BHP Billiton Ltd v Dunning

[2015] NSWCA 55

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort Law
2. › Negligence
3. › Breach of duty of care
4. › Employer's duty
5. › Asbestos exposure
6. › Whether finding of breach followed automatically from finding of foreseeability
7. › Whether risk required quantification before breach could be found
8. › Application of Wyong Shire Council v Shirt balancing exercise
1. Evidence
2. › Opinion evidence
3. › Distinction between evidence of observed fact and opinion
4. › Whether non-expert witness able to give evidence that material was or contained asbestos
5. › Evidence Act 1995 (NSW), ss 78, 79
1. Evidence
2. › Evidence of practice
3. › Estimates by supervisor of periods and intensity of exposure
4. › Whether generality of evidence a barrier to admission
5. › Evidence Act 1995 (NSW), s 55(1)
1. Appeal
2. › Appeal on question of law only
3. › Sufficiency of evidence
4. › Whether findings reasonably open on the evidence
5. › No evidence ground
6. › Dust Diseases Tribunal Act 1989 (NSW), s 32

Quick Take

In asbestos exposure cases, the Wyong Shire Council v Shirt balancing exercise does not require precise quantification of the level of risk before a finding of breach can be made; where practical alternative measures are available at no significant expense, difficulty or inconvenience, and the employer's own documents recommended those measures, a finding of breach may follow. A non-expert witness who is intimately familiar with workplace operations and responsible for overseeing the replacement of asbestos products may give evidence identifying materials as asbestos as evidence of objectively observed fact, without resort to ss 78 or 79 of the Evidence Act 1995 (NSW). Evidence of workplace practice may be given in general terms, including estimates of average exposure durations, without identifying all individual acts giving rise to the practice.