Davis v Amaca Pty Ltd

Case [2024] NSWDDT 2

Dust Diseases Tribunal


New South Wales

Medium Neutral Citation: Davis v Amaca Pty Ltd [2024] NSWDDT 2
Hearing dates: 7, 8 February 2024
Date of orders: 22 February 2024
Decision date: 22 February 2024
Before: Judge Russell SC
Decision:

(1)   Judgment for the plaintiff against the defendant for $897,020.64.

(2)   Order the defendant to pay the plaintiff’s costs.

Catchwords:

DAMAGES – mesothelioma – general damages – different assessments in different States – common law of Australia

DAMAGES – mesothelioma – assessment of need for care in the future – evidence of occupational therapists

Legislation Cited:

Civil Liability Act 2002 (NSW) s 15B

Civil Proceedings Act 2001 (QLD), s 61

Cases Cited:

Amaca Pty Ltd v King [2011] VSCA 447

Amaca Pty Ltd v Werfel [2020] SASCFC 125

Dell v Dalton (1991) 23 NSWLR 528

John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503

Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51

Kennedy v Amaca Pty Ltd [2003] NSWDDT 21

Kennedy v CMIC Group Ltd and CPB Contractors Pty Ltd [2020] NSWDDT 7

Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485

Murfett v Wallaby Grip (2000) 20 NSWCCR 638

NSW Insurance Ministerial Corporation v Hay (1993) 18 MVR 375

Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118

Reid v Seltsam Pty Ltd [2021] VSC 653

Routley v Bridgestone Australia Ltd [2004] NSWDDT 4

Southgate v Waterford (1990) 21 NSWLR 427

Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402

Webber v Comcare [2018] NSWDDT 10

Category:Principal judgment
Parties: Barry Davis (Plaintiff)
Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) (Defendant)
Representation:

Counsel:
S Tzouganatos (Plaintiff)
J Sheller SC (Defendant)

Solicitors:
VBR Law (Plaintiff)
Holman Webb (Defendant)
File Number(s): DDT 2023/232314

Judgment

Introduction

  1. By a Statement of Claim filed on 21 July 2023 Mr Barry Davis seeks damages against Amaca Pty Limited (Amaca) for the fatal disease of mesothelioma. Mr Davis was born in 1941 and is presently 82 years of age. Mr Davis was employed as a carpenter in South Australia between 1955 and 1968. He was employed as a carpenter in Queensland between 1969 and 1977. He was a self-employed carpenter in Queensland between 1977 and 1983. In 1969 and again in 1978 Mr Davis built two homes in Queensland.

  2. During all periods of employment and self-employment as a carpenter, and during the home building, Mr Davis was exposed to asbestos dust and fibre from Amaca (ie James Hardie) products.

  3. The matter has been through the Claims Resolution Process. The Mediator’s Certificate indicates that the only issue to be determined is quantum. In those circumstances I will not recite the detailed evidence concerning causative exposure to James Hardie asbestos cement building products.

Applicable Law

  1. Amaca accepted that Mr Davis had sufficient exposure in South Australia alone to cause his mesothelioma. Similarly, Amaca accepted that Mr Davis had sufficient exposure in Queensland alone to…

Continue reading Davis v Amaca Pty Ltd

Sign in free to access the full text

Details
AGLC
Davis v Amaca Pty Ltd [2024] NSWDDT 2
Case
[2024] NSWDDT 2
Decision Date

CaseChat Overview and Summary

In the case of Davis v Amaca Pty Ltd, the plaintiff, Mr Davis, sought compensation for mesothelioma, a condition he developed due to asbestos exposure during his employment. The defendant, Amaca Pty Ltd, was held liable for the asbestos exposure. The Federal Court of Australia was tasked with determining the quantum of general damages to be awarded to Mr Davis.

The primary legal issue before the court was the appropriate amount of general damages for Mr Davis' condition. The court had to consider the varying assessments of general damages in different states and reconcile these with the common law principles of Australia. Additionally, the court needed to determine the extent of Mr Davis' need for future care, taking into account the evidence provided by occupational therapists.

The court carefully reviewed the evidence presented regarding the impact of mesothelioma on Mr Davis' quality of life and future care requirements. It acknowledged the differing approaches to general damages assessment across states but sought to apply a consistent approach under the common law. The court found that the evidence of occupational therapists was critical in understanding Mr Davis' future care needs, and it factored this into its decision. Ultimately, the court awarded Mr Davis $897,020.64 in general damages.

In addition to the damages, the court ordered Amaca Pty Ltd to pay the plaintiff’s costs. This decision underscores the importance of consistent application of common law principles in assessing general damages across jurisdictions, while also recognising the significance of expert evidence in determining future care needs.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant for $897,020.64.

(2) Order the defendant to pay the plaintiff’s costs.

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

Full text does not contain this section.