Williams (As Legal Personal Representative of the Estate of the Late Russell John Charles Williams) v B I Contracting Pty Ltd

[2004] NSWDDT 19

Reported Decision (2004) 2 DDCR 1

Dust Diseases Tribunal

of New South Wales

CITATION:

Williams (As Legal Personal Representative of the Estate of the Late Russell John Charles Williams) & Anor v B I Contracting Pty Ltd & Ors [2004] NSWDDT 19

PARTIES:

Gloria Dawn Mary Williams (As Legal Personal Representative of the Estate of the Late Russell John Charles Williams)
Gloria Dawn May Williams
B I Contracting Pty Ltd
CSR Ltd

MATTER NUMBER(S):

262 of 2002; 263 of 2002

JUDGMENT OF:

O'Meally P at 1

CATCHWORDS:

:- Dust Diseases Tribunal
negligence
liability
holding company
control over subsidary companies
duty of care of each company coextensive
holding company liable for negligence of subsidiary companies

Dust Diseases Tribunal
estate action
negligence occurring in South Australia
Limitations of Actions Act
(SA) 1936
s 48
"plaintiff" in s 48 regarded as deceased person not legal personal representative
no evidence that deceased person unaware of material facts
verdict for the defendants

Dust Diseases Tribunal
action by widow
Wrongs Act (SA)
1936
negligence occurring in South Australia
Limitations of Actions Act (SA)
1936
plaintiff unaware of material facts
verdict for the plaintiff

Dust Diseases Tribunal
action by widow
assessment of damages
claim for loss of superannuation benefits
deceased's superannuation policy surrendered by widow
accelerated superannuation benefit
no damages awarded for loss of superannuation

LEGISLATION CITED:

Wrongs Act (SA), 1936
Civil Liability Act (SA), 1936
Limitations of Actions Act, 1936 (SA), ss 36 & 48
Limitations Act (NSW), 1969, s 60E(2)

CASES CITED:

Briggs v James Hardie & Coy Pty Limited (1989) 16 NSWLR 549;
Olson v CSR Ltd and Anor DDT 72 of 1994 (unreported 24 December 1997;
CSR Ltd v Young (1998) 15 NSWCCR 56;
CSR v Wren (1998) 44 NSWLR 463; (1997) 15 NSWCCR 650;
Lovett v Le Gall [1975] 10 SASR 559;
Napolitano v Coyle [1977] 15 SASR 559;
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 629

DATES OF HEARING:

11 March, 22 June, 21, 22 & 23 September 2004

EX TEMPORE
JUDGMENT DATE :

09/23/2004

LEGAL REPRESENTATIVES:

FOR PLAINTIFF: Mr D G Letcher, QC instructed by Turner Freeman
FOR FIRST DEFENDANT: Mr W P Austron instructed by Leigh Virtue & Associates
FOR SECOND DEFENDANT: Mr M J Stevens instructed by Makinson & D'Apice

JUDGMENT:

1. These are two actions brought by Gloria Dawn May Williams consequent upon the death of her husband, the late Russell John Charles Williams.

2. On 9 February 1999 when 58 years old, Mr Williams died from the effects of malignant mesothelioma. The first action, that is number 262 of 2002, is brought by Mrs Williams as the legal personal representative of his estate. The second action, 263 of 2002, was brought by her pursuant to the Wrongs Act (SA), 1936, now the Civil Liability Act (SA), 1936. In each action she has sued BI (Contracting) Pty Ltd (BI) and CSR Ltd (CSR).

3. Her allegations against the first defendant are that her husband was negligently exposed to asbestos when employed by it between 1960 and 1963 as a truck driver transporting bags in which asbestos and cement were mixed together. He was also exposed to asbestos at building sites, where water was added to the mixture, which he transported, when the mixture was sprayed onto beams, rafters and ceilings in buildings during the course of their construction. The purpose was to prevent the spread of fire in the event that one occurred. Mr Williams picked up bags from the premises of Ingham Plaster Coy Pty Ltd (Inghams) and transported them either to building sites or to BI’s premises.

The relationship between CSR and ABA

4. The plaintiff alleges against the second defendant, CSR, that its subsidiary company, Australian Blue Asbestos Pty Ltd (ABA), mined blue asbestos at Wittenoom in Western Australia, and in turn supplied it to another CSR subsidiary, Inghams, which sold it to BI. It should be observed at this stage that CSR had a Building Materials Division of which a large number of companies was part. The identity of these companies appears in a number of documents now in evidence, and in particular in minutes of the meetings of the board of CSR, in CSR's newsletters and in some CSR Annual Reports. In CSR’s publications the Building Material Division is referred to as “BMD”.

