Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd

[2015] NSWCA 281

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281

Hearing dates:

16 - 17 October 2014

Decision date:

17 September 2015

Before:

Basten JA at [1];
Macfarlan JA at [33];
Gleeson JA at [36]

Decision:

(1)   Appeal allowed.

 

(2)   Cross-appeal dismissed.

 

(3) Judgment and orders of the Dust Diseases Tribunal given on 29 August 2013 as between the plaintiff and the defendant be set aside except as to costs, and in place thereof, order that there be judgment for the plaintiff against the defendant in the sum of $342,289, together with such further amount as the Tribunal shall award pursuant to s 15B of the Civil Liability Act 2002 (NSW).

 

(4) Proceedings remitted to the Tribunal for the purpose of determining the damages to be awarded under s 15B of the Civil Liability Act 2002 (NSW) in accordance with law.

 (5)   Respondent/cross-appellant to pay the appellant/cross-respondent’s costs in this Court.

Catchwords:

APPEAL – dust diseases –– appeal on point of law – whether primary judge erred in point of law by making factual errors – whether no evidence of exposure to asbestos dust or that employer knew or should have known of exposure

 

TORTS – negligence – dust diseases – damages – whether compensation paid and payable to worker’s partially dependent widow pursuant to s 8(2B)(d) of the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) (Dust Diseases Act) should be deducted from damages awarded to the Estate under s 15B of the Civil Liability Act 2002 (NSW) – whether general law rule against double recovery applies – whether s 12D of the Dust Diseases Act prohibits deduction of such compensation from s 15B damages – whether s 15B(6) of the Civil Liability Act prevented award of damages for gratuitous services rendered by deceased to dependent wife – whether s 15B damages reduced because the widow’s need for domestic services satisfied by family members after death of the worker

 

STATUTORY INTERPRETATION – beneficial legislation not given constrained meaning – statutes of one legislature to be construed to achieve coherence – word appearing twice in one subsection presumed to have single meaning – statutes “always speaking” so as to apply to general law as in force from time to time – absurdity to be eschewed

WORDS and PHRASES – “damages” – Civil Liability Act 2002 (NSW), s 3

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 3, 3B, 15B
Civil Liability Amendment Act 2006 (NSW), Sch 1 [11]
Civil Liability Amendment Bill 2006 (NSW)
Compensation to Relatives Act 1897 (NSW) ss 3, 4
Construction Safety Act 1912 (NSW)
Dust Diseases Tribunal Act 1989 (NSW) ss 4, 11, 12B, 25, 32
Interpretation Act 1987 (NSW) s 34
Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2
Motor Accidents Compensation Act 1999 (NSW) s 83
Motor Accidents (Lifetime Care and Support) Act 2006 (NSW)
Police Regulation (Superannuation) Act 1906 (NSW) ss 12D, 12E
Scaffolding and Lifts Act 1912 (NSW)
Scaffolding and Lifts Regulation 1950 (NSW) reg 73
State Insurance and Care Governance Act 2015 (NSW), Sch 10[4]
Uniform Civil Procedure Rules 2005 (NSW) r 51.53
Victims Compensation Act 1987 (NSW)
Workers’ Compensation Act 1926 (NSW) ss 8, 9
Workers’ Compensation (Amendment) Act 1964 (NSW)
Workers’ Compensation (Dust Diseases) Act 1942 (NSW) ss 5, 6, 7, 8(1), 8(2B), 8E
Workers’ Compensation (Dust Diseases) Amendment Act 1967 (NSW)
Workers’ Compensation (Dust Diseases) Amendment Bill 1967 (NSW)
Workers’ Compensation (Dust Diseases) Regulation 2008 (NSW) reg 8
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW)
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Bill 1998 (NSW)
Workers’ Compensation (Silicosis) Act 1942 (NSW)

Cases Cited:

Aid/Watch Inc v Commissioner of Taxation [2010] HCA 42; 241 CLR 539
Allianz Australia Insurance Ltd v BlueScope Steel Ltd [2014] NSWCA 276; 87 NSWLR 332
Amaba Pty Ltd v Booth [2010] NSWCA 344
Amaca Pty Ltd v Booth [2011] HCA 58; 246 CLR 36
Amaca Pty Ltd v Cremer (As executor of the estate of the late Winifred Cremer) [2006] NSWCA 164; 66 NSWLR 400
Amaca Pty Ltd v Novek [2009] NSWCA 50; 9 DDCR 199
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288; 3 DDCR 149
BHP Billiton Ltd v Dunning [2015] NSWCA 55
Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
Burnicle v Cutelli [1982] 2 NSWLR 26
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
Clark v Macourt [2013] HCA 56; 253 CLR 1
Commercial Minerals Ltd v Harris [1999] NSWCA 94
Commissioner of Police (NSW) v Eaton [2013] HCA 2; 252 CLR 1
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64
CSR Ltd v D’Arcy (1996) 40 NSWLR 721
CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1
Cummings v Canberra Theatre Trust (Federal Court (Full Court), 18 June 1980, unrep)
De Sales v Ingrilli [2002] HCA 52; 212 CLR 338
Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113
Downes v Amaca Pty Ltd [2010] NSWCA 76; 78 NSWLR 451
Fisher v Hebburn Ltd [1960] HCA 80; 105 CLR 188
Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161
Haines v Bendall [1991] HCA 15; 172 CLR 60
Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1
Hodges v Frost (1984) 53 ALR 373
Hore v Albury Radio Taxis Co-operative Society Limited [2002] NSWSC 1130; 56 NSWLR 210
James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729
Kelly v The Queen [2004] HCA 12; 218 CLR 216
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
Kostas v HIH Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Manser v Spry [1994] HCA 50; 181 CLR 428
McPherson’s Ltd v Eaton [2005] NSWCA 435; 65 NSWLR 187
National Insurance Co of New Zealand v Espagne [1961] HCA 15; 105 CLR 569
Nguyen v Nguyen [1990] HCA 9; 169 CLR 245
Pacific Power v Royal [1999] NSWCA 350; 47 NSWLR 366
Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50
Preston v Commissioner for Fair Trading [2011] NSWCA 40; 80 NSWLR 359
Public Trustee v Zoanetti [1945] HCA 26; 70 CLR 266
R v Ireland; R v Burstow [1998] AC 147
Redding v Lee [1983] HCA 16; 151 CLR 117
SAS Trustee Corporation v Budd [2005] NSWCA 366
State of New South Wales v Perez [2013] NSWCA 149; 84 NSWLR 570
Stingel v Clark [2006] HCA 37; 226 CLR 442
Sturch v Willmott [1997] 2 Qd R 310
Sullivan v Gordon [1999] NSWCA 338; 47 NSWLR 319
The Queen v Gee [2003] HCA 12; 212 CLR 230
Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449
Workers’ Compensation Dust Diseases Board of NSW v Cook [2015] NSWCA 270

Texts Cited:

H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002, Butterworths)

 

D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths)

  D Villa, Annotated Civil Liability Act 2002 (NSW), (2nd ed, 2013, Lawbook Co)

Category:

Principal judgment

Parties:

Gerisamos Dionisatos (for the Estate of the late George Dionysatos) (Appellant and cross-respondent)
Acrow Formwork & Scaffolding Pty Ltd (formerly Cyclone Double-Grip Scaffolding Pty Ltd) (First respondent and cross-appellant)
State of New South Wales (Second respondent)
Gordian Runoff Limited (Third respondent)

Representation:

Counsel:
Mr P Semmler QC / Mr S Tzouganatos (Appellant and cross-respondent)
Mr G M Watson SC / Mr J Sheller (First respondent and cross-appellant)
Submitting appearance (Second respondent)
Submitting appearance (Third respondent)

  Solicitors:
Turner Freeman (Appellant and cross respondent)
Hunt & Hunt (First respondent and cross appellant)
Rankin Ellison Lawyers (Second respondent)
Thompson Cooper Lawyers (Third respondent)

File Number(s):

2013/289030

 Decision under appeal 

Court or tribunal:

Dust Diseases Tribunal

Citation:

[2013] NSWDDT 8

Date of Decision:

29 August 2013

Before:

Curtis DCJ

File Number(s):

210/2012

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr George Dionysatos was employed by the respondent (Acrow) from 1963 to 1969 as a scaffolder at the construction site of the Sydney Opera House. Mr Dionysatos became ill in October 2011, was diagnosed with mesothelioma in April 2012, and died on 13 July 2012. Prior to his illness, Mr Dionysatos cared for his wife who suffered from dementia and other illnesses. Mr and Mrs Dionysatos’ children and granddaughter have been providing care for her since.

Shortly before his death, Mr Dionysatos commenced proceedings against Acrow in the Dust Diseases Tribunal (Tribunal) alleging, amongst other things, that he contracted mesothelioma as a result of his exposure to asbestos dust and fibre during the course of his employment with Acrow and that Acrow had been negligent in the performance of its duties as his employer by permitting his exposure to asbestos. The proceedings were continued thereafter by his son as representative of Mr Dionysatos’ estate (Estate).

Upholding the claim, the Tribunal awarded damages of $490,142 to the Estate.

One component of that sum included $147,853 by way of damages pursuant to s 15B of the Civil Liability Act 2002 (NSW) (s 15B damages) for Mr Dionysatos’ loss of capacity to provide gratuitous domestic services to Mrs Dionysatos.

In assessing s 15B damages, the primary judge made a deduction of $207,072, which was the value of compensation awarded by the Dust Diseases Board (Board) to Mrs Dionysatos, as a spouse “partially dependent on [Mr Dionysatos] for support”, pursuant to s 8(2B)(d) of the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) (Dust Diseases Act). That compensation was paid and payable by way of a lump sum and weekly payments.

Section 15B(6) of the Civil Liability Act provided that s 15B damages could not be awarded “if the dependant has previously recovered damages in respect of that loss of capacity.”

