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Single v Workers Compensation Nominal Insurer

Single v Workers Compensation Nominal Insurer

Case [2018] NSWDDT 9 30 November 2018

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Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Single v Workers Compensation Nominal Insurer [2018] NSWDDT 9
Hearing dates: 22 November 2018
Date of orders: 30 November 2018
Decision date: 30 November 2018
Before: Russell SC DCJ
Decision:
(1)   The plaintiff is entitled to a judgment against the defendant in an amount to be agreed between the parties, to be calculated by deducting the amount of NZD 136,705.79 from agreed damages of $A415,000.
(2)   I direct the parties to bring in a form of order to reflect this finding.
(3)   Costs reserved.

Catchwords:
DUST DISEASES – damages – mesothelioma – whether lump sum benefit should be deducted from damages – Accident Compensation Act 2001 (NZ)
DAMAGES – double compensation – injured party should receive compensation which will put that party in the same position he or she would have been in had the tort not been committed – financial source of the benefit – whether benefit must be repaid – nature of the benefit
Legislation Cited: Accident Compensation Act 2001 (NZ)
Dust Diseases Tribunal Act 1999
Health and Disability Commissioner Act 1994 (NZ)
Human Rights Act 1993 (NZ)
Pneumoconiosis (Workers Compensation) Act 1979 (UK)
Social Security Contributions and Benefits Act 1992 (UK)
Workers’ Compensation (Dust Diseases) Act 1942
Cases Cited: Davis v Cockatoo Dockyard Pty Ltd [2000] NSWDDT 6; (2000) 19 NSWCCR 594
Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60
Harris v Commercial Minerals Limited [1996] HCA 49; (1996) 186 CLR 1
Manser v Spry [1994] HCA 50; (1994) 181 CLR 428
McGougan v Depuy International Limited [2018] NZCA 91; [2018] 2 NZLR 916
National Insurance Co. of New Zealand Limited v Espagne [1961] HCA 15; (1961) 105 CLR 569
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331
Queenstown Lakes District Council v Palmer [1998] NZCA 190; [1999] 1 NZLR 549
White v Amaca Pty Limited [2011] NSWDDT 6
Category: Principal judgment
Parties: Colleen Elva Single (Plaintiff)
Workers Compensation Nominal Insurer (Second Defendant)
Representation:
Counsel:
J Fernon SC with A Giurtalis (Plaintiff)
D Toomey SC (Second Defendant)
Solicitors:
Maurice Blackburn (Plaintiff)
Rankin Ellison (Second Defendant)

File Number(s): DDT 391/17

Judgment

The sole issue in this case is whether a lump sum payment made by the Accident Compensation Corporation of New Zealand (the ACC), pursuant to the Accident Compensation Act 2001 (NZ) (the Act) should be deducted from damages assessed by this Tribunal for the disease of mesothelioma.
The parties tendered a Statement of Agreed Facts (PX 3) which is summarised below.

Agreed Facts

The plaintiff is the daughter and executrix of the estate of the late Mr Bruce Albert Single (the deceased).
For the purposes of these proceedings, the second defendant the Workers Compensation Nominal Insurer is responsible for the liabilities of Omar Constructions Pty Limited (Omar), which was sued as the first defendant. Omar is deregistered.=
The deceased was born on 29 September 1935 in New Zealand.
From about 1950…

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 Single v Workers Compensation Nominal Insurer

Details

AGLC: Single v Workers Compensation Nominal Insurer [2018] NSWDDT 9
Case: [2018] NSWDDT 9
Decision Date: 30 November 2018

CaseChat Overview and Summary

In the case of Single v Workers Compensation Nominal Insurer, the plaintiff sought to recover damages for a mesothelioma diagnosis resulting from asbestos exposure. The dispute centred on whether a lump sum benefit previously received under the Accident Compensation Act 2001 (NZ) should be deducted from the total damages awarded. The High Court of Australia was tasked with resolving this issue.

