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
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- AGLC
- Hudson v Amaca Pty Ltd [2022] NSWDDT 6
- Case
- [2022] NSWDDT 6
- Decision Date
CaseChat Overview and Summary
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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