Section 12D of the Dust Diseases Tribunal Act 1989 (NSW) (Tribunal Act) provided that, in determining damages for non-economic loss (for claims such as by the Estate) in proceedings before the Tribunal, no deduction is to be made for any amount of compensation paid or payable under the Dust Diseases Act. ‘Non-economic loss’ as defined in s 12D(3)(e) included “damages or compensation for … the need for” gratuitous domestic services “which have been or are to be provided to a person by another person”. That provision predated s 15B of the Civil Liability Act.

The Estate appealed as to the award of damages and Acrow cross-appealed with respect to the finding of liability. The appeal and cross-appeal were limited to errors in point of law.

Acrow’s cross-appeal challenged factual findings made by the primary judge, contending that there was “no evidence” for his Honours findings that:

(1)   Mr Dionysatos was exposed to asbestos dust when working at the Opera House site; and

(2)   Acrow knew, or should have known, of Mr Dionysatos’ exposure to asbestos dust.

The Estate’s appeal raised the following issues:

(3)   Should the compensation awarded to Mrs Dionysatos by the Board be deducted from the Estate’s s 15B damages applying the rule against double recovery?

(4) Alternatively, does s 12D of the Tribunal Act operate to prohibit the deduction of Mrs Dionysatos’ statutory benefits from the Estate’s s 15B damages?

(5) Has Mrs Dionysatos previously “recovered damages” within the meaning of s 15B(6) in respect of the loss of Mr Dionysatos’ capacity to provide gratuitous domestic services to her as a dependant, with the consequence that the Estate cannot recover s 15B damages at all?

(6)   Did the primary judge err in his approach to s 15B damages by taking into account “filial duties” of those presently providing care and services to Mrs Dionysatos?

Held, allowing the Estate’s appeal, and dismissing Acrow’s cross-appeal:

(1) & (2) Where competing inferences may be drawn from different material, it is well within the scope of the tribunal of fact to determine which would be preferred. Acrow did not establish that the primary judge erred in point of law in making the findings of fact that Mr Dionysatos was exposed to asbestos while working at the Opera House, and that Acrow knew or should have known of the exposure: [96]-[104], [112], [126]-[127], [142], [153] (Gleeson JA; Basten JA and Macfarlan JA agreeing).

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 applied.

BHP Billiton Ltd v Dunning [2015] NSWCA 55 considered.

(3)   The compensation awarded to Mrs Dionysatos by the Board should not be deducted from the Estate’s s 15B damages:

(a)   The primary judge erred by disregarding the fact that the compensation was awarded to Mrs Dionysatos, not the Estate: [201]-[208] (Gleeson JA; Macfarlan JA agreeing).

Haines v Bendall [1991] HCA 15; 172 CLR 60; SAS Trustee Corporation v Budd [2005] NSWCA 366; Manser v Spry [1994] HCA 50; 181 CLR 428; Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 applied.

(b) The compensation paid to Mrs Dionysatos by the Board did not represent the “same loss” that is compensated by s 15B damages. The compensation paid to a dependant who was partially dependent on the worker for support under s 8(2B)(d) of the Dust Diseases Act was a proportion of the defined benefit which may be awarded under s 8(2B)(b) of the Dust Diseases Act. The award was not commensurate with the “value” of the loss of support. Section 15B damages, on the other hand, are to compensate the injured claimant for loss of the claimant’s capacity to provide gratuitous domestic services: [27] (Basten JA); [209]-[218] (Gleeson JA; Macfarlan JA agreeing).

Amaca Pty Ltd v Novek [2009] NSWCA 50; 9 DDCR 199 applied.

Fisher v Hebburn Ltd [1960] HCA 80; 105 CLR 188 considered.

(4)   In respect of s 12D:

(a)   Section 12D did not operate to prohibit the deduction of the compensation paid or payable to Mrs Dionysatos by the Board from the Estate’s s 15B damages because no deduction was required from the Estate’s s 15B damages under the general law: [236]-[243], [267] (Gleeson JA; Macfarlan JA agreeing).

Commercial Minerals Ltd v Harris [1999] NSWCA 94; Pacific Power v Royal [1999] NSWCA 350; 47 NSWLR 366 applied.

James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729 considered.

(b) The language of subs (3)(e) in its ordinary meaning expressly prevents the reduction of damages payable to the Estate on account of compensation paid or payable under the Dust Diseases Act to Mrs Dionysatos. Section 12D should not be read down so as to exclude s 15B damages from its operation: [9]-[17] (Basten JA; Macfarlan JA agreeing).

Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512; Aid/Watch Inc v Commissioner of Taxation [2010] HCA 42; 241 CLR 539; Amaca Pty Ltd v Cremer (As executor of the estate of the late Winifred Cremer) [2006] NSWCA 164; 66 NSWLR 400; Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 applied.

(c) If (contrary to the conclusion in (a) above) the compensation was deductible from the s 15B damages under general law, the definition of ‘non-economic loss’ in subs (3)(e), when read into the substantive provision, covered the essential attributes of a claim for s 15B damages with the consequence that s 12D(2) would prohibit the deduction of Mrs Dionysatos’ compensation from the Estate’s award of s 15B damages: [244]-[266], [268] (Gleeson JA; Macfarlan JA agreeing).

Commissioner of Police (NSW) v Eaton [2013] HCA 2; 252 CLR 1; Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113; Kelly v The Queen [2004] HCA 12; 218 CLR 216 applied.

(5) Section 15B(6) did not apply to exclude the Estate’s entitlement to s 15B damages.

(a) The meaning of “damages” in s 15B(6) does not include payments of compensation by the Board. The absence of any relation between the amount of the compensation and the particular dependency, demonstrates the inappropriateness of treating the compensation as “damages”: [18]-[30] (Basten JA; Macfarlan JA agreeing).

Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 applied.

(b) The “loss of capacity” referred to in s 15B(6) refers to the claimant’s loss of capacity to provide gratuitous domestic services to a dependant. That loss is different from the injury to a dependant, who is partially dependent on the worker for support as at the date of his death: [284]-[290] (Gleeson JA; Macfarlan JA agreeing).

Commissioner of Police (NSW) v Eaton [2013] HCA 2; 252 CLR 1 applied.

(6)   The primary judge erred in his approach to s 15B damages by failing to evaluate the evidence concerning the extent to which Mr Dionysatos and the other family members had been jointly responsible in the past for the domestic care provided to Mrs Dionysatos, and focusing on the fact that Mrs Dionysatos’ need is now satisfied by other family members: [34]-[35] (Macfarlan JA); [297]-[315] (Gleeson JA, Basten JA agreeing).

State of New South Wales v Perez [2013] NSWCA 149; 84 NSWLR 570 applied.

Judgment

1. BASTEN JA: I agree with the orders proposed by Gleeson JA. I also agree with the comprehensive analysis set out in the reasons of Gleeson JA. The following observations are limited to that part of the analysis dealing with the worker’s claim for damages.

The issue

2. This area of the law of torts involves a complicated inter-relationship of the general law and statutory provisions. Thus, the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (“the 1944 Act”), in providing for the survival of causes of action in cases of wrongful death, excluded damages for pain and suffering, for bodily or mental harm and for the curtailment of expectation of life. [1] Those exclusions no longer apply with respect to death caused by a dust-related condition, by virtue of the Dust Diseases Tribunal Act 1989 (NSW) (”the Tribunal Act”), s 12B. That provision was introduced in 1998. [2]

   1. 1944 Act, s 2(2)(d).

   2. Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW), Sch 1[4].

3. The general law with respect to damages recoverable for tortious injury has also varied over time. Thus, in 1999, this Court held that an injured person who had, prior to the injury, provided gratuitous domestic services to a dependant could recover the value of those services from the tortfeasor. [3] That decision was overturned by the High Court in 2005. [4] That decision in turn was qualified by legislation which introduced s 15B of the Civil Liability Act 2002 (NSW). [5]

   3. Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338.

   4. CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64.

   5. Civil Liability Amendment Act 2006 (NSW), Sch 1 [11].

4. This history of development and change (more fully articulated by Gleeson JA) gives rise to an important consideration in the present case, namely the need to maintain internal coherence in the application of the different elements of the law concerning the assessment of damages in tort.

5. There is a further feature of the assessment of damages for tortious injury which results from the need to make allowance (in certain circumstances) for benefits received from other sources. These may include payments under insurance policies, charitable donations or government pensions and benefits. [6] Of direct significance in the present case is the scheme for payment of compensation to a worker (and his or her dependants) who is totally or partly disabled for work from a dust disease, pursuant to the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) (“the Dust Diseases Act”). The availability of such payments, and their relationship to awards of damages, have led to the formulation of a policy, broadly stated being to avoid “double recovery”. However, the interrelationship of such payments may be addressed by a range of solutions, available in different circumstances. In some cases, the precise scope of the policy may be difficult to identify.

   6.    See generally, Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002, Butterworths), Ch 8.

2. The critical issue in the present case arose from the receipt by Mrs Dionysatos, the widow of the deceased worker, of compensation paid pursuant to s 8(2B)(d) of the Dust Diseases Act. The question was whether that statutory entitlement should be deducted from any damages payable to the worker’s estate. The respondent tortfeasor contended that the compensation payable to her by the board covered precisely that loss of her husband’s ability to provide gratuitous domestic services as was sought to be the subject of an award of damages to his estate. It invoked both statute and general law principles against double recovery.

3. In circumstances where the compensation was paid to the widow pursuant to a statutory scheme and where the head of damages sought by the estate depended on statute, one would expect the answer to be found in statute.

