JAMES HARDIE AND COY PTY LTD v TOMPSON v ANOR [1998] NSWCA 114

JAMES HARDIE & COY PTY LTD v TOMPSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, BEAZLEY JJA and ROLFE AJA 22-23 April, 5 May 1998

[1998] NSWCA 114

DAMAGES FOR PERSONAL INJURIES

The Dust Diseases Tribunal of New South Wales

Action for damages for personal injuries a single cause of action compensated by the award of a single capital sum: hence payments made pursuant to s8(1)(a) of the Workers Compensation (Dust Diseases) Act 1942 even where no claim for past or future economic loss must be deducted: James Hardie & Coy Pty Ltd v Newton (1997) 42 NSWLR 729 followed.

Leave to Appeal

As the damages are by way of the award of a single capital sum, which constitutes a "final decision" pursuant to s32 of the Dust Diseases Tribunal Act 1989, leave to appeal is not required where the amount of the judgment exceeds $10,000 although the component thereof which is attacked is less than $10,000: Dunn v Ross Lamb Motors & Anor [1978] 1 NSWLR 26 distinguished.

Damages

In assessing the rate per hour for the award of Griffiths v Kerkemeyer damages his Honour was not shown to be in error.

Priestley JA There were only a few live issues when this appeal came on for hearing. They are all identified in the reasons of Rolfe AJA which I have had the advantage of reading.

For the reasons he gives I agree that the first respondent did not need leave to cross-appeal, and that extension of time to bring a cross-appeal should be granted.

LT also agree that no error was shown by the first respondent to have been made by the trial judge on the Griffiths v Kirkemeyer point. This seems to me to follow inevitably once the facts are understood in the way Rolfe AJA has set them out, with which I agree. The cross-appeal should therefore be dismissed.

Also, I agree with the reasons given by Rolfe AJA for deciding to make no order for costs in favour of any of the parties to the proceedings.