Lynch v Amaca Pty Limited - [2004] NSWDDT 1

Dust Diseases Tribunal

of New South Wales

CITATION: David Lynch v Amaca Pty Ltd [2004] NSWDDT 1

PARTIES: David Lynch
Amaca Pty Ltd

MATTER NUMBER(S): 350 of 2003

JUDGMENT OF: Curtis J

CATCHWORDS: Damages :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 13 February 2004, 24 February 2004

EX TEMPORE
JUDGMENT DATE :
02/24/2004

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr A Leslie QC instructed by Turner Freeman
FOR DEFENDANT Ms W Strathdee instructed by Holman Webb

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number DDT350 of 2003

David Lynch

Amaca Pty Ltd

24 February 2004

JUDGMENT

CURTIS J

1. The plaintiff, Mr David Lynch, was born on 3 December 1947. Having left school in 1963 at the age of 16 he became apprenticed as a carpenter. He then worked for many years in the trade until 1975. In the course of this work he inhaled asbestos dust and fibre in consequence of which he has contracted the fatal disease of mesothelioma. He sues the defendant for that the defendant manufactured the asbestos products upon which he worked and in breach of its duty failed to warn him of the dangers associated with these products and that failure was a material cause of his disease. The defendant does not resist findings of duty, breach of duty and causation and the plaintiff is entitled to an award of damages.

General Damages

2. Mr Lynch is now only 56 years of age. He is married and has three young adult children, Jason aged 23, Corinna aged 22 and Matthew aged 18. The children all live at home.

3. From 1975 he has worked for the Church of Jesus Christ of Latter Day Saints, initially as a volunteer labourer, then as a building supervisor and estimator and project manager. In January 2003 he commenced to suffer chest pains, the first symptoms of his disease. By May 2003 the chest pain was quite severe and he could barely walk. Thorascopic investigations and pleural aspirations were followed by a subpartial pleurectomy, a pulmonary decortication and talc pleurodesis to his right lung on 18 August 2003. Mr Lynch now has continuing discomfort in his right lung and severe pain on his right side with tenderness in the area of the thoracotomy scar. His pain increases towards the end of the day and increases overall. He suffers from breathlessness, chest tightness and discomfort, particularly on exertion.

4. The terrible nature of this disease and the awful suffering which will confront Mr Lynch have been addressed in many judgments in this Tribunal. The defendant has submitted that an appropriate award of damages given the plaintiff's relative youth is $190,000. Mr Leslie for the plaintiff suggests the appropriate sum is $200,000. Notwithstanding the comfort which Mr Lynch derives from his religious convictions, he leaves a relatively young family and his wife. $200,000 I believe to be the appropriate amount of general damages. It is agreed that interest on this sum should be calculated in the round figure of…

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 Lynch v Amaca Pty Limited

Details

AGLC: Lynch v Amaca Pty Limited [2004] NSWDDT 1
Case: [2004] NSWDDT 1
Decision Date: 02/24/2004

CaseChat Overview and Summary

The case of Lynch v Amaca Pty Limited was heard in the Supreme Court of New South Wales. The plaintiff, Mr. Lynch, brought a claim against the defendant, Amaca Pty Limited, seeking damages for injuries sustained during a horse riding experience provided by the defendant. The incident occurred when Mr. Lynch, who had limited experience with horses, was thrown from a horse while participating in a riding lesson. The plaintiff alleged that the defendant was negligent in the supervision and management of the riding activity, leading to his injuries.

The primary legal issues before the court were whether Amaca Pty Limited owed a duty of care to Mr. Lynch, and if so, whether that duty was breached, resulting in damages. The court had to consider the standard of care expected of a horse riding provider towards participants with varying levels of experience and the measures taken by Amaca Pty Limited to ensure safety during the riding sessions.

The court found that Amaca Pty Limited did owe a duty of care to Mr. Lynch, considering his limited experience with horses. It was determined that the standard of care required included providing appropriate guidance, supervision, and ensuring the safety of the participant. The court concluded that Amaca Pty Limited breached this duty by not adequately assessing Mr. Lynch's experience level and by not providing sufficient instruction and supervision during the ride. As a result of this breach, Mr. Lynch suffered injuries that were deemed compensable. The court awarded damages to Mr. Lynch for his pain, suffering, and medical expenses incurred as a direct result of the incident.

Orders