Dunning v BHP Billiton Limited - [2014] NSWDDT 3

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Dunning v BHP Billiton Limited [2014] NSWDDT 3
Decision date: 31 July 2014
Before: Kearns J
Decision:
There will be verdict and judgment for the plaintiff in the sum of $2,236,959.57.

Catchwords: Dust diseases;
mesothelioma;
whether hierarchical approach, giving priority to documents, to resolution of factual issues dictated by authority;
approach to the assessment of witnesses;
whether plaintiff was exposed to asbestos;
whether evidence may given by non-expert identifying asbestos;
whether injury to plaintiff employee foreseeable;
state of knowledge, actual and constructive, in 1979 of defendant concerning health risks associated with exposure to asbestos;
identity of person within corporate defendant who had actual knowledge of health risks from exposure to asbestos and whether defendant could dictate identity of that person;
whether on foreseeability of injury defendant could rely on NHMRC standard to the exclusion of all other learning;
whether defendant could rely on advice that might have been given by a reasonably competent occupational hygienist in 1979;
whether defendant breached duty of care to plaintiff;
whether on breach of duty defendant could rely on NHMRC standard;
whether reasonable practical alternatives were available in blast furnace;
whether plaintiff's injury caused by defendant's negligence (consideration of the cumulative effect mechanism of causation of mesothelioma);
whether defendant in breach of s41 of Factories, Shops and Industries Act 1962;
on damages, whether plaintiff being in remission Malec v Hutton discount should be made for possibility that mesothelioma may not recur;
whether plaintiff's damages should exclude aggravation or exacerbation of his depressive condition resulting from the litigation.
Legislation Cited: Dust Diseases Tribunal Act 1989
Cases Cited: AMP General Insurance Limited v Roads and Traffic Authority of NSW [2001] NSWCA 186
Baker v Quantum Clothing Group Limited (formerly Taymil Limited) (2011) UKSC 17
BHP Billiton Limited v Parker [2012]
Booth v Amaca Pty Ltd and Amaba Pty Ltd [2010] NSWDDT 8
CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338
Fox v Percy (2003) 214 CLR 118
Graham v Co-operative Wholesale Society Limited [1957] 1 WLR 511, 522
Howard Smith & Patrick Travel Pty Limited v Comcare [2014] NSWCA 215
Julia Farr Services Inc v Hayes [2003] NSWCA 37
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638
McLean v Tedman (1984) 155 CLR 306, 313
McPherson's Ltd v Eaton & Ors (2005) 65 NSWLR 187
Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, 402
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Silvestro v Verbon Pty Limited [1973] 2 NSWLR 513
Thompson v Johnson & Johnson Pty Limited [1991] 2 VR 449
Category: Principal judgment
Parties: Jake Douglas Dunning as tutor for Steven Douglas Dunning (plaintiff)
BHP Billiton Limited (defendant)
Representation: Mr P Semmler QC with Mr S Tzouganatos instructed by Slater & Gordon Lawyers appeared for the plaintiff
Mr T G R Parker SC with Mr D Talintyre instructed by Piper Alderman and HWL Ebsworth Lawyers appeared for the defendant.

File Number(s): DDT 79/2011

Judgment

A.…

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: [2014] NSWDDT 3
Decision Date: 31 July 2014

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Dunning v BHP Billiton Limited involved a claim for damages arising from the development of mesothelioma, a disease caused by exposure to asbestos. The plaintiff alleged that his condition was due to his employment with the defendant, BHP Billiton Limited, during which he was exposed to asbestos. The court was tasked with determining a range of legal issues, including whether a hierarchical approach to evidence was appropriate, the foreseeability of the plaintiff's injury, and the state of knowledge regarding asbestos health risks within the defendant organisation. The court also had to assess whether the defendant breached its duty of care and whether certain standards and advice could be relied upon to mitigate liability.

