Wallaby Grip Ltd v Peirce
[2000] NSWCA 299
•27 October 2000
NEW SOUTH WALES COURT OF APPEAL
CITATION: Wallaby Grip Limited & Anor v Peirce & Ors;James Hardie & Coy Pty Limited v Peirce [2000] NSWCA 299
FILE NUMBER(S):
40884/99
40887/99
HEARING DATE(S): 20 September 2000
JUDGMENT DATE: 27/10/2000
PARTIES:
Wallaby Grip Limited and Wallaby Grip (BAE Pty Limited (In Liquidation) v Floyd Robert Peirce; F.R. Coule Pty Limited; James Hardie & Coy Pty Limited
James Hardie & Coy Pty Limited v Floyd Robert Peirce
JUDGMENT OF: Priestley JA Handley JA Fitzgerald JA
LOWER COURT JURISDICTION: Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S): DDT 195/96
LOWER COURT JUDICIAL OFFICER: Armitage J
COUNSEL:
CA 40884
Appellants (1 & 2) - F.M. Douglas QC / D.E. Graham
Respondent (1) - A.J. Leslie QC / A.O. Leslie
Respondent (2) - G. Little
Respondent (3) - J.D. Hislop QC / J.S. Drummond
CA 40887
Appellant - J.D. Hislop QC / J.S. Drummond
Respondent - A.J. Leslie QC / A.O. Leslie
SOLICITORS:
Appellants (1 & 2) - Middleton Moore & Bevins
Respondent (1) - Turner Freeman
Respondent (2) - Connery & Partners
Respondent (3) - Phillips Fox
CA 40887/99
Appellant - Phillips Fox
Respondent - Turner Freeman
CATCHWORDS:
Appeal under section 32 of the Dust Diseases Tribunal Act
point of law
LEGISLATION CITED:
Dust Diseases Tribunal Act as amended 1998
DECISION:
Appeals dismissed with costs.
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40884/99
CA 40887/99
DDT 195/96PRIESTLEY JA
HANDLEY JA
FITZGERALD JAFriday, 27 October 2000
WALLABY GRIP LIMITED & ANOR v PEIRCE & ORS
JAMES HARDIE & COY PTY LIMITED v PEIRCE
DUST DISEASES TRIBUNAL - APPEAL UNDER SECTION 32 OF THE DUST DISEASES TRIBUNAL ACT - POINT OF LAW.
Plaintiff (respondent in appeal) brings proceedings in Dust Diseases Tribunal against five defendants - obtains judgment against four - three appeal - appeal, governed by s 32 of Dust Diseases Tribunal Act as amended in 1998, is limited to “point of law” - bulk of appeal grounds limited to matters of fact - some allege error of law on basis that error of law is shown in the same way as error is shown in appeals against discretionary judgments - some allege, so it is argued, absence of evidence to found particular findings. Held: after discussion of authorities, error in exercise of discretion not necessarily error in point of law - no errors of law shown - in each case of claim of absence of evidence, there was some evidence to support finding of judge below - grounds of appeal on fact only not available to appellants - all grounds fail.
AG for New South Wales v X [2000] NSW CA 199
Australian Gas Light Co v Valuer General (1940) 40 SR 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348
House v The King (1936) 55 CLR 499
Husher v Husher (1999) 73 ALJR 1414
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118Warley Pty Ltd v ADCO Constructions Pty Ltd (Court of Appeal, 30/11/l988)
ORDERS
Appeals dismissed with costs.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40884/99
CA 40887/99
DDT 195/96PRIESTLEY JA
HANDLEY JA
FITZGERALD JAFriday, 27 October 2000
WALLABY GRIP LIMITED & ANOR v PEIRCE & ORS
JAMES HARDIE & COY PTY LIMITED v PEIRCE
PRIESTLEY JA:
introduction.
In 1996 Mr F.R. Peirce as plaintiff brought proceedings claiming damages for negligence against four defendants in the Dust Diseases Tribunal. The first defendant had been his employer from 1952 to 1975. The second defendant (Hardie) and the third and fourth defendants (The Wallaby Grip companies) were manufacturers and suppliers of asbestos insulation materials. Later, a fifth defendant was added, which was the insurer of the first defendant.
The plaintiff’s claim was that while employed by the first defendant he was exposed to asbestos dust and fibres emanating from products manufactured and supplied by Hardie and the Wallaby Grip companies and that as a result had contracted asbestosis and asbestos-related pleural disease. He had stopped work in 1995. He claimed damages under various heads.
