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Hudson v Amaca Pty Ltd

Hudson v Amaca Pty Ltd

Case [2022] NSWDDT 6 21 November 2022

Statutory Interpretation

Tort Law

Civil Litigation & Procedure

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Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Hudson v Amaca Pty Ltd [2022] NSWDDT 6
Hearing dates: 11 July 2022, 5-7 September 2022, 25-26 October 2022
Date of orders: 21 November 2022
Decision date: 21 November 2022
Before: Judge Russell SC
Decision:
(1)   The damages in the claim brought by the plaintiff for the benefit of the estate of the late Keith Hudson are assessed at $475,840.38.
(2)   The damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,664,703 plus the costs of funds management.
(3)   Defer entry of final judgment pending ascertainment of the costs of funds management, by agreement or further hearing.
(4)   Order the defendant to pay the amount of $475,840.38 to the plaintiff.
(5)   Order the defendant to pay the plaintiff’s costs of the proceedings to date.
(6)   Stand the proceedings between the plaintiff and the defendant over generally with liberty to restore on 7 days notice.
(7)   Stand the cross claim over generally with liberty to restore on 7 days notice.

Catchwords:
DUST DISEASES — prescribed dust diseases — mesothelioma
CHOICE OF LAW – where exposure to asbestos occurred in both New South Wales and Australian Capital Territory - torts with an inter-state element are governed by the lex loci delicti
DAMAGES – general damages and loss of expectation of life - assessment under Australian Capital Territory law – where action survives for the benefit of the deceased’s estate - where act or omission that gives rise to the cause of action caused the person’s death – where plaintiff did not give a notice of claim before death – whether requirement to give notice of claim procedural or substantive
DAMAGES – Lord Campbell’s Act – loss of services provided by deceased – assessment of damages under New South Wales legislation the same as under Australian Capital Territory legislation – where deceased’s son has severe disabilities – whether son required 24-hour care – direct care provided by deceased – standby supervision or indirect care provided by deceased and his wife – period for which deceased would have provided services – hourly rate selected to calculate damages – whether appropriate to use commercial cost of care to calculate damages

Legislation Cited:
Accident Compensation Act 1985 (VIC), s 134AB
Civil Law (Wrongs) Act 2002 (ACT), ss 15, 16, 24, 25, 51, 54, 59, 62, 100
Civil Liability Act 2002 (NSW), ss 15A, 15B
Civil Procedure Act 2005 (NSW), ss 3, 77, 90
Compensation to Relatives Act 1897 (NSW), ss 3, 4
Dust Diseases Tribunal Act 1989, s 12B
Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
Personal Injuries Proceedings Act 2002 (QLD)
Workers Compensation Act 1987 (NSW), s 151C

Cases Cited:
Amaca Pty Ltd v Raines [2018] NSWCA 216
Franklin v South Eastern Railway Co (1858) 3 H & N 211
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48
John Pfeiffer…

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 Hudson v Amaca Pty Ltd

Details

AGLC: Hudson v Amaca Pty Ltd [2022] NSWDDT 6
Case: [2022] NSWDDT 6
Decision Date: 21 November 2022

CaseChat Overview and Summary

In the case of Hudson v Amaca Pty Ltd, the plaintiff, as the administrator of the estate of Keith Hudson, sought compensation for the death of the deceased, who had been exposed to asbestos during his employment. The defendant, Amaca Pty Ltd, was a company involved in the manufacture of asbestos products. The dispute involved the assessment of damages under Australian Capital Territory law, with particular focus on the deceased's exposure to asbestos in both New South Wales and the Australian Capital Territory. The court had to decide on the applicable choice of law principles, the assessment of general damages and loss of expectation of life, and the calculation of damages under Lord Campbell's Act for the benefit of the deceased's son, who had severe disabilities.

The primary legal issues revolved around the choice of law applicable to the tort, the nature and extent of the damages claimable for the deceased's death, and the assessment of damages for the loss of services provided by the deceased under Lord Campbell's Act. The court had to determine whether the requirement to give notice of claim was procedural or substantive, and whether it was appropriate to use the commercial cost of care to calculate damages for the benefit of the deceased's son. The court also needed to address whether the son required 24-hour care or if the care provided was standby supervision or indirect care.

The court held that the law of the place where the tort was committed, the lex loci delicti, governed the assessment of damages. In determining the damages, the court concluded that the requirement to give notice of claim was procedural rather than substantive. The court assessed general damages and loss of expectation of life under Australian Capital Territory law. In calculating damages for loss of services under Lord Campbell's Act, the court found it appropriate to use the commercial cost of care, considering the son's severe disabilities and the level of care provided by the deceased. The court concluded that the son did not require 24-hour care but rather standby supervision or indirect care, which was provided by the deceased and his wife.

