Gillespie v Hurll Nu-Way Pty Ltd - [2015] NSWDDT 1

Dust Diseases Tribunal

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 Supreme Court Act 1970 Dust Diseases Tribunal Act 1989 Civil Procedure Act 2005
Cases Cited:	Skelton v Collins (1966) 115 CLR 94 CSR Ltd & Anor v Bouwhuis (1991) 7 NSWCCR 223 Burrell v The Queen [2008] HCA 34
Category:	Procedural and other rulings
Parties:	Annette Jean Gillespie (Plaintiff) Hurll Nu-Way Pty Ltd (Defendant)
Representation:	Counsel: D J Russell SC appeared for the plaintiff J C Sheller appeared for the defendant Solicitors: Maurice Blackburn Lawyers (Plaintiff) Hunt & Hunt (Defendant)
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…

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.

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Details

Case: [2015] NSWDDT 1
Decision Date: 16 April 2015

CaseChat Overview and Summary

In the matter of Gillespie v Hurll Nu-Way Pty Ltd, the dispute arose from a claim brought by a wife seeking damages on behalf of her deceased husband, who had contracted a dust disease while employed by the defendant. The case was heard by the Dust Diseases Tribunal of New South Wales. The central issue was whether the plaintiff was permitted to file an amended statement of claim to seek indemnity from the defendant employer for future medical expenses incurred by the deceased. The court was tasked with determining whether the plaintiff's request to amend the claim was permissible under the principle known as the 'once and for all' rule, which generally restricts the opportunity to amend claims once proceedings have commenced.

The court considered the principle of the 'once and for all' rule, which aims to prevent the multiplication of claims and maintain the integrity of the judicial process. However, the court recognised that this principle is not absolute and can be subject to exceptions, particularly where justice demands it. The court examined the circumstances of the case and the nature of the amendment sought, weighing the potential prejudice to the defendant against the interests of justice in allowing the amendment. Ultimately, the court found that the amendment sought was appropriate in this case, as it was necessary to address an oversight in the initial claim and to ensure that the plaintiff could adequately pursue compensation for the full extent of the deceased's medical expenses.

Consequently, the court granted the plaintiff leave to file an amended statement of claim to seek indemnity for future medical expenses from the defendant. The decision highlighted the importance of the 'once and for all' rule but also acknowledged the need for flexibility in exceptional circumstances. The court's decision allowed the plaintiff to proceed with her amended claim, ensuring that the deceased's family could seek full compensation for the impact of the dust disease.

Orders

Orders of the court

Leave to file amended Statement of Claim

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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