SIMON ENGINEERING (AUSTRALIA) PTY LTD v BRIEGER [1990] NSWCA 165

SIMON ENGINEERING (AUSTRALIA) PTY LTD v BRIEGER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 31 August, 6 September 1990

[1990] NSWCA 165

The respondent, who was born in 1928, sued the appellant claiming that it had negligently exposed him to asbestos fibres as a consequence of which he was diagnosed in July 1989 as suffering from mesothelioma. The trial judge found that the appellant had been negligent and awarded the respondent the sum of $363,687.00. The appellant appealed claiming that the awards for impairment of earning capacity and general damages were excessive.

Held: (1) That his Honour had erred in failing to pay regard to the fact that the respondent had intended to take a holiday overseas for six months and in misconceiving the nature of the additional salary to be paid to the respondent; (2) That the award of damages should be set aside and in lieu thereof an award of $295,201.20 substituted.

Priestley JA I agree with Clarke JA.

Clarke JA On 30 May 1990 Judge O'Meally sitting as the Dust Diseases Tribunal of New South Wales constituted under the Dust Diseases Tribunal Act 1989 found a verdict and judgment for the respondent, who was the plaintiff in the action, in the sum of $363,687.00. The appellant has appealed to this Court claiming that the award of damages was excessive. Although the notice of appeal asserted error in a large number of respects the written and oral submissions of counsel for the appellant challenged only the awards for impairment of earning capacity and general damages. Before proceeding to deal with the specific attacks upon the judgment it is convenient to outline the facts insofar as they relate to questions in issue.

The respondent was born in 1928 and, after spending some time in Shanghai, migrated to Australia in 1949. Initially he qualified as a chemical engineer obtaining a diploma from the Sydney Technical College. Shortly thereafter he entered employment with the defendant remaining with it until May 1960. At this time he began studying to become an accountant. He concluded those studies and obtained his qualification in 1964. Thereafter he worked either in his own business or as a management consultant for a management consultant company as well as for CSR Limited as a senior project officer and for Cockatoo Dockyard Pty Ltd as a controller.