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Headon v Amaca Pty Limited

Headon v Amaca Pty Limited

Case [2022] NSWDDT 5 19 September 2022

Assessment of Damages

Dust Diseases Tribunal

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Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Headon v Amaca Pty Limited [2022] NSWDDT 5
Hearing dates: 9, 10 & 17 August 2022
Date of orders: 19 September 2022
Decision date: 19 September 2022
Before: Strathdee, J
Decision:
(1)   Judgment for the plaintiff in the sum of $1,100,159.38.
(2)   Defendant to pay plaintiff’s costs as agreed or assessed.
(3) Pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) as amended, the plaintiff may claim further damages should the plaintiff develop an asbestos related induced carcinoma, lung cancer and mesothelioma.
(4)   If any alternate order is sought, the parties to notify my associate within 7 days.

Catchwords:
DUST DISEASES TRIBUNAL – damages – assessment of damages on common law principles – asbestosis and asbestos related pleural disease (“ARPD”) – general damages – interest on general damages – damages for personal care and assistance – future out-of-pocket expenses
DAMAGES – assessment – tort – personal injuries – pain and suffering – future or potential events – likelihood of occurrence – relevance to measure of damages

Legislation Cited:
Civil Liability Act 2002 (NSW)

Cases Cited:
Amaca Pty Limited v. Tullipan [2014] NSWCA 269
Boland v. Amaca Pty Limited [2020] NSW DDT 4
Carson v. John Fairfax & Sons Pty Limited (1993) 178 CLR 44
Chulcough v. Holley (1968) 41 ALJR 336
CSR v. Bouwhuis (1991) 7 NSWCCR 223
Expokin Pty Ltd trading as Festival IGA Supermarket and Graham [2000] NSWCA 267
FAI Allianz Insurance Ltd v. Lang [2004] NSWCA 413
Fuller v. Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305
Harritonv. Stephens [2004] NSWCA 93; (2004) 59 NSWLR 694
Hunter Area Health Service v. Marchlewski (2000) 51 NSWLR 268
James Hardie & Coy Pty Limited v. Newton (1997) 42 NSWLR 729
Livingstone v. Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25
Lorraine Fay Sim v. Allianz Australia Limited [2010] NSWDDT 19
Malec v. Hutton (1990) 169 CLR 638
Moran v. McMahon (1985) 3 NSWLR 700
Noel Doughan v. Amaca Pty Ltd [2010] NSWDDT 13
Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118
Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118
Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164
State of New South Wales v. Moss (2000) 54 NSWLR 356
Sullivan v. Micallef; Macquarie Pathology Services Pty Limited v. Micallef [1994] Aust Torts Reports 61,787
Todorovic v. Waller [1981] HCA72; (1981) 150 CLR 402
Tullipan v. Amaca Pty Limited [2014] NSWDDT 420
Wallaby Grip Limited v. Peirce [2000] NSWCA 299
Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158
Wynn v. NSW Ministerial Corporation (1995) 184 CLR 485

Category: Principal judgment
Parties: Warwick Headon (Plaintiff)
Amaca Pty Limited (Formerly known as James Hardie & Coy Pty Ltd) ACN 000 035 512 (Under NSW Administered Winding Up) (Defendant)
Representation:
Counsel:
Mr S Tzouganatos appeared for the Plaintiff
Mr J Sheller SC appeared for the Defendant
Solicitors:
Mr S Ryan, VBR…

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 Headon v Amaca Pty Limited

Details

AGLC: Headon v Amaca Pty Limited [2022] NSWDDT 5
Case: [2022] NSWDDT 5
Decision Date: 19 September 2022

CaseChat Overview and Summary

The plaintiff, Headon, pursued legal action against Amaca Pty Limited, seeking compensation for injuries sustained due to exposure to asbestos. The primary contention was the assessment of damages in line with common law principles for the ailments of asbestosis and asbestos related pleural disease (ARPD). The case was adjudicated in the Dust Diseases Tribunal of New South Wales. The core legal issues encompassed the calculation of general damages, the application of interest to general damages, and the determination of future out-of-pocket expenses, including personal care and assistance, in light of the plaintiff's medical prognosis.

