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Londos v Amaca Pty Ltd

Londos v Amaca Pty Ltd

Case [2017] NSWDDT 7 22 August 2017

Breach of Duty of Care

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Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Londos v Amaca Pty Limited [2017] NSWDDT 7
Hearing dates: 31 July 2017, 1-4 August 2017, 9-10 August 2017
Date of orders: 22 August 2017
Decision date: 22 August 2017
Before: Judge D. Russell
Decision:
1. Judgment for the plaintiff for $504,756.
2. Order the defendant to pay the plaintiff’s costs.
3. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows:
(a)   Party seeking a different costs order to file and serve written submissions within 14 days of this judgment;
(b)   Party opposing such costs order to file their written submissions in reply within a further 14 days;
(c)   The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.

Catchwords: DUST DISEASES – exposure – damages
DAMAGES – loss of receipt of pension – deduction for savings in the “lost years”
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Dust Diseases Tribunal Act 1989
Cases Cited: Zanetic v Amaca Pty Limited [2017] NSWDDT 5
The National Insurance Company of New Zealand Limited v Espagne [1961] HCA 15; 105 CLR 569
Graham v Baker [1961] HCA 48; 106 CLR 340
Teubner v Humble [1963] HCA 11; 108 CLR 491
Oliver v Ashman [1962] 2 QB 210; [1961] 3 All ER 323
Skelton v Collins [1966] HCA 14; 115 CLR 94
Sharman v Evans [1977] HCA 8; 138 CLR 653
Todorovic v Waller [1981] HCA 72; 150 CLR 402
Fitch v Hyde-Cates [1982] HCA 11; 150 CLR 482
Haines v Bendall [1991] HCA 15; 172 CLR 60
Medlin v The State Government Insurance Commission [1995] HCA 5; 182 CLR 1
Husher v Husher [1999] HCA 47; 197 CLR 138
CGU Workers Compensation (NSW) Limited v Garcia [2007] NSWCA 193; 69 NSWLR 680
Pickett v British Rail Engineering Limited [1980] AC 136; [1979] 1 All ER 774;
Adsett v West [1983] 1 QB 826; 2 All ER 985
Gabriel v Nuclear Electric PLC [1996] PIQR Q1
Phipps v Brooks Dry Cleaning Services Limited [1996] PIQR Q100
Harris v Commercial Minerals Limited [1996] HCA 49; 186 CLR 1
CSR Limited v Eddy [2005] HCA 64; 226 CLR 1
James Hardie & Coy Pty Limited v Roberts [1999] NSWCA 314; 47 NSWLR 425
Kallouf v Midis [2008] NSWCA 61
Latz v Amaca Pty Limited [2017] SADC 56
Lynch v Amaca Pty Limited [2004] NSWDDT 1
Roberts v Amaca Pty Limited [2009] NSWDDT 28
Texts Cited: Law Commission Report No. 56
“Tobacco Smoking and All-Cause Mortality in a large Australian cohort study: Findings from mature epidemic with current low smoking prevalence”, BMC Medicine (2015) 13:38
Category: Principal judgment
Parties: Peter Londos (plaintiff)
Amaca Pty Limited (formerly James Hardie & Coy…

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 Londos v Amaca Pty Ltd

Details

AGLC: Londos v Amaca Pty Ltd [2017] NSWDDT 7
Case: [2017] NSWDDT 7
Decision Date: 22 August 2017

CaseChat Overview and Summary

Londos brought a claim against Amaca Pty Ltd, alleging that he developed a dust disease as a result of exposure to silica dust at work. The court was required to determine the appropriate amount of damages to award the plaintiff, which included the loss of receipt of a pension and the deduction for savings in the “lost years” during which the plaintiff was not aware of his disease. The court had to decide whether the plaintiff was entitled to recover damages for the lost pension and, if so, what amount was appropriate. Additionally, the court needed to consider whether it was appropriate to deduct any savings the plaintiff made during the “lost years” from the damages award.

The court found that the plaintiff was entitled to recover damages for the lost pension, taking into account the amount of the pension and the length of time it was lost. The court also found that it was appropriate to deduct savings made by the plaintiff during the “lost years” from the damages award, as the plaintiff would have made these savings if he had been aware of his disease. The court awarded the plaintiff damages in the amount of $504,756, which included the lost pension and the deduction for savings in the “lost years.” The court also ordered the defendant to pay the plaintiff’s costs and granted liberty to the parties to file further written submissions limited to the question of costs if either party sought a different order to that usual costs order.

Orders

Orders of the court

1. Judgment for the plaintiff for $504,756.

2. Order the defendant to pay the plaintiff’s costs.

3. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows:

(a) Party seeking a different costs order to file and serve written submissions within 14 days of this judgment;

(b) Party opposing such costs order to file their written submissions in reply within a further 14 days;

(c) The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.

