Amaca Pty. Limited v Banton

[2007] NSWCA 336

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Amaca Pty. Limited v. Banton [2007]  NSWCA 336

FILE NUMBER(S):
40798/07

HEARING DATE(S):               20 November 2007

EX TEMPORE DATE:          20 November 2007

PARTIES:
Amaca Pty. Limited - claimant
Bernard D. Banton - opponent

JUDGMENT OF:       Hodgson JA Santow JA Tobias JA   

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S):          DDT7225/07

LOWER COURT JUDICIAL OFFICER:     O'Meally P

LOWER COURT DATE OF DECISION:    15 November 2007

COUNSEL:
Mr. D.L. Williams SC with Mr. J.C. Sheller for claimant
Mr. J.T. Rush QC with Mr. B.F. Quinn for opponent

SOLICITORS:
Ellison Tillyard Callanan, Sydney for claimant
Turner Freeman, Parramatta for opponent

CATCHWORDS:
DAMAGES
DUST DISEASES - Provisional damages and further damages under s.11A of the Dust Diseases Tribunal Act 1989 and rule 5 of the Dust Diseases Tribunal Rules - Whether exemplary damages may be sought as further damages.

LEGISLATION CITED:
Dust Diseases Tribunal Act (NSW) S.11A
Dust Diseases Tribunal Rules, r.5

CASES CITED:
Amaca Pty. Limited v. Cremer [2006] NSWCA 164, 66 NSWLR 400
Chen v. Karandonis [2002] NSWCA 412

DECISION:
Application for leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40798/07
DDT 7255/07

HODGSON JA
SANTOW JA
TOBIAS JA

Tuesday 20 November 2007

AMACA PTY. LIMITED V. BANTON

Judgment
On Application for Leave to Appeal

1. HODGSON JA:  On 15 November 2007, O’Meally P dealt with a Notice of Motion brought by the claimant which sought an order that the opponent’s claim for exemplary and aggravated damages be struck out, and an order for the listing for separate determination whether the opponent was entitled to claim exemplary and aggravated damages.  His orders were that this Notice of Motion be dismissed and that the claimant pay the opponent’s costs of the Notice of Motion. 

2. The claimant seeks leave to appeal from those orders, but in relation to exemplary damages only.  The orders concern a case, the hearing of which is to commence tomorrow, brought by the opponent who is now gravely ill.  It is therefore important that the court gives its decision promptly.

3. Although the Notice of Motion sought the determination of a separate question, the primary judge did not make such an order but merely dismissed the Notice of Motion.  In my opinion the claimant has not made out a case for leave to be granted to appeal from that order, and I will propose that the application for leave to appeal be dismissed.  However, there are respects in which I do not agree with all the primary judge’s reasons, and I think it appropriate to set these out briefly in the reasons I give.  However, because these are difficult and complex issues, I do not intend what I say to preclude further consideration of these questions by the Court of Appeal if an appeal should be brought after the conclusion of the case.

4. The case concerns the construction and effect of s.11A of the Dust Diseases Tribunal Act 1989 and rule 5 of the Dust Diseases Tribunal Rules, which are as follows:

   Section 11A         Award of provisional damages

   (1)          This section applies to proceedings of the kind referred to in section 11 (1) that are brought after the commencement of this section and in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the person who is suffering from the dust-related condition in respect of which the proceedings are brought (the injured person) will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition.

   (2)          The Tribunal may, in accordance with the rules:

   (a)award damages assessed on the assumption that the injured person will not develop another dust-related condition, and

   (b)award further damages at a future date if the injured person does develop another dust-related condition.

   Rule 5    Provisional damages

   (1) This rule applies to proceedings which the Tribunal is satisfied are proceedings to which section 11A of the Act applies.

   (2)          In this rule:

   further damages means damages as referred to in section 11A (2) (b) of the Act.
   provisional damages means damages as referred to in section 11A (2) (a) of the Act.

   (3)          The Tribunal may, subject to this rule, award provisional damages in proceedings, on such terms as the Tribunal thinks just, and give judgment accordingly, if the plaintiff has pleaded a claim for provisional damages in the proceedings.

   (4)          An order for an award of provisional damages must specify the dust-related condition in respect of which an award of further damages may be made.

   (5)          An order for an award of provisional damages may be made in respect of more than one dust-related condition.

   (6)          For the purposes of subrule (3), a plaintiff has not pleaded a claim for provisional damages unless the statement of claim in the proceedings specifies the dust-related condition in respect of which the plaintiff claims provisional damages and the other dust-related condition in respect of which the plaintiff seeks an order that further damages may be claimed.

   (7)          Where in proceedings the plaintiff has pleaded a claim for provisional damages and a defendant makes an offer of compromise, the offer may be expressed to be an offer to agree to the making of an award of provisional damages and an offer as to the amount of those damages, and where the plaintiff accepts an offer so expressed the plaintiff must as soon as practicable apply to the Tribunal for an order in accordance with subrule (4).

