Wallaby Grip Limited v State Rail Authority of New South Wales; James Hardie & Company Pty Limited v State Rail Authority of New South Wales

[2001] NSWCA 105

Reported Decision: (2001) 21 NSWCCR 650

New South Wales

Court of Appeal

CITATION:	Wallaby Grip Limited v State Rail Authority of New South Wales & Ors; James Hardie & Company Pty Limited v State Rail Authority of New South Wales & Ors [2001] NSWCA 105
FILE NUMBER(S):	CA 40540/99; 40546/99
HEARING DATE(S):	26/02/01
JUDGMENT DATE:	24 April 2001
PARTIES :	Wallaby Grip Limited v State Rail Authority of New South Wales & Ampol Refineries (New South Wales) Pty Limited & James Hardie & Company Pty Limited; James Hardie & Company Pty Limited v State Rail Authority of New South Wales & Ampol Refineries (New South Wales) Pty Limited
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 71; Ipp AJA at 72

LOWER COURT JURISDICTION :	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S) :	DDT 72/96
LOWER COURT JUDICIAL OFFICER :	Curtis J

COUNSEL:	J Hislop QC/D J Russell (Appellant) D F Jackson QC/B Morris (First Respondent) J McIntyre SC/F Tuscano (Second Respondent) C G Gee QC/G M Watson (Third Respondent/Appellant)
SOLICITORS:	Middleton Moore & Bevins (Appellant) Dexter Healy (First Respondent) Connery & Partners (Second Respondent) Phillips Fox (Third Respondent/Appellant))
CATCHWORDS:	DUST DISEASES - Plaintiff successful at trial agaist first and second respondents - first and second respondents cross claims for contribution against appellants - appeals from Dust Diseases Tribunal - TORT - contribution - s 5 Law Reform (Miscellaneous Provisions) Act 1946 - effect of causation findings upon contributions claims - DAMAGES - inconsistency in method of calculation at trial - EVIDENCE - admission of further evidence on grounds that the case would otherwise be decided on a factual basis known to be false. D
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 Supreme Court Act 1970 Dust Diseases Tribunal Act 1989
CASES CITED:	Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 Wollongong Corporation v Cowan (1954) 93 CLR 435 James Hardie & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425 Wallaby Grip Ltd v Peirce [2000] NSWCA 299
DECISION:	1. The appeals succeed to the extent only that the orders made by Curtis J in the actions relating to the cross claims brought by Ampol against James Hardie and Wallaby Grip are set aside. 2. Judgment should be entered for Ampol in the same amounts against James Hardie and Wallaby Grip as entered in the cross claim brought by SRA against those two parties. 3. Ampol has liberty to file, within 14 days of the publication of these reasons, any further submissions it may wish to make, only in respect of, (a) the calculation of the judgment sums to be entered, (b) the Court's power to make orders disposing of the litigation in the way proposed in the reasons of Priestley JA (rather than remitting it to the Dust Diseases Tribunal), (c) costs. 4. The appeal is adjourned to a date to be arranged for the purposes of making further orders.

CA 40540/99

CA 40546/99

DDT 72/92

PRIESTLEY JA

MEAGHER JA

IPP AJA

Tuesday 24 April 2001

WALLABY GRIP v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ORS

JAMES HARDIE & COMPANY PTY LIMITED v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ORS

Facts:

These appeals arise out of an action in the Dust Diseases Tribunal by Mr Raynor who claimed damages against the First Respondent (SRA) and the Second Respondent (Ampol) for negligently exposing him to asbestos during his employment which lead to him contracting mesothelioma. Mr Raynor was successful against the SRA and Ampol in claiming damages before Maguire J in the amount of $154,500.75, of which SRA and Ampol each agreed to pay $77,250.37.

The SRA and Ampol each filed a cross claim against the Appellants (Wallaby Grip and James Hardie) for contribution. This meant that SRA and Ampol each cross claimed for contributions from each of James Hardie and Wallaby Grip in respect of the liability of each SRA and Ampol of $77,250.37 to Mr Raynor. These cross-claims were heard by Curtis J. His Honour apportioned one fifth of the liability to SRA and two fifths to each James Hardie and Wallaby Grip. He held that both Appellants, if sued, would have been liable for Mr Raynor’s damage and thus s.5 of the Law Reform (Miscellaneous Provisions) Act 1946 applied. In relation to the respective contribution claims, Curtis J held that, as Mr Raynor had recovered $154,500.75, the contributions claims should be resolved as follows;

(a) the SRA to bear $30,900.15

(b) James Hardie to bear $61,800.30

(c) Wallaby Grip to bear $61,800.30

(d) Ampol should bear no liability and was entitled indemnity in the amount of $77,250.37

Curtis J granted judgment in favour of Ampol for $38,025.18 against each of James Hardie and Wallaby Grip. He granted judgment in favour of SRA for $23,175.11 against each of James Hardie and Wallaby Grip. The sum of $38,625.18 was half of the $77,250.37 which Ampol had agreed to pay Mr Raynor and $23,175.11 was half of the $77,250.37 less one fifth, being the extent of SRA’s apportioned liability.

