August 2017

Asbestos case note - Inability to claim the pension

On 22 August 2017, Judge Russell of the Dust Diseases Tribunal handed down his judgments in Dib v Amaca Pty Ltd [2017] NSWDDT 6 and Londos v Amaca Pty Limited [2017] NSWDDT 7. The cases were not related to each other, but had an important common issue.

These cases have been keenly watched by the asbestos community, as they contained the unusual feature of the plaintiff asserting that he should be entitled to receive damages for the pension he would otherwise have been paid in the “lost years” (the time between his likely date of death, and normal life expectancy).

Many of the facts in the cases, and therefore the judgments, are unremarkable. The plaintiffs had no difficulty establishing that they were exposed to James Hardie products, and there were also few unusual features about the mesothelioma from which they both suffered.

The course of the disease for the two plaintiffs was slightly different, although each had a life expectancy of about 12 months. Judge Russell awarded each of them $350,000 for general damages, being the same figure as in his recent judgment in Zanetic v Amaca [2017] NSWDDT 5.

In relation to domestic care, Judge Russell accepted the views of Joanne Oates, an occupational therapist often relied on by plaintiffs. This resulted in awards for domestic care (including interest) of $189,705 and $141,960 respectively.

However, the main distinguishing point of the case was the plaintiffs’ claim to be compensated for the pension they would otherwise have received in the lost years. Judge Russell reviewed the Australian authorities, including various High Court judgments, and noted that the focus of those judgments was to award damages for interference with earning capacity, not interference with the ability to receive income from other sources, like the pension. The judge noted that the pension is received without reference to the ability of a person to earn income, or without reference to whether there has been any interference with the ability to earn income.

Therefore, Judge Russell rejected the plaintiffs’ claim for this head of damage.

With one eye on the possibility of an appeal, Judge Russell went on to consider what the plaintiffs’ loss would actually have been if this head of damage had been allowed. He relied on information from the Australian Bureau of Statistics about typical living expenses. When also noting the payments to be received from the Dust Diseases Authority, the judge concluded that the plaintiffs would not in fact have suffered a loss, even if they had been allowed to be compensated for the pension they would have been paid if not for the mesothelioma.

Comment

Notwithstanding the arguments put forward by the plaintiffs – and the recent acceptance of such arguments in the South Australian District Court, which is subject to an appeal - it seems to us from first principles that Judge Russell’s analysis of the earlier decisions is likely to be correct, and would therefore survive any appeal.

Certainly, from the point of view of defendants in the Dust Diseases Tribunal, this result offers a degree of certainty: if compensation for a lost pension had been allowed, then a plaintiff being deprived of income from other sources in the lost years may also have been compensable. In any event, the calculations suggest that the true value of the loss of that pension is negligible, or nil.

On the other hand, the fact that Judge Russell has again awarded $350,000 for general damages, and has accepted Joanne Oates’ assessment of domestic care in both cases, further reinforces the idea that the long-suspected upward drift of damages in the Tribunal is now definitely under way.

 

Author: David Greenhalgh