The primary legal issue before the court was whether the lump sum benefit received by the plaintiff under New Zealand law should be deducted from the damages awarded in an Australian court. This raised questions about the principles of double compensation and the appropriate measure of damages in tort law. Specifically, the court had to determine whether the benefit, paid to compensate for loss of income due to the inability to work, should be deducted from the damages awarded to restore the plaintiff to their pre-injury financial position.

The court held that the lump sum benefit should be deducted from the damages awarded. This decision was based on the principle that the injured party should not receive double compensation. The court found that the benefit was intended to compensate for loss of income, and thus, it should be deducted to avoid the plaintiff being placed in a better financial position than they would have been in had the tort not occurred. The nature of the benefit, which was a financial compensation for loss of earnings, further supported the deduction.

The court ordered that the plaintiff is entitled to a judgment against the defendant in an amount to be agreed between the parties, calculated by deducting the lump sum benefit of NZD 136,705.79 from the agreed damages of $A415,000. The court directed the parties to bring in a form of order to reflect this finding and reserved costs for further determination.

Orders

Orders of the court

(1) The plaintiff is entitled to a judgment against the defendant in an amount to be agreed between the parties, to be calculated by deducting the amount of NZD 136,705.79 from agreed damages of $A415,000.

(2) I direct the parties to bring in a form of order to reflect this finding.

(3) Costs reserved.

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

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Citations

AGLC Citation

Single v Workers Compensation Nominal Insurer [2018] NSWDDT 9

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 11 of 11 shown

McGougan v DePuy International Ltd
[2018] NZCA 91 Para 37

…In McGougan v Depuy International Limited [2018] NZCA 91, the Court of Appeal considered the operation of s 318, in the light of the purpose of the Act set out in s 3. The court said at [28]:…
White v Amaca Pty Limited
[2011] NSWDDT 6 Para 79

…tos exposure makes a material contribution to the indivisible disease of mesothelioma – see cases in the Tribunal such as White v Amaca Pty Limited [2011] NSWDDT 6.…
Neilson v Overseas Projects Corporation of Victoria Ltd
[2005] HCA 54 Para 21

…he legislation was to be interpreted in accordance with Australian canons of construction – Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 .…
Davis v Cockatoo Dockyard Pty Ltd
[2000] NSWDDT 6 Para 75

…Counsel referred me to the decision of Judge Curtis of this Tribunal in Davis v Cockatoo Dockyard Pty Ltd [2000] NSWDDT 6; (2000) 19 NSWCCR 594. The plaintiff in that case contracted asbestos-related pleural disease (ARPD) as a result of exposure in the course of employment in Australia between 1948 and 1950, and…
Harris v Commercial Minerals Ltd
[1996] HCA 49 Para 71

…Shortly after the decision of the High Court in Manser , the issue came up for decision again in Harris v Commercial Minerals Limited [1996] HCA 49; (1996) 186 CLR 1. A worker brought a claim for damages in the Dust Diseases Tribunal for damages for silicosis. The worker had already received benefits payable und…
Manser v Spry
[1994] HCA 50

…nes v Bendall [1991] HCA 15; (1991) 172 CLR 60 Harris v Commercial Minerals Limited [1996] HCA 49; (1996) 186 CLR 1 Manser v Spry [1994] HCA 50; (1994) 181 CLR 428 McGougan v Depuy International Limited [2018] NZCA 91; [2018] 2 NZLR 916 National Insurance Co. of New Zealand Limited v Espagne [1961] HCA 15; (1961…
Haines v Bendall
[1991] HCA 15

…on (Dust Diseases) Act 1942 Cases Cited: Davis v Cockatoo Dockyard Pty Ltd [2000] NSWDDT 6; (2000) 19 NSWCCR 594 Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 Harris v Commercial Minerals Limited [1996] HCA 49; (1996) 186 CLR 1 Manser v Spry [1994] HCA 50; (1994) 181 CLR 428 McGougan v Depuy International Li…
National Insurance Company of New Zealand Ltd v Espagne
[1961] HCA 15

…McGougan v Depuy International Limited [2018] NZCA 91; [2018] 2 NZLR 916 National Insurance Co. of New Zealand Limited v Espagne [1961] HCA 15; (1961) 105 CLR 569 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 Queenstown Lakes District Council v Palmer [1998] NZCA 190;…
Queenstown Lakes District Council v Palmer
[1998] NZCA 190

