BHP Billiton Ltd v Dunning

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.