Winch v Amaca Pty Limited (discontinued 22.09.2011) and The Trustees of The Sydney Grammar School [2011] NSWDDT 8

Winch v Amaca Pty Limited (discontinued 22.09.2011) and The Trustees of The Sydney Grammar School [2011] NSWDDT 8

Mangion remained binding authority that an appropriate nervous shock claim arising from a dust-related illness or death is within the Tribunal's jurisdiction. Because the plaintiff claimed through Mr Winch, who suffered mesothelioma, the claim was also a claim in respect of an asbestos-related condition for the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 October 2011
Procedural Posture
Notice of Motion in Dust Diseases Tribunal Proceedings for Nervous Shock / Procedural Ruling on Jurisdiction, Claims Resolution Process and Particulars
Outcome
The second defendant's motion filed on 13 September 2011 was dismissed, with costs awarded to the plaintiff.
Legal Topics
['dust Diseases Tribunal Jurisdiction' 'nervous Shock' 'asbestos Related Condition' 'claims Resolution Process' 'statement of Particulars' 'costs']
['dust Diseases' 'civil Procedure' 'personal Injury' 'negligence'] ['dust Diseases Tribunal Jurisdiction' 'nervous Shock' 'asbestos Related Condition' 'claims Resolution Process' 'statement of Particulars' 'costs']

Source-derived case record

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Procedural Posture

Notice of Motion in Dust Diseases Tribunal Proceedings for Nervous Shock / Procedural Ruling on Jurisdiction, Claims Resolution Process and Particulars

Legal Issues

  1. 1 ["Whether the Dust Diseases Tribunal had jurisdiction to hear the plaintiff's nervous shock claim arising from Mr Winch's mesothelioma and death." 'Whether the proceedings came under the claims resolution process in Part 4 of the Dust Diseases Tribunal Regulation.' "Whether the plaintiff's Form 1 particulars should be struck out as misconceived on the basis that nervous shock is not an asbestos-related condition."]

Ratio Decidendi

Mangion remained binding authority that an appropriate nervous shock claim arising from a dust-related illness or death is within the Tribunal's jurisdiction. Because the plaintiff claimed through Mr Winch, who suffered mesothelioma, the claim was also a claim in respect of an asbestos-related condition for the purposes of the claims resolution process. As the claim remained subject to the claims resolution process and no removal provision applied, clause 19 prevented the Tribunal from making the order sought to strike out the particulars.

Court Disposition

The second defendant's motion filed on 13 September 2011 was dismissed, with costs awarded to the plaintiff.

Orders

  • ["I dismiss the second defendant's motion filed on 13 September 2011." "I order the second defendant to pay the plaintiff's costs."]