DOUGLAS J HOLLAND PTY LIMITED v HOLLAND [1997] NSWCA 92

DOUGLAS J HOLLAND PTY LIMITED v HOLLAND

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA and CLARKE AJA

17 June 1997

[1997] NSWCA 92

Priestley JA and Clarke AJA. On 27 November 1996 judgment was delivered by this Court allowing two appeals from a decision of the Dust Diseases Tribunal and ordering a new trial. Arthur Norman Holland, the plaintiff at first instance and the respondent in this Court (we will call him the plaintiff) has now filed a Notice of Motion seeking an order that the new trial be limited to damages or, in the alternative, be limited to the issue whether the plaintiff suffers from asbestosis.

The grounds on which the application is based are, in summary: —

1. As to the appeal by Douglas J Holland Pty Limited (the first defendant):a) the first defendant conceded that:

i)

ii)

the plaintiff was employed by it between August 1971 and 7 May 1987;

the plaintiff was exposed to asbestos material in the course of his employment during that period;

b) although the first defendant denied it had breached its duty of care to the plaintiff that issue was found in the plaintiff's favour at first instance and this Court had upheld that finding;

c) the first defendant also abandoned its attack on the assessment of damage. Its sole challenge was to the judge's finding that the plaintiff suffered from asbestosis.

2. As to the appeal by the Commonwealth of Australia (the second defendant):

a)

b)

the second defendant admitted the plaintiff was employed by it and on the appeal abandoned its challenges to the finding of breach of duty and the assessment of damages;

the second defendant contended only that the trial judge's finding that the plaintiff had asbestosis was wrong.

It followed, according to the plaintiff, that it would be unjust and needlessly expensive to require that the plaintiff be put to proof on all those issues which the defendants had abandoned or failed successfully to challenge on appeal.