Jane McDermott v Southern New South Wales Local Health District and Hydro Limited [2013] NSWDDT 5

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Jane McDermott v Southern New South Wales Local Health District and Hydro Limited [2013] NSWDDT 5 Hearing dates: 7 May 2013 Decision date: 15 May 2013 Before: Kearns J Decision: Dismiss the notice of motion of the first defendant filed on 21 March 2013. The first defendant is to pay the plaintiff's costs of the motion. Catchwords: Dust diseases; mesothelioma; death of original plaintiff; by consent, original plaintiff's sister substituted as plaintiff; estate action and compensation to relatives action brought by original plaintiff's sister; sister named as executor and trustee in original plaintiff's Will; probate not sought as estate's debts exceed its assets; application by defendant to strike out or stay proceedings in absence of grant of probate or administration; construction and application of UCPR Pt 6 r 6.30; application dismissed. Legislation Cited: Dust Diseases Tribunal Act 1989; Probate and Administration Act 1898; Compensation to Relatives Act 1897 Category: Procedural and other rulings Parties: Jane McDermott (as legal personal representative of the Estate of Adam McDermott); Southern New South Wales Local Health District; Hydro Limited Representation: Mr J McIntyre SC with Mr S Tzouganatos, instructed by Turner Freeman, appeared for the plaintiff; Mr J Sharpe, instructed by Thompson Cooper Lawyers, appeared for the first defendant File Number(s): DDT 14/2012

Judgment

The facts 1The facts set out in these reasons may be taken as established for the purpose of the application before me, though not necessarily for the principal proceedings. 2From 1976 until the early 1980s, Ian McDermott worked at Cooma Hospital. The first defendant is responsible for its liabilities. Over the same period, Ian McDermott also worked at various houses owned and occupied by the second defendant. In both these employments, he was exposed to asbestos dust and fibre. It adhered to his person and clothing which he wore home each day. 3Adam McDermott was Ian McDermott's son. He was born on 1 October 1978. He lived at home with his family in the period mentioned. In that period, he contacted his father on his father's return from work each day. That exposed him to asbestos dust and fibre. He was also otherwise exposed to asbestos dust and fibre in the house including when his father's clothes were shaken and washed. 4As a result of this exposure to asbestos, Adam McDermott contracted mesothelioma. His exposure was a result of the negligence of both defendants. 5For his injury, Adam McDermott commenced proceedings in the Tribunal on 19 January 2012. Evidence was taken from him as a matter of urgency 23 January 2012 at St George Hospital. He died on 9 February 2012. 6Adam McDermott had left a Will dated 2 February 2012. He appointed his sister Jane McDermott as executor and trustee. 7On 26 September 2012, a notice of motion was filed seeking the following orders: 1. That pursuant to Regulation 6.30(2) of the Uniform Civil Procedure Rules 2005 and Regulation 19(2)(c) of the Dust Diseases Tribunal Regulation 2007, Jane McDermott be appointed the Legal Personal Representative of the Estate of the Adam McDermott in current Dust Diseases Tribunal of NSW proceedings case no. 14 of 2012. 2. That the name Adam McDermott be deleted in Dust Diseases Tribunal of NSW proceedings case number 14 of 2012 and the name Jane McDermott (as Legal Personal Representative of the Estate of the Adam McDermott be substituted in the Amended Statement of Claim and all subsequent documents. 3. That pursuant to Regulations 19(2)(c) and (d) of the Dust Diseases Tribunal Regulation 2007 leave be granted to file an Amended Statement of Claim in accordance with the Amended Statement of Claim annexed hereto and marked with the letter "A". 8The Tribunal made those orders by consent on 8 October 2012.