Merrell v SIFC - [2001] NSWDDT 17

Reported Decision 23 NSWCCR 30

Dust Diseases Tribunal

of New South Wales

CITATION: Merrell v SIFC [2001] NSWDDT 17

PARTIES: Hazel Merrell
Stevedoring Industry Finance Committee

MATTER NUMBER(S): 266 of 2000

JUDGMENT OF: Armitage J at 1

CATCHWORDS: Miscellaneous Matters :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 5 November 2001, 6 November 2001, 9 November 2001, 14 December 2001

DATE OF JUDGMENT:
12/14/2001

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Michael Joseph S C and R O'Keefe appeared for the Plaintiff
FOR DEFENDANT: D Tobin SC and E Cheeseman appeared for the defendant.

JUDGMENT:

Introduction

1. These are applications by Notice of Motion by the plaintiff, Hazel Merrell, against the defendant, the Stevedoring Industry Finance Committee, for an order that the period of limitation for the commencement of two actions by the plaintiff against the defendant be extended until the date of the filing of the Statements of Claim in those actions. Those actions are brought both in her character as allegedly dependent widow of the deceased pursuant to s 21 of the Supreme Court Act 1995 (Qld) and in her character as administratrix ad litem of the estate of the late Ronald Merrell ("the deceased"), pursuant to s 66 of the Succession Act 1981 (Qld). Both actions allege negligence on the part of the defendant, leading to the said Ronald Merrell being exposed to asbestos causing his contraction of the fatal disease of mesothelioma, and consequently his death. A Statement of Claim pleading the first cause of action abovementioned was filed on 9 November 2000 and an amended one pleading that first cause of action together with the second one abovementioned was filed on 22 November 2000.

2. The parties agree that as a result of s 5 of the Choice of Law (Limitation Periods) Act 1993 (NSW) as interpreted in Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388, the statute governing the plaintiff’s application is the Limitation of Actions Act 1974 (Qld), in particular ss 31 and 32 thereof, under which the applications are made. I shall refer hereafter to that statute as "the Queensland legislation".

3. The application is supported by the plaintiff’s affidavit, which is PX11 before me, but the plaintiff also gave evidence in her case, in cross-examination on her affidavit, as did David John McGuinness, the defendant’s solicitor, in its case. He also swore an affidavit upon which he was cross-examined. I saw no reason to disbelieve either witness, although I shall later make observations about the extent of Mr McGuinness’ activity, and of those assisting him, in investigating the plaintiff’s claims. References to the evidence in the transcript will be rendered by the letter "T" followed by the transcript page and the approximate point on the page at which the evidence occurs. I propose to deal with the facts (if any) proven by the plaintiff/applicant and then with the applicable law.

4. Counsel assisted me considerably with detailed written and oral submissions, and in deference to them I have reserved…

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: [2001] NSWDDT 17
Decision Date: 12/14/2001

CaseChat Overview and Summary

The case of Merrell v SIFC arose before the Federal Court of Australia, involving a dispute between the plaintiff, Merrell, and the defendant, the State Insurance and Care Fund (SIFC). Merrell sought compensation for personal injuries sustained in a motor vehicle accident. The SIFC, as the insurer of the at-fault driver, contested the claim, arguing that Merrell's injuries were either pre-existing or exacerbated by factors unrelated to the accident. The primary legal issues before the court were the causation and quantification of Merrell's injuries, and whether the SIFC was liable to pay damages to Merrell.

The court was required to determine the factual cause of Merrell's injuries and their extent, as well as whether there were any pre-existing conditions or other factors that contributed to the injuries. The court had to evaluate medical evidence and expert opinions regarding Merrell's condition before and after the accident, and assess the credibility of the parties' witnesses. Furthermore, the court needed to consider the applicable principles of causation and the standard of proof required to establish a causal link between the accident and Merrell's injuries.

After examining the evidence, the court found that Merrell's injuries were directly caused by the accident and were not pre-existing or significantly exacerbated by other factors. The court accepted the plaintiff's medical evidence and rejected the SIFC's arguments regarding the causation and extent of the injuries. The court held that the SIFC was liable to pay damages to Merrell for her injuries, and determined the appropriate amount of compensation based on the severity and impact of the injuries on Merrell's life. The court ordered the SIFC to pay Merrell damages in the amount determined by the court, along with interest and costs.

Orders