It is from these decisions of Curtis J that these appeals now arise.

1. In James Hardie’s appeals against Ampol, it argued that:

(a) James Hardie was not liable for the “same damage” as Ampol as required by s.5(1)(c) of the Act, as that damage was caused by SRA;
(b) Ampol acted unreasonably or negligently in conceding various issues in Mr Raynor’s action against it, and, as a result, judgment in an excessive amount was granted against Ampol. Had Ampol defended Mr Raynor’s action more effectively, Curtis J would have held that Ampol did not cause Mr Raynor’s mesothelioma.

2. In James Hardie’s appeal against SRA, it argued that it was not open to Curtis J to find that any of its conduct had caused the mesothelioma while Mr Raynor was employed by SRA. James Hardie also argued that Curtis J had failed to consider certain evidence in the case.

a) Ampol, being a joint tortfeasor was liable to Mr Raynor in respect of the same damage for which SRA was liable and further, James Hardie and Wallaby Grip would also have been liable if sued. Therefore, Ampol was entitled to claim contribution from James Hardie. (see paras 33-34)

(b) Ampol did not conduct itself unreasonably and/or negligently and did not thereby incur an excessive verdict.
(c) In regard to James Hardie’s appeal against SRA, evidence should be admitted as the case would otherwise be decided on a factual basis known to be false, on that evidence James Hardie’s argument fails, in any event, there was sufficient evidence, which was properly considered, upon which it could be found that James Hardie materially contributed to Mr Raynor’s mesothelioma.
(d) Curtis J was bound to consider whether Ampol had incurred an excessive judgment, but on the footing that it had been adjudged liable for negligence against Mr Raynor and that Mr Raynor had suffered damage caused by it’s breach of duty.
(e) Curtis J was embarking upon an issue not open to him when he expressed and acted upon the opinion that Ampol had not caused Mr Raynor’s mesothelioma. He should have approached Ampol’s contribution claim on the footing that Ampol did cause Mr Raynor’s damage.
(f) The apportionment in SRA’s case against James Hardie and Wallaby Grip should not be interfered with.
(g) Therefore this apportionment should be applied in respect of the sum of $77,250.37 so that SRA should have judgment in it’s action against James Hardie in the sum of $30,900.15 and for the same amount in the action against Wallaby Grip.
(h) The apportionment in Ampol’s case should be the same, with Ampol bearing the same share.
(i) Therefore judgment should be entered for Ampol in the same amounts against James Hardie and Wallaby Grip as for SRA against those parties. As this was not the subject of any submission, the parties should be given the opportunity to put submissions on this issue before the Court.

Wallaby Grip’s Arguments on Appeal

Wallaby Grip appealed against the judgments for SRA and Ampol and raised the same issues and arguments as James Hardie.

HELD in regard to Wallaby Grip’s Appeals
(Per Priestley JA, Meagher JA and Ipp AJA agreeing)

The conclusions in regard to Wallaby Grip’s appeal against Ampol and SRA are the same as those in regard James Hardie’s appeals.

Legislation:
Law Reform (Miscellaneous Provisions) Act 1946, s.5(1)( c)
Supreme Court Act 1970, ss.75A(8), (10)
Dust Diseases Tribunal Act 1989, s.32

ORDERS

1. The appeals succeed to the extent only that the orders made by Curtis J in the actions relating to the cross claims brought by Ampol against James Hardie and Wallaby Grip are set aside.

2. Judgment should be entered for Ampol in the same amounts against James Hardie and Wallaby Grip as entered in the cross claim brought by SRA against those two parties.

3. Ampol has liberty to file, within 14 days of the publication of these reasons, any further submissions it may wish to make, only in respect of,

(a) the calculation of the judgment sums to be entered,

(b) the Court’s power to make orders disposing of the litigation in the way proposed in the reasons of Priestley JA (rather than remitting it to the Dust Diseases Tribunal),
(c) costs.

4. The appeal is adjourned to a date to be arranged for the purposes of making further orders.

CA 40540/99

CA 40546/99

DDT 72/92

PRIESTLEY JA

MEAGHER JA

IPP AJA

Tuesday 24 April 2001

WALLABY GRIP v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ORS

JAMES HARDIE & COMPANY PTY LIMITED v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ORS

1    PRIESTLEY JA:

Introduction.

Preliminary. The points eventually relied on by the appellants in these two appeals are quite short, but in order to say what they are it is necessary to describe the course of the proceedings that gave rise to them.

2    Mr Raynor (the plaintiff), boilermaker and leading hand, brought common law claims for damages in the New South Wales Dust Diseases Tribunal against State Rail Authority of New South Wales (SRA) and Ampol Refineries (NSW) Pty Limited (Ampol). His statement of claim in the proceedings is dated 24 May 1996.

