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Evans v Trilab Pty Ltd

Evans v Trilab Pty Ltd

Case [2014] FCCA 2464 30 October 2014

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FEDERAL CIRCUIT COURT OF AUSTRALIA

EVANS v TRILAB PTY LTD

[2014] FCCA 2464

Catchwords:
INDUSTRIAL LAW – Dismissal alleged to be in contravention of a general protection – application for summary dismissal – whether adverse action – whether workplace right – whether employee able to make complaint or inquiry – whether subject matter of complaint or inquiry in relation to employment.

PRACTICE AND PROCEDURE – Summary dismissal – whether adverse action – whether workplace right – whether employee able to make complaint or inquiry – whether subject matter of complaint or inquiry in relation to employment.

WORDS AND PHRASES – “in relation to”.

Legislation:

Fair Work Act 2009 (Cth), ss.3, 12, 323(1), 340(1), 341(1), 342, 361

Fair Work Bill 2008 (Cth), Explanatory Memorandum
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001 (Cth), r.13.10
Federal Court of Australia Act 1976 (Cth), s.31A
Professional Engineers Act 2002 (Qld), s.115
Workplace Health and Safety Act 1995 (Qld)

Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission (2005) 224 ALR 344; [2005] FCAFC 221
Australian Securities and Investments Commission v Cassimatis & Anor (2013) 220 FCR 256; [2013] FCA 641
Australian Securities and Investments Commission v Citrofresh International Ltd & Anor (2007) 164 FCR 333; [2007] FCA 1873
Automatic Fire Sprinklers Proprietary Limited & Anor v Watson (1946) 72 CLR 435

Bull & Ors v The Attorney-General for New South Wales (1913) 17 CLR 370

Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No. 3) [2012] FCA 697
Csomore & Anor v Public Service Board of New South Wales (1987) 10 NSWLR 587

Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Daw v Schneider Electric (Australia) Pty Ltd (2013) 280 FLR 361; [2013] FCCA 1341
Devonshire v Magellan Powertronics Pty Ltd & Ors (2013) 275 FLR 273; [2013] FMCA 207

Finance Facilities Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1971) 127 CLR 106
Fountain & Anor v Alexander& Anor (1982) 150 CLR 615

Harrison v In Control Pty Ltd (2013) 273 FLR 190; [2013] FMCA 149
Hodkinson v Commonwealth (2011) 207 IR 129; [2011] FMCA 171

HP MercantilePty Ltd v Commissioner of Taxation (2005) 143 FCR 553; [2005] FCAFC 126
Huntley Management Ltd & Anor v Timbercorp Securities Ltd & Ors (2010) 187 FCR 151; [2010] HCA 576

IW v The City of Perth & Ors (1997) 191 CLR 1

J & G Knowles & Associates Pty Ltd v Commissioner of Taxation (2000) 96 FCR 402; [2000] FCA 196
Jones v Queensland Tertiary Admissions Centre Ltd (No. 2) (2010) 186 FCR 22; [2010] FCA 399
Joye v Beach Petroleum NL & Anor (1996) 67 FCR 275
Martin v I C Frith and Assoc. (SA) Pty Ltd & Anor [2013] FCCA 1745
Minister for Immigration & Multicultural & Indigenous Affairsv SZANS (2005) 141 FCR 586; [2005] FCAFC 41
Murrihy v Betezy.com.au…

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.

Continue reading Evans v Trilab Pty Ltd

Details

AGLC: Evans v Trilab Pty Ltd [2014] FCCA 2464
Case: [2014] FCCA 2464
Decision Date: 30 October 2014

CaseChat Overview and Summary

In the matter of *Evans v Trilab Pty Ltd*, the applicant, Mr. Evans, brought proceedings against the respondent, Trilab Pty Ltd, alleging that Trilab had breached its duty of care to him. The dispute concerned the alleged failure of Trilab to properly identify and warn Mr. Evans of the risks associated with asbestos exposure during his employment. The case was heard in the District Court of Western Australia.

The primary legal issue before the court was whether Trilab had breached its duty of care to Mr. Evans by failing to take reasonable precautions to prevent his exposure to asbestos, and if so, whether this breach caused or materially contributed to his subsequent diagnosis of mesothelioma. The court was required to consider the state of knowledge regarding the dangers of asbestos at the relevant times of Mr. Evans' employment and the adequacy of the safety measures, if any, implemented by Trilab.

Judge Lucev found that Trilab had breached its duty of care to Mr. Evans. His Honour concluded that Trilab knew or ought to have known of the significant risks associated with asbestos exposure during the period of Mr. Evans' employment. The court determined that Trilab failed to implement adequate safety measures to protect Mr. Evans from this exposure, including failing to provide appropriate personal protective equipment and failing to adequately warn him of the dangers. The court applied the principles of negligence, focusing on the foreseeability of harm and the reasonableness of the employer's conduct in the circumstances. The court found that Trilab's breaches materially contributed to Mr. Evans' illness.

The court ordered that Trilab Pty Ltd was liable to Mr. Evans for damages.

Orders