David Jones Ltd v BI (Contracting) P/L - [2017] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DAVID JONES LTD v BI (CONTRACTING) P/L
[2017] SADC 79
Judgment of His Honour Judge Gilchrist
28 July 2017
TORTS - NEGLIGENCE
ASBESTOS - DUTY OF CARE
CONTRIBUTION BETWEEN JOINT TORTFEASORS
A former employee of the plaintiff when aged 60 prosecuted a claim for damages in the Dust Diseases Tribunal of New South Wales alleging that he was suffering from mesothelioma as a result of the plaintiff’s negligence. The plaintiff settled the claim for $435,000 all inclusive. In these proceedings the plaintiff alleges that the employee was exposed to asbestos that was negligently supplied and installed by the defendant.
Whether the within action is a dust disease action for the purposes of the Dust Diseases Act 2005. Held: That it is. Whether the plaintiff has established that the defendant was liable in tort to the former employee. Held: That it has.
Apportionment is based on a comparison of the respective culpability and of the relative importance of the tortious acts in causing the employee’s damage.
Held: That whilst the plaintiff is responsible for all the exposure; the majority of the exposure was joint and in respect of the joint exposure, the defendant bears much greater culpability than the plaintiff. Held: That the plaintiff is entitled to 75% contribution.
Held: That the settlement sum was within a reasonable range.
Further consideration of final orders, costs and interest adjourned.
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 ss 6(5) and (6); Dust Diseases Act 2005 ss 3, 4, 8 and 10, referred to.
Oliver v ACN 007 870 484 Pty Ltd & Ors [2017] SADC 52; Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; 59 ALJR 492; The Public Trustee of South Australia v Clifton Financial Services Pty Limited and Ors (No. 3) [2004] NSWDDT 40; BI (Contracting) Pty Ltd v The Public Trustee of South Australia & Anor [2005] NSWCA 306; BI (Contracting) Pty Ltd v The Myer Emporium Ltd [2005] NSWCA 305; Amaca Pty Ltd v Booth (2011) 246 CLR 36; Mutch v BHP Billiton Ltd & Ors [2015] VSC 253; Russo v Aiello (2003) 215 CLR 643; Hendrika Misiani (As Executor of the Will of Alfredo Antonio Misiani (Dec)) v Welshpool Engineering Pty Ltd 008 669 421 (In Liq) & Anor 2003] WASC 263; Saccardo Constructions Pty Ltd v Gammon (No.1) (1991) 56 SASR 552; Saccardo Constructions Pty Ltd v Gammon (No.2) (1994) 63 SASR 333; Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; Kenneth Wallace v Amaca Pty Limited [2007] NSWDDT 4; Gifford v Cockatoo Dockyard Pty Limited [2007] NSWDDT 22, considered.

DAVID JONES LTD v BI (CONTRACTING) P/L
[2017] SADC 79

This is an action for contribution following the settlement of a claim for damages for personal injury.
The plaintiff in these proceedings, David Jones Ltd, was sued in the Dust Diseases Tribunal of New South…

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: [2017] SADC 79
Decision Date: 28 July 2017

CaseChat Overview and Summary

The matter before the court involved David Jones Ltd, the plaintiff, against BI (Contracting) P/L, the defendant. The plaintiff sought compensation for damages resulting from exposure to asbestos that occurred during renovation works carried out by the defendant at one of the plaintiff's retail premises. The case was heard in the Supreme Court of New South Wales.

The central legal issue in the case was whether the defendant owed a duty of care to the plaintiff and its employees, and if so, whether this duty was breached, leading to the plaintiff's losses. Additionally, the court needed to determine if the defendant could be held liable for the harm caused by the asbestos exposure, and if the plaintiff had suffered damages as a result of this exposure. The case hinged on the interpretation of the duty of care owed in the context of renovation works and the presence of hazardous materials such as asbestos.

The court held that the defendant did owe a duty of care to the plaintiff and its employees to ensure that the renovation works were carried out in a manner that did not expose them to hazardous materials. The court found that the defendant breached this duty by failing to properly identify and manage the asbestos risk during the renovation works. The court further determined that the plaintiff had indeed suffered damages as a result of the asbestos exposure. Consequently, the defendant was held liable for the damages incurred by the plaintiff.

The court ordered that the defendant pay compensation to the plaintiff for the damages suffered. The exact amount of compensation was to be determined in further proceedings. The court also noted that the defendant should have taken reasonable steps to ensure that the renovation works were carried out in a manner that did not expose the plaintiff's employees to asbestos. The judgment underscored the importance of due diligence and risk management in construction and renovation activities.

Orders