Howard Smith & Patrick Travel Pty Ltd v Comcare - [2014] NSWCA 215

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215
Hearing dates: 16 May 2014
Decision date: 03 July 2014
Before: Beazley P at [1];
Basten JA at [2];
Sackville AJA at [69]
Decision:
(1) Dismiss the appeal.
(2) Order the appellant to pay the respondent's costs of the appeal.
[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:
EVIDENCE - admissibility - opinion evidence - worker exposed to asbestos dust during employment - admissibility of statements of workers alleging exposure to asbestos dust - whether identification of dust as asbestos inadmissible as opinion - whether evidence admissible as perception of a fact - whether evidence admissible as opinion based on specialised knowledge - Evidence Act 1995 (NSW), ss 76(1), 78, 79

TORT - joint tortfeasors - contribution between tortfeasors - worker sued statutory authority in negligence - statutory authority settled without admitting liability - statutory authority sought contribution from worker's employer - whether statutory authority liable to worker - whether erroneous apportionment of liability - whether failure to consider relative culpability of parties - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2)
TORT - negligence - duty of care - statutory authority regulating stevedoring industry - worker exposed to asbestos dust when employed by a stevedore - worker not a registered waterside worker - whether statutory authority owed a duty of care to persons other than registered waterside workers - functions and powers of the statutory authority- breach of duty - whether evidence established breach - Stevedoring Industry Act 1956 (Cth), ss 7, 8, 17, 18, 28, 29, 33, 39, 41
Legislation Cited: Dust Diseases Tribunal Act 1989 (NSW), s 32
Evidence Act 1995 (NSW), ss 76, 78, 79
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Stevedoring Industry Act 1956 (Cth), ss 7, 9, 10, 17, 18, 23, 28, 29, 33, 29, 41
Cases Cited: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540
Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179; 20 NSWCCR 417
Category: Principal judgment
Parties: Howard Smith & Patrick Travel Pty Ltd (Appellant)
Comcare (Respondent)
Representation: Counsel:
Mr G J Parker SC (Appellant)
Mr J Sheller/Mr O Jones (Respondent)
Solicitors:
HWL Ebsworth (Appellant)
Australian Government Solicitor (Respondent)

File Number(s): 2013/209537
Decision under appeal

Jurisdiction:

9115

Citation:

Comcare v Howard Smith & Patrick Travel P/L [2013] NSWDDT 6

Date of Decision:

2013-06-21 00:00:00

Before:

Finnane DCJ

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] NSWCA 215
Decision Date: 03 July 2014

CaseChat Overview and Summary

The appeal concerned a worker who alleged exposure to asbestos dust during his employment, leading to a claim against a statutory authority. The statutory authority had settled the worker's claim without admitting liability and then sought contribution from the worker's employer. The central dispute revolved around whether the statutory authority owed a duty of care to the worker, who was not a registered waterside worker, and whether the evidence presented, particularly regarding the identification of dust as asbestos, was admissible.

The court was required to determine several legal issues. Firstly, it had to consider the admissibility of statements made by workers alleging exposure to asbestos dust, specifically whether the identification of the dust as asbestos constituted inadmissible opinion evidence or admissible perception of fact or opinion based on specialised knowledge under the Evidence Act 1995 (NSW). Secondly, the court had to assess whether the statutory authority owed a duty of care to persons other than registered waterside workers, given its functions and powers under the Stevedoring Industry Act 1956 (Cth). Thirdly, the court needed to determine if a breach of that duty was established by the evidence. Finally, the court considered the principles of contribution between joint tortfeasors under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), including whether the statutory authority was liable to the worker and if there was an erroneous apportionment of liability or a failure to consider relative culpability.

The court dismissed the appeal, ordering the appellant to pay the respondent's costs. This outcome indicates that the court found in favour of the respondent on the substantive issues raised in the appeal, upholding the decision of the lower court. The specific reasoning for dismissing the appeal would have involved a detailed analysis of the evidence, the application of the relevant statutory provisions concerning the statutory authority's duties and powers, and the principles of tortious liability and contribution.

Orders

Orders of the court

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs of the appeal.

[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

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:	Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215
Hearing dates:	16 May 2014
Decision date:	03 July 2014
Before:	Beazley P at [1]; Basten JA at [2]; Sackville AJA at [69]
Decision:	(1) Dismiss the appeal. (2) Order the appellant to pay the respondent's costs of the appeal. [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:	EVIDENCE - admissibility - opinion evidence - worker exposed to asbestos dust during employment - admissibility of statements of workers alleging exposure to asbestos dust - whether identification of dust as asbestos inadmissible as opinion - whether evidence admissible as perception of a fact - whether evidence admissible as opinion based on specialised knowledge - Evidence Act 1995 (NSW), ss 76(1), 78, 79 TORT - joint tortfeasors - contribution between tortfeasors - worker sued statutory authority in negligence - statutory authority settled without admitting liability - statutory authority sought contribution from worker's employer - whether statutory authority liable to worker - whether erroneous apportionment of liability - whether failure to consider relative culpability of parties - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2) TORT - negligence - duty of care - statutory authority regulating stevedoring industry - worker exposed to asbestos dust when employed by a stevedore - worker not a registered waterside worker - whether statutory authority owed a duty of care to persons other than registered waterside workers - functions and powers of the statutory authority- breach of duty - whether evidence established breach - Stevedoring Industry Act 1956 (Cth), ss 7, 8, 17, 18, 28, 29, 33, 39, 41
Legislation Cited:	Dust Diseases Tribunal Act 1989 (NSW), s 32 Evidence Act 1995 (NSW), ss 76, 78, 79 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Stevedoring Industry Act 1956 (Cth), ss 7, 9, 10, 17, 18, 23, 28, 29, 33, 29, 41
Cases Cited:	Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179; 20 NSWCCR 417
Category:	Principal judgment
Parties:	Howard Smith & Patrick Travel Pty Ltd (Appellant) Comcare (Respondent)
Representation:	Counsel: Mr G J Parker SC (Appellant) Mr J Sheller/Mr O Jones (Respondent) Solicitors: HWL Ebsworth (Appellant) Australian Government Solicitor (Respondent)
File Number(s):	2013/209537
Decision under appeal	Jurisdiction: 9115 Citation: Comcare v Howard Smith & Patrick Travel P/L [2013] NSWDDT 6 Date of Decision: 2013-06-21 00:00:00 Before: Finnane DCJ