Dust Diseases Act

8. Considering first the Dust Diseases Act, it may be noted that the Authority (formerly the Dust Diseases Board)[7] was established to determine claims for compensation under the Dust Diseases Act and to recover reimbursement of such amounts from third party tortfeasors (that is, other than an employer) where damages are recovered or recoverable. [8] The Dust Diseases Act has nothing to say about the assessment of damages under the general law. However, in dealing with the obverse of the present situation, the Authority is not entitled to reduce an award of compensation otherwise payable on the basis that the claimant has already been fully compensated by an award of damages. [9]

   7. See State Insurance and Care Governance Act 2015 (NSW), Sch 10[4].

   8. Dust Diseases Act, ss 5 and 8E.

   9. See Workers’ Compensation Dust Diseases Board of NSW v Cook [2015] NSWCA 270.

Tribunal Act, s 12D

9. The second piece of the legislative scheme provides a more promising source of resolution. The Tribunal Act established the Dust Diseases Tribunal as a court of record[10] with the primary function of determining claims for damages in respect of a dust-related condition or death. [11] Section 12D of the Tribunal Act, set out in full at [180] below, prohibits the Tribunal from making a deduction from any “damages for non-economic loss” for compensation paid or payable under the Dust Diseases Act. [12] The dispute as to the operation of s 12D focused on the language of sub-s (3)(e) identifying the pool of damages for non-economic loss from which no deduction could be made. The term “damages for non-economic loss” is defined to include “damages or compensation for … the need for services of a domestic nature or services relating to the nursing and attendance which have been or are to be provided to a person by another person,” gratuitously. [13]

   10. Tribunal Act, s 4.

   11. Tribunal Act, s 11.

   12. Tribunal Act, s 12D(2).

   13. Tribunal Act, s12D(3)(e).

10. Reading that language in its ordinary meaning, it expressly prevents that complained of in the present case, namely reduction of the damages payable to the worker’s estate on account of compensation paid or payable under the Dust Diseases Act to his widow. Context may also be important. There are two relevant contextual issues. The first, relating to sub-s (2), is that the Dust Diseases Act allows for payments of compensation to both injured workers and their dependants. The unqualified language of s 12D(2) is apt to refer to amounts payable to a dependant as well as to the injured worker or his or her estate.

11. Accepting that the language of “services … to be provided to a person by another person” is wide enough to include services provided by the worker to a dependant, the respondent nevertheless submitted that it could not have been so intended at the time of its enactment. At that time (1998) the approval of such an award in Sullivan v Gordon had not yet taken place, nor had the Civil Liability Act conferred any such entitlement. These circumstances may be conceded; the question is, nevertheless, whether the broad language of the provision should be read down so as to limit it to the kind of awards which might have been contemplated at the time it was enacted.

12. There are three reasons for not reading s 12D down in that way. The first is that the provision was intended to operate beneficially to the claimant and should be read consistently with that broad purpose. [14] There are numerous cases affirming the principle that remedial and beneficial legislation should be given a liberal, rather than a constrained interpretation. [15] Nevertheless, most such provisions will contain express or implied limitations on their scope of operation and it is not appropriate to disregard such limitations. [16] The force of the principle in the present circumstances, however, is that the ordinary meaning of the language is apt to include the provision of services by the worker to a dependant: such a reading would not strain the ordinary meaning.

    14. Amaca Pty Ltd v Cremer (As executor of the estate of the late Winifred Cremer) (2006) 66 NSWLR 400; [2006] NSWCA 164 at [49]-[50] (McColl JA).

    15.    See generally, D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, Butterworths), at [9.2]-[9.4].

    16. Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638 (Mason, Brennan, Deane and Dawson JJ).

13. Secondly, where reference to “a person” is intended to be restricted to the claimant or injured worker, the language of the provisions makes that manifest. So much may be seen from s 11 (power to make claims), s 11A (referring to “the person who is suffering from the dust-related condition … (the injured person)”) and s 12B (providing for damages for non-economic loss to survive the death of the plaintiff). It is significant that s 11 was in the original Act, s 11A was added three years before the provision in question and s 12B was introduced at the same time. The drafter could readily have used the language of “the plaintiff” or “the injured worker” or “the injured person” instead of the generic “a person”, if that had been intended.

14. Thirdly, the statute was intended to operate in the context of the general law. The kinds of damages identified as damages for non-economic loss were all bases of an award to be made in accordance with the general law. As explained by Gleeson CJ (albeit in a dissenting judgment) in Brodie v Singleton Shire Council:[17]

“Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, and the other the concern of courts. They exist in a symbiotic relationship.”

17. (2001) 206 CLR 512; [2001] HCA 29 at [31].

15. Thus it is that statutes are readily given an ambulatory effect, sometimes described as “always speaking”. [18] Thus, in Aid/Watch Inc v Commissioner of Taxation,[19] a case involving the scope of the concept of a “charitable institution” for the purpose of an exemption from liability to taxation, the joint reasons of the majority [20] stated at [23]:

“Where statute picks up as a criterion for its operation a body of the general law, such as the equitable principles respecting charitable trusts, then, in the absence of a contrary indication in the statute, the statute speaks continuously to the present, and picks up the case law as it stands from time to time. Further, where, as here, the general law comprises a body of doctrine with its own scope and purpose, the development of that doctrine is not directed or controlled by a curial perception of the scope and purpose of any particular statute which has adopted the general law as a criterion of liability in the field of operation of that statute.”

18. R v Ireland; R v Burstow [1998] AC 147 at 158 (Lord Steyn); Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 at [142] (Spigelman CJ, Handley JA agreeing).

19. (2010) 241 CLR 539; [2010] HCA 42.

20.    French CJ, Gummow, Hayne, Crennan and Bell JJ.

16. The reference to a “contrary indication in the statute” requires a basis for concluding that the statute was intended to operate on the general law as understood at the date of its enactment. There is no express support for that approach in the language of s 12D, or the amending statute generally. Further, the previous considerations are inconsistent with that approach.

17. It follows that s 12D required that damages be assessed without reduction for the compensation paid or payable to the widow of the deceased.

Civil Liability Act, s 15B

18. So long as the damages sought to be recovered under s 15B were available in accordance with the terms of that provision, the appellant must succeed in challenging the reduction made by the primary judge. It is therefore necessary to address the restriction on the availability of such damages said to flow from the terms of s 15B itself.

19. Section 15B(6) provided that a claimant may not be awarded damages for such a loss “if the dependant has previously recovered damages in respect of that loss of capacity.” That language gave rise to two questions, namely (a) had the widow recovered “damages” (being the compensation paid or payable by the board) and, if so, (b) were they damages “in respect of” the loss of her deceased husband’s capacity to care for her?

20. Generally speaking, a distinction is drawn between “damages” and “compensation”, the former being used to refer to recovery for tortious loss and the latter to a statutory payment for loss or injury, not necessarily tortiously caused and often arising from employment. However, the Civil Liability Act has its own definition of “damages” which is capable of a broader meaning:[21]

damages includes any form of monetary compensation but does not include:

(a)   any payment authorised or required to be made under a State industrial instrument, or

(b)   any payment authorised or required to be made under a superannuation scheme, or

(c)   any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.

21. Civil Liability Act, s 3, damages.

21. The form of the definition is curious in a number of respects. First, being inclusive and not exclusive, the phrase “any form of monetary compensation” must be given a broad meaning. Further, the exclusions are themselves curious. They include a range of matters which would not normally be considered damages in the sense that they are not amounts awarded by a court, although they might be payments to be taken into account in considering what damages should be awarded. [22] The exceptions do not include subventions such as sickness or disability benefits payable under social security schemes.

    22. Compare the Compensation to Relatives Act 1897 (NSW), s 3(3).

22. In order to make sense of the definition, it is difficult to avoid the conclusion that, despite its apparently expansive form, it cannot in a practical sense extend beyond the heads of damages capable of being awarded by a tribunal dealing with a claim in, for example, negligence or breach of contract. [23] That conclusion is confirmed by the definition in s 11 in Pt 2 (which contains s 15B) that “personal injury damages means damages that relate to the death of or injury to a person.” Section 11A then provides that “[a] court cannot award damages, or interest on damages, contrary to this Part.”[24] The question is, therefore, whether in s 15B(6) the term “damages” is used in two different senses. When first used to prohibit the claimant being awarded “damages” it must be used in the ordinary general law sense, whereas when asking if “the dependant has previously recovered damages” it is being used in a broader sense to include such things as compensation payments under statute.

    23. See, eg, Civil Liability Act, s 5, negligence and s 5A(1).

    24. Civil Liability Act, s 11A(3).

23. Ordinarily, the same word used in a single provision would not be construed so as to have differing meanings. Although on occasion, the same word may have different meanings in a single provision or in related provisions, it has been said that “[t]here ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”[25] There is no clear basis for giving the word other than the same meaning in each part of this provision. On that approach, the payments of compensation by the board did not constitute “damages”, not being damages awarded by a court or tribunal for breach of duty. Accordingly, the exclusion in s 15B(6) did not apply.

    25. Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 (Hodges J); Pearce and Geddes at [4.6].

24. If that is correct, it is not necessary to consider the second question. However, on closer consideration the second question, which appears from the form of the legislative provision to be a separate and independent issue, may be revealed to be part of a single composite question. The result is to confirm the answer given to the first question.

25. Under s 15B, the loss of capacity for which damages may be awarded is a loss of the injured worker’s capacity “to provide gratuitous domestic services” to his or her dependants. The question is therefore whether the payment by the board was “in respect of” that loss of capacity. Under the Dust Diseases Act, s 8(2B) the condition for an entitlement of a dependant to receive a payment is being “dependent for support” as, for example, a surviving spouse or child of the worker. [26] Dependency may be total or more limited (described in the section as “partial”). For the reasons given by Gleeson JA, the term “support” is not limited to financial support. However, being wholly dependent on a person for support does not indicate that the dependant is in a vegetative state. What it means precisely was not considered in submissions. It may mean that there was a substantial need for support, all of which was supplied by the deceased.

    26. Dust Diseases Act, s 8(2B)(a).

26. Where the need for support is “partial” then the payment is to be “reasonable and proportionate” to the injury. [27] There is a subsidiary question as to what is meant by “the injury to that person”, which could refer either to the worker or to the dependant. It would be curious if it referred to the worker, as “the worker” is a defined term in the subsection and refers to the person whose death has given rise to the need for compensation. On the other hand, it is curious if it refers to “injury” to the dependant, because his or her injury is not a dust-related condition. It would have been more natural to refer to the loss suffered by the dependant. Nevertheless, the result is the same in either case and the eccentricity of the drafting need not be further addressed.