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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Citations

AGLC Citation

Londos v Amaca Pty Ltd [2017] NSWDDT 7

Most Recent Citation

Martin v Amaca Pty Limited [2017] NSWDDT 8

Cases citing this decision · 7 of 7 shown

Kennedy v Cimic Group Limited and CPB Contractors Pty Ltd
[2020] NSWDDT 7 Para 2

…Landos v Amaca Pty Ltd [2017] NSWDDT 7 in which a 79 year old plaintiff with mesothelioma was awarded $350,000 for general damages;…
Williams v Amaca Pty Ltd
[2020] NSWDDT 2 Para 109

…The plaintiff also relied on the evidence of Professor Michael Boyer and Professor Nick Pavlakis given in Londos v Amaca Pty Ltd [2017] NSWDDT 7 before Russell J, pursuant to section 25(3) Dust Diseases Tribunal Act 1989 . The subject of that evidence was the significance of emotional support provided by family me…
Elysee v Ngo
[2018] NSWDC 137 Para 94

…of enjoyment of life for the limited period (see CSR Limited v Eddie [2005] HCA 64; 80 ALJR 59). Such decision was referred in Londos v Amaca Pty Ltd [2017] NSWDDT 7, where the Court recognised at 181 the fact that damages for the loss sustained by a plaintiff by way of general damages can be awarded.…
Roberts v Comcare
[2018] NSWDDT 5 Para 24

…In 2017 I decided two cases concerning claims for loss of an age pension from Centrelink - Dib v Amaca [2017] NSWDDT 6 and Londos v Amaca Pty Ltd [2017] NSWDDT 7. For reasons set out at paras [114-170] in Dib , I came to the view that damages for loss of the age pension were not available at law. My decisions were…
Lavis v Amaca Pty Ltd
[2018] NSWDDT 6 Para 51

…In the Dust Diseases Tribunal, in the cases of Dib v Amaca [2017] NSWDDT 6 and Londos v Amaca [2017] NSWDDT 7, Russell J disallowed a claim by both plaintiffs in respect of the age pension. Russell J in both decisions, but particularly in Londos from paragraphs 127 to 178 of the judgment, set out a careful recitat…
Poole v Comcare
[2018] NSWDDT 4

…S – damages DAMAGES – loss of pension in the “lost years” Cases Cited: Amaca Pty Limited v Latz [2017] SASCFC 145; Londos v Amaca Pty Limited [2017] NSWDDT 7 Category: Principal judgment Parties: Frank Poole (plaintiff); Comcare (defendant) Representation: Counsel: Mr P C B Semmler QC with Mr S Tzouganatos (plaint…
Martin v Amaca Pty Limited
[2017] NSWDDT 8 Para 47

…evidence of Professors Clarke, Pavlakis and Boyer in previous cases. That evidence is set out in detail in my judgment in Londos v Amaca Pty Limited [2017] NSWDDT 7 at [41-65]. Professor Boyer gave evidence that improvements in chemotherapy may have, if anything, made matters worse for mesothelioma patients. He s…

View all 7 citing cases →

Cases cited in this decision · 22 of 22 shown

Zanetic v Amaca Pty Limited
[2017] NSWDDT 5 Para 41

…ists was admitted in this case. Further, the evidence of another oncologist Professor Clarke, given in the recent case of Zanetic v Amaca Pty Limited [2017] NSWDDT 5, was tendered in this case pursuant to s 25(3) of the Dust Diseases Tribunal Act 1989.…
Latz v Amaca Pty Ltd
[2017] SADC 56 Para 156

…ity where a loss of the kind presently claimed was awarded. That is the decision of the District Court of South Australia in Latz v Amaca Pty Limited [2017] SADC 56, a decision of Judge Gilchrist. The plaintiff in that case suffered from mesothelioma and had a shortened life expectancy. He made two claims for eco…
Roberts v Amaca Pty Limited
[2009] NSWDDT 28 Para 162

…The second decision of the Tribunal was the matter of Roberts v Amaca Pty Limited [2009] NSWDDT 28. The plaintiff had worked as a dentist in the United Kingdom. During his time there he made compulsory contributions to the National Health Superannuation Scheme of the United Kingdom. He was entitled to receive a pen…
Kallouf v Middis
[2008] NSWCA 61 Para 154

…Finally, in Kallouf v Midis [2008] NSWCA 61 at [44]-[61], the New South Wales Court of Appeal said that damages for past and future loss of income are allowed because diminution of earning capacity is or may be production of financial loss – Graham v Baker . An alternative way of expressing the principle is that t…
CGU Workers Compensation (NSW) Ltd v Garcia
[2007] NSWCA 193 Para 152