The final orders of the court were that the damages in the claim brought by the plaintiff for the benefit of the estate of the late Keith Hudson were assessed at $475,840.38. The damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson were assessed at $2,664,703 plus the costs of funds management. The court also ordered the defendant to pay the amount of $475,840.38 to the plaintiff, the plaintiff’s costs of the proceedings to date, and deferred entry of final judgment pending ascertainment of the costs of funds management. The proceedings were stood over generally with liberty to restore on 7 days notice.

Orders

Orders of the court

(1) The damages in the claim brought by the plaintiff for the benefit of the estate of the late Keith Hudson are assessed at $475,840.38.

(2) The damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,664,703 plus the costs of funds management.

(3) Defer entry of final judgment pending ascertainment of the costs of funds management, by agreement or further hearing.

(4) Order the defendant to pay the amount of $475,840.38 to the plaintiff.

(5) Order the defendant to pay the plaintiff’s costs of the proceedings to date.

(6) Stand the proceedings between the plaintiff and the defendant over generally with liberty to restore on 7 days notice.

(7) Stand the cross claim over generally with liberty to restore on 7 days notice.

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

Hudson v Amaca Pty Ltd [2022] NSWDDT 6

Most Recent Citation

Hudson v Amaca Pty Ltd (No 2) [2022] NSWDDT 9

Cases citing this decision · 3 of 3 shown

Keogh v CPB Contractors Pty Ltd (No 3)
[2024] NSWDDT 10 Para 55

…l law, similar to the pre-court notice provisions in the law of the Australian Capital Territory considered by the Tribunal in Hudson v Amaca Pty Ltd [2022] NSWDDT 6 at [68]. It would be an anomalous result if procedural provisions could lead to s 316 of the WCRA being substantive and not procedural. Surely pre-co…
Armitage v State of New South Wales
[2023] NSWDDT 3 Para 38

…rd ought be $360,000.00 and submits that such amount is consistent with awards given in relatively comparable circumstances in Hudson v Amaca Pty Ltd [2022] NSWDDT 6, Kennedy v CIMIC Group Limited [2020] NSWDDT 7, Phillips v Amaca Pty Limited [2019] NSWDDT 5, Piatti v ACN 000 246 542 Pty Ltd [2019] NSWDDT 7 and We…
Hudson v Amaca Pty Ltd (No 2)
[2022] NSWDDT 9 Para 1

…In this matter I delivered judgment on 21 November 2022: Hudson v Amaca Pty Ltd [2022] NSWDDT 6 (the original judgment). Order (2) was as follows:…

View all 3 citing cases →

Cases cited in this decision · 8 of 8 shown

Webber v Comcare
[2018] NSWDDT 10 Para 23

…en NSW and the ACT could result in awards for two different amounts. The parties accepted the correctness of my previous decision in Webber v Comcare [2018] NSWDDT 10. In that case mesothelioma was contracted because of a breach of duty of care in NSW and a later breach of duty of care in the Northern Territory. At…
Amaca Pty Ltd v Raines
[2018] NSWCA 216 Para 177

…are. It is well established that the value of such care is compensable: Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, Amaca Pty Ltd v Raines [2018] NSWCA 216. The schedule of damages put forward for the defendant (MFI 5) allows nothing at all for these 10 hours. I reject that approach as it does not accord…
Wickham Freight Lines Pty Ltd v Ferguson
[2013] NSWCA 66 Para 50

…I am fortified in that view by the decision of the NSW Court of Appeal in Wickham Freightlines Pty Ltd v Ferguson [2013] NSWCA 66; (2013) 83 NSWLR 162. In that case a truck driver was injured in the course of his employment at premises in Victoria. He brought proceedings in negligence in NSW against his employer.…
Hamilton v Merck & Co Inc
[2006] NSWCA 55 Para 42

…Senior counsel for the plaintiff referred the Tribunal to the decision of the Court of Appeal in Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48. The case involved proceedings brought in the Supreme Court of NSW arising from a tort allegedly committed in Queensland. The Personal Injuries Proceedings…
John Pfeiffer Pty Ltd v Rogerson
[2000] HCA 36 Para 44

…In John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 a plaintiff had sued in the Supreme Court of the Australian Capital Territory for damages for personal injuries suffered in New South Wales. The question to be decided was whether the applicable law for the assessment of damages was either the…
Nguyen v Nguyen
[1990] HCA 9