   (8)          Where the Tribunal has made an award of provisional damages in proceedings and the plaintiff seeks to claim further damages, the following provisions apply:

   (a)the application must be made by notice of motion served, at least 7 days before the day on which it is returnable, on each defendant in respect of the claim, and if that defendant is to the plaintiff’s knowledge insured in respect of the claim, on the insurer,

   (b)on the hearing of the application the Tribunal must give such directions as may be appropriate for the future conduct of the proceedings, including, but not limited to, the joinder of parties, the disclosure of medical and other expert reports, and the place and date of the hearing of the application for further damages,

   (c)only one application for further damages may be made in respect of each dust-related condition specified in the order for the award of provisional damages, and

   (d)where the Tribunal awards further damages and awards interest in respect of those damages or any part of them, that interest shall, unless the Tribunal otherwise orders, relate only to the period, or part of the period, between the date of the plaintiff’s notice given under paragraph (a) and the date of the award.

5. The opponent brought proceedings against the claimant in 1999.  Paragraph 8 of his Statement of Claim in those proceedings was as follows:

   8.            AND THE PLAINTIFF CLAIMS:

   (a)Provisional damages pursuant to Section 11A of the Dust Diseases Tribunal Act, 1989 as amended for the condition of asbestos related pleural disease and asbestosis.

   (b)Interest thereon pursuant to Section 94 of the Supreme Court Act;

   (c)Aggravated and exemplary damages full particulars of which will be supplied prior to trial.

   (d)Costs.

   (e)The Plaintiff will seek an order pursuant to Section 11A of the Dust Diseases Tribunal Act, 1989 as amended that the Plaintiff may claim further damages should the Plaintiff develop any of the following conditions:

   (i)           mesothelioma

   (ii)          asbestos induced carcinoma

   (iii)         lung cancer.

6. Terms of Settlement were signed on 26 July 2000; and para 1 of those Terms of Settlement was as follows:

   1.Verdict and Judgment for the Plaintiff as against the Defendant in the sum of $800,000.00 in respect of the Plaintiff's claim for provisional damages as particularised in paragraph 8(a) of the Statement of Claim filed on 16 November 1999. Said verdict and judgment is to include the Plaintiffs claim for costs.

7. Orders were made on the same day as follows:

   1.That the Defendant pay to the Plaintiff the sum of $800,000.00 in respect of the Plaintiff's claim for Provisional Damages under Section 8(a) of the Dust Diseases Tribunal Act and as particularised in paragraph 13 of the Further Amended Statement of Claim.

   2.The dust related conditions in respect of which an award of further damages may be made are:

   (a)          Lung cancer;
   (b)          Mesothelioma;
   (c)          Asbestos induced carcinoma.

8. In 2007 the opponent commenced proceedings claiming further damages pursuant to s.11A of the Dust Diseases Tribunal Act, on the basis that since 2000 he has developed another dust-related condition, namely mesothelioma. The opponent also claims aggravated and exemplary damages. He has claimed these further damages by a Further Statement of Claim. The rules provide that this should be done by Notice of Motion, but the claimant has taken and will take no point on that ground.

9. Before the primary judge and before this court the claimant has contended that any claim for exemplary damages had to be and was included in the claim for provisional damages under s.11A(2)(a), and was finally determined by the judgment given in 2000. The claimant submits that further damages under s.11A(2)(b) could not include exemplary damages.

10. My view is that the claim for provisional damages did include aggravated and exemplary damages, and also that the claim for provisional damages including aggravated and exemplary damages did merge in the judgment. 

11. I should note submissions to the contrary made by Mr Rush QC for the opponent. He submitted that the orders made in 2000 related only to claims made in para 8(a) of the original Statement of Claim, and did not extend to claims made in para 8(c) of that statement of claim which referred to aggravated and exemplary damages. He submitted also that there was no warrant to read the legislation in such a way as to preclude the course of obtaining judgment for provisional damages which excluded aggravated and exemplary damages, leaving it open to include damages of that nature in the claim for further damages under s.11A(2)(b); and he referred to the case of Amaca Pty Limited v Cremer [2006] NSWCA 164, 66 NSWLR 400, particularly at paras [49] and [50], for the proposition that the legislation should be construed so as to give the claimant the most complete remedy consistent with the language.

12. I accept Mr Rush’s submission that the reference to “8(a)” that occurs in the judgment is to be read as a reference to para 8(a) of the Statement of Claim, construing the judgment along with the terms of settlement. However, the claim in para 8(a) of the statement of claim was a claim for provisional damages, and in my opinion provisional damages, as the expression is used in the Dust Diseases Tribunal Rules, does extend to any aggravated or exemplary damages that may be sought and awarded in relation to the conditions in respect of which damages are sought. I do not read the reference to para 8(a) as disclosing an intention that aggravated and exemplary damages, which are separately referred to in para 8(c), be excluded.

