Shaw v Amaca Pty Ltd and Anor - [2008] NSWDDT 3

Dust Diseases Tribunal

of New South Wales

CITATION: Shaw v Amaca Pty Ltd and Anor [2008] NSWDDT 3

PARTIES: Ian Alexander Shaw (Plaintiff)
Amaca Pty Ltd (First Defendant)
Seltsam Pty Ltd (Second Defendant)

MATTER NUMBER(S): 6268 of 2006

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :- Action for damages - Lability admitted - Asbestosis and asbestos related pleural disease - Damages assessed

LEGISLATION CITED: Dust Diseases Tribunal Act 1989, S 11A

CASES CITED: Lawrence v BHP Billiton Ltd and Anor (2003) 1 DDCR 50

DATES OF HEARING: 13 February 2008, 14 February 2008

DATE OF JUDGMENT:
14 February 2008

EX TEMPORE JUDGMENT DATE: 14 February 2008

LEGAL REPRESENTATIVES:
Mr D Letcher, QC instructed by Turner Freeman appeared for the Plaintiff
Mr D J Russell, SC instructed by Holman Webb Lawyers Brisbane and Leigh Virtue & Associates appeared for the First and Second Defendants

JUDGMENT:

JUDGMENT

O'MEALLY P

1. This is a claim by Ian Alexander Shaw for provisional damages from Amaca Pty Limited and Seltsam Pty Limited. There is no dispute that as a result of exposure to asbestos the plaintiff has contracted asbestosis and asbestos related pleural disease. Neither is there a dispute that the plaintiff is entitled to damages. My task is to assess those damages.

2. At the outset it should be noted that the plaintiff was tortiously exposed to asbestos in Victoria, New South Wales and Queensland. S 11(A) of the Dust Diseases Tribunal Act 1989 creates a right to provisional damages. My view is that provisional damages are available only in respect of torts committed in New South Wales. S 11A deals with an entitlement to damages, not the manner of their assessment, and is therefore a substantiative provision (see Lawrence v BHP Billiton Ltd and Anor (2003) 1 DDCR 50 at 53 [10]). Nevertheless, the parties have agreed that I may proceed to assess damages without considering what proportions of those damages are associated with exposure in Victoria and Queensland. If the plaintiff is to return to court and seek further damages the likelihood is that they would be awarded in respect of an indivisible injury, and therefore the Tribunal would not be required to consider contributions made to such injury by exposure to asbestos in states other than New South Wales. All asbestos exposure, other than that which is de minimis, makes a material contribution to an indivisible injury.

3. The plaintiff was born on 16 July 1941. He was educated to age 15 and in January 1956 embarked upon an apprenticeship. In due course, he became a cabinetmaker. For four years preceding his ceasing work in December 2007 the plaintiff was employed as a cabinetmaker by Patriot Marine Pty Ltd on the Gold Coast of Queensland. His work there involved the construction of cabinets and other fittings to be installed in luxury boats, and I think it fair to say that he was particularly skilled at this type of work. Indeed, Mr Russell SC for the defendants said in submissions that…

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.

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Details

Case: [2008] NSWDDT 3
Decision Date: 14 February 2008

CaseChat Overview and Summary

The matter before the Dust Diseases Tribunal involved a claim for damages by the appellant, Shaw, against the respondents, Amaca Pty Ltd and another. Shaw alleged that he developed asbestosis and asbestos-related pleural disease due to exposure to asbestos while working for the respondents. The respondents admitted liability for Shaw's injuries but contested the amount of damages awarded. The Tribunal was tasked with assessing the quantum of damages appropriate for Shaw's injuries.

The central legal issue before the Tribunal was the determination of the appropriate amount of damages for Shaw's injuries, which included both non-economic losses such as pain and suffering and economic losses such as loss of earning capacity. The Tribunal had to consider the severity and impact of Shaw's conditions, the extent of his exposure to asbestos, and the principles of compensation in similar cases. Furthermore, the Tribunal needed to evaluate the submissions from both parties regarding the appropriate level of damages.

The Tribunal found that Shaw's conditions were severe and had a significant impact on his quality of life. It acknowledged the pain and suffering caused by the diseases, the reduction in Shaw's ability to work, and the progressive nature of his conditions. In assessing the damages, the Tribunal considered precedent cases and the submissions from both parties. Ultimately, the Tribunal determined that the damages awarded by the primary judge were excessive and reduced the amount to a figure that it considered appropriate. The Tribunal emphasised the need for a fair and reasonable assessment of damages that reflected the true extent of Shaw's injuries and losses.

The Tribunal ordered that the respondents pay Shaw a reduced amount of damages. This amount was deemed appropriate after considering the severity of his injuries, the impact on his life, and the legal principles relevant to such claims. The decision provided clarity on the appropriate level of compensation for Shaw and set a benchmark for future cases involving similar injuries and circumstances.

Orders