…[2000] HCA 36; (2000) 203 CLR 503 Nash v Commissioner for Railways [1963] SR (NSW) 357 Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668 Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 Webber v Comcare [2018] NSWDDT 10 Wickham Freightlines…
Griffiths v Kerkemeyer
[1977] HCA 45 Para 6

…The method of valuing the needs of an injured person under Griffiths v Kerkemeyer (1977) 139 CLR 161 may provide guidance in valuing the loss of services that has been replaced by voluntary care – Nguyen .…
Van Gervan v Fenton
[1992] HCA 54 Para 177

…described by Ms Coles as standby supervision or indirect care. It is well established that the value of such care is compensable: Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, Amaca Pty Ltd v Raines [2018] NSWCA 216. The schedule of damages put forward for the defendant (MFI 5) allows nothing at all for…

Legislation cited in this decision · 9

Civil Law (Wrongs) Act 2002 (ACT)
100, 15, 16, 24, 25, 51, 54, 59, 62 19 mentions (from Para 16)
Civil Procedure Act 2005 (NSW)
3, 77, 90 4 mentions (from Para 94)
Civil Liability Act 2002 (TAS)
15A, 15B 3 mentions (from Para 19)
Relatives Act 1897 (NSW)
3, 4 3 mentions (from Para 17)
Accident Compensation Act 1985 (Vic)
134AB 2 mentions (from Para 50)
Dust Diseases Tribunal Act 1989 (NSW)
12B 2 mentions (from Para 20)
Workers Compensation Act 1987 (NSW)
151C 2 mentions (from Para 40)
Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
1 mention (from Para 16)
Personal Injuries Proceedings Act 2002 (Qld)
1 mention

Medium Neutral Citation:	Hudson v Amaca Pty Ltd [2022] NSWDDT 6
Hearing dates:	11 July 2022, 5-7 September 2022, 25-26 October 2022
Date of orders:	21 November 2022
Decision date:	21 November 2022
Before:	Judge Russell SC
Decision:	(1) The damages in the claim brought by the plaintiff for the benefit of the estate of the late Keith Hudson are assessed at $475,840.38. (2) The damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,664,703 plus the costs of funds management. (3) Defer entry of final judgment pending ascertainment of the costs of funds management, by agreement or further hearing. (4) Order the defendant to pay the amount of $475,840.38 to the plaintiff. (5) Order the defendant to pay the plaintiff’s costs of the proceedings to date. (6) Stand the proceedings between the plaintiff and the defendant over generally with liberty to restore on 7 days notice. (7) Stand the cross claim over generally with liberty to restore on 7 days notice.
Catchwords:	DUST DISEASES — prescribed dust diseases — mesothelioma CHOICE OF LAW – where exposure to asbestos occurred in both New South Wales and Australian Capital Territory - torts with an inter-state element are governed by the lex loci delicti DAMAGES – general damages and loss of expectation of life - assessment under Australian Capital Territory law – where action survives for the benefit of the deceased’s estate - where act or omission that gives rise to the cause of action caused the person’s death – where plaintiff did not give a notice of claim before death – whether requirement to give notice of claim procedural or substantive DAMAGES – Lord Campbell’s Act – loss of services provided by deceased – assessment of damages under New South Wales legislation the same as under Australian Capital Territory legislation – where deceased’s son has severe disabilities – whether son required 24-hour care – direct care provided by deceased – standby supervision or indirect care provided by deceased and his wife – period for which deceased would have provided services – hourly rate selected to calculate damages – whether appropriate to use commercial cost of care to calculate damages
Legislation Cited:	Accident Compensation Act 1985 (VIC), s 134AB Civil Law (Wrongs) Act 2002 (ACT), ss 15, 16, 24, 25, 51, 54, 59, 62, 100 Civil Liability Act 2002 (NSW), ss 15A, 15B Civil Procedure Act 2005 (NSW), ss 3, 77, 90 Compensation to Relatives Act 1897 (NSW), ss 3, 4 Dust Diseases Tribunal Act 1989, s 12B Law Reform (Miscellaneous Provisions) Act 1944 (NSW) Personal Injuries Proceedings Act 2002 (QLD) Workers Compensation Act 1987 (NSW), s 151C
Cases Cited:	Amaca Pty Ltd v Raines [2018] NSWCA 216 Franklin v South Eastern Railway Co (1858) 3 H & N 211 Griffiths v Kerkemeyer (1977) 139 CLR 161 Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48 John Pfeiffer…