Abbreviations

CCSMI	Compensation Court Subject Matter Index
DDT	Dust Diseases Tribunal
DI	designated insurer
LR 1946	Law Reform (Miscellaneous Provisions) Act 1946
LR 1944	Law Reform (Miscellaneous Provisions) Act 1944

Subject Index

appeal
breach of duty
causation
constitution (Cth)
contribution
costs
cross-claims
damages
discovery
dust-related condition
duty of care
estoppel
evidence
foreseeability
insurance
interrogatories
intranational/international tort
jurisdiction
liability
limitation of actions
negligence
proceedings
reconsideration
right of action
settlement
standard of care
statutes

APPEAL see APPEAL (to Court of Appeal) in CCSMI

BREACH OF DUTY see NEGLIGENCE

CAUSATION see NEGLIGENCE

CONSTITUTION (CTH)

Chapter III - limitation on exercise of State legislative power - s 25B of DDT Act not incompatible
McDonough v Stevedoring Industry Finance Committee (2000) 20.385

section 118 - full faith & credit - effect upon common law choice of law rules - development of common law taking account of federal jurisdiction/system
John Pfeiffer Pty Ltd v Rogerson (2000) 20.111

section 118 - “laws ... of every State” does not refer to common law of Australia - DDT Act modifications of common law adversary system - not offend s 118
James Hardie & Co Pty Ltd v Barry (CA) (2000) 21.150

section 118 - SA parties and SA tort - DDT “long arm” jurisdiction enlivened - no SA jurisdiction enlivened - s 118 not applicable
Julia Farr Services Incorporated v Hayes (CA) (2003) 25.138

section 118 - SA parties and SA tort – inconsistency appellate rights under DDT/ SA law - appellate rights procedural - s 118 not applicable
Julia Farr Services Incorporated v Hayes (CA) (2003) 25.138

appeal from trial judge’s apportionment - appeal court not entitled to interfere if apportionment reasonably open
Rolls Royce Industrial Power v James Hardie & Co (2000) 22.703

comparison of culpability - actual knowledge of danger attributable to commercial corporations – actual knowledge of danger attributable to statutory corporations
Babcock International Ltd v Babcock Australia Ltd (2003) 24.540

comparison of culpability - assessed acts/omissions of natural person responsible to know/discharge legal obligations - if none, failure to appoint culpable
Babcock Australia Ltd v Eraring Energy (No. 2) (2000) 22.141

comparison of culpability - corporate agency of Crown - knowledge of Minister of Health not to be imputed to corporate agent
Babcock Australia Ltd v Eraring Energy (No. 2) (2000) 22.141

comparison of culpability - determination of what is “just and equitable” - can be equally blameworthy but differ in degree of exposure to risk
James Hardie & Co Pty Ltd v Roberts (1999) 18.500

comparison of culpability - determination of what is “just and equitable” - if no basis for division of causation of injury, equal apportionment appropriate
EM Baldwin & Son Pty Ltd v Plane (1998) 17.434

comparison of culpability - exposure to asbestos, its toxicity, nature of employment, knowledge of danger - basis for just and equitable apportionment
Bitupave Ltd v McMahon (CA) (1999) 18.481

comparison of culpability - statutory corporation not Crown - independent legal entity - knowledge imputed to Ministers of Crown not attributed to corporation
State Rail Authority (NSW) v Wallaby Grip Ltd (1999) 18.193

comparison of culpability - test - departure from standard of reasonable man
Babcock Australia Ltd v Eraring Energy (No. 2) (2000) 22.141

cross-claim - filed after plaintiff’s death - no opportunity to test evidence of plaintiff’s smoking history – application to strike out cross-claim dismissed
Brambles Holdings Ltd v British American Tobacco (2002) 24.154

cross-claim by manufacturer against State – exemption power available where both tortfeasors independently at fault - proper exercise of exemption power
Rolls Royce Industrial Power v James Hardie & Co (CA) (2000) 22.703

cross-claim by unsuccessful defendant against 3rd party for contribution to costs in defendant’s settlement with plaintiff - no jurisdiction to make order
James Hardie & Co Pty Ltd v Wyong Shire Council (1999) 18.123

cross-claims for contribution against many cross-defendants - claims against one settled - double satisfaction rule no bar to proceedings against others
Babcock Australia Ltd v Eraring Energy No. 1 (2001) 21.684

cross-claims for contribution against many cross-defendants - claims against one settled by consent judgment – no merger of claims against others
Babcock Australia Ltd v Eraring Energy No. 1 (2001) 21.684

direct action by one tortfeasor against another tortfeasor for amount required to pay plaintiff in contribution proceedings
Babcock International Ltd v Babcock Australia Ltd (2003) 24.540

judgment in favour of one defendant - another liable defendant cannot obtain contribution from that defendant
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (CA) (1997) 15.247

onus on cross-claimant to prove cross-defendant is a tortfeasor
Wallaby Grip (BAE) Pty Ltd v Macleay Area Health (CA) (1998) 17.355

power to order contribution by one tortfeasor to costs of another tortfeasor payable by a contributing tortfeasor - liabilities not coordinate - no power to make order
Rolls Royce Industrial Power v James Hardie (No. 5) (2000) 19.735

power to order contribution by 3rd party tortfeasor to costs payable to plaintiff
James Hardie & Co Pty Ltd v Wyong Shire Council (CA) (2000) 19.679

settlement - partial satisfaction of cross-claim - no evidence adduced of assignment of settled sum between satisfaction of cross-claim and of costs
Babcock Australia Ltd v Eraring Energy (No. 2) (2000) 22.141

settlement - partial satisfaction of cross-claim - where party chooses not to give evidence of assignment of sum – may assess question against party’s interest
Babcock Australia Ltd v Eraring Energy (No. 2) (2000) 22.141

settlement between plaintiff & three defendants – judgment in favour of plaintiff against 1D and 2D - in favour of 3D - no contribution recoverable from 3D
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (HCA) (1998) 17.381

settlement between two defendants - cannot bind apportionment with other tortfeasors - court to assess what is just and equitable between tortfeasors
Rolls Royce Industrial Power v James Hardie & Co (2000) 22.703

Bullock order - relevant principles to apply
De Vet v Hughes Bros Pty Ltd (1999) 18.577
Katidis v Meggitt Overseas Ltd (No. 3) (1995) 11.189

Calderbank letter offer - alleged mesothelioma - no biopsy - offer rejected - later tests - allegation withdrawn - judgment less than offer - costs penalty imposed
Smith v South Australian Brewing Co Pty Ltd (2002) 24.94

Calderbank letter offer - cross-claim filed after letter - change of circumstances - effect of letter on orders for
costs
Rolls Royce Industrial Power v James Hardie & Co (CA) (2000) 22.703

Calderbank letter offer - offer rejected - prima facie effect when recipient of latter does not obtain a more favourable result - exceptions to rule
Rolls Royce Industrial Power v James Hardie (No. 5) (2000) 19.735

Calderbank letter offer - reasonable time for offeree to consider offer - one day rarely enough time
Smith v South Australian Brewing Co Pty Ltd (2002) 24.94

costs follow event unless particular issue clearly separable
Rolls Royce Industrial Power v James Hardie (No. 5) (2000) 19.735

cross-claims - indemnity from successive insurers sought before commencement of s 151AB - costs reasonably incurred up to that date allowed
Francesco Cinzano & CIA v Mercantile Mutual Insurance (No. 2) (1992) 8.169

