Amaca Pty Ltd v Tullipan [2014] NSWCA 269

Amaca Pty Ltd v Tullipan [2014] NSWCA 269

No error in point of law was established as to the concession said to be made by Amaca’s experts; the trial judge was entitled to find on the balance of probabilities that asbestosis was the cause of Mr Tullipan’s condition, relying on longevity and expert evidence. Any error as to the degree or timing of concession was not material. General damages awarded were not demonstrated to be outside a sound discretionary range or so disproportionate as to amount to legal error.

Parties
Appellant/applicant: Amaca Pty Ltd (Under NSW Administered Winding Up); Respondent/second Respondent: David Tullipan; First Respondent (in CA 2014/197925): Dust Diseases Tribunal of NSW
Jurisdiction
Australia
Judgment Date
15 August 2014
Procedural Posture
Appeal and Judicial Review / Judgment After Appeal and Review (post Hearing, Orders Made)
Outcome
Appeal and summons dismissed
Legal Topics
Negligence, Causation, General Damages, Appeal on Point of Law, Procedural Fairness, Medical Evidence
Tort Damages Civil Procedure Negligence Causation General Damages Appeal on Point of Law Procedural Fairness +1 more

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Parties

Amaca Pty Ltd (Under NSW Administered Winding Up)

Appellant/applicant

David Tullipan

Respondent/second Respondent

Dust Diseases Tribunal of NSW

First Respondent (in CA 2014/197925)

Procedural Posture

Appeal and Judicial Review / Judgment After Appeal and Review (post Hearing, Orders Made)

Legal Issues

  1. 1 Whether the trial judge erred in point of law in finding that Amaca's experts had conceded the diagnosis must be asbestosis if the disease dated from at least 2000.
  2. 2 Whether any error by the trial judge as to expert concessions or findings of fact amounted to an error in point of law under s 32 of the Dust Diseases Tribunal Act 1989 (NSW).
  3. 3 Whether the award for general damages was so disproportionate as to demonstrate error of law.

Ratio Decidendi

No error in point of law was established as to the concession said to be made by Amaca’s experts; the trial judge was entitled to find on the balance of probabilities that asbestosis was the cause of Mr Tullipan’s condition, relying on longevity and expert evidence. Any error as to the degree or timing of concession was not material. General damages awarded were not demonstrated to be outside a sound discretionary range or so disproportionate as to amount to legal error.

Court Disposition

Appeal and summons dismissed

Orders

  • Dismiss the summons filed by Amaca Pty Ltd on 4 July 2014 with costs to be costs in the appeal.
  • Grant Amaca Pty Ltd leave to file an amended notice of appeal as contained in the Orange Appeal Book at pp 34-39.