WORKERS COMPENSATION (DUST DISEASES) BOARD OF NSW v SMITH, MUNRO AND SEYMOUR [2010] NSWCA 19

New South Wales Court of Appeal

CITATION: WORKERS COMPENSATION (DUST DISEASES) BOARD OF NSW v SMITH, MUNRO AND SEYMOUR [2010] NSWCA 19

HEARING DATE(S): 16, 17 and 19 November 2009

JUDGMENT DATE: 23 February 2010

JUDGMENT OF: Allsop P at 1; Basten JA at 8; Handley AJA at 162

DECISION: (1) Dismiss each of the appeals in respect of the decisions of the District Court. (2) Order that the appellant pay the respondents' costs of the appeals.

CATCHWORDS: ADMINISTRATIVE LAW – procedural fairness – adequacy of reasons – factual finding of causation from asbestos in combination with tobacco smoke – whether necessary to attempt to set out arithmetical foundation of finding – whether decision on question of law - APPEAL – civil – statutory appeal – appeal from District Court – appeal against award of the Court in point of law – distinction between point of law, admission of evidence and findings of fact - EVIDENCE – admissibility and relevance – opinion evidence – basis rule – whether basis for opinion identified – whether explicit ruling on objection to evidence necessary - EVIDENCE – weight and sufficiency of evidence – uncontradicted evidence – affidavit evidence of deceased claimants – similarities between affidavits – whether unreliability resulted in unfair prejudice to defendant – Evidence Act 1995 (NSW), s 135 - STATUTORY INTERPRETATION – construction of composite provision – dual limbs – second limb grammatically ambiguous – nature of causal connection envisaged by words "reasonably attributable to" – whether words introduce normative component to determination of statutory entitlement – Workers' Compensation (Dust Diseases) Act 1942 (NSW), s 8(1)(b) - TORTS – negligence – causation – dust diseases – asbestos – tobacco – exposure to both carcinogens – development of lung cancer – whether exposure to asbestos constituted material contribution to carcinoma - WORDS & PHRASES – "asbestosis" – "award of the court in point of law" – "dust disease" – "Helsinki criteria" – "lung cancer" – "material contribution" – "reasonably attributable" – "relative risk"