The tribunal meticulously examined the plaintiff's medical evidence, expert testimonies, and the precedents set by previous cases to ascertain the appropriate quantum of general damages. It accorded significant weight to the severity and impact of the plaintiff's condition, the likelihood of future medical complications, and the associated expenses. The tribunal also deliberated on the relevance of future potential events in measuring the damages, ultimately concluding that the plaintiff's risk of developing serious asbestos-related diseases warranted a substantial award. The court calculated the interest on general damages from the date of the claim until the date of judgment, ensuring the plaintiff's compensation was reflective of the true financial impact of their injuries.

In its judgment, the tribunal awarded the plaintiff $1,100,159.38 in total damages. The tribunal further ruled that the defendant, Amaca Pty Limited, was liable for the plaintiff's costs as agreed upon or assessed. Additionally, the tribunal granted the plaintiff the right to seek further damages should they develop an asbestos-related induced carcinoma, lung cancer, or mesothelioma, in accordance with section 11A of the Dust Diseases Tribunal Act 1989 (NSW) as amended. The court also mandated that any alternate orders should be notified to the tribunal within a specified timeframe.

Orders

Orders of the court

(1) Judgment for the plaintiff in the sum of $1,100,159.38.

(2) Defendant to pay plaintiff’s costs as agreed or assessed.

(3) Pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) as amended, the plaintiff may claim further damages should the plaintiff develop an asbestos related induced carcinoma, lung cancer and mesothelioma.

(4) If any alternate order is sought, the parties to notify my associate within 7 days.

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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Citations

AGLC Citation

Headon v Amaca Pty Limited [2022] NSWDDT 5

Most Recent Citation

Keogh v CPB Contractors Pty Ltd (No 2) [2024] NSWDDT 9

Cases citing this decision · 1 of 1 shown

Keogh v CPB Contractors Pty Ltd (No 2)
[2024] NSWDDT 9 Para 32

…ickened and more collapsible than normal, so that when someone breathes out, the airways will collapse and reduce the airflow: Headon v Amaca Pty Ltd [2022] NSWDDT 5 at [83].…

View all 1 citing cases →

Cases cited in this decision · 25 of 25 shown

Fuller v Avichem Pty Ltd t/as Adkins Building & Hardware
[2019] NSWCA 305 Para 174

…s tortious conduct, may occur and have an impact on the care that the plaintiff requires: Fuller v. Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305 at [63] per McFarlane JA.…
Amaca Pty Ltd v Tullipan
[2014] NSWCA 269 Para 134

…50,000 for general damages: Tullipan v. Amaca Pty Limited [2014] NSWDDT 420. The Court of Appeal refused to disturb it: Amaca Pty Limited v. Tullipan [2014] NSWCA 269 (including by reference to a comparison of the award with the then maximum applicable under the Civil Liability Act 2002 (NSW)). The defendant assert…
Lorraine Fay Sim v Allianz Australia Limited
[2010] NSWDDT 19 Para 135

…The defendant refers my attention to the decision in Lorraine Fay Sim v. Allianz Australia Limited [2010] NSWDDT 19 where Curtis J awarded $75,000.00 in general damages to the plaintiff who had asbestosis. However, I note that was a decision of 12 years ago.…
Noel Doughan v Amaca Pty Limited
[2010] NSWDDT 13 Para 141

…In Noel Doughan v. Amaca Pty Ltd [2010] NSWDDT 13 Curtis J awarded the plaintiff, who suffered from asbestosis, general damages in the amount of $150,000, but made the following comments:…
Jones v The Queen
[2009] HCA 17

…fax & Sons Pty Limited (1993) 178 CLR 44) and sentences of co-offenders must be compared ( Lowe v. The Queen (1984) 154 CLR 606; Jones v. The Queen (1993) 67 ALJR 376).”…
Harriton v Stephens
[2006] HCA 15 Para 114

…een had the tort not be committed: Livingstone v. Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25 at 39 and Harriton v. Stephens [2004] NSWCA 93; (2004) 59 NSWLR 694 at [7]–[8] per Spigelman CJ.…
Lowe v The Queen
[2005] NZCA 178

…“Some day the High Court will explain why awards of general damages in personal injury cases should not be compared, as required by Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118, but defamation awards can be compared with awards for general damages in personal injury cases ( Carson v. J…
FAI Allianz Insurance Ltd v Lang
[2004] NSWCA 413 Para 175

