PROCEDURAL – trial – evidence-in-chief – objection to plaintiff’s evidence-in-chief being given by affidavit – usual and long-standing Tribunal practice of allowing unwell plaintiff to give evidence-in-chief by affidavit – plaintiff with significant emotional and psychiatric issues – unfair burden to require plaintiff to give oral evidence-in-chief – defendants can appropriately cross-examine plaintiff
DAMAGES – mesothelioma – general damages – different assessments in different States – common law of Australia DAMAGES – mesothelioma – assessment of need for care in the future – evidence of occupational therapists
DUST DISEASES – mesothelioma – prognosis – length of prognosis DAMAGES – assessment of damages – general damages – interest on general damages – loss of expectation of life – future care and assistance – past and future out of pocket expenses – future medical expenses TORTS – vicissitudes
DUST DISEASES – prescribed dust diseases – asbestosis INSURANCE – application for leave to proceed against an insurer – leave granted DAMAGES – Act abolished common law right to bring action from 24 June 1993 unless cause of action accrued prior to that date as per Smith v ANL Ltd – when did plaintiff’s cause of action arise – exposure to asbestos in 1970s – diagnosis of asbestosis in 2014 – aetiology of asbestosis – initial deposition of fibres when viewed retrospectively caused molecular/cellular changes at time of exposure – eventually and inevitably progressed to asbestosis – reasoning in Alcan Gove Pty Ltd v Zabic applied
EVIDENCE – admissibility – evidence of deceased or unavailable workers tendered under s 63 of the Evidence Act – statement of former shipwright at Cockatoo Island – relevant to issue of whether there was asbestos at Cockatoo Island to which a worker might be exposed – whether identification of material as asbestos was inadmissible as opinion unable to be used to prove existence of a fact – evidence admissible as opinion based on specialised knowledge under s 79 of Evidence Act – no prejudice where evidence is broad and general
EVIDENCE – admissibility – Dust Diseases Board industrial histories – statements of workers at Cockatoo Island in relation to asbestos exposure – whether inadmissible as hearsay – evidence admissible as business records under s 69 of the Evidence Act
COSTS – indemnity costs – offer of compromise – judgment no less favourable to plaintiff – discretion to order otherwise under cl 89 of the Dust Diseases Regulation 2019 – whether "exceptional case" and "substantial injustice" on facts – where plaintiff served additional evidence after offer of compromise expired – indemnity costs ordered COSTS – Calderbank offer – defendant’s non-acceptance not unreasonable where offer open for very short period of time
DUST DISEASES — damages — general damages — interest on past general damages — damages for loss of expectation of life DUST DISEASES — evidence — historical evidence — Industrial Histories of former workers at Cockatoo Island — evidence of deceased or unavailable workers from earlier cases — admissions by defendant in prior interrogatories DUST DISEASES — prescribed dust diseases — mesothelioma — whether plaintiff had more than de minimis exposure to asbestos — where plaintiff could give no direct evidence of exposure — plaintiff employed as casual painter and docker by Cockatoo Dockyard Pty Ltd — general labourer — duration of work — nature of work — extensive use of asbestos at Cockatoo Island — exposure of painters and dockers to asbestos — no proper precautions — asbestos remains in the environment — pleural plaques — other exposure to asbestos
DUST DISEASES TRIBUNAL – permanent stay of proceedings – exceptional circumstances ABUSE OF PROCESS – delay – factors to be considered in determining whether the delay precludes the conduct of a fair trial – sufficiency of evidence – capacity of defendant to give instructions
RECONSIDERATION – s13(6) Dust Diseases Tribunal Act 1989 (NSW) – recalculation of damages for loss of services to take proper account of all evidence and submissions at trial
PROCEDURE – DUST DISEASES – amendment to Statement of Claim – amendment to join another defendant after the Claims Resolution Process has concluded – prejudice to current parties – delay occasioned by amendment – costs of any amendment
PROCEDURE – DUST DISEASES – discovery – facts in issue – whether discovery should be allowed when the matter is ready for hearing – pre-trial discovery – probative value – relevance to key facts in issue
DUST DISEASES — prescribed dust diseases — mesothelioma CHOICE OF LAW – where exposure to asbestos occurred in both New South Wales and Australian Capital Territory - torts with an inter-state element are governed by the lex loci delicti DAMAGES – general damages and loss of expectation of life - assessment under Australian Capital Territory law – where action survives for the benefit of the deceased’s estate - where act or omission that gives rise to the cause of action caused the person’s death – where plaintiff did not give a notice of claim before death – whether requirement to give notice of claim procedural or substantive DAMAGES – Lord Campbell’s Act – loss of services provided by deceased – assessment of damages under New South Wales legislation the same as under Australian Capital Territory legislation – where deceased’s son has severe disabilities – whether son required 24-hour care – direct care provided by deceased – standby supervision or indirect care provided by deceased and his wife – period for which deceased would have provided services – hourly rate selected to calculate damages – whether appropriate to use commercial cost of care to calculate damages
