Dasreef Pty Ltd v Hawchar [2011] HCA 21

I refer you to the summary of this decision, which concerned whether the “specialist” nature of the Dust Diseases Tribunal (DDT) allowed the primary judge “to take into account [his] experience that this disease [silicosis] is usually caused by very high levels of silica exposure“, when the nature of the expert evidence did not satisfy s.79(1) of the Evidence Act 1995 (NSW). After examining these issues in detail the High Court dismissed that the DDT’s specialist nature was to be exercised in this instance, because none of the “exceptions or qualifications” in section 25B of the Dust Diseases Tribunal Act  were engaged. Nevertheless the High Court dismissed the appeal and found for the plaintiff/respondent and concluded there was other sufficient evidence:

[49.] …there was undisputed expert evidence that Mr Hawchar was suffering silicosis, that the short latency of the disease suggested that Mr Hawchar’s silica exposure had been intense and that the silicosis was to be attributed to a history of exposure to silica dust over a period of about six years beginning in 1999, coupled with the evidence of readily available means of avoiding injury, the Court of Appeal should have concluded that Dasreef’s appeal against the finding that it was liable to Mr Hawchar be dismissed. This Court should now make the orders which the Court of Appeal should have made. That is to be achieved in this case by dismissing Dasreef’s appeal to this Court, with costs.

 

Brisbane Barrister – David Cormack

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