Fishburn v Electricity Commission of New South Wales & Anor [1999] NSWCA 401

Fishburn v Electricity Commission of New South Wales & Anor [1999] NSWCA 401

The appeal failed because the appellant did not establish any error of law within the limited appeal right. Although the trial judge did not expressly determine whether the appellant had diffuse pleural thickening, he did determine that the appellant had not proved undue breathlessness, which was necessary to show pleural thickening sufficient to cause disability. That factual finding was open on the evidence and was not appellable as a point of law. The complaint about unfairness in the lung function test finding was also not made out because the issue had been raised before and during the trial.

Jurisdiction
Australia
Judgment Date
28 October 1999
Procedural Posture
Appeal From Dust Diseases Tribunal Judgment in a Dust Disease Personal Injury Claim / Court of Appeal Judgment on Appeal Limited to Point of Law
Outcome
Appeal dismissed with costs.
Legal Topics
['right of Appeal' 'questions of Law' 'asbestos Exposure' 'asbestosis' 'pleural Plaques' 'diffuse Pleural Thickening' 'natural Justice' 'rule in Brown V Dunne']
['dust Diseases' 'personal Injury' 'civil Procedure' 'appellate Jurisdiction'] ['right of Appeal' 'questions of Law' 'asbestos Exposure' 'asbestosis' 'pleural Plaques' 'diffuse Pleural Thickening' 'natural Justice' 'rule in Brown V Dunne']

Case Brief

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Procedural Posture

Appeal From Dust Diseases Tribunal Judgment in a Dust Disease Personal Injury Claim / Court of Appeal Judgment on Appeal Limited to Point of Law

Legal Issues

  1. 1 ['Whether the amended s 32 of the Dust Diseases Tribunal Act limited the appeal to a point of law or a question as to the admission or rejection of evidence.' "Whether the trial judge erred in law by failing to deal with the appellant's case based on asbestos related pleural disease or diffuse pleural thickening." 'Whether the trial judge denied natural justice or breached the rule in Brown v Dunne by finding that the appellant endeavoured to fudge lung function test readings.']

Ratio Decidendi

The appeal failed because the appellant did not establish any error of law within the limited appeal right. Although the trial judge did not expressly determine whether the appellant had diffuse pleural thickening, he did determine that the appellant had not proved undue breathlessness, which was necessary to show pleural thickening sufficient to cause disability. That factual finding was open on the evidence and was not appellable as a point of law. The complaint about unfairness in the lung function test finding was also not made out because the issue had been raised before and during the trial.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']