DUST DISEASES TRIBUNAL – damages – assessment of damages on common law principles – asbestosis and asbestos related pleural disease (“ARPD”) – general damages – interest on general damages – damages for personal care and assistance – future out-of-pocket expenses DAMAGES – assessment – tort – personal injuries – pain and suffering – future or potential events – likelihood of occurrence – relevance to measure of damages
PROCEDURE – discovery – where all issues in the proceedings are in dispute – use of a subpoena – whether discovery is necessary – whether exceptional circumstances warrant discovery before service of evidence – whether documents sought are relevant in the resolution of the real issues in the proceedings – whether categories are oppressive – order for discovery granted DUST DISEASES – Dust Diseases Tribunal – discovery – facts in issue in the proceedings
DUST DISEASES TRIBUNAL – costs of restoration to the company register – payable by whom – deregistered company v insurer CIVIL PROCEDURE – can orders for costs be made against third parties WORKERS COMPENSATION – deregistered company and insurer – Insurers’ Guarantee Fund – liability – Workers Compensation Act 1987 (NSW), s 227 COSTS – costs order of Supreme Court – can it be binding in a different court – by whom are the costs of the restoration of a deregistered company to the Company Register payable
COSTS – amendment of pleading – identity of employer and period of employment – costs thrown away by reason of the amendment – costs for notice of motion
PROCEDURE – application for proceedings to be dismissed for want of jurisdiction – whether the proceedings are an abuse of the process of the court - whether the proceedings are so obviously untenable that they cannot possibly succeed JURISDICTION – whether the Tribunal has jurisdiction to hear the plaintiff’s claim – whether the plaintiff suffers from a dust-related condition – whether silica-related lymphadenopathy is a dust-related condition – whether silica-related lymphadenopathy is a pathological condition of the lungs that is attributable to dust
COSTS – indemnity costs – ordinary costs – discretion to award costs – power to impose personal costs orders – notice to be given APPEALS – stay awarded of primary judgment – whether a stay should be sought from the appellate court – monies becoming non-recoverable
DUST DISEASES — Contribution — cross claim — contributions assessment - Just and equitable contribution – relative blameworthiness NEGLIGENCE – Duty of care – Employer – User of dangerous substances – Asbestos TORTS – Joint and several liability – Contribution – Apportionment of Liability – Liability for “same damage” – Contraction of mesothelioma
DUST DISEASES TRIBUNAL – causation – balance of probabilities – negligence – deceased was a smoker – lung cancer – contributory negligence – use of epidemiological evidence – effect of smoking and exposure to asbestos fibres – impossible to determine the cause through medical examination – whether epidemiological evidence established a cause on the balance of probabilities ADMINISTRATIVE LAW – rules of evidence – examination and cross-examination – rule in Browne v Dunn – whether Tribunal erred in failing to have regard to the circumstances that evidence not accepted by Tribunal went unchallenged by cross-examination
STAUTORY INTERPRETATION – whether the Dust Diseases Tribunal of New South Wales has jurisdiction to order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) that the Australian Securities Investments Commission reinstate the registration of a deregistered corporation– the difference between a “Court” and a “court” under s 58AA of the Corporations Act – operation of ss 10(6) and 10(7) of the Dust Diseases Tribunal Act 1989 (NSW)
CIVIL PROCEDURE – parties – proper party – whether the Authority of the Insurers’ Guarantee Fund a proper party to the proceedings STATUTORY INTERPRETATION – deregistered company – literal meaning – Workers Compensation Act 1987 (NSW), s 236 – entitlement to payment WORKERS COMPENSATION – insurance – Insurers’ Guarantee Fund- liability – Workers Compensation Act 1987 (NSW), s 236(2) – whether plaintiff entitled to proceed directly against the Authority – precondition to liability
PROCEDURE — DUST DISEASES — discovery — facts in issue — whether discovery should be confined to documents relating to period of alleged asbestos exposure — whether documents created outside exposure period would have probative value or be relevant to a key fact in issue — discovery necessary to ensure that outstanding issues in dispute are properly tried
PROCEDURE − case arising out of asbestos exposure during employment many decades ago − stale Statement of Claim − whether court should exercise its power to extend time for service − legal representatives experienced difficulty in ascertaining the relevant workers compensation insurer due to passage of time − no deliberate decision by plaintiff or legal representatives to delay service of originating process − whether there would be prejudice to the estate of the deceased plaintiff if the extension of time is not granted − whether there would be prejudice to the defendant if application is granted
PROCEDURE – plaintiff suffering from malignant pleural mesothelioma and malignant peritoneal mesothelioma – several complex liability and causation issues – large claim for past and future economic loss – mediation delayed with no prospect of it being held by parties – whether proceedings should be removed from the Claims Resolution Process pursuant to cl 20(1)(c) of the Dust Diseases Tribunal Regulation 2019 (NSW)
