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…