…The conventional allowance for vicissitudes in NSW is 15%. In FAI Allianz Insurance Ltd v. Lang [2004] NSWCA 413 at [18] Bryson JA described the discount as follows:…
Harriton v Stephens
[2004] NSWCA 93 Para 114

…she would have been had the tort not be committed: Livingstone v. Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25 at 39 and Harriton v. Stephens [2004] NSWCA 93; (2004) 59 NSWLR 694 at [7]–[8] per Spigelman CJ.…
Wallaby Grip Ltd v Peirce
[2000] NSWCA 299 Para 118

…ise of a sense of proportion.” (see Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118 at 125 and 124; Wallaby Grip Limited v. Peirce [2000] NSWCA 299 at [13])…
Hunter Area Health Service v Marchlewski
[2000] NSWCA 294 Para 123

…18; Moran v. McMahon (1985) 3 NSWLR 700; Carson v. John Fairfax & Sons Pty Limited (1993) 178 CLR 44 at 59; Hunter Area Health Service v. Marchlewski (2000) 51 NSWLR 268).…
State of New South Wales v Moss
[2000] NSWCA 133 Para 176

…In State of New South Wales v. Moss (2000) 54 NSWLR 356; Heydon JA said at [100]:…
Wynn v NSW Insurance Ministerial Corporation
[1995] HCA 53 Para 177

…In Wynn v. NSW Ministerial Corporation (1995) 184 CLR 485 at [498], the Court found that the discount for vicissitudes can be increased or reduced depending upon the individual circumstances of the plaintiff.…
Carson v John Fairfax & Sons Ltd
[1993] HCA 31 Para 123

…dicts (see Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118; Moran v. McMahon (1985) 3 NSWLR 700; Carson v. John Fairfax & Sons Pty Limited (1993) 178 CLR 44 at 59; Hunter Area Health Service v. Marchlewski (2000) 51 NSWLR 268).…
Jones v The Queen
[1993] HCATrans 20

…“Some day the High Court will explain why awards of general damages in personal injury cases should not be compared, as required by Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118, but defamation awards can be compared with awards for general damages in personal injury cases ( Carson v. J…
Malec v JC Hutton Pty Ltd
[1990] HCA 20 Para 172

…The principles in Malec v. Hutton (1990) 169 CLR 638 are relevant to this approach to the assessment of damages into the future. Deane, Gaudron and McHugh JJ state as follows:…
Todorovic v Waller
[1981] HCA 72 Para 113

…pensate them for the injuries caused. The general compensatory principle of damages has three elements, outlined in Todorovic v. Waller [1981] HCA72; (1981) 150 CLR 402 at 412:…
Planet Fisheries Pty Ltd v La Rosa
[1968] HCA 62 Para 118

…d moderation” , it being “a matter of judgement in the sound exercise of a sense of proportion.” (see Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118 at 125 and 124; Wallaby Grip Limited v. Peirce [2000] NSWCA 299 at [13])…
Arthur Robinson (Grafton) Pty Ltd v Carter
[1968] HCA 9 Para 124

…However, in Chulcough v. Holley (1968) 41 ALJR 336 at 338, in a passage referred to and not disavowed in Planet Fisheries, Windeyer J said:…
Purkess v Crittenden
[1965] HCA 34 Para 115

…to establish what the effect of the pre-existing condition would have been: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164.…
Watts v Rake
[1960] HCA 58 Para 115

…not occurred, the evidentiary burden rests on the defendant to establish what the effect of the pre-existing condition would have been: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164.…
Livingstone v Rawyards Coal Co
[1880] UKHL 3 Para 114

…put the plaintiff in, as far as possible, the position that he or she would have been had the tort not be committed: Livingstone v. Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25 at 39 and Harriton v. Stephens [2004] NSWCA 93; (2004) 59 NSWLR 694 at [7]–[8] per Spigelman CJ.…
Lowe v R
[1984] HCA 46

…onal injury cases ( Carson v. John Fairfax & Sons Pty Limited (1993) 178 CLR 44) and sentences of co-offenders must be compared ( Lowe v. The Queen (1984) 154 CLR 606; Jones v. The Queen (1993) 67 ALJR 376).”…
Livingstone v Rawyards Coal Co
(1880) 5 App Cas 25 Para 114