3    The plaintiff’s claim against SRA was that he had been employed by it between 1938 and 1950, that while so employed he had been negligently exposed to asbestos dust and fibre and that the exposure materially contributed to his contracting mesothelioma.

4    The plaintiff’s claim against Ampol was that in 1954 and 1955, while employed by a construction company in the building of the Kurnell Oil Refinery, allegedly owned and occupied by Ampol, and between 1955 and 1985 while employed by Ampol at that refinery, he had been negligently exposed to asbestos dust and that the exposure materially contributed to his contracting mesothelioma.

5    SRA filed a defence to the plaintiff’s claim and filed cross-claims against Wallaby Grip Limited (WG) and James Hardie & Coy Pty Limited (Hardie). These companies had been major suppliers of asbestos materials to SRA and Ampol. SRA said that the plaintiff’s injuries had been caused by the negligence of WG and Hardie and claimed complete indemnity or contribution from them. WG and Hardie filed defences to the cross-claims.

6    SRA filed a cross-claim against Ampol, but this was later not pursued so that I need not give any details about it.

7    Ampol filed a defence to the plaintiff’s claim and filed cross-claims against WG and Hardie claiming indemnity or contribution from them on the same basis as SRA had done.

8    WG and Hardie each filed defences against the cross-claims.

9    Hardie filed a cross-claim against SRA and Ampol claiming indemnity on contribution from each of them on the ground that each had negligently caused the plaintiff’s injuries.

10    Before Maguire J. The plaintiff’s claim against SRA and Ampol was heard on 4 and 5 July 1996 by Maguire J.

11 In his case against SRA, the plaintiff proved his pleaded employment with SRA and the circumstances of his exposure to asbestos dust and fibre during that employment. There was evidence before the court pursuant to s 25(3) of the Dust Diseases Tribunal Act 1989 upon which Maguire J was prepared to find that SRA had been in breach of its duty of care to the plaintiff and was liable in damages to him “if the exposure during the relevant employment was a contributing factor in the causation of his disease”.

12    In the plaintiff’s case against Ampol, Ampol admitted, for the purpose of the trial, (1) that the plaintiff had mesothelioma, (2) that he had been employed by Ampol and exposed to asbestos dust and fibre as alleged in his statement of claim, (3) that Ampol had breached its duty of care to the plaintiff, and (4) that Ampol was liable “if the plaintiff’s exposure to asbestos whilst employed by [Ampol] was a contributing factor in the causation of his disease”.

13    Thus, before Maguire J the live issue he had to decide in regard to both defendants was that of causation. In regard to this, amongst the evidence before Maguire J was that of Dr Gianoutsos, a thoracic physician, who had said that the plaintiff’s malignant mesothelioma was “directly attributable to the inhalation of asbestos dust and fibre, first in 1938 and then continuing through until at least 1985” and also, that in his opinion, “... on the balance of probabilities all periods of employment are materially contributory”.

14    Maguire J accepted and acted on this evidence, and on 5 July 1996 found for the plaintiff against both defendants ordering that there be judgment against them both in the sum of $154,500.75.

15    Before Curtis J. The cross-claims by SRA and Ampol against Hardie and WG were heard by Curtis J on 14 days from October 1998 to June 1999. He delivered judgment on 25 June 1999. Before Curtis J the cross-claim by SRA against Ampol was not proceeded with because they had agreed between themselves that each would pay, and each had paid, to the plaintiff half of the judgment ordered against them by Maguire J.

16    This meant that in their separate cross-claims against Hardie and WG each of SRA and Ampol was claiming contribution from Hardie and WG towards its actual liability of $77,250.37. At the commencement of the hearing before Curtis J on 19 October 1998 it was made clear that the two claims which were proceeding were SRA’s claim against Hardie and WG and the separate claim of Ampol against Hardie and WG. Counsel applied for the two cases to be heard separately and consecutively, but Curtis J decided they should be heard together.

17 Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (the LRMPA) was central to the cross-claims. So far as presently relevant the section says:

“ (1) Where damage is suffered by any person as a result of a tort (whether a crime or not):
...
(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise ...
(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.
... ”

18    On the basis that both SRA and Ampol were by the judgment of Maguire J liable in respect of the plaintiff’s damage, Curtis J observed that in order to determine whether Hardie or WG or both would if sued have been liable in respect of the same damage, he must determine first when the damage was caused and second whether the products of Hardie or WG were causally relevant. After consideration of those questions he came to the conclusion that the plaintiff’s exposure while employed by the SRA caused his mesothelioma and that the products of both Hardie and WG were causally relevant to the contraction of the disease. In reaching this conclusion he took into account medical evidence that had not been before Maguire J.

