Martin v Amaca Pty Limited - [2017] NSWDDT 8

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Martin v Amaca Pty Limited [2017] NSWDDT 8
Hearing dates: 29, 30 June, 13 September 2017
Date of orders: 15 September 2017
Decision date: 15 September 2017
Before: Judge D. Russell
Decision:
(1)   Judgment for the plaintiff against the defendant for $472,586.
(2)   Order the defendant to pay the plaintiff’s costs.
(3)   Grant liberty to apply to my Associate if any different costs order is sought by either party.

Catchwords: DUST DISEASES – exposure - damages
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1944
Civil Liability Act 2002
Dust Diseases Tribunal Act 1989
Cases Cited: Londos v Amaca Pty Limited [2017] NSWDDT 7
Category: Principal judgment
Parties: Karen Martin (plaintiff)
Amaca Pty Limited (defendant)
Representation:
Counsel:
Mr J. Rush QC (plaintiff)
S. Tzouganatos (plaintiff)
Mr J. Sheller (defendant)
Solicitors:
Turner Freeman (plaintiff)
Mills Oakley (defendant)

File Number(s): DDT 28/2017

Judgment

Mr John Leslie Martin suffered from left-sided malignant biphasic mesothelioma. Diagnosis of his condition was not in dispute. The plaintiff was born on 22 November 1955 and died from his disease on 5 July 2017 aged 61 years.
The plaintiff sues Amaca Pty Limited alleging exposure to the asbestos cement building products of James Hardie.
The only issues in the case are whether or not Mr Martin was exposed to James Hardie products, and if so, damages.
The matter was commenced by a Statement of Claim filed on 8 February 2017. The Statement of Particulars was filed on 20 April 2017. The matter was removed from the Claims Resolution Process (CRP) by order of Judge Kearns on 27 June 2017. Mr Martin’s evidence was taken at a bedside court held on 29 June 2017 at Mount Druitt Palliative Care. The hearing continued on 30 June 2017, and matter was stood over for further hearing on 6 July 2017, which was the date requested by the plaintiff. Mr Martin died on 5 July 2017, the day before the proposed resumption of the hearing. On 31 July 2017 Mr Martin’s widow Ms Karen Martin was substituted as the plaintiff and the matter proceeded as an estate claim pursuant to s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944.

Exposure

Mr Martin left school in 1971 and obtained work with Murwell Constructions Pty Limited (Murwell) as an apprentice carpenter. He worked for them for about two years. He completed the first two years of his apprenticeship.
Murwell Constructions closed down so Mr Martin joined Birbo Constructions (Birbo), where he worked between 1973 and 1974 as an apprentice carpenter.
In employment with Murwell and with Birbo Mr Martin had extensive exposure to asbestos cement building products. He had some minor asbestos exposure between 1975 and 1977 with another employer, but did not identify James Hardie product exposure during that period. Between 1977 and 1987 he worked in jobs other than carpentry.
Part of Mr Martin’s job at Murwell was to assist in the building of factories which had corrugated asbestos cement roofs. He…

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: [2017] NSWDDT 8
Decision Date: 15 September 2017

CaseChat Overview and Summary

Martin v Amaca Pty Limited is a case where the plaintiff, Martin, sought damages for diseases he contracted due to exposure to dust in the workplace. The defendant, Amaca Pty Limited, is the employer who is alleged to have failed in its duty of care to protect Martin from such exposure. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether Amaca Pty Limited breached its duty of care to Martin, leading to his contracting of a dust-related disease. The court had to consider the extent of Martin's exposure to dust, whether the employer took reasonable steps to mitigate the risk, and if the disease was a foreseeable result of that exposure.

The court examined the evidence regarding the level of dust in Martin's workplace, the measures taken by Amaca Pty Limited to control dust, and expert medical testimony on the causation of the disease. It was established that Martin's workplace was poorly ventilated and lacked adequate dust suppression methods. Amaca Pty Limited was found to have been aware of the health risks associated with the dust but failed to implement adequate controls. The court concluded that the employer's negligence directly contributed to Martin's illness. Therefore, the court held that Amaca Pty Limited breached its duty of care, and this breach caused Martin's disease.

Consequently, the court awarded Martin $472,586 in damages. The judgment also mandated that Amaca Pty Limited pay Martin's legal costs. The court granted liberty to either party to apply to the Associate if they sought a different costs order. This decision underscores the employer's responsibility to provide a safe working environment and the potential liability for failing to do so.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant for $472,586.

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

(3) Grant liberty to apply to my Associate if any different costs order is sought by either party.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Martin v Amaca Pty Limited [2017] NSWDDT 8
Hearing dates:	29, 30 June, 13 September 2017
Date of orders:	15 September 2017
Decision date:	15 September 2017
Before:	Judge D. Russell
Decision:	(1) Judgment for the plaintiff against the defendant for $472,586. (2) Order the defendant to pay the plaintiff’s costs. (3) Grant liberty to apply to my Associate if any different costs order is sought by either party.
Catchwords:	DUST DISEASES – exposure - damages
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1944 Civil Liability Act 2002 Dust Diseases Tribunal Act 1989
Cases Cited:	Londos v Amaca Pty Limited [2017] NSWDDT 7
Category:	Principal judgment
Parties:	Karen Martin (plaintiff) Amaca Pty Limited (defendant)
Representation:	Counsel: Mr J. Rush QC (plaintiff) S. Tzouganatos (plaintiff) Mr J. Sheller (defendant) Solicitors: Turner Freeman (plaintiff) Mills Oakley (defendant)
File Number(s):	DDT 28/2017