Trustees of the Sydney Grammar School v Winch [2013] NSWCA 37

Trustees of the Sydney Grammar School v Winch [2013] NSWCA 37

The Tribunal's exclusive jurisdiction under s 11(1) of the Dust Diseases Tribunal Act 1989 does not extend to independent claims for psychiatric illness (nervous shock) brought by a relative of a deceased person suffering a dust-related condition, as such claims are not 'by a person claiming through' the primary victim nor are they for damages 'in respect of' the dust-related condition or death within the meaning of the Act. The contrary holding in Mangion v James Hardie & Co Pty Ltd was wrong and should be overruled.

Parties
Appellants: The Trustees of the Sydney Grammar School; Respondent: Jessie Winch
Jurisdiction
Australia
Judgment Date
27 February 2013
Procedural Posture
Appeal / Appeal Judgment on Jurisdiction; Leave to Appeal Granted; Substantive Appeal Determined
Outcome
Appeal allowed; proceedings in the Dust Diseases Tribunal dismissed for want of jurisdiction; costs orders to appellants; certificate under Suitors' Fund Act 1951 granted if otherwise qualified.
Legal Topics
Dust Diseases Tribunal Jurisdiction, Psychiatric Illness Claims, Nervous Shock, Derivative Actions, Exclusive Jurisdiction of Tribunals, Statutory Construction, Claims Relating to Dust Related Conditions, Meaning of 'claiming Through'
Tort Law Statutory Interpretation Tribunal Jurisdiction Dust Diseases Tribunal Jurisdiction Psychiatric Illness Claims Nervous Shock Derivative Actions Exclusive Jurisdiction of Tribunals +3 more

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Parties

The Trustees of the Sydney Grammar School

Appellants

Jessie Winch

Respondent

Procedural Posture

Appeal / Appeal Judgment on Jurisdiction; Leave to Appeal Granted; Substantive Appeal Determined

Legal Issues

  1. 1 Whether the Dust Diseases Tribunal has jurisdiction under s 11(1) of the Dust Diseases Tribunal Act 1989 to hear a claim for damages for psychiatric illness (nervous shock) brought by a person whose father died from a dust-related condition, allegedly arising from the father's employment by the appellants.
  2. 2 Whether the precedential NSW Court of Appeal decision in Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 was correctly decided in respect of nervous shock claims under the Tribunal Act.
  3. 3 Proper statutory construction of 'claiming through' and 'in respect of' in s 11(1)(c) of the Dust Diseases Tribunal Act 1989.

Ratio Decidendi

The Tribunal's exclusive jurisdiction under s 11(1) of the Dust Diseases Tribunal Act 1989 does not extend to independent claims for psychiatric illness (nervous shock) brought by a relative of a deceased person suffering a dust-related condition, as such claims are not 'by a person claiming through' the primary victim nor are they for damages 'in respect of' the dust-related condition or death within the meaning of the Act. The contrary holding in Mangion v James Hardie & Co Pty Ltd was wrong and should be overruled.

Court Disposition

Appeal allowed; proceedings in the Dust Diseases Tribunal dismissed for want of jurisdiction; costs orders to appellants; certificate under Suitors' Fund Act 1951 granted if otherwise qualified.

Orders

  • Grant leave to appeal.
  • Direct the appellants to file a notice of appeal in the form of the draft in the White Book within seven days.