5. The relationship between ABA and CSR has been considered in a number of cases previously decided in the Tribunal and in the Court of Appeal. It has been held that CSR so controlled ABA as to be responsible for its negligent acts and omissions. It was only at the very end of addresses that counsel for CSR conceded that that question need not again be examined and it is accepted that CSR is liable for the negligent acts and omissions of ABA. The failure to make such a concession earlier was unmeritorious.

The relationship between CSR and BI

6. It is not submitted by the plaintiff that CSR is liable for the negligent acts and omissions of BI. It should, however, be observed that CSR was a shareholder in what might loosely be called the Bradford companies. In a respect to which reference will later be made, the plaintiff seeks to draw some comfort from the distinction in corporate identity between two of the Bradford Insulation companies, but the reality is that they operated together, and one, in effect, performed administrative tasks for the other.

7. PX42 is an extract of material which has previously been in evidence in other cases in the Tribunal. At p 32 of the exhibit is a reference to CSR’s Newsletter number 56 of September 1959. Between p 26 and p 27 of the newsletter the following appears:

The Company has arranged to acquire the interests of the Bradford family in the Bradford Insulation companies throughout Australia. The purchase price will be satisfied by the issue to the Bradford family of about 10,000 fully paid shares in the C.S.R Company. The Bradford companies were established about 25 years ago. There are 8 companies in all which operate throughout all the mainland states. ... The Bradford family, through their family holding company, B.I. Holdings Pty Limited, have share interests of various proportions in all the B.I. companies. Therefore, the CSR Company acquired the whole of the family share interests in those companies. B.I. Holdings has minority share holding interests in Bradford Insulation (Queensland) Pty Ltd, Bradford Insulation (WA) Limited and Bradford Insulation (SA) Limited and these companies therefore will now be associated with C.S.R, while the New South Wales and Victorian BI companies will be controlled by C.S.R.

It continues:

New company to be formed in SA - Bradford Insulation (SA) Limited - is a public company in which B.I. Holdings Pty Limited has only a small share holding interest. However arrangements have been made for the C.S.R Company to obtain a 25% share of the South Australian company and in return the South Australian company will be given an interest of about 11% in B.I. Holdings. Following these arrangements, a new company will be formed and will offer to purchase all the shares of Bradford Insulation (SA) Limited.

In an announcement to newspapers, Dr Vernon said the acquisition of the Bradford family’s interests in the Bradford Companies was in conformity with the CSR Company’s long standing intention to expand in the rapidly growing insulation industry.

Dr Vernon was a senior executive of CSR.

8. On p 38 of Newsletter number 57 published in 1959 which is PX7 the following appears:

As a result of the recent acquisition of the Bradford Insulation companies ... and the consequent substantial expansion in the B.M.D activities, two new senior appointments have been made in the B.M.D.
Mineral fibre section: Mr C H Broadhurst, who is Director of A.B.A Limited and of the C.S.R owned plaster companies in Perth, will retain these appointments and in addition will control the C.S.R’s company’s interests in the Bradford companies. The Bradford companies and ABA Limited will be known as the Mineral Fibre Section of the B.M.D.

9. As a consequence it is safe to conclude that CSR was aware, and at all material times remained aware, of the activities of the Bradford Companies upon whose boards it was represented and in which it held a large number of shares. While the evidence does not establish that CSR is liable for BI’s negligence, it does establish that CSR knew of BI’s business activities.

The Relationship Between CSR and Inghams

10. On the third page of PX7, CSR’s Newsletter number 57 of December 1959, under the heading "Building Materials Division" it is revealed that Mr Stidston, a CSR staff officer, had been appointed by CSR to be General Manager of the Ingham Plaster Company Ltd, Adelaide. He had, until that appointment, been sales representative of the Building Materials Division in Adelaide. PX40 is a CSR staff officer's personal record card. It confirms that Mr Stidston was a staff officer of CSR from 1 March 1957. His appointment to Inghams in December 1959 is recorded on his card. An examination of records in evidence reveals that Mr Stidston moved backwards and forwards between various CSR enterprises, remaining at all times a member of CSR's staff.

11. PX41 is CSR's staff officer's personal record card in respect of William Hartley Nicks. It records that Mr Nicks was appointed to CSR staff on 1 March 1963 and in 1965 became the secretary/accountant at Ingham Plaster. Mr Nicks continued as a CSR staff employee long after the Ingham Companies ceased to exist on 30 June 1967.

