Claydon v Amaca Pty Ltd & Anor (No 2) [2002] NSWDDT 23

Dust Diseases Tribunal of New South Wales

CITATION : Claydon v Amaca Pty Ltd & Anor (No 2) [2002] NSWDDT 23 Graham John Claydon PARTIES : Amaca Pty Ltd Seltsam Pty Ltd MATTER NUMBER(S) : 300 of 2001 JUDGMENT OF: Maguire J at 1 CATCHWORDS: :- Dust Diseases Tribunal Act - 13(6) - Reconsideration application - Principles to be applied - Application

LEGISLATION CITED: Dust Diseases Tribunal Act, s13 (6) CASES CITED: CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223 DATES OF HEARING: 15/03/2002 EX TEMPORE JUDGMENT DATE : 06/21/2002

FOR PLAINTIFF: Mr M J Joseph SC instructed by Alex Stuart & Associates LEGAL REPRESENTATIVES: FOR DEFENDANTS: Mr P E Blacket SC instructed by Holman Webb Mr P T Russell instructed by Windeyer Dibbs

JUDGMENT: 1. The trial of this action commenced before me at Toowoomba on Thursday, 15 November 2001. The plaintiff claimed damages for negligence on the part of each of the defendants in respect of the malignant mesothelioma from which he was suffering. The plaintiff's life expectancy was very poor and it was accepted on all sides that the trial should proceed to its conclusion expeditiously. 2. The evidence and addresses were all completed on the one day in Toowoomba and I reserved my decision. The transcript became available in Sydney on the afternoon of Monday, 19 November and it was transmitted by facsimile to Wagga Wagga where I had been hearing another case. I returned to my home that evening. Between the small hours of 20 November and midday of that day I prepared myself to deliver judgment. I then returned to Sydney and at 5 pm I commenced to deliver the judgment. 3. The trial was in effect an assessment of damages. There was a further issue, namely, apportionment between the two defendants. I assessed the plaintiff's damage at a total of $444,845. I apportioned the damages as between the first defendant and the second defendant in the ratio of 27:5. Accordingly I entered judgments for the plaintiff against the first defendant in the sum of $375.338 and against the second defendant in the sum of $69,507. I now have before me a notice of motion brought by the first defendant pursuant to s 13(6) of the Dust Diseases Tribunal Act. That subsection reads as follows: Whenever 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. 4. The notice of motion prays that judgments be entered as follows: (a) In favour of the plaintiff as against the first defendant in the sum of $322,604.8 plus costs. (b) In favour of the plaintiff as against the second defendant in the sum of $80,651.2 plus costs. 5. These conclusions arise out of submissions as to the apportionment between the defendants and as to the assessment of damages under five heads. 6. The second defendant opposes the first defendant's submissions on apportionment. It neither supports nor opposes the first defendant's submissions on damages. 7. The plaintiff opposes the first defendant's submissions on damages.