NEW SOUTH WALES COURT OF APPEAL
CITATION: Amaca Pty Ltd (under NSW External Administration) v A B & P Constructions Pty Ltd [2007] NSWCA 220
FILE NUMBER(S):
40412/06
HEARING DATE(S): 18 June 2007
JUDGMENT DATE: 29 August 2007
PARTIES:
Amaca Pty Ltd (under NSW External Administration) - Appellant
A B & P Constructions Pty Ltd - Respondent
JUDGMENT OF: Giles JA Ipp JA Basten JA
LOWER COURT JURISDICTION: Dust Diseases Tribunal, NSW
LOWER COURT FILE NUMBER(S): DDT 395/2004/1
LOWER COURT JUDICIAL OFFICER: Duck J
LOWER COURT DATE OF DECISION: 9 June 2006
LOWER COURT MEDIUM NEUTRAL CITATION:
(Re Lorizio) AB & P Constructions Pty Ltd v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2006] NSWDDT 19
COUNSEL:
G M Watson SC & J C Sheller - Appellant
J McIntyre SC & J L Sharpe - Respondent
SOLICITORS:
Phillips Fox Lawyers - Appellant
Thompson Cooper Lawyers - Respondent
CATCHWORDS:
Negligence - manufacture of asbestos-based product - duty of care owed to consumers - whether error of law in formulation of duty of care - content of duty of care - no error - if had been error, would have been error of fact - whether error of law in determining breach - no failure properly to evaluate relevant factors - whether error of law in finding causation - causation not relevantly in issue at trial - was evidence on which causation could be found.
LEGISLATION CITED:
Dust Diseases Tribunal Act 1989, s 32(1)
CASES CITED:
Anderson v The City of Enfield (1983) 34 SASR 472;
Brodie v Singleton Shire Council (2001) 206 CLR 512;
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 468;
Commissioner of Corrective Services v Walker [2007] NSWCA 213;
Donoghue v Stevenson [1932] AC 562;
Dovuro Pty Ltd v Wilkins (2001) 182 ALR 481;
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540;
Grant v Australian Knitting Mills Ltd (1933) 50 CLR 387 (HC);
Great Lakes Shire Council v Dederer (2006) Aust Torts Reports 81-860; [2006] NSWCA 101;
Jones v Bartlett (2000) 205 CLR 166;
Leichhardt Municipal Council v Montgomery (2007) 81 ALJR 687;
McPhersons Ltd v Eaton (2005) 65 NSWLR 187;
Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254;
Nagle v Rottnest Island Authority (1993) 177 CLR 423;
Neindorf v Junkovic (2005) ALJR 341, (2005) 222 ALR 631;
Norton Australia Pty Ltd v Streets Ice Cream Pty Ltd (1968) 120 CLR 635;
Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Habda (2005) 79 ALJR 1195;
Sakoua v Williams (2005) 64 NSWLR 588;
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208;
Shellharbour City Council v Rigby [2006] NSWCA 308; (2006) 150 LGERA 11;
Skulander v Willoughby City Council [2007] NSWCA 116;
Sullivan v Moody (2001) 207 CLR 562;
Swain v Waverley Municipal Council (2005) 220 CLR 517;
Temora Shire Council…
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- Case
- [2007] NSWCA 220
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the trial judge had made an error of law in formulating the duty of care owed by the appellant to the worker, specifically concerning the requirement to warn of the risks in using the building products. The court also considered whether there was an error of law in determining whether the appellant had breached any such duty, and whether there was an error of law in finding a causal connection between any failure to warn and the worker's condition.
The Court of Appeal found no error of law in the trial judge's formulation of the duty of care. The judges reasoned that if there had been an error in this regard, it would have been an error of fact, not law. Similarly, the court determined that there was no failure to properly evaluate the relevant factors in finding a breach of duty. Furthermore, the court held that causation was not a relevant issue that needed to be determined at trial, as there was sufficient evidence on which causation could have been found.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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