19 Curtis J, having thus satisfied himself that Hardie and WG would, if sued, have been liable in respect of the same damage for which SRA and Ampol were liable, proceeded to consider the claims of SRA and Ampol for contribution. He began by noting both that Ampol by Maguire J’s judgment had become a tort feasor liable in respect of damage within the meaning of the opening words of par (c) of s 5(1) of the LRMPA and that the legislation did not permit a re-trial of Ampol’s liability to the plaintiff. He then referred to arguments raised by Hardie and WG which were based upon a passage in the High Court decision Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200. The passage, which is of basic importance in the present case, is as follows:

“ A decision that the liability imposed by the previous judgment is a liability which par (c) of subs (1) contemplated does not necessarily mean that the tribunal which discharges the responsibility of fixing the amount of contribution under subs (2) of s 5 cannot consider whether owing to the fault of the now plaintiff it stands at an excessive figure. No doubt the Court under subs (2) must accept the assessment as conclusive as to the existence and the amount of the liability of the plaintiff claiming contribution. The Court, however, is required to find what is just and equitable as an amount of contribution having regard to the extent of the responsibility for the damage of the tortfeasor against whom the claim is made. There does not seem to be any valid reason why that tortfeasor may not say to the tortfeasor making the claim, if he has improvidently agreed to pay too large an amount or by unreasonable or negligent conduct in litigation has incurred or submitted to an excessive verdict, that the excess is due to his fault and not to that of the tortfeasor resisting the claim. It would be a matter for the Court to consider under the heading of ‘just and equitable’. ” (at 212-213)

20    Based on this passage, it was submitted against Ampol that it would not be just and equitable for it to recover any contribution because of what was said to be its supine conduct of its defence against the plaintiff, allied with this was the contention that had Ampol properly fought the question of causation against the plaintiff, Ampol could not have been held liable because it was the exposure of the plaintiff during his employment with SRA that caused his mesothelioma.

21    Curtis J did not accept this submission. He pointed out that Ampol had not conceded causation before Maguire J and that it had been properly open to Maguire J to accept the opinion of Dr Gianoutsos. Nor was the amount of the judgment recovered by the plaintiff excessive.

22    However, because of his view that SRA and not Ampol had caused the contraction by the plaintiff of mesothelioma, combined with his opinion that Ampol was entitled to contribution from Hardie and WG because of the judgment against it, he concluded that Ampol was entitled to complete indemnity in respect of the amount in fact it paid in satisfaction of the plaintiff’s judgment.

23    Turning then to SRA’s contribution claim, he reviewed the material relevant to the responsibility for the plaintiff’s damage of SRA, Hardie and WG and decided he should apportion one fifth of the liability to SRA and two fifths to each of Hardie and WG. He then continued:

“ In money terms, the plaintiff having recovered $154,500.75. State Rail Authority of New South Wales is to bear $30,900.15, James Hardie and Coy Pty Ltd $61,800.30 and Wallaby Grip Limited $61,800.30. Ampol Refineries (New South Wales) Pty Ltd is to bear no liability and is entitled to indemnity in the sum of $77,250.37. This apportionment is effected by the following orders.

Judgment for Ampol Refineries (New South Wales) Pty Ltd in its action against Wallaby Grip Limited in the sum of $38,625.18.
Judgment for Ampol Refineries (New South Wales) Pty Ltd in its action against James Hardie and Coy Pty Ltd in the sum of $38,625.18.
Judgment for State Rail Authority of New South Wales in its action against Wallaby Grip Limited in the sum of $23,175.11.
Judgment for State Rail Authority of New South Wales in its action against James Hardie and Coy Pty Ltd in the sum of $23,175.11. ”

24    $38,625.18 is half of the half of the plaintiff’s judgment sum which Ampol had agreed with SRA to pay, and had paid, to the plaintiff. $23,175.11 is half of the half of the plaintiff’s judgment sum which SRA had agreed with Ampol to pay and had paid to the plaintiff, less one-fifth of the plaintiff’s judgment sum.

25    There appears to me to be an inconsistency between the method of calculation of the judgment sums payable to Ampol on the one hand and SRA on the other.

26    In the first paragraph of the quoted passage it was said that SRA must bear $30,900 (one fifth of the judgment sum) and Ampol was entitled to indemnity for $77,250, half of the judgment sum. I would have thought that since SRA could only claim contribution from Hardie and WG in respect of what it had actually paid to the plaintiff bringing about the discharge of his judgment by co-operation with Ampol, namely $77,250, and since Hardie and WG each bore culpability for two-fifths of the total amount payable to the plaintiff they should only have to contribute to SRA two-fifths each of the amount SRA had paid, that is, SRA was entitled to judgment for $30,900 against each of them. Alternatively, if the amount to be borne by SRA was to be calculated by reference to the full amount of the plaintiff’s judgment, so should the indemnity to Ampol; that would have meant that that amount was $154,500. A mechanism would then be needed to adjust the amounts between the four tortfeasors to avoid double payments.

