Webber v Comcare

The plaintiff, Webber, brought a claim against the defendant, Comcare, in the Federal Court of Australia, seeking compensation for injuries sustained as a result of exposure to asbestos. The primary issue was the applicable law for assessing damages, particularly concerning general damages and statutory damages for loss of capacity to provide domestic services. The dispute also included whether the injuries should be assessed under New South Wales or Northern Territory law.

The court was required to determine the appropriate choice of law rules, given the inter-State nature of the tort. It found that the governing law for inter-State torts is the lex loci delicti, meaning the law of the place where the tort was committed. The court further needed to assess whether damages for loss of capacity to provide domestic services should be included under general damages and whether the damages should be assessed under New South Wales or Northern Territory law.

The court held that the choice of law rules at common law are part of the law of New South Wales. The lex loci delicti principle meant that the law of the Northern Territory should apply to questions of the kinds of damages and the amount of damages. The court found that damages for loss of capacity to provide domestic services should be included under general damages. As mesothelioma is an indivisible injury, the defendant was liable for all damages assessed under the choice of law rule. The court awarded the plaintiff $1,101,685 in damages and ordered the defendant to pay the plaintiff's costs, with options for contesting costs and a further hearing on the cross-claim.