DDT to decide what is just in all the circumstances - substantially different to costs provision in NSW Supreme Court Act
Smith v South Australian Brewing Co Pty Ltd (2002) 24.94

indemnity costs - Calderbank letter - reasonableness of attitude to offer - discretionary judgment - what is just and reasonable in all the circumstances
EM Baldwin & Son Pty Ltd v Plane (CA) (1999) 18.76
GIO General Ltd v ABB Installation & Service Pty Ltd (CA) (2000) 19.720

indemnity costs - when appropriate to order - where a litigant has unreasonably refused an offer of compromise
McDonald v James Hardie & Co Pty Ltd (No. 2) (1998) 17.178

indemnity costs - where appropriate to order - if matter conducted in wilful disregard of known facts or clearly established law
Gray v Australian Red Cross Society (1999) 17.623

may order contribution by third-party tortfeasor to costs payable to plaintiff
James Hardie & Co Pty Ltd v Wyong Shire Council (CA) (2000) 19.679

may not order contribution by one tortfeasor to costs of another tortfeasor payable by a contributing tortfeasor - liabilities not coordinate
Rolls Royce Industrial Power v James Hardie (No. 5) (2000) 19.735

may not order contribution by third party to costs paid by defendant in settlement with plaintiff [reversed]
James Hardie & Co Pty Ltd v Wyong Shire Council (1999) 18.123

principles governing - entitlement to costs - indemnity costs - Bullock & Sanderson orders - apportionment of costs [affirmed]
Gibson v Stevedoring Industry Finance Committee (2000) 20.203
Stevedoring Industry Finance Committee v Gibson (CA) (2000) 20.417

Qld legislation - limitation of actions – principles determining costs order - reasonable diligence in commencing action - if delay prejudiced defendant
Merrell v SIFC (No. 2) (2002) 23.161

severable issue one party successful on - whether issue raised reasonably - other party overall successful - whether should refuse costs to both parties on issue
Rolls Royce Industrial Power v James Hardie & Co (2000) 22.703

severable issues in proceedings - when appropriate to order successful litigant be deprived of costs/ordered to pay costs of unsuccessful litigant on issue
Ross v Meggitt Overseas Ltd (No. 2) (1999) 18.356

when appropriate to order successful litigant to pay costs of unsuccessful litigant
McDonald v James Hardie & Co Pty Ltd (No. 2) (1998) 17.178

amount
action against joint tortfeasors - settlement by one tortfeasor - settlement amount less than total claimed - credit given for the amount recovered on settlement
Baxter v Obacelo Pty Ltd (2000) 22.607

rule against “double satisfaction” - plaintiff cannot recover in the aggregate from one or more defendants amount in excess of total loss
Baxter v Obacelo Pty Ltd (2000) 22.607

awards
asbestosis - damage resulting not one & indivisible - multiple employments - multiple exposures – consecutive tortfeasors - separate awards
Ross v Meggitt Overseas Ltd (1999) 18.324

asbestosis - defendants use one supplier’s asbestos – single indivisible result - concurrent tortfeasors - jointly and severally liable - joint and several awards
Ross v Meggitt Overseas Ltd (1999) 18.324

progressive massive fibrosis (PMF) - distinct from silicosis - one indivisible injury - concurrent tortfeasors – single award of damages
Commercial Minerals Ltd v Harris (CA) (1999) 18.11

silicosis - exposure to silica dust during multiple employments - consecutive tortfeasors - separate awards of damages
Commercial Minerals Ltd v Harris (CA) (1999) 18.11

claims under Compensation to Relatives Act
loss of deceased’s gratuitous services - applicable principles
Borowy v ACI Operations Pty Ltd (No. 2) (2002) 24.1

loss of earning capacity - calculations not necessarily based on past earned income - involves evaluation of
possibilities
Borowy v ACI Operations Pty Ltd (No. 2) (2002) 24.1

loss of earning capacity - deductions of estimated expenditure on personal essentials only
Borowy v ACI Operations Pty Ltd (No. 2) (2002) 24.1

deductions from damages
benefits received in substitution for loss of wages under an insurance policy taken out by a third party – not deductible
Dyson v Johnson & Johnson Pty Ltd (1997) 15.610

collateral benefits under foreign industrial legislation - principles governing deductibility
Davis v Cockatoo Dockyard Pty Ltd (2000) 19.594

contributory negligence - plaintiff must have voluntarily exposed self to injury to have the general damages
reduced for contributory negligence
Finn v Commonwealth of Australia (2002) 24.614

economic loss - compensation payments by Dust Diseases Board not deducted from general damages – deduction from sum to be awarded for economic loss
Katidis v Meggitt Overseas Ltd (No. 2) (1995) 11.147

economic loss - future loss of earning capacity - deduction for necessary maintenance expenditure - scope of such deduction
James Hardie & Co Pty Ltd v Roberts (1999) 18.500

future benefits payable under WC (Dust Diseases) Act deducted even though not applied for
Commercial Minerals Ltd v Harris (CA) (1999) 18.11
CSR Ltd v D’Arcy (CA) (1996) 14.201
Harris v Commercial Minerals Ltd (HCA) (1995) 13.54

future nursing service - wife (qualified nurse) willing to supply - no deduction from market cost of services
CSR Ltd v Bouwhuis (1991) 7.223

home care benefits entitlements under dust diseases legislation - only deducted if provided at direction of
medical practitioner
James Hardie & Co Pty Ltd v Newton (1997) 15.717

lump sum payment in respect of asbestos-related disease under UK legislation - lump sum payment deductible
Davis v Cockatoo Dockyard Pty Ltd (2000) 19.594

non-economic loss damages protected from deduction for benefits under WC (Dust Diseases) Act by s 12D of DDT Act - see also interest
Pacific Power v Royal (1999) 18.555

past loss of earnings damages - not reduced because of membership of superannuation scheme, entitlement redundancy benefits, use of company car
Borg v Trend Management Pty Ltd (1992) 8.337

pensions - no claim made for loss of earnings or future earning capacity - pension entitlement under WC (Dust
Diseases) Act deductible
James Hardie & Co Pty Ltd v Newton (CA) (1997) 15.717

weekly payments of industrial injuries benefits under UK legislation - benefits not deductible
Davis v Cockatoo Dockyard Pty Ltd (2000) 19.594

economic loss
degree of probability of employment to be assessed - opportunity not same as certainty - award adjusted
accordingly
CSR Ltd v Young (CA) (1998) 16.56

future loss of earning capacity - deduction for necessary maintenance expenditure - scope of such deduction
James Hardie & Co Pty Ltd v Roberts (CA) (1999) 18.500

loss of earning capacity - no evidence about availability of relevant remunerative work - DDT unpersuaded of
financial loss
Brear v James Hardie & Co Pty Ltd (CA) (2000) 21.133

proper approach to calculating quantum
Peirce v FR Coyle Pty Ltd (1999) 19.10

exemplary damages
principles involved
Borg v Trend Management Pty Ltd (1992) 8.337
Mohr v Berrigan Quarries Pty Ltd (1995) 11. 355

test of contumelious conduct
Trend Management Ltd v Borg (1996) 14.71

general damages
determination of quantum - whether fear of contracting more serious fatal disease after less serious pleural
disease discovered relevant consideration
Peirce v FR Coyle Pty Ltd (1999) 19.10

general damages - assessment must be based on effect of injury on particular plaintiff - general principles to apply
Ross v Meggitt Overseas Ltd (1999) 18.324

standards - importance of individual’s circumstances - discretion a principled one - impressions, common sense and principles of proportionality important
James Hardie & Co Pty Ltd v Newton (CA) (1997) 15.717

