BI (Contracting) Pty Ltd v Strikwerda

Case [2005] NSWCA 288
CITATION:

BI (CONTRACTING) PTY LTD v Eileen Sylvia STRIKWERDA & ANOR [2005] NSWCA 288
HEARING DATE(S):

10 June 2005
 
JUDGMENT DATE: 


9 September 2005

JUDGMENT OF:

Mason P at 1; Santow JA at 44; Bell J at 45
DECISION:

Appeal upheld.
CATCHWORDS:

NEGLIGENCE - damages - death as a result of a dust-related condition - survival of cause of action - s3(2) Survival of Causes of Action Act 1940 (SA) - dependant's action per Civil Liability Act 1936 (SA) - damages offset because of pecuniary benefits passing to the plaintiff as beneficiary under an intestacy - estate swollen with the proceeds of the deceased's action - uncertainty as to the size of the distributable estate - onus of establishing the estate's capacity to pay the plaintiff - evidentiary stand-off at trial - location of evidentiary onus - computation of damages issue - whether mitigation of damages issue - persuasive burden and evidentiary burden - proof of financial loss required proof of share as a beneficiary of the deceased's estate. (ND)
LEGISLATION CITED:

Dust Diseases Tribunal Act 1989, s32
Survival of Causes of Action Act 1940 (SA)
Wrongs Act 1936 (SA)
Civil Liability Act 1936 (SA)
Administration and Probate Act 1919 (SA)
Luntz, Assessment of Damages for Personal Injury and Death 4th ed, [9.5.31]
McCormick on Evidence 5th ed §338
CASES CITED:

BI (Contracting) Pty Ltd v PHR Pty Ltd [2005] NSWCA 304
Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970
Cattanach v Melchior (2003) 215 CLR 1
Davies v Powell Duffryn Associated Colleries Ltd [1942] AC 601
De Sales v Ingrilli (2002) 212 CLR 338
DP v Commonwealth Central Authority (2001) 206 CLR 401
Nunan v Gerblich (1974) 10 SASR 39 at 53
Purkess v Crittenden (1965) 114 CLR 164
Public Trustee v Zoanetti (1945) 70 CLR 266
Russo v Aiello (2003) 215 CLR 643 at 647[11].
Strikwerda v B I (Contracting) Pty Ltd & Ors [2004] NSWDDT 50
Watts v Rake (1960) 108 CLR 158
PARTIES:

BI (CONTRACTING) PTY LTD
Eileen Sylvia STRIKWERDA & Anor

FILE NUMBER(S):

CA 41178/04
COUNSEL:

Appellant: J J E Fernon SC
First Respondent: A J Leslie QC
Second Respondent: B Audsley (Sol) (Submitting)
SOLICITORS:

Appellant: Makinson & D'Apice
First Respondent: Turner Freeman
Second Respondent: Thompson Cooper

LOWER COURT JURISDICTION:

Dust Diseases Tribunal of NSW
LOWER COURT FILE NUMBER(S):

DDT 118/04

LOWER COURT JUDICIAL OFFICER:

O'Meally P



                            CA 41178/04
                            DDT 118/2004

                            MASON P
                            SANTOW JA
                            BELL J

                            Friday 9 September 2005
B I (CONTRACTING) PTY LIMITED v Eileen Sylvia STRIKWERDA & Anor
JUDGMENT

1 MASON P: This appeal arises out of proceedings in the Dust Diseases Tribunal. It is limited as to points of law (Dust Diseases Tribunal Act 1989, s32).

2 Hans Jurgen Strikwerda (the deceased) contracted mesothelioma. He was a resident of South Australia. On 9 January 2004 he commenced proceedings in the Dust Diseases Tribunal of New South Wales against two defendants, claiming damages for negligence. The defendants were the appellant and second respondent in…

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BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288
Case
[2005] NSWCA 288
Decision Date

CaseChat Overview and Summary

BI (Contracting) Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning damages awarded to Mr Strikwerda (the respondent) following the death of his father, Mr Strikwerda senior, from a dust-related condition. The respondent’s claim was brought both as a dependant’s action under the *Civil Liability Act 1936* (SA) and as a survival action under the *Survival of Causes of Action Act 1940* (SA).

The central legal issues before the Court of Appeal were whether the primary judge had erred in calculating the damages awarded to the respondent. Specifically, the court considered whether the primary judge had correctly applied the principle that pecuniary benefits received by the respondent as a beneficiary under his father’s intestacy should be offset against the damages awarded. This involved determining the onus of proof regarding the capacity of the deceased’s estate to pay the respondent’s entitlement, particularly in circumstances where the estate had been swollen by the proceeds of the deceased’s own survival action, leading to an evidentiary stand-off at trial.

The Court of Appeal reasoned that the primary judge had erred in failing to properly consider the impact of the intestacy on the damages calculation. The court held that the respondent bore the persuasive burden of establishing the extent to which the deceased’s estate was capable of satisfying his beneficial interest, and thus the extent to which any damages awarded should be reduced. The evidentiary burden shifted to the appellant to demonstrate the specific amount of the distributable estate and the respondent’s share therein. The court found that an evidentiary stand-off had occurred, and the primary judge had not correctly allocated the onus of proof in relation to the computation of damages.

The appeal was upheld.

Orders

Orders of the court

Appeal upheld.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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