13. In any event my view is that s.11A of the Dust Diseases Tribunal Act does not permit the fragmentation of claims to any greater extent than specifically provided for in the section; so that, if there are to be aggravated or exemplary damages sought in connection with damages in respect of the original dust-related conditions, they must be sought in the claim under s.11A(2)(a), and dealt with in the disposition of that claim.

14. However, although I do not accept that particular submission of Mr Rush, my view is that, as regards aggravated and exemplary damages, what merged into the judgment could not extend beyond aggravated and exemplary damages so far as they related to conditions other than mesothelioma, and conduct occurring up to the time of judgment. 

15. Mr William SC for the claimant submitted that the opponent was precluded from seeking further exemplary damages for three reasons. First he submitted, as a matter of construction, further damages under s.11A(2)(b) could not include exemplary damages. Second, he submitted that exemplary damages have regard only to the quality of a defendant’s conduct, not to the consequences to the plaintiff, so that the occurrence of further damage to the opponent by reason of the development of mesothelioma could not justify the award of additional exemplary damages. Third, he submitted that exemplary damages are awarded only in respect of the wrongful conduct of a defendant that actually caused injury to the plaintiff, and not in respect of later conduct such as conduct in connection with a plaintiff’s claim for compensation; and he submitted that in that respect, as well as in others, exemplary damages are different from aggravated damages.

16. My view is that there is no reason why “further damages” under s.11A(2)(b) cannot include exemplary damages. As to the second submission, I would not wish to rule out the possibility that the subsequent occurrence of greater damage might justify greater exemplary damages. It is true that the award of exemplary damages focuses on the conduct of the defendant, and is not in order to compensate the plaintiff. However, even in criminal law the seriousness of consequences can affect the penalty, as for example in the case of an accident caused by driving under the influence of alcohol. The same wrongful conduct might in one case cause the death of a person and in another case not cause the death of a person, and different penalties are considered appropriate in those two cases. I would not rule out the possibility that a similar approach might be taken to exemplary damages. On the third matter, the decision of this court in Chen v Karandonis [2002] NSWCA 412 is to the contrary of Mr William’s submission, and in my opinion it would not be appropriate in this application to reconsider the correctness of that decision.

17. So for those reasons I do not think it appropriate to grant leave to appeal from the decision of the primary judge. 

18. It may be convenient if I encapsulate the views on some of the aspects I have dealt with in the reasons. Firstly, as a matter of construction, in my view exemplary damages may, in appropriate cases, be awarded both under s.11A(2)(a) and s.11A(2)(b) of the Dust Diseases Tribunal Act.

19. Secondly, the consent judgment in favour of the opponent dated 26 July 2000 precludes the opponent from recovering exemplary damages in respect of conduct of the claimant now particularised in paras (a) to (aaaf) of its amended particulars, except possibly to the extent that exemplary damages may be increased by reason of the greater injury caused to the opponent by reason of the development of mesothelioma.  However, those particulars and evidence supporting them may be relied by the opponent for the purpose of setting the context in which any conduct of the claimant after 26 July 2000 is to be considered in relation to a claim for exemplary damages in respect of that later conduct. 

20. As decided in the case of Chen, conduct of the claimant after 26 July may be an appropriate basis for the award of exemplary damages, provided there is a sufficient connection between this later conduct and the claim of the opponent based on the earlier breaches by the claimant.  Conduct occurring before 26 July may possibly give rise to an award of further exemplary damages insofar as the development of the opponent’s condition of mesothelioma may justify a further award. 

21. In considering all these matters of exemplary damages, and also aggravated damages, care must be taken to avoid double counting:  that is, to avoid double counting as between aggravated damages and exemplary damages, and to avoid double counting in respect of the claim for exemplary damages that has merged in the judgment and any claim for additional exemplary damages. 

22. I would finally make the comment that nothing I have said should be taken as expressing any view as to whether any award for exemplary damages should be made.  But as I have said, for the reasons that I have given, my view is that the application for leave to appeal should be dismissed with costs.

23. SANTOW JA: I agree. I would wish to add only this. It would be hardly consistent with the principles of statutory interpretation for the same word “damages” when used in two succeeding subparagraphs of s11A(2) of the Dust Diseases Tribunal Act 1989 (the Act) to have a different meaning; that is to say, in its first subparagraph to include both exemplary damages and aggravated damages whilst in the second subparagraph being here, s.11A(2)(b), to exclude both those categories of damage so damages were to be limited to compensatory damages only. Clearly, as Hodgson JA has observed, insofar as damages under s.11A(2)(a) have been the subject of a judgment, in this case a consent judgment, they are necessarily “provisional damages” (as defined in rule 5 of the Dust Diseases Tribunal Rules). To the extent those damages have merged in that judgment, they could not in relation to the asbestosis claim be recovered under s.11A(2)(b).

24. TOBIAS JA:  I agree with the order proposed by the presiding judge and with his reasons as well as with the additional remarks of Justice Santow.

25. HODGSON JA:  The order of the court is:  application for leave to appeal dismissed with costs.

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LAST UPDATED:     23 November 2007