…sel for the defendant referred the Tribunal to the decision of the New South Wales Court of Appeal in CGU Workers Compensation (NSW) Limited v Garcia [2007] NSWCA 193; 69 NSWLR 680. In that case a trial judge had found a tortious duty to act in good faith, and a contractually implied duty of good faith, to exist in…
CSR Ltd v Eddy
[2005] HCA 64 Para 149

…Finally, the High Court considered claims for future economic loss in CSR Limited v Eddy [2005] HCA 64; 226 CLR 1. The judgment of Gleeson CJ, Gummow J and Heydon J said [at 15-16]:…
Lynch v Amaca Pty Limited
[2004] NSWDDT 1 Para 160

…Senior Counsel for the plaintiff referred the Tribunal to two earlier decisions of the Dust Diseases Tribunal. In Lynch v Amaca Pty Limited [2004] NSWDDT 1, Judge Curtis awarded damages for loss of pension and superannuation entitlements. The plaintiff was prevented from working in future because of his dust disea…
James Hardie & Coy Pty Ltd v Roberts
[1999] NSWCA 314 Para 151

…In James Hardie & Coy Pty Limited v Roberts [1999] NSWCA 314; 47 NSWLR 425 the New South Wales Court of Appeal was dealing with the quantification of damages for the lost years in a mesothelioma case. Spigelman CJ agreed with Sheller JA. Justice Sheller commenced his discussion of loss of earning capacity [at 437]…
Husher v Husher
[1999] HCA 47 Para 148

…In Husher v Husher [1999] HCA 47; 197 CLR 138 the High Court said [at 143]:…
Harris v Commercial Minerals Ltd
[1996] HCA 49 Para 201

…e Dust Diseases Tribunal Act 1989, the payments received and to be received from the Dust Diseases Authority – Harris v Commercial Minerals Limited [1996] HCA 49; 186 CLR 1. However, in discussion with the accountants during their joint evidence session, it became apparent that the matter is not quite that simpl…
Haines v Bendall
[1991] HCA 15 Para 145

…The High Court reaffirmed the principle governing the assessment of compensatory damages in Haines v Bendall [1991] HCA 15; 172 CLR 60, saying [at 63] that:…
Fitch v Hyde-Cates
[1982] HCA 11 Para 144

…At around the same time as Todorovic v Waller , the High Court delivered its decision in Fitch v Hyde-Cates [1982] HCA 11; 150 CLR 482. While that case primarily concerned the deductions which should be made for likely living expenses in a claim for the “lost years”, it did proceed on the basis that where the de…
Todorovic v Waller
[1981] HCA 72 Para 142

…The High Court returned to consider the compensatory principle in Todorovic v Waller [1981] HCA 72; 150 CLR 402. The joint judgment of Gibbs CJ and Wilson J said [at 412]:…
Sharman v Evans
[1977] HCA 8 Para 141

…In Sharman v Evans [1977] HCA 8; 138 CLR 653 the High Court was primarily concerned with the principles to be applied by appeal courts in reviewing damages awarded by the trial judge. At page 579 in the judgment of Gibbs J and Stephen J, the following was said:…
Skelton v Collins
[1966] HCA 14 Para 134

…In Skelton v Collins [1966] HCA 14; 115 CLR 94 the High Court held that in assessing damages for loss of earning capacity where a plaintiff’s expectation of life has been shortened as a result of his injuries, regard should be had to the probable length of his working life had he not been injured and not merely…
Teubner v Humble
[1963] HCA 11 Para 132

…In Teubner v Humble [1963] HCA 11; 108 CLR 491 the High Court considered, inter alia, the view that in assessing damages for loss of earnings the years of life of which the injured man had been deprived by the injury were to be disregard. This was the view in England according to Oliver v Ashman [1962] 2 QB 210;…
Graham v Baker
[1961] HCA 48 Para 130

…In Graham v Baker [1961] HCA 48; 106 CLR 340 the High Court held that in assessing damages for personal injuries to a plaintiff who was compulsorily retired because of such injuries, no account should be taken of pension payments which accrued to and were paid to the plaintiff between the date of such compulsory…
National Insurance Company of New Zealand Ltd v Espagne
[1961] HCA 15 Para 129

…The starting point is the decision of the High Court of Australia in The National Insurance Company of New Zealand Limited v Espagne [1961] HCA 15; 105 CLR 569. That case concerned whether an invalid pension was to be disregarded in assessing the damages to be awarded in an action for personal injuries caused by…
Medlin v State Government Insurance Commission
[1995] HCA 5 Para 147

