Dust Diseases Tribunal of New South Wales CITATION : David Lynch v Amaca Pty Ltd [2004] NSWDDT 1 PARTIES : David Lynch Amaca Pty Ltd MATTER NUMBER(S) : 350 of 2003 JUDGMENT OF: Curtis J CATCHWORDS: Damages :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 13 February 2004, 24 February 2004 EX TEMPORE JUDGMENT DATE : 02/24/2004 FOR PLAINTIFF: Mr A Leslie QC instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT Ms W Strathdee instructed by Holman Webb JUDGMENT: Dust Diseases Tribunal of New South Wales Matter Number DDT350 of 2003 David Lynch v Amaca Pty Ltd 24 February 2004 JUDGMENT CURTIS J 1. The plaintiff, Mr David Lynch, was born on 3 December 1947. Having left school in 1963 at the age of 16 he became apprenticed as a carpenter. He then worked for many years in the trade until 1975. In the course of this work he inhaled asbestos dust and fibre in consequence of which he has contracted the fatal disease of mesothelioma. He sues the defendant for that the defendant manufactured the asbestos products upon which he worked and in breach of its duty failed to warn him of the dangers associated with these products and that failure was a material cause of his disease. The defendant does not resist findings of duty, breach of duty and causation and the plaintiff is entitled to an award of damages. General Damages 2. Mr Lynch is now only 56 years of age. He is married and has three young adult children, Jason aged 23, Corinna aged 22 and Matthew aged 18. The children all live at home. 3. From 1975 he has worked for the Church of Jesus Christ of Latter Day Saints, initially as a volunteer labourer, then as a building supervisor and estimator and project manager. In January 2003 he commenced to suffer chest pains, the first symptoms of his disease. By May 2003 the chest pain was quite severe and he could barely walk. Thorascopic investigations and pleural aspirations were followed by a subpartial pleurectomy, a pulmonary decortication and talc pleurodesis to his right lung on 18 August 2003. Mr Lynch now has continuing discomfort in his right lung and severe pain on his right side with tenderness in the area of the thoracotomy scar. His pain increases towards the end of the day and increases overall. He suffers from breathlessness, chest tightness and discomfort, particularly on exertion. 4. The terrible nature of this disease and the awful suffering which will confront Mr Lynch have been addressed in many judgments in this Tribunal. The defendant has submitted that an appropriate award of damages given the plaintiff's relative youth is $190,000. Mr Leslie for the plaintiff suggests the appropriate sum is $200,000. Notwithstanding the comfort which Mr Lynch derives from his religious convictions, he leaves a relatively young family and his wife. $200,000 I believe to be the appropriate amount of general damages. It is agreed that interest on this sum should be calculated in the round figure of $1,000. Loss of expectation of life 5. This sum is agreed in the sum of $20,000. Past and future care 6. The defendant's expert has calculated this as justifying an order in the sum of $20,000, the plaintiff's expert over $100,000. Without offering further reason other than that of expediency I allow this heading of damages in the sum of $50,000. Loss of earnings 7. These have been agreed in the sum of $277,148 in respect of both past and future loss of earnings. Loss of pension/superannuation 8. This head of damages comprises the significant issue between the parties. The plaintiff upon joining his employer was admitted to a superannuation plan described as the Deseret Benefit Plan for Australia (DBPA). Mr Lynch was a member of the category A defined benefit plan. Pursuant to this plan, retirement benefits to be paid to Mr Lynch were calculated pursuant to a formula by which the annual pension payable upon retirement was a function of the number of years during which he was a member, and a percentage of his final salary. Based upon the salary payable to the plaintiff when he ceased work in November 2003, the pension to which he would have been entitled upon his retirement at the age of 65 was $48,627.57 per annum. It is agreed as to calculation that the present value of that entitlement is the sum of $426,997. It is also agreed that from that sum certain payments should be deducted. From the date upon which he ceased work until his probable date of death on 31 December 2004 the plaintiff will receive a total of $224,919 in benefits, leaving a balance of $159,832. 9. After the deduction of a further 15 per cent in respect of vicissitudes the plaintiff claims the sum of $135,857 in respect of the loss of future pension and benefits. 10. Miss Strathdee for the defendant in answer makes two submissions as to why this claim should be disallowed. 11. First, Ms Strathdee submits that I should ignore the fact that the plaintiff was a member of a particularly beneficial scheme and instead consider the statutory regime of superannuation pursuant to which I should calculate 9 per cent of the plaintiff's gross wages until the age of retirement, add to that sum the taxation savings of Mr Lynch's employee's contribution and calculate the gross sum standing to the credit of the plaintiff upon his retirement. I should then discount that figure to achieve its present value. I reject this submission. It is not possible to ignore the fact that the plaintiff was a member of a beneficial scheme in calculations designed to place him into the position in which he would have stood but for his injury. 