Laminex (Australia) Pty Ltd v Coutts - [2006] NSWCA 186

NEW SOUTH WALES COURT OF APPEAL

CITATION: Laminex (Australia) Pty Ltd (trading as Laminex Industries) & Anor v Coutts; Royal & Sunalliance Insurance Group PLC UK v Coutts; Government Insurance Office of New South Wales & Anor v Coutts; CSR Ltd v Coutts [2006] NSWCA 186

FILE NUMBER(S):
40395/06
40397/06
40429/06
40426/06

HEARING DATE(S): 7 July 2006

DECISION DATE: 14/07/2006

PARTIES:
Laminex (Australia) Pty Ltd (t/as Laminex Indusries) - First Claimant in Matter No 40395/06
Laminex Group Ltd (formerly Amatek Ltd) - Second Claimant in Matter No 40395/06
Royal and Sunalliance Insurance Group PLC UK (as Insurer for Woodland Pty Ltd) - Claimant in Matter No 40397/06
Government Insurance Office of NSW (as Insurer for J Odlin Shopfitting (Int) Pty Ltd - First Claimant in Matter No 40429/06
Government Insurance Office of NSW (as insurer for J Odlin Shopfitting Pty Ltd) - Second Claimant in Matter No 40429/06
CSR Limited - Claimant in Matter No 40426/06
Brian Coutts - Opponent in all Matters

JUDGMENT OF: Giles JA Hodgson JA Bryson JA

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S): DDT 106/2000

LOWER COURT JUDICIAL OFFICER: Duck J

COUNSEL:
T G Parker SC - Claimants in Matter No 40395/06
J E Fernon SC - Claimants in Matters Nos 40397/06 & 40426/06
J L Sharpe - Claimant in Matter No 40429/06
G F Little SC & F Tuscano - Opponent in all Matters

SOLICITORS:
Clayton Utz - Claimants in Matter No 40395/06
Lander & Rogers - Claimants in Matters Nos 40397/06 & 40426/06
Hunt & Hunt - Claimant in Matter No 40429/06
Doherty & Partners - Opponent in all Matters

CATCHWORDS:
Dust Diseases Tribunal - jurisdiction in proceedings for damages in respect of dust-related condition - relevantly meaning lung condition attributable to dust - plaintiff contracted nasal cancer from dust exposure - surgery brought consequential lung condition - whether lung condition attributable to dust - whether proceedings claiming damages were in respect of dust-related condition - lung condition attributable to dust - although cause of action for all consequences of dust exposure, jurisdiction by virtue of claim to damages in respect of lung condition.

LEGISLATION CITED:
Compensation to Relatives Act 1897;
Dust Diseases Tribunal Act 1989;
Law Reform (Miscellaneous Provisions) Act 1944.

DECISION:
In each matter - (1) Grant leave to appeal and direct the filing of a notice of appeal within seven days; (2) Appeal dismissed; (3) Appellant(s) pay the costs of the application for leave to appeal and the appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40395/06
CA 40397/06
CA 40429/06
CA 40426/06
DDT 106/2000
GILES JA
HODGSON JA
BRYSON JA
Friday 14 July 2006

LAMINEX (AUSTRALIA) PTY LTD v COUTTS
ROYAL & SUNALLIANCE INSURANCE GROUP PLC UK v COUTTS
GOVERNMENT INSURANCE OFFICE
OF NEW SOUTH WALES & ANOR v COUTTS
CSR LTD v COUTTS

Judgment

GILES JA: These were applications for leave to appeal from decisions of the Dust Diseases Tribunal (“the Tribunal”) that it had jurisdiction in proceedings.…

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] NSWCA 186
Decision Date: 14 July 2006

CaseChat Overview and Summary

In *Laminex (Australia) Pty Ltd v Coutts*, the New South Wales Court of Appeal considered the jurisdiction of the Dust Diseases Tribunal. The plaintiff, Mr Coutts, had contracted nasal cancer due to dust exposure, and subsequent surgery for this condition resulted in a consequential lung condition. The central dispute revolved around whether the Tribunal had jurisdiction to hear proceedings for damages in respect of this lung condition, which the plaintiff argued was a "dust-related condition" as defined by the relevant Act.

