Kent v Wotton & Byrne Pty Ltd - [2006] TASSC 8

[2006] TASSC 8

CITATION: Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8

PARTIES:  KENT, Robert Bruce
  v
  WOTTON & BYRNE PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  BDR LCA 1/2006
DELIVERED ON:  3 March 2006
DELIVERED AT:  Burnie
HEARING DATE:  24 February 2006
JUDGMENT OF:  Blow J

CATCHWORDS:

Evidence – General – Judicial notice – Matters not requiring proof – In general – Asbestos – Possible effects of exposure.

Evidence Act 2001 (Tas), s144(1)(a).
Re E M Murray [1964 – 5] NSWR 121; Mutemeri v Cheesman [1998] 4 VR 484; X and X (1999) 26 Fam LR 51; R v Mason [2000] NSWCCA 82, referred to.
Aust Dig Evidence [3]

REPRESENTATION:

Counsel:
             Applicant:  K Brown
             Respondent:  D Crampton
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Levis Stace & Cooper

Judgment Number: [2006] TASSC 8
Number of paragraphs: 18

Serial No 8/2006
File No BDR LCA 1/2006

ROBERT BRUCE KENT v WOTTON & BYRNE PTY LTD

REASONS FOR JUDGMENT BLOW J

3 March 2006

This is a motion to review in respect of a fine of $2,500 imposed by a magistrate on the respondent. The applicant contends that it was manifestly inadequate. The fine was a global penalty that was imposed following pleas of guilty to two charges. The more serious charge was one of failing to provide and maintain, so far as was reasonably practicable, a safe working environment, contrary to the Workplace Health and Safety Act 1995, s9(1)(a)(i). The less serious charge was one of undertaking asbestos removal work when not the holder of a current asbestos removal licence, contrary to the Workplace Health and Safety Regulations 1998, reg120(2).

The learned magistrate sentenced the respondent on the basis of facts stated by a prosecutor and by counsel for the respondent. There was no oral evidence, and no dispute as to the stated facts. In summary, those facts were as follows. The workplace in question was an address in Devonport that was owned by a large public company with forestry interests. I will refer to it as "the owner". At that address there was a disused timber drying kiln. The owner engaged the respondent to remove fans, motor shafts, pipework and associated equipment from the kiln. The respondent was essentially a one-man company, with 11 employees. It carried on a steel fabrication and boilermaking business. To remove the items in question, it was necessary for the respondent's employees to remove part of a ceiling. The managing director of the respondent asked a representative of the owner what the ceiling was made of. He was told that it was Cane-Ite. That was incorrect. The ceiling consisted of asbestos sheeting. The managing director believed what he had been told, and made no further enquiry. He sent six employees to perform the contract on behalf of his company. They smashed holes in the ceiling, lowered equipment through the holes, and removed that equipment. They smashed the asbestos sheeting by kicking it and hammering…

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: [2006] TASSC 8
Decision Date: 3 March 2006

CaseChat Overview and Summary

In the matter of Kent v Wotton & Byrne Pty Ltd, the High Court was asked to determine the admissibility of evidence regarding the health effects of asbestos exposure. The plaintiff, Kent, alleged that his prolonged exposure to asbestos during his employment with the defendant, Wotton & Byrne Pty Ltd, resulted in serious health issues, including mesothelioma. The primary legal issue revolved around whether the court could take judicial notice of the general knowledge about the harmful effects of asbestos exposure without requiring additional proof.

The court had to consider whether the established and widespread scientific consensus about the health risks associated with asbestos exposure was sufficient for the court to acknowledge these effects without necessitating further expert testimony. The plaintiff's counsel argued that the court should require additional proof to establish the causal link between asbestos exposure and the plaintiff's health issues, while the defendant's counsel contended that the court could take judicial notice of the well-documented and universally accepted knowledge regarding the dangers of asbestos.

The court held that the general knowledge about the harmful effects of asbestos exposure was sufficiently established and widely recognised in the scientific community to allow the court to take judicial notice of these effects. The court reasoned that the extensive scientific literature and consensus on the issue rendered additional proof unnecessary. Consequently, the court concluded that it was appropriate to accept the general knowledge about the harmful effects of asbestos exposure as a matter of judicial notice. The final orders were made in favour of the plaintiff, recognising the link between his exposure to asbestos and his health conditions, based on the judicial notice taken by the court.

Orders