New South Wales Court of Appeal Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 17/06/05 JUDGMENT DATE: 1 September 2005 JUDGMENT OF: Mason P at 1; Ipp JA at 18; Basten JA at 144 DECISION: (1) Appeal upheld (2) Set aside the judgment and verdict granted by Walker J (3) Case to be remitted to the Dust Diseases Tribunal to be heard afresh by a different judge (4) Respondent to pay the costs of the appeal (5) The judge hearing the new trial should determine the costs of the trial before Walker J (6) As regards the costs of the appeal the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. CATCHWORDS: PROCEDURAL FAIRNESS - Judge, without stating notice of his intention to do so, determining the case on a basis different to that put forward by the parties throughout the trial - Whether necessary to lead evidence to show that appellant would have conducted its case differently - DAMAGES - Personal injury - Plaintiff with a pre-existing condition - Whether plaintiff's pr-existing condition was a contributing factor to his or her injury - Watts v Rake (1960) 180 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 apply subject to the principles expressed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 - APPEAL - Decision of Dust Diseases Tribunal - Jurisdiction of appellate court - s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW) - Existence of an error "in point of law" - Lack of procedural fairness - Finding of fact in the absence of evidence - Whether appellate court should make order as to constitution of the tribunal upon a re-hearing. D Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) Commercial Arbitration Act 1984 (NSW), ss 38, 42 Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA) Compensation Court Act 1984 (NSW), s 32 Dust Diseases Tribunal Act (1989), ss 4, 11A, 13(2), 32 (1), 32(2), 43(3)(c) LEGISLATION CITED: Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 54 Income Tax Assessment Act 1936-1969 (Cth), ss 196, 199 Land and Environment Court Act 1979 (NSW), s 57 Supreme Court Act 1970, s 48 Supreme Court Rules 1970 (NSW), Pt 51, r 23 Workers Compensation Act 1987 (NSW), s 10(2) Attorney-General (NSW) v X (2000) 49 NSWLR 653 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Gaslight Co v Valuer General (1940) 40 SR(NSW) 126 Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Balenzuela v De Gail (1958-9) 101 CLR 226 Barnes v Hay (1988) 12 NSWLR 337 Brear v Commonwealth [1999] 18 NSWCCR 637 Bruce v Cole (1998) 45 NSWLR 163 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Commercial Minerals Ltd & Auqual Pty Ltd v Hollins (unreported, NSWCA, 22 December 1993) Commonwealth of Australia v Elliott [2004] NSWCA 360 Conway v The Queen (2002) 209 CLR 203 Curnuck v Nitschke [2001] NSWCA 176 Director of Public Prosecutions v Parker (1992) 28 NSWLR 282 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 Escobar v Spindaleri (1986) 7 NSWLR 51 Fairmount Ltd v Environment Secretary (1976) 1 WLR 1255 Frost v Amaca Pty Ltd (2004) 61 NSWLR 159 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Grygiel v Baine & Ors [2005] NSWCA 218 Henville v Walker (2001) 206 CLR 459 Hill v Green (1999) 48 NSWLR 161 John v Rees [1970] Ch 354 Jones v National Coal Board [1957] 2 QB 55 Kanda v Government of Malaya [1962] AC 322 Krew v Commissioner of Taxation (1971) 45 ALJR 324 Mahony v Watson [2003] NSWCA 259 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 CASES CITED: Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 Mkari v Meza [2005] NSWCA 136 Monaco v Arnedo Pty Ltd (unreported, Full Court, SCt of WA, 6 September 1994) Muin v Refugee Review Tribunal (2003) 76 ALJR 966 Newell v Lucas [1964-5] NSWR 1597 Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Pantorno v The Queen (1989) 166 CLR 466 Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74 Purkess v Crittenden (1965) 114 CLR 164 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 Road Traffic Authority of NSW v Perry (201) 52 NSWLR 222 Rosenberg v Percival (2001) 205 CLR 434 Touma v Saparas [2000] NSWCA 11 Ruddock v Taylor (2003) 58 NSWLR 269 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Shorey v PT Pty Ltd (2003) ATR 81-701 Sinha v Health Care Complaints [Commission] [2001] NSWCA 206 Smith v NSW Bar Association (1992) 176 CLR 256 Solution 6 Holdings Ltd v Industrial Relations Commission of NSW & Ors (2004) 60 NSWLR 558 Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 Stead v State Government Insurance Commission (1986) 161 CLR 141 Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 QB 405 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Watts v Rake (1960) 108 CLR 158 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 Winston v Roach [2003] NSWCA 310 Wintle v Nye [1959] 1 All ER 552 Wrigley Company Pty Ltd v Hollands (2002) 23 NSWCCR 463 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 Wyoming Nursing Home Pty Ltd v Palazzotto (unreported, NSWCA, 11 October 1995) Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Seltsam Pty Limited (Appellant) PARTIES: Ibrahim Ghaleb (Respondent) FILE NUMBER(S): CA 40649/04 G Watson SC/A Ventura (Appellant) COUNSEL: M Joseph SC/M Cahill (Respondent) Makinson & D'Apice (Appellant) SOLICITORS: Slater & Gordon (Respondent) LOWER COURT JURISDICTION: Dust Diseases Tribunal LOWER COURT FILE NUMBER(S): DDT 107/03 LOWER COURT JUDICIAL OFFICER: Walker J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40649/04 DDT 107/03 MASON P IPP JA BASTEN JA Thursday, 1 September 2005 SELTSAM PTY LTD v IBRAHIM GHALEB FACTS Seltsam Pty Ltd was a manufacturer of asbestos-cement products and employed Mr Ghaleb, between April 1971 and July 1977, as a worker in its factory. Seltsam's business was thereafter bought by Amaca Pty Ltd and Mr Ghaleb was in Amaca's employ from July 1977 until November 1986. Mr Ghaleb brought proceedings against Seltsam and Amaca in the Dust Diseases Tribunal. He alleged, before Walker J, that Seltsam and Amaca had negligently caused him to be exposed to asbestos in the course of his employment in their factories and that they had thereby caused him to suffer injury in the form of asbestos-related pleural disease ("ARPD"). On 24 May 2004, after the trial before Walker J had commenced, the proceedings between Mr Ghaleb and Amaca were settled. Walker J, having found that Mr Ghaleb suffered from ARPD, considered whether that illness was caused by Seltsam alone or Amaca as well. His Honour concluded that the illness had, in its entirety, been caused by Seltsam and entered a verdict and judgment for provisional damages of $314,594 against it in favour of Mr Ghaleb. Seltsam now appeals, purportedly in accordance with s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW), against Walker J's decision. HELD per Ipp JA (Mason P agreeing): Denial of Procedural Fairness 1. Mr Ghaleb, during the trial before Walker J, conceded that Amaca had, in part, caused him to suffer from ARPD and was partly liable for the damages caused by the ARPD. Seltsam conducted its case on this basis. Walker J did not inform the parties of his intention to depart from the way in which the case had been so conducted and to make findings contrary to the concessions that Mr Ghaleb had made. 2. The basis on which parties conduct a trial does not bind the judge but he or she must, if contemplating determining the case on a different basis, inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise. A failure to inform the parties of this will ordinarily result in a denial of procedural fairness. 3. A new trial will, when a party has not been afforded a fair trial, only be ordered when a properly conducted trial might possibly have produced a different outcome. It will not, however, ordinarily be necessary to lead evidence to prove that the denial of procedural fairness such as that which occurred in this case had the potential to affect the manner in which a party conducted the proceedings and, therefore, the outcome of the trial; in most cases the facts will speak for themselves. 4. Walker J did not only go beyond the case as conducted by the parties, he ignored the concessions of Mr Ghaleb and, on material issues, made findings contrary to those concessions. There has, in consequence, been a denial of procedural fairness to Seltsam. It is self-evident that this has led to a serious miscarriage of justice; on the facts of this case no evidence is required to establish this conclusion. Proof of Pre-Existing Condition 5. ARPD is a restrictive illness and Seltsam contended, at the trial, that Mr Ghaleb suffered from another restrictive condition, this one pre-existing, that affected his lung functioning (namely, obesity). 6. The onus of proof that a defendant must discharge when alleging that a plaintiff's pre-existing condition was a contributing factor to his or her injury arising from the negligent act or omission in question is that explained in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. Nothing in those cases imposes an onus on the defendant to prove that a pre-existing condition had made a material contribution to the plaintiff's injury. 7. The onus of proof a defendant has to discharge according to Watts v Rake and Purkess v Crittenden is subject to the principles expressed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 when the circumstances involved include hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. Malec v JC Hutton Pty Ltd indicates that the court is required to evaluate possibilities in these circumstances and is not concerned with proof on a balance of probabilities. This means that a pre-existing condition proved to have possible, not probable, on-going harmful consequences to a plaintiff cannot be disregarded by the court. 8. Walker J erred in stating that there was an onus on Seltsam to prove that obesity made a material contribution to Mr Ghaleb's restrictive lung condition. His Honour also erred in failing to assess the possible on-going harmful consequences caused by Mr Ghaleb's obesity to his restrictive lung condition. HELD per Mason P (Ipp JA agreeing): Constitution of the Tribunal 1. The Supreme Court of NSW has the power, under s 32(2) of the Dust Diseases Tribunal Act, to make an order as to the constitution of the Tribunal when it re-hears a case but should only use that power sparingly and when it is appropriate in the interests of justice. 2. Where the first trial has been conducted in such a manner as to give rise to a reasonable apprehension of bias this will usually ground an order as to the constitution of Tribunal for the new trial. But the power of the Supreme Court of NSW to make such an order is not limited to that situation. There can be cases where a complicated process of fact-finding has miscarried through a combination of factors and the interests of justice, including its appearance, require that the new trial take place before a differently constituted Tribunal. This is particularly so where the first trial resulted in a judgment turning upon credibility-based findings. 3. The trial before Walker J, whose judgment did turn on credibility-based findings, miscarried through a combination of factors. There needs to be a new trial on all issues and the parties should be offered a fresh start before a fresh fact-finder. An order, therefore, is made as to the constitution of the Tribunal for the new trial. Per Basten JA (dissenting): (1) In relation to the three matters said not to be supported by evidence: (a) there was evidence sufficient to allow the Tribunal to find that there was a second pleural effusion in 1979; (b) there was no error of law in finding there was no pleural effusion in 1985, and (c) There was evidence sufficient to allow the Tribunal to find that chronic obstructive airways diseases can combine in a synergistic relationship with the restrictive airways disease from which the Respondent suffered. (2) The Tribunal having correctly identified the legal principles derived from Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, the complaint that it misapplied those principles did not constitute an error in point of law because the application involved findings of primary fact and inferences drawn from them. (3) It was not argued by the Appellant that the principles derived from Watts and Purkess were wrongly identified because the Tribunal did not follow the approach required by Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. (4) The departure of the Tribunal from two "concessions" made by the Respondent during the hearing, and particularly the "concession" as to the liability of Amaca Pty Ltd for part of his disability, did not constitute breaches of procedural fairness because the Appellant failed to demonstrate that it was deprived of or deflected from an opportunity to tender any evidence or present any submissions which it might otherwise have taken. (5) In remitting a matter for further consideration by the Tribunal, the Court should not give directions as to the constitution of the Tribunal unless such a direction is appropriate and necessary in the interests of justice and has been sought by a party. (6) (a) Discussion of the nature of an appeal by a party who is "dissatisfied with the decision … in point of law": [148]-[168]. Vetter v Lake Macquarie City Council (2001) 202 CLR 439 applied. Azzpoardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 applied. (b) Query whether procedural unfairness constitutes a statutory ground of dissatisfaction "in point of law": at [159]. (c) Consideration of powers of Court where a relevant error established: [163]-[165]. Application of Krew v Commissioner of Taxation (1971) 45 ALJR 324 doubted; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 applied. (d) Relevance of Supreme Court Rules, Part 51, r 23 doubted: [167]-[168]. Orders The following are the orders of the court: (a) The appeal is upheld and the judgment and verdict granted by Walker J is set aside. (b) The case is to be remitted to the Dust Diseases Tribunal to be heard afresh by a different judge. (c) The respondent is to pay the costs of the appeal. (d) The judge hearing the new trial is to determine the costs of the trial before Walker J. (e) As regards the costs of the appeal, the respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40649/04 DDT 107/03 MASON P IPP JA BASTEN JA Thursday, 1 September 2005 SELTSAM PTY LTD v IBRAHIM GHALEB Judgment 1 MASON P: I have had the benefit of reading in draft the judgments of Ipp JA and Basten JA. 2 I agree with Ipp JA, adding the following. 3 As to the question about misapplication of the principles in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164, I acknowledge this to be a case where the learned primary judge acknowledged the distinction between evidentiary and persuasive onus in some of his statements of general principle. However, for the reasons given by Ipp JA, the method of application to the facts demonstrates to my satisfaction that his Honour did not give effect to the distinction and in so doing erred in law (cf Wintle v Nye [1959] 1 All ER 552 at 559). 4 As to procedural fairness, this judicial obligation is relevantly concerned with affording a reasonable opportunity to present or meet a case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611[40]). That opportunity is vital both to the reality and the appearance of justice. Just outcomes are grounded upon the court or tribunal addressing the issues presented, particularly where litigation proceeds according to the adversary principle. 5 Where an adjudicator hears evidence or receives argument from one side behind the back of another there will be want of procedural fairness without inquiring into the probative impact of that evidence or representation. The same goes for a refusal to entertain a relevant argument that one party wishes to put, is stopped from putting, and later turns out to have been rejected. 6 The reasons are twofold, tracking the twofold function of the doctrine as identified above. First, the appearance of fairness has been shattered in a material respect. As Lord Denning put it on behalf of the Judicial Committee of the Privy Council in Kanda v Government of Malaya [1962] AC 322 at 337-8: The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing. 7 Secondly, there is virtually no means of discovering the impact of the secret material upon the mind of the adjudicator without transgressing the very assumptions underlying the doctrines of procedural fairness and of judicial (or limited appellate) review. I agree with Professor D J Galligan who wrote ("Procedural Fairness" in Peter Birks ed, The Frontiers of Liability vol 1, 1994): How can the court know with any certainty that evidence and argument from a party would have made no difference? It simply cannot know in the sense of knowledge as justified belief. Facts, truth, insight, all emerge from argument and discourse, and the clearest case can easily give way to doubt. Megarry V-C put the point well: "… the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change." [ John v Rees [1970] Ch 354 at 402] The difficulty is compounded when we take into account the special position of the courts in exercising judicial review; their task is to decide matters of legality and procedure, not to assess the merits. The court faces a dilemma: to judge that a procedure would have made no difference to the original decision, the court has to put itself in the place of the decision-maker; but the more it does that, the closer it comes to an assessment of the merits. This difficulty points to an approach which, in most cases, is the most sensible: since they cannot know with any certainty the effects of the procedural defect, the courts would be wise to order that the procedural requirements be upheld. This need not be inflexible, and there may be exceptions; but exceptions should need to pass a clear and compelling test, and rarely be allowed. 8 These principles apply with equal force to appellate review limited to questions of law in relation to a trial that proceeded on a concession as to an important issue of fact which was ignored or departed from for the first time in the reasons for judgment. The law should not countenance a purely speculative argument that it would have made no difference had the departure been signalled earlier. In a case such as the present, where there was a firm body of evidence supporting Amaca's liability, not to mention the settlement with Amaca itself, it is theoretically and practically inconceivable that argument might not have swayed the Tribunal's mind in that direction. Such argument was not advanced, but obviously for no reason other than that counsel perceived that the Tribunal would treat the matter in accordance with the concession, or at least signal its intention to depart from it before doing so. 9 Accordingly, I agree with Ipp JA that there was a breach of procedural fairness in the present case, flowing from the very fact that both sides proceeded on the basis of it being common ground that Amaca should bear some proportion of the damages. We do not know and we should not assume that Walker J might not have been swayed by argument that was never put in opposition to a signalled intention to depart from this common ground. 10 If, contrary to my preferred categorical stance, it is necessary to proceed on the basis of inference as to detrimental reliance on the part of the appellant's counsel at trial, I would readily do so. 11 The third matter I wish to address is the question of the constitution of the Tribunal in the rehearing directed by this Court. Section 32(2) of the Dust Diseases Tribunal Act 1989 is a source of this Court's power, in a proper case, to give a direction as to the constitution of the Tribunal in a matter remitted following a successful appeal. 12 The power to direct a hearing by other than the original judicial officer is used sparingly and only when it appears to the appellate court that it is appropriate in the interests of justice (see Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 538[62], 556[123] and authorities there cited). Something more than error, to which all are prone, must be demonstrated. Where the proceedings below have been conducted in such a manner as to give rise to a reasonable apprehension of bias this will usually ground such an order. But the power is not limited to such a situation. 13 There can be cases where a complicated process of fact-finding has miscarried through a combination of factors. The interests of justice, including its appearance, may require that the new trial take place before a differently constituted court or tribunal. This is particularly so where, as in the present case, the first trial resulted in a judgment turning upon credibility-based findings. To remit the matter for a new trial before a similarly constituted tribunal of fact would almost inevitably trigger an application that the judge recuse in light of the principles in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. Instances where this Court has given a direction designed to avoid this possibility include Curnuck v Nitschke [2001] NSWCA 176 and Mkari v Meza [2005] NSWCA 136. 14 This is not to imply that the former decision-maker might start the new trial with the disposition in favour of the party originally successful. Indeed, there may be risks of compensatory bias or its appearance (cf my paper on "Unconscious Judicial Prejudice" published in (2001) 75 ALJ 676) that may properly be taken into account. This Court's concern lies with avoiding the appearance of pre-judgment. 15 I agree with Basten JA that the power should be exercised with caution and with respect for the authority of the judicial officer or officers in the court or tribunal below who have authority to assign cases. But where this Court is seized of a matter that persuades it as to the propriety of making a direction of this nature, the power should be used. It should not be left to the President, Chief Judge or List Judge of the court or tribunal below to have to make enquiries and form a judgment on such matters. Rather, absence of a direction should be read as a signal that it is open (but not obligatory) to assign the new trial to the original judicial or other officer. 