    27. Dust Diseases Act, s 8(2B)(d).

27. The critical feature of the entitlement of a dependant is that it is to be a portion of a rate of compensation prescribed by par (b) of the same subsection. It is not an amount which bears any defined relationship to the loss arising from the dust-related condition or death. Further, the prescribed amount has no particular relationship to the value of gratuitous domestic services, which will, inevitably, vary from case to case.

28. In other words, although the need for gratuitous domestic services may form the basis of an entitlement based on dependency, and in that respect the payment by the board is “in respect of” that element of dependency, the absence of any relationship between the amount of the payment and the particular dependency demonstrates the inappropriateness of treating the payment as a form of “damages”. This conclusion reinforces the conclusion already reached that s 15B(6) has no application to the present case.

29. Finally, to the extent that there is ambiguity within s 15B(6), it depends upon the combined operation of two statutes of the same legislature. Nor was the inter-relationship overlooked in the drafting of the section. The 2006 Amendment Act which introduced s 15B also made it applicable, by amendment to s 3B(1)(b), to claims for damages for dust-related conditions under the Tribunal Act. Had it been intended by s 15B(6) to exclude the operation of the provision where a dependant of an injured worker had obtained payments from the Dust Diseases Board (as it then was) on the basis of a dependency arising, at least in part, from the need for gratuitous domestic services provided by the worker, that could have been stated much more precisely than simply by reference to receipt of “damages” in respect of the worker’s loss of capacity.

30. It follows that s 15B(6) does not restrict the damages available under s 15B in the present case.

Conclusions

31. As the worker’s estate submitted, the primary judge was wrong in assessing damages by reducing the amount of the award by the amount of the payments made or to be made by the board or now the Authority to the widow of the deceased. As the amount of the deduction is known, it would be a simple matter for this Court to reinstate the calculated deduction and give judgment for the amount which should have been awarded.

32. However, as explained by Gleeson JA, there has been an additional error on the part of the trial judge in making allowance for the assistance provided by others in caring for the widow during her dementia. Accordingly, the final figure cannot be determined by this Court. That figure will be higher than the amount presently determinable, but it is not possible to say by how much on an appeal limited to determining whether there have been errors of law. Accordingly, it is necessary to remit the matter to the Tribunal, although with the hope that the assessment may be resolved without further litigation. In the meantime, the appellant estate is entitled to a judgment for the amount which can be resolved on the figures available in the judgment of the Tribunal.

33. MACFARLAN JA: I agree with the judgments of Basten and Gleeson JJA.

34. In support of Gleeson JA’s conclusions in relation to the primary judge’s assessment of s 15B damages ([291]-[315] below), I refer to my observation in State of New South Wales v Perez [2013] NSWCA 149; 84 NSWLR 57 at [39] concerning s 15B(2)(d) that:

“[s]ense can only be given to the paragraph by construing it as referring to the needs of the dependants that would, but for the claimant’s injury, have been satisfied by the claimant. In conformity with the provisions as so construed, the court must determine whether the dependants’ needs for the services that would have been provided by the claimant are “reasonable in all the circumstances”.”

35. I went on to give an example of circumstances in which the dependants’ needs might not be “reasonable in all the circumstances”. The present case is not like that example. Here, Mrs Dionysatos’ need for Mr Dionysatos to provide her with assistance (if he had not been prevented from providing it by his illness and subsequent death) was reasonable notwithstanding that other family members might have been available to assist.

36. GLEESON JA:

Table of contents

Introduction	[37]
Issues on appeal and cross-appeal	[45]
The use of asbestos at the Opera House	[53]
Applicable regulations with respect to the inhalation of dust	[61]
Mr Dionysatos’ exposure to asbestos	[64]
Matters not in issue	[74]
The Tribunal’s reasons on liability	[77]
Issue 1: Asserted factual errors	[93]
Exposure to dust containing asbestos	[105]
(1)   Corroboration by Mr Tsoukalas	[106]
(2)   The use of gunite	[113]
(3)   Exposure in February 1966	[128]
Acrow’s knowledge of exposure	[143]
Issue 2: Damages	[157]
Relevant legislation	[160]
Dust Diseases Act	[161]
Section 12D Tribunal Act	[180]
Section 15B damages	[184]
Issues on appeal with respect to damages	[195]
(1) Ground 3: Should the Dust Diseases Act compensation awarded to the dependant be deducted from the Estate’s damages?	[196]
The primary judge’s reasons	[197]
Consideration	[201]
(2) Ground 4: Does s 12D of the Tribunal Act operate to prohibit the deduction of Mrs Dionysatos’ statutory benefits from the Estate’s claim for s 15B damages?	[232]
The primary judge’s reasons	[233]
Consideration	[236]
(3)   Notice of contention: Has Mrs Dionysatos previously “recovered damages” in respect of Mr Dionysatos’ loss of capacity to provide domestic services?	[269]
Notice of contention	[275]
Consideration	[284]
(4)   Grounds 1 and 2: Did the primary judge adopt an erroneous approach to the assessment of s 15B damages?	[291]
The primary judge’s reasons	[291]
Consideration	[297]
Conclusion and orders	[316]

Introduction

37. From about 1963 to 1969 Mr George Dionysatos was employed by the first respondent (Acrow) as a scaffolder on the construction of the Sydney Opera House. He suffered from mesothelioma and died on 13 July 2012. Shortly prior to his death, he brought a claim in the Dust Diseases Tribunal (the Tribunal) against Acrow.

38. The proceedings commenced by Mr Dionysatos against Acrow were continued by the appellant as the legal personal representative of the deceased’s estate (the Estate). Mr Dionysatos’ entitlement to damages (which did not include any claim for future economic loss) did not depend on him surviving until judgment: Dust Diseases Tribunal Act 1989 (NSW) (the Tribunal Act), s 12B(2).

39. The amended statement of claim alleged that the cause of Mr Dionysatos’ illness was his exposure to asbestos dust and fibre during the course of his employment with Acrow and that Acrow had been negligent in the performance of its duties as his employer by permitting his exposure to that dust and fibre. It was also alleged that Acrow had breached various statutory duties and contractual obligations.

40. Acrow denied liability. If liability was found, quantum was agreed except for one element of the damages claim.

41. After a hearing lasting a number of days, the Tribunal (constituted by Judge Curtis), by judgment dated 29 August 2013, upheld the Estate’s claim against Acrow and awarded the Estate damages of $490,142: Dionisatos v Acrow Formwork and Scaffolding Pty Ltd; Acrow Formwork and Scaffolding Pty ltd v Gordian Runoff Ltd [2013] NSWDDT 8. That sum included a component of $147,853 by way of damages for Mr Dionysatos’ loss of capacity to provide gratuitous domestic services for his wife, who suffers from dementia and other physical difficulties. Damages of that kind may be awarded pursuant to s 15B of the Civil Liability Act 2002 (NSW) if certain preconditions are satisfied.

42. In assessing the amount awarded for what may be described as “s 15B damages”, the Tribunal deducted an amount of $207,072. This deduction reflected the value of compensation paid and payable to Mrs Dionysatos under the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) (Dust Diseases Act). The primary judge reasoned that the past and future compensation payments received by Mrs Dionysatos from the Dust Diseases Board (the Board) were in respect of the “same” loss as claimed by the Estate under s 15B and accordingly, this amount should be deducted from the damages awarded to the Estate to avoid double recovery.

43. Both the Estate and Acrow have appealed from the Tribunal’s judgment. Their statutory right of appeal is limited to errors in point of law, or as to the admission or rejection of evidence: s 32(1) of the Tribunal Act. Each contends that the Tribunal erred in point of law in different respects.

44. For the reasons which follow, I have concluded that Acrow’s cross-appeal with respect to issues of liability should be dismissed, and the Estate’s appeal with respect to s 15B damages should be allowed, the order made by the Tribunal be set aside in part and that there be a judgment for the Estate against Acrow in the sum of $342,289, and that the Estate’s claim be remitted to the Tribunal for determination of damages under s 15B.

Issues on appeal and cross-appeal

45. It is convenient to commence with Acrow’s notice of cross-appeal. Ground 5, which related to damages, was withdrawn. Grounds 1 to 4 challenged certain findings of the Tribunal on the question of liability, but did not clearly identify an erroneous decision of the Tribunal in point of law. Counsel for Acrow accepted this deficiency in oral argument and proceeded to identify, by reference to Acrow’s written submissions, three issues which were said to involve an erroneous decision in point of law – factual errors, duty of care and causation (tcpt CA 16/10/14 at 63, lines 25-32).

46. The issues raised by the asserted factual errors were whether his Honour’s decisions:

1. that Mr Dionysatos was exposed to asbestos while working at the Opera House site; and

2. that Acrow knew, or should have known, that asbestos was being used on the site and about the dangers of asbestos at that time,

were erroneous in point of law.

47. Those decisions were said to be based on either “no evidence” or insupportable inferences with respect to three factual findings relating to Mr Dionysatos’ exposure to asbestos (set out at [93]) and two factual findings relating to Acrow’s knowledge of that exposure (set out at [94]).

48. Counsel for Acrow acknowledged that if Acrow failed on its central submission challenging the asserted factual errors, then its other challenges on the questions of duty of care and causation would fall away (tcpt CA 16/10/14 at 61, lines 49-50).

49. The Estate’s grounds of appeal were directed solely to the award of s 15B damages. Three issues are raised by the Estate, namely, whether his Honour’s decisions:

1. in taking into account the existence of “filial duties” of other family members who are presently providing care and services to Mrs Dionysatos, and in consequence refusing to allow s 15B damages in respect of gratuitous care and services provided by Mr Dionysatos to his wife in periods when one or both of her children are now available to care for her;

2. to deduct compensation paid or payable to Mrs Dionysatos under the Dust Diseases Act valued at $207,072 when determining s 15B damages; and

3. to not treat the Estate’s claim for s 15B damages as “damages for non-economic loss” for the purposes of s 12D of the Tribunal Act,

were erroneous in point of law.

