Reported Decision : 47 NSWLR 425 (1999) Aust Torts Reports 81-527 New South Wales Court of Appeal CITATION : JAMES HARDIE & COY PTY LIMITED v ROBERTS & ANOR [1999] NSWCA 314 FILE NUMBER(S) : CA 40594/97 HEARING DATE(S) : 13 July 1999 JUDGMENT DATE : 13 September 1999 James Hardie & Coy Pty Limited - Appellant PARTIES : Gary Roberts as Executor of the Estate of the late Guy Edward Roberts - First Respondent Seltsam Pty Limited - Second Respondent JUDGMENT OF : Spigelman CJ at 1; Meagher JA at 2; Sheller JA at 39; Stein JA at 104; Giles JA at 105 LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT FILE NUMBER(S) : DDT 15/97 LOWER COURT JUDICIAL OFFICER : Judge Curtis C G Gee QC/G M Watson - Appellant COUNSEL : D F Jackson QC/F Toscano - First Respondent J D Hislop QC/JJE Fernon - Second Respondent Allen Allen & Hemsley - Appellant SOLICITORS : McLaughlin & Riordan - First Respondent Toomey Pegg & Drevikorsky - Second Respondent CATCHWORDS : NEGLIGENCE - dust diseases - damages - measure of - plaintiff's estate may recover damages for destruction of earning capacity of deceased during remainder of what would have been the plaintiff's working life had he not died; NEGLIGENCE - dust diseases - multiple defendants - no issue as to causation - apportionment of damages Compensation to Relatives Act 1897 ACTS CITED : Law Reform (Miscellaneous Provisions) Act 1944 Law Reform (Miscellaneous Provisions) Act 1946 Law Reform (Miscellaneous Provisions) Act 1965 Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 Benham v Gambling [1941] AC 157 Commonwealth of Australia v McLean (partly reported in 41 NSWLR at 389 and partly unreported) 31 December 1996 EM Baldwin & Son Pty Ltd; Jsekarb Pty Limited v Plane (1999) AustTortsR 81-499 Fitch v Hyde-Cates [1980] 2 NSWLR 757 Fitch v Hyde-Cates (1982) 150 CLR 482 Gammell v Wilson [1982] AC 27 Harris v Empress Motors Limited [1984] 1 WLR 212 Jackson v Stothard [1973] 1 NSWLR 292 Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 1995) CASES CITED: Medlin v State Government Insurance Commission (1995) 182 CLR 1 O'Brien v McKean (1968) 118 CLR 540 Oliver v Ashman [1962] 2 QB 210 Pickett v British Rail Engineering Limited [1980] AC 136 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 R v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 Rose v Ford [1937] AC 826 Sharman v Evans (1976) 138 CLR 563 Skelton v Collins (1966) 115 CLR 94 Teubner v Humble (1963) 108 CLR 491 Todorovic v Waller (1981) 150 CLR 402 Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 DECISION : Appeal and cross-appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40594/97 DDT 15/97 SPIGELMAN CJ MEAGHER JA SHELLER JA STEIN JA GILES JA JAMES HARDIE & COY PTY LIMITED v ROBERTS & ANOR The plaintiff contracted mesothelioma from exposure to asbestos fibres released from building products manufactured by the first defendant (appellant) and the second defendant (second respondent). The plaintiff began proceedings in the Dust Diseases Tribunal in 1997. On 20 August 1997 judgment was delivered in favour of the plaintiff. He died on 3 September 1997. The first defendant appealed the trial Judge's assessment of damages relating to the amount allowed for loss of earning capacity after death, in particular, what sum should have been deducted from the income during the period by which his life expectancy had been reduced ("the lost years"), to reflect the plaintiff's costs of maintenance. The first defendant also challenged the trial Judge's apportionment of damages between the first defendant and the second defendant. The second defendant challenged the award of damages in respect of the lost years, on the same basis as the first defendant. Per Meagher JA: (1) In a normal case of negligence, an order to pay a sum of money for "future economic loss" is an award for diminution of earning capacity, not loss of earnings. It follows that if a plaintiff is in the habit of spending some amount of his own money on his pleasure, that habit does not result in any deduction being made from the damages he receives on account of his loss of earning capacity, for the simple reason that it is irrelevant to his earning capacity. (2) Damages for the lost years are, as a matter of consistency, to be treated as damages for lost earning capacity. Only moneys which would have been expended to utilise earning capacity are to be deducted from wages which would otherwise have been earned. (3) EM Baldwin & Son Pty Ltd; Jsekarb v Plane (1999) Aust Torts Reps 81-499 establishes a rule of law that in any case where the defendants are equally liable to the plaintiff there can be no apportionment between the defendant's other than a fifty/fifty apportionment. This rule misconstrues the words of s5 of the Law Reform (Miscellaneous Provisions Act) 1946. Different defendants may still have exposed the plaintiff to increased risks of exposure. The apportionment chosen by the trial Judges in both Plane and the present case simply reflected that differentiation of risk. Held by Sheller JA, Spigelman CJ, Meagher, Giles and Stein JJA agreeing: (1) No deduction was required for items of expenditure on entertainment or indulgence pursuing a standard of living commensurate with the plaintiff's hard work. A distinguishing characteristic of such expenditure was that it was not necessary to maintenance. (2) In arriving at the economic value to the plaintiff of the loss of earning capacity, the expenditure required to enable the future earnings to be earned must be deducted from probable future earnings. This was so whether the plaintiff's life expectancy was reduced or not. Even if the life expectancy was not reduced, expenditure such as fares and work clothing would be deducted. If the life expectancy was reduced the range of expenditure deducted would be greater and extend to expenditure no longer incurred in maintaining the plaintiff so that his earning capacity could be exploited. For that reason, living expenses which would have enabled the plaintiff to earn are deducted in a claim for the lost years but not where life expectancy is unaffected. But the deduction does not go further. Fitch v Hyde-Cates [1980] 2 NSWLR 757 followed, Sharman v Evans (1976) 138 CLR 563 and Skelton v Collins (1966) 115 CLR 94 considered. (3) The plaintiff's exposure by a negligent defendant to material risk of injury was a basis upon which the defendant may be found to have caused the injury. The trial Judge found that the degree of exposure, and hence the degree of risk, varied between the two defendants. There was no error in the trial Judge applying the relevant proportions to determine what was a just and equitable apportionment having regard to each defendant's responsibility for the damage. (4) If EM Baldwin & Son Pty Ltd; Jsekarb v Plane was properly understood as being a factual determination by this Court of approximate equality of culpability in a case where the Court was entitled to re-assess that culpability, the decision was one restricted to its particular facts and of no relevance in this appeal. On the other hand, if it was to be regarded as a statement of legal principle that, in circumstances where successive employers have exposed a worker to the risk of injury from asbestos over different periods with different intensities of exposure to asbestos with different degrees of toxicity, apportionment of liability between successive negligent employees, found to have caused disease resulting from such exposure, must be equal, then such statement is wrong. Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 and Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 referred to. (5) In cases of this sort, where causation was proved by evidence of exposure to risk and there was a rational basis for distinguishing between the degrees of exposure, it was not correct to say that there is no rational basis for the division of causation. Nor should the conventional regard to culpability and causation obscure the need to examine the whole conduct of each party, an examination which in circumstances of inability to quantify comparative causal potency could itself lead to differential responsibility by regard to the degree of exposure to risk. Per Stein JA: (1) EM Baldwin & Son Pty Ltd; Jsekarb v Plane does not establish any general principle that so long as scientific knowledge cannot establish the aetiology of mesothelioma, then liability must be equally apportioned amongst defendants held to be liable. Statutes: Compensation to Relatives Act 1897 Law Reform (Miscellaneous Provisions) Act 1944 Law Reform (Miscellaneous Provisions) Act 1946 Law Reform (Miscellaneous Provisions) Act 1965 Cases:Oliver v Ashman [1962] 2 QB 210 Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 Benham v Gambling [1941] AC 157Benham v Gambling [1941] AC 157 Commonwealth of Australia v McLean (partly reported in 41 NSWLR at 389 and partly unreported) 31 December 1996 EM Baldwin & Son Pty Ltd; Jsekarb Pty Limited v Plane (1999) AustTortsR 81-499 Fitch v Hyde-Cates [1980] 2 NSWLR 757 Fitch v Hyde-Cates (1982) 150 CLR 482 Gammell v Wilson [1982] AC 27Gammell v Wilson [1982] AC 27 Harris v Empress Motors Limited [1984] 1 WLR 212 Jackson v Stothard [1973] 1 NSWLR 292 Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 1995) Medlin v State Government Insurance Commission (1995) 182 CLR 1 O'Brien v McKean (1968) 118 CLR 540 Oliver v Ashman [1962] 2 QB 210Pickett v British Rail Engineering Limited [1980] AC 136 Pickett v British Rail Engineering Limited [1980] AC 136 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 R v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 Rose v Ford [1937] AC 826 Sharman v Evans (1976) 138 CLR 563 Skelton v Collins (1966) 115 CLR 94 Skelton v Collins (1965) 115 CLR 94 Teubner v Humble (1963) 108 CLR 491 Todorovic v Waller (1981) 150 CLR 402 Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 Text Books: Luntz on Damages, Butterworths, 3rd ed. ORDERS Appeal and cross-appeal dismissed with costs ******* THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40594/97 DDT 15/97 SPIGELMAN CJ MEAGHER JA SHELLER JA STEIN JA GILES JA Monday, 13 September 1999 JAMES HARDIE & COY PTY LIMITED v ROBERTS & ANOR JUDGMENT 1 SPIGELMAN CJ: I agree with Sheller JA. 2 MEAGHER JA: The facts of this case are quite exceptionally uncomplicated. The plaintiff, Mr Roberts, was a plumber who in 1996 contracted the horrible disease of mesothelioma. He has died before this appeal was heard. The mesothelioma was contracted as a result of his exposure to asbestos fibre released by materials manufactured in part by James Hardie & Coy Pty Limited, the appellant, and in part by the second respondent, Seltsam Pty Limited. 