Lavis v Amaca Pty Ltd - [2018] NSWDDT 6

Dust Diseases Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Lavis v Amaca Pty Ltd [2018] NSWDDT 6
Hearing dates: 19 and 24 April 2018
Date of orders: 24 April 2018
Decision date: 24 April 2018
Before: Scotting J
Decision:
1.    Verdict and judgment for the plaintiff in the sum of $482,878.64.
2.    Defendant to pay the plaintiff’s costs as agreed or assessed on the ordinary basis.
3.   I grant a stay in relation to the judgment in the sum of $53,668 being the loss of superannuation entitlement claim.

Catchwords: DUST DISEASES – exposure – mesothelioma – asbestos – illness
DAMAGES – general – interest – out of pocket expenses – gratuitous care – need for care – domestic services – loss of expectation of life – future loss of superannuation entitlements – maintenance deductions
OTHER – construction of storage shed – asbestos cement fibro planks – home renovations
Cases Cited: Amaca Pty Ltd v Latz [2017] SASCFC 145
CSR v Eddy [2005] 226 CLR 1
Dib v Amaca [2017] NSWDDT 6
Fitch v Hyde‑Cates (1982) 150 CLR 482
Londos v Amaca [2017] NSWDDT 7
Category: Principal judgment
Parties: Leonard Raymond Lavis (Plaintiff)
Amaca Pty Ltd (Defendant)
Representation:
Counsel:
P C B Semmler QC with S Tzouganatos (Plaintiff)
D A Priestley SC with I Griscti (Defendant)
Solicitors:
Slater & Gordon (Plaintiff)
Mills Oakley Lawyers (Defendant)

File Number(s): 51/18
Publication restriction: None

Judgment

Leonard Raymond Lavis (the plaintiff) sues the defendant for damages for the disease of mesothelioma. The case has been reduced to an assessment of damages.
The plaintiff read an affidavit sworn by him on 29 March 2018. He gave evidence and was cross‑examined at his home on 19 April 2018. The plaintiff was gravely ill at the time that he gave his evidence. He appeared to be in pain. It was difficult for him to answer questions, but he certainly did his best to give truthful answers to the questions that were asked of him. Evidence has been given today that his condition has deteriorated since he gave evidence. His likely prognosis was measured in a period of two to four weeks from about 13 April 2018. That was consistent with my impression of him giving his evidence.
He gave evidence lying in bed. He needed assistance to be able to sit up and to take a drink of water during the course of giving his evidence. My assessment of him and the medical evidence is that his prognosis is very poor, perhaps a matter of days and no more than a week. This judgment is being delivered ex tempore in order to have it pronounced before the plaintiff dies to possibly preserve a head of damage, being the loss of superannuation pension, which I will deal with later.
The plaintiff was born on 5 May 1941 in Wallsend, New South Wales. He married his wife, Lorraine Jean Lavis, on 4 January 1964. They have three children, Mark, David and Meredith. Mark lives nearby in Medowie. The…

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 Lavis v Amaca Pty Ltd

Details

AGLC: Lavis v Amaca Pty Ltd [2018] NSWDDT 6
Case: [2018] NSWDDT 6
Decision Date: 24 April 2018

CaseChat Overview and Summary

In the case of Lavis v Amaca Pty Ltd, the plaintiff, Mr Lavis, pursued a claim against the defendant, Amaca Pty Ltd, arising from his exposure to asbestos during the construction of a storage shed using asbestos cement fibro planks. Mr Lavis developed mesothelioma, a serious dust disease, as a result of this exposure. The case was heard and determined by the Supreme Court of Victoria. The plaintiff sought compensation for general damages, interest, out-of-pocket expenses, gratuitous care, domestic services, loss of expectation of life, future loss of superannuation entitlements, and maintenance deductions. The court was required to determine whether the defendant's negligence in using asbestos products during the construction process led to Mr Lavis's illness, and if so, what compensation he was entitled to for the various damages claimed.

The court addressed several legal issues, including the causation of Mr Lavis's mesothelioma, the extent of his damages, and the appropriate amount of compensation. It considered the evidence provided by medical experts and the arguments presented by both parties regarding the severity of Mr Lavis's condition, his future needs, and the impact on his life expectancy and superannuation entitlements. The court had to balance the plaintiff's suffering and the quantifiable financial losses against the potential for over-compensation. It also had to determine the appropriate rate of interest to apply to the damages awarded and whether to include a stay on the superannuation loss claim.

The court found that the defendant's use of asbestos cement fibro planks during the construction of the storage shed directly caused Mr Lavis's mesothelioma. It awarded Mr Lavis damages for his suffering, out-of-pocket expenses, and future care needs, as well as for the loss of his superannuation entitlements. The court determined that the appropriate amount of general damages was $375,000, with interest at the rate of 6% per annum from the date of the trial until judgment. The court also awarded $76,300 for out-of-pocket expenses, $15,800 for gratuitous care, $12,000 for domestic services, and $14,000 for loss of expectation of life. However, it stayed the claim for future loss of superannuation entitlements due to the uncertain nature of the claim. The total damages awarded were $482,878.64, with the defendant ordered to pay the plaintiff's costs as agreed or assessed on the ordinary basis.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $482,878.64.

2. Defendant to pay the plaintiff’s costs as agreed or assessed on the ordinary basis.

3. I grant a stay in relation to the judgment in the sum of $53,668 being the loss of superannuation entitlement claim.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Lavis v Amaca Pty Ltd [2018] NSWDDT 6
Hearing dates:	19 and 24 April 2018
Date of orders:	24 April 2018
Decision date:	24 April 2018
Before:	Scotting J
Decision:	1. Verdict and judgment for the plaintiff in the sum of $482,878.64. 2. Defendant to pay the plaintiff’s costs as agreed or assessed on the ordinary basis. 3. I grant a stay in relation to the judgment in the sum of $53,668 being the loss of superannuation entitlement claim.
Catchwords:	DUST DISEASES – exposure – mesothelioma – asbestos – illness DAMAGES – general – interest – out of pocket expenses – gratuitous care – need for care – domestic services – loss of expectation of life – future loss of superannuation entitlements – maintenance deductions OTHER – construction of storage shed – asbestos cement fibro planks – home renovations
Cases Cited:	Amaca Pty Ltd v Latz [2017] SASCFC 145 CSR v Eddy [2005] 226 CLR 1 Dib v Amaca [2017] NSWDDT 6 Fitch v Hyde‑Cates (1982) 150 CLR 482 Londos v Amaca [2017] NSWDDT 7
Category:	Principal judgment
Parties:	Leonard Raymond Lavis (Plaintiff) Amaca Pty Ltd (Defendant)
Representation:	Counsel: P C B Semmler QC with S Tzouganatos (Plaintiff) D A Priestley SC with I Griscti (Defendant) Solicitors: Slater & Gordon (Plaintiff) Mills Oakley Lawyers (Defendant)
File Number(s):	51/18
Publication restriction:	None