BI (Contracting) Pty Ltd v David Jones Ltd

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SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

BI (CONTRACTING) PTY LTD v DAVID JONES LTD

[2019] SASCFC 138

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)

8 November 2019

TORTS - THE LAW OF TORTS GENERALLY - JOINT OR SEVERAL TORTFEASORS - CONTRIBUTION - GENERALLY - RELEVANT PRINCIPLES

TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - PRINCIPLES AND MODE OF APPORTIONMENT

WORKERS' COMPENSATION - WORKERS' COMPENSATION LEGISLATION FOR PARTICULAR INDUSTRIES AND DISEASES - DUST DISEASES - DAMAGES

The appellant was the defendant in an action for contribution brought by the respondent pursuant to s 6 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), following the settlement of a claim for damages for personal injury brought against the respondent by Mr Murphy, a former employee of the respondent’s. Mr Murphy had alleged that in the course of his employment he was negligently exposed to asbestos and, as a result, contracted mesothelioma.

The trial Judge found that the respondent had proved that Mr Murphy was exposed to asbestos sprayed by the appellant and determined that a fair apportionment of liability between the appellant and the respondent was 75/25, being that the respondent was entitled to recover 75 per cent of its reasonable liability to Mr Murphy from the appellant.  The trial Judge found that settlement sum was reasonable and that the respondent had therefore proved the quantum of its claim against the appellant.

The appellant complains on appeal that the respondent failed to establish that Mr Murphy was exposed to asbestos sprayed by the appellant and that the trial Judge applied the incorrect legal test in finding that the respondent had proved the quantum of its alleged loss and erred in finding that the settlement was reasonable.

Held, per Kelly J (Kourakis CJ and Hinton J agreeing), dismissing the appeal:

1.  It was open to the Judge to conclude that during the course of his employment with the respondent, Mr Murphy had, on the balance of probabilities, been exposed to asbestos in the display area of David Jones’ premises.

2.  The Judge applied the correct legal test with respect to quantum.

3.  On the basis of the material available, the Judge was entitled to conclude that the figure for which the respondent settled the primary claim was reasonable.  Having regard to the appellant’s greater culpability in respect of the joint exposure, an amount equivalent to 75 per cent of that sum was fair and equitable.

Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6; Dust Diseases Act 2005 (SA) s 8(1)(b), referred to.
Saccardo Constructions Pty Ltd v Gammon (No 2) (1994) 63 SASR 333; Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; Fox v Percy (2003) 214 CLR 118, applied.
Deloitte Touche Tohmatsu v Cridlands Pty Ltd &…

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Details
Case
[2019] SASCFC 138
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, Court of Appeal, heard an appeal by BI (Contracting) Pty Ltd against a decision of a lower court that found in favour of David Jones Ltd. David Jones sought indemnity or contribution from BI concerning its liability to a former employee, Mr. Murphy, who had contracted mesothelioma. Mr. Murphy had previously settled a claim against David Jones for damages for personal injury due to negligent exposure to asbestos during his employment. BI admitted to spraying asbestos at the David Jones store but denied liability for contribution.

The primary legal issues before the Court of Appeal were whether the trial judge erred in finding that David Jones had sufficiently proven Mr. Murphy's exposure to asbestos sprayed by BI, and whether the trial judge applied the correct legal test in determining the quantum of David Jones' loss. BI also sought an extension of time to commence its appeal.

The Court of Appeal considered the application of section 8(1)(b) of the Dust Diseases Act 2005 (SA), which creates an evidentiary presumption that exposure to asbestos dust caused or contributed to a dust disease if the injured person suffered from such a disease and was exposed to asbestos dust in circumstances where it might have caused or contributed to the disease. The trial judge found this presumption engaged, placing an onus on BI to prove that the asbestos it sprayed did not cause or contribute to Mr. Murphy's mesothelioma. BI failed to adduce evidence to discharge this burden. The Court also reviewed the evidence regarding the reasonableness of the settlement amount paid to Mr. Murphy and the apportionment of liability.

The Court of Appeal granted BI an extension of time to commence its appeal but ultimately dismissed the appeal, upholding the trial judge's findings on exposure and the quantum of loss. The Court found that a 75/25 per cent apportionment of liability in favour of David Jones was fair and equitable, reflecting BI's greater culpability.