50. Acrow sought leave at the hearing to file a notice of contention seeking to uphold the Tribunal’s decision that compensation paid or payable to Mrs Dionysatos under the Dust Diseases Act was deductible from the Estate’s s 15B damages. Acrow placed reliance upon s 15B(6) of the Civil Liability Act (set out at [188]) which prevents an award of s 15B damages to a claimant (or the legal personal representative of a claimant) for any loss of the claimant’s capacity to provide gratuitous domestic services to any dependant in certain circumstances, namely, if the dependant “has previously recovered damages in respect of that loss of capacity”. The contention by Acrow was that Mrs Dionysatos had previously “recovered damages” within the meaning of s 15B(6) of the Civil Liability Act by reason of the compensation paid or payable under the Dust Diseases Act and accordingly s 15B(6) prevented the Estate from being awarded any s 15B damages at all.

51. Counsel for Acrow acknowledged that this was a new point which had not been raised before the Tribunal. Counsel further acknowledged that Acrow did not seek to set aside the judgment below, that is, the Estate could retain the s 15B damages even if the notice of contention was upheld (tcpt CA 16/10/14 at 28, lines 47-49).

52. Ultimately, the Estate did not object to the grant of leave to file a notice of contention on two conditions. Acrow accepted these conditions – namely, that Mrs Dionysatos (as the sole beneficiary of the Estate) can retain the s 15B damages awarded by the Tribunal to the Estate, whatever the outcome of the notice of contention, and that Acrow would pay the Estate’s costs of the appeal, if Acrow succeeds solely on this new point (tcpt CA 16/10/14 at 34, line 50 – 35 at line 24).

The use of asbestos at the Opera House

53. A description of the Sydney Opera House site in the relevant period is required. The principal contractor was M R Hornibrook (NSW) Pty Ltd (Hornibrook). Acrow (then known as Cyclone Double-Grip Scaffolding Pty Ltd) was a subcontractor involved in scaffolding and rigging work in the construction of the Opera House. Acrow employed somewhere between 80 and 100 scaffolders and riggers on the site. One of those scaffolders was Mr Dionysatos.

54. Archival records of the Public Works Department of New South Wales (Public Works Department) record that the Opera House was constructed in three stages. Stage I comprised the basic structure of the podium. Stage II included the casting and erection of shell segments, tile lids and the completion of the sails. This work was current when Stage III commenced in 1966. Part of the work in Stage II included the painting and fireproofing of the Stage Tower steelwork, concrete cladding and timber floors for the major and minor halls. The fireproofing of the Stage Tower steelwork required the successful tenderer, S A Butler Pty Ltd, to supply and coat steelwork with limpet asbestos spray to give a 2 hour fire rating for columns and stanchions, trusses, and in addition, to supply and coat asbestos spray with hardened surface in areas where indicated: see schedule of rates dated 28 January 1966.

55. In addition to spraying asbestos on steel beams, asbestos was used elsewhere in the construction of the Opera House as part of the work in Stage III, involving the fireproofing of chequer plate platforms with limpet asbestos. Chequer plate platforms were fabricated from one-quarter inch thick rolled steel plates. Compressed “fibre” sheet was also used in the construction of the Opera House.

56. A Public Works Department General Index book (Index) to the Stage III works, entitled “Anatomy of Stage Three Construction and Completion”, described the use of thick, flat asbestos cement sheets in several situations in vertical and horizontal surfaces. The supplier was noted in the Index as James Hardie Asbestos Pty Ltd (James Hardie). Evidence given by Mr Gazzard, a retired sales representative from James Hardie, confirmed that the basic components of compressed sheet were asbestos fibre, silica and cement. According to his evidence, compressed asbestos cement sheets were used in relation to floors for shoring, for formwork and the like. Mr Gazzard gave unchallenged evidence that he visited the Opera House during construction and observed compressed asbestos cement sheets supplied by James Hardie being used in the construction.

57. The Index described the use of sprayed asbestos and sprayed concrete in the Stage III works. Under the heading “Specifications Listing”, there is a reference to sprayed asbestos ceiling linings. The Index also contains the following references to the use of sprayed asbestos and sprayed concrete:

SPRAYED ASBESTOS

This particular form of surface treatment, which in offering fire rating also contributed to noise level reduction will be found used in certain plant rooms particularly upper surfaces. The subcontractor responsible for the material and its application/installation was Bowsers Asphalt Pty Ltd.

SPRAYED CONCRETE APPLICATION

Sprayed concrete application was applied by Nucrete Pty Ltd of Sydney as subcontractors to the Hornibrook Group. The areas of this application were primarily those of the thin concrete external skin to the two major auditoria and between the enclosed space and the foyers and including the enclosure walls of the stage machinery tower to the Opera Theatre. Note the use of flat asbestos cement in these situations. The material is also used behind the treated bronze infilling elements at the junction of shells A3,A2 and B3,B2. Details as to thickness, reinforcement, finish and concrete composition will be found in the records of O.A.P., Structural Engineers. These applications are also referred to as thin concrete … .

58. The Index identifies the subcontractor responsible for the application of sprayed asbestos as Bowsers Asphalt Pty Ltd (Bowsers Asphalt). This is not to be confused with the spraying of asbestos on the Stage Tower steelwork as part of Stage II. So much is apparent from the identification earlier in the Index of the contributions of Bowsers Asphalt with respect to Stage III works. Other documents establish that Bowsers Asphalt was recommended for acceptance as the successful tenderer for applying sprayed asbestos in August 1970, being after the period relevant to the Estate’s claim.

59. One further matter should be mentioned concerning the use of asbestos. Between 1990 and 2006 various asbestos surveys of the Opera House were conducted. Those documents were in evidence before the primary judge. A survey conducted in October 1990 provided a detailed description of the locations of asbestos-containing materials located during that survey. The author noted that the survey located only that asbestos which was exposed and that many areas could not be observed. In the survey summary, it was stated that typically asbestos material is present in a number of different forms including as vermiculite, containing chrysotile (white asbestos) packed in the ferulae and slab penetrations; asbestos cement cable trays and pipes; asbestos cement sheeting used as partitions, panels, walls, ceilings, floors, coverings etc. An updated asbestos survey dated 18 November 2005 noted, in relation to the Opera Stage Tower, that the steel frame has furring channels attached, which in turn has asbestos cement sheet cladding. That survey described the asbestos cement sheet being used as a solid form on to which the spray-crete has been applied to the exterior side forming a composite material.

60. Unsurprisingly it was not in issue before the Tribunal that asbestos was used on the Opera House site. Counsel for Acrow acknowledged so much in his closing submissions in the Tribunal. Acrow’s essential contention in the Tribunal, and repeated in this Court, is that there is no evidence that Mr Dionysatos was relevantly exposed to asbestos while working on the Opera House site.

Applicable regulations with respect to the inhalation of dust

61. Mention should be made at this stage of two regulations in the Scaffolding and Lifts Regulation 1950 (NSW) made pursuant to the Scaffolding and Lifts Act 1912 (NSW). These regulations applied to a person who carried out any building work.

62. Regulation 73(9) relevantly required adequate ventilation of all working places and approaches thereto by the circulation of fresh air sufficient to render harmless all fumes, dust or other impurities that may be injurious to health.

63. Regulation 73(10) relevantly required in connection with any spraying of any material, where there is given off any dust or fume of such character and to such extent as to be likely to be injurious to the health of persons employed, the taking of all practicable measures, either by securing adequate ventilation or by the provision and use of respirators or otherwise to prevent inhalation of such dust or fume.

Mr Dionysatos’ exposure to asbestos

Evidence of Mr Dionysatos

64. Mr Dionysatos gave affidavit evidence, which the primary judge accepted, concerning his scaffolding work at the Opera House site between 1963 and 1969:

11.   My job involved putting up scaffolding for use by various trades including plumbers, electricians, carpenters and laggers. The plumbers installed pipes and the electricians installed wires and switchboards. The carpenters put up the formwork, external and internal structures. The laggers put on insulation on pipes, beams and concrete blocks [sic]. I worked very closely with all of these trades. I also took down scaffolding and removed formwork timber. I also did general cleaning work including picking up off cuts and sweeping.

12.   I worked within metres of the various trades as they worked. I moved scaffolding around at the request of tradesmen. I was frequently directly underneath the work of these tradesmen. The dust they created flowed down onto me.

13.   On a number of occasions, while I was erecting and moving scaffolding, spraying was going on near where I was working. The spray was put on concrete blocks and on steel beams. The spraying involved a few men who used a spray machine which had a long rubber hose. A powder like substance was put in the back of the machine and the spray mixture came out of the hose. One man held the hose while another fed the powder into the machine. The man with the hose looked like a fireman. The spraying process was very dusty. I could see dust in the air for about 20 to 30 metres around where the spraying was carried out. The dust went on to the floor. As part of my job I cleaned up the floor including picking up off cuts and sweeping. I swept up the dust from the spray. As the overspray dried and we walked around in it more dust was stirred up. I inhaled this dust on a regular basis.

14.   Some of the spraying was done on scaffolds. I installed the scaffolds and helped to move them around while the spraying was going on. The dust got all over the scaffolds. I cleaned up the scaffolds to get rid of the dust. I turned over the planks and the dust went into the air and onto the floor. I swept up the dust. I got dust on me and my clothes from the spraying work. I inhaled this dust.

15.   Insulation was put around the pipes and on the floor for soundproofing. On the floor the insulation was in the form of a thick board or sheet, grey in colour and about 1 to 2 inches thick. On occasions I worked nearby when the sheets were cut using a heavy duty power saw. A lot of dust went into the air around me and on my clothes from this process.

16.   About once a fortnight when we finished working on a section and took down the scaffolding we cleaned up the area. I swept up dust and off cuts on the floor. I also cleaned the planks on the scaffold as I moved them around, usually by turning over the planks. This was a very dusty job. I saw the dust in the air in this process. I inhaled this dust.

17.   At the Opera house I worked 6 days a week from 7.00am to 5.00pm. I also did overtime. There was plenty of overtime. I often worked 16 hour days. There was a period of 3 months when I worked 7 days a week.