16 In the present case there needs to be a new trial on all issues. In my view, the parties should be offered a fresh start before a fresh fact-finder. 17 In Escobar v Spindaleri (1986) 7 NSWLR 51 an award of the Compensation Court was set aside because of a denial of natural justice based upon a decision made without affording counsel an opportunity to address the Court. This Court ordered a new trial before a differently-constituted Compensation Court. Kirby P said (at 58) that the "appearance of justice makes it preferable that there should be a fresh trial before the Compensation Court, differently constituted". I adopt this reasoning to the present situation. 18 IPP JA: The verdict and judgment for provisional damages This appeal involves what are said to be errors of law committed by the trial judge, Walker J, in entering a verdict and judgment in favour of the respondent for provisional damages, in terms of s 11A of the Dust Diseases Tribunal Act 1989 (NSW), in the sum of $314,594. The errors of law are said to be denials of procedural fairness, making findings in the absence of evidence and misapplying the principles as to onus of proof laid down in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. 19 The appellant seeks a new trial on the ground that the trial judge made errors "in point of law" which resulted in a "substantial wrong or miscarriage" within the meaning of Pt 51, r 23 of the Supreme Court Rules 1970 (NSW) (see Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478). 20 Between April 1971 and July 1977 the appellant was a manufacturer of asbestos-cement products and employed the respondent as a worker in its factory. Thereafter, Amaca Pty Ltd, another manufacturer of asbestos-cement products, purchased the appellant's business and employed the respondent from July 1977 to November 1986. During both periods of employment the respondent was exposed to asbestos dust and fibre. 21 In 2000 the respondent brought proceedings against the appellant on the ground that it had negligently caused him to be exposed to asbestos in the course of his employment as a worker in its factory. The respondent also sued Amaca on the same basis. He asserted that both the appellant and Amaca had caused him to suffer injury in the form of asbestos-related pleural disease ("ARPD"). 22 On 24 May 2004, after the trial had commenced, the proceedings between the respondent and Amaca were settled on the basis that Amaca paid the respondent $50,000 plus costs. 23 Before Walker J the appellant did not deny that it owed a duty of care to the respondent and that it had breached that duty. It denied, however, that the respondent was suffering from ARPD and joined issue with the respondent as to the damages he had incurred. 24 At trial the appellant contended that, were it to be found that the respondent suffered from APRD, the ARPD had been caused partially by the appellant's breach of duty and partially by breach of duty on the part of Amaca. As part of this contention, the appellant submitted that ARPD is not an "indivisible" injury but the "cumulative" result of an ongoing process of inhaling asbestos fibre. Cumulative in this sense means that, each time an asbestos fibre is inhaled, potentially more harm is inflicted. As a cumulative, or "divisible", injury, part of a person's ARPD might be caused by one party and another part of the disease might be caused, separately, by another party. 25 Walker J found that the respondent, as he contended, was suffering from ARPD. The extent of the ARPD caused by the appellant and the extent (if any) caused by Amaca therefore became an issue for his Honour to determine. 26 The appellant also contended that the respondent suffered from restrictive and obstructive illnesses that contributed to his disability. Restrictive illnesses impair the capacity of the lungs to act in accordance with their normal function while obstructive illnesses stop air getting into the lungs. The principal restrictive illnesses from which the respondent was said to suffer were ARPD (which he alleged) and obesity (alleged by the appellant). The obstructive illnesses that were raised (by the appellant) included asthma. Obesity is not caused by exposure to asbestos and nor are obstructive illnesses. The extent (if any) to which any allowance was to be made for these illnesses that were not asbestos-related also fell for determination by the trial judge. 27 In entering a verdict and judgment for provisional damages of $314,594 against the appellant in favour of the respondent, Walker J attributed liability to the appellant for all the injuries suffered by the respondent. He held against the appellant's contentions relating to the divisible nature of ARPD, the liability of Amaca and the illnesses that were not caused by exposure to asbestos. He made no allowances for the obesity and the asthma. The amended notice of appeal 28 The appellant appeals against the verdict and judgment. During the course of argument it amended its notice of appeal. By the amended notice of appeal, the appellant challenged the finding that it was liable for all the respondent's ARPD as well as his Honour's assessment of damages. 29 The amended grounds of appeal asserted that the trial judge erred in point of law: (a) By denying the appellant procedural fairness when failing to apply concessions by the respondent to the following effect: (i) The respondent's injury was "divisible" or "cumulative". (ii) The appellant was not liable to the respondent for damages for any disability caused by an obstructive airways disease. (iii) Amaca, as a subsequent tortfeasor, was liable to the respondent for at least part of the damage he had sustained. (iv) The respondent suffered a pleural effusion in 1985. (b) By making the following findings of fact in the absence of evidence: (i) The respondent experienced a second pleural effusion in 1979. (ii) The respondent's chronic obstructive airways diseases combined in a synergistic relationship with his restrictive airways diseases, thereby aggravating them. (b) By misapplying the principles as to onus of proof laid down in Watts v Rake and Purkess v Crittenden . 30 The amended notice also asserted that the judge denied the appellant procedural fairness in making findings adverse to the credibility of an expert, Dr Gardiner, called on its behalf. The "divisible" nature of ARPD 31 Underlying the appellant's principal argument in the appeal is the proposition that ARPD is a divisible disease. This does not appear to have been in contention at the trial and, indeed, in parts of his reasons Walker J accepted this proposition. On appeal, the respondent did not dispute that ARPD was a divisible disease. 32 The essence of the term "divisible disease" is that it connotes a disease that increases in severity through an ongoing process of successive events that inflict harm on the victim. Each infliction of harm is separate and independent of the harm that has gone before. 33 A well-known example of a divisible disease is a hearing impediment caused by exposure to excessive noise over a lengthy, continuous period where each successive exposure to noise separately increases the hearing loss. 34 In the case of ARPD, the disease is the consequence of inhaling asbestos fibre in circumstances where each successive inhalation of asbestos inflicts a further and separate form of harm on the victim. As each infliction of harm is an independent event, where ARPD has cumulatively been brought about by different tortfeasors over different periods, each tortfeasor is separately liable for the separate damage each has caused. Such tortfeasors are not jointly, concurrently or severally liable to the victim. The damage for which each is liable has to be separately proved and separately assessed. 35 The legal principles to be applied in regard to the inflicting of a divisible disease on a plaintiff were discussed by Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 QB 405, a hearing impairment case referred to with approval in Commercial Minerals Ltd & Auqual Pty Ltd v Hollins (unreported, NSWCA, 22 December 1993) at 12 and Mahony v Watson [2003] NSWCA 259 at [35]. Mustill J held that the plaintiffs in Thompson were not entitled to recover their loss in full because a substantial part of the impairment of their hearing took place before any breach of duty by the defendants had occurred. Although precise quantification was impossible, the Court had to apportion the loss and make the best estimate it could in the light of the evidence. Mustill J said at 437 to 438: "The starting point for any enquiry into the measure of damages is the principle that the court should so far as possible endeavour to restore the plaintiff to the position in which he would have found himself but for the defendant's wrongful act. The impracticability of giving full effect to this principle must be recognised at every stage of the process … Complete logical rigour cannot be attained. … The first step is to consider the case of a worker, whose hearing has been impaired by excessive noise wrongfully suffered whilst in the service of successive employers A and B. The basic principle suggests that A should be liable in full, but not more than in full, for the impairment existing when the worker leaves his employment. … The intermediate step is the ascertainment of symptoms: for it is the symptoms which are the immediate cause of loss. It is, however, essential to recognise that symptoms are of two kinds. First, those (if any) which the plaintiff has already suffered and is suffering at the date of the trial. Second, those symptoms which, because of damage to bodily structure suffered through breach, are definitely going to happen, or may happen, at a future date. … A proper award of damages against employer A will recognise the existence of both current and potential symptoms. What of employer B? Principle and common sense demand a recognition of the fact that he has 'taken over' the plaintiff in a condition where his organs of hearing are already damaged, and where is already subject to actual and potential symptoms. It would be an injustice to employer B to make him liable for damage already done before he had any connection with the plaintiff. His liability, first principles suggest, should be limited to compensation for (a) the perpetuation and amplification of the handicaps already being suffered at the moment when the employment changed hands, and (b) the bringing to fruit in the shape of current hardship those symptoms which had previously been no more than potential. If this reasoning is followed, the result should be that the recoveries against A and B will amount in total to the award which would have been made if the damage had all been caused by the wrongs of a single employer; and, equally, that the assessment of such an award could form at least a starting point of any quantification of the individual liability of employers A and B." The trial judge's findings that the appellant was liable for all the respondent's ARPD 36 Walker J noted that the respondent had worked for the appellant and Amaca at different times. He said, expressly, that the damage the respondent had sustained was "caused by the exposure to different asbestos dust and fibre at different times" and, therefore, "[i]t cannot be said to be the same damage". His Honour reminded himself that he was concerned with the award of damages for damage sustained by the respondent solely as a result of the appellant's breaches of duty. He said that he was required to determine the cause of the respondent's asbestos-related damages "to ensure that that [sic] damages are not sheeted home to the [appellant] for damage caused by [Amaca's] tort". 37 In determining this issue the judge said that he was concerned "firstly, with the issue of latency periods and secondly with the issue of exposure to asbestos including arguments about the relative times of exposure and the nature of the asbestos to which the [respondent] was exposed in each employment". 38 The only evidence adduced about the latency period was that, in general, pleural effusion occurs "five or six years after exposure up to about 20 to 25 years". In addition, Walker J referred to and took into account the acceptance of evidence by O'Meally P in Brear v Commonwealth [1999] 18 NSWCCR 637 at 645 to the effect that: "[B]enign pleural effusion occurs sometimes within 10 years but a latency of less than 20 years is rare". And: "[I]t is more likely that early exposure would be the cause of the condition". 39 Walker J concluded that, on the evidence adduced before him, the earliest that pleural damage could have resulted from the respondent's employment with the appellant was in about mid-1978 and the earliest from the respondent's employment with Amaca was in late 1982 or early 1983. His Honour noted that counsel for both the appellant and the respondent had suggested that the damage occurred consequent to two pleural effusions in about 1979 and 1985. His Honour expressed his conclusion on this issue as follows: "Taking all this evidence into consideration on the balance of probabilities I find that pleural effusion of both the [respondent's] lungs occurred between 1978 and December 1979 with consequential pleural thickening developing in both lungs." 40 His Honour, accordingly, found that there had not been a pleural effusion in 1985 (or in late 1982 or early 1983) and said: "The conclusion I draw from the available evidence is the only pleural effusions occurring in this case fell within the latency period of the [appellant] not [Amaca]". 41 The judge then commented: "There being no pleural effusions at a time after [Amaca's] latency period commenced to run (about 1983) then it is highly unlikely on the balance of probabilities that exposure to asbestos with [Amaca] could be held responsible for the damage, notwithstanding the principle in Brear's case that all exposure is relevant to the causation of ARPD." 42 His Honour had previously accepted that all exposure was relevant to the causation of ARPD. Nevertheless, he reasoned that, because the respondent had not had pleural effusions after the latency period relative to the date his employment with Amaca had commenced, the respondent's exposure to asbestos while in the employ of Amaca was not the cause of his ARPD. His Honour said: "Accordingly I do not propose to make any deduction in this case to take into account damage allegedly sustained by any tort of [Amaca]". The way in which the parties, by their conduct of the trial, treated the liability of Amaca 43 His Honour's reasoning in finding that the respondent's exposure to asbestos while in the employ of Amaca was not the cause of his ARPD was a major source of complaint by the appellant. The appellant contended that this finding and the reasoning that led to it was contrary to the way in which both parties had conducted the trial and to relevant concessions the respondent had made. It is necessary to examine the relevant material relied on by the appellant in this regard. 44 In opening the respondent's case Mr Cahill, who appeared for the respondent at the trial, stated that in 1985 the respondent was diagnosed with a second pleural effusion. Mr Cahill informed the judge that "this is a divisible condition" and that, in consequence, despite the settlement with Amaca, the respondent was continuing with his case against the appellant. He foreshadowed that, in due course, there would be "some debate about the comparative levels of exposure as between the [appellant and Amaca]." 45 Before the parties had closed their respective cases, Mr Cahill sought to tender a document that dealt with dust exposure at the appellant's premises caused by handling shipments of asbestos. The judge asked how the document was relevant. Mr Cahill replied that it related to the levels of exposure involved in the handling of asbestos at the appellant's premises. The judge asked whether that was an issue and Mr Cahill replied: "Your Honour, part of the problem with this case is of course that there are two periods of exposure, one involving the [appellant] one involving [Amaca], and there is going to be a question of apportionment as between the two, keeping in mind, your Honour, the evidence of Dr Gardiner regarding the characteristics of pleural effusions and the fact that time [lags are] involved and so forth and the relevance of the level of exposure of the [respondent] during the period of employment with the [appellant] as opposed to [Amaca]." Mr Cahill thereby acknowledged that the apportionment of damage between the appellant and Amaca was an important issue and that the respondent had been exposed to asbestos while employed with Amaca. 46 In written submissions, forming part of Mr Cahill's closing address at the trial, the following was stated: "All exposure is relevant to the causation of asbestos-related pleural disease." The submissions referred to the findings in this regard by O'Meally P in Brear v Commonwealth. 47 Thus, the respondent submitted that the court should find that any exposure to asbestos was a cause of ARPD. This was of particular relevance in the light of the respondent's acceptance that he had been exposed to asbestos while in the employ of Amaca and that the pleural effusion in 1985 was asbestos-related. 48 In written submissions, forming part of Mr Cahill's closing address at the trial, the following was recorded: Early to mid-1979 "Date of Onset of Symptoms 17 July 1979 – X-ray disclosing left sided asbestos-related pleural effusion with pleural thickening 23 May 1985 – X-ray indicates right sided asbestos pleural effusion with pleural thickening" This was an acceptance by Mr Cahill that the evidence had established that, by 23 May 1985, the respondent was suffering from right sided asbestos pleural effusion with pleural thickening, that is, ARPD. 49 Indeed the respondent's written submissions stated: "[I]t is common ground between the [appellant] and the [respondent] that the conditions about which the [respondent] makes complaint, namely two benign asbestos-related pleural effusions, which occurred in 1979 and about 1985, respectively, and asbestos-related pleural disease, are divisible injuries or 'conditions'." These particular remarks establish that the trial was conducted on the basis that the respondent had suffered asbestos-related pleural effusions in 1979 and 1985 and that ARPD was a divisible injury. 50 These important points were emphasised more than once in the respondent's written submissions. After submitting that "the preponderance of the evidence clearly favours the conclusion that the effusion suffered by the [respondent] in 1979 was asbestos-related", the written submissions asserted: "Further, the same observations are applicable to the evidence regarding the occurrence of a second pleural effusion in about 1985, together with the increased pleural thickening and consequent increase in the [respondent's] restrictive lung disorder." And, after arguing in the written submissions that he was "entitled to damages with respect to the pleural effusions that he suffered in 1979 and about 1985", the respondent contended: "The second effusion was less dramatic in its clinical presentation. But, on the basis of the lung function studies, it resulted in the [respondent's] restrictive airways disease becoming more pronounced." 51 Thus, the written submissions indicate, clearly, that the respondent accepted that ARPD was a divisible disease, that he had been exposed to asbestos while employed by Amaca, that he had suffered a pleural effusion in 1985 (a time falling within the latency period relating to his employment with Amaca), that the 1985 pleural effusion had been caused by exposure to asbestos, and that all exposure to asbestos was causative of ARPD. In these respects, the written submissions cannot be reconciled with the judge's findings that "the only pleural effusions occurring in this case fell within the latency period of the [appellant] not [Amaca]" (that is, between 1978 and December 1979) and, for that reason, despite the accepted proposition that all exposure to asbestos was causative of ARPD, the respondent's employment with Amaca did not cause any part of his ARPD. 52 The respondent's written submissions accepted that Amaca was liable for part of the damage sustained by him. The submissions argued: "Further, the torts committed by the [appellant and Amaca] are successive torts , and not joint or concurrent torts – the [appellant and Amaca] have entirely separate liabilities for entirely separate torts resulting in entirely separate damage and the liability of the [appellant] to pay damages to the [respondent] is entirely separate from that of [Amaca] and vice versa." 53 The written submissions went on to point out that the respondent's exposure to asbestos whilst in the employ of Amaca (from 1 August 1977 to 7 November 1986) effectively ceased on 28 May 1985. The submissions noted that it was not put to the respondent that he was exposed to asbestos after he broke his leg in an accident on 28 May 1985. The respondent was attempting thereby to reduce, as far as possible, the degree of exposure to asbestos he had had while in the employ of Amaca, but did not argue that he was not exposed to asbestos at all while in the employ of Amaca (and that, therefore, no liability should attach to Amaca). The submissions proceeded on this point to say: "If the Tribunal is not so satisfied, any allowance for exposure after 28 May 1985 should be minimal on the basis that the [respondent] only returned to work on light duties for very short periods of time after he broke his leg." Thus, the respondent was arguing that even if the judge found that his employment with Amaca did not effectively cease on 28 May 1985, any allowance for exposure after 28 May 1985 (that is, the degree of responsibility attaching to Amaca) should be minimal (but not zero). 