Reported Decision : 4 DDCR 234 New South Wales Court of Appeal CITATION: Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142 HEARING DATE(S): 25 May 2006 JUDGMENT DATE: 6 September 2006 JUDGMENT OF: Giles JA at 1; Ipp JA at 69; Tobias JA at 73 DECISION: (1) Set aside the verdict and judgment entered by Duck J on 6 April 2005 and the order for costs then made; (2) Remit the proceedings to the Dust Diseases Tribunal for further determination; (3) Costs in the Tribunal to be in the discretion of the judge conducting the further determination; (4) Respondent to pay the appellant's costs of the appeal. CATCHWORDS: Contribution between tortfeasors - where damage divisible - assessment of "the same damage" for which contribution to be made - error in point of law by Dust Diseases Tribunal in apportioning the whole of the damages payable - whether Court of Appeal could or should make fresh apportionment - or should be remission to Tribunal - consideration of nature of error in point of law and powers if error in point of law shown. Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509; Attorney-General for the State of New South Wales v X (2000) 49 NSW:R 653; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; (Re Bowie) Stevedoring Industry Finance Committee v James Patrick & Co Pty Ltd (in liquidation) [2005] NSWDDT 59; (Re Cassar) Stevedoring Industry Finance Committee v James Patrick & Co Pty Ltd (in liquidation) [2005] NSWDDT 60; Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; Dingle v Associated Newspapers Ltd (1961) 2 QB 162; Gibson v SIFC & Ors (DDT 89 of 1996); Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324; Macquarie Pathology Services Pty Ltd v Sullivan (CA, 29 March 1995, unreported); Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 165 CLR 522; CASES CITED: Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673; Municipal Tramways Trust v Buckley (1912) 14 CLR 731; Naxakis v Western General Hospital (1999) 197 CLR 269; North Broken Hill Ltd v Tumes (1999) 19 NSWCCR 412; Roads and Traffic Authority of New South Wales v Perry (2001) 52 NSWLR 222; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179; Swain v Waverley Municipal Council (2005) 213 ALR 249; Tobin v Murison (1845) 5 Moo PC 110; 13 ER 431; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Wallaby Grip Ltd v Peirce [2000] NSWCA 299; Warley Pty Ltd v Adco Constructions Pty Ltd (CA, 30 November 1998, unreported). PARTIES: Patrick Operations Pty Ltd - Appellant Comcare - Respondent FILE NUMBER(S): CA 40361/05 COUNSEL: I G Harrrison SC & J A de Greenlaw - Appellant A J Sullivan QC & A C Scotting - Respondent SOLICITORS: McCulloch & Buggy - Appellant Blake Dawson Waldron - Respondent LOWER COURT JURISDICTION: Dust Diseases Tribunal LOWER COURT FILE NUMBER(S): 209/2000/1 LOWER COURT JUDICIAL OFFICER: Duck J LOWER COURT DATE OF DECISION: 6 April 2005 LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWDDT 14 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40361/05 DDT 209/2000/1 GILES JA IPP JA TOBIAS JA Wednesday 6 September 2006 PATRICK OPERATIONS PTY LTD v COMCARE Judgment 1 GILES JA: This appeal raised for consideration error in apportionment on cross-claims for indemnity or contribution between two defendants in the Dust Diseases Tribunal ("the Tribunal"), and whether this Court could make a fresh apportionment if error in point of law was established. The proceedings in the Tribunal 2 From 1956 to about 1977 Mr Donald Dankworth was regularly exposed to asbestos in his work as a waterside worker on the Sydney waterfront. In 2000 he brought proceedings in the Tribunal, alleging that as a consequence of inhaling asbestos dust and fibre he had contracted pleural plaques, bilateral pleural thickening and asbestosis. The proceedings were brought against the Stevedoring Industry Finance Committee ("SIFC"), the successor to the liabilities of the Australian Stevedoring Industry Authority ("the Authority") which had had responsibilities for the regulation and control of the performance of stevedoring operations on the waterfront, and Patrick Operations Pty Ltd ("Patrick"), which had been Mr Dankworth's employer for the majority of his time as a waterside worker. Each of the Authority and Patrick was alleged to have been negligent and by its negligence to have caused his condition. 3 Comcare is now the successor to the liabilities of SIFC. I will continue to refer to SIFC as the party. 4 SIFC cross-claimed against Patrick for indemnity or contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 ("the LR Act"). At a late stage leave was granted to Patrick similarly to cross-claim against SIFC, and the proceedings were decided as if that cross-claim was on foot. 5 On 4 April 2005 Mr Dankworth's claim was settled, leaving the claims for indemnity or contribution to be determined. An order was made - "That the defendants pay to the plaintiff $200,000.00 inclusive of costs." 6 Duck J then determined the claims for indemnity or contribution. The materials before him included an affidavit of Mr Dankworth, undated but filed in the Tribunal on 31 January 2005, the terms of settlement and the minute of judgment. His Honour noted that "[t]hereafter the matter was argued by reference to findings of fact set out in the matter of Ronald John Gibson v SIFC and Ors DDT 89 of 1996 in which his Honour Judge Curtis gave judgment on 2 June 1998" ("Gibson's case"). 7 The argument by reference to findings of fact in Gibson's case was pursuant to s 25(3) and perhaps 25B(1A) of the Dust Diseases Tribunal Act 1989 ("the DDT Act"); they provided - "25(3) Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties." "25B(1A) If an issue of a general nature already determined in proceedings before the Tribunal (the earlier proceedings ) is the subject of other proceedings before the Tribunal (the later proceedings ) and that issue is determined in the later proceedings on the basis of the determination of the issue in the earlier proceedings, the judgment of the Tribunal in the later proceedings must identify the issue and must identify that it is an issue of a general nature determined as referred to in this section." 8 Pursuant to these provisions, there were tendered without objection "two folders of s 25(3) material" from Gibson's case and two other cases and three s 25B notices setting out issues of a general nature determined in Gibson's case and some other cases. Duck J did not, however, identify in his judgment any s 25B issues of a general nature. 9 In Gibson's case Mr Gibson brought proceedings against, amongst others, SIFC and Patrick, alleging negligence and contraction of asbestos related lung diseases. His damages were agreed at $100,000. Only SIFC and Patrick were held liable. Mr Gibson had been employed by other unidentified stevedoring companies during the period of his exposure to asbestos. It was found that "the plaintiff's causal exposure to asbestos dust in the employment of Patrick was perhaps 75 per cent of his total causal exposure". Curtis J ordered that there be judgment against SIFC and Patrick for $100,000, and on Patrick's cross-claim against SIFC that SIFC contribute 25 per cent of that sum. His Honour engaged in an extensive consideration of the facts, and in arriving at his apportionment on cross-claims between SIFC and Patrick said - "It is quite apparent that responsible officers of each defendant observed the conditions in which the men worked and effectively ignored their complaints. It is also apparent that the men were compelled to work unwillingly in conditions of obvious hazard by both the Authority and by Patricks. The relevant distinction in terms of culpability is that Patricks profited from its activities and refused to countenance any diminution in those profits by expenditure on adequate respirators for the men. While in terms of causal potency the negligence of the Authority also encompassed the one quarter of the total exposure in which Patricks was not involved, I do not believe that factor balances the greater culpability of Patricks. In one sense the SIFC stands as a surrogate for those negligent stevedores who cannot be identified. Consistent with my views as to respective blame and causal potency I apportion liability 75 per cent to Patricks and 25 per cent to SIFC." 10 Gibson's case went on appeal, Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179. SIFC submitted on appeal that in arriving at his apportionment the judge had failed to give weight to a number of factors, summarised by Mason P at [112]. His Honour, with whose reasons Stein and Heydon JJA agreed, said - "113 The broad thrust of these submissions is further evidence of SIFC's unwillingness to accept the scope of the Authority's duty of care as established in Crimmins [ Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1]. Once that duty is acknowledged and the multi-faceted breach of the Authority seen for what it was, then in my view the discretionary apportionment of liability is unappealable on the facts of the case. His Honour applied the correct approach to apportionment (cf James Hardie & Co Pty Ltd v Roberts [1999] NSWCA 314. He recognised the different roles of the Authority and of Patrick, and the different duties stemming from those roles. 114 SIFC submits that particular error is revealed in Judge Curtis' remark that in one sense the SIFC stands as a surrogate for those negligent stevedores who cannot be identified. It is somewhat unclear what his Honour had in mind by this comment. Strictly speaking there is no difference between Patrick and the unidentified operating stevedores beyond Patrick's much greater relationship with the plaintiff. (It was held that three quarters of the plaintiff's asbestos exposure was in the employment of Patrick.) Perhaps his Honour was seeking to emphasise that the Authority's duties stood over against those of the plaintiff's employers. The remark is unfortunate, but it does not persuade me to interfere, because (if it betokens the introduction of an irrelevant factor) I would reassess apportionment as between SIFC and Patrick on the same percentages." 11 Returning to the present case, Mr Dankworth had first worked as a casual wharf labourer, then as a permanent waterfront worker. In his affidavit he said that prior to permanency he worked for Patrick about fifty per cent of the time and for other stevedoring companies, which he identified, for the other fifty per cent of the time. After permanency and until the exposure to asbestos ceased he worked only for Patrick. Duck J found that, depending on the date in 1977 on which the exposure to asbestos ceased, he was "in effect" employed by Patrick for 73.25 or 71.95 per cent of the period of exposure to asbestos. 12 Duck J said - "[12] The nature of the duties of the respective defendants is different The Australian Stevedoring Industry Authority whose liabilities SIFC inherited, had duties which stemmed from its statutory powers and functions related to the risks faced by wharf labourers who were relatively defenceless in respect of dealing with those risks. Patrick's duty when the plaintiff Mr Dankworth was working for them was an employer's duty to provide reasonably safe systems of work and places of work. The day to day control of the men was in the hands of Patricks. They had a foreman stevedore present daily, they had a cargo supervisor present. Through these men they had direct knowledge daily of the loads the men had to unload from ships, the nature of the cargo, the way it was stacked, the difficulties associated with its unloading. If materials were being removed from hulls of ships in slings these men were there daily to observe any difficulties that might arise in connection with that work, with the damage to bags of asbestos, if that is what happened. They had the ability daily to provide masks if ever they thought of it, and as they did for those unloading wheat cargoes. They had the ability to wet down to prevent dust if that was thought to be appropriate. The Australian Stevedoring Industry Authority had an over arching duty but ultimately its powers were, by comparison with Patricks, restricted. Before permanency it could withdraw labour from a stevedore, although one imagines that such a move would cause a furore at the time, it could prosecute for offences, it could seek the deregistration of a stevedore and prior to either deregistration or prosecution it could give directions to stevedores about safety matters. [13] In comparing the duties, which, as I say, arise from their different sources, it is permissible to observe the comment of McHugh J in the matter of Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALR 1 at 13 par 60 (made about the Melbourne waterfront): 'Although the authority had an over arching supervisory and regulatory role with respect to safety on the waterfront, it is clear that the primary responsibility fell on the employers. The award placed a number of very specific safety responsibilities upon the employers (and not the authority) including an obligation to provide safety equipment where it was needed.' [14] Bearing those matters in mind it is reasonably clear why the apportionment which Judge Curtis arrived at, and which was reinforced on appeal, was appropriate in Gibson's case. Mr Dankworth's case resembles Mr Gibson's closely enough to warrant no departure from the approach taken in those cases. Those considerations induce me to approach the question of contribution in the same way, that is in Mr Dankworth's case Patricks should bear 75 per cent of the burden of the verdict and SIFC 25 per cent. [15] … The intention of this judgment is to say that the burden of the plaintiff's judgment ought to be borne by the defendants in the proportion three-quarters by Patricks and one-quarter by SIFC." 13 In the result, therefore, Patrick was to bear $150,000 of the $200,000 and SIFC was to bear $50,000. The appeal 14 Section 32 of the DDT Act relevantly provided - "32 Right of appeal to Supreme Court (1) A party who is dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence may appeal to the Supreme Court. (2) The Supreme Court may, on the hearing of any appeal under this section, remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court sees fit." 15 Patrick's grounds of appeal were - "1. His Honour erred by failing to determine the proportion of the Plaintiff's damages caused by the Appellant and to apportion that damage between the Appellant and the Respondent in respect of the Plaintiff's condition of asbestosis, which was divisible. 2. His Honour erred when apportioning liability between the Appellant and the Respondent. 3. His Honour erred in adopting the reasoning and/or the apportionment of His Honour Judge Curtis in the matter of Ronald John Gibson v SIFC & Ors (DDT 89 of 1996, unreported) and/or the apportionment in the matter of SIFC v Ronald John Gibson ([2000] NSWCA 179) when apportioning liability between the Appellant and the Respondent." 16 Apart from costs, the orders sought in the notice of appeal were - "1. Appeal upheld 2. Reducing the verdict in favour of the Respondent." 17 The grounds of appeal were not conducive to identifying a point of law. The second of the orders sought assumed that this Court could make a fresh apportionment if error in point of law was established. 18 In its written submissions Patrick argued for error in point of law and for the fresh apportionment to be made. In its written submissions SIFC conceded error in point of law and argued for a different fresh apportionment to be made. At the hearing of the appeal the Court questioned the error of law as asserted and conceded, and questioned whether it could make a fresh apportionment if error in point of law was established. 19 The parties joined in a course intended to overcome the questioning of the error of law. Contrary to the second of the orders sought in the notice of appeal, and its written submissions, Patrick argued for remission to the Tribunal for the fresh apportionment; SIFC argued that this Court could and should make the fresh apportionment. Error in point of law 20 Although the parties came to common ground, this Court must be satisfied that there was error in point of law. Further, there are many cases in the Tribunal similar to the present case, and explanation may be of assistance. 21 The basis of Patrick's asserted error in point of law was that, as described in the first of the grounds of appeal, Mr Dankworth's condition was "divisible", meaning that it was a condition which increased in severity with successive occasions of exposure to asbestos. Another example of a divisible condition is a hearing impediment caused by exposure to excessive noise where successive exposures increase the hearing loss. As was explained by Ipp JA in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [34], ARPD being asbestos related pleural disease - "34 In the case of ARPD, the disease is the consequence of inhaling asbestos fibre in circumstances where each successive inhalation of asbestos inflicts a further and separate form of harm on the victim. As each infliction of harm is an independent event, where ARPD has cumulatively been brought about by different tortfeasors over different periods, each tortfeasor is separately liable for the separate damage each has caused. Such tortfeasors are not jointly, concurrently or severally liable to the victim. The damage for which each is liable has to be separately proved and separately assessed." 22 As to separate assessment of divisible damage, see more generally Dingle v Associated Newspapers Ltd (1961) 2 QB 162 at 188-9; Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323 at 326; Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 528-30. 23 In the present case, if Mr Dankworth's condition was divisible the tortfeasors, SIFC and Patrick, were partly concurrently liable to him, but only partly. SIFC was liable on the basis that its negligence contributed to his condition in its totality, because its negligence enured throughout the period of his exposure to asbestos. Patrick was liable on the basis that its negligence caused his condition in part, because its negligence only enured for that part of the period of his exposure to asbestos during which it was his employer. On the judge's finding, that was 71.95 to 73.25 per cent of the time, which the parties treated as rounded up to 75 per cent. It followed that the damage for which each of SIFC and Patrick was liable had to be separately assessed as the former was liable for the whole or the totality of his condition whereas the latter was liable only for part of that condition. 24 Section 5 of the LR Act governed indemnity or contribution in respect of liability in respect of the "damage" suffered by Mr Dankworth. It provided that any tortfeasor liable in respect of Mr Dankworth's damage could recover contribution from any other tortfeasor liable in respect of "the same damage". Mr Dankworth's damage was not his damages as awarded, but the injury to him from exposure to asbestos (Mahoney v J Kruschich (Demolitions) Pty Ltd at 527). Patrick argued that "the same damage", ascertained on a time basis, was its 75 per cent of Mr Dankworth's damage, and that SIFC could recover contribution from Patrick only in respect of 75 per cent of the $200,000. It said that Curtis J in Gibson's case had erred in point of law in addressing apportionment of the whole of the damages payable to Mr Gibson, and that Duck J had erred in point of law in taking the same approach. 25 As I have said, in its written submissions SIFC conceded error in point of law. It accepted that Mr Dankworth's condition was divisible, and that the correct approach was that taken by Curtis J in his Honour's later decisions, given after that of Duck J in the present case, in (Re Bowie) Stevedoring Industry Finance Committee v James Patrick & Co Pty Ltd ((in liquidation) [2005] NSWDDT 59 ("Bowie's case") and (Re Cassar) Stevedoring Industry Finance Committee v James Patrick & Co Pty Ltd (in liquidation) [2005] NSWDDT 60 ("Cassar's case"). In his later decisions Curtis J reconsidered his decision in Gibson, and expressed the view that it and other decisions which had taken its approach were "wrong insofar as they relate to divisible damage" (Cassar's case at [4]). 26 In Bowie's case Mr Bowie recovered judgment against SIFC for $200,000. SIFC cross-claimed against Patrick companies (which I will call Patricks) for indemnity or contribution. It was found that Mr Bowie's exposure to asbestos was 67 per cent in the employment of Patricks and 33 per cent in the employment of other stevedoring companies. Curtis J said - "4. If the damages are divisible, Patricks would, if sued, be liable only in respect of 67 per cent of the total damages. In such a case, in respect of the period of employment with Patricks, SIFC is also liable only as to 67 per cent of the damages, and a pro-rata apportionment pursuant to which Patricks is to pay to SIFC 67 per cent of the total damages would constitute the grant to SIFC of a complete indemnity in respect of its commensurate liability with Patricks for ' the same damage' to the plaintiff. 5. If the damages are indivisible SIFC is, and Patricks, if sued, would be, liable for the whole of the plaintiff's damages and an order that there be a pro rata contribution from Patricks in respect of its period of employment would not constitute an indemnity. Such an order however may not be just and equitable in all the circumstances of the case. 6. In Gibson v SIFC (supra), a case involving asbestosis, I did not address the question of whether the damages were divisible or indivisible. If I intended in that case to grant to SIFC a complete indemnity, it was incumbent upon me to find whether or not the damages were divisible and, if they were divisible, to give reasons why a complete indemnity should follow. This I did not do. 7. Patricks, not unreasonably, submit that I should now revisit the question of apportionment in cases similar to Gibson . In each case I must decide whether the damages are divisible or indivisible, and, if I determine that the just and equitable contribution of Patricks is to amount to an indemnity, I must give reasons for that determination." 27 Mr Bowie had lung cancer, and his Honour considered that his damage was indivisible and that both SIFC and Patricks were liable for the whole of his damage (at [10]). He considered that Patricks' culpability was far greater than that of SIFC, for reasons he gave, and that Patricks should contribute to SIFC's liability "in the ratio of 85 per cent of the proportion which the period of employment of the plaintiff by that stevedoring company bears to the whole period of causative employment for which SIFC is liable" (at [13]). Thus there was a contribution of 85 per cent of 67 per cent of the $200,000. This must have been because his Honour thought the resulting 57 per cent of the $200,000 was a just and equitable contribution having regard to the extent of Patrick's responsibility for the damage, see s 5(2) of the LR Act. Since the damage was indivisible, it cannot have been because his Honour took 67 per cent of the damage as the mandatory starting-point of "the same damage" and determined a just and equitable contribution to 67 per cent of the $200,000. 28 In Cassar's case, in which his Honour incorporated in his reasons what he had said in Bowie's case, Mr Cassar recovered judgment against SIFC for $160,000. SIFC cross-claimed against Patrick companies (which I will again call Patricks) for indemnity or contribution. Mr Cassar's exposure to asbestos had been 38 per cent in the employment of Patricks and 62 per cent in the employment of other stevedoring companies. He had asbestosis and asbestos related pleural disease. His Honour said - "5. In Ross v Meggitt Overseas Ltd (1999) 18 NSWCCR 324, Johns J, after a comprehensive review of medical evidence, held that asbestosis was a divisible condition to which serial tortfeasors had discretely and separately contributed. This decision has been accepted in subsequent cases in the Tribunal as constituting a determination upon an issue of a general nature within the meaning of s25B of the Dust Diseases Tribunal Act 1989. Neither SIFC nor Patricks challenges the correctness of that determination. The asbestos related pleural disease from which Mr Cassar also suffers may or may not be a divisible condition, however in the circumstances SIFC bears the onus of establishing that it is indivisible and this onus has not been discharged. 6. SIFC is cumulatively liable for 100 per cent of the plaintiff's damage which includes the divided liability to which other tortfeasors have contributed and the divided liability of Patricks for 38 per cent. The liability to which Patricks may be ordered to contribute is only the divided liability of SIFC for 38 per cent of the plaintiff's damage, that is $60,800." 29 His Honour determined the contribution - "8. In the present case the separate breaches of duty by SIFC and Patricks led to the same asbestos fibres contaminating the workplace of Mr Cassar and the causal contributions by SIFC and Patricks to the plaintiff's damage are equal. It is appropriate then to apportion liability in accordance with my views as to relative culpability. For the reasons set out in SIFC v James Patrick &Co Pty Ltd (in liquidation); re Bowie (supra), the relevant liability of SIFC to the plaintiff is to be apportioned 85 per cent to Patricks and 15 per cent to SIFC." 30 In the result, there was contribution of 85 per cent of 38 per cent of the $160,000. The comparison with Bowie's case should be explored. In Bowie's case the just and equitable contribution was 57 per cent of the same damage. In Cassar's case it was 85 per cent of the same damage. What was a just and equitable contribution involved, of course, the "causal potency of the negligence of each party" (per Clarke JA in Macquarie Pathology Service Pty Ltd v Sullivan (CA, 29 March 1995, unreported)). Curtis J did not in Bowie's case expressly refer to causal contribution, but did refer to the period of Patricks' causal contribution as less than that of SIFC by the 67 per cent. In Cassar's case, it seems because the same damage was suffered over a common period, he regarded the causal contributions as equal. On an identical relative culpability of 85:15, there was no real difference between the indivisible damage case and the divisible damage case, because in the indivisible damage case the 67 per cent brought a different causal contribution but one leading to the same result in substance. It may not always be the case that the different causal contribution balances out the difference in the damage. 31 With the common ground in the present case that Mr Dankworth's damage was divisible, it was also common ground that "the same damage" was appropriately ascertained on a time basis as 75 per cent of his damage, and that the apportionment should have been of 75 per cent of his damage and thus of $150,000. The Court drew attention, however, to a complicating factor. 32 In Bowie's case and Cassar's case the plaintiffs had judgments against SIFC and SIFC sought contribution from Patricks. It was open to Patricks to contend that the plaintiff's damage was divisible. But in the present case there was a judgment against Patrick for the same $200,000 as the judgment against SIFC, pursuant to the settlement and presumably by consent. If Mr Dankworth's damage was divisible and Patrick was only partly concurrently liable to him, its liability being measured by the 75 per cent, there should have been judgment against Patrick for $150,000 and against SIFC for $200,000. As it was, Patrick was to bear $150,000 of the $200,000, effectively being wholly responsible for "the same damage" 33 The Court questioned whether Patrick had accepted that it was liable for the same damage as that for which SIFC was liable, and whether in the apportionment the judge could go behind the judgment. Was Duck J's task to determine what contribution Patrick should make to SIFC in respect of SIFC's liability when by virtue of the judgment the two liabilities were in respect of the same damage? In discharging that task he could take into account Patrick's lesser responsibility for the damage in that its negligence enured for only part of the period of Mr Dankworth's exposure to asbestos, in the same manner as Curtis J seems to have done in Bowie's case. Arguably Duck J did so by his adoption of "the approach taken in" Gibson's case and its appeal. There may have been no error in point of law. 34 The parties pointed to an exchange in the transcript of submissions before Duck J in which counsel for Patrick submitted that Mr Dankworth's damage was divisible, and to a passage in the judge's reasons, referring to the case of a different Mr Cassar - "16. … It was sought to distinguish that case on the ground that Cassar was a lung cancer case, that is the injury was indivisible, the present case is an asbestosis case in which the injury is divisible. I do not think the matter can be distinguished on a ground as simple as that. In the present case the tortious acts of the defendants were undertaken concurrently and they contributed to the same damage. In that circumstance the mere fact that asbestosis is a divisible condition does not provide ground for distinguishing Cassar. It may be otherwise if the present parties were successive tortfeasors." 35 At other points in the transcript counsel for Patrick had submitted to the effect that in Gibson's case Curtis J had been incorrect in describing Patricks as "liable as a several tortfeasor with other unidentified tortfeasors for the same damage, being the whole damage in respect of which the plaintiff sues", when Patricks "were only on risk for 75 per cent … of the time when [Mr Gibson] was exposed to asbestos", and that "it being a divisible disease Patricks can only be liable for the exposure the plaintiff suffered whilst it [sic] was allocated to work for it". It is apparent from the transcript that the point which it can now be seen counsel was endeavouring to make was rather obscured within other submissions, and did not come home to the judge. That is apparent from the judge's remarks, in the course of submissions in reply by counsel for SIFC, that "SIFC and Patricks were concurrent tortfeasors … And their tortious actions produced the same damage … Made a material contribution to". Counsel said "yes" between these remarks. No one adverted to the judgement against Patrick as relevant to identification of the same damage. 36 SIFC did not submit that Patrick had accepted that it was liable for the same damage as that for which SIFC was liable, and the transcript shows that it had not. Subject to the judgment, para [16] of Duck J's reasons set out above can be seen to disclose the error in point of law. 37 Although unnoticed at the time, the judgment may nonetheless stand in the way of recognising the error. At the hearing of the appeal the parties agreed that the judgment against Patrick should be changed to a judgment for $150,000, to reflect Patrick's liability for only 75 per cent of Mr Dankworth's damage. This, of course, required Mr Dankworth's concurrence. It was obtained, and on 11 August 2006 substitute judgments were ordered taking effect from 4 April 2005, for Mr Dankworth against SIFC for $200,000 and against Patrick for $150,000; determination of this appeal was unfortunately delayed until that took place. 38 In my opinion, the substance of the judge's decision may be considered on the basis that the complication from the judgment against Patrick for $200,000 has been removed, and error in point of law may be found. Fresh apportionment 39 As earlier noted, Patrick argued for remission to the Tribunal for a fresh apportionment. It initially submitted that the remission should be accompanied by a direction that the apportionment of the $150,000 be on the 75:25 basis at which Duck J had arrived, but came to accept that his Honour's apportionment could not be preserved in that manner. SIFC agreed that it could not be preserved; it wished to obtain a more favourable apportionment, and argued that this Court could and should make the fresh apportionment. 40 There are a number of cases in which attention has been given to this Court's powers if error in point of law has been established. 41 In North Broken Hill Ltd v Tumes (1999) 19 NSWCCR 412 Beazley JA, with whom Giles JA and Davies AJA agreed, said that s 32(2) of the Compensation Court Act 1984 ("the CC Act") limited this Court's jurisdiction to the determination of whether the trial judge erred in law or wrongly admitted or rejected evidence, and that s 32(2) "does not … invest the Court of Appeal with jurisdiction to make findings of fact". Section 32 of the CC Act was in the same terms as s 32 of the DDT Act earlier set out. In that case it was necessary to determine what amount the worker would have earned in some suitable employment, and this Court could not make the determination. 42 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 required error in point of law under s 32 of the CC Act. Gleeson CJ and Gummow and Callinan JJ said at [14] that it was unnecessary to decide whether, once an error on a point of law was identified, the Court of Appeal "is confined to that point only and has no power to decide any other matter because all necessary factual questions were not addressed in the Compensation Court … ". They footnoted "cf Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324 at 325-326". Their Honours said at [38] that it was unnecessary to express an opinion about the correctness of the "limited construction" given to s 32 in North Broken Hill Ltd v Tumes, adding "or of the possible application of s 75A of the Supreme Court Act 1970 (NSW) to appeals from the Compensation Court". 43 In Krew v Federal Commissioner of Taxation Walsh J said, in relation to an appeal under the then s 196 of the Income Tax Assessment Act 1936 (C'th) ("the ITA Act"), that if the appeal was properly before him "the consequence is that the whole decision of the Board and not merely the question of law, is open to review". Section 196 was different from ss 32 of the CC Act and the DDT Act. It provided for appeal to the High Court from "any decision of the Board which involves a question of law", but by s 196(3) that the decision of the High Court on appeal "shall be final and conclusive"; further, s 199(1) of the ITA Act provided that the Court "may make such order as it thinks fit, and may by such order confirm, reduce, increase or vary the assessment … ". 44 Section 75A(10) of the Supreme Court Act 1970 provides that the Court "may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires". In my respectful opinion, this general provision is subject to any confinement by s 32 on its proper construction. 45 Kirby J in Vetter v Lake Macquarie City Council considered that it was necessary to come to a view as to s 32 of the CC Act, saying at [63] - "If a 'point of law' can be shown to attract that Court's jurisdiction, is it then open to that Court, having jurisdiction, to reconsider the facts found by the Compensation Court and reach its own conclusions about such facts? In my view, that question cannot be avoided. An answer to it is required so that this Court can measure the approach adopted by the Court of Appeal against the criticisms of what that Court did, raised by the grounds of appeal, and so as to frame the relief that is appropriate to such conclusion." 46 Kirby J considered that the language of s 32 "would appear to give some support to a construction that, once jurisdiction is attracted by establishing a grievance 'in point of law' broad powers are conferred on the Court of Appeal to make consequential orders" (at [64]). The view to which his Honour came was, however, to the contrary; his Honour said - "[67] The resolution lies, I think, in the history of s 32 of the Court Act. Originally, under the 1926 Act, appeal to the Supreme Court of New South Wales from the predecessor of the Compensation Court (the Workers' Compensation Commission) was by way of stated case. By s 37(4) of the 1926 Act, it was provided that "[w]hen any question of law arises in any proceeding before the commission", the Commission was empowered "of its own motion [to] state a case for the decision of the Supreme Court thereon". For a very long time, the Workers' Compensation Commission had control over the identification of the point of law submitted to the Supreme Court for decision. It did so by the stated case which engaged the jurisdiction of the Supreme Court. It was not until 1960 that a right of direct appeal was provided in terms which obviously represent the source for s 32(1) of the Court Act. In the context of the 1926 Act, and against more than 30 years of history, it was assumed that the "point of law" required to attract the jurisdiction to appeal also limited the subject matter of that jurisdiction and the powers of the Supreme Court once such jurisdiction was engaged. [68] Following the establishment of the Compensation Court in 1984, the appeal provisions have followed a meandering course. At one stage, provision was introduced to permit appeals concerning points other than points of law and the admission or rejection of evidence. Such appeals lay as of right so long as the compensation involved was more than a specified sum. Later still, however, the Court Act was again amended, presumably to stem the tide of appeals taken as of right involving no more than questions of fact. [69] In the context of this legislative history, and despite the ungainly language, there can be little doubt that the purpose of Parliament was to limit both the jurisdiction and powers of the Court of Appeal to the determination of appeals on a point of law (or in relation to the admission or rejection of evidence). The alternative construction would be capricious, involving the need for jurisdiction to establish, relevantly, an error in point of law but thereafter allowing, and probably requiring, the Court of Appeal to exercise its powers to decide purely factual disputes. I say that this would be capricious because factual disputes of great consequence would not alone engage the jurisdiction of the Court of Appeal unless, accidentally, some point of law was shown. But on such a view of the sub-section, a trivial factual dispute could do so, so long as the precondition expressed in s 32(1) was otherwise established. [70] It follows that the better view of s 32(1) of the Court Act is that which has long been accepted. The jurisdiction of the Court of Appeal is engaged by, and its powers are then limited to, correcting decisions on a "point of law or on a question as to the admission or rejection of evidence". Only this construction gives the sub-section a workable meaning, taking into account its language and apparent purpose, and the history of the sub-section and its predecessors." 47 In a subsequent mention of the point in the High Court in Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509 at [22], the Court said that "[w]hether, once an error in point of law is identified, the Court of Appeal is confined to that point only and has no power to decide any other matter may not be clear" and that it was not necessary to decide the question. The footnoted reference was to Vetter v Lake Macquarie Council at [14] and at [69]-[70], and to Krew v Federal Commissioner of Taxation. Kirby J was a party to the Court judgment in Amaca Pty Ltd v New South Wales. 48 There have been subsequent references to the question in this Court. 49 In Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673 the appeal lay under s 57 of the Land and Environment Court Act 1979 ("the LEC Act"). There was an appeal "against an order or decision … on a question of law", and s 57(2) provided - "(2) On the hearing of an appeal under subsection (1), the Supreme Court shall: (a) remit the matter to the Court for determination by the Court in accordance with the decision of the Supreme Court, or (b) make such other order in relation to the appeal as seems fit." 50 This was in substance in the same terms as s 32(2) of the DDT Act, save that "or" rather than "and" divided the two limbs of the subsection. 51 The appeal included error in the exercise of the judicial discretion as to costs. Handley JA, with whom Beazley and Giles JJA relevantly agreed, held that the discretion had to be re-exercised by the Land and Environment Court and could not be re-exercised by this Court; his Honour said - "[54] This section [s 57(2)] is indistinguishable from s 32(2) of the Compensation Court Act. [55] In N o rth Broken Hill Ltd v Tumes (1999) 18 NSWCCR 412 this Court held that s 32 confined its jurisdiction to correcting errors of law. Where decisions of the Compensation Court which involved fact finding or the exercise of a discretion were set aside for error of law, this Court had no power to make its own findings of fact as on a re-hearing, nor could it re-exercise the discretion but was bound to remit the proceedings to the Compensation Court for re-determination according to law. [56] In Vetter v Lake Macquarie City Council [2001] HCA 12,, 8 March 2001, the majority did not find it necessary to consider this question but Kirby J, without referring to the decision of this Court in North Broken Hill v Tumes , came to the same conclusion." 52 In Roads and Traffic Authority of New South Wales v Perry (2001) 52 NSWLR 222 the appeal again lay under s 57 of the LEC Act. Handley JA, with whom Powell JA agreed and Hodgson JA generally agreed, held that the appeal should be allowed and that, because it was necessary to find further facts, even on undisputed primary facts, remission to the Land and Environment Court was necessary. His Honour said - " [63] … The primary facts derived from the records of the RTA, and the evidence of Mr Stevens, which the judge accepted, were undisputed. However our jurisdiction is limited to deciding questions of law, and we cannot make findings of fact: see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 463–464, per Kirby J and Maurici v Chief Commissioner of State Revenue (2001) 51 NSW 673 at 686 [55]–[56]." 53 In Seltsam Pty Ltd v Ghaleb the appeal was brought under s 32 of the DDT Act. Basten JA referred at [162]-[166] to Vetter v Lake Macquarie City Council, noting at [163] in relation to Krew v Federal Commissioner of Taxation that the question raised by the tax cases may involve different considerations because of the terms of s 196 and 199 of the ITA Act and the particular statutory context. His Honour said at [165] that although the DDT Act did not share the legislative history of the CC Act, the principle enunciated by Kirby J in his [69] in Vetter v Lake Macquarie City Council was applicable to the DDT Act. 54 SIFC submitted that the view taken of s 32 of the CC Act by Kirby J in Vetter v Lake Macquarie City Council had been qualified by his Honour's concurrence in the unclarity voiced in Amaca Pty Ltd v New South Wales. The words in the later case were "may not be clear", and in my opinion they accommodated continuance of his Honour's view. SIFC submitted that s 32 of the DDT Act did not share the legislative history of s 32 of the CC Act, which is correct; but the legislature chose to frame s 32 of the DDT Act in the same terms as s 32 of the CC Act, and the preferable view is that s 32 of the CC Act as construed in the light of its legislative history was taken up for s 32 of the DDT Act. 55 SIFC accepted that s 32 of the DDT Act did not permit this Court to make its own findings of fact. It said that it did so because the legislative history of s 32 of the DDT Act included amendment from unfettered appeal to appeal only for error in point of law, and thus the legislature had indicated that it did not intend the Supreme Court to determine questions of fact but intended that questions of fact should be left to the Tribunal as a specialist tribunal. I do not adopt that reason for the acceptance, since amendment itself does not mean that the Supreme Court could not enter upon questions of fact: the error in point of law might be a jurisdictional gateway, but once through the gate the powers are broad, as postulated (but not accepted) by Kirby J in Vetter v Lake Macquarie City Council at [64]. In the construction of s 32 it is nonetheless material that the legislature created the Tribunal as a specialist tribunal and, by confining appeal to error in point of law, gave primacy to the Tribunal's position as fact-finder. 56 I remain of the view that, if it finds error in point of law, this Court cannot make for itself findings of fact necessary for disposal of the proceedings. That does not mean that, if error in point of law be established, remission to the Tribunal must always occur. The error may be such that, upon correction, this Court can dispose of the proceedings, for example if it be held that as a matter of law the appellant did not owe a duty of care to the respondent. If the findings of fact already made are sufficient for the purpose and there is no question of finding other facts, this Court can pronounce the result in law correct on those facts. If there be error in the admission or rejection of evidence, it may be that this Court concludes that the error did not affect the outcome, and accordingly the appeal is dismissed. These and like possibilities readily explain why s 32 provided that the Supreme Court "may" remit the proceedings to the Tribunal for determination and "may make such other order in relation to the appeal as [it] seems fit". They warrant reading "and" between the two limbs of s 32(2) as "or", and the congruence with s 57(2) of the LEC Act to which Handley JA referred in Maurici v Chief Commissioner of State Revenue. But the power to make such other order in relation to the appeal as the Court sees fit does not carry with it making findings of fact. 57 Having accepted that s 32 of the DDT Act did not entitle this Court to make its own findings of fact, SIFC submitted that making a fresh apportionment was in a different position because this Court would be making a normative decision based on the facts found by Duck J. It submitted that principles of finality of litigation supported that course, really meaning the desirability of having litigation brought to a conclusion in an expeditious and cost-effective manner. It said that this would be promoted if this Court made a fresh apportionment rather than remitting the proceedings for a fresh apportionment in the Tribunal. 58 The submission encounters the difficulty that in Vetter v Lake Macquarie City Council Kirby J posed at [63] whether the Supreme Court could "reconsider the facts found by the Compensation Court and reach its own conclusion about such facts", and at [70] described its powers as limited to "correcting decisions on a 'point of law' or on a question as to the admission or rejection of evidence". Making a fresh apportionment goes beyond correcting the judge's decision on a point of law. Other difficulties are that in Maurici v Chief Commissioner of State Revenue Handley JA excluded from this Court's powers a re-exercise of discretion, to which determining a just and equitable contribution under s 5 of the LR Act is analogous; and that in Roads and Traffic Authority of New South Wales v Perry Handley JA excluded from this Court's powers making findings of fact even where the primary facts were undisputed. 59 In my opinion, SIFC's the submission should not be accepted. The legislature's commission to the specialist Tribunal of proceedings in relation to dust-related conditions or deaths, including claims between defendants responsible in law for the conditions or deaths, pointed to primacy of the Tribunal not only in finding the primary facts but also in making decisions such as upon assessment of damages, negligence and determination of just and equitable contribution. By the body of experience built up in the Tribunal those decisions were to be informed and consistent, and supervision through appeal for error in point of law was not intended to extend to replacement by this Court of the Tribunal's decisions in those respects. 60 The nature of the Tribunal and the primacy of its position as fact-finder are material to whether alleged error in a process of evaluation or an exercise of discretion can be error in point of law, see Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [28] per Spigelman CJ. It was there held that a balancing of conflicting public interests was not of itself determination of a question of law, but whether the result was reasonably open could raise a question of law. In the same way, the nature of the Tribunal and the primacy of its position as fact-finder is material to whether these evaluative or normative exercises are fact-finding left to the Tribunal. 61 Assessment of damages will ordinarily not be a decision on a question of law, see for example Wallaby Grip Ltd v Peirce [2000] NSWCA 299; Amaca Pty Ltd v Karakash [2004] NSWCA 79. It is important, here and in what follows, to distinguish between the nature of the decision and error of law or in point of law in coming to the decision. There may be error of law or in point of law in the course of a process of evaluation or an exercise of discretion, but for the particular enquiry (here the division of functions between the Tribunal and the Supreme Court on appeal) the decision made without error is a decision on a question of fact. 62 In relation to s 32 of the CC Act, the well-known discussion by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-7 included the following pertinent observations - "Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the course of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found." (emphasis added) 63 Similarly, a conclusion on the application of a normative test will ordinarily be a decision on a question of fact, although if the conclusion was not open to be reached there may be error of law in coming to the decision. 64 In a jury case, whether the defendant has been negligent is a question of fact for the jury notwithstanding that it involves application of a legal standard of reasonableness with a normative content: see Tobin v Murison (1845) 5 Moo PC 110; 13 ER 431; Municipal Tramways Trust v Buckley (1912) 14 CLR 731 at 737-8 per Isaacs J; Swain v Waverley Municipal Council (2005) 213 ALR 249 at [6]-[8] per Gleeson CJ. In Naxakis v Western General Hospital (1999) 197 CLR 269 at [39] McHugh J stated that whether a defendant has been negligent is a question of fact, without limitation to a jury case. The nature of the application of the standard by a judge in the Tribunal in my view is the same; although of course there may be error in point of law if on the evidence it is not open to the judge to find negligence (cf Swain v Waverley Municipal Council at [8]). 65 As was said by McHugh J in Warley Pty Ltd v Adco Constructions Pty Ltd (CA, 30 November 1998, unreported), if a finding of fact involves the application of a legal standard it is possible that the reasonableness of the finding may indicate that the tribunal of fact has misdirected itself as to the standard applicable. But the finding on the correct legal standard remains a finding of fact, and his Honour went on - "In my opinion no assistance in this area of law is obtained by reference to the approach in appeals against discretionary judgments. They are not appeals on questions of law. They are appeals on questions of fact or perhaps more accurately on questions of opinion. Where a discretionary judgment is involved, the same body of evidence may reasonably lead different persons to opposite conclusions. Consequently, appellate courts have imposed upon themselves the rule that they will not interfere with a discretionary judgment unless it is the product of error (fact or law) or is plainly wrong. But that class of appeal does not concern and in my opinion does not provide any analogy with appeals on questions of law." 66 Determining a just and equitable contribution under s 5 of the LR Act is in my view in a similar position. In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493-4 the High Court adopted the description of a finding on a question of apportionment as a finding upon a "question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may be differences of opinion by different minds". There is the application of a legal standard with a normative content, but in the division of functions between the Tribunal and the Supreme Court on appeal it is in my view a decision on a question of fact. It is not open to this Court to make for itself such a decision in substitution for that made by Duck J. 67 That it is correctly seen as a finding of fact is underlined by the following. The primary facts before Duck J were the affidavit of Mr Dankworth and, through s 25(3) and perhaps s 23B(1A) of the DDT Act, facts in Gibson's case and perhaps other cases. I have set out the matters of fact in para [12] of the reasons of Duck J. It is very difficult for this Court properly to understand what is clearly a summary by his Honour, without regard to the underlying facts, which must have come from Gibson's case and perhaps the other cases. This Court could not satisfactorily make a fresh apportionment simply upon what is stated in his Honour's para [12], without a more full understanding of the primary facts. Further, this Court would be arriving at the just and equitable contribution to be made by Patrick in respect of 75 per cent of Mr Dankworth's damage, with an altered bearing of the facts on the critical elements of blameworthiness and causal potency of the negligence of each party. It would be making a wholly fresh apportionment on facts going beyond those stated by Duck J. That is a task for the Tribunal. Even if there were power in this Court to undertake it, I do not think it should do so. Orders 68 I propose the following orders - 1. Set aside the verdict and judgment entered by Duck J on 6 April 2005 and the order for costs then made. 2. Remit the proceedings to the Dust Diseases Tribunal for further determination. 3. Costs in the Tribunal to be in the discretion of the judge conducting the further determination. 4. Respondent to pay the appellant's costs of the appeal. 69 IPP JA: I agree with the conclusion of Giles JA and his Honour's reasons that the trial judge erred in point of law. I therefore agree with the first order his Honour proposes. 70 I agree with the further orders that Giles JA proposes. I do so on the ground that the fresh determination of the apportionment issue will require findings of fact that were not made below. 71 I would stress that in determining the apportionment the Court will be required to look at all circumstances that are relevant. It would not be appropriate simply to follow apportionments made in earlier cases on the basis that the facts were more or less the same. Minor factual differences are capable of resulting in a difference in apportionment. The parties are entitled to require the court to exercise its discretion independently in each case; that discretion is to be exercised by focusing on the particular facts of the case. Prior apportionments in other cases have no authority as precedents. 72 As I do not think it necessary to express an opinion on the ambit of s 32 of the Dust Diseases Tribunal Act, I shall not do so. 73 TOBIAS JA: I agree with Giles JA and with the additional observations made by Ipp JA in para [71]. ********** 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.