Smart v State of NSW [2008] NSWDDT 20

Dust Diseases Tribunal of New South Wales

CITATION : Smart v State of NSW [2008] NSWDDT 20

PARTIES : James Joseph Smart (Plaintiff) State of New South Wales (Defendant)

MATTER NUMBER(S) : 7308 of 2007

JUDGMENT OF: O'Meally P

CATCHWORDS: DUST DISEASES TRIBUNAL :- Assessment of damages

LEGISLATION CITED: Civil Liability Act 2002

CASES CITED: Novek v Amaca Pty Ltd [2008] NSWDDT 12

DATES OF HEARING: 15, 16 July 2008

DATE OF JUDGMENT: 16 July 2008

EX TEMPORE JUDGMENT DATE : 16 July 2008

J A McIntyre SC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: T Moisidis instructed by Hicksons Lawyers appeared for the Defendant

JUDGMENT:

JUDGMENT O'MEALLY P 1. James Joseph Smart suffers from malignant pleural mesothelioma which he contracted as a result of exposure to asbestos in the course of his employment by the New South Wales Government Railways. The State of New South Wales has assumed the liability of the railways and it concedes that the plaintiff is entitled to damages. My only task is to assess general and special damages.

2. Mesothelioma is a terrible, devastating and exquisitely painful disorder. With the effluxion of time and in the light of experience, general damages are often agreed. Of recent times, judges of the Tribunal have tended not to recite the horrible and excruciating pain suffered by those who contract the disease and counsel rarely address this issue in submissions.

3. Painkilling medication often is inadequate to deal with the pain; often, at best, it plateaus pain rather than remove it. People who suffer mesothelioma reach a stage where they experience constant and uncontrolled pain. Every breath induces increased pain and a sufferer is left with a choice between breathing and not breathing, which, of course, is no choice at all.