JAMES HARDIE AND CO PTY LTD v SELTSAM PTY LTD [1997] NSWCA 164

JAMES HARDIE & CO PTY LTD v SELTSAM PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, BEAZLEY and STEIN JJA 26 September 1997, 26 September 1997 [1997] NSWCA 164

Negligence — concurrent tortfeasors — claim for contribution in face of consent judgment — respondent not liable — Law Reform (Miscellaneous Provisions) Act 1946.

George Wimpey & Co Ltd v British Overseas Airways Corporation (1955) AC 169; followed.

Mason P Mr Gannon, the plaintiff, sued three defendants in the Dust Diseases Tribunal. He claimed damages for injuries and disabilities flowing from asbestos-related pleural disease. The second defendant, Elcom was sued as employer between 1970 and 1991. The first defendant, James Hardie & Co Pty Ltd ("James Hardie") and the third defendant, Seltsam Ltd ("'Seltsam'') were sued as the manufacturers of asbestos products during the periods of the plaintiff's working life.

Three periods were involved (a) 1953 to 1968, when the plaintiff was employed in the building industry; (b) 1967 to 1973, when the plaintiff was involved in constructing dwellings for his own family; and (c) 1970 to 1991, the period of the plaintiffs employment with the second defendant.

It was claimed that Hardie's products were involved in the third period and that products from each of Hardie's and Seltsam were involved in the two earlier periods. Nevertheless, despite these distinctions the defendants were sued as concurrent tortfeasors responsible for the same injury and damage.

On 8 and 9 November 1995 there was a hearing before his Honour Judge Johns. This Court was informed that at that hearing the plaintiff gave evidence and was cross-examined. On the second day of the hearing, 9 November, James Hardie filed a cross-claim seeking indemnity or contribution from Seltsam under the Law Reform (Miscellaneous Provisions) Act 1946. It would also appear that Seltsam filed its own cross-claim that day seeking contribution from each of the other defendants. The judge was informed about these claims for contribution. Nevertheless in view of the settlement that had been reached between the plaintiff and the respective defendants the judge proceeded to make the following orders at the request of the parties: