Seltsam Pty Ltd v Ghaleb

Seltsam Pty Ltd appealed to the New South Wales Court of Appeal against a decision of the Dust Diseases Tribunal. The dispute concerned a claim for damages for personal injury, where the plaintiff had a pre-existing condition.

The primary legal issues before the Court of Appeal were whether the judge of the Dust Diseases Tribunal had denied the appellant procedural fairness by determining the case on a basis not advanced by the parties, and whether the appellate court had jurisdiction to entertain such an appeal under section 32(1) of the Dust Diseases Tribunal Act 1989 (NSW) on the ground of an error in point of law, specifically a finding of fact made in the absence of evidence. The court also considered the principles governing the assessment of damages for personal injury where a plaintiff has a pre-existing condition, referencing established High Court authorities.

The Court of Appeal found that the judge had indeed erred by making findings of fact and reaching a conclusion on a basis that had not been put to the parties, thereby denying the appellant procedural fairness. The court held that this constituted an error in point of law, giving it jurisdiction to hear the appeal. The court applied the principles from *Watts v Rake*, *Purkess v Crittenden*, and *Malec v JC Hutton Pty Ltd* regarding the assessment of damages in cases involving pre-existing conditions, but found that the primary error lay in the procedural unfairness.

Consequently, the Court of Appeal upheld the appeal, set aside the judgment and verdict of the Dust Diseases Tribunal, and ordered that the case be remitted to the Tribunal to be heard afresh by a different judge. The respondent was ordered to pay the costs of the appeal, with the judge hearing the new trial to determine the costs of the original trial.