12. The second and alternative submission of Ms Strathdee is that I should deduct the value of the death benefit which will be paid to Mr Lynch's wife pursuant to the scheme. Upon the date of Mr Lynch's death, a lump sum death benefit calculated as four times his annual salary, will be paid to Mrs Lynch. His annual salary was $89,868, this multiplied by 4 amounts to $359,472. It follows in Ms Strathdee's submission that because the plaintiff's estate receives the value of this sum on death, it must be deducted entirely from the present value of the pension benefit after the deduction for payments during the plaintiff's life, leaving a balance of minus $157,394, or in the alternative, a zero allowance for loss of superannuation benefits. I reject this submission. 13. The resolution of the dispute depends upon whether the sum, payable on death, is to be seen as a collateral benefit, which is not to be deducted. Bradburn v The Great Western Railway Company ((1874) LR10 Exchequer 1) held that in an action for damages for personal injury no deduction is to be made from the damages by reason of the plaintiff having received a payment under an accident insurance policy. In National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, the High Court held that the characterisation of the payment should determine whether it should be deducted from the damages or not. In his statement of general principle Dixon CJ said that for non deductibility the benefit should have the "additional characteristic" that it be intended for the plaintiff's enjoyment although there was also a right to claim damages and that it should not be provided in relief of any liability of others. 14. It is necessary then to turn to the DBPA plan in order to characterise the sum payable upon the death of the plaintiff. In a copy of the plan, which is in evidence, under the heading "Death Benefit" the plan describes the death benefit as being four times salary and includes this information: You have insurance You have insurance for death and disablement through the plan. Part of the plans death and disabled benefits are provided through an insurance company. The insurer will not ask you to provide evidence of health when you join the plan as long as you become a category A member within three months of your date of hire, or when you first commence working for more than 30 hours per week. 15. To my mind that is the end of matter. The law requires that I characterise the payment in a particular manner. The form of the benefit is expressed in terms appropriate to satisfy the legal test of non deductibility. The payment on death should not be deducted. 16. In consequence I award the plaintiff the sum of $135,857 in respect of the loss of pension/superannuation entitlements. Motor Vehicle Expenses 17. The plaintiff has private use of his motor vehicle provided for his employment by his employer. This is a Holden Commodore. In addition to this car Mr and Mrs Lynch maintain their personal vehicle so that the family has the use of two cars. Were it not for this benefit it is probable that the family would have to buy another car. I can take judicial note of the fact they live at Kellyville, which is poorly served by public transport. The present value of the entitlement until retirement in respect of a Holden motor car travelling 10,000 kilometres a year is said to be $55,178. In order to arrive at this sum the accountant has assigned the full value of the depreciation of such a motor car to the plaintiff rather than apportion it between him and his employer. I think that the value of the car on balance is half that claimed by the plaintiff which I allow in the sum of $27,589. 18. I grant liberty to the defendant to issue cross-claims on or prior to 31 December 2004. 19. I enter judgment for the plaintiff in the sum of $712,338. 20. The plaintiff on 11 February 2004 offered to settle this matter in the sum of $700,000 plus costs agreed or assessed. The plaintiff has substantially improved on that offer and is entitled to indemnity costs as and from 11 February 2004. 21. On 20 February 2004 the defendants wrote to the plaintiff's solicitors confirming they did not intend calling either their accountant expert nor their occupational therapist and confirming they did not require either of the corresponding experts of the plaintiff for cross-examination. Ms Tchan for the plaintiff attended court and was sworn but was not required to give evidence, similarly Mr Rosetto was sworn but was not required to give evidence. Doing the best I can in attempting to be fair to both sides I do not believe that the defendant should pay for the attendance of either Ms Tchan or Mr Rosetto and those costs are to be excluded. Mr A Leslie QC instructed by Turner Freeman appeared for the plaintiff Ms W Strathdee instructed by Holman Webbappeared 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.