Jolly v Idameneo (No 789) Limited [2016] NSWDDT 5

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Jolly v Idameneo (No 789) Limited [2016] NSWDDT 5 Hearing dates: 26 September 2016, 21 October 2016, 5 December 2016 Date of orders: 13 December 2016 Decision date: 13 December 2016 Before: KEARNS J Decision: Verdict and judgment for the plaintiff in the sum of $340,622.64. Catchwords: DUST DISEASES; mesothelioma; damages; liability; whether the plaintiff employed by Mayne Nickless Ltd or by its subsidiary company Cases Cited: CSR Limited v Wren (1997) 44 NSWLR 463 Category: Principal judgment Parties: Valma Elaine Jolly as the Executrix of the Estate of the Late Brian Richard Jolly (Plaintiff); Idameneo (No 789) Limited (formerly known as Mayne Nickless Limited A.C.N. 004 073 410) (Defendant) Representation: Counsel: Mr G Parker SC with Mr A Giurtalis appeared for the plaintiff; Mr J Sharpe appeared for the defendant

Solicitors: Maurice Blackburn (Plaintiff); Thompson Cooper Lawyers Pty Ltd (Defendant) File Number(s): DDT 144/2016

Judgment

Outline 1. Mr Jolly contracted mesothelioma. He sued the defendant for damages. He died of his illness on 25 October 2016. His wife and executrix of his Estate has been substituted as the plaintiff.

Issues 1. There are only two questions on the issue of liability. 1. Was Mr Jolly employed by Mayne Nickless Limited? The issue here is whether he was employed by Mayne Nickless Limited (Mayne Nickless) or by East Coast Transport Pty Limited. It is common ground that East Coast Transport Pty Limited became a wholly owned subsidiary of Mayne Nickless in 1968. It remained a separate corporate entity; 2. If not, did Mayne Nickless nevertheless owe the plaintiff a duty of care akin to that of an employer? – CSR Limited v Wren (1997) 44 NSWLR 463. 1. If either question is answered 'yes', the plaintiff must succeed in the proceedings with damages to be assessed.