Orders

Orders of the court

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Background

Background to the litigation

BI appeals that decision on two main grounds. The first ground of appeal alleges that David Jones failed to establish that Mr Murphy was exposed to asbestos sprayed by BI. The second ground of appeal alleges that the Judge applied the incorrect legal test in finding that David Jones had proved the quantum of its alleged loss. BI also seeks an extension of time for commencement of the appeal.Background facts Before turning to the grounds of appeal it is necessary to set out the history to the proceedings and the relevant factual background. Between 24 May 1965 and 29 December 1978, David Jones employed Mr Murphy as a display artist at its Rundle Street store. Mr Murphy principally worked in an area described as “the roof space”, known as the display department (sometimes referred to as “the seventh floor” or the “plant room”) in the David Jones store, preparing props and window dressings for store promotions. The display department incorporated an open workshop, some partitioned offices and an air‑conditioning plant room with associated duct work. In 1960, BI sprayed 22,106 square yards with asbestos throughout the store. The sprayed asbestos was applied to all structural steelwork. In April 2007, Mr Murphy instituted proceedings against David Jones seeking damages for personal injury, claiming that David Jones had negligently exposed him to asbestos in the course of employment as a result of which he contracted a dust disease, namely mesothelioma. In October 2007, those proceedings were settled and judgment was entered by consent for Mr Murphy in the amount of $435,000 inclusive of costs. Mr Murphy died in January 2008 from mesothelioma. In October 2010, David Jones commenced proceedings against BI seeking indemnity or contribution in relation to its liability to Mr Murphy. BI admitted that it carried out sprayed asbestos operations at David Jones’ Rundle Street store but otherwise denied that David Jones was entitled to indemnity or contribution from it. David Jones’ primary case at trial was that Mr Murphy had been exposed to sprayed asbestos during his work in the display department. David Jones relied on a body of documentary evidence and oral evidence called from eye‑witnesses who saw Mr Murphy in that area during his employment at the David Jones’ Rundle Street store. BI’s defence was that David Jones had not proved exposure and, furthermore, had not established that the settlement of the primary proceedings in the sum of $435,000 inclusive of costs was reasonable.The Judge’s findings The Judge made the following findings in relation to the exposure of Mr Murphy to asbestos in the store:[2][2] David Jones Ltd v BI (Contracting) P/L [2017] SADC 79, 12 [78]-[81], 13 [83], 13 [85].1.BI sprayed 22,106 square yards of asbestos at David Jones’ Rundle Street store in 1960. The asbestos was sprayed on the building’s structural steelwork.2.The asbestos sprayed by BI contained blue asbestos, i.e. crocidolite, which is a very toxic form of asbestos.3.Mr Murphy worked in the display department of the Rundle Street store between 24 May 1965 and 29 December 1978, a period of 13 years.4.The evidence did not permit of a finding that the ceiling or the air‑conditioning ducts in the display department were sprayed with asbestos.5.It was apparent from the Asbestos Register that there was asbestos in many areas of the David Jones store, including the roof area on the boilers, the plant room soffit beams, the original electric cable trays, and asbestos rope at the concrete roof slab interface. There were also traces of asbestos in a variety of other locations throughout the building.6.Mr Murphy was exposed to asbestos dust in circumstances in which that exposure might have caused or contributed to his mesothelioma. 7.Based on the evidence given and findings made in The Public Trustee of South Australia v Clifton Financial Services Pty Ltd (No. 3),[3] BI knew, when it sprayed asbestos at the Rundle Street store in 1960, that it was hazardous and took no steps to warn David Jones or any of its employees of the danger.8.The failure to warn of the dangers established negligence on the part of BI.9.It was likely that Mr Murphy was exposed to some asbestos at the store that was not supplied by BI and that such other asbestos may have caused or contributed to his mesothelioma. [3] [2004] NSWDDT 40.

Evidence

Evidence Before The Court

The trial Judge found that the presumption created in s 8(1)(b) of the Dust Diseases Act 2005 (SA) (‘Dust Diseases Act’) was engaged. That section relevantly states:8—Evidentiary presumptions and special rules of evidence and procedure(1)If it is established in a dust disease action that a person (the injured person)—(a) suffers or suffered from a dust disease; and(b) was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease,it will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person’s dust disease. It was sufficient for David Jones to prove that the deceased was exposed to asbestos sprayed by BI which might have caused mesothelioma. The Judge found that it was therefore incumbent on BI to prove that Mr Murphy’s exposure to the asbestos which BI sprayed in 1960 did not cause or contribute to Mr Murphy’s mesothelioma. BI did not adduce any evidence to negate the statutory presumption. In assessing the contribution that asbestos other than the asbestos sprayed by BI might have made to Mr Murphy’s contraction of mesothelioma, the trial Judge concluded that it was likely that the 22,106 square yards of asbestos sprayed by BI was, by volume, much greater than any other asbestos within the David Jones Rundle Street store and, having regard to that fact, a fair and equitable apportionment of liability as between BI and David Jones was 75/25 per cent.Ground 1 – Proof of Exposure BI’s complaint in support of ground 1 is based on comments and observations made by the trial Judge in the following paragraphs:[78]Whilst I thought that Ms Cavanaugh and Ms Simmons were credible witnesses and I generally accept their evidence, it does not permit a finding that the ceiling in the so called roof area was sprayed with asbestos, nor does it permit a finding that the air conditioning ducts in that area were sprayed with asbestos. Ms Simmons’ evidence of her understanding in respect of asbestos is clearly hearsay and inadmissible.[79]The evidence does, however, establish that in 1960 BI sprayed 22,106 square yards of asbestos at the [David Jones] Store. It establishes that it sprayed asbestos on the building’s structural steelwork. Based on the air sampling report attached to the Department of Public Health letter of 14 November 1977 and the evidence given and findings made in The Public Trustee of South Australia v Clifton and Ors, I think it likely that the asbestos that BI had sprayed at the [David Jones] Store contained blue asbestos, i.e. crocidolite, and I so find. I am permitted to know that crocidolite is a very toxic form of asbestos and that it is much more toxic than other forms of asbestos. Mr Murphy worked at that store between 24 May 1965 and 29 December 1978 in its Display Department. In my view these facts are sufficient to enable me to find that he was exposed to asbestos dust in circumstances in which that exposure might have caused or contributed to his mesothelioma. As such, the evidentiary presumption created by s 8(1)(b) of the Dust Diseases Act created an evidentiary burden on BI to establish that this exposure did not cause or contribute to Mr Murphy’s mesothelioma. It has not adduced any evidence to discharge that burden. I therefore find Mr Murphy’s exposure to the asbestos dust that BI sprayed at the [David Jones] Store caused or contributed to his mesothelioma.[Citations omitted]

Decision

Reasons for decision

KELLY J (dissent)
On the basis of the material available at trial, the Judge was entitled to conclude that the figure for which David Jones settled the primary claim was reasonable. Having regard to BI’s greater culpability in respect of the joint exposure, an amount equivalent to 75 per cent of that sum was fair and equitable.Conclusion For these reasons, I would grant BI an extension of time in which to commence the appeal but would dismiss the appeal. HINTON J: I agree with Kelly J for the reasons her Honour gives that this appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

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