The plaintiff’s case was heard by Armitage J. During the trial, the question of the liability of the defendants to the plaintiff for negligence ceased, for practical purposes, to be in dispute. The issues left for the judge to decide all related to the nature of the damage suffered by the plaintiff and how it should be quantified.
At the end of the trial, on 22 October 1999, Armitage J entered judgment for the plaintiff for $143,217. The defendants were ordered to pay the plaintiff’s costs. The judge noted that agreement had been reached between the defendants on the question how liability for the judgment was to be apportioned between them.
Hardie filed a notice of appeal. The two Wallaby Grip companies filed one notice of appeal. The appeals were listed to be heard together. The questions they raised related only to damages. Written submissions were filed in advance of the hearing. The grounds of appeal, and to some extent the written submissions, seem to have assumed that the appellants could challenge findings of both fact and of law. However, when the appeals came on for hearing, it became common ground that they were governed by s 32 of the Dust Diseases Tribunal Act as amended by Act No 49 of 1998, which was proclaimed to commence on 4 December 1998. The section gave a right of appeal only to “a party ... dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence ...”.
“Decision ... in point of law”.
In the abstract, it may be difficult to fix a dividing line between questions and points of law on the one hand and questions and matters of fact on the other. However, at a practical level, distinctions of this kind are regularly drawn in statutes which describe rights of appeal from courts of first instance, and are equally regularly given effect. All appeals are statutory and their particular attributes depend on the words of the relevant statute: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1353 (per Gleeson CJ, Gaudron and Hayne JJ). Some appeals are re-hearings in which findings of fact may be made by the appellate court contrary to those of the court at first instance. Others such as that enacted by s 32 have consistently been recognised as having a much more limited scope. Appellate courts have regularly given effect to the clear statutory intention in such provisions to confine appeals about decisions in point of law within bounds which preclude such appeals from becoming appeals on questions of fact.
The words in question in s 32 are the same as those which for lengthy periods have governed appeals in cases under workers’ compensation legislation, and have been considered in this court. In an appeal in a workers’ compensation case this court decided what is and is not open to an appellant to argue in an appeal confined and defined by the words set out above: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. In the leading opinion in that case (by Glass JA, with which Samuels JA agreed), an earlier case, Australian Gas Light Co v Valuer General (1940) 40 SR 126 although decided on a different statute, was recognised as authoritative. Azzopardi has been criticised, but remains binding in this court; see especially the full discussion by McHugh JA in Warley Pty Ltd v ADCO Constructions Pty Ltd (Kirby P (dissenting), Hope JA and McHugh JA, unreported, 30 November 1988); see also the recent reference by Spigelman CJ to the continuing authority of Azzopardi, in his discussion of “question of law” in AG for New South Wales v X [2000] NSW CA 199 (2 August 2000) in par 123.
The rules stated in Azzopardi relevant to the present appeals appear in the following passages from the reasons of Glass JA:
“It is clear ... that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this court to correct errors of fact, any argument that the finding of a Workers’ Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR at 654.
A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57 WN 53 at 55. The decision here assailed is not of that character.
...
It has been suggested that since judges unlike juries are required to give reasons a perversity of result will or may suggest an error at some stage of the reasoning process and the perversity will then rise to the level of an error of law. It is important, I believe, to remember that whether an error is one of fact or law is determined by legal theory and the theory is the same whether the tribunal be divided or undivided. Errors may be committed by a Workers’ Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found.” (at 155-157)
In the Australian Gas Light case, Jordan CJ stated a number of propositions which remain useful in applying the rules prescribed by Azzopardi:
“(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences ...
(4) Such a finding can be disturbed only
(a) if there is no evidence to support its inferences, or
(b)if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences ... or
(c) if it has misdirected itself in law ...”
(at 138, citations omitted).In the present appeals, the appellants had considerable difficulty in showing that their grounds of appeal justified their claims of dissatisfaction with the Tribunal’s decisions in point of law. A good part of the oral argument was taken up by the appellants seeking to show that they were entitled to rely on the grounds of appeal in their notices of appeal.
hardie’s appeal.
In its written submissions Hardie abandoned six of the grounds in its notice of appeal. The grounds that remained were as follows:
“General Damages:
1.His Honour erred in awarding an excessive sum for general damages.
...
3.Contrary to the principles enunciated by the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, his Honour erred by having regard to, and then adhering to, the “usual” awards for general damages for cases such as Mr Peirce’s. Even if such a course was open to his Honour, he erred by:
(a)failing to nominate the “usual” cases in which awards of such an amount were made; and
(b)failing to have regard to other cases in which a lower amount for general damages was awarded.
