Shaw v Amaca Pty Ltd and Anor [2008] NSWDDT 3

Dust Diseases Tribunal of New South Wales

CITATION : Shaw v Amaca Pty Ltd and Anor [2008] NSWDDT 3

Ian Alexander Shaw (Plaintiff) PARTIES : Amaca Pty Ltd (First Defendant) Seltsam Pty Ltd (Second Defendant)

MATTER NUMBER(S) : 6268 of 2006

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :- Action for damages - Lability admitted - Asbestosis and asbestos related pleural disease - Damages assessed

LEGISLATION CITED: Dust Diseases Tribunal Act 1989, S 11A

CASES CITED: Lawrence v BHP Billiton Ltd and Anor (2003) 1 DDCR 50

DATES OF HEARING: 13 February 2008, 14 February 2008

DATE OF JUDGMENT: 14 February 2008

EX TEMPORE JUDGMENT DATE : 14 February 2008

Mr D Letcher, QC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: Mr D J Russell, SC instructed by Holman Webb Lawyers Brisbane and Leigh Virtue & Associates appeared for the First and Second Defendants

JUDGMENT:

JUDGMENT O'MEALLY P 1. This is a claim by Ian Alexander Shaw for provisional damages from Amaca Pty Limited and Seltsam Pty Limited. There is no dispute that as a result of exposure to asbestos the plaintiff has contracted asbestosis and asbestos related pleural disease. Neither is there a dispute that the plaintiff is entitled to damages. My task is to assess those damages.

2. At the outset it should be noted that the plaintiff was tortiously exposed to asbestos in Victoria, New South Wales and Queensland. S 11(A) of the Dust Diseases Tribunal Act 1989 creates a right to provisional damages. My view is that provisional damages are available only in respect of torts committed in New South Wales. S 11A deals with an entitlement to damages, not the manner of their assessment, and is therefore a substantiative provision (see Lawrence v BHP Billiton Ltd and Anor (2003) 1 DDCR 50 at 53 [10]). Nevertheless, the parties have agreed that I may proceed to assess damages without considering what proportions of those damages are associated with exposure in Victoria and Queensland. If the plaintiff is to return to court and seek further damages the likelihood is that they would be awarded in respect of an indivisible injury, and therefore the Tribunal would not be required to consider contributions made to such injury by exposure to asbestos in states other than New South Wales. All asbestos exposure, other than that which is de minimis, makes a material contribution to an indivisible injury.