Brear v James Hardie & Co Pty Ltd

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Act 1993* (NSW) (the Choice of Law Act) applied to displace the limitation laws of Queensland, or if it had been superseded by the *Dust Diseases Tribunal Act 1989* (Qld) (the DDT Act).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.