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Ewins v BHP Billiton Ltd

Ewins v BHP Billiton Ltd

Case [2005] SASC 95 17 March 2005

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
EWINS v BHP BILLITON LIMITED & WALLABY GRIP LIMITED
Judgment of The Honourable Chief Justice Doyle
17 March 2005
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
A negligence action for damages resulting from the plaintiff's terminal medical condition - the plaintiff was employed by the defendant between 1949 and 1963 during which time he was exposed to asbestos particles in the course of his work - in 2004 the plaintiff was diagnosed with malignant epithelial mesothelioma - liability was admitted by the defendant and the action proceeded as an assessment of damages - measure of general damages for pain and suffering, loss of amenity and loss of expectation of life - whether an approved treatment is reasonable in the circumstances considering the cost and benefits - measure of damages for future medical expenses.
Packer v Cameron (1989) 54 SASR 246, discussed.
Burford v Allan (1993) 60 SASR 428; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Hirsch v Bennett [1969] SASR 493; Kite v Malycha (1998) 71 SASR 321; Coyne v Citizen Finance Limited (1991) 172 CLR 211; Chakravarti v Advertiser Newspapers Limited (1998) 72 SASR 361, considered.

EWINS v BHP BILLITON LIMITED & WALLABY GRIP LIMITED
[2005] SASC 95
Civil

DOYLE CJ: In November 2004 Mr Ewins was diagnosed as suffering from malignant epithelial mesothelioma of the right pleural space. His condition is progressive and fatal. At the time of diagnosis his life expectancy was short.
On 21 December 2004 he issued proceedings against the defendant BHP Billiton Limited (“BHP”). He claimed that his condition is attributable to exposure to asbestos while employed by BHP between 1949 and 1963. He claimed that the exposure to asbestos was caused by BHP’s negligence.
The action came on for trial before me on 7 March 2005. BHP admitted liability. The action proceeded as an assessment of damages.
BHP joined Wallaby Grip Limited (“Wallaby”) as a third party, claiming contribution or indemnity from it. Before the trial began I ordered that the third party claim be tried separately from Mr Ewins’ claim against BHP. I gave liberty to Wallaby to participate in the trial. Neither order was opposed.
Findings
Mr Ewins gave evidence, as did his wife and his daughter, Mrs Mundy. I accept their evidence.
I accept the substance of the evidence of each of the medical specialists who gave evidence. There were some differences in their evidence (to which I will refer later) in relation to some matters such as Mr Ewins’ life expectancy (which is measured in months), as to the nature and extent of the treatment that he will require or that will be appropriate as his condition progresses, and as to the reasonableness of using Alimta, a new and expensive drug, by way of chemotherapy.
The differences on these matters, in my opinion, represent nothing more than differing professional judgments on matters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ewins v BHP Billiton Ltd

Details

AGLC: Ewins v BHP Billiton Ltd [2005] SASC 95
Case: [2005] SASC 95
Decision Date: 17 March 2005

CaseChat Overview and Summary

The matter of Ewins v BHP Billiton Ltd involved the plaintiff seeking damages for injuries sustained during his employment with the defendant from 1949 to 1963, where he was exposed to asbestos. The plaintiff was diagnosed with malignant epithelial mesothelioma in 2004. Liability for the injuries was conceded by the defendant, leaving only the quantum of damages to be determined. The court was tasked with assessing the general damages for pain and suffering, loss of amenity, and loss of expectation of life, as well as the damages for future medical expenses.

The primary legal issues revolved around the appropriate measure of damages for the plaintiff's terminal condition, taking into account the cost-benefit analysis of any approved treatments, and the estimation of future medical expenses. The court considered various precedents and expert evidence to determine the quantum of damages, ensuring that the award was both fair and reasonable given the plaintiff's medical prognosis and life expectancy.

The court found that the plaintiff's exposure to asbestos was a significant contributing factor to his terminal illness. The assessment of general damages took into account the severity and impact of the plaintiff's condition, his pain and suffering, and the diminution in his quality of life. The court also considered the reasonable costs of any potential treatments, weighing the benefits against the financial burden. As for future medical expenses, the court projected the costs based on the plaintiff's life expectancy and the anticipated medical needs. Ultimately, the court awarded the plaintiff a sum that reflected the totality of his losses and the circumstances of his case.

The court ordered the defendant to pay the plaintiff the assessed damages, which included compensation for pain and suffering, loss of amenity, loss of expectation of life, and future medical expenses, in accordance with the detailed findings and reasoning outlined in the judgment.

Orders