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…

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 Strikwerda v B I Contracting Pty Ltd

Details

AGLC: Strikwerda v B I Contracting Pty Ltd [2004] NSWDDT 50
Case: [2004] NSWDDT 50
Decision Date: 11/30/2004

CaseChat Overview and Summary

In the case of Strikwerda v B I Contracting Pty Ltd, the plaintiff, Strikwerda, sought compensation for her late husband's dust disease, which she claimed was caused by the defendant's negligence. The matter was before the Dust Diseases Tribunal of South Australia, where Strikwerda recovered damages both through an estate action and under the Wrongs Act 1936 (SA). The defendant, B I Contracting Pty Ltd, sought a reconsideration of the damages awarded in the Wrongs Act action, arguing that the damages should be reduced due to the benefit Strikwerda received from the estate action. The Tribunal had to determine whether the defendant's application to reduce the damages was valid and, if so, the extent of the reduction.

The central legal issue before the Tribunal was whether the damages awarded under the Wrongs Act should be reduced in light of the damages received by the plaintiff from the estate action. The Tribunal had to consider the onus of proof on the defendant to establish the circumstances warranting such a reduction. Additionally, the Tribunal needed to assess whether the defendant had provided sufficient evidence to substantiate the value of the estate, which was essential in determining the appropriate reduction in damages.

The Tribunal held that the onus was on the defendant to provide evidence supporting the reduction of damages. It was noted that the defendant had failed to provide any evidence regarding the value of the estate or the extent to which the damages should be reduced. Consequently, the Tribunal ruled that there were no grounds for reducing the damages awarded under the Wrongs Act. The plaintiff was therefore entitled to the full amount of damages as originally determined. The Tribunal emphasised that the defendant's application to reconsider the damages was not successful due to the lack of evidence and the absence of any valid basis for reducing the damages.

The Tribunal confirmed that Strikwerda was entitled to the full damages awarded in the action under the Wrongs Act 1936 (SA), without any reduction. The defendant's application to reconsider the damages was dismissed, and no reduction was made to the amount previously awarded.

Orders