3 There was no question but that both these parties, who were sued by Mr Roberts, were liable to him in negligence. As Judge Curtis said, with lapidary precision: "The plaintiff, a plumber, in 1996 contracted the disease of mesothelioma as a result of exposure to asbestos fibres released from the building products manufactured by the defendants upon which he worked with power tools. He suffers and has only months to live. The defendants owed a duty of care to the plaintiff. His injury has been shown to be foreseeable and preventable by reasonably practicable means. Neither defendant called evidence on liability nor sought to be heard on this issue in submissions. There will be verdict for the plaintiff." 4 His Honour found that 75 per cent of the asbestos cement products used by the plaintiff causing his injuries were supplied by the appellant James Hardie Industries Pty Limited and 25 per cent by Seltsam Pty Limited. That finding has not been challenged. 5 As, I think, in all mesothelioma cases involving multiple employers or multiple suppliers, it was impossible to say, even on the civil onus, that it was more likely that it was the product of one supplier rather than that of the other which caused the disease. Thus, initially, in this case as in many others, both the defendants became liable to a verdict in favour of the plaintiff: a well established but theoretically anomalous position of the defendants suffering a joint verdict against them, although their liabilities in tort were several. 6 His Honour analysed the necessarily scanty material about how the plaintiff spent his earnings. He found that the plaintiff in the years before his illness earned per week approximately $485, that he spent all this $485, but that he did not spend more than $200 per week on items which were necessary to exploit his earning capacity. 7 The plaintiff's case had as an essential element, if not the essential element, a claim for "lost years", because it was obvious that Mr Robert's life would be shortened by many years by his disease. The plaintiff claimed as damages in each lost year the amount he would have earned in that year, less any sums he would necessarily have spent to earn that amount. On this basis the plaintiff claimed $155,473. The defendants, however, claimed that there should be deducted from his earnings all payments he was accustomed to make to anyone (apart from mortgage payments). On this basis they calculated his entitlement in respect of the "lost years" as $59,797. 8 The plaintiff's total verdict was for $340,408. 9 In proceedings between the defendants for contribution under s5(2) of the Law Reform (Miscellaneous Provisions) Act 1946, his Honour apportioned the damages as to 75 per cent against the appellant James Hardie & Coy Pty Limited and as to 25 per cent against the respondent Seltsam. His Honour's reasoning in this regard should be quoted in full. It is as follows. "The phrase 'responsibility for damage' requires that I compare the parties relative culpability in causing the damage. I adopt the works of Clarke JA in Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 1995): Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 1995): 'The making of an apportionment (involves) a comparison of culpability and of the acts of the parties causing damage. To put it another way, the Court is concerned with considering relative blame worthiness and the relevant causal potency of the negligence of each party.' In the present case I regard the defendants as equally blameworthy as each being a large industrial corporation actively competed for market shares producing and distributing a product which they ought to have known was associated with the risk of grave injury. In relation to the causal potency it is probable that while the plaintiff's illness is related to his total fibre burden that 75 per cent of that burden was occasioned to him by the products of James Hardie and 25 per cent by the products of Seltsam. I apportion responsibility for the plaintiff's damages 75 per cent to the defendant James Hardie, 25 per cent to Seltsam." 10 This appeal raises two questions of general importance arising out of Judge Curtis' judgment. 11 The first is whether in assessing damages for the loss of earning capacity to a living plaintiff whose life has been shortened should deductions be confined to the "bare necessities", as decided by this Court in The Commonwealth of Australia v McLean (1997) 41 NSWLR 389The Commonwealth of Australia v McLean (1997) 41 NSWLR 389? 12 The second is whether a finding that as between the plaintiff and the defendants each defendant is equally liable precludes an apportionment between the defendants other than fifty/fifty, as was decided by this Court in EM Baldwin & Son Pty Ltd; Jsekarb Pty Limited v Plane (1999) AustTortsR 81-499EM Baldwin & Son Pty Ltd Jsekarb Pty Limited v Plane (1999) AustTortsR 81-499. 13 In my respectful view the answers are perfectly clear. The answer to the first question is yes, McLean's case was correctly decided. The answer to the second question is no, and in this regard Plane's case is incorrectly decided. 14 I shall deal with the first question first. The starting point must be that in the normal case of negligence when the courts order the payment of a sum of money for "future economic loss" they are awarding that sum in compensation for the loss or diminution of earning capacity, not loss of earnings: see Brennan J in Todorovic v Waller (1981) 150 CLR 402 at 464Todorovic v Waller (1981) 150 CLR 402 at 464 and generally Luntz on Damages, Butterworths, 3rd ed. at p 224. This principle, enunciated earlier and more clearly by the Australian courts than by the English ones, must now be considered incontrovertible. Its correctness was not attacked by any party to the present appeal. 15 It must, I think, follow that if a plaintiff is in the habit of spending some amount of his money on his own pleasure, eg by attending football matches, or the cinema or opera or anything else, that habit does not result in any deduction being made from the damages he receives on account of his loss of earning capacity. The law must take the attitude that he can spend his money as he likes. It cannot be deducted from his damages, for the simple reason that it is irrelevant to his earning capacity. Again, no party to the present appeal disputed this. 16 How, then, should this be translated into the realm of the "lost years"? First, damages for the lost years should, as a matter of consistency, be treated as damages for lost earning capacity. On principle this must be so, and even learned senior counsel for the appellant did not contend to the contrary. If that be so, one should have thought moneys used for personal pleasure ought not be deducted; again, because they have no relevance to earning capacity. On the other hand, only moneys which would have to be expended to utilise earning capacity (eg travel, clothing, food, rent) should be deducted from wages which would otherwise have been earned. But learned senior counsel for the appellant did contend to the contrary of this. 17 It is worth considering the anomalous results which would flow from the appellant's argument. How much money a plaintiff would receive in a "lost years" case would depend on whether he was a skinflint or a spendthrift, even although his personal spending habits do not affect his earning capacity. Again, according to the appellant, amounts spent by the plaintiff on his family and amounts spent by him on charity, are not deductible. Why, then, should amounts expended on "pleasure" or "indulgence"? It cannot be mere Calvinism. 18 It is an old doctrine which infects much of the English learning on this topic. What the plaintiff is entitled to, on this theory, is his wages less his expenses; in other words, his savings. This is described by O'Connor LJ in Harris v Empress Motors Ltd [1984] 1 WLR 212 at 217Harris v Empress Motors Ltd [1984] 1 WLR 212 at 217 as the "savings only" approach. Other English judges have described it as the "ultimate residue" or the "nett wage". The rationale of this approach is that it is only the "savings" which will form part of the deceased's estate, it is all the deceased could dispose of, it is all his beneficiaries can expect to lay their hands on. In other words, this approach concentrates on not the plaintiff's probable loss but his beneficiaries' probable gain. 19 I shall now examine some of the authorities relevant to this question. They are surprisingly few, and rarely deal with the question now in issue, viz should a deduction be made for expenditure on pleasure. Skelton v Collins (1965) 115 CLR 94Skelton v Collins (1965) 115 CLR 94 is the earliest of any importance. It establishes that in Australia a plaintiff may recover damages for loss of earning capacity in the lost years, despite English authority to the contrary. It says nothing of any further relevance. The next case of note is Sharman v Evans (1976) 138 CLR 563, the ratio of which is that any deduction for "living expenses" in the lost years should be confined to the plaintiff's probable living expenses and should not include the probable living expenses of his dependents. Although the precise point now in issue was not decided in that case, the case is a strong authority against the appellant. It is authority for the proposition that deductions cannot be made for spending on dependents, spending on friends or gifts to charities. It is, therefore, authority against a "savings only" approach. Gibbs J and Stephen J would allow a deduction for "expenditure on the plaintiff's own maintenance" (p582), without defining what those words mean. Murphy J was in no doubt what the principle was. He said: "In the context of this case, the question of loss of earning capacity because of premature death is a minor aspect. The approach in Oliver v Ashman [1962] QB 210 is not the law in New South Wales (see Skelton v Collins (1966) 115 CLR 94). If a reasonable application of the principle of restitution is to deduct from assessment of lost earning capacity what would have been the bare amount necessary to enable her to use the earning is irrelevant. Obviously, one has to be alive to use earning or other economic capacity, but the expenses of being alive are properly regarded as private expenses, not to be set off as a deductible expense against income." 