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James Hardie & Coy Pty Ltd v Roberts

James Hardie & Coy Pty Ltd v Roberts

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Case Copied 13 September 1999 60 min read

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Reported Decision: 47 NSWLR 425
(1999) Aust Torts Reports 81-527

New South Wales

Court of Appeal

CITATION: JAMES HARDIE & COY PTY LIMITED v ROBERTS & ANOR [1999] NSWCA 314

FILE NUMBER(S): CA 40594/97

HEARING DATE(S): 13 July 1999

JUDGMENT DATE:
13 September 1999

PARTIES :

James Hardie & Coy Pty Limited - Appellant
Gary Roberts as Executor of the Estate of the late Guy Edward Roberts - First Respondent
Seltsam Pty Limited - Second Respondent

JUDGMENT OF: Spigelman CJ at 1; Meagher JA at 2; Sheller JA at 39; Stein JA at 104; Giles JA at 105

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S) : DDT 15/97

LOWER COURT JUDICIAL OFFICER: Judge Curtis

COUNSEL: C G Gee QC/G M Watson - Appellant
D F Jackson QC/F Toscano - First Respondent
J D Hislop QC/JJE Fernon - Second Respondent

SOLICITORS: Allen Allen & Hemsley - Appellant
McLaughlin & Riordan - First Respondent
Toomey Pegg & Drevikorsky - Second Respondent

CATCHWORDS: NEGLIGENCE - dust diseases - damages - measure of - plaintiff's estate may recover damages for destruction of earning capacity of deceased during remainder of what would have been the plaintiff's working life had he not died; NEGLIGENCE - dust diseases - multiple defendants - no issue as to causation - apportionment of damages

ACTS CITED: Compensation to Relatives Act 1897
Law Reform (Miscellaneous Provisions) Act 1944
Law Reform (Miscellaneous Provisions) Act 1946
Law Reform (Miscellaneous Provisions) Act 1965

CASES CITED:
Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649
Benham v Gambling [1941] AC 157
Commonwealth of Australia v McLean (partly reported in 41 NSWLR at 389 and partly unreported) 31 December 1996
EM Baldwin & Son Pty Ltd; Jsekarb Pty Limited v Plane (1999) AustTortsR 81-499
Fitch v Hyde-Cates [1980] 2 NSWLR 757
Fitch v Hyde-Cates (1982) 150 CLR 482
Gammell v Wilson [1982] AC 27
Harris v Empress Motors Limited [1984] 1 WLR 212
Jackson v Stothard [1973] 1 NSWLR 292
Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 1995)
Medlin v State Government Insurance Commission (1995) 182 CLR 1
O’Brien v McKean (1968) 118 CLR 540
Oliver v Ashman [1962] 2 QB 210
Pickett v British Rail Engineering Limited [1980] AC 136
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492
R v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322
Rose v Ford [1937] AC 826
Sharman v Evans (1976) 138 CLR 563
Skelton v Collins (1966) 115 CLR 94
Teubner v Humble (1963) 108 CLR 491
Todorovic v Waller (1981) 150 CLR 402
Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65

DECISION: Appeal and cross-appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40594/97
DDT 15/97

SPIGELMAN CJ

MEAGHER JA

SHELLER JA

STEIN JA

GILES JA

JAMES HARDIE & COY PTY LIMITED v ROBERTS & ANOR
The plaintiff contracted mesothelioma from exposure to asbestos fibres released from building products manufactured…

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: [1999] NSWCA 314
Decision Date: 13 September 1999

CaseChat Overview and Summary

The plaintiff's estate brought proceedings against the defendant, James Hardie & Coy Pty Ltd, and other parties (though the focus of this summary is on James Hardie) for damages arising from dust diseases. The dispute concerned the appropriate measure of damages recoverable by the plaintiff's estate, particularly in relation to the destruction of the deceased's earning capacity. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the plaintiff's estate could recover damages for the loss of the deceased's future earning capacity for the period that would have constituted his remaining working life, had he not succumbed to his dust-related illness. A secondary issue, though not central to the appeal's determination, involved the apportionment of damages amongst multiple defendants, with no dispute raised as to causation.

