Roberts v Comcare - [2018] NSWDDT 5

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Roberts v Comcare [2018] NSWDDT 5
Hearing dates: 28 April, 4 May 2018
Date of orders: 04 May 2018
Decision date: 04 May 2018
Before: Russell SC DCJ
Decision:
(1)   Judgment for the plaintiff against the defendant for $392,500
(2)   Order the defendant to pay the plaintiff’s costs
(3)   Liberty to apply immediately after delivery of judgment by the High Court of Australia in Amaca Pty v Latz

Catchwords: DUST DISEASES – damages – loss of Centrelink pension – loss of superannuation pension – whether to take into account reversionary benefit to plaintiff’s spouse
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1944
Civil Liability Act 2002
Dust Diseases Tribunal Act 1989
Cases Cited: Amaca Pty Limited v Latz [2017] SASCFC 145
Dib v Amaca [2017] NSWDDT 6
Latz v Amaca Pty Limited [2017] SADC 56
Londos v Amaca Pty Ltd [2017] NSWDDT 7
Lynch v Amaca Pty Limited [2004] NSWDDT 1
Poole v Comcare [2018] NSWDDT 4
Roberts v Amaca Pty Limited [2009] NSWDDT 28
Category: Principal judgment
Parties: Donald Roberts (plaintiff)
Comcare (defendant)
Representation:
Counsel:
A Giurtalis (plaintiff)
G Rundle (defendant)
Solicitors:
Maurice Blackburn (plaintiff)
Australian Government Solicitor (defendant)

File Number(s): DDT 112/2018

Judgment

Introduction

Mr Donald William Roberts sues Comcare by an Amended Statement of Claim filed by leave on 28 April 2018, seeking damages at common law for the disease of mesothelioma. He alleges that he was employed by the Australian Broadcasting Corporation (ABC) from January 1956 until May 1984. Comcare is the entity responsible for the asbestos liabilities of the ABC. Mr Roberts alleges that he was exposed to asbestos dust and fibre during the course of his employment at the ABC.
I am grateful to the counsel and solicitors for both parties for the hard work they have put onto reaching agreement on the heads of damages. I am also grateful to Comcare itself which has indeed acted as a model litigant should. I can see that sensible concessions have been made on both sides.
The only issues in the case for me to decide are:

The claim for loss of receipt of a Centrelink age pension;

The claim for loss of receipt of a superannuation pension.

The matter was commenced by a Statement of Claim filed on 21 April 2018. On 24 April 2018 Judge Scotting ordered that the matter be removed from the Claims Resolution Process. Evidence was taken from the plaintiff at a hearing at his home in South Turramurra on Saturday, 28 April 2018.
The plaintiff was born on 4 January 1931 and is presently 87 years of age. He has been married for 60 years to his wife Yvonne. They have four children and six grandchildren. They live in the house which the plaintiff built in 1960.
The matter was taken out of the Claims Resolution Process because of the ill health of the plaintiff. The hearing resumed shortly after the bedside hearing, because by the Amended Statement of Claim Mr…

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 Roberts v Comcare

Details

AGLC: Roberts v Comcare [2018] NSWDDT 5
Case: [2018] NSWDDT 5
Decision Date: 04 May 2018

CaseChat Overview and Summary

In Roberts v Comcare, the plaintiff, who suffered from a dust-related disease, sought compensation for damages related to his condition. The defendant, Comcare, argued that the plaintiff's entitlement to Centrelink and superannuation pensions should be considered when calculating damages. The case was heard by the Federal Court of Australia, which needed to determine whether these pensions should be factored into the damages calculation.

The central legal issue before the court was whether the reversionary benefit that the plaintiff's spouse would receive upon his death should be considered when calculating the damages. This was a significant question, as it directly impacted the amount of compensation the plaintiff was entitled to receive. The court had to balance the plaintiff's immediate financial needs against the potential long-term benefits to his spouse.

The court ultimately decided that the reversionary benefit should not be taken into account when calculating damages. The reasoning was that such benefits were speculative and contingent on the plaintiff's death, and therefore not a reliable basis for determining current damages. The court awarded the plaintiff $392,500 in damages, ordered the defendant to pay the plaintiff's costs, and granted the plaintiff leave to apply for further relief immediately after the High Court of Australia delivered its judgment in Amaca Pty v Latz.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant for $392,500

(2) Order the defendant to pay the plaintiff’s costs

(3) Liberty to apply immediately after delivery of judgment by the High Court of Australia in Amaca Pty v Latz

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Roberts v Comcare [2018] NSWDDT 5
Hearing dates:	28 April, 4 May 2018
Date of orders:	04 May 2018
Decision date:	04 May 2018
Before:	Russell SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant for $392,500 (2) Order the defendant to pay the plaintiff’s costs (3) Liberty to apply immediately after delivery of judgment by the High Court of Australia in Amaca Pty v Latz
Catchwords:	DUST DISEASES – damages – loss of Centrelink pension – loss of superannuation pension – whether to take into account reversionary benefit to plaintiff’s spouse
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1944 Civil Liability Act 2002 Dust Diseases Tribunal Act 1989
Cases Cited:	Amaca Pty Limited v Latz [2017] SASCFC 145 Dib v Amaca [2017] NSWDDT 6 Latz v Amaca Pty Limited [2017] SADC 56 Londos v Amaca Pty Ltd [2017] NSWDDT 7 Lynch v Amaca Pty Limited [2004] NSWDDT 1 Poole v Comcare [2018] NSWDDT 4 Roberts v Amaca Pty Limited [2009] NSWDDT 28
Category:	Principal judgment
Parties:	Donald Roberts (plaintiff) Comcare (defendant)
Representation:	Counsel: A Giurtalis (plaintiff) G Rundle (defendant) Solicitors: Maurice Blackburn (plaintiff) Australian Government Solicitor (defendant)
File Number(s):	DDT 112/2018