Strikwerda v B I Contracting Pty Ltd

[2004] NSWDDT 50

Dust Diseases Tribunal

of New South Wales

CITATION:	Strikwerda v B I Contracting Pty Ltd and Anor [2004] NSWDDT 50
PARTIES:	Eileen Sylvia Strikwerda (Plaintiff) B I (Contracting) Pty Ltd (First Defendant) PHR Pty Ltd (Second Defendant)
MATTER NUMBER(S):	118 of 2004
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- application by defendant to reconsider matters previously dealt with - plaintiff recovers damages in action by estate of her late husband - plaintiff also recovers damages on action under Wrongs Act 1936 (SA) - defendant submits damages in Wrongs Act action should be reduced taking into account benifit accruing to her in estate action - no evidence of value of estate - onus on defendant to establish circumstances warranting reduction of damages - damages not reduced
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 Wrongs Act 1936 (SA) Civil Liability Act 1936 (SA) Survival of Causes of Action Act 1940 (SA)
CASES CITED:	Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601; Public Trustee v Zoanetti (1945) 70 CLR 266; Owen v South Australia (1996) 66 SASR 251; McCullagh v Lawrence [1989] 1 Qd R 163
DATES OF HEARING:	30/11/04
EX TEMPORE JUDGMENT DATE :	11/30/2004
LEGAL REPRESENTATIVES:	D Letcher QC instructed by Turner Freeman appeared for the Plaintiff J J E Fernon SC instructed by Makinson & D'Apice appeared for the First Defendant T Kulukovski of Thompson Cooper Lawyers appeared for the Second Defendant

JUDGMENT:

JUDGMENT

O'MEALLY P

1. This is an application by BI (Contracting) Pty Ltd brought pursuant to s 13(6) of the Dust Diseases Tribunal Act seeking reconsideration of a matter previously dealt with.

2. On 30 September 2004, a verdict was entered in favour of Eileen Sylvia Strikwerda in an action brought by her pursuant to the Wrongs Act 1936 (SA), now the Civil Liability Act 1936 (SA). On that day there was another action, brought by Mrs Strikwerda on behalf of the estate of her late husband, Hans Jurgen Strikwerda, before the Tribunal (DDT 7 of 2004). A verdict was entered in her favour in that action also. It should be observed at this stage that in each case proceedings were maintained against two defendants, the first was BI (Contracting) Pty Ltd (BI) and the second PHR Pty Ltd (PHR).

3. On 18 March 2004, I attended the Mary Potter Hospice in Adelaide for the purpose of taking Mr Strikwerda's evidence. He was then the plaintiff in DDT 7 of 2004. At the time he was moribund and the evidence he gave was of limited value. He died on 5 April 2004 and it was after that date that the proceedings were reconstituted. I returned to Adelaide in September 2004 and agreement was reached between the plaintiff and each of the two defendants concerning the damages which would be appropriate in each case, subject to a submission made by counsel then appearing for BI that the judgment to be entered in favour of the plaintiff in the action under the Wrongs Act should be reduced, taking into account the benefit she would receive from the estate of her late husband.

4. Because counsel then appearing for BI was not then in a position to argue the point, it was agreed that judgment might be entered in the action on behalf of the estate and in the action pursuant to the Wrongs Act and if so advised BI might move within 14 days for a reconsideration of that matter and argue it. Costs orders were made reflecting the fact that counsel then appearing was not in a position to argue his case. BI did apply within 14 days and in accordance with an order of the Tribunal, outlines of submissions were exchanged between BI and the plaintiff. BI’s outline of submissions on the present application was served upon the plaintiff on 5 November 2004 and those of the plaintiff were served upon BI on 19 November 2004. I mention this because today BI asked for an adjournment to consider points raised in argument by the plaintiff and if necessary to adduce evidence. The adjournment was refused on the ground that all points argued by the plaintiff were referred to in the outline of submissions served on 19 November some twelve days ago. Twelve days was sufficient time for BI to consider the plaintiff’s argument and if so advised to adduce evidence.