12. PX8 is a sales bulletin produced by CSR. This bulletin also shows the connection between CSR and the Ingham Companies. It contains the following under the heading “New Licensees for Silbestos”.

Silbestos, one of our newer products, is showing great promise, and increasing demand has necessitated the appointment of several new licensees recently. They are: Sandblast and Metal Spray, North Queensland. Pty Ltd., Bradford Insulations (W.A.) Pty Ltd (in Perth) and Bradford Insulation Spraying Ltd. (in Adelaide).

It also records:

South Australia shows the most widespread use of the product to date. All Silbestos used in that State is prepared at Ingham Plaster Mills.

13. The former notation confirms that CSR was aware of BI’s activity. The latter notation confirms that Silbestos, which contained asbestos, was regarded as a CSR product. Other evidence establishes that Inghams sold asbestos, including Silbestos, to BI.

14. PX9 is CSR’s Newsletter of February 1961 to December 1962. Relevantly, it contains the following under the heading "Ingham Plaster."

CSR recently acquired the shares in Ingham Plaster Co Ltd., Adelaide, which were held by the public. C.S.R. now owns all the shares.

15. On page 21 of that Newsletter is a discussion of safety in CSR's factories under a heading in those words. Reference is made in the group of enterprises listed to “Inghams Plaster”.

16. PX31 contains CSR’s reports for the years 1959, 1962 and 1963. On p 3 of the 1962 report the following appears:

During the year, the Parent Company took over the trading operations of some of our building materials, subsidiaries, vis., ..... Ingham Plaster Co. Pty. Ltd ...
and on p 11 under the heading “ Subsidiary Companies to which the annexed 1962 accounts relate ” are included Ingham Plaster Co Pty Ltd and Fred Ingham and Co Ltd.

17. The association between CSR and the Ingham Companies is confirmed in minutes of the meeting of the Board of Directors of CSR which are in evidence as PX32. In the minutes of the meeting of Wednesday, 17 February 1960, uner the heading “Building Materials”, it is recorded:

The Board agreed that Mr. L. Stidston, General Manager of the Ingham Plaster Co. Ltd., should be appointed to the Board of that Company in place of Mr. Gordon H. Ingham.
In the minutes of the meeting of Wednesday, 7 June 1961 under the heading "Building Materials" it is recorded:
Consequent on the conversion of the Ingham Plaster Company Limited to Ingham Plaster Company Pty. Ltd. and changes in the Articles of Association of that Company, the Board confirmed the appointment of the following as directors of Ingham Plaster Co Pty Ltd: Messrs. K. O. Brown, M. G. King, L. Stidston, A. Mackintosh and A. C. Higgs.

18. It is plain that CSR appointed its staff members to the Boards of the Ingham Companies. As it did with ABA, CSR directed and controlled the activity of Inghams; Inghams was the cypher and conduit of CSR (see Briggs v James Hardie & Coy Pty Limited (1989) 16 NSWLR 549 at 555G and at 556G). It is unnecessary, therefore, to determine whether any interference with its corporate attire should be undertaken, for it is plain from the material to which I have referred, and to other material in evidence to which I have not referred, that CSR's control over the Ingham Companies was as total and as pervasive as it was over ABA, the nature of which was examined in Olson v CSR Ltd and Midalco Pty Ltd number DDT 72 of 1994 (unreported 24 December 1997) and in CSR Ltd v Young (1998) 16 NSWCCR 56 and over Asbestos Products Pty Ltd the nature of which was examined in CSR v Wren (1998) 44 NSWLR 463; (1997) 15 NSWCCR 650.

CSR’s knowledge of the dangers of asbestos

19. It was ultimately conceded, but only very recently this afternoon, that CSR had the means of knowledge and had in its possession material which spoke of the dangers of exposure to asbestos. By reason of that concession it is unnecessary to examine the large amount of material in evidence which also has been extracted in PX42. Additionally, I have PX36 and PX37, the first being an internal memorandum of ABA referring to the second, which is a copy of a paper published in the British Medical Journal of 30 April 1960. The toxicity and danger of asbestos dust were referred to in that paper and that paper was in the possession of ABA and in the knowledge of CSR.

20. It was CSR’s duty to safeguard those who were likely to come into contact with asbestos or asbestos products manufactured by it or those subsidiaries whose activities it directed and controlled. Two of those subsidiaries were ABA and Inghams. In continuing to supply blue asbestos from Wittenoom in bags which contained no warning, ABA and therefore CSR failed in their duty to those who came in contact with asbestos produced by ABA and sold on by Inghams (see CSR v Wren (Supra)).

