BI (Contracting) Pty Ltd v David Jones Ltd

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.