Gillespie v Hurll Nu-Way Pty Ltd
[2015] NSWDDT 1
•16 April 2015
|
New South Wales |
Case Name: | Gillespie v Hurll Nu-Way Pty Ltd |
Medium Neutral Citation: | [2015] NSWDDT 1 |
Hearing Date(s): | 16 April 2015 |
Decision Date: | 16 April 2015 |
Before: | Curtis, J |
Decision: | Leave to file amended Statement of Claim |
Catchwords: | DUST DISEASES TRIBUNAL – wife claiming damages from husband’s former employer – payment of costs for future medical expenses – whether plaintiff can file amended Statement of Claim seeking indemnity in relation to future medical expenses – once and for all rule |
Legislation Cited: | Health Services Act 1997 |
Cases Cited: | Skelton v Collins (1966) 115 CLR 94 |
Category: | Procedural and other rulings |
Parties: | Annette Jean Gillespie (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 26/15 |
JUDGMENT
The plaintiff, Mrs Annette Jean Gillespie, suffers from mesothelioma. She claimed damages from the defendant, her husband's former employer, alleging that she contracted the disease from domestic exposure to his work clothes. The defendant has placed both liability and damages in issue.
The problem faced by Mrs Gillespie, is that if she is successful, section 71 of the Health Services Act 1997 requires that from her damages she must pay the costs of future medical and hospital treatment provided to her by the New South Wales Public Health System.
It is difficult, well nigh impossible, to accurately determine those costs, and inevitably the amount awarded under this head of damages will be either insufficient to meet those expenses, or, to the disadvantage of the defendant, greater than the actual cost.
To address the problem Mr Russell SC for Mrs Gillespie submits that she should have leave to file an amended Statement of Claim claiming that in addition to damages she should have the following relief:
1A. A declaration pursuant to s 75 of the Supreme Court Act 1970 that the defendant is liable to indemnify the plaintiff for any future hospital related expenses which the plaintiff becomes liable to pay pursuant to s 71 of the Health Services Act 1997.
1B. An order that the plaintiff may seek a reconsideration pursuant to s 13(6) of the Dust Diseases Tribunal Act 1989 on the issue of damages if she becomes liable to pay further hospital‑related expenses pursuant to s 71(1) of the HSA.
1C. In the alternative:
(a) judgment against the defendant for damages to be assessed, and
(b) an order that the defendant make a payment to the plaintiff of part of the plaintiff's damages pursuant to s 82 of the Civil Procedure Act 2005.
Declaration
Section 75 of the Supreme Court Act provides that:
No proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.
The problem with Mr Russell's submission in this regard, as pointed out by Mr Sheller for the defendant, is that such a declaration would offend against the once and for all rule.
It is a fundamental rule of the common law that damages are to be awarded once and for all in respect of both past and future losses. That this rule is capable of causing injustice is well recognised in the authorities. In Skelton v Collins (1966) 115 CLR 94 at 136 Windeyer J said:
I can only hope that someday the law will provide some better way of meeting the consequences of day‑to‑day hazards than by actions for negligence and a measuring of damages by unprovable predictions, metaphysical assumptions and rationalised empiricism.
Section 75 cannot abrogate such a fundamental common law rule. The amendment must be refused as a futility.
Section 13(6) of the Dust Diseases Tribunal Act 1989
Section 13(6) of the Dust Diseases Tribunal Act 1989 provides that:
Wherever appropriate, the Tribunal may reconsider any matter that it has previously dealt with or rescind or amend any decision that the Tribunal has previously made.
The operation of this section was considered by the New South Wales Court of Appeal in CSR Ltd & Anor v Bouwhuis (1991) 7 NSWCCR 223. In that case damages had been assessed by the trial judge upon an assumption that the plaintiff would live for eight months.
After judgment the defendants obtained evidence that the plaintiff's life expectancy was not more than one month, vitiating the entitlement to a significant amount of damages, and sought an order pursuant to section 13(6) that the Tribunal reconsider the award of damages.
The relief was refused by the trial judge, O'Meally J, who said:
I think that the provision authorises the Tribunal to correct errors of fact or law...What is suggested is that depending on future contingencies it is appropriate the Tribunal reopen individual cases.
In the Court of Appeal Priestley JA said this:
Section 13(6) is thus dealing with a subject matter quite different from that dealt with by section 17(4) of the Compensation Court Act 1984 from which its words seem to have been taken. What, in its context, subs (6) seems to me to do is to recognise that there may occasionally be very exceptional cases in which it becomes clear that after judgment something of a fundamental kind of a high importance to the litigation has happened, that it has happened in regard to a case which because of the nature of the Tribunal's jurisdiction needs to be dealt with, with the greatest available expedition and that it may be more efficient, rather than leaving the supervening and basic matter to be dealt with by the appeal mechanism, to have it dealt with by the Court of first instance.
On this approach it would be very rare for the power under subs (6) to be properly exercised by the Tribunal. The power would, in my opinion, only be one the Tribunal should even consider exercising in the kind of circumstances referred to by Lord Wilberforce in Mulholland. That is to say, stated shortly, that is something basic to the decision has clearly been falsified by subsequent events.
So interpreted, the powers of section 13(6) are appropriate to permit expedition in what might otherwise be the slow progress of appeal for correcting errors manifest in the judgement of the Tribunal.
Section13(6) overcomes the problem that once an order for judgement is taken out, the only avenue for relief even in the face of patent error, is the time-consuming process of appeal. The formal recording of the order of a superior court of record is the point at which the Courts power to reconsider the matter is at an are end (Burrell V the Queen [2008] HCA 34).
Again, I believe the application to amend to call in aid section 13(6) would be futile and should be refused.
Orders for Payments before Judgement
Section 82 of the Civil Procedure Act 2005 provides that:
(1) In any proceeding for damages the Court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings.
(2) The Court may make such an order against the defendant on the application of the plaintiff at any stage of the proceedings.
(3) The Court may not make an order unless:
(a) The defendant has admitted liability; or
(b) The plaintiff has obtained judgment against the defendant for damages to be assessed; or
(c) The Court is satisfied that if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant.
While this provision appears to be a legislative response to possible hardship generated by delay in securing judgement, its terms permit remedy of the potential injustice identified by Windeyer J in Skelton v Collins.
In the present case Mrs Gillespie is at liberty to seek an order pursuant to UCPR 28.2 for the separate trial of the issues of liability and damages other than those for future medical expenses, and, without the entry of judgement, obtain orders for the payment of money in satisfaction of the liabilities so determined. She may then claim sequential orders for the satisfaction of medical expenses as they accrue.
Mrs Gillespie's circumstances are unique in that she is dying and the defendant's ultimate liability will be established within a relatively short time. It is not necessary for me to consider at this stage the form in which Mrs Gillespie will seek to obtain the relief provided by section 82. Nor is it appropriate that I express an opinion as to whether the relief should be granted.
It is however proper are will that she be permitted to amend the Statement of Claim in the form of para 1C. Mr Sheller does not oppose that amendment.
Orders
Leave to the plaintiff to amend her statement of claim in the form of the amended statement of claim filed in Court today, excluding paras 1A and 1B.
I reserve the question of costs.
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