NSWLR 161 John v Rees [1970] Ch 354 Jones v National Coal Board [1957] 2 QB 55 Kanda v Government of Malaya [1962] AC 322 Krew v Commissioner of Taxation (1971) 45 ALJR 324 Mahony v Watson [2003] NSWCA 259 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 Mkari v Meza [2005] NSWCA 136 Monaco v Arnedo Pty Ltd (unreported, Full Court, SCt of WA, 6 September 1994) Muin v Refugee Review Tribunal (2003) 76 ALJR 966 Newell v Lucas [1964-5] NSWR 1597 Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Pantorno v The Queen (1989) 166 CLR 466 Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74 Purkess v Crittenden (1965) 114 CLR 164 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 Road Traffic Authority of NSW v Perry (201) 52 NSWLR 222 Rosenberg v Percival (2001) 205 CLR 434 Touma v Saparas [2000] NSWCA 11 Ruddock v Taylor (2003) 58 NSWLR 269 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Shorey v PT Pty Ltd (2003) ATR 81-701 Sinha v Health Care Complaints [Commission] [2001] NSWCA 206 Smith v NSW Bar Association (1992) 176 CLR 256 Solution 6 Holdings Ltd v Industrial Relations Commission of NSW & Ors (2004) 60 NSWLR 558 Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 Stead v State Government Insurance Commission (1986) 161 CLR 141 Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 QB 405 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Watts v Rake (1960) 108 CLR 158 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 Winston v Roach [2003] NSWCA 310 Wintle v Nye [1959] 1 All ER 552 Wrigley Company Pty Ltd v Hollands (2002) 23 NSWCCR 463 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 Wyoming Nursing Home Pty Ltd v Palazzotto (unreported, NSWCA, 11 October 1995) Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156
PARTIES:	Seltsam Pty Limited (Appellant) Ibrahim Ghaleb (Respondent)
FILE NUMBER(S):	CA 40649/04
COUNSEL:	G Watson SC/A Ventura (Appellant) M Joseph SC/M Cahill (Respondent)
SOLICITORS:	Makinson & D'Apice (Appellant) Slater & Gordon (Respondent)

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S):	DDT 107/03
LOWER COURT JUDICIAL OFFICER:	Walker J