Davis v Cockatoo Dockyard Pty Ltd - [2000] NSWDDT 6

(2000) 19 NSWCCR 594

DAVIS v COCKATOO DOCKYARD PTY LTD
[2000] NSWDDT 6

Dust Diseases Tribunal of New South Wales: Curtis J

12,13 April 2000 (H)
20 April 2000 (J)

Dust Diseases Tribunal - Damages - Deductions - Collateral benefits received under foreign industrial legislation - Principles governing deductibility
Dust Diseases Tribunal - Damages - Deductions - Weekly payments of industrial injuries benefits under UK legislation - Benefits not deductible - Social Security Contributions and Benefits Act 1992 (UK)
Dust Diseases Tribunal - Damages - Deductions - Lump sum payment in respect of asbestos-related disease under UK legislation - Lump sum payment deductible - Pneumoconiosis Etc (Workers Compensation) Act 1979 (UK)
M.P. Cahill, for the plaintiff
T.G.R. Parker, for the defendant
Cur adv vult

CURTIS J: The plaintiff, now aged 71, contracted asbestos-related pleural disease as a result of inhalation of asbestos dust and fibre while employed by the defendant as an apprentice fitter for two years and two months between May 1948 and July 1950. The defendant admits this inhalation occurred as a result of its breach of duty and also that in consequence of this breach the plaintiff suffered a material contribution to his disease.

The plaintiff was, however, further exposed to the inhalation of asbestos when employed as a ship’s engineer by an English shipping company, Shaw Savill & Albion & Co, between April 1951 and June 1959. This employment also made a material contribution to the disease.

On 5 December 1995 an adjudicating medical authority established pursuant to the Social Security Contributions and Benefits Act 1992 (UK) (the UK Social Security Act) certified that the plaintiff suffered the disease of bilateral diffuse pleural thickening and assessed his disablement at 20 per cent. The plaintiff has been in receipt of an industrial injuries benefit pursuant to that legislation since that time, presently at the rate of A$78.52 per week. The payments were backdated to 1 January 1992 and appear to be indexed for inflation.

On 22 October 1996 the plaintiff was also paid the lump sum of £3,750 (then A$7,397) pursuant to an entitlement created by the Pneumoconiosis Etc. (Workers Compensation) Act 1979 (UK) (the UK Workers Compensation Act) in respect of his asbestos-related disease.

It is common ground that all asbestos exposure has contributed to the plaintiff’s asbestos-related pulmonary disease and that I should, having assessed the plaintiff’s damages, apportion to the liability of the defendant only that part of an appropriate award of damages as may reflect the defendant’s contribution to the plaintiff’s total fibre burden and disablement: see Brear v Commonwealth (1999) 18 NSWCCR 637.

Three issues arise:

1.What is an appropriate quantum of damages?
2.What proportion of that sum should be borne by the defendant?
3.Should moneys paid and payable to the plaintiff pursuant to the UK Social Security Act and the UK Workers Compensation Act be deducted from any damages?

Damages
The plaintiff’s evidence

The plaintiff was born on 1 April 1929 and is now…

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: [2000] NSWDDT 6
Decision Date: 20 April 2000

CaseChat Overview and Summary

The case of Davis v Cockatoo Dockyard Pty Ltd dealt with the determination of damages for an asbestos-related disease within the Dust Diseases Tribunal. The plaintiff, Mr. Davis, sought compensation for injuries sustained due to exposure to asbestos during his employment with the defendant, Cockatoo Dockyard Pty Ltd. The Tribunal was tasked with assessing the extent of the damages and whether certain payments received by Mr. Davis under foreign legislation should be deducted from the compensation awarded.

The key legal issues before the Tribunal involved the deductibility of certain payments from the damages awarded. Specifically, the Tribunal had to determine the deductibility of weekly payments of industrial injuries benefits under UK legislation and a lump sum payment in respect of an asbestos-related disease also under UK legislation. The Tribunal needed to apply Australian principles to assess the deductibility of these payments, considering the social security laws of the United Kingdom.

The Tribunal carefully examined the statutory provisions governing the deductibility of the benefits. It found that the weekly payments of industrial injuries benefits under the Social Security Contributions and Benefits Act 1992 (UK) were not deductible because they were essentially social security payments that did not compensate for the loss of earning capacity or the cost of medical treatment. In contrast, the Tribunal ruled that the lump sum payment under the Pneumoconiosis Etc (Workers Compensation) Act 1979 (UK) was deductible as it compensated for the loss of earning capacity. The Tribunal thus applied the appropriate legal principles to ensure that the damages awarded to Mr. Davis were fair and equitable, taking into account the foreign benefits he received.

The Tribunal ordered Cockatoo Dockyard Pty Ltd to pay Mr. Davis the assessed damages, deducting the appropriate lump sum payment but not the weekly payments of industrial injuries benefits. This decision provided clarity on the deductibility of certain foreign benefits in the context of Australian dust disease compensation claims, ensuring that the principles of fairness and equity were upheld in the determination of damages.

Orders