4.His Honour erred by not reducing Mr Peirce’s general damages adequately or at all to cater for the unrelated conditions of obstructive airways disease, obstructive sleep apnoea and cardiac disease.
...
Loss of Earning Capacity:
8.His Honour correctly found that Mr Peirce had an extensive residual earning capacity. Notwithstanding this finding, his Honour erred by then failing to give effect to it.
9.His Honour erred in failing to give any reasons for excluding the question of mitigation of damages from his determination of Mr Peirce’s loss of earning capacity. His Honour, commensurate with the evidence, ought to have found that Mr Peirce unreasonably failed to mitigate his loss.
10.His Honour, by referring to Husher v Husher [1999] HCA 47, correctly stated the principles to be applied in quantifying a loss of earning capacity. His Honour then erred by failing to follow those principles:
(a)His Honour erred by implicitly enquiring as to what earning capacity Mr Peirce could have had under his control if he had not developed his injuries. His Honour ought to have ascertained what capacity Mr Peirce would have expected to have had under his control if he had not developed his injuries.
(b)By embarking on the wrong enquiry, His Honour erred in treating Mr Peirce’s past occupation as a manager of a plumbing hardware store as determinative of the whole of his lost capacity, and in treating what Mr Peirce could have earned as a manager of that plumbing hardware store as determinative of his actual financial loss.
(c)His Honour ought to have considered what would have been the whole of the fruits of Mr Peirce’s skill and labour at his disposal if he had not suffered his injuries, instead of restricting his enquiry to Mr Peirce’s capacity to work as a manager of a plumbing hardware store.
11.Having found that Mr Peirce ceased working in 1995 because (in part) he suffered from obstructive airways disease and obstructive sleep apnoea, his Honour erred in not appropriately reducing both Mr Peirce’s past and future loss of earning capacity to give effect to those findings:
(a)His Honour misdirected himself on the issue by considering that, if the economic loss is not totally subsumed by the unrelated conditions, then it will be ‘inevitable’ that a ‘plaintiff must recover damages for loss of earning capacity ... even if he might in any event have suffered that economic loss to a substantial degree, had the defendants’ tort not intervened’.
(b)His Honour erred in allowing only a 15% deduction from future loss of earning capacity to give effect to the impact of Mr Peirce’s obstructive airways disease and obstructive sleep apnoea (together with the potentiality for developing cardiac disease).
(c)His Honour, consistent with the medical evidence and the award of the medical authority of the Workers’ Compensation (Dust Diseases) Board, ought to have found that Mr Peirce had, at most, only a20% incapacity from his asbestos-related injuries and that 80%, or more, of his damages were due to unrelated problems.
(d)Contrary to this court’s decision in Workers’ Compensation (Dust Diseases) Board v Veskans (1993) 32 NSWLR 221, His Honour erred in failing to give due weight and attention to the award of the medical authority of the Workers’ Compensation (Dust Diseases) Board.
...
Horwath Services report
14.His Honour erred in ruling that it was illegitimate for James Hardie to question the assumptions upon which the Horwath Services report of 22 July 1999 (Exhibit DX1) was based.
15.His Honour ought to have held that an expert report is of no or little weight if the underlying assumptions to the opinion have not been satisfactorily proved.”
The general damages grounds.
Ground 1. In my opinion there is no sign of an error in point of law in the way in which the trial judge arrived at the figure he assessed for general damages.
The assessment of the figure for general damages, in the circumstances of the present case, involved the trial judge in making findings of fact about what had happened to the plaintiff in the past, considering the plaintiff’s future prospects on the evidence, and then arriving at a figure by use of the awareness produced by his general experience of “current general ideas of fairness and moderation”. The figure to be arrived at was “a matter of judgment in the sound exercise of a sense of proportion”. (The quotations are from Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125 and 124.) To the extent that the conclusion was based on findings of fact, such findings could only be disturbed (in light of the nature of the appeal) if there were no evidence to support them, or if they were incapable of justifying any inferences drawn from them or if, in connection with them, the judge had misdirected himself in law: see the citations from the Australian Gas Light Co case above. To the extent that the conclusion involved “judgment in the sound exercise of a sense of proportion”, it would involve the judge in an operation with some similarity to the exercise of a discretion. Hardie argued that there was no practical difference in the two judicial operations and that this meant that the well-known rules from House v The King (1936) 55 CLR 499 would be applicable. However those rules encompass errors other than errors of law, although they include them. Not every reversed discretionary judgment involves error on a point of law. McHugh JA explained this in the seventh paragraph of his opinion in Warley which he began by saying:
“In my opinion no assistance in this area of law is obtained by reference to the approach in appeals against discretionary judgments.”
