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. 3. Paragraph 8(c) of the statement of claim filed on 16 November 1999 made a claim for aggravated and exemplary damages. The paragraph recited that "full particulars relating to that claim would be supplied prior to trial." Some particulars, I am informed, were filed. 4. On 26 July 2000 his action was settled for the sum of $800,000. Relevantly, the terms of settlement contained the following: By consent and without admission of liability: (1) Verdict and Judgment for the Plaintiff as against the Defendant in the sum of $800,000 in respect of the Plaintiff's claim for provisional damages as particularised in paragraph 8(a) of the Statement of Claim filed on 16 November 1999. Said verdict and judgment is to include the Plaintiff's claim for costs. 5. An Order for Judgment was filed in court at the same time. It was in these terms: 1. That the Defendant pay to the Plaintiff the sum of $800,000 in respect of the Plaintiff's claim for Provisional Damages under Section 8(a) [sic] of the Dust Diseases Tribunal Act and as particularised in paragraph 13 of the Further Amended Statement of Claim [sic] . 2. The dust related conditions in respect of which an award of further damages may be made are: (a) Lung cancer; (b) Mesothelioma; (c) Asbestos induced carcinoma. 6. The reference in par 1 of the Order for Judgment to s 8(a) should, of course, be a reference to s 11A of the Act, and it should also be noted that the reference to par 13 of the Further Amended Statement of Claim is a reference to a document that does not exist. No point is taken in respect of either error. 7. On 20 August 2007 Mr Banton filed a Statement of Claim against Amaca Pty Ltd, the new corporate name of James Hardie & Coy Pty Ltd. In that Statement of Claim he sought further damages in respect of peritoneal mesothelioma. He also made and maintains a claim for aggravated and exemplary damages. 8. Rule 5 (8) of the Dust Diseases Tribunal Rules relevantly provides as follows: (8) Where the Tribunal has made an order for provisional damages in proceedings and the plaintiff seeks to claim further damages, the following provisions apply: (a) the application must be made by notice of motion served, at least 7 days before the day on which it is returnable, on each defendant in respect of the claim, and if that defendant is to the plaintiff's knowledge insured in respect of the claim, on the insurer; 9. The plaintiff's claim for further damages has not been made by Notice of Motion, but by Statement of Claim. It was, as noted, filed on 20 August 2007. No point is taken by the defendant that this claim has been irregularly commenced and it concedes, fairly if I may say so, that the plaintiff's claim may proceed as though it was commenced in accordance with the rules. 10. On 2 November 2007 the defendant filed a notice of motion seeking orders as follows: 1. That the plaintiff's claim for exemplary and aggravated damages be struck out; 2. Pursuant to Pt 28 r 2 of the Uniform Civil Procedure Rules the court list for separate determination whether the plaintiff is entitled to claim exemplary and aggravated damages. 3. ... 4. ... 11. The defendant's first argument is that it is not competent for the plaintiff to claim aggravated and exemplary damages because such a claim was made in the initial proceedings and any compensation for aggravated or exemplary damages should be taken to be included in the judgment of $800,000. Further, it is said, authority does not permit a claim for aggravated damages in a claim based upon negligence. Here it should be observed that authority questions the availability of aggravated damages in cases of negligence. It should also be observed that I have been informed by counsel for the plaintiff that if I determine that it is open to the plaintiff to claim aggravated or exemplary damages, or both, the evidence will be identical in respect of each claim. Questions concerning the nature of aggravated damages and exemplary damages and the circumstances in which they may be awarded are not, in my view, necessary to consider on this application, but I am grateful to counsel for their references to authority concerning those questions. 12. Section 11A of the Act is in these terms: 11A Award of provisional damages (1) This section applies to proceedings of the kind referred to in section 11 (1) that are brought after the commencement of this section and in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the person who is suffering from the dust-related condition in respect of which the proceedings are brought (the injured person) will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust-related condition. (2) The Tribunal may, in accordance with the rules: (a) award damages assessed on the assumption that the injured person will not develop another dust-related condition, and (b) award further damages at a future date if the injured person does develop another dust-related condition. 13. It is argued for the defendant that the phrase "further damages" in s 11A(2)(b) means further compensatory damages. Despite the best endeavours of counsel, their researches have not disclosed any authority either here or in the United Kingdom in which the meaning of the phrase "further damages" was considered, nor what is encompassed within it. Provisions similar to those in S 11A, if my memory serves me, apply in England and Wales, but in any event the section was borrowed, if not purloined, from legislation passed by the Parliament at Westminster (See s 32A Supreme Court Act 1981 (UK)). 