John Downes v Amaca Pty Ltd [2008] NSWDDT 25

John Downes v Amaca Pty Ltd [2008] NSWDDT 25

The plaintiff's asbestos-related disease warranted substantial damages, but rapid development of severe asbestosis was not proved as probable and was assessed on a 50 per cent Malec contingency. Future medical and care expenses were discounted for contingencies, including supervening incapacity or death. Because it was probable that the plaintiff would be certified by the Dust Diseases Board and receive benefits covering past and future medical expenses and future care, those amounts were deducted from the damages assessment, with liberty to seek variation if benefits were refused. Given exposure outside the defendant's supply chain, 85 per cent of the remaining damages was apportioned to...

Jurisdiction
Australia
Judgment Date
01 October 2008
Procedural Posture
Dust Diseases Tribunal Damages Claim for Asbestos Related Disease / Assessment of Damages; Liability Not in Issue; Judgment
Outcome
Judgment for the plaintiff in the sum of $132,005, with liberty to apply for variation pursuant to s13(6) of the Dust Disease Tribunal Act 1989 and costs payable by the defendant subject to further hearing as to the appropriate order.
Legal Topics
['assessment of Damages' 'asbestos Related Disease' 'future Medical Expenses' 'future Care and Services' 'apportionment' 'dust Diseases Board Benefits' 'contingencies in Damages Assessment']
['dust Diseases' 'personal Injury Damages' 'workers Compensation'] ['assessment of Damages' 'asbestos Related Disease' 'future Medical Expenses' 'future Care and Services' 'apportionment' 'dust Diseases Board Benefits' 'contingencies in Damages Assessment']

Case Brief

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Procedural Posture

Dust Diseases Tribunal Damages Claim for Asbestos Related Disease / Assessment of Damages; Liability Not in Issue; Judgment

Legal Issues

  1. 1 ['What amount of general damages should be awarded for pleural plaques, diffuse pleural thickening, possible asbestosis, pain, breathlessness and loss of expectation of life.' 'How future medical expenses and future care and services should be assessed having regard to disease progression, life expectancy and contingencies.' 'Whether deductions should be made for the probability that the plaintiff would receive benefits from the Dust Diseases Board under the Workers Compensation (Dust Diseases) Act 1942.' "What proportion of the plaintiff's damages should be apportioned to Amaca Pty Ltd given other asbestos exposure in foundry work."]

Ratio Decidendi

The plaintiff's asbestos-related disease warranted substantial damages, but rapid development of severe asbestosis was not proved as probable and was assessed on a 50 per cent Malec contingency. Future medical and care expenses were discounted for contingencies, including supervening incapacity or death. Because it was probable that the plaintiff would be certified by the Dust Diseases Board and receive benefits covering past and future medical expenses and future care, those amounts were deducted from the damages assessment, with liberty to seek variation if benefits were refused. Given exposure outside the defendant's supply chain, 85 per cent of the remaining damages was apportioned to...

Court Disposition

Judgment for the plaintiff in the sum of $132,005, with liberty to apply for variation pursuant to s13(6) of the Dust Disease Tribunal Act 1989 and costs payable by the defendant subject to further hearing as to the appropriate order.

Orders

  • ['Judgment for the plaintiff in the sum of $132,005.' 'Liberty to apply for variation pursuant to s13(6) of the Dust Disease Tribunal Act 1989.' "Defendant to pay the plaintiff's costs. I will hear the parties as to the appropriate order."]