Poole v Comcare

[2018] NSWDDT 4

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	Poole v Comcare [2018] NSWDDT 4
Hearing dates:	26/03/2018; 06/04/2018
Date of orders:	06 April 2018
Decision date:	06 April 2018
Before:	Kearns J
Decision:	I enter a verdict and judgment for the plaintiff in the sum of $850,000 and order the defendant to pay the plaintiff's costs.
Catchwords:	DUST DISEASES – damages DAMAGES – loss of pension in the “lost years”
Cases Cited:	Amaca Pty Limited v Latz [2017] SASCFC 145; Londos v Amaca Pty Limited [2017] NSWDDT 7
Category:	Principal judgment
Parties:	Frank Poole (plaintiff); Comcare (defendant)
Representation:	Counsel: Mr P C B Semmler QC with Mr S Tzouganatos (plaintiff); Mr J C Sheller (defendant)     Solicitors: Turner Freeman (plaintiff); Minter Ellison (defendant)
File Number(s):	DDT248/2017

Judgment

1. I am grateful to the parties for having resolved all but one of the issues in this case. The only thing left for me to determine is whether there should be included in the plaintiff's damages an amount in respect of loss of pension in the lost years.

2. I am in the unenviable position of having to refuse to follow a decision of the Full Court of the Supreme Court of South Australia or a decision of my colleague Judge Russell. I content myself with doing what I do by reason of a number of facts.

3. One is the issue thrown up for my determination is almost certainly going to be covered in the course of argument and possibly in reasons then to be delivered by the High Court in an appeal to be heard in a matter of Latz on 17 April 2018. There is, accordingly, little utility in my engaging in an exercise of time consuming detailed reading and research before producing detailed written reasons for the decision I come to.

4. Another fact is it has been urged upon me to deliver judgment straightaway, though first it was put that I could give judgment straightaway and reasons later. There is, however, as I recall, some earlier learning in relation to that form of approach in a court of statutory jurisdiction and, as I understand it, it is a course that is not permitted and reasons are to accompany the judgment. I was pressed, nevertheless, for delivering judgment immediately. There is good reason for that, considering the plaintiff's limited life expectancy. On the date that has been used for the purposes of calculation, the plaintiff may not survive the pronouncement of the result or reasons by the High Court in the decision of Latz. It is to be hoped that that is not the case, but the urgency pressed upon me is understandable.

5. In those circumstances all I wish to say by way of reasons is that I consider it is preferable for me to follow the course taken by Judge Russell. He disallowed a claim for pension in the case of Londos. It is a recent case. He came to a carefully studied and reasoned decision after careful and considered argument presented to him in that case. His decision was given after the first instance decision in Latz and before the Full Court decision in that case. Nevertheless, his decision is a recent decision of this Tribunal and I think the better course is that I follow what he did. If he is in error, or if I am independently in error, that can be quickly corrected. The result will be that I will in a moment enter verdict and judgment for the plaintiff in an amount of $850,000.

6. It is appropriate, however, that I proceed and consider the pension claim, if I may call it that, in that the approach I have taken may be wrong. The claim put forward by the plaintiff is for a sum of $149,786. It is supported by exhibit PX 5. That exhibit provides evidence that the plaintiff’s pension benefit amounts to $577.30 per week. The plaintiff will lose that at the time of his death and evidence supports 2 June 2018 as being that date and the date that may be used for calculation of the loss of pension in the lost years. The projected period, then, is a little over nine years, but for calculation purposes a period of nine years has been used. The loss of pension in those lost years may be calculated, and has been by the plaintiff, in the sum of $202,366.74.

7. It is common ground that there should be deducted from that an amount for maintenance. I have three pieces of evidence that go to that.

8. The first piece of evidence was that of the plaintiff himself. He said he did not spend a lot of money on himself. He was always very frugal about himself. He liked to spend money on his family rather than himself. He spends and spent nothing on alcohol, smoking or gambling.

9. The second piece of evidence was from his wife. She said she was pretty familiar with his spending habits and when asked if he spent a lot on himself and she replied "No, never."

10. The third piece of evidence is some statistical data contained in exhibit DX1 at p 143. That has a column for persons aged 75 and over, which is said to be the relevant column. I am informed that the total of the figures in that column is about $300 per week. It is not clear to me whether that is a figure per person or per household. On the face of it, it might be per household. If it is per household, that would bring the figure close to a figure of $150 per week, which is the figure that the plaintiff has put forward as a figure that might be used in respect of maintenance. Considering the evidence of the plaintiff and his wife and the uncertainty in relation to the statistical data, I think a figure of $150 is not unreasonable. That should be deducted from the figure of $577.30 per week.

11. The next question, then, is whether there should be any further deduction by reason of an increase in the pension that the plaintiff’s wife will receive upon the plaintiff's death. There will be an increase in fortnightly benefits to her from $622.80 to $908.30. It may even be a little more, but the defendant has been content to stick with those figures for the purposes of this exercise. Those figures can be found in exhibit DX1 at p 123. The weekly figure derived from those is a figure of $142.75 per week.

12. There is a question as to whether anything at all on this count should be taken from the figure of $577.30 per week. Again, I do not propose to go into an exercise of lengthy reading, research and reasons, but I propose to follow the guide I have in relation to this and that is what the Full Court of the Supreme Court of South Australia did in Latz, and that was to bring to account the increased benefit that flowed. Accordingly, from a figure of $577.30 per week there should be deducted the maintenance of $150 per week and also the increased benefit to the wife of $142.75 per week and that will now yield a figure which neither side has given me because we were working on different figures.

13. Had I considered the plaintiff to be entitled to damages in respect of this head in relation to the loss of pension in the lost years, the amount I would have allowed would have been $99,746.16, but I put that to one side and I return to do what I indicated I would.

14. I enter a verdict and judgment for the plaintiff in the sum of $850,000 and order the defendant to pay the plaintiff's costs.

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Decision last updated: 10 April 2018