Howard Smith & Patrick Travel Pty Ltd v Comcare

[2014] NSWCA 215

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Admissibility
3. › Opinion evidence
4. › Lay opinion
5. › Identification of substance by workers with practical experience
6. › Whether identification of dust as asbestos inadmissible as opinion
7. › Whether evidence admissible as perception of fact or opinion based on specialised knowledge
8. › Evidence Act 1995 (NSW), ss 76(1), 78, 79
1. Tort
2. › Negligence
3. › Duty of care
4. › Statutory authority
5. › Stevedoring industry
6. › Whether duty of care owed to persons other than registered waterside workers
7. › Whether duty extended to all workers at risk of harm during stevedoring operations
8. › Stevedoring Industry Act 1956 (Cth), ss 7, 8, 17, 18
1. Tort
2. › Joint tortfeasors
3. › Contribution between tortfeasors
4. › Apportionment of liability
5. › Whether erroneous apportionment
6. › Whether failure to consider relative culpability of parties
7. › Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2)

Quick Take

The duty of care owed by the Australian Stevedoring Industry Authority under the Stevedoring Industry Act 1956 (Cth) extended beyond registered waterside workers to all persons at risk of inhaling airborne asbestos in the course of stevedoring operations, which is an indivisible activity. Workers who identify substances based on practical experience acquired over years of handling those substances may give admissible evidence of their perceptions without expert qualifications, provided no attempt is made to distinguish between types of the substance.