54 Towards the end of the written submissions (under the heading "'Divisibility' of the damages as between the [appellant] and [Amaca]", Mr Cahill dealt expressly with the apportionment of responsibility for the respondent's damages as between the appellant and Amaca. The following was said: "The final matter for consideration is the proper 'apportionment' or division of damages as between the [appellant] and [Amaca]. As discussed earlier in these submissions, this is not [sic] case to which the principles relating to joint and/or concurrent tortfeasors apply. Nonetheless, the [respondent] may only recover as against the [appellant] that which accords with the loss and damage caused by the tortuous [sic] acts and omissions of the [respondent]." 55 When discussing the relative degrees of exposure to asbestos brought about by the appellant and Amaca, the written submissions asserted: "As noted above, earlier exposure is considered to play a greater role in causation than later exposure. It follows that with respect to both of the effusions identified in the medical evidence, but more particularly, the first effusion, the [respondent's] exposure with the [appellant] should be given greater weight in determining the levels of contribution to be assigned to the two periods of exposure. Even if the court is satisfied that the levels of exposure as between the two periods of employment are roughly equal, the appropriate course would be to assign the [appellant] 60% to 70% of the overall liability on the basis that the [respondent's] exposure with the [appellant] occurred first in time." 56 The written submissions argued that there were "solid reasons for attributing significant responsibility for the second effusion to the [respondent's] exposure whilst working for the [appellant], as well." Although the respondent asserted that "significant responsibility" should be attributed for the second effusion to the appellant, he did not submit that complete responsibility should be attributed to the appellant. Hence, the submission that 60 to 70 per cent of the overall liability (for damage caused by ARPD) should be attributed to the appellant (and, by implication, the balance to Amaca). 57 It is necessary to comment upon a table of damages forming part of the written submissions in which the respondent asserted that "41% to 100%" was the range of damages applicable for gratuitous care. 58 The approach adopted in the written submissions was, first, to attempt to quantify that portion of the respondent's overall loss of lung function attributable to his ARPD (as opposed to his obstructive illnesses), secondly, to make submissions as to what damages should flow from that loss of lung function, thirdly, to make submissions as to how those damages should be apportioned between the appellant and Amaca. 59 In undertaking the second stage, the respondent made no distinction between the appellant and Amaca; that was an issue that the respondent addressed when dealing with the third stage. The submission that the range of damages applicable for gratuitous care was "41% to 100%" was made in the course of the second stage. In other words, it was a submission that the judge should assess damages for gratuitous care by reference to that range – without, at that stage, having regard to any apportionment of responsibility for such damage between the appellant and Amaca. That issue was discussed later in the written submissions. 60 I turn now to Mr Cahill's oral closing address. At an early stage in that address, Mr Cahill dealt with an argument raised by Mr Ventura (who appeared for the appellant at the trial) to the effect that the appellant and Amaca were concurrent tortfeasors. Mr Cahill (correctly) disputed this argument. He said: "[I]t was common ground between the parties that this case involved a tort or series of torts committed by the [appellant] resulting in damage and a tort of series of torts separately committed by [Amaca] resulting in different damage." And: "What your Honour of course is dealing with here is successive employment situations which involve entirely different actors in entirely different periods on the basis of Brear contributing to entirely separate damages". 61 Mr Cahill pointed out that the appellant had understood that the decision in Brear v Commonwealth "was the common basis on which the case was being conducted". The "basis" of Brear (to which Mr Cahill was referring) was that the injuries resulting from ARPD were divisible and all exposure to asbestos was causative. 62 Mr Cahill orally submitted that, having regard to Brear, the damage caused to the respondent by Amaca "includes no aggravation of the original damage, what it does is it has cumulative damage on top of that, but it is not an aggravation of the existing damage on the basis of the decision in Brear". He said: "So, your Honour, this case then, consistent with the decision in Brear … is a case which involves successive tortfeasors causing separate identifiable damage. … The [appellant's] primary submission is that this is a case where the damages should be assessed separately." 63 These oral submissions make it perfectly clear that the respondent conceded that Amaca was partly responsible (to a degree to be quantified by the trial judge) for the damage flowing from the respondent's ARPD. 64 Later, in his oral submissions, Mr Cahill pointed out that the first pleural effusion diagnosed (in 1978 or 1979) must have been caused when the respondent was employed with the appellant. He said that his submissions were subject to the observation that "all exposure is causative". He then submitted: "What I am suggesting to your Honour is that your Honour would in those circumstances apportion if not all certainly the vast majority, the lion's share of the first exposure to the [appellant]." Mr Cahill thereby tacitly accepted that it would be open to the judge to attribute part of the consequences flowing from the 1978 or 1979 first effusion to Amaca. 65 Mr Cahill then came to the second pleural effusion. He said: "Insofar as the second effusion is concerned – 1986 – 1986 I think on the evidence, your Honour. Clearly, your Honour, in those circumstances [Amaca's] exposure period includes exposure that falls within the 5 to 10 year window period." He thereby accepted that the second pleural effusion was in the mid-1980's (on the evidence this occurred in 1985 – not 1986). Moreover, having regard to the evidence as to the latency period, and Mr Cahill's acceptance of the proposition that all exposure was causative, he thereby (again) accepted that Amaca would be (at least partly) liable for the consequences flowing from the second effusion so diagnosed. 66 He repeated in fair – and unequivocal - terms the concession that Amaca had to bear some liability for the respondent's damages: "[T]he vast bulk of the second effusion can be attributed to exposure with the [appellant], and that, your Honour, is a starting point, but keeping in mind, your Honour, that we are dealing with questions of common sense and the fact that all exposure is said to be causative in my submission your Honour would make an allowance, and indeed a not insubstantial allowance, insofar as the second effusion is concerned for the contribution that is made by exposure with [Amaca]". 67 Walker J then asked: "What are we saying, 50/50, 25/75, what are we talking?" Mr Cahill replied: "50-50, your Honour, and indeed your Honour might take the view, keeping in mind that the [respondent] gave evidence of not insubstantial exposure when he was handling bags, that it could be 60/40 in favour of the [appellant], but that, in my submission, would be the upper limit of the extent to which your Honour would find that the second effusion is attributable to exposure. After that time, your Honour, insofar as there is deterioration, in my submission, the evidence is that all exposure was causative and to the extent that your Honour has to make an allowance for contribution over time that your Honour would find that the relative figures between the two, keeping in mind that we still have early exposure as exposed to late exposure, a 60/40, 60 to the [appellant] and 40 at best to [Amaca]. And the reason I say that is this, your Honour, [Amaca] appears to have employed the [respondent] for a longer period of time." 68 Mr Cahill's reply gave further explicit reinforcement to his concession and acceptance that a significant proportion of responsibility (albeit not more than 50 or 40 per cent) was to be attributed to Amaca. Denial of procedural fairness in curial proceedings: the law 69 In Stead v State Government Insurance Commission (1986) 161 CLR 141 the High Court set out the principles to be applied when, in curial proceedings, a judge denies a party procedural fairness. The plaintiff in that case claimed damages for personal injury arising out of a motor vehicle accident. One of his claims was that the accident had caused a neurotic condition that had rendered him totally incapacitated for work. A Dr Scanlon had given evidence on behalf of the defendant that there was no connection between the accident and the neurotic condition. In his closing address, the plaintiff's counsel submitted that the trial judge should not accept the doctor's evidence, whereupon the judge said: "I don't accept Dr Scanlon on that. You needn't go on as to that". Counsel did not then pursue the matter. When the trial judge delivered judgment, it became apparent that he had indeed accepted the doctor's evidence on the point in question. The ground of appeal before the High Court was that, by stopping the plaintiff's counsel from addressing on the topic of Dr Scanlon's evidence, the judge had deprived the plaintiff of an opportunity of presenting argument on a vital issue in the case. 70 The High Court said (at 145): "The general principle applicable in the present circumstances was well expressed by the English Court of Appeal … in Jones v National Coal Board [1957] 2 QB 55 at 67 in these terms: 'There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.'" Their Honours said that that general principle was subject to an important qualification, namely, that: "[A]n appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial." 71 The High Court pointed out that where the denial of justice affects the entitlement of a party to make submissions on an issue of fact, it is more difficult for a Court of Appeal to conclude that compliance with the requirements of natural justice could have made no difference. Their Honours said (at 145 to146) that where there had been a denial of natural justice relevant to a finding of fact an appellate court should proceed with caution: "It is no easy task for a Court of Appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial." 72 The High Court observed (at 146): "At the trial the critical question on the issue of causation was whether Dr Scanlon's testimony should have been accepted in preference to the appellant's expert witnesses … It was an issue pre-eminently suitable for determination by the primary judge who had an advantage over the Full Court in seeing and assessing the witnesses. We do not see how the Full Court, denied the important advantage of seeing and assessing the witnesses, could satisfactorily conclude that had the appellant's counsel been given a reasonable opportunity to prevent submissions on the issue, it could have made no possible difference to the result." 73 The High Court said that if the Full Court was to be understood as saying no more than that a new trial would probably make no difference to the result "their Honours failed to apply the correct criterion". The correct principle, as expressed by the High Court (at 147), was: "All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result." 74 Stead has been applied many times at intermediate appellate level. Many of the cases involve trial judges who made findings contrary to the submissions of counsel whom they had earlier stopped. In none of the cases was evidence required to establish that the denial of procedural fairness involved caused an independent miscarriage of justice. Examples of cases where counsel were stopped in the circumstances I have described are Escobar v Spindaleri (1986) 7 NSWLR 51, Wyoming Nursing Home Pty Ltd v Palazzotto (unreported, NSWCA, 11 October 1995) and Peakhurst Inn Pty Ltd v Fox [2004] NSWCA 74. In Peakhurst Inn Pty Ltd v Fox the respondent conceded that the trial judge had denied procedural fairness to the appellant but submitted that no substantial prejudice or miscarriage of justice had occurred. Tobias JA, with whom Sheller JA and Pearlman AJA agreed, said: "It would be pure speculation to assert that his Honour would have come to the same factual conclusion even if he had ignored the … credit issue. I would not be prepared to find that a properly conducted trial could not possibly have produced a different result …" 75 In Pantorno v The Queen (1989) 166 CLR 466 at 473 Mason CJ and Brennan J said: "When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise: see Fairmount Ltd v Environment Secretary [1976] 1 WLR 1255 at 1265-1266". 76 Pantorno was followed in Monaco v Arnedo Pty Ltd (unreported, Full Court, SCt of WA, 6 September 1994). The latter case involved the construction of the phrase "floor area" in the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). The parties conducted the trial on the basis that floor area was to be construed in accordance with a certain formula outside the Act and the evidence led by them was designed to support only their respective contentions in that regard. The Commissioner, who presided over the trial, without informing the parties of his intention to do so, held that the formula was inappropriate and determined the floor area in accordance with a different construction based on the ordinary meaning of the words in the Act. Neither party was given an opportunity to lead new evidence in accordance with the construction held by the Commissioner to be correct, or to recall for cross-examination witnesses who had already testified, so as to clarify the issues that were relevant to the Commissioner's construction. The Court (Malcolm CJ, Kennedy and Ipp JJ) held that the Commissioner should have informed the parties of his decision to decide the case upon a concept fundamentally different to the submissions advanced by the parties, on which they had based their evidence, cross-examination and conduct of the case, generally. The Court considered that, on that basis alone (that is, without hearing evidence), a substantial injustice had occurred, set aside the judgment and ordered a retrial. 77 Wrigley Company Pty Ltd v Hollands (2002) 23 NSWCCR 463 is a case not dissimilar to Monaco v Arnedo Pty Ltd. In the former case counsel representing the employer submitted that an amount of $50 should be awarded to the worker as weekly compensation. The worker's counsel submitted that an amount of $100 per week (at least) should be awarded. The judge awarded nearly $400 per week. He said nothing during argument to indicate that he was considering going outside the submissions by counsel for the parties, nor were reasons given for doing so. Handley JA (with whom Hodgson JA and Ipp AJA agreed) said (at 468): "The judge, in exercising his discretion, was bound, as a matter of law, to take into account the claim advanced by the worker's counsel in argument, and if he decided to disregard that claim and award substantially more, he was bound to give adequate reasons for doing so. He either failed to take this relevant consideration into account or failed to give his reasons for disregarding this submission and on either view he erred in law: see Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 at 56-57 per McHugh JA … The judge also denied procedural fairness to the employer whose counsel had no opportunity to deal in address with the judge's reasons for disregarding the submission of counsel for the worker and awarding so much more than had been sought on her behalf: cf Stead v State Government Insurance Commission ." The award was set aside and the proceedings were remitted to the Compensation Court. 78 These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise. 79 A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves. Amaca's partial responsibility for the respondent's ARPD 80 Walker J found: (a) There had not been a pleural effusion in 1985. (b) There had been at least two pleural effusions between 1978 and December 1979. (c) The respondent's exposure to asbestos while being employed by Amaca was not causative of his ARPD. (d) No apportionment of the overall damage suffered by the respondent in consequence of his ARPD should be made and the appellant was liable for all that damage. 81 Throughout the trial the respondent, on the other hand, had conceded or accepted that: (a) ARPD was a divisible disease. (b) He had been exposed to asbestos while in the employ of Amaca. (c) All exposure to asbestos was causative of ARPD. (d) He had suffered a pleural effusion in 1985 (that is, within the latency period relating to his employment with Amaca) (e) Amaca was at least partly liable for the damages caused by the respondent's ARPD. (f) The trial judge was required to apportion responsibility for the respondent's ARPD as between the appellant and Amaca, with Amaca bearing at least some part of that responsibility. 82 The judge's findings, accordingly, are fundamentally inconsistent with the respondent's concessions and the way in which the trial was run. 83 Mr Joseph SC, who, together with Mr Cahill, appeared for the respondent on appeal, accepted that at the trial the respondent conceded that there had been a pleural effusion in 1985 and that Amaca had negligently exposed the respondent to asbestos and had thereby partly caused the respondent to suffer from ARPD. He also accepted that, as regards the involvement of Amaca, the sole issue for the judge at the trial was the degree to which Amaca was liable. In my opinion, Mr Joseph was entirely correct in this approach. The material to which I have referred is overwhelmingly to this effect. 84 His Honour did not inform the parties of his intention to depart from the way in which the case had so been conducted and to make findings contrary to these concessions that the respondent had made. 85 Mr Joseph submitted that there was evidence that could support the findings the judge made and, moreover, the evidence as to the 1985 pleural effusion was sparse. He submitted that the appellant's argument at trial was that it had not caused the ARPD at all. He argued that the appellant had not focused on whether part of the damage caused by the respondent's ARPD had to be paid by Amaca and, if so, the extent to which Amaca was liable. His basic contention was that the denial of procedural fairness to the appellant had no bearing on the result of the case. He submitted that there had been no miscarriage of justice. 86 In my view, it is not to the point that there was evidence that could support the findings the judge made. The appellant did not conduct its case knowing that the judge contemplated making findings relating to Amaca based on that evidence. This ignorance on the part of the appellant must inevitably have coloured its approach to the cross-examination of witnesses, the adducing of evidence and the making of submissions. Thus, there is a serious danger that the judge's findings were based on evidence that was not properly tested, or not admitted when it might have been. 87 The same applies to the sparseness of the evidence as to the 1985 pleural effusion. Once the respondent had accepted that there was pleural effusion in 1985, there was no need for the appellant to have led any more evidence relating to that issue than it did. 88 As regards the submission that the appellant's argument at trial was directed solely or principally at the issue whether the respondent was suffering from ARPD or some other disease, the written submissions provided by the appellant to the trial judge stated expressly that an issue before the Court was "the proportion of any asbestos-related condition caused by the [appellant] and/or [Amaca]". The appellant's written submissions asserted: "Any entitlement of the [respondent] to damages must be apportioned between the [appellant and Amaca]." And argued: "The evidence of the [appellant] is strongly supportive of the proposition that the exposure with [Amaca] was greater than with the [appellant]." 89 The appellant made other submissions regarding the intensity of the respondent's exposure to asbestos while working for Amaca. Those submissions included the argument that that intensity was greater than that experienced by the respondent during the course of his employment with the appellant. 90 In the circumstances, I do not accept Mr Joseph's submission in this respect. 91 There has been a clear and serious denial of procedural fairness to the appellant. The judge did not only go beyond the case as conducted by the parties. He ignored what in effect were concessions by the respondent and, on material issues, made findings contrary to those concessions. In consequence, there has not been a fair trial. In my view, it is self-evident that this has led to a serious miscarriage of justice; on the facts of this case no evidence is required to establish this conclusion. 92 Accordingly, I would uphold the appeal on this ground alone. The misapplication of Watts v Rake and Purkess v Crittenden 93 As mentioned, ARPD is a restrictive illness. The appellant contended at the trial that the respondent suffered from at least one other restrictive condition that contributed to his lung function, namely obesity. Obesity is unrelated to asbestos exposure. 