White v Pink Batts Insulation P/L

White v Pink Batts Insulation P/L [2000] NTSC 27

PARTIES:RICHARD WHITE

v

PINK BATTS INSULATION PTY LTD formerly known as DIVIC PTY LTD formerly known as DIMET CORROSION PTY LTD formerly known as DIMET CORROSION PREVENTION PTY LTD

AND:

COMMERCIAL UNION ASSURANCE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:138/93

DELIVERED:  5 May 2000

HEARING DATES:  8-19 February, 12-22 July, 29 September – 1 October 1999, 28 February – 1 March 2000

JUDGMENT OF:  THOMAS J

CATCHWORDS:

DAMAGES

Claim for damages for impaired respiratory function caused by employment – whether the system of work pursuant to which the plaintiff worked was negligent – whether the plaintiff thereby sustained damage, specifically through the development of small airways disease related to silica exposure –unreliable witness – accepted medical evidence did not support his claim – plaintiff failed to prove he has silica induced small airways disease, or any condition relating to his exposure to silica dust.

Bonnington Castings Ltd v Wardlaw [1956] AC 613, considered.
Commonwealth of Australia v McLean (1996) NSWLR 389, referred to.

REPRESENTATION:

Counsel:

Plaintiff:L King QC

First Defendant:  J Tippett

Second Defendant:  J Kourakis QC and J Rau

Solicitors:

Plaintiff:Bradley Allen

First Defendant:  De Silva Hebron

Second Defendant:  Hunt & Hunt

Judgment category classification:        C

Judgment ID Number:  tho20002

Number of pages:  100

IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

White v Pink Batts Insulation P/L [2000] NTSC 27
No. 138/93

BETWEEN:

RICHARD WHITE

Plaintiff

AND:

PINK BATTS INSULATION PTY LTD formerly known as DIVIC PTY LTD formerly known as DIMET CORROSION PTY LTD formerly known as DIMET CORROSION PREVENTION PTY LTD

First Defendant

AND:

COMMERCIAL UNION ASSURANCE

Second Defendant

CORAM:    THOMAS J

REASONS FOR JUDGMENT

(Delivered 5 May 2000)

1. This is a claim by the plaintiff for damages for impaired respiratory function caused by his employment as a sandblaster in Darwin between May 1971 and August 1974.

1. The first defendant is the successor to Dimet Corrosion Pty Ltd.  The second defendant is sued as the relevant insurer of Dimet Contracting Pty Ltd.

2. The essential issues in this claim are:

   1)Whether the plaintiff was employed by Dimet Corrosion Pty Ltd or Dimet Contracting Pty Ltd.

   2)If employed by Dimet Contracting Pty Ltd, whether Dimet Corrosion Pty Ltd so dominated the conduct of Dimet Contracting’s business that Dimet Corrosion Pty Ltd is responsible upon the basis of CSR Ltd v Wren (1997) 44 NSWLR 463.

   3)Whether the system of work pursuant to which the plaintiff worked was negligent.

   4)If so, whether the plaintiff thereby sustained damage, specifically through the development of small airways disease related to silica exposure.

   5)If he did, what measure of damage is by way of general damages, out of pocket expenses past and future and economic loss past and future.

   6)Whether the second defendant insured Dimet Contracting Pty Ltd against a liability to pay damages to, amongst other people, the plaintiff, pursuant to an agreement…