CSR LTD v AMACA PTY LTD [2009] NSWCA 338

New South Wales Court of Appeal

CITATION: CSR LTD v AMACA PTY LTD [2009] NSWCA 338

HEARING DATE(S): 7 September 2009

JUDGMENT DATE: 19 October 2009

JUDGMENT OF: Allsop P at 1; Hodgson JA at 51; Basten JA at 82

(1) Allow the appeal and set aside the judgment of the Dust Diseases Tribunal of 25 June 2008 and the orders made on 8 July 2008.

(2) In lieu of the orders made by the Tribunal,

DECISION: (a) dismiss the cross-claimant's claim for contribution against the cross-defendants; (b) order that the cross-claimant pay the cross-defendant's costs of the proceedings in the Dust Diseases Tribunal on the cross-claim.

(3) Order the respondent to pay the appellants the sum of $375,000 (being the amount paid by them to the respondent as a condition of the stay granted in the Tribunal) together with interest at the rate prescribed by Schedule 5 to the Uniform Civil Procedure Rules 2005 (NSW) calculated from the date of payment to the date on which the amount is repaid by the respondent.

(4) Order the respondent to pay the appellants' costs of the appeal.

CATCHWORDS: APPEAL – when appeal lies – scope limited to appeal from decision of Tribunal in point of law – challenge to finding of duty of care – whether evidence to support finding – nature of error – significance of "illogicality" in reasoning or "perversity" in fact-finding - TORTS – negligence – duty of care – pleural mesothelioma contracted after exposure to crocidolite asbestos as young child – two periods of exposure of between three and seven days each – exposure due to destruction of cement sheets containing asbestos mined no earlier than September 1965 – possibility of link between "transitory" or "minimal" exposure documented in 1962 – miner of asbestos aware of medical knowledge – whether knowledge of miner of risks posed by asbestos gave rise to duty of care - WORDS AND PHRASES – "blue asbestos" – "transitory exposure"