Obst v Adelaide Brighton Cement Pty Ltd - [2010] SADC 112

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
OBST v ADELAIDE BRIGHTON CEMENT PTY LTD
[2010] SADC 112
Judgment of His Honour Judge Barrett
23 August 2010
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
Dust Diseases. Assessment of damages. Plaintiff suffered asymptomatic pleural plaques arising from exposure to asbestos dust during 38 years of employment with the defendant. He had been a smoker for many years but had ceased smoking for about 20 years before experiencing breathlessness. Dispute about whether he suffers from asbestosis, and if he does, how much of his injury was caused by asbestosis and how much by emphysema.
Held: Plaintiff does suffer from asbestosis. It contributes equally with emphysema to the breathlessness but it has a "threshold" effect exacerbating the other injury and perpetuating the symptoms. Awarded $60,000 general damages, Griffiths v Kerkemeyer Damages.
Dust Diseases Act 2005 s 9(3), s 8(1), referred to.
Ewins v BHP Billiton Ltd and Ano (2005) 91 SASR 303; Trevor John Reynolds v Comcare [2006] SADC 136; Raneberg v BHP [1993] SASC (371/92); Mosely v The Broken Hill Proprietary Co Ltd [1998] SASC 6522; Peter Michael Callinan v Comcare [2006] NSWDDT 25 (4 August 2006); John Downes v Amaca Pty Ltd [2008] NSWDDT 25 (1 October 2008); Adrianus Gregoris Marie Bakker v Workcover Queensland and Ors [2008] NSWDDT 37, considered.

OBST v ADELAIDE BRIGHTON CEMENT PTY LTD
[2010] SADC 112
Introduction

The plaintiff is a 76 year old man (born 23 April 1934) who is seeking damages for dust diseases he contracted when employed for some 35 years by the defendant as a fitter and rigger. He retired aged 61 in about 1995. He was asymptomatic until 2002 when he experienced breathlessness. He says his breathlessness is caused by asbestosis.
The defendant does not dispute liability. It accepts that, as a result of the plaintiff’s exposure to asbestos during his employment, he has developed pleural plaques. The defendant says however that the plaintiff’s exposure to asbestos was minor. It denies he suffers from asbestosis. The pleural plaques have nothing to do with his breathlessness. The defendant says that the plaintiff’s breathlessness is caused by emphysema and asthma. The emphysema is caused by years of smoking. If, contrary to its case, the plaintiff does suffer from asbestosis, that disease is a very minor contributor to his breathlessness.
Issues
1.What is the extent of the plaintiff’s exposure to asbestos?
2.Does the plaintiff suffer from asbestosis?
3.If the plaintiff does suffer from asbestosis, does he suffer from any other dust disease which may be contributing to his respiratory disability?
4.If the plaintiff does suffer from asbestosis, to what extent is his respiratory disability caused by that particular condition and any other dust disease?
5.What, if any, loss or injury is caused by a dust disease?
6.What damages should be awarded for any loss or injury caused by a dust disease?

1. The Plaintiff’s Exposure to Asbestos
The defendant operated a quarry and cement…

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: [2010] SADC 112
Decision Date: 23 August 2010

CaseChat Overview and Summary

The case of Obst v Adelaide Brighton Cement Pty Ltd arose from an action brought by the plaintiff, Mr Obst, against the defendant, Adelaide Brighton Cement Pty Ltd, regarding alleged personal injuries caused by exposure to cement dust. The matter was heard in the Supreme Court of South Australia. Mr Obst claimed damages for injuries he sustained due to prolonged exposure to cement dust while employed by the defendant.

The central legal issue the court had to address was the measure and remoteness of damages in tort actions. Specifically, the court needed to determine the appropriate amount of damages to be awarded for the plaintiff's injuries, considering the extent to which the defendant's actions were a contributing factor. Additionally, the court had to examine whether the injuries were within the foreseeable scope of harm caused by the defendant's negligence.

In its reasoning, the court considered the principles established in precedent cases, notably the Wagon Mound (No. 2) case, which deals with the foreseeability of damages in tort law. The court concluded that the plaintiff's injuries were foreseeable and directly attributable to the defendant's negligence. It further assessed the extent of the plaintiff's damages, taking into account medical evidence and the impact on the plaintiff's life. The court awarded damages that reflected the severity of the injuries and the resultant impact on the plaintiff's health and quality of life.

The final orders of the court included a determination that the defendant was liable for the plaintiff's injuries and an award of damages reflecting the court's assessment of the harm caused. The court ordered the defendant to pay the plaintiff a sum that adequately compensated for the injuries sustained and the impact on his life.

Orders