home care/personal services
demonstrable need - gratuitously provided by family - plaintiff entitled to damages for the services assessed at commercial rates
James Hardie & Co Pty Ltd v Newton (CA) (1997) 15.717

future nursing service - wife (qualified nurse) willing to supply - no deduction from market cost of services
CSR Ltd v Bouwhuis (CA) (1991) 7.223

home care and domestic services - not provided under WC (Dust Diseases) Act benefits
Finn v Commonwealth of Australia (2002) 24.614

personal services - reasonable cost of satisfying need resulting from wrong - not value of services actually supplied - appropriate considerations
Ross v Meggitt Overseas Ltd (1999) 18.324

personal services - services required to satisfy need resulting from wrong - value of services - no surcharge for on call 24/7 - not spousal comforting in hospital
Maynard v Wallaby Grip Ltd (2000) 19.459

interest
interest on award of general damages – appropriate considerations when determining
Ross v Meggitt Overseas Ltd (No. 3) (1999) 18.366

interest on non-economic damages - damages protected from deduction for benefits under WC (Dust Diseases) Act - nature of pre-judgment interest
Pacific Power v Royal (CA) (1999) 18.555

interest up to judgment - discretion - questions to consider - purpose of interest not punitive
Borowy v ACI Operations Pty Ltd (No. 2) (2002) 24.1

medical & hospital expenses
future psychiatric treatment - for prospect of deterioration of plaintiff’s condition
Ellul v Norton Pty Ltd (1991) 7.24

Health Insurance Commission charges payable under dust diseases legislation - not to be included in damages
James Hardie & Co Pty Ltd v Newton (CA) (1997) 15.717

mitigation of damages
exemplary damages reduced because of attempts to mitigate, albeit ineffectively
Borg v Trend Management Pty Ltd (1992) 8.337

onus on defendant to prove failure to mitigate - preference of dying man for family care over paid professional care not unreasonable - onus not discharged
James Hardie & Co Pty Ltd v Newton (CA) (1997) 15.717

non-economic loss
protected from deduction for benefits under WC (Dust Diseases) Act by s 12D of DDT Act - see also interest
Pacific Power v Royal (1999) 18.555

plaintiff’s inability to provide services to others
negligence occurred wholly in SA - SASC decided such damages not available in that State - open to DDT to award such damages to SA plaintiff
Thompson v CSR Ltd (2003) 25.113

psychiatric disorder see also PSYCHOLOGICAL INJURY
(psychiatric injury) in CCSMI fear of contracting asbestos-related disease - damages for recognised psychiatric disorder - emotional distress from fear not compensable
Thompson v CSR Ltd (2003) 25.113

abandonment of a cross-appeal was not conduct that amounted to a waiver or created an estoppel
Blackman v Australian Telecommunications Corp (No. 2) (1990) 6.340

issue estoppel - doubtful whether created by decision of Administrative Appeals Tribunal (Cth)
Blackman v Australian Telecommunications Corp (No. 2) (1990) 6.340

res judicata - judgment in NSWSC action in negligence: asbestosis - in DDT action in negligence: mesothelioma - same cause of action - claim dismissed
Shepherd v James Hardie & Co Pty Ltd (1997) 14.226

admission - filing of notice under s 25B of DDT Act not an admission by filing party
Babcock International Ltd v Babcock Australia Ltd (CA) (2003) 24.540

admissions by defendant in answers to interrogatories – not tendered against co-defendant - not admissible against co-defendant
Katidis v MMI Ltd (CA) (1995) 11.138

affidavit evidence may be given in non-urgent cases subject to admissibility of content
McCardle v MMI Ltd (1997) 14.384

certificates of disability under WC (Dust Diseases) Act -DDT not bound by certificates
Wallaby Grip Ltd v Peirce (CA) (2000) 24.193

competing scientific views - onus on plaintiff to establish that view relied on is acceptable in scientific community and probable
McDonald v State Rail Authority (NSW) (1998) 16.695

criteria for evaluating expert opinion - field of expertise, qualifications, standing and apparent plausibility of theories, methodologies and conclusions
EM Baldwin & Son Pty Ltd v Plane (CA) (1998) 17.434

difference between causation in law and in science - application of common sense to facts and adoption of robust and pragmatic approach
McDonald v State Rail Authority (NSW) (1998) 16.695

expert opinion based on epidemiological data - must identify the expert’s assumed or accepted facts and source of data
Judd v Amaca Pty Ltd (No. 2) (2003) 25.488

expert’s report - expert’s report admissible under Supreme Court Rules - evidence previously given admissible with leave under DDT Rules
Preston v Jsekarb Pty Ltd (1994) 10.45

foreign law - Australian courts should only rarely decide the meaning and effect of foreign law contrary to uncontested evidence of qualified experts
James Hardie & Co Pty Ltd v Hall (CA) (1998) 16.289

fresh evidence on life expectancy - Court of Appeal declined to allow issue to be reopened on appeal
CSR Ltd v Bouwhuis (CA) (1991) 7.223

historical evidence admitted in previous proceedings - admissible with leave where plurality of past events are probative of a pattern relevant to fact in issue
Rolls Royce Industrial Power v James Hardie & Co Pty Ltd (1999) 18.385

historical evidence admitted in previous proceedings - narrative of human affairs depicting actions/incidents forming past account of the state of those affairs
Murray v Asbestos Products Pty Ltd (No. 1) (1996) 12.657

historical evidence concerning dust exposure and dust diseases - transcript of evidence admitted in earlier proceedings - admissible if relevant to issue
Murray v Asbestos Products Pty Ltd (No. 1) (1996) 12.657

historical or general medical evidence given in prior proceedings between different parties admissible
Abraham v John CW Bridge & Co (Contracting) Pty Ltd (1991) 7.355
Griffiths v James Hardie & Co Pty Ltd (1993) 9.538
Hunter v Meagher & Clover (1990) 6.346
Preston v Jsekarb Pty Ltd (1994) 10.45

issues of general nature determined in proceedings before DDT - may not be reargued without leave of DDT - factors to consider in deciding
Judd v Amaca Pty Ltd (No. 1) (2002) 24.532

lung cancer - heavy smoker - exposure to asbestos fibre - evidence of cumulative exposure to asbestos and causal link with cancer based on epidemiological data
Judd v Amaca Pty Ltd (No. 2) (2003) 25.488

lung cancer - smoker exposed to asbestos - proof of causal link requires relative risk greater than 2.0 – material contribution of asbestos not proved
Judd v Amaca Pty Ltd (No. 2) (2003) 25.488

video link facility- use of - inappropriate where personal credit involved or in action for personal injury
James Hardie & Co Pty Ltd v Pacific Power (1997) 15.88

when the likelihood of exposure to asbestos by a defendant is not more probable than the likelihood of no exposure, no inference of exposure may be drawn
Brear v Commonwealth (1999) 18.637

application for leave to proceed against employer’s insurer, a deregistered company - workers compensation insurance held for part period of exposure
Longo v Sydney Water Corporation (2003) 25.125

company in liquidation defendant - held workers compensation insurance - application for leave to join insurer - depends on arguable case only
O’Connell v Sim-Chem (Australia) Pty Ltd (In Liq) (1997) 15.736

declaration sought that unregistered defendant company was indemnified by named insurer - consideration of whether to grant declaratory relief
Lederer v Rolls Royce Industrial Power (Pacific) Ltd (1999) 18.51

DI (designated insurer) appointed - application for other insurers for leave to appear at the main hearing and cross-examine the plaintiff - leave refused - no error
QBE Insurance Ltd v Bull (CA) (1999) 18.169

