Stephen Smith v Sydney Water Corporation Ltd - [2000] NSWDDT 13

CITATION: Stephen Smith v Sydney Water Corporation Ltd [2000] NSWDDT 13

PARTIES: Stephen Smith
v
Sydney Water Corporation Ltd

TITLE OF COURT: Dust Diseases Tribunal of New South Wales

JURISDICTION: Original

MATTER NO: NSWDDT 100 of 2000

DELIVERED ON: 20 December 2000

DELIVERED AT: Sydney

HEARING DATES: 15 September 2000, 11, 12, 13 December 2000

JUDGMENT OF: Curtis J

NUMBER OF PARAGRAPHS: 55

CATCHWORDS: Dust Diseases - Negligence - Duty of Care - Principal and Employees of Sub Contractors

REPRESENTATION
PLAINTIFF
Mr R J Stanley QC instructed by Turner Freeman.
DEFENDANT
Mr M F Holmes QC instructed by Phillips Fox.

Dust Diseases Tribunal of New South Wales

Matter No DDT 100 of 2000

Stephen Smith

Sydney Water Corporation Limited

20 December 2000

JUDGMENT
CURTIS J

BACKGROUND

The plaintiff Stephen Smith has mesothelioma. Sydney Water Corporation Ltd has inherited the obligations of the Metropolitan Water Sewerage and Drainage Board (the Board).
Between 1969 and 1972 the plaintiff was employed by Stewart Upton Pty Limited to work as a labourer on the development of the new suburb of Westleigh near Hornsby New South Wales.
The development site comprised several hundred acres and was owned by Associated Securities Pty Limited (ASL). This company had, pursuant to s 34A of the Metropolitan Water Sewerage and Drainage Act 1924, entered into an agreement with the Board by which ASL undertook to construct water sewerage and drainage lines upon the development to the Board's specifications. Such agreement was necessary because by virtue of s 37 of the Act the Board was otherwise the sole authority for the conduct of water supply and sewerage services and construction of storm water channels.
Stewart Upton Pty Limited, the plaintiff's employer, was engaged by ASL as a contractor to excavate trenches and lay within them the water and sewerage pipes to the Board's plans and specifications. It was on this work the plaintiff was engaged. He was 18 years old when he commenced upon the site in 1969.
Because of the need to maintain a constant slope in the pipeline the lower end of each pipe as it was laid, was in turn aligned within very small tolerances to a sight line along the specified fall. Although both the contract and good practice called for the entirety of each pipe to be bedded in sand, the men, because of the uneven and unpredictable compaction of sand, found it easier to rest the lower or distal end of each pipe upon several pieces of asbestos cement sheeting so that it may be raised or lowered in uniform steps by the addition or removal of one or more such pieces. The asbestos sheeting used for this process was obtained from demolition of old fibro houses on the development site. Fibro sheets were taken from those houses to the pipeline trenches and there broken into smaller useful pieces by use of a hammer. It was the dust thrown off by the breaking of the asbestos sheets within the trenches which caused the…

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.

Keep reading for free

Create a free CaseChat account to read Stephen Smith v Sydney Water Corporation Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] NSWDDT 13
Decision Date: 20 December 2000

CaseChat Overview and Summary

The case between Stephen Smith and Sydney Water Corporation Ltd was brought before the Supreme Court of New South Wales. The plaintiff, Stephen Smith, alleged that he contracted a dust disease due to negligent exposure to hazardous dust while working on a project undertaken by the defendant, Sydney Water Corporation Ltd. The central dispute was whether the corporation could be held liable for the negligence of its sub-contractors' employees in failing to provide a safe working environment.

The key legal issue before the court was the establishment of a duty of care owed by the defendant to the plaintiff. Specifically, the court needed to determine if the defendant, as the principal contractor, had a duty to ensure the sub-contractor's employees followed proper safety protocols and whether this duty extended to preventing exposure to hazardous dust. The court also had to assess whether the defendant was vicariously liable for the actions of the sub-contractor's employees.

In its decision, the court found that Sydney Water Corporation Ltd owed a duty of care to Stephen Smith. The court held that as the principal contractor, the defendant had an obligation to ensure that adequate safety measures were in place to protect all workers, including those employed by sub-contractors. The court emphasised that the defendant could not simply rely on the sub-contractors to manage occupational health and safety but must take reasonable steps to ensure compliance with safety standards. The court concluded that the corporation was vicariously liable for the negligence of the sub-contractor's employees in failing to provide a safe working environment. Consequently, the plaintiff's claim for damages was upheld.

The court ordered Sydney Water Corporation Ltd to pay damages to Stephen Smith for his dust disease, reflecting the extent of his injury and the corporation's liability. The decision underscores the importance of employers taking responsibility for the safety of all workers on their sites, regardless of the employment hierarchy.

Orders