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
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
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 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 - 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
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 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 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 Leave to issue cross-claims cross-claim issued after death of plaintiff cross-defendant unable to cross-examine plaintiff application to rescind order granting leave to issue cross-claim Dust Diseases Tribunal Act s 13(6) power to be exercised only in exceptional circumstances or where decision manifestly wrong application refused Dust diseases leave to issue cross-claim cross-claim issued after plaintiff's death cross-defendant unable to cross-examine plaintiff application to set aside order granting leave to issue cross-claims Dust Diseases Tribunal Act s 11(4) cross-claim ancillary matter within jurisdiction Supreme Court Rules Pt 40r1 Pt40r9 discretionary nature of relief sought application refused
Dust Diseases Tribunal :- dust diseases cross claim just and equitable contribution relative blameworthiness whether cross defendant had actual knowledge of dangers of asbestos onus of proof in relationship between cross defendant and parent company inference of actual knoweldge of dangers of asbestos causal potency and control by parties over plaintiff's daily working conditions relevance of standard presumptions in determining contribution
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 :- Cross claim Contribution Partnership deed Partnership dissolved Deed of Dissolution - whether effective to grant release from obligation to pay damages Exposure to partnership products all exposure causative of mesothelioma mesothelioma - indivisable injury
:- Meaning "unfairly prejudicial"in s 135(a) Evidence Act (NSW) 1995 Apportionment Section 6 and 7 Queensland Law Reform Act 1995 Whether extent of actual knowledge is relevant in apportioning liability between joint tort feasors factors to be considered in apportioning liability between joint tort feasors whether meaning of supply in toxic tort is confined to cases of direct supply
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 :- application by defendant to reconsider matters previously dealt with - plaintiff recovers damages in action by estate of her late husband - plaintiff also recovers damages on action under Wrongs Act 1936 (SA) - defendant submits damages in Wrongs Act action should be reduced taking into account benifit accruing to her in estate action - no evidence of value of estate - onus on defendant to establish circumstances warranting reduction of damages - damages not reduced
Dust Diseases Tribunal :- Request to employer to produce employment records - Employer fails to produce records - Pre-trial summons seeking records - Records produced at court - Applicant awarded costs.
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.
:- Application for adjournment - case part heard - damages only issue - application for special leave to Hight Court Of Australia in similar case - leave application irrelevant to current proceedings - adjournment refused
:- Dust diseases mesothelioma liability admitted assessment of damages tort committed in Queensland evidence that damages awarded in Queensland less than in New South Wales for comparable loss assessment of damages a matter of common law one common law for Australia damages assessed without reference to Queensland cases
:- 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
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 :- 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 :- 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
:- Cross-claim - mesothelioma - plaintiff sued two defendants - products of each had a causative role - action settled - contribution by each defendant in different amounts - cross-claim against employer by one defendant only - no evidence of extent of causal potency of products of each defendant - impossible to determine contribution to be made by cross-defendant - verdict for cross-defendant
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
:- Applicaiton for adjournment plaintiff with ARPD suffering slight disability risk of another dust related condition application to place case in not ready list while condition monitored applications refused
Dust Diseases Tribunal :- Proceedings for damages Plaintiff claimed negligent exposure to fumes chemicals and dust while employed by Airline A during 9 year period Airline A admitted employment Both parties later learnt plaintiff worked for Airline E for first 3 year period Application to amend statement of claim to join Airline E and application to amended defence to deny employment for first 3 year period Whether amendment to join Airline E operates from date of joinder or from commencement of proceedings Amendment to statement of claim operates as substitution of defendant's name rather than joinder of new defendant Amendments operated from commencement of proceedings
Miscellaneous Matters :- Schedule 1 Workers Compensation (Dust Diseases) Act 1942 Farmer's Lung Pathological condition of the lungs caused by dust that may also cause a disease specified in Schedule 1.
:- Dust Diseases - mesothelioma - indivisible injury - all asbestos exposure causative of disease - breach of duty by manufacturers - duty of care of retailer of goods containing asbestos - actual or contructive knowledge of dangers of exposure - duty to protect end user - duty to warn or withdraw products from sale - breach of duty.