Hudson v Amaca Pty Ltd (No 2)

[2022] NSWDDT 9

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

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

Hearing dates:

19 December 2022

Date of orders:

21 December 2022

Decision date:

21 December 2022

Before:

Judge Russell SC

Decision:

(1)   Vacate Order (2) made on 21 November 2022 and in lieu thereof the damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,362,334 plus the costs of funds management.

(2)   Order the defendant to pay the amount of $2,362,334 into an interest-bearing trust account, to be opened jointly by the solicitor for the plaintiff and the solicitor for the defendant, pending the appointment of a trustee.

Catchwords:

RECONSIDERATION – s13(6) Dust Diseases Tribunal Act 1989 (NSW) – recalculation of damages for loss of services to take proper account of all evidence and submissions at trial

Legislation Cited:

Dust Diseases Tribunal Act 1989 (NSW), s 13(6)

Cases Cited:

CSR Ltd v Bouwhuis [1991] NSWCA 66; (1991) 7 NSWCCR 223

Hudson v Amaca Pty Ltd [2022] NSWDDT 6

Category:

Consequential orders

Parties:

Daphne Maureen Hudson (Plaintiff)
Amaca Pty Limited (Defendant/Cross Claimant)
AV Jennings Properties Limited (Cross Defendant)

Representation:

Counsel:
J McIntyre SC and J Tryon (Plaintiff)
D Priestley SC (Defendant)
E Vail (Solicitor) (Cross Defendant)

Solicitors:
Rogalski Lawyers (Plaintiff)
Holman Webb (Defendant/Cross Claimant)
Sparke Helmore (Cross Defendant)

File Number(s):

DDT 2020/00341701

Judgment

Introduction

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:

“The damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,678,892 plus the costs of funds management.”

2. Order (3) was as follows:

“Defer entry of final judgment pending ascertainment of the costs of funds management, by agreement or further hearing.”

3. The matter was re-listed before me on 8 December 2022 at the request of the defendant. The defendant sought a reconsideration of Order (2), either on the basis that final judgment had yet to be entered, or if necessary by application under s 13(6) of the Dust Diseases Tribunal Act 1989 (NSW) (the DDT Act).

4. Section 13(6) of the DDT Act provides as follows:

“Whenever appropriate, the Tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the Tribunal has previously made.”

5. The defendant filed Written Submissions (MFI 8) and the plaintiff filed Written Submissions (MFI 9 and MFI 10).

6. The parties appeared before me on 19 December 2022 and made further oral submissions. Senior counsel for the plaintiff conceded that it was an appropriate case in which to apply s 13(6) of the DDT Act and reconsider the damages assessed under Lord Campbell’s Act for the benefit of Joseph Hudson.

The Issue for Reconsideration

7. The defendant submitted that there was a factual finding in the judgment which did not accord with the evidence in the case, nor with the way the parties conducted the matter. At par [176] of the original judgment I found that on Saturdays and Sundays, Keith Hudson was, and would have continued, providing 10 hours of active care per day for Joseph, on the basis that the professional care agency Homelife was only providing 4 hours per day. This is what Mrs Hudson had said in par 59 of her affidavit (PX 1, Tab 5). However, in her oral evidence Mrs Hudson said that while there had been in the past a loss of 3½ to 4 hours per week of funding, this funding had been reinstated earlier in 2022 (Tcpt 6/20-28).

8. The correct position in relation to the hours of professional care provided on Saturdays and Sundays was made clear in the affidavit of Margaret Vermeij-Irvin sworn on 19 August 2022 (PX 2, Tab 1). The Table in par 11 of that affidavit stated that NDIS-funded care was provided by Homelife for seven hours on Saturday and seven hours on Sunday.

9. The finding at [176] of the original judgment that Keith Hudson provided 10 hours of care on Saturday and 10 hours on Sunday did not take account of the fact that the up-to-date position was that Homelife was providing 7 hours each day on the weekend, and thus Keith would have been providing 7 hours and not 10 hours of care each Saturday and each Sunday.

10. Senior counsel for the plaintiff conceded that this was so and that there should be a recalculation of the damages under Lord Campbell’s Act.

11. The parties also agreed that the affidavit of Ms Vermeij-Irvin showed that there had been loss of care funding for one hour every second Monday evening. The parties agreed that this should lead to adding a quarter of an hour to the standby care in the calculations of the weekly rate for such services.

