Bi (Contracting) Pty Ltd v P H R Pty Ltd

[2005] NSWCA 304

NSW Court of Appeal

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Catchwords

1. Negligence
2. › Dust diseases
3. › Asbestos exposure
4. › Mesothelioma
5. › Sub-contractor liability
6. › Failure to warn or protect
7. › Apportionment of liability between tortfeasors
8. › Relative culpability
9. › Actual knowledge versus constructive knowledge
10. › Civil Liability Act 1936 (SA), s 25
11. › Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
1. Evidence
2. › Admission of evidence
3. › Dust Diseases Tribunal
4. › Historical and general medical evidence admitted in prior proceedings
5. › Whether affidavit admitted in prior proceedings
6. › Concession at trial that affidavit had been admitted
7. › Fresh evidence on appeal showing affidavit not read in prior proceedings
8. › Whether point academic
9. › Dust Diseases Tribunal Act 1989 (NSW), ss 25(3), 32
1. Appeal
2. › Dust Diseases Tribunal
3. › Restricted to points of law or questions as to admission or rejection of evidence
4. › Challenge to apportionment of liability
5. › Whether challenge amounted to invitation to re-exercise discretion
6. › Dust Diseases Tribunal Act 1989 (NSW), s 32

Quick Take

A challenge to apportionment of liability between tortfeasors that amounts to no more than an invitation to re-exercise the discretion will not succeed on an appeal restricted to points of law. The difference between actual knowledge and constructive knowledge of the dangers of asbestos is a relevant factor in apportioning liability between concurrent tortfeasors. An evidentiary point that is conceded to be of no significance to the appeal will be dismissed as academic.