Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281

Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281

The compensation paid to Mrs Dionysatos under the Dust Diseases Act did not represent the same loss as the s 15B damages claimable by the Estate. Such compensation was not to be deducted from the Estate's award under s 15B. Further, s 12D of the Tribunal Act, if engaged, would prohibit such a deduction. The operation of s 15B(6) did not preclude the award of s 15B damages as Mrs Dionysatos had not 'recovered damages' in respect of loss of capacity for gratuitous domestic services, and the compensation paid was not damages for the same 'loss of capacity.' The assessment by the Tribunal was further in error for failing to consider the extent to which Mr Dionysatos and other family members...

Parties
Appellant and Cross Respondent: Gerisamos Dionisatos (for the Estate of the late George Dionysatos); First Respondent and Cross Appellant: Acrow Formwork & Scaffolding Pty Ltd (formerly Cyclone Double-Grip Scaffolding Pty Ltd); Second Respondent: State of New South Wales; Third Respondent: Gordian Runoff Limited
Jurisdiction
Australia
Judgment Date
17 September 2015
Procedural Posture
Appeal / Judgment on Appeal From Dust Diseases Tribunal
Outcome
Appeal allowed; cross-appeal dismissed
Legal Topics
Negligence, Damages, Dust Diseases, Double Recovery, Gratuitous Domestic Services, Dependency Claims
Torts Statutory Interpretation Workers Compensation Negligence Damages Dust Diseases Double Recovery Gratuitous Domestic Services +1 more

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Parties

Gerisamos Dionisatos (for the Estate of the late George Dionysatos)

Appellant and Cross Respondent

Acrow Formwork & Scaffolding Pty Ltd (formerly Cyclone Double-Grip Scaffolding Pty Ltd)

First Respondent and Cross Appellant

State of New South Wales

Second Respondent

Gordian Runoff Limited

Third Respondent

Procedural Posture

Appeal / Judgment on Appeal From Dust Diseases Tribunal

Legal Issues

  1. 1 Whether there was evidence of exposure to asbestos dust or that the employer knew or should have known of exposure
  2. 2 Whether compensation paid to a partially dependent widow under the Workers' Compensation (Dust Diseases) Act 1942 (NSW) should be deducted from damages awarded to the Estate under s 15B of the Civil Liability Act 2002 (NSW)
  3. 3 Whether s 12D of the Dust Diseases Tribunal Act prohibits deduction of such compensation from s 15B damages

Ratio Decidendi

The compensation paid to Mrs Dionysatos under the Dust Diseases Act did not represent the same loss as the s 15B damages claimable by the Estate. Such compensation was not to be deducted from the Estate's award under s 15B. Further, s 12D of the Tribunal Act, if engaged, would prohibit such a deduction. The operation of s 15B(6) did not preclude the award of s 15B damages as Mrs Dionysatos had not 'recovered damages' in respect of loss of capacity for gratuitous domestic services, and the compensation paid was not damages for the same 'loss of capacity.' The assessment by the Tribunal was further in error for failing to consider the extent to which Mr Dionysatos and other family members...

Court Disposition

Appeal allowed; cross-appeal dismissed

Orders

  • Judgment and orders of the Dust Diseases Tribunal given on 29 August 2013 as between the plaintiff and defendant set aside except as to costs
  • In place thereof, judgment for the plaintiff against the defendant in the sum of $342,289, together with such further amount as the Tribunal shall award pursuant to s 15B of the Civil Liability Act 2002 (NSW)