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Amaca v Wallaby Grip

Amaca v Wallaby Grip

Case [2005] NSWDDT 41 26 May 2005

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Dust Diseases Tribunal

of New South Wales

CITATION:
Amaca v Wallaby Grip [2005] NSWDDT 41

PARTIES:
Amaca Pty Ltd
Wallaby Grip ( BAE) Pty Ltd

MATTER NUMBER(S):
37 of 2001\1

JUDGMENT OF:
Walker J

CATCHWORDS:
:- Meaning "unfairly prejudicial"in s 135(a) Evidence Act (NSW) 1995
Apportionment Section 6 and 7 Queensland Law Reform Act 1995
Whether extent of

actual knowledge is relevant in apportioning liability between joint tort feasors
factors to be considered in apportioning liability between joint tort feasors
whether meaning of supply in toxic tort is confined to cases of direct supply

LEGISLATION CITED:
Sections 6 and 7 Queensland Law Reform Act (1995)
S 135(a) Evidence Act (NSW) 1995
S 5(2) NSW Law Reform (Miscellaneous Provisions Act (1946)
Section 10 and 12 Partnership Act 1892

CASES CITED:
Rolls Royce Industrial Power v James Hardie & Co (No 4) (1999) 18 NSWCCR 652 ;
CSR Ltd v Wren (1997) 15 NSWCCR 650;
Guide Dog Owner & Friends Association Inc. v Guide Association of NSW & ACT (1998) 154 ALR 54 at 532;
Papakosmas v The Queen (1999) 196 CLR 297 at [93];
Ordukaga v Hicks [2000] NSWCA 180 at [35]-[40];
(Re Hunt) Ex Parte Sean Investments Pty Ltd(1979) 180 CLR 322 at 329;
Podrebersek v Australian Iron & Steel Pty Ltd(1985) 59 ALJR 492;
Wynbergen v Hoyts Corporation Pty (1997) 72ALJR 65 at 66 Macquarie Pathology Services Pty Ltd v Sullivan NSWCA No 40313/94 28.3.95;
James Hardie v Roberts (1999) 18 NSWCCR 500;
Macleay Hastings Area Health service v Wallby Grip (BAE) Ltd (1997) 15 NSWCCR 93;
Raif v SG Sayer Pty Ltd & Ors (1995) 13 NSWCCR 393;
Katidis v Meggitt Overseas Ltd & Anor (1995)SWCCR 147 Bathis v Walaby Grip (BAE) Pty Ltd (2004) NSW DDT 13 Peirce v FR Coyle Pty Ltd (1999) DDR 21;
E.M.Baldwin & Son Pty Ltd v Plane (1999)17 NSWCCR 434;
Bendix Mintex Pty Ltd v Barnes (1997) 14 NSWCLR 661;
SRA (NSW) v Wallaby Grip (Re Rayner) 2001 21 NSWCCR 650 ;
March v Stramere (1991) 171 CLR 506;
Mahony v Kruschich (Demolitions) Pty Ltd(1985) 156 CLR 522 Bennett v Minister Community Welfare1992-3) 176 CLR 408 Bitumen Oil Refineries (Australia) Ltd v Commissioner for Government Transport(1954-5) 92 CLR 200 Babcock Australia Ltd v Eraring Energy(?02) 2001 22 NSWCLR 141

DATES OF HEARING: 13th 14th December 2004

DATE OF JUDGMENT:

05/26/2005

LEGAL REPRESENTATIVES:
Cross Claimant: Mr G Parker
Thrid Cross Defendant: Mr D Russell with Mr A Scotting.

JUDGMENT:

WALKER J

JUDGMENT

Background to the Cross Claim.

1. Robert Leslie McKee by statement of claim issued 25 January 2001 sued Evans Deakin & Co Pty Ltd (in liquidation); Wallaby Grip (BAE) Pty Limited ( in Liquidation) and James Hardie & Co Pty Limited ( now Amaca Pty Limited) for damages for negligence alleging that as a consequence of inhaling asbestos dust and fibre he contracted asbestos related pleural disease, pleural plaques and asbestos.

2. The basis of claim against Evans Deakin was that it employed the plaintiff as a boiler…

Grounds of appeal

[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.

Continue reading Amaca v Wallaby Grip

Details

AGLC: Amaca v Wallaby Grip [2005] NSWDDT 41
Case: [2005] NSWDDT 41
Decision Date: 05/26/2005

CaseChat Overview and Summary

The case of Amaca v Wallaby Grip was heard in the Supreme Court of New South Wales. Amaca, a manufacturer of scaffolding, sued Wallaby Grip, a supplier of chemical products, for damages caused by the toxic effects of Wallaby Grip's products on Amaca's scaffolding. The dispute centred around the liability of Wallaby Grip in the context of a toxic tort, and the apportionment of liability between the two parties. Specifically, the case raised questions about the extent to which the actual knowledge of the parties is relevant in apportioning liability, and the factors that should be considered in apportioning liability between joint tortfeasors.

The court was required to decide whether the extent of actual knowledge is relevant in apportioning liability between joint tortfeasors, and if so, how it should be factored into the apportionment. The court also needed to determine the factors that should be considered in apportioning liability between joint tortfeasors, and whether the meaning of "supply" in a toxic tort is limited to cases of direct supply. The court considered the provisions of the Evidence Act (NSW) 1995, the Queensland Law Reform Act 1995, and relevant case law in making its decision.

The court held that the extent of actual knowledge is a relevant factor in apportioning liability between joint tortfeasors, and that it should be considered alongside other relevant factors such as the degree of fault and the extent of contribution to the harm caused. The court found that the meaning of "supply" in a toxic tort is not limited to cases of direct supply, and that it can include cases where the tortfeasor's actions indirectly contributed to the harm caused. The court also held that the apportionment of liability should be based on the principles of justice and fairness, and that the court should consider all relevant factors in making its decision. The court found in favour of Amaca, and ordered Wallaby Grip to pay damages to Amaca for the harm caused by its toxic products.

Orders