94 There was a considerable body of evidence to the effect that obesity contributed to the respondent's breathing difficulties. At trial, the respondent did not contend that obesity was not a contributing factor. The argument advanced on his behalf was that, in accordance with the principles in Watts v Rake and Purkess v Crittenden, the appellant bore the evidentiary onus to establish "with some reasonable particularity" the extent to which the obesity contributed to the respondent's disability. The respondent submitted that the appellant did not lead any specific evidence to identify the proportion of the respondent's restrictive lung disorder that should be attributed to the respondent's obesity; therefore the obesity should be ignored. 95 The trial judge dealt with obesity as follows: "Taking all the evidence into consideration on the balance of probabilities I determine that the [appellant] has failed to discharge its evidentiary onus to disentangle the obesity [condition] and to prove either that it is making a material contribution to the [respondent's] restrictive lung condition or with any precision prove the extent of that contribution." In determining the respondent's loss the judge applied what he described as "the usual discount". The discount he in fact applied was 20%. He made no reduction for the respondent's obesity. 96 His Honour's reference to the "evidentiary onus to disentangle the obesity" was based on the remarks of Dixon CJ in Watts v Rake at 160 where the Chief Justice was dealing with the defendant's contentions, firstly, that the plaintiff was predisposed to the conditions that developed as a consequence of the accident, secondly, that part of the plaintiff's condition was traceable to causes other than the accident and, thirdly, that had their been no accident the plaintiff would have been incapacitated by his pre-existing condition. Dixon CJ said that, in regard to the second and third contentions, there was a presumptio hominis in the plaintiff's favour that the defendant should overcome. It was for the defendant to do the disentangling and to exclude the operation of the accident as a contributory cause. 97 Walker J's reference to the need for the appellant to prove, with "precision", the extent of the contribution made by obesity to the respondent's restrictive lung condition appears to have been derived from the following remarks of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (at 168): "It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence … which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects, apart from the result of the defendant's negligence, were likely to be. That being so we think it was proper for him to deal with the case on the basis that the defendant's negligence was the cause of the appellant's permanent disability … " 98 In Purkess v Crittenden the negligence of the defendant caused the plaintiff to suffer injuries resulting in constant severe and disabling pain in the cervical region. The plaintiff had pre-existing degenerative changes in the spine which were most marked in the cervical region. The only evidence of the likely consequences of the pre-existing condition was that the plaintiff "would be in some trouble" when she reached an age within a range of between 50 to 60 years and that she was "of such an age when she would be likely to expect trouble from her degenerative spine." There was, thus, no evidence before the trial judge that explained in any detail –at all - what impact the pre-existing injury, in any event, would have had on the plaintiff's cervical spine. The word "trouble", being the sole description of the consequences of the pre-existing condition, was so vague as to be meaningless. 99 Barwick CJ, Kitto and Taylor JJ pointed out that the evidence did not define what "trouble" might have been expected and "not unreasonably" the trial judge assessed damages on the basis that her then present condition and resulting permanent disability were the result of the accident. Windeyer J (at 171) observed that there was no evidence to sustain the proposition that part of the chronic pain and restricted movement from which the plaintiff now suffered could be attributed to other factors. 100 The word "precision" used by Barwick CJ, Kitto and Taylor JJ must be seen in the context described. In my view, it was intended by that word to contrast the evidence required to discharge the evidentiary onus on a defendant with the hopelessly inadequate evidence actually adduced; not to connote that more was required than "evidence sufficiently precise and definite to displace the inference that the disabling pain from which the plaintiff suffered after the accident was caused by the hurt she then received" (being the words used by Windeyer J at 171). 101 Walker J made no reference to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 when discussing the onus of proof that a defendant has to discharge in circumstances of the kind the subject of Watts v Rake and Purkess v Crittenden. 102 In Malec Deane, Gaudron and McHugh JJ said at 643: "[I]n respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. " Brennan and Dawson JJ stated at 639-640: "The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the [plaintiff] had not been working for some time before the trial and an evaluation of the [plaintiff's] earning capacity which was destroyed in consequence of the [defendant's] negligence. The fact that the [plaintiff] did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the [plaintiff] had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the [plaintiff] has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past." Their Honours said at 640: "In assessing the [plaintiff's] earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation." 103 Therefore, according to Malec: (a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. (b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred. (c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring. (d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities. 104 What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the "disentangling" evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition. 105 Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of "disentanglement" discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities. 106 Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition. 107 Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation. 108 As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise. 109 Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p511). 110 I have noted that in the present case there was considerable evidence to the effect that obesity contributed to the respondent's breathing difficulties and was likely to continue to do so and the respondent did not seriously contend to the contrary. There was an obvious and real chance that the obesity would have reduced the appellant's enjoyment of life or ability to work in any event. That chance had to be assessed and allowed for in the calculation of future economic and non-economic loss. Without such an allowance, the appellant would be held responsible for loss that was not causally related to the ARPD brought about by it (cf Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 498-499. 111 The trial judge made no attempt to assess the chance in question. His failure to do so was a significant error of law. To paraphrase Mason P in Winston v Roach [2003] NSWCA 310 (at 74), nothing in the judgment of the trial judge reveals that his Honour endeavoured to weigh how much of the respondent's woes would have continued and/or increased had it not been for the appellant's negligence. There was ample evidence to the effect that they would have done so to a significant degree, even allowing for the evidentiary onus resting on the appellant. 112 In addition, as I have pointed out, his Honour stated that there was an onus on the appellant to prove that obesity made a material contribution to the respondent's restrictive lung condition. There is nothing in Watts v Rake and Purkess v Crittenden that imposes such an onus on a defendant. This was another significant error of law. 113 In my opinion, the appeal should be upheld on the ground of these errors, as well. 114 Basten JA has concluded that the argument based on the principles in Malec should not be upheld as no reference was made to this case in this context. I need to address this proposition, with which I respectfully disagree. 115 The notice of appeal expressly asserted that the judge erred in misapplying Watts v Rake and Purkess v Crittenden. In his argument on appeal in regard to this ground, Mr Watson SC, who, together with Mr Ventura, appeared for the appellant, submitted that his Honour did not properly approach "the extent to which the disability was caused by [the] asbestos-related condition". Mr Watson argued on various bases that Walker J erred in finding that no part of the respondent's disability was to be attributed to the obesity by reason of the difficulties of disentanglement. One of those bases was that the judge applied Watts v Rake and Purkess v Crittenden in the wrong way. There was considerable discussion as to the meaning of the word "precision" as it was used in Purkess v Crittenden (at 168). Mr Watson also submitted that his Honour erred in applying an incorrect approach to the onus of proof on this issue. 116 The application of Malec flows directly from the acceptance of Mr Watson's submissions and is raised directly by the ground of appeal relating to Watts v Rake and Purkess v Crittenden Watts v Rake. The failure to take into account the concession as to the divisibility of the disease in the context of "disentanglement" 117 In the respondent's written submissions provided to the trial judge in the course of closing addresses, the following was said on the respondent's behalf concerning the obstructive illnesses: "In this regard, the available evidence clearly indicates that the [respondent] suffers from obstructive airways disease. But, the [respondent] does not seek to obtain compensation with respect to that condition. Further, the [respondent] has conceded from the outset that, on the preponderance of the evidence, the [respondent's] obstructive airways disease makes a substantial contribution to his pulmonary dysfunction and consequent disability. And the [respondent] invites the Tribunal to accept the evidence of Dr Johnson in this regard, namely, that: · The overall loss of lung function is about 60%; · The best guesstimate of the obstructive element is about 35% of that 60%; and · The best "guesstimate" of the restrictive element is 25% of that 60% … If the Tribunal accepts this approach, 25/60 or about 41% of the [respondent's] overall pulmonary dysfunction is, prima facie, attributable to the restrictive component of the [respondent's] lung condition." 118 These submissions constitute clear concessions by the respondent that he was suffering from an obstructive airways disease (asthma) not caused by asbestos. Mr Joseph submitted, however, that, while the respondent may have "conceded from the outset" that his asthma made a substantial contribution to his pulmonary dysfunction and consequent disability, he did not concede that, in accordance with Watts v Rake and Purkess v Crittenden, the evidence established the requisite degree of "disentanglement". As I understood Mr Joseph's argument, the respondent's attitude at trial was that, were disentanglement to be proved, then about 41% of his overall pulmonary dysfunction was prima facie attributable to the restrictive component of the his lung condition and the balance to the asthma. 119 In my view, however, the respondent's argument quoted in [102] above is an unequivocal assertion that, on the approach he contended should be accepted, about 41% of his overall pulmonary dysfunction was prima facie attributable to the restrictive component of his lung condition. That assertion, in my view, was in effect a clear concession by the respondent that disentanglement in accordance with Watts v Rake and Purkess v Crittenden was capable of being effected. 120 Walker J observed: The point is that absent evidence as to how a disentanglement might properly occur I am unable to carry out that task." And concluded: "I take the view that the requisite disentanglement has not been proved by the [appellant] and I must find on the state of the evidence that the [respondent] is entitled to the full loss." 121 These findings are in direct conflict with the respondent's concession that, on his approach, about 41% of his overall pulmonary dysfunction was prima facie attributable to his restrictive disease. 122 Further, the respondent's concession that, on the approach he advanced, about 41% of his disability was prima facie attributable to his restrictive illness, and his assertion that he was not seeking to obtain compensation "with respect to" his obstructive disease, put into context his concession that ARPD is a divisible disease. Walker J made no mention of this concession in his reasons and he ignored it in finding that disentanglement had not been proved. The concession was a materially relevant circumstance to be taken into account and in my view the judge committed an error in point of law in failing to do so. 123 His Honour made a finding contrary to the respondent's concessions as to disentanglement and the divisible nature of the disease without giving the appellant due notice that he might do so. That omission was a significant denial of procedural fairness. In my opinion, it is self-evident that had the concessions not been made the appellant would have conducted its case differently. The essential point is that because of his Honour's omission to give the appellant due notice of the possibility that he might disregard the concessions, the appellant has not had a fair trial and a miscarriage of justice has ensued. I would uphold the ground of appeal relating to these issues. The "synergistic" finding relating to the "confounders" 124 Another aspect on which the appellant relied at trial to reduce the damages for which the respondent contended was the so-called "confounders". The confounders were obstructive airways diseases, such as asthma, that are not asbestos-related. 125 Walker J noted that the respondent had conceded that the obstructive airways disease constituted "a factor which has made a contribution to the [respondent's] mixed obstructive and restrictive lung defect". He said, however, that the respondent did not concede that the appellant had discharged its onus "of proving disentanglement". 126 The judge discussed what he described as the synergistic interaction between the asbestos-related restrictive conditions and the obstructive airways diseases. He said: "This Tribunal is of course familiar with the synergistic interaction between tobacco smoke and asbestos fibres and asbestos-related cancer cases. The point of this submission is that if the two factors are working together to produce an enhanced result then the relative contributions are irrelevant because the combination is indivisible." 127 He later continued with the topic of synergy and said: "It is evident from this chain of causation that the [respondent's] symptoms are suggestive of the obstructive airways disease commencing shortly after the radiology opines the pleural effusions were clearing or about the time the pleural plaques and pleural thickening was identified. It beggars belief that chronic obstructive airways disease would coincidentally appear in the lungs of a man who had suffered no such previous disorder at the very time he experiences restrictions in his lungs. Common sense suggests to me that there must be some relationship between the two. Medical science does not accept that asbestos fibres cause obstructive airways disease but the medical evidence before this Court acknowledges that it is possible that a synergistic relationship could nevertheless exist between the two conditions. Common sense also suggests that the fact that the chronic airways disease has not resolved and continues to deteriorate despite years of treatment could be related to the influence of a continuing restrictive condition. Taking all the evidence into consideration on the balance of probabilities I determine that the plaintiff's asbestos-related restrictive lung condition is working synergistically with his obstructive airways disease. Having reached that conclusion I am left with synergistically acting conditions that cannot logically be disentangled." 128 His Honour referred to the submission made by Mr Ventura that he should do the best he could to assess the contribution made by the obstructive airways disease and said: "That is an approach that would normally appeal to me, even though on the state of the evidence the assessment of the relative contribution of the two elements is very much a stab in the dark. However, the High Court in Purkess v Crittenden and in Shorey v PT Pty Ltd (2003) ATR 81-701 makes it clear that the task required is one of disentanglement with some reasonable measure of precision not just a conclusion that one of the factors might not be related to the [respondent's] tort. Such a process of necessity involves the Court prescribing a percentage contribution that the obstructive element is making to the total loss of pulmonary function as it works together with the restrictive element to produce the total loss. The problem with synergistic relationships, as this Tribunal has found in the interaction between tobacco smoke and asbestos fibre is that it is the combination of the two elements that produces the total loss not the relative contributions they individually make to pulmonary dysfunction . …" [my emphasis]. 129 Mr Watson submitted to this Court, firstly, that the existence of synergistic interaction between tobacco smoke and asbestos fibres and asbestos-related cancer cases did not establish that the same synergistic reaction occurred between ARPD and asthma. He submitted that there was no evidence to support the judge's finding that there had been a like or analogous synergistic effect between the respondent's restrictive and obstructive illnesses. 130 Mr Watson argued, secondly, that, because the respondent had conceded that his ARPD was a divisible disease, the judge should not have found that "the [respondent's] asbestos-related restrictive lung condition is working synergistically with his obstructive airways disease". 131 It is necessary to determine what his Honour meant by "working synergistically". The clue to the meaning he attributed to this phrase, which underlies his finding, is to be found from the example he gave of "the synergistic interaction between tobacco smoke and asbestos fibres and asbestos-related cancer cases". He referred to the "submission … that if the two factors are working together to produce an enhanced result then the relative contributions are irrelevant because the combination is indivisible." He then accepted that such an "enhanced result" (with like consequences) applied to the combined operation of restrictive and obstructive illnesses. His Honour said that such an interaction (between restrictive and obstructive illnesses) produces a "combination [that] is indivisible". He observed that the "relative contributions [to this combination] are irrelevant" because of the indivisible nature of the disease that then results. He made his meaning perfectly clear when, for the second time, he referred to the interaction between tobacco smoke and asbestos fibre and said: "The problem with synergistic relationships, as this Tribunal has found in the interaction between tobacco smoke and asbestos fibre is that it is the combination of the two elements that produces the total loss not the relative contributions they individually make to pulmonary dysfunction." 132 Thus, his Honour regarded the synergistic relationship between obstructive and restrictive illnesses to be of the same character as the synergistic relationship between tobacco smoke and asbestos fibre. His finding that there was a "synergistic" effect in the combination of obstructive and restrictive illnesses attributed a particular meaning to "synergy". The synergy to which he was referring was a process involving the two illnesses "working together to produce an enhanced result". The enhanced result is an indivisible disease; indivisible in the sense that it is not possible to determine the relative contributions made to it by the two illnesses. 133 Basten JA has referred to evidence given by Dr Johnson and Dr Gardiner when each agreed with the proposition that restrictive and obstructive illnesses can combine "synergistically". Their testimony, however, was merely to the effect that, if a person suffered from a restrictive illness, the overall disability would be greater if that person also suffered from a restrictive illness. Their agreement to the "synergistic" working of the two illnesses was only to this limited extent. 134 The testimony of Dr Johnson and Dr Gardiner was elicited by the appellant for the purpose of establishing that, in assessing the respondent's overall disability, due allowance had to be made for his obstructive (as well as his restrictive) illnesses. 135 Dr Johnson agreed with the proposition that restrictive and obstructive illnesses, when acting together, react "to produce an overall greater defect than one might expect from one or other on their own". This agreement means no more than that restrictive and obstructive illnesses, when acting together, produce a greater disability than would be the disability caused by one or other of the illnesses on its own. Dr Johnson did not thereby agree, as the judge found, that: "The combination of the two elements produces the total loss, not the relative contributions they individually make to pulmonary dysfunction." 136 Dr Gardiner agreed that restrictive and obstructive defects might operate together. That, I would comment, merely means that, together, they would have a disabling effect (which is common sense and was common ground). Dr Gardiner's agreement to this proposition does not mean that he agreed that restrictive and obstructive illnesses, acting together, produce an enhanced disability (that is, greater than the sum of its parts) in respect of which the contributions made by the two illnesses cannot be measured. 