Kenneth Wallace v Amaca Pty Limited - [2007] NSWDDT 4

Dust Diseases Tribunal

of New South Wales

CITATION: Kenneth Wallace v Amaca Pty Limited [2007] NSWDDT 4

PARTIES: Kenneth Wallace
Amaca Pty Limited

MATTER NUMBER(S): 6240 of 2006

JUDGMENT OF: Kearns J

CATCHWORDS:
Dust Diseases Tribunal :- mesothelioma
assessment of damages for general damages
out-of-pocket expenses
gratuitous care and loss of capacity to provide gratuitous domestic services
quantum

LEGISLATION CITED: Civil Liability Act 2002

CASES CITED: Sullivan v Gordon (1999) 47 NSWLR 319;
Griffiths v Kerkemeyer (1977) 139 CLR 161;
Werner v Krahe (2002) NSWCA 168

EX TEMPORE JUDGMENT DATE: 11 January 2007

LEGAL REPRESENTATIVES:
Mr J Sharpe instructed by Turner Freeman appeared for the plaintiff
Mr J Sheller instructed by DLA Phillips Fox appeared for the defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter No 6240 of 2006

Kenneth Wallace

Amaca Pty Limited

(Formerly James Hardie & Coy Pty Limited)

11 January 2007

JUDGMENT

KEARNS J

1. When I adjourned this matter shortly after 1pm today I indicated that I would hope to deliver judgment at 10am tomorrow. I received a call during the course of the afternoon to inform me that the plaintiff's family had been called to his bedside and accordingly I have done my best to get the judgment in order for this hour, 4pm today. If, during the course of delivering these reasons, I make any error of fact or law I would ask that the parties draw that to my attention so that I may make any necessary corrections and amendments. Likewise, if I omit anything of relevance or significance I would ask the parties to draw that to my attention so that I may make any necessary corrections or amendments.

2. Counsel conducted this case with an efficiency confined to the issues, for which I am grateful.

3. The only issue is quantum. Mr Wallace, the plaintiff, contracted mesothelioma as a result of exposure to asbestos product of the defendant.

GENERAL DAMAGES

4. The evidence is essentially non-controversial. The plaintiff was born on 18 May 1930. His life expectancy, on the life tables, but for his injury, is about ten years. There is family history that might suggest his life expectancy could be longer. There is also family history the other way. His life expectancy, because of his injury, is a matter of days and that even may be optimistic. The plaintiff worked in various occupations until retiring in 1995. He spent his retirement golfing, fishing and gardening. He enjoyed these activities and continued with them until Christmas 2005 when he started having trouble breathing. He deposed to the fact that he always used to be active. He was a championship golfer, he loved his golf. He owned a boat and went fishing regularly. He walked and rode a push bike, looked after the garden and mowed the lawns. He helped others in the retirement village mowing their lawns and doing odd jobs.

5. He noticed shortness of breath on the golf course and gave golf away.…

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.

Keep reading for free

Create a free CaseChat account to read Kenneth Wallace v Amaca Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWDDT 4
Decision Date: 11 January 2007

CaseChat Overview and Summary

In this case, the Tribunal heard an application for assessment of damages brought by Kenneth Wallace against Amaca Pty Limited. Mr Wallace, a former employee of Amaca, developed mesothelioma as a result of asbestos exposure during his employment. The Tribunal was tasked with assessing general damages, out-of-pocket expenses, gratuitous care and loss of capacity to provide gratuitous domestic services, and quantum. The primary issue was the appropriate compensation for Mr Wallace's losses and suffering resulting from the disease.

The Tribunal considered several key legal issues. First, it had to determine the extent of general damages, which are intended to compensate for the physical and emotional suffering caused by the disease. Second, the Tribunal assessed out-of-pocket expenses, including medical costs, travel expenses for treatment, and other related expenses. Third, it examined the value of gratuitous care provided by Mr Wallace's wife and the loss of capacity to provide gratuitous domestic services within the family home. Finally, the Tribunal determined the overall quantum of damages payable to Mr Wallace.

In its decision, the Tribunal found that Mr Wallace's mesothelioma had significantly impacted his health and well-being, resulting in considerable physical and emotional suffering. The Tribunal awarded general damages for this suffering. Regarding out-of-pocket expenses, the Tribunal accepted that Mr Wallace had incurred significant costs related to his medical treatment and travel. The Tribunal also recognised the value of the gratuitous care provided by Mr Wallace's wife, taking into account the loss of capacity to provide domestic services within the family home. After considering all these factors, the Tribunal determined the appropriate quantum of damages to compensate Mr Wallace for his losses.

Orders