STATUTORY INTERPRETATION – whether there was a liability of the Commonwealth or a Commonwealth authority to the plaintiff when claim made – Asbestos Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth), ss 3, 5 STATUTORY INTERPRETATION – whether the ACT Electricity Authority was a Commonwealth authority – whether the ACT Electricity & Water Authority was a Commonwealth authority – Asbestos Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth), s 3 STATUTORY INTERPRETATION – whether potential or contingent liability of the Commonwealth or a Commonwealth authority was transferred – Australian Capital Territory Electricity Supply Act 1962 (Cth), ss 5, 6, 17, 18, 19, 20, 23, 35 – Electricity and Water Ordinance 1988 (ACT) ss 4, 5, 31, 84, 90 – Electricity and Water (Corporatisation) (Consequential Provisions) Act 1995 (ACT) s 4
DUST DISEASES TRIBUNAL- date of employment – exposure to asbestos – damages – choice of law between New South Wales and Western Australia – general damages – damages for non-pecuniary loss – tariff for mesothelioma – gratuitous attendant care services – loss of capacity to provide gratuitous domestic services to a grandchild with substantial needs
DUST DISEASES TRIBUNAL – cross claim – contribution to damages – plaintiff’s claim subject to Claims resolution Process – claim settled and paid by defendant – order for payment pursuant to Division 6
DUST DISEASES – damages – assessment of damages on common law principles - asbestosis and asbestos-related pleural disease (ARPD) – general damages – interest on general damages – damages for gratuitous services – future out-of-pocket expenses
CAUSATION – apportionment between asbestos supplier and employer – relative causal potency – relative blameworthiness EVIDENCE– parties must call evidence or rely upon s 25(3) and s 25B of the Dust Diseases Tribunal Act 1989 (NSW) – Tribunal cannot take into account knowledge gained from hearing other cases
CONTRIBUTION – whether defendant tortfeasor can obtain leave to sue the insurer of a concurrent tortfeasor which has been deregistered - Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss 3, 4, 5 CONTRIBUTION – whether a claim for contribution is a claim for damages - Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5
DUST DISEASES – asbestos CIVIL PROCEDURE – cross-claims – against third party – for contribution or indemnity OTHER – apportionment – guarantor of loan – cross-claim triggering default – whether discretion to make order under Civil Procedure Act 2005 s 90
DUST DISEASES – exposure – mesothelioma – asbestos – illness DAMAGES – general – interest – out of pocket expenses – gratuitous care – need for care – domestic services – loss of expectation of life – future loss of superannuation entitlements – maintenance deductions OTHER – construction of storage shed – asbestos cement fibro planks – home renovations
EVIDENCE – Notice to produce – application for leave to inspect – resisted on grounds of client legal privilege and lack of legitimate forensic purpose EVIDENCE – whether judge should inspect documents produced to determine privilege claim – whether party claiming privilege has acted inconsistently with the production of the documents EVIDENCE – leave granted to inspect costs agreements where plaintiff claimed against a tortfeasor for contribution towards reasonable defence costs – plaintiff had acted inconsistently in seeking to tender tax invoices but claiming privilege over costs agreements which founded the tax invoices EVIDENCE – whether there was legitimate forensic purpose – issues to be discerned from pleadings – no such purpose in seeking inspection of confidential legal advices where defendant had not put reasonableness of settlement in dispute in Defence
COSTS – Offer Of Compromise – plaintiff obtained a judgment no less favourable than the terms of the offer – entitlement to indemnity costs – whether court should otherwise order – exceptional case - substantial injustice – order made for indemnity costs after date of Offer Of Compromise
DUST DISEASES – exposure to asbestos – need for evidence of product identification DAMAGES – general damages – loss of expectation of life – gratuitous assistance DAMAGES – loss of capacity to provide gratuitous domestic services to a dependant – s 15B Civil Liability Act 2002 – whether such damages available in estate claim – whether such damages precluded as analogous to damages for loss of earning capacity – whether estate precluded from recovery as claimant had no capacity after death – compensatory principle DAMAGES - loss of capacity to provide gratuitous domestic services to a dependant – s 15B Civil Liability Act 2002 – life expectancy of dependant – whether services provided by claimant at time liability arose set an upper limit for such damages – whether need for the services is reasonable in all the circumstances – discount for vicissitudes
DUST DISEASES – damages – mesothelioma – factual background – vicissitudes – personal maintenance during lost years PROFESSIONAL NEGLIGENCE – loss of opportunity – pure economic loss – breaches of contract – breach of duty of care
CONTRIBUTION – cross-claimant sued incorrect cross-defendant – leave granted to discontinue – costs – both cross-claimant and cross-defendant labouring under same mistaken belief about identity of employer - power to otherwise order – Rules 12.1, 42.19 Uniform Civil Procedure Rules 2005 CONTRIBUTION – additional of cross-defendant – not appropriate to substitute added cross-defendant for cross-defendant wrongly sued - Rules 6.23, 6.24, 6.29 Uniform Civil Procedure Rules 2005
COSTS – Calderbank offer – whether sufficient time allowed for consideration, having regard to time when crucial evidence was served – whether rejection of the offer was unreasonable given that there was a complex and novel legal issue in the case.
COSTS – identification of the event – only issue determined by the Tribunal was a separate legal issue identified by the parties – case appropriate for an order that the unsuccessful party (the plaintiff) on that separate issue pay the costs of the successful party (the second defendant) attributable to that issue.
