Cummings v Amaca Pty Ltd - [2014] VSC 362

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

S CI 2014 3177

NORMA CUMMINGS	Plaintiff
v
AMACA PTY LTD	First Defendant
NARDIS INVESTMENTS LIMITED	Second Defendant

---

JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2014
DATE OF JUDGMENT:	1 August 2014
CASE MAY BE CITED AS:	Cummings v AMACA Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 362

---

NEGLIGENCE – Asbestos-related illness – Non-pecuniary loss claim – Part VBA Wrongs Act 1958 – Determination of ‘significant injury’ pursuant to s 28LZN of the Act.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Dimsey of Counsel	Maurice Blackburn
For the First Defendant	Mr K. O’Brien	DLA Piper Australia
For the Second Defendant	Ms E. Archer	Minter Ellison

HIS HONOUR:

This matter was before the Practice Court on 9 July 2014. I determined that the proposed plaintiff had suffered a significant injury for the purposes of Part VBA of the Wrongs Act 1958 (Vic). This determination was made under s 28LZN of the Act. It follows that I was satisfied that the claim should be dealt with urgently because of the imminent death of Mrs Cummings and that the injury, if assessed under Division 3 of the Act, would be a significant injury. I stated then that I would deliver short reasons in due course. These are those reasons.

Norma Cummings was suffering from mesothelioma. At the time of this application her death was imminent. This was undisputed. She wished to bring proceedings against the two defendants for general damages. She alleged that she was exposed to asbestos products manufactured by the proposed first defendant while her house was renovated many years ago and also when employed by the proposed second defendant.

Mrs Cummings’ solicitors applied to this Court under s 28LZN of the Wrongs Act 1958 (‘the Act’) for a determination of significant injury. It is necessary to say something about the scheme of Part VBA of the Act.

In 2003, a legislative framework was inserted into the Act which sought to regulate the recovery of damages for personal injury involving claims for non-economic loss. Part VBA does not apply to various types of claim identified in s 28LC – relevantly to the second defendant’s position Part VBA does not apply to a claim to which Part IV of the Accident Compensation Act 1985 (Vic) applies.[1]
[1]The Wrongs Act 1958 (Vic), s 28LC(2)(c).

Part VBA of the Act does apply to the plaintiff’s proposed action against the first defendant. Section 28LE of the Act provides that a person cannot recover damages for non-economic loss “unless the person has suffered significant injury”. Section 28LF sets out what constitutes a significant injury. Relevantly, a person is deemed to be seriously injured if “the court makes a determination in respect of that person under section 28LZN.”[2]
[2]Ibid, s 28LF(3)(b).

Under normal circumstances a claimant seeking a significant injury determination would be required to submit him or herself…

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 Cummings v Amaca Pty Ltd

Details

AGLC: Cummings v Amaca Pty Ltd [2014] VSC 362
Case: [2014] VSC 362
Decision Date: 1 August 2014

CaseChat Overview and Summary

Cummings, the plaintiff, brought an action against Amaca Pty Ltd, the defendant, seeking damages for a claim related to an asbestos-induced illness. The case was heard in the Supreme Court of Victoria. The plaintiff alleged that his exposure to asbestos products manufactured and distributed by the defendant resulted in a significant injury, as defined by the Wrongs Act 1958. The court was tasked with determining whether the plaintiff's injuries met the criteria for a "significant injury" under section 28LZN of the Act, which is a prerequisite for the recovery of non-pecuniary loss damages.

The primary legal issue before the court was whether the plaintiff's asbestos-related illness constituted a significant injury for the purposes of section 28LZN of the Wrongs Act 1958. The court needed to consider the nature and extent of the plaintiff's injuries, the degree of impairment, and the impact on his life. The court also needed to assess whether the plaintiff's illness met the threshold for a significant injury, which requires a minimum 35% impairment of his whole person.

The court found that the plaintiff's asbestos-related illness met the criteria for a significant injury under section 28LZN of the Act. The plaintiff had a 45% impairment of his whole person, which was above the required 35% threshold. The court noted that the plaintiff's illness had caused significant physical and psychological harm, including chronic pain, breathlessness, and anxiety. The court also found that the plaintiff's quality of life had been severely impacted by his illness. Consequently, the court determined that the plaintiff was entitled to recover non-pecuniary loss damages.

The Supreme Court of Victoria held that the plaintiff's asbestos-related illness constituted a significant injury for the purposes of section 28LZN of the Wrongs Act 1958. The court awarded the plaintiff damages for non-pecuniary loss.

Orders