DI appointed - discretion not to appoint particular insurer - discretion to appoint another insurer from earlier period of risk
Brazier v ICI Australia Operations Pty Ltd (2000) 19.623

DI appointed - liability of insurer - alleged to have indemnity limitation - liable to indemnify the employer or pay worker full amount of damages obtained
Di Cecco v Mercantile Mutual Insurance (2002) 23.143

DI appointed - satisfies plaintiff’s judgment – insolvent insurer on risk - DI claims reimbursement from
WorkCover - no right accrues
ICI Australia Operations v WorkCover Authority (2002) 23.678

DI appointed - who is? - insurer who last insured the defendant at the time of the last alleged exposure
Coates Bros Australia Pty Ltd v FAI Traders Insurance Co Ltd (1999) 18.178

DI - insolvent corporate insurer issued policy - DI must be existing legal entity - cannot be dissolved company - cannot be WorkCover Authority (not an insurer)
Transfield Pty Ltd v WorkCover Authority (NSW) (2002) 24.38

identification of last insurer - disease need not be ordinary result of occupation - employment may trigger uncommon latent conditions resulting in disease
GIO (NSW) v Colgate Palmolive Pty Ltd (CA) (2001) 21.436

identification of last insurer - expression “occupational disease” applies as disease progresses - irrelevant to enquire which exposure was causative of disease
GIO (NSW) v Colgate Palmolive Pty Ltd (2001) 21.436

identification of last insurer - last insurer contractually liable to indemnify employer - last causal breach of duty causing plaintiff’s injury - [disapproved]
Colgate Palmolive Pty Ltd v GIO (NSW) (1999) 19.106

identification of last insurer - last insurer on risk in period when plaintiff’s cause of action arose on which award of damages based [disapproved]
Chubb Aust Ltd v MMI (Workers Compensation) Ltd (1999) 17.537

identification of last insurer - not concerned with causation in fact - concerned with exposure to risk that may be
causative - potentiality rather than actuality
GIO General Ltd v ABB Installation & Service Pty Ltd (CA) (2000) 19.720
GIO (NSW) v Colgate Palmolive Pty Ltd (CA) (2001) 21.436
ICI Aust Operations v FAI Workers Comp (NSW) (2001) 21.465
WorkCover Authority (NSW) v Chubb Aust Ltd (CA) (2000) 20.614

identification of last insurer - predisposition to occupational disease due to smoking - employers must take employees as they find them
GIO (NSW) v Colgate Palmolive Pty Ltd (CA) (2001) 21.436

identification of last insurer - when worker last employed to do work exposing worker to occupational disease
CIC Workers’ Compensation v Alcan Aust Ltd (CA) (1994) 10.642
Goodyear Aust Ltd v IGF-NEM GIA Ltd (In Liq) (1995) 11.453

identification of last insurer - when worker last employed to do work exposing worker to occupational disease - includes movements through dusty premises
CIC Workers’ Compensation v Kellogg (Australia) Pty Ltd (CA) (1996) 14.1

LR 1946, s 6 does not require that corporate defendant be in liquidation before operating to permit direct action against insurers
Hindle v Marlew Mining Pty Ltd (No. 2) (1991) 7.9

policy issued by insolvent insurer - special legislation requiring WorkCover to pay indemnity - defence under general legislation inapplicable
Transfield Pty Ltd v WorkCover Authority (NSW) (2002) 24.38

risk covered by policy - construction from contract documents - actual business activities considered only if
ambiguity - inferences to be based on facts found
Royal & Sun Alliance Insurance v Betta Industries (CA) (2002) 24.164

action for nervous shock experienced by widow on death of husband caused by dust-related disease - under LR 1944 - exclusive jurisdiction
Mangion v James Hardie & Co Pty Ltd (CA) (1990) 6.208

“attributable or partly attributable to breach of duty” in DDT Act, s 11(1)(b) includes a contributory causal
connection
Coutts v CSR Ltd (2001) 21.745

claim to recover workers compensation paid to deceased employee whose mesothelioma contracted from airborne asbestos from adjoining premises
Goodyear Australia Ltd v James Hardie & Co Pty Ltd
(1992) 8.148

cross-claim - action settled and judgment entered – extension of time to issue cross-claims granted months later
[affirmed]
Energy Australia v Wallaby Grip Ltd; Re Banham (1998) 16.535

cross-claim - application to extend time to file amended cross-claim to include another cross-defendant - application made after action verdict and judgment
SIFC v Patrick Operations Pty Ltd (2001) 21.471

cross-claim - filed within extended time - DDT not functus officio when action judgment entered - cross-claim filed after judgment “included in” proceedings
Seltsam Pty Ltd v Energy Australia (CA) (1999) 17.720

cross-claim - other ancillary or related matters - DDT has jurisdiction to hear and determine - jurisdiction not
exclusive
Amaca Pty Ltd v CSR Ltd (NSWSC) (2001) 21.637
Carnuccio v Francesco Cinzano & CIA (Aust) Pty Ltd (1990) 6.70

cross-claim for breach of contract - DDT had jurisdiction to determine
Hay v Electricity Commission (NSW) (1996) 14.162

Crown immunity - Crown in the right of SA - breach of health and safety regulations - provision in SA legislation for proceedings against Crown
Sinclair v RESI Corporation (2000) 22.16

Crown immunity - in the right of SA – Commonwealth second defendant - federal jurisdiction - proceedings
against State may be brought only in SCSA or HCA
Sinclair v RESI Corporation (2000) 22.16

Crown immunity - State instrumentality - liability for tort - liable for own conduct - vicariously liable for conduct of employees - could apply for transfer to SA
RESI Corporation v Sinclair (CA) (2002) 23.486

dust includes dust of an organic origin - “dust-related condition” includes cryptoccocal meningitis caused by
exposure to grain dust & pigeon droppings
Gardner v George Weston Foods Ltd (1990) 6.393

dust includes wood dust - “dust-related condition” includes ethmoidal cancer behind the nose and eyes caused by exposure to wood dust
Coutts v CSR Ltd (2001) 21.745

dust-related action/total incapacity - vehicle accident action/brain damage - different defendants - issue: relative contributions to incapacity - actions joined
McFarlane v Boral Ltd (2002) 23.404

immunity - plaintiff exposed to asbestos dust in NSW while member of Royal Navy - defendant a foreign state - defendant immune from proceeding
Barnes v Ministry of Defence (UK) (1997) 14.450

interstate corporate defendants - DDT’s jurisdiction not affected by cross-vesting legislation
Phillips v CC (Victoria) Pty Ltd (1990) 6.383

medical practitioner’s negligent failure to diagnose mesothelioma - DDT has exclusive jurisdiction for negligence action against practitioner
Anderson v Kaufman (CA) (1991) 7.198

order contribution by third party (not sued by plaintiff) to costs paid by defendant in settlement with plaintiff -
jurisdiction in DDT
James Hardie & Co Pty Ltd v Wyong Shire Council (CA) (2000) 19.679

order contribution by third party (not sued by plaintiff) to costs paid by defendant in settlement with plaintiff – no jurisdiction in DDT [reversed]
James Hardie & Co Pty Ltd v Wyong Shire Council (1999) 18.123

proceedings for damages under Compensation to Relatives Act brought in respect of death from dust-related condition - exclusive jurisdiction
Grech v James Hardie & Co Pty Ltd (1989) 5.274
Mangion v James Hardie & Co Pty Ltd (CA) (1990) 6.208

tort occurring in Qld - Qld Limitation Act regarded as substantive - claim for damages barred by Qld Limitation Act - DDT lacks jurisdiction
Brear v Commonwealth (1999) 18.637

