Hudson v Amaca Pty Ltd [2022] NSWDDT 6

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Hudson v Amaca Pty Ltd [2022] NSWDDT 6 Hearing dates: 11 July 2022, 5-7 September 2022, 25-26 October 2022 Date of orders: 21 November 2022 Decision date: 21 November 2022 Before: Judge Russell SC Decision: (1) The damages in the claim brought by the plaintiff for the benefit of the estate of the late Keith Hudson are assessed at $475,840.38. (2) The damages in the claim brought by the plaintiff under Lord Campbell's Act for the benefit of Joseph Hudson are assessed at $2,678,892 plus the costs of funds management. (3) Defer entry of final judgment pending ascertainment of the costs of funds management, by agreement or further hearing. (4) Order the defendant to pay the amount of $475,840.38 to the plaintiff. (5) Order the defendant to pay the plaintiff's costs of the proceedings to date. (6) Stand the proceedings between the plaintiff and the defendant over generally with liberty to restore on 7 days notice. (7) Stand the cross claim over generally with liberty to restore on 7 days notice. Catchwords: DUST DISEASES — prescribed dust diseases — mesothelioma CHOICE OF LAW – where exposure to asbestos occurred in both New South Wales and Australian Capital Territory - torts with an inter-state element are governed by the lex loci delicti DAMAGES – general damages and loss of expectation of life - assessment under Australian Capital Territory law – where action survives for the benefit of the deceased's estate - where act or omission that gives rise to the cause of action caused the person's death – where plaintiff did not give a notice of claim before death – whether requirement to give notice of claim procedural or substantive DAMAGES – Lord Campbell's Act – loss of services provided by deceased – assessment of damages under New South Wales legislation the same as under Australian Capital Territory legislation – where deceased's son has severe disabilities – whether son required 24-hour care – direct care provided by deceased – standby supervision or indirect care provided by deceased and his wife – period for which deceased would have provided services – hourly rate selected to calculate damages – whether appropriate to use commercial cost of care to calculate damages Legislation Cited: Accident Compensation Act 1985 (VIC), s 134AB Civil Law (Wrongs) Act 2002 (ACT), ss 15, 16, 24, 25, 51, 54, 59, 62, 100 Civil Liability Act 2002 (NSW), ss 15A, 15B Civil Procedure Act 2005 (NSW), ss 3, 77, 90 Compensation to Relatives Act 1897 (NSW), ss 3, 4 Dust Diseases Tribunal Act 1989, s 12B Law Reform (Miscellaneous Provisions) Act 1944 (NSW) Personal Injuries Proceedings Act 2002 (QLD) Workers Compensation Act 1987 (NSW), s 151C Cases Cited: Amaca Pty Ltd v Raines [2018] NSWCA 216 Franklin v South Eastern Railway Co (1858) 3 H & N 211 Griffiths v Kerkemeyer (1977) 139 CLR 161 Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Nash v Commissioner for Railways [1963] SR (NSW) 357 Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668 Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 Webber v Comcare [2018] NSWDDT 10 Wickham Freightlines Pty Ltd v Ferguson [2013] NSWCA 66; (2013) 83 NSWLR 162 Texts Cited: Luntz, Assessment of Damages for Personal Injury and Death (4th ed, Lexis Nexis) Category: Principal judgment Parties: Daphne Maureen Hudson (Plaintiff) Amaca Pty Limited (Defendant/Cross Claimant) AV Jennings Properties Limited (Cross Defendant) Representation: Counsel: J McIntyre SC and J Tryon (Plaintiff) D Priestley SC (Defendant) T Rowles (Cross Defendant)