David Lynch v Amaca Pty Ltd [2004] NSWDDT 1

David Lynch v Amaca Pty Ltd [2004] NSWDDT 1

Because the defendant did not contest duty, breach or causation, the plaintiff was entitled to damages for mesothelioma. The plaintiff's actual DBPA defined benefit scheme formed part of the position he would have occupied but for the injury and could not be replaced by a statutory superannuation calculation. The death benefit under the DBPA was expressed as insurance for death and disablement and was properly characterised as a collateral benefit, so it was not deductible from the plaintiff's loss of pension and superannuation entitlements. Damages were assessed under the accepted and determined heads and judgment was entered for $712,338.

Jurisdiction
Australia
Judgment Date
24 February 2004
Procedural Posture
Personal Injury Damages Claim Arising From Asbestos Exposure and Mesothelioma / Ex Tempore Judgment After Hearing
Outcome
Judgment for the plaintiff in the sum of $712,338, with indemnity costs from 11 February 2004 subject to exclusion of the costs of attendance of Ms Tchan and Mr Rosetto.
Legal Topics
['mesothelioma' 'asbestos Exposure' 'assessment of Damages' 'loss of Pension and Superannuation Benefits' 'collateral Benefits' 'death Benefits' 'motor Vehicle Expenses' 'indemnity Costs']
['torts' 'personal Injury' 'dust Diseases' 'damages'] ['mesothelioma' 'asbestos Exposure' 'assessment of Damages' 'loss of Pension and Superannuation Benefits' 'collateral Benefits' 'death Benefits' 'motor Vehicle Expenses' 'indemnity Costs']

Case Brief

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Procedural Posture

Personal Injury Damages Claim Arising From Asbestos Exposure and Mesothelioma / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["What damages should be awarded for the plaintiff's mesothelioma where duty, breach and causation were not contested." "Whether loss of pension and superannuation benefits should be calculated by reference to the plaintiff's actual defined benefit plan or by reference to statutory superannuation contributions." "Whether a death benefit payable to the plaintiff's wife under the Deseret Benefit Plan for Australia should be deducted from the plaintiff's loss of pension and superannuation benefits." 'What allowance should be made for the employment-provided motor vehicle benefit.' 'Whether the plaintiff was entitled to indemnity costs after improving on his offer of compromise.']

Ratio Decidendi

Because the defendant did not contest duty, breach or causation, the plaintiff was entitled to damages for mesothelioma. The plaintiff's actual DBPA defined benefit scheme formed part of the position he would have occupied but for the injury and could not be replaced by a statutory superannuation calculation. The death benefit under the DBPA was expressed as insurance for death and disablement and was properly characterised as a collateral benefit, so it was not deductible from the plaintiff's loss of pension and superannuation entitlements. Damages were assessed under the accepted and determined heads and judgment was entered for $712,338.

Court Disposition

Judgment for the plaintiff in the sum of $712,338, with indemnity costs from 11 February 2004 subject to exclusion of the costs of attendance of Ms Tchan and Mr Rosetto.

Orders

  • ['The plaintiff is awarded $200,000 for general damages with $1,000 interest.' 'The plaintiff is awarded $20,000 for loss of expectation of life.' 'The plaintiff is awarded $50,000 for past and future care.' 'The plaintiff is awarded $277,148 for past and future loss of earnings.' 'The plaintiff is awarded $135,857...