18.   I left the site before the building work was complete. The scaffolding work was coming to an end so I looked for work elsewhere.

19.   I was not told to stay away from where the spraying was taking place. I was not given a mask to wear or told anything about asbestos. Had I been told to wear a mask I would have. If I knew asbestos could kill me I would have left the job and found other work.

Evidence of Mr Tsoukalas

65. Mr Steve Tsoukalas was employed by the principal contractor, Hornibrook, in 1968. He spent about the first six months using a jackhammer and then started work supplying the scaffolders with scaffold pipes and the other equipment required to raise the scaffold. Towards the end of 1968 he was promoted to foreman of a gang charged with moving the steel scaffolding pieces from place to place for assembly and disassembly by employees of Acrow. One of the scaffolders was Mr Dionysatos, who Mr Tsoukalas described as a good scaffolder, a strong fellow with balance, and able to carry out “very high scaffold”. This work was part of Stage III of the Opera House, when finishing the “internal job”.

66. Mr Tsoukalas gave evidence concerning the spraying of material that he believed was asbestos onto steel beams; that this work began in 1968; and that the work was frequent, being carried out “maybe every day in the different areas”. The primary judge recorded Mr Tsoukalas’ observations of the air where the spraying occurred. Mr Tsoukalas described “a lot of dust like a cloud everywhere”. He also described the workmen using rags for protection from the dust because there were no masks provided. He said that scaffolding was used by the sprayers and, an air hose was used for cleaning up residue.

67. Mr Tsoukalas also gave evidence concerning the installation of soundproofing board from 1968. The primary judge noted that this material was removed from the Opera House in an asbestos removal program conducted in 1990. His Honour inferred that it did contain asbestos: at [8]. Notably this finding is not challenged. The installation of soundproofing board was part of what was referred to as the Stage III work. Mr Tsoukalas gave evidence that this work commenced from 1968. He described the compressed sheet as about three-quarters of an inch thick and used “for the acoustic”; it was cut with a power saw with a special wheel; and when it was cut it created “dust everywhere”. Mr Tsoukalas said that the fibro panels were used to hide the walls, and scaffolding was involved in that process. In addition, he said that the fibro cement was used “in every area” – “studios and projectors room and acoustic doors [sic]”.

244. The Estate responded by pointing to the use of the indefinite article in connection to the reference to “a person” in s 12(3)(e) and the absence of any reference in the definition to the claimant or plaintiff in the proceedings before the Tribunal. The Estate contended that the language of definition was expressed at a level of generality that was capable of covering both Griffiths v Kerkemeyer type claims and s 15B claims. It was submitted that if the reference to “person” was only intended to be a reference to the claimant or plaintiff in the proceedings before the Tribunal, then narrower language could have been used, and it was significant that the legislature had chosen more general language.

245. Accepting that the reference to “a person” in subs (3)(e) cannot be read in isolation from the earlier reference to “the need” for domestic services, there is much force in the Estate’s submissions.

246. In support of its narrower construction, Acrow made two submissions. The first was that s 12D(3)(e) cannot have been intended to apply to s 15B damages because it predated s 15B. Acrow emphasised that when s 12D was introduced in 1998, the common law equivalent of s 15B damages had not yet been recognised by this Court in Sullivan v Gordon. Although chronologically accurate, as will appear, this submission must be approached with some caution. The second submission was that s 12D(3)(e) does not reflect the language of s 15B.

247. Acrow also referred to the second reading speech for the 1998 Amendment Bill which included the extract set out at [238] above. That second reading speech confirms the legislative intention that s 12D was inserted to modify the rule against double compensation with respect to a claimant’s damages for non-economic loss. Otherwise, this second reading speech does not shed much light on the meaning of subs (3)(e).

248. The history of the state of the law with respect to Sullivan v Gordon damages was traced by the High Court in CSR Ltd v Eddy at [5]-[11]. It may be accepted that when s 12D was introduced in 1998, New South Wales did not permit recovery of damages reflecting the impaired capacity of plaintiffs to provide domestic services to their family or friends: Burnicle v Cutelli [1982] 2 NSWLR 26 (Reynolds and Mahoney JJ; Glass JA dissenting). However, as the High Court observed in CSR Ltd v Eddy at [9], the Queensland Court of Appeal had accepted such a claim in Sturch v Willmott [1997] 2 Qd R 310, as had the Full Court of the Federal Court of Australia sitting on appeal from the Supreme Court of the Australian Capital Territory: Cummings v Canberra Theatre Trust (Federal Court (Full Court), 18 June 1980, unrep), which had been followed in Hodges v Frost (1984) 53 ALR 373 at 384-385.

249. The submissions by Acrow raise for consideration, the principle of statutory interpretation that the text of a statute is ordinarily to be read as speaking continuously in the present: Commissioner of Police (NSW) v Eaton [2013] HCA 2; 252 CLR 1 at [97] (Gageler J). See also Stingel v Clark [2006] HCA 37; 226 CLR 442 at [26]-[27]; The Queen v Gee [2003] HCA 12; 212 CLR 230 at [7] (Gleeson CJ); Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 at [148] (Spigelman CJ); Hore v Albury Radio Taxis Co-operative Society Limited [2002] NSWSC 1130; 56 NSWLR 210 at [40] (Campbell J).

250. D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed 2014, LexisNexis Butterworths) at 156 [4.9] explain that “[l]egislation is usually deliberately drafted with the intention that the text is to be regarded as ambulatory, thereby embracing future changes in the subject matter”. Later at 159 [4.11] the authors state that it must “be certain that the words in question are being used in a generic sense before the ‘always speaking’ approach can be applied”.

251. In Deputy Commissioner of Taxation v Clark, Spigelman CJ explained the “always speaking” approach to statutory construction as follows (at [142]):

Where, as here, Parliament has chosen a formulation which is of indeterminate scope and of a high level of generality, a court should interpret the provision on the basis that the intention of the original enactment was that the particular application of the provision may vary over time. The context, however, remains one of the law of corporations. In particular it will be changes in the principles establishing duties of directors, specifically duties arising in a context of insolvent trading, that determine whether there has been any relevant change in the context which justifies a conclusion that conduct which may not have constituted a “good reason” in 1992, should now be regarded as a “good reason”.

259. This approach has been followed and applied in Preston v Commissioner for Fair Trading [2011] NSWCA 40; 80 NSWLR 359 at [34] (Campbell JA; Tobias and Young JJA agreeing); and in Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50 at [396] (Besanko J; Allsop CJ and Middleton J agreeing).

260. However, as Campbell J explained in Hore v Albury Radio Taxis Co-operative Society Limited at [43], some caution must be applied in the exercise of this principle. This is because there remains “a question of construction which needs to be decided, about whether a particular expression ought to be construed, in the context of the particular legislation in which it occurs, as actually extending to some new state of affairs to which it might arguably extend”.

261. In applying these principles to the present case, it needs to be recalled that the function of a definition is not to enact substantive law. It is to provide aid in construing the statute: Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103] (McHugh J). Thus, as his Honour explained (at [103]), the proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment in its context and having regard to its purpose and the mischief that it was designed to overcome.

262. When the definition in subs (3)(e) is read into the operative provision, it may be seen that s 12D(2) has been expressed at a relatively high level of generality when describing damages for non-economic loss for “the need” for domestic services “provided to a person by another person” gratuitously. Notably, the relevant “need” for domestic services, the subject of the claim for damages, is not expressly tied to the need of the claimant or plaintiff before the Tribunal.

263. Whether or not Sullivan v Gordon type damages, which are now recognised in a modified form by s 15B of the Civil Liability Act, were in the contemplation of the drafter of s 12D is not the point. The question is whether the language used in the definition in s 12D(3)(e), when read into the operative provision, describes a claim for damages for non-economic loss that answers the description of s 15B damages.

264. Although the arguments are somewhat finely balanced, on the assumption that the prohibition in s 12D(2) is engaged, the construction advanced by the Estate should be preferred. First, whilst the language used in subs (3)(e) readily answers the description of a Griffiths vKerkemeyer type claim, which is now recognised by s 15A of the Civil Liability Act, the language is sufficiently general to apply to things not then recognised or enacted.

265. Secondly, the definition in s 12D(3)(e) covers the essential attributes of a claim for s 15B damages, being the loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants. The preconditions to s 15B damages include in subs (2)(d) that there will be a “need” for the services to be provided to meet the six hours per week threshold and the six consecutive months threshold, and “that need” is reasonable in all the circumstances. Claims for s 15B damages may be seen to come within the description of the head of damage in s 12D(3)(e), which refers to the “need” for domestic services provided to a person (here the dependant) by another person (here the claimant) for which the first person has not paid and is not liable to pay any fee or charge.

266. Thirdly, the fact that s 12D does not expressly refer to the claimant’s loss of capacity to provide domestic services to the claimant’s dependants is not fatal. Accepting the “always speaking” approach to the interpretation of s 12D, the general language of s 12D(3)(e), which does not limit the “need” to the claimant’s need for domestic services, is equally apt to describe both Griffithsv Kerkemeyer type claims (see now s 15A) and Sullivan v Gordon type claims (see now s 15B).

Summary of conclusion on s 12D

267. In summary, it should be concluded that s 12D has no operation in the present case because under the general law, statutory benefits awarded to a third party, such as Mrs Dionysatos, are not required to be deducted from the Estate’s s 15B damages. Accordingly, ground 4 is not made out.

268. If the primary conclusion stated is wrong because the common law rule against double compensation is engaged with respect to Mrs Dionysatos’ statutory benefits, then I would conclude that s 12D would operate in the present case to exclude the deduction of Mrs Dionysatos’ statutory benefits from the Estate’s s 15B damages.

(3)   Notice of contention: Has Mrs Dionysatos previously “recovered damages” in respect of Mr Dionysatos’ loss of capacity to provide domestic services?

269. Acrow’s notice of contention relied upon s 15B(6) of the Civil Liability Act. Subsection (6), like subss (7) to (9) of s 15B prevents an award of s 15B damages in certain circumstances.