20 I can see nothing in any of the other judgments which can be construed as a disagreement with what Murphy J says. 21 Pickett v British Rail Engineering Limited [1980] AC 136Pickett v British Rail Engineering Limited [1980] AC 136 was a decision of the House of Lords which, like Skelton v Collins, held that a plaintiff was entitled to damages for loss of earning capacity during the "lost years". It is an unsatisfactory decision because whilst it affirms loss of capacity as the essence of damages, to some extent it measures them on a "savings basis". 22 In Gammell v Wilson [1982] AC 27Gammell v Wilson [1982] AC 27 Lord Diplock said: "Here was an obvious injustice which this House remedied by overruling Oliver v Ashman [1962] 2 QB 210 and holding that a living plaintiff could recover damages for loss of earnings during the lost years; but that in assessing the measure of such damages there should be deducted from the total earnings the amount that he would have spent out of those earnings upon his own living expenses and pleasures since these would represent an expense that would be saved in consequence of death." 23 None of their other Lordships pronounced to similar effect, Lord Diplock's single-sentence dictum is certainly supportive of the appellant's argument, but it would be a rash man who would erect a theory on such a slender basis. 24 In Fitch v Hyde-Cates [1980] 2 NSWLR 757Fitch v Hyde Cates [1980] 2 NSWLR 757, a decision of this Court, Reynolds JA (with whom Glass JA agreed) enunciated the law on this issue quite clearly. Two passages in particular are worth quoting. One is - "This approach involves that, in one or both proceedings, the tortfeasor can be called upon to pay the present value of the earnings of the deceased during the lost years, reduced only by the value of the maintenance of the deceased, but can be required to pay no more. This seems to me to accord with the concept that the earning capacity of the deceased is a capital asset which if tortiously destroyed is properly the subject of full compensation and an asset which can be bequeathed or devoted in part for the benefit of family. In the eye of the law, as I understand it, the whole loss is one for which the tortfeasor ought to be accountable to the appropriate claimant." 25 The other is: "The measure of the damages is not what the deceased would have "preserved", but the value of his lost capacity to earn computed over the years he probably would have worked, but diminished by the costs of maintaining himself…the problem is to ascertain what his net earnings would have been, and to deduct from that sum the estimated costs of his maintenance, and not to deduct all he spent for whatever purpose. He had no dependents, and he was free to do what he wished with whatever was left over after he had fed, clothed and housed himself, being those moneys he needed to expend to earn his livelihood, and it is the balance which is the measure of his loss and not what he saved." 26 As learned senior counsel for the appellant conceded, this decision is squarely against him. It was upheld on appeal to the High Court. 27 The decision of this Court in Commonwealth of Australia v McLean is likewise squarely against the appellant. 28 It follows that both on principle and on the authorities the first question must be decided against the appellant. 29 The second question should also, as I have said, be decided adversely to the appellant. The argument on this question centred on the correctness of the decision of this Court in EM Baldwin & Son Pty Limited; Jsekarb v Plane. The leading judgment in that case was given by Fitzgerald JA, with whom unfortunately Beazley JA concurred. On the issue of relevance to the present case, viz apportionment, I dissented. Without, I hope, being obdurate, I do not repent of my dissent. 30 That was another mesothelioma case. There were two defendants, each of whom supplied the asbestos fibre. One of the defendants, Jsekarb Pty Ltd, supplied material which was much more innocuous than that supplied by the other defendant, E M Baldwin & Sons Pty Ltd. Almost the whole of the case at first instance, and most of the appeal, was taken up by a contention made on behalf of Jsekarb Pty Ltd , that it could not have caused the disease. This contention was rejected by the trial judge, whose decision in that regard was affirmed unanimously on appeal. In coming to that conclusion, much reliance was placed on the evidence of a Professor Henderson, who testified that there was no way one could say that Baldwin's material was the sole cause of the disease. That was the only importance of his evidence. It is important to stress this, because during the hearing of the instant case, it was several times suggested both by counsel and by members of the Bench, that the absence of evidence from the equivalents of Professor Henderson was a point of distinction between Plane's case and the present case. It was not. It was the evidence which led his Honour in Plane's case to decide that both defendants were liable to the plaintiff. In the present case Judge Curtis got to that position without the help of any evidence. 31 In Plane's case Professor Henderson's evidence had nothing to do with the question of contribution between the defendants, and the absence of his equivalent in the present case likewise has nothing to do with the question of apportionment. 32 In Plane's case the trial Judge, having accepted Professor Henderson's evidence as determinative of the liability of each of the defendants to the plaintiff, proceeded to examine the question of contribution between the defendants, ultimately deciding that Baldwin should bear 95 per cent of the verdict and Jsekarb 5 per cent. In reaching this conclusion his Honour was moved by a number of circumstances, principal amongst which were (a) that Baldwin's material was highly noxious, whereas Jsekarb's was as close to being innocuous as such material can be, and (b) the duration of Mr Plane's exposure to Baldwin's material was nearly 40 years, whereas the duration of this exposure to Jsekarb's material was only 10-15 years. It was this finding which the majority on appeal upset, and I still feel unable to see how they were justified in doing so. 33 Their reason for doing so is stated in two paragraphs of the judgment of Fitzgerald JA, which are as follows: "In my opinion, the evidence provides no rational basis for the division of causation between the earlier and later periods of Mr Plane's employment by Baldwin, especially when regard is paid to the complex pathogenesis of mesothelioma explained by Professor Henderson. Axiomatically, causation therefore cannot be proportionally allocated between his different work activities or the different amphibole asbestos fibres to which he was exposed. In these circumstances, I consider it impossible to establish that any apportionment is 'just and equitable' other than an equal apportionment of responsibility for Mr Plane's damage between Baldwin and Jsekarb." 34 There is scarcely any doubt what his Honour meant: any case where the defendants are equally liable to the plaintiff prevents any apportionment between the defendants other than a fifty/fifty apportionment. As Mr Gee QC, learned senior counsel for the appellants, conceded in argument, in answer to a question from the Chief Justice, it is a result which must flow in all such cases (of which there are many). It must follow that Fitzgerald JA was laying down a rule of law. It was this rule of law, it was submitted, that prevented Judge Curtis from making a 25 per cent/75 per cent apportionment in the present case. 35 But this is to misconstrue the words of s5 (2) of the Law Reform (Miscellaneous Provisions Act) 1946, which is in the following terms: "In any proceeding 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." 36 Reference was made to a statement concerning the sub-section made by Clarke JA in Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 1995): "The making of an apportionment (involves) a comparison of culpability and of the acts of the parties causing damage. To put it another way, the Court is concerned with considering relative blame worthiness and the relevant causal potency of the negligence of each party." 37 I am unable to think Clarke JA was intending to state that there were two distinct limbs or tests to the operation of the sub-section, or to deny the High Court injunction that all relevant circumstances are to be taken into consideration when adjudicating upon a claim for contribution. But even if he did, an enquiry into "relevant causal potency" is not concluded by a finding that each defendant is equally liable to the plaintiff. Different defendants may still have exposed the plaintiff to increased risks of exposure, and that is what happened both in Plane's case and in the present case. The apportionment chosen by the trial judge in each case simply reflects that differentiation of risk. 38 In all other respects I agree with the judgement of Sheller JA, which I have had the privilege of reading. 39 SHELLER JA: Introduction In 1996 the plaintiff, the late Guy Edward Roberts, whose executor is the first respondent in the appeal, contracted mesothelioma from exposure to asbestos fibres released from building products manufactured by the defendants. This appeal from a decision in favour of the plaintiff raises questions about the way in which damages for the plaintiff's loss of earning capacity should be assessed for the period by which his life expectancy had been reduced by the disease ("the lost years") and how the amount of contribution recoverable from each of the defendants should be apportioned under s5 (2) of the Law Reform (Miscellaneous Provisions) Act 1946 ("the 1946 Law Reform Act"). A further question raised by the plaintiff's cross-appeal was settled between the parties. 