27    I think the former of the two approaches just mentioned must have been that adopted by the trial judge, because, amongst other indications in the transcript, the following is recorded as having been said to the trial judge on the second last day of the fifteen days of hearing by counsel for WG:

“ What your Honour has been asked to do here is to embark on two enquiries, one by each defendant, as to how much my client ought to contribute to their 50% that they have paid of this amount.
HIS HONOUR: I appreciate that but if Ampol has paid 50% and they are not liable in law but you are, then they are entitled to that full 50% back, only if they are not legally responsible. ”

28    The question of the method of quantification of the amounts of the judgments entered by the trial judge and the possible inconsistency between the way in which he approached quantifying the judgments for SRA and WG was not referred to in the argument in the appeals.

29    Curtis J’s reasons covered a number of other issues which I have not mentioned in the above summary because they were not the subject of argument in the appeal; I have only referred to the matters necessary for an understanding of the points actually relied upon by the appellants.

The appeals

30    Both Hardie and WG filed notices of appeal against the judgments against them. In their written and oral submissions in the appeals a number of the grounds of appeal in their notices of appeal were abandoned.

31    I will deal first with the grounds of appeal relied on by Hardie against the judgments obtained against it by Ampol and SRA.

32    Hardie’s appeals; (i), against Ampol’s judgment against it. Hardie had two separate arguments against its liability for contribution to Ampol.

33    The first argument was that since Curtis J had found that it was the plaintiff’s exposure to asbestos fibre and dust while employed by SRA that caused him to contract mesothelioma and since Curtis J had made it clear in various places in his reasons that he did not consider that the plaintiff’s employment with Ampol had been causative of the plaintiff’s mesothelioma, therefore, to quote Hardie’s written submission on this point, which it called the “the same damage” submission “the claim made by Ampol against ... Hardie could not succeed because ... Hardie could never have been held to be ‘liable in respect of the same damage as Ampol, as ... required by s 5(1)(c) of the LRMP Act”. It was said that the “damage” suffered by the plaintiff was caused by the SRA.

34 I do not think this argument can succeed in face of the two facts that (a) Ampol, on my reading of s 5, having been one of two tortfeasors against whom judgment had been recovered in respect of the same damage, was by the words of s 5 liable to the plaintiff in respect of the same damage as that for which SRA (the other tortfeasor) was liable to the plaintiff and (b) Curtis J held that both Hardie and WG would if sued by the plaintiff have been liable in respect of that damage. Since judgment was recovered by the plaintiff against Ampol in respect of that damage Ampol in my opinion was entitled to claim contribution from Hardie who would if sued have been liable in respect of that same damage.

35    The second argument was a repetition of the one put to Curtis J which had relied on observations in the passage set out above from the Bitumen and Oil Refineries case. The first proposition in this argument was that Curtis J had the power under s 5 in deciding what was just and equitable between the tortfeasors to examine the question whether Ampol had by unreasonably or negligently conducting itself in its defence of the plaintiff’s claim incurred an excessive verdict. I think this proposition must be accepted. There was some discussion in the course of the oral submissions about whether the passage from Bitumen and Oil Refineries relied on for the proposition was part of the ratio of that case or had the lesser status of obiter dictum. I do not think it necessary to explore that question, because whatever its precedential status may be on strict analysis, the passage has been acted on by courts throughout Australia for so long now that if what it says is to be re-examined, that re-examination seems to me to be appropriately done only by the High Court. (In James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 Gaudron and Gummow JJ wrote joint reasons in which they appear to have accepted the passage as correct; they, with Callinan J, were of the majority in the decision; McHugh J agreed with Kirby J, they comprising the minority, with Kirby J also referring to the relevant passage without any apparent criticism.)

36    Hardie, after stating the mentioned first proposition, then submitted that (i) Ampol’s concession before Maguire J that it had been the plaintiff’s employer at relevant times and that it was in breach of its duty of care, were mistaken; as to employment because there was material before Curtis J, which, it was said, showed that another company than the defendant Ampol was the plaintiff’s employer; (ii) that Ampol had been unreasonable or negligent in not contesting the medical case against it because had it done so it would have been found, as Curtis J found that the plaintiff’s mesothelioma was not caused by Ampol and; (iii) it was therefore also improvident of Ampol to agree to share liability with SRA.

37    The argument that Ampol’s concession of employment had been wrongly made was put in Hardie’s written submissions; at first sight I found it hard to accept because it seemed very difficult to suppose that such a concession was made without careful consideration and without good reason by Ampol. However, Hardie pressed the submission, arguing that two questions and answers extracted from a set of interrogatories directed to and answered by Ampol and tendered in evidence, showed that the concession was wrong. Ampol took the submissions sufficiently seriously in its own written submissions to foreshadow an application to put further evidence before the court in the appeal to show that the company which employed the plaintiff had changed its name on a number of occasions but was the same company as Ampol the second defendant in the plaintiff’s proceedings, under the name it bore at the time the proceedings began.

