Reilly v Malabar Electric Pty Limited

Dust Diseases Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Reilly v Malabar Electric Pty Limited & Ors [2011] NSWDDT 9

Hearing dates:

01/09/2011, 02/09/2011, 07/10/2011

Decision date:

10 November 2011

Before:

Kearns J

Decision:

There will be a verdict and judgment for the first defendant.

There will be a verdict and judgment for the plaintiff against the second defendant in the sum of $42,514.20.

There will be a verdict and judgment for the plaintiff against the third defendant in the sum of $212,571.00.

Catchwords:

Dust Diseases Tribunal; asbestos or interstitial pulmonary fibrosis; extent of exposure to asbestos; indicators for asbestosis or interstitial pulmonary fibrosis; divisibility of asbestosis; reduction of damages for "empty chair" exposure

Legislation Cited:

Dust Diseases Tribunal Regulation 2007;
Workers Compensation Act 1987; Workers Compensation (Dust Diseases) Act 1942

Category:

Principal judgment

Parties:

Frances Joy Reilly (as legal personal representative of the Estate of the Late Terry James Reilly), plaintiff
Malabar Electric Pty Limited, first defendant
NSW Land & Housing Corporation, second defendant
State of New South Wales, third defendant
John Goss Projects Pty Limited, fourth defendant (settled 11/10/2010)

Representation:

Mr J McIntyre SC with Mr S Tzouganatos, instructed by Turner Freeman, appeared for the plaintiff
Mr A Scotting, instructed by Moray & Agnew, appeared for the first defendant
Mr J F Burn, instructed by I V Knight, appeared for the second and third defendants

File Number(s):

DDT 383/2009

Judgment

Introduction

1. Mr Reilly was employed as an apprentice and then electrician by Malabar Electric from 1960 to 1980. He was exposed to asbestos. His work was mainly on Housing Commission sites or State Government sites for the Department of Public Works (DPW). He contracted an interstitial fibrosis from which he died. The plaintiff, his widow, sues Malabar Electric, the Housing Commission and the State claiming damages in respect of the injury suffered by him.

The issues

1. The issues in the case against each defendant are the same, but for one. That one is diagnosis. That is in issue in the case against Malabar Electric, but not against the other defendants. That comes about because, before Malabar Electric was joined to these proceedings, the proceedings as then constituted were subject to the Tribunal's claims resolution process. As a result, mediation was undertaken.

1. The matter did not resolve at mediation and the mediator issued a certificate as to the issues in accordance with clause 37 of the Dust Diseases Tribunal Regulation 2007. This had the effect of confining the contested issues in the case to those specified in the certificate. Diagnosis was not identified as an issue.

1. The matter accordingly proceeded on the basis that, as to the Housing Commission and the State, diagnosis was not in issue and, in submissions, Mr Burn who appeared for both of those defendants accepted that Mr Reilly had contracted asbestosis.

1. Malabar Electric disputed the diagnosis of asbestosis and conducted the case accordingly. Malabar Electric also raises other issues, being the nature and extent of exposure and whether Mr Reilly's exposure was…