The Court of Appeal affirmed the principle that an estate may recover damages for the destruction of a deceased's earning capacity during the remainder of what would have been their working life. This principle acknowledges that the loss of future earnings is a quantifiable damage, even though the deceased will not personally benefit from the recovery. The court applied established principles of negligence and damages assessment in dust disease litigation, confirming that the measure of damages should reflect the economic loss suffered by the estate due to the premature termination of the deceased's capacity to earn income.

The appeal and cross-appeal were dismissed, with the Court ordering that the appellant (James Hardie & Coy Pty Ltd) pay the costs of the respondent.

Orders

Orders of the court

Appeal and cross-appeal dismissed with costs

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.

CITATION:	JAMES HARDIE & COY PTY LIMITED v ROBERTS & ANOR [1999] NSWCA 314
FILE NUMBER(S):	CA 40594/97
HEARING DATE(S):	13 July 1999
JUDGMENT DATE:	13 September 1999
PARTIES :	James Hardie & Coy Pty Limited - Appellant Gary Roberts as Executor of the Estate of the late Guy Edward Roberts - First Respondent Seltsam Pty Limited - Second Respondent
JUDGMENT OF:	Spigelman CJ at 1; Meagher JA at 2; Sheller JA at 39; Stein JA at 104; Giles JA at 105

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S) :	DDT 15/97
LOWER COURT JUDICIAL OFFICER:	Judge Curtis

COUNSEL:	C G Gee QC/G M Watson - Appellant D F Jackson QC/F Toscano - First Respondent J D Hislop QC/JJE Fernon - Second Respondent
SOLICITORS:	Allen Allen & Hemsley - Appellant McLaughlin & Riordan - First Respondent Toomey Pegg & Drevikorsky - Second Respondent
CATCHWORDS:	NEGLIGENCE - dust diseases - damages - measure of - plaintiff's estate may recover damages for destruction of earning capacity of deceased during remainder of what would have been the plaintiff's working life had he not died; NEGLIGENCE - dust diseases - multiple defendants - no issue as to causation - apportionment of damages
ACTS CITED:	Compensation to Relatives Act 1897 Law Reform (Miscellaneous Provisions) Act 1944 Law Reform (Miscellaneous Provisions) Act 1946 Law Reform (Miscellaneous Provisions) Act 1965
CASES CITED:	Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 Benham v Gambling [1941] AC 157 Commonwealth of Australia v McLean (partly reported in 41 NSWLR at 389 and partly unreported) 31 December 1996 EM Baldwin & Son Pty Ltd; Jsekarb Pty Limited v Plane (1999) AustTortsR 81-499 Fitch v Hyde-Cates [1980] 2 NSWLR 757 Fitch v Hyde-Cates (1982) 150 CLR 482 Gammell v Wilson [1982] AC 27 Harris v Empress Motors Limited [1984] 1 WLR 212 Jackson v Stothard [1973] 1 NSWLR 292 Macquarie Pathology Service Pty Limited v Sullivan (NSWCA unreported, 28 March 1995) Medlin v State Government Insurance Commission (1995) 182 CLR 1 O’Brien v McKean (1968) 118 CLR 540 Oliver v Ashman [1962] 2 QB 210 Pickett v British Rail Engineering Limited [1980] AC 136 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 R v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 Rose v Ford [1937] AC 826 Sharman v Evans (1976) 138 CLR 563 Skelton v Collins (1966) 115 CLR 94 Teubner v Humble (1963) 108 CLR 491 Todorovic v Waller (1981) 150 CLR 402 Wynbergen v Hoyts Corporation Pty Limited (1997) 72 ALJR 65
DECISION:	Appeal and cross-appeal dismissed with costs