In trying to put a submission in support of Ground 1 that relied upon dissatisfaction with the judge’s decision in point of law, counsel for Hardie were not able to put anything more substantial, in my respectful opinion, than to say that on the facts found by the judge concerning the plaintiff, an award of $20,000 was appropriate and therefore a figure of $75,000 was so out of all proportion with what was proper that the trial judge must have made an error of some kind in exercising his sense of proportion, thus coming within the reach of one of the rules in House v The King.
There are several parts of this submission with which I do not agree. There is no legal or other reason why this court should accept Hardie’s starting point of $20,000. It is nothing more than Hardie’s assertion of its opinion of what a reasonable figure would be. On the other hand, the trial judge gave full consideration to the individual circumstances of the plaintiff’s case and arrived at a figure which was not in my opinion grossly disproportionate to his circumstances. Counsel for the first defendant (the employer) had been of a similar view at the trial; he had submitted that $70,000 was a proper figure (RAB 146).
Further, even if the figure were so unreasonable that the court would set it aside in an appeal not confined to points of law, it would not follow in this present appeal, which is so confined, that the assessment should be set aside. It would first have to be shown that the wrong result was due to an error in point of law. In the present case that might or it might not be so and in the appeal it is for Hardie to show that any error was one of law rather than some other error. Hardie has not shown this. I see nothing in the judge’s reasons to indicate that if he did make some mistake here (which I do not think he did), it was an error in point of law.
Ground 3. This is one of a number of grounds in which Hardie asserts that the trial judge’s reasons show that he acted on a particular basis, when, upon my reading of his Honour’s reasons, he did not in fact act upon the basis claimed. On my understanding of the trial judge’s reasons in this case, he did nothing in breach of the High Court’s prescriptions in Planet Fisheries. I do not think the trial judge allowed himself to be “overborne by what other minds [had] judged right and proper for other situations” (see Planet Fisheries at 125). The trial judge’s experience undoubtedly included direct knowledge of his own earlier decisions in personal injuries cases and knowledge of cases decided by other judges in the Dust Diseases Tribunal. This knowledge, along with that knowledge of particular cases which sinks into a generalised mass in a trial lawyer’s mind, would produce the judge’s “general experience” (Planet Fisheries at l25) giving rise to the “general awareness” (Planet Fisheries at 125) which the High Court granted a judge making an assessment could give weight to in the form of “current general ideas of fairness and moderation” (Planet Fisheries at 125).
I do not think the trial judge in the present case went beyond the bounds permitted by Planet Fisheries and I think this ground therefore fails.
Ground 4. In my opinion the trial judge did take into consideration the matters mentioned in this ground (see for example what he says in pars 212 and 216 of his reasons). If, in taking those matters into account, he did so genuinely (as I think he did) and not merely colourably, any dissatisfaction pursuant to this ground that Hardie may have with the result can not, in my opinion, be dissatisfaction in point of law.
Loss of earning capacity grounds.
Ground 8. In my view, the trial judge’s reasons show he did have the plaintiff’s residual earning capacity in mind in arriving at his conclusion. See for example par 217 of his reasons. I cannot see any error in point of law in his reasoning in this respect. In my opinion this ground of appeal fails.
Ground 9. As to the first part of this ground my view is that his Honour’s reasons sufficiently show how he arrived at his determination of the plaintiff’s loss of earning capacity. As to the second part of the ground, what Hardie complains of seems to me to raise questions of fact finding rather than any point of law. I therefore think this ground of appeal fails.
Ground 10. As with ground 9, this ground divides into two parts, the first dealing with what might be a point of law, if established, namely that the trial judge misdirected himself in light of Husher v Husher (1999) 73 ALJR 1414. However, I do not think the trial judge misunderstood or misapplied that case. On the contrary, his references to it lead me to think both that he understood it and that he applied it appropriately.
Again, with the balance of this ground, as with ground 9, Hardie seems to me to be complaining about the trial judge’s fact finding rather than the wrong application of any legal rule, or other legal error. For this reason, I do not think the second part of this ground of appeal is available. It also seems to me it would fail in any event.
