Reported Decision: 4 DDCR 234
Court of Appeal
CITATION: Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142 HEARING DATE(S): 25 May 2006
JUDGMENT DATE:
6 September 2006JUDGMENT OF: Giles JA at 1; Ipp JA at 69; Tobias JA at 73 DECISION: (1) Set aside the verdict and judgment entered by Duck J on 6 April 2005 and the order for costs then made; (2) Remit the proceedings to the Dust Diseases Tribunal for further determination; (3) Costs in the Tribunal to be in the discretion of the judge conducting the further determination; (4) Respondent to pay the appellant's costs of the appeal. CATCHWORDS: Contribution between tortfeasors - where damage divisible - assessment of "the same damage" for which contribution to be made - error in point of law by Dust Diseases Tribunal in apportioning the whole of the damages payable - whether Court of Appeal could or should make fresh apportionment - or should be remission to Tribunal - consideration of nature of error in point of law and powers if error in point of law shown. CASES CITED: Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509;
Attorney-General for the State of New South Wales v X (2000) 49 NSW:R 653;
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139;
(Re Bowie) Stevedoring Industry Finance Committee v James Patrick & Co Pty Ltd (in liquidation) [2005] NSWDDT 59;
(Re Cassar) Stevedoring Industry Finance Committee v James Patrick & Co Pty Ltd (in liquidation) [2005] NSWDDT 60;
Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323;
Dingle v Associated Newspapers Ltd (1961) 2 QB 162;
Gibson v SIFC & Ors (DDT 89 of 1996);
Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324;
Macquarie Pathology Services Pty Ltd v Sullivan (CA, 29 March 1995, unreported);
Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 165 CLR 522;
Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673;
Municipal Tramways Trust v Buckley (1912) 14 CLR 731;
Naxakis v Western General Hospital (1999) 197 CLR 269;
North Broken Hill Ltd v Tumes (1999) 19 NSWCCR 412;
Roads and Traffic Authority of New South Wales v Perry (2001) 52 NSWLR 222;
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492;
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208;
Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179;
Swain v Waverley Municipal Council (2005) 213 ALR 249;
Tobin v Murison (1845) 5 Moo PC 110; 13 ER 431;
Vetter v Lake Macquarie City Council (2001) 202 CLR 439;
Wallaby Grip Ltd v Peirce [2000] NSWCA 299;
Warley Pty Ltd v Adco Constructions Pty Ltd (CA, 30 November 1998, unreported).PARTIES: Patrick Operations Pty Ltd - Appellant
Comcare - RespondentFILE NUMBER(S): CA 40361/05 COUNSEL: I G Harrrison SC & J A de Greenlaw - Appellant
A J Sullivan QC…
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Details
- AGLC
- Patrick Operations Pty LTd v Comcare [2006] NSWCA 142
- Case
- [2006] NSWCA 142
- Decision Date
CaseChat Overview and Summary
Patrick Operations Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the Dust Diseases Tribunal, which had ordered Patrick Operations to contribute to damages awarded to an employee who had contracted a dust-related disease. The dispute concerned the extent of Patrick Operations' liability for the employee's condition, given that the employee had also been exposed to asbestos during prior employment with another entity.
The Court of Appeal was required to determine whether the Dust Diseases Tribunal had erred in law by apportioning the whole of the damages payable to the employee between Patrick Operations and the prior employer, despite the divisible nature of the damage. A further issue was whether the Court of Appeal had the power to make a fresh apportionment of damages itself, or if the matter should be remitted back to the Tribunal for redetermination.
The Court of Appeal found that the Tribunal had made an error of law in its apportionment of damages. The Court reasoned that where damage is divisible, as in this case of progressive occupational disease, the apportionment should reflect the contribution of each employer to the overall harm. The Court concluded that it did not have the necessary factual material to make a fresh apportionment and that the appropriate course was to remit the proceedings to the Dust Diseases Tribunal for further determination according to law.
Consequently, the Court of Appeal set aside the verdict and judgment of the Dust Diseases Tribunal and remitted the proceedings for redetermination. Costs in the Tribunal were left to the discretion of the judge conducting the further determination, and Patrick Operations was ordered to pay the respondent's costs of the appeal.
The Court of Appeal was required to determine whether the Dust Diseases Tribunal had erred in law by apportioning the whole of the damages payable to the employee between Patrick Operations and the prior employer, despite the divisible nature of the damage. A further issue was whether the Court of Appeal had the power to make a fresh apportionment of damages itself, or if the matter should be remitted back to the Tribunal for redetermination.
The Court of Appeal found that the Tribunal had made an error of law in its apportionment of damages. The Court reasoned that where damage is divisible, as in this case of progressive occupational disease, the apportionment should reflect the contribution of each employer to the overall harm. The Court concluded that it did not have the necessary factual material to make a fresh apportionment and that the appropriate course was to remit the proceedings to the Dust Diseases Tribunal for further determination according to law.
Consequently, the Court of Appeal set aside the verdict and judgment of the Dust Diseases Tribunal and remitted the proceedings for redetermination. Costs in the Tribunal were left to the discretion of the judge conducting the further determination, and Patrick Operations was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
(1) Set aside the verdict and judgment entered by Duck J on 6 April 2005 and the order for costs then made; (2) Remit the proceedings to the Dust Diseases Tribunal for further determination; (3) Costs in the Tribunal to be in the discretion of the judge conducting the further determination; (4) Respondent to pay the appellant's costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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