Dust Diseases Tribunal of New South Wales CITATION : Vartuli v Alinta LGA ruling [2007] NSWDDT 30 PARTIES : Giuseppe Vartuli (Plaintiff) Alinta LGA Ltd MATTER NUMBER(S) : 6313 of 2006 JUDGMENT OF: O'Meally P CATCHWORDS: Dust Diseases Tribunal :- Reconsideration - Griffiths v Kerkemeyer expenses LEGISLATION CITED: Dust Diseases Tribunal Act 1989, Section 13(6) CASES CITED: CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223 DATES OF HEARING: 14 November 2007 DATE OF JUDGMENT: 14 November 2007 EX TEMPORE JUDGMENT DATE : 14 November 2007 G F Little, SC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: D J Russell, SC instructed by Hicksons Lawyers appeared for the Defendant JUDGMENT: RULING O'MEALLY P 1. On the afternoon of 2 November last, I delivered reasons for judgment in the action by Giuseppe Vartuli against Alinta LGA Ltd. General damages and a sum for loss of expectation of life were awarded. It was then indicated that calculations for Griffiths v Kerkemeyer damages should be made in accordance with weekly hours recited in the course of delivering judgment. 2. The judgment in its written form does not indicate that during the course of its delivery, I adjourned so that those calculations could be made. At par 28 of the reasons I said: Distasteful though the task is I am required to determine a presumed date of death. I think the evidence would put it at something in the order of three years from today. Again adopting the same broad brush approach, I think it appropriate to allow for assistance at the rate of ten hours a day for the year following the first and for sixteen hours a day for the year following that. Calculations may be made and handed to me in due course. 3. I then adjourned and calculations were made, not only in respect of those two periods, but in respect of periods and hours beginning on a date which was arbitrarily fixed as 1 January 2005. Upon being informed that those calculations had been made, I returned to court and was informed that the Griffiths v Kerkemeyer component was $377,620. I must say I was immediately surprised and thought that figure to be excessive. I thought then, and think now, that I was in error in expressing findings in such a way which resulted in that calculation. 4. It is apparent from the reasons of 2 November 2007, that the plaintiff suffered from a number of co-morbidities which were non compensable. At the end of par 9 I said: The consensus of medical opinion is that half of his respiratory disability is due to smoking and half to asbestos exposure. 5. I think it important also to consider that other co-morbidities, that is those other than respiratory disease due to smoking, would have affected the need for care, which has generously and commendably been given to him by his wife and his son. In par 9 some of them were recited. I said: Apart from a back injury he has suffered epilepsy, asthma, pneumonia and there is a suggestion also of osteoarthritis. That latter condition is not unexpected in a person of eighty-seven years. He suffers sleep apnoea and was in earlier life a smoker. 6. It was also recited that whilst employed, he suffered a back injury in 1971, which I concluded totally incapacitated him for work. He uses a walking frame and a back brace or belt. I think it fair to conclude that part of his difficulties in mobility are occasioned by the consequences of injury to his back for which he underwent surgery. At par 17 of the reasons I said: The fact remains, however, that half of the plaintiff's respiratory disability is occasioned by non-compensible factors so that general damages must be discounted or reduced to take account of that fact. One must also bear in mind that part of the plaintiff's limited ability to mobilise and to engage in activity is occasioned by other disorders including the effects of age. 7. During or immediately after the addresses of counsel, I made some notes to myself, a copy of which shall be attached to these reasons as an annexure. They are in my own hand, but I think it appropriate for present purposes to recite what I wrote. What I wrote was this: 95-99 allow 1 hr p day 99-03 allow 1½ p day 03-05 allow 2 hrs pd 05-07 allow 5 hrs pd 07 full-time: 8 hrs pd 8. Underneath that, the numeral 10 is written in pencil with an arrow pointing to the right. The numeral 16 is also written in pencil and underneath that is written "Future G. v K. for 3 years". 9. As noted, Griffiths v Kerkemeyer expenses were not allowed until a date arbitrarily fixed as 1 January 2005. Though I did read in the notes I had made, and recited in the judgment, that care was given to the plaintiff between 1995 and the beginning of 2005, in par 26 of my reasons I said: There were periods between 1995 and 2005 when service was provided, which I would have allowed at the rate of one hour per day between 1995 and 1999, and at the rate of one and a half hours per day between 1999 and 2003, and at the rate of two hours per day between 2003 and 2005. But having come to the view upon referring for the second time to Dr Johnson's report that care should be allowed from 2005, I propose not to make allowances between 1995 and 2005. 10. I went on to say, and I think this is material to the matter now being considered, this: The five hours a day that should be allowed thereafter is referable only to respiratory disease and has taken into account the fact that whilst more care might be provided the need for such care arise from non compensable disorders. 11. It appears that what I did was to allow Griffiths v Kerkemeyer expenses, in accordance with the schedule that I made, if it can be called that, which, as noted, will be attached to these reasons, without discounting or taking into account the fact that the plaintiff's respiratory disability is due to compensable and non compensable factors. Moreover, the need for care arises from other than respiratory difficulties. 12. Upon the calculations having been made and given to me, I entered the verdict and judgment, but immediately granted a stay on all but $68,719.45, being the amount of general damages, loss of expectation of life and interest on past general damages. Being then immediately of the view that the sum that I had awarded for Griffiths v Kerkemeyer expenses was excessive, I indicated that I would entertain an application under s 13(6) of the Dust Diseases Tribunal Act 1989 (the Act) to reconsider my decision. A transcript of the exchange between Mr Morahan, counsel for the defendant, and Mr Mancia, the plaintiff's solicitor, and myself, will be attached to these reasons. 