Brooks v Trend Roofing Pty Limited & Anor [2009] NSWDDT 11

Brooks v Trend Roofing Pty Limited & Anor [2009] NSWDDT 11

Plaintiff is entitled to full assessment of damages against the second defendant regardless of contributions assessment between defendants; TLC testing is accepted as appropriate to assess restrictive deficit in this case despite guideline preferences; evidence insufficient to support care and assistance claim but permits modest award for potential future deterioration; out-of-pocket expenses claim rejected as not first submitted to Dust Diseases Board; interest awarded on past general damages.

Jurisdiction
Australia
Judgment Date
08 May 2009
Procedural Posture
Dust Diseases Damages Assessment / Judgment After Hearing
Outcome
Judgment for plaintiff against second defendant for provisional damages; claim for care/assistance substantially denied; claim for out-of-pocket expenses rejected with leave to apply if Board does not pay; interest awarded on past general damages; first defendant not liable.
Legal Topics
['assessment of Damages' 'dust Diseases' 'asbestos Exposure' 'restrictive Lung Disease' 'lung Function Testing' 'apportionment of Damages']
['tort Law'] ['assessment of Damages' 'dust Diseases' 'asbestos Exposure' 'restrictive Lung Disease' 'lung Function Testing' 'apportionment of Damages']

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Procedural Posture

Dust Diseases Damages Assessment / Judgment After Hearing

Legal Issues

  1. 1 ['Whether total lung capacity testing is appropriate for assessing restrictive deficit' 'Whether general damages, care and assistance, and out-of-pocket expenses should be awarded' 'Whether plaintiff’s damages should be reduced to 57.5% per contributions assessment']

Ratio Decidendi

Plaintiff is entitled to full assessment of damages against the second defendant regardless of contributions assessment between defendants; TLC testing is accepted as appropriate to assess restrictive deficit in this case despite guideline preferences; evidence insufficient to support care and assistance claim but permits modest award for potential future deterioration; out-of-pocket expenses claim rejected as not first submitted to Dust Diseases Board; interest awarded on past general damages.

Court Disposition

Judgment for plaintiff against second defendant for provisional damages; claim for care/assistance substantially denied; claim for out-of-pocket expenses rejected with leave to apply if Board does not pay; interest awarded on past general damages; first defendant not liable.

Orders

  • ['Verdict and judgment for the first defendant against the plaintiff.' 'Verdict for the plaintiff against the second defendant.' 'Judgment for the plaintiff against the second defendant for provisional damages pursuant to s11A of the Dust Diseases Tribunal Act 1989 in the sum of $89,500.' 'The dust-related...