Hicks v Amaca Pty Limited

Dust Diseases Tribunal

of New South Wales

CITATION:	Hicks v Amaca Pty Limited [2010] NSWDDT 16
PARTIES:	Grahame Hicks Amaca Pty Limited
MATTER NUMBER(S):	55 of 2010
JUDGMENT OF:	Kearns J
CATCHWORDS:	Asbestosis :- dust diseases quantum general damages Planet Fisheries past and future care provisional damages
LEGISLATION CITED:	Civil Liability Act 2002 Dust Diseases Tribunal Act 1989
CASES CITED:	Griffiths v Kerkemeyer (1977) 139 CLR 161 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164 Planet Fisheries Pty Limited v La Rosa (1968) 119 CLR 118 Markland v Sifc [2001] NSWDDT 19 Doughan v Amaca Pty Limited [2010] NSWDDT 13
DATES OF HEARING:	11/10/2010; 22/11/2010; 23/11/2010
DATE OF JUDGMENT:	30 November 2010
LEGAL REPRESENTATIVES:	Mr P Semmler QC with Mr S Tzouganatos, instructed by Turner Freeman, appeared for the plaintiff Mr J Sharpe, instructed by Ellison Tillyard Callanan, appeared for the defendant

JUDGMENT:

Introduction

1. The plaintiff has asbestosis. It was caused by the defendant’s negligence. He seeks damages. Quantum is the only issue.

Heads of damage

2. The plaintiff seeks damages under the following heads:

(a) general damages;

(b) interest on past general damages;

(c) loss of expectation of life;

(d) past Griffiths v Kerkemeyer (1977) 139 CLR 161 damages;

(e) interest on past Griffiths v Kerkemeyer damages;

(f) future Griffiths v Kerkemeyer damages.

General damages

3. The defendant submitted I should award about $80,000. The plaintiff submitted about $250,000. I think both submissions are off the mark.

4. Assessment of the plaintiff’s damages requires me to determine, amongst other things, the extent of the plaintiff’s past and likely disability. This requires an assessment of his evidence and the medical evidence.

5. The plaintiff’s evidence is not entirely satisfactory. Parts of his evidence were internally inconsistent and also inconsistent with contemporaneous histories. Possibly the best example of this is his evidence and histories related to smoking. His evidence PX 1 para 15 was that he smoked less than 10 cigarettes per day from 1964 to 1974. This was elaborated on in cross-examination. He said that some days he might not even smoke and that he would not have smoked more than a packet a week, that is, about two to three cigarettes a day. His most recent contemporaneous histories were to Professor Breslin on 25 November 2009 and to Dr Johnson in July 2010. They were that he smoked up to six cigarettes a day from age 19 to 21 (1963 to 1965) PX 4(1) or between one and four cigarettes a day from 1964 to 1974 PX 3. He told the Dust Diseases Board in February 1987 that he smoked 20 cigarettes a day for 15 years. That history was repeated on many subsequent Board examinations. I accept that he probably did not give the Board this history on each of those occasions. I consider it probable that, it being a matter of past history, the Board repeated the recording of the history on most, if not all, the subsequent visits. The…