13. Mr Little SC now argues that I am functus officio and I have no power under s 13(6) of the Act or otherwise to reconsider my decision. Moreover, he says, my findings of fact were in accordance with the evidence concerning care. I accept that the care given to the plaintiff was appropriate as given, but I was not, when I delivered my reasons, nor am I now, of the view that the care referrable to asbestos disease was in accordance with the hours which were arbitrarily fixed. I regret my error and the inconvenience that it has caused to both parties, but I am bound to do justice between them and if my original decision were to stand, there would be an injustice. 14. Apart from an application under s 13(6) of the Act, Mr Russell SC has applied for orders pursuant to various parts of r 36 of the Uniform Civil Procedure Rules. 15. I shall deal firstly with the application under s 13(6) of the Act. It contains a provision unique to the Dust Diseases Tribunal. It provides: (6) Wherever appropriate, the Tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the Tribunal has previously made. 16. So far as I am aware, there is only one authoritative expression of opinion upon the effect of s 13(6). In CSR Ltd v Bouwhuis (1991) 7NSW CCR 223 Priestly JA said at 247: Section 13(6) is thus dealing with a subject matter quite different from that dealt with by section 17(4) of the Compensation Court Act 1984 from which its words seem to have been taken. What in its context subsection (6) seems to me to do is to recognise that there may occasionally be very exceptional cases in which it becomes clear that after judgment something of a fundamental kind and of high importance to the litigation has happened, that it has happened in regard to a case which because of the nature of the Tribunal's jurisdiction needs to be dealt with the greatest available expedition and that it may be more efficient, rather than leave the supervening and basic matter to be dealt with by the appeal mechanism, to have it dealt with by the Court of first instance. On this approach it would be very rare for the power under subsection 6 to be properly exercisable by the Tribunal. The power would in my opinion only be one the Tribunal should even consider exercising in the kind of circumstances referred to by Lord Wilberforce in Mulholland Mulholland & Anor v Mitchell [1971] AC 666 , that is, stated shortly, where something basic to the decision has been clearly falsified by subsequent events. 17. Bouwhuis was a case in which the plaintiff suffered from mesothelioma. Evidence was given, and accepted that his life expectancy was eight months from the date of trial. Subsequently, that is after judgment, the plaintiff's treating doctor gave an opinion that the plaintiff's life expectancy was less than a month. The defendant applied to the Court of Appeal to receive evidence of the plaintiff's reduced life expectancy so that the damages might be varied. The Court of Appeal refused, observing that finality of litigation was paramount. 18. S 13(6) has been used by the Tribunal to correct errors of fact or law, and, so far as errors of law are concerned, thus to obviate appeals in appropriate cases. It was also used before legislation was enacted providing for the survival of general damages in dust diseases cases where a plaintiff was expected soon to die. When judgment for general damages was entered, but further evidence or calculations were needed to quantify special damages, as happened in urgent cases, leave was granted to return to amend the decision or vary the judgment. So far as I am aware, this is the first case in which an application to vary an amount awarded for Griffiths v Kerkemeyer damages has been made where the error has been one made by a judge, rather than by calculation or otherwise. In my view, s 13(6) is sufficiently broad in its terms to permit the Tribunal to correct an error of fact made by a judge in the course of giving reasons. Errors of fact are more prone to occur when reasons are delivered ex tempore. 19. So far as the Uniform Civil Procedure Rules are concerned I have been referred to r 36.15 which provides: (1) The judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered or the order made irregularly, illegally or against good faith. 20. It has not been submitted that the judgment was entered illegally or against good faith, but it has been submitted that it was made irregularly, and that that was so is disclosed by the exchange which took place between counsel and myself after I had adjourned to enable the calculations to be made. Mr Russell says that the judgment may be varied because the judgment has not yet been entered. R 36.16(1) provides: The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. 21. It should be observed that no notice of motion has been filed seeking that the judgment be varied, but to the extent necessary, I dispense with the requirement to file a notice of motion. Rules are regulatory, not a source of power. Rules cannot give to a court powers it does not already possess. 22. Mr Russell also referred me to r 36.17 which provides: If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. 23. It appears that what I failed to do was to express that half the amounts allowed were for asbestos disease, which, as I found, would progress. Half was due not only to non compensable respiratory disease but also to other factors which were referred to in my reasons. The amount of Griffiths v Kerkemeyer expenses should be reduced by half. My error is evident from the fact that in par 28 I said that 16 hours a day should be allowed for the last year of the plaintiff's life. If it were the case, as it seems to have been understood by the plaintiff's advisers, that I had allowed for disability occasioned by compensable and non compensable factors, one would have to assume, contrary to the fact, that a day is 32 hours long. 24. Being no mathematician, I will again leave it to the parties to make the calculations in accordance with this expression of opinion, at the same time again apologising for the inconvenience I have caused and for the distress which no doubt has been occasioned to Mr Vartuli and members of his family. I regret it very much. Mr G F Little, SC instructed by Turner Freeman appeared for the Plaintiff Mr D J Russell, SC instructed by Hicksons Lawyers appeared for the Defendant DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.