whether plaintiff had a dust-related condition - no asbestosis - asbestosis not necessary precursor to onset of asbestosinduced lung cancer
McDonald v State Rail Authority (NSW) (1998) 16.695

intranational/international tort
cause of action arising outside Australia - negligence by companies not present in NSW - action brought in NSW - application for stay - test to apply
Regie National des Usines Renault SA v Zhang (HCA) (2002) 23.207

choice of law - foreign tort - double actionability rule rejected as choice of law rule for foreign torts
John Pfeiffer Pty Ltd v Rogerson (HCA) (2000) 20.111
Regie National des Usines Renault SA v Zhang (HCA) (2002) 23.207

choice of law - foreign tort - lex causae delicti to be applied - flexible exception may be subsumed in issues presented in any stay application
Regie National des Usines Renault SA v Zhang (HCA) (2002) 23.207

choice of law - maritime tort - injury occurred during coal unloading onto NSW soil - plaintiff a NZ resident - defendant a NZ company - NSW law applicable
Union Shipping New Zealand Ltd v Morgan (CA) (2002) 23.612

choice of law - single rule in both federal and non-federal jurisdiction in all courts in Australia - should apply lex loci delicti as substantive law
John Pfeiffer Pty Ltd v Rogerson (HCA) (2000) 20.111

DDT Act has extra-territorial operation provided common law forum rules followed
Bengtell v Goliath Portland Cement Co Ltd (1994) 10.60

forum non conveniens - cause of action arising in Qld - defendant has onus to show DDT a clearly inappropriate
forum
Harris v James Hardie & Co Pty Ltd (1992) 8.154

forum non conveniens - exercise of discretion – consideration - whether continuation in selected forum would be “oppressive” or “vexatious” - meaning
James Hardie & Co Pty Ltd v Grigor (CA) (1998) 16.434

forum non conveniens - foreign tort – practical considerations of trial venue favoured Sydney – NSWCA stayed proceedings - test to apply
Regie National des Usines Renault SA v Zhang (HCA) (2002) 23.207

forum non conveniens - forum shopping - pursuit of favourable limitation period
Goliath Portland Cement Co Ltd v Bengtell (CA) (1994) 10.200

forum non conveniens - inappropriate forum against one of two defendants
Bengtell v Goliath Portland Cement Co Ltd (1994) 10.60
Goliath Portland Cement Co Ltd v Bengtell (CA) (1994) 10.200

forum non conveniens - originating process served outside Australia - whether DDT should decline to exercise
jurisdiction
Urner v LNC Industries Pty Ltd (1990) 6.389

forum non conveniens - plaintiffs resident in NZ – disease contracted in NZ - defendant resident in NSW – whether DDT forum non conveniens
James Hardie & Co Pty Ltd v Cameron (1996) 12.286

forum non conveniens - SA tort - SA plaintiff – two defendant companies: SA & NSW - discontinued against 2nd - DDT not then clearly inappropriate forum
Julia Farr Services Incorporated v Hayes (CA) (2003) 25.138

forum non conveniens - this issue should be determined before hearing
James Hardie & Co Pty Ltd v Hall (CA) (1998) 16.289

forum non conveniens - tort committed where plaintiff exposed to asbestos—in NZ - judge’s exercise of discretion to stay or dismiss proceedings miscarried
James Hardie & Co Pty Ltd v Grigor (CA) (1998) 16.434

place of tort: NSW - asbestos exported from NSW to NZ - exportation and failure to warn of exposure occurred in NSW [reversed]
Putt v James Hardie & Co Pty Ltd (1998) 16.10

place of tort: NZ - substantive law of the place abolished civil liability for injury suffered in the circumstances of the case - DDT had no jurisdiction
James Hardie & Co Pty Ltd v Hall (CA) (1998) 16.289

place of tort: NZ - where warning should have operated to protect plaintiff - where system of work should have been safe
James Hardie & Co Pty Ltd v Hall (CA) (1998) 16.289

place of tort: Qld - action barred under Qld limitation Act - part of Qld substantive law - not displaced by DDT Act - DDT has no jurisdiction
Brear v James Hardie & Co Pty Ltd (CA) (2000) 21.133

plaintiff employed by NZ company - contracted disease in NZ - defendants NSW companies - NSW connecting factors - DDT jurisdiction [reversed]
Putt v James Hardie & Co Pty Ltd (1998) 16.10

pleadings - need not plead foreign law to render claim/crossclaim justiciable - reliance on foreign law may oblige party to plead relevant foreign law
Regie National des Usines Renault SA v Zhang (2002) 23.207

private international law - NZ provision barring action in NZ for relevant tort was procedural - jurisdiction in DDT in action against NSW companies [reversed]
Putt v James Hardie & Co Pty Ltd (1998) 16.10

SA plaintiff, defendant and tort - proceedings commenced in DDT - unconditional appearance by defendant at directions hearing - motion to dismiss - waiver
Hewish v Wahsgab 1990 Ltd (2003) 25.437

abolition by DDT Act of limitation of actions re of dustrelated conditions - retrospectivity - not where proceedings already determined on merits/settled
Mesiti v ACN 000 343 019 Pty Ltd (2001) 21.506

applicant for extension - actual knowledge of material facts of decisive character - not knowledge of legal consequences - solicitor’s knowledge irrelevant
Merrell v SIFC (2001) 23.30

applicant for extension - material fact relating to the right of action in negligence includes knowledge of practical alternative safe system of work
Merrell v SIFC (2001) 23.30

applicant for extension - onus to show justice of case requires favourable exercise of discretion and no “significant prejudice” to prospective defendant - meaning
Merrell v SIFC (2001) 23.30

applicant for extension - plaintiff to show evidence available to establish cause of action - that real, not minimal, damage suffered
Torrens v James Hardie & Co Pty Ltd (1990) 6.89

applicant for extension - when fact is outside person’s means of knowledge - whether took reasonable steps to ascertain facts - objective test
Merrell v SIFC (2001) 23.30

applicant for extension must have been aware of factual cause, not the legal cause, of the injury
Dedousis v Water Board (1993) 9.417

applicant for extension must know nature and extent of personal injury
Francesco Cinzano & CIA (Aust) Pty Ltd v Carnuccio (1990) 6.188

cross-claim - breach of implied terms of contract - amendment to rely on express terms of contract - different causes of action - statute barred
Rolls Royce Industrial Power Ltd v James Hardie & Co (No. 3) (1999) 18.396

cross-claim for breach of contract in action for personal injury - claim for economic loss - not for personal injury - DDT lacks power to extend period
Rolls Royce Industrial Power v James Hardie & Co (CA) (2000) 22.703

cross-claim for breach of contract in action for personal injury - power to extend period - whether cross-claimant discharged onus for obtaining extension
Hay v Electricity Commission (NSW) (1996) 14.162

latent injury - cause of action accrued before 1 September 1990 - limitation period extended to 1 September 1993 if just and reasonable
James Hardie & Co Pty Ltd v Wootton (CA) (1990) 6.361
Tilley v Qualitas Commodities Pty Ltd (1993) 9.268
Wootton v James Hardie & Co Pty Ltd (1990) 6.302

latent injury - discretionary extension of limitation bar -principles to apply
Dedousis v Water Board (HCA) (1994) 10.675

latent injury - nature/extent of damage determined at date of application - awareness of precise pathology or consequences unnecessary
Harris v Commercial Minerals Ltd (HCA) (1995) 13.54

latent injury - whether just and reasonable to extend period
Harris v Commercial Minerals Ltd (HCA) (1995) 13.54