5. In the estate action judgment was entered in the sum of $273,950 of which it was agreed $180,000 should be regarded as general damages and $20,000 as damages for loss of expectation of life. The verdict was entered jointly against each defendant and subsequently liability to pay the judgment amount was, as to 80 per cent, imposed upon BI and, as to 20 per cent, upon PHR.

6. The late Mr Strikwerda left a will, a copy of which is annexed to the affidavit of Brian Peter Trist, a solicitor in the employ of Messrs Makinson and D’Apice who act for BI. By clause 1 of his will, the late Mr Strikwerda gave to his wife his share of all personal furniture and effects. It is agreed that there is a partial intestacy and agreed also that under the intestacy laws of the State of South Australia, a spouse is entitled to receive the sum of $10,000 and 50 per cent of the balance of the estate. If the estate comprised only the judgment sum then the plaintiff would be entitled to receive $105,000.

7. BI argues that the sum of $105,000 should be deducted from the damages so that the plaintiff's entitlement in the Wrongs Act claim would be $81,050, 80 per cent of which was to be paid by BI.

8. The Survival of Causes of Action Act 1940 (SA) relevantly provides:

2.(1) Subject to this Act -

3.(1) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person –

(2) However, if a person commences an action for damages in respect of a dust-related condition and dies as a result of that condition before the action is finally determined, damages for pain and suffering, bodily and mental harm, and curtailment of expectation of life, are recoverable for the benefit of the estate of the person.

9. It should be noted that “dust relation condition” in s 3(2) includes mesothelioma from the effects of which the late Mr Strikwerda died. S 3(2) commenced on 11 October 2001.

10. It is relevant to note the provisions of s 6 of the Survival of Causes of Actions Act 1940 (SA). It provides:

6.(1) This Act does not derogate from the rights of the dependants of a deceased person to bring an action in respect of the death of the deceased.

11. It is relevant also to consider certain provisions of the Wrongs Act 1936 (SA). S 19 relevantly provided:

Liability for death caused wrongfully
19. Whenever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to an indictable offence.

S 20 (2aa) is also relevant. It provided:
In assessing damages under this section in any action based on a death occurring after the passing of the Wrongs Amendment Act 1956 there shall not be taken into account:

(a) any sum paid or payable on the death of the deceased under any contract of assurance or insurance, whether made before or after the passing of the said Act;
(b) any sum paid or payable consequent on the death of the deceased person as a gratuity to any person for whose benefit the action is brought;
(c) any superannuation payment or benefits consequent upon the death of the deceased person;
(d) any sum paid or payable consequent upon the death of the deceased person under any contributory medical, hospital, death or funeral benefits scheme;
(e) and is paid or payable as a social service benefit or pension by the governments of the Commonwealth of Australia, or the United Kingdom, or the State of South Australia to or in respect of any person for whose benefit the action is brought.

12. S 23B provided for the payment of an amount not exceeding four thousamd two hundred dollars in certain circumstances by way of solatium, and s 23C provided that the rights conferred by s 23B would be in addition to and not in derogation of any other rights conferred by the Act.

13. The first question to be considered, is whether such sum as may be payable to the plaintiff from the estate of her late husband is to be taken into consideration in assessing her entitlement to damages.

14. In Davies v Powell Duffryn Associated Collieries Ltd [1942]AC 601 Lord Russell of Killowen said at 606:

The general rule which has always prevailed in regard to the assessment of damages under the Fatal Accidents Act is well settled, namely, that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately.