40 The plaintiff, a plumber by trade, was exposed to asbestos while working for Eric Cornwall, who conducted his business in the Bowral area of New South Wales. The plaintiff was engaged in building cottages in which asbestos cement products were used extensively. These products were manufactured by the defendants, James Hardie & Coy Pty Limited, the appellant in this appeal, and Seltsam Pty Limited, the second respondent, which by cross-appeal also challenged the award of damages in respect of economic loss during the lost years on the same basis as the appellant. His Honour Judge Curtis, who heard the proceedings in the Dust Diseases Tribunal of New South Wales, concluded that 75 per cent of the asbestos cement products used by the plaintiff and "causative of his injuries" were supplied by the appellant and 25 per cent were supplied by Wunderlich, whose products were manufactured by the second respondent. 41 The plaintiff began these proceedings in the Dust Diseases Tribunal in 1997. Judge Curtis delivered his judgment on 20 August 1997. The plaintiff died on 3 September 1997. The defendants did not deny they owed a duty of care to the plaintiff and that their breach of that duty caused the plaintiff to contract mesothelioma. Judge Curtis recorded that neither defendant called evidence on liability or sought to be heard on that issue. His Honour apportioned responsibility for the plaintiff's damages 75 per cent to the appellant and 25 per cent to the second respondent. After setting out the material part of s 5(2) of the 1946 Law Reform Act, he said: "The phrase 'responsibility for the damage' requires that I compare the parties relative culpability in causing the damage. I adopt the words of Clarke JA in Macquarie Pathology Service Pty Limited v Sullivan Court of Appeal unreported 28 March 1995: 'The making of an apportionment (involves) a comparison of culpability and of the acts of the parties causing damage. To put it another way, the court is concerned with considering relative blameworthiness and the relevant causal potency of the negligence of each party.' In the present case I regard the defendants as equally blameworthy as each being a large industrial corporation actively competed for market shares producing and distributing a product which they ought to have known was associated with the risk of grave injury. In relation to the causal potency it is probable that while the plaintiff's illness is related to his total fibre burden that 75 per cent of that burden was occasioned to him by the products of James Hardie and 25 per cent by the products of Seltsam." 42 Apart from the trial Judge's refusal to award damages for future personal care, the subject of the plaintiff's cross-appeal settled between the parties, the only part of his Honour's assessment of damages challenged, in the appellant's grounds of appeal, related to the amount allowed for loss of earning capacity after death and, in particular, what sum should have been deducted from the income during the lost years to reflect the plaintiff's costs of maintenance. 43 In Commonwealth of Australia v McLean (partly reported in 41 NSWLR at 389 and partly unreported) 31 December 1996, this Court said that it was well established that, in awarding damages for the loss of earning capacity during the lost years, it was necessary to deduct some expenditures which no longer had to be made because the plaintiff would be dead, but only to the extent of the plaintiff's ordinary living expenses which did not include his expenditure on personal pleasures such as entertainment. Expenses such as rent, food, clothes, fares, gas, electricity and other accommodation expenses were items to be deducted, being expenditure necessary for the plaintiff to exploit his earning capacity. 44 Judge Curtis found that while in the years before his illness the plaintiff actually spent $484 per week, only $200 of that sum reflected the amount necessary to exploit his earning capacity. "All moneys in excess of that sum were spent on entertainment and, for want of a better word, 'indulgence' in desiring a standard of living commensurate with his hard work." His Honour said that it was possible to categorise as entertainment or pleasure the purpose of money spent in purchasing and maintaining televisions, video cassette recorders, phonograph players, money spent on hiring videos and buying records, the purchase of unnecessary clothes, restaurant meals, a night's entertainment with friends, attendance at football games, taking holidays, feeding one's dog and providing gifts to close family members. His Honour said: "A distinguishing characteristic of such expenditure is that it is not necessary to maintenance. A distinguishing feature of the cost of maintenance expressed in the terms of the plaintiff's submissions is that it is a constant sum independent of the income of any particular plaintiff." 45 Judge Curtis made the additional finding that other than the amount paid by way of reduction in the capital of his mortgage, say $100 a week, the balance of the plaintiff's income was spent in a manner appropriate to the maintenance of his social circumstances, save for $50 a week which his Honour found to be money spent on private entertainment in respect of his video and audio equipment and the feeding of his dog. 46 His Honour said: "Probable future earnings I have found to be $460 per week net. The bare amount of expenditure necessary for the plaintiff to maintain his earnings I have found to be $200 per week. Reasonable expenditure on maintenance excluding private entertainment and capital payments of his mortgage I find to be $334 a week (1996 average weekly earnings of $484 less capital payments on mortgage $100 and entertainment expenses $50). If the plaintiff's submissions are correct future economic loss is the present value of $260 per week ($460 probable weekly earnings less $200 maintenance) from 1 April 1998 to 15 June 2015, the date of probable retirement at age 65. This is $182,910 on 3 per cent tables discounted by 15 per cent to $155,473. If maintenance is a reasonable sum, including pleasure and not restricted to the bare minimum, but excluding entertainment the loss is the present value of $126 per week ($460 minus $334), which is $88,641 on the 3 per cent tables discounted to $75,345. If the moneys spent on private entertainment are moneys reasonably expended in maintenance the loss is the present value of mortgage payments of $100 which is $70,350 on the 3 per cent of tables discounted to $59,797." 47 The way in which each of the three amounts, namely $155,473, $75,345 and $59,797, was calculated is not in issue. The question was which of those three amounts represented the amount of damages recoverable for the plaintiff's loss of earning capacity during the period after his death. The plaintiff submitted that the first calculation did, the defendants the third. 48 After examining the authorities in Australia and in England, the trial Judge said: "I am bound however by the judgments of the Court of Appeal in Fitch v Hyde-Cates [1980] 2 NSWLR 757 and Commonwealth of Australia v McLean to accept the submissions of the plaintiff in the present case. Upon my findings of fact the plaintiff is entitled to a present award of $155,473 in respect of the loss of his legitimate expectation that his estate will not be reduced by the defendants torts. This provides to the plaintiff for the purpose of testamentary disposition a windfall of nearly $100,000." 49 The reference in this last sentence to "testamentary disposition" and "windfall" is redolent of judicial discussion and resulting differences about the damages recoverable for lost earning capacity during the lost years, in cases involving claims by the living victim of a tort and claims by the victim's estate or dependants after the victim's death. Of the three amounts that he had calculated, Judge Curtis chose the amount based on probable future earnings less only the amount of expenditure necessary for the plaintiff to exercise his earning capacity. This choice accorded with what the Court said in McLean. Judge Curtis rightly considered himself bound by this decision. In a joint judgment, with which Santow AJA agreed, Handley and Beazley JJA did not review the authorities in detail, no doubt because they considered they were doing no more than apply principle established by the High Court in Fitch v Hyde-Cates (1982) 150 CLR 482. 50 In Harris v Empress Motors Limited [1984] 1 WLR 212 at 217Harris v Empress Motors Limited [1984] 1 WLR 212 at 217 O'Connor LJ, with whom the other members of the English Court of Appeal agreed, described other solutions to the assessment of damages for economic loss after death. They were the "available surplus" solution, being what remained after deducting from the net earnings the cost of maintaining the deceased victim in his station in life, and the "savings only" solution, whereunder "living expenses" was given a very wide meaning, namely all expenditure except savings, though savings were to include expenditure generating wealth such as mortgage repayments. The "savings only" solution was effectively the third calculation undertaken by Judge Curtis. In that case at 228 the English Court of Appeal adopted the middle course, and said that the sum to be deducted as living expenses was the proportion of the victim's net earnings that he spent to maintain himself at the standard of life appropriate to his case. Any sums expended to maintain or benefit others did not form part of the victim's living expenses and were not to be deducted from the net earnings. 