Noel Doughan v Amaca Pty Limited - [2010] NSWDDT 13

Dust Diseases Tribunal

of New South Wales

CITATION: Noel Doughan v Amaca Pty Limited [2010] NSWDDT 13

PARTIES: Noel Doughan
Amaca Pty Limited

MATTER NUMBER(S): 8155 of 2008

JUDGMENT OF: Curtis J at 1

CATCHWORDS: DUST DISEASES TRIBUNAL :- asbestosis - damages

DATES OF HEARING: 23 and 24 August 2010

DATE OF JUDGMENT:
3 September 2010

LEGAL REPRESENTATIVES:
Mr D J Russell SC with Mr S Tzouganatos instructed by Turner Freeman Brisbane appeared for the plaintiff
Mr D Hooke SC instructed by Ellison Tillyard Callanan appeared for the defendant

JUDGMENT:

DUST DISEASES TRIBUNAL OF NEW SOUTH WALES

Matter Number DDT 8155 of 2008

NOEL JOHN DOUGHAN

AMACA PTY LIMITED

3 September 2010

CURTIS J

JUDGMENT

Introduction

1. The plaintiff, Mr Noel John Doughan, is a retired builder who turned 80 on 12 April 2010. He has contracted asbestosis as a result of intensive exposure to asbestos cement products manufactured by James Hardie & Coy Pty Limited. Mr Doughan first experienced symptoms of breathlessness in about May 2007.

2. The only issue between the parties is the quantum of damages.

Mr Doughan's Evidence

3. Mr Doughan said that he was in good health before a car accident in 2004. He was a licensed builder whose work was mostly supervisory but he did from time to time perform carpentry and cleaning work. Three times a week he walked for up to 60 minutes around the beaches and headlands of the Gold Coast where he lived.

4. The car accident occurred when another vehicle, travelling at high speed, failed to give way at a stop sign and struck Mr Doughan's car. He gave this evidence:

Q. What injuries did you suffer in that accident.

---Hurt my right foot and broke - broke my thumb, the wheel spun around and broke my thumb. My chest, just black and blue all over the chest from the seat belt and everything.

Q. Did you suffer any injury to your back at that time. A---I had a crook back for a fair while after.

Q. You have made a claim in relation to the injuries suffered in that accident. Is that right. A---Mm-hmm.

Q. That claim went through a procedure which resulted in a settlement. Is that right. A---That's right.

Q. What was the size of your settlement. A---Size?

Q. Yes. A---Well, to be quite honest I can't remember.

Q. There's some documents - A---I don't know, it was seventy or eighty or ninety thou - I can't remember. It was a fair bit of money.

…

Q. Can I ask you about the progress of the injuries that you suffered in the accident. Firstly your broken left thumb, how has that progressed. A---Which?

Q. The broken left thumb, how is it nowadays. A---I only get arthritis in it now.

Q. How often. A---As soon as the weather changes.

Q. Does it stop you doing anything. A---Not really.

Q. What about your back. Does that…

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: [2010] NSWDDT 13
Decision Date: 3 September 2010

CaseChat Overview and Summary

Noel Doughan brought an action against Amaca Pty Limited seeking compensation for the development of asbestosis. The dispute centred around the quantum of damages to be awarded for the disease, which was caused by exposure to asbestos while Doughan was employed by Amaca Pty Limited. The matter was heard by the Dust Diseases Tribunal of New South Wales.

The legal issues before the Tribunal included the determination of the appropriate level of general damages to be awarded for the pain and suffering associated with Doughan's asbestosis. This involved assessing the extent of Doughan's impairment, the impact on his daily life, and the prognosis for his condition. The Tribunal also had to consider the contribution of Amaca Pty Limited to Doughan's exposure and the applicable statutory provisions regarding compensation for dust diseases.

The Tribunal found that Doughan's asbestosis was attributable to his employment with Amaca Pty Limited and awarded him general damages of $140,000. The Tribunal took into account the severity of Doughan's condition, the impact on his physical and psychological well-being, and the reasonable prospects of his condition worsening. The Tribunal also found that Amaca Pty Limited was liable for the full amount of the damages awarded.

In summary, the Dust Diseases Tribunal awarded Noel Doughan $140,000 in general damages for his asbestosis caused by his employment with Amaca Pty Limited. The Tribunal's decision reflects the severity of Doughan's condition and the impact on his life, as well as the liability of Amaca Pty Limited for the full amount of the damages awarded.

Orders