…lson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 Queenstown Lakes District Council v Palmer [1998] NZCA 190; [1999] 1 NZLR 549 White v Amaca Pty Limited [2011] NSWDDT 6 Category: Principal judgment Parties: Colleen Elva Single (Plaintiff) Workers Compensation Nominal Insurer (…
[1999] 1 NZLR 549
[1999] 1 NZLR 549 Para 62

…I am fortified in reaching that conclusion by the decision of the New Zealand Court of Appeal in Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549. In considering how the bar on common law proceedings operated, the court said that the question in any case is whether the particular claim for damages consti…
[2018] 2 NZLR 916
[2018] 2 NZLR 916

…] HCA 49; (1996) 186 CLR 1 Manser v Spry [1994] HCA 50; (1994) 181 CLR 428 McGougan v Depuy International Limited [2018] NZCA 91; [2018] 2 NZLR 916 National Insurance Co. of New Zealand Limited v Espagne [1961] HCA 15; (1961) 105 CLR 569 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 2…

Legislation cited in this decision · 6

Health and Disability Commissioner Act 1994 (NZ)
2 mentions (from Para 57)
Human Rights Act 1993 (NZ)
2 mentions (from Para 57)
Accident Compensation Act 2001 (NZ)
1 mention (from Para 1)
Petrie v Dwyer
1 mention (from Para 76)
Social Security Contributions and Benefits Act 1992 (c. 4)
1 mention (from Para 76)
Workers’ Compensation (Dust Diseases) Act 1942 (NSW)
1 mention (from Para 71)

Medium Neutral Citation:	Single v Workers Compensation Nominal Insurer [2018] NSWDDT 9
Hearing dates:	22 November 2018
Date of orders:	30 November 2018
Decision date:	30 November 2018
Before:	Russell SC DCJ
Decision:	(1) The plaintiff is entitled to a judgment against the defendant in an amount to be agreed between the parties, to be calculated by deducting the amount of NZD 136,705.79 from agreed damages of $A415,000. (2) I direct the parties to bring in a form of order to reflect this finding. (3) Costs reserved.
Catchwords:	DUST DISEASES – damages – mesothelioma – whether lump sum benefit should be deducted from damages – Accident Compensation Act 2001 (NZ) DAMAGES – double compensation – injured party should receive compensation which will put that party in the same position he or she would have been in had the tort not been committed – financial source of the benefit – whether benefit must be repaid – nature of the benefit
Legislation Cited:	Accident Compensation Act 2001 (NZ) Dust Diseases Tribunal Act 1999 Health and Disability Commissioner Act 1994 (NZ) Human Rights Act 1993 (NZ) Pneumoconiosis (Workers Compensation) Act 1979 (UK) Social Security Contributions and Benefits Act 1992 (UK) Workers’ Compensation (Dust Diseases) Act 1942
Cases Cited:	Davis v Cockatoo Dockyard Pty Ltd [2000] NSWDDT 6; (2000) 19 NSWCCR 594 Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 Harris v Commercial Minerals Limited [1996] HCA 49; (1996) 186 CLR 1 Manser v Spry [1994] HCA 50; (1994) 181 CLR 428 McGougan v Depuy International Limited [2018] NZCA 91; [2018] 2 NZLR 916 National Insurance Co. of New Zealand Limited v Espagne [1961] HCA 15; (1961) 105 CLR 569 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 Queenstown Lakes District Council v Palmer [1998] NZCA 190; [1999] 1 NZLR 549 White v Amaca Pty Limited [2011] NSWDDT 6
Category:	Principal judgment
Parties:	Colleen Elva Single (Plaintiff) Workers Compensation Nominal Insurer (Second Defendant)
Representation:	Counsel: J Fernon SC with A Giurtalis (Plaintiff) D Toomey SC (Second Defendant) Solicitors: Maurice Blackburn (Plaintiff) Rankin Ellison (Second Defendant)
File Number(s):	DDT 391/17