Van Soest v BHP Billiton Ltd (No 2) - [2013] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
VAN SOEST v BHP BILLITON LTD (No 2)
[2013] SADC 95
Judgment of Her Honour Judge Parsons
28 June 2013
DAMAGES
ASSESSMENT OF DAMAGES - MEASURE OF DAMAGES - EXEMPLARY DAMAGES
The plaintiff aged 73 suffers mesothelioma caused or materially contributed to by his employment as a painter and docker with the defendant in 1962. Damages for pain and suffering and loss of amenities, loss of expectancy of life, past and future medical expenses, aids, equipment and home modification, past and future Griffiths v Kerkemeyer damages and exemplary damages. Interest.
Dust Diseases Act 2005 (SA) s 9; Hospitals and Health Services Act 1927 (WA) s 37; Hospitals (Services Charges) Regulations 1984 regs 7(1)(c), 8(a), 9(1)(a), referred to.
van Soest v BHP Billiton Limited [2013] SADC 31; BHP Billiton Limited v Parker (2012) 113 SASR 206; Ewins v BHP Billiton Limited & Wallaby Grip Limited (2005) 91 SASR 303, considered.

VAN SOEST v BHP BILLITON LTD (No 2)
[2013] SADC 95

By decision dated 17 June 2013[1] I found the defendant, BHP Billiton Limited (‘BHP’) liable for the loss which the plaintiff sustained as a result of mesothelioma caused or materially contributed to by his exposure to asbestos dust and fibre when working at the Whyalla shipyards for eleven weeks in 1962. I now assess the plaintiff’s damages.
[1] van Soest v BHP Billiton Limited [2013] SADC 81
The evidence generally
The plaintiff and his ex-wife, Maria Marcelle van Soest, gave evidence about the onset and progress of his illness up to the time of trial. Professor Musk, the plaintiff’s treating respiratory physician, gave evidence about the diagnosis, the plaintiff’s medical treatment, the prognosis, the anticipated course of the plaintiff’s illness, possible further treatment and the likely cost of such treatment.
Ms Cunningham, an occupational therapist, assessed the plaintiff and inspected his home for the purposes of these proceedings. She gave evidence of her consultation with the plaintiff and Mrs van Soest and her opinion about his past and ongoing domestic and personal care needs and associated costs, and his future requirements for aids, equipment, home modification and home maintenance.
BHP called Dr Antic, a respiratory physician. After examining the plaintiff’s medical and hospital records and Prof Musk’s reports, he gave evidence commenting on Prof Musk’s assessment of the plaintiff’s condition and future medical needs. He also commented on the plaintiff’s functional needs.
BHP also called Mr Pearce, an occupational therapist. He assessed the plaintiff and inspected his home and that of Mrs van Soest. He gave evidence about the plaintiff’s current and future care needs relating to his functional level within the home environment and the current and future modifications, equipment and appliances required to enable the plaintiff to function maximally and safely at home. He also gave evidence about the cost free nature of such requirements.
The plaintiff
The plaintiff is 73 years old, single, retired and lives alone in rented accommodation. He is divorced with one adult son. He…

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: [2013] SADC 95
Decision Date: 28 June 2013

CaseChat Overview and Summary

Van Soest v BHP Billiton Ltd (No 2) concerned an assessment of damages for a plaintiff who contracted mesothelioma as a result of exposure to asbestos dust while working as a painter and docker for BHP Billiton Limited at the Whyalla shipyards in 1962. The Court assessed the plaintiff's damages for pain and suffering, loss of amenities, loss of life expectancy, past and future medical expenses, aids, equipment and home modification, past and future gratuitous services and exemplary damages. The Court awarded $120,000 for pain and suffering and loss of amenities, $12,000 for loss of expectation of life, $56,044.30 for past medical and like expenses, $62,000 for future medical and like expenses, $8,390 for aids, equipment and home modification, $22,317 for past gratuitous services, $55,000 for future gratuitous services and $20,000 for exemplary damages. The Court awarded the plaintiff a total of $358,151.30 by way of damages. The Court reserved the question of costs.

Orders