Miller v Amaca Pty Ltd [2003] NSWDDT 2

Dust Diseases Tribunal of New South Wales

CITATION : Miller v Amaca Pty Ltd [2003] NSWDDT 2 PARTIES : Nerida Ruth Miller Amaca Pty Ltd MATTER NUMBER(S) : 414 of 2002 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Damages :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 7 January 2003, 10 January 2002 EX TEMPORE JUDGMENT DATE : 01/10/2003

FOR PLAINTIFF: Mr J Sharpe instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR DEFENDANT Mr J Gibson instructed by Holman Webb

JUDGMENT: 1. The plaintiff, Mrs Nerida Howells, formerly Nerida Miller, was between 1947 and at least 1968 married to one Hedley Anton John Logan. Mr Logan was engaged by the defendant, Amaca Pty Limited, as a contract carter, carting asbestos cement pipes from the defendant's asbestos networks at Camellia to various places in the Sydney metropolitan area. In the course of this work Mr Logan was himself exposed to high concentrations of asbestos dust and fibre which dusts polluted the cabin of his trucks and his clothes. The plaintiff, as his wife, travelled with him in the cabin of the truck on frequent occasions and on other occasions was in physical contact with her husband when he was wearing these contaminated clothes. She also shook out, thrashed and washed the clothing for her husband. 2. In consequence of this exposure Mrs Howell has contracted the disease of mesothelioma. 3. The defendant does not place in issue in relation to liability any matter other than requiring proof that the plaintiff was exposed to the defendant's products. I accept the plaintiff's evidence in this regard. It is common ground that the only manufacturer of asbestos cement piping at the relevant time was Amaca Pty Limited (formerly known as James Hardie and Coy Pty Limited). There must be a verdict for the plaintiff. 4. The plaintiff is now 75 years of age and prior to her illness was in robust good health. She has suffered physically and has more suffering in prospect. The greater part of her suffering though is to my mind that suffering caused by the knowledge of her futile and premature death. I assess general damages in the sum of $185,000. I include in this sum a consideration of the particular loss of pleasures caused to the plaintiff because she can no longer enjoy the fruits of vigorous activity in gardening. 5. I allow interest on $120,000 at 2 per cent, $2,400. 6. I allow loss of expectation of life in the sum of $20,000. The plaintiff although 75 years of age was in very good health, and had I believe many years of active life before her. 7. Past medical expenses are agreed in the sum of $16,671.05. 8. After discussion with counsel I allow future medicals in the sum of $8,100. 9. Past care I allow at $9,000 and interest on that care, $450. 10. Estimates of future care vary between approximately $20,000 and approximately $40,000 and counsel have indicated that without further reasons it would not be unreasonable that I allow $30,000 under this head of damages. The necessity for modifications to the plaintiff's house is not in dispute and I allow the sum of $6,000. 11. There is to be verdict and judgment for the plaintiff in the sum of $277,621.05. 12. The defendant is to pay the plaintiff's costs. 13. Leave to the defendant to issue cross-claims on or before 30 June 2003. 14. I now enter judgment for the plaintiff in the sum of $277,621.05. Mr J L Sharpe instructed by Turner Freeman appeared for the plaintiff Mr J Gibson instructed by Holman Webb appeared for the defendant