Curry v State of New South Wales [2003] NSWDDT 9

Dust Diseases Tribunal of New South Wales

CITATION : Curry v State of New South Wales [2003] NSWDDT 9 PARTIES : Leonard Brian Curry State of New South Wales MATTER NUMBER(S) : 469 of 2002 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Damages :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 25 March 2003, 16 April 2003 EX TEMPORE JUDGMENT DATE : 04/16/2003

FOR PLAINTIFF: Mr A Leslie QC instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT Mr B Ferrari instructed by Vandervords

JUDGMENT: 1. The plaintiff, Leonard Brian Curry, claims damages from the State of New South Wales in consequence of his having contracted the disease of mesothelioma because of the negligence of the defendant. 2. As the trial proceeded the liability of the defendant became patent and the plaintiff is entitled to a verdict. 3. Mr Curry was born on 24 May 1950 and has not yet reached his fifty-third birthday. He commenced to suffer the pains and symptoms of his disease in early 2002 and it is probable that he will not survive beyond 31 March 2004. His passing will be accompanied with great pain of mind and of body. Of particular moment in the instant case is the relative youth of the plaintiff who might otherwise have lived some many years. His grief and distress at the loss which has fallen upon him compounds beyond mere multiplication the physical suffering that he will endure. It is true that he has some cardiac disease and that his lifespan, upon the probabilities, would have been reduced in comparison with his peers to some degree. Nevertheless I believe general damages in the sum of $190,000 are reasonable. 4. It is agreed that interest should be added to the sum in the figure of $1,900. 5. The plaintiff until 31 March 2004 will receive from the Dust Diseases Board of New South Wales a pension equivalent to his loss of earnings prior to his death. 6. Thereafter it has been agreed that that which the plaintiff would otherwise have earned after tax is the sum of $652 per week. I find that upon the evidence the plaintiff would have spent $222 a week upon his personal care, so that the loss for the future years is at the rate of $430 per week. 7. The plaintiff has worked as a handyman and truck driver. He gave evidence that in July of 2001 he purchased a home at Speers Point near Newcastle and has committed himself and his wife to a mortgage in the sum of $200 per week. The period of the mortgage is 25 years. It is because of that recurrent expense, and the improbability of the plaintiff and his wife discharging the mortgage before the end of the term, given their relatively low earnings, that I think more probably than not the plaintiff would work until the age of 70. The sum discounted by 20 per cent is $299,839. Undiscounted the loss is a sum of $380,000. 8. Mr Ferrari has submitted that I ought award the plaintiff his wage loss until the age of 65 and discount that sum by 20 per cent, leaving an award of $181,356, to which I should add an allowance in respect of earnings of $250 per week for the next five years because the plaintiff in the years between 65 and 70 would probably work less energetically than he would at an earlier time. If I were to accept that submission the plaintiff would be entitled to a sum of approximately $220,000 in respect of the lost years. That sum is only 60 per cent of the amount which the plaintiff would earn were all the contingencies to go his way; that is, if he were to maintain his present earnings and enjoy good health. Not all contingencies are negative, it may be that the plaintiff would have happened upon a more highly paid job or a highly paid contract and may have earned more than the $430 per week. I do not believe that a discount of 40 per cent from the felicitous possibilities is reasonable given the limited extent of the plaintiff's cardiac disease. 9. I accept the plaintiff's submission on future loss of earning and award $299,839. 10. It is agreed that the amount which is appropriate to order for loss of expectation of life is $20,000. 11. It is also agreed that the sum to be awarded in respect of past and future care is $40,000 and that the plaintiff is entitled to a sum of $10,000 in respect of his labour in performing building extensions to his home. 12. There is to be judgment for the plaintiff in the sum of $561,739. 13. I order the defendant to pay the plaintiff's costs. Mr A Leslie QC instructed by Turner Freeman appeared for the plaintiff Mr B Ferrari instructed by Vandervords appeared for the defendant