21. At Inghams, as has been noted, asbestos and cement were mixed together, placed in bags and taken to building sites where, after water was added, the mixture was sprayed under pressure on to beams, girders and other parts of buildings to inhibit the spread of fire. In the process of loading bags of material to be sprayed, and in the course of spraying activities carried out when he was present, the late Mr Williams inhaled asbestos and as a consequence contracted mesothelioma.

Defences under the Limitation Act

22. Subject to a defence under the Limitation of Actions Act, 1936 (SA) (the Limitation Act), BI concedes its liability to the plaintiff. CSR also raises a limitation defence. Subject to those defences the plaintiff is entitled to succeed against each defendant, for each was in breach of its duty either to its employees or to users of products for which they were responsible and in respect of which no warning of their dangers was given.

23. S 36 of the Limitation Act provides as follows:

(1) All actions in which the damages claimed consist of or include damages in respect of personal injuries to any person, shall be commenced within three years next after the cause of action accrued but not after.

(2) In this section-


"personal injuries" include any disease and any impairment of person's physical or mental condition.

relevantly provides:

(1) Subject to this section, where an Act ... prescribes or limits the time for -

(a) instituting an action; or

(b)…

(c)…
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.

(2)…

(3) This section does not -

(a) ...

(b) empower a court to extend the limitation of time prescribed by this Act unless it is satisfied -

(i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within or twelve months before the expiration of the period of limitation occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or

(ii)…

24. Mr Williams’ first symptoms of mesothelioma presented on 9 November 1996 and within a day or two a diagnosis confirming mesothelioma was made. Time began to run on 9 November 1996 and by 9 November 1999 the claim of his estate was provisionally statute barred.

25. The limitation provisions of the South Australian Act are generous. Their effect has been considered in a number of cases and to some of them reference will be made in a moment. There is no evidence from the late Mr Williams relevant to any matter which would justify an extension of time under the Limitation Act. Such evidence as there is has been given by the plaintiff.

26. It is the plaintiff's submission that in respect of the action on behalf of the estate, “plaintiff” in the Limitation Act means the plaintiff in that action, that is Gloria Dawn May Williams. Counsel inform me they have searched unsuccessfully for any authority on this question and their researches disclose no authoritative guide to answer the question whether in an estate action “plaintiff” is to be regarded as the person suing in a representative capacity or the person whose estate is bringing the action.

27. Mr Letcher QC submits that “plaintiff” in s 48 means the plaintiff in this action, that is Mrs Williams. He argues by analogy that that conclusion must be reached, and in support of his argument he relies on s 60E(2) of the Limitation Act (NSW), 1969 which provides as follows:

(2) In the application of this section to an application for an order under s 60C in respect of a cause of action that has survived on the death of a person for the benefit of the person's estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944, references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.

28. I do not believe it to be an appropriate method of statutory interpretation to refer to the statutes of another place beyond the jurisdiction of the Parliament which enacted the first. With all respect to Mr Letcher I am unable to agree that a provision of the type in the New South Wales Act discloses the intention of the Parliament of South Australia to permit time to be suspended until a person authorised to sue under the Wrongs Act (SA), 1936 (now the Civil Liability Act (SA), 1936) initiates action. If that were correct the time could be 50 or more years. I see no warrant for construing the limitation legislation of South Australia by reference to the Limitation Act of New South Wales.

29. The generous nature of the South Australian Act has been illustrated by decisions of the Full Court of the Supreme Court of South Australia.

30. In Lovett v Le Gall [1975] 10 SASR 479 at 485 Wells J said of s 48(3)(b)(i):

... the word "material" denotes, in my opinion, facts that are not only relevant to the issues - which, I apprehend, may include the issue of damages - but are also of such a nature and of such weight that they may fairly be taken into account by a plaintiff who is in the course of considering whether he should or should not prosecute his claim to trial. Similarly, the word "case" has a much wider purview than the expression "cause of action" ; it comprehends, in my opinion, all evidence, law and argument to be relied on in court by the party concerned.

... Sub-section (2) does not raise a question of constructive notice or any other question eiusdem generis. The passage "were not ascertained by him" has an obvious and natural meaning, and I deem it to be a court's duty to give it that meaning unless some other meaning is clearly intended. As I read the word "him", the natural meaning is "him personally, not just his agent".