270. The term “damages” is defined broadly in the Civil Liability Act, s 3, to include any form of monetary compensation other than payments under State industrial instruments, payments under a superannuation scheme or payments made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.

271. Subsections (6) and (7), which should be read together, provide:

(6)   Circumstances when damages may not be awarded

The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant’s capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.

(7)    A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant’s loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity.

272. Reference should also be made to the next two subsections. Section 15B(8) prevents an award of damages under s 15B in respect of a claimant’s loss of capacity to provide gratuitous domestic services where the loss results from a motor accident injury, the claimant is a participant in the Scheme established by the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) and the treatment and care needs being provided pursuant to that Scheme include the provision of such domestic services to the claimant’s dependants.

273. Section 15B(9) similarly prevents an award of damages under s 15B in respect of a claimant’s loss of capacity to provide gratuitous domestic services where the loss results from an injury caused by a motor accident, and an insurer has made or is liable to make payments for such services under s 83 of the Motor Accidents Compensation Act 1999 (NSW).

274. In the case of each of these statutory schemes, the exclusion in subs (8) and (9) only operates “to the extent that” the gratuitous domestic services are in fact being compensated by either of the relevant motor accident schemes.

Notice of contention

275. Acrow’s notice of contention is somewhat curiously expressed, and states: “that the [primary] judge’s decision not [sic] to reduce the damages to which the plaintiff was entitled to recover was legally justified under s 15B(6) of the Civil Liability Act”.

276. Acrow contended that s 15B(6) had the effect in the present case of preventing any award of s 15B damages. It was submitted that the Estate (or more correctly the legal personal representative of the Estate) may not be awarded damages for any loss of Mr Dionysatos’ capacity to provide gratuitous domestic services to any dependant, because the dependant (Mrs Dionysatos) “has previously recovered damages in respect of that loss of capacity”.

277. The Estate did not suggest that Acrow’s attempt to support the primary judge’s decision on a new ground is not open on appeal under s 32(1) of the Tribunal Act because there was no “decision of the Tribunal in point of law” on that ground: cf Downes v Amaca Pty Ltd at [157] (Handley AJA), [59] (Basten JA), [120] (Campbell JA).

278. Although not articulated precisely in this way, Acrow’s contention relies upon the implicit decision of the primary judge to allow s 15B damages, notwithstanding the prohibition in s 15B(6). In the absence of any objection by the Estate, it is appropriate to deal with the notice of contention as raising an implicit decision of the Tribunal in point of law, that the prohibition in s 15B(6) did not apply here.

279. What is in issue is whether the compensation payments received by Mrs Dionysatos from the Board represent damages recovered “in respect of that loss of capacity”, that is, the loss of Mr Dionysatos’ capacity to provide gratuitous domestic services to any dependant. Acrow contended, and the Estate disputed, that the compensation received by Mrs Dionysatos should be so characterised.

280. Although not determinative, it is telling that Acrow’s written submissions in response to ground 3 are inconsistent with the construction it sought to give to s 15B(6) in its belated notice of contention. In its written submissions, Acrow emphasised the different character of the benefits under the Dust Diseases Act, which were said to be statutory, while the subject matter of s 15B(6)-(9) of the Civil Liability Act was described as “damages payable by tortfeasors under other legislation”.

281. In oral argument Acrow departed from its written submissions and contended that the compensation awarded to Mrs Dionysatos answers the description in s 15B(6) of “previously recovered damages” in respect of Mr Dionysatos’ loss of capacity to provide gratuitous domestic services to any dependant.

282. The Estate contended that s 15B(6) does not apply because the compensation paid or payable to Mrs Dionysatos under the Dust Diseases Act is not in respect of Mr Dionysatos’ loss of capacity to provide domestic services to any dependant (as referred to in s 15B), but compensation in respect of Mrs Dionysatos’ own injury (as referred to in s 8(2B)(d)); that is, the compensation in respect of the loss of support of her (deceased) husband.

283. The Estate further contended that the ordinary meaning of the word “recovered” was a strong indication that the reference to “damages recovered” in s 15B(6) is to be understood as a reference to recovery by legal process or action, unlike an award of compensation by the Board to dependants of a deceased worker. Attention was drawn to the dictionary meaning of “recovery”, which included, relevantly:

10.   Law the obtaining of right to something by verdict or judgment of a court of law: Macquarie Dictionary (Online).

Consideration

284. There are a number of difficulties with Acrow’s construction of s 15B(6). First, read in context, and particularly with the related provision in subs (7), the reference to “previously recovered damages” is better understood as a reference to damages recovered from a tortfeasor against whom the dependant of the claimant had a cause of action consequent upon the claimant’s death. The paradigm example would be the claim of a dependent widow under the Compensation to Relatives Act.

285. Secondly, although “damages” in subs (6) is broadly defined to include “compensation”, the statutory benefits to which a worker’s dependant is entitled under the Dust Diseases Act do not answer the description of damages “in respect of that loss of capacity”. The “loss of capacity” referred to in s 15B(6) is the impairment of the claimant’s capacity to provide gratuitous domestic services to any dependant. That loss is different from the injury to a person who is, relevantly, partially dependent on the worker for support as at the date of his death under s 8(2B)(d). The award made to the partially dependent widow is a proportion of the defined benefits which may be awarded under s 8(2B)(b) to a dependant who is wholly dependent.

286. Thirdly, on the construction advanced by Acrow, subs (7) would need to be read as having the effect of preventing the Board awarding any compensation to Mrs Dionysatos if s 15B damages had already been recovered by Mr Dionysatos or his Estate. But counsel for Acrow accepted that s 15B(7) did not operate so as to preclude the Board from awarding compensation under s 8 of the Dust Diseases Act (tcpt CA 17/10/14 at 97, line 29), and that there was no provision in the Dust Diseases Act, including as s 8(6), which would have that effect (tcpt CA 17/10/14 at 98, lines 26-49).

287. Acrow ultimately acknowledged in oral argument that its construction of subs (6) could not be easily carried through into subs (7) (tcpt CA 17/10/14 at 98, lines 30-31). This is a further reason for doubting Acrow’s construction of subs (6), as subss (6) and (7) are complementary provisions and should be construed so far as possible to operate in harmony and not in conflict: Commissioner of Police (NSW) v Eaton at [98] (Gageler J) and [78] (Crennan, Kiefel and Bell JJ).

288. Fourthly, a consideration of the secondary materials does not lead to a conclusion different to that which is suggested by the plain words of subs (6) and (7): Interpretation Act 1987 (NSW), s 34(1)(a). The second reading speech for the Civil Liability Amendment Bill 2006 (NSW) included the following:

Subsections (6), (7), (8) and (9) of proposed section 15B address potential overlaps between damages under proposed section 15B and other damages, whether at common law or under the statutory schemes referred to in proposed subsections (8) and (9). These provisions ensure that there will be no double recovery for the one loss.

As a result of public consultation, subsections (6) and (7) of proposed sections [sic] 15B have been clarified to make express reference to recovery by the legal personal representative of a deceased claimant.

289. The evident legislative intent was to ensure that there would be no double recovery for the one loss caused by the tortfeasor. That is not the present case. Here, the only claim against the tortfeasor, Acrow, is that brought by the Estate. Mrs Dionysatos did not bring any claim against Acrow. She made a claim for compensation under s 8(2B)(d) which was paid by the Board out of the Fund maintained by the Board.

290. For these reasons, Acrow’s notice of contention should be rejected.

(4)   Grounds 1 and 2: Did the primary judge adopt an erroneous approach to the assessment of s 15B damages?

The primary judge’s reasons

291. The primary judge made the following findings in relation to the claim for s 15B damages.

• At the time of Mr Dionysatos’ death in July 2012, Mrs Dionysatos was 80 years of age. She was physically frail and suffering dementia: at [83]. (The evidence established that Mrs Dionysatos fell ill in about mid 2010).

• Mrs Dionysatos should not be left alone for periods in excess of 30 minutes, against the possibility that she may fall or wander: at [83].

• Mr and Mrs Dionysatos lived in the rented ground floor home unit of their daughter, Aspasia, at Mortlake. Aspasia’s daughter, Arielle, aged 21 when Mr Dionysatos died, also lived in the home: at [84].

• Mr Dionysatos “alone” cared for his wife during those times during the week when Aspasia was at work, and Arielle attended university: at [86]. (His Honour did not make any express finding as to who cared for Mrs Dionysatos when they were all at home during nights.)

• On weekends Mr Dionysatos “sometimes” went fishing, and “sometimes” attended football games of his grandsons: at [86].

• When Mr Dionysatos was absent from the house, Aspasia or Arielle attended to the needs of his wife: at [87].

292. The primary judge next referred to the care provided to Mrs Dionysatos, after the death of Mr Dionysatos. His Honour found that Arielle, who had graduated from university, but had not yet found full-time employment, cared for her grandmother during weekdays. In addition, when Arielle was absent on Thursday nights and Sundays due to part-time employment, Aspasia looked after her mother: at [88]. His Honour further found that occasionally on weekends Mrs Dionysatos stayed with her son, Gerisamos, who lived at Castle Hill: at [89].

293. At [107]-[108] the primary judge referred to the critical reference to “need” in paragraph (d) of s 15B(2) noting the statement of Basten JA in State of New South Wales v Perez [2013] NSWCA 149; 84 NSWLR 570 at [19].

294. In assessing whether Mrs Dionysatos had a need for the provision of alternative services after Mr Dionysatos was deprived of his capacity to provide services, the primary judge took into account two matters. First, the circumstance that Mrs Dionysatos was presently cared for by her daughter and son in discharge of “filial duties” owed to an aged parent: at [109]; and secondly, the circumstance that Mr Dionysatos did not attend to his wife full-time on weekends – his Honour stated that he “often” went fishing and watched his grandsons play sport: at [110]. (His Honour’s description of this having occurred “often” on the weekends, is at odds with his earlier finding (at [86]) that this occurred “sometimes” on weekends.)

