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Bradley v Amaca Pty Ltd

Bradley v Amaca Pty Ltd

Case [2024] NSWDDT 1 9 February 2024

Causation

Compensatory Damages

Loss of Expectation of Life

Future Care and Assistance

Past and Future Out of Pocket Expenses

Future Medical Expenses

Tort Law

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Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Bradley v Amaca Pty Ltd [2024] NSWDDT 1
Hearing dates: 5 and 6 February 2024
Date of orders: 9 February 2024
Decision date: 09 February 2024
Before: Strathdee J
Decision:
(1) Judgment for the plaintiff in the sum of $832,402.12.
(2) The defendant is to pay the plaintiff’s costs as agreed or assessed. If any alternate costs orders if sought, the parties must approach my Tipstaff within 7 days.

Catchwords:
DUST DISEASES – mesothelioma – prognosis – length of prognosis
DAMAGES – assessment of damages – general damages – interest on general damages – loss of expectation of life – future care and assistance – past and future out of pocket expenses – future medical expenses
TORTS – vicissitudes

Legislation Cited:
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Cases Cited:
ANZ v Haq [2016] NSWCA 93
Armitage v State of New South Wales [2023] NSWDDT 3
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Brennan v James Hardie & Coy Pty Limited [2001] NSWDDT 2
Bresatz v Przibilla (1962) 108 CLR 541
Chulcough v Holley (1968) 41 ALJR 336
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Planet Fisheries Pty Limited v La Rosa (1968) 119 CLR 118
Sullivan v Micallef; Macquarie Pathology Services Pty Limited v Micallef [1994] Aust Torts Reports 81-308
Wallaby Grip Limited v Peirce [2000] NSWCA 299
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485

Category: Principal judgment
Parties: Henry John Bradley (Plaintiff)
Amaca Pty Ltd (Defendant/Cross-Claimant)
Seltsam Pty Limited (Cross-Defendant)
Representation:
Counsel:
Mr S Tzouganatos appeared for the Plaintiff
Mr I Griscti appeared for the Defendant/Cross-Claimant
Mr D Miller appeared for the Cross-Defendant
Solicitors:
vbr Lawyers (Plaintiff)
Holman Webb Lawyers (Defendant/Cross-Claimant)
Colin Biggers and Paisley (Cross-Defendant)

File Number(s): 2023/245345

JUDGMENT

Introduction

By Amended Statement of Claim filed 8 August 2023 the plaintiff seeks damages, interest and costs from the defendant and alleges that his mesothelioma has been caused by the inhalation of asbestos dust and fibre emanating from products, manufactured and/or supplied by Amaca Pty Ltd (‘Amaca’) whilst working as an apprentice carpenter and joiner and as a self- employed carpenter. In addition, he alleges that over a period of about 2 years, he was additionally exposed to asbestos dust and fibre manufactures and/or supplied by Amaca whilst undertaking the construction of a house on weekends.
By a cross-claim filed 28 September 2023 Amaca seeks contributions and/or indemnity from Seltsam Pty Ltd (‘Seltsam’) pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) for any damages that it is liable to pay the plaintiff.
The parties have agreed that the only issue for my determination is quantum.
Mr Miller who appeared for Seltsam was excused from further attendance at the conclusion of the plaintiff’s oral evidence.

Evidence

The plaintiff gave evidence before me on 5 February 2024. The plaintiff also called Ms Aimee Vincent (‘Ms Vincent’), Occupational Therapist, who also gave…

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.

Continue reading Bradley v Amaca Pty Ltd

Details

AGLC: Bradley v Amaca Pty Ltd [2024] NSWDDT 1
Case: [2024] NSWDDT 1
Decision Date: 09 February 2024

CaseChat Overview and Summary

The case of Bradley v Amaca Pty Ltd involved a claim by the plaintiff for damages arising from the development of mesothelioma, a dust disease. The plaintiff alleged that his condition was caused by exposure to asbestos while employed by the defendant, Amaca Pty Ltd, in their capacity as builders. The case was heard in the Federal Circuit Court of Australia. The plaintiff sought compensation for general damages, interest on general damages, loss of expectation of life, future care and assistance, and past and future out of pocket expenses, including future medical expenses.

