Read v Comcare [2020] NSWDDT 6

Read v Comcare [2020] NSWDDT 6

At the time the plaintiff's claim was made in 2019, there was no liability of the Commonwealth or a Commonwealth authority in existence under the ARC Act, as all potential and contingent liabilities arising from breaches of duty by the Commonwealth, ACTEA, and ACTEWA had, by operation of successive statutory transfers, already vested in Icon Water Limited. The ARC Act did not apply to make Comcare liable, and Icon Water Limited was found liable for the alleged breaches of duty of care.

Parties
Plaintiff: Pauline Edith Read; First Defendant: Comcare; Second Defendant: Icon Water Limited
Jurisdiction
Australia
Judgment Date
16 July 2020
Procedural Posture
Procedural and Other Rulings / Determination of a Separate Question Regarding Liability Under Uniform Civil Procedure Rules 2005 (nsw) R 28.2
Outcome
Icon Water Limited is liable to the plaintiff for the breaches of duty of care. Comcare is not liable. Icon Water Limited is to pay the plaintiff's costs and the costs of the first defendant relating to the separate question.
Legal Topics
Asbestos Related Claims, Breach of Duty of Care, Transfer of Liability, Successor Corporate Liability, Statutory Corporations, Interpretation of Federal Transfer Statutes, Personal Injury (mesothelioma)
Tort Law Statutory Interpretation Asbestos Related Claims Breach of Duty of Care Transfer of Liability Successor Corporate Liability Statutory Corporations Interpretation of Federal Transfer Statutes +1 more

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Parties

Pauline Edith Read

Plaintiff

Comcare

First Defendant

Icon Water Limited

Second Defendant

Procedural Posture

Procedural and Other Rulings / Determination of a Separate Question Regarding Liability Under Uniform Civil Procedure Rules 2005 (nsw) R 28.2

Legal Issues

  1. 1 Whether, at the time of the plaintiff's claim, there was a liability of the Commonwealth or a Commonwealth authority such that Comcare was liable under the Asbestos Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth) (ARC Act)
  2. 2 Whether the ACT Electricity Authority (ACTEA) or the ACT Electricity and Water Authority (ACTEWA) were Commonwealth authorities at the relevant times
  3. 3 Whether liabilities were transferred from the Commonwealth to ACTEA, then to ACTEWA, and finally to Icon Water

Ratio Decidendi

At the time the plaintiff's claim was made in 2019, there was no liability of the Commonwealth or a Commonwealth authority in existence under the ARC Act, as all potential and contingent liabilities arising from breaches of duty by the Commonwealth, ACTEA, and ACTEWA had, by operation of successive statutory transfers, already vested in Icon Water Limited. The ARC Act did not apply to make Comcare liable, and Icon Water Limited was found liable for the alleged breaches of duty of care.

Court Disposition

Icon Water Limited is liable to the plaintiff for the breaches of duty of care. Comcare is not liable. Icon Water Limited is to pay the plaintiff's costs and the costs of the first defendant relating to the separate question.

Orders

  • Determine pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005 that the second defendant Icon Water Limited is liable to the plaintiff in respect of the breaches of duty of care alleged by the plaintiff in the Second Further Amended Statement of Claim filed on 5 November 2019.
  • Order the second defendant to pay the costs of the plaintiff and the costs of the first defendant of the determination of the separate question.