B I (CONTRACTING) PTY LIMITED v Eileen Sylvia STRIKWERDA & Anor
JUDGMENT
1 MASON P: This appeal arises out of proceedings in the Dust Diseases Tribunal. It is limited as to points of law (Dust Diseases Tribunal Act 1989, s32).
2 Hans Jurgen Strikwerda (the deceased) contracted mesothelioma. He was a resident of South Australia. On 9 January 2004 he commenced proceedings in the Dust Diseases Tribunal of New South Wales against two defendants, claiming damages for negligence. The defendants were the appellant and second respondent in this Court.
3 The deceased died on 5 April 2004 before the Tribunal proceedings were completed. The first respondent, who is his widow, applied to be substituted as plaintiff on the basis that she was the executrix and sole beneficiary of the deceased's last will. An affidavit indicated her intention not to seek probate.
4 On 31 May 2004 the proceedings were amended by substitution of the widow as plaintiff and by consequential amendments to the pleadings. These proceedings (DDT 7 of 2004) are hereafter referred to as "the estate action". Their continuance, notwithstanding the death of the deceased, is authorised by the Survival of Causes of Action Act 1940 (SA). Section 3(2) of that Act provides that if a person commences an action for damages in respect of a dust-related condition and dies as a result of that condition before the action is finally determined, damages for pain and suffering, bodily and mental harm, and curtailment of expectation of life, are recoverable "for the benefit of the estate of the person".
5 On 16 April 2004 the deceased's widow commenced separate proceedings in the Tribunal against the same defendants claiming various heads of damages as the deceased's dependant. Her entitlement arose under the Wrongs Act 1936 (SA), subsequently renamed the Civil Liability Act 1936 (SA). These proceedings (DDT 118 of 2004) are hereafter referred to as "the dependant's action".
6 There were cross-claims between the defendants in each action.
7 By 30 September 2004 the plaintiff's claims were settled, subject to one matter.
8 In the estate action, there was to be judgment for $273,950, a sum that included $180,000 for general damages and $20,000 for loss of expectation of life.
9 The trial judge (O'Meally P) was informed that, in the dependant's action, $186,050 was an agreed sum that included $139,277 on account of the widow's loss of benefit from her husband's earnings (CB 17). The Tribunal was also told that this agreement was subject to a submission that judgment to be entered in favour of the plaintiff in the dependant's action should be reduced, taking into account the benefit she would receive from the estate of her late husband.
10 Counsel were not in a position to argue the offset issue on 30 September 2004. Accordingly, it was agreed that there should be a verdict in the dependant's action for the plaintiff jointly and severally against each defendant in the sum of $186,050.00, execution being stayed conditionally upon the first defendant (the present appellant) moving the Tribunal for reconsideration within 14 days (cf Dust Diseases Tribunal Act 1989, s13(6)).
11 Costs in each action were awarded to the plaintiff.
12 On 1 October 2004 O'Meally P apportioned liability as between the two defendants. He found the appellant to be responsible to bear 80% of the liability to satisfy the widow's damages in the two actions. Verdicts were entered in the various cross-claims accordingly (Red 82-3). These orders are the subject of a separate appeal (BI (Contracting) Pty Ltd v PHR Pty Ltd [2005] NSWCA 304).
13 Pursuant to the leave reserved, the appellant moved the Tribunal for orders in the dependant's action including the following:
1. That the Tribunal reconsider the matter of whether the plaintiff's damages in these proceedings should be reduced by the amount which the plaintiff will be entitled to receive from the award of general damages and damages for loss of expectation of life in the proceedings brought by the estate of the plaintiff's late husband, Hans Jurgen Strikwerda (DDT No 7 of 2004).
2. That the Tribunal amends the decision that judgment be entered against the first defendant, in these proceedings, in the sum of $186,050 and in lieu thereof the sum of $81,050 be entered.
14 The difference between $186,050 and $81,050 is $105,000. I shall explain below why this was the mathematically agreed sum for reducing the widow's verdict in the dependant's action, subject to determining the estate's capacity to pay that amount to the widow out of the proceeds of the estate action verdict.
15 The motion for reconsideration was heard and determined on 30 November 2004. The transcript reveals that the judge and all parties were aware of the uncertainty as to the size of the distributable estate, with reference to the capacity of the estate to pay the widow the mathematically agreed sum in full.
16 A forensic stand-off ensued, with counsel for the appellant and the first respondent each adopting the position that the other party bore the onus of establishing facts relevant to the estate's capacity to pay the widow. Senior counsel for the first defendant, the present appellant, submitted to the primary judge that evidence as to the solvency of the estate was within the domain of the widow and executrix of the deceased (CB 51).
17 At one stage, the judge expressed his dilemma when he told the first defendant's counsel (CB 64):
You have proved a particular amount, but there are lots of things I do not know. The estate might have been worth more than the judgment, it may have been worth less. But surely it is relevant for me to know these things.