38    When the question first came up in the beginning of the appeal the court was inclined to think there was no need for the further evidence foreshadowed on behalf of Ampol. Both questions extracted from the interrogatories were limited to a period, called in the questions “the period”, the meaning of which was undefined in and unascertainable from the questions. Presumably it was defined elsewhere in the set of interrogatories, but these were not in evidence. This court could not know what “the period” was about which questions were being asked. (As mentioned earlier, the plaintiff’s claim against Ampol alleged two relevant periods, the earlier, when employed by a construction company engaged in building the Kurnell Oil Refinery and the later while he was employed by Ampol at that refinery.) Without any definition of “the period”, the answers to the questions seemed to the court to be relevantly unintelligible and unable to carry any weight against the otherwise obvious inference from all the circumstances of the trial before Maguire J that Ampol’s concession about the employment of the plaintiff was properly made.

39    Later in the hearing it was submitted for Hardie that it would be unfair for the court to act on the foregoing basis, as it had indicated it was proposing to do, because the question of employment, it was submitted, had been a real issue before Curtis J, and when the interrogatories were tendered, the judge and all counsel understood what the “period” was that was being spoken of, so that what seemed to this court to be unintelligible, was perfectly understood in the court below. Reference was made to discussion of the matter at Black Appeal Book 213 and following.

40 The court therefore heard the application by Ampol for the further evidence to be put before the court. This evidence showed, beyond any doubt whatsoever, that Ampol had been the employer of the plaintiff from 1955 until 1985. Hardie did not attempt to gainsay that position, but submitted that the evidence was of the kind that the court should not receive on appeal except on special grounds, and that no special grounds had been shown: cf s 75A(8) of the Supreme Court Act.

41    Counsel for Hardie was asked what prejudice would be suffered by his client if the evidence were admitted. He submitted that some expense had been incurred at the trial because the issue had not there been conclusively dealt with and matters had apparently been left on the basis of the intended interrogatories and further that Hardie might have conducted its case differently in respect of settlement. Having looked through, without trying to absorb in full, the transcript that followed the specific pages to which the court was referred at 213 and following, (it ran for another 483 pages) I cannot see that any real prejudice would be suffered.

42    So far as I can make out, and I repeat that I have not taken in every page, counsel for Ampol at the trial had responded to the tender of the interrogatories by saying that he would see to it that evidence was put before the court showing the identity of the plaintiff’s employer with the company (Ampol) named as defendant in the plaintiff’s proceedings. That is he was asserting that the position was as it later turned out to be when the appropriate evidence was put before this court in the application for reception of further evidence. I have not seen any further reference in the appeal papers to the matter after that stage of the hearing. My impression, which may be wrong, is that the hearing proceeded without any particular attention later being paid to the issue and with all counsel dealing with the case as if the right party were before the court. As well as the very lengthy oral submissions the transcription of which was in the appeal papers, written submissions were made available to the trial judge, but not to this court. In this court counsel told us that they did not think the written submissions would advance matters any further.

43    By the ordinary rules, which are well known, and the references to which appear in Ritchie’s Supreme Court Procedure at pp 3068.44 and 3068.45, the evidence is not admissible but, as is noted at 3068.45 the ordinary rules are “merely guides”. The rules guide but do not imprison the court. They will usually be followed unless there is very good reason against it, which Dixon CJ described as “some insistent demand of justice” (Wollongong Corporation v Cowan (1954) 93 CLR 435 at 444. In the circumstances of the present case it would seem quite unjust to me to permit this appeal to be decided on a factual basis known to everybody connected with the case to be false. I would therefore allow the further evidence.

44    That evidence being admitted, Hardie’s point disappears. A further reason for finding against Hardie on the point is probably available even in the absence of the further evidence. It seems to me to be likely that it follows from the passage in the Bitumen and Oil Refineries case earlier set out that since the court hearing the contribution claim must accept as conclusive “the existence and the amount of the liability of the plaintiff claiming contribution” it must accept also matters which were essential to that liability. One of the matters essential to Ampol’s liability was its employment of Mr Raynor.

45    As to the concession concerning breach of duty of care, Hardie’s original criticism of this was contained in its written submissions and I am not sure whether it was relied on in the oral argument. In any event, it seems to me to have no substance. There has been a long and melancholy sequence of cases before the courts concerning asbestos, asbestosis and mesothelioma. The plaintiffs in many of these cases have been employees of large corporations. The sequence of cases has contributed to a continually growing accumulation of materials, in the early days of the litigation not so readily available or well understood as later, about both the dangers of asbestos and the extent of the knowledge of its distributors and of the manufacturers who used it, which makes readily understandable the decision of such a company as Ampol not to contest the breach of duty question. This is said not in criticism of Ampol, but in recognition of its good sense at the litigation stage. The concession seems to me to be completely justifiable and for Hardie to describe it as “unreasonable”, “negligent” and “improvident” seems to me to be quite unwarranted.

46    Submission (ii) (see par 36 above), that Ampol could have defended the medical case against it so that it would have been held that Ampol did not cause the plaintiff’s mesothelioma, was based upon Curtis J’s causality finding to that effect.

