Claydon v Amaca Pty Ltd (No 2)

[2002] NSWDDT 23

Dust Diseases Tribunal

of New South Wales

CITATION:	Claydon v Amaca Pty Ltd & Anor (No 2) [2002] NSWDDT 23
PARTIES:	Graham John Claydon Amaca Pty Ltd Seltsam Pty Ltd
MATTER NUMBER(S):	300 of 2001
JUDGMENT OF:	Maguire J at 1
CATCHWORDS:	:- Dust Diseases Tribunal Act - 13(6) - Reconsideration application - Principles to be applied - Application
LEGISLATION CITED:	Dust Diseases Tribunal Act, s13 (6)
CASES CITED:	CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223
DATES OF HEARING:	15/03/2002
EX TEMPORE JUDGMENT DATE :	06/21/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr M J Joseph SC instructed by Alex Stuart & Associates FOR DEFENDANTS: Mr P E Blacket SC instructed by Holman Webb Mr P T Russell instructed by Windeyer Dibbs

JUDGMENT:

1. The trial of this action commenced before me at Toowoomba on Thursday, 15 November 2001. The plaintiff claimed damages for negligence on the part of each of the defendants in respect of the malignant mesothelioma from which he was suffering. The plaintiff’s life expectancy was very poor and it was accepted on all sides that the trial should proceed to its conclusion expeditiously.

2. The evidence and addresses were all completed on the one day in Toowoomba and I reserved my decision. The transcript became available in Sydney on the afternoon of Monday, 19 November and it was transmitted by facsimile to Wagga Wagga where I had been hearing another case. I returned to my home that evening. Between the small hours of 20 November and midday of that day I prepared myself to deliver judgment. I then returned to Sydney and at 5 pm I commenced to deliver the judgment.

3. The trial was in effect an assessment of damages. There was a further issue, namely, apportionment between the two defendants. I assessed the plaintiff’s damage at a total of $444,845. I apportioned the damages as between the first defendant and the second defendant in the ratio of 27:5. Accordingly I entered judgments for the plaintiff against the first defendant in the sum of $375.338 and against the second defendant in the sum of $69,507. I now have before me a notice of motion brought by the first defendant pursuant to s 13(6) of the Dust Diseases Tribunal Act. That subsection reads as follows:

Whenever appropriate the Tribunal may reconsider any matter that it has previously dealt with or rescind or amend any decision that the Tribunal has previously made.

4. The notice of motion prays that judgments be entered as follows:

(a) In favour of the plaintiff as against the first defendant in the sum of $322,604.8 plus costs.

(b) In favour of the plaintiff as against the second defendant in the sum of $80,651.2 plus costs.

5. These conclusions arise out of submissions as to the apportionment between the defendants and as to the assessment of damages under five heads.

6. The second defendant opposes the first defendant’s submissions on apportionment. It neither supports nor opposes the first defendant’s submissions on damages.

7. The plaintiff opposes the first defendant’s submissions on damages.

APPORTIONMENT

8. In the course of my judgment I had said:

There was exposure to the first defendant’s products exclusively from 1956 to 1972, this equals 16 years. There was further exposure to the first defendant’s products exclusively from 1977 to 1983, this equals six years. That gives a subtotal for exposure to the products of the first defendant of 22 years. There was no exposure to the products of the second defendant exclusively. There was shared exposure to the products of the first defendant and the second defendant from 1967 to 1977, this equals 10 years. I think it fair to treat this period as equivalent to five years exclusive exposure to the products of each defendant, that gives a total notional exposure to the first defendant’s products of 27 years and a notional exposure to the second defendant’s products of five years. I shall apportion the damages accordingly.

9. A rereading of what I then said in the light of the submissions of Mr Blacket SC who now appears for the first defendant makes it clear that my arithmetic let me down and thereby I came to a result different from that which I had expressed to be my decision. The judgment I entered against the first defendant was $12,789.5 higher than would accord with the apportionment that I had expressed, and that against the second defendant was lower by a similar amount.

