Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281 Hearing dates: 16 - 17 October 2014 Decision date: 17 September 2015 Before: Basten JA at [1]; Macfarlan JA at [33]; Gleeson JA at [36] Decision: (1) Appeal allowed.

(2) Cross-appeal dismissed.

(3) Judgment and orders of the Dust Diseases Tribunal given on 29 August 2013 as between the plaintiff and the defendant be set aside except as to costs, and in place thereof, order that there be judgment for the plaintiff against the defendant in the sum of $342,289, together with such further amount as the Tribunal shall award pursuant to s 15B of the Civil Liability Act 2002 (NSW).

(4) Proceedings remitted to the Tribunal for the purpose of determining the damages to be awarded under s 15B of the Civil Liability Act 2002 (NSW) in accordance with law.

(5) Respondent/cross-appellant to pay the appellant/cross-respondent's costs in this Court. Catchwords: APPEAL – dust diseases –– appeal on point of law – whether primary judge erred in point of law by making factual errors – whether no evidence of exposure to asbestos dust or that employer knew or should have known of exposure

TORTS – negligence – dust diseases – damages – whether compensation paid and payable to worker's partially dependent widow pursuant to s 8(2B)(d) of the Workers' Compensation (Dust Diseases) Act 1942 (NSW) (Dust Diseases Act) should be deducted from damages awarded to the Estate under s 15B of the Civil Liability Act 2002 (NSW) – whether general law rule against double recovery applies – whether s 12D of the Dust Diseases Act prohibits deduction of such compensation from s 15B damages – whether s 15B(6) of the Civil Liability Act prevented award of damages for gratuitous services rendered by deceased to dependent wife – whether s 15B damages reduced because the widow's need for domestic services satisfied by family members after death of the worker