CSR Ltd & Anor v Thompson & Anor - [2005] HCATrans 390

[2005] HCATrans 390

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney Nos S523 and S524 of 2004

B e t w e e n -
CSR LIMITED
First Appellant
MIDALCO PTY LIMITED
Second Appellant
and
JARRADD EDDY AS ADMINISTRATOR AD LITEM REPRESENTING THE ESTATE OF THE LATE JOHN THOMPSON
Respondent

GLEESON CJ
McHUGH J
GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 JUNE 2005, AT 10.20 AM

__________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR T.G.R. PARKER, for the appellant in each matter. (instructed by Makinson & D’Apice)

MR M.J. JOSEPH, SC: If the Court pleases, I appear with MR F.L. AUSTIN and MR S.P.W. GLASCOTT for the respondent and seek orders to substitute, in accordance with the motion, Jarradd Eddy for John Leonard Thompson in the first matter. (instructed by Alex Stuart & Associates)

GLEESON CJ: That is consented to, as I understand it.

MR JACKSON: Yes, your Honour. The orders have been consented to, I think, in terms of effectively paragraphs 1 and 3 of our amended summons.

GLEESON CJ: Then the order will be that Jarradd Eddy as administrator ad litem representing the estate of the late John Thompson is substituted as the respondent in proceedings No S523 of 2004. Yes, Mr Jackson.

MR JACKSON: Your Honours, there are two issues in the proceedings: one concerning the quantification of damages; the other the question of costs. May I deal with them in that order. So far as damages are concerned, the issue in the appeal is whether a plaintiff is able to recover damages calculated by reference to the commercial value of services by reason of the injured person’s inability to provide those services to other persons. In other words, as we would put it, the need is not that of the injured person but rather the need of someone else. We would submit that damages are not recoverable on the basis of the costs of commercial provision of those services. Rather, the diminished ability to provide them to the person in need of them is an aspect of the loss of amenities part of general damages.

May I go for just a moment to the basic facts which may be very shortly stated. They are set out in our written submissions in paragraphs 7, 8 and 9. Your Honours will see from paragraphs 7 and 8 that this was not a case in which liability was in issue. In paragraph 9, the trial took place in March and April 2003 and was conducted upon an agreed assumption that the injured party, who was then 61, would die of malignant mesothelioma in the next February. In fact, as your Honours will have seen from the material in relation to the application, he died a few months earlier. The damages awarded were a total of $465,000‑odd damages.

The heads of damage…

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.

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Details

Case: [2005] HCATrans 390
Decision Date

CaseChat Overview and Summary

CSR Ltd and another party appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales. The dispute concerned the liability of CSR Ltd for damages arising from asbestos-related diseases contracted by the respondents, Mr. and Mrs. Thompson, who had been exposed to asbestos fibres during Mr. Thompson's employment with CSR Ltd. The Thompsons had sued CSR Ltd for negligence and breach of statutory duty.

The High Court was required to determine, among other things, whether CSR Ltd owed a duty of care to Mr. Thompson in relation to the risks of contracting asbestos-related diseases, and if so, whether that duty had been breached. Further, the Court had to consider the extent to which CSR Ltd could be held liable for the damages suffered by Mrs. Thompson, who had contracted a similar disease due to her proximity to her husband's asbestos-laden work clothes. The appeal also raised questions regarding the application of the principles of causation in the context of asbestos exposure and the apportionment of liability.

The High Court applied established principles of negligence and duty of care, considering the foreseeability of harm from asbestos exposure at the relevant times. The Court analysed the employer's obligation to provide a safe working environment and the adequacy of the safety measures implemented by CSR Ltd. Regarding Mrs. Thompson's claim, the Court examined whether CSR Ltd owed her a direct duty of care or if her claim could be sustained on other legal grounds, such as the foreseeability of harm to household members through contaminated clothing. The Court's reasoning involved a detailed consideration of the scientific understanding of asbestos hazards and the legal standards applicable to employers at the time of Mr. Thompson's employment.

The High Court allowed the appeal in part, finding that CSR Ltd was liable for Mr. Thompson's injuries. However, the Court varied the damages awarded to Mrs. Thompson, finding that CSR Ltd did not owe her a direct duty of care in the circumstances. The specific orders regarding the quantum of damages and the apportionment of liability were remitted to the Supreme Court for further determination.

Orders