NSW Court of Appeal upholds landmark asbestos judgment
Posted on 11 Mar. 2015
The NSW Court of Appeal today handed down a unanimous decision upholding a landmark judgment that awarded Steven Dunning, a 54 year old Cessnock man with terminal mesothelioma, $2.2 million in damages following exposure to deadly asbestos while working at BHP Billiton’s Newcastle Steelworks.
The original judgment by the Dust Diseases Tribunal of NSW found BHP negligently exposed Mr Dunning to lethal levels of asbestos between 1979 and 1981 when he was a labourer working at the blast furnace. The landmark judgment was the first time BHP had been ordered to pay financial compensation to a former employee of the Newcastle Steelworks who developed incurable mesothelioma and the highest amount of damages awarded by the Tribunal.
The three Appeal Court judges today dismissed BHP's four grounds of appeal and said that it had failed to establish any error of law.
Leading asbestos lawyer Joanne Wade said the NSW Court of Appeal’s decision to uphold the judgment would be welcomed by the Dunning family.
“The court’s decision today to uphold the Tribunal’s judgment is extremely welcome and significant,” Ms Wade said.
“Central to BHP's appeal was that the primary judge had made an error in finding Mr Dunning was exposed to asbestos and in finding that BHP did not issue warnings or education to is employees about the health risk of exposure to asbestos.
“The Court of Appeal today held that the primary judge did not make an error in finding that Mr Dunning was exposed to asbestos fibres from various products that were in use during his employment, and that he did not make an error in his findings concerning the practical alternative measures that were available to BHP, (and which BHP did not take), to reduce the risk of injury to its workers."
Further, BHP's appeal also focused on an argument that the evidence of the General Foreman, John Gillespie, should not have been admitted as evidence.
The Appeal Court confirmed that the trial judge did not make an error in admitting it. Mr Gillespie had extensive knowledge of the activities of the workers in the Blast Furnace Department.
Ms Wade said her client, Mr Dunning, was 19 years old when he went to work for BHP and was now dealing with an incurable and debilitating disease because of BHP’S negligence.
“It was revealed in the trial last year that BHP knew before Mr Dunning started working for them that there was no safe level of asbestos exposure, yet asbestos materials continued to be used at the site until 1985,” Ms Wade said.
“BHP has been fighting this case for nearly five years – pursuing every legal avenue available to them. To have this case now concluded is a relief to the Dunning family.
“We are extremely happy that the original decision has been upheld. Steven Dunning is very sick and the family want to enjoy the limited time they have together.”
Steven Dunning’s wife, Roma, said today’s decision was a relief and would finally allow her family to focus on making the most of the days they have left with Steven.
“We have an immense sense of relief knowing that we can finally put this behind us and focus on what is important – cherishing the time we have left with Steven,” Mrs Dunning said.
“It has been devastating to watch Steven’s health deteriorate, and knowing that he will never recover is beyond heartbreaking.
"We have fought BHP now for five years and are relieved that this is now over and that BHP has been held to account.”
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