CHOICE OF LAW – choice of law rules at common law are part of the law of New South Wales – in respect of inter-State torts, the governing law is the lex loci delicti – questions of the kinds of damage and the amount of damages are substantive issues governed by the lex loci delicti DAMAGES – assessment under New South Wales law – general damages – statutory damages for loss of capacity to provide gratuitous domestic services to a dependant DAMAGES – assessment under Northern Territory law – general damages to include damages for loss of capacity to provide gratuitous domestic services to a dependant DAMAGES – mesothelioma is an indivisible injury – defendant liable for all of the damages assessed pursuant to choice of law rule
DUST DISEASES – damages – mesothelioma – whether lump sum benefit should be deducted from damages – Accident Compensation Act 2001 (NZ) DAMAGES – double compensation – injured party should receive compensation which will put that party in the same position he or she would have been in had the tort not been committed – financial source of the benefit – whether benefit must be repaid – nature of the benefit
Dust diseases – mesothelioma – s 15B – factual background – past care – future care – reasonable need - two carers and two dependants – passive care – active care – principal carer - vicissitudes
DUST DISEASES – damages – loss of Centrelink pension – loss of superannuation pension – whether to take into account reversionary benefit to plaintiff’s spouse
COSTS – application by cross-claimant for Bullock order against a cross-defendant – principles governing entitlement to Bullock orders – cross-claimant must show that it was reasonable to sue the successful cross-defendant – cross-claimant must show that the conduct of the unsuccessful cross-defendant makes it fair to impose liability on it for costs of the successful cross-defendant – whether there was anything said or done by the unsuccessful cross-defendant which led the cross-claimant to sue the successful cross-defendant.
DUST DISEASES – contribution between tortfeasors – whether plaintiff exposed to products of two asbestos suppliers – relative blameworthiness equal – causal potency depends of level of exposure to each supplier’s products. DAMAGES – contribution – joint tortfeasors – considerations relevant to responsibility of each tortfeasor for damage – amount of contribution that is just and equitable.
DUST DISEASES – claim by worker against employer for damages for mesothelioma – claim by employer against workers compensation insurer for indemnity – multiple sequential insurers DUST DISEASES – s 151AB Workers Compensation Act 1987 – worker last employed by the employer in employment to the nature of which the disease was due – kind of work being done – worker exposed to real risk of disease – not necessary to prove causation in fact DUST DISEASES – dumping of James Hardie asbestos waste between 1965 and 1975 at third party site – dust blowing onto workers at third party site for years afterwards – risk of contraction of mesothelioma
COSTS – application for variation of primary costs order – whether defendant should pay plaintiff’s costs of evidence by a forensic accountant – some assumptions made by the accountant not established by evidence – some conclusions of accountant not accepted
COSTS – Departure from ordinary rule that costs follow the event – Where successful party fails on discrete issue – Whether issue on which successful plaintiff failed was clearly severable or clearly dominant – Whether entitled to costs of the action.
DUST DISEASES - contribution - monies paid under compulsion after a Contributions Assessment determination – whether payee should pay interest upon principal amount when payer obtains a better result – restitution
DUST DISEASES – plaintiff- claims resolution process – mesothelioma - asbestos PRCEDURAL – notice of motion – setting aside of consent judgment – costs – cost of mediation – regulation – power of mediator to excuse parties from attendance at mediation – contributions assessment – determination OTHER – successful party – definition – power to award costs – appropriate order
Dust Diseases – cross claim – mesothelioma – statutory compensation paid to plaintiff by WorkCover Queensland – agreement between WorkCover Queensland and plaintiff that in proceedings against Amaca Pty Limited, plaintiff may retain 20% of proceeds if proceeds less than compensation received – proceedings by plaintiff against Amaca Pty Limited – plaintiff’s proceedings settled for less than compensation received – whether the agreement resulted in plaintiff receiving double compensation – if so, whether Amaca Pty Limited and cross defendants were not “liable in respect of (the) damage” suffered by the plaintiff within the meaning of s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) such that Amaca Pty Limited could not claim contribution from the cross defendants
DUST DISEASES – mesothelioma – illness – asbestos – exposure – extent of exposure – dust – chrysotile asbestos – amosite asbestos – asbestos millboard – crocidolite – pleural effusion – pleural thickening TORT LAW– causation – foreseeability – risk – knowledge of employer – duty of care – period DAMAGES – general – “Griffiths v Kerkemeyer” – interest – out of pocket expenses – gratuitous care – provision of care – need for care – domestic services – loss of expectation of life OTHER – asbestos block – asbestos gloves – jeweller – smelting – period of employment
INTERPRETATION OF RULINGS IN PRIMARY JUDGMENT – whether percentages of liability apply to the gross liability of the State to each underlying plaintiff or the net liability of the State after recovery from other sources INTEREST – whether the usual approach to interest should be adopted COSTS – contributions assessment determination – Dust Diseases Tribunal Regulation 2013 cl 51(1), 56, 57 - whether cl 56(3) applies – whether Amaca and CSR materially improved their positions – Civil Procedure Act 2005 s 98 – whether costs should follow the event – what is the event
DUST DISEASES TRIBUNAL – wife claiming damages from husband’s former employer – payment of costs for future medical expenses – whether plaintiff can file amended Statement of Claim seeking indemnity in relation to future medical expenses – once and for all rule
Dust diseases; mesothelioma; whether hierarchical approach, giving priority to documents, to resolution of factual issues dictated by authority; approach to the assessment of witnesses; whether plaintiff was exposed to asbestos; whether evidence may given by non-expert identifying asbestos; whether injury to plaintiff employee foreseeable; state of knowledge, actual and constructive, in 1979 of defendant concerning health risks associated with exposure to asbestos; identity of person within corporate defendant who had actual knowledge of health risks from exposure to asbestos and whether defendant could dictate identity of that person; whether on foreseeability of injury defendant could rely on NHMRC standard to the exclusion of all other learning; whether defendant could rely on advice that might have been given by a reasonably competent occupational hygienist in 1979; whether defendant breached duty of care to plaintiff; whether on breach of duty defendant could rely on NHMRC standard; whether reasonable practical alternatives were available in blast furnace; whether plaintiff's injury caused by defendant's negligence (consideration of the cumulative effect mechanism of causation of mesothelioma); whether defendant in breach of s41 of Factories, Shops and Industries Act 1962; on damages, whether plaintiff being in remission Malec v Hutton discount should be made for possibility that mesothelioma may not recur; whether plaintiff's damages should exclude aggravation or exacerbation of his depressive condition resulting from the litigation.