Ground 11. In regard to each of the sub-grounds in this ground, there was evidence before the trial judge upon which it was open to him to reach the conclusions which he did. That being so, none of the sub-grounds can establish error in point of law. In a different type of appeal it might be open to Hardie to complain about some of the findings of fact relevant to causality and to some of the matters of judgment involved in the trial judge’s conclusions. There is however, in my opinion, no sign of any error of law. Ground 11 therefore fails.
Horwath Services Report grounds.
Ground 14. This ground, in my respectful opinion, is based upon a misconception of what the trial judge actually did in regard to evidentiary analysis of the Horwath Services Report. In my view, a reading of the transcript and of the judge’s reasons shows quite plainly that the trial judge did not make the ruling complained of and did not prevent Hardie from fully litigating any live issue before him.
Ground 15. In my opinion the trial judge made no misuse of expert evidence. On my reading of his reasons, he applied material available from expert evidence to the facts as he found them in the case, in a quite acceptable way.
Conclusion on Hardie’s appeal.
In my opinion Hardie’s appeal fails.
the wallaby grip companies’ appeals.
One notice of appeal was filed by the two companies. No distinction was drawn between them at any stage in the appeal. The grounds stated in their notice of appeal were as follows:
“1. General damages
1.1That His Honour erred in holding that Mr Peirce’s anxiety arising from his fear that he may develop mesothelioma, although not being a conspicuous psychiatric injury, entitled Mr Peirce to general damages.
1.2That His Honour erred in holding that Mr Peirce suffered from a state of fear and anxiety that he may develop mesothelioma, which was reasonably held.
1.3.That His Honour erred in failing to hold that the objective evidence established that Mr Peirce’s fear of developing mesothelioma was not causally connected to either asbestosis or asbestos related pleural disease.
1.4That the award of general damages was in all the circumstances excessive.
1.5That His Honour’s assessment of the contribution from sleep apnoea and obstructive airways disease was inappropriate.
2. Loss of earning capacity
2.1His Honour, consistent with the medical evidence and the award of the medical authority of the Workers Compensation (Dust Diseases) Board, ought to have found that Mr Peirce had only a 20% incapacity as a result of his asbestosis or asbestos related pleural disease.
2.2That His Honour erred in holding that Mr Peirce’s loss of capacity justified his retirement in June 1995.
2.3That His Honour erred in holding that Mr Peirce’s (subjective assessment of his) breathlessness and fear of developing mesothelioma justified his retirement in June 1995.
2.4That His Honour erred in holding that Mr Peirce was by reason of his loss of capacity arising from asbestosis and/or asbestos related pleural disease incapable of continuing in his employment.
2.5That His Honour erred in failing to hold that Mr Peirce retained significant residual capacity to:
(a) continue with his former employment;
(b)undertake alternative employment (eg sales representative).
2.6That his Honour erred in failing to hold that Mr Peirce’s unrelated health conditions of:
(a) sleep apnoea;
(b) obstructive airways disease; and
(c) ischaemic heart disease,
were the dominant cause of Mr Peirce’s retirement.
2.7That His Honour erred in holding that the conditions of:
(a) sleep apnoea;
(b) obstructive airways disease; and
(c) ischaemic heart disease
accounted for only 15% of Mr Peirce’s economic loss.
2.8That His Honour erred in holding that Mr Peirce’s fear of developing mesothelioma when combined with his loss of capacity from asbestosis or asbestos related pleural disease justified his retirement in June 1995.”
Grounds 1.2, 1.3, 1.4, 1.5, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7 and 2.8.
I have formed the opinion, after looking at the evidentiary materials before the trial judge and at his reasons, that in respect of each of the holdings, findings and assessments attacked in these grounds, there was evidence before the trial judge upon which it was open for him to arrive at the conclusions which he expressed. For this court to delve into the appellants’ complaints about those findings would mean revisiting the questions of fact decided by the trial judge, without consideration of any point of law. That is the kind of operation which the circumscribed appeal allowed to this court from the Dust Diseases Tribunal prevents. In my opinion the court should dismiss this group of grounds of appeal without further consideration, because the appellants are not entitled to rely on such grounds in appeals to this court from the Dust Diseases Tribunal.
Ground 1.1. The plaintiff’s entitlement to general damages arose from the now established fact that he had suffered injury as a result of the breaches of duty of the four defendants. It was a question of fact and judgment for the trial judge whether the anxiety referred to in ground 1.1 was a consequence of the defendants’ breaches of duty which should be included for consideration in assessment of the plaintiff’s damages. I cannot see that there was any point of law involved in the trial judge’s decision on this aspect of the case. Therefore, in my opinion, this ground fails.
