Dasreef Pty Ltd v Hawchar

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Hayne,Crennan,Kiefel,Bell JJ,Heydon J.
• Judgment Date: 22 June 2011
• Neutral Citation: 2011-0622 HCA B,[2011] HCA 21
• Docket Number: S313/2010
• Court: High Court
• Date: 22 June 2011

[2011] HCA 21

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel And Bell JJ

S313/2010

Dasreef Pty Limited

Appellant

and

Nawaf Hawchar

Respondent

Representation

D F Jackson QC with T G R Parker SC and D T Miller for the appellant (instructed by Moray & Agnew Solicitors)

B M Toomey QC with F Tuscano and M A Kumar for the respondent (instructed by Slater & Gordon Lawyers)

Dasreef Pty Limited v Hawchar

Evidence — Admissibility — Opinion evidence — Section 79(1) of Evidence Act 1995 (NSW) provided that rule excluding evidence of opinion did not apply where ‘a person has specialised knowledge based on the person's training, study or experience’ and person's opinion ‘wholly or substantially based on that knowledge’ — Respondent sued appellant in Dust Diseases Tribunal of New South Wales — Respondent claimed he was negligently exposed to unsafe levels of silica while working for appellant — Witness gave evidence about approximate level of respirable silica to which respondent may have been exposed — Opinion treated as admissible to found calculation of numerical or quantitative level of exposure to respirable silica — Whether opinion admissible for that purpose — Requirements for admissibility.

Procedure — Specialist tribunal — Dust Diseases Tribunal of New South Wales — Ability of judge constituting Tribunal to draw on experience as member of specialist tribunal when making findings of fact — Section 25 of Dust Diseases Tribunal Act 1989 (NSW) required Tribunal to apply rules of evidence — Section 25B provided exception subject to various requirements — Trial judge drew on ‘experience’ that silicosis usually caused by very high levels of silica exposure in concluding that respondent's silicosis caused by exposure to silica — Section 25B neither invoked nor complied with — Whether trial judge entitled to draw on ‘experience’ in making finding of fact.

Procedure — Objection to admissibility of evidence — Evidence taken on voir dire — Trial judge did not rule on objection at conclusion of voir dire — Desirability of ruling on objection to admissibility as soon as possible.

Words and phrases — ‘based on the person's training, study or experience’, ‘basis rule’, ‘opinion rule’, ‘specialised knowledge’, ‘specialist tribunal’, ‘voir dire’, ‘wholly or substantially based on that knowledge’.

Dust Diseases Tribunal Act 1989 (NSW), ss 25, 25B, 32.

Evidence Act 1995 (NSW), ss 55(1), 76(1), 79(1).

Dust Diseases Tribunal Rules (NSW), r 9.

ORDER

Appeal dismissed with costs.

1 French CJ, Gummow, Hayne, Crennan, Kiefel And Bell JJ Nawaf Hawchar, the respondent in this appeal, suffers from silicosis. He worked for the appellant (‘Dasreef’) as a labourer and then as a stonemason for a little over five and a half years between 1999 and 2005. Before he immigrated to Australia in 1996, Mr Hawchar had worked for about a year in a family stonemasonry business in Lebanon. From time to time between 2002 and 2005 he did some private stonemasonry work. In all those undertakings he was exposed to silica dust.

2 In 2004, Mr Hawchar was diagnosed with scleroderma. In May 2006, he was diagnosed with early stage silicosis. In October 2007, he began proceedings against Dasreef in the Dust Diseases Tribunal of New South Wales claiming damages for personal injury: his contracting scleroderma and silicosis. His central allegation was that, while working for Dasreef, he had been exposed to unsafe levels of silica dust. He alleged breach of statutory duty, negligence and breach of contract. The evidence he called at the trial of the proceeding included opinion evidence from several witnesses, among them Dr Kenneth Basden, a chartered chemist, chartered professional engineer, and retired senior lecturer in the School of Chemical Engineering and Industrial Chemistry at the University of New South Wales.

3 At the trial of the proceeding, the Tribunal (Judge Curtis) found 1 that scleroderma is not a dust disease but that, by s 11(4) of the Dust Diseases Tribunal Act 1989 (NSW) (‘the Dust Diseases Tribunal Act’), the Tribunal had jurisdiction to determine Mr Hawchar's claim for provisional damages and further damages on account of his contracting scleroderma as claims ancillary or related to the claims he brought in respect of silicosis. Nevertheless, Mr Hawchar sought and obtained an order, at trial, dismissing his claim for damages for scleroderma. Evidently he took this course in order to preserve entitlements he had under the Workers Compensation Act 1987 (NSW) in respect of his disease of scleroderma. It is not necessary, however, to explore this aspect of the matter any further.