14. In support of its argument that "further damages" should be construed as damages of a compensatory nature I have been handed a copy of the Attorney General's second reading speech on the Court's Legislation Amendment Bill which contained the amendment inserting s 11A. Reference to a second reading speech is permissible only when the meaning of a statutory provision is obscure or ambiguous (See s 34 Interpretation Act 1987). It does not appear to me that s 11A is either obscure or ambiguous and so I am not permitted to have recourse to the second reading speech. 15. Prior to the introduction of s 11A, when assessing general damages, the Tribunal, in common with other Australian courts, was required to make an estimate of the chance that further damage would occur after the injury or disease in respect of which the claim was brought (See Malec v J C Hutton (1990) 169 CLR 638). S 11A was intended to overcome the difficulty which the assessment of damages based on chance involved. The prospect of one asbestos disease (or other dust related condition) being followed by another is random and s 11A was intended to avoid over compensation in cases where a plaintiff, though at risk of developing another disease, did not do so, and under compensating a plaintiff who did. This does not assist in determining whether further damages are restricted to compensatory damages. So far as I am aware, this is the first occasion that a plaintiff has returned to the Tribunal seeking further damages. 16. In my view there is no warrant for reading down the phrase "further damages" to mean compensatory damages. If it were the intention of the Parliament that further damages could be claimed only for dust related conditions which developed after an award of provisional damages was made it would have been easy enough for Parliament to have said so. It did not. 17. The next question, as I see it, involves a construction of the Terms of Settlement filed on 26 July 2000 and the Order for Judgment of the same date. 18. The judgment is expressed to be "for provisional damages as particularised in paragraph 8(a) of the statement of claim." Subparagraph 8(a) of the Statement of Claim sought damages for "the condition of asbestos related pleural disease and asbestosis." Subparagraph (b) sought interest. Subparagraph (c) sought aggravated and exemplary damages. Subparagraph (d) sought costs. Subparagraph (e) sought an order pursuant to s 11A for the right to claim further damages in the events contemplated by the section. 19. The limitation of the award of damages to "provisional damages as particularised in paragraph 8(a) of the Statement of Claim filed on 16 November 1999" should, in my view, be construed as applying only to provisional damages and not to aggravated and exemplary damages. The fact that par 1 of the Terms of Settlement went on to provide that "Said verdict and judgment is to include the plaintiff's claim for costs" and that there were separate subparagraphs in par 8 of the Statement of Claim indicates that what was being resolved was the plaintiff's claim for provisional damages and costs and nothing else. 20. Accordingly, it is my view that it is open to the plaintiff to maintain a claim for exemplary damages. It is probably not open to him to claim aggravated damages in the light of the authorities that have been cited to me, but I see no procedural difficulty or unfairness being occasioned to the parties if I defer consideration of that question. 21. The Notice of Motion filed 2 November 2007 is dismissed. If it be an appropriate way to recite the decision, it is that I decline to strike out the plaintiff's claim for exemplary and aggravated damages being of the view that it is open to the plaintiff to claim exemplary damages. 22. The defendant will pay the plaintiff's costs of this application. 23. I make orders 1, 2 and 3 sought by the Notice of Motion filed 13 November 2007. 24. I have been informed by Mr Rush that the plaintiff's health is in a parlous state. It has always been the practice of the Tribunal to treat cases of mesothelioma as urgent and to hear and conclude them in as short a time as the proper considerations of justice allows. I have observed that this is the first time, to my knowledge, that further damages have been sought. The questions involved are, however, of rather more significance than that observation would indicate. Not only is the case urgent, but it involves an important matter of principle which should be determined at the earliest available opportunity. In saying that, with appropriate respect to the Court of Appeal, I would support, indeed recommend, in the event that an appeal against my decision today be made that it be heard at the earliest available opportunity. It would, of course, be desirable that that question be determined while the plaintiff is still alive. Mr J T Rush, QC with Mr B F Quinn instructed by Turner Freeman appeared for the Plaintiff Mr D J Russell, SC with Mr J C Sheller instructed by Ellison Tillyard Callanan 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.