BHP Billiton Ltd v Dunning

Case [2015] NSWCA 55


Court of Appeal
Supreme Court

New South Wales

Case Name: 

BHP Billiton Ltd v Dunning

Medium Neutral Citation: 

[2015] NSWCA 55

Hearing Date(s): 

2 and 3 February 2015

Decision Date: 

11 March 2015

Before: 

Basten JA at [1]; 
Macfarlan JA at [48];
Meagher JA at [152]

Decision: 

Appeal dismissed with costs.

Catchwords: 

WORKERS COMPENSATION – dust diseases – the respondent successfully brought a claim against the appellant relating to injury resulting from exposure to asbestos during his employment with the appellant – whether the primary judge erred in finding that the appellant breached its duty of care to the respondent – whether the primary judge erroneously assumed that a finding of breach should follow automatically from a finding of foreseeability

EVIDENCE – opinion evidence – whether non-expert witness able to give evidence that material was or contained asbestos – admissible as evidence of objectively observed fact in the particular circumstances of the case – resort to ss 78 and 79 of the Evidence Act 1995 concerning opinion evidence unnecessary to support its admission

EVIDENCE – evidence of practice – estimates by supervisor of periods and intensity of exposures of workers to asbestos – generality of the evidence no barrier to its admission

Legislation Cited: 

Civil Liability Act 2002 (NSW), s 3B(1)(b)
Dust Diseases Tribunal Act 1989 (NSW), s 32
Evidence Act 1995 (NSW), ss 55(1), 78, 79
Factories, Shops and Industries Act 1962 (NSW), s 41(2)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: 

Amaba Pty Ltd v Booth [2010] NSWCA 344
Amaca Pty Ltd v Ellis [2010] HCA 5; 240 CLR 111
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Baker v Quantum Clothing Group Ltd [2011] UKSC 17; [2011] 1 WLR 1003
Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Dunning v BHP Billiton Limited [2014] NSWDDT 3
Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352
New South Wales v Fahy [2007] HCA 20; 81 ALJR 1021
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Tame v New South Wales [2002] HCA 35; 211 CLR 317
Williams v University of Birmingham [2011] EWCA Civ 1242
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40

Texts Cited: 

J D Heydon, Cross on Evidence, (9th Australian ed 2013, LexisNexis Butterworths)

Category: 

Principal judgment

Parties: 

BHP Billiton Ltd (Appellant)
Jake Douglas Dunning as tutor for Steven Douglas Dunning (Respondent)

Representation: 

Counsel:
B W Walker SC/T G R Parker SC (Appellant)
P C B Semmler QC/S Tzouganatos (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Appellant)
Slater & Gordon Lawyers (Respondent)

File Number(s): 

CA 2014/226814

Decision under appeal: 

 Court or Tribunal: 

Dust Diseases Tribunal of New South Wales

  Citation: 

Dunning…

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BHP Billiton Ltd v Dunning [2015] NSWCA 55
Case
[2015] NSWCA 55
Decision Date

CaseChat Overview and Summary

The appeal concerned a workers' compensation claim brought by the respondent, Mr. Dunning, against his former employer, BHP Billiton Ltd. Mr. Dunning alleged that he had suffered injury as a result of exposure to asbestos during his employment with BHP Billiton. The primary judge had found in favour of Mr. Dunning, determining that BHP Billiton had breached its duty of care. BHP Billiton appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that BHP Billiton breached its duty of care to Mr. Dunning, and whether the primary judge had wrongly assumed that a finding of breach was an automatic consequence of finding that the risk of harm was foreseeable. Additionally, the court considered the admissibility of certain evidence, including opinion evidence from a non-expert witness regarding the presence of asbestos and estimates by a supervisor concerning the duration and intensity of asbestos exposure.

The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The court found that the evidence, including the non-expert opinion evidence concerning asbestos and the supervisor's estimates of exposure, was admissible. The court clarified that the non-expert's evidence was admissible as evidence of objectively observed fact, rendering recourse to sections 78 and 79 of the *Evidence Act 1995* unnecessary. The generality of the supervisor's evidence did not preclude its admission. Crucially, the court found no error in the primary judge's assessment of breach of duty, rejecting the argument that foreseeability automatically led to a finding of breach.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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