Eraring Energy v S.C Cheadle Hulme - [2005] NSWDDT 45

Dust Diseases Tribunal

of New South Wales

CITATION:
Eraring Energy v S.C Cheadle Hulme [2005] NSWDDT 45

PARTIES:
Eraring Energy ( formerly sued as Pacific Power)
S.C.Cheadle Hulme Limited ( formerly sued as Simon Carves Limited)

MATTER NUMBER(S):
112 of 1998

JUDGMENT OF:
Walker J at 1

:-

LEGISLATION CITED:
Law Reform ( Miscellaneous Provisions) Act 1946 s5 & 6

CASES CITED:
Eraring Energy v Simon Carves Limited (Matter No DDT 85 of 2000). ;
Eraring Energy v Cheadle Hulme Limited and Ors (Unreported 24 September 2004 Matter No DDT 70 of 2001;
Stevens v Brodribb Sawmilling Co. Pty Limited 1986 160 CLR 16. CSR Limited v Wren (1998) 15 NSWCCR 650);
Voli v Inglewood & Shire Council (1963) 110 CLR 74, Florida Hotels v Mayo (1965) 113 CLR 588.;
Wyong Shire v Shirt (1980- CLR 40 at 48) ;
Ross v Meggitt Overseas Limited (1999) 18 NSWCCR 324

DATES OF HEARING: 03/02/2005

DATE OF JUDGMENT:

08/29/2005

Cross Claimant: W.Strathdee

JUDGMENT:

Judgment
Walker J
Background To Litigation.

A brief history of these proceedings is as follows:

1. Giovanni Slaviero contracted mesothelioma after being employed by Concrete Constructions Pty Ltd between 1952 and 1954 and Stockton’s Pty Limited between 1954 and 1957 during the construction of the Tallawarra Power Station. During that employment he was exposed to and inhaled asbestos dust and fibre used in the construction and maintenance of the Power Stations boilers and associated plant and equipment.

2. Mr Slaviero sued in June 1988:

(i) Pacific Power (now Eraring Energy) who was the owner occupier of the Tallawarra Power Station for damages for negligence for breach of duty of care.

(ii) Concrete Constructions Pty Limited as his employer between 1952 and 1954 for damages for negligence for breach of duty of care in failing to provide a safe system of work.

(iii) Stocktons Pty Limited was deregistered by the time the suit and was not joined.

(iv) On 22 February 1999 terms of settlement were filed in respect of the suit against Concrete Constructions Pty Ltd on the basis of a verdict in the defendants favour each party to pay their own costs.

(v) An amended statement of claim was issued against Pacific Power on 12 February 1999.

(vi) On 21 December 1999 terms of settlement were filed and an order for judgment made against Pacific Power in the sum of $140,000 plus costs of $30,000.

(vii) On the 29 June 2000 Pacific Power issued cross claims against the asbestos manufacturers James Hardie Co Pty Ltd and Wallaby Grip Limited and the United Kingdom designer of the Tallawarra boilers Simon Carves Limited.

(viii) On the 20 October consent judgment was entered against James Hardie & Co Pty Ltd ( now sued as Amaca Pty Limited) in the sum of $77,500 ( including interest and costs in the sum of $7,800).

(ix) On 17 November 2003 consent judgment was entered against Wallaby Grip Limited in the sum of $70,000 ( including interest and costs in the sum…

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: [2005] NSWDDT 45
Decision Date: 08/29/2005

CaseChat Overview and Summary

Eraring Energy, formerly known as Pacific Power, initiated proceedings against S.C. Cheadle Hulme Limited, formerly Simon Carves Limited, in the Dust Diseases Tribunal of New South Wales. The case revolves around the liability of Eraring Energy for damages caused by exposure to asbestos dust and fibers during the construction of the Tallawarra Power Station. The primary dispute centers on the apportionment of damages and the assessment of Eraring Energy's liability after partial indemnification by other parties.

The court was tasked with determining the extent of Eraring Energy's liability for damages, considering the contributions from other defendants, specifically Amaca Pty Limited and Wallaby Grip Limited. The central legal issues involved interpreting the Law Reform (Miscellaneous Provisions) Act 1946 to apportion liability fairly among the concurrent tortfeasors and determining the appropriate amount of damages owed by S.C. Cheadle Hulme Limited. The court also had to consider the principles of foreseeability, proximity, and the causal potency of each defendant's actions.

In its judgment, the court examined the historical evidence and previous findings in related cases, including the duty of care owed by Simon Carves Limited as the designer, manufacturer, and supplier of asbestos-containing boilers. The court found that Simon Carves Limited had actual knowledge of the dangers of asbestos exposure and failed to warn relevant parties, thus breaching its duty of care. The court concluded that Simon Carves Limited's relative blameworthiness was greater than Eraring Energy's due to its greater knowledge and involvement in the hazardous conditions. The court apportioned liability in the ratio of 75% to S.C. Cheadle Hulme Limited and 25% to Eraring Energy, resulting in a payment of $30,600 from S.C. Cheadle Hulme Limited to Eraring Energy, plus interest.

The final orders mandated that S.C. Cheadle Hulme Limited pay Eraring Energy $30,600 plus interest, and that S.C. Cheadle Hulme Limited bear the costs of the proceedings.

Orders