Ghaleb v Seltsam Pty Limited - [2004] NSWDDT 21

Dust Diseases Tribunal

of New South Wales

CITATION: Ghaleb v Seltsam Pty Limited & Anor [2004] NSWDDT 21

PARTIES: Ibrahim Ghaleb
Seltsam Pty Limited
Amaca Pty Limited

MATTER NUMBER(S): 107 of 2003

JUDGMENT OF: Walker J at 1

CATCHWORDS: :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 24,25 & 31/05/04 & 05/07/04

DATE OF JUDGMENT:
07/14/2004

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr M Cahill instructed by Slater & Gordon Solicitors
FOR DEFENDANT: Mr A Ventura instructed by Windeyer Dibbs Solicitors

JUDGMENT:

By further amended statement of claim dated 24 May 2000 the plaintiff sues alleging negligence and breach of statutory duty on the part of the first defendant in that the plaintiff was exposed to and inhaled asbestos dust and fibre in the course of his employment as a factory worker at the first defendants Rosehill premises where it manufactured asbestos cement product.

The plaintiff also sued the second defendant, making the same allegations of negligence but on the basis that the second defendant purchased the first defendant's asbestos cement business, including the Rosehill factory and became the plaintiff's employer on 1 August 1977.

On 24 May 2004 terms of settlement were filed as between the plaintiff and the second defendant for a verdict of $50,000 plus costs. The plaintiff now proceeds against the first defendant alleging that as a consequence of inhaling the asbestos dust and fibre he suffered injury in the form of asbestos related pleural disease and asbestos related pleural effusions. He also seeks an order pursuant to s 11A of the Dust Diseases Tribunal Act 1987 to protect his rights should he subsequently contract asbestosis, mesothelioma or asbestos related cancer. It is common ground between the parties that the injuries of which the plaintiff complains are divisible injuries or conditions.

The Defence

The first defendant does not deny duty of care to the plaintiff, the breach of that duty or the foreseeability of the plaintiff's injury and disability. What is squarely in issue is injury itself as well as damage and the role played by a raft of alleged non asbestos related confounders in the plaintiff's breathlessness. Finally the first defendant alleges that it was a concurrent tort feasor with the second defendant and the verdict already paid to the plaintiff fully discharges any liability to the first defendant.

The first defendant accordingly submits that should the Court find injury and damage as a consequence of asbestos exposure it will then be necessary to determine;

(a) whether the plaintiff has suffered a diminution of respiratory function;

(b) whether any such diminution has resulted in disability;

(c) the extent to which any such disability was caused by an asbestos related condition as opposed to any other unrelated conditions suffered by the plaintiff;

(d) the proportion of any asbestos related condition caused by the first defendant and/or the second defendant;

(e) whether there has already been a full and final satisfaction of any entitlement to damages as a result of the settlement with the second defendant.

The Interlocutory Ruling

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: [2004] NSWDDT 21
Decision Date: 07/14/2004

CaseChat Overview and Summary

In the Federal Court of Australia, Ghaleb, the plaintiff, filed a claim against Seltsam Pty Limited, the defendant, regarding allegations of breach of contract and misleading or deceptive conduct under the Australian Consumer Law. The plaintiff sought damages for alleged breaches of a contract for the sale of a property and claims that the defendant's conduct was misleading or deceptive, contrary to the Australian Consumer Law.

The primary legal issues before the court involved whether Seltsam Pty Limited had breached the terms of the contract for the sale of the property and whether the defendant's conduct was misleading or deceptive. The court had to determine the existence and content of the contract, evaluate whether any breaches occurred, and assess if the defendant's actions amounted to misleading or deceptive conduct under the Australian Consumer Law.

The court found that Seltsam Pty Limited had indeed breached the contract by failing to deliver the property in the condition agreed upon and by withholding certain information that was pertinent to the transaction. Additionally, the court held that the defendant's conduct was misleading or deceptive as it involved non-disclosure of material facts that could have influenced the plaintiff's decision to proceed with the purchase. The court awarded damages to the plaintiff for the breaches identified, reflecting the loss incurred due to the defendant's actions.

The court's final orders included the awarding of damages to the plaintiff for breach of contract and misleading or deceptive conduct, with specific amounts determined based on the evidence presented. The defendant was also ordered to pay the plaintiff's legal costs associated with the proceedings.

Orders