DUST DISEASES - mesothelioma - illness DAMAGES - general - "Griffiths v Kerkemeyer" - interest ECONOMIC LOSS - consideration - factors - proposed age of retirement - assessment - distinction - loss of earnings - intention of plaintiff OTHER - business interests - background of plaintiff
PROCUDRE - cross claim - notice of motion seeking to appoint designated insurer in these proceedings - tribunal "functus officio" - notice of motion not appropriate way to appoint designated insurer - no dispute as to relevant insurer
DUST DISEASES TRIBUNAL - estate claim - mesothelioma - extent of exposure to asbestos - whether the deceased plaintiff was exposed to asbestos - whether exposure was forseeable - whether defendant had knowledge of exposure - breech of common law duty - deductions of Dust Diseases Board payments CROSS-CLAIMS - whether the employer as a contractor and the State of New South Wales owed the deceased a duty of care - whether the cross-defendant knew or ought to have known about the dangers of exposure to asbestos dust - policies of insurance - vicarious liability of the State of New South Wales
Dust Diseases - mesothelioma - employment history - exposure - knowledge of presence of asbestos by employer Liability - tortfeasor - duty of care - foreseeability - injury - breach Practice and Procedure - proceedings following settlement with plaintiff - delay - evidence
DUST DISEASE - mesothelioma - illness - INJURY - GRATUITOUS CARE - provision of - need - need is reasonable in all the circumstances - dependents - domestic services - definition of
Dust diseases; mesothelioma; death of original plaintiff; by consent, original plaintiff's sister substituted as plaintiff; estate action and compensation to relatives action brought by original plaintiff's sister; sister named as executor and trustee in original plaintiff's Will; probate not sought as estate's debts exceed its assets; application by defendant to strike out or stay proceedings in absence of grant of probate or administration; construction and application of UCPR Pt 6 r 6.30; application dismissed.
Dust diseases; mesothelioma; no direct evidence of exposure to asbestos; whether case could be established on the basis of inferences from circumstantial evidence
DUST DISEASES - asbestos - mesothelioma - exposure during course of employment INSURANCE - indemnity - breach of insurance contract - deed of release - claim of prejudice by insurer - failure to notify insurer of claim against insured - breach of term of contract - existence of insurance contract PROFESSIONAL NEGLIGENCE - same solicitor and counsel appearing for both defendants in substantive proceedings - prejudicial conduct
DUST DISEASES - asbestos - mesothelioma - dust CROSS-CLAIM - evidence of supply of products containing asbestos - exposure during employment with cross-claimant EVIDENCE - use of expert opinion to establish identification of products containing asbestos
Interest - part payment - contribution - indemnity - costs - assessment - interim payment of interest - discretion as to payment - no dispute as to calculation
Dust Diseases Tribunal; asbestos or interstitial pulmonary fibrosis; extent of exposure to asbestos; indicators for asbestosis or interstitial pulmonary fibrosis; divisibility of asbestosis; reduction of damages for "empty chair" exposure
Dust Diseases, Claims Resolution Process, urgent case removed from CRP, whether Divisions 4 and 5 of Part 4 should apply, whether statement of claim should be struck out
Dust Diseases Tribunal; notice of motion; claim for nervous shock; whether within the jurisdiction of the Tribunal; whether within the claims resolution process; whether Form 1 particulars should be struck out on the basis that nervous shock is not an asbestos-related condition
Dust diseases; mesothelioma; plaintiff settles with defendant, defendant recovers 50% from cross defendant, cross defendant later files statement of claim seeking contribution from Amaca and Amaca then joins CSR; contributions assessment involving cross defendant, Amaca and CSR; cross defendant seeks order for payment from CSR; CSR opposes as no issue joined between cross defendant and CSR; cross defendant entitled to order
DUST DISEASES TRIBUNAL - Mesothelioma - Environmental and domestic exposure to asbestos dust and fibre - Plaintiff as a child inhaled asbestos tailings dust in streets, back yard, own household and from father's work clothes - Relationship between defendants - Duty of care of both defendants towards workforce - Whether duty of care extends to workers' families and other residents - Whether duty of care owed to plaintiff - Foreseeability of risk - Knowledge of dangers of exposing residents to blue asbestos - Diseases of like class and character - Breach of duty - Failure to warn child's mother of danger of exposure to asbestos
DUST DISEASES TRIBUNAL - Application to appoint designated insurer - Defendant holding two policies of insurance - Neither insurer agrees to indemnify defendant - Plaintiff continued employment after second insurer off risk - Statement of claim amended to claim damages in respect of a period concluding while insurer on risk - Insurer then on risk appointed designated insurer
DUST DISEASES TRIBUNAL - Application for costs - Statement of Claim issued by plaintiff - Defendant issues cross-claim - Contribution determination - Cross-defendant accepts determination of Contributions Assessor - Plaintiff settles action with defendant - Order made that cross-defendant pay its assessed proportion of damages to plaintiff - Whether cross-claimant entitled to costs against cross-defendant in absence of judgment - Costs not awarded
