Evans v Queanbeyan City Council

Case [2011] NSWCA 230

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Evans v Queanbeyan City Council [2011] NSWCA 230
Hearing dates:23 June 2011
Decision date: 05 August 2011
Before: Allsop P at 1;
Hodgson JA at 56;
Basten JA at 68
Decision:

(1) Appeal dismissed with costs.

(2) Summons dismissed with no order as to costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - decision in point of law - whether relevant error established where evidence supportive of and adverse to plaintiff's claim - Dust Diseases Tribunal Act 1989 (NSW), s 32(1).

TORT - negligence - causation - whether material increase in risk constitutes a causally material contribution to the harm suffered
Legislation Cited: Dust Diseases Tribunal Act 1989 (NSW), ss 11, 32
Civil Liability Act 2002 (NSW), ss 3B, 5D
Compensation Act 2006 (UK)
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Amaba Pty Ltd v Booth [2010] NSWCA 344
Amaca Pty Ltd v Ellis [2010] HCA 5; 240 CLR 111
Australian Iron and Steel Ltd v Connell [1959] HCA 54; 102 CLR 522
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408
Betts v Whittingslowe [1945] HCA 31; 71 CLR 637
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Chappel v Hart [1998] HCA 55; 195 CLR 232
Cullen v Welsbach Light Company of Australasia Ltd [1907] HCA 3; 4 CLR 990
Dasreef Pty Ltd v Hawchar [2011] HCA 21; 277 ALR 611
Dunlop Holdings Ltd's Application [1979] RPC 523
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32
Flounders v Millar [2007] NSWCA 238
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367
Hollis v Young [1909] 1 KB 629
Holloway v McFeeters [1956] HCA 25; 94 CLR 470
John Pfeiffer Pty Ltd v Canny [1981] HCA 52; 148 CLR 218
Jones v Dunkel [1959] HCA 8; 101 CLR…

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AGLC
Evans v Queanbeyan City Council [2011] NSWCA 230
Case
[2011] NSWCA 230
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal by the plaintiff, Evans, against a decision of the Dust Diseases Tribunal. The dispute concerned a claim for damages for personal injury, specifically a dust-related lung disease, allegedly caused by the defendant, Queanbeyan City Council, through exposure to silica dust during the plaintiff's employment.

The primary legal issues before the Court of Appeal were whether the Tribunal had erred in law under section 32(1) of the Dust Diseases Tribunal Act 1989 (NSW) by making a decision where there was evidence both supporting and adverse to the plaintiff's claim. Additionally, the Court was required to determine whether a material increase in the risk of harm constituted a causally material contribution to the harm suffered by the plaintiff in the context of a negligence claim.

The Court of Appeal reasoned that the Tribunal was entitled to weigh the evidence presented, and the existence of conflicting evidence did not, in itself, constitute an error of law. Regarding causation, the Court affirmed the principle that a material increase in the risk of harm can be sufficient to establish a causally material contribution to the injury, particularly in cases involving cumulative exposure to harmful substances where precise apportionment of blame is difficult. The Court found no error in the Tribunal's application of this principle to the facts before it.

Consequently, the Court of Appeal dismissed the plaintiff's appeal with costs, and a related summons was also dismissed with no order as to costs.

Orders

Orders of the court

(1) Appeal dismissed with costs.

(2) Summons dismissed with no order as to costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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