BITUPAVE LTD v McMAHON & ORS [1999] NSWCA 330

BITUPAVE LTD v McMAHON & ORS [1999] NSWCA 330

The trial judge was entitled to apportion liability under s5(2) by having regard to differences in concentration/duration of exposure and culpability/blameworthiness, including the state of knowledge about asbestos dangers. Equal apportionment was not compelled by inability to distinguish which exposure caused the disease. There was no error in the primary judge's method, and the apportionment of 75% to Bitupave, 20% to Quarries, and 5% to Boral was justified by the findings.

Jurisdiction
Australia
Judgment Date
13 September 1999
Procedural Posture
Appeal / Judgment on Appeal From Dust Diseases Tribunal on Apportionment of Liability
Outcome
Appeal dismissed with costs.
Legal Topics
['dust Diseases' 'mesothelioma' 'exposure to Asbestos' 'apportionment of Liability' 'law Reform (miscellaneous Provisions) Act 1946 S5(2)']
['torts' 'occupational Health and Safety'] ['dust Diseases' 'mesothelioma' 'exposure to Asbestos' 'apportionment of Liability' 'law Reform (miscellaneous Provisions) Act 1946 S5(2)']

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Procedural Posture

Appeal / Judgment on Appeal From Dust Diseases Tribunal on Apportionment of Liability

Legal Issues

  1. 1 ['Whether apportionment of liability between the defendants was correctly made under s5(2) Law Reform (Miscellaneous Provisions) Act 1946; whether equal apportionment was required due to the inability to distinguish causation among defendants; whether trial judge erred in apportionment methodology given evidence']

Ratio Decidendi

The trial judge was entitled to apportion liability under s5(2) by having regard to differences in concentration/duration of exposure and culpability/blameworthiness, including the state of knowledge about asbestos dangers. Equal apportionment was not compelled by inability to distinguish which exposure caused the disease. There was no error in the primary judge's method, and the apportionment of 75% to Bitupave, 20% to Quarries, and 5% to Boral was justified by the findings.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed.' "Appellant to pay respondents' costs."]