The primary legal issue before the Court of Appeal was whether the Dust Diseases Tribunal possessed jurisdiction to hear and determine the proceedings. This question hinged on whether the plaintiff's lung condition constituted a "dust-related condition" within the meaning of the Act, and if so, whether the proceedings claiming damages were indeed "in respect of" such a condition. The court also considered whether the Tribunal's jurisdiction extended to other consequences of the dust exposure, such as the nasal cancer, even if those were not themselves dust-related conditions.

The Court of Appeal, upholding the decision of Duck J, reasoned that the plaintiff's lung condition, arising from atelectasis and chronic irritation due to dust exposure, qualified as a pathological condition of the lung attributable to dust. Therefore, it was a "dust-related condition" for the purposes of the Act. The court found that the proceedings claiming damages were, at least in part, in respect of this dust-related lung condition, thereby bringing the matter within the Tribunal's exclusive jurisdiction. Furthermore, the court held that even if the primary claim related to the nasal cancer, the Tribunal also had jurisdiction over that matter due to its connection with the dust-related lung condition, either under section 11(3) or alternatively section 11(4) of the Act. The appeal was dismissed, with the appellant ordered to pay the costs.

Orders

Orders of the court

In each matter - (1) Grant leave to appeal and direct the filing of a notice of appeal within seven days; (2) Appeal dismissed; (3) Appellant(s) pay the costs of the application for leave to appeal and the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Other provisions of the Act will be mentioned as appropriate later in these reasons.The decisions of Duck J The separate question ordered to be decided in June 2006 was “Whether the Tribunal has jurisdiction to hear and determine these proceedings”. The order in May 2001 was not before us, but was taken in the appeals to have been to the same effect. Duck J noted in his judgment of 22 May 2001 that for the purposes of deciding the question the parties “have proceeded on the footing that whether or not there has been a breach of duty is something that can be left until later. That is breach of duty has been assumed for the purposes of this argument”. Nothing was said of breach of duty in the judgment of 28 June 2006. An assumption, with its correctness left until later, is generally inappropriate where there is decision of a separate question as occurred here. The decision should bind the parties to a result, not a contingency, cf Baxter v Abacelo Pty Ltd (2001) 205 CLR 635 at [14], [63]. At least for the breach of duty to which s 11(1)(b) refers, neither proof nor assumption is necessary and it is sufficient if there is an allegation, see Anderson v Kaufman (1991) 7 NSWCCR 198 at 203 per Mahoney JA, 204 per Priestley JA and 207 per Clarke JA. Section 11(1)(c) can not by the reference to entitlement to bring an action require that the allegation be made good in order that there be jurisdiction. The earlier versions were not before us, but in the respondent’s seventh further amended statement of claim there were adequate allegations that the defendants’ negligence caused the respondent’s injuries, including pathological conditions of the lungs. The respondent had not suffered and did not suffer from a disease specified in Schedule 1 to the Act. On appeal, it was common ground that the ethmoid cancer was not a pathological condition of the lungs, peritoneum or pleura. Taken from the judgments of 22 May 2001 and 28 June 2006, the reasoning of Duck J was relevantly -(a)because of the period of atelectasis the respondent had suffered from, and because of the chronic irritation to his lungs he was suffering from, pathological conditions of the lung;(b)these conditions were attributable to dust and were therefore dust-related conditions; (c)the dust-related conditions were attributable or partly attributable to the assumed breaches of duty;(d)The Tribunal thus had (exclusive) jurisdiction in relation to the dust-related conditions; and (e)the Tribunal also had (non exclusive) jurisdiction in relation to the ethmoid cancer and its other consequences by virtue of s 11(3) or alternatively s 11(4) of the Act. Although his Honour did not expressly take step (e) in his second judgment, he there implicitly adopted what he had said in his first judgment at [60] -“60. The cause of action giving rise to the proceedings in respect of those dust-related conditions also gives rise to another matter that is the entitlement to damages arising from the tumour and its treatment. Those matters may be dealt with in those proceedings. Alternatively the substantial claim relating to the tumour and its treatment is a matter which is related to the claim relating to the two minor identified dust-related conditions. I conclude therefore that the matter is within the jurisdiction of the Tribunal.”

Ratio Decidendi

Legal Principle Established

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