New South Wales
Court of Appeal
CITATION: DOWNES v AMACA Pty Ltd [2010] NSWCA 76
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 24/08/2009
JUDGMENT DATE:
15 April 2010JUDGMENT OF: Basten JA at 1; Campbell JA at 61; Handley AJA at 122 DECISION: (1) Appeal allowed in part;
(2) Judgment of the Dust Diseases Tribunal set aside except as to costs;
(3) Proceedings remitted to the Tribunal for the purpose of determining whether the assessed amount of $156,443.05 for the plaintiff’s past and future expenses or some other amount should be deducted from his damages assessed at $311,743.05;
(4) Subject to s 13(6) of the Tribunal Act the rehearing of the proceedings is limited to the issue so remitted;
(5) Respondent to pay the appellant’s costs of the appeal.CATCHWORDS: DAMAGES - medical and other expenses payable by Dust Diseases Board - Board had not accepted liability - unsuccessful application by plaintiff for benefits - finding that renewed application would succeed - whether benefits to be deducted from damages. - DUST DISEASES - medical and other expenses payable by Board - Board had not accepted liability - unsuccessful application by plaintiff for benefits - finding that renewed application would succeed - whether benefits to be deducted from damages. - DUST DISEASES TRIBUNAL - assessment of damages - statutory power of reconsideration - Dust Diseases Tribunal Act s 13(6) - relevance to deduction of medical and other expenses - unsuccessful application by plaintiff for benefits - finding that fresh application would succeed - whether Judge entitled to deduct benefits subject to reconsideration if fresh application unsuccessful. LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Coal Mines Regulation Act 1982
Dust Diseases Tribunal Act 1989 (NSW)
Workers Compensation Act 1926 (NSW), ss 63 and 64
Workers Compensation Act 1987 (NSW), s 151Z
Workers’ Compensation (Dust Diseases) Act 1942 (NSW), s 8
Workers’ Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998, Schedule 6(13)CATEGORY: Principal judgment CASES CITED: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120
Birdon Marine Pty Ltd v Jepp [2009] NSWCA 147
Bradburn v Great Western Railway Co (1874) LR 10 Ex 1
Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185
Commercial Minerals Pty Ltd v Hollins [1993] NSWCA 74
Coonara Superannuation Services Pty Ltd v Simons [2000] FCA 1369
CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223
CSR Ltd v D’Arcy (1996) 40 NSWLR 721
CSR Ltd v Eddy [2005] HCA 64, 226 CLR 1
Dudley v Condell Park Carrying Co Pty Ltd (1988) 4 NSWCCR 58,
Haines v Bendall (1991) 172 CLR 60
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60
James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729
John Downes v Amaca Pty Ltd [2008] NSWDDT 25
Johnson v…
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- AGLC
- Downes v Amaca Pty Ltd [2010] NSWCA 76
- Case
- [2010] NSWCA 76
- Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute over the deduction of potential future benefits from a damages award. The plaintiff, Mr. Downes, had been awarded damages by the Dust Diseases Tribunal for a dust-related illness. The defendant, Amaca Pty Ltd, sought to deduct from this award certain medical and other expenses that might be payable by the Dust Diseases Board. However, Mr. Downes' initial application for these benefits had been unsuccessful, though the Tribunal found that a renewed application would likely succeed.
The central legal issue before the Court of Appeal was whether the potential future benefits from the Dust Diseases Board, which had not yet been formally accepted or paid, should be deducted from the damages awarded to the plaintiff. This question involved the interpretation of the Dust Diseases Tribunal Act, specifically section 13(6), which grants the Tribunal a statutory power of reconsideration. The court had to determine if the Tribunal Judge was entitled to deduct these prospective benefits, subject to a condition that they would be re-assessed if the renewed application for benefits was ultimately unsuccessful.
The Court of Appeal allowed the appeal in part, setting aside the original judgment of the Dust Diseases Tribunal except for the costs order. The court remitted the proceedings back to the Tribunal to determine whether the assessed amount of $156,443.05 for the plaintiff’s past and future expenses, or a different amount, should be deducted from the total damages of $311,743.05. This reconsideration was to be conducted subject to the provisions of section 13(6) of the Tribunal Act, limiting the rehearing to this specific issue. The respondent was ordered to pay the appellant's costs of the appeal.
The central legal issue before the Court of Appeal was whether the potential future benefits from the Dust Diseases Board, which had not yet been formally accepted or paid, should be deducted from the damages awarded to the plaintiff. This question involved the interpretation of the Dust Diseases Tribunal Act, specifically section 13(6), which grants the Tribunal a statutory power of reconsideration. The court had to determine if the Tribunal Judge was entitled to deduct these prospective benefits, subject to a condition that they would be re-assessed if the renewed application for benefits was ultimately unsuccessful.
The Court of Appeal allowed the appeal in part, setting aside the original judgment of the Dust Diseases Tribunal except for the costs order. The court remitted the proceedings back to the Tribunal to determine whether the assessed amount of $156,443.05 for the plaintiff’s past and future expenses, or a different amount, should be deducted from the total damages of $311,743.05. This reconsideration was to be conducted subject to the provisions of section 13(6) of the Tribunal Act, limiting the rehearing to this specific issue. The respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
(1) Appeal allowed in part;
(2) Judgment of the Dust Diseases Tribunal set aside except as to costs;
(3) Proceedings remitted to the Tribunal for the purpose of determining whether the assessed amount of $156,443.05 for the plaintiff’s past and future expenses or some other amount should be deducted from his damages assessed at $311,743.05;
(4) Subject to s 13(6) of the Tribunal Act the rehearing of the proceedings is limited to the issue so remitted;
(5) Respondent to pay the appellant’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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