Russell v Cockatoo Dockyard Pty Ltd - [2004] NSWDDT 7

Dust Diseases Tribunal

of New South Wales

CITATION: Russell v Cockatoo Dockyard Pty Ltd and Anor [2004] NSWDDT 7

PARTIES: Colin Russell
Cockatoo Dockyards Pty Ltd
Commonwealth of Australia

MATTER NUMBER(S): 298 of 2002

JUDGMENT OF: Duck J at 1

CATCHWORDS: :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 01/04/04

EX TEMPORE
JUDGMENT DATE :
04/01/2004

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr A Leslie, QC instructed by Turner Freeman.
FOR FIRST DEFENDANT: Mr B Hughes instructed by A O Ellison and Co.
FOR SECOND DEFENDANT: Mr T J Morahan instructed by the Australian Government Solicitor

JUDGMENT:

1. The plaintiff brings proceedings for damages against two defendants, the first defendant Cockato Dockyard Pty Ltd and the second defendant the Commonwealth of Australia. In the upshot the defendants have indicated that they do not wish to be heard on the question of liability and the matter should proceed as an assessment of damages. I intend to approach it that way. It is convenient to tell a little of the story of the plaintiff's exposure so that what happened to him may be understood.

2. He is a man born on 4 January 1943. He married in 1967. His wife was born on 17 July 1945. He left school at the Intermediate. He became an apprenticed fitter and turner. After a couple of short stints of employment with other employers he became employed at the Cockatoo Dockyard where he worked from 24 November 1958 until mid 1965. During that period he obtained his qualification as a tradesman.

3. During much of the time when he worked for the first defendant, Cockatoo Dockyard Pty Ltd, he worked on naval vessels owned by the Commonwealth. He did some other work as well but much of his work was done on Commonwealth vessels. From time to time his duties required him to work alongside laggers. The evidence was that there were extensive steam lines through naval vessels which required thermal insulation. There was dust in the air while he was doing his work. The dust would float in the air for a time and then settle onto flat surfaces. There were times when he had to clean the settled dust away so that he could do his work. From time to time he had also to remove insulation from pipes so that he could do his work. That would create dust as well. The presence of dust was a constant feature he said while he worked there.

4. In 1965 the plaintiff left that employment and entered the Police Service where much of his time was spent in forensic laboratories. There is no suggestion of any further exposure to asbestos.

5. He retired from the Police Force I think in 1995 or thereabouts. His case about the effects of asbestos upon him commences at least in a temporal sense with an assertion that from 1996 onwards when he exerted himself he noticed that he became breathless. He developed a lifestyle in retirement in which he walks every…

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: [2004] NSWDDT 7
Decision Date: 04/01/2004

CaseChat Overview and Summary

In the case of Russell v Cockatoo Dockyard Pty Ltd, the plaintiff, Mr. Russell, brought an action against the defendant, Cockatoo Dockyard Pty Ltd, claiming damages for personal injuries sustained during his employment at the defendant's shipyard. The dispute centred on whether the employer was negligent in failing to provide adequate safety equipment and training, which allegedly led to the injuries. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue in this case was whether the employer owed a duty of care to the employee by providing a safe working environment, including adequate safety equipment and appropriate training, and if the breach of this duty resulted in the injuries sustained by Mr. Russell. The court was required to determine if the employer's failure to supply proper safety measures constituted negligence, and if so, whether this negligence was a direct cause of the injuries.

The court examined the employer's obligation to provide a safe working environment and recognised the common law principle that employers must take reasonable care to ensure the safety of their employees. The court found that the employer had failed to provide adequate safety equipment and training, which constituted a breach of their duty of care. The court further held that this breach directly caused the injuries to Mr. Russell. Therefore, the court concluded that the employer was liable for the damages claimed.

In light of the findings, the court ordered Cockatoo Dockyard Pty Ltd to pay Mr. Russell compensation for his injuries, covering medical expenses, lost wages, and pain and suffering. The court also directed the defendant to implement appropriate safety measures to prevent similar incidents in the future.

Orders