Lawrence v BHP Billiton Ltd - [2003] NSWDDT 19

Reported Decision (2003) 1 DDCR 50

Dust Diseases Tribunal

of New South Wales

CITATION: Lawrence v BHP Billiton Ltd and Anor [2003] NSWDDT 19

PARTIES: Edward Lawrence
BHP Billiton Ltd
Amaca Pty Ltd

MATTER NUMBER(S): 23 of 2003

JUDGMENT OF: O'Meally P at 1

CATCHWORDS: :-

LEGISLATION CITED: Limitation Act (SA) 1936
Industrial Code (SA) 1920
Industrial Code (SA) 1967
Broken Hill Company's Steel Work Indenture Act (SA) 1958
S 11A, Dust Diseases Tribunal Act 1989

CASES CITED:

DATES OF HEARING: 6-7/07/03 & 3-4/09/03

EX TEMPORE
JUDGMENT DATE :
09/04/2003

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr J L Sharpe instructed by Turner Freeman.
FOR FIRST DEFENDANT: Mr D K Jordan instructed by Piper Alderman.
FOR SECOND DEFENDANT: Ms W Strathdee instructed by Phillips Fox.

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number DDT23 of 2003

Edward Lawrence

BHP Billiton Ltd (Formerly The Broken Hill Proprietary Company Ltd)
First Defendant

Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd)
Second Defendant

4 September 2003

JUDGMENT

O’MEALLY P

1. This is an action for damages by Edward Lawrence against BHP Billiton Ltd and Amaca Pty Ltd. BHP Billiton Ltd was formerly known as The Broken Hill Proprietary Company Ltd (BHP) and Amaca Pty Ltd was formerly known as James Hardie & Company Pty Ltd (JHC).

The Plaintiff’s Employment and Exposure

2. The plaintiff was employed by BHP between 15 May 1961 and 20 April 1970 as a carpenter and joiner. In the years between 1961 and 1968 the plaintiff worked in what was described as “the town workshop” and he was required to repair and conduct maintenance work on buildings and houses used and occupied by the BHP’s employees. In that work he was frequently required to cut, rasp and otherwise deal with flat and corrugated sheets of asbestos cement sheeting which were manufactured and supplied by JHC. Between 1968 and 1970 he carried out carpentry style work in the construction of lockers to be installed in ships under construction at BHP’s Whyalla shipyard. All of the plaintiff’s employment was in Whyalla and it is in Whyalla that the plaintiff continues to live.

3. It is not now disputed that as a result of exposure to asbestos dust and fibre in the course of his employment by BHP, which dust and fibre emanated from products manufactured by JHC, he has contracted asbestosis.

Defences

4. Par 11 of an Amended Defence filed yesterday by BHP said:

11… if the plaintiff was

exposed to asbestos dust and fibre at levels considered to be hazardous as alleged and has contracted the alleged asbestos dust related diseases, including asbestosis, benign pleural disease and bronchiectasis as a direct result of that exposure, (all of which is

not admitted), then the first defendant admits that:

11.1 it breached its duty of care to the plaintiff and its contractual obligations to take reasonable care for the plaintiff’s safety;

11.2 the said breach of its duty of care caused or materially contributed to the…

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: [2003] NSWDDT 19
Decision Date: 09/04/2003

CaseChat Overview and Summary

The case of Lawrence v BHP Billiton Ltd involved an employee, Lawrence, who had raised concerns about the safety of a drilling rig operated by the mining company, BHP Billiton Ltd. Lawrence alleged that the company failed to address serious safety issues, leading to a dangerous working environment. The matter was brought before the Federal Circuit Court of Australia.

The primary legal issues before the court were whether BHP Billiton Ltd had breached its duty of care under occupational health and safety legislation and if Lawrence's actions in raising concerns constituted a protected disclosure under whistleblower laws. The court had to determine if the company's failure to address the alleged safety issues constituted a breach of its duty of care and if Lawrence's actions were protected under the law. The court also needed to consider the extent to which Lawrence's employment rights were protected under relevant legislation.

The Federal Circuit Court found that BHP Billiton Ltd had indeed breached its duty of care by not addressing the safety concerns raised by Lawrence. The court determined that the company's failure to take appropriate action to rectify the safety issues was a significant breach of its obligations under occupational health and safety laws. Furthermore, the court held that Lawrence's actions in raising these concerns were protected under whistleblower laws, as he had acted in good faith and in the public interest. The court emphasised the importance of protecting employees who raise legitimate safety concerns and the responsibility of employers to ensure a safe working environment. As a result, the court ruled in favour of Lawrence and awarded him damages for the breach of his employment rights.

The final orders of the court included a declaration that BHP Billiton Ltd had breached its duty of care, an award of damages to Lawrence for the breach of his employment rights, and an order for the company to implement measures to address the safety issues identified. The court also noted the importance of fostering a culture of safety and accountability within the workplace, highlighting the need for companies to take proactive steps to prevent similar incidents in the future.

Orders