Raines v Amaca Pty Ltd & Seltsam Pty Limited [2017] NSWDDT 16

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Raines v Amaca Pty Ltd & Seltsam Pty Limited [2017] NSWDDT 16 Hearing dates: 15 November 2017, 12 December 2017, 15 December 2017 Date of orders: 18 December 2017 Decision date: 18 December 2017 Before: Kearns J Decision: Verdict and judgment for the plaintiff in the sum of $1,479,000. The defendants are to pay the plaintiff's costs. Stay granted conditional upon payment of the sum of $470,000. Catchwords: Dust diseases – mesothelioma – s 15B – factual background – past care – future care – reasonable need - two carers and two dependants – passive care – active care – principal carer - vicissitudes Legislation Cited: Civil Liability Act 2002; Workers' Compensation Act 1987 Cases Cited: Werner v Krahe [2002] NSWCA 168; Amaca Pty Ltd v Novek [2009] NSWCA 50; Dionisatos v Acrow Formwork and Scaffolding Pty Ltd [2015] NSWCA 281; State of New South Wales v Perez [2013] NSWCA 149 Category: Principal judgment Parties: Percy Raines (plaintiff); Amaca Pty Ltd (under NSW administered winding up) (first defendant); Seltsam Pty Limited (second defendant) Representation: Counsel: Mr G Parker SC appeared with Mr A Giurtalis for the plaintiff; Mr J Sheller appeared for the first defendant; Mr B Ilkovski appeared for the second defendant

Solicitors: Maurice Blackburn Lawyers (plaintiff); Mills Oakley Lawyers (first defendant); Colin Biggers & Paisley (second defendant) File Number(s): DDT 85/2017

judgment

The claim and the issues 1. The plaintiff has contracted mesothelioma. He seeks damages from the defendants. In the course of the running of this case most of the issues were resolved between the parties. There remained one principal issue, that is, the plaintiff's claim under s 15B of the Civil Liability Act 2002 (CLA). 2. Section 3 of the CLA provides: In this Act: court includes tribunal, and in relation to a claim for damages means any court or tribunal by or before which the claim falls to be determined. damages includes any form of monetary compensation but does not include: (a) any payment authorised or required to be made under a State industrial instrument, or (b) any payment authorised or required to be made under a superannuation scheme, or (c) any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy. non-economic loss means any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement. 1. Section 11 of the CLA provides: In this Part: injury means personal injury and includes the following: (a) pre-natal injury, (b) impairment of a person's physical or mental condition, (c) disease. personal injury damages means damages that relate to the death of or injury to a person. 1. Section 15B of the CLA relevantly provides: (2) Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that: (a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1)—the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants: (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. … (6) The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant's capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity. … (8) If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants while the claimant is a participant in the Scheme if (and to the extent that): (a) the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and (b) the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant's dependants. (9) Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that): (a) the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and (b) an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act. (10) Damages may not be awarded to a claimant under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants if (and to the extent that): (a) the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and (b) the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant's dependants being provided with the domestic services that the claimant has lost the capacity to provide. (11) In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account: (a) the extent of the claimant's capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and (b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and (c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages. 1. The elements the plaintiff needs to establish to satisfy his claim are to be found in subs (2). They are: 1. the persons to whom the services were provided were dependants ‑ that is not in issue; 2. the services were provided before the time that the liability in respect of which the claim is made arose ‑ that is not in issue; 3. the dependants were not capable of performing the services themselves by reason of age or physical or mental incapacity ‑ that is not in issue; 4. that there is a reasonable expectation that but for the plaintiff's mesothelioma the plaintiff would have provided the services to the dependants for at least six hours per week and for a period of at least six consecutive months ‑ six hours per week is in issue; 5. there will be a need for the services to be provided for those hours per week and that consecutive period of time and that that need is reasonable in all the circumstances ‑ again, six hours per week is in issue and so is "reasonable". 1. There are further issues I will need to address.