Date of Order: 11 May 2018 Date of Publication of Reasons: 13 June 2018
A8/2018 & A7/2018
ORDER
Matter No A8/2018
1.Appeal allowed in part, on the ground (Ground 3(a)) that the Full Court of the Supreme Court of South Australia erred in assessing damages by including an allowance for the loss of expectation of receiving an age pension during the "lost years".
2.Set aside order 3 of the Full Court made on 30 October 2017 and 20 November 2017 and, in its place, order that judgment be entered in an amount to be determined in accordance with Order 1.
3.Appeal otherwise dismissed.
4.The appellant pay the respondent's costs of the appeal.
Matter No A7/2018
1.Appeal dismissed.
2.The respondent pay the appellant's costs of the appeal.
On appeal from the Supreme Court of South Australia
Representation
J T Gleeson SC with D F Villa and C G Winnett for the appellant in A8/2018 and the respondent in A7/2018 (instructed by Holman Webb)
D F Jackson QC with S Tzouganatos for the respondent in A8/2018 and the appellant in A7/2018 (instructed by Turner Freeman Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Amaca Pty Limited v Latz Latz v Amaca Pty Limited
Negligence – Personal injury – Damages – Assessment of present value of future loss – Where claimant diagnosed with terminal malignant mesothelioma post‑retirement – Where claimant's life expectancy reduced – Where claimant receiving superannuation pension under Superannuation Act1988 (SA) and age pension under Social Security Act1991 (Cth) – Whether superannuation pension entitlement which would have been received during remainder of pre‑illness life expectancy compensable loss – Whether age pension entitlement which would have been received during remainder of pre-illness life expectancy compensable loss – Whether reversionary pension payable under s 38(1)(a) of Superannuation Act to partner on claimant's death should be deducted from damages award.
Words and phrases – "age pension", "capital asset", "compensable loss", "compensatory principle", "loss of earning capacity", "lost years", "net present value", "offsetting or collateral benefit", "pension", "pre-illness life expectancy", "reversionary pension", "superannuation pension".
KIEFEL CJ AND KEANE J. On 11 May 2018, the Court, by majority, made orders disposing of these appeals. We respectfully differ from the majority in that regard. We would have allowed Amaca's appeal and dismissed Mr Latz' appeal. We now set out our reasons.
Mr Anthony Latz is a retiree who is dying from malignant mesothelioma, caused by the negligence…
Grounds of appeal
[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.
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Details
AGLC
Amaca Pty Ltd v Latz [2018] HCA 22
Case
[2018] HCA 22
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Amaca Pty Ltd concerning damages awarded to Mr Latz, who had been diagnosed with terminal malignant mesothelioma. Mr Latz had retired and was receiving both a superannuation pension and an age pension. He sued Amaca, the manufacturer of asbestos fencing he had installed decades earlier, for negligence. Amaca did not dispute liability.
The central legal issues before the High Court were whether Mr Latz's entitlement to receive his superannuation pension and age pension during the period of his "lost years" (the years lost due to his reduced life expectancy) constituted a compensable economic loss. The court also had to consider whether a reversionary pension payable to Mr Latz's partner upon his death should be deducted from the damages award.
The High Court allowed the appeal in part, finding that the Full Court of the Supreme Court of South Australia had erred in including an allowance for the loss of the expectation of receiving an age pension during the "lost years". The High Court reasoned that the common law does not recognise the loss of the opportunity to enjoy financial resources due to premature death as a distinct form of economic loss. To do so would depart from principles of equality before the law by valuing such a loss differently based on the source of the plaintiff's financial resources. The court found no satisfactory basis for such a departure.
Consequently, the High Court set aside the order of the Full Court regarding the assessment of damages and ordered that judgment be entered in an amount to be determined in accordance with the revised assessment. The appeal was otherwise dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
Matter No A8/2018
1. Appeal allowed in part, on the ground (Ground 3(a)) that the Full Court of the Supreme Court of South Australia erred in assessing damages by including an allowance for the loss of expectation of receiving an age pension during the "lost years".
2. Set aside order 3 of the Full Court made on 30 October 2017 and 20 November 2017 and, in its place, order that judgment be entered in an amount to be determined in accordance with Order 1.
3. Appeal otherwise dismissed.
4. The appellant pay the respondent's costs of the appeal.
Matter No A7/2018
1. Appeal dismissed.
2. The respondent pay the appellant's costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ
KEANE J
(dissent)
BELL, GAGELER, NETTLE, GORDON AND EDELMAN JJ
(dissent)
The failure to come to grips with these issues highlights the difficulty which confronts the invitation to expand the liability for economic loss for personal injury beyond the consequences of the loss of earning capacity as that concept is currently understood. In the absence of satisfactory answers to these issues, this Court has no sufficient ground to accept that invitation because it is left unable to resolve the uncertainty in the law that would be engendered as a result.Conclusion As Mr Latz' counsel put it on his behalf, Mr Latz will lose the capacity to receive the payments during those years lost to him because of the consequences of his injury. Such a claim might be seen as a claim for the loss of the amenities of life, for which only a modest conventional amount may be awarded under the first head of compensable loss identified in CSR Ltd v Eddy, but Mr Latz' claim was not advanced on that basis. One may sympathise deeply with Mr Latz' plight, but it cannot be denied that the liability which the decision of the majority of the Full Court upheld is novel. That decision cannot be supported as an incremental extension of previous decisions in this country. True it is that cases of mesothelioma present an unusual challenge because of the potentially long intervals between infection and the onset of serious disability. But the possibility, or even the reality, of such long intervals does not alter the nature of the loss when it has been sustained and when a court is required to determine whether, and on what basis, that loss is compensable. The common law of this country has not accepted that the loss of the opportunity to enjoy one's financial resources by reason of premature death is a form of economic loss compensable as such. To accept that proposition now would be to accept that the loss of the capacity to enjoy one's financial resources may be given a different value depending upon the value of the resources available to the plaintiff from whatever sources those resources may have been derived. That would be a departure from a position grounded in notions of equality before the law. A satisfactory basis for that departure has not been demonstrated. Mr Latz is 71 years old. In October 2016, Mr Latz was diagnosed with terminal malignant mesothelioma. At that time, Mr Latz had retired from the public service and was receiving a superannuation pension entitlement of $51,162 per annum under Pt 5 of the Superannuation Act 1988 (SA) ("the superannuation pension") and an age pension entitlement of $5,106 per annum under Pt 2.2 of the Social Security Act 1991 (Cth) ("the age pension"). In October 2016, Mr Latz commenced proceedings against Amaca Pty Limited (under NSW administered winding up) ("Amaca"), the manufacturer of asbestos fencing he had cut and installed some 40 years earlier. Amaca did not dispute liability on appeal to the Full Court of the Supreme Court of South Australia, or before this Court. Mr Latz contended that, but for the negligence of Amaca, he would have continued to receive both the superannuation pension and the age pension for the remainder of his pre-illness life expectancy – around a further 16 years beyond his post-illness life expectancy[87]. [87]The Full Court observed that the average life expectancy of a 70 year old male was around 16.71 years, whereas after developing mesothelioma Mr Latz's life expectancy was unlikely to extend beyond 31 October 2017. Accordingly, the Full Court calculated the period of lost superannuation to be 16.21 years (the period of his pre‑illness life expectancy less the period of his post-illness life expectancy). The approximation adopted by the Full Court will be used in these reasons.