The Board of Management of Royal Perth Hospital & Anor v Frost, unreported; SCt of WA; Library No 970069; 26 February 1997
Wallaby Grip Ltd & Anor v Pierce & Ors; James…
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 McGilvray v Amaca Pty Ltd
Sign in free to access the full text
Details
AGLC
McGilvray v Amaca Pty Ltd [2001] WASC 345
Case
[2001] WASC 345
Decision Date
CaseChat Overview and Summary
David McGilvray, the plaintiff, brought an action against Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd), the defendant, for damages arising from the supply of asbestos products which led to his diagnosis of mesothelioma. The defendant admitted liability at the trial's commencement, and judgment was entered for the plaintiff. The court was required to assess the damages. The main issues were the calculation of general damages, loss of expectation of life, loss of earning capacity, and the taxation effect. The court found that the plaintiff would have continued to work until he was 65 and would have earned an average of $133,500 annually. The court rejected the defendant's argument that damages should be calculated based on the plaintiff earning all partnership income and being taxed as a sole trader. Instead, the court found that the loss of earning capacity should be calculated by aggregating the after-tax income of the plaintiff and his wife. The court also found that the deduction for living expenses during the lost years should be $6,500, not $3,290 as the plaintiff suggested. The court concluded that the total damages should be $1,077,333, plus interest on the appropriate heads of damages at 6 per cent.