…iff in, as far as possible, the position that he or she would have been had the tort not be committed: Livingstone v. Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25 at 39 and Harriton v. Stephens [2004] NSWCA 93; (2004) 59 NSWLR 694 at [7]–[8] per Spigelman CJ.…
Moran v McMahon
110 ER 306 Para 123

…The common law prevents a trial judge from comparing cases and verdicts (see Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118; Moran v. McMahon (1985) 3 NSWLR 700; Carson v. John Fairfax & Sons Pty Limited (1993) 178 CLR 44 at 59; Hunter Area Health Service v. Marchlewski (2000) 51 NSWLR 2…

Legislation cited in this decision · 2

Civil Liability Act 2002 (TAS)
1 mention (from Para 134)
Dust Diseases Tribunal Act 1989 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	Headon v Amaca Pty Limited [2022] NSWDDT 5
Hearing dates:	9, 10 & 17 August 2022
Date of orders:	19 September 2022
Decision date:	19 September 2022
Before:	Strathdee, J
Decision:	(1) Judgment for the plaintiff in the sum of $1,100,159.38. (2) Defendant to pay plaintiff’s costs as agreed or assessed. (3) Pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) as amended, the plaintiff may claim further damages should the plaintiff develop an asbestos related induced carcinoma, lung cancer and mesothelioma. (4) If any alternate order is sought, the parties to notify my associate within 7 days.
Catchwords:	DUST DISEASES TRIBUNAL – damages – assessment of damages on common law principles – asbestosis and asbestos related pleural disease (“ARPD”) – general damages – interest on general damages – damages for personal care and assistance – future out-of-pocket expenses DAMAGES – assessment – tort – personal injuries – pain and suffering – future or potential events – likelihood of occurrence – relevance to measure of damages
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Amaca Pty Limited v. Tullipan [2014] NSWCA 269 Boland v. Amaca Pty Limited [2020] NSW DDT 4 Carson v. John Fairfax & Sons Pty Limited (1993) 178 CLR 44 Chulcough v. Holley (1968) 41 ALJR 336 CSR v. Bouwhuis (1991) 7 NSWCCR 223 Expokin Pty Ltd trading as Festival IGA Supermarket and Graham [2000] NSWCA 267 FAI Allianz Insurance Ltd v. Lang [2004] NSWCA 413 Fuller v. Avichem Pty Ltd t/as Adkins Building & Hardware [2019] NSWCA 305 Harritonv. Stephens [2004] NSWCA 93; (2004) 59 NSWLR 694 Hunter Area Health Service v. Marchlewski (2000) 51 NSWLR 268 James Hardie & Coy Pty Limited v. Newton (1997) 42 NSWLR 729 Livingstone v. Rawyards Coal Co [1880] UKHL 3; (1880) 5 App Cas 25 Lorraine Fay Sim v. Allianz Australia Limited [2010] NSWDDT 19 Malec v. Hutton (1990) 169 CLR 638 Moran v. McMahon (1985) 3 NSWLR 700 Noel Doughan v. Amaca Pty Ltd [2010] NSWDDT 13 Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118 Planet Fisheries Pty Limited v. La Rosa (1968) 119 CLR 118 Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164 State of New South Wales v. Moss (2000) 54 NSWLR 356 Sullivan v. Micallef; Macquarie Pathology Services Pty Limited v. Micallef [1994] Aust Torts Reports 61,787 Todorovic v. Waller [1981] HCA72; (1981) 150 CLR 402 Tullipan v. Amaca Pty Limited [2014] NSWDDT 420 Wallaby Grip Limited v. Peirce [2000] NSWCA 299 Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158 Wynn v. NSW Ministerial Corporation (1995) 184 CLR 485
Category:	Principal judgment
Parties:	Warwick Headon (Plaintiff) Amaca Pty Limited (Formerly known as James Hardie & Coy Pty Ltd) ACN 000 035 512 (Under NSW Administered Winding Up) (Defendant)
Representation:	Counsel: Mr S Tzouganatos appeared for the Plaintiff Mr J Sheller SC appeared for the Defendant Solicitors: Mr S Ryan, VBR…