Commercial Minerals Ltd v Harris - [1999] NSWCA 94

CITATION: Commercial Minerals v Harris Auqal v Harris [1999] NSWCA 94

FILE NUMBER(S): CA 40626/96; 40842/98

HEARING DATE(S): 4 November 1998

JUDGMENT DATE:
13 April 1999

PARTIES :

COMMERCIAL MINERALS LIMITED v HARRIS (as Administratrix of the Estate of Denis Paul Hollins) & Anor
AUQAL PTY LTD v HARRIS (as Administratrix of the Estate of Denis Paul Hollins) & Anor

JUDGMENT OF: Meagher JA at 1; Handley JA at 1; Sheller JA at 1

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S) : DDT 30/91

LOWER COURT JUDICIAL OFFICER: Johns J

COUNSEL: B M J Toomey QC/G F Little (Appellant Commercial Minerals)
C R R Hoeben SC (Appellant Auqal)
D F Jackson QC/G A Farmer (Respondents)

SOLICITORS: A O Ellison & Co (Appellant)
Turner Freeman (Respondent 1)
P V McCulloch & Buggy (Respondent 2)

CATCHWORDS: TORT - personal injury - silicosis - progressive massive fibrosis - consecutive tortfeasors; DAMAGES - assessment of damages - whether finding open that progressive massive fibrosis a separate injury - whether separate awards for silicosis within discretion - whether award for future medical expenses should be allowed - whether additional allowance for future pension payments should be deducted

ACTS CITED: Workers Compensation (Dust Diseases) Act 1942
Dust Diseases Tribunal Act 1989
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998

CASES CITED:
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729, 737, 741
Roe v R A Naylor Ltd (1918) 87 LJKB 958 CA, 963
Butler v Butler (1894) P 25 CA, 29
Blair v Curran (1939) 62 CLR 464, 532
Katidis v Meggitt (Overseas) Ltd [No 2] (1995) 11 NSWCCR 147
Paris v Stepney Borough Council [1951] AC 367
The Macgregor [1943] AC 197, 201
Wing Lee v Lew [1925] AC 819

DECISION: Appeals allowed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40626/96
CA 40842/98
DDT 30/91

MEAGHER JA
HANDLEYJA
SHELLER JA

Tuesday 13 April 1999

COMMERCIAL MINERALS LIMITED v HARRIS (AS ADMINISTRATRIX OF THE ESTATE OF DENIS PAUL HOLLINS) & ANOR

AUQAL PTY LTD v HARRIS (AS ADMINISTRATRIX OF THE ESTATE OF DENIS PAUL HOLLINS) & ANOR

TORT - personal injury - silicosis - progressive massive fibrosis - consecutive tortfeasors

DAMAGES - assessment of damages - whether finding open that progressive massive fibrosis a separate injury - whether separate awards for silicosis within discretion - whether award for future medical expenses should be disallowed - whether additional allowance for future pension payments should be deducted - Workers Compensation (Dust Diseases) Act 1942 - Dust Diseases Tribunal Act 1989, s 12D.
The deceased worker brought proceedings in the Dust Diseases Tribunal against three employers for personal injuries suffered by him as a result of exposure to silica dust during the course of his employments. Following appeals to the Court of Appeal and the High Court, the High Court remitted the assessment of damages to the Tribunal. The trial Judge found that…

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.

Keep reading for free

Create a free CaseChat account to read Commercial Minerals Ltd v Harris and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] NSWCA 94
Decision Date: 13 April 1999

CaseChat Overview and Summary

Commercial Minerals Ltd appealed to the New South Wales Court of Appeal against a judgment of the Supreme Court of New South Wales awarding damages to the respondent, Mr Harris, for personal injury. Mr Harris had contracted progressive massive fibrosis (PMF) as a result of his employment with the appellant and other employers. The dispute concerned the assessment of damages, specifically whether PMF constituted a separate injury from silicosis, the appropriateness of separate awards for silicosis, and the inclusion of future medical expenses and pension payments in the damages award.

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether the finding that progressive massive fibrosis was a separate injury from silicosis was open to the trial judge. Secondly, the Court had to decide whether it was within the trial judge's discretion to make separate awards for silicosis. Thirdly, the Court was asked to review whether an award for future medical expenses was permissible and, if so, whether an additional allowance for future pension payments should be deducted from this award.

The Court of Appeal allowed the appeals. The reasoning focused on the principles of assessing damages for progressive diseases and the proper calculation of future economic loss. The Court held that the trial judge had erred in making separate awards for silicosis and in the assessment of future economic loss, particularly concerning the deduction of pension payments. The legal principles applied related to the apportionment of damages between successive tortfeasors and the correct approach to calculating compensation for future medical expenses and lost earning capacity in cases of occupational disease.

Consequently, the Court of Appeal set aside the original judgment and remitted the matter for re-assessment of damages in accordance with the Court's reasons.

Orders

Orders of the court

Appeals allowed

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:	Commercial Minerals v Harris Auqal v Harris [1999] NSWCA 94
FILE NUMBER(S):	CA 40626/96; 40842/98
HEARING DATE(S):	4 November 1998
JUDGMENT DATE:	13 April 1999
PARTIES :	COMMERCIAL MINERALS LIMITED v HARRIS (as Administratrix of the Estate of Denis Paul Hollins) & Anor AUQAL PTY LTD v HARRIS (as Administratrix of the Estate of Denis Paul Hollins) & Anor
JUDGMENT OF:	Meagher JA at 1; Handley JA at 1; Sheller JA at 1

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S) :	DDT 30/91
LOWER COURT JUDICIAL OFFICER:	Johns J

COUNSEL:	B M J Toomey QC/G F Little (Appellant Commercial Minerals) C R R Hoeben SC (Appellant Auqal) D F Jackson QC/G A Farmer (Respondents)
SOLICITORS:	A O Ellison & Co (Appellant) Turner Freeman (Respondent 1) P V McCulloch & Buggy (Respondent 2)
CATCHWORDS:	TORT - personal injury - silicosis - progressive massive fibrosis - consecutive tortfeasors; DAMAGES - assessment of damages - whether finding open that progressive massive fibrosis a separate injury - whether separate awards for silicosis within discretion - whether award for future medical expenses should be allowed - whether additional allowance for future pension payments should be deducted
ACTS CITED:	Workers Compensation (Dust Diseases) Act 1942 Dust Diseases Tribunal Act 1989 Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998
CASES CITED:	Harris v Commercial Minerals Ltd (1996) 186 CLR 1 James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729, 737, 741 Roe v R A Naylor Ltd (1918) 87 LJKB 958 CA, 963 Butler v Butler (1894) P 25 CA, 29 Blair v Curran (1939) 62 CLR 464, 532 Katidis v Meggitt (Overseas) Ltd [No 2] (1995) 11 NSWCCR 147 Paris v Stepney Borough Council [1951] AC 367 The Macgregor [1943] AC 197, 201 Wing Lee v Lew [1925] AC 819
DECISION:	Appeals allowed