FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
DASREEF PTY LIMITED APPELLANT
AND
NAWAF HAWCHAR RESPONDENT
Dasreef Pty Limited v Hawchar [2011] HCA 21 22 June 2011 S313/2010
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
D F Jackson QC with T G R Parker SC and D T Miller for the appellant (instructed by Moray & Agnew Solicitors)
B M Toomey QC with F Tuscano and M A Kumar for the respondent (instructed by Slater & Gordon Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Dasreef Pty Limited v Hawchar
Evidence – Admissibility – Opinion evidence – Section 79(1) of Evidence Act1995 (NSW) provided that rule excluding evidence of opinion did not apply where "a person has specialised knowledge based on the person's training, study or experience" and person's opinion "wholly or substantially based on that knowledge" – Respondent sued appellant in Dust Diseases Tribunal of New South Wales – Respondent claimed he was negligently exposed to unsafe levels of silica while working for appellant – Witness gave evidence about approximate level of respirable silica to which respondent may have been exposed – Opinion treated as admissible to found calculation of numerical or quantitative level of exposure to respirable silica – Whether opinion admissible for that purpose – Requirements for admissibility.
Procedure – Specialist tribunal – Dust Diseases Tribunal of New South Wales – Ability of judge constituting Tribunal to draw on experience as member of specialist tribunal when making findings of fact – Section 25 of Dust Diseases Tribunal Act1989 (NSW) required Tribunal to apply rules of evidence – Section 25B provided exception subject to various requirements – Trial judge drew on "experience" that silicosis usually caused by very high levels of silica exposure in concluding that respondent's silicosis caused by exposure to silica – Section 25B neither invoked nor complied with – Whether trial judge entitled to draw on "experience" in making finding of fact.
Procedure – Objection to admissibility of evidence – Evidence taken on voir dire – Trial judge did not rule on objection at conclusion of voir dire – Desirability of ruling on objection to admissibility as soon as possible.
Words and phrases – "based on the person's training, study or experience", "basis rule", "opinion rule", "specialised knowledge", "specialist tribunal", "voir dire", "wholly or substantially based on that knowledge".
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. Nawaf Hawchar, the respondent in this appeal, suffers from silicosis. He worked for the appellant ("Dasreef") as a labourer and then as a stonemason for a little over five and a half years between 1999 and 2005. Before he immigrated to Australia in 1996, Mr Hawchar had worked for…
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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AGLC
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Case
[2011] HCA 21
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Dasreef Pty Ltd against a decision of the New South Wales Court of Appeal, which had affirmed a judgment of the Dust Diseases Tribunal of New South Wales. The respondent, Mr Hawchar, had sued Dasreef alleging negligent exposure to unsafe levels of silica during his employment. A key issue concerned the admissibility and use of expert opinion evidence provided by Dr Basden regarding the level of silica exposure.
The legal issues before the High Court included whether Dr Basden's opinion evidence was admissible under section 79(1) of the Evidence Act 1995 (NSW) for the purpose of calculating the numerical level of respirable silica exposure, and whether the primary judge, constituting the Dust Diseases Tribunal, was entitled to draw on his personal experience as a member of that specialist tribunal when making findings of fact, particularly concerning the cause of Mr Hawchar's silicosis. The court also considered the propriety of the primary judge deferring a ruling on the admissibility of disputed evidence until delivering judgment.
The High Court held that Dr Basden's opinion was not admissible for the purpose of calculating numerical levels of silica exposure, as his evidence indicated his estimates were merely a "ballpark" figure to justify the recommendation of a respirator, not a substantially based opinion on the actual exposure levels. Furthermore, the court determined that the primary judge erred in drawing on his personal experience to conclude that Mr Hawchar's silicosis was caused by silica exposure, as the Dust Diseases Tribunal was required to apply the rules of evidence, and such reliance on personal experience was not permitted under those rules, nor was it a matter of judicial notice.
