Gillespie v Hurll Nu-Way Pty Ltd [2015] NSWDDT 1

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Gillespie v Hurll Nu-Way Pty Ltd [2015] NSWDDT 1 Hearing dates: 16 April 2015 Decision date: 16 April 2015 Before: Curtis, J Decision: Leave to file amended Statement of Claim Catchwords: DUST DISEASES TRIBUNAL – wife claiming damages from husband's former employer – payment of costs for future medical expenses – whether plaintiff can file amended Statement of Claim seeking indemnity in relation to future medical expenses – once and for all rule Legislation Cited: Health Services Act 1997 Supreme Court Act 1970 Dust Diseases Tribunal Act 1989 Civil Procedure Act 2005 Cases Cited: Skelton v Collins (1966) 115 CLR 94 CSR Ltd & Anor v Bouwhuis (1991) 7 NSWCCR 223 Burrell v The Queen [2008] HCA 34 Category: Procedural and other rulings Parties: Annette Jean Gillespie (Plaintiff) Hurll Nu-Way Pty Ltd (Defendant) Representation: Counsel: D J Russell SC appeared for the plaintiff J C Sheller appeared for the defendant

Solicitors: Maurice Blackburn Lawyers (Plaintiff) Hunt & Hunt (Defendant) File Number(s): 26/15

Judgment 1. The plaintiff, Mrs Annette Jean Gillespie, suffers from mesothelioma. She claimed damages from the defendant, her husband's former employer, alleging that she contracted the disease from domestic exposure to his work clothes. The defendant has placed both liability and damages in issue. 2. The problem faced by Mrs Gillespie, is that if she is successful, section 71 of the Health Services Act 1997 requires that from her damages she must pay the costs of future medical and hospital treatment provided to her by the New South Wales Public Health System. 3. It is difficult, well nigh impossible, to accurately determine those costs, and inevitably the amount awarded under this head of damages will be either insufficient to meet those expenses, or, to the disadvantage of the defendant, greater than the actual cost. 4. To address the problem Mr Russell SC for Mrs Gillespie submits that she should have leave to file an amended Statement of Claim claiming that in addition to damages she should have the following relief: 1A. A declaration pursuant to s 75 of the Supreme Court Act 1970 that the defendant is liable to indemnify the plaintiff for any future hospital related expenses which the plaintiff becomes liable to pay pursuant to s 71 of the Health Services Act 1997. 1B. An order that the plaintiff may seek a reconsideration pursuant to s 13(6) of the Dust Diseases Tribunal Act 1989 on the issue of damages if she becomes liable to pay further hospital‑related expenses pursuant to s 71(1) of the HSA. 1C. In the alternative: (a) judgment against the defendant for damages to be assessed, and (b) an order that the defendant make a payment to the plaintiff of part of the plaintiff's damages pursuant to s 82 of the Civil Procedure Act 2005.