10. At the trial Mr Russell, who appeared for the second defendant, accepted that the plaintiff was exposed to the second defendant’s products about 20 per cent of the time, and submitted that that would be a proper basis for apportionment. Mr Bartos of counsel, who then appeared for the first defendant, made no submission to the contrary.

DAMAGES

11. Challenges are offered by the first defendant as to five elements of the assessment of damages.

PAST CARE

12. Par 22 of my judgment reads as follows:

None of this is challenged. This consists of all day attendances for chemotherapy, 8 hours at $15. I allow the sum of $120. Under past care there is personal care of the plaintiff in the home 5 hours per day by 130 days at $24 per hour and I allow the sum of $15,600 and I allow interest totalling $140.

13. The amounts allowed are exactly those contended for by Mr Joseph SC for the plaintiff in his written submissions at the trial. Mr Blacket SC appeared for the first defendant on the Notice of Motion. He points out that there was a challenge by Mr Bartos, who appeared at the trial, to the figures advanced on behalf of the plaintiff. Mr Blacket draws attention to evidence adduced by the first defendant and contends that the proper figure under this head should be $8,480 plus interest.

14. Par 23 of my judgment reads as follows:

I adopt the approach taken by Ms Akin in PX10 except that I extend stage 4 by a further four weeks in accordance with my finding as to the likely survival of the plaintiff. I allow 13 weeks at $496 per week, 11 weeks at $2,129 per week and six weeks at $3,158 per week a total of $48,815.

15. Mr Blacket advances on the Notice of Motion an argument which, if accepted, would reduce the damages awarded under this head from $48,815 to $47,115.

16. Par 35 of my judgment reads as follows:

$480 per week less $110 equals $370 per week. $370 per week for five years using the 5 per cent discount tables equals $85,655. Discounting that by 15 per cent for vicissitudes I allow the sum of $72,807.

17. Mr Blacket advances on the Notice of Motion an argument which if accepted would reduce the damages awarded under this head from $72,807 to $66,792. In the same paragraph of his submissions Mr Blacket advances an argument which would seem to relate to what I had said in par 29 of the judgment. He makes no express reference to par 29 but he advances an argument which, if accepted, would reduce the damages dealt with in that paragraph from $19,200 to $14,550.

18. Par 37 of my judgment reads as follows:

He was not cross-examined about this, however, I am of the view that this element of the claim must be discounted heavily. By the time that this man, but for his disease, reached 70 years of age he would have four grandsons of an age when boys are very interested in fishing. He would have many other demands upon his time. His physical capacity to engage in his business would be subject to serious doubt. $370 per week produced by two-fifths to equate to a three-day working week for five years using the 5 per cent table and discounting on the relevant preferred tables equals $40,292. For reasons expressed above I think it fair to reduce this claim by half. It follows that under this head of damages I allow the sum of $20,146.

19. Mr Blacket advances on the Notice of Motion an argument which if accepted would reduce the damages awarded under this head from $20,146 to $16,956.

20. Par 40 of my judgment reads as follows:

This is a claim for loss of services into the future. The services lost are very particular to the house and garden occupied and cared for over a long period by the plaintiff and Mrs Claydon. They are also particular to Mrs Claydon. The plaintiff’s claim on damages was supported by the evidence of his married daughter, whose evidence I accept. However, this head of damage is very much dependent upon what can reasonably be expected to happen to the house, the garden and indeed to Mrs Claydon herself in the years following the plaintiff’s death. Mrs Claydon was not called to give evidence. I regard that circumstance as particularly damaging to this element of the plaintiff’s claim. This lady’s only son and his family live in Toowoomba. On the other hand her only daughter and her family live in Brisbane. The evidence gives me no clue as to what Mrs Clayden might do with the present home and with her life in the years to come. It is for the plaintiff to prove this claim. For the most part he has not done so. I think it fair to allow a period of one year beyond death. $25 per hour for 8 hours per week by 52 weeks amounts to $10,400, and I include that amount in the assessment of damages.