Despite finding errors in the Court of Appeal's reasoning regarding the admissibility of evidence and the judge's reliance on experience, the High Court dismissed Dasreef's appeal. This outcome was based on the undisputed expert evidence that Mr Hawchar suffered from silicosis, that its short latency suggested intense exposure, and that it was attributable to his work history. The court concluded that the appeal against the finding of liability should be dismissed, making the orders that the Court of Appeal should have made.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It is only for very good reason that a trial judge should defer ruling on the admissibility of evidence until judgment. This was not such a case. Yet the primary judge did defer ruling on the disputed evidence in this matter until judgment. And because that is what the primary judge did, the evidence of Dr Basden was used for purposes for which it was not admissible and for which it may be doubted that Mr Hawchar had sought to tender it.The primary judge's use of the evidence In his reasons for judgment, the primary judge recorded that counsel for Dasreef had raised more than 70 objections to the expert evidence called on Mr Hawchar's behalf at trial. The primary judge said[8] that "[r]ather than address the merit of each objection" he would recite the qualifications of each expert and attempt to summarise in each case the reasoning process of the expert.[8][2009] NSWDDT 12 at [59]. The primary judge recorded[9] that Dr Basden had admitted that "he could not express a numerical opinion about Mr Hawchar's exposure to respirable silica, that he could not express an opinion about the amount of dust that Mr Hawchar would have inhaled during his time with Dasreef and could not express a numerical opinion about the time‑weighted average of Mr Hawchar's exposure to silica". The primary judge set out several questions and answers given by Dr Basden in the course of the voir dire. Read as a whole, however, the answers given by Dr Basden in the course of the voir dire show that the statements he had made in his written report and in the course of the voir dire, to the effect that the amount of respirable silica in Mr Hawchar's breathing zone would have been 500 or 1000 times greater than the permissible levels of exposure, provided, as Dr Basden put it, "only a ballpark to justify the reason I was recommending the protection factor of about a thousand for the use of a VAPR [sic PAPR] respirator. That was the purpose of it."[9][2009] NSWDDT 12 at [75]. Yet despite Dr Basden's estimates being proffered with this limited purpose, the primary judge sought to calculate the levels of silica dust to which Mr Hawchar had been exposed in the course of working for Dasreef. The primary judge said[10] in his reasons for judgment:"A simple calculation may be made upon the basis of Mr Hayek's [a proprietor of Dasreef] evidence that a man engaged in cutting stone through the course of one day would use the angle grinder for approximately 30 to 40 minutes, and Dr Basden's opinion that during this time he would be exposed to dust concentrations at least 1000 times greater than the permissible limit of 0.2 mg/m3 ... Accepting for the moment that the P2 mask provided to Mr Hawchar fitted perfectly and provided a protection factor of 50, the concentration of respirable particles within the respirator when cutting was 1000 ÷ 50 x 0.2 mg/m3 = 4 mg/m3.The standard TWA of 0.2 mg/m3 permits the accumulation of 40 hours x 0.2 mg/m3 = 8 mg/m3. If a man is exposed for 30 minutes on each of five days to a concentration of 4 mg/m3 his cumulative weekly exposure is 2.5 hours x 4 mg/m3 = 10 mg/m3. The TWA of this exposure over 40 hours is then 10 mg/m3 ÷ 40 = 0.25 mg/m3. This exceeds the permissible limit. If he were exposed for 40 minutes each day his TWA rises to 0.33 mg/m3."[10][2009] NSWDDT 12 at [82]‑[83].
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
HEYDON J
Whatever may be the position with respect to other tribunals, the statutory requirement that, subject to certain limited exceptions, none of which was engaged here, the Dust Diseases Tribunal apply the rules of evidence compels the conclusion that the primary judge erred when he said that he was permitted to take his experience into account in determining what caused Mr Hawchar's silicosis. To the extent to which earlier decisions of the Court of Appeal concerning the Dust Diseases Tribunal[30] hold to the contrary, they should be overruled. Under the rules of evidence the primary judge was permitted to take account of matters not proved in evidence in this case only if they were matters of which judicial notice could be taken. It was not suggested that the causes of silicosis were matters for judicial notice.[30]For example, ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales (2004) 60 NSWLR 18 at 64 [232]; GIO General Ltd v ABB Installation & Service Pty Ltd (2000) 19 NSWCCR 720 at 730 [34].Conclusion and orders For these reasons, the Court of Appeal was wrong to conclude that the evidence of Dr Basden was admissible for the purposes for which that Court and the primary judge used it. Further, the Court of Appeal was wrong to conclude that the primary judge was entitled to take account of his experience as a member of a "specialist" court in determining what caused Mr Hawchar's silicosis. Those errors having been established, it by no means follows, however, that the Court of Appeal was bound to set aside the orders of the primary judge and remit the matter for rehearing. It will be recalled that s 32(2) of the Dust Diseases Tribunal Act provided that on the hearing of an appeal the Court of Appeal was empowered to "remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision" of the Court but that the Court of Appeal was further empowered to "make such other order in relation to the appeal" as it saw fit. In the present case, where there was undisputed expert evidence that Mr Hawchar was suffering silicosis, that the short latency of the disease suggested that Mr Hawchar's silica exposure had been intense and that the silicosis was to be attributed to a history of exposure to silica dust over a period of about six years beginning in 1999, coupled with the evidence of readily available means of avoiding injury, the Court of Appeal should have concluded that Dasreef's appeal against the finding that it was liable to Mr Hawchar be dismissed. This Court should now make the orders which the Court of Appeal should have made. That is to be achieved in this case by dismissing Dasreef's appeal to this Court, with costs. This appeal primarily concerns reception of expert opinion evidence under the Evidence Act 1995 (NSW) ("the Act"). The Act has near‑equivalents in some other jurisdictions[31]. [31]The Evidence Act 1995 (Cth) operates in federal courts. The legislation also has equivalents in Tasmania (Evidence Act 2001), Norfolk Island (Evidence Act 2004) and Victoria (Evidence Act 2008). In the Australian Capital Territory the Evidence Act 1995 (Cth) will continue to apply until the Evidence Act 2011 (ACT) comes into force. The relevant statutory provisions
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ,
HEYDON J