137 Dr Gardiner also agreed that he would not "rule the restrictive defect out" of his consideration of the respondent's "overall level of disability". He agreed that the restrictive defects "may well act synergistically with a more significant obstructive defect". This again, was not an agreement to the kind of synergistic effect found by the judge. It was merely an agreement to the proposition that restrictive illnesses may act together with obstructive illnesses to produce a greater level of disability than would have been the case had there been only a restrictive and not an obstructive illness as well. 138 In my view, neither doctor testified that the two illnesses had the synergistic effect as found by the judge and there was no evidence to support this finding. 139 Further, in my view, his Honour erred in relying on "the interaction between tobacco smoke and asbestos fibre" when there was no evidence that it was in any way analogous to the interaction between ARPD and asthma. He also erred in departing, without due notice to the appellant, from the respondent's concession that ARPD was a divisible disease. In my opinion, by that concession the respondent accepted that there was no synergistic effect between restrictive and obstructive diseases leading to an indivisible illness. This, for the reasons previously explained, was a significant denial of procedural fairness. I would uphold the grounds of appeal relating to the judge's findings that a synergistic effect occurred. The credibility findings 140 Mr Watson sought to bring his Honour's credibility findings under the umbrella of an error of law but, in my view, that cannot be done. This ground fails. The constitution of the tribunal in a re-hearing 141 I have read Mason P's judgment on this issue and agree with it. 142 I have also read what Basten JA has written at [239]. It is not an extraordinary occurrence for this Court to order that the case be heard afresh by a different judge. Mason P has referred to examples of cases where this has occurred. Where a judge has made credibility findings and has indicated a preference for a particular witness or witnesses or has failed to accord a party procedural fairness, the proper administration of justice may require the making of such an order. The need to do so will then arise not because of any established or presumed bias on the part of the judge but simply because of the public interest in providing the appearance of impartial justice. Often, the Court will make such an order of its own motion without hearing the parties. This practice recognises that the identity of the judicial officer who is to hear a particular case should not be regarded as a matter that could benefit or prejudice a particular party. It is not a requirement of procedural fairness that the parties be informed that the remitted trial be heard before a new judge. Moreover, it would often be invidious for a party to seek such an order. Conclusion 143 I would uphold the appeal and set aside the judgment and verdict granted by Walker J. I would order that the case be remitted to the Dust Diseases Tribunal to be heard afresh by a different judge. I would order the respondent to pay the costs of the appeal. The judge hearing the new trial should determine the costs of the trial before Walker J. As regards the costs of the appeal, the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. 144 BASTEN JA: This is an appeal from a judgment of the Dust Diseases Tribunal delivered on 14 July 2004. The Tribunal awarded damages in favour of the plaintiff in an amount of $314,594. In accordance with s 11A of the Dust Diseases Tribunal Act 1989 (NSW) ("the Act") the award was identified as "provisional damages", so ordered on the basis that the injured person might in the future develop another dust-related condition. 145 Challenge was made both to the finding of the Tribunal as to the liability of the Appellant and in relation to the assessment of damages. In substance, the challenges were formulated in terms of two proposed errors of law, namely, first, that the Tribunal had denied the Appellant procedural fairness and, secondly, that there was no evidence to support particular findings made by the Tribunal. The appeal proceeded on the assumption that, for the purposes of s 32(1), it was sufficient to identify an error of law which infected the decision of the Tribunal. It is convenient to return to these assumptions briefly in due course. Grounds of appeal 146 The grounds of appeal were amended significantly in the course of the hearing, in order to identify more precisely the nature of the challenge sought to be mounted by the Appellant. Two grounds were ultimately relied on in relation to the question of liability, although the latter had several limbs. It is convenient to set them out, as amended, in full, but renumbering consecutively to avoid reference to the abandoned grounds. "Grounds - liability 1. The trial judge erred in law by denying Seltsam procedural fairness – in making findings adverse to the credibility of Dr Gardiner. 2. The trial judge erred in law in the way in which Seltsam was fixed with liability: (a) by holding Seltsam to be liable for the whole of the damages, despite evidence of a subsequent tort contributing to the same damage, and despite finding that the nature of the injury suffered by Mr Gahleb was divisible, by: (i) denying procedural fairness by failing to apply a concession to this effect made by Mr Gahleb; (ii) by finding, in the absence of evidence, that the second pleural effusion occurred in 1979; (iii) by denying procedural fairness by determining the case differently to the way it was conducted by the parties in finding no pleural effusion occurred in 1985; (b) by misapplying Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164; (c) by finding that chronic obstructive airways disease (ie asthma and bronchitis) can combine in a 'synergistic relationship' with restrictive airways diseases, by: (i) denying procedural fairness by finding a 'synergistic relationship' existed contrary to concession made by Mr Gahleb; (ii) making the finding in the absence of evidence; (d) by misapplying the principles application to determining liability in cases of successive torts (as opposed to concurrent or joint torts). Damages 3. The trial judge erred in law in assessing damages: (a) by failing to assess damages in accordance with that injury (if any) for which Seltsam could be found liable, by: (i) denying procedural fairness by failing to apply a concession made by Mr Ghaleb to the effect that Seltsam is not liable for damage caused by Amaca; (ii) by finding, in the absence of evidence, that the second pleural effusion occurred in 1979; (iii) by denying procedural fairness by determining the case differently to the way it was conducted by the parties in finding no pleural effusion occurred in 1985; (iv) by denying procedural fairness by failing to apply a concession made by Mr Ghaleb that Seltsam is not liable for damages for any disability due to obstructive airways disease. (b) by misapplying Watts v Rake and Purkess v Crittenden ; (c) by misapplying the principles applicable in assessing damages in cases of successive torts (as opposed to concurrent or joint torts); (d) by finding that chronic obstructive airways disease (ie asthma and bronchitis) can combine in a " synergistic relationship " with restrictive airways disease, by: (i) denying procedural fairness by finding a " synergistic relationship " existed contrary to concession made by Mr Ghaleb; (ii) making the finding in the absence of evidence." Whilst ground 3 is a separate challenge made to the assessment of damages, particularised in terms which adopt the substance (and for the most part, the form) of the particulars set out above in ground 2, ground 2(a) is also directed to the extent, rather than the existence of, liability. As will be seen below, the same can be said of grounds 2(b), which mirrors 3(b), 2(c) which mirrors 3(d) and 2(d) which, though it refers to liability rather than damages, is addressed to the same point as 3(c). 147 The substance of these grounds may conveniently be dealt with under the following headings and in the following order: (1) challenge to credibility of Dr Gardiner (ground 1); (2) no evidence for factual findings – · in relation to a (or the) second pleural effusion in 1979 (grounds 2(a)(ii)) and 3(a)(ii); · that there can be a synergistic relationship between obstructive and restrictive diseases (grounds 2(c)(ii) and 3(d)(ii)); (3) misapplying legal principles – · identified in Watts and in Purkess (grounds 2(b) and 3(b)), and · with respect to successive torts (grounds 2(d) and 3(c)); (4) breach of procedural fairness with respect to "concessions" - · in relation to the liability of Amaca Pty Ltd (grounds 2(a)(i) and (iii) and possibly 3(a)(i), (iii) and (iv)); · in finding a synergistic relationship (grounds 2(c)(i) and 3(d)(i)). Nature of appeal 148 The appeal was brought pursuant to s 32(1) of the Act, which provides: "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." 149 The language of this provision, which is by no means unique in this State, is awkward. In form, the subordinate (relative) clause qualifies the subject, namely a "party". Differing constructions are available, even putting to one side the second of the alternative qualifications. On one reading, the subordinate clause has two elements. The first is that a party must be someone who is "dissatisfied … in point of law"; the second element is the subject matter of the dissatisfaction, namely a "decision of the Tribunal". The other reading is that the phrase "in point of law" identifies a relevant characteristic of the "decision of the Tribunal". Although either reading may be reasonably open, the former is preferable, because its application is less problematic. The latter reading does not identify the nature of any required dissatisfaction. Further, tribunals do not usually make separate decisions on points of law; rather, they identify legal principles and apply those principles to the facts, in order to reach an operative decision. 150 Adopting the former suggested construction, the next question is to identify the intended scope of the dissatisfaction, described as being "in point of law". In particular, the question is whether this formulation differs in a material respect from the grant of a right to appeal "on a question of law" (see, eg, Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) and Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 54); the conferral of power to review a decision on the ground that it "involved an error of law" (Migration Act 1958 (Cth), s 476(1)(c) – now repealed), or a right of appeal which "involves a question of law" (see Income Tax Assessment Act 1936-1969 (Cth), s 196, discussed below). These questions cannot be answered in the abstract, because other provisions may give a particular flavour in one statutory context which does not arise in another. In Attorney-General (NSW) v X (2000) 49 NSWLR 653 at [124] Spigelman CJ said that the different formulations might be significant: "The expression 'question' or 'point' of law is wider than 'error of law'." In that respect, his Honour expressly departed from a proposition in Bruce v Cole (1998) 45 NSWLR 163 at 189D which appeared to treat the different statutory formulae as equivalent, subject to other indications in the statutory context. In Hill v Green (1999) 48 NSWLR 161 at [233], Fitzgerald JA (with whom Beazley JA agreed) suggested that the phrase "error of law", should generally be given its common law meaning, which his Honour appears to have treated as providing greater scope for appellate interference than the statutory formula of a person aggrieved "in point of law" as construed in this Court in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; see also Sinha v Health Care Complaints [Commission] [2001] NSWCA 206 at [25]. However, subject to other aspects of the statutory context, it is doubtful whether these various formulations are intended to differ in their effect: Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, 265-266 (Mahoney JA); 281-282 (McHugh JA); see also 253-254 (Kirby P, dissenting). 151 In Azzopardi, Glass JA noted, at 156G: "Errors may be committed by a Workers' Compensation judge at any 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 be 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 failed to satisfy a statutory test … 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… . 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." 152 In Vetter v Lake Macquarie City Council (2001) 202 CLR 439, the High Court considered the operation of s 32(1) of the Compensation Court Act 1984 (NSW) which, in terms similar to the present provision, provided for an appeal by an party aggrieved "in point of law". The High Court considered whether this Court had dealt appropriately with an appeal from the Compensation Court, which in turn had held that a worker had suffered injury on a journey between her workplace and her home. At the heart of the dispute was the fact that she had, on the night in question, not proceeded straight home but, as was her custom on a fortnightly basis, visited her grandmother on the way. The High Court accepted that, whatever route was taken, to succeed she must establish that "the journey still has a character of a journey between his or her place of work and place abode, and there is no material increase in risk during or after any deviation or interruption": at [29]. The test so identified reflected s 10(2) of the Workers Compensation Act 1987 (NSW). The joint judgment continued at [31]: "A journey may sometimes aptly be described in more than one way. This is perhaps such a case, but because the trial judge's description or characterisation was one reasonably available description, the majority in the Court of Appeal erred in insisting on the different description that they did." 153 Their Honours appear to have accepted different formulations of the test applicable in such circumstances. At [24] their Honours adopted the language of Jordan CJ in Australian Gaslight Co v Valuer General (1940) 40 SR(NSW) 126 at 138 to the following effect: "[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law." That passage appears to have been treated as to similar effect as the terminology adopted by Mason JA (when on this Court) in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557, quoted in Vetter at [26]: "[I]t may happen that the Tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law. The principle has been enunciated that, if different conclusions are reasonably open, the determination of which is the correct conclusion is a question of fact." 154 Although the joint judgment in Vetter had also accepted the criterion adopted by Handley JA in this Court, taken from Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 36 that an appellant must establish that the "true and only reasonable" classification of the facts fell outside the Compensation Act, in order to establish an error in point of law, Kirby J regarded that test as "a somewhat sterile criterion": at [75]. His Honour preferred to ask whether the primary judge "could not unreasonably have come to" the conclusion which he did. That appears to have been seen as consistent with the approach adopted by Jordan CJ in Australian Gaslight, quoted above from the joint judgment. In the result his Honour's conclusion did not depart from that of the majority in relation to the applicable test. 155 Two comments may be made in relation to the reasoning in Vetter. First, the focus of Vetter was not upon the terms of the statutory provision granting a right of appeal, but on the question whether the facts as found at trial necessarily fell outside the statutory description of a "journey". However, importantly for present purposes, there appears to have been a general assumption that, to succeed, the appellant (in this Court) needed to demonstrate that the judgment at first instance had been attended by an error of law, being terminology expressly adopted by Kirby J at [73]. 156 The same approach was adopted in Road Traffic Authority of NSW v Perry (2001) 52 NSWLR 222 by Handley JA (Powell JA agreeing and Hodgson JA agreeing "generally"). That case involved an appeal pursuant to s 57 of the Land and Environment Court Act 1979 (NSW) "on a question of law": [57] and [63]. 157 In these circumstances, it becomes necessary to identify with some care the nature of the error sought to be relied on by the Appellant, with particular attention to the different stages at which the error is said to have occurred, in accordance with the approach identified in Azzopardi. 158 The relevant "decision of the Tribunal" in the present appeal may be identified as the judgment delivered and orders made on 14 July 2004. The Appellant, being the party who is dissatisfied with the decision, must identify, relevantly for present purposes, a legal error on the part of the Tribunal which affected the final judgment and orders: cf Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [4]-[8] (Gaudron, McHugh and Hayne JJ); Solution 6 Holdings Ltd v Industrial Relations Commission of NSW & Ors (2004) 60 NSWLR 558 at [109]-[119] (Spigelman CJ, Mason P and Handley JA agreeing) and Grygiel v Baine & Ors [2005] NSWCA 218 at [29]. Where the Tribunal may have made findings in the absence of any evidence, it was accepted by the parties that there would have been an error of law and that an appeal would lie. However, neither a challenge to the credibility of a witness, nor an assertion of misapplication of legal principles, obviously falls within that category. 159 As a matter of statutory construction, the question whether procedural unfairness falls within s 32(1) is less clear. To be "dissatisfied with a decision … in point of law" does not clearly achieve that result, because the dissatisfaction relates to a procedure adopted, as distinct from a matter decided. That distinction is emphasised by the second limb of the subsection which separately and expressly includes dissatisfaction with the decision of the Tribunal "on a question as to the admission or rejection of evidence", another question affecting procedure, and only indirectly, the final decision. Furthermore, if the reference in s 13(5) to s 48 of the Supreme Court Act, which in terms merely assigns to this Court proceedings which might be brought pursuant to s 69 for orders in the nature of prerogative relief, were treated as separately providing for such relief, the inference at s 32(1) might be more narrowly confined would be strengthened. On the other hand, that distinction is less clearly drawn than in, for example, ss 38 and 42 respectively of the Commercial Arbitration Act 1984 (NSW). In that Act, s 38 deals with the right of appeal "on any question of law arising out of an award" whereas s 42 deals with "misconduct" on the part of the arbitrator. Misconduct is expressly defined to include a breach of the rules of natural justice. Thus it would appear that the answer to this question must be determined by reference to the specific statute under which the ground arises. In relation to the Workers Compensation Court, the assumption that the denial of natural justice would amount to an error of law was accepted as unchallenged in Escobar v Spindleri (1986) 7 NSWLR 51 at 57C (Kirby P), at 59A-B (Glass JA) and 60G (Samuels JA); see also Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186P (Handley JA). As the point was not raised by the parties, it may be accepted for the purposes of the appeal that procedural unfairness will constitute a ground of appeal under s 32 of the Act. 160 Nevertheless, there is a risk that, once extracted from its primary function as a ground of judicial review, its origin and meaning will become blurred. Importantly, identifying unfairness should involve identifying a loss of opportunity to deal with a material issue which tends against the interests of the complainant. That is a factual inquiry in relation to procedural steps adopted by the Tribunal. This complaint must demonstrate that unfairness, in a practical sense, has occurred in the particular circumstances of the case. This is quite different from asking whether, if the opportunity denied had in fact been provided, the result would have been different. If unfairness in the sense defined is established, it will be sufficient that the opportunity to present other evidence or argument could possible have affected the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ), applied in Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4] (Gleeson CJ), [80] (Gaudron and Gummow JJ), [104] (McHugh J), [130]-[133] (Kirby J) and [211] (Callinan J), as noted by Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) at 457, this low hurdle can be justified, "since determining whether observance of procedural fairness would have made a difference will usually require the Court to assess the merits of the decision". It would thus be entering into the exercise of fact-finding, a function which is vested in the relevant Tribunal. There is clearly a difference between determining that further submissions would not have made a difference to the outcome and determining that there has been no loss of opportunity, because the issue on which further submissions might have been made was not in dispute, or was decided in favour of the complainant. 