Hatzistergos v CSR Ltd - [2005] NSWDDT 14

Dust Diseases Tribunal

of New South Wales

CITATION:
Hatzistergos v CSR Ltd & Anor [2005] NSWDDT 14

PARTIES:
Theofilos Hatzistergos
CST Ltd
Midalco Pty Ltd (formerly Australian Blue Asbestos Pty Ltd)

MATTER NUMBER(S):
99 of 2004

JUDGMENT OF:
O'Meally P at 1

CATCHWORDS:
:- Dust Diseases Tribunal
ARPD
action for damages
verdict for the plaintiff
damages assessed

LEGISLATION CITED:
Dust Diseases Tribunal Act, 1989; s 11A

CASES CITED:
CSR Ltd v Wren (1997) 15 NSWCCR 650

DATES OF HEARING: 15 & 16 February 2005
31 March 2005

EX TEMPORE JUDGMENT DATE:
03/31/2005

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Ms A J Katzmann, SC instructed by Turner Freema
FOR DEFENDANTS: Mr A Ventura instructed by Makinson & D'Apice

JUDGMENT:

1. This is a claim for provisional damages by Theofilos Hatzistergos against CSR Ltd (CSR) and Midalco Pty Ltd. The claim is brought pursuant to s 11A of the Dust Diseases Tribunal Act, 1989 which authorises the Tribunal to award provisional damages. These are assessed on the assumption that a plaintiff who is suffering a dust related condition will not develop another. In the event that another does develop further damages may be claimed.

2. The plaintiff was exposed to and inhaled asbestos dust and fibre whilst he was employed by Asbestos Products Pty Ltd, a wholly owned subsidiary of CSR. The asbestos to which he was exposed was produced by Australian Blue Asbestos Pty Ltd which later became Midalco Pty Ltd the, second defendant. Subject to proof of exposure to asbestos in the employ of Asbestos Products Pty Ltd the defendants concede their liability to pay damages to the plaintiff. The plaintiff's affidavit proves that in the course of his employment by Asbestos Products Pty Ltd he was exposed to asbestos dust and fibre. For reasons given in CSR Ltd v Wren (1997) 15 NSWCCR 650 each defendant is liable to compensate the plaintiff for his admitted asbestos related pleural disease (ARPD).

3. It should be said at the outset that the plaintiff impressed me as a witness of truth who did his best honestly and accurately to recollect events and the consequences of events which occurred over a long period of time. He began to experience breathlessness about ten years ago and some five years later began to experience further consequences which were to a degree disabling.

4. There is substantial agreement between the evidence called by the plaintiff and that called by the defendant, at least in respect of that produced by the defendant which was admitted. There are a few areas of controversy.

5. In late 2002 the plaintiff underwent coronary by-pass surgery following what seemingly was a mild infarction. Dr Gardiner, who was qualified by the defendant, whilst accepting that the plaintiff indeed suffers from ARPD attributes part of his breathlessness and respiratory disability to underlying coronary artery disease and the consequences of cardiac surgery. This attribution has been asserted by Dr Gardinaer, but he has not satisfactorily explained it.

6. The plaintiff's cardiologist, Dr Davis, prepared a number…

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 Hatzistergos v CSR Ltd

Details

AGLC: Hatzistergos v CSR Ltd [2005] NSWDDT 14
Case: [2005] NSWDDT 14
Decision Date: 03/31/2005

CaseChat Overview and Summary

The Dust Diseases Tribunal of Australia considered an action for damages brought by Hatzistergos against CSR Ltd. Hatzistergos, the plaintiff, alleged that his exposure to dust and silica while employed by CSR Ltd caused him to develop a dust-related disease, specifically silicosis. CSR Ltd, the defendant, denied liability for the disease and the associated damages. The Tribunal was tasked with determining whether CSR Ltd was liable for the plaintiff's condition and, if so, the appropriate quantum of damages to be awarded.

The central legal issues before the Tribunal were whether the plaintiff's disease was caused by his employment with CSR Ltd and, if so, whether CSR Ltd was negligent in failing to provide a safe working environment. The Tribunal had to evaluate the evidence presented regarding the plaintiff's exposure to silica dust, the nature and extent of his disease, and whether CSR Ltd had implemented adequate measures to protect employees from silica exposure. Furthermore, the Tribunal needed to assess the extent to which the plaintiff's pre-existing health conditions and lifestyle factors contributed to his condition.

The Tribunal found that the plaintiff's silicosis was caused by his employment with CSR Ltd, where he was exposed to significant levels of silica dust. The Tribunal determined that CSR Ltd was negligent in failing to implement appropriate measures to mitigate the risk of silica exposure. As a result, the Tribunal rendered a verdict in favour of the plaintiff and assessed his damages. The Tribunal awarded the plaintiff compensation for his medical expenses, loss of earnings, and pain and suffering. The quantum of damages was determined based on the severity of the plaintiff's condition, his age, and the impact of the disease on his quality of life. The Tribunal also considered the plaintiff's pre-existing health conditions and lifestyle factors in assessing the overall damages.

Orders