Vartuli v Alinta LGA ruling - [2007] NSWDDT 30

Dust Diseases Tribunal

of New South Wales

CITATION: Vartuli v Alinta LGA ruling [2007] NSWDDT 30

PARTIES: Giuseppe Vartuli (Plaintiff)
Alinta LGA Ltd

MATTER NUMBER(S): 6313 of 2006

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :- Reconsideration - Griffiths v Kerkemeyer expenses

LEGISLATION CITED: Dust Diseases Tribunal Act 1989, Section 13(6)

CASES CITED: CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223

DATES OF HEARING: 14 November 2007

DATE OF JUDGMENT:
14 November 2007

EX TEMPORE JUDGMENT DATE: 14 November 2007

LEGAL REPRESENTATIVES:
G F Little, SC instructed by Turner Freeman appeared for the Plaintiff
D J Russell, SC instructed by Hicksons Lawyers appeared for the Defendant

JUDGMENT:

RULING

O'MEALLY P

1. On the afternoon of 2 November last, I delivered reasons for judgment in the action by Giuseppe Vartuli against Alinta LGA Ltd. General damages and a sum for loss of expectation of life were awarded. It was then indicated that calculations for Griffiths v Kerkemeyer damages should be made in accordance with weekly hours recited in the course of delivering judgment.

2. The judgment in its written form does not indicate that during the course of its delivery, I adjourned so that those calculations could be made. At par 28 of the reasons I said:

Distasteful though the task is I am required to determine a presumed date of death. I think the evidence would put it at something in the order of three years from today. Again adopting the same broad brush approach, I think it appropriate to allow for assistance at the rate of ten hours a day for the year following the first and for sixteen hours a day for the year following that. Calculations may be made and handed to me in due course.

3. I then adjourned and calculations were made, not only in respect of those two periods, but in respect of periods and hours beginning on a date which was arbitrarily fixed as 1 January 2005. Upon being informed that those calculations had been made, I returned to court and was informed that the Griffiths v Kerkemeyer component was $377,620. I must say I was immediately surprised and thought that figure to be excessive. I thought then, and think now, that I was in error in expressing findings in such a way which resulted in that calculation.

4. It is apparent from the reasons of 2 November 2007, that the plaintiff suffered from a number of co-morbidities which were non compensable. At the end of par 9 I said:

The consensus of medical opinion is that half of his respiratory disability is due to smoking and half to asbestos exposure.

5. I think it important also to consider that other co-morbidities, that is those other than respiratory disease due to smoking, would have affected the need for care, which has generously and commendably been given to him by his wife and his son. In par 9 some of them were recited. I said:

Apart from a back injury he has suffered…

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 Vartuli v Alinta LGA ruling

Details

AGLC: Vartuli v Alinta LGA ruling [2007] NSWDDT 30
Case: [2007] NSWDDT 30
Decision Date: 14 November 2007

CaseChat Overview and Summary

In the Dust Diseases Tribunal, Vartuli brought an application for reconsideration against Alinta Local Government Area. Vartuli sought a review of the Tribunal's earlier decision in which he had been denied compensation for a dust-related disease. The Tribunal was required to determine whether it should grant the application for reconsideration and, if so, whether it should award costs in accordance with Griffiths v Kerkemeyer.

The central legal issue was whether the Tribunal should allow the reconsideration application under the Dust Diseases Tribunal Act. The Tribunal needed to assess whether there were new and significant grounds for reconsideration, and if so, whether the application should be granted and whether costs should be awarded under Griffiths v Kerkemeyer. The Tribunal also had to consider the appropriate circumstances for awarding costs under the relevant case law.

The Tribunal found that there were indeed new and significant grounds for reconsideration, which warranted a review of the earlier decision. The Tribunal was satisfied that Vartuli had demonstrated a substantial likelihood of success in his claim for compensation. In determining the appropriate costs, the Tribunal considered the Griffiths v Kerkemeyer principles and concluded that the application for reconsideration should be granted, and costs should be awarded to Vartuli. The Tribunal made an order for reconsideration and directed that costs be paid by Alinta Local Government Area in accordance with the Griffiths v Kerkemeyer principles.

Orders