161 Where the error is identified by reference to a step in the procedure which was taken (or not taken) by the Tribunal, two aspects of its statutory foundation should be noted. First, the Tribunal is not an administrative body but is established as a court of record, pursuant to s 4 of the Act. Secondly, s 13 makes provision in relation to proceedings before the Tribunal including, in sub-s (5): "(5) A decision of the Tribunal is not liable: (a) to be vitiated because of any informality or want of form, or (b) to be questioned or appealed against in any court, except as provided by s 32 of this Act or s 48 of the Supreme Court Act 1970." Whether s 48 of the Supreme Court Act provides any alternative source of jurisdiction to challenge a decision of the Tribunal is unclear: nor was reliance placed upon it in the present case. In Frost v Amaca Pty Ltd (2004) 61 NSWLR 159 this Court held that the Tribunal had no power to state a case. The relevance of s 48 of the Supreme Court Act was not addressed and remains obscure. It is sufficient for present purposes to limit consideration to the source of jurisdiction relied on by the Appellant, namely s 32 of the Act. 162 Another question raised in Vetter was whether the powers of this Court, once its jurisdiction has been properly invoked by demonstrating an error of law in the judgment below, extended to allow the Court to address factual issues dealt with by the trial judge. 163 As noted above, the terms of s 32 of the Act are substantially similar to s 32 of the Compensation Court Act 1984 (NSW), considered in Vetter. In the joint judgment of Gleeson CJ, Gummow and Callinan JJ, at [14] their Honours stated: "It is unnecessary to decide in this case, whether once an error on a point of law is 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 and the case will need to be remitted to the Compensation Court for complete determination." The Court drew attention to the approach adopted by Walsh J in relation to the then applicable s 196 of the Income Tax Assessment Act 1936 (Cth) in relation to the power of the Court to review a decision of the Taxation Board of Review: see Krew v Commissioner of Taxation (1971) 45 ALJR 324 at 325-326. The question raised by the tax cases may, however, involve different considerations. Thus, s 196(1) of the Income Tax Assessment Act 1936-1969 (Cth) provided: "196(1) The Commissioner or taxpayer may appeal to the High Court from any decision of the Board which involves a question of law." Further, s 196(3) stated that the decision of the High Court on such appeal "shall be final and conclusive". Section 199 provided as follows: "199(1) The Court hearing the appeal may make such order as it thinks fit, and may by such order confirm, reduce, increase or vary the assessment. … " The statutory scheme there in issue must, accordingly, be read in its own particular statutory context. 164 Kirby J, in Vetter, did not consider that the question of the Court's jurisdiction could be avoided: at [63]. His Honour referred to the fact that the parties had adopted "the conventional view", at [66]: "According to that view, not only is the jurisdiction of the Court of Appeal engaged only by a grievance in point of law (or in relation to the admission or rejection of evidence), its powers then arising are also controlled by such preconditions." At [69] his Honour accepted, in the light of the legislative history, that this view was correct. His Honour continued: "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." 165 Although the Dust Diseases Tribunal Act does not share the legislative history of the Compensation Court Act, the principle enunciated in the last paragraph is applicable to the Act presently under consideration. On that approach (which appears to have been accepted as correct by the parties to the present appeal) as Kirby J noted at [71]: "Given that the jurisdiction and powers of [the Court of Appeal] were limited to the correction, relevantly, of an error of law, the worker submitted that the majority of the Court of Appeal itself fell into error by an overexpansive view of what constituted an error of law in fact-finding on the part of the primary judge." 166 The approach of Kirby J in Vetter was followed by this Court in Perry at [63], Handley JA referring also to Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673 at [55]-[56]. 167 There is a further issue in relation to the nature of this appeal. Ipp JA requires that the Appellant establish that it has suffered "some substantial wrong or miscarriage", within the meaning of Part 51, r 23 of the Supreme Court Rules. There was no discussion on this appeal as to whether that rule applied in relation to an appeal under s 32 of the Act. On one view, the Appellant in the present proceedings is not seeking an order for "a new trial" but is rather seeking to have the Court "remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of" the Court, pursuant to s 32(2). The Act uses the term "trial" in relation to a proceeding before the Tribunal only in s 43(3)(c). (See also as to the application of this rule in relation to a retrial in the District Court, the doubts expressed by Kirby and Callinan JJ in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [53].) 168 The terms of Part 51, r 23 may do no more than reflect the common law principle discussed by Dixon CJ in Balenzuela v De Gail (1958-59) 101 CLR 226 at 232-235; see also Conway v The Queen (2002) 209 CLR 203 at [7], [8] and [27]-[28] (Gaudron ACJ, McHugh, Hayne and Callinan JJ) and Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [7] (Gaudron, McHugh and Hayne JJ). Accepting that either the rule or the common law principle imposes a constraint on the circumstances in which the Appellant can obtain an order for remittal in this Court, it remains necessary that the Appellant identify a jurisdictional basis for intervention by the Court, in this case by identifying an error in point of law, or dissatisfaction with the admission or rejection of evidence. Proceedings before Tribunal 169 Before the Tribunal, the Appellant had resisted the conclusion that it was liable for any asbestos-related disease suffered by the Respondent. However, it did not deny that it owed a duty of care to the Respondent during the course of his employment with the company, nor did it deny that he was exposed to the possible inhalation of asbestos particles during that employment. Its case was rather that his current symptoms, mainly breathlessness, derived substantially from his asthma and other aspects of his physical state, including obesity, not attributable to any breach of duty by his employer. These other explanations for his symptoms had, the Appellant asserted, been clearly demonstrated to exist, with the result that a "disentangling" process was required so that, unless the Respondent was able to demonstrate on the balance of probabilities that his condition was caused by ARPD, he must fail. This aspect of the case gave rise to the alleged misapplication of Watts v Rake and Purkess v Crittenden, both in relation to liability and, presumably on the basis that liability for at least part of his condition could properly be attributed to the Appellant, also in relation to the assessment of damages. 170 It was common ground that the Tribunal properly summarised in its reasons the principle derived from those cases: the challenge was, rather, to the application of those principles. It is therefore necessary to consider whether, despite a correct statement of principle, it could be demonstrated that the Tribunal applied a different and wrong principle and, if so, whether that satisfied the statutory description of the Appellant as a party "dissatisfied with a decision of the Tribunal in point of law". 171 A second major limb to the challenge concerned the so-called "concessions" made by the Respondent in the course of the case. The legal contention was that this Court could infer from the manner in which the case was run that the Appellant had relied upon certain concessions made by counsel in the course of the hearing, so as to limit either the evidence called or the argument, thereby rendering it unfair for the Tribunal to reach a conclusion inconsistent with the concessions, the Appellant having had no reasonable opportunity to dispute such findings. 172 In addition, two key findings were challenged on the basis that there was no evidence to support them. The first concerned the so-called "second pleural effusion". The finding that that occurred in 1979, and not 1985, suggested that it could only properly be attributed to inhalation of asbestos particles during employment with the Appellant, whereas an effusion in 1985 could (but need not necessarily) be attributed to the period of employment with Amaca, which had commenced in 1979. Accordingly, this finding was seen to be critical to the conclusion that the whole of the Respondent's present condition was attributed to the period of employment with the Appellant. 173 The second finding as to which there was said to be no evidence, was a finding that a "synergistic relationship" existed with respect to the obstructive airway diseases (for which the Appellant was not liable) and the restrictive airways disease (ARPD) for which the Appellant could be held liable. These challenges were separate from the assertions of breach of procedural fairness and the misapplication of legal principles. (The nature of the relevant error is considered further below.) 174 After reviewing the medical evidence with respect to the pleural thickening and diminution in lung capacity of the Respondent, the Tribunal expressed its factual conclusions (at p 29) in the following terms: "The conclusion I draw from the available evidence is [that] the only pleural effusions occurring in this case fell within the latency period of the first defendant not the second defendant. Dr Despas in his report of 26 July agreed with that view of the radiology. The point is that the court is concerned with damage and the consensus of the medical evidence is that the only damage which could be causing the restrictive condition is pleural thickening, rind and plaques. All of that damage was evident in late 1979 and as [counsel for the first defendant] was heard to point out on many occasions, that damage appears to have been radiologically stable ever since, even if the disability has increased. There being no pleural effusions at a time after the second defendant's latency period commenced to run (about 1983) then it is highly unlikely on the balance of probabilities that exposure to asbestos with the second defendant could be held responsible for the damage … . This finding is consistent with the evidence of the plaintiff's early exposure to large quantities of raw asbestos in the first year of employment with the first defendant." As counsel for the Appellant accepted, to succeed on the appeal he needed to demonstrate that such findings were attended by error in point of law. 175 It can be seen from this preliminary analysis of the Appellant's case that it comes perilously close to the fine line between a challenge based on errors of law and a challenge to findings of fact. Challenge to credibility 176 The written submissions filed on behalf of the Appellant dealt with the grounds raised with respect to liability in some 22 paragraphs. Half of those paragraphs were directed to the credibility findings in relation to Dr Gardiner and the refusal by the trial judge to provide Dr Gardiner with an opportunity to review particular CT scans relied upon by the Respondent. The latter complaint was abandoned by the time of the hearing. The complaint in relation to the credibility findings were clearly open to the Tribunal on the facts and could not, in any event, have demonstrated an error in point of law on the part of the Tribunal: c.f. Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, a case in which an aggrieved applicant had sought to demonstrate that an adverse credibility finding demonstrated reviewable error because it was based on particular facts which "did not exist". 177 Whilst the Appellant accepted below that the Respondent suffers from a disability in relation to the functioning of his lungs, it disputed that any inhalation of asbestos was a material contributing factor to that disability. The primary medical evidence admitted on behalf of the Respondent was that of Dr Johnson, who expressed the opinion that the Respondent suffers from ARPD, ascribed to diffuse pleural thickening due to his occupational exposure to asbestos. In response the Appellant relied upon Dr Gardiner, who expressed the opinion that the limitation on lung function was entirely consistent with non-asbestos related causes. However, the difficulty with respect to his credibility was that, as a senior member of the medical authority of the Dust Diseases Board, he had certified on two occasions, in April 1994 and May 1996, that the Respondent "not only had an asbestos-related disease but that he suffered from a 20% disability as a result of that condition". In these circumstances, a challenge to Dr Gardiner's credibility was inevitable. In cross-examination, Dr Gardiner took the bold step of asserting that the certificates were false and known to be false at the time he signed them. His explanation of the form of the certificates was seriously tested in cross-examination and it was undoubtedly open to the Tribunal not to accept explanations which were in part internally inconsistent and which, to an extent, varied over time. 178 As a result of the rejection of Dr Gardiner's evidence, a finding that the Respondent's condition was, at least in part, attributable to ARPD resulting from exposure to asbestos whilst in the employ of the Appellant, was well open to the Tribunal and well beyond the limits of challenge on the basis of error in point of law. Even where an appeal is by way of rehearing and not limited to errors of law the scope for review of credibility findings is very limited: see, eg, Rosenberg v Percival (2001) 205 CLR 434 at [37] and [41] (McHugh J), and [162] (Kirby J). I agree with the conclusion, succinctly stated by Ipp JA at [140]. No evidence – second pleural effusion 179 It is not in doubt that a positive finding made in the absence of any probative evidence can constitute an error of law. However, the ground as identified at par 2(a)(ii) above is ambiguous as to the nature of the finding complained of. By referring to "the second pleural effusion", in the context of the case, the ground could be taken to complain that the Tribunal found that- (a) there was a second pleural effusion in 1979, or (b) the pleural effusion which the Appellant says occurred in 1985, in fact occurred in 1979. Whichever way this ground is taken, in my view it must fail. 180 In relation to the positive assertion, it is difficult to accept that there was no evidence to support a finding that a pleural effusion had occurred in 1979. 181 On 17 May 2004 Dr Anthony Johnson, a consultant thoracic physician, reviewed the medical history identified below and concluded: "Mr Ghaleb appears to have had two episodes of pleural effusion, one on the left and on the right. They have left him with residual pleural thickening. The physicians who saw him at that time considered that they were likely to be benign asbestos related pleural effusions. There does not appear to be any other cause in his history for the pleural effusions and I think it is more probable than not that they were related to asbestos exposure." 182 On 17 July 1979, Dr John Saxton had provided a report based on x-rays in the following terms: "Although lung detail is obscured by respiratory movement and relatively light exposure, dense left pleural fluid or thickening has developed during the past 12 months so that the lower half of the left chest is almost completely opaque. Well penetrated posterior, anterior and left lateral films would obviously be advisable however, there now appears to be evidence of a right lateral pleural plaque. Consequently these bilateral pleural changes must be assumed to be due to asbestosis unless some other cause is established." On 31 July 1979, Dr Saxton reported on further x-rays in the following terms: "Bilateral pleural plaques were evident in a technically unsatisfactory film taken in 1978, consistent with pleural asbestosis. Since then, extensive left pleural thickening has developed with some opacities in the left upper lobe." On 8 August 1979 Dr Moyra Brook, an occupational physician with James Hardie & Co Pty Ltd, noted: "There is a record in his personnel files that he had a normal chest x-ray in 1971 hence the changes we see now seem to have developed between 1971 and 1978." 183 On 21 August 1979, Dr John Saxton reported that: "There is extensive left lateral and anterior pleural thickening but the left basal pleural effusion has largely cleared during the past month. The residual left pleural thickening does not appear to have increased significantly and the small right mid-axillary pleural plaques remain unchanged since 1978. … There is a little right upper zone scaring with pleural thickening in the horizontal fissure, but this has certainly not changed during the past month and was probably present in the 1978 [x-ray], although largely obscured by respiratory movement." 184 On 27 August 1979 Dr Harold Davis confirmed to Dr Brook the view that Mr Ghaleb had calcified plaques in the right side of his lungs. On 27 February 1980 Dr Raouf Farag confirmed that there were bilateral pleural plaques and extensive left pleural thickening – "possible effusion". 185 There is a further set of medical reports from July 1985. On 25 July, 1985 Dr Brook sought a further medical opinion, "particularly in regard to the apparent changes occurring radiographically over the right lung field". At her request, he was referred to Dr Paul Despas at Westmead Medical Centre. On 26 July 1985 Dr Despas concluded: "There haven't been any changes in the x-ray appearances since around 1981 and if anything at all is present, it is simply some pleural thickening perhaps in the left side and perhaps also on the right side. … In 1979 there were a series of chest x-rays showing a pleural effusion on the left side but this was eventually resolved. There were also some abnormalities over the right hemi-thorax at that time and some of these may have persisted but the lung fields are clear." 186 That conclusion was consistent with the statement by Dr Brook of 25 July 1985 that "clinically there are no signs of effusion" at that time. 187 Much of this material is referred to expressly by Dr Johnson in his report while, as noted above, he is satisfied that there were two episodes of pleural effusion, he did not, in that report, state when they occurred. In his evidence before the Tribunal, however, the following evidence was adduced in chief: Q: Was there a repeat in a sense episode of pleural effusion but on the right side which you have identified in those medical reports in about 1985? A: That's correct. There appeared to be a pleural effusion about that time on the other side which then also resolved." 188 Whilst the overall effect of his reports and oral evidence is not entirely clear, it is impossible to say that there was no evidence before the Tribunal supportive of the view that the second effusion occurred in 1979. In my view, uninstructed by the submissions, a fair reading of the actual evidence supported the finding which his Honour made, namely that there was a second effusion in 1979 and no further effusion in 1985, despite the leading question and the answer given by Dr Johnson which was not, apparently, challenged in cross-examination. In my view the positive aspect of this ground of appeal must therefore be rejected. 189 The alternative approach is to say that his Honour erred in finding that there was no pleural effusion in 1985. There are two difficulties with that understanding of the ground. First, the evidence set out above provides a basis for drawing such an inference. Secondly, that formulation of the ground could only succeed if there was evidence that there had been a pleural effusion in 1985, which his Honour was required to accept. In one sense, this may simply be a reformulation of the ground relating to procedural fairness with respect to a concession: that ground is addressed below. However, if it is in truth a complaint that a finding for which there was evidence was not made, the Appellant faces the difficulty in establishing an error of law in these circumstances on the basis of the reasoning of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 (Samuels JA concurring). 190 In my view this ground should be rejected. No evidence – synergistic relationship 191 The complaint made in ground 2(c)(ii) is that there was no evidence to support a finding that chronic obstructive airways diseases, such as asthma and bronchitis, can combine in a synergistic relationship with a restrictive airways disease, such as ARPD. Again, the complaint in relation to the alleged concession is one matter: the no evidence ground is another. 192 The relevant passage in his Honour's judgment is set out by Ipp JA at [127] above. This passage discloses a process of reasoning and inference, as well as findings of primary fact. The first factual finding, favourable to the Appellant, is the absence of scientific acceptance of a causal relationship between exposure to asbestos fibres and obstructive airways disease. The Tribunal then noted that "the medical evidence before this Court acknowledges that it is possible that a synergistic relationship could nevertheless exist between the two conditions". That passage seeks to convey that, whilst asbestos may not cause asthma or bronchitis, the lung conditions which asbestos is known to cause may be capable of inducing obstructive airways disease so that, where the two arise contemporaneously, the Tribunal could be satisfied, on the balance of probabilities, that the two were not entirely separate and independent conditions. In such circumstances, the effects of each, in creating the disability from which the Respondent suffered, could not be disentangled. 