Arentz v Workers' Compensation (Dust Diseases) Board

District Court

New South Wales

Medium Neutral Citation:	Arentz v Workers' Compensation (Dust Diseases) Board [2014] NSWDC 205
Hearing dates:	6 June 2014
Decision date:	15 August 2014
Before:	Neilson DCJ
Decision:	Appeal allowed
Catchwords:	DAMAGES - STATUTORY COMPENSATION - Double recovery - Plaintiff obtained damages in a common law action against non-employer tortfeasor pursuant to settlement - Pursues claim for statutory benefits from the Dust Diseases Board - Settlement amount did not apportion between economic loss and medical expenses and general damages - Whether statutory claim breaches principle against double compensation
Legislation Cited:	Police Regulation (Superannuation) Act 1906 Victims Compensation Act 1996 Workers Compensation (Dust Diseases) Act 1942
Cases Cited:	Amaca Pty Ltd v King [2011] VSCA 447 CSR Ltd v D'Arcy (1996) 40 NSWLR 721 Downes v Amaca Pty Ltd [2010] NSWCA 76; (2010) 9 DDCR 432 James Hardie and Co Pty Ltd v Newton (1997) 42 NSWLR 729 SAS Trustee Corporation v Budd [2005] NSWCA 366; (2005) 3 DDCR 382
Category:	Principal judgment
Parties:	Leonard David Arentz Workers' Compensation (Dust Diseases) Board
Representation:	Solicitors Maurice Blackburn (Plaintiff) Catherine Morgan (Defendant) Counsel Mr D Russell SC (Plaintiff) Mr J Sheller (Defendant)
File Number(s):	RJ64/14
Publication restriction:	No

Judgment

1. This is an appeal pursuant to section 8I of the Workers Compensation (Dust Diseases) Act 1942 ("the Dust Act"). By letter dated 16 August 2012 the defendant ("DDB") advised the plaintiff that he was not entitled to statutory benefits under the Dust Act. A reason given by the DDB at the time is now formally admitted to have been erroneous. However, the DDB continues to resist the plaintiff's claim. The issue for determination involves the operation of the Dust Act where a worker has obtained damages at common law from a non-employer tortfeasor.

Background

1. The plaintiff was born on 5 January 1949 in Tumbarumba. At the time of the hearing (6 June 2014) he was 65 years old. He attended Tumut Primary School and Tumut High School, leaving school at the age of 15. In 1965 he started work in a sawmill as a timber stacker, which he did for 18 months. In 1967 he commenced another period of approximately 18 months employment at Tumut Brick Works, stacking bricks.

1. His next periods of employment exposed him to asbestos dust and fibres. Pars 3 to 5 of the statement of claim (which are admitted) are:

"3. From on or about 1969 until on or about 1973 (the relevant period), the plaintiff was employed as a domestic painter by Ernie Beveridge at Tumut, in the State of New South Wales.

4. During the relevant period, the plaintiff was also employed as a builder by Royce Lett at Batlow, in the State of New South Wales.

5. Whilst performing work for Ernie Beveridge and Royce Lett during the relevant period, the plaintiff was exposed to, and inhaled, asbestos dust and fibres emanating from asbestos containing materials."

1. Thereafter the plaintiff had a varied and interesting work history. In 1987 he found work…