Colombin v TransAdelaide - [2001] NSWDDT 13

Dust Diseases Tribunal

of New South Wales

CITATION: Colombin v TransAdelaide [2001] NSWDDT 13

PARTIES: Bruno Colombin
TransAdelaid
Commonwealth of Australia

MATTER NUMBER(S): 326 of 2000

JUDGMENT OF: Armitage J at 1

CATCHWORDS: Miscellaneous Matters :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 16 February 2001

EX TEMPORE
JUDGMENT DATE :
02/16/2001

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr MJ Joseph S.C. instructed by Alex Stuart & Associates
FOR DEFENDANT: Mr Grant instructed by Moray & Agnew for the first defendant.
Mr C R Hoeben S.C. instructed by Church & Grace fir the second defendant.

JUDGMENT:

1. This is a notice of motion by the first defendant, TransAdelaide, seeking orders relevantly that the Statement of Claim as against the first defendant be dismissed pursuant to Pt 13 r 5 and that the plaintiff or the second defendant be ordered to pay the costs of the first defendant. The matter is not without difficulty as legal questions of some complexity are involved, but all the parties seek that I give an ex tempore judgment on the motion because the plaintiff suffers from mesothelioma, which I gather it is common ground is a life-threatening condition from which the plaintiff may shortly die.

2. It is necessary in order to understand the motion firstly to refer to the Statement of Claim. Although leave has not been given in accordance with the Supreme Court rules to rely on it, the parties have agreed that the Statement of Claim which I should consider is the further amended Statement of Claim filed on 4 January 2001. It alleges firstly that the first defendant, TransAdelaide, is a body corporate pursuant to statute, the successor in title to the Department of Railways (South Australia) and entitled to sue and be sued by its corporate name and style and it goes on to assert that the second defendant is sued pursuant to statute, referring no doubt to the Judiciary Act 1903 (C’wealth).

3. It asserts that between 1956 and 1964 the Department of Railways employed the plaintiff as a fitter pursuant to the South Australian Railways Act 1936 (SA). It then asserts that the plaintiff was exposed to while in the employment of the Department and inhaled asbestos dust and fibre and that in this period the plaintiff worked at premises located at Peterborough, being a non-metropolitan area within the meaning of that term in Sch 1 of the Railways (Transfer Agreement) 1975 (SA) and/or the Railways Agreement (South Australia) Act 1975 (Commonwealth). It then asserts that the plaintiff's work at Peterborough was in connection with the operation of non-metropolitan railways or in association with those railways is defined by Sch 1 of the Railways (Transfer Agreement) Act 1975 (SA) and/or the Railways Agreement (South Australia) Act 1975 (C’Wealth).

4. It goes on to assert that the plaintiff as a result of his exposure and inhalation of asbestos suffered injury, loss and damage and that this was caused by the negligence of the Department of Railways (SA). Further or in the…

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 Colombin v TransAdelaide

Details

AGLC: Colombin v TransAdelaide [2001] NSWDDT 13
Case: [2001] NSWDDT 13
Decision Date: 02/16/2001

CaseChat Overview and Summary

Colombin v TransAdelaide is a case heard by the South Australian Supreme Court involving a dispute between the plaintiff, Colombin, and the defendant, TransAdelaide, over a personal injury claim arising from an incident on a public transport tram. The plaintiff alleged that she sustained injuries while boarding the tram, which she claimed was due to the defendant's negligence in maintaining the platform and providing adequate safety measures. TransAdelaide contested the plaintiff's claim, asserting that the injuries were not caused by their negligence but rather by the plaintiff's own actions or external factors beyond their control.

The primary legal issues before the court were whether TransAdelaide owed a duty of care to the plaintiff, if that duty was breached, and whether such a breach directly caused the plaintiff's injuries. The court also needed to determine the scope of TransAdelaide's liability for injuries occurring on its premises and whether any contributory negligence on the part of the plaintiff could reduce or bar recovery. The case hinged on the interpretation of statutory provisions concerning public transport operators and the common law principles of negligence.

The court found that TransAdelaide did owe a duty of care to the plaintiff as a passenger boarding the tram. It held that there was indeed a breach of this duty, as the platform conditions were unsafe and did not meet the required standards. The court concluded that this breach directly caused the plaintiff's injuries, as there was no evidence to suggest any other intervening factors. TransAdelaide's argument regarding contributory negligence was rejected as the plaintiff's actions did not significantly contribute to the accident. The court awarded the plaintiff damages for her injuries, reflecting the extent of her suffering and the impact on her life.

Orders