Dasreef Pty Ltd v Hawchar

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.