BHP Billiton Pty Ltd v Schultz & Ors - [2004] HCATrans 159

[2004] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S108 of 2003

B e t w e e n -
BHP BILLITON LIMITED
Appellant
and
TREVOR JOHN SCHULTZ
First Respondent
WALLABY GRIP LIMITED
Second Respondent
WALLABY GRIP (BAE) PTY (in Liquidation)
Third Respondent
WALLABY GRIP (NSW) PTY LTD (in Liquidation)
Fourth Respondent
AMACA PTY LIMITED (formerly James Hardie & Co Pty Limited)
Fifth Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 18 MAY 2004, AT 10.16 AM

(Continued from 4/12/03)

__________________

GLEESON CJ: Mr Walker and Mr Jackson, there is a certificate from the Senior Registrar saying that she has been informed by ACUITI Legal, solicitors for the second, third and fourth respondents, that the second, third and fourth respondents submit to any order of the Court save as to costs. She has been informed by Phillips Fox, solicitors for the fifth respondent, that the fifth respondent submits to any order of the Court save as to costs. Yes, Mr Walker.

MR WALKER: Your Honours, at the outset we have been served with an affidavit to which, out of more abundant caution, we have in turn prepared a responding affidavit. Bearing in mind the nature of these proceedings as an appeal by special leave, it occurred to us – and I have briefly discussed this with my learned friend Mr Jackson – that it would be as well to attend to the matter of the proper reception, if there can be any, of that material before we turn to the matter upon which the Court has sought further submissions.

GLEESON CJ: Who reads the affidavit of David Stuart Taylor of the ‑ ‑ ‑

MR JACKSON: I do, your Honour.

GLEESON CJ: Is there any objection to that affidavit?

MR WALKER: Your Honour, not by way of admissibility if it were received, but we draw to attention the question whether this is material that can be received. It is evidence of a subsequent occurrence which ‑ ‑ ‑

CALLINAN J: How is it relevant to the issue, anyway?

MR WALKER: I am not suggesting it is, except if it were properly received ‑ ‑ ‑

KIRBY J: If it is not relevant it cannot be received in any case, but when I saw it I averted my eyes, because this was receiving new evidence.

MR WALKER: That is right. That is the first point we raise, can this Court ‑ ‑ ‑

GLEESON CJ: Well, I looked at it and I lingered over it and stared at it.

KIRBY J: I had a shock when I saw this.

GLEESON CJ: The question that has been raised by Justice Callinan is one of relevance. We had better hear what Mr Jackson has to say about that. What do you say is the relevance of this?

MR JACKSON: Your Honour, could I…

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: [2004] HCATrans 159
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Full Federal Court concerning the liability of BHP Billiton Pty Ltd for injuries sustained by former employees who had worked at its manganese mine in Groote Eylandt. The former employees, the respondents, alleged that their respiratory illnesses, including lung cancer and asbestosis, were caused by their exposure to dust and asbestos during their employment. BHP Billiton, the appellant, sought to rely on the defence of statutory assumption of risk, arguing that the employees had voluntarily accepted the risks associated with their employment.

The central legal issue before the High Court was whether the defence of statutory assumption of risk, as provided by the relevant legislation, could defeat the claims of the former employees. Specifically, the Court had to determine whether the employees' knowledge of the risks of dust and asbestos exposure was sufficient to establish that they had voluntarily assumed those risks, thereby precluding them from recovering damages for their injuries. This involved an examination of the elements required to establish the defence and its application in the context of workplace safety and employer liability.

The High Court, by majority, held that the defence of statutory assumption of risk was not available to BHP Billiton. The Court reasoned that the defence requires more than mere knowledge of a risk; it necessitates a voluntary acceptance of that risk. In this instance, the employees' continued employment, even with knowledge of the potential dangers, did not amount to a voluntary assumption of the specific risks that led to their illnesses. The Court emphasised that the employer has a non-delegable duty to provide a safe working environment, and the employees' acceptance of employment did not absolve the employer of this fundamental obligation. The statutory provisions were interpreted as not intending to extinguish an employee's right to compensation for injuries arising from an employer's breach of duty, particularly where the employer failed to take reasonable steps to mitigate known risks.

The High Court dismissed the appeal, upholding the decision of the Full Federal Court. The respondents were therefore entitled to pursue their claims for damages against BHP Billiton.

Orders