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Reynolds v Comcare

Reynolds v Comcare

Case [2006] SADC 136 15 December 2006

Causation

Compensatory Damages

Measure and Remoteness of Damages in Actions for Tort

Loss of Future Earning Capacity

Tort Law

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
REYNOLDS v COMCARE
[2006] SADC 136
Judgment of His Honour Judge Soulio
15 December 2006
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Action for damages resulting from the plaintiff's terminal medical condition - the plaintiff was employed by the South Australian Railways Commissioner between 1956 and 1961 and was exposed to asbestos particles in the course of that work - the plaintiff was diagnosed with mesothelioma in 2005 - the defendant had assumed the liabilities of the SARC and admitted liability - however the defendant denied that it had assumed any liability for Sullivan v Gordon damages pursuant to s9(3) of the Dust Diseases Act 2005 - measure of general damages for pain and suffering, loss of amenity and loss of expectation of life - approach to and measure of deduction for maintenance when assessing damages for loss of future earning capacity during the "lost years" - measure of damages for voluntary services and Sullivan v Gordon damages.
Ewins v BHP Biliton Ltd [2005] SASC 95; Kite v Malycha (1998) 71 SASR 321 at 340; Van Gervan v Fenton [1992] 175 CLR 327 at 333; Sharman v Evans (1977) 138 CLR 563 at 582; James Hardie & Co Pty Ltd v Roberts (1999) 47 NSWLR 425 at 445; Commonwealth v TransAdelaide (2001) NSWCA 52 , considered.

REYNOLDS v COMCARE
[2006] SADC 136

The plaintiff, Mr Reynolds, contracted mesothelioma as a result of exposure to asbestos products during the course of his employment with the South Australian Railways Commissioner (“SARC”) at the Islington Railway Workshops between 1956 and 1961.
The Dispute
Proceedings were instituted on 15 June 2006 and the plaintiff’s evidence was taken on commission prior to the filing of a Defence. Initially, liability was denied.
Shortly prior to trial, an Amended Defence was filed admitting that SARC had breached its duty of care to the plaintiff; and admitting that the defendant had assumed the liability of SARC, but alleging that the assumption of liability did not extend to the plaintiff’s claimed entitlement to damages pursuant to section 9(3) of the Dust Diseases Act 2005.
Accordingly, the matter proceeds essentially as an assessment of damages, the principal areas of dispute, in addition to the issue of liability for section 9(3) damages, being the approach to quantification of the award for pain and suffering, the extent of the care provided and to be provided to the plaintiff, and the quantification of the award for loss of earning capacity during the “lost years”.
The Evidence
The transcript of evidence of the plaintiff taken on commission, by his Honour Judge Chivell, on 4 September 2006, at the plaintiff’s residence, was tendered. The plaintiff’s wife and son gave evidence.
In addition, evidence was given on behalf of the plaintiff by Ms Anne Morgan, occupational therapist, Dr Kevin Patterson, oncologist, and Dr Holmes, respiratory physician. A number of medical reports were tendered, including reports of Dr Antic…

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.

Continue reading Reynolds v Comcare

Details

AGLC: Reynolds v Comcare [2006] SADC 136
Case: [2006] SADC 136
Decision Date: 15 December 2006

CaseChat Overview and Summary

Reynolds v Comcare involved the plaintiff, who had been employed by the South Australian Railways Commissioner between 1956 and 1961 and subsequently diagnosed with mesothelioma in 2005, claiming damages for personal injuries resulting from exposure to asbestos during his employment. The defendant, Comcare, had assumed the liabilities of the former employer and admitted liability but disputed the extent of the liability, particularly regarding Sullivan v Gordon damages under section 9(3) of the Dust Diseases Act 2005. The case required the court to determine the appropriate measure of damages for the plaintiff's pain and suffering, loss of amenity, and loss of expectation of life, as well as the method for calculating deductions for maintenance when assessing damages for lost future earning capacity and the measure of damages for voluntary services and Sullivan v Gordon damages.

The court had to address several legal issues, including the measure of general damages for pain and suffering, loss of amenity, and loss of expectation of life. It also had to determine the correct approach to assessing damages for lost future earning capacity, specifically the method for calculating deductions for maintenance during the "lost years". Furthermore, the court needed to establish the appropriate measure for damages concerning voluntary services rendered by the plaintiff and the Sullivan v Gordon damages, which involved assessing the plaintiff's contribution to the statutory fund for victims of dust diseases.

The court found that the measure of damages for general damages should be assessed based on the severity and impact of the plaintiff's condition. For loss of future earning capacity, the court determined that the appropriate approach involved calculating the maintenance deduction based on the plaintiff's personal circumstances. In terms of voluntary services and Sullivan v Gordon damages, the court held that the defendant had indeed assumed liability for such damages under the statutory provisions. The final orders of the court included the determination of specific amounts for each category of damages, reflecting the detailed analysis and findings on each legal issue presented.

Orders