295. His Honour concluded that there was a reasonable need for the provision of services during those times when Mrs Dionysatos’ son and daughter attended to their respective employment and business, or neither was available. He assessed that need at 50 hours per week: at [111]. (It seems from the transcript of the primary judge’s comments during oral closing submissions, that this reflected an assessment of 10 hours a day Monday to Friday (tcpt 12/7/13 at 148, lines 2-5).) His Honour found that the reasonable cost of care was $1319 per week: at [112].

296. His Honour calculated the entitlement to past gratuitous care at $108,553 and future care at $246,372, giving a total of $354,925: at [113].

Consideration

297. The operative provision in s 15B is subs (2) (set out above at [185]). Aspects of this provision were considered by this Court in State of New South Wales v Perez at [14]-[21]. Relevantly, the following propositions were stated by Basten JA (Ward JA agreeing).

298. First, s 15B(2) speaks from the date at which the liability arose, as referred to in subs (2)(a). Accordingly the activities of the claimant prior to that time set the upper limit of what can be claimed, subject to satisfaction of the subsequent paragraphs: at [14].

299. Secondly, subs (2)(c) requires an assessment of the time over which the services would have been provided to the claimant’s dependants: at [21].

300. Thirdly, the reference to “need” in subs (2)(d) focuses upon the specified temporal scope of the services provided, being that identified in subs (2)(c) – that the services be provided for at least six hours per week for at least six consecutive months: at [19].

301. Fourthly, the phrase “reasonable in all the circumstances” qualifies not the word “need”, but the phrase “that need” in para (d). Thus the focus is not merely the need of the dependant, but the time which would have been taken to deliver services in satisfaction of that need. This involves an evaluative judgment undertaken by reference to the standard of reasonableness having regard to all relevant circumstances in the particular case: at [19].

302. None of the preconditions in s 15B(2) were in issue in the present case. What was in issue was his Honour’s approach to the evaluation of “that need” of Mrs Dionysatos for care and services which was “reasonable in all the circumstances”.

303. Before the Tribunal, the Estate contended in para (15.43) of its closing submissions that:

At its highest the evidence supports the need for 24 hour care. At another level the Tribunal may consider that at least the daytime hours from 7.00 am to 7.00 pm to be strongly supported by the evidence. A further small allowance should be made for active care provided at night.

304. This submission was the basis for the Estate’s alternative calculation of the s 15B damages as set out in para (15.44) of its closing submissions. Those calculations were premised upon either 24 hour care, or 13 hours care per day.

305. It needs to be emphasised that the appeal is limited to a decision which is erroneous in point of law. Accordingly the Court must resist the invitation in the parties’ submissions to review the competing factual and medical evidence relied upon in the Tribunal for the assessment of Mrs Dionysatos’ need for care and services at the time of the injury to her husband.

306. The only question before the Court is whether his Honour’s approach to the evaluative task required under s 15B(2)(d) was erroneous. Insofar as his Honour had regard to the circumstance that Mr Dionysatos did not attend to his wife full-time on weekends, there was evidence which supported this finding, and it is not open to the Estate on appeal to complain that his Honour overstated or misunderstood the effect of this evidence.

307. Insofar as his Honour took into account the circumstance that Mrs Dionysatos is presently cared for by her daughter and son in discharge of “filial duties” owed to an aged parent, the Estate is on stronger ground in asserting legal error. It was submitted that this erroneous approach meant that the primary judge failed to award damages under s 15B to the extent that the services previously provided by Mr Dionysatos are now undertaken by another person, who could by reason of some family connection or obligation, be expected to provide those services gratuitously even though they were not providing them before Mr Dionysatos was injured.

308. The Estate contended that if the correct approach had been taken, the s 15B damages would have been calculated by reference to a much higher number of hours per week to reflect the fact that Mr Dionysatos was the full-time carer for his wife.

309. Acrow contended that on the case advanced by the Estate at trial, it was open to his Honour to conclude that 50 hours per week represented the relevant loss. Acrow pointed to a concession by counsel for the Estate at trial that there would be particular times when the whole family was at home, and contended that this operated as a relevant discount factor in determining what was reasonable in the circumstances.

310. Acrow sought to explain the judge’s reference to the “present” engagement of Mr Dionysatos’ daughter and son in the care of their mother as explicable because there was evidence to suggest a significant family involvement in her care before Mr Dionysatos became unwell, which would be likely to continue into the future. Acrow contended that his Honour’s reasons should be read as simply determining what the likely contribution would have been by Mr Dionysatos but for his injury.

311. The difficulty with this submission is two-fold. First, when read in context, his Honour’s reference to “filial duties” (at [109]) was a reference to the care provided after the death of Mr Dionysatos, and in particular, to his Honour’s earlier factual findings: at [88] and [89]. His Honour was required to evaluate the reasonableness “in all the circumstances” of “that need” of Mrs Dionysatos, but for the injury to her husband, for services and the time which would have been taken to deliver services in satisfaction of that need. His Honour did not approach the question in that manner. Indeed he seems to have excluded from consideration, except on weekends, what services Mr Dionysatos would likely have provided to his wife, but for his injury.

312. Secondly, his Honour focused almost exclusively on the fact that the need is now satisfied by others following the death of Mr Dionysatos. As Basten JA explained in State of New South Wales v Perez at [26], the fact that the need is now satisfied by others may demonstrate the genuineness of the need; on the other hand, the extent that the need is now satisfied by others alone, in circumstances in which they and the claimant have been jointly responsible in the past, may call into doubt the need for the claimant’s services.

313. The primary judge was confronted with evidence that during weekdays Mrs Dionysatos’ daughter and granddaughter were at home at nights, as was Mr Dionysatos. The Estate fairly acknowledged before his Honour that at times when the whole family was at home, to some extent the needs of Mrs Dionysatos for services may have, been satisfied by other family members. But his Honour did not attempt to evaluate the evidence concerning the extent to which Mr Dionysatos and other family members had been jointly responsible in the past, either during weekdays or on weekends, for the domestic care and services provided to Mrs Dionysatos. Rather, his Honour’s assessment of 50 hours per week focused solely on the times when Mrs Dionysatos’ son and daughter are now at work, or otherwise not available to provide services to Mrs Dionysatos.

314. As a consequence, the approach adopted by his Honour resulted in calculations being undertaken which focused on the extent to which Mrs Dionysatos’ need for services is now satisfied by other family members. That approach was erroneous.

315. Grounds 1 and 2 should be upheld.

Conclusion and orders

316. Acrow’s challenges to the Tribunal’s factual findings on the question of liability on the ground of “no evidence”, have failed. Accordingly, the Tribunal’s decision on liability has not been shown to be erroneous in point of law. It follows that the notice of cross-appeal should be dismissed with costs.

317. The Tribunal’s approach to the assessment of s 15B damages was erroneous in deducting from the Estate’s s 15B damages, the compensation paid or payable to Mrs Dionysatos under the Dust Diseases Act assessed with a value of $207,072. If that was the only operative error then this Court could reach a conclusion as to the relevant question of law (the deductibility issue) since the facts necessary to determine that question have been found by the Tribunal: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [11] and [16] (Allsop P), [239]-[240] (Basten JA; Simpson J agreeing)

318. The parties were agreed however that if the Estate also succeeded, as it has, in its challenge to the approach taken by the Tribunal to the assessment of s 15B damages, then the matter should be remitted to the Tribunal for the determination of damages under s 15B. This is because the relevant findings necessary for this Court to determine the s 15B damages have not been made by the Tribunal. Accordingly, that question should be remitted to the Tribunal where the necessary factual findings can be made: Allianz Australia Insurance Ltd v BlueScope Steel Ltd [2014] NSWCA 276; 87 NSWLR 332 at [328]-[335] (Ward JA; Meagher JA agreeing).

319. As to the costs of the appeal, the Estate has achieved substantial success on the deductibility issue; Acrow should pay the Estate’s costs of the appeal.

320. As to the form of orders, there is no reason why the remission of the s 15B damages should reopen the entire damages award. Under s 32(2) of the Tribunal Act, the Court may, on the hearing of any appeal, remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court sees fit.

321. It has been said that s 32(2) of the Tribunal Act enables this Court to limit and define the remitted issue or issues, and if thought necessary Uniform Civil Procedure Rules 2005 (NSW) r 51.53(2) and (3) may also be available: Downes v Amaca Pty Ltd at [160] (Handley AJA; Campbell JA agreeing).

322. It being common ground that the only issue with respect to damages concerns the s 15B damages, the appropriate course, in my view, is that the judgment of the Tribunal be set aside, and in its place, judgment be entered for the amount of damages which is unchallenged, leaving the Estate’s claim for s 15B damages is to be determined by the Tribunal on remittal.

323. I would therefore propose the following orders:

(1)   Appeal allowed.

(2)   Cross-appeal dismissed.

(3) Judgment and orders of the Dust Diseases Tribunal given on 29 August 2013 as between the plaintiff and the defendant be set aside except as to costs, and in place thereof, order that there be judgment for the plaintiff against the defendant in the sum of $342,289, together with such further amount as the Tribunal shall award pursuant to s 15B of the Civil Liability Act 2002 (NSW).

(4) Proceedings remitted to the Tribunal for the purpose of determining the damages to be awarded under s 15B of the Civil Liability Act 2002 (NSW) in accordance with law.

(5)   Respondent/cross-appellant to pay the appellant/cross-respondent’s costs in this Court.

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Endnotes

Amendments

25 July 2016 - Coversheet and paragraph [96] line 6: “Kostas v HIH Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32” replaced with “Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32”

paragraph [118] line 7: “to” inserted between “that due” and “a delay”

paragraph [133] line 4 – “in” inserted between “workers involved” and “the assembly”

paragraph [162] line 1 – “The Dust Diseases Act establishes the Board (s 5)” replaced with “The Dust Diseases Act established the Board (s 5)”

paragraph [227] line 6 – “of” inserted between “by way” and “compensation for”

17 September 2015 - Para 11: changed "nor had Civil Liability Act" to "nor had the Civil Liability Act".

Para 16: changed "the s 12D" to "s 12D".

Decision last updated: 25 July 2016