Kennedy v CIMIC Group Ltd and CPB Contractors Pty Ltd (No 2)

[2020] NSWDDT 8

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Kennedy v CIMIC Group Ltd and CPB Contractors Pty Ltd (No 2) [2020] NSWDDT 8

Hearing dates:

On the papers. Submissions dated 27 August 2020

Date of orders:

07 October 2020

Decision date:

07 October 2020

Before:

Scotting J

Decision:

(1)   The figures in order 1 and order 3 in the principal judgment should be amended to substitute the figure of $690,562 with the figure of $685,726.

(2) The award for the second period of s 15B damages in the future at [288] of the principal judgment should be amended to substitute the figure of $112,448 with the figure of $107,612.

(3) The total award of s 15B damages for the future at [289] and [290] of the principal judgment should be amended to substitute the figure of $200,724 with the figure of $195,888.

(4)   The plaintiff and CIMIC are to pay their own costs of this application.

Catchwords:

DUST DISEASES TRIBUNAL – amendment to award of damages

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005

Dust Diseases Tribunal Act 1989

Uniform Civil Procedure Rules

Cases Cited:

Kennedy v CIMIC Group Ltd and CPB Contractors Pty Ltd [2020] NSWDDT 7

Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc (2007) 70 NSWLR 411

Category:

Consequential orders (other than Costs)

Parties:

Fabian Kennedy (Plaintiff)
CIMIC Group Limited (formerly Leighton Contractors Ltd) (First Defendant)
CPB Contractors Pty Ltd (formerly Leighton Contractors Pty Ltd) (Second Defendant)

Representation:

Counsel:
J McIntyre SC (Plaintiff)
D Priestley SC (First Defendant)
G Parker SC (Second Defendant)

Solicitors:
Segelov Taylor Lawyers (Plaintiff)
Thompson Cooper Lawyers (First Defendant)
HWL Ebsworth (Second Defendant)

File Number(s):

2020/173716

Publication restriction:

None

Judgment

1. This is an application brought by the first defendant (CIMIC) under rule 36.17 of the Uniform Civil Procedure Rules (UCPR) or s 13(6) of the Dust Diseases Tribunal Act 1989 seeking an amendment to the award of damages made in favour of the plaintiff, pursuant to s 15B Civil Liability Act 2002 (NSW).

2. The plaintiff neither consents to nor opposes the application. The application did not involve the second defendant.

3. On 31 July 2020 I published the principal judgment and entered verdict and judgment against CIMIC in the sum of $690,592, plus costs: Kennedy v CIMIC Group Ltd and CPB Contractors Pty Ltd [2020] NSWDDT 7.

4. At [287]-[288] of the principal judgment, I made an award of future loss pursuant to s 15B for two periods. The second period commences in January 2022 and ends in January 2025. CIMIC submits that because the second period does not commence for about 18 months that it should be discounted by applying the 3% deferred multiplier of 0.957 (an average of the deferral rates for 1 and 2 years), reducing the award of damages for the second period from $112,448 to $107,612.

5. Section 56 Civil Procedure Act 2005 provides that the overriding purpose of that Act and the rules of court is the just, quick and cheap resolution of the real issue in the proceedings and that the court must seek to give effect to that purpose when it exercises any power given to it by the Act or the rules.

6. Rule 36.17 UCPR provides:

If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

7. Section 13(6) Dust Diseases Tribunal Act 1989 provides:

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.

8. The Court must interpret the words “error”, “accidental slip or omission” and “correct” of the slip rule, to give effect to the overriding purpose set out in s 56 Civil Procedure Act 2005. The Court must also give effect to the overriding purpose when exercising the discretion to correct an error in a judgment, and caution should be exercised in applying case law prior to the operation of s 56: Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc (2007) 70 NSWLR 411 at [26]-[27] and [117].

9. CIMIC contends that adjustment for deferral of future losses is a conventional and uncontroversial approach to the assessment of damages and the Tribunal’s failure to do so in this case is properly characterised as an accidental slip or omission.

10. At trial, CIMIC contended that no award should be made for s 15B damages. The plaintiff accepted in his closing written submissions that the second period should be reduced by applying the 3% deferred multiplier for 2 years.

11. I am satisfied that it is appropriate to make the correction sought by CIMIC.

12. The orders I make are as follows:

1. The figures in order 1 and order 3 in the principal judgment should be amended to substitute the figure of $690,562 with the figure of $685,726.

2. The award for the second period of s 15B damages in the future at [288] of the principal judgment should be amended to substitute the figure of $112,448 with the figure of $107,612.

3. The total award of s 15B damages for the future at [289] and [290] of the principal judgment should be amended to substitute the figure of $200,724 with the figure of $195,888.

4. The plaintiff and CIMIC are to pay their own costs of this application.

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Decision last updated: 07 October 2020