The court examined the hierarchical approach to evidence, considering whether certain documents should take precedence in resolving factual issues, and the method for assessing the credibility of witnesses. It addressed whether non-expert witnesses could identify asbestos and the foreseeability of the plaintiff's injury. The analysis extended to the defendant's actual and constructive knowledge of asbestos health risks in 1979 and the identity of the individual within the corporation who held this knowledge. Furthermore, the court considered whether the defendant could rely on the National Health and Medical Research Council (NHMRC) standards and advice from a reasonably competent occupational hygienist to exclude other learnings. The court scrutinised whether the defendant breached its duty of care, if the NHMRC standard could be used as a defence, and whether practical alternatives were available to mitigate risks in the blast furnace environment.

The court concluded that the defendant was liable for the plaintiff's mesothelioma, finding that the disease was caused by the defendant's negligence, considering the cumulative effect mechanism of causation. The court found the defendant in breach of statutory duty under the Factories, Shops and Industries Act 1962. In assessing damages, the court determined that the Malec v Hutton discount should apply due to the possibility of mesothelioma remission and that damages should not include aggravation or exacerbation of the plaintiff's depressive condition resulting from litigation. The final order was for judgment and verdict for the plaintiff in the sum of $2,236,959.57.

Orders

Orders of the court

There will be verdict and judgment for the plaintiff in the sum of $2,236,959.57.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dunning v BHP Billiton Limited [2014] NSWDDT 3
Decision date:	31 July 2014
Before:	Kearns J
Decision:	There will be verdict and judgment for the plaintiff in the sum of $2,236,959.57.
Catchwords:	Dust diseases; mesothelioma; whether hierarchical approach, giving priority to documents, to resolution of factual issues dictated by authority; approach to the assessment of witnesses; whether plaintiff was exposed to asbestos; whether evidence may given by non-expert identifying asbestos; whether injury to plaintiff employee foreseeable; state of knowledge, actual and constructive, in 1979 of defendant concerning health risks associated with exposure to asbestos; identity of person within corporate defendant who had actual knowledge of health risks from exposure to asbestos and whether defendant could dictate identity of that person; whether on foreseeability of injury defendant could rely on NHMRC standard to the exclusion of all other learning; whether defendant could rely on advice that might have been given by a reasonably competent occupational hygienist in 1979; whether defendant breached duty of care to plaintiff; whether on breach of duty defendant could rely on NHMRC standard; whether reasonable practical alternatives were available in blast furnace; whether plaintiff's injury caused by defendant's negligence (consideration of the cumulative effect mechanism of causation of mesothelioma); whether defendant in breach of s41 of Factories, Shops and Industries Act 1962; on damages, whether plaintiff being in remission Malec v Hutton discount should be made for possibility that mesothelioma may not recur; whether plaintiff's damages should exclude aggravation or exacerbation of his depressive condition resulting from the litigation.
Legislation Cited:	Dust Diseases Tribunal Act 1989
Cases Cited:	AMP General Insurance Limited v Roads and Traffic Authority of NSW [2001] NSWCA 186 Baker v Quantum Clothing Group Limited (formerly Taymil Limited) (2011) UKSC 17 BHP Billiton Limited v Parker [2012] Booth v Amaca Pty Ltd and Amaba Pty Ltd [2010] NSWDDT 8 CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 Fox v Percy (2003) 214 CLR 118 Graham v Co-operative Wholesale Society Limited [1957] 1 WLR 511, 522 Howard Smith & Patrick Travel Pty Limited v Comcare [2014] NSWCA 215 Julia Farr Services Inc v Hayes [2003] NSWCA 37 Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 McLean v Tedman (1984) 155 CLR 306, 313 McPherson's Ltd v Eaton & Ors (2005) 65 NSWLR 187 Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, 402 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 Silvestro v Verbon Pty Limited [1973] 2 NSWLR 513 Thompson v Johnson & Johnson Pty Limited [1991] 2 VR 449
Category:	Principal judgment
Parties:	Jake Douglas Dunning as tutor for Steven Douglas Dunning (plaintiff) BHP Billiton Limited (defendant)
Representation:	Mr P Semmler QC with Mr S Tzouganatos instructed by Slater & Gordon Lawyers appeared for the plaintiff Mr T G R Parker SC with Mr D Talintyre instructed by Piper Alderman and HWL Ebsworth Lawyers appeared for the defendant.
File Number(s):	DDT 79/2011