Brear v James Hardie & Co Pty Ltd

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Case Copied 27 min read
Reported Decision: (2000) 50 NSWLR 388

New South Wales


Court of Appeal

CITATION: GEOFFREY JOHN THOMAS BREAR v JAMES HARDIE & COY PTY LTD & ANOR [2000] NSWCA 352
FILE NUMBER(S): CA 40850/99
HEARING DATE(S): 8 September 2000
JUDGMENT DATE:
4 December 2000

PARTIES :
GEOFFREY JOHN THOMAS BREAR v JAMES HARDIE & COY PTY LIMITED, SELTSAM PTY LIMITED
JUDGMENT OF: Spigelman CJ at 1; Mason P at 2; Priestley JA at 56
LOWER COURT JURISDICTION : Dust Diseases Tribunal
LOWER COURT
FILE NUMBER(S) : 		DDT 51/95
LOWER COURT
JUDICIAL OFFICER :		 O'Meally P
COUNSEL: App: C Hoeben SC
1st R: FM Douglas QC/DE Graham/TGR Parker
2nd R: J Fernon
Attorney General (NSW) intervening: M G Sexton SC/ S Gageler
SOLICITORS: App: McLaughlin & Riordan
1st R: Holman Webb
2nd R: Toomey Pegg & Drevikovsky
I V Knight, State Crown Solicitor (Intervener)
CATCHWORDS: Conflict of laws - appellant claiming damages for asbestos related pleural disease - s11 Limitation of Actions Act 1974 (Qld) - characterising laws as procedural or substantive for choice of law purposes - s5 Choice of Law (Limitation Provisions) Act 1993 (NSW) (the Choice of Law Act) - whether the Choice of Law Act has been displaced by s12A Dust Diseases Tribunal Act 1989 ( the DDT Act) - the Choice of Law Act not a statute of limitations - double actionability rule for Australian torts - Choice of Law Act occupies totality of intended field - importation as substantive law the limitation laws governing in place of tort displaces limitation laws governing in forum - discussion of Second Reading speech for the DDT Bill - restraint to be exercised in construing enactment in light of Minister’s speech - intended effect of enactment as distinct from mischief giving rise to it - no error of law in the trial judge’s refusal of an award for economic loss - loss of earning capacity - no error of law where tribunal unpersuaded of financial loss - no evidence about availability of relevant remunerative work in area plaintiff lives - appeal dismissed with costs. (D)
DECISION: Appeal dismissed with costs.



THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
                            CA 40850/99
                            DDT 51/95


                                SPIGELMAN CJ
                                MASON P
                                PRIESTLEY JA

                                Monday 4 December 2000

    Geoffrey John Thomas BREAR v JAMES HARDIE &
                COY PTY LTD & Anor

In 1995 the appellant commenced proceedings in the Dust Diseases Tribunal claiming damages for asbestos-related pleural disease. He sued three defendants: the Commonwealth of Australia, James Hardie & Co Pty Ltd and Seltsam Pty Ltd. Among other things he claimed that, James Hardie, had manufactured and supplied asbestos cement products to which he was exposed during employment in various callings between 1952 and 1985. The proceedings were tried before O'Meally P in 1999. They resulted in a verdict and judgment for the appellant against James Hardie in the sum of $10,952 and verdicts in favour of the other defendants (see Brear v Commonwealth (1999) 18 NSWCCR 637). It was common ground that choice…

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Details
Case
[2000] NSWCA 352
Decision Date

CaseChat Overview and Summary

The appellant, Mr Brear, claimed damages for asbestos-related pleural disease against the respondent, James Hardie & Co Pty Ltd. The appeal concerned the application of limitation periods in circumstances where the tort occurred in New South Wales but the proceedings were brought in Queensland. The Court of Appeal of New South Wales was required to determine which jurisdiction's limitation laws applied to the appellant's claim.

The central legal issue was whether the *Choice of Law (Limitation Provisions) Act 1993* (NSW) (the Choice of Law Act) applied to displace the limitation laws of Queensland, or if it had been superseded by the *Dust Diseases Tribunal Act 1989* (Qld) (the DDT Act). This involved characterising the Choice of Law Act for the purposes of conflict of laws, specifically whether it was a procedural or substantive law, and considering the principle of double actionability for Australian torts. The court also considered whether the trial judge had erred in refusing an award for economic loss, specifically loss of earning capacity, where the tribunal was unpersuaded of financial loss due to a lack of evidence regarding the availability of remunerative work in the appellant's locality.

The Court of Appeal held that the Choice of Law Act was not a statute of limitations itself, but rather operated to import the limitation laws of the place where the tort occurred as substantive law, thereby displacing the limitation laws of the forum. The court found that the Choice of Law Act occupied the totality of its intended field and was not displaced by the DDT Act. In relation to the economic loss, the court found no error of law in the trial judge's refusal to award damages for loss of earning capacity, as the tribunal was not persuaded of any financial loss, and there was no evidence presented regarding the availability of relevant work in the appellant's area of residence.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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Evidence

Evidence Before The Court

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Ratio Decidendi

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