Anthony David Talifero v Amaca Pty Limited [2017] NSWDDT 14

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Anthony David Talifero v Amaca Pty Limited [2017] NSWDDT 14 Hearing dates: 23 November 2017 Date of orders: 11 December 2017 Decision date: 11 December 2017 Before: Judge D. Russell Decision: (1) Judgment for the plaintiff against the defendant for $560,482. (2) Order the defendant to pay the plaintiff's costs. (3) Stand the matter over for mention to Thursday, 14 December 2017 at 9.30am to deal with the question of costs. Catchwords: DUST DISEASES – exposure - damages Legislation Cited: Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulation 2013 Civil Liability Act 2002 Category: Principal judgment Parties: Anthony David Talifero (plaintiff) Amaca Pty Limited (defendant) Representation: Counsel: J. Rush QC (plaintiff) G. Watson SC (defendant)

Solicitors: Segelov Taylor Lawyers (plaintiff) Mills Oakley (defendant) File Number(s): DDT 116/2017

Judgment 1. By a Statement of Claim filed on 18 April 2017 the late Mr Francis John Talifero sued Amaca Pty Limited for damages for his disease of mesothelioma. Mr Talifero worked from 1971 to about 1996 as a self-employed house painter. During that time he handled, cut, drilled, rasped, sanded and cleaned up asbestos cement building products during the course of his house painting duties. 2. On 6 September 2017 the matter was set down for Hearing commencing on 16 October 2017. It was intended that the plaintiff's evidence would be taken at his residence at Maroubra on the first day of the three day Hearing. 3. Mr Talifero's health deteriorated and he was admitted to the Sacred Heart Hospice at St Vincent's Hospital, Darlinghurst. The matter was listed for Directions on 18 September 2017 for the purpose of arranging an earlier bedside Hearing to take the plaintiff's evidence at the hospice. On that date it was indicated by counsel for the plaintiff that the plaintiff was too ill to give evidence, even at a bedside Hearing. 4. On 5 October 2017 the matter was listed for Directions to arrange a bedside Hearing. This was set down for 10 October 2017. 5. On 9 October 2017 the proposed bedside Hearing was vacated, as there was evidence that Mr Talifero was far too ill to give evidence. 6. Mr Talifero passed away at the hospice early on the morning of 16 October 2017, which was the first date of his Hearing. The Hearing dates were vacated. On 7 November 2017 orders were made substituting Mr Talifero's son Mr Anthony David Talifero as the plaintiff, so that the proceedings could continue as an estate claim. The matter was then set down for Hearing on 23 and 24 November 2017. 7. The Hearing concluded on 23 November 2017 and judgment was reserved. As the claimant was deceased, and as there were other urgent mesothelioma cases pending, delivery of this judgment has been delayed, at least in terms of Dust Diseases Tribunal judgments. 8. Senior counsel for the defendant indicated that diagnosis and foreseeability were admitted. He informed the Tribunal that subject to proof of exposure, duty and breach of duty of care were admitted. That left as the only issues for determination: 1. Exposure to James Hardie asbestos cement products; 2. Damages.