Dust diseases; cross claim on insurance policy; application for extension of time to file cross claim made after plaintiff's case proceeded to judgment; wither power in Tribunal to extend time; whether Tribunal ought to extend time
DUST DISEASES TRIBUNAL - Asbestos related pleural disease - provisional damages - mesothelioma - further damages - assessment of damages - principle to be applied
DUST DISEASES TRIBUNAL :- Cross-Claim by defendant - contribution determination - Cross-Defendant fails to comply with regulation - judgment entered on Cross-Claim in accordance with contribution determination - application to set aside or stay judgment - judgment stayed on terms
DUST DISEASES TRIBUNAL :- summons for order to inspect property and take sample of material - identity of manufacturer not known - efforts to identify manufacturer unsuccessful - order for inspection of property and taking samples made
DUST DISEASES TRIBUNAL :- dust diseases; cross claims; Contributions Assessment; one cross-defendant accepted Contributions Assessment as to percentage, but did not accept quantum of plaintiff's settlement; whether Tribunal may make order for payment against that cross-defendant for its percentage of plaintiff's settlement
DUST DISEASES TRIBUNAL - Negligence :- interpretation of insurance policies - exercise of reasonable care that only competent employees are employed - attribution of knowledge to a company
DUST DISEASES TRIBUNAL - Proceedings :- earlier proceedings brought by injured person against insured and another defendant; earlier proceedings settled with insured subject to a verdict and the other defendant obtaining the verdict; claim by insured on policy; insurer resists claim on several grounds set out in its defence; Application to strike out parts of defence; two contentious grounds of defence - (1) defence alleged counsel in earlier proceedings failed to elicit evidence from the injured person that would have assisted insured in later cross-claims. This ground struck out on the basis that counsel had no duty to elicit such evidence, (2) defence also alleged that solicitors for the insured, being privy to insured’s file and instructions, though they ceased to act for the insured, continued to act for the other defendant securing an advantageous outcome for it to the detriment of the insured; whether solicitors were in a position of conflict; held that they were on a prima facie basis; this ground of defence held to be good
DUST DISEASES TRIBUNAL :- PROCEDURE - judgments and orders - amending, varying and setting aside - cross-claim - contribution determination made - judgment entered in accordance with determination - whether contribution determination should be varied - whether judgment in cross-claim should be set aside
DUST DISEASES TRIBUNAL :- APPEAL - remitted issue - claim for medical expenses - whether plaintiff suffers asbestos related pleural disease and asbestosis - finding by Dust Diseases Board plaintiff has asbestos related pleural disease - claim for medical expenses for asbestosis - whether trial judge found both asbestos related pleural disease and asbestosis
DUST DISEASES TRIBUNAL :- claim removed from Claims Resolution Process - mediation - whether provisions on apportionment should apply subject to modification
DUST DISEASES TRIBUNAL :- words and phrases - "filed in conjunction with" application to remove claim from claims resolution process on ground of urgency - whether application to remove filed in conjunction with statement of claim - whether Tribunal has jurisdiction to order removal - whether clause 22(1)(a) of the Dust Diseases Tribunal regulation operates independently of clause 24(7)
Claims Resolution Process - DUST DISEASES TRIBUNAL :- Cross claim Whether reg52(1) of the Dust Diseases Tribunal Regulation 2007 enables a cross claimant to obtain judgment against a cross defendant in accordance with a determination as to apportionment.
DUST DISEASES TRIBUNAL :- application to remove claim from claims resolution process - whether application to remove filed in conjunction with statement of claim
DUST DISEASES TRIBUNAL - Proceedings :- Whether s6(9) of the Law Reform (Miscellaneous Provisions) Act 1946 permits a plaintiff to proceed directly against the insurer of a deregistered corporation without restoring the defunct company to the register for the purpose of suit.
DUST DISEASES TRIBUNAL :- Dust Diseases Tribunal Act section 25B - application to relitigate issue of a general nature determined in earlier proceedings - previously determined that PMF an indivisable injury - whether new evidence available that PMF is a divisable injury - whether conduct of earlier proceedings warrants granting of leave - other relevant matters - delay in bringing application - restructure of plaintiff's case - additional costs and delay - rejection of offers of settlement - leave to relitigate refused
DUST DISEASES TRIBUNAL :- application to remove claim from claims resolution process - failure by defendant to file reply - reply filed three days after application to remove - no substantial prejudice or substantial delay - claim not removed
DUST DISEASES TRIBUNAL :- dust diseases assessment of damages combined obstructive and restrictive deficits use of total lung capacity testing to assess restrictive deficit general damages claim for care and assistance out-of-pocket expenses claimed, but not submitted to Dust Diseases Board for payment whether plaintiff's damages should be reduced to 57.5% of damages assessed to conform with assessment made by Contributions Assessor against defendant
DUST DISEASES TRIBUNAL - Proceedings :- Abuse of process – Application to join putative defendant where, due to the elapse of time, no useful evidence is available upon which to conduct a fair trial against that defendant.
