Banton v Amaca Pty Ltd [2007] NSWDDT 29

Dust Diseases Tribunal of New South Wales

CITATION : Banton v Amaca Pty Ltd [2007] NSWDDT 29

PARTIES : Bernard Douglas Banton (Plaintiff) Amaca Pty Ltd (Defendant)

MATTER NUMBER(S) : 7255 of 2007

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :- Asbestosis - Provisional damages awarded in 2000 - Plaintiff develops mesothelioma in 2007 - Claim for further damages - Whether further damages limited to compensatory damages - Whether exemplary damages may be claimed as further damages

Dust Diseases Tribunal Act 1989, Section 11A LEGISLATION CITED: Dust Diseases Tribunal Rules, Rule 5 (8) Interpretation Act 1987 Supreme Court Act 1981 (UK)

DATES OF HEARING: 15 November 2007

DATE OF JUDGMENT: 15 November 2007

EX TEMPORE JUDGMENT DATE : 15 November 2007

J T Rush, QC with B R Quinn instructed by Turner Freeman, appeared for the Plaintiff LEGAL REPRESENTATIVES: D J Russell, SC with J C Sheller instructed by Ellison Tillyard Callanan appeared for the Defendant

JUDGMENT:

RULING O'MEALLY P 1. This is an application by Amaca Pty Ltd which requires me to consider whether aggravated and exemplary damages are available to Bernard Douglas Banton in an application he has made for the award of further damages pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (the Act).

2. On 16 November 1999 Mr Banton issued a statement of claim against James Hardie and Coy Pty Ltd. James Hardie and Coy Pty Ltd is now Amaca Pty Ltd. In that Statement of Claim he sought an award of provisional damages in respect of the conditions of asbestos related pleural disease and asbestosis. Certain other consequences of asbestos exposure were recited in par 7 of the Statement of Claim, but for present purposes they are not relevant. In accordance with the rules he sought an order that he have the right to claim further damages should he develop any of mesothelioma, asbestos induced carcinoma or lung cancer.