31. Relying upon that passage, the plaintiff submits that I must regard Mrs Williams as the plaintiff, that is Mrs Williams personally, not in her representative capacity. Again with respect to Mr Letcher I am unable to agree. In my view the plaintiff is the estate and because an estate otherwise has no legal personality a legal personal representative brings actions on behalf of an estate.

32. The observations of Bray CJ in Napolitano v Coyle [1977] 15 SASR 559 at 569 where he referred to material facts as those relating to a “plaintiff's case not his cause of action” do not advance the argument.

33. I should also refer to the decision of the High Court of Australia in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 629. In that case Wilson, Deane, Dawson, Toohey and Gaudron JJ said at 637:

The second ground of appeal was that the Full Court erred in holding that the ascertainment of material facts must be by the plaintiff personally. ... The appellant's submission was that since [the plaintiff's] solicitor was [her] agent, his knowledge of the report should be imputed to her, with the consequence that s 48(3)(b)(i) was not satisfied. That submission cannot be accepted. It does not fit well with the use in the paragraph of the words "by him" . These words would ordinarily convey the meaning of "by him personally" , rather than "by him or his agents" … Furthermore, the express references in the paragraph to "the plaintiff" support that construction. The paragraph is concerned with the materiality to the plaintiff's case on the facts which were not ascertained by him before the expression of the prescribed term. The concluding phrase of the paragraph is emphatic in declaring that the outside limit is twelve months after the ascertainment of the material facts by the plaintiff.

34. Again with respect to the argument I am unable to agree that in an action by an estate the plaintiff in a representative capacity is not bound by the limiting provisions of the statute. I think it is sufficient to observe that in the estate action the plaintiff is suing as the personal representative of the estate of her late husband and not in her personal capacity. It is the estate which would have the benefit of any judgment and the benefit of any judgment would be dependent upon the distribution of the estate. The defences of the defendants to the action by the estate should succeed. There will be a verdict for each defendant.

35. In respect of the action brought under the Wrongs Act the evidence relevant to the limitation defence is contained in pars 5 and 14 of the plaintiff's affidavit and in the plaintiff's oral evidence. Relevantly, her evidence is that until she consulted her solicitors the plaintiff was unaware who employed her husband and therefore against whom action should be brought. Also, it was not until she consulted her solicitors that she learned for the first time that there was a means available to BI to prevent the escape of dust from bags and that it could have taken other precautions. Having said that, I realise I should have dealt with the first assertion when considering the limitation defence in the estate action.

36. Mr Letcher QC says it is significant that proceedings taken by the late Mr Williams in the Industrial Court of South Australia in its Workers Compensation jurisdiction sought compensation for his mesothelioma were brought not against the first defendant but against an associated company, Bradford Insulation Industries (SA) Pty Ltd. The nature of the association between the Bradford Companies was intimate and their activities were intertwined. Administration and payments seemingly were performed by one company; their personnel were the same. Moreover, it would not have been foremost in the minds of those in the workers compensation proceedings to identify with any precision the name of the employer, for liability to pay workers compensation rested with the same insurer and arose under the same insurance policy. That is because the insurer insured each of the Bradford companies under the same policy of insurance. The fact that Mr Williams took proceedings against a Bradford company other than the first defendant does not, in my view, affect the limitation defence in the estate action.

37. I return now to the plaintiff's action under the Wrongs Act and to the defences of the defendants under the Limitation Act. I have come to the view that in this action these defences fail because Mrs Williams has brought herself within the exception contained in s 48(3)(b)(i). I am conscious of the fact that one should always look cautiously and with scrutiny upon assertions concerning what a person might have done or believed before an event made after the event has occurred. I have done so, and having done so have concluded that there were facts which were material to the plaintiff's case which were not ascertained by her within the times recited in that provision of the Limitation Act. These include her lack of knowledge that means were available to CSR and BI which would have minimised or obviated the risk of injury to her late husband. Other relevant matters are recited in Para 14 of her affidavit and upon those she was not cross-examined. Such cross-examination as related to the limitation defences was directed to her husband’s knowledge, not her own. Accordingly, I am of the view that the plaintiff is entitled to a verdict in her own action.

