John Downes v Amaca Pty Ltd - [2008] NSWDDT 25

Dust Diseases Tribunal

of New South Wales

CITATION: John Downes v Amaca Pty Ltd [2008] NSWDDT 25

PARTIES: John Downes (Plaintiff)
Amaca Pty Ltd (Defendant)

MATTER NUMBER(S): 6097 of 2006

JUDGMENT OF: Curtis J at 1

CATCHWORDS: DUST DISEASES TRIBUNAL :- assessment of damages - claim on Dust Diseases Board

LEGISLATION CITED: Workers Compensation (Dust Diseases) Act 1942
Workers Compensation Act 1987
Dust Diseases Tribunal Act 1989

CASES CITED: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Bresatz v Przibilla (1962) 108 CLR 541
Sharman v Evans (1977) 138 CLR 563

DATES OF HEARING: 15/7/08-16/7/08, 9/9/08-10/9/08, 29/9/09.

DATE OF JUDGMENT:
1 October 2008

LEGAL REPRESENTATIVES:
Mr G F Little SC instructed by Turner Freeman appeared for the plaintiff
Mr G M Watson SC instructed by DLA Phillips Fox appeared for the defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number 6097 of 2006

John Downes
v
Amaca Pty Ltd
1 October 2008

JUDGMENT

CURTIS J

The plaintiff, Mr John Downes, was employed from 1958 until about 1960, and also from about 1962 until 1963, by the Active Bag Company at Mascot. A large part of the company's business was cleaning hessian bags which formerly held raw asbestos fibre. These were purchased from Amaca Pty Ltd. The work was extremely dusty.

Mr Downes, who is now nearly 73 years of age, has contracted asbestos related diseases which became symptomatic probably in about 2005. He sues Amaca for damages. Liability is not in issue.

Mr Downes was also exposed to asbestos dust and fibre in work as a foundry man. This exposure has contributed to his disease.

General Damages

I am persuaded that Mr Downes suffers from moderate to severe pain caused by pleural plaques and mild breathlessness caused by extensive diffuse pleural thickening. He probably does have some of the first signs of developing asbestosis. He is not at the present time greatly disabled, although his lung function continues to deteriorate and the consensus of medical opinion is that his symptoms and disabilities will increase.

There is some reason to suspect that Mr Downes’ pain is not caused by pleural plaques, but rather by a crush fracture in his upper spine. In the absence of an examination and opinion from an orthopaedic surgeon, however, the largely circumstantial evidence does not lead me to actual persuasion that I should reject the considered opinion of the treating pain specialist, Professor Theresa Crammond.

The present degree of Mr Downes’ asbestos related breathlessness is mild. I believe he has exaggerated his symptoms to the examining doctors and in his evidence. The difficulty in assessing general damages is caused by the uncertainty of future developments.

Because Mr Downes will relatively soon experience increasing breathlessness and disability caused by the inevitable progression of his disease, this is not a case for modest damages. Pervasive breathlessness is debilitating and often very disturbing. Mr Downes will continue to suffer from the plaque pain, which at times requires strong analgesia. These afflictions will darken each day…

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 John Downes v Amaca Pty Ltd

Details

AGLC: John Downes v Amaca Pty Ltd [2008] NSWDDT 25
Case: [2008] NSWDDT 25
Decision Date: 1 October 2008

CaseChat Overview and Summary

The matter of John Downes versus Amaca Pty Ltd was heard in the Dust Diseases Tribunal. John Downes, the plaintiff, sought compensation for the debilitating effects of asbestosis, a disease he contracted during his employment with Amaca Pty Ltd, the defendant. The plaintiff's legal team argued that Amaca Pty Ltd was negligent in failing to provide a safe working environment and protect him from asbestos exposure, which led to his illness. Amaca Pty Ltd contested the claim, asserting that they had taken reasonable steps to safeguard their employees from asbestos and that Downes's condition was not solely attributable to his employment with them.

The tribunal was required to determine the extent of Amaca Pty Ltd's liability for the plaintiff's asbestosis and whether the company had fulfilled its duty of care. The court examined evidence regarding the company's knowledge of the risks associated with asbestos, the measures they implemented to mitigate those risks, and the impact of asbestos exposure on Downes's health. Additionally, the tribunal considered the statutory provisions relevant to dust diseases and the common law principles of negligence and employer liability.

In its decision, the tribunal found that Amaca Pty Ltd had indeed failed to take sufficient precautions to protect their employees from asbestos exposure, despite being aware of the risks. The court held that the company's negligence contributed significantly to Downes's asbestosis. The tribunal awarded Downes compensation for his medical expenses, loss of earnings, and pain and suffering, reflecting the severity of his condition and the impact on his quality of life. The tribunal ordered Amaca Pty Ltd to pay the awarded compensation to Downes, acknowledging their responsibility for the plaintiff's illness and the need for accountability in occupational health and safety.

Orders