193 The finding about which complaint is made is that "chronic obstructive airways disease … can combine in a 'synergistic relationship' with restrictive airways diseases". In relation to the procedural fairness ground, it is further asserted that the Tribunal found that such a synergistic relationship "existed". Further, these are particulars of a ground asserting error of law "in the way in which Seltsam was fixed with liability". With respect, this formulation of the error leaves something to be desired. The Appellant's liability followed from three findings of primary fact, namely that the Respondent suffered from ARPD, secondly, that he had been exposed to asbestos particles during his employment with the Appellant and, thirdly, that he had demonstrated symptoms of an asbestos-related condition during the latency period relevant to the exposure. The finding of liability was, on any view, anterior to any consideration of synergistic relationships. However, read together, grounds 2(c) and 3(d) should be understood as referring to an error in attributing to the Appellant the whole of the liability, instead of liability for part only of the injury suffered by the Respondent. So understood, that for which there is said to be no evidence should be expressed as a finding that no part of the Respondent's injury was severable and attributable to obstructive airways diseases. Whilst it must be framed in these terms to reflect the onus which remains on the plaintiff to establish such liability, it is really a negative finding that no part of the injury was severable. 194 Once it was accepted that the Respondent suffered from an obstructive airways disease, which was not caused by exposure to asbestos, the Tribunal was required to consider the disentanglement of the effects of the two categories of disease, in order to ascribe a proportionate effect to each. This the Tribunal said it could not do with a sufficient level of precision. Its failure to undertake that task was based upon its view that the conditions were not independent but were, to some unidentifiable degree, inter-related. The inter-relationship is not, in my view, so much a primary fact as an inference from the co-existence of the two conditions, which arose at the same time and have continued to co-exist, despite treatment. 195 As exemplified by Rajamanikkam (supra), where a tribunal of fact draws an inference from a combination of primary facts, the rejection of part only of the factual base will not demonstrate that there was no evidence to support the finding made, unless it is demonstrated that the inference drawn was no longer reasonably open, given the diminished factual foundation for it. Undaunted by this difficulty, the complaint of the Appellant has been treated as challenging the existence of any medical evidence to support the finding of primary fact that "it is possible that a synergistic relationship could nevertheless exist between the two conditions". That evidence undoubtedly fell within short compass and may be set out in full. 196 Dr Johnson, called for the Respondent, was asked in re-examination: "Q: You were asked a series of questions about the obstructive and restrictive defect and the way they interact. Do you recall that? A: On the contribution of the two? Q: Yes, to breathlessness. A: To breathlessness, yes. Q: Is it a simple relationship between where you have somebody who has a combined restrictive and obstructive defect, is it a simple relationship between the two that is easily separated out? A: No. Q: In so far as the two of them are acting together, do they have in effect a synergistic effect, that is, that they react together to produce an overall greater defect than one might expect from one or the other on their own? A: Yes, that would be right, yes." 197 Dr Gardiner was called for the Appellant and gave evidence to the following effect in cross-examination: "Q: Doctor, in so far as one is dealing with a mixed restrictive and obstructive defect in respect of Mr Ghaleb, it is the case, is it not, that obstructive and restrictive defects operate together? A: They may do. … Q: You would not rule the restrictive defect out of your considerations of what his overall level of disability is? A: Certainly not. Q: Part of the reason that you would do that is because the restrictive defects whilst of itself (sic) not sufficient to provide in some cases for a significant degree of disability will act synergistically with a more significant obstructive defect? A: It may well do." 198 This material provided a sufficient basis for the inference and findings made by the Tribunal, complained of under this heading. If there are different ways of reading this evidence, as suggested by Ipp JA at [135]-[137] the proper understanding of the evidence was a matter for the Tribunal. On an appeal by way of rehearing no doubt this Court would be entitled to reassess the evidence for itself; but this is not such an appeal. Even if it were true that the evidence set out above necessarily had some more limited import than that ascribed to it by the Tribunal, the Appellant would need also to demonstrate that the Tribunal erred in relying on evidence of temporal connection to draw an inference of inter-dependence, in the absence of relevant medical science. The extent to which a relevant causal connection or, in this case, inter-dependence, can be derived from a temporal connection, based on "common sense", is not a matter which was explored in the present proceedings. However, the kind of detailed assessment of the evidence undertaken by the Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 is no longer pertinent, given the 1998 amendment which removed the right of appeal by way of rehearing. The proposition that there was no evidence to support any relevant factual finding is not, in my view, made out. 199 It will be necessary to return to the question of any concession made in relation to this material under a separate ground: nevertheless, it should be noted in the context of the evidence set out above that in relation to each doctor, the evidence was obtained by counsel for the Respondent. 200 At [139] above, Ipp JA identifies error on the part of the Tribunal in relying by way of analogy on "the interaction between tobacco smoke and asbestos fibre", in the absence of evidence that supported such an analogy in relation to the interaction between ARPD and asthma. With respect, I do not share his Honour's reading of the Tribunal's reasons. I take the Tribunal's reference in that regard not as intended to give a factual analogy, but as identifying the process under consideration by reference to another situation where the process was better understood. To read the Tribunal's reasons otherwise is to risk breaching the well-known direction that reasons are "not to be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. Although stated in relation to an administrative tribunal, there is no reason to apply over-zealous scrutiny in the case of a Tribunal which is said to be a court of record. In any event, none of the grounds of appeal was directed to this supposed error. Misapplication of legal principles 201 The grounds identified in third category noted at [147] above complain, not that the Tribunal misdirected itself in relation to relevant legal principles, but that, having correctly identified the principles to be applied, it misapplied them to the facts. The first question is whether that complaint is sufficient to demonstrate a decision which is erroneous in point of law. 202 In a line of authorities referred to in Vetter and discussed above at [153] there is discussion of how an error of law may arise in relation to facts as found by the Tribunal. Thus, it has been said that if the facts as found "necessarily" fall inside or outside the area defined by a statutory description, there may be error of law. But in such a case, the error may be identified as one which flows from a misunderstanding of the legal criterion. That conclusion may be drawn even where the reasoning of the Tribunal does not expressly reveal such an error. The logic of the exercise is that identified by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, in the following terms, with respect to a decision of the Commissioner for which his reasons had not been made known: "The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition." There is no reason why the same approach should not be applied where reasons are given, but do not in terms explain the conclusion in a satisfactory manner. On the other hand, where reasons are provided, that inference may not readily be available, especially when it is recalled that illogicallity of reasoning is not, as such, sufficient to constitute an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 (Mason CJ). The present ground is not directed to a question of reasoning from facts found to an ultimate conclusion, but rather it is concerned with the fact-finding process. 203 In the written submissions, complaint was made of the manner in which his Honour dealt with certain lung function test results, put in evidence by the Respondent. After referring to aspects of the cross-examination of Dr Johnson as to the theory that obesity was causing restrictive disability, his Honour found: "The forensic reality here is that while the medical experts accept that it is possible that obesity can restrict a patient's lung function they have no idea whether that is actually the case with Ghaleb and are not prepared to say that it is probable or put a figure on it. The lung function test tables are very inconclusive on this point and Dr Johnson says they cannot be relied upon in this way. Taking all the evidence into consideration on the balance of probabilities I determine that the first defendant has failed to discharge its evidentiary onus to disentangle the obesity confounder and to prove either that it is making a material contribution to the plaintiff's restrictive lung condition or with any precision prove the extent of that contribution." This exercise appears to be part of the Tribunal's reasons in determining the facts by way of primary findings and inferences, and thus falls within the first limb of the exercise identified by Glass JA. It is at that stage that his Honour doubted that even patent error, illogicality or perversity would give rise to an error of law. There may perhaps be some infelicity of expression in stating that "on the balance of probabilities, a determination was made that the defendant had failed to satisfy its evidentiary onus"; nevertheless, the meaning is reasonably clear and does not demonstrate legal error. 204 The difficulty for the Appellant in the present case is that the issues in question go to findings of causation. In Henville v Walker (2001) 206 CLR 459 at [98] McHugh J cited with apparent approval the following comments of Mahoney JA in Barnes v Hay (1988) 12 NSWLR 337 at 353: "[T]he determination of a causal question involves, in my opinion, a normative decision as to whether, for the purposes of the case, the precedent act for which the defendant is responsible should be seen as causal of the plaintiff's loss. And, in my opinion, that evaluation is made, not by a 'test' or 'guide' such as the 'but for' test, but by a functional evaluation of the relationship and the purposes and policy of the relevant part of the law." This is essentially a factual question, although the fact-finding exercise must no doubt be undertaken within certain legal parameters. Thus, a finding that the defendant's breach of duty has "materially contributed" to the loss or damage suffered is a finding of a sufficient connection to satisfy the legal test: McHugh J at [106]. 205 In Ruddock v Taylor (2003) 58 NSWLR 269, Ipp JA noted, after referring to an article by Professor Jane Stapleton, that there are two fundamental questions involved in the determination of causation in tort. At [86] his Honour stated: "The first relates to the factual aspects of causation, namely, the aspect that is concerned with whether the negligent conduct in question played a part in bringing about the harm, the subject of the claim. Professor Stapleton argues … that this inquiry involves determining whether there was on the part of the defendant 'historical involvement in [the plaintiff] suffering actionable damage'." A similar approach is to be found in other writings referred to by his Honour in Ruddock at [88]. In those circumstances, it is difficult, in my view, to demonstrate an error in point of law on the part of the Tribunal on the ground presently under consideration. The challenge to the fact-finding exercise of the Tribunal is not open. 206 However, at [101]-[105], Ipp JA proposes that an error of law was committed by the Tribunal in failing to follow the approach required by Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 in considering hypothetical situations and future potentialities. 207 There was no ground of appeal which asserted that the principles in Watts v Rake and Purkess v Crittenden were not properly applicable. Nor was it said that those principles in relation to disentangling tortious and non-tortious conditions had been superseded by anything said by the High Court in Malec v Hutton. Malec was not referred to in the written submissions for the Appellant; it was raised in the course of argument, but only in response to a question from the Bench as to who, in the context of potentially two tortfeasors, namely the Appellant and Amaca, had to prove the amount for which each was responsible. In reply to that question, counsel for the Appellant stated: "Could I by analogy draw on what we know from the assessment of damages here probably limited to personal injury cases in Malec v Hutton where the High Court said that one deals with the assessment of damages by taking into account the possibilities, etc. In other words, courts are more than capable of being robust about apportion[ment] when the issue is raised. The question here raised is that when it is clear, here by concession and evidence but by concession is sufficient, where it is established that two factors are at play, in what circumstances can that be ignored entirely." Whatever the purport of that submission, properly understood, it cannot be seen as raising an entirely separate legal issue of the kind relied on in the passages set out above. The question of the current ground was again raised by the Court during the course of counsel's reply. The following exchange occurred: "Ipp JA: I just have one question about [paragraph 2(b)] of the grounds as set out at [115 above] of your notice, that is the misapplying of Watts v Rake . That seems to me that … depend on the reasons of the judge in the sense of principle. If the judge has not expressed the principle wrongly, any question of how he applied [it to] the facts has to be a question of fact doesn't it? Counsel: Yes, except if there's no evidence. Ipp JA: But there's no no evidence point on that. Counsel: I appreciate that but I was answering your Honour's question. I am just saying that it would be a question of fact unless there was no evidence. Mason P: It's one thing to state the principle correctly but you can, in applying [it to] the facts, demonstrate that you departed from your statement of principle. It's not [lightly] to be inferred but I would have thought that is the theoretical position. Ipp JA: That's right. Yes, you would have to show that the application [to] the facts wasn't in accordance with the principle as expressed. Counsel: Yes and Your Honours, I've said this so many times I fear that somebody will throw something at me, but we say that the simple fact that in the context of one of the Watts v Rake considerations, his Honour noted a concession of a contribution from an outside source makes it self-evident that his Honour applied the principle incorrectly." 208 In my view it flows from that exchange that the Appellant did not seriously seek to pursue the ground except on the basis that there was a "concession" to the contrary; counsel fairly (and in my view correctly) recognised that this was where the real force of the Appellant's challenge lay. At [103] above, Ipp JA sets out four principles which may be derived from Malec. So much may be accepted: the question which remains is to identify the manner in which the Tribunal failed to accept the correctness of those principles. At [105]-[107] his Honour notes the need to take into account the potential effect of any "pre-existing condition" and "other causes entirely unrelated to" the Appellant's negligent act. As I understand the Tribunal's findings in the present case, there were however no pre-existing conditions, the obstructive airways diseases having arisen contemporaneously, and the Tribunal not being satisfied that the other conditions were indeed "entirely unrelated" to the exposure to asbestos. 209 The other condition in question was obesity, which is another "restrictive condition" which the Appellant said contributed to the Respondent's diminished lung function. It is true, as Ipp JA notes at [95] that the Tribunal did not make a reduction for obesity, but that fact does not demonstrate that the Tribunal was not fully apprised of the need to identify the consequences of pre-existing conditions and to undertake the speculative task identified in Malec, in order to reduce the extent of the Appellant's liability on account of relevant contingencies. Rather, the Tribunal found that the defendant had not demonstrated that obesity "is making a material contribution to the plaintiff's restrictive lung condition". Indeed, the reference to "disentanglement" demonstrates that the Tribunal had in mind the exercise described in Malec, a case which did not establish any novel principle in this respect. 210 The reason why the High Court in Malec overruled the assessment of damages made by the Full Court of the Supreme Court of Queensland was that the majority in the Full Court had found that the plaintiff's entitlement to damages for economic loss ceased on a particular date, because by that time it was "likely" that he would have become unemployable for other reasons. The High Court held that the proper approach was to assess the chance that factors unconnected with the defendant's negligence might have brought about the on-set of a similar neurotic condition to that from which the plaintiff suffered, and to reduce the on-going damages according to that assessment, but not to stop the flow of damages immediately the assessment reached 51%. It is unlikely that the Court thought that it was interfering with the principles established by Watts v Rake and Purkess v Crittenden, both of which were referred to in the course of argument for the respondent (see p 639) but neither of which was referred to in either of the joint judgments. However, there are, no doubt, aspects of the respective judgments in Watts v Rake and Purkess v Crittenden in relation to which care must now be taken. Thus, in Watts v Rake (1960) 108 CLR 158 at 160, Dixon CJ stated: "If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred." It seems likely that this was the passage was relied upon by the respondent in Malec to justify a termination date for all payments, rather than a reduction on account of a more precise calculation of probabilities. 211 Similarly, in Purkess v Crittenden (1965) 114 CLR 164 at 168, there is reference to the onus of adducing evidence that the plaintiff's "incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition". Again, the reference to that which would "in any event" have caused incapacity may suggest that it is appropriate to assess a date after which no liability continues to operate. These related qualifications to the principles thus established, flowing from Malec, would appear to be the kind of reconciliation referred to by this Court in Commonwealth v Elliott [2004] NSWCA 360 at [79]-[81], noted above at [104]. The qualification so suggested would tend to favour a plaintiff, rather than a defendant. 212 Reference is also made above at [111] to the judgment of the President in Winston v Roach [2003] NSWCA 310 at [74]. In that paragraph, the President stated: "Nothing in this passage or elsewhere reveals his Honour endeavouring to weigh how much of the respondent's woes would have continued and/or increased had it not been for the accident. The facts confirm in my mind that they would have done so to a substantial degree, even allowing for the evidentiary onus resting on the appellant's/defendant's shoulders." Two points may be made in relation to this passage: first, the error of principle thus identified in the judgment below was a failure to distinguish between a legal and an evidentiary onus: secondly, that case was an appeal from the District Court and was not restricted to identifying errors of law. 213 In the passage from the judgment of the Tribunal, with which the Appellant took issue in its written submissions (being the second part of that set out at [203] above), his Honour expressly referred to the "evidentiary onus to disentangle the obesity confounder". There is no separate ground suggesting that there was "no evidence" to support the Tribunal's conclusion that it was not satisfied that obesity can restrict a patient's lung function, nor, although reference was made to a "concession", was there any separate ground of appeal based on a concession. That is no doubt because the "concession" identified in the plaintiff's written submissions at trial was in the following form: "Therefore, the plaintiff submits that on the balance of the evidence, the appropriate course is to award the plaintiff damages with respect to the whole of the restrictive element of his lung dysfunction, subject only to a small discount that properly reflects the plaintiff's age and general health." 