51 The appellant and cross-appellant, Seltsam, submitted that the deduction from the plaintiff's probable future earnings should have included amounts which would have been spent on pleasures and private entertainment, and that McLean's case was wrongly decided and the Court should overrule it. 52 The appellant's other ground of appeal against Seltsam was that Judge Curtis' apportionment of responsibility between the defendants was erroneously based on a pathogenesis of mesothelioma not established by any expert medical evidence. The appellant submitted the trial Judge had failed to give weight to the equal blameworthiness of the parties in making the apportionment, and that in accordance with the decision of this Court in E M Baldwin & Son Pty Ltd v Plane (1999) Aust Torts Rep 81-499 it was impossible to establish as to causal potency that any apportionment, other than an equal apportionment, was just and equitable. Loss of Earning Capacity 53 In Teubner v Humble (1963) 108 CLR 491 at 505-6Teubner v Humble (1963) 108 CLR 491 at 505-6 Windeyer J wrote of the ways in which a personal injury could give rise to damage. First it might destroy or diminish, permanently or for a time, an existing capacity, mental or physical. In that first category there was usually one element that was, up to a point, calculable by conventional means, namely the economic loss that a permanent or temporary destruction or diminution of earning capacity caused. His Honour said: "I think that the damage arises really from the destruction of a faculty or skill, and that this is the best way in which to consider its assessment. The sum that might have been earned by the exercise of a faculty or skill then becomes the measure of the economic value to the individual of the faculty or skill in respect of which he has been damaged." 54 In Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4 Deane, Dawson, Toohey and Gaudron JJ said that in an action in negligence in Australia "an injured plaintiff recovers damages for loss or impairment of earning capacity as distinct from the direct recovery of past or future lost earnings" and referred to Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 at 658Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 at 658 and O'Brien v McKean (1968) 118 CLR 540 at 546O'Brien v McKean (1968) 118 CLR 540 at 546. The view that, where personal injury affects the receipt of earnings from employment or self-employment, damages are awarded for the destruction or diminution in earning capacity is now well established. 55 Where the victim of a tort who, in consequence, is killed or suffers loss of life expectancy, has a claim for damages for loss of earning capacity, the method of calculation for the lost years has been considered in the following situations: 1. where the victim brings an action and lives until its determination by judgment; 2. where for any reason the victim dies before the action is determined by judgment and the victim's cause of action survives for the benefit of the victim's estate pursuant to s2 of the Law Reform (Miscellaneous Provisions) Act 1944 ("the 1944 Law Reform Act"); and 3. where the victim's death is caused by the tort and the personal representative of the victim's estate brings an action against the person who would have been liable if death had not ensued for the benefit of relatives designated in the Compensation to Relatives Act 1897 (Lord Campbell's Act). 56 The course of authority has been influenced by concern to have consistency and avoid double liability, when both the victim or the victim's estate and the victim's dependants can claim damages for loss of earning capacity for the lost years. 57 Section 2 (5) of the 1944 Law Reform Act provides that the rights conferred under that section for the benefit of the estates of deceased persons "shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Compensation to Relatives Act". Early the courts perceived that, if the victim had died, the defendant might face double liability in respect of lost earning capacity, first to the victim's estate and second to the victim's relatives claiming under Lord Campbell's Act. 58 In England the courts addressed this possibility by refusing to award damages for future earning capacity cut off by death in an action brought or continued by the estate under the equivalent of the 1944 Law Reform Act. In Rose v Ford [1937] AC 826 at 862Rose v Ford [1937] AC 826 at 862 Lord Roche said that the proper place to deal with the deceased's future earning power cut off by death was under Lord Campbell's Act, and that accordingly there was no clashing or overlapping as between the two causes of action and the judgments thereunder. In Fitch v Hyde-Cates [1980] 2 NSWLR 757 in this Court, Glass JA at 773 discussed this and pointed out the unfairness of such an approach in the case of a claim by the estate of a deceased bachelor with no siblings or surviving parents. 59 Another way in which this perceived problem was addressed was to require under this head of damages that the expenditure which the deceased would have incurred, if surviving, in maintaining dependants, as well as him or herself, be taken into account. So in Skelton v Collins (1966) 115 CLR 94 Taylor J said at 114 as to the possibility of duplication of damages that in a claim by the victim's estate: " … the damages would be assessed having regard to the gain, if any, which would have accrued to the deceased from his future probable earnings after taking into account the expenditure which he would have incurred, if he had survived, in maintaining himself and his dependants, if any." 60 These limitations on the damages recoverable for loss of earning capacity during the lost years were seen as confining the damages to compensation and no more, and avoiding a windfall for the deceased victim's estate at the defendant's expense. 61 In Oliver v Ashman [1962] 2 QB 210Oliver v Ashman [1962] 2 QB 210 the English Court of Appeal held that lost wages during the lost years were only an ingredient of loss of expectation of life, and not to be valued as an item on their own; see generally at 230-1, 238 and 244. In reaching this conclusion the court relied upon what it understood to have been the authority of the House of Lords, notably in Benham v Gambling [1941] AC 157Benham v Gambling [1941] AC 157 where at 167 Viscount Simon said: "Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects." 62 Here was an example of the English tendency to speak of future loss in terms of lost earnings rather than the present impairment of a capacity to earn in the future, referred to in Fleming, The Law of Torts, 9th ed at 261. That learned author regarded the distinction as of little practical consequence. However, the proper assessment of damages for the lost years requires that this distinction be borne in mind. 63 In Skelton v Collins the High Court decided not to follow Oliver v Ashman. At 121 Taylor J, with whom on this point Kitto, Menzies, Windeyer and Owen JJ agreed, said: "I need scarcely mention the anomaly that would arise if Oliver v Ashman is taken to have been correctly decided. An incapacitated plaintiff whose life expectation has not been diminished would be entitled to the full measure of the economic loss arising from his lost or diminished capacity. But an incapacitated plaintiff whose life expectancy has been diminished would not. Yet the recovery by him of damages that does not take into account his full economic loss will operate to prevent his dependants, in the event of his death, from recovering damages under the Fatal Accidents Act . However if he dies without having sued for damages his dependants will be entitled to recover damages assessed upon a consideration of what his economic prospects would have been had he survived for the full period of his pre-accident expectancy. For the reasons I have given I find myself forced to the conclusion that the recognition which has been accorded to the right of an injured plaintiff to recover damages for 'the loss of a measure of prospective happiness' in no way operates to displace or destroy his right to recover damages for economic loss resulting from his diminished earning capacity. Accordingly in my view damages in the present case should have been assessed under this head having the expectancy of life remaining to him after the receipt of his injuries. Any assessment should, of course, take into account the vicissitudes and uncertainties of life and also the fact that if the plaintiff had survived for the full period it would have been necessary for him to maintain himself out of his earnings and, no doubt, his expenditure on his own maintenance would have increased as his earnings increased." 64 Living expenses saved were taken into account because they were a cost, no longer incurred, of the capacity to earn. It will be recalled that his Honour had earlier referred to expenditure in maintaining dependants as well as the deceased victim as a matter to be taken into account in avoiding double liability. The relationship between these two portions of his Honour's judgment was explained in Sharman v Evans (1977) 138 CLR 563. 65 In Pickett v British Rail Engineering Limited [1980] AC 136Pickett v British Rail Engineering Limited [1980] AC 136, a decision delivered on 2 November 1978, the House of Lords overruled Oliver v Ashman. 66 Sharman v Evans was decided some little time earlier. In that case the plaintiff, then aged twenty, was injured in a motor vehicle accident as the result of the defendant's negligence. She suffered severe injuries, and became quadriplegic and epileptic, lost the power of speech and suffered severe respiratory impairment, but remained aware of her plight. She was expected to live a further 20 to 30 years. Mr Jackson QC, who appeared for the first respondent, the plaintiff's executor, directed attention to the consideration by Gibbs and Stephen JJ at 575 and following of the question of compensation for lost earning capacity and in particular the deductions which should be made in assessing that compensation. 