Cockatoo Dockyard v Browne - [2001] NSWCA 58

Reported Decision:
(2001) 21 NSWCCR 544

New South Wales

Court of Appeal

CITATION: Cockatoo Dockyard v Browne [2001] NSWCA 58

FILE NUMBER(S): CA 40639/99; 40816/99

HEARING DATE(S): 29 November 2000

JUDGMENT DATE:
5 April 2001

PARTIES :

Cockatoo Dockyard Pty Limited
v
Philip John Browne
(Executor of Late David Charles Browne) & Anor

JUDGMENT OF: Priestley JA at 1; Handley JA at 2; Heydon JA at 19

LOWER COURT JURISDICTION : Dust Diseases Tribunal

LOWER COURT
FILE NUMBER(S) : DDT 26/99

LOWER COURT
JUDICIAL OFFICER : Johns J

COUNSEL: T G R Parker (for appellant in the appeal and applicant in leave application)
A J Leslie QC/A O Leslie (for respondent in appeal, cross appellant in cross-appeal and opponent in application)
Mr Kazera Sub App for Commonwealth observing

SOLICITORS: Allen Allen & Hemsley (Appellant)
Turner Freeman (Respondent 1)
Australian Government Solicitor (Respondent 2)

CATCHWORDS: NEGLIGENCE - personal injury - breach of duty - causation - remoteness - PRACTICE & PROCEDURE - motions for summary dismissal of appeals discouraged

LEGISLATION CITED: Dust Diseases Tribunal Act

CASES CITED:
Bonnington Castings v Wardlaw [1956] AC 613
Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613
Quinn v Cameron & Robertson Ltd [1958] AC 9
McGhee v National Coal Board [1973] 1 WLR 1
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Commonwealth of Australia v McLean (1996) 41 NSWLR 389
Mt Isa Mines v Pusey (1970) 125 CLR 383
Doherty v Liverpool District Hospital (1991) 22 NSWLR 284

DECISION: Appeal and cross-appeal each dismissed. Orders made

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40639/99
40816/99
DDT 26/99

PRIESTLEY JA

HANDLEY JA

HEYDON JA

5 April 2001

COCKATOO DOCKYARD PTY LIMITED v PHILIP JOHN BROWNE (Executor of Late David Charles Browne) & Anor

The appellant was the employer of a fitter who brought an action in the Dust Diseases Tribunal after contracting mesothelioma as a result of work-related contact with asbestos dust. Judgment was entered in favour of the plaintiff and the employer appealed under s 32 of the Dust Diseases Tribunal Act.

The appellant argued three grounds on which The Tribunal had erred in law: (1) there was no legal basis for the finding that a breach of duty had been established; (2) there was no evidence to support the finding that the breaches of duty caused the injury; and (3) the damage was too remote a consequence of any breach of duty. The worker’s executor filed a cross-appeal on damages. The respondent also filed a motion for summary dismissal of the appeal on the ground that no question of law was involved.

, dismissing the appeal and cross-appeal: (1) His Honour was correct in finding that a breach of duty had been established; (2) The argument that the Judge was incorrect in finding that the breaches of duty caused the plaintiff ’s injury was contrary to established authority in the House of Lords and…

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.

Continue reading Cockatoo Dockyard v Browne

Details

AGLC: Cockatoo Dockyard v Browne [2001] NSWCA 58
Case: [2001] NSWCA 58
Decision Date: 5 April 2001

CaseChat Overview and Summary

Cockatoo Dockyard Pty Ltd (the appellant) appealed a decision of the District Court of New South Wales, and Mr. Browne (the respondent) cross-appealed. The dispute concerned personal injury sustained by Mr. Browne during his employment with Cockatoo Dockyard. The primary proceedings in the District Court had found Cockatoo Dockyard liable for negligence.

The appeal and cross-appeal raised several legal issues, including whether the District Court had erred in finding that Cockatoo Dockyard breached its duty of care to Mr. Browne, whether the breach caused Mr. Browne's injuries, and whether those injuries were too remote a consequence of the breach. The appeal also touched upon the appropriateness of summary dismissal of appeals.

The New South Wales Court of Appeal, comprising Priestley, Handley and Heydon JJA, dismissed both the appeal and the cross-appeal. The Court found no error in the District Court's findings regarding breach of duty, causation, and remoteness. The Court also indicated a general disinclination towards summary dismissal of appeals, suggesting that such matters should typically proceed to a full hearing.

Consequently, the orders of the District Court were affirmed, and both the appeal and cross-appeal were dismissed.

Orders

Orders of the court

Appeal and cross-appeal each dismissed. Orders made

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:	Cockatoo Dockyard v Browne [2001] NSWCA 58
FILE NUMBER(S):	CA 40639/99; 40816/99
HEARING DATE(S):	29 November 2000
JUDGMENT DATE:	5 April 2001
PARTIES :	Cockatoo Dockyard Pty Limited v Philip John Browne (Executor of Late David Charles Browne) & Anor
JUDGMENT OF:	Priestley JA at 1; Handley JA at 2; Heydon JA at 19

LOWER COURT JURISDICTION :	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S) :	DDT 26/99
LOWER COURT JUDICIAL OFFICER :	Johns J

COUNSEL:	T G R Parker (for appellant in the appeal and applicant in leave application) A J Leslie QC/A O Leslie (for respondent in appeal, cross appellant in cross-appeal and opponent in application) Mr Kazera Sub App for Commonwealth observing
SOLICITORS:	Allen Allen & Hemsley (Appellant) Turner Freeman (Respondent 1) Australian Government Solicitor (Respondent 2)
CATCHWORDS:	NEGLIGENCE - personal injury - breach of duty - causation - remoteness - PRACTICE & PROCEDURE - motions for summary dismissal of appeals discouraged
LEGISLATION CITED:	Dust Diseases Tribunal Act
CASES CITED:	Bonnington Castings v Wardlaw [1956] AC 613 Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 Quinn v Cameron & Robertson Ltd [1958] AC 9 McGhee v National Coal Board [1973] 1 WLR 1 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Mt Isa Mines v Pusey (1970) 125 CLR 383 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284
DECISION:	Appeal and cross-appeal each dismissed. Orders made