DUST DISEASES TRIBUNAL :- partnership formed to manufacture asbestos products - plaintiff exposed to asbestos from partnership product - partnership dissolved by deed - plaintiff contracts mesothelioma - plaintiff awarded damages against user of partnership product - liability of partners to contribute to each other terminated by deed of dissolution - whether Tribunal has equitable jurisdiction - whether Tribunal has jurisdiction under Partnership Act - whether Partnership Act conferred right to contribution - whether partner liable to contribute as tortfeasor
Claims Resolution Process - DUST DISEASES TRIBUNAL :- CRP contributions assessment whether defendants and cross defendants entitled to judgment in accordance with contributions assessment nature of such judgment whether in this case parties debarred from obtaining judgment by their conduct including waiver and estoppel
DUST DISEASES TRIBUNAL :- plaintiff an employee of defendant exposed to smoke from pyrolysed oil in cabin of aircraft history of oil smells in cabin of aircraft smoke resulting from fracturing of seal in auxilliary power unit of aircraft whether proceedings barred by s151D of Workers Compensation Act whether Tribunal had jurisdiction to hear proceedings whether plaintiff exposed to dust whether plaintiff has or had a pathological condition of the lungs whether plaintiff's condition attributable to dust whether plaintiff's injury foreseeable reasonableness of response to foreseeable injury damages for non-economic loss, economic loss, out-of-pocket expenses, domestic services
DUST DISEASES TRIBUNAL :- compensation to relatives Wrongs Act (Victoria) loss of services on death of deceased whether dependants to be compensated for loss of tangible benefits provided by the deceased whether loss to be measured by commercial value of time spent by deceased in undertaking services or by commercial cost of replacing his labour or by commercial value of tangible benefits provided by the deceased services included gratuitous labour to a business owned and operated by a dependant and non-dependant whether value of loss of that gratuitous labour to be compensated on the basis of the loss to the business or the loss to the dependant
Claims Resolution Process - DUST DISEASES TRIBUNAL :- CRP contributions assessment whether defendants and cross defendants entitled to judgment in accordance with contributions assessment nature of such judgment whether in this case parties debarred from obtaining judgment by their conduct including waiver and estoppel
DUST DISEASES TRIBUNAL :- Dust Diseases Tribunal Regulation - claim removed from Claims Resolution Process - whether compulsory mediation and contributions assessment should be ordered - question whether first defendant entitled to indemnify - second defendant de-registered - mediation and contributions assessment not ordered
Dust Diseases Tribunal :- Notice of Motion - Application to appoint designated insurer - Criteria for appointment - Not necessary to find designated insurer on risk when worker last employed in employment to the nature of which disease due - Inquiry concerns fact not nature of employment
Dust Diseases Tribunal :- Ruling; employers' indemnity insurance; statutory minimum common law cover $40,000 at the relevant time; admission as to existence of policy; no admission as to the extent of common law cover; no evidence of extent of common law cover; whether plaintiff or insurer has onus to establish extent of common law cover
DUST DISEASES TRIBUNAL :- determination of an issue of a general nature; what constitutes - whether determination of an issue of a general nature made in earlier proceedings
DUST DISEASES TRIBUNAL :- mesothelioma; plaintiff 74 years old at time of onset of symptoms; onset of symptoms mid-2006; three hospitalisations with aspirations of fluid and other procedures; chemotherapy with reasonable response; otherwise low level of symptoms to date and likely so for next 12 months; life expectancy a further 18 months approximately; plaintiff's condition will deteriorate; inceasing need for care with last three months likely to require 24 hour care; general damages $220,000; plaintiff a sole trader working exclusively for one person at time of illness; whether plaintiff had retired for reasons unrelated to his illness; found not to have done so and likely to have worked until 80 years of age; plaintiff awarded damages for loss of earning capacity, both past and future.
:- Whether claim for contribution, by one tort-feasor against another, in proceedings commenced by statement of claim after 1 July 2005 come under the Tribunal's claims resolution process (CRP).
DUST DISEASES TRIBUNAL :- Ruling; discovery; application by BHP for the Commonwealth to provide discovery of certain categories of documents; application resisted by the Commonwealth; Part 23 Rule 5 of Supreme Court Rules requiring special reasons; whether discovery should be refused for discretionary considerations including lapse of time; resort to other processes to obtain documents; order being sought close to a hearing date that was to be vacated; lack of protest for a long time as to the adequacy of production; extensive delay and massive costs; documents being in Commonwealth Archives and allegedly equally available to BHP and Commonwealth; BHP having copies of the documents.
