BI (CONTRACTING) PTY LTD v Eileen Sylvia STRIKWERDA & ANOR [2005] NSWCA 288

BI (CONTRACTING) PTY LTD v Eileen Sylvia STRIKWERDA & ANOR [2005] NSWCA 288

The trial judge erred in law by holding that the evidentiary burden lay on the defendant to prove the value of the estate and the benefit to the widow; the true legal and evidentiary burden for proving the extent of her damages, including any benefits from the estate, remained with the plaintiff widow. The appeal succeeded, and the amount of damages recoverable by the widow in the dependant's action was reduced accordingly.

Parties
Appellant: BI (Contracting) Pty Ltd; First Respondent: Eileen Sylvia Strikwerda; Second Respondent: Second Respondent
Jurisdiction
Australia
Judgment Date
09 September 2005
Procedural Posture
Appeal / Judgment After Hearing of Appeal
Outcome
Appeal upheld
Legal Topics
Dust Diseases, Damages Computation, Survival of Causes of Action, Dependency Claims, Evidentiary Burden
Negligence Damages Civil Procedure Dust Diseases Damages Computation Survival of Causes of Action Dependency Claims Evidentiary Burden

Case Brief

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Parties

BI (Contracting) Pty Ltd

Appellant

Eileen Sylvia Strikwerda

First Respondent

Second Respondent

Second Respondent

Procedural Posture

Appeal / Judgment After Hearing of Appeal

Legal Issues

  1. 1 Whether the trial judge erred in locating the evidentiary onus regarding the capacity of the deceased's estate to pay the benefit to the widow out of the estate verdict proceeds
  2. 2 Computation and offset of damages as between the estate action and the dependant's action
  3. 3 Correct legal principles for taking into account benefits passing under intestacy in dependency actions

Ratio Decidendi

The trial judge erred in law by holding that the evidentiary burden lay on the defendant to prove the value of the estate and the benefit to the widow; the true legal and evidentiary burden for proving the extent of her damages, including any benefits from the estate, remained with the plaintiff widow. The appeal succeeded, and the amount of damages recoverable by the widow in the dependant's action was reduced accordingly.

Court Disposition

Appeal upheld

Orders

  • The verdict in the dependant's action is reduced to $81,050.
  • The plaintiff's costs order in the Tribunal on the reconsideration motion is set aside; those costs are to be borne by the plaintiff.