Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Amaca Pty Ltd v Tullipan [2014] NSWCA 269 Hearing dates: 6 August 2014 Decision date: 15 August 2014 Before: Basten JA at [1];
Gleeson JA at [48];
Leeming JA at [49]Decision: Orders made 6 August 2014:
In matter 2014/197925:
Dismiss the summons filed by Amaca Pty Ltd on 4 July 2014 with costs to be costs in the appeal.
In matter 2014/179948:
(1) With respect to the motion to amend the notice of appeal:
(a) grant Amaca Pty Ltd leave to file an amended notice of appeal as contained in the Orange Appeal Book at pp 34-39;
(b) dispense with the requirements for service of the amended notice of appeal as filed;
(c) order that costs of the motion be costs in the appeal.
(2) Dismiss the respondent's motion to strike out the notice of appeal as incompetent, with costs of the motion to be costs in the appeal.
(3) Dismiss the appeal.
[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 Court's 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: APPEAL AND NEW TRIAL - nature of appeal - appeal from decision in "point of law" - plaintiff suffered from terminal lung condition - plaintiff claimed damages against appellant on the basis that lung condition was asbestosis - appellant argued the lung condition was idiopathic pulmonary fibrosis - trial judge held that the appellant's expert witnesses had conceded that the longevity of the disease established that it was probably asbestosis - whether there was an error in point of law in finding that the appellant's expert had made such a concession - whether any error by the trial judge amounted to an error in point of law - Dust Diseases Tribunal Act 1989 (NSW), s 32
DAMAGES - general damages - whether award of general damages disproportionate or excessive - principles on appeal of award of damages - no norm or standard should be derived from other decisions to determine whether award disproportionate - appeal limited to errors of law requires award to be so disproportionate it cannot be assumed the judge operated within the law
TORT - negligence - causation - plaintiff had been exposed to asbestos by appellant - plaintiff claimed inhalation of asbestos had caused asbestosis - asbestosis and idiopathic pulmonary fibrosis share similar clinical symptoms - whether medical evidence established that the plaintiff was suffering from asbestosisLegislation Cited: Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2
District Court Act 1973 (NSW), ss 127, 176
Civil Liability Act 2002 (NSW), s 16
Dust Diseases Tribunal Act 1989 (NSW), ss 4, 12B, 13, 19, 25, 25B, 32
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- AGLC
- Amaca Pty Ltd v Tullipan [2014] NSWCA 269
- Case
- [2014] NSWCA 269
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the trial judge had made an error of law in finding that the appellant's expert witnesses had conceded that the longevity of the respondent's disease established it was probably asbestosis, and whether any such error amounted to an error of law for the purposes of the appeal under section 32 of the Dust Diseases Tribunal Act 1989 (NSW). The court also considered whether an award of general damages was so disproportionate as to indicate the judge had not operated within the law.
The Court of Appeal found that the trial judge's characterisation of the expert evidence did not constitute an error of law. The judge's findings regarding causation were based on the totality of the medical evidence, and the court held that the award of damages was not so disproportionate as to be outside the bounds of the law. The court therefore dismissed the appeal.
Orders
Orders of the court
Orders made 6 August 2014:
In matter 2014/197925:
Dismiss the summons filed by Amaca Pty Ltd on 4 July 2014 with costs to be costs in the appeal.
In matter 2014/179948:
(1) With respect to the motion to amend the notice of appeal:
(a) grant Amaca Pty Ltd leave to file an amended notice of appeal as contained in the Orange Appeal Book at pp 34-39;
(b) dispense with the requirements for service of the amended notice of appeal as filed;
(c) order that costs of the motion be costs in the appeal.
(2) Dismiss the respondent's motion to strike out the notice of appeal as incompetent, with costs of the motion to be costs in the appeal.
(3) Dismiss the appeal.
[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 Court's 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.]
Background
Background to the litigation
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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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