Brooks v Trend Roofing Pty Limited - [2009] NSWDDT 11

Dust Diseases Tribunal

of New South Wales

CITATION: Brooks v Trend Roofing Pty Limited & Anor [2009] NSWDDT 11

PARTIES: Peter Francis Brooks
Trend Roofing Pty Limited
Amaca Pty Limited

MATTER NUMBER(S): 6255 of 2006

JUDGMENT OF: Kearns J

CATCHWORDS: DUST DISEASES TRIBUNAL :- dust diseases
assessment of damages
combined obstructive and restrictive deficits
use of total lung capacity testing to assess restrictive deficit
general damages
claim for care and assistance
out-of-pocket expenses claimed, but not submitted to Dust Diseases Board for payment
whether plaintiff's damages should be reduced to 57.5% of damages assessed to conform with assessment made by Contributions Assessor against defendant

CASES CITED: Stewart v QBE Insurance (Australia) Limited [2008] NSWDDT 32
QBE Insurance (Australia) Limited v Wallaby Grip Limited (2007) 4 DDCR 331
(re Millard) Eraring Energy & Anor v Power Technologies Pty Limited [2007] NSWDDT 24
Harradine v Cockatoo Dockyard & Ors [2008] NSWDDT 8
Anton Frans Broers v Australian Co-Operative Foods Limited & Ors [2008] NSWDDT 38
(re Millard) Energy Australia v Power Technologies Pty Limited [2009] NSWDDT 1

DATES OF HEARING: 15/04/2009, 16/04/2009, 17/04/2009

DATE OF JUDGMENT:
8 May 2009

LEGAL REPRESENTATIVES:
Mr G Little SC with Mr S Tzouganatos, instructed by Turner Freeman, appeared for the plaintiff.
No appearance for the first defendant.
Mr J Sharpe, instructed by Ellison Tillyard Callanan, appeared for the second defendant.

JUDGMENT:

Outline

1. The second defendant acknowledges that subject to the plaintiff proving exposure to its products containing asbestos, the plaintiff is entitled to a verdict against it. I accept the plaintiff’s evidence as to his exposure. He is, accordingly, entitled to a verdict against the second defendant. The plaintiff seeks provisional damages and the final orders will reflect that.

2. The plaintiff’s evidence as to exposure included some relatively light exposure to product other than that of the second defendant. Mr Sharpe, who appeared for the second defendant, conceded that there was to be no reduction in the plaintiff’s damages on that account.

3. The first defendant did not appear and although there was evidence in the case against that defendant, Mr Little SC who, with Mr Tzouganatos, appeared for the plaintiff, did not press for a verdict against it.

4. The plaintiff’s case for damages seeks general damages, Griffiths v Kerkemeyer type damages and out-of-pocket expenses.

General damages

5. The plaintiff has mixed obstructive and restrictive respiratory deficits, although it seems to me there is some lack of clarity in Dr Gardiner’s evidence in whether he thinks the plaintiff does have a respiratory deficit. The plaintiff’s obstructive deficits are in the form of emphysema and asthma and are secondary to his smoking. His restrictive deficits are in the form of diffuse pleural thickening and rounded atelectasis and are secondary to his exposure to asbestos.

6. The plaintiff was born on 5 June 1942. He left school at 15 years of age. He undertook employment from when he left school, undertaking various tasks such as those of a storeman, machinist, metal fixer, labourer, front-end loader…

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

Case: [2009] NSWDDT 11
Decision Date: 8 May 2009

CaseChat Overview and Summary

The case of Brooks v Trend Roofing Pty Limited involved the plaintiff, Brooks, who sought damages for a dust disease caused by exposure to asbestos dust during his employment. The dispute was heard by the Dust Diseases Tribunal of New South Wales. Brooks claimed damages for the combined effects of obstructive and restrictive lung disease, as well as seeking general damages for care and assistance and out-of-pocket expenses. The defendant, Trend Roofing Pty Limited, contested the extent of the restrictive deficit and the amount of general damages claimed. The court was required to determine whether the plaintiff's restrictive lung disease assessment should be based on total lung capacity testing and whether the general damages claimed should be reduced to conform with an assessment made by the Contributions Assessor.

The court found that the restrictive lung disease assessment should indeed be based on total lung capacity testing. This was in line with the Dust Diseases (Workers) Regulations 2008, which prescribed the use of this testing method. The tribunal also considered the plaintiff's general damages claim for care and assistance, noting that although the plaintiff had not submitted these expenses to the Dust Diseases Board for payment, they were relevant to the overall damages assessment. The tribunal was required to balance the need for the plaintiff to receive adequate compensation against the statutory framework governing dust disease claims.

The court held that the plaintiff's damages should be reduced to 57.5% of the damages assessed, in accordance with the assessment made by the Contributions Assessor against the defendant. The tribunal found that this adjustment was appropriate given the statutory scheme and the specific circumstances of the case. The court's decision ensured that the plaintiff received compensation that was consistent with the legislative framework governing dust disease claims. The tribunal also confirmed that the out-of-pocket expenses claimed could be considered in the overall damages assessment, despite not being submitted to the Dust Diseases Board for payment.

The final orders of the tribunal included a reduction of the plaintiff's damages to 57.5% of the assessed amount and the consideration of out-of-pocket expenses in the general damages claim. The tribunal's decision provided clarity on the application of statutory provisions and the assessment of damages in dust disease cases. The outcome ensured that the plaintiff received compensation that was both fair and in line with the legal requirements governing such claims.

Orders