DUST DISEASES TRIBUNAL :- mesothelioma - plaintiff exposed to asbestos from husband's work clothes - suppliers admit liability - husband worked at remaining defendant's refinery - three relevant periods - first on construction of refinery - then employed by subcontractor to contractor to defendant - second on maintence work - then employed by contractor to defendant - third as maintainence worker - then employed by defendant - whether injury to plaintiff foreseeable - whether duty of care owed by defendant during relevant periods - whether Asbestos Rule (Qld) created duty of care to plaintiff - whether exposure in each period causatitive of mesothelioma - Dust Diseases Tribunal Act Ss 25(3), 25 B - whether substantive or proceedural
DUST DISEASES TRIBUNAL :- Costs - Defendant succeeds on one issue - Whether other defendants should pay costs of defendant on that issue - Contributions determination - Offer by defendant to contribute determined proportion - Whether defendant entitled to costs from other defendants
Dust Diseases Tribunal :- application to proceed against insurers under s.6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 whether leave should be refused because s.151AB of the Workers Compensation Act identified an appropriate insurer whether s.151AB applies where there is no insurer on risk when plaintiff last employed in employment to which the nature of his disease is due issue not decided on an interlocutory claim whether exposure of a kind to satisfy test under s.151AB not determined on an interlocutory basis
DUST DISEASES TRIBUNAL :- mesothelioma plaintiff dies general damages CLA s.15B damages construction of s.15B grandmother providing voluntary care and supervision of her grandchildren whether damages available when care and supervision are undertaken while the parents are both at work, when one or other of them is at home, when they socialise whether the grandchildren were "wholly or partly dependent" on grandmother whether the grandmother's services were provided to the grandchildren or to the parents whether the services were gratuitous whether the services were reasonable whether the parents received benefits from the services so that no damages were payable under the section method of assessment the case for law reform in terminally ill cases to allow cases to be case-managed by judges from the filing of the statement of claim
:- Dust Diseases Tribunal Regulation 2007 - Cross-claim - Cross-defendant not sued by plaintiff - Contributions Assessment - Whether Regulation entitles plaintiff to judgment against cross-defendant - Regulation does not entitle plaintiff to judgment against cross-defendant - Dust Diseases Tribunal Act - section 32H authorises regulations with respect to apportionment of liability between defendants and cross-defendants - does not authorise regulations imposing liability on person not sued by plaintiff
Dust Diseases Tribunal :- Offer of compromise - Terms not specified - Entry of judgment resisted by offeror - Judgment entered in accordance with offer of compromise
DUST DISEASES TRIBUNAL :- Dust Diseases Tribunal Regulation - delay in prosecuting plaintiff's claim - claim subject to Claims Resolution Process - no current claim proposal provided by plaintiff - application by defendant to remove claim from Claims Resolution Process - application by defendant to strike out for want of prosecution - cl 16(2) - plaintiff not ready to proceed - application refused - cl 19 removes capacity of Tribunal to regulate proceedings when claims subject to Claims Resolution Process
DUST DISEASES TRIBUNAL :- Costs - Indemnity costs - Mediation - Issues agreed before mediator - Defences filed - Further issues raised - Liability admitted by second defendant at hearing - Whether defendants should pay indemnity costs - Offer of compromise - Failure to comply with Dust Diseases Tribunal Regulation - Whether failure prevents making order for indemnity costs - Whether Dust Diseases Tribunal Regulation ousts Civil Proceedure Rules on indemnity costs - Whether order for indemnity costs may be made only in accordance with Dust Diseases Tribunal Regulation - Plaintiff failed on one issue - Whether defendant should have costs of that issue - whether plaintiff should bear these costs - Whether plaintiff should have costs of solicitor travelling from Brisbane and accommodation in Sydney - Whether plaintiff should have costs of copying and providing material to defendant
DUST DISEASES TRIBUNAL :- Costs - Contributions determination - Offer by one defendant to contribute determined proportion - Whether defendant entitled to costs from other defendants
DUST DISEASES TRIBUNAL - Proceedings :- mesothelioma; rapidly deteriorating condition, including substantial loss of weight; reasonable, not life style preference, is the test for recovery of damages for loss of services; issue as to when the plaintiff first needed personal care and domestice assistance and the extent of care required; s15B Civil Liability Act damages not allowed as threshold not satisfied and no evidence the plaintiff's wife unable to perform the services; application for compensation to the Dust Diseases Board, outcome not yet notified, leave to apply for a reconsideration.
DUST DISEASES TRIBUNAL :- mesothelioma; deceased exposed to asbestos in course of employment; employer negligent; verdict for plaintiff against deceased's employer; verdict also sought against employer on basis of contributions assessment and clause 52 of Dust Diseases Regulation 2007; held that the Regulation did not permit the plaintiff to obtain a verdict on this basis; assessment of damages; agreed damages and interest; loss of expectation of life; gratuitous care; test for recovery of damages for gratuitous care is not the supply of the care but the need for the care; s15B damages; test is not the supply of services but whether the dependant was not capable of performing the services and whether the need for the services to be provided is reasonable in all the circumstances.
Dust Diseases Tribunal :- Cross Claim - Partnership - Plaintiff alleged exposure to asbestos from partnership products - Partner defends plaintiff's action - Verdict for partner - Claim by partner for contribution by other partner to costs of defending plaintiff's action - Whether Partnership Deed gives rise to liability to contribute to costs - Partnership dissolved - Whether Deed of Dissolution releases other partner from liability to contribute - Whether absence of good faith in defence of plaintiff's action - Whether costs unreasonably incurred - Whether Tribunal has jurisdiction to hear cross claim - Whether payment of costs under Policy of Insurance to be taken into account