Banton v Amaca Pty Ltd [2007] NSWDDT 29

Banton v Amaca Pty Ltd [2007] NSWDDT 29

There was no warrant for reading down the phrase "further damages" in s 11A(2)(b) to mean only compensatory damages. The 26 July 2000 settlement and order for judgment were properly construed as resolving only the plaintiff's claim for provisional damages and costs, not the claim for aggravated and exemplary damages. It was therefore open to the plaintiff to maintain a claim for exemplary damages, and the defendant's notice of motion to strike out the exemplary and aggravated damages claims was dismissed, with the question of aggravated damages deferred.

Jurisdiction
Australia
Judgment Date
15 November 2007
Procedural Posture
Application in Dust Diseases Tribunal Proceedings for Further Damages Under S 11 a of the Dust Diseases Tribunal Act 1989; Defendant's Notice of Motion to Strike Out Claims for Exemplary and Aggravated Damages / Ruling on Defendant's Notice of Motion
Outcome
Defendant's notice of motion filed 2 November 2007 dismissed; plaintiff may maintain the claim for exemplary damages; consideration of aggravated damages deferred; defendant to pay the plaintiff's costs of the application.
Legal Topics
['asbestosis' 'mesothelioma' 'provisional Damages' 'further Damages' 'exemplary Damages' 'aggravated Damages' 'statutory Construction' 'strike Out Application']
['dust Diseases' 'torts' 'civil Procedure' 'damages'] ['asbestosis' 'mesothelioma' 'provisional Damages' 'further Damages' 'exemplary Damages' 'aggravated Damages' 'statutory Construction' 'strike Out Application']

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Procedural Posture

Application in Dust Diseases Tribunal Proceedings for Further Damages Under S 11 a of the Dust Diseases Tribunal Act 1989; Defendant's Notice of Motion to Strike Out Claims for Exemplary and Aggravated Damages / Ruling on Defendant's Notice of Motion

Legal Issues

  1. 1 ['Whether aggravated and exemplary damages are available to the plaintiff in an application for further damages pursuant to s 11A of the Dust Diseases Tribunal Act 1989.' 'Whether the phrase "further damages" in s 11A(2)(b) is limited to compensatory damages.' "Whether the 26 July 2000 terms of settlement and order for judgment included or resolved the plaintiff's earlier claim for aggravated and exemplary damages."]

Ratio Decidendi

There was no warrant for reading down the phrase "further damages" in s 11A(2)(b) to mean only compensatory damages. The 26 July 2000 settlement and order for judgment were properly construed as resolving only the plaintiff's claim for provisional damages and costs, not the claim for aggravated and exemplary damages. It was therefore open to the plaintiff to maintain a claim for exemplary damages, and the defendant's notice of motion to strike out the exemplary and aggravated damages claims was dismissed, with the question of aggravated damages deferred.

Court Disposition

Defendant's notice of motion filed 2 November 2007 dismissed; plaintiff may maintain the claim for exemplary damages; consideration of aggravated damages deferred; defendant to pay the plaintiff's costs of the application.

Orders

  • ['The Notice of Motion filed 2 November 2007 is dismissed.' "The Tribunal declined to strike out the plaintiff's claim for exemplary and aggravated damages, being of the view that it is open to the plaintiff to claim exemplary damages." "The defendant will pay the plaintiff's costs of this application." 'Orders 1, 2...