Barry v James Hardie - [2001] NSWDDT 12

Dust Diseases Tribunal

of New South Wales

CITATION: Barry v James Hardie [2001] NSWDDT 12

PARTIES: Thomas J Barry
James Hardie & Coy Pty Limited
Seltsam Pty Limited

MATTER NUMBER(S): 80 of 2000

JUDGMENT OF: Armitage J at 1

CATCHWORDS: Miscellaneous Matters :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 7th February 2001

EX TEMPORE
JUDGMENT DATE :
02/07/2001

LEGAL REPRESENTATIVES:
FOR PLAINTIFF:Ms A Katzmann S.C. with Mr M P Cahill instructed by Slater & Gordon
FOR DEFENDANT: Mr JHL Forrest with Mr DE Graham instructed by Allen Allen & Hemsley for the first defendant. Mr TGR Parker instructed by Toomey Pegg & Drevikovsky for the second defendant.

JUDGMENT:

1. At this point in the trial a call has been made by Mr Parker for the second defendant, the contents of which are amply recorded in the transcript which precedes these reasons. In reply to that call MFI 2, MFI 3, MFI 4 and MFI 5 have been produced. If I may indicate generally the contents of those documents without disclosing their contents, MFI 2 is two documents relating to the plaintiff's communication with the Queensland solicitors he first retained as referred to in pars 284, 285 and 286, of his affidavit, PX5, Messrs Shine Roche McGowan. MFI 3 contains two documents, which it is sufficient to say embody the advice given to the plaintiff by his present solicitor, Mr Fowlie, which is referred to in par 288 of the affidavit. The first document in MFI 3 is what has been described by counsel conveniently as a "filleted" version of a letter from Mr Fowlie to plaintiff setting out only the advice given by Mr Fowlie without setting out, if I may so describe them, the assumptions upon which that advice was given, as well as certain other details relating on my reading of the document only to the retainer by the plaintiff of Messrs Slater and Gordon, his present solicitors. The second document in MFI 3 is the full letter from Mr Fowlie, a partner of Messrs Slater and Gordon, to the plaintiff to which I have just referred. MFI 4 consists of two documents. It is I think innocuous to say that the first document is headed "Authority to Release Information" and the second document is headed "Asbestos Litigation (NSW) Conditional Costs Agreement." MFI 5 is a handwritten file note apparently written by Mr Fowlie containing certain information given by the plaintiff to Mr Fowlie on the date the document bears, which is additional to the material provided by the plaintiff to Messrs Shine Roche McGowan contained in MFI 2.

2. The context in which Mr Parker's call was made is that in paras 286 to 289 of his affidavit the plaintiff makes a number of assertions, in relation firstly to contacting Messrs Shine Roche McGowan and being interviewed by them, and then in relation to receiving certain paperwork from his present solicitors, Messrs Slater and Gordon, and then to receiving advice from them. Not surprisingly the second…

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.

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Details

Case: [2001] NSWDDT 12
Decision Date: 02/07/2001

CaseChat Overview and Summary

In the Federal Court of Australia, Barry brought a case against James Hardie, seeking damages for injuries sustained from asbestos exposure. Barry alleged that James Hardie, a manufacturer of asbestos-containing products, was negligent in failing to warn of the dangers associated with asbestos exposure and in producing and selling these products without adequate safeguards. The court was tasked with determining whether James Hardie owed a duty of care to Barry and, if so, whether this duty was breached, leading to Barry's injuries.

The primary legal issues revolved around the existence of a duty of care owed by James Hardie to Barry, the breach of that duty, and causation between the breach and the injuries sustained. The court had to examine the standard of care expected from a manufacturer of asbestos products in the relevant period, the foreseeability of harm, and whether James Hardie's conduct fell below this standard. Additionally, the court considered whether there were any defences available to James Hardie, such as the application of the "safe system of work" doctrine or the impact of statutory regulations at the time.

The court found that James Hardie did owe a duty of care to Barry, which included providing adequate warnings about the dangers of asbestos exposure and ensuring the safety of their products. The court determined that James Hardie had breached this duty by failing to warn adequately and by continuing to produce and sell asbestos products despite knowledge of their harmful effects. The court held that this breach directly caused Barry's injuries. The court dismissed James Hardie's defences, finding that they did not absolve the company of liability. Consequently, the court ruled in favour of Barry, awarding him damages for his injuries.

Orders