BI (Contracting) Pty Ltd v P H R Pty Ltd - [2005] NSWCA 304

CITATION:
BI (CONTRACTING) PTY LTD v P H R PTY LTD [2005] NSWCA 304

HEARING DATE(S):
11 August 2005

JUDGMENT DATE:

9 September 2005

JUDGMENT OF:
Mason P at 1; Handley JA at 33; Windeyer J at 34

DECISION:
Appeal dismissed with costs.

CATCHWORDS:
NEGLIGENCE - death as a result of a dust-related condition - exposure to asbestos dust and fibre in the course of employment - sub-contractor - failure to warn or protect - admission of affidavit in accordance with s25(3) Dust Diseases Tribunal Act 1989 - concession at trial that affidavit had been admitted in other proceedings - affidavit not read or admitted in other proceedings - affidavit of no significance to the appeal - challenge to apportionment of liability. (ND)

LEGISLATION CITED:
Civil Liability Act 1936 (SA)
Dust Diseases Tribunal Act 1989
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s5

CASES CITED:
BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288
BI (Contracting) Pty Ltd v Myer Emporium Limited [2005] NSWCA 305
Williams v BI (Contracting) Pty Ltd & Anor [2004] NSWDDT 19

PARTIES:
BI (CONTRACTING) PTY LTD
PHR PTY LTD

FILE NUMBER(S):
CA 40935/04; 40936/04

COUNSEL:
Appellant: J J E Fernon SC
Respondent: M Neil QC/ G Rundle

SOLICITORS:
Appellant: Makinson & d'Apice
Respondent: Thompson Cooper

LOWER COURT JURISDICTION:
Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S):
DDT 7/04
DDT 118/04

LOWER COURT JUDICIAL OFFICER:
O'Meally P

CA40935/2004
CA40936/2004
DDT 7/2004
DDT 118/2004

MASON P
HANDLEY JA
WINDEYER J
Friday 9 September 2005

BI (CONTRACTING) PTY LIMITED v PHR PTY LIMITED

JUDGMENT

1 MASON P: This appeal from the Dust Diseases Tribunal is restricted to points of law or questions as to the admission or rejection of evidence (Dust Diseases Tribunal Act 1989, s32).

2 The late Mr Hans Strikwerda was employed by the respondent (PHR) between 1964 and 1968 as a pipe fitter welder. In that employment he was exposed to asbestos dust and fibre during the time when PHR was a sub-contractor engaged to do plumbing and air-conditioning work on the construction of the Royal Adelaide Hospital.

3 The appellant (BI) was also a sub-contractor, engaged to spray asbestos material on beams and girders.

4 The deceased was exposed to crocidolite asbestos that came from material being sprayed by BI. As a consequence he contracted mesothelioma that led to his death on 5 April 2004.

5 The claims brought by the deceased (subsequently his estate) alleged negligence in the failure to warn or protect the deceased against the risks stemming from inhaling asbestos dust. The claims against the defendants were settled except for one portion of the damages. The judgment on that matter has been the subject of a separate appeal (see BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288).

6 The cross-claims for contribution were litigated in Adelaide. Since the place of the tort was South Australia the governing statute was s25 of the Wrongs Act 1936 (SA), subsequently renamed the Civil Liability Act 1936 (SA). The provision is not materially…

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: [2005] NSWCA 304
Decision Date: 9 September 2005

CaseChat Overview and Summary

BI (Contracting) Pty Ltd appealed a decision of the Dust Diseases Tribunal of New South Wales concerning liability for the death of Mr. R, who suffered from a dust-related condition due to asbestos exposure during his employment. The respondent, P H R Pty Ltd, was a sub-contractor on the site where Mr. R worked. The appeal concerned the apportionment of liability between the parties.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in apportioning liability between BI (Contracting) Pty Ltd and P H R Pty Ltd. This involved considering the extent of each party's responsibility for Mr. R's exposure to asbestos dust and fibre, and whether P H R Pty Ltd, as a sub-contractor, had failed in its duty to warn or protect Mr. R. The court also considered the admissibility and significance of an affidavit, though it was ultimately deemed of no significance to the appeal.

The Court of Appeal upheld the primary judge's decision regarding the apportionment of liability. The court applied principles of negligence, considering the duty of care owed by a sub-contractor to workers on a site, particularly in relation to known hazards like asbestos. The court found that the primary judge had correctly assessed the contribution of each party to Mr. R's exposure and that the apportionment reflected the respective failures in duty.

The appeal was dismissed, and BI (Contracting) Pty Ltd was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BI (CONTRACTING) PTY LTD v P H R PTY LTD [2005] NSWCA 304
HEARING DATE(S):	11 August 2005
JUDGMENT DATE:	9 September 2005
JUDGMENT OF:	Mason P at 1; Handley JA at 33; Windeyer J at 34
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	NEGLIGENCE - death as a result of a dust-related condition - exposure to asbestos dust and fibre in the course of employment - sub-contractor - failure to warn or protect - admission of affidavit in accordance with s25(3) Dust Diseases Tribunal Act 1989 - concession at trial that affidavit had been admitted in other proceedings - affidavit not read or admitted in other proceedings - affidavit of no significance to the appeal - challenge to apportionment of liability. (ND)
LEGISLATION CITED:	Civil Liability Act 1936 (SA) Dust Diseases Tribunal Act 1989 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s5
CASES CITED:	BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288 BI (Contracting) Pty Ltd v Myer Emporium Limited [2005] NSWCA 305 Williams v BI (Contracting) Pty Ltd & Anor [2004] NSWDDT 19
PARTIES:	BI (CONTRACTING) PTY LTD PHR PTY LTD
FILE NUMBER(S):	CA 40935/04; 40936/04
COUNSEL:	Appellant: J J E Fernon SC Respondent: M Neil QC/ G Rundle
SOLICITORS:	Appellant: Makinson & d'Apice Respondent: Thompson Cooper

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S):	DDT 7/04 DDT 118/04
LOWER COURT JUDICIAL OFFICER:	O'Meally P