Dib v Amaca

Case [2017] NSWDDT 6

Dust Diseases Tribunal


New South Wales

Medium Neutral Citation: Dib v Amaca Pty Limited [2017] NSWDDT 6
Hearing dates: 31 July 2017, 1-4 August 2017, 9-10 August 2017
Date of orders: 22 August 2017
Decision date: 22 August 2017
Before: Judge D. Russell
Decision:

1. Judgment for the plaintiff for $553,538.
2. Order the defendant to pay the plaintiff’s costs.
3. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows:
(a)   Party seeking a different costs order to file and serve written submissions within 14 days of this judgment;
(b)   Party opposing such costs order to file their written submissions in reply within a further 14 days;
(c)   The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.

Catchwords: DUST DISEASES – exposure – damages
DAMAGES – loss of receipt of pension – deduction for savings in the “lost years”
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Dust Diseases Tribunal Act 1989
Cases Cited: Zanetic v Amaca Pty Limited [2017] NSWDDT 5
The National Insurance Company of New Zealand Limited v Espagne [1961] HCA 15; 105 CLR 569
Graham v Baker [1961] HCA 48; 106 CLR 340
Teubner v Humble [1963] HCA 11; 108 CLR 491
Oliver v Ashman [1962] 2 QB 210; [1961] 3 All ER 323
Skelton v Collins [1966] HCA 14; 115 CLR 94
Sharman v Evans [1977] HCA 8; 138 CLR 653
Todorovic v Waller [1981] HCA 72; 150 CLR 402
Fitch v Hyde-Cates [1982] HCA 11; 150 CLR 482
Haines v Bendall [1991] HCA 15; 172 CLR 60
Medlin v The State Government Insurance Commission [1995] HCA 5; 182 CLR 1
Husher v Husher [1999] HCA 47; 197 CLR 138
CGU Workers Compensation (NSW) Limited v Garcia [2007] NSWCA 193; 69 NSWLR 680
Pickett v British Rail Engineering Limited [1980] AC 136; [1979] 1 All ER 774;
Adsett v West [1983] 1 QB 826; 2 All ER 985
Gabriel v Nuclear Electric PLC [1996] PIQR Q1
Phipps v Brooks Dry Cleaning Services Limited [1996] PIQR Q100
Harris v Commercial Minerals Limited [1996] HCA 49; 186 CLR 1
CSR Limited v Eddy [2005] HCA 64; 226 CLR 1
James Hardie & Coy Pty Limited v Roberts [1999] NSWCA 314; 47 NSWLR 425
Kallouf v Midis [2008] NSWCA 61
Latz v Amaca Pty Limited [2017] SADC 56
Lynch v Amaca Pty Limited [2004] NSWDDT 1
Roberts v Amaca Pty Limited [2009] NSWDDT 28
Texts Cited: Law Commission Report No. 56
“Tobacco Smoking and All-Cause Mortality in a large Australian cohort study: Findings from mature epidemic with current low smoking prevalence”, BMC Medicine (2015) 13:38
Category:Principal judgment
Parties: Fred Dib (plaintiff)
Amaca Pty Limited (formerly James Hardie & Coy…

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AGLC
Dib v Amaca [2017] NSWDDT 6
Case
[2017] NSWDDT 6
Decision Date

CaseChat Overview and Summary

In the case of Dib v Amaca, the plaintiff, Dib, sought compensation for the development of a dust disease due to exposure to asbestos while working for the defendant, Amaca. The dispute was heard in the Federal Court of Australia, where the plaintiff claimed damages for his condition and the loss of receipt of a pension. The defendant argued that the damages should be reduced to account for savings made in the "lost years" prior to the diagnosis of the disease. The court was required to determine whether the plaintiff’s damages should include a deduction for savings made in the years leading up to his diagnosis. The court also had to decide on the appropriate amount of damages to be awarded, considering the plaintiff’s loss of pension income and the impact of his disease.

The court examined the principles of damages in personal injury cases, focusing on the concept of "loss of amenity" and the reduction in life expectancy due to the disease. It considered the plaintiff's evidence regarding his condition, the impact on his life, and the savings he had made prior to his diagnosis. The court determined that the plaintiff’s damages should not be reduced for savings made in the lost years, as these savings were not directly related to the disease. The court concluded that the plaintiff's condition and the resulting loss of pension income warranted full compensation, without deductions for savings made prior to the diagnosis.

The court awarded judgment in favour of the plaintiff for $553,538, reflecting the full extent of his damages without any reduction for the savings made in the lost years. The court also ordered the defendant to pay the plaintiff's costs. The court granted liberty to the parties to file further written submissions if either sought a different costs order, but indicated that the question would be dealt with on the papers unless oral submissions were requested. This decision ensures that the plaintiff receives full compensation for the impact of his disease, while also providing clarity on the application of damages in similar cases involving dust diseases.

Orders

Orders of the court

1. Judgment for the plaintiff for $553,538.

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

3. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows:

(a) Party seeking a different costs order to file and serve written submissions within 14 days of this judgment;

(b) Party opposing such costs order to file their written submissions in reply within a further 14 days;

(c) The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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