Davies’ case was referred to by the High Court of Australia in Public Trustee v Zoanetti (1945) 70 CLR 266. That was a case which considered the entitlement, under the South Australian Wrongs Act , of a plaintiff to retain the whole of a sum awarded by way of solatium. At 276-277 Dixon J observed:
In estimating the damages to be recovered under legislation taken from Lord Campbell's Act (the Fatal Accidents Act. 1846, 9 & 10 Vict. C. 93) two rules are clearly settled. One is that what is recoverable for the benefit of the widow or other relative of the deceased is the pecuniary loss resulting from his death and that nothing may be recovered by way of solatium for the suffering that his death caused to his widow or relatives. The other is that in ascertaining the pecuniary loss resulting from his death there must be taken into consideration, on the one side, the reasonable expectation of benefit upon which the claimant would have been entitled to rely, had his life not been brought to an end, and, on the other side, the pecuniary benefits, arising on his death, to which the claimant has a reasonable expectation, whether as of right or otherwise. For example, if the deceased leaves property in which under his will or on intestacy the widow takes a share or interest, the effect upon her financial position of her so taking that share or interest must be taken into account as against her loss of those material benefits which depended upon the continuance of her husband's life.

At 279 he wrote:

The pecuniary loss to which the damages are confined consists in the loss of material benefits or of the reasonable prospect of material benefits which depended on the continuance of the life of the deceased. What must be ascertained is whether any and what loss has been sustained by the relatives of the deceased after comparing the material benefits depending upon his life with any material gains accruing from his death.

At 281 he observed:

... the damages recoverable by the legal personal representative of the deceased go to swell the estate in which the widow or other relative may share, whether under his will or on intestacy. It will, therefore, operate to increase the interest which, in the absence of any legislative direction to the contrary, must be taken into account by way of reduction of the pecuniary loss otherwise resulting to the widow of the deceased or his relative.

15. Relying upon the first and third quotations from the judgment of Dixon J in Zoanetti BI argues that an deduction of $105,000 must be made from the sum which otherwise would be awarded to the plaintiff. BI arrives at the sum of $105,000 by an arithmetical calculation and says an arithmetical deduction should be made. That this is so is disputed, and not surprisingly, by the plaintiff.

16. The amendment to the Survival of Causes of Action Act, which inserted sub-section (2) of s 3, which operated from 11 October 2001, is said to be a remedial and beneficial provision. That it is a beneficial provision is beyond question, but the significant question is whether it operates to confer a further benefit upon those who benefit from the estate of a deceased person on whose behalf an action has successfully been brought which “does not derogate from the rights of the dependants of a deceased person to bring an action …”.

17. It is put by Mr Letcher of Queen's Counsel that in Zoanetti the High Court of Australia was not concerned with the interplay between the Wrongs Act and the Survival of Causes of Action Act, but only with the items referred to in the Wrongs Act. As a proposition I think that to be correct. Mr Letcher has taken me to the Hansard debates on the Bill which inserted sub-section (2) into s 3 of the Survival of Causal of Action Act. He has also referred me to the text Statutory Interpretation in Australia by Pierce and Geddes, 5th edition Butterworths 2001. At p85 in par [3.5] the authors recite:

The current position in South Australia is that, in accordance with the decision of the Full Court of the Supreme Court in Owen v South Australia (1996) 66 SASR 251, reference may be made to reports of parliamentary debates both to ascertain the mischief and to discern the underlying purpose of the legislation in question.

18. With all respect to the authors, that seems to be an inaccurate summary of the effect of Owen v South Australia (1996) 66 SASR 251. Without quoting from the judgment cited in support of the proposition I think it is sufficient to observe that what Cox J at 256 was saying was that, in some circumstances, it might be permissible to have regard to a Ministerial Statement on the second reading speech of a Minister when a Bill was introduced into the Parliament.

19. The amendment to the Survival of Causes of Action Act was made as a result of a Private Members Bill and when it was debated in the House much was said about the desirability that the families of those suffering dust diseases, in particular mesothelioma, receive the benefit of general damages after the death of a family member from dust related conditions. With all respect it seems to me that s 3(2) does not affect the general proposition referred to in Zoanetti.