4 In respect of his claim for damages for contracting silicosis the Tribunal found Dasreef 20 in 23 parts responsible for Mr Hawchar's silicosis, the balance of responsibility resting with his work in Lebanon and the work he had done in Australia on his own account. The accuracy of this apportionment of

responsibility was not in issue in the appeal to this Court. The Tribunal entered judgment for Mr Hawchar against Dasreef for damages in an amount of $131,130.43, together with an order pursuant to s 11A of the Dust Diseases Tribunal Act that an award of further damages may be made with respect to certain silica-related diseases.

5 Dasreef appealed to the Court of Appeal of New South Wales against the whole of the orders made by the Dust Diseases Tribunal. The Court of Appeal (Allsop P, Basten and Campbell JJA) allowed 2 Dasreef's appeal in relation to certain questions of costs, remitting those questions to the Tribunal for reconsideration, but otherwise dismissed Dasreef's appeal.

6 When Mr Hawchar was working for Dasreef there was an applicable standard 3 prescribing the maximum permitted exposure to respirable silica. The standard was expressed as a time weighted average (or ‘TWA’) concentration of 0.2 mg/m ³ of air to which a person was exposed over a 40 hour working week.

7 The central question that Dasreef agitated in the Court of Appeal was whether the primary judge had ‘erred in admitting evidence of Dr Basden as to the numerical level of respirable silica dust in [Mr Hawchar's] breathing zone’. Dasreef further alleged that the primary judge had ‘erred in relying on his “experience” as a “specialist tribunal”’. The primary judge had said, in his reasons for judgment, that he could rely on that experience to conclude that Mr Hawchar's silicosis had been caused by exposure to silica dust. Dasreef advanced some other grounds of appeal but they need not be noticed.

8 The Court of Appeal rejected 4 Dasreef's complaints about the admissibility of Dr Basden's evidence and also rejected 5 Dasreef's challenge to the primary judge's ability to rely on his experience as a judge in a specialist court.

9 These reasons will demonstrate that Dr Basden's evidence was not admissible to establish that Mr Hawchar's exposure to silica dust in the course of working for Dasreef was greater than the level prescribed as the maximum permissible level of exposure. To the extent to which Dr Basden expressed an opinion about the numerical or quantitative level (in the sense explained later in these reasons) of respirable silica dust to which Mr Hawchar was exposed in the course of working for Dasreef, his evidence was not ‘wholly or substantially based on’ ‘specialised knowledge based on [his] training, study or experience’ 6. These reasons will further demonstrate that the Court of Appeal was wrong to conclude that the primary judge was ‘permitted’, as he put it 7, ‘to take into account my experience that this disease [silicosis] is usually caused by very high levels of silica exposure’.

10 But despite the wrongful reception of evidence and the primary judge's impermissible reliance on experience as a judge in a specialist court, the Court of Appeal should have dismissed Dasreef's appeal against the primary judge's findings that Dasreef was liable to Mr Hawchar for damages for negligently exposing him to dangerous levels of silica dust. The Court of Appeal should have reached that conclusion because there was no dispute, whether at trial, on appeal to the Court of Appeal, or in this Court, that Mr Hawchar suffers from silicosis or that silicosis is a disease caused only by exposure to silica dust. And there was uncontested evidence at trial from an expert pathologist (Professor Henderson) that, based on the period of latency of Mr Hawchar's disease, Mr Hawchar's exposure to silica had been intense and was attributable to a history of exposure to silica dust over a period of about six years beginning in 1999.

11 To explain the bases for these conclusions, it is necessary to say something first about the course of proceedings in the Dust Diseases Tribunal, next the decision of the primary judge, and then the decision of the Court of Appeal. Against that background it will be necessary to examine s 79(1) of the Evidence Act 1995 (NSW) (‘the Evidence Act’). Finally, it will be necessary to say something about the use by the Dust Diseases Tribunal of evidence given, and opinions formed, in cases other than the case under particular consideration.

The trial — Dr Basden's report

12 The solicitors for Mr Hawchar retained Dr Basden to provide a report addressing three questions:

• ‘i) During the period of Mr Hawchar's employment by [Dasreef], was it reasonably foreseeable that an employee exposed to silica dust could suffer a silica-related injury?

• ii) What procedures could an employer have taken to materially reduce the risk of injury?

• iii) If the employer had carried out these steps as outlined in (ii) above to materially reduce the risk of injury, would [Mr Hawchar's] risk of injury have been minimized?’

To assist Dr Basden in preparing his report, Mr Hawchar's solicitors gave Dr Basden a copy of the statement of claim...