21. Mr Blacket advances on the Notice of Motion an argument that no amount should be allowed under this head.

22. That then is the background against which I must consider the scope and effect of s 13(6) and then apply it to the present case. The leading case on this section is CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223. At p 247 Priestley JA outlined his view of the way in which the section should be applied:

S 13(6) is thus dealing with a subject matter quite different from that dealt with by section 17(4) of the Compensation Court Act 1984 from which its words seem to have been taken. What in its context subsection (6) seems to me to do is to recognise that there may occasionally be very exceptional cases in which it becomes clear that after judgment something of a fundamental kind and of high importance to the litigation has happened, that it happened in regard to a case which because of the nature of the Tribunal’s jurisdiction needs to be dealt with the greatest available expedition and then it may be more efficient rather than move the supervening and basic matter to be dealt with by the appeal mechanism to have it dealt with by the Court of first instance.

On this approach it would be very rare for the power under subsection (6) to be properly exercisable by the Tribunal. The power would, in my opinion, only be one the Tribunal should even consider exercising in the kind of circumstances referred to by Lord Wilberforce in Mulholland that is staged shortly where something basic to this decision had been clearly falsified by subsequent events.

23. Clearly this amounts to a very narrow reading of the section. Contrary to what is asserted in the headnote to the report, Samuels JA, while agreeing that the appeal should be dismissed, did not concur with the words used by Priestley JA in relation to the section. Indeed, a careful reading of his Honour’s judgment discloses that Samuels JA made no reference at all to the section. However, Kirby P took a view of the section as narrow as did Priestley JA. His Honour said at p 236:

Because of the public interest in finality the features of this Tribunal and its jurisdiction, the language of the subsection and the condition of many of the litigants before the Tribunal it will require a very strong case to render it appropriate for the Tribunal to reconsider a matter finally dealt with in a contest between the parties otherwise parties, who like the present respondent, are extremely ill and suffering terminal conditions could be harassed or at least troubled by the reopening of a decision which has the merit of giving finality to the judgment subject to any appeal. Because s 13(6) is in the Act it cannot be ignored. The discretion provided by the subsection when invoked must be exercised according to law but for the reasons I have given it would take a very strong case to have a matter reconsidered.

24. There are two broad strands to the remedies sought by the first defendant. One, a reconsideration and amendment of the apportionment as between it and the second defendant which would shift the burden of the judgments, on the assessments I made, by an amount of $12,789.50. Measured against an assessment of damages of $440,845 this represents an “error” contended for of less than 3 per cent.

25. Two, a reconsideration of five of the 22 heads and subheads of damage which I assessed, so as to reduce the total, if the first defendant were successful in all its arguments, from $444,846 to $408,710, a shift of about 8 per cent. It is to be noted that the judgment was delivered on 20 November 2001 and that the notice of motion was filed on 1 February 2002.

CONCLUSION

26. As to apportionment I note that the apportionment I made, albeit that I got there by a means which cannot be supported, was very close to that contended for at the trial by the second defendant and not contested by the first defendant.

27 As to damages the total effect of the amendment contended for, if successful, is slight. Nowhere do I see anything of a fundamental kind or of high importance to the litigation such as would call for the exercise of my power under s 13(6). If follows that I am of the opinion that the notice of motion should be dismissed.

28. I order that the notice of motion be dismissed.

29. I order the first defendant to pay the costs of the second defendant and of the plaintiff.

Mr M J Joseph, SC instructed by Alex Stuart &Associates appeared for the plaintiff

Mr P E Blacket, SC instructed by Holman Webb appeared for the 1st defendant

Mr P T Russell instructed by Windeyer Dibbs appeared for the 2nd defendant