47    There are several answers to Hardie’s contention. One is that to me at any rate it is by no means obvious that it is right as a matter of fact. Curtis J rejected the same submission on the ground that there was strong authority supporting the position adopted by Ampol at the time of the hearing. I agree. Curtis J also referred to the continuing growth of medical expertise since the decision of Maguire J. This may have meant that judges had a somewhat different understanding of causality questions in mesothelioma cases in 1999 from their understanding in 1996, but that does not affect the soundness of Ampol’s approach in 1996.

48    A more important answer for purposes of this appeal is that Curtis J was, in my respectful opinion, embarking upon an issue not open to him when he expressed and acted on the opinion that Ampol had not caused the plaintiff’s mesothelioma. I refer again to the passage previously cited from Bitumen and Oil Refineries which, as I have indicated, should, in my opinion, be treated by this court as authoritative. I repeat that this passage makes it clear that under subs (2) of s 5 of the LRMPA the court deciding the application for contribution must accept an earlier judgment against the now plaintiff tortfeasor “as conclusive as to the existence and the amount of the liability of the plaintiff claiming contribution”. In the remainder of the passage, following that observation, it was made equally clear that the court could investigate whether the amount for which the party claiming contribution had been made liable was excessive due to some default on that party’s part. That investigation would be permissible, and, if required by the party resisting contribution, no doubt obligatory, because of the court’s duty to decide upon what would “be just and equitable having regard to the extent of that person’s responsibility for the damage”.

49    It follows that although Curtis J was bound to consider the question whether Ampol had incurred an excessive judgment, he was also bound to do so on the footing that it had been adjudged liable for negligence against the plaintiff, which necessarily involved that the plaintiff Mr Raynor had suffered damage caused by Ampol’s breach of duty.

50    This means that the only foothold that Hardie might have had, in my opinion, in this appeal, for arguing against the order that it contribute to Ampol, namely Curtis J’s apparent finding that Ampol did not cause the plaintiff’s damage, was not open to Curtis J to find, with the result that Hardie cannot base its argument upon that finding.

51    Submission (iii) (see par 36 above) must also fail for the same reasons as submission (ii).

52    Although therefore in my view Hardie’s arguments in one sense all fail, they nevertheless also show, in my respectful opinion, that Curtis J in one respect approached the question of Ampol’s contribution claim on a wrong footing: he dealt with it on the basis that Ampol had not caused the plaintiff’s damage, when, in my opinion, he should have approached it on the basis that Ampol did cause, in the sense of materially contribute to, the plaintiff’s damage. It was against that background that he had to consider Ampol’s contribution claim against Hardie and WG, each of whom he had found, in my opinion correctly, was an “other tortfeasor” within par (c) of s 5(1). In considering the comparative responsibility of the three tortfeasors, Ampol, Hardie and WG for the same damage and then deciding what amount it would be just and equitable for Hardie and WG to contribute to Ampol, it was then open to the trial judge to take into account his view of the extent of Ampol’s material contribution to Mr Raynor’s mesothelioma in comparison to that of the other tortfeasors. This is what Curtis J did in James Hardie & Coy Pty Ltd v Roberts and which this court approved of on appeal: (1999) 47 NSWLR 425. In my respectful opinion Curtis J should have done the same in the present case.

53    I will consider the consequences of my conclusion later in these reasons.

54    Hardie’s appeals; (ii) against SRA’s judgment against it. The only ground relied on by Hardie against SRA’s judgment against it was the first ground in its notice of appeal. This had two parts. The first said that the trial judge erred in finding that any conduct by Hardie caused the mesothelioma suffered by the plaintiff while he was employed at the SRA and that the error consisted in the misapplication of the legal principles established in a number of cases. The second said that the trial judge failed to consider certain evidence in the case.

55    The only rights of appeal against decisions of the Dust Diseases Tribunal are those permitted by s 32 of its Act. The only presently relevant ground in that section is dissatisfaction in point of law. Thus the ground of appeal that the judge’s method of deciding the causation question was wrong, is only available if it means that his method was wrong in point of law.

56    I sought to explain my understanding of the way in which this court approaches appeals limited to error in point of law in Wallaby Grip Ltd v Peirce [2000] NSWCA 299, 27 October 2000, pars 6-10. In the present case I adopt the same approach.

57    In my opinion, there was ample evidence before Curtis J upon which to find, on the probabilities, that Hardie had materially contributed to the plaintiff’s contraction of mesothelioma. That part of Hardie’s submission which criticised the method by which the trial judge arrived at his conclusion analysed the method which the trial judge said he had used in reaching that conclusion. In this particular case any normative factor in reaching that conclusion was of little significance. No argument concerning such a factor was put to the court. Hardie’s analysis of the trial judge’s method did not, so far as I could see, show any error in point of law or misunderstanding of any legal rule by the trial judge. In other words, the argument on this point seems to be of a factual kind in the sense in which “factual” is used in contrast to arguments involving a “point of law”.