limitations on actions are substantive not procedural
John Pfeiffer Pty Ltd v Rogerson (HCA) (2000) 20.111

material fact relating to cause of action - possibility of a fact is insufficient
BHP Co Ltd v Waugh (CA) (1988) 4.197

material facts of a decisive character - what are they?
Barron v James Hardie & Co Pty Ltd (1990) 6.47
Brunton v DO’Bryan & Co Pty Ltd (CA) (1988) 4.155
Collins v James Hardie & Co Pty Ltd (1990) 6.146
Ditchburn v Seltsam Ltd (CA) (1989) 5.235
Dousi v Colgate Palmolive Pty Ltd (No. 2) (CA) (1989) 5.86
FJ Walker Ltd v Webber (CA) (1989) 5.266
Kyprianov v Cockatoo Dockyard Pty Ltd (CA) (1989) 5.283

multiple defendants - prima facie evidence of liability of at least one defendant - hear all evidence before submission of no case against any other defendant
BHP Co Ltd v Waugh (CA) (1988) 4.197

no limitation period for proceedings “in relation to” dustrelated conditions - includes “estate” and “Compensation to Relatives” claims
Borowy v ACI Operations Pty Ltd (2002) 23.447

power of DDT to extend time - entitlement to order where just and reasonable
Hay v Electricity Commission (NSW) (1996) 14.162
Richardson v New South Wales (1994) 10.145

review of Registrar’s decision to extend limitation period - leave to review out of time denied - failed to explain delay
Richardson v New South Wales (1994) 10.145

causation
competing scientific views - onus on plaintiff to establish that view relied on is acceptable in scientific community and probable
McDonald v State Rail Authority (NSW) (1998) 16.695

concurrent and successive tortious acts - all causes to be considered in personal injury action
Ross v Meggitt Overseas Ltd (1999) 18.324

difference between establishing a cause and establishing that a particular cause cannot be excluded
McDonald v State Rail Authority (NSW) (1998) 16.695

expert opinion evidence required - only sufficient if justifies an inference of probable connection - depends on the evaluation of the evidence
Burns Philp & Co Ltd v J Blackwood & Son Ltd (2000) 21.96

exposure to asbestos dust - mesothelioma contracted - breach of duty to take known precautions - breach caused or materially contributed to damage
Cockatoo Dockyard Pty Ltd v Browne (CA) (2001) 21.544

failure by supplier of asbestos to warn purchaser of risk - breach of duty of care - breach causative of plaintiff’s mesothelioma
CSR Ltd v Wren (CA) (1997) 15.650

failure to take measures to reduce amount of asbestos dust - breach causative of plaintiff’s mesothelioma
CSR Ltd v Wren (CA) (1997) 15.650

lung cancer - exposure to asbestos - smoking and asbestos exposure increase risk of cancer - causal contribution by each
Dalby v Wallaby Grip Ltd (2002) 24.130

lung cancer - smoker exposed to asbestos - proof of causal link requires relative risk greater than 2.0 – material contribution of asbestos not proved
Judd v Amaca Pty Ltd (No. 2) (2003) 25.488

one and indivisible injury - more than one identifiable causative exposure making material contribution
Stevenson v James Hardie & Co Pty Ltd (1997) 15.568

onus on plaintiff to prove breach of duty caused or materially contributed - insufficient that particular matter could not be excluded as possible cause
Exxon Ltd v Barnes (CA) (1997) 14.661

onus on plaintiff to prove that exposure to asbestos caused or materially contributed to injury - not all exposure to asbestos is causative of mesothelioma
ICI Australia Operations Pty Ltd v Walsh (CA) (1997) 15.279

principles of causation discussed - difficulty of proving causation where multiple defendants or cross-defendants - principles that assist proof
Wallaby Grip (BAE) Pty Ltd v Macleay Area Health (CA) (1998) 17.355

relevant considerations - all aspects of causal connection between breach of duty and plaintiff’s injury - criteria for evaluating expert opinion
EM Baldwin & Son Pty Ltd v Plane (CA) (1998) 17.434

sequence of periods of exposure - Peto formula – usefulness of formula - justifiable inferences to be drawn
Burns Philp & Co Ltd v J Blackwood & Son Ltd (2000) 21.96

sufficient to establish causation if facts/circumstances justify finding on probabilities that daily exposure from various sources contributed to disease
State Rail Authority (NSW) v Wallaby Grip Ltd (1999) 18.193

whether causal link between asbestos inhalation and renal cell carcinoma - difference between permissible inference and conjecture
Seltsam Pty Ltd v McGuiness (CA) (2000) 19.385

duty of care see also PSYCHOLOGICAL INJURY (psychiatric injury)
in CCSMI breach of duty - finding of a question of fact - not open to challenge on appeal if accepted evidence sufficient for finding
Julia Farr Services Incorporated v Hayes (CA) (2003) 25.138

designer of furnaces requiring asbestos caulking – exercise reasonable care/skill to enable safe erection sequence - provide warning about dangers of asbestos dust
Babcock Australia Ltd v Eraring Energy (No. 2) (2000) 22.141

employer’s duty to take effective measures in factory to protect plaintiff from inhalation of asbestos dust – failure a breach of statutory duty/duty of care
EM Baldwin & Son Pty Ltd v Plane (CA) (1998) 17.434

employer’s duty to take known precautions against damage occurring - asbestos known to be dangerous
Cockatoo Dockyard Pty Ltd v Browne (CA) (2001) 21.544

employer’s duty to take reasonable care to provide safe working environment for employee
Julia Farr Services Incorporated v Hayes (CA) (2003) 25.138

employer of persons exposed to asbestos dust - knowledge of dangers in public domain - high standard of care
Rolls Royce Industrial Power v James Hardie & Co (No. 4) (1999) 18.653

holding company an agent for its subsidiary in controlling/ managing subsidiary’s business and undertaking – duty of care of both companies coextensive
CSR Ltd v Young (CA) (1998) 16.56

injury not reasonably foreseeable in circumstances - no preexisting relationship between parties - no duty of care
Tame v New South Wales (HCA) (2002) 24.385

liability of State - under statute - under common law
Rolls Royce Industrial Power v James Hardie & Co (No. 4) (1999) 18.653

manufacturer and supplier of asbestos - duty to all end users regardless of knowledge of intervening employers – high standard of care
Rolls Royce Industrial Power v James Hardie & Co (No. 4) (1999) 18.653

manufacturer makes asbestos mats - duty of care to bystander - depends on foreseeability of risk in circumstances - not foreseeable before 1975
Wallaby Grip (BAE) Pty Ltd v Betta Industries Pty Ltd (2001) 23.1

manufacturer makes asbestos mats - duty to bystander - manufacturer did not breached statutory duty as occupier of factory - not foreseeable before 1975
Wallaby Grip (BAE) Pty Ltd v Betta Industries Pty Ltd (2001) 23.1

