Sinclair v Resi Corporation and Anor [2003] NSWDDT 1

Sinclair v Resi Corporation and Anor [2003] NSWDDT 1

The first defendant's limitation defence failed because the plaintiff had suffered no relevant damage when pleural plaques were identified in 1990 and, on the alternative view, he was unaware of material facts until diagnosis or development of relevant symptoms within a period that made the 1 May 2001 proceeding timely or justified. On the medical evidence, the plaintiff had mild asbestos related pleural disease and asbestosis caused by asbestos exposure, warranting damages assessed at $98,214.60. A special costs order was refused because the defendants themselves sought leave to reopen and tender further medical evidence, making it inappropriate for the plaintiff to bear the first...

Jurisdiction
Australia
Judgment Date
06 February 2003
Procedural Posture
Dust Diseases Action for Damages / Judgment After Hearing on Limitation Defence, Damages and Costs
Outcome
Verdict for the plaintiff jointly and severally against each defendant; judgment for $98,214.60; special costs order refused.
Legal Topics
['asbestos Exposure' 'asbestos Related Pleural Disease' 'asbestosis' 'south Australian Law Governing Interstate Tort' 'material Facts and Accrual of Cause of Action' 'provisional Damages' 'griffiths V Kerkemeyer Expenses']
['dust Diseases' 'negligence' 'limitation of Actions' 'damages' 'costs'] ['asbestos Exposure' 'asbestos Related Pleural Disease' 'asbestosis' 'south Australian Law Governing Interstate Tort' 'material Facts and Accrual of Cause of Action' 'provisional Damages' 'griffiths V Kerkemeyer Expenses']

Case Brief

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Procedural Posture

Dust Diseases Action for Damages / Judgment After Hearing on Limitation Defence, Damages and Costs

Legal Issues

  1. 1 ["Whether South Australian law applied because the plaintiff's employment, asbestos exposure and alleged negligent acts and omissions occurred wholly in South Australia." 'Whether the first defendant had a defence under the Limitation of Actions Act 1936 (SA).' 'Whether the plaintiff had suffered relevant damage or ascertained material facts in 1989 or 1990 when pleural plaques were revealed.' 'Whether the plaintiff had asbestos related pleural disease and asbestosis and what damages should be awarded.' 'Whether a special order for costs should be made against the plaintiff after the claim for provisional damages was abandoned.']

Ratio Decidendi

The first defendant's limitation defence failed because the plaintiff had suffered no relevant damage when pleural plaques were identified in 1990 and, on the alternative view, he was unaware of material facts until diagnosis or development of relevant symptoms within a period that made the 1 May 2001 proceeding timely or justified. On the medical evidence, the plaintiff had mild asbestos related pleural disease and asbestosis caused by asbestos exposure, warranting damages assessed at $98,214.60. A special costs order was refused because the defendants themselves sought leave to reopen and tender further medical evidence, making it inappropriate for the plaintiff to bear the first...

Court Disposition

Verdict for the plaintiff jointly and severally against each defendant; judgment for $98,214.60; special costs order refused.

Orders

  • ['By consent par 14A of the statement of claim is amended by deleting the matter "Provisional damages pursuant to Section 11A of the Dust Diseases Tribunal Act, 1989 for the conditions of:- (i) Asbestos related pleural disease; (ii) Asbestosis" and substituting the word "Damages" and by deleting par 15.' 'Verdict...