Dasreef Pty Limited v Hawchar [2011] HCA 21

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

DASREEF PTY LIMITED APPELLANT

AND

NAWAF HAWCHAR RESPONDENT

Dasreef Pty Limited v Hawchar [2011] HCA 21

22 June 2011

S313/2010

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

D F Jackson QC with T G R Parker SC and D T Miller for the appellant (instructed by Moray & Agnew Solicitors)

B M Toomey QC with F Tuscano and M A Kumar for the respondent (instructed by Slater & Gordon Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Dasreef Pty Limited v Hawchar

Evidence – Admissibility – Opinion evidence – Section 79(1) of Evidence Act 1995 (NSW) provided that rule excluding evidence of opinion did not apply where "a person has specialised knowledge based on the person's training, study or experience" and person's opinion "wholly or substantially based on that knowledge" – Respondent sued appellant in Dust Diseases Tribunal of New South Wales – Respondent claimed he was negligently exposed to unsafe levels of silica while working for appellant – Witness gave evidence about approximate level of respirable silica to which respondent may have been exposed – Opinion treated as admissible to found calculation of numerical or quantitative level of exposure to respirable silica – Whether opinion admissible for that purpose – Requirements for admissibility.

Procedure – Specialist tribunal – Dust Diseases Tribunal of New South Wales – Ability of judge constituting Tribunal to draw on experience as member of specialist tribunal when making findings of fact – Section 25 of Dust Diseases Tribunal Act 1989 (NSW) required Tribunal to apply rules of evidence – Section 25B provided exception subject to various requirements – Trial judge drew on "experience" that silicosis usually caused by very high levels of silica exposure in concluding that respondent's silicosis caused by exposure to silica – Section 25B neither invoked nor complied with – Whether trial judge entitled to draw on "experience" in making finding of fact.