McColl JA at 1; Basten JA at 104; Brereton J at 132
DECISION:
1. Appeal allowed; 2. Set aside the judgment in favour of the first respondent as against the appellant; 3. In lieu thereof, give judgment for the first respondent against the appellant in the sum of $29,363.25; 4. Set aside the orders as to costs made on 13 May 2004 and 21 December 2004 and in lieu thereof order; (1) Respondents to pay the appellant’s costs of the hearing on 10 May 2004 on a party-party basis; (2) Appellant, second, third and fourth respondents to pay the first respondent’s costs of the proceedings in the Tribunal and, in the case of the second, third and fourth respondents, on an indemnity basis from 14 May 2004; 5. Respondents to pay the appellant’s costs of the appeal; 6. Grant to each respondent a certificate under the Suitors’ Fund Act 1951 if otherwise entitled
CATCHWORDS:
Dust Diseases - Dust diseases legislation - Dust Diseases Tribunal - Damages for non-economic loss after plaintiff’s death - Plaintiff dies after instituting proceedings in Dust Diseases Tribunal – Estate joins additional defendant after plaintiff’s death – Whether damages for non-economic loss are recoverable against defendant added by amendment after plaintiff’s death - Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(2)(d) — Dust Diseases Tribunal Act 1989 (NSW), s 12B
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Amaca Pty Ltd v Cremer
Sign in free to access the full text
Details
AGLC
Amaca Pty Ltd v Cremer [2006] NSWCA 164
Case
[2006] NSWCA 164
Decision Date
CaseChat Overview and Summary
Amaca Pty Ltd v Cremer concerned an appeal to the New South Wales Court of Appeal regarding the recoverability of damages for non-economic loss in a dust diseases claim after the plaintiff's death. The original plaintiff instituted proceedings in the Dust Diseases Tribunal. Following the plaintiff's death, his estate joined Amaca Pty Ltd as an additional defendant. The central dispute revolved around whether the estate could recover damages for non-economic loss against Amaca, which was added as a defendant after the plaintiff's passing.
The primary legal issue before the Court of Appeal was the interpretation and application of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) in the context of proceedings in the Dust Diseases Tribunal. Specifically, the court had to determine whether damages for non-economic loss, which are generally not recoverable by a deceased person's estate under that section, could be recovered against a defendant who was added to the proceedings after the plaintiff's death, despite the limitations imposed by the Act.
The Court of Appeal, with McColl JA, Basten JA, and Brereton J presiding, reasoned that section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) expressly excluded the recovery of damages for non-economic loss by the estate of a deceased person. The court held that this exclusion applied regardless of whether the defendant was a party to the proceedings at the time of the plaintiff's death or was joined subsequently. Therefore, the estate was not entitled to recover damages for non-economic loss against Amaca Pty Ltd. The appeal was allowed, the judgment in favour of the first respondent (the estate) against the appellant (Amaca Pty Ltd) was set aside, and judgment was entered for the first respondent against the appellant in a reduced sum, reflecting only economic loss. Orders regarding costs were also varied.
Orders
Orders of the court
1. Appeal allowed; 2. Set aside the judgment in favour of the first respondent as against the appellant; 3. In lieu thereof, give judgment for the first respondent against the appellant in the sum of $29,363.25; 4. Set aside the orders as to costs made on 13 May 2004 and 21 December 2004 and in lieu thereof order; (1) Respondents to pay the appellant's costs of the hearing on 10 May 2004 on a party-party basis; (2) Appellant, second, third and fourth respondents to pay the first respondent's costs of the proceedings in the Tribunal and, in the case of the second, third and fourth respondents, on an indemnity basis from 14 May 2004; 5. Respondents to pay the appellant's costs of the appeal; 6. Grant to each respondent a certificate under the Suitors' Fund Act 1951 if otherwise entitled