Davies v Manildra Flour Mills (Manufacturing) Pty Ltd

[2006] NSWDDT 36

Dust Diseases Tribunal

of New South Wales

CITATION:	Davies v Manildra Flour Mills (Manufacturing) Pty Ltd [2006] NSWDDT 36
PARTIES:	Anthony Joseph Davies (Plaintiff) Manildra Flour Mills (Manufacturing) Pty Ltd (Defendant)
MATTER NUMBER(S):	152/03
JUDGMENT OF:	Duck J
CATCHWORDS:	Dust Diseases Tribunal :- entitlements to benifits from the Dust Diseases Board
LEGISLATION CITED:	Workers' Compensation (Dust Diseases) Act 1942 Workers' Compensation Act 1926
CASES CITED:	CSR Ltd v D'Arcy (1996) 40 NSWLR 721; Britt v Manildra Flour Mills Manufacturing Pty Ltd [2006] NSWDDT 3
DATES OF HEARING:	29/09/06
DATE OF JUDGMENT:	09/29/2006
EX TEMPORE JUDGMENT DATE:	09/29/2006
LEGAL REPRESENTATIVES:	Mr G J Sarginson instructed by Higgins & Higgins appeared for the Plaintiff Mr A C Scotting instructed by Moray & Agnew appeared for the Defendant

JUDGMENT:

JUDGMENT

DUCK J

1 The parties have returned to court today in an attempt to address the difficult question of what amount should be deducted from the damages assessed in respect of the plaintiff's loss of earning capacity for the value of potential payments from the Dust Diseases Board. (See in this regard par 75 of the reasons for judgment, see further generally CSR Ltd v D'Arcy (1996) 40 NSWLR 721.

2 As has been submitted by Mr Sarginson for the plaintiff the task for the Court is to avoid either over compensating the plaintiff or under compensating him. The Court has been much assisted by some careful submissions prepared by Mr Scotting, learned counsel for the defendant. As has been submitted in them the plaintiff's entitlement to benefits from the Dust Diseases Board arises under the Workers' Compensation (Dust Diseases) Act 1942. I am told that the medical authority meets this week and it is hoped that the plaintiff's case will be one of those cases dealt with and that a certificate will issue. It will be considered by the Dust Board, and it is thought that this is likely to happen within the next couple of months, so that by the end of this year an answer will be available about what benefits, if any, the plaintiff is to receive pursuant to that Act.

3 One of the matters determined in the judgment I gave earlier in this case is that the plaintiff's condition is a dust disease. A similar matter was determined in Britt v Manildra Flour Mills Manufacturing Pty Ltd [2006] NSWDDT 3 and in Mr Britt's case leave to appeal from the determination that he suffers from a dust disease was given earlier this week.

4 It is difficult to be sure what will be determined by the Dust Diseases Board. That they have the power to make the determinations relating to the benefits payable to this plaintiff and other persons in a position like his is clearly to be seen from the provisions of the Act. The findings that I have made in the case are in effect that the plaintiff is a worker partially incapacitated for work. The compensation payable to him, assuming that I am right, and that the Workers' Compensation (Dust Diseases) Act applies to him, are calculated by reference to the benefits payable to persons working in and about a coal mine. The maximum payable at present to a person who is a partially incapacitated worker is $290 per week gross or $263 net after tax. Assuming the benefits are awarded at all they will be payable for the life of the plaintiff and not simply until the date to which he would have worked but for injury.

5 I am told and accept that his life expectancy is 43.4 years and that the relevant multiplier in that circumstance is 1270.1. If one applies the multiplier to the figure of $263 a figure of $334, 036.30 is thrown up. If that is discounted by 15 per cent for vicissitudes, one arrives at a figure of $283,930.85. In the circumstances it seems to me that that is the appropriate figure to be deducted from the capitalised value of the damages for loss of earning capacity.

6 Mr Scotting has submitted that the deduction should be much greater. One of the reasons upon which he bases his submission is that if the plaintiff's employment is terminated by the defendant he will be entitled to be compensated pursuant to s 11(2) of the Workers' Compensation Act 1926 as though he were a totally incapacitated worker. That entitlement, it is submitted, should be reflected in the award of compensation made by the Dust Diseases Board. A further consideration advanced is that the entitlement to Dust Board benefits should be back dated to December 2001 when the plaintiff ceased his ordinary full-time duties because of his occupational asthma. That would require, so it is submitted, that the Board backdate any award of compensation it makes to that time. By the utilisation of such submissions the defendant submits that the total amount to be deducted from the damages for loss of earning capacity is an amount greater than the amount of damages which had been found.

7 When the Board's powers are so clear it seems to me to be entering into the realm of speculation about what they will do to accept those submissions. If they are adopted as correct the whole of the plaintiff's damages for loss of earning capacity will be wiped out. That leads to a risk of under compensating the plaintiff. It all depends on what the Board does. If no deduction at all is made then of course he will be over compensated. In a normal course it would probably be best simply to defer the finalisation of the case until the Board had met and made its determination. That approach is not available because my last day of service is 9 October 2006. Something has to be done now.

8 I propose therefore to deduct from the damages for loss of earning capacity the sum of $283,930.85 (see paragraph 4 above). Further, I propose to stay execution of the judgment in respect of the whole amount of damages referable to loss of earning capacity in the future pending the determination of the Dust Board. I propose to grant the parties liberty to apply for reconsideration of this aspect of the matter when the Board's determination is available.

9 The parties have reached agreement about the figure to be allowed for past medical expenses. That figure is $20,177.39. There has been no agreement about future medical expenses nor has attention been paid to that figure. I do not mean that the parties have lost sight of it. Rather it has been difficult to know what to do in the absence of a determination from the Dust Board. As indicated earlier I propose to grant leave to the parties to apply for reconsideration when the Dust Board deliberations have been published. When that occurs the question of future medical expenses ought not be lost sight of.

10 The components then of the judgment are as follows:

General damages $130,000.

Interest on that part of general damages referrable to the past $20,400.

Griffiths v Kerkemeyer damages $13,420.

Past economic loss $142,592.

Past medical expenses $20,177.39.

Loss of earning capacity $218,822.15.

That figure is arrived at as follows:

Weekly losses referred to in par 75 of the judgment $477,416. Deduct the estimated value of Dust Board benefits $283,930.85. Subtotal $193,485.15. Add loss of earnings for six months following dismissal (See par 70 of the judgment) $25,337. Total $218,822.15.

Past superannuation $4,091.

Future superannuation $51,812.

Subtotal $601,314.54.

Deduct workers compensation pay back $138,177.39.

Total $463,137.15.

11 I enter verdict and judgment for the plaintiff for $463,137.15.

12 I direct that there be a stay of execution in respect of part of that judgment that is the part referable to the damages for loss of earning capacity, namely, $218,822.15.

13 I grant liberty to the parties to seek reconsideration of the judgment when the Dust Board publishes its determination.

14 Order defendant to pay plaintiff's costs.

15 I confirm that if and when the parties seek reconsideration of these reasons when the Dust Board determination has been made, the question of future medical expenses should be borne in mind.

16 I grant liberty to the parties to apply about costs once the Dust Board determination has been published.

Mr G J Sarginson instructed by Higgins & Higgins appeared for the Plaintiff

Mr A C Scotting instructed by Moray & Agnew appeared for the Defendant