67 First their Honours considered compensation for loss of earning capacity apart from any claim for the lost years, and said at 577: "Where, as here, a plaintiff suffers a total loss of earning capacity he will not normally continue to incur all of the outgoings necessary for the realization of that capacity which would have been incurred had his capacity been unaffected; items such as the cost of clothing suitable to this particular employment and of transportation to and from work provide examples, no doubt there are others. Compensation for loss of earning capacity is paid only because it is or may be productive of financial loss ( Graham v Baker (1961) 106 CLR 340 at 347) and to compensate for total loss of earning capacity without making allowance for the cessation of these outgoings is to compensate for a gross loss when it is only the net loss that is in fact suffered. On the other hand there are other types of saved expenditure upon which a defendant cannot rely in diminution of damages. It is now well established that no reduction is to be made, when awarding damages for loss of earning capacity, for the cost of maintaining oneself and one's dependants unless an element of double compensation would otherwise intrude, as in the case of hospitalization as a non-fee paying patient or where the cost of future hospital expenses is also awarded and necessarily includes, as in the present case, the patient's board and lodging ….." 68 In that context at 578 Gibbs and Stephen JJ went on to reject an argument, which had found favour in some English cases, that damages for lost earning capacity could be rejected because the plaintiff was "saved expenditure on pleasurable pursuits which he or she might formerly have enjoyed but which the consequence of the injuries suffered now denied." At 579 their Honours said: "It follows that, still disregarding 'lost years', it will be appropriate in any assessment of the plaintiffs damages for lost earning capacity to reduce those damages only in respect of the cost of board and lodging actually provided for in the award of damages for future hospital expenses and in respect of those 'saved' outgoings associated with the exercise of earning capacity, that is, fares and the like." 69 The importance of these dicta is that they show that in any assessment of damages for lost earning capacity account must be taken of the costs of exploiting that capacity and a deduction must be made to allow for such of those costs as are saved. 70 Turning to the lost years, their Honours said at 579: "As to 'lost years', the plaintiff is to be compensated in respect of lost earning capacity during those years by which her life expectancy has been shortened, at least to the extent that they are years when she would otherwise have been earning income ( Skelton v Collins , per Taylor J at 121). But, unlike the thirty years of her actual post-accident life expectancy, no outgoings whatever will be involved in respect of that period since it is assumed that the plaintiff will then be dead. What adjustments are, then, to be made on that account in assessing damages for loss of earning capacity in respect of those lost years? This is not a question giving rise to considerations of double compensation; the only element involving any possibility of double compensation, the component of board and lodging contained in the award of future hospital expenses, will have ceased to operate by the time that the 'lost years' are reached. It is rather a question of confining an award of damages to no more than compensation, ensuring that the plaintiff is merely compensated for loss and is not positively enriched, at the defendant's expense, by the damages awarded. It is well established in Australia that there should be taken into account in reduction of damages for the lost earning capacity of 'lost years' at least the amount that the plaintiff would have expended on his own maintenance during those lost years ….." The enrichment would flow from a failure to account for the saving in the cost of exploiting the earning capacity, now lost. 71 Gibbs and Stephen JJ then analysed what had been said by Taylor J in Skelton v Collins, in particular the passage referring to the maintenance of the victim's dependants, and said at 580-81: "This passage has been understood in Gannon v Gray [1973] QdR 411 and in Jackson v Stothard [1973] 1 NSWLR 292, and no doubt in numerous unreported cases, as requiring that not merely a plaintiff's own expenses of maintenance but also whatever he might have spent on the maintenance of his dependants should, even in the ordinary case of a claim for lost earning capacity of lost years made by a plaintiff during his lifetime, go in reduction of damages. In consequence it is only the loss of surplus income, whether in the form of cash savings or of acquired assets, which might have been derived during lost years that is to be compensated for ……" Their Honours regarded this as ill according with any rational principle of compensation. After referring to what Sheppard J had said in Jackson v Stothard [1973] 1 NSWLR 292 at 298 about the oddity that damages up to the date of death are given without any deduction whereas damages thereafter are given after the deduction, not only of moneys which would have been spent by the deceased in the maintenance of him or herself, but of moneys which would have been spent in the maintenance of dependants, Gibbs and Stephen JJ said at 281: "We share the difficulty felt by Sheppard J and have concluded that, properly regarded, Skelton v Collins does not require that anything, other than the cost of a plaintiff's own maintenance, should go in reduction of damages for lost earning capacity for 'lost years'." 72 Their Honours suggested an alternative explanation for what Taylor J had said about the maintenance of the victim's dependants, that it did not apply to an injured plaintiff suffering loss of life expectancy and that expenditure on dependants was taken into account to ensure that the defendant was not held twice liable to compensate for lost earning capacity, once at the suit of the victim's estate and again at the suit of the victim's dependants. At 582 their Honours said that they would leave to another day the whole question of actions brought not by an injured plaintiff suffering loss of life expectancy, but by a personal representative for the benefit of the estate of one who had suffered injury and loss of life expectancy and later died before proceedings were instituted, and of the possible risk to a defendant of double liability should an action for the benefit of the estate be followed by an action under Lord Campbell's Act. 73 At 582-3 Gibbs and Stephen JJ drew together the reasons for taking account, and the extent to which account should be taken, of the victim's living expenses as a cost of maintaining the capacity to earn and said: "In these circumstances it would, we think, be wrong to treat Skelton v Collins as any authority for the proposition that only surplus income, in effect savings, are to be taken into account in assessing economic loss in the 'lost years'. It is well enough to take into account in reduction of damages the likely expenditure on the plaintiff's own maintenance and this for the reason stated by Sheppard J in Jackson v Stothard . As Jolowicz observed in a note in the Cambridge Law Journal (1960), at 163, 'a dead man has no personal expenses', hence there should be a deduction of 'the plaintiff's personal living expenses' - and see J G Fleming's article in California Law Review, vol 50 (1962), 598, esp at 605 . However no further deduction is, we think, called for in order to ensure that no more than proper compensation is made to the plaintiff. The making of this one deduction will accord recognition to the curious feature of this head of damages; that the plaintiff receives compensation for lost earning capacity in respect of a period which he will not live to see and during which he will have no expenses to be defrayed out of the fruits of the exercise of that capacity. Because in the ordinary case a plaintiff must maintain himself in the future out of his damages, the cost of doing so is not to go in reduction of an award for lost earning capacity during his remaining years of life; the converse of that proposition may well be, in the special case of lost earning capacity in 'lost years', that because those years can involve him in no cost of maintenance the cost thus avoided must go in reduction of damages. Like reasoning does not apply to the cost of maintaining others. It is for a quite different reason that, in the ordinary case, that cost does not go in reduction of damages, that reason being that the courts do not concern themselves with the manner in which the plaintiff expends his income or damages." 74 Jacobs J at 590 agreed with the principles stated in the joint judgment of Gibbs and Stephen JJ "in respect of loss of earning capacity, both during the period of life expectancy and the so-called 'lost years'." Murphy J said at 599: " Lost years . In the context of this case, the question of loss of earning capacity because of premature death is a minor aspect. The approach in Oliver v Ashman is not the law in New South Wales (see Skelton v Collins ). If a reasonable application of the principle of restitution is to deduct from assessment of lost earning capacity what would have been maintenance of the respondent during the lost years, it should be the bare amount necessary to enable her to use the earning capacity. Her spending for enjoyment or maintenance of others is irrelevant. Obviously, one has to be alive to use earning or other economic capacity, but the expenses of being alive are properly regarded as private expenses, not to be set off as a deductible expense against income." 75 Mr Jackson relied upon these passages to support the correctness of Judge Curtis' conclusion. They definitively excluded expenditure on the maintenance of dependants, at least where the plaintiff was the living victim, and emphasis was placed on the relationship between earning capacity and the cost of maintenance no longer incurred during the lost years for which damages were assessed to compensate for the lost earning capacity. Also emphasised was the separate principle that the courts do not concern themselves with the manner in which a plaintiff expends his or her income or damages. 