Allianz Australia Ltd v Sim; WorkCover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (In liq) v Sim
Medium Neutral Citation:
[2012] NSWCA 68
Hearing Date(s):
15, 16 November 2011
Decision Date:
04 April 2012
Jurisdiction:
Before:
Allsop P at 1; Basten JA at 54; Meagher JA at 182
Decision:
In each of the three matters:
(1) Appeal dismissed.
(2) Appellant to pay Mrs Sim's costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
COSTS - indemnity costs - offer of compromise - whether Dust Diseases Tribunal Regulation 2007 (NSW), Pt 6, only operates to the extent that it is not inconsistent with the Uniform Civil Procedure Rules - whether offeror had provided all documents necessary to enable the offeree to consider offer under the Uniform Civil Procedure Rules - whether offer was open for a reasonable time
EVIDENCE - admissibility - expert evidence - whether appropriate to consider all of the evidence to determine whether expert evidence should have been admitted - whether pathologist able to give evidence as to the causal connection between exposure to asbestos dust and lung cancer, given current state of medical knowledge
TORTS - causation - whether increase in risk can be equated with factual causation - whether liability requires satisfaction of the necessary condition test - whether open to Tribunal to accept pathologist's opinion as to link between exposure to asbestos dust and lung cancer
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Allianz Australia Ltd v Sim [2012] NSWCA 68
Case
[2012] NSWCA 68
Decision Date
CaseChat Overview and Summary
The appeal concerned three matters heard together, brought by Allianz Australia Ltd against Mrs Sim. The dispute centred on whether the Dust Diseases Tribunal Regulation 2007 (NSW) was inconsistent with the Uniform Civil Procedure Rules 2005 (NSW) regarding offers of compromise, and the admissibility and weight of expert evidence concerning the causal link between asbestos exposure and lung cancer. The case was heard in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were: (1) whether the Dust Diseases Tribunal Regulation 2007 (NSW), specifically Part 6, operated only to the extent that it was not inconsistent with the Uniform Civil Procedure Rules 2005 (NSW); (2) whether Allianz had provided all necessary documents to enable Mrs Sim to consider an offer of compromise under the Uniform Civil Procedure Rules; (3) whether the offer of compromise was open for a reasonable time; (4) whether it was appropriate to consider all evidence to determine the admissibility of expert evidence; and (5) whether a pathologist was able to give evidence as to the causal connection between asbestos dust exposure and lung cancer, given the current state of medical knowledge, and whether an increase in risk could be equated with factual causation.
The Court of Appeal held that the Dust Diseases Tribunal Regulation 2007 (NSW) did not operate to the exclusion of the Uniform Civil Procedure Rules 2005 (NSW) where inconsistency arose. It found that the offer of compromise was not open for a reasonable time and that the appellant had not provided all necessary documents. Regarding the expert evidence, the Court determined that it was appropriate to consider all evidence to assess admissibility and that the pathologist's opinion on the causal link between asbestos exposure and lung cancer was admissible and could be accepted by the Tribunal, as an increase in risk could be equated with factual causation in this context.
In each of the three matters, the appeal was dismissed, and the appellant, Allianz Australia Ltd, was ordered to pay Mrs Sim's costs.
Orders
Orders of the court
In each of the three matters:
(1) Appeal dismissed.
(2) Appellant to pay Mrs Sim's costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]