(Re Cheong) SRA v Amaca Pty Ltd [2006] NSWDDT 24

Dust Diseases Tribunal of New South Wales

CITATION : (Re Cheong) SRA v Amaca Pty Ltd [2006] NSWDDT 24

State Rail Authourity of New South Wales (Cross Claimant) Amaca P/L (First Cross Defendant) PARTIES : Wallaby Grip Ltd (Settled 20/03/2006) (Second Cross Defendant) Wallaby Grip (BAE) P/L (In Liquidation) (Settled 20/03/2006) (Third Cross Defendant) Bradford Insulation Industries P/L (Fourth Cross Defendant)

MATTER NUMBER(S) : 192/03/1

JUDGMENT OF: Duck J

CATCHWORDS: Dust Diseases Tribunal :-

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946

Wallaby Grip Ltd v State Rail Authority of NSW and Ors and James Hardie and Coy Pty Ltd v State Rail Authority and Ors (2001) 21 NSWCCR 650; CASES CITED: (re Woelfl) State Rail Authority of New South Wales v Amaca Pty Ltd and Ors DDT 61/1998/1; Macquarie Pathology Services Pty Ltd v Sullivan NSW CA 28 March 1995, unreported; Wynbergen v Hoyts Corporation Ltd (1997) 149 ALR 25

DATES OF HEARING: 19 - 21/07/05

DATE OF JUDGMENT: 07/25/2006

EX TEMPORE JUDGMENT DATE : 07/25/2006

M F Holmes QC instructed by Edwards Michael Moroney Lawyers appeared for the cross claimant LEGAL REPRESENTATIVES: D J Russell SC instructed by Phillips Fox appeared for the First Cross Defendant W P Y Austron instructed by Makinson & D'Apice appeared for the Fourth Cross Defendant

JUDGMENT:

DUCK J 1 The Tribunal has before it a cross-claim brought by the State Rail Authority (State Rail) against suppliers to it of asbestos products. The cross-claim is brought in proceedings originally commenced by Raymond John Davey against State Rail, who was his employer. Mr Davey was a man who had been born on 8 February 1933. He commenced employment with State Rail in 1950. Between 1950 and 1960 or 1961 he worked at Narrabri, firstly as an engine cleaner, later as a fireman and an acting locomotive driver. In 1961 he was transferred to the Enfield depot of State Rail, where he worked driving locomotives until his retirement in 1991. He commenced proceedings for damages in respect of the condition of asbestosis, which he pleaded arose as a result of the negligence of his employer. The statement of claim was filed on 19 May 2003. He died on 7 August 2003. His claim was settled by State Rail on 21 May 2004, on which date judgment was entered in the action which had been appropriately reconstituted following his death. The judgment was for $200,000 inclusive of costs.