Damages

38. At the time of his death the late Mr Williams had not been employed since 24 December 1991. He was employed by the first defendant between 1960 and 1963 and thereafter, and until he ceased to work, was employed by the South Australian Highways Department. He had sustained a number of injuries, some work related and some non-work related. It is the case that in 1980 he had trouble with his left shoulder and in 1983 he had an arthroscopic procedure carried out on his knee, but whether it was an examination or a means by which a meniscectomy was affected is not clear. A similar procedure occurred in 1984. When he gave evidence in the South Australian Industrial Court he conceded that he had bilateral knee problems, that he had had a meniscectomy, that he suffered back pain and that he had been involved in a motor vehicle accident in which he sustained a fracture of his wrist and toes. He retired on a disability pension in 1991 and, as noted, did not work again.

39. In July 1995 he had a knee replacement. The plaintiff's evidence is that that surgery did not occur sooner because the surgeon was anxious not to operate until her husband was older, it being well known that at that time knee prostheses had a limited life and there was no means by which a knee replacement could successfully be repeated. At the time he underwent surgery he was 55 years old. Seventeen months elapsed before presentation of mesothelioma on 9 November 1996. In evidence before the Industrial Court of South Australia Mr Williams freely admitted the limitations upon his activity resulting from his various injuries. He spoke of an inability to continue performing what was either a hobby or a community service in instructing young people and others and devising programs for them in safe motor cycle riding. He stopped working because of difficulties he had in mobility and maintaining himself in positions of flexion. He said, however, that he considered himself to be fit for light labouring work were it not for his mesothelioma.

40. Again, one must look with scrutiny upon that evidence for it was in his interests then to establish that he had a residual earning capacity. All I have is the transcript of evidence given by the late Mr Williams before the Industrial Court, but I think it relevant to consider the fact that something in the order of seventeen months had elapsed between the knee replacement surgery and the presentation of symptoms of mesothelioma. There is no evidence that he applied for any employment during that period. Moreover, there is the evidence that the light tasks upon which he was engaged on weekends in the safety program became too much for him. In view of those facts I am not satisfied that Mr Williams would have taken up employment even if he did have a residual earning capacity. I am not satisfied that his mesothelioma is responsible for any economic loss or loss of earning capacity.

41. The parties have agreed that in respect of certain out of pocket expenses, items of special damage, replacement services and interest the plaintiff is entitled to the sum of $60,647.11.

42. What remains in issue is the plaintiff’s financial loss consequent upon surrender of her late husband's superannuation. Certain things have been agreed, at least the arithmetic has been agreed; the entitlement is not. Mr Williams was 56 years old at the time he began to suffer the effects of mesothelioma. At that age he was not able to have his superannuation as a lump sum. There was a discussion between himself and his wife which led, and not unreasonably led, to her taking the superannuation entitlement as a lump sum following his death. That sum was $133,683,70. At the time of Mr Williams' death he was receiving $383.60 weekly. Had he lived to age 65 it was his intention to take a sum sufficient to discharge the mortgage on their home, which at the time of his death was in the order of $33,000 and the rest of his entitlement he would have taken as a pension. When Mr Williams' entitlement was $383.60 weekly the plaintiff's entitlement was $251.64 weekly.

43. Upon taking the lump sum of $133,683 the plaintiff discharged the mortgage of $33,000 on her home and the remainder she kept for her own and perhaps for her children's benefit. She claims, however, to be entitled to an amount of $60,015 by reason of lost superannuation entitlement. As noted, that figure has been calculated, and arithmetically has been agreed, but the entitlement is disputed. The entitlement is disputed because the plaintiff decided to take the whole of the superannuation entitlement and thereby received an accelerated benefit. She has had the benefit of her late husband's superannuation. With that argument I am in agreement. My view is that the plaintiff is not entitled to an amount in respect of lost superannuation benefits.

44. Accordingly, the plaintiff is entitled to a verdict jointly and severally against each defendant and judgment in the sum of $60,647.11.

45. The defendants will pay the plaintiff's costs as agreed or assessed save for this. This case was unnecessarily protracted by reason of the failure of the second defendant to make concessions which it failed to make until the end of addresses by counsel. Costs were incurred unnecessarily; they should not have been incurred. Both the plaintiff and the first defendant were kept here unnecessarily. Accordingly, my view is that the second defendant should pay in addition to the plaintiff's costs the costs of the plaintiff and the first defendant for one day on an indemnity basis. Costs will relate to one action only, the plaintiff’s own action, but because the costs are virtually identical there should be no difference save for the costs of filing the statement of claim and defence in 262 of 2003 and some part of the expert accounting evidence.

Mr D G Letcher, QC instructed by Turner Freeman Appeared for the plaintiff

Mr W P Y Austron instructed by Leigh Virtue & Associates appeared for the first defendant

Mr M J Stevens instructed by Makinson & D’Apice Appeared for the second defendant