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Shaw v BHP Billiton Ltd

Shaw v BHP Billiton Ltd

Case [2015] SADC 3 21 January 2015

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SHAW v BHP BILLITON LTD
[2015] SADC 3
Judgment of His Honour Judge Soulio
21 January 2015
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE
Mr King, who died on 18 July 2007, was employed by the defendant at its Whyalla Shipyards from 1967 to 1972. He was exposed to asbestos used in ship building. He was diagnosed with pleural plaques in 1996, asbestosis in 2002 and lung cancer in 2007 – the plaintiff, Ms Shaw, as joint executor and trustee of Mr King, brings an action in negligence, breach of contract and breach of statutory duty pursuant to the Survival of Causes of Action Act 1940.
Held - defendant liable.
Survival of Causes of Action Act 1940 (SA) ss 2, 4; Dust Disease Regulations 2006 schedule 1; Industrial Code 1920 ss 303 and 304, regs 35, 39; Industrial Code 1967 ss 180, 181, reg 26; Dust Diseases Act 2005 ss 3, 8, 9, referred to.
Jones v Dunkel (1959) 101 CLR 298; Gately v The Queen (2007) 232 CLR 208; Van Soest v BHP Billiton Ltd [2013] SADC 81; Parker v BHP Billiton Ltd [2011] SADC 104 ; Hamilton v BHP Billiton Ltd [2012] SADC 25; BHP Billiton Ltd v Parker (2012) 113 SASR 206; McPherson’s Ltd v Eaton (2005) 65 NSWLR 187; Seltsam Pty Ltd v McNeill (2006) 4 DDCR 1; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Roads and Traffic Authority of New South Wales v Dederer & Anor (2007) 234 CLR 330; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Vairy v Wyong Shire Council (2005) 223 CLR 422; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; Rosenberg v Percival (2001) 205 CLR 434; Wyong Shire Council v Shirt (1980) 146 CLR 40; Mt Isa Mines v Pusey (1970) 125 CLR 383; Amaca Pty Ltd v Hannell (2007) 34 WAR 109; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; Burnie Port Authority v Bernie Jones Pty Ltd (1994) 179 CLR 520; Thompson v Woolworths (Qld) Pty Ltd (2005) 79 ALJR 904; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Roman Catholic Church Trustees for the Diocese of Canberra & Goulburn v Hadba (2005) 221 CLR 161; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307; Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449; F v R (1984) 33 SASR 189; Stevedoring Industry Finance Committee v Henderson (2000) 2 VR 396; SS Pharmaceuticals Pty Ltd v Qantas Airways Ltd [1991] 1 Lloyd’s Rep 288; Cockatoo Dockyard Pty Ltd v Browne [2001] NSWCA 58; Seltsam Pty Ltd v McGuinness [2000] 49 NSWLR 262; Amaca Pty Ltd v Ellis (2010) 240…

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.

Continue reading Shaw v BHP Billiton Ltd

Details

AGLC: Shaw v BHP Billiton Ltd [2015] SADC 3
Case: [2015] SADC 3
Decision Date: 21 January 2015

CaseChat Overview and Summary

In the matter of Shaw v BHP Billiton Ltd, the plaintiff, Ms Shaw, acting as the joint executor and trustee of the estate of Mr King, who passed away on 18 July 2007, brought an action against the defendant, BHP Billiton Ltd. Mr King had been employed by the defendant at its Whyalla Shipyards from 1967 to 1972, during which time he was exposed to asbestos used in shipbuilding. Mr King was diagnosed with pleural plaques in 1996, asbestosis in 2002, and lung cancer in 2007. The plaintiff’s action included claims in negligence, breach of contract, and breach of statutory duty under the Survival of Causes of Action Act 1940.

The central legal issues the court had to decide involved whether the defendant owed a duty of care to Mr King to prevent him from being exposed to asbestos, whether such exposure was reasonably foreseeable, and if the defendant’s negligence directly caused Mr King's injuries and subsequent death. The court also needed to consider whether the action could proceed under the Survival of Causes of Action Act 1940.

The court held that the defendant did owe a duty of care to Mr King to protect him from exposure to asbestos. This duty was breached by the defendant’s failure to implement adequate safety measures to prevent such exposure. The court found that the risk of harm from asbestos exposure was reasonably foreseeable, and the injuries sustained by Mr King were a direct result of the defendant’s negligence. Consequently, the court ruled in favour of the plaintiff, finding the defendant liable for the damages suffered by Mr King.

The final orders of the court mandated that the defendant, BHP Billiton Ltd, compensate the plaintiff for the damages incurred by Mr King due to the negligent exposure to asbestos. The exact amount of compensation was left to be determined in subsequent proceedings.

Orders