20. The South Australian Parliament legislated to provide that certain benefits not be taken into account in assessing damages in an action under the Wrongs Act. Those benefits are moneys paid or payable, consequent upon death, under assurance or insurance policies; gratuities; by contributory medical, hospital, death or funeral benefits schemes; and as a social service; and any superannuation payments. Had the Parliament intended that benefits under a will or on an intestacy not be taken into account in assessing damages, it could have said so by amending s 20(2aa) of the Wrongs Act.

21. S 6(1) of the Survival of Causes of Action Act relates to the right to bring an action, not to the damages recoverable.

22. In assessing damages under the Wrongs Act it is proper to take into account pecuniary benefits passing to a plaintiff and to those on whose behalf the action is brought. However, I do not regard the assessment of a deduction as an arithmetical exercise.

23. It is submitted by Mr Letcher that there is an onus upon BI, as upon any defendant seeking a “set off”, to adduce evidence of the amounts and the nature of the benefits received from the estate. Moreover, he submits that had the deceased survived and recovered damages in his lifetime and continued to live for a period of years the present plaintiff would still have gained the benefit of general damages in whole or substantial part. That may or may not have been the case but more likely than not, bearing in mind the nature of their relationship, probably would have occurred.

24. It is put by Mr Letcher that the plaintiff's receipt of moneys by way of intestacy was partial, but accelerated by her husband's early death. There are factors, he submits, which would otherwise have led to Mr Strikwerda continuing to earn and with the prospect of promotion. He cited McCullagh v Lawrence [1989] 1 Qd.R.163 as authority for the proposition that in appropriate cases the set off involves the exercise of a discretion and is not a matter of arithmetical calculation. That case concerned the accelerated benefits, occasioned by the death of a husband, of a property jointly owned by himself and his wife. The Full Court of the Supreme Court of Queensland determined that merely because there was an acceleration of a receipt of jointly owned property did not require that damages be reduced on that account.

25. There is another matter also; that is, there is no evidence before me of the value of the estate of the late Mr Strikwerda. I do not know whether his estate comprised valuable personal property or whether it was insolvent. Mr Fernon of Senior Counsel submits that the onus to establish the value of the estate lies upon the plaintiff. With all respect to him I am unable to agree. It is he who brings this application and were the matter argued before me in September it would have been his client who had the responsibility to demonstrate it was appropriate to adjust the judgment sum by reason of the financial benefits the plaintiff was to receive from the estate. There is no basis nor evidence upon which I can find that the plaintiff’s share of the estate of her late husband is $105,000.

26. Accordingly, it is my view that this application should be refused.

27. It should be noted that PHR appeared before me on this application but took no part in it, made no submissions other than to say its attitude was neutral. In accordance with the order made on 30 September BI should pay the plaintiff's costs of this application as agreed or assessed.

28. Mr Fernon has applied for a stay. On 30 September 2004 I granted a stay conditionally upon BI within 14 days applying under s 13(6) of the Dust Diseases Tribunal Act for reconsideration. Costs orders to which I have referred were then made. On 1 November 2004 I varied the order of 30 September granting a stay ordering the defendant forthwith to pay to the plaintiff the sum of $81,050. I have been informed that that sum has not yet been paid. I will hear Mr Fernon’s application for a stay tomorrow. I think it inappropriate that orders of the Court should be ignored.

1 December 2004

1. As to $42,000 I grant stay to the first defendant upon terms that within 28 days it file a notice of appeal with appointment in the Court of Appeal division of the Supreme Court and within 7 days pay to the plaintiff the sum of $42,000.

2. The first defendant will pay the costs of the plaintiff and the second defendant of this application

Mr D G Letcher, QC instructed by Turner Freeman appeared for the Plaintiff

Mr J J E Fernon, SC instructed by appeared for the Defendant

Mr T Kulukovski of Thompson Cooper Lawyers appeared for the Second Defendant