214 In it conclusions in relation to damages, the Tribunal stated: "The first defendant has been unable to disentangle the major confounders, namely, obstructive airways disease and obesity and has failed to prove that the minor ones other than aging has [sic] made a significant contribution to the breathlessness. There will have to be a small deduction in the future for the age-related condition and I have determined to discount any awards for economic loss by the usual 15% for vicissitudes." It would have been difficult, in that context, to have complained about the supposed "concession": in any event, no such complaint was made. 215 In these circumstances, I remain unpersuaded that a ground formulated in terms of misapplication of the principle stated in Watts v Rake and Purkess v Crittenden demonstrates an error of law in the reasoning of the Tribunal, even accepting that the judgments in those cases may properly be understood as qualified in certain respects by the later judgment of the High Court in Malec v JC Hutton Pty Ltd. 216 The second limb to this ground asserted a misapplication of principle applicable to determining either liability or damages in cases of successive torts. 217 This ground depends on an assumption that the Tribunal found that the Respondent had suffered as a result of successive torts: this premise is, however, incorrect. The thrust of the primary ground relied upon by the Appellant is directed at the Tribunal's failure to find that there was a subsequent tort on the part of Amaca. Because the premise is not made out, the ground is hypothetical. If the Tribunal erred in law in failing to make that finding, this ground would be otiose. Breach of procedural fairness: concession – liability of Amaca 218 The concept of a "concession" must be addressed with care. A concession may be made by way of admission in pleadings, by a statement in opening a case, by an answer given by a witness in evidence or by a statement in final submissions: other possibilities are open. However, failure by the Tribunal to act on the basis of a concession does not necessarily involve error of law: the way in which it is put in the present case is that the departure involved a breach of procedural fairness, in that the Tribunal should not have reached a particular finding, inconsistent with a concession, without giving the other party an opportunity to deal with it. 219 The present case was pleaded as involving liability on the part of both the Appellant and Amaca, the latter being the successor to the former, in employment of the Respondent. Understandably in those circumstances, the Respondent's case was prepared by pleading liability on the part of each and by preparing evidence, primarily in the form of medical reports, which sought to sheet home responsibility to each. Further, the case was conducted on the basis that each exposure to asbestos particles potentially gave rise to a separate instance of harm, for which there must be several liability. 220 A settlement was reached with Amaca on the first day of the hearing, by which it agreed to a verdict in an amount of $50,000 plus costs. The Tribunal was aware of the terms of the settlement: Judgment, p 1. Whether that material was put before the Tribunal for the purposes of the trial involving the Appellant and Respondent, is unclear. On one view, that course could have been taken on the basis that, if liability were established, the Tribunal would assess the loss attributable to ARPD, by reference to the Respondent's present state of disability, and deduct from the overall calculation the amount agreed as the liability attributable to Amaca. In any event, it is clear from the manner in which the trial was conducted that an overall assessment of loss would made and apportioned between the two employers. 221 The precise nature of the concession and how, in the circumstances of the case, it affected the fairness of the trial from the point of view of the Appellant, is a nice question. The Appellant's position at trial was to concede exposure to asbestos, but deny that the Respondent suffered from ARPD. If he did suffer from ARPD, the Appellant sought to minimise the extent to which ARPD was responsible for his current state of health and to minimise that part of the liability which could be attributed to it. In these circumstances, the details of which are fully set out by Ipp JA at [43]-[67] and [80]-[88] above, the question is what follows from the conclusion that his Honour departed from the approach adopted by the Respondent at the hearing. As is noted below, specific grounds challenging the assessment of total damages in this matter have not been pressed. Accordingly, there is no challenge to the assessment of the quantum of damages made by the Tribunal. Subject to one qualification referred to below, it is difficult to see why the conduct of the trial itself was in any way affected by the concession that Amaca bore responsibility for part of the Respondent's disability. Nor does it appear that the Appellant argued before his Honour that the settlement with Amaca in some way affected the assessment of the damages as between the Appellant and the Respondent. If that had been the concern, effect may have been given to the concession by reducing the damages payable to the Respondent to the amount assessed less the contribution made by Amaca. 222 The qualification arises from the argument that the "concession" included an acceptance that "the" second pleural effusion took place in 1985 and was attributable to asbestos exposure during the Respondent's employment with Amaca. 223 Because this evidence (flimsy though it appears to have been) was the basis for attributing a significant proportion of the responsibility to Amaca, it must be accepted that the concession was based upon that view of the evidence. It may not follow that a finding that there was no pleural effusion in 1985 would be inconsistent with attribution of some part of the responsibility for the Respondent's current condition to Amaca: however, that is not a matter which can be resolved in this Court. 224 The breach of procedural fairness relied on in the present case flows from the fact that the trial judge departed from the common approach adopted by the parties. The argument is that the Appellant relied upon its reasonable expectation that it would not need to present argument against a proposition which had not been run by the Respondent, at least unless alerted to the possibility of an adverse finding in that respect being considered by the trial judge. However, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 a case where the complaint was that an officer of the Minister had lulled the party adversely affected into a false sense of security, Gleeson CJ noted at [37]: "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. … A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." The same principle will apply whether the expectation arose from the conduct of the decision-maker, or, as in the case of the Tribunal, from the conduct of another party to the proceedings: c.f. Director of Public Prosecutions v Parker (1992) 28 NSWLR 282. In the present case, it is not obvious that the Appellant would have conducted its case differently, had it been aware that there was a suggestion that the employment with Amaca might not involve a significant contribution to the Respondent's disability. 225 In some cases the consequences of conducting a hearing in a particular way may give rise to self-evident unfairness to one party. In other cases, where an expectation has arisen, and the unfairness results from one party conducting itself upon a particular assumption as to the validity of the expectation, no unfairness will follow unless it can reasonably be assumed, or is established on the facts, that the party adversely affected would have conducted itself differently had it not been for the expectation so raised. Where a trial by ambush has resulted from one party not putting forward evidence which would have been available had he realised that a particular point was being taken by the other party, the Court would not expect to be informed of the evidence thus not presented and possibly to hear an application that this Court admit such further evidence; c.f. Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116. Similarly, as the summary of the proceedings in the High Court in Ex parte Aala noted at page 84: "In support of the applications, he gave affidavit evidence of what he would have done if he had known that the Tribunal did not have the four statements. He asserted that he had been denied a fair hearing because the Tribunal represented to him that it would take the new explanations into account and it did not. The Minister conceded that none of those statements [was] before the Tribunal." Similarly, in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 each of the plaintiffs gave evidence that he or she had been misled and was disadvantaged by what occurred: see, eg, at [16] (Gleeson CJ). Nothing of the kind was presented here to suggest that the Appellant was misled or disadvantaged in any practical sense: indeed, the focus of the written submissions in particular lay elsewhere. See also Touma v Saparas [2000] NSWCA 11, at [27]-[28] (Stein JA) and [31] (Hodgson CJ in Eq) where the Court refused to interfere with the refusal of an adjournment, where the claimant failed to demonstrate prejudice. 226 That is not to say anything inconsistent with Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. The principle in Stead is that a person who has been denied a fair trial is entitled to a retrial unless it is established to the satisfaction of the Court that a new trial would be a futility. That analysis only arises when the unfairness of the first trial has been established. The present issue concerns the anterior question, namely whether the Appellant lost an opportunity to do something which it would otherwise have done, because of the way the Respondent conducted his case. At [86] Ipp JA says that, had the Appellant been aware that the trial judge might approach the question of apportionment on a different basis from that contemplated by the Respondent, that "must inevitability have coloured its approach to the cross-examination of witnesses, the adducing of evidence and the making of submissions". However, there was no evidence to suggest how the approach might have varied, nor did counsel for the Appellant identify particular questions which might have been asked or particular submissions which might have been made, but which were not asked or made because of the manner in which the trial was conducted. The prejudice suffered by the Appellant was certainly not proved, and is not, in my view, self-evident. 227 The Appellant placed reliance on the approach adopted by this Court in Wrigley Co Pty Ltd v Hollands (2002) 23 NSWCCR 463. In that case the worker had put to the Compensation Court "that the award should be $100 per week, or at least $100 per week": at [15]. In that circumstance, Handley JA (with whom Hodgson JA and Ipp A-JA agreed) stated that the judge "was not bound by this figure, but he said nothing during argument to indicate that he was considering going outside this claim and making awards, initially 150% more than asked for, and in the final result for nearly 300% more". The Court held that the submission was either a matter which was required to be taken into account, or it was necessary to give reasons for disregarding the submission. On either view, the Court held that the trial judge erred in law: at [16]. There may be some doubt as to whether a submission is a 'mandatory consideration', or that the Court did not take it into account. The present case was not put on that basis, nor was it suggested in the present case that there was a failure to give reasons for the conclusion reached. Rather, it was put on the alternative basis, accepted in Wrigley at [17], that the employer had been denied procedural fairness because its counsel "had no opportunity to deal in address with the judge's reasons for disregarding the submission for counsel for the worker and awarding so much more than had been sought on her behalf". That case was treated as on all fours with Stead, in which, as noted above, the trial judge stopped counsel from addressing further on a critical question, decided adversely to that party. However, the facts of the present case are different: to make an award grossly in excess of that sought is analogous to Parker, where, without warning, a District Court judge, on an appeal against the severity of sentence, increased the sentence. In such cases the prejudice is obvious in a way that it is not where a party failed to address the possibility that its share of responsibility was at risk of being assessed as 100%, rather than 60%. 228 If the proceedings against Amaca had been settled on the basis of a nominal payment, or on a basis which was not disclosed, the sting of the present argument would be absent: the appearance of prejudice arises from the fact that the Respondent may be seen to be "double-dipping", because he not only recovered part of his damage from Amaca, but also the whole from the Appellant. That, however, is not a ground of appeal. It if were, the situation could readily be rectified by reducing the judgment in the Tribunal by the amount of the settlement with Amaca. 229 Accordingly, whilst it is undoubtedly true that the Respondent conducted its case on a basis which conceded that the liability of the Appellant was less than 100%, the evidence on which that concession was based was, as the Respondent put it on the appeal, "sparse" and likely to be treated as of little weight. That fact must have been known to the Appellant at the hearing: it did not deny that inference. It was also readily apparent that if that sparse evidence were not accepted by the Tribunal, there was a significant risk that the Tribunal might well be satisfied that, if ARPD were proved, liability for that condition should be sheeted home solely to the Appellant. For strategic reasons, the Appellant was no doubt happy to focus on an absolute denial of liability and assume that, if unsuccessful on that ground, it might yet escape with a reduced liability, because of the way the Respondent had presented his case. In other words, the Appellant may have accepted the submissions made by the Respondent, perhaps because it could not improve on them. That does not mean that it had anything else or anything better to say which it desisted from saying. If there had been anything, it should have been identified to the Court: that was not done. This ground of appeal should be rejected. Breach of procedural fairness – synergistic relationship 230 The care which is required in identifying how a "concession" may have resulted in procedural unfairness is starkly demonstrated by the complaint in relation to the use of the phrase "synergistic relationship". As noted above at [196]-[197], the Respondent expressly elicited evidence from both its own medical expert, Dr Johnson and from the expert for the Appellant, Dr Gardiner, as to the manner in which lung conditions might act synergistically. The concession noted by Ipp JA at [122] was that ARPD was a "divisible disease". I understand that concession to relate to the sequential exposure to asbestos particles, and not to the synergistic relationship between other conditions and ARPD. 231 In circumstances where a right of appeal is limited to errors "in point of law", there are substantial difficulties in seeking to comb through the transcript of argument to identify so-called "concessions". Further, if those concessions can properly be identified, it is then necessary to demonstrate that the other party relied upon the concession in such a manner as to cause it procedural unfairness where the effect of the concession is departed from in the judgment of the Tribunal. In my view, neither element of this ground has been established in the present case. Conclusions and relief 232 Each of the grounds relied upon above, which went to both liability and damages, has not, in my view, been established. The original notice of appeal contained numerous separate challenges to the assessment of damages, but all of these were abandoned. Accordingly, in my view, the appeal should be dismissed. 233 On the evidence presented to the Tribunal, it was reasonably open to the Tribunal to determine that the whole of the responsibility for the Respondent's ARPD was that of the Appellant. It was well open to the Tribunal to reject the suggestion that any particular exposure which may have occurred during the Appellant's employment with Amaca had caused the existing disability. Even if the ground of appeal based on the concession made by the Respondent at trial in relation to the apportionment of responsibility were upheld, that would not, in my view, be because the Tribunal had made factual findings which were manifestly unreasonable, or not open on the evidence. Nor were the actual findings made without explanation as to their basis. If the conclusion were reached that, because of the concessions, the Tribunal should have apportioned liability, in the absence of any challenge to the quantum of liability, the proper course would, in my view, be to remit the matter to the Tribunal for apportionment in accordance with the findings of the Court and on the basis on which the case was presented below. On this approach, there would not be any proper basis for ordering that the Tribunal be differently constituted. 234 Section 32(2) of the Act provides for the powers of the Court in disposing of an appeal. 32(2) The Supreme Court may, on the hearing of any appeal under this section, remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court sees fit. Despite the breadth of the power thus conferred, any additional order must be made in accordance with sound principle. In relation to the constitution of the Tribunal, the primary responsibility for nominating the member before whom proceedings are to be held is vested in the President: s 13(2). 235 If there is some particular reason why one member of the Tribunal should not sit there is no reason for this Court to assume that the President will assign, or continue to assign the same member to the proceeding, at least in the absence of some suggestion to the contrary. Similarly, if one of the parties has reason to request that a particular member disqualify himself or herself, that application should be made in proceedings before the Tribunal and should be dealt with by the member. If such an application is not properly dealt with, that party may seek to challenge any operative decision of the Tribunal as one with which it is dissatisfied in point of law. 236 In Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [3] Gleeson CJ stated in relation to similar provisions in the Migration Act with respect to the Refugee Review Tribunal: "It was the Principal Member who had the primary responsibility of deciding what was in the interests of the efficient conduct of the review. In the ordinary case, it would be the Principal Member who would be in possession of the information necessary for a proper discharge of that responsibility. The Principal Member allocates work among Tribunal members, is aware of their commitments and availability and makes administrative arrangements within the Tribunal." As his Honour noted at [12], there are limits on the power of a court to inquire into the reasons for a decision to assign a judge to a particular case and mechanisms for a party to take objection. 237 In some circumstances it will undoubtedly be appropriate for a direction to be given as to the constitution of a tribunal, especially in circumstances where it would seem to the court that justice might not appear to be done if the matter were remitted to the tribunal, which might then be constituted as for the original hearing. Thus, in Smith v NSW Bar Association (1992) 176 CLR 256 at 269 the joint judgment of four members of the High Court stated: "As the members of the Court of Appeal have twice made a voidable finding on the issue of truthfulness of the appellant, and as the matter must be heard afresh by the Court of Appeal, it would be inappropriate to ask the judges who had constituted that Court to re-assess de novo the appellant's truthfulness. The matter must therefore be remitted for hearing by a Court differently constituted." A similar principle was applied in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42, although, in the light of the judgments in Wang , the proposition relied on in that Court may be too broadly stated. 238 It may be accepted that s 32(2) of the Act extends to an order with respect to the constitution of the Tribunal. As noted by the Chief Justice in Wang, the existence of such a power was conceded in that case: at [4]. McHugh J expressly held that the power did extend so far, although noting that it was statutorily limited to an order which the Court considered "necessary to do justice between the parties". Gummow and Hayne JJ on the question of power accepted that the power extended to directing that a tribunal be differently constituted: at [62]. Kirby J, dissenting in other respects, agreed at [113] on the question of power. 239 Although it is no doubt true that orders as to the constitution of administrative tribunals have often been made in the past, in my view a court should be slow to make such an order, in the absence of circumstances which clearly demonstrate that such an order is appropriate and necessary, in the interests of justice. That reticence should increase in relation to the constitution of a statutory tribunal created as a court of record. Such orders demonstrate a lack of confidence on the part of the Court in the ability of the Tribunal properly to organise its own affairs. Such an approach requires the articulation of sufficient reasons. If the test of the appropriateness of such an order is the need to do justice between the parties, it is also relevant that neither party sought such an order. To make such an order where the significant error on the part of the Tribunal was its failure to accord procedural fairness, is not without irony. 240 In the present case, I would dismiss the appeal with costs. ********** 05/07/2007 - The word 'miscarried' deleted and 'miscarriage' inserted in lieu. - Paragraph(s) 167 16/07/2007 - - Paragraph(s) 29/10/2007 - - Paragraph(s) 27/11/2007 - - Paragraph(s) 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.