76 Perhaps it remained unclear what expenses were comprehended by maintenance. At 581 in Sharman v Evans a contrast was drawn between "a plaintiff's own expenses of maintenance" and "whatever he might have spent on the maintenance of his dependants". "Personal expenses" were referred to. It was said that the plaintiff would have "no expenses" to be defrayed out of the fruits of the exercise of the capacity to earn. The joint judgment may not point unerringly to the conclusion Judge Curtis arrived at if a distinction is to be drawn between the bare amount of expenditure necessary for the plaintiff to maintain his earnings and, for example, "the cost of maintaining the deceased in his station in life", to adapt the phrase used by O'Connor LJ in Harris at 217. On the other hand, the reasoning in the joint judgment rules out "pleasure", "private entertainment" and "indulgence". The judgment of Murphy J is plain that they are to be ruled out, and his Honour may have ruled out more. 77 Fitch v Hyde-Cates involved a claim by a mother as the administrator of the estate of her son who was killed by the negligent driving of the defendant. It raised more starkly than had Sharman v Evans concern for a defendant's double liability. 78 The first matter argued in the Court of Appeal related to the question of whether damages for the destruction of the earning capacity of the deceased for the lost years were denied by s2(2)(c) and (d) of the 1944 Law Reform Act. Reynolds and Glass JJA concluded that the legislative scheme was that, in respect of causes of action which survived, including causes of action for damages for negligence, all such damages as would have been recoverable by the deceased, if he had lived, were recoverable for the benefit of his estate, unless the statute precluded that recovery. Their Honours held that s2(2)(c) and (d) did not preclude recovery of damages for destruction of the deceased's earning capacity over what would have been the span of his working life if he had not suffered the injury resulting in his death; 764-5. Mahoney JA dissented. 79 A second question was how, if such damages were recoverable, they should be computed. Did principle or authority require that in the case of an action under the "survival" legislation, a different method of calculation of damages for economic loss suffered during the lost years was required from that in the case of the same claim made by a living plaintiff? 80 At 767 Reynolds JA observed that the Court had been invited to make a further deduction in the case of a deceased victim of a tort largely for reason of the existence of Lord Campbell's Act and the spectre of double liability. Leaving aside the problem of double liability if there was a claim under Lord Campbell's Act, which did not arise in that case, his Honour said at 769 that he did not think it was the correct approach to consider what reasonably might have been preserved out of the deceased's earnings over his anticipated working life. His Honour said: "The measure of the damages is not what the deceased would have 'preserved', but the value of his lost capacity to earn computed over the years he probably would have worked, but diminished by the costs of maintaining himself. …… At the time of the judgment the deceased had been dead for three and a half years. If the matter is approached by dealing with that period first, the problem is to ascertain what his net earnings would have been, and to deduct from that sum the estimated costs of his maintenance, and not to deduct all he spent for whatever purpose. He had no dependants, and he was free to do what he wished with whatever was left over after he had fed, clothed and housed himself, being those moneys he needed to expend to earn his livelihood, and it is the balance which is the measure of his loss and not what he saved." That passage explained the significance to proper compensation of taking account of maintenance and of moneys the victim would have "needed to expend to earn his livelihood". At 775-6 Glass JA, referring to Skelton and Pickett , spoke of "the cost of maintaining the deceased during the lost years". 81 With effect on and after 26 April 1982, after the decision in the Court of Appeal in Fitch v Hyde-Cates, and, as it happened, the decision on appeal in the High Court, the 1944 Law Reform Act was amended to provide that the damages recoverable for the benefit of the estate of the deceased should not include (s2 (2) (a)): "(ii) any damages for the loss of the capacity of the person to earn, or the for the loss of future probable earnings of the person, during such time after the person's death as the person would have survived but for the act or omission which gives rise to the cause of action." 82 In Fitch v Hyde-Cates in the High Court, as in the Court of Appeal, attention was directed to the effect of s2 (2) (c) and (d) of the 1944 Law Reform Act. The majority decision of the Court of Appeal on that point was upheld. However, counsel for the appellant was recorded at 484 as having submitted that in quantifying damages the Court must take into account what the deceased might have spent on himself throughout his lifetime and what else might have had a call upon his money, this being not confined to essential living expenses but money spent for the enjoyment of life. 83 The principal judgment was given by Mason J, with whom the other members of the Court agreed. At 495 and following his Honour dealt with double liability. He said that the possibility of duplication of liability remained in two areas. The first was where there was a claim by the estate of the victim and a claim by dependants, where in the particular case setting off might provide no answer. The second was where the beneficiaries of the estate of the victim were not dependants so that there could be no set off. Even so, at 497 Mason J said that there was no justification for taking into account the probable living expenses of dependants in an action under the 1944 Law Reform Act. This was because: "The chose in action of the deceased and the estate are one and the same; it is the deceased's chose in action that is vested in the estate. The loss and damage sustained by the deceased become the loss and damage for which the estate is entitled to recover compensation. For this reason it is not permissible to apply a different measure of damages according to whether the plaintiff is the living victim or his estate." His Honour referred to the rationale for a measure of damages which did not take into account the probable living expenses of dependants. "The suggested rationale underlying Taylor J's approach to the question is that the deceased's net loss is what he would have left after making provision not only for his own living expenses, but also for the living expenses of his dependants. It is only that residue which he would have for himself, to spend, distribute or save as he wishes. The consequence of this reasoning, assuming it to be correct, is that the damages should be assessed on this footing in an action by the deceased as well as in an action by his estate. However, there are solid grounds for thinking that the true measure of the deceased's loss is not the amount which he would have in his hands to spend, distribute or save, after defraying his probable living expenses and those of his dependants, but the amount of his future earnings less his probable living expenses to enable him to earn future wages. As this Court has said on many occasions in the past, the deceased is entitled to compensation for his loss of earning capacity, not loss of wages. This loss of earning capacity is reflected in a loss of earning capacity or perhaps a reduced earning capacity in the years of life that remain and a loss of earning capacity in the years of which the victim has been deprived. Once the relevant loss is identified as a loss of earning capacity there is a difficulty in saying that there should be deducted future expenditure on the living expenses of the deceased's dependants as well as future expenditure on his own living expenses which should be regarded as an essential condition of the exercise of his earning capacity." 84 In my opinion, Mason J clearly equated the living expenses which were deductible with those which would have enabled the deceased to earn future wages or which should be regarded as an essential condition of the exercise of the deceased's earning capacity. No doubt the living expenses to enable a company executive to earn a future salary would be different from those to enable a rural worker to earn future wages. In that sense the standard of life which the job and career prospects would suggest the deceased was reasonably likely to achieve must be taken into account. 85 For present purposes what is important is that, consistently with what was said by the High Court in Fitch v Hyde-Cates, no deduction is required for items of expenditure which Judge Curtis described as entertainment or indulgence in pursuing a standard of living commensurate with the plaintiff's hard work. A distinguishing characteristic of such expenditure is that it is not necessary to maintenance. 86 His Honour's concluding reference to provision to the plaintiff for the purpose of testamentary disposition of a windfall, with the greatest respect, bespeaks a misunderstanding of the nature of this category of loss, and a harking back to the overlapping liability that existed before the 1982 amendment of the 1944 Law Reform Act where both the estate and dependants could claim independently for damages including damages for loss of earning capacity during the lost years. As Mason J emphasised in Fitch v Hyde-Cates, the deceased is entitled to compensation for his or her loss of earning capacity, not loss of wages, for what Windeyer J in Teubner v Humble called the destruction of a faculty or skill. The damages were not a windfall to the plaintiff, but compensation for destruction of that asset. 87 In arriving at the economic value to the plaintiff of the faculty or skill there must be deducted from probable future earnings the expenditure required to enable the future earnings to be earned. This is so whether the plaintiff's life expectancy is reduced or not (see Sharman v Evans at 577). Even if the life expectancy is not reduced expenditure such as fares and work clothing will be deducted. If the life expectancy is reduced the range of expenditure deducted will be greater and extend to expenditure no longer incurred in maintaining the plaintiff so that his or her earning capacity can be exploited. For that reason living expenses which would have enabled the plaintiff to earn are deducted in a claim for the lost years but not where life expectancy is unaffected. But the deduction goes no further. 