Hutton v Broken Hill Proprietary Company Ltd [2005] NSWDDT 67

Dust Diseases Tribunal of New South Wales

CITATION : Hutton v Broken Hill Proprietary Company Ltd [2005] NSWDDT 67

Andrew A Hutton Broken Hill Proprietary Company Ltd PARTIES : State of New South Wales

MATTER NUMBER(S) : 195 of 97

JUDGMENT OF: Walker J at 1

:-

Ross v Meggitt Overseas Ltd 18 NSW CCR 324; Malec v Hutton (1990) 169 CLR 638 ; CASES CITED: Jobling and Associated Dairies [1982] A.C. 794.; Griffiths v Kerkemeyer (1977) 139 CLR 161 ; Kovac v Kovac (1982) 1 NSWLR 656.

DATES OF HEARING: 8/12/05

Plaintiff: Mr D G Letcher QC 1st Defendant: Ms W S Strathdee LEGAL REPRESENTATIVES: 2nd Defendant:Mr J L Sharpe

JUDGMENT:

JUDGMENT

JOHNS AJ 1. This is an action for damages brought by the plaintiff Andrew Arthur Hutton against the defendants. In respect of the first defendant the plaintiff brings his action against it as an employer. He alleges that in this employment he was negligently exposed to and inhaled asbestos dust and fibre. He brings his action against the second defendant, also as an employer, alleging that in that employment he was also negligently exposed to and inhaled asbestos dust and fibre. 2. In regard to the issues to be determined in this matter the first defendant indicated that the plaintiff was entitled to a verdict against it in respect of only one of the three periods the plaintiff was employed with it. In this regard the first period of employment with the first defendant, was when the plaintiff began his work as a mechanical engineering apprentice on 16 December 1946. This period concluded on 12 January 1951. The third period of employment began on 18 December 1972 and concluded in late 1978. The plaintiff's second period of employment with the first defendant began on the 21 May 1952, that period of employment concluding in May 1956. It is in respect of this period that the defendant has agreed that the plaintiff is entitled to a verdict. 3. The plaintiff began his employment with the second defendant on 21 May 1956 and concluded in October 1957. The second defendant also indicated that the plaintiff was entitled to a verdict as a consequence of his employment with it at the State Dockyard. Exposure 4. The defendants have submitted it is necessary in the circumstances of this case to determine the proportion of any damage that may have occurred to the plaintiff as a consequence of his exposure whilst he was employed with Stewarts and Lloyds, who have not been joined as a party to these proceedings. I will return later in this judgment to this issue.