12. In the original judgment the sleepover/standby rate had been calculated at $32.77 per hour for five hours each day and seven days a week. This was a total of 35 hours of sleepover/standby care. The agreement of the parties was that this should be increased to 35.25 hours.

13. In lieu of the calculations set out at [196] of the original judgment, the following table sets out the reconsidered calculations as to the weekly value of services provided by Keith to Joseph:

RATE	CALCULATION	AMOUNT
Ordinary rate	$62.17 x 6 hours x 5 days	$1,865.10
Saturday rate	$87.57 x 7 hours	$612.57
Sunday rate	$112.85 x 7 hours	$789.95
Sleepover/Standby rate	$32.77 x 35.25 hours	$1,155.14
TOTAL	$4,422.76

Further issue submitted for reconsideration

14. Senior counsel for the plaintiff submitted (MFI 9, par 11) that in view of the likelihood of future interruptions to the scheduled provision of weekend care by Homelife as a result of NDIS budget constraints, and other events such as COVID, any amount arithmetically calculated to establish appropriate compensation for future loss of support should be increased by an amount to take such contingencies into account.

15. Senior counsel for the plaintiff further submitted that adding 5% to the arithmetical calculation of future loss of support would result in a further $30,000 being awarded. Adding 10% would add $60,000 and adding 15% would add $90,000.

16. Senior counsel for the defendant opposed this approach pointing out that the evidence did not establish any particular likelihood that care would be decreased or even increased in the future. Senior counsel for the defendant also pointed out that this approach was not the subject of submissions at the trial and thus did not call for a reconsideration on the basis put forward on the present application. Further, he pointed out that vicissitudes were already taken into account in the calculation made.

17. I accept the submissions on this topic made by senior counsel for the defendant. In particular, I do not think it appropriate to engage in a reconsideration to add an additional amount to the damages for future loss of services, when that was not a matter raised at the trial. To allow the matter to be argued at this point would, in theory, open up every finding of fact and law made at the trial for further reconsideration. That is not the function of s 13(6). The power in s 13(6) is to be exercised only in very exceptional cases in which it becomes clear after judgment that something of a fundamental kind and of high importance needs to be taken into account, rather than leaving the matter to be dealt with by the appeal mechanism: CSR Ltd v Bouwhuis [1991] NSWCA 66 per Priestley JA at p 13; (1991) 7 NSWCCR 223 at p 247.

Reconsideration of Loss of Services Claim

18. In the following calculations I will ignore the cents.

19. In lieu of the figure at [198] of the original judgment, the calculation for past loss of services for two years (2020-2022) is:

$4,422.76 x 104 = $459,967

20. The written submissions for the plaintiff calculated interest on past loss, adopting the approach set out at [199] of the original judgment, at $19,708. Senior counsel for the defendant accepted this figure.

21. In lieu of the figure at [201] of the original judgment, the calculation for the first period of future loss (2022-2030) is:

$4,422.76 x 371.8 x 85% = $1,397,724

22. In lieu of the figure at [202] of the original judgment, the calculation for the second period of future loss (2030-2036) is:

$4,422.76 x 70% x 264.7 x 0.789 x 75% = $484,935

23. The reconsidered calculation under Lord Campbell’s Act for the value of loss of services which would have been provided by Keith to Joseph is set out in the following table:

PERIOD	AMOUNT
Past (2020-2022)	$459,967
Interest on Past	$19,708
Future (2022-2030)	$1,397,724
Future (2030-2036)	$484,935
TOTAL	$2,362,334

24. I note that each of these figures was agreed between the parties.

Payment and Investment of Damages

25. The plaintiff proposes to apply to the Supreme Court of NSW for the appointment of a trustee to manage the funds which are the subject of the assessment of damages for loss of services. The Registrar of the Dust Diseases Tribunal does not have the facilities for receiving payment of funds pending the appointment of a trustee. There could be an order that the funds be paid to the Public Trustee, pending the appointment of a private trustee as the plaintiff wishes. However, that would involve double handling and a double set of fees.

26. I will make an order, as discussed with counsel for both parties, that the funds be paid into an interest-bearing trust account to be opened jointly by the solicitors for the parties.

Orders

27. The orders of the Tribunal are:

1. Vacate Order (2) made on 21 November 2022 and in lieu thereof the damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,362,334 plus the costs of funds management.

2. Order the defendant to pay the amount of $2,362,334 into an interest-bearing trust account, to be opened jointly by the solicitor for the plaintiff and the solicitor for the defendant, pending the appointment of a trustee.

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Decision last updated: 21 December 2022