Murrell v Stevedoring Industry Finance Committee - [2005] NSWDDT 2

Dust Diseases Tribunal

of New South Wales

CITATION:
Murrell v Stevedoring Industry Finance Committee [2005] NSWDDT 2

PARTIES:
Leslie John Murrell
Stevedoring Industry Finance Committee

MATTER NUMBER(S):
22 of 2004

JUDGMENT OF:
Duck J at 1

CATCHWORDS:
:- Dust Diseases Tribunal
assessment of provisional damages
no allowance for minor domestic services

CASES CITED:
Griffiths v Kerkemeyer (1977) 139 CLR 161;
Van Gervan v Fenton (1992) 175 CLR 327 at 340;
Malec v JC Hutton Pty Limited (1990) 164 CLR 638

DATES OF HEARING: 7 & 8 February 2005

EX TEMPORE JUDGMENT DATE:
02/08/2005

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr J Sharpe instructed by Turner Freeman
FOR DEFENDANT: Mr A Scotting instructed by Blake Dawson Waldron

JUDGMENT:

1. The plaintiff brings proceedings seeking provisional damages in respect of a condition of asbestos related pleural disease said to result from his employment over the years on the wharves in Sydney. The defendant is the Stevedoring Industry Finance Committee. At the commencement of the hearing the defendant's counsel, Mr Scotting, announced that from his client's point of view the matter could proceed as an assessment of damages and that is the way the matter has proceeded.

2. The plaintiff was born on 15 August 1934, he is now 70. He married firstly in 1953. He had two boys, one of whom died at a young age. He was then divorced. He married his present wife on 15 August 1982. He left school at 15 and had various jobs between 1949 and 1954, none of which appears to have exposed him to asbestos. On 25 October 1954 the plaintiff registered as a waterside worker in the Port of Sydney. In 1971 he began to work permanently on containers from which time there was no further exposure. His exposure occurred between the commencement of his work as a waterside worker and 1971.

3. In the year 2000 he approached the Dust Diseases Board because he had become aware that x-ray examination had revealed some changes in his lungs consequent upon exposure to asbestos. His lung function testing at that time or around that time was normal. He received no benefit from the Board. In late 2001 the plaintiff had a heart attack, he fell down in the street and the next day had a by-pass operation at St George Hospital. During the recovery from that operation he had trouble with his breathing but by about April in the following year that had settled down. He had developed a practice of travelling with friends in a group and in April 2002 it was their wish to go to Spain, Portugal and Morocco. The plaintiff was anxious to make the trip and notwithstanding the nature of the surgery he had undergone he was keen to keep those arrangements. The doctors expressed the view that he was well enough to do that and so he made the trip.

4. In respect of the results of his exposure to asbestos there is unanimity of opinion. In his own case…

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: [2005] NSWDDT 2
Decision Date: 02/08/2005

CaseChat Overview and Summary

In the case of Murrell v Stevedoring Industry Finance Committee, the tribunal was tasked with determining the appropriate amount of provisional damages to be awarded to Mr Murrell, who had been diagnosed with asbestosis. The matter was heard in the Dust Diseases Tribunal. The primary dispute centred on the appropriate assessment of Mr Murrell's entitlement to provisional damages, specifically whether the tribunal should consider the loss of minor domestic services provided by his wife.

The central legal issue before the tribunal was whether it was appropriate to include a valuation of minor domestic services performed by Mr Murrell's wife in the assessment of provisional damages. The tribunal had to determine the scope of compensable loss in this context, and whether the traditional approach to valuing domestic services was applicable.

In its decision, the tribunal concluded that it was not appropriate to allow for the loss of minor domestic services in the assessment of provisional damages. The tribunal reasoned that the traditional approach to valuing such services was not applicable in the context of provisional damages, as these were intended to provide interim compensation pending a final determination of the plaintiff's entitlement. The tribunal further noted that the award of damages for the loss of domestic services would be more appropriately determined in the final assessment of damages. The tribunal awarded Mr Murrell provisional damages, excluding any allowance for the loss of minor domestic services.

The tribunal's final orders included the award of provisional damages to Mr Murrell, with the specific amount determined based on the medical evidence and other relevant factors, but without any allowance for the loss of minor domestic services provided by his wife.

Orders