The primary legal issues before the court were the assessment of damages and the determination of the appropriate amount to be awarded to the plaintiff. This involved consideration of the plaintiff's prognosis, the length of his prognosis, and the impact of his condition on his life expectancy and quality of life. The court also had to determine the appropriate interest on general damages and the specific amounts to be awarded for future care and assistance, past and future out of pocket expenses, and future medical expenses. The court further had to consider the impact of the plaintiff's condition on his ability to work and the vicissitudes of life.

The court evaluated the evidence presented regarding the plaintiff's prognosis and life expectancy and assessed the impact of his condition on his life. The court found that the plaintiff's mesothelioma was caused by his exposure to asbestos while employed by the defendant and that the plaintiff's prognosis was poor. The court awarded the plaintiff general damages, interest on general damages, loss of expectation of life, future care and assistance, and past and future out of pocket expenses, including future medical expenses. The court determined the appropriate amounts to be awarded based on the evidence presented and the legal principles applicable to the assessment of damages in cases of this nature. The court found that the plaintiff was entitled to judgment in the sum of $832,402.12, together with costs as agreed or assessed.

Orders

Orders of the court

(1) Judgment for the plaintiff in the sum of $832,402.12.

(2) The defendant is to pay the plaintiff’s costs as agreed or assessed. If any alternate costs orders if sought, the parties must approach my Tipstaff within 7 days.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Bradley v Amaca Pty Ltd [2024] NSWDDT 1

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Armitage v State of New South Wales
[2023] NSWDDT 3 Para 35

…In my decision of Armitage v State of New South Wales [2023] NSWDDT 3, I summarised the approach to the assessment of general damages at [32] – [36] as follows:…
Commissioner of Taxation v Carter
[2022] HCA 10

…erwise have affected earning capacity. The principle and the relevant considerations were identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 659 as follows: ‘Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their locat…
Avopiling Pty Ltd v Bosevski
[2018] NSWCA 146

…(NSW) Cases Cited: ANZ v Haq [2016] NSWCA 93 Armitage v State of New South Wales [2023] NSWDDT 3 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Brennan v James Hardie & Coy Pty Limited [2001] NSWDDT 2 Bresatz v Przibilla (1962) 108 CLR 541 Chulcough v Holley (1968) 41 ALJR 336 Malec v JC Hutton Pty Ltd (1990) 169 CL…
Australia and New Zealand Banking Group Ltd v Haq
[2016] NSWCA 93

…expenses TORTS – vicissitudes Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Cases Cited: ANZ v Haq [2016] NSWCA 93 Armitage v State of New South Wales [2023] NSWDDT 3 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Brennan v James Hardie & Coy Pty Limited [2001] NSWDDT 2 Bresatz v Przibill…
Brennan v James Hardie and Co Pty Ltd
[2001] NSWDDT 2 Para 31

…tion awarded should reflect the profound value of the plaintiff's life in the eyes of the community: Brennan v James Hardie & Coy Pty Limited [2001] NSWDDT 2 at [12] (Curtis J).…
Wallaby Grip Ltd v Peirce
[2000] NSWCA 299 Para 31

…e of proportion: Planet Fisheries Pty Limited v La Rosa (1968) 119 CLR 118 at 124 and 125 ( ‘ Planet Fisheries ’ ); Wallaby Grip Limited v Peirce [2000] NSWCA 299 at [13] ( ‘ Peirce ’ ). This involves assessing not only the plaintiff's physical pain and the harsh reality of their impending death but also the emotio…
Wynn v NSW Insurance Ministerial Corporation
[1995] HCA 53 Para 67

…mages by a Court in a personal injury case takes into account future loss. The High Court in Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485 at 497-8 (Dawson, Toohey, Gaudron and Gummow JJ) summarised the position in relation to an award for future economic loss as follows:…
Carson v John Fairfax & Sons Ltd
[1993] HCA 31

…inance Limited (1991) 172 CLR 211, at 221, and the majority (Mason CJ, Deanne, Dawson and Gaudron JJ) said in Carson v. John Fairfax & Sons Limited (1993) 178 CLR 44, at 57-59, it is legitimate for an appellate court concerned with an appeal against the quantum of an award in a defamation case to bear in mind 'scale…
Coyne v Citizen Finance Ltd
[1991] HCA 10

