Comcare v Howard Smith & Patrick Travel P/L [2013] NSWDDT 6

Comcare v Howard Smith & Patrick Travel P/L [2013] NSWDDT 6

Mr Lindsay was employed by the defendant's predecessor and was exposed to asbestos in ship holds, on steam winches and from contaminated clothing while working at Port Kembla. The defendant knew of the work and exposure risks, failed to provide adequate protection, masks or warnings, and would have been liable to Mr Lindsay as a tortfeasor. Comcare's predecessors had sufficient control of stevedoring operations at Port Kembla, actual knowledge of asbestos hazards, and owed and breached a duty of care to Mr Lindsay because he worked in close proximity to waterside workers. Comcare acted responsibly in settling Mr Lindsay's claim, and the defendant as employer should bear the majority...

Jurisdiction
Australia
Judgment Date
21 June 2013
Procedural Posture
Dust Diseases Contribution Claim by Alleged Joint Tortfeasor Following Settlement of Mesothelioma Proceedings / Principal Judgment After Hearing
Outcome
The defendant was found liable to contribute as a joint tortfeasor; the defendant as employer was to bear 75% of the verdict sum after deduction of the amount paid by a later employer. Costs were reserved for further hearing.
Legal Topics
['mesothelioma' 'asbestos Exposure' 'employment History' 'duty of Care' 'foreseeability of Injury' 'breach of Duty' 'joint Tortfeasor Contribution' 'proceedings Following Settlement']
['dust Diseases' 'negligence' 'tort' 'practice and Procedure'] ['mesothelioma' 'asbestos Exposure' 'employment History' 'duty of Care' 'foreseeability of Injury' 'breach of Duty' 'joint Tortfeasor Contribution' 'proceedings Following Settlement']

Case Brief

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Procedural Posture

Dust Diseases Contribution Claim by Alleged Joint Tortfeasor Following Settlement of Mesothelioma Proceedings / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the late Mr Lindsay was employed by the defendant or its predecessor at all material times.' 'Whether the defendant was a tortfeasor liable to Mr Lindsay for negligent exposure to asbestos.' 'Whether Comcare, as successor to the Australian Stevedoring Industry Board and related authorities, was liable to Mr Lindsay as a tortfeasor.' "Whether the settlement of Mr Lindsay's earlier claim for $350,000 inclusive of costs was reasonable." 'What contribution the defendant should make to the settled verdict sum.']

Ratio Decidendi

Mr Lindsay was employed by the defendant's predecessor and was exposed to asbestos in ship holds, on steam winches and from contaminated clothing while working at Port Kembla. The defendant knew of the work and exposure risks, failed to provide adequate protection, masks or warnings, and would have been liable to Mr Lindsay as a tortfeasor. Comcare's predecessors had sufficient control of stevedoring operations at Port Kembla, actual knowledge of asbestos hazards, and owed and breached a duty of care to Mr Lindsay because he worked in close proximity to waterside workers. Comcare acted responsibly in settling Mr Lindsay's claim, and the defendant as employer should bear the majority...

Court Disposition

The defendant was found liable to contribute as a joint tortfeasor; the defendant as employer was to bear 75% of the verdict sum after deduction of the amount paid by a later employer. Costs were reserved for further hearing.

Orders

  • ['The defendant, as employer of Mr Lindsay, should pay 75% of the verdict sum after deduction of $14,875, the deducted sum being $335,125.' 'The parties are to be heard on costs.']