CSR Ltd v D'arcy

Case [1999] NSWCA 216
CITATION: CSR LIMITED & ANOR v MAREE ANNE D'ARCY [1999] NSWCA 216
FILE NUMBER(S): CA 40362/97
HEARING DATE(S): 5 May 1999
JUDGMENT DATE:
15 July 1999

PARTIES :
CSR LIMITED & ANOR v MAREE ANNE D'ARCY
JUDGMENT OF: Mason P at 1; Beazley JA at 56; Brownie AJA at 57
LOWER COURT JURISDICTION: Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S) : DDT 5/96
LOWER COURT JUDICIAL OFFICER: Johns J
COUNSEL: P Graham QC/ G Rundle (Appellant)
B Toomey QC/ G Farmer (Respondent)
SOLICITORS: Toomey Pegg & Drevikovsky (Appellant)
Turner Freeman (Respondent)
CATCHWORDS: APPEAL - Appeal as of right against judgment of Dust Diseases Tribunal - New evidence - Error of fact or law by trial judge - Discretion to amend or rescind orders earlier made - Dust Diseases Tribunal Act 1989, s13(6) - Apportionment of damages amongst defendants - Judgment sum to represent proper compensation for injury suffered at the hands of all defendants concurrently ; JUDGMENTS AND ORDERS - Satisfaction - Agreement on undisclosed terms by one defendant to pay sum in return for discontinuance does not in itself satisfy judgment against another defendant
DECISION: Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
                                    CA 40362/97


                                    MASON P
                                    BEAZLEY JA
                                    BROWNIE AJA

                                    Thursday 15 July 1999

CSR LIMITED & ANOR v Maree Anne D’ARCY


In December 1995 Mr Rowland D’Arcy (the plaintiff) suffered symptoms of what were later diagnosed as asbestosis and lung cancer, apparently in consequence of exposure to blue asbestos dust and fibres during the course of successive periods of employment with Australian Asbestos Products Pty Limited (“AP”) and CSR Limited (“CSR”). The asbestos was produced by Midalco Pty Limited (“Midalco”) and distributed by CSR.

Proceedings were commenced in the Dust Diseases Tribunal against Manufacturers Mutual Insurance Limited (“MMI”) as first defendant and the appellants CSR and Midalco as second and third defendants. The plaintiff claimed damages, interest and costs against all three defendants, pleading his case in negligence and in reliance upon various statutory counts. MMI was AP’s statutory insurer and AP had been dissolved in 1968.

Proceedings against MMI were discontinued in consideration of a payment of $40,000. The terms of the discontinuance were not further explored in evidence.

In a judgment given by the Tribunal on 2 October 1996, CSR and Midalco were found jointly and severally liable to pay the plaintiff damages of $161,201. Damages were apportioned between the defendants in the proportion of 75% to CSR and 25% to Midalco. An appeal to this Court was limited to a challenge as to the damages awarded for future medical expenses and on allowing the appeal the damages were reduced to $136,731.

Upon learning that the discontinuance against MMI was in consideration of payment of $40,000 the appellants filed a Notice of Motion in the Dust Diseases Tribunal seeking a substituted verdict and judgment in favour of the late Rolland D’Arcy in the sum of $96,731.00. In support of this motion they provided affidavit evidence relating to MMI’s agreement…

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AGLC
CSR Ltd v D'arcy [1999] NSWCA 216
Case
[1999] NSWCA 216
Decision Date

CaseChat Overview and Summary

CSR Ltd appealed to the Court of Appeal of New South Wales against a judgment of the Dust Diseases Tribunal. The dispute concerned the apportionment of damages awarded to the respondent, Mr D'arcy, who had suffered from a dust-related disease.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in fact or law, whether there was a basis for admitting new evidence, and whether the Dust Diseases Tribunal had the discretion to amend or rescind its earlier orders. A further issue was whether an agreement reached between Mr D'arcy and another defendant, which involved an undisclosed sum paid in return for discontinuance, operated to satisfy the judgment against CSR Ltd.

The Court of Appeal held that the trial judge's findings were not demonstrably wrong and that no error of fact or law had been established. The Court also found that the new evidence sought to be introduced was not of a nature that would warrant its admission on appeal. Crucially, the Court determined that an agreement to discontinue proceedings with one defendant, even if it involved a payment, did not automatically satisfy a judgment against another defendant unless it was expressly agreed that such payment would be in full satisfaction of all claims. The Court affirmed that the judgment sum was intended to represent the proper compensation for the injury suffered at the hands of all defendants concurrently.

The appeal was dismissed, and CSR Ltd was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs

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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