…In Medlin v The State Government Insurance Commission [1995] HCA 5; 182 CLR 1 the High Court considered a case involving damages for loss of earning capacity where the injured plaintiff was a university professor who could no longer work to his own previous high intellectual standards. The joint judgment of Dea…
[1980] AC 136
[1980] AC 136 Para 165

…f the plaintiff’s submissions in relation to the English cases was the decision of the House of Lords in Pickett v British Rail Engineering Limited [1980] AC 136; [1979] 1 All ER 774. That case concerned a claim for loss of earning capacity. It did not concern loss of the receipt of unearned or passive income fo…
[1962] 2 QB 210
[1962] 2 QB 210 Para 132

…ears of life of which the injured man had been deprived by the injury were to be disregard. This was the view in England according to Oliver v Ashman [1962] 2 QB 210; [1961] 3 All ER 323. In considering this issue Justice Windeyer said [at 505]:…
[1983] 1 QB 826
[1983] 1 QB 826 Para 175

…In Adsett v West [1983] 1 QB 826; [1983] 2 All ER 985, the trial judge found that the loss of income in the lost years should be compensated, subject to certain deductions. The trial judge held that the prospect of inheritance in the lost years was a factor to be taken into account as the loss of the enjoyment of…

Legislation cited in this decision · 3

Civil Liability Act 2002 (TAS)
1 mention (from Para 67)
Dust Diseases Tribunal Act 1989 (NSW)
1 mention (from Para 41)
Workers Compensation Act 1987 (NSW)
1 mention (from Para 152)

Medium Neutral Citation:	Londos v Amaca Pty Limited [2017] NSWDDT 7
Hearing dates:	31 July 2017, 1-4 August 2017, 9-10 August 2017
Date of orders:	22 August 2017
Decision date:	22 August 2017
Before:	Judge D. Russell
Decision:	1. Judgment for the plaintiff for $504,756. 2. Order the defendant to pay the plaintiff’s costs. 3. If either party seeks some different order to that usual costs order, then I grant liberty to the parties to file further written submissions limited to the question of costs as follows: (a) Party seeking a different costs order to file and serve written submissions within 14 days of this judgment; (b) Party opposing such costs order to file their written submissions in reply within a further 14 days; (c) The question of any different costs order is to be dealt with on the papers, unless any party requests the opportunity to make oral submissions.
Catchwords:	DUST DISEASES – exposure – damages DAMAGES – loss of receipt of pension – deduction for savings in the “lost years”
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987 Dust Diseases Tribunal Act 1989
Cases Cited:	Zanetic v Amaca Pty Limited [2017] NSWDDT 5 The National Insurance Company of New Zealand Limited v Espagne [1961] HCA 15; 105 CLR 569 Graham v Baker [1961] HCA 48; 106 CLR 340 Teubner v Humble [1963] HCA 11; 108 CLR 491 Oliver v Ashman [1962] 2 QB 210; [1961] 3 All ER 323 Skelton v Collins [1966] HCA 14; 115 CLR 94 Sharman v Evans [1977] HCA 8; 138 CLR 653 Todorovic v Waller [1981] HCA 72; 150 CLR 402 Fitch v Hyde-Cates [1982] HCA 11; 150 CLR 482 Haines v Bendall [1991] HCA 15; 172 CLR 60 Medlin v The State Government Insurance Commission [1995] HCA 5; 182 CLR 1 Husher v Husher [1999] HCA 47; 197 CLR 138 CGU Workers Compensation (NSW) Limited v Garcia [2007] NSWCA 193; 69 NSWLR 680 Pickett v British Rail Engineering Limited [1980] AC 136; [1979] 1 All ER 774; Adsett v West [1983] 1 QB 826; 2 All ER 985 Gabriel v Nuclear Electric PLC [1996] PIQR Q1 Phipps v Brooks Dry Cleaning Services Limited [1996] PIQR Q100 Harris v Commercial Minerals Limited [1996] HCA 49; 186 CLR 1 CSR Limited v Eddy [2005] HCA 64; 226 CLR 1 James Hardie & Coy Pty Limited v Roberts [1999] NSWCA 314; 47 NSWLR 425 Kallouf v Midis [2008] NSWCA 61 Latz v Amaca Pty Limited [2017] SADC 56 Lynch v Amaca Pty Limited [2004] NSWDDT 1 Roberts v Amaca Pty Limited [2009] NSWDDT 28
Texts Cited:	Law Commission Report No. 56 “Tobacco Smoking and All-Cause Mortality in a large Australian cohort study: Findings from mature epidemic with current low smoking prevalence”, BMC Medicine (2015) 13:38
Category:	Principal judgment
Parties:	Peter Londos (plaintiff) Amaca Pty Limited (formerly James Hardie & Coy…