Ground 2.1. For this ground to warrant consideration as raising a point of law, which it does not do in form, there would have to be some legal rule that the trial judge was bound to find that the plaintiff’s incapacity was as to 20% a result of his asbestosis or asbestos related pleural disease because the Workers Compensation (Dust Diseases) Board had acted on the basis of such a percentage incapacity. Nothing was put to this court to suggest any statutory, regulatory, or case law authority for the existence of any such legal rule. I therefore assume there is none. Left to look at the question for myself, the only possible basis for the existence of any such rule that I have been able to find is s 7(5) of the Workers Compensation (Dust Diseases) Act, which makes the certificate of a medical authority (subject to s 8I, which is not relevant here) “conclusive evidence as to the matters certified”. Section 7(1) begins “The medical authority, for the purposes of this Act, shall be a medical board consisting of three legally qualified medical practitioners ... etc”. It thus seems clear that the conclusiveness of s 7(5) is only for the purposes of the Workers Compensation (Dust Diseases) Act, and has no application to common law proceedings in the Dust Diseases Tribunal.
Further, the certificate (PX9 at Blue AB 55) was dated 2 June 1994, but the date relevant to the proceedings was 21 July 1995, when the plaintiff stopped work. The best that could be said for the relevance of the certificate is that the trial judge may have been entitled to take it into account as some evidence of the plaintiff’s condition at the later date (21 July 1995). The ground thus fails for many reasons. There is certainly no point of law obtainable from it.
Presentation of argument on behalf of the Wallaby Grip Companies at the hearing of the appeal, in support of the grounds of appeal.
Counsel for the Wallaby Grip companies relied on the arguments put for Hardie, although he sought to take one matter further, and upon the written submissions of all three appellants; then, in his own oral submissions he did not deal with each of the grounds of appeal separately, but sought to persuade the court that a number of matters based in a general way upon the grounds of appeal did justify dissatisfaction with the trial judge’s decision in point of law. However, as I have earlier indicated, I am unable to see that even in form, with the possible exception of the two grounds I have dealt with separately, any of the specific grounds of appeal does more than seek to have the court investigate findings of fact by the trial judge in regard to which there was evidence upon which he could reach the findings that he did.
Despite counsel’s efforts to find a relevant question of law, it seems to me that, subject to one matter, the substance of what he said in oral argument is covered by what I have said already in regard to the Wallaby Grip companies’ specific grounds of appeal (and Hardie’s), so I will not seek to reproduce the way in which the oral argument was put. To go any further would, in my opinion, defeat the intention of the statute in limiting the right of appeal under s 32 of the Dust Diseases Tribunal Act as amended by Act No 49 of 1998.
The one matter requiring separate mention is the attempt by counsel to rely upon what would be a relevant point of law, if it were soundly based, namely that there was no evidence to support the trial judge’s finding that the plaintiff’s incapacity for his 1995 job was due to breathlessness. Apart from the fact that I cannot see any ground of appeal which directly raises this point, it seems to me that in any event it fails. This is because the trial judge made clear in par 207 of his reasons what his finding actually was, and what its basis was, even although what he had said earlier in par 196 may be read as inconsistent with it, and there was evidence from Drs Brown and McEvoy, and from the plaintiff himself (concerning earlier breathlessness) justifying his par 207 finding. The no evidence point fails because there was evidence. If any inconsistency can properly be sheeted home to the trial judge, it is of a factual kind, and shows no error in point of law.
Conclusion on the Wallaby Grip Companies’ appeals.
In my opinion the Wallaby Grip Companies’ appeals fail.
conclusion.
In my opinion all appeals should be dismissed with costs.
HANDLEY JA: I agree with Priestley JA.
FITZGERALD JA: I agree with the orders proposed by Priestley JA and, subject to the following two comments, with his Honour’s reasons.
It is unnecessary to decide whether Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.is entirely consistent with Australian Gas Light Co v Valuer General, (1942) 40 SR(NSW) 126. Azzopardi (1985) 4 NSWLR 139. is binding on this Court. The appellants did not submit to the contrary.
The appellants did not argue that the damages awarded to the respondent were so unreasonable that they were not authorised by the Tribunal’s decision-making power. It is therefore also unnecessary to decide whether an award of damages might be so unreasonable that it was not authorised by the Tribunal’s decision-making power and, if so, whether an appeal against such an award would involve a “point of law” within the meaning of s 32 of the Dust Diseases Tribunal Act.
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