DOWNES v AMACA Pty Ltd [2010] NSWCA 76

New South Wales Court of Appeal

CITATION: DOWNES v AMACA Pty Ltd [2010] NSWCA 76 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24/08/2009

JUDGMENT DATE: 15 April 2010

JUDGMENT OF: Basten JA at 1; Campbell JA at 61; Handley AJA at 122

(1) Appeal allowed in part; (2) Judgment of the Dust Diseases Tribunal set aside except as to costs; DECISION: (3) Proceedings remitted to the Tribunal for the purpose of determining whether the assessed amount of $156,443.05 for the plaintiff's past and future expenses or some other amount should be deducted from his damages assessed at $311,743.05; (4) Subject to s 13(6) of the Tribunal Act the rehearing of the proceedings is limited to the issue so remitted; (5) Respondent to pay the appellant's costs of the appeal.

CATCHWORDS: DAMAGES - medical and other expenses payable by Dust Diseases Board - Board had not accepted liability - unsuccessful application by plaintiff for benefits - finding that renewed application would succeed - whether benefits to be deducted from damages. - DUST DISEASES - medical and other expenses payable by Board - Board had not accepted liability - unsuccessful application by plaintiff for benefits - finding that renewed application would succeed - whether benefits to be deducted from damages. - DUST DISEASES TRIBUNAL - assessment of damages - statutory power of reconsideration - Dust Diseases Tribunal Act s 13(6) - relevance to deduction of medical and other expenses - unsuccessful application by plaintiff for benefits - finding that fresh application would succeed - whether Judge entitled to deduct benefits subject to reconsideration if fresh application unsuccessful.