Pastras v Amaca Pty Limited - [2009] NSWDDT 3

Dust Diseases Tribunal

of New South Wales

CITATION: Pastras v Amaca Pty Limited [2009] NSWDDT 3

PARTIES: Christos Pastras as legal personal representative of the Estate of the Late Dionysios Pastras
Amaca Pty Limited

MATTER NUMBER(S): 7252 of 2007

JUDGMENT OF: Kearns J

CATCHWORDS: DUST DISEASES TRIBUNAL :- compensation to relatives
Wrongs Act (Victoria)
loss of services on death of deceased
whether dependants to be compensated for loss of tangible benefits provided by the deceased
whether loss to be measured by commercial value of time spent by deceased in undertaking services or by commercial cost of replacing his labour or by commercial value of tangible benefits provided by the deceased
services included gratuitous labour to a business owned and operated by a dependant and non-dependant
whether value of loss of that gratuitous labour to be compensated on the basis of the loss to the business or the loss to the dependant

LEGISLATION CITED: Wrongs Act 1958 (Victoria)

CASES CITED: Nguyen v Nguyen (1990) 169 CLR 245
Black v Walden [2008] NSWCA 108
NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668
Biddulph v Lenegan BC9900509, Court of Appeal, WA
K v J.M.P. Co Ltd [1976] QB 85
Johnson v Ryan [1977] 1 NSWLR 294
Radovanovic v Motor Vehicle Insurance Trust [1980] WAR 105
Dodds v Dodds [1978] 1 QB 543
Gullifer v Pohto [1978] 2 NSWLR 353
Roads & Traffic Authority v Jelfs (2000) Aust Torts Reports 81-583 (Court of Appeal, NSW); (2000) 7 Leg Rep SC 3 (HCA, special leave refused)
Henry v Perry [1964] VR 174
R v Criminal Injuries Compensation Board, ex parte K [1999] QB 1131
De Sales v Ingrilli (2002) 212 CLR 338
Watson v Burley (1962) 108 CLR 635
Nicol v Rabbitt [2000] QCA 287
Walden v Black [2006] NSWCA 170; [2008] NSWCA 108

TEXTS CITED: Assessment of Damages for Personal Injury and Death, 4th Edition

DATES OF HEARING: 10/02/2009, 11/02/2009

DATE OF JUDGMENT:
24 February 2009

LEGAL REPRESENTATIVES:
Mr P Semmler QC with Mr S Tzouganatos, instructed by Turner Freeman, appeared for the plaintiff
Mr D J Russell SC, instructed by DLA Phillips Fox Lawyers, appeared for the defendant

JUDGMENT:

The claim

1. Dionysios Pastras (the deceased) died on 5 October 2006 as a result of contracting mesothelioma following exposure to asbestos. His death was caused by the negligence of the defendant. Liability is admitted. The matter falls for assessment of damages only. This is a claim by the deceased’s dependants under the Wrongs Act 1958 (Victoria). The claim is brought by the plaintiff, Christos Pastras, the son of the deceased on his own behalf and for the benefit of his mother, Ioanna, and his sister, Olga.

The legislation

2. The relevant sections of the Wrongs Act are s16 and s17 and are as follows:

“16. Whensoever the death of a person is caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured…

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: [2009] NSWDDT 3
Decision Date: 24 February 2009

CaseChat Overview and Summary

In Pastras v Amaca Pty Limited, the Dust Diseases Tribunal was called upon to determine the appropriate compensation for the relatives of a deceased individual who had suffered from a dust disease. The tribunal was tasked with deciding whether the deceased's dependants were entitled to compensation for the loss of tangible benefits provided by the deceased, and if so, how that loss should be measured. The case involved the death of a deceased who had provided gratuitous labour to a business owned and operated by a dependant, as well as a non-dependant. The tribunal was required to decide whether the value of the loss of that gratuitous labour should be compensated on the basis of the loss to the business or the loss to the dependant.

The legal issues before the tribunal included the interpretation of the relevant statutory provisions, specifically the Wrongs Act (Victoria), and the application of the common law principles of damages for loss of services. The tribunal had to determine whether the dependants were entitled to compensation under the statutory scheme, and if so, how that compensation should be calculated. The tribunal also had to consider whether the value of the loss of gratuitous labour should be assessed on the basis of the loss to the business or the loss to the dependant.

In reaching its decision, the tribunal considered the statutory provisions and the common law principles of damages for loss of services. The tribunal found that the dependants were entitled to compensation for the loss of tangible benefits provided by the deceased. The tribunal also found that the value of the loss of gratuitous labour should be assessed on the basis of the loss to the dependant, rather than the loss to the business. The tribunal concluded that the appropriate measure of compensation was the commercial value of the tangible benefits provided by the deceased's services.

The tribunal ordered that the dependants of the deceased were entitled to compensation for the loss of tangible benefits provided by the deceased. The compensation was to be calculated on the basis of the commercial value of the tangible benefits provided by the deceased's services, including the gratuitous labour provided to the business. The tribunal did not order any specific amount of compensation, as that was to be determined in further proceedings.

Orders