Napier v Resi Corporation & Ors [2005] NSWDDT 12

Napier v Resi Corporation & Ors [2005] NSWDDT 12

The plaintiff's ARPD had been diagnosed, the disability from it was agreed to be slight, and the law allowed damages to take account of the risk of another dust related condition. An indefinite adjournment to monitor the plaintiff's condition was not required in the interests of justice; the court had to consider all parties and had a duty to bring proceedings to hearing and conclusion, and the plaintiff's serious unrelated co-morbidities also supported proceeding with the hearing. The notice of motion was therefore dismissed.

Jurisdiction
Australia
Judgment Date
01 April 2005
Procedural Posture
Dust Diseases Personal Injury Proceeding Involving Asbestos Related Pleural Disease / Notice of Motion to Vacate the Trial Date and Place the Case in the Not Ready List
Outcome
Notice of motion dismissed; proceeding to remain listed for hearing, with further directions for medical reports and an issues and listings conference.
Legal Topics
['adjournment' 'not Ready List' 'asbestos Related Pleural Disease' 'provisional Damages' 'risk of Future Dust Related Condition']
['civil Procedure' 'dust Diseases' 'personal Injury' 'tort Law'] ['adjournment' 'not Ready List' 'asbestos Related Pleural Disease' 'provisional Damages' 'risk of Future Dust Related Condition']

Case Brief

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Procedural Posture

Dust Diseases Personal Injury Proceeding Involving Asbestos Related Pleural Disease / Notice of Motion to Vacate the Trial Date and Place the Case in the Not Ready List

Legal Issues

  1. 1 ["Whether the trial should be vacated and the proceeding placed in the not ready list so the plaintiff's asbestos related pleural disease could be monitored." "Whether the plaintiff's slight disability and risk of developing another dust related condition justified an indefinite adjournment." 'Whether the interests of justice required the case to proceed to hearing despite the potential unavailability of provisional damages under s 11A of the Dust Diseases Tribunal Act, 1989.']

Ratio Decidendi

The plaintiff's ARPD had been diagnosed, the disability from it was agreed to be slight, and the law allowed damages to take account of the risk of another dust related condition. An indefinite adjournment to monitor the plaintiff's condition was not required in the interests of justice; the court had to consider all parties and had a duty to bring proceedings to hearing and conclusion, and the plaintiff's serious unrelated co-morbidities also supported proceeding with the hearing. The notice of motion was therefore dismissed.

Court Disposition

Notice of motion dismissed; proceeding to remain listed for hearing, with further directions for medical reports and an issues and listings conference.

Orders

  • ['The Notice of Motion filed 30 March 2005 is dismissed.' "The plaintiff will pay the defendant's costs as agreed or assessed." 'Leave to plaintiff within 14 days to serve a report assessing the risk of the plaintiff developing any other dust related condition.' 'Leave to defendants on or before 6 May 2005 to serve...