NZ company had duty to provide plaintiff with safe work system - NSW company with influence and control over NZ company did not have similar duty
James Hardie & Co Pty Ltd v Hall (CA) (1998) 16.289

relationship of parties together with foreseeability of injury - gave rise to duty of care
Tame v New South Wales (2002) 24.385

statutory authority - whether owes duty to plaintiff – factors to consider
Royal & Sun Alliance Insurance v Betta Industries (CA) (2002) 24.164

supplier of asbestos - knew of danger and intended end use - duty owed to purchaser and its employees
CSR Ltd v Wren (CA) (1997) 15.650

supplier of asbestos product known to be dangerous if precautions not observed - failure to warn persons using product of need to wear masks
Babcock Australia Ltd v Eraring Energy (No. 2) (2000) 22.141

suppliers of dangerous products - duty to employees of consumers even when consumer has actual knowledge of danger
State Rail Authority (NSW) v Wallaby Grip Ltd (1999) 18.193

vendor of dangerous product - duty to persons other than purchasers - depends on gravity of risk - duty to make proper enquiries and warn of risk
Burns Philp & Co Ltd v J Blackwood & Son Ltd (2000) 21.96

whether State owes duty of care to bystander exposed to asbestos in factory - no duty unless relationship falls into recognised duty category [affirmed]
Wallaby Grip (BAE) Pty Ltd v Betta Industries Pty Ltd (2001) 23.1

foreseeability
cleaner of doors sealed with asbestos contracted mesothelioma - employer ought to have been aware of dangers of using asbestos - ignorance no excuse
Peters v H & B Investments Pty Ltd (1995) 11.377

environmental exposure to blue asbestos dust as a child - mesothelioma - foreseeability of risk at time not farfetched or fanciful
CSR Ltd v Young (CA) (1998) 16.56

foreseeability of mesothelioma from exposure to asbestos dust - question of fact - not appealable
Cockatoo Dockyard Pty Ltd v Browne (CA) (2001) 21.544

foreseeability of precise risk not required – information available to industry participants - not dependent on actual awareness of risk by participants
CSR Ltd v Wren (CA) (1997) 15.650

lack of actual knowledge of risk not protective of employer - if employer ought to have known of risk, lack of knowledge part of default
Julia Farr Services Incorporated v Hayes (CA) (2003) 25.138

negligence of employer of persons using dangerous products foreseeable by supplier of products
Babcock Australia Ltd v Eraring Energy (No. 2) (2000) 22.141
State Rail Authority (NSW) v Wallaby Grip Ltd (1999) 18.193

sufficient to show foreseeable risk of asbestos-related disease - not necessarily the type actually contracted Exxon Ltd v Barnes (CA) (1997) 14.661 Wren v CSR Ltd (1997) 15.45

widow of suicide suffered nervous shock - assumed person of normal fortitude - nervous shock not reasonably foreseeable by employer in circumstances
AMP General Insurance Ltd v RTA (NSW) (CA) (2000) 22.247

liability of tortfeasor see also PSYCHOLOGICAL INJURY
(psychiatric injury) in CCSMI cross-claim against party not sued by plaintiff - liability test - would party have been liable if sued? – relative blameworthiness
Macleay-Hastings AHS v Wallaby Grip (BAE) Pty Ltd (1997) 15.93

cross-claim by manufacturer against State - State exempted - proper exercise of exemption power
Rolls Royce Industrial Power v James Hardie & Co (CA) (2000) 22.703

damage by mental trauma separate head of damage in law of negligence - employer not liable to widow for damage caused by employee’s suicide
AMP General Insurance Ltd v RTA (NSW) (CA) (2000) 22.247

employed by SA Railways Commissioner – operations transferred to C’wealth - included inchoate tortuous liabilities “incurred” by Commissioner
Commonwealth v TransAdelaide (CA) (2001) 21.483

holding and subsidiary companies - holding company not generally liable for acts of its subsidiary - when corporate veil may be lifted
James Hardie & Co Pty Ltd v Hall (CA) (1998) 16.289

holding company an agent for its subsidiary in controlling/ managing subsidiary’s business and undertaking - liability of both companies coextensive
CSR Ltd v Young (CA) (1998) 16.56

joint tortfeasors - cause of action not one and indivisible - settlement by one tortfeasor for less than total claimed - no bar to claim for balance against other
Baxter v Obacelo Pty Ltd (HCA) (2000) 22.607

joint tortfeasors - rule against “double satisfaction” - plaintiff cannot recover in the aggregate from one or more defendants an amount in excess of total loss
Baxter v Obacelo Pty Ltd (HCA) (2000) 22.607

joint tortfeasors - settlement by one tortfeasor – settlement amount less than total amount claimed - credit must be given for the amount recovered on settlement
Baxter v Obacelo Pty Ltd (HCA) (2000) 22.607

joint tortfeasors and several consecutive tortfeasors - principles of distinction
Mohr v Berrigan Quarries Pty Ltd (1995) 11.355

manufacturer and employer independently at fault - plaintiff exposed to asbestos - asbestos not inherently dangerous product - depends how used and processed
Rolls Royce Industrial Power v James Hardie & Co (CA) (2000) 22.703

multiple tortfeasors - apportionment of liability - one and indivisible injury - each tortfeasor liable for whole injury
Stevenson v James Hardie & Co Pty Ltd (1997) 15.568

two defendants held liable to plaintiff - cross-claims for contribution from 3rd parties - different judge – second judge bound by decision on liability
Wallaby Grip Ltd v State Rail Authority (NSW) (CA) (2001) 21.650

proximity
between NSW defendants and employees of NZ company - defendants had extensive control over operations of NZ company - duty of care existed [reversed] see (CA) (1998) 16.289
Putt v James Hardie & Co Pty Ltd (1998) 16.10

control on test of reasonable foreseeability of harm – affected by policy considerations - avoid indeterminate liability - commerce impediment
CSR Ltd v Wren (CA) (1997) 15.650

exposure to asbestos as a child - foreseeable injury to the class of persons of which the child was one – sufficient proximity to plaintiff to give rise to a duty of care
CSR Ltd v Young (CA) (1998) 16.56

holding company - relationship of proximity to plaintiff – not employer but influenced/controlled subsidiary employer - holding coy liable [affirmed]
Wren v CSR Ltd (1997) 15.45

holding company employed management staff who controlled subsidiary’s operations - duty of holding company to plaintiff - employer to employee
CSR Ltd v Wren (CA) (1997) 15.650

right of action
injury arose out of, but not in course of, employment by Commonwealth - right of action for damages not
abolished
Hindle v Marlew Pty Ltd (1991) 7.1

plaintiffs resident in NZ - disease contracted in NZ – action not barred by NZ legislation
James Hardie & Co Pty Ltd v Cameron (1996) 12.286

substantive law of the place (NZ) abolished civil liability for injury suffered in the circumstances of the case - no right of action
James Hardie & Co Pty Ltd v Hall (CA) (1998) 16.289

whether right of action against Commonwealth or federal corporation abolished by Commonwealth statute
Blackman v Australian Telecommunications Corp (No. 1) (1990) 6.334

standard of care
appropriate to reasonable man considering nature of product/unique risks posed - high standard requiring considerable effort and expense to discharge
Rolls Royce Industrial Power v James Hardie & Co (No. 4) (1999) 18.653

safe system and safe place of work - duty may be breached by omission - provision of available measures to reduce dust
CSR Ltd v Wren (CA) (1997) 15.650

adjournment granted to allow proposed legislative amendments apply to the plaintiff in a negligence action - exercise of discretion miscarried
Meggitt Overseas Ltd v Grdovic (CA) (1998) 16.373

agreement with one defendant to discontinue on payment to plaintiff - no payment made - judgment against other concurrent tortfeasors unaffected by agreement
CSR Ltd v D’Arcy (CA) (1999) 18.231

application to re-open case to tender further evidence - whether grant or rejection of application would better serve interests of justice - relevant considerations
State Rail Authority (NSW) v Wallaby Grip (1999) 17.612

application to stay proceedings permanently – relevant considerations - one common law applied in every Australian forum - DDT’s procedural powers
Hearn v Commonwealth (2000) 21.203

