Dunning v BHP Billiton Limited [2014] NSWDDT 3

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Dunning v BHP Billiton Limited [2014] NSWDDT 3 Decision date: 31 July 2014 Before: Kearns J Decision: There will be verdict and judgment for the plaintiff in the sum of $2,236,959.57. Catchwords: Dust diseases; mesothelioma; whether hierarchical approach, giving priority to documents, to resolution of factual issues dictated by authority; approach to the assessment of witnesses; whether plaintiff was exposed to asbestos; whether evidence may given by non-expert identifying asbestos; whether injury to plaintiff employee foreseeable; state of knowledge, actual and constructive, in 1979 of defendant concerning health risks associated with exposure to asbestos; identity of person within corporate defendant who had actual knowledge of health risks from exposure to asbestos and whether defendant could dictate identity of that person; whether on foreseeability of injury defendant could rely on NHMRC standard to the exclusion of all other learning; whether defendant could rely on advice that might have been given by a reasonably competent occupational hygienist in 1979; whether defendant breached duty of care to plaintiff; whether on breach of duty defendant could rely on NHMRC standard; whether reasonable practical alternatives were available in blast furnace; whether plaintiff's injury caused by defendant's negligence (consideration of the cumulative effect mechanism of causation of mesothelioma); whether defendant in breach of s41 of Factories, Shops and Industries Act 1962; on damages, whether plaintiff being in remission Malec v Hutton discount should be made for possibility that mesothelioma may not recur; whether plaintiff's damages should exclude aggravation or exacerbation of his depressive condition resulting from the litigation. Legislation Cited: Dust Diseases Tribunal Act 1989 Cases Cited: AMP General Insurance Limited v Roads and Traffic Authority of NSW [2001] NSWCA 186 Baker v Quantum Clothing Group Limited (formerly Taymil Limited) (2011) UKSC 17 BHP Billiton Limited v Parker [2012] Booth v Amaca Pty Ltd and Amaba Pty Ltd [2010] NSWDDT 8 CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 Fox v Percy (2003) 214 CLR 118 Graham v Co-operative Wholesale Society Limited [1957] 1 WLR 511, 522 Howard Smith & Patrick Travel Pty Limited v Comcare [2014] NSWCA 215 Julia Farr Services Inc v Hayes [2003] NSWCA 37 Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 McLean v Tedman (1984) 155 CLR 306, 313 McPherson's Ltd v Eaton & Ors (2005) 65 NSWLR 187 Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, 402 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 Silvestro v Verbon Pty Limited [1973] 2 NSWLR 513 Thompson v Johnson & Johnson Pty Limited [1991] 2 VR 449 Category: Principal judgment Parties: Jake Douglas Dunning as tutor for Steven Douglas Dunning (plaintiff) BHP Billiton Limited (defendant) Representation: Mr P Semmler QC with Mr S Tzouganatos instructed by Slater & Gordon Lawyers appeared for the plaintiff Mr T G R Parker SC with Mr D Talintyre instructed by Piper Alderman and HWL Ebsworth Lawyers appeared for the defendant. File Number(s): DDT 79/2011