Lake v Cockatoo Dockyard Pty Ltd - [2003] NSWDDT 4

Dust Diseases Tribunal

of New South Wales

CITATION: Lake v Cockatoo Dockyard Pty Ltd [2003] NSWDDT 4

PARTIES: David John Lake
v
Cockatoo Dockyard Pty Ltd ACN 000 025 918

MATTER NUMBER(S): 490 of 2002

JUDGMENT OF: Johns J at 1

CATCHWORDS: Damages :- Assessment of damages
Comparison of quantum with awards in other cases
Deduction from loss of future earnings for plaintiff's personal maintenance

LEGISLATION CITED: Dust Diseases Tribunal act 1999, s25 (3)

CASES CITED: Bevan v Amaca Pty Ltd [2001] NSWDDT 8;
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44;
Chulcough v Holley (1968) 41 ALJR 336;
CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223;
James Hardie & Coy Pty Ltd v Roberts (1999) 47 NSWLR 425;
Planet Fisheries v La Rosa (1968) 119 CLR 118;
Sullivan v Gordon (1999) 47 NSWLR 319;
Sullivan v Micallef (1994) Aust Torts Reports ¶81-308

DATES OF HEARING: 7 & 28 February 2003

EX TEMPORE
JUDGMENT DATE :
02/28/2003

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Ms A J Katzmann SC instructed by Slater & Gordon
FOR DEFENDANT: Mr J A McIntyre SC instructed by A O Ellison & Co

JUDGMENT:

1. The plaintiff brings proceedings in damages against the defendant for his mesothelioma. The case arises out of the employment of the plaintiff by Cockatoo Dockyard from approximately November 1963. He completed his apprenticeship with the defendant and his employment came to an end when he accepted a redundancy package in November 1990.

2. As the matter has unfolded the defendant was able to indicate that it did not propose to offer any evidence or make any submissions in regard to the question of liability to pay damages to the plaintiff. The plaintiff's case is that in the course of his duties he was exposed to the inhalation of asbestos dust and fibre. It is pleaded that the defendant was negligent in certain respects concerning that inhalation. It seems to me that the evidence of the plaintiff together with the clear evidence contained in the answers to interrogatories as tendered makes it clear that the plaintiff was negligently exposed to asbestos dust and fibre in his employment with the defendant.

3. The nature of the work undertaken by the dockyard and the involvement in it by the plaintiff, in particular his direct and actual involvement with the utilisation of asbestos lagging and other asbestos materials both in the manufacture and in the repair and maintenance of many vessels described by him and in other features of his work in and about the dockyard clearly illustrates the significance of his asbestos exposure over a period of time when such exposure undoubtedly was known to be a risk to the plaintiff's health and the consequent cause of his mesothelioma.

4. The court is therefore left with the task of assessing the damages. As the matter has progressed certain items of damage have been agreed by the parties which has made the court's task easier than it…

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.

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Details

Case: [2003] NSWDDT 4
Decision Date: 02/28/2003

CaseChat Overview and Summary

The case of Lake v Cockatoo Dockyard Pty Ltd involved a dispute between the plaintiff, Lake, and the defendant, Cockatoo Dockyard Pty Ltd. The plaintiff sought damages for injuries sustained during his employment at the defendant's shipyard. The case was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was the assessment of damages to be awarded to the plaintiff. This involved determining the appropriate compensation for his loss of future earnings, taking into account a deduction for personal maintenance. The court also had to compare the quantum of damages sought with awards made in similar cases. This comparison was intended to ensure that the compensation was fair and reasonable, given the circumstances of the plaintiff and the nature of his injuries.

The court undertook a detailed analysis of the evidence presented regarding the plaintiff's injuries and the impact on his capacity to work. It considered expert evidence on the likely loss of future earnings and the extent to which these could be reduced for personal maintenance. The court found that the plaintiff's injuries were severe and that the award in similar cases provided a useful benchmark. After careful consideration of all the evidence, the court determined that the appropriate compensation should be a sum that reflected both the plaintiff's loss and the need for a reasonable deduction for personal maintenance.

The court ordered that the defendant pay the plaintiff a lump sum representing the assessed damages. This amount was calculated based on the evidence and the comparison with other awards, ensuring that the compensation was both fair and appropriate for the plaintiff's circumstances.

Orders