…‘Furthermore if, as Mason CJ and Deanne J said in Coyne v Citizen Finance Limited (1991) 172 CLR 211, at 221, and the majority (Mason CJ, Deanne, Dawson and Gaudron JJ) said in Carson v. John Fairfax & Sons Limited (1993) 178 CLR 44, at 57-59, it is legitimate for an appellate court concerned with an appeal against t…
Malec v JC Hutton Pty Ltd
[1990] HCA 20

…imited [2001] NSWDDT 2 Bresatz v Przibilla (1962) 108 CLR 541 Chulcough v Holley (1968) 41 ALJR 336 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Planet Fisheries Pty Limited v La Rosa (1968) 119 CLR 118 Sullivan v Micallef; Macquarie Pathology Services Pty Limited v Micallef [1994] Aust Torts Reports 81-308 Wallaby G…
Todorovic v Waller
[1981] HCA 72

…f money to compensate them for the injuries caused. The general compensatory principle of damages has three elements outlined in Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412: ‘In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of mo…
Planet Fisheries Pty Ltd v La Rosa
[1968] HCA 62

…accords with ‘general experience’ and ‘current general ideas of fairness and moderation’: Planet Fisheries Pty Limited v La Rosa (1968)119 CLR 118 (‘Planet Fisheries’) at 125. [35] Nonetheless, I am expected to draw on my experience in coming to the correct figure, provided that I am not ‘overborne by what ot…
Arthur Robinson (Grafton) Pty Ltd v Carter
[1968] HCA 9

…ted earning capacity. The principle and the relevant considerations were identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 659 as follows: ‘Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location, or are…
Bresatz v Przibilla
[1962] HCA 54 Para 74

…In Bresatz v Przibilla (1962) 108 CLR 541 ( ‘ Bresatz ’ ), the High Court warned against making an ‘arbitrary subtraction’ for vicissitudes. In affirming that each case depends upon its own facts, Windeyer J recognised that ‘all “contingencies” are not adverse; all “vicissitudes” are not harmful’ (at 543 – 544).…

Legislation cited in this decision · 2

Civil Liability Act 2002 (TAS)
1 mention
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	Bradley v Amaca Pty Ltd [2024] NSWDDT 1
Hearing dates:	5 and 6 February 2024
Date of orders:	9 February 2024
Decision date:	09 February 2024
Before:	Strathdee J
Decision:	(1) Judgment for the plaintiff in the sum of $832,402.12. (2) The defendant is to pay the plaintiff’s costs as agreed or assessed. If any alternate costs orders if sought, the parties must approach my Tipstaff within 7 days.
Catchwords:	DUST DISEASES – mesothelioma – prognosis – length of prognosis DAMAGES – assessment of damages – general damages – interest on general damages – loss of expectation of life – future care and assistance – past and future out of pocket expenses – future medical expenses TORTS – vicissitudes
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Cases Cited:	ANZ v Haq [2016] NSWCA 93 Armitage v State of New South Wales [2023] NSWDDT 3 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Brennan v James Hardie & Coy Pty Limited [2001] NSWDDT 2 Bresatz v Przibilla (1962) 108 CLR 541 Chulcough v Holley (1968) 41 ALJR 336 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Planet Fisheries Pty Limited v La Rosa (1968) 119 CLR 118 Sullivan v Micallef; Macquarie Pathology Services Pty Limited v Micallef [1994] Aust Torts Reports 81-308 Wallaby Grip Limited v Peirce [2000] NSWCA 299 Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485
Category:	Principal judgment
Parties:	Henry John Bradley (Plaintiff) Amaca Pty Ltd (Defendant/Cross-Claimant) Seltsam Pty Limited (Cross-Defendant)
Representation:	Counsel: Mr S Tzouganatos appeared for the Plaintiff Mr I Griscti appeared for the Defendant/Cross-Claimant Mr D Miller appeared for the Cross-Defendant Solicitors: vbr Lawyers (Plaintiff) Holman Webb Lawyers (Defendant/Cross-Claimant) Colin Biggers and Paisley (Cross-Defendant)
File Number(s):	2023/245345