58    The other branch of the present argument, that the trial judge failed to consider certain evidence in the case, in my opinion fails for the same reason, once it is accepted that there was evidence upon which the trial judge could reach the conclusion that he did. Further, I do not accept that the trial judge failed to consider the evidence to which Hardie referred. It seems to me that a better way of describing what the trial judge did was that he took a different view of the evidence from that which Hardie was submitting he should take.

59    Finally, in regard to this argument, it was submitted by SRA that the method used by Curtis J was substantially the same as that approved by this court in James Hardie & Coy Pty Ltd v Roberts. This seems to me to be a sound submission.

60    WG’s appeals. WG’s appeals against the judgments for SRA and Ampol against it raised the same points as Hardie’s appeals had done, and my conclusions are the same.

61    The judgments in favour of Ampol. The only point of the many decided by Curtis J in which legal error has in my opinion been shown is his assessment of Ampol’s culpability, compared with that of Hardie and WG, on the basis that Ampol had not caused (materially contributed to) the plaintiff’s contraction of mesothelioma when, in my opinion, he was bound to make the assessment on the footing that Ampol had materially contributed to it.

62    Consequences of my opinion. Section 75A of the Supreme Court Act applies to an appeal to this court, subject to subss (2) and (3), which are not relevant to an appeal from the Dust Diseases Tribunal. Section 75A(10) empowers the court to “make any finding ..., give any judgment, make any order ... which ought to have been given or made or which the nature of the case requires”. Section 32(2) of the Dust Diseases Tribunal Act says that the Supreme Court, on the hearing of an appeal under s 32 “may ... 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”.

63 If s 32(2) were looked at by itself, it might be arguable that the Supreme Court’s power to “make such other order” was ancillary to the power to remit the matter the subject of the appeal to the Tribunal, so that the “make such other order” power was not free standing. However, I know of no reason why s 75A(10) of the Supreme Court Act and s 32(2) of the Dust Diseases Tribunal Act should not be read together, and doing that, it seems to me that this court is empowered to make the orders that should have been made below, using substantially the same premises as Curtis J arrived at on the facts, but against the necessary background I have spoken of, and should exercise that power, if the case seems sufficiently clear, as to me it does, in order to avoid sending this matter back for what might turn out to be another inordinately lengthy hearing at first instance.

64    In my opinion in view of the way the separate cases were conducted before Curtis J, and in light of the facts found by him, his finding that in SRA’s case against Hardie and WG one-fifth of the liability should be apportioned to SRA and two-fifths to each of Hardie and WG was sound, and should not be interfered with; further, it seems to me that this apportionment should be made in respect of the $77,250 which SRA paid to Mr Raynor so that SRA should have judgment in its action against Hardie in the sum of $30,900 and in its action against WG for the same amount.

65    In regard to Ampol’s actions, once the basic background fact is taken into account that Ampol caused (materially contributed to) Mr Raynor’s mesothelioma, the further fact that SRA and Ampol agreed between themselves to share equally their liability to pay damages to Mr Raynor assumes greater importance than Curtis J was able to give it on the basis of his finding about causality. It is true that the agreement between SRA and Ampol has no binding or conclusive force so far as the other tortfeasors are concerned, but it seems to me to be an evidentiary fact of considerable weight. These after all were the two parties most concerned with the apportionment of responsibility between themselves. No reason was suggested why either of them would make other than a practicable assessment of its situation as against the other.

66    In the circumstances it seems to me that the same general factors that led Curtis J to apportion one-fifth of the liability to SRA as against Hardie and WG lead to the conclusion that the position must be much the same in regard to Ampol.

Proposed orders .

67    In my view therefore judgment should be entered for Ampol in the same amounts against Hardie and WG as for SRA against those two parties.

68    As I mentioned earlier, the question I have raised about the calculation of the judgment amounts in favour of SRA was not the subject of any submission before the court. For that reason alone, the parties should be given an opportunity to put such submissions to the court about the matter as they may wish to do after considering these reasons. Another good reason for allowing the parties that opportunity is that there may well be some explanation of the way in which the sums were calculated which I have overlooked. If so, that can be pointed out and any necessary adjustments made to my opinion.

69    Since Ampol seems to be the party most adversely affected by my conclusions, I would propose that Ampol be given liberty to file within fourteen days of the publication of these reasons any further submissions it may wish to put before the court; this liberty to be given only in respect of three matters, the first the question of the calculation of the judgment sums, the second this court’s power to make orders disposing of the litigation in the way presently proposed, rather than remitting it to the Dust Diseases Tribunal, and the third costs.

70    The other three parties should have liberty within a further fourteen days from the date fixed for Ampol’s submissions to file any submission they may wish the court to consider on the three matters in respect of which the liberty is proposed.

71    MEAGHER JA: I agree with Priestley JA.

72    IPP AJA: I agree with Priestley JA.

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