New South Wales
Court of Appeal
CITATION: CSR LTD v AMACA PTY LTD [2009] NSWCA 338 HEARING DATE(S): 7 September 2009
JUDGMENT DATE:
19 October 2009JUDGMENT OF: Allsop P at 1; Hodgson JA at 51; Basten JA at 82 DECISION: (1) Allow the appeal and set aside the judgment of the Dust Diseases Tribunal of 25 June 2008 and the orders made on 8 July 2008.
(2) In lieu of the orders made by the Tribunal,
(a) dismiss the cross-claimant’s claim for contribution against the cross-defendants;
(b) order that the cross-claimant pay the cross-defendant’s costs of the proceedings in the Dust Diseases Tribunal on the cross-claim.(3) Order the respondent to pay the appellants the sum of $375,000 (being the amount paid by them to the respondent as a condition of the stay granted in the Tribunal) together with interest at the rate prescribed by Schedule 5 to the Uniform Civil Procedure Rules 2005 (NSW) calculated from the date of payment to the date on which the amount is repaid by the respondent.
(4) Order the respondent to pay the appellants’ costs of the appeal.
CATCHWORDS: APPEAL – when appeal lies – scope limited to appeal from decision of Tribunal in point of law – challenge to finding of duty of care – whether evidence to support finding – nature of error – significance of "illogicality" in reasoning or "perversity" in fact-finding - TORTS – negligence – duty of care – pleural mesothelioma contracted after exposure to crocidolite asbestos as young child – two periods of exposure of between three and seven days each – exposure due to destruction of cement sheets containing asbestos mined no earlier than September 1965 – possibility of link between "transitory" or "minimal" exposure documented in 1962 – miner of asbestos aware of medical knowledge – whether knowledge of miner of risks posed by asbestos gave rise to duty of care - WORDS AND PHRASES – "blue asbestos" – "transitory exposure" LEGISLATION CITED: Dust Diseases Tribunal Act 1989 (NSW), s 32
Uniform Civil Procedure Rules 2005 (NSW), r 51.53CATEGORY: Principal judgment CASES CITED: Amaca Pty Ltd v Hannell [2007] WASCA 158; 34 WAR 109
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bale v Seltsam Pty Limited [1996] QCA 288
Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258
Chapman v Hearse [1961] HCA 46; 106 CLR 112
CSR Limited v Young (1998) 16 NSWCCR 56
E v Secretary of State for the Home Department [2004] QB 1044
House v The King [1936] HCA 40; 55 CLR 499
Julia Farr Services Inc v Hayes [2003] NSWCA 37; 25 NSWCCR 138
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Mount Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383
Continue reading CSR Ltd v Amaca Pty Ltd
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- AGLC
- CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338
- Case
- [2009] NSWCA 338
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether an appeal lay from the Tribunal's decision, specifically concerning the scope of appeals limited to points of law. The court also had to consider whether the Tribunal erred in finding that CSR Ltd owed a duty of care to Mr. Thompson, and whether there was evidence to support such a finding, particularly in light of the "transitory" or "minimal" nature of the exposure and the possibility of a link to asbestos mined in 1962. The court examined the significance of "illogicality" in reasoning or "perversity" in fact-finding in the context of an appeal on a point of law.
The Court of Appeal reasoned that an appeal lay on a question of law, and that the Tribunal's finding of a duty of care was an error of law. The court found that the evidence did not support a finding that CSR Ltd owed a duty of care to Mr. Thompson in relation to the specific exposure that caused his illness. The court distinguished between the knowledge of the miner of asbestos of the risks posed by asbestos and the potential duty of care owed by a manufacturer or supplier of asbestos products. The court concluded that the Tribunal's finding of a duty of care was not open on the facts presented.
The Court of Appeal allowed the appeal, setting aside the judgment and orders of the Dust Diseases Tribunal. The court dismissed Amaca Pty Ltd's claim for contribution against CSR Ltd and ordered Amaca Pty Ltd to pay CSR Ltd's costs of the proceedings in the Tribunal relating to the cross-claim. The court also ordered the respondent (Amaca Pty Ltd) to repay the sum of $375,000, plus interest, to the appellants (CSR Ltd and others), which had been paid as a condition of a stay. Finally, the respondent was ordered to pay the appellants' costs of the appeal.
Orders
Orders of the court
(1) Allow the appeal and set aside the judgment of the Dust Diseases Tribunal of 25 June 2008 and the orders made on 8 July 2008.
(2) In lieu of the orders made by the Tribunal,
(a) dismiss the cross-claimant’s claim for contribution against the cross-defendants;
(b) order that the cross-claimant pay the cross-defendant’s costs of the proceedings in the Dust Diseases Tribunal on the cross-claim.
(3) Order the respondent to pay the appellants the sum of $375,000 (being the amount paid by them to the respondent as a condition of the stay granted in the Tribunal) together with interest at the rate prescribed by Schedule 5 to the Uniform Civil Procedure Rules 2005 (NSW) calculated from the date of payment to the date on which the amount is repaid by the respondent.
(4) Order the respondent to pay the appellants’ costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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