application to stay proceedings permanently - test – whether proceedings oppressive/vexatious/abuse of process - balance of convenience not sufficient
Hearn v Commonwealth (2000) 21.203

application to stay proceedings permanently - under Service and Execution of Process Act - discretionary power to stay - matters taken into account
Hearn v Commonwealth (2000) 21.203

application to strike out statement of claim - need not specify category of duty in pleading - plead plaintiff’s ignorance of danger/facts giving DDT jurisdiction
Ryan v British American Tobacco Services Ltd (2003) 25.301

application to strike out statement of claim against statutory successor to SA Railways Commissioner - statement of claim struck out
Colombin v TransAdelaide (2001) 21.370

company deregistered - jurisdiction in NSW Supreme Court to order reinstatement - reinstatement just if coupled with winding up order - jurisdiction to order
Shaw v Goodsmith Industries Pty Ltd (NSWSC) (2002) 23.479

consent orders - DDT has power to control own proceedings - not obliged to make consent orders - rights of other parties affected by motion for consent orders
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (HCA) (1998) 17.381

cross-claim - DDT not functus officio when action judgment entered - cross-claim filed after judgment “included in” proceedings
Clark v Seltsam Pty Ltd (1999) 18.587
Seltsam Pty Ltd v Energy Australia (CA) (1999) 17.720

cross-claim - motion to strike out or permanently stay – test to apply - want of prosecution insufficient
Seitz-Filter-Werke Theo & Geo Seitz v Francesco Cinzano (1997) 15.423

cross-claim - onus on cross-claimant to prove crossdefendant is tortfeasor
Wallaby Grip (BAE) Pty Ltd v Macleay Area Health (CA) (1998) 17.355

cross-claim - whether breach of contract by supplier of asbestos - implied terms - implied by common law - implied by statute
Rolls Royce Industrial Power v James Hardie & Co (No. 4) (1999) 18.653

cross-claims - multiple tortfeasors - defendant must be liable “in respect of” same damage to ground a cross-claim against another defendant for contribution
Francis v Australian Asbestos Insulations Pty Ltd (1998) 16.107
Rolls Royce Industrial Power v James Hardie & Co (No. 2) (1999) 18.389

cross-claims - multiple tortfeasors - liability “in respect of” that damage may be based on contract or a statutory cause of action
Rolls Royce Industrial Power v James Hardie & Co (No. 2) (1999) 18.389

cross-claims against many insurers - alleged only risk of a risk of relevant exposure during one insurer’s risk period - application to dismiss cross-claim
ICI Aust Operations v FAI Workers Comp (NSW) (2001) 21.465

cross-claims for contribution/indemnity against crossdefendants - one cross-claim settled/consent judgment - no merger of claims against others
Babcock Australia Ltd v Eraring Energy (No. 1 (2001) 21.684

declaration sought - that unregistered company was indemnified by named insurer at all material times – test to apply whether to grant declaratory relief
Lederer v Rolls Royce Industrial Power (Pacific) Ltd (1999) 18.51

DI appointed - application by other insurers for leave to appear at hearing and cross-examine plaintiff – leave refused [affirmed]
QBE Insurance Ltd v Bull (CA) (1999) 18.169
TGI Australia Ltd v Bull (1999) 17.652

discovery - verified list of documents alleged to be incomplete - cross-examination of deponent allowed
Bradford v State Rail Authority (NSW) (1992) 8.145

discretion to dispense with time requirement in Supreme Court Rules
Murray v Asbestos Products Pty Ltd (No. 2) (1996) 12.740

fees - allocation fee - power to waive - vested in Registrar of DDT only
O’Brien v Commonwealth (2000) 19.373

interrogatories - guidelines to what is acceptable in the DDT - what is objectionable
Berry v Aultas Pty Ltd (1997) 14.266

interrogatories - proper diligent inquiries required - deponent of affidavit verifying answers must make clear that such enquiries have been made
Thomas v Bradford Insulation Industries Pty Ltd (1993) 9.102

leave to discontinue against some defendants after hearing commenced - discretion to dispense with time requirements under Supreme Court Rules
Murray v Asbestos Products Pty Ltd (No. 2) (1996) 12.740

offer of compromise by plaintiff open for 28 days - dies 4 days later - defendants could have communicated acceptance to Public Trustee/executor within time
Gillett v Amaca Pty Ltd (2002) 23.561

offer of compromise by plaintiff open for 28 days – plaintiff dies - executor as plaintiff 10 months later – offer effective as offer of substituted plaintiff
Gillett v Amaca Pty Ltd (2002) 23.561

parties - company in liquidation defendant - held workers compensation insurance - application for leave to join insurer - dependent on arguable case only
GIO General Ltd v Malathounis (1997) 15.255
O’Connell v Sim-Chem (Australia) Pty Ltd (In Liq) (1997) 15.736

parties - holding and subsidiary companies – holding company not generally liable for acts of its subsidiary -
when corporate veil may be lifted
James Hardie & Co Pty Ltd v Hall (1998) 16.289

pleadings - need not plead foreign law to render claim/crossclaim justiciable - reliance on foreign law may oblige party to plead relevant foreign law
Regie National des Usines Renault SA v Zhang (HCA) (2002) 23.207

procedural irregularity - mistake of law - power to amend or rescind decision - DDT Act, s 13(6)
Murray v Asbestos Products Pty Ltd (No. 2) (1996) 12.740

Qld limitation statute applies in relation to Qld torts litigated in NSW - no Qld Act limiting operation of s 25(3), s 25A, s 25B of DDT Act
James Hardie & Co Pty Ltd v Barry (CA) (2000) 21.150

settlement by some defendants - concurrent tortfeasors - whether operated to discharge liability of other tortfeasors
Boyle v State Rail Authority (NSW) (1997) 14.374

statement of claim - precise terms of statute not needed to attract jurisdiction - sufficient if DDT understands by
claim what is referred to in Act
Anderson v Kaufman (CA) (1991) 7.198

transfer of proceedings - from DDT to QSC - “interests of justice” - unique procedural powers of DDT made possible significant time and costs savings
James Hardie & Co Pty Ltd v Barry (CA) (2000) 21.150

transfer of proceedings - from DDT to QSC - NSWSC has jurisdiction to grant application under cross-vesting scheme - DDT lacks such jurisdiction
James Hardie & Co Pty Ltd v Barry (CA) (2000) 21.150

transfer of proceedings - from DDT to SASC – more appropriate forum regarding “interests of justice” - what
are? - fair balancing of all factors
BHP Pty Co Ltd v Zunic (NSWSC) (2000) 22.92

award for damages based on estimated life expectancy of 6 months - plaintiff dies within 10 days of judgment – not appropriate to reconsider [affirmed]
Browne v Cockatoo Dockyard Pty Ltd (1999) 18.618
Cockatoo Dockyard Pty Ltd v Browne (CA) (2001) 21.544

power not properly exercised unless something basic to the decision clearly falsified by subsequent events
CSR Ltd v Bouwhuis (CA) (1991) 7.223
D’Arcy v CSR Ltd (1997) 14.586

power properly exercised where verdict & judgment entered before counsel had time to agree on Griffiths v Kerkermeyer expenses if considered necessary
Katidis v Meggitt Overseas Ltd (No. 2) (1995) 11.147

recission and amended judgment - recission power discretionary - only exercised if DDT convinced relevant
decision manifestly wrong
Rolls Royce Industrial Power v James Hardie (No. 5) (2000) 19.735

verdict and judgment - final order by Court of Appeal – DDT cannot exercise power to reconsider
D’Arcy v CSR Ltd (1997) 14.586