88 In my opinion, the appeal and Seltsam's cross-appeal against the quantification of damages for loss of earnings in the lost years fail. Apportionment 89 Section 5 (1) (c) of the 1946 Law Reform Act provides that where damage is suffered by a person as a result of a tort, any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor liable in respect of the same damage. Subsection (2) provides that in any proceedings for contribution the amount of 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". The direction to "have regard to" requires the other tortfeasor's responsibility for the damage to be taken into account and given weight to "as a fundamental element" in making the finding by the Court of what is just and equitable; R v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 at 329R v Hunt Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 at 329. 90 In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492, where contributory negligence had been found, the High Court at 494 said that the making of an apportionment as between a plaintiff and a defendant of their respective shares and the responsibility for the damage involved a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man, and of the relative importance of the acts of the parties in causing the damage. In Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 at 68Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65 at 68 the High Court reaffirmed the principles stated in Podrebersek, including that it is "the whole conduct of each negligent party in relation to the circumstances of the accident which must be subject to comparative examination" (Podrebersek at 493). 91 Section 10 (1) of the Law Reform (Miscellaneous Provisions) Act 1965 provides for a plaintiff who suffers damage partly as the result of his or her own fault to have the damages reduced "to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". There is no reason to think that any different principle applies when considering contribution under s5 (1) (c) of the 1946 Law Reform Act. 92 Judge Curtis applied the dictum of Clarke JA in Macquarie Pathology Service Pty Limited v Sullivan (unreported) Court of Appeal, 28 March 1995. The appellant first submitted that, having found the defendants equally blameworthy and set the causal potency at 75 per cent to the appellant and 25 per cent to the second respondent, the trial Judge ignored equal blameworthiness and simply apportioned the responsibility for the plaintiff's damages 75 per cent to the appellant and 25 per cent to the second respondent. On its face what his Honour did seems entirely sensible. He regarded the parties as equally blameworthy, but regarded the causal potency of the appellant as greater in a proportion of three to one to that of the second respondent. It is not a mathematical exercise, and where the responsibilities were not to be distinguished in one respect but were to be distinguished in another respect I see no reason why the distinguishing respect should not be given full effect. To apportion as Judge Curtis did seems just and equitable. 93 The appellant's second submission was founded on E M Baldwin & Son Pty Ltd v Plane. That case concerned a plaintiff who suffered from mesothelioma from which he subsequently died. He sued his employer and the manufacturer of asbestos brake blocks with which he worked. Liability was apportioned in the Dust Diseases Tribunal 95 per cent against the employer and 5 per cent against the manufacturer. 94 In his dissenting judgment Meagher JA observed at 65,622 that the principal reason for the apportionment was a finding that the employer had for many decades exposed the plaintiff to a more deadly form of asbestos while the manufacturer had at worst exposed him to a milder form for a period of no more than ten to fifteen years. Meagher JA considered that that reason alone would justify the apportionment. 95 Fitzgerald AJA, as his Honour then was, with whom Beazley JA agreed, was satisfied that exposure to asbestos fibres for which each of the defendants was responsible materially caused the plaintiff's condition and were each legally a cause of his condition (at 65,638). When it came to apportionment between the defendants he summarised the contentions as to respective culpabilities, but noted that the extent of exposure in the respective periods contributed to the plaintiff's damage was important. After referring to evidence of Professor Henderson, he said at 65,649-50: "In my opinion, the evidence provides no rational basis for the division of causation between the earlier and later periods of Mr Plane's employment by Baldwin, especially when regard is paid to the complex pathogenesis of mesothelioma explained by Professor Henderson. Axiomatically, causation therefore cannot be proportionally allocated between his different work activities or the different amphibole asbestos fibres to which he was exposed. In these circumstances, I consider it impossible to establish that any apportionment is 'just and equitable' other than an equal apportionment of responsibility for Mr Plane's damage between Baldwin and Jsekarb." 96 Professor Henderson's evidence, which Fitzgerald AJA had earlier said the Tribunal substantially accepted, was that while there was uncertainty concerning the process of development of mesothelioma it was related to the cumulative effect of all asbestos fibre inhaled in the material period which ends about ten years before the first diagnosis of the disease. The Tribunal, his Honour thought, correctly accepted this theory and rejected the manufacturer's fundamental proposition that inhalation of more than one amphibole form of asbestos fibre raised a number of separate, independent, possible causes of mesothelioma and the conclusion for which it contended, namely, that the plaintiff's mesothelioma was probably caused by only one of the other amphiboles which he had probably inhaled. 97 In the present case there was evidence before the Tribunal from Dr James Leigh that for all fibre types there is a dose response relationship between the risk of asbestosis, lung cancer and mesothelioma. The appellant submitted, however, that apportionment must be calculated by reference to causal potency, and in the absence of evidence providing a rational basis for the division of causation between the defendants there could not be apportionment by reference to the extent of risk related to the length of exposure or the potency of exposure. 98 Neither defendant denied liability. No doubt they regarded the case as one in which the evidence, scientific and otherwise, would not have allowed a finding that one defendant rather than the other had caused the plaintiff's illness. What could be proved was that each defendant had negligently exposed the plaintiff to the risk of the disease which the plaintiff contracted. 99 Causation was not here in issue. But if the plaintiff had been required to establish that each defendant caused the injury he would have done so by proving that the defendants had negligently exposed him to the risk of contracting the disease which he did contract. The plaintiff's exposure by a negligent defendant to material risk of injury, in a case such as the present, is a basis upon which the defendant may be found to have caused the injury; Commonwealth v McLean at 408-9 per Handley and Beazley JJA. 100 On the evidence in this case Judge Curtis found that the degree of exposure, and hence the degree of risk, varied between the two defendants. I can see no error in his Honour applying the relevant proportions to determine what was a just and equitable apportionment having regard to each defendant's responsibility for the damage. 101 If E M Baldwin & Son Pty Ltd v Plane is properly understood as being a factual determination by this Court of approximate equality of culpability in a case where the Court was entitled to re-assess that culpability, the decision is one restricted to its particular facts and of no relevance in this appeal. On the other hand if it is to be regarded, as it fairly might be, as a statement of legal principle that, in circumstances where successive employers have exposed a worker to the risk of injury from asbestos over different periods with, perhaps, different intensities of exposure to asbestos with different degrees of toxicity, apportionment of liability between successive negligent employees, found to have caused disease resulting from such exposure, must be equal, then in my respectful opinion, such statement is wrong. In cases of this sort, where causation is proved by evidence of exposure to risk and there is a rational basis for distinguishing between the degrees of exposure, it is not correct to say that there is no rational basis for the division of causation. Nor, indeed, should the conventional regard to culpability and causation obscure the need to examine the whole conduct of each party, an examination which in circumstances of inability to quantify comparative causal potency could itself lead to differential responsibility by regard to the degree of exposure to risk. 102 In my opinion, this ground of appeal also fails. Orders 103 I propose that the appeal and Seltsam's cross-appeal be dismissed with costs. 104 STEIN JA: I agree with Sheller JA his reasons and proposed orders. I would wish only to add some remarks on EM Baldwin & Son Pty Ltd; Jsekarb v Plane (1999) Aust Torts Reps 81-499 (Plane). I do not understand Plane as establishing any general principle that so long as scientific knowledge cannot establish the aetiology of mesothelioma, then liability must be equally apportioned amongst defendants held to be liable. Plane was a case which turned very much on its own facts, which are different from the present case. In particular, the evidence of Professor Henderson was material to the decision of the majority in Plane. Professor Henderson's evidence was not before the Tribunal in the present case nor was similar evidence tendered. 105 GILES JA: I agree with Sheller JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.